^aOJITVDJO^' ^OFCAIIFO% "^^AHvaaiHV^ ,^WEUNIVER% ^lOSANCfLfx> o ^/Sa3AINn3WV^ ^ILIBRARYQr '^^ ^\^EUNIVER% f ^Aa3AINfl]y\V ^0FCAIIF0%. ^,OFCALIF0% .^WEUNIVERi//i ^0\}iMm\H'^ ^^o\}\ym\n'^ ^;^ILIBRARY<://^ ^^WEUNIYERV^ ^V^OS ANCElfj^ ^TOITVDJO'?' ^laDNVSOl^"^ %a3AlNn-3WV^ -s^^tllBRARYOr ^U\ ^OdllVDJO'^ ^v;^UIBRARYQc ^;lOSANCElfj> so ?o ^OFCAIIFO/?^ ^OFCALIFO/?^ .^^\E•UNIVERS/A >^r. I ^cffOJ nVD- J0>^ ^^ ^<5Aavaaii#^ OS < J>, ^ '^mwim^ vvlOSANCElfj: O u- %a3AlNn3V\V^ ^V\EUNIVER% DigUi2©*(byjjJie lntei^ieftAAft?^ive^HiBRARY(9/ ■^AdaAiNnawv ^0FCAIIF0% ^(2AHvaani^ ^<:?Aiivaani^ ^VllBRARYQ^ ^,^^UIBRARY<9/: %0JI1VJJ0>^ ^^WEUNIVER% ^lOSANGElfj^^ o %jnv3jo>^ o 33 -JO laatfDbBaYic 8 9 T T •G88I 'AXYdHOO axY xoxaudv 'a • , •,! • • • • « , • , • •vorjaMV JO saxvxs aaxmn HHX ^O MOTiaillStiOQ SHI JO MOIIYMOI anx JO i^OXSIH [ CONTENTS. Vll of New Y In New York. In Massachusetts In Virginia In Maryland. In congress. Eiot in Philadelphia Congress adjourns to Princeton .... Eivalry for the site of the federal government Coalition in favor of its present site Hamilton on the defects of the confederation Ellsworth on national existence .... Forebodings of Hamilton. He retires from congress Connecticut delays its adhesion to a federal convention Forced emigration of royalists .... Washington examines the inland water communications Haldimand refuses to surrender the interior posts Congress votes Washington a statue. It receives him publicly Follows his counsels on the army and navy . On interior trade. On the state of Ohio On doing honor to Kosciuszko An envoy from the Dutch republic Madison forced to retire by the rule of rotation Washington calls on his old soldiers to promote union . The city of New York restored .... The officers of the array bid farewell to Washington His journey through New Jersey. Through Philadelph He resigns his commission -He returns to Mount Vernon .... ork CHAPTER IT. VIEGINIA STATESMEX LEAD TOWARD A BETTER UNIOIT. 17S4. Four motives to union Congress declines to lead the way. England compels union . The views of Virginia Jefferson describes the United States as one nation Congress vote them to be one nation Jefferson's plan for international commerce. Accepted by congress Jefferson and Washington on commerce with the West Honors decreed to Washington by Virginia Washington pleads with Virginia statesmen for a national constitution The great West to form an empire of republics Jefferson's ordinance Against slavery in the West. How it was lost Jefferson's life-long opinion on slavery . His ordinance for disposing of the public lands The mint and American coinage. The cost of the war Holland and John Adams. Generosity of France. Jefferson's financial plan 120 Patrick Henry disposed to increase the power of congress . . , . 121 VOL. VI. — B viii CONTENTS. PAGE 121 122 123 124 124 National measures of Virginia Jefferson enforces union Tlie committee of states. Retirement of Robert Morris Lee and Madison on a federal convention France sees the tendency of the confederation to dissolution CHAPTER III. THE WEST. 1784-1785. Washington's tour to the West 125 His scheme of internal navigation. Ilis report to Governor Harrison . . 126 Lafayette in the United States 127 Washington negotiates between Virginia and Maryland. lie i^cfuses gifts . 128 Virginia appoints commissioners to treat with Maryland .... 129 The fifth congress and Richard Henry Lee as its president . . . .129 Samuel Adams for a firm government 130 The politics of New York corrupted by its custom-house .... 130 Washington's western pohey ISO He brings it before congress. William Grayson . . ... . . 131 Pickering against slavery in the West 132 King revives Jefferson's antislavery clause 132 The proposal committed. King's report " . 133 Grayson favors the prohibition of slavery 134 His ordinance for the disposal of western lands 1 34 Can congress levy armed men ? 135 CHAPTEPv lY. THE REGULATION OF COMMERCE. THE FIFTH CONGRESS. 1784-1785. Proposed reform of the confederacy by less than a unanimous vote . . 136 Tract by Noah Webster 136 Excessive importations of British goods. The consequent distress . .137 Remedies proposed in New York 138 Pennsylvania proposes a protective system . . . . . . .138 Movements in Boston noted by Grayson 139 Boston demands more powers for congress and a protective tariff . . . 139 Bowdoin recommends a federal convention 140 Instructions to the Massachusetts delegates 140 Movements in New Hampshire and Rhode Island. In Pennsylvania . .141 John Adams applauds a navigation act. James Monroe . . . .141 His compromise proposal for a revenue. His report 142 His procrastination 143 Is puzzled by Adam Smith on the Wealth of Nations 144 The extreme South afraid of a navigation act 144 CONTENTS. ix PAGE The objections of Richard Henry Lee 144 Monroe wishes his measure delayed. Congress regrets Madison . . . 145 The Massachusetts delegates disobey their instructions 146 Their reasons. Bowdoin's reply 146 The effect 147 The American commissioners for treaties meet with a rebuff from England . 14*7 John Adams and King George 148 England will not treat except on the condition of a preference . . . 148 Adams proposes retaliation. Interview of Adams with Pitt .... 149 The United States agree with France for a perfect reciprocity . . . 152 France reduces the duty on American fish-oil. Treaty with Prussia . .152 Spain reserved. Noble spirit of South Carolina. Treaty with Morocco . 153 A new constitution cannot spring from congress 153 CHAPTER Y. OBSTACLES TO UNION EEMOYED OR QUIETED. 1783-1787. State of religion in the colonies 1 54 Virginia disestablishes the church 155 Hawley and the inquisition into faith by the temporal power . . . 155 Decline of the Anglican church in Virginia 156 Does religion need compulsory support ? Opinions of the Presbyterians . 156 Of the Baptists. Patrick Henry proposes a legal support for Christianity . 156 Madison opposes. Opinion of Washington 157 Of the Baptists. Of the convention of the Presbyterian church . . .158 Jefferson's bill for religious freedom adopted. Other states follow . .158 The statute in French and Italian 159 The Protestant Episcopal church of the United Slates 159 The Methodists. Their missionaries in America 160 Their superintendents. Their liturgy 161 Their first general conference 162 The superintendent defined to be a bishop. The Methodists and slavery . 163 Rapid increase of the Methodists. Roman Catholics in the United States . 164 Adjustment of claims to land by Massachusetts, Connecticut, New York . 165 By South Carolina, Virginia. Enlargement of Pennsylvania . . .165 New York yields to temptation. Slaverj and freedom never reconciled . 166 CHAPTER VI. STATE LAWS IMPAIEING THE OBLIGATION OF CONTRACTS PROVE THE NEED OF AN OVERRULING UNION. Before May 1787. Paper money in the American states 167 Laws of Connecticut. Of ilassachusetts ....... 168 Of New Hampshire. Rhode Island 169 CONTENTS. PAGE The court and the legislature of Rhode Island in conflict . . . .169 The laws of New York. Of New Jersey .170 Of Pennsylvania lYl Of Delaware. Of Maryland. Of Georgia. Of South Carolina . . .1*72 Of North Carolina. Of Virginia . . .173 Inflexibility of Washington ^ 174 Public opinion on paper money 175 Opinions of Madison and Roger Sherman ....... 176 CHAPTER YII. 00NGEES3 CONFESSES ITS HELPLESSNESS. 1783-1786. Washington in private life. The visit of Iloudon Invitations to France by its king and queen .... Situation and value of Mount Vernon. The house and grounds The lands, negroes, and produce Washington embarrassed for income. A gradual abolitionist Uis love of hunting. lie arranges his papers His perfect amiability. His exemplary life .... His religion. His hatred of war His sympathy for the Irish and the Greeks .... Ilis enthusiasm at the beginning of the French revolution He enjoins moderation on Lafayette. In politics an impartial American The commissioners of Maryland and Virginia meet at Mount Vernon The results. States divided on granting power over trade to congress Opinion of Madison Of Washington. Hesitation of Virginia Maryland suggests a politico-commercial commission The wisdom of Madison. Calling a convention at Annapclis The sixth congress More strength to the confederacy, or an end to the union Plan for a federal convention Strife between New Jersey and New York. Congress interposes New Jersey leads the way to a general convention What was written by Monroe By Grayson. The views of South Carolina . Monroe opposes a general convention .... Grayson's proposal. Proposal of Charles Pinckney His committee ofPer seven new articles of confederation Congress rests its hopes on the system of April 1783 . Discussions in New York city New York retains the collecting of the revenue Pennsylvania recedes from the revenue plan of congress Does not heed a delegation from congress Congress expostulates with the governor of New York . Clinton will not yield. Congress fails .... Why it could not but fail . 177 . 177 . 178 . 178 . 179 . 180 . 180 . 181 . 182 . 182 . 182 . 182 . 183 . 183 . 184 . 184 . 185 . 185 . 186 . 187 . 187 . 188- . 188 . 189 . 189 . 190 . 191 . 192 . 192 . 193 . 193 . 193 . 193 . 193 . 194-^ CONTENTS. CHAPTER yill. VIRGINIA INVITES DEPUTIES OF THE SEVERAL LEGISLATUEE8 OF THE STATES TO MEET IN CONVENTION. September 1786 to May 1787. PAGE The convention at Annapolis .195 Only five states appear. Their extreme caution in their report . . .196 They fix the time and place of a federal convention 196 King prevents the recommendation of the measure by congress . . .196 Clinton condemns the commissioners from New York 196 King before the legislature of Massachusetts 196 Followed by Nathan Dane 197 Massachusetts declines the suggestions from Annapolis . . . .197 Madison and Virginia. The assembly unanimous. Its declaratory preamble . 197 Virginia selects its delegates. Decision of New Jersey . . . .198 Of Pennsylvania. North Carolina and Delaware 199 The conciliatory movement of King in congress. It succeeds . . .199 The decision of New York. The insurrection in Massachusetts . . . 200 Its legislature accepts the invitation from Annapolis 201 So do South Carolina and Georgia. Connecticut. New Hampshire . . 201 Expectation of the British ministry 202 Madison prepares a complete plan of a constitution. Jefferson's advice . 202 Conciliates Randolph, governor of Virginia 202 Principles that governed Madison 202 The preparation of Washington for the convention 203 III.— TEE FEDERAL CONVENTION, CHAPTER I. THE CONSTITUTION IN OUTLINE. 14 May to 13 June 1787. Events overruled by justice. General desire for a closer union Character of the elections to the federal convention Journey to Philadelphia Arrival of Washington. Opening of the federal convention The Virginia members prepare a finished plan Washington declares for a new constitution . Position of Edmund Randolph His station and character .... Virginia unites under the lead of Madison . Shall the convention vote by states ? Arrival of delegates Their jarring opinions. Wa-shington's appeal to them The convention organized . 207 . 207 . 207 . 208 . 208 .208 . 208 . 209 . 2C9 . 210 . 210 . 211 Xll CONTENTS. PAGE Limited power of the delegates from Delaware 211 Position of Rhode Island. Character of the delegates . . . .211 Votes of individuals not to be recorded. Randolph opens the convention . 212 He proposes an outline of a constitution 212 Proposal of Virginia to found representation on free inhabitants . . 2l4 Charles Pinckney presents a plan. Debates in committee .... 215 Butler supports the Virginia plan. Government must act on individuals . 215 Sherman not yet ready 215 Debate on equality of suffrage. Delaware interposes 216 The legislature to be of two branches 216 One branch to be directly chosen by the people 216 Extent of the federal legislative powers 217 The right to negative any state law denied. Coercion of states . . .218 The national executive. The mode of its election and its powers . .219 Shall it be of one or more ? Sherman for its subordination to the legislature 219 Shall there be unity in the executive ? Shall it be chosen by the people ? . 220 Its period of service 220 How to be chosen. How to be removed 221 Speech of Dickinson for a vote by states in one branch of the legislature . 221 Randolph proposes an executive of three members . . . . . 222 Opinions on an executive council. The executive to be single . . . 222 The veto power 222 The judiciary 223 Appointment of judges 224 Shall the house of representatives be chosen by the states ? . . . . 224 Or by the people ? 224 How both branches are to be chosen. Hamilton's opinion .... 225 How to choose the senate . . 226 Are the states in danger ? The equality of the small states defended . . 227 Franklin interposes as a peacemaker 227 Connecticut the umpire between the small states and the large ones . . 228 The large states prevail 228 The requirement of an oath 229 Term of office and qualifications of representatives . . . . i 229 Of senators. The work of the committee ended 230 CHAPTER II. NEW JERSEY CLAIMS AX EQUAL EEPEESENTATION OF THE STATES. From the Fifteenth to the Nineteenth of June 1787. -:^ The small states dissatisfied. The plan of Connecticut . . . .231 New Jersey resists the large states 232 The plan of New Jersey 233 Debate on the extent of the powers of the convention .... 233 Paterson pleads for the equality of the states in one supreme council . . 234 Debate on the sovereignty of a single body 234 Speech and plan of Hamilton 235 CONTENTS. xiii PAGB How his plan was received 2b7 The Virginia plan reported to the house 238 CHAPTER III. THE CONI^ECTICUT COMPROMISE. Erom the Nineteenth of June to the Second of July 1787. The states and the nation. Independence declared unitedly . . . 239 Connecticut takes the lead 239 Character of Roger Sherman 240 Of Johnson. Of Ellsworth 241 Federal and national. Speech of Mason for two branches .... 242 Sherman for two branches 243 The convention decides for two branches 244 Wilson speaks for the general government and the state governments . . 244 Ellsworth would graft a general government on the state governments . 245 The mode of choosing and term of oflace of the senators .... 245 The decision. Fierce contest between the smaller states and the large ones 246 Franklin proposes prayer 247 The debate continues 248 Suffrage in the first branch proportioned to population .... 249 Ellsworth would have the vote in the senate by states 249 Speech of Baldwin. Wilson refuses to yield 250 So does Madison, Persistence of Ellsworth 251 He is supported by North Carolina . 252 The convention equally divided 253 Appointment of a grand committee to report a compromise .... 253^ CHAPTER IV. THE ADJUSTMENT OF REPRESENTATION". From the Third to the Twenty-third of July 1787. Franklin's compromise 255 Morris claims representation for property 256 The ratio of representation referred to a committee 256 Report of the committee 257 Appointment of a committee of one from each state 257 Madison's proposal of compromise. Report of the new committee . . 258 Approved by all except South Carolina and Georgia 259 Yates and Lansing desert their post 259 The southern states have a majority in the convention 260 Abolition of slavery in the North 260 Movement against the slave-trade. Two classes of slave states . . . 261 Jealousy of the speedy preponderance of western states .... 262 The equal rights of the western states maintained 263 Strife on the representation for slaves 264 A triple set of parties prevent a decision. Rash proposal of Morris . . 265 xiv CONTENTS. PAGB Taxation and representation 265 Slaves to be counted as three fifths in representation 266 Morris fears injury to commerce from the influence of western states . , 267 Eepresentation in the second branch proportioned to numbers . . . 267 Effect of the decision on the political power of ihe South .... 268 The senate to vote by states 269 CHAPTER Y. THE OUTLINE OF THE CONSTITUTION COMPLETED AND REFEERED, From the Seventeenth to the Twenty-seventh of Julj 1787. The distribution of powers between the general government and the states . 270 Eelation of federal legislation to that of the states 270 Property qualification as a condition of holding office 271 Qualification of the electors left to the states 272 Extent of the Jurisdiction of federal tribunals 272 How the new constitution was to be ratified 273 Committee of five ordered to report the resolutions of the convention in the form of a constitution 274 Character of Rutledge 274 Industry of the committee 275 Anxiety of the country 276 CHAPTER YI. THE COLONIAL SYSTEM OF THE UNITED STATES. From January 1786 to July 1787. The ordinance of 1787. Treaty with the Shawnees 277 Monroe's journey to the West 277 Report of a grand committee on the western territory 278 Monroe's plan for a north-western ordinance 279 Monroe and restrictions on slavery 279^ Certain waters and carrying places declared free. The Connecticut reserve . 279 The proposed five states in the North-west 280 Jealousy of the western states. KaskasKias 280 Urgent need of a territorial government. Progress of the bill . . . 281 Rufus Putnam's plan for colonizing the West. His appeal to Washington . 282 Parsons visits the West 283 Congress quiets the Indian title to a great pari of Ohio 283 Formation of the Ohio company 284 Parsons presents its memorial to congress. Effect of the memorial . . 285 Power of the South 285 Cutler before congress. Carrington's report 286 Richard Henry Lee on a new committee of seven 286 Ordinance for governing the territory of the United States. Its clauses . 287 Clause on contracts 288 Grayson and slavery. Nathan Dane and King ". 289 CONTENTS. XV PAOK History of the clause against slavery 289 Virginia accepts the ordinance with its exclusion of slavery .... 291 The rights of the free negro in New Yorii and Virginia .... 291 CHAPTER VII. THE CONSTITUTION IN DETAIL. THE POWERS OF CONGRESS. From the Sixth of August to the Tenth of September 1787. Report of the committee of detail 292 The constitution a government by the people 292 Membership of a colony defined. Who arc the people of the United States ? . 293 The new government a unity in plurality. The tripartite division of powers . 293 Election of the members of congress 294 Continuous succession of the government provided for 294 The new government to be supported from the common treasury . . . 294 Number of representatives 294 Qualifications of membership. Discrimination against the foreign-born . 295 Property qualification rejected 296 The quorum. Qualifications of electors . , 297 To be established by each state for itself 298 Relation of the slave-trade to representation. Of slavery .... 299 Why slaves should not be represented 299 The question adjourned. Powers gi-anted to the new government . . . 301 Power to emit paper money discussed by Hamilton 301 By Gouverncur Morris 302 By Mason, Gorham, Mercer, Ellsworth, Randolph, Wilson, and Langdon . 302 Madison's vote decides that the power shall not be granted .... 303 How friends of paper money stand in history 303 Power of the states to emit paper money 304 The power absolutely prohibited 305 Power left to the states to interfere with contracts 305 But not to interfere ex post facto. The terra ex post facto defined . . 306 Power of the congress to encourage manufactures by impost duties . . 307 Shall states or the United States encourage manufactures ? . . . . 307 Power confined to the United States 307 States not to treat with foreign powers or other states 308 Slaves and representation 308 Who are citizens ? Fugitives from justice. Fugitive slaves . . . 309 CHAPTER Vm. THE CONSTITUTION IN DETAIL. THE POWERS OF CONGRESS, CONTINUED. From the Middle to the End of August 1787. The assumption of the state debts. Jurisdiction over crimes . . . 311 Power to subdue a rebellion 311 Power of declaring war. General propositions of Madison. The army .312 xvi CONTENTS. PAOE Navy and militia. Clause on the militia 313 Compromise on the appointment of militia ofBcers 314 Power to execute the powers granted. Treason 314 State laws cannot shield the traiior 314 Commerce and the slave-trade 315 Exports exempted from taxation. Debate on continuing the slave-trade . 316 South Carolina and Georgia threaten to secede 318 Dickinson hints at a compromise 318 North Carolina will join South Carolina and Georgia on the question . .319 The question committed .... 319 The questions of the slave-trade and of a navigation act committed . . 320 The compromise of the committee. Final shape of the compromise . . 320 Slave-trade abolished after twenty years. Doom of slave-holding. . . 321 Why the British failed in retaining the South 322 How slaves may emerge into the human character 322 Grant of power to regulate commerce 323 The admission of new states within the limits of the United States . . 323 The admission of new states from abroad permitted 323 Special provision for the admission of Vermont 324 Powers of congress over the territory and other property of the United States 324 Limit on the taxation of slaves 325 CHAPTER IX. THE PRESIDENT. July, August, and September 1787. The choice of the president a difficult problem, IIow shall he be chosen? . 326 Shall he be re-cligible ? 327 The tenure of good behavior considered 328 The tenure for seven years with perpetual re-eliiribility .... 328 Choice by the national legislature and re-eligibility incompatible . . . 328 The choice of the president by the argregate people rejected . . . 328 The choice by an electoral college. Objections started against it . . . 329 A triple executive proposed 330 Pelation of re-eligibility of the executive to the length of the period of office 330 Madison likes best the election by the quaUfied part of the people at large . 330 The smaller states would have each one vote for two candidates . . . 330 The convention votes for a single executive, to be chosen by the legislature for seven years, and to be inehgible 331 The decision not accepted as final. Report of the committee of detail . .332 Antagonism of the smaller and the large states 332 The choice of the president by the vote of the states negatived . . . 333 Subject referred to a committee of eleven 334 ' Opinions of Gouverneur Morris. Of Sherman 334 Report of the committee 335 The president to be voted for in the electoral colleges of the states . . 335 CONTENTS. xvii PAGE And the vote to be counted by tlio senate 335 The plan of leaving so much pov/cr to the senate objected to . . . 836 Speech of Wilson 337 Of Hamilton. How the votes were to be counted 338 The mode of counting in Massachusetts preferred to that of Virginia . . 338 A summary statement of the metliod adopted 339 Election of the vice-president 341 Title of the president. The veto power. Power of pardon . . . .342 The president commander-in-chief 342 Restraints proposed on the executive power. A privy council proposed . 343 The plan for a council rejected. Relation of the president and the senate . 344 Power of war and peace. Over intercourse with foreign states . . . 345 Power of appointment. Power of removal 345 Qualifications of the president. Impeachment of the president . ^ - . 346 State of the president while on trial. Judgment in case of impeachment . 347 CHAPTER X. THE FEDEKAL JUDICIAEY. August and September 1787. Report on the federal judiciary. The judiciary and the veto power . . 348 Proposals of Pinckney 348 Organization of federal courts 349 Judges not removable by address. Extent of the judicial power . . . 350 The judiciary and unconstitutional laws £50 Senate to try impeachments. To cases beginning and ending in a state . 351 The original jurisdiction of the supreme court. Its appellate powers . .351 Method of choosing it. The supreme court and legislative encroachments . 352 Protection against erroneous judgments 352 By the court. By congress. By the good sense of the land . . . .353 Methods of consolidating the union. Of bankruptcies. Of money bills . 354 Number of the house of representatives 354 How the constitution was to be ratified 355 Randolph and Franklin for another federal convention 356 CHAPTER XI. THE LAST DATS OF THE CONVENTION". From tlie Twelfth to the Seventeenth of September 1787. Final draft of the constitution The constitution the institution of a government by the people "Why the names of the thirteen states were left out of the first clause Federal and national. The veto of the president. Of juries Motion for a bill of rights defeated. No title for the president . Of encouraging American manufactures. Servitude and service . How to introduce the constitution. The keeper of the purse Power to cut canals negatived 357 357 357 358 359 '.-sS^ 359 360 360 xviii CONTENTS. PAOB Of a university. No state to trespass on the rights of another state . . 381 The obligation of contracts 361 The distribution of representation 362 Slavery not recognized as a legal condition 362 Modes of amending the constitution 363 Mason dreads navigation acts. Indecision of Randolph .... 364 Firmness of Pinckney 364 The constitution ordered to be engrossed 365 Washington's remark to members of the conveation 365 Speech of Franklin 365 An amendment adopted at the wish of Washington 366 Appeals of Morris and Hamilton to every one to sign the constitution . .366 Three refuse 366 The constitution signed by every state. Prophecy of Franklin . . . 36*7 The meditations of Washington 367 IV,— TEE PEOPLE OF THE STATES IX JUDGMENT ON THE COXSTITU- TIOX. 178T-178S. CnAPTER I. THE COXSTITUTION IX COXGEESS AND IX VIEGIXIA. September to November 1787. The constitution received in congress. Opposed in congress . . . 371 Amendments desired by Lee S72 Is supported by New York. Propositions of New Jersey .... 373 Congress against Lee 373 A compromise agreed upon. Perseverance of Lee 374 Efforts of Washington in Virginia 375 Opponents of the constitution in Virginia 376 Washington wins over Randolph 377 Monroe writes in favor of adopting the constitution 377 The legislature of Virginia 377 The constitution referred to a state convention 378 But amendments may be proposed in the state convention .... 378 Plan for a second federal convention 379 Letters from Washington 379 CHAPTER II. THE COXSTITUTIOX IX PEXXSYLVAXIA, DELiTVAEE, AND XEW JEESEY ; AXD IX GEOEGIA. From 18 September 1787 to 2 January 1788. Pennsylvania 381 Franklin presents the constitution to its legislature 382 CONTENTS. xix PAOK Long debates upon it 382 Reception of the resolution of congress. A convention called . . . 383 Lee and Wilson in Pennsylvania • . . . 383 Prompt meeting of the Pennsylvania convention 384 Speech of Wilson in favor of the constitution 384 Opposed by Smilie. And by Whitehiil 386 On the want of a bill of rights 387 Speech of Findley 388 The constitution in the Delaware legislature 389 The Delaware convention ratifies the constitution 389 Pennsylvania ratifies the constitution 390 Act of the legislature of New Jersey 391 The New Jersey convention ratifies the constitution 391 The legislature of Georgia 392 Georgia unanimously ratifies the constitution 392 CHAPTER III. THE CONSTITUTION IN CONNECTICUT AND MASSACHUSETTS. From 26 September 1787 to 6 February 1788. Letter of Sherman and Ellsworth to the governor of Connecticut . . . 393 The Connecticut convention. Speeches of Ellsworth and Johnson . . 394 James Wadsworth and answers to him 394 Wise conduct of Hancock 395 Massachusetts calls a convention 395 Condition of the state. The elections 396 Samuel Adams. Opening of the convention 397 Elbridge Gerry. Conduct of Samuel Adams 398 Objections to the constitution. Property qualifications . . . .398 Representation of slaves. On a religious test 399 Period of office for senators. King explains the constitution . . . 399 Dawes argues for protective duties 399 The convention wavering 400 It follows Washington's mode of avoiding a second convention . . . 401 Objections made and answered 401 The slave-trade. Hancock proposes resolutions 402 Supported by Samuel Adams 403 Amendments referred to a committee 404 The committee report its approval of the constitution 404 Objections on the score of the slave-trade 404 And for the want of a bill of rights 405 Stillman speaks for the constitution 405 ' In what words Hancock proposed the question 405 The vote. Acquiescence of the opposition 406 Madison adopts the policy of Massachusetts 406 Opinions of Jefferson 406 Of John Adams 408 XX CONTENTS. PAGE 409 410 410 OriAPTER IV. THE COXSTITUTIOX IN NEW HAMPSHIRE, MARYLAND, AND SOUTH CAROLINA. From February to the Twenty-tliird of May 1783. The constitution in New Hampshire Its convention adjourns. The assembly of Maryland calls a convention The cabals of Virginia. Influence of Washington .... The election of a convention in Maryland 410 Advice of Washington. The convention of Maryland at Annapolis . .411 Conduct of Chase. Of Paca 412 Conduct of enemies and friends to the federal government . . . .412 The constitution ratified. No amendments proposed 413 Maryland will have no separate confederacy. Hopefulness of Washington . 413 The constitution in South Carolina. Attitude of its assembly . . . 414 Debate between Lowndes and Pinckney 415 Why there was no bill of rights 418 Speech of Kutledge. Call of a convention. The convention organized . . 419 The constitution ratified. Joy of Gadsden. Effect on New Uampshire . 420 \ CHAPTER V. THE CONSTITUTION IN YIRGINIA AND IN NEW HAMPSHIRE. From May 1785 to the Twenty-fifth of June 1788. Jay's negotiation with Gardoqui Alarm of the southern states Danger of a separation of the southern states Failure of the negotiation. Washington And Jefferson. Randolph will sapport the constitution Effect of the example of Massachusetts on Virginia The opposition in the Virginia convention. Madison . And Pendleton. Mason. Patrick Henry leads the opposition Is replied to by Pendleton and Madison .... Praise of the British constitution Madison compares the British and American constitutions . Henry speaks against the judiciary system. Marshall defends it The debtor planters. Henry on a separate confederacy Mason and Madison on the slave-trade And Tyler. Henry fears emancipation by the general government Noble speech of Randolph. Slavery condemned by Johnson Navigation of the Mississippi Contest between the North and the South .... The power to regulate commerce. The prohibition of paper mone; Quieting language of Henry The convention refuses a conditional ratification . The ratification. Its form. Acquicsc?nce of the opposition . New Uampshire ratifies before Virginia .... 421 422 422 423 424 425 425 426 427 427 428 429 430 431 432 432 433 433 434 435 436 436 437 CONTENTS. XXI v.— TEE FEDERAL GOVERNMENT. JUNE ITST. CHAPTER I. THE CONSTITUTION". 1787. PAGE The American constitution. Its forerunners 441 Its place in the world's history. Individuality the character of Americans . 442 Why the English language maintained itself 442 The constitution in harmony with individuality 443 Freedom of the individual in religion 443 Slavery an anomaly 444 Tripai'titc division of the powers of government 445 Tripartite division of the power of legislation 446 How the constitution is to be amended . 447 The United States a continental republic 447 A federal republic with complete powers of government .... 448 Powers of the states not by grace, but of right 448 Sovereignty of the law. Who arc the people of the United States ? . . 449 Their power. New states to be admitted on equal terms .... 450 Necessity of revolution provided against 450 Extending influence of the federal republic ....... 450 The philosophy of the people 45 1 CHAPTER II. THE LINGEEING STATES. From 1787 to the Second of August 1788. The Federalist and its authors 452 Hamilton and a revenue tariff 453 Unreasonableness of New York. Organization of the federal republicans . 454 Clinton recommends the encouragement of manufactures .... 455 New York legislature orders a state convention. The electors . . . 455 The meeting of the convention deferred till June 455 Division of parties in New York 455 Meeting of the convention. Livingston opens the debate .... 456 Speeches of Lansing, Smith, and Hamilton 456 News from New Hampshire. Success in New York depends on Virginia . 457 Hamilton declares his opinions. Clinton replies 457 News received of the ratification by Virginia 458 May New York ratify conditionally ? 458 Debate between Smith and Hamilton. Lansing holds out . . . .459 Madison condemns a conditional ratification 459 The opposition in New York give way 460 But ask for a second federal convention. Joy of New York city . . . 4G0 Convention of North Carolina 460 xxu CONTENTS. Is divided by parties . ; . . . Amendments proposed. The decision postponed Conduct of llhode Island .... PAGB 461 462 462 CHAPTER irr. THE FEDEEAL GOVERXilENT OF THE UXITED STATES. Erom 1788 to the Fifth of May 1789. Relations of America to Europe Encroachments of England in Maine and in the West . John Adams returns home. Adams and Jefferson Moderation of the Pennsylvania minority. Albert Gallatin The Virginia assembly demands a second federal convention Lee and Grayson elected senators Connecticut refuses a second convention. And Massachusetts And Pennsylvania. Dilatoriness of congress Measures for commencing proceedings under the constitution Federal elections in New York In Virginia. In South Carolina Party divisions. Debates in congress on protection Washington sees danger to the union from the South . His resolution on leaving Mount Vernon His reception at Alexandria. At Baltimore. In Delaware At Philadelphia. At Trenton. In New York His inauguration. His address to the two houses Public prayers in the church. Description of Washing-ton Address to him from the senate. From the representatives State of Europe at the time And of America 463 463 464 465 465 465 466 466 466 466 467 468 469 469 470 470 471 472 472 472 474 HISTOET OF THE FORMATION OF THE CONSTITUTION OF THE Ui^flTED STATES OF AMEEIOA. IN FIVE BOOKS, I.— THE CONFEDERATION. II.-ON" THE WAY TO A FEDERAL CONVENTION. III.— THE FEDERAL CONVENTION. IV.— THE PEOPLE OF THE STATES IN JUDGMENT ON THE CONSTITUTION. v.— THE FEDERAL GOVERNMENT. TOL. TI. — 1 THE FORMATION OF THE CONSTITUTION OF TH£ UJSTITED STATES OF AMERICA. m FIVE BOOKS. BOOK FIRST. THE CONFEDERATION. To June 1783. CHAPTER I. A EETROSPECT. EAELY MOVEMENTS TOWAKD UNION. 1643-1781. The order of time brings us to the most cheering act in the political history of mankind, when thirteen repnbhcs, of which at least three reached from the sea to the Mississippi, formed themselves into one federal commonwealth. There was no revolt against the past, but a persistent and healthy progress. The sublime achievement was the work of a people led by statesmen of earnestness, perseverance, and public spirit, instructed by the widest experience in the forms of representa- tive government, and warmed by that mutual love which pro- ceeds from ancient connection, harmonious effort in perils, and common aspirations. Scarcely one who wished me good speed when I first es- sayed to trace the history of America remains to greet me with a welcome as I near the goal. Deeply grateful as I am for the friends who rise up to gladden my old age, their en- couragement must renew my grief for those who have gone before me. "While so much is changed in the living objects of personal respect and affection, infinitely greater are the transformations in the condition of the world. Power has come to dwell with every people, from the Arctic sea to the Mediterranean, from Portugal to the borders of Russia. From end to end of the United States, the slave has become a freeman ; and the va- rious forms of bondage have disappeared from European Christendom. Abounding harvests of scientific discovery have been garnered by numberless inquisitive minds, and the wild- 6 THE COITFEDERATION. b. i. ; oh. . est forces of nature have been tanglit to become the docile helpmates of man. The application of steam to the purposes of travel on land and on water, the employment of a spark of light as the carrier of thought across continents and beneath oceans, have made of all the inhabitants of the earth one so- ciety. A journey round the world has become the pastime of a holiday vacation. The morning newspaper gathers up and brings us the noteworthy events of the last f our-and-twenty hours in every quarter of the globe. All states are beginning to form parts of one system. The "new nations,-' which Shakespeare's prophetic eye saw rising on our eastern shore, dwell securely along two oceans, midway between their kin of Great Britain on the one side and the oldest surviving empire on the other. More than two thousand years ago it was truly said that the nature of justice can be more easily discerned in a state than in one man.* It may now be studied in the collective states of all the continents. The ignorance and prejudices that come from isolation are worn away in the conflict of the forms , of culture. We learn to think the thought, to hope the hope / of mankind. Former times spoke of the dawn of civilization in some one land ; we live in the morning of the world. Day by day the men who guide pubHc affairs are arraigned before =^the judgment-seat of the race. A government which adopts a merely selfish policy is pronounced to bo the foe of the hu- man family. The statesman who founds and builds up the well-being of his country on justice has all the nations for a cloud of witnesses, and, as one of our own poets f has said, " The linked hemispheres attest his deed." He thrills the world with joy; and man becomes of a nobler spirit as he learns to gauge his opinions and his acts by a scale commen- surate with his nature. History carries forward the study of ethics by following the footsteps of states from the earliest times of which there is a recordL The individual who undertakes to capture truth by solitary thought loses his way in the mazes of speculation, or involves himself in mystic visions, so that the arms which * Plato in the Republic, Book ii. Bckker, III., i., 78. f Emerson : The Adirondacks^ 248. 1643-1754. EARLY MOVEMENTS TOWARD UNION. 7 he extends to embrace wliat are but formless shadows return empty to bis own breast. To find moral trutli^ he must study man in action. The laws of which reason is conscious can be tested best by experience; and inductions will be the more; sure, the larger the experience from which they are drawn.! However great may be the number of those who persuade; themselves that there is in man nothing superior to himself, history interposes with evidence that tyranny and wrong lead ' inevitably to decay; that freedom and right, however hard may be the struggle, always prove resistless. Through this ; assurance ancient nations learn to renew their youth ; the ris- 1 ing generation is incited to take a generous part in the grand drama of time ; and old age, staying itself upon sweet Hope as its companion and cherisher,* not bating a jot of courage, nor seeing cause to argue against the hand or the will of a higher power, stands waiting in the tranquil conviction that' the path of humanity is still fresh with the dews of morning,^ that the Redeemer of the nations Hveth. The colonies, which became one federal repubhc, were founded by rival powers. That difference of origin and the consequent antagonism of interest were the motives to the first American union. In 1643 three JSTew England colonies joined in a short-lived " confederacy " for mutual protection, espe- cially against the Dutch ; each member reserving its pecuhar jurisdiction and government, and an equal vote in the general council. Common danger gave the next impulse to collective action. Rivers, which were the convenient war-paths of the natives, flowed in every direction from the land of the Five Nations ; against whom, in 1684, measures of defence, extending from North Carolina to the northern boundary of New England, were concerted. Later, in 1751, South Carolina joined north- em colonies in a treaty with the same tribes. On the side of England, James II., using the simple method of the prerogative of an absolute king, began the suppression of colonial legislatures, and the consolidation of colonies under * y\vK€id ot Kapdiav ardWoiffa yi^porpS^os ffvvaopu iKiris. Pindar in Plato, Republic, Book i. Bekker, III., i., 10. THE OOITFEDERATIOK I. : CH. I. the rule of one governor. After tlie English revolution of 1688 had gained consistency, the responsible government which it established would gladly have devised one uniform system of colonial administration ; and in 1696 the newly created board of trade, of which John Locke was a member, suggested the appointment of a captain-general of all the forces on the conti- nent of North America, with such power as could be exer- cised through the prerogative of a constitutional king. In 1697 William Penn appeared before the board and ad- vised an annual " congress " of two delegates from each one of the American provinces, to determine by plurality of voices the ways and means for supporting their union, providing for their safety, and regulating their commerce. In 1721, to ensure the needed co-operation of the colonies in the rivalry of England with France for !North American territory, the plan attributed to Lord Stairs provided for a lord- lieutenant or captain-general over them all ; and for a general council to which each provincial assembly should send two of its members, electing one of the two in alternate years. The lord-heutenant of the king, in conjunction with the general council on behalf of the colonies, was then to allot the quotas of men and money which the several assemblies were to raise by laws of their own. All these projects slumbered among heaps of neglected papers. On the final struggle between England and France, the zeal of the colonists surpassed that of the mother country. A union, proposed by Franklin in 1754, would have pre- served the domestic institutions of the several colonies. For the affairs of the whole, a governor-general was to be appoint- ed from England, and a legislature, in which the representa- tion would have borne some proportion to population, was to be chosen triennially by the colonies. This plan, which fore- shadowed the present constitution of the Dominion of Canada and the federation which with hope and applause was lately offered by rival ministries to South Africa, was at that day rejected by the British government with abhorrence and dis- dain. The English administration confined itself next to methods for obtaining a colonial revenue. For this end Lord Halifax, 1754-1776. EARLY MOVEMENTS TOWARD UNION. 9 in 1754, advised that the commander-in-chief, attended by one commissioner from each colony, whose election should be sub- ject to one negative of the king by the royal council and another by the royal governor, should adjust the quotas of each colony, which were then to be enforced by the authority of parliament. This plan was suppressed by impending war. Great Britain having, with the lavish aid of her colonies,, driven France from Canada, needed them no more as allies in war. From 17G2 to 1765 the problem was how to create a grand system of empire. James Otis, of Boston, would have had all kingdoms and all outlying possessions of the crown wrought into the flesh and blood and membership of one organization ; but this advice, which would have required home govern- ments for every kingdom and for every colony, and, for general affairs, one imperial parliament representing the whole, found no favor. In those days of aristocratic rule, the forming of a grand plan of union was assigned by the Bedford faction to George Grenville, a statesman bred to the law, the impersonation of idolatry of the protective system as the source of British pros- perity, and of faith in the omnipotence of the British parlia- ment as the groundwork of British hberty. He sought to unite the thirteen colonies in their home administration by the prerogative ; in their home legislation by a royal veto of acts of their own legislatures ; in the establishment of their general revenue and the regulation of their commerce by acts of the British parliament. And now came into the view of the world the rare aptitude of the colonies for concert and organization. James Otis, in the general court of Massachusetts, spoke the word for an American congress, and in 1705 nine of the thirteen met at New York : the British parliament aimed at consolidating their administration without their own consent, and did but force them to unite in the denial of its power. The truest and greatest Englishman of that century breasted the heaving wave and by his own force stayed it, but only for the moment. An aristocratic house of commons, piqued and vexed at its own concession, imposed a tax on the colonies in the least hateful form that it could devise ; and in 1773 the 10 THE CONFEDERATION-. b. i. ; ch. i. sound of tea-chests, falling into Boston harbor, startled the nar tions with the news of a united and resistant America. In 1774 the British parliament thought proper to punish Boston and attempt coercion by arms ; " delegates of the in- habitants " of twelve American colonies in a continental con- gress acted as one in a petition to the king. The petition was not received. Six months before the declaration of independence, Thomas Paine, in " Common Sense," had written and published to the world : " IS'othing but a continental form of government can keep the peace of the continent.* Let a continentai. conference be held,t to frame a CONTINENTAL CHAETEE, drawing the line of business and juris- diction between members of congress and members of as- sembly, always remembering that our strength and happiness are continental, not provincial.:}: The bodies chosen conform- ably to said charter shall be the legislators and governors of this continent.* We have every opportunity and every en- com^agement to form the noblest, purest constitution on the face of the earth." | The continental convention which was to frame the constitution for the union was to represent both the colonies and the people of each colony ; its members were to be chosen, two by congress from the delegation of each colony, two by the legislature of each colony out of its own body, and five directly by the people.''' Great Britain offered its transatlantic dominions no unity but under a parliament in which they were not represented ; the people of thirteen colonies by special instructions to their delegates in congress, on the fourth of July 1776, declared themselves to be states, independent and united, and began the search for a fitting constitution. In their first formative effort they missed the plain road of Enghsh and American experience. They had rightly been jealous of extending the supremacy of England, because it was a government outside of themselves; they now applied that jealousy to one another, forgetting that the general power * Common Sense : original edition of 8 January 1776, p. 51. f Ibid., 55. X Ibid., 56. » Ibid., 56. I Appendix, annexed to second edition of Common Sense, 14 February IIIQ. ^ Common Sense, original edition, 65. 1776-1780. EARLY MOVEMENTS TOWARD UNION. H would be in their own hands. Joseph Hawley of Massachu- setts had, in ]S"ovember 1775, advised annual parliaments of two houses ; the committee for framing the confederation, misled partly by the rooted distrust for which the motive had ceased, and partly by erudition which studied Hellenic councils and leagues as well as later confederacies, took for its pattern the constitution of the United Provinces, with one house and no central power of final decision. These evils were nearly fatal to the United Provinces themselves, although every one of them could be reached by a messenger within a day's journey ; and he^e was a continent of states which could not be consulted without the loss of many months, and would ever tend to an- archy from the want of agreement in their sej)arate delibera- tions^ Hopeless of a good result from the deliberations of con- gress on a confederation, Edward .Hutledge, in August 1778, in a letter to Pobert R. Livingston, avowed his readiness to " propose that the states should appoint a special congress, to be composed of new members, for this purpose." * The necessities of the war called into being, north of the Potomac, successive conventions of a cluster of states. In Au- gust 1780, a convention of the ISTew England states at Boston declared for a more solid and permanent union with one su- preme head, and " a congress competent for the government of all those common and national affairs which do not nor can come within the jurisdiction of the particular states." At the same time it issued an invitation for a convention of the ISTew England states, New York, and " others that shall think proper to join them," f to meet at Hartford. The legislature of l^ew York approved the measure. J " Our embarrassments in the prosecution of the war," such was the message of Governor George Clinton on the fourth of September, at the opening of the session, " are chiefly to be attributed to a defect of power in those who ought to exercise a supreme jurisdiction ; for, while congress only recommends and the different states deliberate upon the propriety of the * Rutledge to Livingston, August 1776. MS. f Hough's Convention of New England States at Boston, 50, 52. X Duane to Washington, 19 September 1780. Letters to Washington, iii., 92. 12 THE CONFEDERATION. b. i. ; oh. i. recommendation, we cannot expect a union of force or coun- cil." The senate answered in the words of PhiUp Schuyler : " We perceive the defects of the present system, and the ne- cessity of a supreme and coercive power in the government of these states ; and are persuaded that, unless congress are au- thorized to direct uncontrollably the operations of w^ar and enabled to enforce a compliance with their requisitions, the common force can never be properly united." * Meantime Alexander Hamilton in swiftness of thought outran all that was possible. Early in September, in a private letter to James Duane, then a member of congress, he took up the proposal, which, nearly five years before, Thomas Paine had made known, and advised that a convention of all the states should meet on the first of the following November, with full authority to conclude finally and set in motion a " vigorous " general confederation.f His ardor would have surprised the people into greater happiness without giving them an opportunity to view and reject his project.:}: Before the end of the year the author of " Common Sense " himself, publishing in Philadelphia a tract asserting the right of the United States to the vacant western territory, closed his argument for the " Public Good " with these words : " I take the opportunity of renewing a hint which I formerly threw out in the pamphlet ' Common Sense,' and which the several states will, sooner or later, see the convenience, if not the ne- cessity, of adopting; which is, that of electing a continental convention, for the purpose of forming a continental constitu- tion, defining and describing the powers of congress. To have them marked out legally will give additional energy to the whole, and a new confidence to the several parts." * " Call a convention of the states, and establish a congress upon a constitutional footing," wrote Greene, after taking command of the southern army, to a member of congress. 1 On the eleventh of November able representatives fron^ * Hough's Convention, 63-65. f Hamilton to Duane, 3 September 1*780. Hamilton, i., 157. I Compare McHenry to Hamilton. Hamilton, i., 411. * Thomas Paine's Public Good. Original edition, 38. I Johnson's Life of Greene, ii., 446. 1780-1781. EARLY MOVEMENTS TOWARD UNION". 13 eacli of the four 'New England states and JSTew York — John T. Gilman of New Hampshire, Thomas Gushing, Azor Orne, and George Partridge of Massachusetts, William Bradford of Khode Island, Eliphalet Dyer and William Williams of Con- necticut, John Sloss Hobart and Egbert Benson of New York — assembled at Hartford.* ^ The lead in the convention was taken by the delegates from New York, Hobart, a judge of its supreme court, and Benson, its attorney-general. f At their instance it was proposed, as a foundation for a safe system of finance, to provide by taxes or duties a certain and inalien- able revenue, to discharge the interest on any funded part of the public debt, and on future loans. As it had proved im- possible to get at the valuation of lands, congress should be empowered to aj)portion taxes on the states according to their number of inhabitants, black as well as white. They then prepared a circular letter to all the states, in which they said : " Our embarrassments arise from a defect in the present gov- ernment of the United States. All government supposes the power of coercion ; this power, however, never did exist in the general government of the continent, or has never been exer- cised. Under these circumstances, the resources and force of the country can never be properly united and drawn forth. The states individually considered, while they endeavor to retain too much of their independence, may finally lose the whole. By the expulsion of the enemy we may be emanci- pated from the tyranny of Great Britain ; we shall, however, be without a solid hope of peace and freedom unless we are properly cemented among ourselves." The proceedings of this convention were sent to every state in the union, to Washington, and to congress. J They were read in congress on the tweKth of December 1780 ; and were * The narac3 of all the delegates are given in Papers of the Old Congress, xxxiii., 391, MS. f That New York took the lead appears from comparison of the message of Clinton in September and the circular letter of the convention ; and from the public tribute of Hamilton to the New York delegates in the presence of Hobart. Hamilton, ii., 360. X Papers of the Old Congress, xxxiii., 391, containing copies of the credentials of the commissioners, the resolutions of the convention, and its letters to the several states, to congress, and to Washington. MS. 14 THE CONFEDERATION. b. i. ; on. i. referred to a committee of five, on which were John Wither- spoon and James Madison,* the master and his pupil. In the same days Pennsylvania instructed its delegates in congress that imposts on trade were absolutely necessary ; and, in order to prevent any state from taking advantage of a neighbor, congress should recommend to the several states in union a system of imposts.f Before the end of 1Y80 the legislative council and general assembly of JSTew Jersey, while they in- sisted " that the rights of every state in the union should be strictly maintained," declared that " congress represent the federal republic." J Thus early was that name applied to the United States. Both branches of the legislature of J^ew York, which at that time was " as well disposed a state as any in the union," * approved the proceedings of the convention as pro- moting the interest of the continent. | With the year 1781, when the ministry of Great Britain believed themselves in possession of the three southernmost states and were cheering Cornwallis to complete his glory by the conquest of Virginia ; when congress was confessedly with- out the means to recover the city of New York ; when a large contingent from France was at Newport, serious efforts for the creation of a federal republic began, and never ceased until it was established. The people of New York, from motives of the highest patriotism, had already ceded its claims to west- em lands. The territory north-west of the Ohio, which Yir- ginia had conquered, was on the second of January ^ surren- dered to the United States of America. For this renunciation one state and one state only had made delay. On the twenty- ninth, congress received the news so long anxiously waited for, that Maryland by a resolution of both branches of her legis- lature had acceded to the confederation, seven members only in the house voting in the negative. Duane, who had been taught by "Washington that " greater powers to congress were indispensably necessary to the well-being and good government * Endorsement by Charles Thomson, secretary of congress. MS. f Journals o' Assembly, 564. X Representation and Remonstrance, printed in Mulford's New Jersey, 469 470. # Washington to Jefferson, 1 August 1786. Sparks, ix., 186. I Journals of Assembly, 91, 93. ^ Journal of Virginia House of Delegates, 79. 1781. EARLY MOVEMENTS TOWARD UNION". 15 of public affairs," "^ instantly addressed him : " Let ns devote this day to joy and congratulation, since by the accomplishment of our federal union we are become a nation. In a political view it is of more real importance than a victory over all our enemies. "We shall not fail of taking advantage of the favor- able temper of the states and recommending for ratification such additional articles as will give vigor and authority to gov- ernment." f The enthusiasm of the moment could not hide the truth, that without amendments the new system would struggle vainly for life. Washington answered : "Our affairs will not put on a different aspect unless congress is vested with, or will assume, greater powers than they exert at present." :j: To John Sullivan of New Hampshire, another member of congress, "Washington wrote : " I never expect to see a happy termination of the war, nor great national concerns well con- ducted in peace, till there is something more than a recom- mendatory power in congress. The last words, therefore, of my letter and the first wish of my heart concur in favor of it."# The legislature of Maryland swiftly transformed its resolu- tion into an act. The delegates having full authority, in the presence of congress, on the first day of March, subscribed the articles of confederation, and its complete, formal, and final ratification by all the United States was announced to the pub- lic ; to the executives of the several states ; to the American ministers in Europe, and through them to the courts at which they resided; to the minister plenipotentiary of France in America 4 to the commander-in-chief, and through him to the army. II Clinton communicated " the important event" to the legislature of New York, adding : " This great national com- pact establishes our union." "^ But the completion of the con- federation was the instant revelation of its insufficiency, and the summons to the people of America to form a better con- stitution. * Washington to James Duane, 26 December 17S0. MS. f Jivmes Duane to Washington, 29 January 1781. X Washington to Duane, 19 February 1781. * Washington to Sullivan, 4 February 1781. Sparks, vii., 402. I Journals of Congress, iii., 681, 682, 591. ^ Journal of New York Assembly, for 19 March 1781. 16 THE CONFEDERATION. b. i. ; oh. i. "Washington rejoiced that Virginia had relinquished her claim to the land south of the great lakes and north-west of the Ohio, which, he said, " for fertility of soil, pleasantness of climate, and other natural advantages, is equal to any known tract of country of the same extent in the universe." * He was pleased that Maryland had acceded to the confederation ; but he saw no ground to rest satisfied. On taking command of the army in Massachusetts in 1775, he at once discriminated between the proper functions of indi- vidual colonies and " tliat power and weight which ought of right to belong only to the whole ; " f and he applied to Eich- ard Henry Lee, then in congress, for aid in establishing the distinction. In the following years he steadily counselled the formation of one continental army. As a faithful laborer in the cause, as a man injuring his private estate without the smallest personal advantage, as one who wished the prosperity of America most devoutly, he in the last days of 1778 had pleaded with the statesmen of Yirginia for that which to him was more than life. He called on Benjamin Harrison, then speaker of the house of delegates, on Mason, AYy the, Jefferson, Nicholas, Pendleton, and J^elson, "not to be satisfied with places in their own state while the common interests of Ameri- ca were mouldering and sinking into irretrievable ruin, but to attend to the momentous concerns of an empire." :j: " Till the great national interest is fixed upon a solid basis," so he wrote, in March 1779, to George Mason, "I lament the fatal policy of the states of employing their ablest men at home. How useless to put in fine order the smallest parts of a clock unless the great spring which is to set the wliole in motion is well attended to ! Let this voice call forth you, Jefferson, and others to save their country." * But now, with deeper emo- tion, he turns to his OAvn state as he had done in the gloomy winter of 1778. He has no consolation but in the hope of a good federal government. His growing desire has the charac- ter of the forces of nature, which from the opening year in- crease in power till the earth is renewed. * Wasliington to Sullivan, 4 February 1781. Sparks, vii,, 400. f "Washington to Richard H. Lee, 29 August lYYS. Sparks, iii,, 68, 69. X Sparks, vl, 150. * See above, v., 298, 319. 1781. EARLY MOVEMENTS TOWARD UjSTION. I7 A constant, close observer of wliat Vv^as done bj Yirginia, lie beld in mind that on the twenty-fourth day of December 1Y79, on occasion of some unwise proceedings of congress, she had resolved " that the legislature of this commonwealth are greatly alarmed at the assumption of power lately exercised by congress. While the right of recommending measures to each state by congress is admitted, we contend for that of judging of their utility and expediency, and of course either to approve or reject. Making any state answerable for not agreeing to any of its recommendations would establish a dangerous prece- dent against the authority of the legislature and the sovereignty of the separate states." * This interposition of the Yirginia legislature so haunted "Washington's mind that he felt himself more particularly im- pelled to address with freedom men of whose abilities and judg- ments he wished to avail himself. He thoroughly understood the obstinacy and strength of opinion which he must encounter and overcome. His native state, reaching to the Mississippi and dividing the South from the T^orth, held, from its geographical place, its numbers, and the influence of its statesmen, a power of obstructing union such as belonged to no other state. Pie must persuade it to renounce some share of its individual sov- ereignty and forego " the liberty to reject or alter any act of congress which in a full representation of states has been sol- emnly_debatgd-aad,. decided on," f or there is no hope of con- solidating the union. His position was one of extreme deli- cacy ; for he was at the head of the army which could alone be employed to enforce the requisitions of congress. He there- fore selected, as the Virginians to whom he could safely ad- dress himseK, the three great civilians whom that common- wealth had appointed to codify its laws and adapt them to the new state of society consequent on independence, Jefferson, its governor, Pendleton, the president of its court of appeals, and Wythe, its spotless chancellor. J * Journal of House of Delegates of Virginia, for 24 December I'ZVO, 103. f Washington to James Duane, 26 December I'TSO. I Washington to Jefferson, Pendleton, and Wythe, Madison Papers, 83, Gil- pin's edition. The date of the letter is not given. It was written soon after the accession of Maryland to the confederation ; probably in February, before the mid- dle of the month, which was the time fixed for his departure from New Windsor VOL. VI. — 2 18 THE CONFEDERATIOK b. i. ; ch. i. " The alliance of tlie states," he said, " is now complete. If the powers granted to the respective body of the states are inadequate, the defects should be considered and remedied. Danger may spring from delay ; good will result from a timely application of a remedy. The present temper of the states is friendly to the establishment of a lasting union ; the moment should be improved ; if suffered to pass away it may never return, and, after gloriously and successfully contending against the usurpations of Britain, we may fall a prey to our own fol- lies and disputes." He argued for the power of compelling the states to comply with the requisitions for men and money agreeably to their respective quotas ; adding : \' It wotrld give me concern should it be thought of me that I am desirous of enlarging the powers of congress unnecessarily ; I declare to God, my only aim is the general good." And he promised to make his views known to others besides the three. His stepson, John Parke Custis, who was just entering into public life, he thus instructed : " The fear of giving sufficient powers to congress is futile. Under its present constitution, each assembly will be annihilated, and we must once more return to the government of Great Britain, and be made to kiss the rod preparing for our correction. A nominal head, which at present is but another name for congress, will no longer do. That honorable body, after hearing the interests and views of the several states fairly discussed and explained by their respective representatives, ];nust dictate, and not merely recommend." * To another Yirginian, Joseph Jones of King George coun- ty, whom he regarded with sincere affection and perfect trust, he wrote : " Without a controlling j)ower in congress it will be impossible to carry on the war ; and we shall speedily be for Newport. The dates of the letters of 1781, informing him of the accession of Maryland, were, from Duanc, 29 January, MS. ; from Sullivan, 29 January, MS. ; fi-om Matthews, 30 January. Letters to Washington, iii., 218. Washington's answer to Sullivan is 4 February, Sparks, vii., 402 ; to Matthews, 14 February. " The confederation being now closed will, I trust, enable congress to speak de- cisively in their requisitions," etc. :MS. On the evening of the fourteenth, Wash- ington was preparing to leave for Newport ; an unexpected letter from Rocham- beau detained him in camp till the second of March. Sparks, vii., 446, note. * Washington to John Parke Custis, 28 February IVSl. Sparks, vii., 440-444. 1781. EARLY MOVEMENTS TOWARD UNION. 19 thirteen distinct states, each pursuing its local interests, till they are annihilated in a general crash. The fable of the bunch of sticks may well be applied to us." '^' In a like strain he addressed other trusty correspondents and friends, f His v/ants as commander-in-chief did not confine his attention to the progress of the war ; he aimed at nothing less than an en- during government for all times of war and peace. As soon as the new form of union was proclaimed, congress saw its want of real authority, and sought a way to remedy the defect. A report by Madison, from a committee, J was com- pleted on the twelfth and read in congress on the sixteenth of March ; and this was its reasoning : " The articles of confeder- ation, which declare that every state shall abide by the deter- minations of congress, imply a general power vested in con- gress to enforce them and carry them into effect. The United States in congress assembled, being desirous as far as possible to cement and invigorate the federal union, recommend to the legislature of every state to give authority to employ the force of the United States as well by sea as by land to compel the states to fulfil their federal engagements." * Madison enclosed to Jefferson a copy of his report, and, on account of the delicacy and importance of the subject, ex- pressed a wish for his judgment on it before it should undergo the final decision of congress. No direct reply from him is preserved, || but Joseph Jones, who, after a visit to Richmond, * Washington to Joseph Jones, 24 March 1781. MS. f Compare his letters to R, R. Livingston of New York, 31 January 1781 — Sparks, vii., 891 ; to John Sullivan of New Hampshire, 4 February 1781 — Sparks vii., 401, 402; to John Matthews of South Caroh'na, 14 February 1781, MS.; to James Duane of New York, 19 February 1781, MS. ; to Philip Schuyler of New York, 20 February 1781, MS. ; to John Parke Custis of Virginia, 28 February 1781 — Sparks, vii,, 442; to William Gordon, in Massachusetts, 9 March 1781 — Sparks, vii , 448 ; to Joseph Jones of King George, Virginia, 24 March 1781, MS. ; to John Armstrong of Pennsylvania, 26 March 1781 — Sparks, vii., 403. :}: Reports of committees on increasing the powers of congress, p. 19. MS. * Madison Papers, Gilpin's edition, 88-90. Reports of committees, 20, 22. MS. Madison was a member of the committee to which were referred the papers from the Hartford convention of November 1780. That committee, on the six- teenth of February 1781, made a report, which was referred back to it. Whether Madison's report of the twelfth of March proceeded from that committee, the im- perfect record does not show. I! None of the letters of Jefferson to Madison of this year have been preserved. 20 THE CONFEDERATION. b. i. ; en. i. was again in Philadelpliia about the middle of May, gave to Madison a copy of the letter of Washington to Jefferson and his two associates.* There were no chances that the proposal of Madison would be approved by any one state, yet on the second of May it was referred to a grand committee ; that is, to a committee of one from each state.f On the eighteenth the Chevalier de la Luzerne, then the French minister in America, sent this dispatch to Yergennes : " There is a feeling to reform the constitution of congress ; but the articles of con- federation, defective as they are, cost a year and a half of labor and of debates ; a change will not encounter less diflSculty, and it appears to me there is more room for desire than for hope." j;. Even while he was writing, the movement for reform re- ceived a new impulse. In a pamphlet dated the twenty-fourth, and dedicated to the congress of the United States of America and to the assembly of the state of Pennsylvania, William Barton * insisted that congress should " not be left with the mere shadow of sovereign authority, without the right of exacting obedience to their ordinances, and destitute of the means of executing their resolves." To remedy this evil he did not look to congress itself, but " indicated the necessity of their calling a continental convention, for the express purpose of ascertaining, defining, enlarging, and limiting the duties and powers of their constitution." I This is the third time that the suggestion of a general constituent convention was brought before the country by the press of Philadelphia. * Madison Papers, Gilpin's edition, 81. f Reports of committees on increasing the powers of congress, 22. MS. X Luzerne to Vergennes, 18 May 1Y81, MS. * Not by Pelatiab Webster, as stated by Madison. Madison Papers, Gilpin's edition, 706; Elliot's stereotyped reprint, 117. First: at a later period, Webster collected his pamphlets in a volume, and this one is not among them ; a dis- claimer which, under the circumstances, is conclusive. The style of this pamphlet of 1781 is totally unlike the style of Pelatiah Webster. Through my friend F. D. Stone of Philadelphia I have seen the bill for printing the pamphlet ; it was made out against William Barton and paid by him. Further : Barton from time to time wrote pamphlets, of which, on a careful comparison, the style, language, and forms of expression are found to correspond to this pamphlet published in 1781. Without doubt it was written by William Barton. I Observations on the Nature and Use of Paper Credit, etc., Philadelphia, 1781, 37. The preface of the pamphlet is dated 24 May 1781. 1781. EAKLY MOVEMENTS TOWARD UNION. 21 The grand committee of thirteen delayed their report till the twentieth of July, and then only expressed a wish to give congress power in time of war to lay an embargo at least for sixty days, and to appoint receivers of the money of the United States as soon as collected by state officers. By their advice the business was then referred to a committee of three.* Day seemed to break when, on the twentieth of July, Ed- mund Eandolph, who had just brought from Yirginia the news of its disposition to strengthen the general government, OHver Ellsworth of Connecticut, and James M. Yarnum of Rhode Island, three of the ablest lawyers in their states, were selected to "prepare an exposition of the confederation, to devise a plan for its complete execution, and to present sup- plemental articles." f In support of the proceedings of congress, Hamilton, during July and August, published a series of papers which he called " The Continentalist." " There is hardly a man," said he, "who will not acknowledge the confederation unequal to a vigorous prosecution of the war, or to the preservation of the union in peace. The federal government, too weak at first, will continually grow weaker.":]: "Already some of the states have evaded or refused the demands of congress ; the currency is depreciated ; public credit is at the lowest ebb ; our army deficient in numbers and unprovided with everything ; the enemy making an alarming progress in the southern states ; Cornwallis still formidable to Yirginia. As in explanation of our embarrassments nothing can be alleged to the disaffection of the people, we must have recourse to impolicy and misman- agement in their rulers. We ought, therefore, not only to strain every nerve to render the present campaign as decisive as possible, but we ought, without delay, to enlarge the powers of congress. Every plan of which this is not the foundation will be illusory. The separate exertions of the states will never sufiice. I^othing but a well-proportioned exertion of the resources for the whole, under the direction of a common * Report of the grand committee. MS. f Report of the committee of three. X Continentalist, Reprinted in J. C. Hamilton's edition of the Federalist, cxl., cxli., cxlv., cxlvi., cxivii., cxlviii. 22 THE CONFEDERATION. b. i. ; ch. i. council with power sufficient to give efficacy to their resolu- tions, can preserve us from being a conquered people now, or can make us a happy one hereafter." The committee of three, Randolph, Ellsworth, and Yar- nuni, made their report on the twenty-second of August. They declined to prepare an exposition of the confederation, because such a comment would be voluminous if co-extensive with the subject ; and, in the enumeration of powers, omissions would become an argument against their existence. With pro- fessional exactness they explained in twenty-one cases the " manner " in which " the confederation required execution." As to dehnquent states, they advised, " That — as America be- came a confederate republic to crush the present and future foes of her independence ; as of this republic a general coun- cil is a necessary organ ; and as, without the extension of its power, war may receive a fatal inclination and peace be ex- posed to daily convulsions — it be resolved to recommend to the several states to authorize the United States in congress assembled to lay embargoes and prescribe rules for impressing property in time of war ; to appoint collectors of taxes re- quired by congress ; to admit new states with the consent of any dismembered state ; to establish a consular system without reference to the states individually ; to distrain the property of a state delinquent in its assigned proportion of men and money ; and to vary the rules of suffrage in congress so as to decide the most important questions by the agreement of two thirds of the United States." * It was further proposed to make a representation to the several states of the necessity for these supplemental powers, and of pursuing in their development one uniform plan. At the time when this report was made the country was rousing its energies for a final campaign. New England with its militia assisted to man the lines near l!^ew York ; the com- mander-in-chief with his army had gone to meet Comwallis in Yirginia ; and Greene was recovering the three southernmost states. Few persons in that moment of suspense cared to read the political essays of Hamilton, and he hastened to take part in the war under the command of Lafayette. The hurry of * Reports on increasing the powers of congress. 1781. EARLY MOVEMENTS TOWARD UNION. 23 crowded hours left no opportunity for deliberation on tlie re- form of tlie constitution. Moreover, the committee of three, while they recognised the duty of obedience on the part of the states to -the requisitions of congress, knew no way to force men into the ranks of the army, or distrain the property of a state. There could be no coercion ; for every state was a de- linquent. Had it been otherwise, the coercion of a state by force of arms is civil war, and, from the weakness of the con- federacy and the strength of organization of each separate state, the attempt at coercion would have been disunion. Yet it was necessary for the public mind to pass through this process of reasoning. The conviction that the confederacy could propose no remedy for its weakness but the impractica- ble one of the coercion of sovereign states compelled the search for a really efficient and more humane form of government. Meantime the report of Randolph, Ellsworth, and Yarnum, which was the result of the deliberations of nearly eight months, fell to the ground. We shall not have to wait long for a word from Washington ; and, when he next speaks, he will propose " a new constitution." 24: THE CONFEDERATION. B.i.;oH.n. CHAPTER II. THE STEUGGLE FOR EEYENUE. 1781-1782. Schuyler had been led hy his own experience to perceive the necessity for the states to surrender some part of their sovereignty, and " adopt another system of government." On the twenty-first of January 1781 he moved in the senate of 'New York to request the eastern states to join in an early convention, which should form a perpetual league of incorpo- ration, subservient, however, to the common interest of all the states; invite others to accede to it; erect Vermont into a state ; devise a fund for the redemption of the common debts ; substitute a permanent and uniform system for temporary expedients ; and invest the confederacy with powers of coer- cion.* " We stand ready on our part to confer adequate powers on congress," was the message of both houses to that body in a letter of the fifth of February, written in the name of the state by their joint committee, on which were Schuyler and Benson, f "Washington had been taught by his earliest observation as general, and had often declared the indispensable necessity of more responsibility and permanency in the executive bodies. J The convention at Boston of August 1780 had recommended * Schuyler to Washington, 21 January 1Y81. Letters to Washington, iii., 213. f Letter from the state of New York to congress, 5 February 1781. Papers of Old Congress, Ixvii., 344. MS. A copy of the letter was sent to Washington by Clinton, 14 February 1781. Letters to Washington, xlvi., 172. MS. J Washington to Duane, 26 December 1780. 1781. THE STRUGGLE FOK REVENUE. 25 " a permanent system for the several departments." * Hamil- ton " was among the first who were convinced that their ad- ministration by single men was essential to the proper manage- ment of affairs." f On the tenth of January 1Y81, congress initiated a reform by establishing a department of foreign affairs ;:[ but more than eight months elapsed before it was filled by Kobert K. Livingston. There was the most pressing need of a minister of war. After tedious rivalries and delays, Benjamin Lincoln was elected ; but he did not enter upon the office till near the end of JSTovember, when the attempt of Great Britain to sub- jugate America had ceased. For the treasury, John Sulhvan suggested to Washington the name of Hamilton. * How far Hamilton had made a study of finance, "Washington did not know; but he said: " Few of his age have a more general knowledge, and no one is more firmly engaged in the cause, or exceeds him in probity and sterling virtue." 1 In February the choice fell on Eobert Morris, and unanimously, except that Massachusetts abstained from the ballot, ^ Samuel Adams preferring the old system of committees.^ While Morris delayed his acceptance, Hamilton, who had been the first to present his name for the place, opened a cor- respondence with him. " A national debt," he wrote, " if it is not excessive, will be a national blessing, a powerful cement of union, a necessity for keeping up taxation, and a spur to in- dustry." J He recommended a national bank, with a capital of ten or fifteen millions of dollars, to be paid two sixths in specie, one sixth in bills or securities on good European funds, and three sixths in good landed security. It was to be erected into a legal corporation for thirty years, during which no * Hough's edition of Convention at Boston, 3-9 August 1780, 51. f Hamilton to Robert Morris, SO April 1781 ; Hamilton, i., 223 ; to Duane, 3 September 1780. Ibid., i., 154. :j: Journals of Congress, iii., 564. * Sullivan to Washington, 29 January 1781. MS. II Washington to Sullivan, 4 February 1781. Sparks, vii., 399. ^ Journals of Congress, iii., 580. ^ Luzerne to Vergennes, 25 March 1731. Partly printed in Sparks, vii., 400. ^ Hamilton, i., 257. 26 THE CONFEDERATIOIN'. b. i. ; en. ii. otlier bank, public or private, was to be permitted. Its capi- tal and deposits were to be exempt from taxation, and the United States, collectively and particularly, and conjointly with the private proprietors, were to become responsible for all its transactions. Its som-ces of profit were to be the sole right of issuing a currency for the United States equal in amount to the whole capital of the bank ; loans at a rate not exceeding eight per cent ; discount of bills of exchange ; contracts with the French government for the supply of its fleets and armies in America, with the United States for the supply of their army ; dealings in real estates, especially, with its large capital, buying at favorable opportunities the real estates of men w^ho, having rendered themselves odious, w^ould be obliged to leave the country. Another source of immense gain, contingently even of one hundred per cent, was to be a contract with the United States for taking up all their paper emissions. Incidentally, Hamilton expressed his " wish to see a convention of all the states, with full power to alter and amend, finally and irrevocably, the present futile and senseless confederation." * This communication led to the closest relations between Hamilton and Robert Morris ; but, vehement as was the char- acter of the older man, his schemes fell far short of the daring suggestions of his young counsellor. On the fourteenth of May, Morris was installed as the superintendent of finance, and three days later he laid before congress his plan for a national bank, f Its capital was to be four hundred thousand doUars in gold and silver, with power of increase at discretion ; its notes were to form the currency of the country, and be re- ceivable as specie for duties and taxes by every state and by the United States. Authority to constitute the company a legal body not being granted by the articles of confederation, Morris submitted that congress should apply to the states for the power of incorporating a bank and prohibiting all other banks. J On the twenty-sixth, congress, without waiting to hear the * Hamilton, i., 223-257. f Journals of Congress, iii., 624 ; Diplomatic Correspondence, vii., 444-449. X E. Morris to congress, 17 May 1781. Diplomatic Correspondence, xi., S64. 1781. THE STRUGGLE FOR REVENUE. 27 voices of the states, resolved that the bank should be incorpo- rated so soon as the subscription should be filled and officers chosen. This vote was carried by I^ew Hampshire, New Jer- sey, and the five southernmost states, Massachusetts being in the negative, Pennsylvania divided, and Madison alone of the four members from Virginia opposing it as not within the powers of the confederation. From the want of a valuation of private lands and build- ings, congress had not even the right to apportion requisitions. The five states which met at Hartford had suggested for the United States an impost as a source of revenue. New Jersey and North Carolina sufiered from the legislation of the neigh- boring states, which were the natural channels of a part of their foreign trade : on the third of February 1Y81, Wither- spoon and Burke, their representatives in congress, reviving an amendment to the articles of confederation proposed by New Jersey in 1Y78,'^ moved to vest in the United States the power of regulating commerce according to " the common interest," and, under restrictions calculated to soothe state jealousies, the exclusive right of laying duties upon imported articles. This motion, which v/as a memorable step toward union, failed of success ; f and on the same day congress contented itself with asking of the states, as an " indispensable necessity," the power to levy a duty of five per cent ad valorem on all im- ports, with no permanent exemptions except of wool cards and cotton cards, and wire for making them. This first scheme of duties on foreign commerce sought to foster American in- dustry by the free admission of materials necessary to the manufacturer. The letter of the fifth of February from the state of New York was met on its way by the vote of congress of the third. In March, New York granted the duties, to "be collected in such manner and by such ofiicers as congress should direct." ^ Connecticut had acted a month earlier at a special session called by Governor Trumbull, but had limited its grant to the end of the third year after the war.* New Hampshire fol- * Journals of Congress, ii., 604. f Ibid., iii., 573. X Papers of Old Congress, Ixxv. * Journals of Congress, iii., 594, 600. Papers of Old Congress, Ixxv. MS. 28 THE OON'FEDERATIO:Nr. b. i. ; oh. il lowed in tlie first week of April.* Massachusetts delayed its consent till tlie next year, and then reserved to itself the ap- pointment of the collectors. Outside of the ^ve states which met at Hartford, the first to agree to the new demand were Pennsylvania and !New Jer- sey, f The general assembly of Virginia, which was to have met in Eichmond on the seventh of May, was chased by the enemy to Charlottesville, where it elected Benjamin Harrison its speaker, and where John Taylor of Caroline,J according to order, presented a bill to enable the United States to levy the needed duty. Fleeing beyond the mountains, they completed the act at Staunton. The grant, of which Harrison had been the great promoter,* was restricted neither as to time nor aa to form. II Early in September, North Carolina adopted the measure;^ Delaware in ISTovember; South Carolina in Feb- ruary 1782 ; and Maryland in its following April session. The consent of Georgia was confidently expected. After the surrender of Cornwallis, the legislature of New York once more declared the readiness of their state to com- ply with any measures to render the union of the United States more intimate, and to contribute their proportion of well-estab- lished funds. ^ This alacrity Clinton, on the twenty-fourth of November, reported to congress as the highest " evidence of a sincere disposition in the state to promote the common inter- est."J Meantime the subscriptions to the bank languished, and Morris thought fit to apply to John Jay for money from the court of Madrid for its benefit, saying : " I am determined that the bank shall be well supported until it can support itself, and then it will support us.":^ But there was no ray of hope * Papers of Old Congress, Ixxiv., 9. MS. f Dallas's Laws of Pennsylvania, i., 890. The act was of 5 April 1781. Journals of Congress, iii., 632. The act of New Jersey was passed 2 June 1781. Wilson's Acts of New Jersey, 191. :j: Journal of House of Delegates, 30 May 1781. * Harrison to Washington 31 March 1783. II Papers of Old Congress, Ixxv., 359. Hening's Statutes at Large, x., 409. ^ Papers of Old Congress, Ixxvi., 91. Journals of Congress, iii., 674. ^ Papers of Old Congress, Ixvii., 438. MS. i Ibid., 443. ^ Morris to Jay, 13 July 1781. Dip. Cor., vii., 440. 1782. THE STRUGGLE FOK REVENUE. 29 from that quarter. Tbougli so late as October 1781 the sub- scription amounted to no more than seventy thousand dollars,* he was yet able to prevail with congress, on the thirty-first day of December, to incorporate the bank " forever " by the name of the Bank of E"orth America ; but it was not to exer- cise powers in any one of the United States repugnant to the laws or constitution of that state. f But for this restriction Madison would have seen in the ordinance " a precedent of usurpation." J The bank still wanted capital. During the autumn of 1781 a remittance in specie of nearly five hundred thousand dollars had been received from the king of France, and brought to Philadelphia. In January 1782, Morris, with no clear warrant, subscribed all of this sum that remained in the treasury, being about two hundred and fifty-four thousand dollars, to the stock of the bank,* which was thus nursed into life by the public moneys. In return, it did very little, and could do very little, for the United States. Its legal establishment was supported by a charter from the state of Massachusetts, in March 1782 ; by an act of recognition from Pennsylvania in March, and a charter on the first of April ; and ten days later by a charter from !N"ew York. The final proviso of the 'New York charter was, " that nothing in this act contained shall be construed to imply any right or power in the United States in congress assembled to create bodies politic, or grant letters of incorpo- ration in any case whatsoever."! The acts of Pennsylvania were repealed in 1785. Delaware gave a charter in 1786. The confederacy promised itself a solid foundation for a system of finance from a duty on imports. Through the press, Hamilton now pleads for vesting congress with full power of regulating trade ; and he contrasts the " prospect of a number of petty states, jarring, jealous, and perverse, fluctu- ating and unhappy at home, weak by their dissensions in the eyes of other nations," with the " noble and magnificent per- spective of a great federal republic." * Life of Morris, 8L f Ordinance to incorporate, etc. Journals of Congress, iii., 706, 101. X Gilpin, 105. * From the narrative of Robert Morris in Life of Morris, 90. fi Jones & Varick's edition of Laws of New York, 1789, 11, 30 THE CONFEDERATION". b. i. ; oh. ii. It is the glory of JSTew York that its legislature was the first to impart the sanction of a state to the great conception of a federal convention to frame a constitution for the United States. On the report of a committee of which Madison was the head, congress, in May 1782, took into consideration the desperate condition of the finances of the country, and divided between four of its members the office of explaining the com- mon danger to every state.* At the request of the delegation which repaired to the ]N"orth, Clinton convened an extra ses- sion of the senate and assembly of ]N'ew York at Poughkeepsie, where, in July, they received from the committee of congress a full communication f " on the necessity of providing for a vigorous prosecution of the war." The legislature had been in session for a week v/hen Ham- ilton, who for a few months filled the office of United States receiver of revenue for his state, repaired to Poughkeepsie " to second the views " of his superior. In obedience to in- structions, he strongly represented " the necessity of solid ar- rangements of finance ; " but lie went to the work " without very sanguine expectations," for he believed that, " whatever momentary eifort the legislature might make, very little would be done till the entire change of the present system ; " and, before this could be effected, " mountains of prejudice and par- ticular interest were to be levelled." J On the nineteenth, three days after his arrival, on the mo- tion of Schuyler, his father-in-law, who was ever constant in support of a national system, the senate resolved itself into " a committee of the whole on the state of the nation." From its deliberations on two successive days a series of resolutions proceeded, which, as all agree, Hamilton drafted, and which, after they had been considered by paragraphs, were unanimously adopted by the senate. The house concurred in them with- out amendment and with equal unanimity. These resolutions as they went forth from the legislature find in the public ex- perience " the strongest reason to apprehend from a continu- ance of the present constitution of the continental government a subversion of public credit," and a danger " to the safety and * Journals of Congress, 22 May and 15 and 18 July 1782. f Clinton's message of 11 July 1782. J Hamilton, i., 280, 288,. 1782. THE STRUGGLE FOR REVENUE. 31 independence of the states." They repeat the words of the Hartford convention and of Clinton, that the radical source of the public embarrassments had been the want of sufficient power in congress, particularly the power of providing for itself a revenue, which could not be obtained by partial delib- erations of the separate states. For these reasons the legis- lature of ]N"ew York invite congress for the common welfare " to recommend and each state to adopt the measure of as- sembling a general convention of the states specially authorized to revise and amend the confederation, reserving a right to the respective legislatures to ratify their determinations." * These resolutions the governor of New York was requested to trans- mit to congress and to the executive of every state. The legislature held a conference with Hamilton, as the receiver of revenue, but without permanent results ; and it in- cluded him " pretty unanimously " in its appointment of dele- gates to congress for the ensuing year. On the fourth of August the resolutions for a federal convention were commu- nicated by Clinton without a word of remark to the congress then in session. There, on the fifteenth, they were referred to a grand committee ; but there is no evidence that that con- gress proceeded to its election. In his distress for money, Morris solicited a new French loan of twenty millions of livres. The demand was excessive : the king, however, consented to a loan of six millions for the year 1783, of which Franklin immediately received one tenth part. " You will take care," so Yergennes wrote to Luzerne, *' not to leave them any hope that the king can make them further advances or guarantee for them new loans from others ; " and he complained that the United States did not give suffi- cient proofs of their readiness to create the means for meeting their debts.f On the twenty-fourth of December the French auxiliary forces in the United States, except one regiment which soon followed, embarked at Boston for the West Indies. The affec- tions, the gratitude, the sympathy, the hopes of America fol- lowed the French officers as they left her shores. What * ITS. copy of the Journals of the Senate and Assembly of New York for the cession of July 1782. f Vergennes to Luzerne, 21 December 1782. 32 THE CONFEDERATION". b. i. ; ch. ii. boundless services they liad rendered in tlie establisliment of her independence ! What creative ideas they were to carry home ! How did they in later wars defy death in all climes, from San Domingo to Moscow and to the Nile, always ready to bleed for their beautiful land, often yielding up their lives for liberty ! Rochambeau, who was received with special honor by Louis XYI., through a happy accident escaped the perils of the revolution, and lived to be more than fourscore years of age. Yiomenil, his second in command, was mortally wounded while defending his king in the palace of the Tuileries. De Grasse died before a new war broke out. For more than fifty years Lafayette — in the states general, in convention, in legis- lative assemblies, at the head of armies, in exile, in cruel and illegal imprisonment, in retirement, in his renewed public life, the emancipator of slaves, the apostle of free labor, the dearest guest of America — remained to his latest hour the true and the ever hopeful representative of loyalty to the cause of Hb- erty. The Yiscount de Noailles, who so gladly assisted to build in America the home of human freedom for comers from all nations, was destined to make the motion which in one night swept from his own country feudal privilege and per- sonal servitude. The young Count Henri de Saint-Simon, who during his four campaigns in America mused on the never- ending succession of sorrows for the many, devoted himself to the reform of society, government, and industry. Dumas sur- vived long enough to take part in the revolution of July 1830. Charles Lameth, in the states general and constituent assembly, proved one of the wisest and ablest of the popular party, truly loving liberty and hating all excesses in its name. Alexander Lameth, acting with the third estate in the states general, proposed the abolition of all privileges, the enfran- chisement of every slave, and freedom of the press ; he shared the captivity of Lafayette in Olmiitz, and to the end of his life was a defender of constitutional rights. Custine of Metz, whose brilliant services in the United States had won for him very high promotion, represented in the states general the no- bility of Lorraine, and insisted on a declaration of the rights of man. Of the Marquis de Chastellux Washington said: " JSTever have I parted with a man to whom my soul clave more 1782. THE STRUGGLE FOR REVENUE. 33 sincerely." * His pliilaiitliropic zeal for " tlie greatest good of the greatest number" was interrupted only by an early death. Let it not be forgotten that Secondat, a grandson of the great Montesquieu, obtained promotion for good service in America. ISTor may an Amercan fail to name the young Prince de Broglie, though he arrived too late to take part in any bat- tle. In the midday of life, just before he was wantonly sent to the guillotine, he said to his child, then nine years old, afterward the self-sacrificing minister, who kept faith with the United States at the cost of popularity and place : " My son, they may strive to draw you away from the side of liberty, by saying to you that it took the life of your father ; never be- lieve them, and remain true to its noble cause." At the time when the strength which came from the pres- ence of a wealthy and generous ally was departing, the ground was shaking beneath the feet of congress. Pennsylvania, the great central state, in two memorials offered to congress the dilemma, either to satisfy its creditors in that state, or to suffer them to be paid by the state itself out of its contributions to the general revenue. The first was impossible; the second would dissolve the union. Yet it was with extreme difficulty that Putledge, Madison, and Hamilton, a committee from con- gress, prevailed upon the assembly of Pennsylvania to desist for the time from appropriating funds raised for the confed- eration, f The system for revenue by duties on importations seemed now to await only the assent of Rhode Island. That common- wealth in 1781 gave a wavering answer ; and then instructed its delegates in congress to uphold state sovereignty and in- dependence. On the first of ITovember 1782 its assembly unanimously rejected the measure for three reasons : the im- post would bear hardest on the most commercial states, par- ticularly upon Ehode Island ; officers unknown to the constitu- tion would be introduced ; a revenue for the expenditure of which congress is not to be accountable to the states would * Sparks, viii., 367. f Gilpin, 199, 216, 224, 488 ; Journals of Congress, 4 December 1782 ; Min- utes of Assembly of Pennsylvania for 1782, pp. 663, 675, 733. VOL. VI. — 3 84 THE OONFEDERATIOX. b. i. ; ch. ii. render that body independent of its constituents, and would be repugnant to the liberty of the United States. * The necessity of the consent of every one of the thirteen states to any amendment of the confederacy gave to Rhode Island a control over the destinies of America. Against its obstinacy the confederation was helpless. The reply to its communication, drafted by Hamilton, declared, first : that the duty would prove a charge not on the importing state, but on the consumer; next, that no governm_ent can exist without a right of appointing officers for those purposes which proceed from and centre in itself, though the power may not be expressly known to the constitution; lastly, the impost is a measure of necessity, " and, if not within the letter, is within the spirit of the confederation." f The growing discontent of the army, the clamor of public creditors, the enormous deficit in the revenue, were invincible arguments for a plan which promised relief. Congress hav- ing no resource except persuasion, three of its members would have borne its letter to Rhode Island but for intelligence from Yirginia.J In the legislature of that state, Richard Henry Lee, wait- ing till the business of the session was nearly over and the house very thin, * proposed to the assembly to withdraw its assent to the federal impost ; and the repeal was carried in the house on the sixth, in the senate on the seventh of December, | without a negative. The reasons for the act, as recited in its preamble, were : " The permitting any power other than the general assembly of this commonwealth to levy duties or taxes upon the citizens of this state within the same is injurious to its sovereignty, may prove destructive of the rights and liberty of the people, and, so far as congress may exercise the same, is contravening the spirit of the confederation." ^ Far-sighted members of congress prognosticated the most pernicious effects on the character, interests, and duration of * Records of Rhode Island, ix., 487, 612, 682, 683, 684. f Journals of Congress, iv., 200. X Gilpin, 488, 238 ; Elliot, 17. * Governor B. Harrison to Washington, 31 March 17S3. I Papers of Old Congress, vol. Ixv. Journals of House of Delegates, 55-58. ^ Hening, xi., 171. 1782. THE STRUGGLE FOR REVENUE. 35 tlie confederacy. The broad line of party division was clearly dra^vn. The contest was between the existing league of states and a republic of united states ; between " state sovereignty " * and a "consolidated union ;"f between "state poUtics and continental politics ; " if between the fear of " the centripetal " and the fear of " the centrifugal force " in the system.* Yir- ginia made itself the battle-ground on which for the next six years the warring opinions were to meet. During all that time , Washington and Madison led the striving for a more perfect \ union ; Richard Henry Lee, at present sustained by the legis- lature of Yirginia, was the persistent champion of separatism and the sovereignty of each state. How beneiicent was the authority of the union appeared at this time from a shining example. To quell the wild strife which had grown out of the claim of Connecticut to lands within the charter boundary of Pennsylvania, five commission- ers appointed by congress opened their court at Trenton. " The case was well argued by learned counsel on both sides," and, after a session of more than six weeks, the court pronounced || their unanimous opinion, that the jurisdiction and pre-emp- tion of the lands in controversy did of right belong to the state of Pennsylvania. The judgment was approved by con- gress ; and the parties in the litigation gave the example of submission to this first settlement of a controversy between states by the decree of a court estabhshed by the United States. * William Gordon to A. Lee. Lee's Life of Arthur Lee, ii., 291. I Lafayette ia Diplomatic Correspondence, x., 41. X Hamilton, i., S56. * Speech of Wilson, 23 January 1783, in Gilpin, 290; Elliot, 34. The same figure was used by Hamilton to Washington, 24 March 1783. Hamilton, i., 348. II Journals of Congress, 30 December 1782. 36 THE CONFEDERATION. b. i. ; oh. hi. CHAPTER III. AMEEICA AND GEEAT BEITAIN. 1782-1783. The king of France heard from Yergennes, with surprise and resentment, that the American deputies had signed their treaty of peace ; * Marie Antoinette was conciliated by the assurance that " they had obtained for their constituents the most advantageous conditions." " The English buy the peace rather than make it," wrote Yergennes to his subaltern in Lon- don ; their " concessions as to boundaries, the fisheries, and the loyalists, exceed everything that I had thought possible." f " The treaty with America," answered Rayneval, " appears to me like a dream." :]: Kaunitz * and his emperor || mocked at its articles. King George of England was mastered by a consuming grief for the loss of America, and knew no ease of mind by day or by night. When, on the fifth of December, in his speech at the opening of parliament, he came to read that he had offered to declare the colonies of America free and inde- pendent states, his manner was constrained "'^ and his voice fell. To wound him least, Shelbume in the house of lords, confining himself to the language of the speech from the throne, * Count Mercy's report from Paris, 6 December 1Y82. MS. from Vienna archives. f Yergennes to Rayneval, 4 December 1782. MS. X Rayneval to Yergennes, 12 December 1782. MS. * Kaunitz's note of 22 December 1782, written on the emperor's copy of the speech of the king of England at the opening of parliament. MS. I Autograph memorandum of Joseph. MS. Joseph II. und Leopold von Toscana. Ihr Brief wechsel von 1781 bis 1790, i., 146. ^ Rayneval to Yergennes, 12 December 1782. MS. 1782-1783. AMERICA AND GREAT BRITAIN. 37 represented the offer of independence to America as contingent on peace with France. To a question from Fox on the follow- ing night in the other house, Pitt, with unfaltering courage, an- swered that the recognition was unqualified and irrevocable. During the Christmas holidays the negotiations for a gen- eral peace were pursued with equal diligence and moderation by Yergennes and Shelburne ; and France made sacrifices of its own to induce Spain to forego the recovery of Gibraltar and assent to terms which in all other respects were most gen- erous. The Netherlands, though their definitive peace was delayed, agreed in the suspension of arms. Franklin shrewdly and truly observed that it would be better for the nations then possessing the West India islands to let them govern them- selves as neutral powers, open to the commerce of all, the prof- its of the present monopoHes being by no means equivalent to the expense of maintaining them ; * but the old system was preserved. Conquests were restored, and England felt it to be no wound to her dignity to give back an unimportant island which she had wrested from the house of Bourbon in a for- mer war. The East Indian alUes of France, of whom the fore- most was Tippoo Saib, the son and successor of Hyder Ali, were invited to join in the peace. France recovered St. Pierre and Miquelon and her old share in the fisheries of Newfound- land ; Spain retained Minorca, and, what was of the greatest moment for the United States, both the Floridas, which she certainly would find a burden. Treaties of commerce between Great Britain and each of the two Bourbon kingdoms were to be made within two years. When, on the twentieth of January, these preliminaries were signed by the respective plenipotentiaries, John Adams and Benjamin Franklin, on the summons of Yergennes, were present, and in the name of the United States acceded to the declaration of the cessation of hostilities. The provisional treaty between Great Britain and the United States was held to take effect from that day. " At last," wrote Yergennes to Eayneval, as soon as the meeting was over, " we are about to breathe under the shadow of peace. Let us take care to make it a solid one ; may the * Diplomatic Correspondence, iv., 69. 38 THE CONFEDERATION". b.i.;oh. m. name of war be forgotten forever." ^'* In a letter to Shelburne on that same day he expressed the confident hope that all ancient distrust would be removed ; and Shelbnrne replied : " The liberal spirit and good faith which have governed our neo;otiations leave no room to fear for the future either di&- trust or jealousy." f King George dwelt with Eayneval on the cordial understanding which he desired to establish with Louis XYI. " I wish," said he, " never again to have a war with France ; we have had a first division of Poland ; there must not be a second." J So came the peace which recognised the right of a com- monwealth of Europeans outside of Europe, occupying a con- tinental territory within the temperate zone ; remote from foreign interference ; needing no standing armies ; with every augury of a rapid growth ; and sure of exercising the most quickening and widest influence on political ideas, ^' to assume an equal station among the powers of the earth." The restoration of intercourse with America pressed for instant consideration. Burke was of opinion that the naviga- tion act should be completely revised ; Shelburne and his col- leagues, aware that no paltry regulation would now succeed, were indefatigable in digesting a great and extensive system of trade, and sought, by the emancipation of commerce, to bring about with the Americans a family friendship more beneficial to England than their former dependence.* To promote this end, on the evening of the eleventh of February, William Pitt, with the permission of the king, repaired to Charles James Fox and invited him to join the ministry of Shelburne. The only good course for Fox was to take the hand which the young statesman offered; but he put aside the overture vdth coldness, if not with disdain, choosing a desperate alliance with those whose conduct he had pretended to detest, and whose principles it was in later years his redeem- ing glory to have opposed. * Vcrgennes to Rayneval, 20 January 1783. MS. f Vergennes to Shelburne, 20 January 1783 ; Shelburne to Yergcnnes, 24 January 1*783. Lansdowne House MSS. X Rayneval to Vergennes, 24 and 28 January 1*783. MS. * Price in Lee's Life of Arthur Lee, ii., 349. 1783. AMERICA AND GREAT BRITAIN". 39 Pending the negotiations with France and Spain, Fox and Lord North remained quiet, from the desire to throw the undivided responsibility for the peace on Lord Shelbume; but when on the seventeenth of February, in a house of four hundred and fifty members, the treaties with the United States and with both branches of the Bourbons were laid before par- liament, and an address of approval, promising a liberal revi- sion of commercial law, was moved, the long-pent-up passions raged without restraint. 'No sooner had William "Wilberforce, with grace and good feeling, seconded the motion and in the warmest language assured to the loyal refugees compensation for their losses, than Lord John Cavendish, the nearest friend of Fox, condemned the peace, though supporting its condi- tions. Lord North then pronounced against it a most elabo- rate, uncandid, and factious invective. He would have de- prived the United States of access to the upper lakes ; he would have retained for Canada the country north and north- west of the Ohio ; and, bad as is a possession which gives no advantage but powers of annoyance, he would have kept east Florida as well as the Bahamas, so as to compel the ships of America, in passing through the Florida channel, to run the gauntlet between British posts. lie would have had no peace without the reinstatement of the loyalists, nor without securing independence to the savage allies of Great Britain. He enu- merated one by one the posts in the West which by the treaty fell to America, dwelt on the cost of their construction and on their importance to the fur-trade, and foreshadowed the policy of delaying their surrender. He not only censured the grant to the Americans of a right to fish on the coast of Nova Scotia, but spoke as if they derived from Great Britain the right to fish on the banks in the sea which are the exclusive property of no one. At the side of Lord North stood Edmund Burke, with hotter zeal as a partisan, though with better inten- tions toward America. Pitt answered every objection to the treaty ; but, after a debate of twelve hours, the ministry on the division found themselves in a minority of sixteen. On the same evening, to a larger number of peers than had met in their house since the accession of George HI., Carlisle, the unsuccessful commissioner of 1778, KejDpel, the inglorious iO THE CONFEDERATION. b. i. ; oh. hi. admiral, and Stormont, the late headstrong ambassador at Paris, eager to become once more a secretary of state. Lord George Germain, now known as Lord Sackville, Wedderburn, now Lord Loughborough and coveting the office of lord chan- cellor, poured forth criminations of a treaty for which the necessity was due to their own incapacity. In perfect under- standing with Fox and Lord North, they complained that the ministers had given up the banks of the Ohio, " the paradise of America," had surrendered the fur-trade, had broken faith with the Indians, had been false to the loyalists. Thurlow ably defended every article of the treaty that had been im- peached, and then asked : " Is there any individual in this house who dares to avow that his wish is for war ? " The in- terest of the debate centred in Shelburne, and the house gave him the closest attention as he spoke : " Noble lords who made a lavish use of these Indians have taken great pains to show their immense value, but those who abhorred their violence will think the ministry have done wisely." Naming a British agent who had been detested for wanton cruelty, he continned : " The descendants of William Penn will manage them better than all the Stuarts, with aU the trumpery and jobs that we could contrive. "With regard to the loyalists, I have but one answer to give the house. It is the answer I gave my own bleeding heart. A part must be wounded that the whole empire may not perish. If better terms could have been had, think you, my lords, that I would not have embraced them ? If it had been possible to put aside the bitter cup which the adversi- ties of this country presented to me, you know I would have done it. " The fur-trade is not given up ; it is only divided, and divided for our benefit. Its best resources lie to the north- ward. Monopolies, some way or other, are ever justly pun- ished. They forbid rivalry, and rivalry is the very essence of the well-being of trade. This seems to be the era of protest- antism in trade. All Europe appears enlightened and eager to throw off the vile shackles of oppressive, ignorant, unmanly monopoly. It is always unwise ; but, if there is any nation under heaven who ought to be the first to reject monopoly, it 1783. AMERICA AND GREAT BRITAIN. 41 is the English. Situated as we are between the Old World and the 'New, and between southern and northern Europe, all that we onght to covet is equality and free-trade. With more in- dustry, with more enterprise, with more capital than any trading nation upon earth, it ought to be our constant cry, Let every market be open ; let us meet our rivals fairly and ask no more, telling the Americans that we desire to live with them in communion of benefits and in sincerity of friend- ship." ^ At near half-past four in the morning the majority of the lords for the ministry was only thirteen. On the twenty-first, resolutions censuring them were offered in the house of commons. In the former debate. Fox had excused the change in his relations to Lord North by the plea that his friendships were perpetual, his enmities placable ; keeping out of sight that political principles may not be sacri- ficed to personal reconciliations, he now proclaimed and justi- fied their coalition. "Their coalition," replied Pitt, "origi- nated rather in an inclination to force the earl of Shelbume from the treasury than in any real conviction that ministers deserve censure for the concessions they have made, f What- ever appears dishonorable or inadequate in the peace on your table is strictly chargeable to the noble lord in the blue rib- bon," Lord North, " whose profusion of the pubhc money, whose notorious temerity and obstinacy in prosecuting the war which originated in his pernicious and oppressive policy, and whose utter incapacity to fill the station he occupied, ren- dered peace of any description indispensable to the preserva- tion of the state. The triumph of party shall never induce me to call the abandonment of former princij^les a forgetting of ancient prejudices, or to pass an amnesty upon measures which have brought my country almost to the verge of ruin. I will never engage in political enmities without a public cause ; I will never forego such enmities without the public approba- tion. High situation and great infiuence I am solicitous to possess, whenever they can be acquired with dignity. I relin- quish them the moment any duty to my country, my character, or my friends, renders such a sacrifice indispensable. I look * Almon's Parliamentary Kegister, sxTiii., 67, 68. f Ibid., xxvi., 347. 42 THE CONTEDER ATIOIf. b. i. ; oh. iii. to the independent part of the house and to the public at large for that acquittal from blame to which mj innocence entitles me. Mj earliest impressions were in favor of the noblest and most disinterested modes of serving the public. These im- pressions I will cherish as a legacy infinitely more valuable than the greatest inheritance. You may take from me the privileges and emoluments of place, but you cannot, you shall not, take from me those habitual regards for the prosperity of Great Britain which constitute the honor, the happiness, the pride of my life. With this consolation, the loss of power and the loss of fortune, though I affect not to despise, I hope I shall soon be able to forget. I praise Fortune when con- stant ; if she stnkes her swift wing, I resign her gifts and seek upright, unportioned poverty." ^ The eloquence of Pitt, his wise conduct, and the purity of his morals, gained him the confidence to which Fox vainly aspired.f A majority of seventeen aj)pearing against Shelburne, he resigned on the twenty-fourth ; and by his advice the king on the same day offered to Pitt, though not yet twenty-four years old, the treasury, with power to form an administration and with every assurance of support. But the young statesman, obeying alike the dictates of prudence and the custom of the British constitution, would not accept office without a majority in the house of commons ; and on the twenty-seventh, finding that such a majority could not be obtained but by the aid, or at least the neatrality, of Lord I*Torth, he refused the splendid offer, unalterably firm alike against the entreaties and the re- proaches of the king. This moderation in a young man, pant- ing with ambition and conscious of his powers, added new I lustre to his fame. While the imperfect agreement between the members of the coalition delayed the formation of a ministry, on the third of March, Pitt, as chancellor of the exchequer, presented a bill framed after the liberal principles of Shelburne. J Its pream- ble, which rightly described the Americans as aliens, declared * Almon, xxvi., 341, 352 ; Life of Romilly, i., 205. f Moustier to Vcrgennes, 1 Marcli 1783. MS. :{: Fox in Moustier to Vergennes, 11 April 1783, MS. ; Price in Life of A. Lee, ii., 349. 1783. AMERICA AND GREAT BRITAIN 43 " it liiglilj expedient tliat tlie intercourse between Great Britain and tlie United States slionld be established on tlie most enlarged principles of reciprocal benefit ;" and, as a con- sequence, not only were the ports of Great Britain to be opened to them on the same terms as to other sovereign states, but, alone of the foreign world, their ships and vessels, laden with the produce or manufactures of their own country, might as of old enter all British ports in America, paying no other duties than those imposed on British vessels. On the seventh Eden objected, saying : " The bill will in- troduce a total revolution in our commercial system. Reci- 23rocity with the United States is nearly impracticable, from their provincial constitutions. The plan is utterly improper, for it completely repeals the navigation act. The American states lie so contiguous to our West Indian islands, they will supply them with provisions to the niin of the provision trade with Ireland. We shall lose the carrying trade, for the Ameri- cans are to be permitted under this bill to bring AYest Indian commodities to Europe. The Americans on their return from our ports may export our manufacturing tools, and, our artifi- cers emigrating at the same time, we shall see our manufac- tures transplanted to America. Nothing more should be done than to repeal the prohibitory acts and vest the king in coun- cil with powers for six months to suspend such laws as stand in the way of an amicable intercourse." Pitt agreed that " the bill was most complicated in its na- ture and most extensive in its consequences," * and, giving it but faint support, he solicited the assistance and the informa- tion of every one present to mould it, so that it might prove most useful at home and most acceptable in America. " While there is an immense extent of unoccupied territory to attract the inhabitants to agriculture," said Edmund Burke, " they wiU not be able to rival us in manufactures. Do not treat them as aliens. Let all prohibitory acts be repealed, and leave the Americans in every respect as they were before in point of trade." The clause authorizing direct intercourse between the United States and the British West India islands was allowed to remain in the report to the house.f * Almon, xxvi., 439. f Almon, xxvi., 503. 44: THE CONFEDERATION. b. i. ; oh. m. Before the bill was discussed again, the coalition, after long delays caused bj almost fatal dissensions among them- selves, had been installed. In pursuit of an ascendency in the cabinet, Lord North plumed himself on having ever been a consistent whig ; believing that " the appearance of power was all that a king of England could have ; " * and insisting that during all his ministry " he had never attributed to the crown any other prerogative than it was acknowledged to possess by every sound whig and by all those authors who had written on the side of liberty." f But he betrayed his friends by con- tenting himself with a subordinate office in a cabinet in which there would always be a majority against him, and, while Fox seized on the lead, the nominal chieftainship was left to the duke of Portland, who had neither capacity for business, nor activity, nor power as a speaker, nor knowledge of liberal principles. The necessity of accepting a ministry so composed drove the king to the verge of madness. He sorrowed over " the most profligate age ; " " the most unnatural coalition ; " J and he was heard to use " strong expressions of personal abhorrence of Lord l^orth, whom he charged with treachery and ingrati- tude of the blackest nature." * " Wait till you see the end," i| said the king to the representative of France at the next levee ; and Fox knew that the chances in the game were against him, as he called to mind that he had sought in vain the support of Pitt ; had defied the king ; and had joined him- self to colleagues whom he had taught liberal Englishmen to despise, and whom he himself could not trust. In the slowly advancing changes of the British constitution, the old whig party, as first conceived by Shaftesbury and Locke to resist the democratic revolution in England on the one side, and the claim of arbitrary sovereignty by the Stuarts on the other, was near its end. The time was coming for the people to share in power. For the rest of his life. Fox battled for the reform of the house of commons, so that it became the rallying cry of the liberal party in England. A ministry di- * Russell's Memorials of Charles James Fox, ii., 38. f Almon, xxvi., 355. X The king to Shelburne, 22 February 1'783. MS. * Memorials of Fox, ii., 249. I Moustier to Vergennes, 3 April 1783. MS. 1783. AMERICA AND GREAT BRITAIN". 45 vided witMn itself bj irreconcilable opinions, detested by the king, confronted by a strong and watchful and cautious oj^po- sition, was forced to follow tbe line of precedents. The settle- ment of the commercial relations to be established with the United States had belonged to the treasury ; it was at once brought by Fox within his department, although, from his ignorance of political economy, he could have neither firm convictions nor a consistent policy. He was not, indeed, with- out glimpses of the benefit of liberty in trade. To him it was a problem how far the act of navigation had ever been useful, and what ought to be its fate ; * but the bill in which the late ministry had begun to apply the principle of free commerce with America he utterly condemned, "not," as he said, "from animosity toward Shelburne, but because great injury often came from reducing commercial theories to practice." More over, the house of commons would insist on much deliberation and very much inquiry before it would sacrifice the navigation act to the circumstances of the present crisis.f In judging his conduct, it must be considered that the changes in the opinion of a people come from the slow evolu- tion of thought in the public mind. One of the poets of Eng- land, in the flush of youth, had prophesied : " The time shall come when, free as seas or wind, Unbounded Thames shall flow for all mankind. Whole nations enter with each swelling tide. And seas but join the regions they divide." More than half a century must pass away before the prophecy will come true by the efforts of statesmen, who, had Fox Kved in their time, might have shared their indecision. The coalition cabinet at its first meeting agreed to yield no part of the navigation act, :[: and, as a matter of policy, to put off the bill before parliament relating to commerce with Amer- ica " till some progress should be made in a negotiation with the American commissioners at Paris." Thither without delay Fox sent, as minister on the part of Great Britain, David Hart- ley, a friend of Franklin and a well-wisher to the United States. * Moustier to Vergennes, 11 April 1 18S. MS. f Fox to Hartley, 10 June 1Y83. MS. X Fox to the king, Memorials of Fox, ii., 122. 4:6 THE CONFEDERATION^. b. i. ; oh. m. The avowed liberal opinions of Hartley raising distrust, Lord Sheffield, a supporter of the ministry, and, on trade with America, the master authority of that day for parliament, im- mediately sounded an alarm. " Let the ministers know," said he on the fifteenth, in the house of lords, " the country is as tenacious of the principle of the navigation act as of the prin- ciple of ]\Iagna Charta. They must not allow America to take British colonial produce to ports in Europe. They must re- serve to our remaining dominions the exclusive trade to the "Wcot India islands ; otherwise, the only use of them will be lost. If we permit any state to trade with our islands or to carry into this country any produce but its own, we desert the navigation act and sacrifice the marine of England. The peace is in comparison a trifling object." * But there was no need of fear lest Fox should yield too much. In his instructions to Hartley, he was for taking the lion's share, as Yergennes truly said.f He proposed that the manufactures of the thirteen states should as a matter of course be excluded from Great Britain, but that British manufactures should be admitted everywhere in the United States. While America was de- pendent, parliament had taxed importations of its produce, but British ships and manufactures entered the colonies free of duty. " The true object of the treaty in this business," so Fox enforced his plan, " is the mutual admission of ships and mer- chandise free from any new duty or imposition ; " :j; that is, the Americans on their side should leave the British navigation act in full force and renounce all right to establish an act of navigation of their own ; should continue to pay duties in the British ports on their own produce ; and receive in their own ports British produce and manufactures duty free. One sub- ject appealed successfully to the generous side of his nature. To the earnest wish of Jay that British ships should have no right under the convention to carry into the states any slaves from any part of the world, it being the intention of the United States entirely to prohibit their importation,* Fox answered promptly : " If that be their policy, it never can be * Almon, xxvi., 615. f Works of John Adams, Hi., 380. X Fox to Hartley, 10 April 1783. MS. ^ ^ June IT S3. Diplomatic Correspondence, x,, 154. 1783. AMERICA AND GREAT BRITAIN. 47 competent to us to dis^Dute with them their own regulations." * In like spirit, to formal complaints that Carleton, " in the face of the treaty, persisted in sending off negroes by hundreds," Fox made answer : " To have restored negroes whom we in- vited, seduced if you will, under a promise of liberty, to the tyranny and possibly to the vengeance of their former masters, would have been such an act as scarce any orders from his employers (and no such orders exist) could have induced a man of honor to execute." f The dignity and interests of the republic were safe, for they were conlided to Adams, Franklin, and Jay. In America there existed as yet no system of restrictions ; and congress had not power to protect shipping or establish a custom-house. The states as dependencies had been so severely and so wan- tonly cramped by British navigation acts, and for more than a century had so steadily resisted them, that the desire of abso- lute freedom of commerce had become a part of their nature. The American commissioners were very much pleased with the trade-bill of Pitt, and with the principles expressed in its preamble ; the debates upon it in parHament awakened their distrust. They were ready for an}^ event, having but the one simple and invariable policy of reciprocity. Their choice and their offer was mutual unconditional free trade ; but, however narrow might be the Kmits which England should impose, they were resolved to insist on like for like. :[: The British commis- sioner was himself in favor of the largest liberty for commerce, but he was reproved by Fox for transmitting a proposition not authorized by his instructions. ^/^J- * A debate in the house of lords on the sixth of May revealed ( Jr^ the rapidity with which the conviction was spreading that J ./v^ having no government at all, and there were some who looked u^^ for the early dissolution of the governments even of the sepa- v A> rate states. Lord Walsingham, accordingly, proposed that the law for admitting American ships should apply not merely to the ships of the United States, but to ships belonging to any * Fox to Hartley, 10 June 1783. MS. f Fox to Hartley, 9 August 1T83. X Hartley to Fox, 20 May 1783. MS. 48 THE CONFEDERATION". b. i. ; oh. m. one of the states and to any ship or vessel belonging to any of the inhabitants thereof. He was supported by Thurlow, who said : " I have read an account which stated the government of America to be totally unsettled, and that each province seemed intent on establishing a distinct, independent, sovereign state. If this is really the case, the amendment will be highly neces- sary and proper." * The amendment was dropped ; and the bill under discussion, in its final shape, repealed prohibitory acts made during the war, removed the formalities which at- tended the admission of ships from the colonies during their state of dependency, and for a hmited time left the power of regulating commerce with America to the king in council. Immediately the proclamation of an order in council of the second of July confined the trade between the American states and the British West India islands to British-built ships owned and navigated " by British subjects." " Undoubtedly," wrote the king, " the Americans cannot expect nor ever will receive any favor from me."f To an American, Fox said : " For myself, I have no objection to opening the West India trade to the Americans, but there are many parties to please." J The blow fell heavily on America, and compelled a read- justment of its industry. Ships had been its great manufac- ture for exportation. For nicety of workmanship, the pahn was awarded to Philadelphia, but nowhere could they be built so cheaply as at Boston. More than one third of the tonnage employed in British commerce before the war was of Ameri- can construction. Britain renounced this resource. The con- tinent and West India islands had prospered by the convenient interchange of their produce ; the trade between nearest and friendliest neighbors was forbidden, till England should find out that she was waging war against a higher power than the United States ; that her adversary was nature itseK. Her statesmen confounded the " navigation act " and " the marine of Britain ; " * the one the offspring of selfishness, the other the sublime display of the creative power of a free people, * Almon, xxviii., 180, 181. f Correspondence of George III. with Lord North, ii., 442. X Diplomatic Correspondence, 1783-1787, ii., 513 ; Fox to Hartley, 10 June 1783. MS. * Sheffield's Commerce of the American States, preface, 10. 1783. AMERICA AND GREAT BRITAIN. 49 Such was the issue between the ancient nation which falsely j and foolishly and mischievously believed that its superiority \ in commerce was due to artificial legislation, and a young peo- \ pie which solicited free trade. Yet thrice blessed was this assertion of monopoly by an ignorant parliament, for it went forth as a summons to the commercial and the manufacturing interests of the American states and to the self-respect and patriotism of their citizens to speak an efficient government into being. Full of faith in the rising power of America, Jay, on the seventeenth of July, wrote to Gouverneur Morris : " The pres- ent ministry are duped by an opinion of our not having union and energy sufficient to retaliate their restrictions. JSTo time is to be lost in raising and maintaining a national spirit in Amer- ica. Power to govern the confederacy as to all general pur- poses should be granted and exercised. In a word, everthing conducive to union and constitutional energy should be culti- vated, cherished, and protected." * Two days later he wrote to William Livingston of ]^ew Jersey : " A continental, na- tional spirit should pervade our country, and congress should be enabled, by a grant of the necessary powers, to regulate the commerce and general concerns of the confederacy." On the same day, meeting Hartley, the British envoy, Jay said to him : " The British ministry will find us like a globe — not to be overset. They wish to be the only carriers between their islands and other countries ; and though they are apprized of our right to regulate our trade as we please, yet I suspect they flatter themselves that the different states possess too little of a national or continental spirit ever to agree in any one na- tional system. I think they will find themselves mistaken." " The British ministers," so Gouverneur Morris in due time replied to Jay, " are deceived, for their conduct itself will give congress a power to retahate their restrictions. f This country has never yet been known in Europe, least of all to England, because they constantly view it through a medium of prejudice or of faction. True it is that the general gov- ernment wants energy, and equally true it is that this want * Jay to G. Morris, 17 July 1783. Sparks's Life of G. Morris, !., 258. f Gouverneur Morris to Jay, 24 September 1783. Sparks's G. Morris, i., 259. yoL. VI. — 4 50 THE CONFEDERATION. b. i. ; ch. m. will eventually be supplied. Do not ask the Britisli to take oft' their foolish restrictions ; the present regulation does us more political good than commercial mischief." * On the side of those in England who were wilHng to ac- cept the doctrines of free trade, Josiah Tucker, the dean of Gloucester, remarked : " As to the future grandeur of Amer- ica, and its being a rising empire, under one head, whether repubhcan or monarchical, it is one of the idlest and most visionary notions that ever was conceived even by writers of romance. The mutual antipathies and clashing interests of the Americans, their difference of governments, habitudes, and manners, indicate that they will have no centre of union and no common interest. They never can be united into one com- pact empire under any species of government whatever ; a dis- united people till the end of time, suspicious and distrustful of each other, they will be divided and subdivided into little commonwealths or principalities, according to natural bounda- ries, by great bays of the sea, and by vast rivers, lakes, and ridges of mountains." f The principle of trade adopted by the coalition ministry Sheffield set forth with authority in a pamphlet, which was accepted as an oracle. " There should be no treaty with the American states because they will not place England on a bet- ter footing than France and Holland, and equal rights will be enjoyed of course without a treaty. The nominal subjects of congress in the distant and boundless regions of the valley of the Mississippi will speedily imitate and multiply the exam- ples of independence. It will not be an easy matter to bring the American states to act as a nation ; they are not to be feared as such by us. The confederation does not enable con- gress to form more than general treaties ; when treaties be- come necessary, they must be made with the states separately. Each state has reserved every power relative to imposts, ex- ports, prohibitions, duties, etc., to itseK. :j: If the American states choose to send consuls, receive them and send a consul to each state. Each state will soon enter into all necessary * Gouverneur Morris to Jay, 10 January 178-1. Ibid., 266, 267. f Dean Tucker's Cui Bono, 1781, 117-119. X Sheffield's Commerce of the American States, 183, 190, 191, 198-200. 1783. AMERICA AND GREAT BRITAIN. 51 regulations with the consul, and this is the whole that is neces- sary.* The American states will not have a very free trade in the Mediterranean, if the Barbary states know their inter- ests. That the Barbary states are advantageous to the mari- time powers is certain ; if they were suppressed, little states would have nmch more of the carrying trade. The armed neutrality would be as hurtful to the great maritime powers as the Barbary states are useful." f In London it was a maxim among the merchants that, if there were no Algiers, it would be worth England's while to build one. :j: Already the navigation act was looked to as a protection to Enghsh commerce, because it would require at least three fourths of the crews of American ships to be Americans ; and they pretended that during the war three fourths of the crews of the American privateers were Europeans.* The exclusion of European seamen from service in the American marine was made a part of British policy from the first establishment of the peace. In August, Laurens, by the advice of his associates, came over to England to inquire whether a minister from the United States of America would be properly received. " Most un- doubtedly," answered Fox, and Laurens left England in that belief, j But the king, when his pleasure was taken, said : " I certainly can never express its being agreeable to me ; and, indeed, I should think it wisest for both parties to have only agents who can settle any matters of commerce. That revolted state certainly for years cannot establish a stable government." ^ The plan at court was to divide the United States, and for that end to receive only consuls from each one of the separate states and not a minister for the whole. ^ British statesmen had begun to regret that any treaty whatever had been made with the United States collectively ; they would have granted independence and peace, but without * Sheffield's Commerce of the United States, 211. f Ibid., 204, 206, note. I Franklin in Diplomatic Correspondence, iv., 149. * Sheffield's Commerce of the American States, 205, note. I Diplomatic Correspondence, ii., 510-515. ^ King to Fox, 7 August 1783 ; Memorials of Fox, ii., 141. Adh^mar to Vergennes, 7 August 1783. MS. 52 THE CONFEDERATION b.i.;oh.iii. furtlier stipulations of any kind, so tliat all other questions might have been left at loose ends. Even Fox was disinclined to impart any new Hfe to the provisional articles agreed upon by the ministry which he supplanted. He repeatedly avowed the opinion that " a definitive treaty with the United States was perfectly superfluous." * The American commissioners became uneasy ; but Yergennes pledged himself not to pro- ceed without them,f and Fox readily yielded. On the third of September, when the minister of France and the ambassa- dors of Great Britain and Spain concluded their conventions at Versailles, the American provisional articles, shaped into a definitive treaty, were signed by Hartley for Great Britain ; by Adams, Franklin, and Jay for the United States of America. The coalition ministry did not last long enough to exchange ratifications. To save the enormous expense of maintaining the British army in ITew York, Fox hastened its departure ; but while " the speedy and complete evacuation of all the ter- ritories of the United States " J was authoritatively promised to the American commissioners at Paris in the name of the king. Lord North, acting on the petition of merchants inter- ested in the Canada trade,* withheld orders for the evacuation of the western and north-western interior posts, although by the treaty they were as much an integral part of the United States as Albany or Boston ; and this policy, like that relating to commerce, was continued by the ministry that succeeded him. We may not turn away from England without relating that Pitt for the second time proposed in the house of com- mons, though in vain, a change in the representation, by intro- ducing one hundred new members from the counties and from the metropohs. Universal suffrage he condemned, and the privilege of the owners of rotten boroughs to name members of parliament had for him the sanctity of private property, to * Fox to duke of Manchester, 9 August 1783. Same to same, 4 August 1783. MS. Same to Hartley 4 August 1783. MS. f Hartley to Fox, 31 July 1783. MS. X Fox to Hartley, 10 June 1783. MS. Compare Fox to Hartley, 15 May 1783. MS. * Regulations proposed by the merchants interested in the trade to the prov- ince of Quebec, 1783. MS. 1783. AMERICA AND GREAT BRITAIN. 63 be taken away only after compensation. "Mankind," said Fox, "are made for themselves, not for others. The best government is that in which the people have the greatest share. The present motion will not go far enough ; but, as it is an amendment, I give it my hearty support." An early and a most beneficent result of the American revolution was a reform of the British colonial system. Taxa- tion of colonies by the parliament of Great Britain, treat- ment of them as worthless except as drudges for the enrich- ment of the ruling kingdom, plans of governing them on the maxims of a Hillsborough or a Thurlow,"^ came to an end. It grew to be the rule to give them content by the establishment of liberal constitutions. * SheflSeld's Commerce of the American States, 1Y5-180. 54 THE CONFEDERATION. b. i. ; oh. iv. CHAPTEE lY. AIMEKICA AITD CONTINENTAL EUROPE. 1783. The governments of continental Europe vied with eacli other in welcoming the new republic to its place among the powers of the world. In May 1782, as soon as it was known at Stockholm that the negotiations for peace were begun, the adventurous king of Sweden sent messages of his desire, through Franklin above all others, to enter into a treaty with the United States. Franklin promptly accepted the invita- tion. The ambassador of Gustavus at Paris remarked : " I hope it will be remembered that Sweden was the first power in Europe which, without being sohcited, offered its friendship to the United States." * Exactly five months before the de- finitive peace between the United States and Great Britain was signed, the treaty with Sweden was concluded. Each party was put on the footing of the most favored nations. Free ships were to make passengers free as well as goods. Liberty of commerce was to extend to all kinds of merchandise. The number of contraband articles was carefully hmited. In case of a maritime war in which both the contracting parties should remain neutral, their ships of war were to protect and assist each other's vessels. The treaty was ratified and proclaimed in the United States before the definitive treaty with Great Britain had arrived.f The successful termination of the war aroused in Prussia hope for the new birth of Europe, that, by the teachings of America, despotism might be struck down, and the caste of * Franklin's Works, ix., 342. f Journals of Congress, iv., 241. 1783. AMERICA AN^D CONTINENTAL EUROPE. 55 hereditary nobility give place to republican equality. These aspirations were suffered to be printed at Berlin.* The great Frederick had, late in 1Y82, declared to the British minister at his court, half in earnest and half cajoling, that " he was persuaded the American union could not long subsist under its present form. The great extent of country would alone be a sufficient obstacle, since a republican govern- ment had never been known to exist for any length of time where the territory was not limited and concentred. It would not be more absurd to propose the establishment of a democ- racy to govern the whole country from Brest to Riga. JSTo inference could be drawn from the states of Yenice, Holland, and Switzerland, of which the situation and circumstances were perfectly different from those of the colonies." f He did not know the power of the representative system.-, nor could he foresee that by the wise use of it the fourth of his succes- sors would evoke the German state from the eclipse of centu- ries, to shine with replenished light as the empire of a people. For the moment he kept close watch of the progress of the convention with Sweden, and, so soon as it was signed, directed his minister in France to make overtures to Franklin, which were most gladly received. :j: Full seven months before the peace a member of the government at Brussels intimated to William Lee, a former commissioner of congress at the court of "Vienna, that Joseph II., who at that time harbored the hope of restoring to Belgian commerce its rights by opening the Scheldt and so preparing the way for a direct trade with America, was disposed to enter into a treaty with the United States.* Soon after the pre- hminaries of peace between France and Great Britain had been signed, the emperor let it be insinuated to Franklin that he would be well received at Vienna as the minister of a sovereign power. II In the following year an agent was sent from Bel- * Die Freiheit Amerika's. Ode vom Herra Pr. J. E. H. Berlinische Monats- schrift, April 1783, 386. See J. Scherr's Kultur und Sittengescbichte, 508, 619. f Sir John Stepney to secretary of state, 22 October 1782. MS. X Goltz to Frederick, 3 March, 28 April, 80 June 1783. MSS. * William Lee to secretary of foreign affairs, 31 March 1782, Diplomatic Correspondence, ii., 360. I Letter to Franklin from Vienna, 8 April 1*783, Franklin's Works, ix., 501. 56 THE CONFEDERATION. b. i. ; ch. iv. gium to the United States. The Belgians produced in unsur- passed excellence manufactures which America needed; but they were not enterprising enough to estabhsh houses in Amer- ica, or to grant its merchants the extended credits which were offered in England."^ The subject gained less and less atten- tion, for the emperor was compelled, in violation of natural rights, to suffer the Scheldt to be closed. On the twenty - second of February 1783, Eosencrone, minister of foreign affairs in Denmark, communicated to Franklin " the satisfaction with which the king's ministry had learned the glorious issue of the war for the United States of America," and their desire to form connections of friendship and commerce. " To overtures for a treaty like that between congress and the states general," he added, " we should eagerly and frankly reply." But a question of indemnity for viola- tions of neutrality by Denmark during the war impeded the negotiation. Before the end of March the burgomaster and senate of the imperial free city of Hamburg, seeing " European powers courting in rivalry the friendship of " the new state, and im- pressed with "the illustrious event" of the acknowledged in- dependence of America as "the wonder of that age and of remotest ages to come," deputed one of their citizens to bear to congress their letter, offering free trade between the two republics. In midsummer, 1783, Portugal made overtures to treat with Franklin, but did not persist in them. Bussia was at that time too much engrossed by affairs in the East to take thought for opening new channels of com- merce with the "West ; and the United States, recalling their minister, declined to make advances. But the two nations, without any mutual stipulations, had rendered each other the most precious services. Catherine had scornfully refused to lend troops to George III., rejected his entreaties for an alli- ance, and by the armed neutrality insulated his kingdom ; the United States, by giving full employment to the maritime powers, had made for the empress the opportunity of annex- ing to her dominions the plains of Kuban and the Crimea. * Correspondence of the Austrian agent, Baron de Beelen Bertholff. MS. 1783. AMERICA AND CONTINENTAL EUROPE. 57 Of the chief commercial nations of Europe, Holland enter- tained for America the most friendly sentiments, invited her trade, and readily granted to her congress all the credit which it had any right to expect. The independence of the United States gave umbrage to the Spanish court. Galvez, the minister of the colonies, was fiercely and persistently hostile to the extent of the United States in the South-west. Florida Blanca himself wished for amicable rectifications of the boundary; but, on the remon- strances of Lafayette, he, in the presence of the ambassador of France, pledged his word of honor to accept the boundary as laid down in the Anglo-American treaty, and authorized La- fayette to bind him with congress to that pledge. The Spanish statesmen feared the loss of their own colonies, and the success of the American revolution excited new and never-ceasing alarm. They could have wished that North America might disappear from the face of the earth ; but they tried to recon- cile themselves to living in good harmony with the United States. The Mississippi was the great source of anxiety. Spain thought it not for her interest that the American states should consolidate their union. She had dreaded the neighborhood of English colonies to her own; she dreaded still more to border all the way from the Atlantic to the foun- tains of the Mississippi on a republic whose colossal growth was distinctly foreseen. Besides this, the suppression of a rebellion in South America had just cost more than a hundred thousand lives; and the difficulty of governing distant and boundless regions was so great that Aranda, the far-sighted statesman who had signed the treaty of peace, in his official dispatches to Florida Blanca, set forth the opinion that Por- tugal would be worth more to Spain than all the American main-land. Of the islands he never depreciated the value ; but he clearly perceived how precarious was the hold of Spain on her continental possessions ; and he left on record the advice, which he may never have had an opportunity to offer person- ally to his king, that Spain should transform all the vice-royal- ties in America into secundo-genitures, retaining in direct dependence only Cuba and Porto Kico.* * Ferro del Rio, iii., 460, 407, note. Muriel, vi, 45-54. Revista Espanola de 58 THE COirrEDERATION'. b. i. ; oh. iv. Even Yergennes, while he believed that the attachment of America to the alliance would be safest if the confederation could keep itself alive, held it best for France that the United States should fail to attain the political consistency of which he saw that they were susceptible ; and he remained a tranquil spectator of their efforts for a better constitution. Lafayette not only watched over the interests of America in Europe, but to the president of congress and to the secretary for for- eign affairs he sent messages imploring American patriots to strengthen the federal union. Ambos Mundos, for May 1855, written by Ferro del Rio. In his letter on ex- changing for Portugal the Spanish possessions in America, Aranda writes, " ex- ceptuando las islas." The train of thought is the same. 1783. A CALL ON THE AKMY TO INTERPOSE. 69 CHAPTEE Y. A CALL 0:N" the AK^IY to mTEEPOSE. Januaey-March 1783. In the fall of 1782 tlie main aimj was moved for winter quarters to the wooded hills in the rear of Newbnrg. No part of the community had undergone equal hardships or borne injustice with equal patriotism. In the leisure of the camp thej brooded over their wrongs and their chances of redress, and at the close of the year the officers sent to Philadelphia as their committee Major-General Macdougall and Colonels Ogdeh and Brooks, who, in their address of the sixth of January 1783, used these words : " To the United States in congress assembled : "We, the officers of the army of the United States, in behaK of ourselves and our brethren the soldiers, beg leave freely to state to the supreme power, our head and sovereign, the great distress under which we labor. Our embarrassments thicken so fast that many of us are unable to go farther. Shadows have been offered to us, while the substance has been gleaned by others. The citizens murmur at the greatness of their taxes, and no part reaches the army. We have borne all that men can bear. Our property is expended ; our private resources are at an end. We therefore beg that a supply of money may be forwarded to the army as soon as possible. " The uneasiness of the soldiers for want of pay is great and dangerous; further experiments on their patience may have fatal effects. There is a balance due for retained rations, forage, and arrearages on the score of clothing. Whenever there has been a real want of means, defect in system, or 60 THE CONFEDERATION. b. i. ; ch. v. neglect in execution, we liave invariably been the sufferers by hunger and nakedness, and by languishing in a hospital. "We beg leave to urge an immediate adjustment of all dues. " We see with chagrin the odious point of view in which the citizens of too many of the states endeavor to place the men entitled to half -pay. For the honor of human nature we hope that there are none so hardened in the sin of ingratitude as to deny the justice of the reward. To prevent altercations, we are willing to commute the half -pay pledged for full-pay for a certain number of years, or for a sum in gross. And in this we pray that the disabled officers and soldiers, with the widows and orphans of those who have expended, or may ex- pend, their lives in the service of their country, may be fully comprehended. '' General dissatisfaction is gaining ground in the army, from evils and injuries which, in the course of seven long years, have made their condition in many instances wretched. They therefore entreat that congress, to convince the army and the world that the independence of America shall not be placed on the ruin of any particular class of her citizens, will point out a mode for immediate redress." The grand committee to whom the memorial was referred held a conference with the superintendent of finance. He de- clared peremptorily that it was impossible, in the present state of the finances, to make any payment to the army, and that it would be imprudent to give assurances with regard to future pay until funds that could be relied upon should be estab- Hshed. Not only had he no money in hand, but he had over- drawn his account in Europe to the amount of three and a half milHons of Hvres. He therefore asked a decision on the ex- pediency of staking the public credit on further drafts to be met by the contingent proceeds of a loan from the Dutch and by the friendship of France. On the tenth of January, con- gress, under an injunction of secrecy, authorized the superin- tendent to draw bills on the credit of applications for loans in Europe. Dyer of Connecticut alone opposed the measure as unwarranted and dishonorable, but allowed the resolution to be entered as unanimous.* * Gilpin, 248-252, 299 ; Elliot, 21, 22, 38 ; Secret Journals of Congress, i., 253. 1783. A CALL ON THE ARMY TO INTERPOSE. 61 In an interview with tlie grand committee on tlie evening of tlie thirteenth,* the deputies from the army explained that, without an immediate payment of some part of the overdue pay, the discontent alike of officers and soldiers could not be soothed ; that a mutiny might ensue ; and that it would be hard to punish soldiers for a breach of engagements to the public which the public itself had already flagrantly broken. " The army," said Macdougall, " is verging to that state which, we are told, will make a wise man mad." It was a source of irritation that the members of the legislatures never adjourned till they had paid themselves fully, that aU on the civil Hsts of the United States regularly received their salaries, and that all on the military lists were as regularly left unpaid, f The deputies animadverted with surprise and even indig- nation on the repugnance of some of the states to establish a federal revenue for discharging federal engagements, while the affluence of the people indicated adequate resources. Speak- ing with pecuhar emphasis and making a strong impression by his manner. General Macdougall declared " that the most in- telligent part of the army were deeply touched by the debility of the federal government and the unwillingness of the states to invigorate it ; in case of its dissolution, the benefits expected from the revolution would be greatly impaired ; and the con- tests which might ensue among the states would be sure to embroil their respective officers." Hamilton had for himself renounced the half-pay. The grand committee, in their report which he drafted, advised, some payment to the army as soon as possible ; for the rest, they were to have no priority over other creditors ; all were to wait alike for the funding of the whole debt of the United States by general revenues. The officers were to have the op- tion of preserving their claim to half -pay as it then stood, or accepting a commutation. J " A great majority of the members of congress," avowed Robert Morris, " will not adopt the necessary measures be- cause they are afraid of offending their states ; " and he un- * Gilpin, 256, 261 ; Elliot, 23. f Gilpin, 256-258 ; Elliot, 23, 24 ; Washington to J. Jones, Sparks, viii., 370. X HamiltoD, i., 274 ; Gilpin, 276, 277 ; Elliot, 29, 30, 62 THE CONFEDERATION". b. i. ; oh. v. dertook to drive them to decisive action. Accordingly, on the twenty-fourth, the day on which the report was taken np, he sent to them his resignation of office in these words : " The funding the public debts on solid revenues, I fear, will never be made. If before the end of May effectual measures to make permanent provision for the public debts of every kind are not taken, congress will be pleased to appoint some other man to be the superintendent of their finances : I will never be the minister of injustice." The design of Robert Morris re- quired the immediate publication of his letter, that, by uniting the army with all other creditors, congress and the states might be coerced into an efficient system ; but congress reasoned that this authoritative statement of the financial ruin of the country would encourage the enemy, annihilate foreign and domestic credit, and provoke the army to mutiny. They therefore placed the communication under the injunction of secrecy.'^ Resuming the consideration of the report of their grand committee on the memorial from the army, they referred a present payment to the discretion of the superintendent of finance; and, on the fifth of February, he issued a warrant, out of which the officers received one month's pay in notes and the private soldiers one month's pay in weekly instalments of half a dollar, f The annual amount of the half-pay promised to the officers for life was nearly five hundred thousand dollars. The valid- ity of the engagement was questioned. The grant was dis- liked by the common soldiers ; it found no favor in the legis- lature of Massachusetts; the delegates of Connecticut and Rhode Island were instructed to oppose it altogether. To avoid defeat, this article was laid over till there should be a fuller representation. J Delegates from the states in which the domestic debt was chiefly held hoped for efficient co- operation from the army. Pennsylvania was the largest credit- or ; Massachusetts ranked next ; South CaroHna, Georgia, and * Diplomatic Correspondence, xii., 325-328. Gilpin, 274, 275 ; Elliot, 29. f Report of the deputies in Sparks, viii., 552. The amount of this one month's pay was 253,232.86 dollars. Old account-books in Treasury department. Waste- book D, Ledger B. MS. i Gilpin, 281, 321 ; Elliot, 31, 45. 1783. A CALL OIT THE ARMY TO INTERPOSE. 63 Delaware were the lowest ; Yirginia was but the nintli, hold- ing less than l^ew Hampshire and not half so much as Khode Island. The zeal for the equal support of all classes of public creditors culminated in those states whose citizens originally owned nearly four times as much as those of all the six south- ern states, and by transfers were constantly acquiring more.* Adopting unanimously a resolution which Hamilton had prepared, congress pledged itself to consider immediately the most likely mode of obtaining revenues adequate to the fund- ing of the whole debt of the United States.f Encouraged by this seeming heartiness, Wilson of Pennsylvania, on the twenty-seventh, proposed " the establishment of general funds to be collected by congress." j;. To the dismay of the friends of a general revenue, Theodorick Bland of Yirginia interposed and officially presented the act of his state repealing the grant of the impost, and a resolution of both its houses declarhig its present inability to pay more than fifty thousand pounds Vir- ginia currency toward the demands of congress for 1782.* The debate, nevertheless, went on. Gorham of Massachu- setts suggested polls and commerce as most proper objects of taxation. Hamilton, discussing the subject in a comprehen- sive manner, spoke for permanent sources of revenue which should extend uniformly throughout the United States, and be collected by the authority of congress. Dyer strongly dis- hked the appointment of collectors by congress ; the states would never consent to it. Ramsay of South Carolina sup- ported Gorham and Hamilton. Again Bland placed himself in the way, saying : " The states are so averse to a general revenue in the hands of congress that, even if it were proper, it is unattainable." He therefore advised congress to pursue the rule of the confederation and ground requisitions on an actual valuation of houses and lands in the several states. At this stage of the discussion, an efficient reply could be made only by one who was of Yirginia. To Randolph, then in Richmond, Madison had already written : " Virginia could never have cut off the impost at a more unlucky crisis than * Gilpin, 364, note ; Elliot, 60. f Gilpin, 211, 280 ; Elliot, 30, 31. t Gilpin, 282, 285 ; Elliot, 32. * Resolution of 28 December 1782. in Journal of the Delegates, 80, 90. 64: THE CONFEDERATIOK b. i. ; ch. v. when she is protesting her inability to comply with the conti- nental requisitions. Congress cannot abandon the plan as long as there is a spark of hope. ISTay, other plans on a like prin- ciple must be added. Justice, gratitude, our reputation abroad and our tranquillity at home, require provision for a debt of not less than fifty millions of dollars ; and this provision will not be adequately met by separate acts of the states. If there are not revenue laws which operate at the same time through all the states, and are exempt from the control of each, mutual jealousies will assuredly defraud both our foreign and domes- tic creditors of their just claims." * Madison, on the twenty-eighth, presented a milder form of the resolution for a general revenue. Arthur Lee lost no time in confronting his colleague : " The states will never con- sent to a uniform tax, because it will be unequal ; is repug- nant to the articles of confederation ; and, by placing the purse in the same hands with the sword, subverts the fundamental principles of liberty." Wilson explained : The articles of confederation have expressly provided for amendments ; there is more of a centrifugal than centripetal force in the states ; the funding of a common debt would invigorate the union. Ellsworth despaired of a continental revenue ; condemned pe- riodical requisitions from congress as inadequate ; and inclined to the trial of permanent state funds. In reply, Hamilton showed that state funds would meet with even greater obsta- cles than a general revenue ; but he lost the sympathy of the house by adding that the influence of federal collectors would assist in giving energy to the federal government. Eutledge thought that the prejudices of the people were opposed to a general tax, and seemed disinclined to it himself. Williamson was of opinion that continental funds, though desirable, were unattainable. " The idea," said Madison, " of erecting our national inde- pendence on the ruins of public faith and national honor must be homd to every mind which retains either honesty or pride. Is a continental revenue indispensably necessary for doing complete justice to the public creditors ? This is the question. * Madison to Randolph, 22 January IVSS, in Gilpin, 111. The date is erro- neously given as of 1*782. 1783. A CALL ON THE AKMY TO INTERPOSE. 65 " A punctual compliance by thirteen independent govern- ments with periodical demands of money from congress can never be reckoned upon with certainty. The articles of con- federation authorize congress to borrow money. To borrow money, permanent and certain provision is necessary ; and, as this cannot be made in any other way, a general revenue is within the spirit of the confederation. Congress are already invested by the states with constitutional authority over the purse as well as the sword. A general revenue would only give this authority a more certain and equal efficacy. " The necessity and reasonableness of a general revenue have been gaining ground among the states. I am aware that one exception ought to be made. The state of Yirginia, as appears by an act yesterday laid before congress, has withdrawn its assent once given to the scheme. This circumstance can- not but embarrass a representative of that state advocating it ; one, too, whose principles are extremely unfavorable to a dis- regard of the sense of constituents. But, though the dele- gates who compose congress more immediately represent and are amenable to the states from which they come, yet they owe a fidelity to the collective interests of the whole. The part I take is the more fully justified to my own mind by my thor- ough persuasion that, with the same knowledge of public affairs which my station commands, the legislature of Yirginia would not have repealed the law in favor of the impost, and would even now rescind the repeal.'* On the following day the proposition of Wilson and Madi son, wdth slight amendments, passed the committee of the whole without opposition. On the tweKth of February it was adopted in congress by seven states in the affirmative, and without the negative of any state. For methods of revenue, the choice of Madison was an impost, a poll-tax which should rate blacks somewhat lower than whites, and a moderate land-tax. To these Wilson wished to add a duty on salt and an excise on wine, imported spirits, and coffee. Hamilton, who held the attempt at a land-tax to be futile and impossible, suggested a house- and window-tax. Wolcott of Connecticut thought requisitions should be in proportion to the population of each state ; but VOL. VI. — 5 QQ THE CONFEDERATIOiSr. b. i. ; oh. v. was willing to include in the enumeration those only of the blacks who were within sixteen and sixty years of age.* Just at this time Pelatiah Webster, a graduate of Yale college, in a dissertation published at Philadelphia, f proposed for the legislature of the United States a congress of two houses which should have ample authority for making laws " of general necessity and utiUty," and enforcing them as well on individuals as on states. He further suggested not only heads of executive departments, but judges of law and chan- cery. The tract was reprinted in Hartford, and called forth a reply. Plans of closer union offered only a remote solution of the difficulties under which the confederation was sinking. How the united demand of all public creditors could wrest imme- diately from congress and the states the grant of a general revenue and power for its collection employed the thoughts of Sobert Morris and his friends. On Christmas eve 1781, Gou- verneur Morris, the assistant financier, had written to Greene : " I have no expectation that the government will acquire force ; and no hope that our union can subsist, except in the form of an absolute monarchy, and this does not seem to consist with the taste and temper of the people." To Jay, in January 1783, :|: he wrote : " The army have swords in their hands. Good will arise from the situation to which we are hastening ; much of convulsion will probably ensue, yet it must terminate in giving to government that power without which govern- ment is but a name." Hamilton held it as certain that the army had secretly de- termined not to lay down their arms until due provision and a satisfactory prospect should be afforded on the subject of their pay; that the commander-in-chief was already become extremely unpopular among all ranks from his known dislike to every unlawful proceeding; but, as from his virtue, his patriotism, and firmness, he would sooner suffer himself to be cut in pieces than yield to disloyal plans, Hamilton wished him * Gilpin, 300, 304-306, 331; Elliot, 38-40, 48. I A Dissertation on the Political Union and Constitution of the thirteen United States of North America, written 16 February 1783. In Pelatiah Webster's Po- litical Essays, 228. | Sparks's G. Morris, i., 240, 249. 1783. A CALL ON THE ARMY TO INTERPOSE. 67 to be the " conductor of the army in their plans for redress," to the exclusion of a leader like Horatio Gates.* With these convictions and with exceeding caution, he, on the seventh of February, addressed himself directly to Wash- ington in a letter, of which Brooks, on his return to the camp, was the bearer. " We," so he wrote of congress, " are a body not governed by reason or foresight, but by circumstances. It appears to be a prevailing opinion in the army that, if they once lay down their arms, they part with the means of obtain- ing justice. Their claims, urged with moderation but with firmness, may operate on those weak minds which are influ- enced by their apprehensions more than by their judgments, so as to produce a concurrence in the measures which the exigen- cies of affairs demand. To restore public credit is the object of all men of sense ; in this the influence of the army, properly directed, may co-operate." And he invited Washington to make use of General Knox, f to whom Gouvernem- Morris wrote on the same day and by the same channel. To ensure the concerted action of the southern army, Gou- verneur Morris wrote privately to Greene : " The main army will not easily forego their expectations. Their murmurs, though not loud, are deep. If the army, in common with all other public creditors, insist on the grant of general, permanent funds for liquidating all the public debts, there can be little doubt that such revenues will be obtained, and will afford to every order of public creditors a solid security. With the due exception of miracles, there is no probabiHty that the states will ever make such grants unless the army be united and deter- mined in the pursuit of it, and unless they be firmly supported by and as finnly support the other creditors. That this may happen must be the entire wish of every intelligently just man and of every real friend to our glorious revolution." :j: The letter of Gouverneur Morris to Knox, which was in reality a communication through Knox to Washington, cannot be found. ' It evidently expressed the opinion that the army might be made to co-operate in bringing about a closer union * Gilpin, 350, 351 ; Elliot, 55. f Hamilton to Washington, 7 February 17S3. Hamilton, i., 32*7. X G. Morris to Greene, 15 February 1783. Sparks's G. Morris, i., 250. 68 THE OONFEDERATIOIT. b. i. ; oh. v. of tlie states and a stronger government. Tlie answer of Knox expresses the advice of Washington : " The army are good patriots, and would forward everything that wonld tend to produce union and a permanent general constitution ; but they are yet to he taught how their influence is to effect this mat- ter. A * hoop to the barrel ' is their favorite toast. America will have fought and bled to little purpose if the powers of government shall be insufficient to preserve the peace, and this must be the case without general funds. As the present con- stitution is so defective, why do not you great men call the people together and tell them so — ^that is, to have a convention of the states to form a better constitution ? This appears to us, who have a superficial view only, to be the most efficacious remedy." * On the thirteenth of February the speech of the king of Great Britain, at the opening of parliament in December, was received. His announcement of provisional articles of peace with the United States produced great joy ; yet that joy was clouded by apprehensions from the impossibility of meeting the just claims of the army. Congress was brought no nearer to decisive action. Ham- ilton proposed that the doors of congress should be thrown wide open whenever the finances were under discussion, though the proposal, had it been accepted, would have filled the gal- leries with holders of certificates of the public debt, f On the other side, John Rutledge again and again moved that the proceeds of the impost should be appropriated exclusively to the army, but was supported only by his own state. Euffled by his indifference to the civil creditors, Wilson had one day answered with warmth: "Pennsylvania will take her own measures without regard to those of congress, and she ought to do so. She is willing to sink or swim according to the common fate ; but she will not suffer herself, with a millstone of six millions of the continental debt, to go to the bottom alone." The weakness of the friends of a general revenue appeared from their consenting to leave to the several states the ap- * Knox to G. Morris, 21 February 1783, in Sparks's G. Morris, i., 256. t Gilpin, 336, 341 ; Elliot, 50, 52. 1783. A CALL ON THE ARMY TO INTERPOSE. 69 pointment of tlie collectors of taxes, and to limit the grant of the impost to twenty-five years.* Once more Mercer and Arthur Lee renewed their war npon Madison, who in reply made a convincing plea for the necessity of a permanent general revenue. " The purse," re- peated Arthur Lee, " ought never to be put in the same hand with the sword. I will be explicit ; I would rather see con- gress a rope of sand than a rod of iron. Virginia ought not to concur in granting to congress a permanent revenue." " If the federal compact is such as has been represented," said Mer- cer, " I will immediately withdraw from congress, and do every- thing in my power to destroy its existence." Chafed by these expressions, Gorham of Massachusetts cried out : " The sooner this is known the better, that some of the states may form other confederacies adequate to their safety." f The assiduous labors of congress for two months had failed to devise the means for restoring public credit. In February some of its members thought the time had arrived when order and credit could come, if the army would support its demands by its strength. Robert Morris extorted from congress a re- moval of the injunction of secrecy on his letter of resignation, and forthwith sent it not only to Washington but to the public press, through which it immediately reached the army. * Gilpin, 314, 347, 348 ; Elliot, 43, 64. f Gilpin, 357, 611 ; Elliot, 57. 70 THE CONFEDERATION. b. i. ; oh. vi. CHAPTER YI. THE AMERICAN AKMY AND ITS CHIEF. Maech 1783. The command er-in-cMef suppressed the wish to visit Mount Yernon during the winter, for the arm j at ISTewburg was more unquiet that at any former period.* The Massachusetts line formed more than half of it, and so many of the remainder were from other eastern states that he could describe them all as E'ew England men. f He had made the delicate state of affairs " the object of many contemplative hours," and he was aware of the prevailing sentiment that the prospect of compen- sation for past services would terminate with the war. :{: 'Now that peace was at hand, his first act was by a letter to Harrison, then governor of Yirginia, to entreat his own state to enter upon a movement toward a real union. '' From the observations I have made in the course of this war — and my intercourse with the states in their united as well as separate capacities has afforded ample opportunities of judging — 1 am decided in my opinion," such were his words, " that, if the powers of congress are not enlarged and made competent to all general purposes, the blood which has been spilt, the ex- pense that has been incurred, and the distresses which have been felt, will avail nothing; and that the band which holds us togetlier, already too weak, will soon be broken ; when anar- * Sparks, viii., 355, 369. f Gorham in Gilpin, 315. Elliot, 43. Washington to Joseph Jones. Sparks, viii., 383 ; and compare Sparks, viii., 456. X Washington to Hamilton, 4 March 1'783. Sparks, viii., 389, 390. 1783. THE AMERICAN AEMY AND ITS CHIEF. 71 chj and confusion will prevail.* I shall make no apology for the freedom of these sentiments ; thej proceed from an honest heart ; they will at least prove the sincerity of my friendship, as they are altogether undisguised." The governor received this letter as a public appeal, and placed it among the archives of Yirginia. Before the oSScers had taken into consideration the cautious report of their committee to congress. Colonel Walter Stewart, an inspector of troops, coming back from Philadelphia, pre- sented himself at the quarters of Gates as " a kind of agent from the friends of the army in congress ; " f and rumors were immediately circulated through the camp that it was univer- sally expected the army would not disband until they had ob- tained justice ; that the public creditors looked up to them for aid, and, if necessary, would even join them in the field ; that some members of congress wished the measure might take effect, in order to compel the public, particularly the delin- quent states, to do justice. :j: A plan of action was in the utmost secrecy devised by Gates and those around him. To touch with ability the sev- eral chords of feeling which lay slumbering in the army, his aide-de-camp. Major John Armstrong, was selected to draft an address. This was copied, and Colonel Barber, the assistant adjutant-general of the division of Gates, taking care not to be tracked, put it in circulation through the line of every state,* with a notice for a meeting of the general and field officers on the next day, to consider what measures should be adopted to obtain that redress of grievances which they seemed to have solicited in vain. || " My friends ! " so ran the anonymous appeal, " after seven long years your suffering courage has conducted the United States of America through a doubtful and a bloody war ; and * Washington to Harrison, 4 March 1783, Maxwell's Virginia Historical Register, vi., 36, 37. f Gates to Armstrong, 22 June 1783. I follow a manuscript copy received from J. K. Armstrong. The letter has been printed in United States Magazine, i., 40. X Washington to Joseph Jones, 12 March 1783. Sparks, viii., 393, 394. Wash- ington to Eamilton, 12 March 1783. Hamilton, i., 343. # Gates to Armstrong, 22 June, 1783. 1| Journal of Congress, iv., 208. 72 THE CONFEDERATIOX. e. i. ; ch. vi. peace returns to bless — whom ? A country willing to redress your wrongs, cherish your worth, and reward your services ? Or is it rather a country that tramples upon your rights, dis- dains your cries, and insults your distresses ? Have you not lately, in the meek language of humble petitioners, begged from the justice of congress what you could no longer expect from their favor ? How have you been answered ? Let the letter which you are called to consider to-morrow make reply ! " If this be your treatment while the swords you wear are necessary for the defence of America, what have you to ex- pect when those very swords, the instruments and companions of your glory, shall be taken from your sides, and no mark of military distinction left but your wants, infirmities, and scars? If you have sense enough to discover and spirit to oppose tyranny, whatever garb it may assume, awake to your situation. If the present moment be lost, your threats hereafter will be as empty as your entreaties now. Appeal from the justice to the fears of government ; and suspect the man " — here "Wash- ington was pointed at — "who would advise to longer forbear- ance." * A copy of the address reached Washington on Tuesday, the eleventh, and the meeting was to take j)lace in the evening of that very day. Resolutions dictated by passion and tending to anarchy, if once adopted, could never be effaced, and might bring ruin on the army and the nation. There was need of instant action, " to arrest the feet that stood wavering on a precipice." f To change ill-considered menaces into a legal presentment of grievances, the commander, in general orders, disapproved the anonymous and irregular invitation to a meet- ing, and at the same time requested all the highest officers and a representation of the rest to assemble at twelve o'clock on the next Saturday to hear the report of the committee which they had sent to congress. " After mature deliberation, they will devise what further measures ought to be adopted to attain the just and important object in view. The senior officer in rank present wiU preside and report the result of their delib- erations to the commander-in-chief." Gates quailed, and the * Journal of Congress, iv., 208. f Washington to Hamilton, 12 March 1783. Hamilton, i., 344. 1783. THE AMERICAN" ARMY AND ITS CHIEF. 73 gathering for that evening was given up ; but under his eye Armstrong prepared a second anonymous address, which, while it professed to consider the general orders of Washington " as giving stability to their resolves," recommended " suspicion " as their ''sentinel." During the week, Washington employed himself, with Knox and others whom he could trust, in pre- paring methods to avert every fatal consequence. At noon on the fifteenth the officers assembled, with Gates in the chair. They were sui^prised to find that the commander- in-chief was with them. Every eye was fixed on him ; and all were mute, awaiting his words.* After an apology to his " brother officers " for his pres- ence, he read his analysis of the anonymous addresses. Their author he praised for his rhetorical skill, but denied the recti- tude of his heart, and denounced his scheme as fit to proceed from no one but a British emissary. He thus continued : " As I was among the first who embarked in the cause of our common country ; as I have never left your side one mo- ment, but when called from you on public duty ; as I have been the constant companion and witness of your distresses, it can scarcely be supposed that I am indifferent to your inter- ests." He proceeded to demonstrate that any attempt to com- pel an instant compliance with their demands would certainly remove to a still greater distance the o-ttainment of their ends. They must place their reliance on the plighted faith of their country and the purity of the intentions of congress to render them ample justice, though its deliberations, from the difficulty of reconciling different interests, might be slow. " For myself," he said, " so far as may be done consistently with the great duty T owe my country and those powers we are bound to respect, you may command my services to the utmost extent of my abilities. "While I give you these assurances, let me entreat you, gentlemen, on your part, not to take any measures which, in the calm light of reason, will lessen the dignity and sully the glory you have hitherto maintained. Let me conjure you in the name of our common country, as you value your own sacred honor, as you respect the rights of humanity, and as you regard * Shaw to Rev. John Eliot, 21 April 1783. 74 THE CONFEDEKATION. b. i. ; on. vi, tlie military and national character of America, to express your utmost horror and detestation of the man who wickedly at- tempts to open the floodgates of civil discord and deluge our rising empire in blood. '^Bj thus determining and thus acting, you will pursue the plain and direct road to the attainment of your wishes ; you will give one more proof of unexampled patriotism and patient virtue, rising superior to the pressure of the most com- plicated suiferings ; and you will afford occasion for posterity to say : ' Had this day been wanting, the world had never seen the last stage of perfection to which human nature is capable of attaining.' " On concluding his address, the general, in further proof of the good disposition of congress, began to read parts of a let- ter from a member of that body ; but, after getting through a single paragraph, he paused, and asked leave of his audience to put on spectacles, which he had so lately received * that he had never yet worn them in public, f saying : " I have grown gray in your service, and now find myself growing blind." These unaffected words touched every heart. The letter, which was from Joseph Jones of King George county in Virginia, set forth the embarrassments of congress and their resolve that the army should at all events be justly dealt with. Washington then withdrew. Officers, who a few hours before had yielded themselves to the anonymous addresses, veered about, and would now follow no counsellor but their own commander. The assembly unani- mously thanked him for his communications and assured him of their affection, " with the greatest sincerity of which the human heart is capable." Then, after a reference to Knox, Brooks, and Howard as their committee, they resolved unani- mously : " At the commencement of the present war, the offi- cers of the American army engaged in the service of their country from the purest love and attachment to the rights and liberties of human nature, which motives still exist in the high- * From Rittenhouse. Waslimgtoii to Rittenhouse, 16 February 1783 ; Memoirs of Puttenhouse, 299, 300. f " C'etoit la premiere fois qu'il les prenoit en publique." Mazzei, RechercheB, iv., 122. 1783. THE AMERICAN ARMY AND ITS CHIEF. 75 est degree ; and no circumstances of distress or danger shall in- duce a conduct that may tend to sully the reputation and glory which they have acquired at the price of their blood and eight years' faithful services." Making no demands and confining their expectations within the most reasonable limits, they de- clared their unshaken confidence in the justice of congress and their country, and they asked nothing of their chief but to urge congress to a speedy decision upon their late memorial. Another resolution declared "that the officers of the American army view with abhorrence and reject with disdain the infamous propositions contained in a late anonymous ad- dress to them." Gates meekly put the question, and was obliged to report that it was carried unanimously. 'No one ever ruled the hearts of his officers like T^ashing- ton. The army of America had seen him calm and command- ing in the rage of battle ; patient and persistent under multi- plied misfortunes ; moderate in victory ; but then he had been countenanced by his troops and his friends; here he stood alone, amid injured men of inflamed passions, with swords at their sides, persuaded that forbearance would be their ruin, and, for a fearful moment, looking upon him as their adver- sary. As he spoke, every cloud was scattered, and the full light of love of country broke forth. Happy for America that she had a patriot army ; happy for America and for the v/orld that that army had Washington for its chief ! The official narrative of these events was received in con- gress on the twenty-second, and, before the day came to an end, nine states concurred in a resolution'^ commuting the half-pay promised to the officers into a sum equal to five years' full pay, to be discharged by certificates bearing inter- est at six per cent. Georgia and Rhode Island were not ade- quately represented ; l^ew Hampshire and J^ew Jersey voted in the negative ; all the other states irrevocably pledged the United States to redeem their promise made to the officers in the dark hours of their encampment at Yalley Forge. On the next day a ship dispatched from Cadiz by d'Es- taing, at the instance of Lafayette, brought authentic news that the American and British commissioners had signed defini- * Bland to Wasliington, 22 March IVSS. MS. 76 THE CONFEDERATION". b.i.;ch.vi. lively a provisional treaty, of wliicli an official copy had been received eleven days before, and that peace with Great Brit- ain had already taken effect. The American boundaries on the northwest exceeded alike the demands and the hopes of congress, and it was already believed that a later generation would make its way to the Pacific ocean.* The glad tidings drew from "Washington tears of joy in that "happiest moment of his life." "All the world is touched by his republican virtues," wrote Luzerne. " It will be in vain for him to wish to hide himseK and live as a sim- ple, private man ; he will always be the first citizen of the United States." f All the while no one like him had pursued with single-mindedness and perseverance and constant activity the great object of creating a republican government for the continent. To Hamilton he wrote on the last day of March 1783 : " I rejoice most exceedingly that there is an end to our warfare, and that such a field is opening to our view, as will with wisdom to direct the cultivation of it, make us a great, a respectable, and happy people ; but it must be improved by other means than state politics, and unreasonable jealousies and prejudices, or it requires not the second sight to see that we shall be instruments in the hands of our enemies and those European powers who may be jealous of our greatness in union, to dissolve the confederation. But to obtain this, although the way seems extremely plain, is not so easy. " My wish to see the union of these states established upon liberal and permanent principles, and incHnation to contribute my mite in pointing out the defects of the present constitu- tion, are equally great. All my private letters have teemed with these sentiments, and, whenever this topic has been the subject of conversation, I have endeavored to diffuse and en- force them. "No man in the United States is or can be more deeply impressed with the necessity of a reform in our present confederation than myself. No man, perhaps, has felt the bad effects of it more sensibly; for to the defects thereof, and want of power in congress, may justly be ascribed the pro- longation of the war and consequently the expenses occasioned * Luzerne to Vergenncs, 19 March 1*783. MS. f Luzerne to Vergennes, 29 March 1783. 1783. THE AMEEICAN ARMY AND ITS CHIEF. 77 by it. More tliaii half tlie perplexities I have experienced in the course of my command, and almost the whole of the dif- ficulties and distress of the army, have had their origin here. But still, the prejudices of some, the designs of others, and the mere machinery of the majority, make address and man- agement necessary to give weight to opinions which are to combat the doctrines of those diiferent classes of men in the field of politics." * Upon official information from Franklin and Adams, con- gress on the eleventh of April made proclamation for the ces- sation of hostilities. In announcing the great event to the army, Washington did especial honor to the men who had enlisted for the w^r, and added : " Happy, thrice happy shall they be pronounced hereafter who have contributed anything in erecting this stupendous fabric of freedom and empire; who have assisted in protecting the rights of human nature, and establishing an asylum for the poor and oppressed of all nations and religions." f The proclamation of congress that war was at an end was pubHshed to the army on the nine- teenth, exactly eight years from the day when the embattled farmers of Concord " fired the shot heard round the world." *Sparks'3 Washington, viii., 409, 410, 411. Washington to Hamilton, 31 March 1783. f Sparks, viii., 5G8. 78 THE CONFEDERATION. b. i. ; oh. vii. CHAPTER YII. DISBANDmG THE AEMY. Maech-July 1Y83. Washington presented the rightful claims of the " patriot army"* with a warmth and energy which never but this once appear in his commimications to congress ; and his words gained intenser power from his disinterestedness. To a com- mittee on which were Bland and Hamilton, he enforced, by every consideration of gratitude, justice, honor, and national pride, the " universal " expectations of the army, that, before their disbanding, they should receive pay for at least one month in hand, with an absolute assurance in a short time of pay for two months more. " The financier will take his own measures, but this sum must be procured. The soldier is will- ing to risk the hard-earned remainder due him for four, five, perhaps six years upon the same basis of security with the general mass of other public creditors." f " The expectations of the army," answered Hamilton, " are moderation itself." :j: But, after a week's reflection, Morris, who had already written to congress " our public credit is gone," * replied to the committee that the amount of three months' pay was more than all the receipts from all the states since 1781 ; that there was no resource but the issue of paper notes in anticipation of revenue. || * Washington to congress, 18 March 1783. Sparks, viii., 396-399. f Washington to Bland, 4 April 1783. X Hamilton to Washington, 11 April 1VS3. Letters to Washington, iv., 17. * Diplomatic Correspondence, xii., 342. I R. Morris to Hamilton, 14 April 1783. Diplomatic Correspondence, xii., 346. 1783. DISBANDING THE AKMY. 79 A sharp admonition from Yergennes to tlie United States speedily to meet their engagements in France and Holland,* and the representations of Washington, quickened the deter- mination of congress. In preparing the plan for a revenue, Madison was assisted by Jefferson, who passed a large part of the winter in Philadelphia. The national debt of Great Britain at the beginning of the war with America amounted to one hundred and thirty-six millions of pounds ; at the close of it, inclading deficiencies that were still to be funded, it amounted to twice that sum. The debt of the United States did not much exceed forty-two millions of dollars ; the annual interest on that debt was not far from two and a half millions, and to fund it successfully there was need of a yearly revenue of at least that sum. One million was hoped for from specific duties on enumerated im- ports, and a duty of five per cent on the value of all others. A million and a half dollars more were to be raised by requisi- tions of congress, apportioned on the states according to popu- lation. This more convenient method had hitherto failed from conflicts on the rule for counting slaves. The South had in- sisted on the ratio of two for one freeman. "Williamson of North Carolina said: "I am principled against slavery. I think slaves an incumbrance to society instead of increasing its ability to pay taxes." f To effect an agreement, Madison, seconded by John Rutledge, offered that slaves should be rated as five to three, and this compromise, which then affected taxation only and not representation, was accepted almost with unanimity. ;[: In the beginning of April, Hamilton had declared in con- gress that he wished to strengthen the federal constitution through a general convention, and should soon, in pursuance of instructions from his constituents, propose a plan for that purpose. * In the mean time, he remained inflexible in the opinion that an attempt to obtain revenue by an application^ to the several states would be futile, because an agreement could never be arrived at through partial deliberations. The * Luzerne to R. Morris, 15 March ITSS. Diplomatic Correspondence, xi., 157, 158. f Gilpin, 423 ; Elliot, 79. X Gilpin, 423, 424 ; Elliot, 79. * Gilpin, 429, 430; Elliot, 81. 80 THE COXFEDERATIOK b. i. ; ch. vn. vote on the report of tlie new financial measure, which he op- posed as inadequate, was taken on the eighteenth of April. Georgia alone was absent ; eleven states were fully represented ; New Hampshire by a single delegate. Hamilton and the two representatives of Ehode Island, alone and for the most oppo- site reasons, gave their votes in the negative. !New York being divided, nine states and a half against one, twenty-five delegates against three, recorded their votes for the adoption of tlie report. To the relentless exigencies of the moment the financial proposition of the eighteenth of April offered no relief, nor could it take effect until it should be accepted by every one of the thirteen states. To win this unanimous assent, congress, in the words of Madison, enforced the peculiar nature of their obligations to France, to members of the republic of Holland, and to the army. Moreover, " the citizens of the United States are responsible for the greatest trust ever confided to a politi- cal society. If justice, good faith, honor, gratitude, and all the other qualities which ennoble the character of a nation and fulfil the ends of government, be the fruits of our unadulter- ated forms of republican government, the cause of liberty will acquire a dignity and lustre which it has never yet enjoyed ; and an example will be set which cannot but have the most favorable influence on the rights of mankind." !Mew York, North and South Carolina, and Massachusetts were following the example of Virginia, and repealing their revenue acts of former years ; when the address went forth, accompanied by the letter of congress to the governor of Rhode Island which Hamilton had drafted, and by various papers showing the amount and the character of the debt of the United States. Then, on the twenty-eighth, and so far as the records show never tiU then, congress appointed a committee on the New York resolutions of the preceding July in favor of a general convention. Its choice fell on Ellsworth, Carroll, Wilson, Gorham, Hamilton, Peters, McHenry, Izard, and Duane."^ * Madison, on whom we depend for a report of the delDates of congress of that period, was absent from Saturday, April the twenty-sixth, to Tuesday, May sixth. So details are wanting. That Clinton's letter and the New York resolutions were committed on the twenty-eighth of April, we know from a MS. memorandum by Charles Thomson. 1783. DISBANDING THE ARMY. 81 In October 1780, congress provided for forming new states out of the nortli-western territory.* A most elaborate report, read in November 1781, recommended that the lands for set- tlements " should be laid out into townships of about six miles square." f Early in 1783 Kufus Putnam, with other officers and soldiers of the army in 'New England, engaged heartily in a plan to form a state westward of the Ohio, and Timothy Pickering, who had framed a complete plan for settling lands in Ohio, proposed to them that " the total exclusion of slavery from the state should form an essential and irrevocable part of the constitution." J To " unite the thirteen states in one great political interest," Bland, a man of culture, who had served with credit as a colonel of dragoons, and had been a member of congress from Virginia since 1780, now, on the fifth of June 1783, brought forward an " ordinance " to accept conditionally the cession of Virginia, divide it into districts of two degrees of latitude by three degrees of longitude, and subdivide each district into townships of a fixed number of miles square ; each district to be received into the union as a " sovereign " state, so soon as it could count twenty thousand inhabitants. In these embryo states, every one who had enlisted for the war or had served for three years was to receive the bounty lands promised him, and thirty acres more for each dollar due to him from the United States. One tenth part of the soil was to be reserved for " the payment of the civil list of the United States, the erecting of frontier posts, and the founding of seminaries of learning ; the surplus to be appropriated to the building and equipping a navy, and to no other purpose what- ever." This pioneer ordinance for colonizing the territory north-west of the Ohio was seconded by Hamilton, and referred to a grand committee.* From the moment when it became ofiicially known that a * Laws relating to Public Lands, 338 ; Journals of Congress, iii., 535. f Endorsement on the original report in the state department is : " Read in congress 3 November 17S1." X Pickering's Pickering, i., 546. ^ Papers of Old Congress, xxxvi. MS. The ordinance is in the handwriting of Theodorick Bland, and indorsed by Charles Thomson : " Motion of Mr. Bland seconded by Mr. Hamilton. June 5, 1783. Referred to the grand committee of 30 May 1'783." VOL. VI. — 6 82 TEE CONFEDERATION. b.i.;oh.vii. preliminary treaty of peace had been concluded, Robert Morris persistently demanded the immediate discharge of the army.* The city of New York and the interior posts being still in British hands, his importunity was resisted by Gorham and Hamilton, and disapproved by the secretary of foreign affairs ; but the public penury overcame all scruples. As the time drew near for the officers to pass from military service to civil life, they recalled the example of the Roman Cincinnatus, and, adopting his name, formed themselves into " one society of friends," to perpetuate " the spint of brotherly kindness " and to help officers and their families in their times of need. An immutable attachment to the rights and liberties of human nature was made the law of conduct for members, to whatever nation they might belong ; and those who were Americans pledged to each other their " unalterable determi- nation to promote and cherish union between the states." f By one grave error, which called forth from many sides in Ameri- ca and in Europe the severest censure, membership was made hereditary in their eldest male posterity. The commander-in- chief, who had no offspring, refused to separate himseK from his faithful associates in the war ; but by his influence the soci- ety at its first general meeting in May 1784 proposed to its branches in the states to expunge from its constitution the clauses which had excited alarm and just complaint. The general order of the second day of June published the resolve of congress that the men engaged for the war, with a proper proportion of officers, were immediately to receive fur- loughs, on the reverse of which was their discharge, to take effect on the definitive treaty of peace. Washington felt the keenest sensibility at their distresses ; :j: but he had exhausted all his influence. The army, for three months' pay, received only notes exactly " like other notes issued from the office of finance." * These were nominally due in six months to the bearer, with six per cent interest till paid. Their value in the * Diary of Morris in Dip. Cor., xii., 36Y, note. f Sparks, ix., 23, note. :j: Washington to Heath, 6 June 1783. Sparks, viii., 435. * Washington to Bland, 4 April 1Y83 ; Journals of Congress, for July 9 and following days, iv., 237, 238 ; Morris to congress, 18 July 1783, Dip. Cor., xii., 376, 880-386 and 387-389, and other letters. 1783. DISBANDING THE ARMY. 83 market was two shillings or two and sixpence for tv/enty shil- lings.* The veterans were enthusiasts for liberty, and there- fore, with the consciousness of having done their duty to their native land and to mankind, they, in perfect good order, bear- ing with them their arms as memorials of their service, retired to their homes "mthout a settlement of their accounts, and without a farthing of money in their pockets." f The events of the last four months called into full action the powers and emotions of Washington. "State politics," said he, " interfere too much with the more liberal and exten- sive plan of government which wisdom and foresight would dictate. The honor, power, and true interest of this country must be measured by a continental scale. To form a new con- stitution that will give consistency, stability, and dignity to the union and sufficient powers to the great council of the nation for general purposes, is a duty incumbent upon every man who wishes well to his country." :j: Lifted above himself, and borne on by the energy of his belief, he in Jime addressed the whole people through a last circular to the governor of every state,* for he was persuaded that immediate and extreme danger overhung the life of the union. " With this conviction of the importance of the pres- ent crisis," such are his words, " silence in me would be a crime ; I will therefore speak without disguise the language of free- dom and of sincerity. Those who differ from me in poHtical sentiment may remark that I am stepping out of the proper line of my duty ; but the rectitude of my own heart, the part I have hitherto acted, experience acquired by long and close attention to the business of that country in whose service I have spent the prime of my life and whose happiness will always constitute my own, the ardent desire I feel of enjoying in pri- vate life, after all the toils of war, the benefits of a wise and liberal government, will sooner or later convince my country- men that this address is the result of the purest intention." * Felatiali V/cbster's Political E^-says, 310 ; compare 272. f Washington to Congress, 7 and 24 June 1783. Sparks, viii., 438, 456. I Washington to Lafayette, 5 April 1783. Sparks, viii., 412. * Sparks, viii., 439. The date of the circular varies with the time of its suc- cessive emission to the several states. 84 THE CONFEDERATION-. b. i. ; en. vii. Thoughtful for the defence of the republic, the retiring commander-in-chief recommended " a proper peace establish- ment," and an absolutely imif orm organization of the " militia of the union" throughout "the continent." He pleaded for complete justice to all classes of public creditors. He entreated the legislature of each state to pension its disabled non-com- missioned officers and privates. He enforced the duty of the states, without " hesitating a single moment," to give their sanc- tion to the act of congress establishing a revenue for the United States, for the only alternative was a national bankruptcy. " Honesty," he said, " will be found on every experiment to be the best and only true policy. In what part of the con- tinent shall we find any man or body of men who would not blush to propose measures purposely calculated to rob the soldier of his stipend, and the public creditor of his due ? " He then proceeded to pronounce solemn judgment, and to summon the people of America to fulfil their duty to Provi- dence and to their fellow-men. " If a spirit of disunion, or obstinacy and perverseness, should in any of the states attempt to frustrate all the haj^py effects that might be expected to flow from the union, that state which puts itself in opposition to the aggregate wisdom of the continent will alone be responsible for all the consequences.* " The citizens of America, the sole lords and proprietors of a vast tract of continent, are now acknowledged to be pos- sessed of absolute freedom and independency. Here Heaven has crowned all its other blessings by giving a fairer opportu- nity for political happiness than any other nation has ever been favored with. The rights of mankind are better understood and more clearly defined than at any former period. The col- lected wisdom acquired through a long succession of years is laid open for our use in the establishment of our forms of government. The free cultivation of letters, the unbounded extension of commerce, the progressive refinement of man- ners, the growing liberality of sentiment, and, above all, the pure and benign light of revelation, have had a meliorating influence on mankind. At this auspicious period, the United States came into existence as a nation. * Sparks, viii., 446, 447. 1783. DISBANDING THE ARMY. 85 " Plappiness is ours if we seize the occasion and make it our own. This is the moment to give such a tone to our fed- eral government as will enable it to answer the ends of its in- stitution. According to the system of policy the states shall adopt at this moment, it is to be decided whether the revolu- tion must ultimately be considered as a blessing or a curse ; a blessing or a curse, not to the present age alone, for with our fate will the destiny of unborn millions be involved. "Essential to the existence of the United States is the friendly disposition which will forget local prejudices and policies, make mutual concessions to the general prosperity, and, in some instances, sacrifice individual advantages to the interest of the community. Liberty is the basis of the glorious fabric of our independency and national character, and who- ever would dare to sap the foundation, or overturn the struct- ure, under whatever specious pretext he may attempt it, will merit the bitterest execration and the severest punishment which can be inflicted by his injured coimtry. "It is indispensable to the happiness of the individual states that there should be lodged somewhere a supreme power to regulate and govern the general concerns of the confeder- ated republic, without which the union cannot be of long du- ration,* and everything must very rapidly tend to anarchy and confusion. Whatever measures have a tendency to dissolve the union, or to violate or lessen the sovereign authority, ought to be considered as hostile to the liberty and independence of America. It is only in our united character that we are known as an empire, that our independence is acknowledged, that our power can be regarded, or our credit supported among foreign nations. The treaties of the European powers with the United States of America will have no validity on a dis- solution of the union. We shall be left nearly in a state of nature ; or we may find by our own unhappy experience that there is a natural and necessary progression from the extreme of anarchy to the extreme of tyranny, and that arbitrary power is most easily established on the ruins of liberty abused to licentiousness." This circular letter of Washington the governors of the * Sparks, viii,, 444. 86 THE CONFEDERATIO>T. b. i. ; en. vii. states, according to liis request, communicated to their respect- ive legislatures. In this way it was borne to every home in the United States, and he entreated the people to receive it as " his legacy " on his retirement to private life. He avoided the appearance of dictating to congress how the constitution should be formed ; but, while he was careful to declare himself " no advocate for their having to do with the particular policy of any state further than it concerns the union at large," he had no reserve in avowing his " wish to see energy given to the federal constitution by a convention of the people." ''^ The newspapers of the day, as they carried the letter of Washington into every home, caught up the theme, and de- manded a revision of the constitution, ^^ not by congress, but by a continental convention, authorized for the purpose." f * Washington to Dr. William Gordon, 8 July 1783. f Among them: Philadelphia, 3 July 1783; Maryland Gazette, 11 July; Vir- ginia Gazette, 19 July. THE FOMATION OF THE CONSTITUTION OF THE UI^riTED STATES OF AMEEIOA IK FIVE BOOKS. BOOK SECOm OlSr THE WAY TO A FEDERAL CONVENTION". 1783-1787. CHAPTER L - how the land received the legacy of washington. June-December 1783. All movements conspired to form for tlie thirteen states a constitution, sooner than they dared to hope and " better than they knew." '^ The love of union and the resistance to the claims of Great Britain were the inseparable inmates of the same bosom. Brave men from different states, risking life and everything valuable in a common cause, believed by all to be most precious, were confirmed in the habit of considering America as their country and congress as their government." ^' Acting as one, they had attained independence. Moreover, it was their fixed belief that they had waged battle not for them- selves alone, but for the hopes and the rights of manlcind ; and this faith overleapt the limits of separate commonwealths with the force of a religious conviction. For eighteen years the states had watched together over their liberties ; for eight they had borne arms together to preserve them ; for more than two they had been confederates under a compact to remain united forever. The federation excelled every one that had preceded it. Inter-citizenship and mutual equahty of rights between all its members gave to it a new character and an enduring unity. The Hebrew commonwealth was intensely exclusive, both by descent and from religion ; every Greek republic grew out of families and tribes ; the word nation originally implied a com- mon ancestry. All mediaeval repubHcs, like the Roman mu- nicipalities, rested on privilege. The principle of inter-citi- * Marshall in Van Smtvoord's Chief Justices of the United States, 314, 315. 90 ON THE WAY TO A FEDERAL COXVENTIO:^'. b. ii. ; oh. i. zenship infused itself neither into tlie constitution of the old German empire, nor of Switzerland, nor of Holland. Even when the American people took up arms against Great Brit- ain, congress dehned only the membership ^ of each colony ; the articles of confederation first brought in the rule that any one might at will transfer his membership from one state to another. Of old a family, a sept, a clan, a tribe, a nation, a race, ow^ed its unity to consanguinity. Inter-citizenship now took the place of consanguinity ; the Americans became not only one people, but one nation. They had framed a union of several states in one confederacy, fortified and bound in with a further union of the inhabitants of every one of them by a mutual and reciprocally perfect naturalization. f This inter- citizenship, though only in its third year, has been so ratified by national afiections, by the national acquisition of independ- ence, by national treaties, by national interests, by national history, that the people possessing it cannot but take one step more, and from an indwelling necessity form above the states a common constitution for the w^hole. It was to a nation which had not as yet a self -existent gov- ernment, and which needed and felt the need of one, that Washington's legacy went forth. The love which was every- where cherished for him, in itself had become a bond of union. " They are compelled to await the result of his letter," re- ported Luzerne ; if " they hope more from the weight of a sin- gle citizen than from the authority of the sovereign body." Jonathan Trumbull, the venerable governor of Connecticut, in his prompt reply extolled " this last address which exhibited the foundation principles " of " an indissoluble union of the states under one federal head." * When in the next autumn this faithful war governor, after more than fifty years of ser- vice, bade farewell to public life, imitating Washington, he set forth to the legislature of Connecticut, and through them to its people, that the grant to the federal constitution of pow- ers clearly defined, ascertained, and understood, and sufficient * Journals of Congress, i., 365. f Bacon's speech for general naturalization, Spedding's Bacon's Letters and Life, iii., 319. if Luzerne to Vergcnnes, 4 August 1783. * Jonathan Trumbull to Washington, 10 June 17S3. 1783. THE LEGACY OF WASHINGTOIN'. 91 for all tli8 great purposes of union, could alone lead from tlie danger of anarchy to national happiness and glorj. ^^ In June the general assembly of Delaware complied with all parts of the recommendation of congress, coupling the im- post with the state's quota of the federal requisition.! To Washington, Nicholas Van Dyl^e, the governor, on receiving the circular, reported this proof of their zeal for establishing the credit of the union, adding : " The state which declines a similar conduct must be blind to the united interest with which that of the individual states is inseparably connected." if Pennsylvania, linking together the North and the South, never hesitated ; then and ever after, it made the reasoning and the hopefulness of Washington its own. At a festival in Philadelphia, held near the middle of July, with Dickinson, the president of the state, in the chair, the leading toast was : "New strength to the union;" and, when "Honor and im- mortality to the principles in Washington's circular letter " was proposed, the company rose twice and manifested their appro- bation by nine huzzas. A month later, Dickinson and the council of Pennsylvania sent to the general assembly the valedictory of the commander- in-chief, quoting and enforcing his words, saying: "We most earnestly recommend that the confederation be strengthened and improved. To advance the dignity of the union is the best way to advance the interest of each state. A federal su- premacy, with a competent national revenue, to govern iirmly general and relative concerns," can alone " ensure the respect, tranquillity, and safety, that are naturally attached to an exten- sive and well-established empire. All the authorities before mentioned may be vested in a federal council, not only with- out the least danger to liberty, but liberty will be thereby better secured."*^ The house on the twenty-fifth, joining together the impost and the quota of the state, unanimously ordered the grant of them both,|| and at a later session thanked Washington specially for his final "circular letter, the ines- timable legacy bequeathed to his country." * Stuart's Trumbull, G04-G08. | Tapcrg of Old Congress, Ixxr. MS. X Nicholas Van Dyke to Washington, 2 July 1783. * Colonial Records, xiii., 648, G49. |1 Papers of Old Congress, Ixxv. MS. 92 ON THE WAY TO A FEDERAL CONVENTION, b.ii.; oh.l In March, during a session of the legislature of South Carolina, Greene, who had received the suggestions of Gouv- emeur Morris, addressed a letter to the state through Guerard, the governor, representing the sufferings and mutinous temper of the army, and the need of a revenue for congress, and say- ing : " Independence can only prove a blessing under congres- sional influence. More is to be dreaded from the members of congress exercising too little than too much power. The finan- cier says his department is on the brink of ruin. To the north- ward, to the southward, the eyes of the army are turned upon the states, whose measures will determine their conduct. They will not be satisfied -svith general promises ; nothing short of perma- nent and certain revenue will keep them subject to authority." " 'No dictation by a Cromwell ! " cried impatient members who could scarcely wait to hear the conclusion of the letter. To mark independence of congress and resistance to the requi- sitions of " its swordsmen," South CaroHna revoked its grant to the United States of power to levy a five per cent duty on imports.* Greene consoled himself with the thought that " he had done his duty, and would await events ; " but he was made wiser by the rebuff. While he perceived that with- out more effectual support the power of congress must expire, he saw that the movement of soldiers without civil authority is pregnant with danger, and would naturally fall under the " direction of the Clodiuses and Catilines in America." f The appeal of congress in April exercised little counteracting in- fluence; but, when the circular of Washington arrived, the force and affection with which it was written produced an alteration of sentiment in more than one quarter of the mem- bers. " Washington was admired before ; now he vs^as little less than adored." J The continental impost act was adopted, though not without a clause reserving the collection of the duties to the officers of the state, and appropriating them to the payment of the federal quota of South Carolina.* * Johnson's Life of Greene, ii., 387, 888. f Greene to G. Morris, 3 April 1783. Sparks' Life of G. Morris, i., 251, 252. :j: Greene to Washington, 8 August 1783. Letters to "Washington, iv., 38. * Statute No. 1,190, passed 13 August 1783, in Statutes at Large of South Carolina, iv., 570. 1783. THE LEGACY OF WASHINGTON. 93 In October, Clinton, the governor of New York, responded to WasHngton : " Unless tlie powers of the national council are enlarged, and that body better supported than at present, all its measures will discover such feebleness and want of energy as will stain us with disgrace and expose us to the worst of evils." * And in the following January, holding up to the legislature the last circular of the commander-in-chief, he charged them to " be attentive to every measure which has a tendency to cement the union and to give to the national councils that energy which may be necessary for the general welfare." f The circular reached Massachusetts just when the legisla- ture was complaining of the half-pay and of excessively large salaries to civil officers. The senate and the house dispatched a most affectionate joint address to "Washington, attributing to the guidance of an all-wise Providence his selection as com- mander-in-chief, adding: "While patriots shall not cease to applaud your sacred attachment to the rights of citizens, your military virtue and achievements will make the brightest pages in the history of mankind." J To congress the legislature gave assurances that ^4t could not without horror entertain the most distant idea of the dissolution of the union ; " though "the extraordinary grants of congress to civil and military officers had produced in the commonwealth effects of a threat- ening aspect." * John Hancock, the popular governor, com- mending Washington's circular, looked to him as the states- man " of wisdom and experience," teaching them how to im- prove to the happiest purposes the advantages gained by arms. As president of the senate, Samuel Adams officially signed the remonstrance of Massachusetts against half -pay ; as a citi- zen, he frankly and boldly, in his own state and in Connecti- cut, defended the advice of Washington: "In resisting en- croachments on our rights, an army became necessary. Con- gress were and ought to be the sole judge of the means of supporting that army ; they had an undoubted right in the very nature of their appointment to make the grant of haK * Clinton to Washington, 14 October 1*783. Letters to Washington, iv., 48. f Speech to the legislature, 21 January 1784. X Boston Gazette, 22 August 1783. « Journals of Congress, iv., 27G 94 ON THE WAY TO A FEDERAL CONVENTION, b. ii. ; ch. i. pay ; and, as it was made in belialf of the United States, each state is bound in justice to comply with it, even though it should seem to them to have been an ill-judged measure. States as well as individual persons are equally bound to fulfil their engagements, and it is one part of the description given to us in the sacred scriptures of an honest man, that, though * he sweareth to his own hurt, he changeth not.' " * In like spirit congress replied to the protest against half- pay. " The measure was the result of a deliberate judgment framed on a general view of the interests of the union, and pledged the national faith to carry it into effect. If a state every way so important as Massachusetts should withhold her solid support to constitutional measures of the confederacy, the result must be a dissolution of the union ; and then she must hold herself as alone responsible for the anarchy and domestic confusion that may succeed." f At the opening of the autumn session, Hancock, recalling the attention of the legislature to the words of Washington, said : '' How to strengthen and improve this union, so as to render it more completely adequate, demands the immediate attention of these states. Our very existence as a free nation is suspended upon it." :j: On the ninth of October he cited to the general court ex- tracts of letters from John Adams confirming the sentiments of Washington. J^ear forty towns in the state had instructed their representatives against granting the impost recommended by congress. And yet it was carried in the house by seventy- two against sixty-five ; a proviso that it should not be used to discharge half -pay or its commutation was rejected by a ma- jority of ten ; and the bill passed the senate almost unani- mously.'* Some of the towns still murmured, but Boston in * Samuel Adams to a friend in Connecticut. Boston, 25 September 1*783. Same to Noah Webster, 30 April 1V84. MS. f Journals of Congress, iv,, 277, 278. Congress, on which "Washington was then in attendance, would surely have consulted him on the half-pay of which he was the author. The original papers prove that the congressional reply to Massa- chusetts was prepared after much consultation, and here and there show traces of his mind. j;. Salem Gazette of 2 October 1783. * Samuel Cooper to Franklin, 16 October 1783. Works of Franklin, x., 25. Salem Gazette, 30 October 1783. 1783. THE LEGACY OF WASHINGTON. 95 town-meeting answered : *^ The commutation is wisely blended with the national debt. With respect to the impost, if we ever mean to be a nation, we must give power to congress, and funds, too." But AYashington's letter achieved its greatest victory in his own state. Mercer had said in congress that, sooner than re- instate the impost, he would " crawl to Kichmond on his bare knees." * The legislature, which was in session when the com- munication from congress arrived, ordered a bill to grant the impost. Jefferson was hoping that Henry would speak for the grant, but he remained mute in his place, j- Richard Henry Lee and Thurston spoke of congress as " lusting for power." The extent of the implied powers which Hamilton had as- serted in the letter of congress to Rhode Island was " repro- bated as alarming and of dangerous tendency ; " :j: and on the eleventh of June the proposition of congress was pronounced to be inadmissible, because the revenue-officers were not to be amenable to the commonwealth ; because the power of collect- ing a revenue by penal laws could not be delegated without danger ; and because the moneys to be raised from citizens of Yirginia were to go into the general treasury. So the propo- sition of congress was left without any support. Yirginia, to discharge her continental debt, preferred to establish a custom- house of her o^vn, appropriating its income to congress for five-and-twenty years, and making good the deficiency by taxes on land, negroes, and polls. "The state," said Arthur Lee, " is resolved not to suffer the exercise of any foreign power or influence within it." * But, when the words of Washington were read, the house gave leave to the advocates for a conti- nental impost to provide for it by a bill which v/as to have its first reading at the opening of the next session. These events did but render Richard Henry Lee more ob- durate. Placing himself directly in the way of Washington and Madison, he wrote to a friend at the North : " The late * Jladison to Randolph, 18 February 1783. Gilpin, 506. f Jefferson to Madison, 7 May, 1 Juno, 17 June 1783. :}: Joseph Jones of King George to Madison, 14 June 1783, MS. ; in part in Kivcs's Madison, i., 436. * Arthur Lee to Thcodorick Bland, 13 June 1783. Bland Papers, ii., 110. 96 ON THE WAY TO A FEDERAL CONVENTION", b. ii. ; ch. i. address of congress to the states on the impost I think a too early and too strong attempt to overleap those fences estab- lished by the confederation to secure the liberties of the re- spective states. Give the purse to an aristocratic assembly, the sword will follow, and liberty become an empty name. As for increasing the power of congress, I would answer as the discerning men of old, with the change of a word only : ^ ]N"o- lumus leges confederationis mutari — we forbid change in the laws of the confederation.' " ^ But, in the time afforded for reflection, Washington's valedictory letter, which Jefferson de- scribes as " deservedly applauded by the world," f gained more and more power ; at the adjourned session, the legislature of Virginia, with absolute unanimity, reversed its decision and granted by law the continental impost, if " Everything will come right at last," said Washington, as he heard the gladden- ing news.* "ISTever," said George Mason, "have I heard one single man deny the necessity and propriety of the union. 'No ob- ject can be lost when the mind of every man in the country is strongly attached to it." || " I do not believe," witnesses Jefferson, " there has ever been a moment when a single whig in any one state would not have shuddered at the very idea of a separation of their state from the confederacy." '^ A propo- sition had been made in June to revoke the release to the United States of the territory north-west of the river Ohio. Patrick Henry was for bounding the state reasonably enough, but, instead of ceding the parts lopped off, he was for forming them into small republics () under the direction of Yirginia. I^evertheless, the legislature, guided by the sincerity and per- severance of Joseph Jones of King George county, conformed to the wishes of congress, and, on the nineteenth and twentieth of December, cheerfully amended and confirmed their former cession. J The last legislature to address Washington in his j)iiblic * R. n. Lee to William AYhipple, 1 July llSS, f Jefferson's Works, ix., 266. :j: Hening, xi., 313. * Sparks, ix., 5. I George Mason in the Virginia Convention, 11 June 1788. ^ Jefferson, ix., 251. ^ Jefferson to ^^ladison, 11 June 1783. 4; Journals of House of Delegates, 71, 79. 1783. THE LEGACY OF WASHINGTON. 97 character was Maryland, and thej said : " By your letter you have taught us how to value, preserve, and improve that liberty which your services under the smiles of Providence have secured. If the powers given to congress by the con- federation should be found incompetent to the purposes of the union, our constituents will readily consent to enlarge them."'^ On the part of congress, its president, Elias Eoudinot of New Jersey, transmitted to the ministers of America in Europe the circular letter of Washington as the most perfect evidence of " his inimitable character." f Before the end of June, raw recruits of the Pennsylvania line, in the barracks at Philadelphia, many of them foreign born, joined by others from Lancaster, :[: " soldiers of a day, who could have very few hardships to complain of," * with some returning veterans whom they forced into their ranks, | en- couraged by no officer of note, "^ surrounding congress ^ and the council of Pennsylvania, mutinously presented to them demands for pay. Congress insisted with the state authorities that the militia should be called out to restore order, and, the request being refused, J it adjourned to Princeton. On the rumor that the commander-in-chief was sending troops to quell the mutiny, the insurgents, about three hundred in number, made their submission to the president of the state. ^ The incident hastened the selection of a place for the per- manent residence of congress. The articles of confederation left congress free to meet where it would. With the knowl- edge of the treaty of peace, the idea naturally arose of a fede- ral town, and for its site there were many competitors. Of the thirteen states which at that time fringed the Atlantic, the central point was in Maryland or Yirginia. In March 1783, ISTew York tendered Kingston ; in May, Maryland urged the choice of Annapolis ; in June, New Jersey offered a district below the falls of the Delaware. Yirginia, having George- * Address of the Maryland legislature, 22 December 1'783. MS. f Diplomatic Correspondence, IVSS-IYSO, i., 14. X Ibid., i., 9. * Sparks, viii., 455. I Diplomatic Correspondence, 1783-1789, i., 10, 22, 23; Hamilton, i., 387. ^ Diplomatic Correspondence, ii., 514 ; i., 37, 50. ^ Gilpin, 548 ; Colonial Records, xiii., 655. ^ Hamilton, ii., 276. ^ Diplomatic Correspondence, i., 12. TOL. TI. — 7 98 ON THE WAY TO A FEDERAL CONVENTION, b. ii. ; oh. i. town for its object,* invited Maryland to join in a cession of equal portions of territory lying together on the Potomac; leaving congress to fix its residence on either side, f During the summer, congress appointed a committee to consider what jurisdiction it should exercise in its abiding- place. Madison took counsel witli Randolph, and especially with Jefferson ; J and in September the committee of which he was a member reported that the state ceding the territory must give up all jurisdiction over it ; the inhabitants were to be assured of a government of laws made by representatives of their own election.* In October, congress took up the ques- tion of its permanent residence. || Gerry struggled hard for the district on the Potomac ; but, by the vote of Delaware and all the northern states, "a place on the Delaware near the falls " was selected. Within a few days the fear of an over- powering influence of the middle states led to what was called "the happy coalition ;" on the seventeenth Gerry insisted that the alternate residence of congress in two places would secure the mutual confidence and affections of the states and preserve the federal balance of power. After a debate of several days, 'New England, with Maryland, Virginia, and the two Carolinas, decided that congress should reside for equal periods on the Delaware and near the lower falls of the Potomac. Till build- ings for its use should be erected, it was to meet alternately in Annapolis and Trenton."^ To carry out the engagement, a committee, of which James Monroe was a member, made an excursion from Annapolis in the following May to view the country round Georgetown ; and they reported in favor of the position on which the city of Washington now stands. () The farewell circular letter of Washington addressed to all Ills countrymen had attracted the attention of congress, and in particular of Hamilton, who roused himself from his own * Madison to Randolph, 13 October 1VS3. Gilpin, 578. f Journals of the Virginia House of Dslep;ate3, 23 June 17S3, p. 97. t Madison to Jefferson, 20 September 17S3. Gilpin, 573. ** Gilpin, 559, 571-575. I Madison to Randolph, 13 October 17S3. Gilpin, 57G. ^ Iligginson to Bland, January 1784. Bland Papers, ii., 113, 114. Compare Boudinot to R. R. Livingston, 23 October 1783. ^ Monroe to Jefferson, 20 May and 25 May 1784. 1783. THE LEGACY OF WASHINGTOK 99 desponding mood wlien lie saw the great chieftain go forth alone to combat " the epidemic phrenzy " * of the supreme sovereignty of the separate states. During the time of dis- turbances in the army, " could force have availed, he had almost wished to see it employed." f Knowing nothing before- hand of Washington's intention to address the people, he had favored some combined action of congress and the general to compel the states forthwith to choose between national anarchy and a consolidated union.:]: ISTo sooner had congress established itself in Princeton* than the youthful statesman drafted a most elaborate and comprehensive series of resolutions embody- ing in clear and definite language the defects in the confedera- tion as a form of federal government; and closing with an earnest recommendation to the several states to appoint a con- vention to meet at a fixed time and place, w^ith full powers to revise the confederation, and adopt and propose such altera- tions as to them should appear necessary; to be finally ap- proved or rejected by the states respectively. But in the congress of that day he found httle disposition to second an immediate effort for a new constitution. Of the committee elected on the twenty- eighth of April, which counted among its members the great names of Ellsworth, Wilson, and Hamilton, Wilson and two others had gone home ; Ellsworth followed in the first half of July, but not till he had announced to the governor of Connecticut : " It will soon be of very little consequence where congress go, if they are not made respectable as well as responsible ; which can never be done without giving them a power to perform engagements as well as make them. / There must be a revenue somehow estab- lished that can be relied on and applied for national purposes, independent of the will of a single state, or it will be impossi- ble to support national faith, or national existence. \ The powers of congress must be adequate to the purposes of their constitution. It is possible there may be abuses and misappli- cations ; still it is better to hazard something than to hazard * Hamilton, i., 403. f Ibid., i., 352. t I^i^^M i-, 402. * Hamilton's endorsement on his own paper is : *' Resolutions intended to bo submitted to congress at Princeton in 1783, but abandoned for want of support." MS. 100 OIT THE WAY TO A FEDEKAL CONVENTION, b. ii. ; en. i. all." ^^ ISTearl J at the same moment Hamilton wrote to Greene : " There is so little disposition, either in or ont of con- gress, to give solidity to onr national system, that there is no motive to a man to lose his time in the public service who has no other view than to promote its welfare. Experience must convince us that our present establishments are Utopian before we shall be ready to part with them for better." To Jay his words were : " It is to be hoped that, when prejudice and folly have run themselves out of breath, we may return to reason and correct our errors." f Confirmed in " his ill forebodings as to the future system of the country," :[: " he abandoned his resolutions for the want of support." In congress, which he left near the end of July, three months before the period for which he was chosen expired, we know through an ardent friend that " his homilies were recol- lected with pleasure ; " that his extreme zeal made impressions in favor of his integrity, honor, and republican principles ; that he had displayed various knowledge, had been sometimes in- temperate and sometimes, though rarely, visionary ; that cau- tious statesmen thought, if he could pursue an object with as much cold perseverance as he could defend it with ardor and argument, he would prove irresistible.* From the goodness of his heart, his pride, and his sense of duty, he gave up " future views of public life," || to toil for the support of his wife and children in a profession of which to him the labors were alike engrossing and irksome.''" In four successive years, vdth few to heed him, he had written and spoken for a constituent federal convention. His last ofiicial word to Clinton was : " Strengthen the confederation." ^ On the second of September, more than a month after Hamilton had withdrawn, the remnant of the committee of the twenty-eighth of April, increased by Samuel Huntington, of Connecticut, reported that " until the effect of the resolu- * Ellsworth, infra, 824. f Johnson, ii., 442. Jay's Jay, ii., 123. X Hamilton, !., 352. * McHenry to Hamilton, 22 October ITSS. Hamilton, i., 411. II Hamilton to Clinton, 14 May 1783. Hamilton, i., 368. ^ That Hamilton disliked the labors of a lawyer, I received from Eliphalet Nott. ^ Hamilton to Clinton, 3 October 1783. Hamilton, i,, 407. 1783. XnE LEGACY OF WASHINGTON. IQl ticn of congress, of April last, relating to revenue, should be known, it would be proper to postpone the further considera- tion of the concurrent resolutions of the senate and assembly of JSTew York." '^' In this way the first proposition by a state for reforming the government through a federal convention was put to sleep. All this while the British commander was preparing for the evacuation of New York. The malignant cruelty of royal- ists, especially in New York and South Carolina, who prompted and loved to execute the ruthless orders of Germain, aroused against them, as had been foretold, a just indignation, which unhappily extended to thousands of families in the United States who had taken no part in the excesses. Toward these "Washington and Adams, Jay and Hamilton, and Jejfferson who was especially called " their protector and support," f and many of the best counselled forbearance and forgiveness. Mo- tives of policy urged their absorption into the population of the union now that the sovereign to whom they had continued their allegiance had given them their release. But a dread of their political influence prevailed, and before the end of 1783 thousands of loyalists, famiKes of superior culture, like the original planters of Massachusetts, were driven to seek homes in the wilds of Nova Scotia. :j: In this way the United States out of their own children built up on their border a colony of rivals in navigation and the fishery whose loyalty to the British cro^vn was sanctified by misfortunes. Nor did the British parliament hesitate for a moment to compensate all refugees for the confiscation of their property, and, when the amount was ascertained, it voted them from the British treasury as an indemnity very nearly fifteen and a half millions of dollars.* The American army being nearly disbanded, Washington, on the eighteenth of July, with Governor Clinton as his com- panion, made an excursion into the interior, during which he personally examined the lines of water communication between branches of the Hudson and the Saint Lawrence, the lakes and the Susquehanna. By these observations, he comprehended * Report cf Peters, Mcncnr}', Iz:ird, Duane, and S. Huntingdon, of 2 Septem- ber 1 783. f Luzerne to Rayneval, of IS June 1784. MS. :}: Ilaliburton's Nova ScoLia, i., 263. * Sabine's Loyalists, 111. 102 ON THE WAY TO A FEDERAL CONVENTION, b. ii. ; en. i. more clearly "the imraense extent and importance of tlie inland navigation of the United States. I shall not rest con- tented," said he, "till I have explored the western country and traversed great part of those lines which give bounds to a new empire." * He wished at that time to visit the I^iagara ; but over the fort on the American side of that river the British flag still waved. Thrice Washington had invited the attention of con- gress to the western posts ; and he was now inctructed to demand them. He accordingly accredited Steuben to Haldi- mand, the British commander-in chief in Canada, with power to receive them. At Sorel, on the eighth of August, Steuben explained his mission to Haldimand, who answered that he had not received any orders for making the least arrangements for the evacuation of a single post; and without positive orders he would not evacuate one inch of ground, f Nor would he permit Steuben to communicate with the inhabitants of any place occupied by the British. On the seventh of August, just as Washington had re- turned from his northern tour, congress, ten states being pres- ent, unanimously voted him a statue of bronze, to be executed hj the best artist of Europe, j;. On the marble pedestal were to be represented, in low relief, the evacuation of Boston, the capture of Hessians at Trenton, the victory at Princeton, the action at Monmouth, and the surrender of Cornwallis at York- town. "The statue," wrote Luzerne, "is the only mark of public gratitude which Washington can accept, and the only one which the government in its poverty can offer." * But a greater honor awaited him. At the request of con- gress, he removed his quarters to the neighborhood of Prince- ton ; and on the twenty-sixth, in a public audience, Boudinot, the president, said to him : " In other nations many have de- served and received the thanks of the public ; but to you, sir, peculiar praise is due; your services have been essential in * Washington to Chastellux, 12 October 1783. Sparks, viii., 489. f Baron Steuben to Washington, 23 August 1783. Letters to Washington, iv., 41, 42. X Journals of Congress, iv.^ 251. It still remains to give effect to the vote. * Luzerne to Vergeanes, 25 August 1783. MS. 1783. THE LEGACY OF WASHINGTON. 103 acquiring and establishing the freedom and independence of your country. It still needs your services in forming arrange- ments for the time of peace." A committee was charged to receive his assistance in preparing and directing the necessary plans.'"* The choice of Wasliington for a counsellor proved the sin- cerity of congress in favor of union, and a series of national measures was inaugurated. For a peace establishment, he ma- tured a system which was capable of a gradual development. He would have a regular and standing force of twenty-six hun- dred and thh'ty-one men, to be employed chiefly in garrison- ing the frontier posts. Light troops he specially recommended as suited to the genius of the people. The people in all the states were to be organized and trained in arms as one grand national militia. He proposed a military academy like the Prussian schools, of which he had learned the character from Steuben. Yacancies in the class of ofiicers were to be iilled from its graduates ; but promotions were not to depend on seniority alone. For the materials essential to war, there were to be not only national arsenals but national manufactories. The protection of foreign commerce would require a navy. All branches in the service were to look exclusively to con- gress for their orders and their pay. A penniless treasury, which congress knew not how to fill, made the scheme for the moment an ideal one. To regulate intercourse with the tribes of Indians, Wash- ington laid down the outlines of a system. Outside of the limits of the states no purchase of their lands was to be made, but by the United States as '^ the sovereign power." All trad- ers with them were to be under strict control. He penetrated the sinister design of the British government to hold the west- ern posts, and recommended friendly attention to the French and other settlers at Detroit and elsewhere in the western terri- tory. Looking to " the formation of new states," he sketched the boundaries of Ohio and of Michigan, and, on his advice,t congress in October resolved on appointing a committee to re- * Journals of Congress, iv., 256. f Washington to Duanc, Y September 1783. Sparks, viii., 477. Secret Jour- nals of Congress, i., 255-260. 104 ON THE WAY TO A FEDERAL CON-YENTION. b.ii.; en. i. port a plan of a temporary government for the western terri- tory whose inhabitants were one day to be received into the nnion under republican constitutions of their own choice. Here the greatness of the intention was not impaired by the public penury, for the work was to be executed by the emi- grants themselves. In anticipation of an acceptable cession of the noi-th- western lands by all the claimant states, officers and soldiers who had a right to bounty lands began to gain the "West by way of the lakes or across the mountains.* This was the movement toward union which nothing could repress or weaken. Especially Maryland insisted that " the sovereignty over the western territory was vested in the United States as one undivided and independent nation." f Among his latest official acts, Washington interceded with congress on behalf of Kosciuszko, pleading for him '' his merit and services from the concurrent testimony of all who knew him ; " and congress accordingly granted the Polish exile who was to become dear to many nations the brevet commission of brigadier-general. J The last days of this congress were cheered by the arrival of Yan Berckel as envoy from the Dutch republic, the first minister accredited to America since the peace.* An escort was sent out to meet him, and on the thirty-first of October, in a public audience, congress gave him a national welcome. On the first of N"ovember the third congress under the con- federation came together for the last time. It made persistent attempts to invigorate the union ; declared the inviolable sanc- tity of the national debt ; asked of the states a general revenue ; prepared for planting new states in the continental domain ; and extended diplomatic relations. Its demand of powers of government did not reach far enough, but it kept alive the de- sire of reform. It appointed a day of public thanksgiving, that " all the people might assemble to give praise to their Supreme Benefactor for the freedom, sovereignty, and independence of * Journals of Congress, iv,, 29-4-296. f Journals of Congress, iv., 265. In the original MS. the word " one " is twice underscored. X Washington to Congress, 2 October 1788. Sparks, viii., 487. * Van Bcrckcl to the states creneral, 3 November 1783. MS. 1783. THE LEGACY OF WASHINGTON. 105 tlie United States ; " and, as the day came, tlie pulpit echoed the prayer : " May all the states be one." '^* The principle of rotation drove Madison from the national conncils. He was unmarried and above care ; and, until he should again be eligible to congress, he devoted himself to the ctudy of federal government and to public service in the leg- islature of his own state, where with strong convictions and unselfish patriotism he wrought with single-minded ness to bring about an efficient form of republican government. He was calm, wakeful, and cautious, pursuing v/ith patience his one great object, never missing an opportunity to ad- vance it, caring not overmuch for conspicuousness or fame, and ever ready to efface himself if he could but accomplish his design. On Sunday, the second of ISTovember, the day before the discharge of all persons enlisted for the war, the commander- in-chief addressed the armies of the United States, however widely their members might be dispersed. Mingling affection- ate thanks with praise, he described their unparalleled j)erse- verance for eiglit long years as little short of a standing mira- cle, and for their solace bade them call to recollection the astonishing events in which they had taken part, the enlarged prospects of happiness which they had assisted to open for the human race. He encouraged them as citizens to renew their old occupations ; and, to those hardy soldiers who were fond of domestic enjoyment and personal independence, he pointed to the fertile regions beyond the AUeghanies as the most happy asylum. In the moment of parting, he held up as an examjDle to the country the harmony which had prevailed in the camp, where men from different parts of the continent and of the most violent local prejudices instantly became but one patriotic band of brothers. " Although the general," these are the words of his last order, " has so frequently given it as his opinion in the most public and explicit manner, that, unless the principles of the federal government were properly supported, and the powers of the union increased, the honor, dignity, and justice of the nation would be lost forever, yet he cannot help leaving it as his last injunction to every officer and every soldier to add * John Murray's thanksgiving sermon, Tyranny's grove destroyed, p. 71. 108 ON THE WAY TO A FEDERxiL CONVENTION, e. ii. ; on. i. Ills best endeavors tov/ard e:aectmg these great purposes." * Wasliington sent forth, every one of his fellow-soldiers as an r.postle of union under a new constitution. Almost all the Germans who had been prisoners preferred to abide in the United States, where they soon became useful citizens. The remnant of the British army had crossed to Staten Island and Long Island for embarkation, when, on the twenty-Jifth of November, Washington and the governor and other officers of the state and city of ISTew York were met at the Bowery by Knox and citizens, and in orderly procession made their glad progress into the heart of the town. Rejoic- ings followed. The emblem chosen to introduce the evening display' of fireworks was a dove descending with the ohve- branch. For their farewell to "Washington, the officers of the army, on the fourth of December, met at a public-house near the Battery, and were soon joined by their commander. The thoughts of the eight years which they had passed together, their common distresses, their victories, and now their parting from the 'public service, the future of themselves and of their country, came thronging to every mind. JNo relation of friend- ship is stronger or more tender than that between men who have shared together the perils of war in a noble and upright cause. The officers could attest that the courage which is the most perfect and the most rare, the courage which determines the man, without the least hesitation, to hold his life of less account than the success of the cause for which he contends, was the habit of Washington. Pledo^ing: them in a p^lass of wine, he thus addressed them: ^'With a heart full of love and gratitude, I now take leave of you. May your latter days be as prosperous and happy as your former ones have been glorious. I shall be obliged to you if each of you will come and take me by the hand." With tears on his cheeks, he grasped the hand of Knox, who stood nearest, and embraced him. In the same manner he took leave of every officer. Fol- lowed by the company in a silent procession, he passed through a corps of light infantry to the ferry at Whitehall. Entering * FarevrcU address to the armies of the United States. Rocky Hill, near Princeton, 2 November 1'733. Sparks, viii., 496. 1783. THE LEGACY OF WASHINGTON. 107 his barge, lie Avaved liis liat to tliem ; with the eame silence they returned that last voiceless farewell, and the boat pushed across the Hudson. A father parting from his childron could not excite more regret nor draw more tears."-^ On his way through E"ew Jersey the chief was received with the tenderest respect and affection by all classes of men. The roads were covered with people who came from all quar- ters to see him, to get near to him, to speak to him. Alone and ready to lay down in the hands of congress the command which had been confided to him, he appeared even greater than when he was at the head of the armies of the United States. The inhabitants of Philadelphia knew that ho was drav/ing near, and, without other notice, an innumerable crowd placed themselves along the road where he was to pass. Women, aged men, left their houses to see him. Children passed among the horses to touch his garments. Acclamations of joy and grati- tude accompanied him in all the streets. Never was hom- age more spontaneous or more pure. The general enjoyed the scene, and owned himself by this moment repaid for eight years of toils and wants and tribulations. f At Philadelphia he put into the hands of the comptroller his accounts to the thirteenth of December 1783, all written with minute exactness by his o^vn hand, and accompanied by vouchers conveniently arranged. Every debit against him v/as credited ; but, as he had not always made an entry of moneys of his own expended in the public service, he was, and chose to remain, a considerable loser. To the last he refused all compensation and all indemnity, though his resources had been greatly diminished by the war. On the twenty-third of December, at noon, congress in Annapolis received the commander-in-chief. Its members, when seated, wore their hats, as a sign that they represented the sovereignty of the union. Places were assigned to the governor, council, and legislature of Maryland, to general offi- cers, and to the representative of France. Spectators filled, the gallery and crowded upon the floor. Hope gladdened all as they forecast the coming greatness of their land. * Luzerne to Ycrgenncs, 13 December 17S3. MS. I Ibid. 108 ON THE WAY TO A FEDERAL CONVENTION, b.ii.; ch. i. Eising wltli dignity, Washington spoke of tlie rectitude of the common cause ; the support of congress ; of his country- men ; of Providence ; and he commended the interests of " our dearest country to the care of Ahuighty God.*' Then saying that he had finished the work assigned him to do, he bade an affectionate farewell to the august body under whose orders he had so long acted, resigned with satisfaction the commission which he had accepted with diffidence, and took leave of public life. His emotion was so great that, as he advanced and de- livered up his commission, he seemed unable to have uttered more. The hand that wrote the declaration of independence pre- pared the words which, in the name of congress, its president, turning pale from excess of feeling, then addressed to Wash- ington, who stood, filling and commanding every eye : " Sir : The United States in congress assembled receive vdth emotions too affecting for utterance the solemn resigna- tion of the authorities under which you have led their troops with success through a perilous and a doubtful war. Called upon by your country to defend its invaded rights, you accept- ed the sacred charge before it had formed alliances, and whilst it was without funds or a government to support you. You have conducted the great military contest with wisdom and forti- tude, invariably regarding the rights of the civil power through all disasters and changes. You have persevered till these United States, aided by a magnanimous king and nation, have been ena- bled under a just Providence to close the war in freedom, safe- ty, and independence. Having taught a lesson useful to those who inflict and to those who feel oppression, with the blessings of your fellow-citizens, you retire from the great theatre of action ; but the glory of your virtues will continue to animate remotest ages. We join you in commending the interests of our dearest country to the protection of Almighty God, be- seeching him to dispose the hearts and minds of its citizens to improve the opportunity afforded them of becoming a happy and respectable nation." 'No more pleasing words could have reached Washington than those which pledged congress to the reform of the na- tional government. The allusion to the alliance with France 1783. THE LEGACY OF WASHINGTON. 109 was riglit, for otherwise the achievement of independence would seem to have been attributed to the United States alone. But France and England were now at peace ; and after their reconciliation Washington, the happiest of warriors, as he un- girded the sword, would not recall that they had been at war. The business of the day being over, "Washington set out for Mount Yernon, and on Christmas eve, after an absence of nearly nine years, he crossed the threshold of his own home ; but not to find rest there, for the doom of greatness was upon him. 110 0]^ THE WAY TO A FEDERAL CONVENTION. B.n.; oh. ii. (^ CHAPTER II. VIRGINIA STATESMEN LEAD TOWARD A BETTER UNION. 1784:. Of many causes promoting union, four above others exer- cised a steady and commanding influence. The new republic ^^as one nation must have power to regulate its foreign com- ^Inerce; to colonize its large • domain ; to provide an adequate *!* revenue; and to establish justice in domestic trade by prohib- iting the separate states from impairing the obligation of con- ^^tracts. Each of these four causes was of vital importance; but the necessity for regulating commerce gave the immediatp impulse to a more perfect constitution. Happily, the British order in council of the second of July 1783 restricted to Brit- ish subjects and ships the carrying of American produce from American ports to any British West India island, and the car- rying of the produce of those islands to any port in America. " This proclamation," wrote John Adams to Secretary Living- ston, " is issued in full confidence that the United States can- not agree to act as one nation. They will soon see the neces- sity of measures to counteract their enemies. If there is not sufficient authority to draw together the minds, affections, and forces of the states in their common foreign concerns, we shall be the sport of transatlantic politicians, who hate liberty and every country that enjoys it." * Letters of Adams and one of like tenor from Franklin having been fully considered, congress, on the twenty -ninth of September 1783, agreed that the United States could become respectable only by more energy in government ; but, as usual, * Diplomatic Correspondence, vii., 81, 100. 1784. TOWARD A BETTER UNION. HI they only referred " tlie important subject under deliberation " to a special committee,* which, having Arthur Lee for one of its members, in due time reported that "as the several states are sovereign and independent, and possess the power of acting as may to them seem best, congress will not attempt to point out the path. The mode for joint efforts will suggest itself to the good sense of America." f The states could not successfully defend themselves against the policy of Great Britain by separate legislation, because it was not the interest of any one of them to exclude British vessels from their harbors unless the like measure should be adopted by every other ; and a union of thirteen distinct pow- ers would encounter the very difficulty which had so often proved insuperable. But, while every increase of the power of congress in domestio aifairs roused jealousies between the states, the selfish design of a foreign government to repress their industry drew them together against a common adver- sary. The complete cession of the I^orth-west and the grant of the desired impost were the offerings of Yirginia to the gen- eral welfare. X Simultaneously her legislature, on the fourth of December, took cognizance of the aggressions on equal com- merce. The Virginians owned not much shipping, and had no special interest in the West India trade ; but the British prohibitory policy offended their pride and their sense of honor, and, as in the war they had looked upon " union as the rock of their political salvation," so they again " rang the bell " to call the other states to council. They complained of " a disposition in Great Britain to gain partial advantages, injurious to the rights of free commerce and repugnant to the principles of reciprocal interest and convenience which form the only permanent foundation of friendly intercourse ; " and on the ninth unanimously consented to empower congress to adopt the most effectual mode of counteracting restrictions on Ameri- can navigation so long as they should be continued.*" The * Secret Journals of Congress, iii., 398-400. I Reports of committees on increasing; the powers of congress, p. 03. MS. X Joseph Jones to Jefccrson, 21 and 29 December 1783. * Journal of House of Delegates, 50 ; Ilening, xi., 313. 112 0^ THE T7AT TO A FEDERAL COiTVEJSrTIOK b.ii.; cn.ii. governor, by direction, communicated the act to the executive authority of the other states, requesting their immediate adop- tion of similar measures ; " * and he sent to the delegates of his own state in congress a report of what had been done. This is the first in the series of measures through which Vir- ginia marshalled the United States on their way to a better union. In the fourth congress JeSerson carried forward the work of Madison with alacrity. The two cherished for each other the closest and the most honorable friendship, agreeing in efforts to bind the states more closely in all that related to the common welfare. In their copious correspondence they opened their minds to each other with frankness and independence. The delegates of Rhode Island insisted that the connterac- tion of the British navigation acts must be intrusted to each separate state; but they stood alone, Roger Sherman voting against them, and so dividing Connecticut. Then the proposal of the committee of which Jefferson was a member and of which all but Gerry were from the Sonth, that congress, with the assent of nine states, might exercise prohibitory powers over foreign commerce for the term of fifteen years, was adopted without opposition.! Keeping in mind that, while the articles of confederation did not directly confer on congress the regulation of commerce by enactments, they granted the amplest authority to frame commercial treaties, Jefferson prepared a plan for intercourse wdth powers of Europe from Britain to the Ottoman Porte, and with the Barbary states. His draft of instructions J de- ''scribed " the United States as one nation upon the principles of the federal constitution." * In a document of the preceding congress mention had been made of "the federal govern- ment," and Rhode Island had forthwith moved to substitute the word union, conceding that there was a union of the states, but not a government ; but the motion had been supported by * Journal of House of Delegates for 22 December 1783. Governor Harrison to the governor of Massachusetts, 25 December 11S2. MS. f Journals of Congress, iv., 392, 393. X Jefferson to John Q. Adams, 30 March 1826. Jefferson, vii., 436. * Secret Journals of Congress, iii., 453. 1784. TOWARD A BETTER UNIOK 113 no other state, and by no individuals outside of Rhode Island except Hoi ten and Arthur Lee. This time Sherman and his colleague, James Wadsworth, placed Connecticut by the side of Rhode Island. They were joined only by Arthur Lee, and congress, on the twenty-sixth of March, adopting the words of Jeiferson, by the vote of eight states to two, of nine- teen individuals to five, decided that in treaties and all cases arising under them the United States form " one nation." '^ On the principles according to which commercial treaties should be framed America was unanimous. In October 1783 congress had proposed the most perfect equality and reciproci- ty, f Jefferson, while he would accept a system of reciproci- ty, reported as the choice of America that there should be no navigation laws ; no distinction between metropolitan and colonial ports ; an equal right for each party to carry its own products in its own ships into all ports of the other and to take away its products, freely if possible, if not, paying no other duties than are paid by the most favored nation. In time of war there should be an abandonment of privateering ; the least possible interference with industry on land ; the in- violability of fishermen ; the strictest limitation of contraband ; free commerce between neutrals and belligerents in articles not contraband; no paper blockades; in short, free trade and a humane international code. These instructions congress ac- cepted, and, to give them effect, Adams, Franklin, and Jeffer- son were, on the seventh of May, commissioned for two years, with the consent of any two of them, to negotiate treaties of ten or fifteen years' duration. j(. The foreign commercial system of the nation was to be blended with the domestic intercourse of the states. High- ways by water and land from Yirginia to the West would ad- vance its welfare and strengthen the union. Jefferson opened the subject to Madison,* who, in reply, explained the necessity of a mutual appointment of commissioners by Maryland and Yirginia for regulating the navigation of the Potomac. " The * Secret Journals of Congress for 26 March 1784, iii., 452-454. •j- Secret Journals of Congress, iii., 412, 413. if. Secret Journals of Congress, ill., 484, 485, and 491-499. * Jefferson to Madison, Annapolis, 20 February 1784. VOL. YI. — 8 114 ON THE WAY TO A FEDERAL CONVENTION", s.n.; on.ii. good humor into whicli the cession of the back lands must have put Maryland forms an apt crisis for negotiations." * In March 178i Jefferson cautiously introduced the subject to Washington,f and then wrote more urgently : " Your fu- ture time and wishes are sacred in my eye ; but, if the super- intendence of this work would be only a dignified amusement to you, what a monument of your retirement would follow that of your public life ! " :j: Washington " was very happy that a man of dissernment and hberality like Jefferson thought as he did." More than ten years before he had been a principal mover of a bill for the extension of navigation from tide-water to Will's creek. " To get the business in motion," he writes, " I was obliged to comprehend James river. The plan was in a tolerably good train when I set out for Cambridge in 1775, and would have been in an excellent way had it not met with difficulties in the Maryland assembly. Not a moment ought to be lost in recom- mencing this business." * He too, like Madison, advised concert with the men of Maryland. Conforming to their advice, Jefferson conferred with Thomas Stone, then one of the Maryland delegates in congress, and undertook by letters to originate the subject in the legislature of Virginia. || Before the end of June the two houses unanimously re- quested the executive to procure a statue of Washington, to be of the finest marble and best workmanship, with this inscrip- tion on its pedestal : " The general assembly of the commonwealth of Virginia have caused this statue to be erected as a monument of affection and gratitude to George Washington, who, to the endowments of the hero uniting the virtues of the patriot, and exerting both in establishing the liberties of his country, has rendered his name dear to his fellow-citizens, and given the world an immortal example of true glory." ^ * Madison to Jefferson, 16 March 1784. Madison, i., 74. f Jefferson to Washington, 6 March 1784. :]: Jefferson to Washington, 15 :^rarch 1784. Letters to W., iv., 62-66. * Washington to Jefferson, 29 March 1784. Sparks, ix., 81, 32. I Jefferson to Madison, 25 April 1784. Partly printed in Rives, i., 560. ^ Heniug, xi., 552. 1784. TOWARD A BETTER UNION. 115 The vote, emanating from the affections of the people of Yirginia, marks his mastery over the heart of his native state. That mastery he always used to promote the formation of a national constitution. He had hardly reached home from the war when he poured out his inmost thoughts to Harrison, the doubting governor of his commonwealth : " The prospect before us is fair ; I believe all things will come right at last ; but the disinclination of the states to yield competent powers to congress for the federal government will, if there is not a change in the system, be our downfall as a nation. This is as clear to me as A, B, C. We have arrived at peace and independency to very little purpose, if we cannot conquer our own prejudices. The powers of Earope begin to see this, and our newly acquired friends, the British, are al- ready and professedly acting upon this ground ; and wisely too, if we are determined to persevere in our folly. They know that individual opposition to their measures is futile, and boast that we are not sufficiently united as a nation to give a general one. Is not the indignity of this declaration, in the very act of peace- making and conciliation, sufficient to stimulate/ us to vest ade- quate powers in the sovereign of these United States ? " An extension of federal powers would make us one of the most wealthy, happy, respectable and powerful nations that ever inhabited the terrestrial globe. Without them, we shall soon be everything which is the direct reverse. I predict the worst consequences from a half-starved, limping government, always moving upon crutches and tottering at every step." ^ The immensity of the ungranted public domain which had passed from the English crown to the American people invited them to establish a continental empire of republics. Lines of communication with the western country implied its coloniza- tion. In the war, Jefferson, as a member of the legislature, had promoted the expedition by which Yirginia conquered the region north-west of the Ohio ; as governor he had taken part in its cession to the United States. The cession had included the demand of a guarantee to Yirginia of the remainder of its territory. This the United States had refused, and Yirginia receded from the demand. On the iirst day of March 1784, * Washington to Earrison, 18 January 1*784. Sparks, ix., 12 and 13. IIG ON THE WAY TO A FEDERAL CONYENTIOK b.ii.; ch. ii. Jefferson, in congress, vnth his colleagues, Hardy, Arthur Lee, and James Monroe, in conformity with full powers from their commonwealth, signed, sealed, and delivered a deed by which, with some reservation of land, they ceded to the United States all claim to the territory north-west of the Ohio. On that same day, before the deed could be recorded and enrolled among the acts of the United States, Jefferson, as chairman of a commit- tee, presented a plan for the temporary government of the western territory from the southern boundary of the United States in the latitude of thirty-one degrees to the Lake of the Woods. It is still preserved in the national archives in his own handwriting, and is as completely his own work as the declaration of independence. He pressed upon Virginia to establish the meridian of the mouth of the Kanawha as its western boundary, and to cede all beyond to the United States. To Madison he wrote : " For God's sake, push this at the next session of assembly. We hope ]!!Torth Carohna will cede all beyond the same meridian," * his object being to obtain cessions to the United States of all southern territory west of the meridian of the Kanawha. In dividing all the country north-west of the Ohio into ton states, Jefferson was controlled by an act of congress of 1Y80 which was incorporated into the cession of Virginia. 'No land was to be taken up till it should have been purchased from the Indian proprietors and offered for sale by the United States. In each incipient state no property qualification was required either of the electors or the elected ; it was enough for them to be free men, resident, and of full age. Under the authority of congress, and following the precedent of any one of the states, the settlers were to establish a temporary government ; when they should have increased to twenty thousand, they might in- stitute a permanent government, with a member in congress, having a right to debate but not to vote ; and, when they should be equal in number to the inhabitants of the least populous state, their delegates, with the consent of nine states, as re- quired by the confederation, were to be admitted into the con- gress of the United States on an equal footing. The ordinance contained five other articles : The new states * Jefferson to Madison, 20 February 1'784. 1784. TOWARD A BETTER UNION. 117 shall remain forever a part of tlie United States of America ; they shall bear the same relation to the confederation as the original states ; they shall pay their apportionment of the fed- eral debts ; they shall in their governments uphold republican forms ; and after the year 1800 of the Christian era there shall be neither slavery nor involuntary servitude in any of them. At that time slavery prevailed throughout much more than haK the lands of Europe. Jefferson, following an impulse from his own mind, designed by his ordinance to establish from end to end of the whole country a north and south line, at which the westward extension of slavery should be stayed by an im- passable bound. Of the men held in bondage beyond that line he did not propose the instant emancipation ; but slavery was to be rung out with the departing century, so that in all the western territory, whether held in 1784 by Georgia, !North Carolina, Yirginia, or the United States, the sun of the new century might dawn on no slave. To make the decree irrevocable, he further proposed that all the articles should form a charter of compact, to be executed in congress under the seal of the United States, and to stand as fundamental constitutions between the thirteen original states and the new states to be erected under the ordinance. The design of Jefferson marks an era in the history of uni- versal freedom. For the moment more was attempted than could be accompHshed. North Carolina, in the following June, made a cession of all her western lands, but soon revoked it ; and Yirginia did not release Kentucky till it became a state of the union. Moreover, the sixteen years during which slavery was to have a respite might nurse it into such strength that at their end it would be able to defy or reverse the ordinance. Exactly on the ninth anniversary of the fight at Concord and Lexington, Richard Dobbs Spaight of l^orth Carolina, seconded by Jacob Eead of South Carolina, moved " to strike out" the fifth article. The presiding officer, following the rule of the time, put the question : " Shall the words stand ? " Seven states, and seven only, were needed to carry the affirm- ative. Let Jefferson, who did not refrain from describing Spaight as " a young fool," relate what followed. " The clause was lost by an individual vote only. Ten states were present. 118 ON THE WAY TO A FEDERAL CONVENTIOiT. b.ii.; oh.h. The four eastern states, New York, and Pennsylvania were for the clause ; Jersey would have been for it, but there were but two members, one of whom was sick in his chambers. South Carolina, Maryland, and J Yirgiaia J voted against it. North ' Carolina was divided, as w^ould have been Yirginia, had not one of its delegates been sick in bed." * The absent Yirginian was Monroe, who for himself has left no evidence of such an intention, and who was again absent when in the following year the question was revived. For North Carolina, the vote of Spaight was neutralized by "VYilliamson. Six states against three, sixteen men against seven, pro- scribed slavery. Jefferson bore witness against it all his life long. Wythe and himself, as commissioners to codify the laws of Yirginia, had provided for gradual emancipation. When, in 1785, the legislature refused to consider tlie proposal, Jeffer- son wrote : " We must hope that an overruling Providence is preparing the deliverance of these our suffering brethren." f In 1T8G, narrating the loss of the clause against slavery in the ordinance of 1784, he said : " The voice of a single individual would have prevented this abominable crime ; heaven will not always be silent ; tlie friends to tiie rights of human nature will in the end prevail." :j: To friends who visited him in the last period of his life he delighted to renew these aspirations of his earlier years.* In a letter written just forty-hve days before his death he refers to the ordinance of 1784, saying: " My sentiments have been forty years before the public ; although I shall not live to see them consummated, they will not die with me ; but, hving or dying, they will ever be in my most fervent prayer." 1 On the twenty-third of April the ordinance for the govern- ment of the north-western territory, shorn of its proscription of slavery, was adopted, and remained in force for three years. On the 7th of May, Jefferson reported an ordinance for ascer- taining the mode of locating and disposing of the public lands. The continental domain, when purchased of the Indians, was * Jefferson to Madison, 25 April 1784. f Jefferson, ix., 279. 1;. Ibid., 276. * Oral communication from William Campbell Preston of South Carolina. H Jefferson to James Hcaton, 20 May 1826. 1784. TOWARD A BETTER UNIOK 119 to be divided by the surveyors into townships of ten geograpM- cal miles square, the townships into hundreds of one mile square, and with such precautions that the wilderness could be mapped out into ranges of lots so exactly as to preclude uncer- tainty of title. As to inheritance, the words of the ordinance were : " The lands therein shall pass in descent and dower ac- cording to the customs known in the common law by the name of gavelkind." * Upon this ordinance of Jefferson, most thoughtfully prepared and written wholly by his own hand, no final vote was taken. Congress had already decided to establish a mint. For the American coinage, Eobert and Gouverneur Morris proposed the decimal system of computation, with silver as the only metallic money, and the fourteen hundred and fortieth part of a Spanish piece of eight reals, or, as the Americans called it, the dollar, as the unit of the currency. Jefierson chose the dollar, which circulated freely in every part of the American continent, as the money unit for computation ; and the sub- division of the dollar into a tenth, a hundredth, and a thou- sandth part. For coinage, he proposed a gold coin of ten dol- lars ; silver coins of one dollar and of one tenth of a dollar ; and copper coins of one hundredth part cf a dollar, f This system steadily grew in favor ; and, in 1786, was established by con- gress without a negative vote. :[: The total cost of the war, from the first blood shed at Lex- ington to the general orders of Washington in April 1783, proclaiming peace, was reckoned by Jefferson * at one hundred and forty millions of dollars. Congress, before the formation of the confederacy, had emitted paper money to the amount of two hundred millions of dollars, which at the time of its emis- sion might, as he thought, have had the value of thirty-six millions of silver dollars ; the value of the masses of paper emitted by the several states at various stages of the war he estimated at thirty-six millions more. This estimate of the values of the paper money rests in part upon conjecture, and * Papers of Old Congress, xxx., 59. MS. f Jefferson, i., 54. Notes on the establishment of a money unit and of a coin, age for the United States. Ibid., 162-174. X Journals of Congress, iv., 376, for 8 August 1786. * Jefferson, ix., 260. 120 ON THE WAY TO A FEDERAL CONVENTION, b.ii.; oh.ii. the materials for correcting it witli accuracy, especially as it re- gards the issues of the states, are wanting. The remaining cost of the war, or sixty-eight millions of dollars, with the exception of about one and a half million paid on requisition by the sev- eral states, existed on the first of January 1784, in the form of debts in Europe to the amount of nearly eight millions of dol- lars ; of debts due to the several classes of domestic creditors ; and of debts due to states for advances on the common account. The value of the paper money issued by congress had perished as it passed from hand to hand, and its circulation had ceased. In preparing the appropriations for the coming year, con- gress was met at the threshold by an unforeseen difiiculty. Bills of Morris on Holland, that were protested for non-accept- ance, would amount, with damages on protest for non-accept- ance, to six hundred and thirty-six thousand dollars. To save the honor of the country, this sum was demanded of the sepa- rate states in a circular letter drawn by Jefferson. But, mean- time, John Adams, in Amsterdam, manfully struggled to meet the drafts, and, by combining the allurement of a lottery with that of a very profitable loan, he succeeded. The court of France, with delicacy and generosity, of its own motion released the United States from the paj^ment of interest on their obligations during the war and for the first period of peace ; and they on their part by formal treaty bound them- selves to the payment of interest as it should accrue from the beginning of the year 1784. For that year the sum required for the several branches of the public service was estimated at about four hundred and fifty thousand dollars ; for the interest on the foreign debt, nearly four hundred thousand dollars ; the balance of interest and the interest on the domestic debt, about six hundred and eighty thousand dollars ; the deficit of the last two years, one million ; other arrears connected with the debt, nearly one million three hundred thousand dollars : in all, about four mill- ions. This was a greater sum than could be asked for. In- stead of making new requisitions, Jefferson credited all federal payments of the states to the requisition of eight millions of dollars in the first year of the confederacy. One half of that requisition was remitted ; of the other, three states had paid 1784. TOWARD A BETTER UNION. 121 nothing, tlie rest had paid less than a million and a half ; a balance would remain oi nearly two millions seven hundred thousand dollars ; and of this balance a requisition was made on each of the states for its just proportion. The apportion- ment, if collected within the year, would defray the expenses of all the departments of the general government and the in- terest on the foreign and domestic loans, leaving only some part of domestic arrears to be provided for at a later day. Could this system be carried into effect, the credit of the government would be established. Madison had acceded to the wishes of his county, that he should be one of its representatives in the legislature, believing that he might there best awaken Yirginia to the glory of tak- ing the lead in the rescue of the union and the blessings staked on union from an impending catastrophe."^ Jefferson had kept him thoroughly informed of the movement for bring- ing order into the public finances. At the instigation of Madison, Philip Mazzei, an Italian, then in quest of a con- sular appointment in Europe,! V^^^ ^ ^^^^ *^ Patrick Henry, " the great leader who had been violently opposed to every idea of increasing the power of congress." j^ On his return, Mazzei reported that the present politics of Henry compre- hended very fnendly views toward the confederacy, and a support of the payment of British debts.* At Pichmond, on the fourteenth of May, before the assem- bly proceeded to active business, Henry sought a conference with Madison and Jones, and declared to them that " a bold example set by Yirginia would have infiuence on the other states ; " "he saw ruin inevitable unless something was done to give congress a compulsory process on delinquent states." This conviction, he said, was his only inducement for coming into the present assembly. It was agreed that Jones and Madison should sketch some plan for giving greater power to the federal government, and Henry promised to sustain it on the floor. A majority of the assembly were new members, composed of young men and officers of the late army, so that * Gilpin, 693, 694 ; Elliot, 113. f Jefferson to Madison, 16 March 1784. X Edward Bancroft to William Frazer, 28 May 1784. * Madison to Jefferson, 23 April 17S4. Madison, i., 73. 122 01^ THE WAY TO A FEDERAL CONVENTION B.n.; CH.n. new measures were expected. Great hopes were formed of Madison, and those who knew him best were sure that he would not disappoint the most sanguine expectations.* Virginia passed an act empowering congress, for anj term not exceeding fifteen years, to prohibit the importation or ex- portation of goods to or from that state in vessels belonging to subjects of powers with whom the United States had no com- mercial treaty, f They consented that the contributions of the state to the general treasury should be in proportion to the population, counting three fifths of the slaves. All appre- hension of danger from conceding a reveime to the confeder- acy seemed to have passed away ; and it was agreed that, pend- ing the acceptance of the amendment to the constitution, any apportionment of the requisitions dh^ected by congress for the purpose of discharging the national debt and the expenses of the national government ought to be complied with. It was further resolved that the accounts subsisting between the United States and individual states should be settled, and that then the balance due ought to be enforced, if necessary, by distress on the property of defaulting states or of their citizens. These resolutions passed the legislature without a division. J It re- mained to see what effect the measures of Virginia would have on the other twelve states and on herself. Experience had proved the impossibility of keeping to- gether a sufficient representation of the states in congress. It began to be thought better to hold but a short and active an- nual session of the national congress with compulsory attend- ance of its members, and appoint commissioners of the states to conduct executive business for the rest of the year. This proposition was one of the last which Jefferson assisted to carry through. He had wished to visit "Washington before his voyage ; but, armed with at least one-and-twenty commis- sions for himself and his two associates to negotiate treaties with foreign powers, he was obliged to repair to Boston, * William Short to T. Jefferson, 14 May 178-1; Madison to Jefferson, 15 May 1784, Madison, i., SO; Edward Bancroft to William Frazer, 28 May 1784. In the letter of Short to Jefferson, the date is probably an error for May 15. Seo Madison, i., 80, " last evening." f Ilening, xi., 888. X Journal of the Committee of the States, p. V. 1784:. TOWARD A BETTER UNIOK 123 where, after " experiencing in the highest degree its hospital- ity and civihties," '^ he embarked for France on the fifth of July, full of hope that the attempt to negotiate a treaty of com- merce with Great Britain would meet with success, f Before leaving the country he wrote to Madison : " The best effects are produced by sending our young statesmen to congress. Here tliey see the affairs of tlie confederacy from a high ground ; they learn the importance of the imion, and befriend federal measures when they return." :j: The committee of states came together on the fourth of June. Four states never attended ; and, as the assent of nine was required to carry any proposition except adjournment, the absence or the negative of one state stopped all proceedings. A difference occurring on the eleventh of August, the members from three ^ew England states went home ; the remaining six states met irregularly till the nineteenth of that month ; and then, from inability to do any manner of business, they with- drew. The United States of America were left without any visible representation whatever. The chief benefit from the experiment was to establish in the minds of Americans the necessity of vesting the executive power, not in a body of men, but, as Jefferson phrased it, in a single arbiter. This was the state of the government when, on the first of November, Bobert Morris retired from his ofBce as super- intendent of the finances of the United States. He had con- ciliated the support of the moneyed men at home.* His bank of ]N"orth America, necessarily of little advantage to the United States, proved highly remunerative to its stockholders ; || the bankruptcy of the nation could have been prevented only by the nation itself. Congress passed an act that for the future no person, appointed a commissioner of the treasury of the United States, should be permitted to be engaged, either di- * Jefferson to Gcrr}^, 2 July 1784. Austin's Life of Gerry, i., 55. f Information from Edward Bancroft, 26 August 1784. X Jefferson to Madison, 25 April 1784. * Hamilton, i., 316, 317. II The dividend for the first half year of the bank was four and a half per cent ; for the second, four and one fourth ; for the third, six and one half ; for the fourth, eight ; for the fifth, a little more than nine and a half per cent. Official report in Pennsylvania Packet for 6 July 1782 ; 7 January 1783 ; 8 July 1783 ; 6 January 1784; 8 July 1784. 124: OK THE WAY TO A FEDERAL CONVENTION b.ii.; ch.h. rectly or indirectly, in any trade or commerce whatsoever.* Before retiring, Morris announced to the representative of France in America that he could not pay the interest on the Dutch loan of ten million livres for which France was the guarantee, f a default which deeply injured the reputation of the United States in Paris. :j: He could still less provide for paying the interest for 1784 on the direct debt to France. The members of the lifth congress arrived so slowly at Trenton that Marbois, who was charged with French affairs, on the twentieth of November reported what at the moment was true : " There is in America no general government, neither congress, nor president, nor head of any one administrative department." ^ Six days later, while there was still no quorum in congress, Eichard Henry Lee, a delegate from Virginia, wrote to Madison : " It is by many here suggested, as a very necessary step for congress to take, the calling on the states to form a convention for the sole purpose of revising the con- federation, so far as to enable congress to execute with more energy, effect, and vigor the powers assigned to it than it ap- pears by experience that they can do under the present state of things." In a letter of the same date Mercer said : " There will be a motion made early in the ensuing congress for such a convention." 1 Madison, who knew the heart of his corre- spondents, answered Lee firmly and yet warily : " The union of the states is essential to their safety against foreign danger and internal contention ; the perpetuity and efficacy of the present system cannot be confided in ; the question, therefore, is, in what mode and at what moment the experiment for sup- plying the defects ought to be made." ^ ^' The American confederation," so thought the French minister at Yersailles, " has a strong tendency to dissolution ; it is well that on this point we have neither obligations to fulfil nor any interest to care for." () * Journals of Congress for 28 May 1'784. f Robert Morris to Marbois, IV August 11S4:. Diplomatic Correspondence, xii., 494. j^ Edward Bancroft to Lord Carmarthen, Paris, 8 December 1*784. * Marbois to Rayneval, 20 November 1*784. II J. F. Mercer to Madison, 26 November 1784. ^ Gilpin, 101, 708. {) To Marbois, Versailles, 14 December 1784. 1784. THE WEST. 125 CHAPTEE III. THE WEST. 1784-1785. The desire to hold and to people the great western domain mingled with every effort for imparting greater energy to the union. In that happy region each state saw the means of granting lands to its soldiers of the revolution and a possession, of inestimable promise. Washington took up the office of securing the national allegiance of the transmontane woodsmen by improving the channels of communication with the states on the Atlantic. For that purpose, more than to look after lands of his own, he, on the first day of September, began a tour to the westward to make an examination of the portages between the nearest navigable branches of the Potomac and James river on the one side and of the Ohio and the Kanawha on the other. Wherever he came, he sought and closely ques- tioned the men famed for personal observation of the streams and paths on each side of the AUeghanies. From Fort Cumberland he took the usual road over the mountains to the valley of the Yohogany,* and studied closely the branches of that stream. The country between the Little Kanawha and the branches of the James river being at that moment infested with hostile Indians, he returned through the houseless solitude between affluents of the Cheat river and of * Yohogany is the " phoaetical " mode of spelling for yOugHIOgany, as the English wrote the Indian name ; the French, discarding the gutturals, wrote Ohio. So at the North-east the French dropped the first two syllables of Passam-Aquoddy, and made of the last three Acadie. The name Belle Riviere is a translation of Allegh-any. 126 0^ THE ^AY TO A FEDERAL CONVENTION, b.ii.; oh.hi. the Potomac. As lie traced tlie way for commerce over that \vild region he was compelled to pass a night on a rough moun- tain-side in a pouring rain, with no companion but a servant and no protection but his cloak ; one day he was without food ; sometimes he could find no path except the track of buffaloes ; and in unceasing showers his ride through the close bushes seemed to him little better than the swimming of rivulets.* Eeaching home after an absence of thirty-three days, he declared himself pleased with the results of his tour. Com- bining his observations with the reminiscences of his youthful mission to the French in the heart of Ohio, he sketched in his mind a system of internal communication of the Potomac with the Ohio ; of an affluent of the Ohio with the Cuyahoga ; and so from the site of Cleveland to Detroit, and onward to the Lake of the Woods. Six days after his return he sent a most able report to Harrison, then governor of Yirginia. "We should do our part toward opening the communication for the fur and peltry trade of the lakes," such were his words, " and for the produce of the country, which will be settled faster than any other ever was, or aiiy one would imagine. But there is a political consideration for so doing which is of still greater importance. " I need not remark to you, sir, that the flanks and rear of the United States are possessed by other powers, and formida- ble ones too ; nor how necessary it is to apply interest to bind all parts of the union together by indissoluble bonds. The western states, I speak now from my own observation, stand as it were upon a pivot ; the touch of a feather would turn them any way. They have looked down the Mississippi until the Spaniards threw difficulties in their way. The untoward disposition of the Spaniards on the one hand and the policy of Great Britain on the other to retain as long as possible the posts of Detroit, Magara, and Oswego, may be improved to the greatest advantage by this state if she would open the ave- nues to the trade of that country." f Harrison heartily approved the views of Washington, and laid his letter before the assembly of Yirginia, whose members * Washington's Journal. MS. f Washington to Harrison, 10 October 118i. Sparks, ix., 62, 63, 64. 1784-1785. THE WEST. 127 gladly accepted its large views and stood ready to give them legislative support. "^ Meantime Lafayette, wlio was making a tour through the United States and receiving everywhere a grateful and joj^ous welcome, was expected in Virginia. For the occasion, Wasli- ington repaired to Kichmond ; and there, on the fifteenth of l!^ovember, the assembly, to mark their reverence and affec- tion, sent Patrick Henry, Madison, and others to assure him that they retained the most lasting impressions of the tran- scendent services rendered in his late public character, and had proofs that no change of situation could turn his thoughts from the welfare of his country. Three days later the house, by the same committee, ad- dressed Lafayette, recalling " his cool intrepidity and wise con- duct during his command in the campaign of 1781, and, as the wish most suitable to his character, desired that those who might emulate his glory would equally pursue the interests of humanity." From Eichmond Lafayette accompanied Washington to Mount Vernon, and, after a short visit, was attended by his host as far as Annapolis, where he received the congratulations of Maryland. On the thirteenth of December congress, in a public session, took leave of him with every mark of honor. In his answer he repeated the great injunctions of Washing- ton's farewell letter, and, having travelled widely in the coun- try, bore witness to " the prevaihng disposition of the people to strengthen the confederation." For America his three " hobbies," as he called them, were the closer federal union, the alliance with France, and the abolition of slavery. He embarked for his native land " fraught with affection to Amer- ica, and disposed to render it every possible service." f To Washington he announced from Europe that he was about to attempt the relief of the protestants in France, ij: The conversation of Washington during his stay in Bich- mond had still further impressed members of the legislature with the magnitude of his designs. Shortly after his de- * Harrison to Washington, 13 November 1784. Sparks, ix., 68. f Jefferson to Madison, 18 March 1785. X Lafayette to Washington, 11 May 1785. 128 ON" THE WAY TO A FEDEEAL CONYENTIOK b.ii.; OH.m. parture a joint memorial from inhabitants of Maryland and of Yirginia, representing the advantages whicli would flow from establishing under the authority of the two states a company for improving the navigation of the Potomac, was presented to the general assembly of each of them. But the proposed plan had defects, and, moreover, previous communication be- t v^een the two states could alone secure uniformity of action. It was decided to consult with Maryland, and the negotiation was committed to Washington himself. Leaving Mount Yer- non on the fourteenth of December 1Y84 at a few hours' notice, the general hastened to Annapolis. Amendments of the plan were thoughtfully digested, rapidly carried through both houses, and dispatched to Richmond. There a law of the same tenor Avas immediately passed * without opposition, " to the mutual satisfaction of both states," and, as Washington hoped, "to the advantage of the union." f At the same time the two governments made appropria- tions for opening a road from the highest practicable naviga- tion of the Potomac to that of the river Cheat or Monongahela, and they concurred in an application to Pennsylvania for per- mission to open another road from Fort Cumberland to the Yohogany. Like measures were initiated by Yirginia for con- necting James river with some affluent of the Great Kanawha. Moreover, the executive was authorized to appoint commis- sioners to examine the most convenient course for a canal be- tween Elizabeth river and the waters of the Roanoke, and contingently to make application to the legislature of ]^orth Carolina for its concurrence. J Early in 1785 the legislature of Yirginia, repeating, in words written by Madison, "their sense of the unexampled merits of George "Washington toward his country," vested in him shares in both the companies alike of the Potomac and of James river.* But, conscious of the weight of his counsels, he never suffered his influence to be impaired by any suspicion of interested motives, and, not able to undo an act of the legis- lature, held the shares, but only as a trustee for the public. * Hening, x., 510. f Madison, i., 123, 124. Sparks, ix., 82. I Washington to R. H. Lee, 8 February 1785. Sparks, ix., 91. * Hening, xi., 525, 526. 1785. THE WEST. 129 Anotlier question between Maryland and Yirginia remained for solution. The cliarter to Lord Baltimore, which Yirginia had resisted as a severance of her territory, bounded his juris- diction by the " further bank " of the Potomac. When both states assumed independence, Virginia welcomed her northern neighbor to the common war for liberty by releasing every claim to its territory, but she reserved the navigation of the border stream. To define with exactness their respective rights on its waters, the Virginia legislature, in June 1784, led the way by naming George Mason, Edmund Randolph, Madison, and Alexander Henderson as their commissioners to frame, " in concert with commissioners of Maryland, liberal, equitable, and mutually advantageous regulations touching the jurisdic- tion and navigation of the river." * Maryland gladly accepted the invitation, and in the following March the joint commission was to meet at Alexandria, hard by Mount Vernon. In this manner, through the acts and appropriations of the legislature of Virginia, Washington connected the interests and hopes of her people with the largest and noblest conceptions, and to the states alike on her southern and her northern border and to the rising empire in the West, where she would surely meet ll^ew York and IMew England, she gave the weightiest pledges of inviolable attachment to the union. To carry forward these designs, the next step must be taken by congress, which should have met at Trenton on the first day of ISTovember 1Y84, but, from tlie tardy arrival of its members, was not organized until the thirtieth. It was the rule of congress that its president should be chosen in succession from each one of the different states. Beginning with Virginia, it had proceeded through them all except ITew Hampshire, Rhode Island, I^orth Caro- lina, and Georgia. But now the rule, which in itself was a bad one, was broken,f and Richard Henry Lee was elected presi- dent. The rule of rotation was never again followed ; but this want of fidelity to a custom that had long been respected tended to increase the jealousy of the small states. Before Christmas and before finishing any important business, con- gress, not finding sufficient accommodations in Trenton, ad- * Journals of House of Delegates for 28 June 1784. f Madison, i., 117. Otto to Vergeunes, 15 June 1786. MS. VOL. yi. — 9 130 ON THE WAY TO A FEDERAL CONVENTION", b.ii.; oh. m. journed to the eleventh of January 1Y85, and to ISTew York as its abode. Congress had put at its head the most determined and the most restlessly indefatigable opponent of any change whatever in the articles of confederation. Lee renewed intimate relations with Gerry, the leading member of congress from Massachu- setts. He sought to revive his earlier influence in Boston through Samuel Adams. The venerable patriot shared his jealousy of conferring too great powers on a body far removed from its constituents, but had always supported a strict enforce- ment of the just authority of government, and he replied : " Better it would have been for us to have fallen in our highly famed struggle for our rights than now to become a contempt- ible nation." * The harbor at the mouth of the Hudson was at that time the most convenient port of entry for 'New Jersey and Connecti- cut, and the State of JSTew York, through its custom-house, levied on their inhabitants as well as on its own an ever in- creasing revenue by imposts. The collector was a stubborn partisan. The last legislature had elected to the fifth congress Jay, Robert R. Livingston, Egbert Benson, and Lansing, of whom, even, after Jay became the minister for foreign affairs, a majority favored the founding of a nation. But the opinions of the president of congress, yAio was respected as one of the most illustrious statesmen of Virginia, assisted to bring about a revolution in the politics of New York.f On the nineteenth of March 1785 its legislature appointed three " additional dele- gates" to congress, of whom Haring and Melancton Smith, like Lansing, opposed federal measures ; and for tlie next four years the state of ISTew York obstinately resisted a thorough revision of the constitution. Of the city of New York, the aspirations for a national union could not be repressed. On the fourteenth of December 1784, soon after the organi- zation of congress, Washington, with a careful discrimination between the office of that body and the functions of the states, urged through its president that congress should have the western waters well explored, their capacities for navigation * S. Adams to R. H. Lee, 23 December 1784. f Jay to Washington, 27 Jane 17S6. Letters to Washington, iv., 136. 1785. THE WEST. 131 ascertained as far as the communications between Lake Erie and the Wabash, and between Lake Michigan and the Missis- sippi, and a complete and perfect map made of the country at least as far west as the Miamis, which run into the Ohio and Lake Erie. And he pointed out the Miami village as the place for a Yerj important post for the union. The expense attending such an undertaking could not be great ; the advantages would be unbounded. " Nature," he said, " has made such a display of her bounty in those regions that the more the country is explored the more it Avill rise in estimation. The spirit of emigration is great ; people have got impatient ; and, though you cannot stop the road, it is yet in your power to mark the way. A little while and you will not be able to do either." *'^* In the same week in which the legislature of 'New York reversed its position on national policy, Washington renewed his admonitions to Lee on planting the western territory. " The mission of congress will now be to fix a medium price on these lands and to point out the most advantageous mode of seating them, so that law and good government may be admin- istered, and the union strengthened and supported. Pro- gressive seating is the only means by which this can be effected ; " and, resisting the politicians who might wish to balance northern states by southern, he insisted that to mark out but one new state would better advance the public welfare than to mark out ten. f On the eleventh of March William Grayson took his seat for the first time as a member of congress. He had been edu- cated in England at Oxford, and had resided at the Temple in London. His short career furnishes only glimpses of his character. In 1776 he had been an aide-de-camp to Washing- ton, with whom he kept up affectionate relations ; in 1777 he commanded a Yirginia regiment and gained honors at Mon- mouth. His private life appears to have been faultless ; his public acts show independence, courage, and a humane and noble nature. In the state legislature of the previous winter he was chairman of the committee to which Washington's re- * Washington to R. H. Lee, 14 December 1'784. Sparks, ix., 80, 8L f Vv^ashington to U. H. Lee, 15 March 1785. 132 Oj^ the way to A FEDERAL CONVENTION, b. ii. ; on. m. port on the negotiations with Maryland had been referred.* The first evidence of his arrival in 'New York is a letter of the tenth of March 1785, to his former chief, announcing that Jefferson's ordinance for disposing of western lands, which had had its first reading in May 1784, had been brought once more before congress. ]^ot Washington alone had reminded congress of its duties to the West. Informed by Gerry of the course of public business, Timothy Pickering, from Philadelphia, addressed most earnest letters to Pufus King. He compkined that no reservation of land was made for the support of ministers of the gospel, nor even for schools and academies, and he further wrote : " Congress once made this important declaration, ^ that all men are created equal; that they are endowed by their Creator with certain unalienable rights ; that among these are life, liberty, and the pursuit of happiness ' ; and these truths were held to be self-evident. To suffer the continuance of slaves till they can gradually be emancipated, in states already overrun with them, may be pardonable because unavoidable without hazarding greater evils ; but to introduce them into countries where none now exist can never be forgiven. For God's sake, then, let one more effort be made to prevent so terrible a calamity ! The fundamental constitutions for those states are yet liable to alterations, and this is probably the only time when the evil can certainly be prevented." I^or would Pickering harbor the thought of delay in the exclusion of slavery. " It will be infinitely easier," he said, " to prevent the evil at first than to eradicate it or check it in any future time." f The sixteenth of March wa*s fixed for the discussion of the affairs of the West. The report that was before congress was Jefferson's scheme for " locating and disposing of land in the western territory ; " and it was readily referred to a committee of one from each state, Grayson being the member from Vir- ginia and King from Massachusetts. King, seconded by EUery of Rhode Island, proposed that a part of the rejected anti- slavery clause in Jefferson's ordinance for the government of * Journals Yirginia House of Delegates, 99. f Pickering to King, 8 March 1785. Pickering's Pickering, i., 509, 510. 1785. THE WEST. I33 the western territory should be referred to a committee ; * all that related to the western territory of the three southern states was omitted ; and so, too, was the clause postponing the prohibition of slavery. On the question for committing this proposition, the four E'ew England states, JSTew York, 'New Jersey, and Pennsylva- nia, voted unanimously in the affirmative ; Maryland by a ma- jority, McHenry going with the South, John Henry and Will- iam Hindman with the North. For Virginia, Grayson voted aye, but was overpowered by Hardy and Richard Henry Lee. The two Carolinas were unanimous for the negative. Houston of Georgia answered no, but being on that day the sole repre- sentative of Georgia, his vote was not counted. So the vote stood eight states against three; eighteen members against eight ;f and the motion was forthwith committed to King, Howell, and Ellery. :j: On the sixth of April, King from his committee reported his resolution, which is entirely in his own handwriting,* and which consists of two clauses : it allowed slavery in the ITorth- west until the first day of the year 1801, but no longer ; and it " provided that always, upon the escape of any person into any of the states described in the resolve of congress of the twenty- third day of April 1784, from whom labor or service is lawfully claimed in any one of the thirteen original states, such fugitive might be lawfully reclaimed and carried back to the person claiming his labor or service, this resolve notwithstanding." |j * The original motion of Rufus King for the reference, in his handwriting, is preserved in Papers of Old Congress, vol, xxxi. f Journals of Congress, iv., 481, 482. X It is indorsed in the handwriting of Charles Thomson : " Motion for pre- venting slavery in new states, 16 March IVSS. Referred to Mr. King, Mr. Howell, Mr. Ellery." * It is to be found in Papers of Old Congress, xxxi., 329, and is indorsed in the handwriting of Rufus King : " Report on Mr. King's motion for the exclusion of slavery in the new states." And it is further indorsed in the handwriting of Charles Thomson: "Mr. King, Mr. Howell, Mr. Ellery. Entered 6 April 1785, read. Thursday, April 14, assigned for consideration." I The printed copy of this report of King is to be found in Papers of Old Congress, xxxi., 331, and is indorsed in the handwriting of Charles Thomson: " To prevent slavery in the new states. Included in substance in the ordinance for a temporary government passed the 13 July ITST." 134 ON THE WAY TO A FEDERAL CONVENTION, b.ii.; cn.m. King reserved his resolution to be brought forward as a sepa- rate measure, after the land ordinance should be passed. " I expect," wrote Grayson to Madison, "seven states may be found liberal enough to adopt it ;" * but there is no evidence that it was ever again called up in that congress. On the twelfth of April f the committee for framing an ordinance for the disposal of the western lands made their re- port. It was written by Grayson, :j: who formed it out of a conflict of opinions, and took the chief part in conducting it through the house. As an inducement for neighborhoods of the same religious sentiments to confederate for the purpose of purchasing and settling together, it was a land law for a people going forth to take possession of a seemingly endless domain. Its division was to be into townships, with a ]3er- petual reservation of one mile scpiare in every township for the support of religion, and another for education. The house refused its assent to the reservation for the support of religion, as connecting the church with the state ; but the reservation for the support of schools received a general wel- come. Jefferson had proposed townships of ten miles square ; the committee, of seven ; but the motion of Grayson, that they should be of six miles square,* was finally accepted. The South, accustomed to the mode of indiscriminate locations and settlements, insisted on the rule which would give the most free scope to the roving emigrant ; and, as the bill required the vote of nine states for adoption, and during the debates on the subject more than ten were never present, the eastern people, though " amazingly attached to their own custom of planting by townships," yielded to the compromise that every other township should be sold by sections. || The surveys were to be confined to one state and to five ranges, extending from the Ohio to Lake Erie, and were to be made under the direc- tion of the geographer of the United States. The bounds of * Grayson to Madison, 1 May 17S5. The ordinance for the sale of lands re- quired the consent of nine states ; the regulative ordinance, of but seven. f Grayson to Washington, 15 April 1785. X The original report in the handwriting of Grayson is preserved in the Papers of Old Congress, Ivi., 451. * Journals of Congress, iv., 512. | Grayson to Madison, 1 May 1785. 1785. THE WEST. 135 every parcel that was sold were fixed beyond a question ; the mode of registry was simple, convenient, and almost without cost ; the form of conveyance most concise and clear. JSTever was land offered to a poor man at less cost or with a safer title. For one bad provision, which, however, was three years after repealed, the consent of congress was for the moment extorted ; the lands, as surveyed, were to be drawn for by lot by the sev- eral states in proportion to the requisitions made upon them, and were to be sold publicly within the states. But it was carefully provided that they should be paid for in the obliga- tions of the United States, at the rate of a dollar an acre. To secure the promises made to Virginia, chieily on behalf of the ofiicers and soldiers who took part in conquering the North- west from British authority, it was agreed, after a discussion of four days,* to reserve the district between the Little Miami and the Scioto. The land ordinance of Jefferson, as amended from 1784 to 1Y88, definitively settled the character of the national land laws, which are still treasured up as one of the most precious heritages from the founders of the republic. The frontier settlements at the west needed the protection of a military force. In 1784, soon after the exchange of the ratifications of peace, Gerry at Annapolis protested against the right of congress on its own authority to raise standing armies or even a few armed men in time of peace. His con- duct was approved by his state, wliose'||ielegation was in- structed to oppose and protest on all occasions against the exercise of the power. From that time congress had done no more than recommend the states to raise troops. • It was now thought necessary to raise seven hundred men to protect the "West. The recommendation should have been proportioned among all the states ; but congress ventured to call only on Connecticut, ISTew York, New Jersey, and Pennsylvania as the states most conveniently situated to furnish troops who were to be formed into one regiment and for three years guard the north-western frontiers and the public stores. * Grayson to Madison, 1 May 1785. 136 01!T THE WAY TO A FEDERAL OONVEN"TION. b.il; on.iy. CHAPTER lY. THE KEGULATION OF COMMEECE. THE FIFTH CONGKESS. 1784-1785. The legislature of Connecticut in 1783, angrj at the grant of half pay to the officers of the army, insisted that the requi- sitions of congress had no validity until they received the approval of the state. But the vote was only " a fire among the brambles;" and the people at the next election chose a ; legislature which accepted the general impost on commerce, even though it should be assented to by no more than twelve states.* The Yirginia assembly of that year discountenanced the deviation from the rule of unanimity as a dangerous pre- cedent ; f but it was adopted by Maryland. J In the following winter I^oah Webster of Hartford busied himself in the search for a form of a continental government which should act as efficaciously on its members as a local gov- ernment. " So long as any individual state has power to de- feat the measures of the other twelve, our pretended union," so he expressed the opinion which began to prevail, " is but a name, and our confederation a cobweb. The sovereignty of each state ought not to be abridged in any article relating to its own government ; in a matter that equally resjDects all the states, a majority of the states must decide. We cannot and ought not to divest ourselves of provincial attachments, but we should subordinate them to the general interest of the con- * Jlonroe to Madison, 14 December 1784. f Madison to Monroe, 24 December 1784. Madison, i,, 114, 115. X Act of Maryland. Session of 1784, 1785. In Pennsylvania Packet of 8 February 1785. 1784-'5. KEGULATIOX OF COMMERCE. FIFTH CONGRESS. 137 tinent ; as a citizen of the American empire, every individual has a national interest far superior to all others." * The outlays in America of the British in the last year of their occupation of New York, and the previous expenditures for the French army, had supplied the northern states with specie ; so that purchasers were found for the bills of Robert Morris on Europe, which were sold at a discount of twenty or even forty per cent.f The prospect of enormous gains tempted American merchants to import in one year more than their exports could pay for in three ; :J: while factors of English houses, bringing over British goods on British account, jostled the American merchants in their own streets. Fires which still bum were then lighted. He that will trace the American policy of that day to its cause must look to British restrictions and British protective duties suddenly applied to Americans as aliens. The people had looked for peace and prosperity to come hand in hand, and, when hostilities ceased, they ran into debt for English goods, never doubting that their wonted industries would yield them the means of payment as of old. But ex- cessive importations at low prices crushed domestic manufac- tures ; trade with the British West Indies was obstructed ; neither rice, tobacco, pitch, turpentine, nor ships could be re- mitted as heretofore. The whale fishery of Massachusetts had brought to its mariners in a year more than eight hundred thousand dollars in specie, the clear gain* of perilous labor. The export of their oil was now obstructed by a duty in Eng- land of ninety dollars the ton. Importations from England must be paid for chiefly by cash and bills of exchange. The Americans had' chosen to be aliens to England ; they could not complain of being taxed like aliens, but they awoke to demand powers of retaliation. The country began to be in earnest as it summoned con- gress to change its barren discussions for efficient remedies. The ever increasing voice of complaint broke out from the impatient commercial towns of the northern and central states. * Sketches of American Policy by Noah Webster, pp. 32-38. f Pclatiah Webster's Essays, Edition 1791, 266, 267, note. X E. Bancroft to \Y. Erazer, 8 November 1783. 138 ON THE WAY TO A FEDERAL CONVENTION, b. ii. ; ch. iv. On the eleventli of Jannarj 1785, the day on wliicli congress established itself in !New York, the artificers, tradesmen, and mechanics of that city, as they gave it a welcome, added these brave words : " We hope our representatives will coincide with the other states in angmeiiting your power to every exigency of the union." * The JSTew York chamber of commerce in like manner entreated it to make the commerce of the United States one of the first objects of its care, and to counteract the injurious restrictions of foreign nations, f The New York legislature, then in session, imposed a double duty on all goods imported in British bottoms. :j: On the twenty-second of March 1785 a bill to "protect the manufactures " of Pennsylvania by specific or ad valorem duties on more than seventy articles, among them on manufac- tures of iron and steel, was read in its assembly for the second time, debated by paragraphs, and then ordered to be printed for public consideration.* The citizens of Philadelphia, re- calling the usages of the revolution, on the second of June held a town-meeting ; and, after the deliberations of their com- mittee for eighteen days, they declared that relief from the oppressions under which the American trade and manufac- tures languished could spring only from the grant to congress of full constitutional powers over the commerce of the United States; that foreign manufactures interfering with domestic industry ought to be discouraged by prohibitions or protective duties. They raised a committee to lay their resolutions in the form of a petition before their own assembly, and to correspond with committees appointed elsewhere for similar purposes. On the twentieth of September, after the bill of the Pennsylvania legislature had been nearly six months under consideration by the people, and after it had been amended by an increase of duties, especially on manufactures of iron, and by a discriminat- ing tonnage duty on ships of nations having no treaty of com- merce with congress, it became a law || with general acclamation. * MS. vol. of Eemonstranccs and Addresses, 343. f MS. vol. of Remonstrances and Addresses, 351. :f: Chief Justice Smith's extract of letters from New York. MS. * Pennsylvania Packet, 18 May 1785. jl The Act appears in full in Pennsylvania Packet of 22 September 1785. Van Berckel's report to the States-General, 4 October 1785. 1785. REGULATION" OF COMMERCE. FIFTH CONGRESS. I39 Pennsylvania liad been cheered on its way by voices from Boston. On tlie eighteenth of April the merchants and trades- men of that town, meeting in Faneuil Hall, established a com- mittee of correspondence with merchants of other towns, bound themselves not to buy British goods of resident British factors, and prayed congress for the needed immediate relief.* Their petition was reserved by congress for consideration when the report of its committee on commerce should be taken up. The movement in Boston penetrated every class of its citizens ; its artisans and mechanics joined the merchants and tradesmen in condemning the ruinous excess of British importations. To these proceedings Grayson directed the attention of Madison.f On the tenth of May the town of Boston elected its repre- sentatives to the general court, among them Hancock, vdiose health had not permitted him to be a candidate for the place of governor. Two years before, Boston, in its mandate to the men of its choice, had, in extreme language, vindicated the absolute sovereignty of the state ; the town, no longer wedded to the pride of independence, instructed its representatives in this wise : Peace has not brought back prosperity ; foreigners monopolize our commerce ; the American carrying trade and the American finances are threatened with annihilation ; the government should encourage agriculture, protect manufac- tures, and establish a public revenue ; the confederacy is inade- quate to its purposes ; congress should be invested with power competent to the wants of the country; the legislature of Massachusetts should request the executive to oj^en a corre- spondence with the governors of all the states ; from national unanimity and national exertion we have derived cur free- dom ; the joint action of the several parts of the union can alone restore happiness and security. :j: ISTo candidate for the office of governor of Massachusetts having for that year received a majority of the votes of the people, the general court, in May 1785, made choice of James Bowdoin, a veteran statesman who thirty years before had distinguished himself in the legislature by a speech in favor of the union of the colonies. He had led one branch of * Journals of Congress, iv., 516, 517. f Grayson to lladison, 1 May 1785. :j: Boston Town Records. MS. 140 OK THE WAY TO A FEDERAL CONVENTION, b.ii.; oh.iv. the government in its resistance to British usurpations ; and, when hostilities broke out, he served his native state as presi- dent of its supreme executive council till the British were driven from the commonwealth. His long years of public ser- vice had established his fame for moderation, courage, consist- ency, and uprightness. A republican at heart, he had had an important share in framing the constitution of Massachusetts. In his inaugural address he scorned to complain of the restrict- ive policy of England, saying rather : Britain and other na- tions have an undoubted right to regulate their trade with us ; and the United States have an equal right to regulate ours with them, j Congress should be vested with all the powers neces- sary to preserve the union, manage its general concerns, and promote the common interest. For the commercial inter- course with foreign nations the confederation does not suffi- ciently provide. " This matter," these were his words, " mer- its your particular attention ; if you think that congress should be vested with ampler powers, and that special delegates should be convened to settle and define them, you will take measures for such a convention, whose agreement, when confirmed by the states, would ascertain those powers." In reply, the two branches of the legislature jointly pledged " their most earnest endeavor " to establish " the federal gov- ernment on a firm basis, and to perfect the union ; " and on the first day of July the general court united in the following resolve : " The present powers of the congress of the United States, as contained in the articles of confederation, are not fully adequate to the great purposes they were originally de- signed to eifect." * That the want of adequate powers in the federal govern- ment might find a remedy as soon as possible, they sent to the president of congress, through their own delegation, the reso- lution which they had adopted, with a circular letter to be forwarded by him to the supreme executive of each state ; and they further " directed the delegates of the state to take the earliest opportunity of laying them before congress, and mak- ing every exertion to carry the object of them into effect." f * Massachusetts Repolve, Ixxvi., in Resolves, July 1*785, 38, 39. f Massachusetts Resolve, Ixxix. 1785. REGULATION" OF COMMERCE. FIFTH CONGRESS. 141 In concert with New Hampshire, and followed bj Ehode Island, they passed a navigation act forbidding exports from their harbors in British bottoms, and establishing a discrimi- nating tonnage duty on foreign vessels ; '^ but only as " a tem- porary expedient, until a well-guarded power to regulate trade shall be intrusted to congress." f Domestic manufactures were protected by more than a fourfold increase of duties ; j^ and " congress was requested to recommend a convention of dele- gates from all the states to revise the confederation and report how far it may be necessary to alter or enlarge the same, in order to secure and perpetuate the primary objects of the union." * In August, the council of Pennsylvania and Dickinson, its president, in a message to the general assembly, renewed the recommendation adopted in that state two years before, say- iug : " We again declare that further authorities ought to be vested in the federal council; may the present dispositions lead to as perfect an establishment as can be devised." || To his friend Bowdoin John Adams wrote : " The Massa- chusetts has often been wise and able ; but she never took a deeper measure than her late navigation act. I hope she v/ill persist in it even though she should be alone." "^ The nation looked to congress for relief. In 1776 James Monroe left the college of William and Mary to enter the army ; when but nineteen he gained an honorable wound and promotion ; and rapidly rose to the rank of colonel. Jefferson in 1781 described him as a Virginian " of abilities, merit, and fortune," and as " his own particular friend." {) In 1782 he was of the assembly of Virginia ; and was chosen at three-and- twenty a member of the executive council. In 1783 he was elected to the fourth congress, and at Annapohs saw "Washing- * Annual Register, xxvii., 356. Pennsylvania Packet of 18 July lYSS has the Massachusetts act, and of 20 July that of New Hampshire. f Bowdoin's circular of 28 July, enclosing the act. MS. X Bradford's Massachusetts, ii., 244 ; Pennsylvania Packet, 19 July 1785, ^ Massachusetts Pesolves, Ixxvi., 1 July 1785. Resolves of the General Court, p. 38. y Minutes of Pennsylvania Council, 25 August 1785. Colonial Records, xiv. 523. ^ Adams to Governor Bowdoin, 2 September 1785. MS. ^ Jefferson to Franklin, 5 October 1781. 142 ON THE WAY TO A FEDERAL CONVENTION, b. ii. ; on. iv. ton resign his commission. Wlien Jefferson embarked for France, lie remained, not the aljlest, but the most conspicuous representative of Virginia on the floor of congress. He sought the friendship of nearly every leading statesman of his com- monwealth ; and every one seemed glad to call him a friend. It V7a3 hard to say whether he was addressed with most affec- tion by Jefferson or by John Marshall. His ambition made him jealous of Randolph ; the jDrecedence of Madison he ac- knowledged, yet not so but that he might consent to become his rival. To Richard Henry Lee he turned as to one from whose zeal for liberty he might seek the confirmation of hio own. Everybody in Virginia resented the restrictive policy of England. Monroe, elected to the fifth congress, embarked on the tide of the rising popular feeling. He was willing to in- vest the confederation with a perpetual grant of power to regu- late commerce ; but on condition that it should not be exer- cised without the consent of nine states. He favored a revenue to be derived from imports, provided that the revenue should be collected under the authority and pass into the treasury of the state in which it should accrue.^' He from the first applauded the good temper and propriety, of the new congress, the comprehensiveness of mind wdth w^hich they attended to the public interests, and their inclina- tion to the most general and liberal principles, which seemed to him " really to promise great good to the union." They showed the like good-will for him. On bringing forward the all-important motion on commerce, they readily referred it to himself as the chief of the committee, with four associates, of whom Spaight from North Carolina, and Houston from Georgia, represented the South ; King of Massachusetts, and Johnson of Connecticut, the North. The complaisant committee lent their names to the pro- posal of Monroe, whose report was read in congress on the twenty-eighth of March.f It was to be accompanied by a ■"' Monroe to Jefferson, 14 December 1784. f Sparks, ix., 503, gives the report in its first form ; his date, hovrever, is erroneous, from a misunderstanding of a letter of Grayson, in Letters to "Washing- ton, iv., 102, 103. The day on which the report was made is not certain; the day 1785. EEGULATION OF COMMERCE. FIFTH CONGRESS. 143 letter to be addressed to the legislatures of tlie several states explaining and recommending it ; and the fifth day of April was assigned for its consideration. But it was no part of Monroe's plan to press the matter for a decision. "It will be best," so he wi'ote to Jefferson, "to postpone this for the present ; its adoption must depend on the several legislatures. It hath been brought so far without a prejudice against it. If carried farther here, I fear prejudices will take place. It proposes a radical change in the whole system of our government. It can be carried only by thorougb investigation and a conviction of every citizen that it is right. The slower it moves on, therefore, in my opinion, the better." ^ Jefferson, as he was passing through Boston on his way to France, had shown pleasure at finding " the conviction grow- ing strongly that nothing could preserve the confederacy unless the bond of union, their common council, should be strength- ened." f He now made answer to the urgent inquiries of Monroe : " The interests of the states ought to be made joint in every possible instance, in order to cultivate tbe idea of our being one nation, and to multiply the instances in Vv^hich the people shall look up to congress as their head." He approved Monroe's report mthout reservation ; but wished it adopted at once, " before the admission of western states." J Months passed away, bat still the subject was not called up in congress ; and the mind of Monroe as a southern statesman became shaken. The confederation seemed to him at present but little more than an offensive and defensive alliance, and if the right to raise troops at pleasure was denied, merely a defen- sive one. His report would put the commercial economy of every state entirely and permanently into the hands of the on which it "O'as read was certainly the 28th of March. The report of the commit- tee is in the volume, " Reports of Committees on Increasing; the Powers of Con- gress," p. 125, with a copy in print. The few corrections that have been made in the copy are in the handwriting of Monroe. The State Dept. MS. copy is in- dorsed : Report of Mr. Monroe, Mr. Spaight, Mr. Houston, Mr. Johnson, Mr. King. See 1 1 March — to grant congress power of regulating trade. Entered — read 23 March 1785. Tuesday, April 5, assigned. * Monroe to Jefferson, New York, 12 April 1'785. f Jefferson to ^ladison, Boston, 1 July IVSI. ^ Jefierson to Monroe, Paris, IV June 1VS5. Jefferson, i,, 847. 144 0:tT THE WAY TO A FEDEEAL CONVENTIOK B.n.; cn.iv. Tinioii ; wliicli might then protect the carrying trade, and en- courage domestic industry by a tax on foreign industry. He asked himself if the carrying trade would increase the wealth of the South ; and he cited " a Mr. Smith on the Wealth of I^ations," as having written " that the doctrine of the balance of trade is a chimera." * The southernmost states began to reason that Maryland had a great commercial port, and, like Delaware, excelled in naval architecture; and these, joining the seven northern states, might vote to themselves the monopoly of the transport of southern products. Besides, Virginia, more than any other state in the union, was opposed to the slave-trade j and Vir- ginia and all north of her might join in its absolute prohibi- tion. The three more southern states were, therefore, unwill- ing to trust a navigation act to the voice even of ten ; and in his report Monroe substituted eleven states for his first pro- posal of nine.f At last, on the thirteenth and fourteenth of July, the re" port was considered in a committee of the whole. It was held that the regulation of trade by the union was desirable, because it would open a way to encourage domestic industry by imposing a tax upon foreign manufactures;' because it was needed in order to secure reciprocity in commercial intercourse with foreign nations ; because it would counteract external commercial influence by establishing a commercial interest at home ; and because it would prepare the way for a navy. These ends could never be obtained unless the states should act in concert, for their separate regulations would impede and defeat each other. The opponents of the measure left their cause in the hands of Kichard Henry Lee, as their only spokesman ; and his ma- ture age, courteous manner, skill as an orator and debater, and his rank as president of congress, gave him great authority. He insisted that the new grant of power would endanger pub- lic liberty ; that it would be made subservient to further at- tempts to enlarge the authority of the government ; that the concentration of the control of commerce would put the coun- try more in the power of other nations ; that the interests of * Monroe to Jefferson, ]6 June HSS. f Monroe to Madison, 2G Julj 1785. 1785. EEGULATIOX OF COMMERCE. FIFTH CONGRESS. 145 the North were different from the interests of the Sonth ; that the regulation of trade which suited the one would not suit the other ; that eight states were interested in the carrying trade, and would combine together to shackle and fetter the ^ye southern states, which, without having shipping of their own, raised the chief staples for exportation ; and, finally, that any attempt whatever at a change in the articles of confederation had a tendency to weaken the union. In these objections Lee was consistent. He pressed upon Madison, vath earnest frankness, that power in congress to legislate over the trade of the union would expose the five staple states, from their want of ships and seamen, to a most pernicious and destructive monopoly ; that even the purchase, as well as the carrying, of their produce, might be at the mercy of the East and the l!^orth ; and that the spirit of commerce throughout the world is a spirit of avarice.* A plan of a navigation act originated with McHenry of Maryland ; but it came before congress only as a subject of conversation. Nothing was done with the report of Monroe, who said of it : " The longer it is delayed, the more certain is its passage through the several states ultimately ; " f and his committee only asked leave to sit again. " "We have nothing pleasing in prospect," wrote Jacob Read to Madison ; " and, if in a short time the states do not enable congress to act with vigor and put the power of compulsion into the hand of the union, I think it almost time to give over the form of what I cannot consider as an efficient government. We want, greatly want, the assistance of your abilities and experience in con- gress ; one cannot help drawing comparisons between the lan- guage of 1783 and 1785." J From the delegation of Yirginia no hope could spring; but the state which exceeded all others in the number of its freemen and in age was second only to the Old Dominion, had directed its delegates to present to congress, and through con- gress to the states, an invitation to meet in a convention and * R. n. Lee to Madison, 11 August lYSS. Rives, ii., 31, 32. Compare Monroe to Madison, 26 July 1785. \ Monroe to Jefferson, 15 August IVSS. :J: Jacob Read of South Carolina to Madison, 29 August 1785. YOL. VI. — 10 146 ON THE WAY TO A FEDERAL CONYENTIOK n. n. ; oh. it. revise the confederation. And now Gerrj, Holten, and Rufus King saw fit to disobey their instmctions, and suppressed the acts and resolves of Massachusetts, writing ; " Any alteration of the confederation is premature ; the grant of commercial power should be temporary, like the proposed treaties with European powers ; and for its adoption should depend on an experience of its beneficial results. Power over commerce, once delegated to the confederation, can never be revoked but by the unanimous consent of the states. To seek a reform through a convention is a violation of the rights of congress, and, as a manifestation of a want of confidence in them, must meet their disapprobation. A further question arises whether the convention should revise the constitution generally or only for express purposes. Each of the states in forming its own^ as well as the federal constitution, has adopted republican prin- ciples ; yet plans have been laid which would have changed our republican government into baleful aristocracies. The same sj)irit remains in their abettors. The institution of the Cincinnati will have the same tendency. The rotation of mem- bers is the best check to corruption. The requirement of the unanimous consent of the legislatures of the states for altering the confederation effectually prevents innovations by intrigue or surprise. The cry for more power in congress comes espe- cially from those whose views are extended to an aristocracy that will afEord lucrative employments, civil and military, and require a standing army, pensioners, and placemen. The pres- ent confederation is preferable to the risk of general dissen- sions and animosities." * Bowdoin replied : " If in the union discordant principles make it hazardous to intrust congress with powers necessary to its well-being, the union cannot long subsist." f Gerry and King rejoined: "The best and surest mode of obtaining an addition to the powers of congress is to make the powers tem- porary in the first instance. If a convention of the states is necessary, its members should be confined to the revision of * Tills paper, and a letter which preceded it of 18 August 1785, I found only as copied into the Letter Book in the office of the Secretary of State of Massa- chusetts, Letter Book, viii., 204, 205, 210-213. f Bowdoia to Massachusetts Delegates in Congress, 24 October 1'7&5. 1785. EEGULATICN OF COMMERCE. FIFTH CONGRESS. 147 such parts of the confederation as are supposed defective ; and not intrusted with a general revision of the articles and the right to report a plan of federal government essentially differ- ent from the republican form now administered." * These letters of Gerry and King met with the concurrence of Samuel Adaras,f and had so much weight with the general court as to stay its further action. Nor did the evil end there. All the arOTments and insinuations aorainst a new constitution as sure to supersede republican government by a corrupt and wastef q1 aristocracy, were carried into every village in Massa- chusetts, as the persistent judgment of their representatives in congress with the assent of the home legislature. It remained to see if anything could come from negotia- tions in Europe. A treaty with England was in importance paramount to all others. In ITS 3 Adams with Jay had crossed the channel to England, but had been received with coldness. The assent of the United States to the definitive treaty of peace was long delayed by the difficulty of assembling in con- gress nine states for its confirmation. At length, on the twelfth of May 1784, the exchange of ratifications took place at Paris. The way being thus opened, the three American commissioners for negotiating treaties — Franklin, John Adams, and Jefferson — informed the duke of Dorset, then British ambassador at Paris, that they had fall powers to negotiate a commercial treaty with Great Britain, and for that end were ready to repair to London. The British government consulted the English merchants trading with North America ; and near the end of March of the following year the duke answered : " I have been instructed to learn from you, gentlemen, what is the real nature of the powei's with which you are invested ; whether you are merely commissioned by congress, or have received separate powers from the separate states. The apparent deter- mination of the respective states to regulate their own separate interests renders it absolutely necessary, toward forming a per- manent system of commerce, that my court should be inf ornied how far the commissioners can be duly authorized to enter into * Gerry and King to Governor Bowdoin, 2 November 1785. f Adams to Gerry, 19 September 1785, in reply to a letter from Gerry of 5 September. 148 ON THE WAY TO A FEDERAL CONVENTION, b.ii.; ch.iv. any engagements with Great Britain, wliicli it may not be in the power of any one of the states to render totally fruitless and ineffectual.'' "When Franklin, taking with him the love of France,* pre- pared to sail for America, congress, breaking up their trium- viral commission in Europe, appointed Jefferson to be minister to France, John Adams to Great Britain. Adams gave the heartiest welcome to his " old friend and coadjutor," in whom he found undiminished "industry, intelligence, and talents," and, full of courage if not of hope, hastened to London. On the first day of June Lord Carmarthen, the secretary of state, presented him to the king. Delivering his credentials, he in perfect sincerity declared : " I shall esteem myself the happiest of men if I can be instrumental in recommending my country more and more to your Majesty's royal benevolence, and of restoring the old good nature and the old good humor between people who, though separated by an ocean and under different governments, have the same language, a similar religion, and kindred blood." The king answered with more tremor than the bold repub- lican had shown : " I wish it understood in America that I have done nothing in the late contest but what I thought my- self indispensably bound to do by the duty which I owed to my people. I will be very frank with you. I was the last to consent to the separation; but, the separation having been made, I have always said, as I say now, that I would be the first to meet the friendship of the United States as an independ- ent power. The moment I see such sentiments and language as yours prevail, and a disposition to give to this country the preference, that moment I shall say, let the circumstances of language, religion, and blood have their natural and full ef- fect." f The suggestion of a preference by treaty was out of place. The Enghsh had it without a treaty by their skill, the recipro- cal confidence of the merchants of the two nations, and the habits of the Americans who were accustomed only to the con- sumption of British goods. But a change had come over the * Rayneval to Franklin, 8 May 1785. Diplomatic Correspondence, ii., 47. f Diplomatic Correspondence, iv., 200, 201. 1785. REGULATI02^ OF COMMERCE. FIFTH CONGRESS. 149 spirit of England. Before the end of three years of peace, all respect and regard for America were changed into bitter dis- content at its independence, and a disbelief in its capacity to establish a firm government. The national judgment and popular voice, as expressed in pamphlets, newspapers, coffee- houses, the streets, and in both houses of parliament, had grown into an unchangeable determination to maintain against them the navigation acts and protective duties, and neither the administration nor the opposition had a thought of relaxing them. Great Britain was sure of its power of attracting American commerce, and believed that the American states were not, and never could be, united. All this had been so often affirmed by the refugees, and Englishmen had so often repeated them to one another, that to argue against it was like breathing against a trade wind. "I may reason till I die to no purpose,"* wrote Adams; "it is unanimity in America which will produce a fair treaty of commerce." Yet he pre- sented to Carmarthen a draft of one, though without hope of success. It rested on principles of freedom and reciprocity, and the principles of the armed neutrality with regard to neu- tral vessels. Like Franklin, like Jefferson, like Madison, he was at heart for free trade. " I should be sorry," said he to his friend Jef- ferson, " to adopt a monopoly, but, driven to the necessity of it, I would not do things by halves." f " If monopoHes and exclusions are the only arms of defence against monopolies and exclusions, I would venture upon them without fear of offend- ing Dean Tucker or the ghost of Doctor Quesnay." "But means of preserving ourselves can never be secured until con- gress shall be made supreme in foreign commerce." X On the twenty-fourth of August, when the adjournment of parliament brought leisure, Adams, then fifty years of age, met the youthful prime minister of Britain. Pitt, as any one may see in his portrait at Kensington, had in his nature far more of his mother than of the great Englishman who was his father. He had pride, but suffered from a feebleness of will which left * Adams to Jay, 26 June 1785. Works, viii., 2l&. \ Adams to Jefferson, V August 1785. Works, -viii., 292. X Adams to John Jay, 10 August, ibid., 299, 300. 150 ON THE WAY TO A FEDERAL CONVENTION, b.ii.; oh.iv. him the prej of inferior men. His own chosen measures were noble ones — peace, commercial relations with France, the im- provement of the public finances, the payment of the national debt. In the ministry of Shelburne, he had brought in a bill to promote commerce with America by modifjdng the naviga- tion act ; in his own lie abandoned the hopeless attem]3t. Reverting to the treaty of commerce which Adams had proposed, Pitt asked : ^' What are the lowest terms which will content America ? " Adams replied that the project he had communicated would secure the friendship of the United States and all the best part of their trade ; the public mind of Amer- ica is balancing between free trade and a navigation act ; and the question will be decided now by England; but if the Americans are driven to a navigation act, they will become attached to the system. " The United States," answered Pitt, " are forever become a foreign nation ; our navigation act would not answer its end if we should dispense with it toward you." " The end of the navigation act," replied Adams, " was to con- fine the commerce of the colonies to the mother country ; if carried into execution against us, now that we are become in- dependent, instead of confining our trade to Great Britain, it will drive it to other countries." " You allow we have a right to impose on you our navigation act," said Pitt. " Certainly," answered Adams, " and you will allow we have a correspond- ing right." " You cannot blame Englishmen," said Pitt, "for being attached to their ships and seamen." " Indeed, I do not," answered Adams ; " nor can you blame Americans for being attached to theirs." Pitt then asked plainly : " Can yon grant by treaty to England advantages which would not be- come immediately the right of France ? " " We cannot," an- swered Adams : " to the advantage granted to England with- out a compensation France w^ould be entitled without a com- pensation ; if an equivalent is stipulated for, France, to claim it, must allow us the same equivalent." Pitt then put the ques- tion : " What do you think that Great Britain ought to do ? " And Adams answered : " This country ought to prescribe to herself no other rule than to receive from America everything she can send as a remittance ; in which case America wiU take as much of British productions as she can pay for." 1785. REGULATI0:N' of commerce, fifth congress. 151 There were mutual complaints of failure in observing the conditions of the peace. Pitt frankly declared " the carrying oS. of negroes to be so clearly against the treaty that England must satisfy that demand ; " but he took no step toward sat- isfying it. The British government, yielding to the impor- tunity of merchants, and especially of fur- traders, kept posses- sion of the American posts at the West. This was a con- tinuance of war ; but Pitt excused it on the ground that, in Virginia and at least two other states, hindrances still remained in the way of British creditors. Congress was sincere in its efforts to obtain for them relief in the courts of the states ; but it wanted power to enforce its requisitions. Moreover, the Yirginia legislature, not without a ground of equity, delayed judgment against the Yirginia debtors until an offset could be made of the indemnity which Pitt liimself had owned to be due to them for property carried away by the British in disre- gard of the treaty of peace. The holding of the western posts had no connection with this debt and no proportion to it ; for the profits of the fur trade, thus secured to Great Britain, in each single year very far exceeded the whole debt of which the collection was postponed. The end of the interviev/ was, that Pitt enforced the navi- gation acts of England against America with unmitigated se- verity. For the western posts, Haldimand, as his last act, had strengthened the garrison at Oswego, and charged his suc- cessor to exclude the Americans from the enormously remu- nerative commerce in furs by restricting transportation on the lakes to British vessels alone.* In February of the next year, the British secretary of state announced that the posts would be retained till justice should be done to British cred- itors, t " They mean," wrote Adams, " that Americans should have no ships, nor sailors, to annoy their trade." " Patience will do no good ; nothing but reciprocal prohibitions and imposts will have any effect." He counselled the United States as their only reso irce to confine their exports to their own shij)S and * Haldimand to St. Loger, November 1YS4 ; Sidney to St. Leger, 30 April ITSS, and other letters of the like tenor. f Carmarthen to Adams, 28 February 1786. 152 ON" THE WAY TO A FEDERAL C0NVENTI02T. b.ii.; ch. iv. encourage their own manufactures, though he foresaw that these measures would so annoy England as in a few years to bring on the danger of war. * The French government could not be induced to change its commercial system for the sake of pleasing the United States ; it granted free ports ; but the Americans wanted not places of deposit for their staples, but an open market. On one point only did Yergennes bestow anxious attention. He feared the United States might grant favors to England ; and, at the re- quest of France, congress, when preparing to treat with the nations of Europe, gave assurance that it would "place no people on more advantageous ground than the subjects of his most Christian Majesty." Through the French envoy in America, Yergennes answered : " This declaration, founded on the treaty of the sixth of February 1778, is very agree- able to the king ; and you can assure congress that the United States shall constantly experience a perfect recijDrocity in France." f Jefferson, as minister, obtained a great reduction of the duty on American oil manufactured from fish ; ;}: but he was compelled to hear thrice over complaints that the trade of the United States had not learned the way to France ; and thrice over that the French government could not depend on engagements taken with the United States. Complaints, too, were made of the navigation acts of Massachusetts and 'New Hampshire, not without hints at retaliation. While some of the states of Europe forgot their early zeal to form commercial relations with the United States, the con- vention for ten years with Frederic of Prussia, to whose dis- patch, intelligence, and decision Adams bore witness, was com- pleted in May 1785, and in the following May was unani- mously ratified by congress. Free vessels made free goods. Arms, ammunition, and military stores were taken out of the class of contraband. In case of war between these two parties, merchant vessels were still to pass unmolested. Privateering was pronounced a form of piracy. Citizens of the one country * Adams to Jay, 30 August and 15 October lYSS. Works, viiL, 313 and 321. f Diplomatic Correspondence, ii., 33, 34, 35. .•}:Ibid.,ii., 491,492. 1785. REGULATION OF COMMERCE. FIFTH CONGRESS. 153 domiciled in the otlier were to enjoy freedom of conscience and worship, and, in case of war between the two parties, might still continue their respective employments. Spain had anxieties with respect to its future relations with America, and thought proper to accredit an agent to congress ; but neither with Spain, nor with France, nor with England was there the least hope of forming liberal commercial relations. American diplomacy had failed ; the attempt of the fifth con- gress to take charge of commerce had failed ; the movement for a federal convention, which was desired by the mercantile class throughout the union, had failed ; but encouragement came from South Carolina. William Moultrie, its governor, gave support to Bowdoin of Massachusetts, saying : " The existence of this state with every other as a nation depends on the strength of the union. Cemented together in one common interest, they are invincible ; divided, they must fall a sacrifice to internal dissensions and foreign usurpations." * The heart of American statesmen beat high with hope and resolution. " It is my first wish," wrote Jay, the American secretary for foreign affairs, in 1785, " to see the United States assume and merit the charac- ter of ONE GREAT NATioiN'." f " It has cvcr been my hobby- horse," wrote John Adams early in 1786, while minister of the United States in England, "to see rising in Amer- ica an empire of liberty, and a prospect of two or three hun- dred millions of freemen, without one noble or one king among them." :j: The confederation framed a treaty with the emperor of Morocco ; it was not rich enough to buy immunity for its ships from the corsair powers of Barbary. Through congress no hope for the regeneration of the union could be cherished. Before we look for the light that may rise outside of that body, it will be well to narrate what real or seeming obstacles to union were removed or quieted, and what motives compelling the forming of a new constitu- tion sprung from the impairment of the obligation of contracts by the states. * Moultrie to Bowdoin, 10 September 11S5. f Life of John Jay by his son, i., 190. :{: The Life and Works of John Adams, ix., 546. 151- 0^ THE WAY TO A FEDERAL CONVENTIOK b.ii.: oh. v. CIIAPTEE Y. OBSTACLES TO U^IOIT REMOVED Olt QUIETED. 1783-1787. The early confederacy of I^ew England, thongli all its colo- nies were non-conformists, refused fellowship to Rhode Island on account of its variance in dissent. Yirginia and Maryland were settled in connection with the church of England, which at the period of the revolution was still the established church of them both. In the constitution of the Carolinas the philoso- pher Locke introduced a clause for the disfranchisement of the atheist, not considering that the power in the magistrate to inflict a penalty on atheism implied the power which doomed Socrates to drink poison and filled the catacombs of Rome with the graves of martyrs. On the other hand, the Baptists, nurslings of adversity, driven by persecution to find resources within their ow^n souls, when they came to found a state in America, rested it on the truth that the spirit and the mind are not subordinate to the temporal power. For the great central state, the people called Quakers in like manner affirmed the right to spiritual and intellectual liberty, and denied to the magistrate all control over the support of religion. To form a perfect political union it was necessary, in all that relates to re- ligion, that state should not be in conflict with state, and that every citizen, in the exercise of his rights of intercitizenship, should be at his ease in any state in which he might sojourn or abide. In a repnblican country of wide extent, ideas rule legis- lation; and the history of reform is the history of thought, gaining strength as it passes from mind to mind, till it finds a place in a statute. We have now to see how it came to pass 1783-1787. OBSTACLES TO UNION" KEMOVED. 155 that tlie oldest state in the union, first in territory and in num- bers, and, from its origin, the upholder of an established church, renounced the support of religious worship by law, and esiablished the largest liberty of conscience. The legislature of Virginia, within a half year after the declaration of independence, while it presented for public con- sideration the idea of a general assessment for the support of the Christian religion,"^ exempted dissenters from contributions to the established church. In 1770 this exemption was ex- tended to churchmen, so that the church was disestablished. But the law for religious freedom, which Jefferson prepared as a i^art of the revised code, was submitted to the deliberate reflection of the people before the vote should be taken for its adoption. The Massachusetts constitution of 1780 compelled every member of its legislature on taking his seat to subscribe a declaration that he believed the Christian religion. This reg- ulation Joseph Hawley, who had been elected to the first senate of Massachusetts, in a letter to that body, sternly con- demned. A member of the Congregational church of !North- ampton, severe in his morality, and of unquestioned ortho- doxy, he called to mind that the founders of Massachusetts- while church membership was their condition for granting the privilege of an elector, never suffered a profession of the Christian religion to be made before a temporal court. More- over, he held the new requirement to be against common right and the natural franchises of every member of the common- wealth, f In this way, from the heart of rigid Calvinism a protest was heard against any right in the temporal power to demand or to receive a profession of faith in the Christian re- ligion. The church member was subject to no supervision but of those with whom he had entered into covenant. The tem- poral power might punish the evil deed, but not punish or even search after the thought of the mind. The inherent perverseness of a religious establishment, of which a king residing in another part of the world and en- forcing hostile political interests was the head, showed itself in * n^'nirg, ix., 165. Jefferson's Autobiography. f Joseph Hawley to Massachusetts Senate, 28 October 1780. 156 ON THE WAY TO A FEDERAL CONVENTION, b.ii.; oh.v. Yirginia. The majority of the legislators were still cliurcli- men ; but gradually a decided majority of the people had become dissenters, of whom the foremost were Baptists and Presbyterians. When the struggle for independence was ended, of ninety-one clergymen of the Anglican church in Yirginia, twenty-eight only remained. One fourth of the parishes had become extinct. Churchmen began to fear the enfeeblement of religion from its want of compulsory support and from the excesses of fanaticism among dissenters. These last had made their way, not only without aid from the state, but under the burden of supporting a church which was not their own. The church which had leaned on the state was alone in a decline. The system of an impartial support by the state of all branches of Christians was revived by members of "the Protestant Episco- pal church," as it now began to be called. Their petitions? favored by Patrick Henry, Harrison, then governor, Pendle- ton, the chancellor, Pichard Henry Lee, and many others of the foremost men, alleged a decay of public morals ; and the remedy ashed for was a general assessment, analogous to the clause in the constitution of Massachusetts which enjoined upon its towns " the maintenance of pubHc Protestant teachers of piety, religion, and morality." * The Presbyterians at first were divided. Their clergy, even while they held that human legislation should concern human affairs alone, that conscience and religious w^orship lie beyond its reach, accepted the measure, provided it should respect every human belief, even "of the Mussulman and the Gen- too." The Presbyterian laity, accustomed to support their own ministry, chose rather to continue to do so. Of the Bap- tists, alike ministers and people rejected any alHance with the state. Early in the autumnal session of the legislature of 1785, Patrick Henry proposed a resolution for a legal provision for the teachers of the Christian religion. In the absence of Jeffer- son, the opponents of the measure were led by Madison, whom Witherspoon had imbued with theological lore. The assess- ment bill, he said, exceeds the functions of civil authority. * Massachusetts Declaration of Rights, Article III. of 1780 1783-1787. OBSTACLES TO UNIOiT REMOVED. 157 The question has been stated as if it were, is religion neces- sary ? The true question is, are establishments necessary for religion ? And the answer is, they corrupt religion. The dif- ficulty of providing for the support of religion is the result of the war, to be remedied by voluntary association for religious purposes. In the event of a statute for the support of the Christian religion, are the courts of law to decide what is Christianity ? and, as a consequence, to decide what is ortho- doxy and what is heresy ? The enforced support of the Chris- tian religion dishonors Christianity. Yet, in spite of all the opposition that could be mustered, leave to bring in the bill was granted by forty-seven votes against thirty-two.* The bill, when reported, prescribed a general assessment on all tax- able property for the support of teachers of the Christian re- ligion. Each person, as he paid his tax, was to say to which society he dedicated it ; in case he refused to do so, his pay- ment was to be applied toward the maintenance of a county school. On the third reading the bill received a check, and was ordered by a small majority to be printed and distributed for the consideration of the people. Thus the people of Vir- ginia had before them for their choice the bill of the revised code for establishing religious freedom, and the plan of de- sponding churchmen for supporting religion by a general assessment. All the state, from the sea to the mountains and beyond them, was alive with the discussion. Madison, in a remon- strance addressed to the legislature, imbodied all that could be said against the compulsory maintenance of Christianity and in behalf of religious freedom as a natural right, the glory of Christianity itself, the surest method of supporting religion, and the only way to produce moderation and harmony among its several sects. George Mason, who was an enthusiast for entire freedom, asked of "Washington his opinion, and received for answer that " no man's sentiments were more opposed to any kind of restraint upon religious principles." While he was not among those who were so much alarmed at the thought of making people of the denominations of Christians pay to- ward the support of that denomination which they professed, * Madison to Jefferson, 9 January 1785. Madison, L, 130. 158 ON THE WAY TO A FEDERAL CONYEN-TIOK b.ii.; on. v. provided Jews, Mahometans, and others who were not Chris- tians, might obtain proper relief, his advice was given in these w^ords : " As the matter now stands, I wish an assessment had never been agitated ; and, as it has gone so far, that the bill could die an easy death." * The general committee of the Baptists unanimously ap- pointed a delegate to remonstrate with the general assembly against the assessment, and they resolved that no human laws ought to be established for that purpose ; that every free per- son ought to be free in matters of religion, f The general convention of the Presbyterian church prayed the legislature expressly that the bill concerning religious freedom might be passed into a law as the best safeguard then attainable for their religious rights. J When the legislature of Virginia assembled, no one was willing to bring forward the assessment bill, and it was never heard of more. Out of one hundred and seventeen articles of the revised code which v/ere then reported, Madison selected for immediate consideration the one which related to religious freedom. The people of Virginia had held it under delibera- tion for six years ; in December 1785 it passed the house by a vote of nearly four to one. Attempts in the senate for amend- ment produced only insignificant changes in the preamble, and on the sixteenth of January 1786 Virginia placed among its statutes the very words of the original draft by Jefferson with the hope that they would endure forever: ^''No man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall suffer on account of his religious opinions or belief ; opinion in matters of religion shall in no wise diminish, enlarge, or affect civil capacities. The rights hereby asserted are of the natural rights of man- kind." # " Thus," says Madison, " in Virginia was extinguished for- ever the ambitious hope of making laws for the human mind." The principle on which religious liberty was settled in Virginia prevailed at once in Maryland. In every other American * Washington to George Mason, 3 October 1785. Sparks, ix., 137. f Semple's History of the Baptists, etc., 71 ; Foote's Sketches of Virginia, 844 X Madison, i., 213. » Hening, xii., 86. 1783-1787. OBSTACLES TO UNION EEMOVED. 159 state oppressive statutes concerning religion fell into disuse and were gradually repealed. Survivals may still be found, as in nature we in this day meet with survivals of an earlier geo- logical period. It had been foreseen that '' the happy conse- quences of the grand experiment on the advantages which accompany tolerance and liberty would not be limited to America." * The statute of Virginia, translated into French and into Italian, was widely circulated through Europe. A part of the work of " the noble army of martyrs " was done. During the colonial period the Anglican establishment was feared, because its head was an external temporal power en- gaged in the suppression of colonial liberties, and was favored by the officers of that power even to the disregard of justice. National independence and religious freedom dispelled the last remnant of jealousy. The American branch at lirst thought it possible to perfect their organization by themselves; but they soon preferred as their starting-point a iinal fraternal act of the church of England. No part of the country, no sect, no person showed a disposition to thwart them in their pur- pose ; and no one complained of the unofficial agency of Jay, the American minister of foreign affairs at home, and of John Adams, the American minister in London, in aid of their de- sire, which required the consent of the British parliament and a consecration by the Anglican hierarchy. Their wish having been fulfilled in the form to which all of them gave assent and which many of them regarded as indispensable, the Prot- estant Episcopal church of the United States moved onward with a life of its own to the position which it could never have gained but by independence. For America no bishop was to be chosen at the dictation of a temporal power to electors un- der the penalty of high treason for disobedience ; no advowson of church livings could be tolerated ; no room was left for simony ; no tenure of a ministry as a life estate vras endured where a sufficient reason required a change ; the laity was not represented by the highest officer of state and the legislature, but stood for itself ; no alteration of prayer, or creed, or gov- ernment could be introduced by the temporal chief, or by that chief and the legislature. The rule of the church proceeded * Luzerne to Rayneval, 6 November 1784. 160 ON THE WAY TO A FEDERAL CONVENTION, b. ii. ; oh. t. from its own living power representing all its members. The Protestant Episcopal congregations in the several United States of America, including the clergy of Connecticut v/ho at first went a way of their own, soon fell into the custom of meeting in convention as one church, and gave a new bond to union. Since the year 1Y85 they have never asked of any American government a share in any general assessment, and have grown into greatness by self-reliance. The acknowledged independence of the United States called suddenly into a like independence a new and self -created rival Episcopal church, destined to spread its branches far and wide over the land with astonishing rapidity. Out of a society of devout and studious scholars in the University of Oxford, within less than sixty years, grew the society of Methodists. As some of the little republics of ancient time selected one man as their law-giver, as all men on board a ship trnst im- plicitly to one commander during the period of the voyage, so the Methodist connection in its beginning left to John "Wes- ley to rule them as he would. Its oldest society in the states was at New York, and of the year 1766. In 177 2 Wesley ap- pointed, as his ^' general assistant " in America,* Francis As- bury, a missionary from England, a man from the people, who had " much wisdom and meekness ; and under all this, though hardly to be perceived, much command and authority." f Wesley never yielded to the temptation to found a sepa- rate church within British dominions, and during the war of American independence used his influence to keep the societies which he governed from renouncing their old allegiance. But no sooner had the people of the United States been recognised as a nation by the king of England himself, and the movement to found an American episcopacy had begun, than he burst the bonds that in England held him from schism, and resolved to get the start of the English hierarchy. In October 1783, in a general epistle, he peremptorily directed his American brethren to receive " Francis Asbury as the general assistant." :j: For nearly forty years Wesley had been persuaded that the apostolical succession is a " fable " ; that " bishops and presby- * Asbury's Journal, 10 October 1772. f Coke's Journal, 16. J Wesley to the brethren in Amex-ica, 3 October 1783. 1783-1787. OBSTACLES TO UmON KEMOYED. 161 ters are the same order, and have the same right to ordain." He looked upon himself to be as much a bishop " as any man in Europe," though he never allowed any one to call him by that name. In his service for the Methodists he substituted the word elders for priests, and superintendents for bishops. He, therefore, did not scruple, on the second day of Septem- ber 1784, himself, in his own private room at Bristol, in Eng- land, assisted by Coke and another English presbyter, to or- dain two persons as ministers, and then he, with the assistance of other ministers ordained by himself, equal at least in num- ber to the requisition of the canon, did, " by the imposition of his hands and prayer, set apart Thomas Coke, a presbyter of the church of England, as a superintendent, and, under his hand and seal, recommended him to whom it might concern as a fit person to preside over the flock of Christ." It is Coke himseK who writes of AYesley : " He did, indeed, solemnly invest me, as far as he had a right so to do, with episcopal authority." * Eight days later, in a general epistle, he thus addressed Thomas Coke, Francis Asbury, and the brethren in North America : " By a very uncommon train of providences, provinces in North America are erected into independent states. The English government has no authority over them, either civil or ecclesiastical. Bishops and presbyters are the same order, and consequently of the same right to ordain. In America there are no bishops who have a legal jurisdiction. Here, therefore, my scruples are at an end. I have according- ly appointed Dr. Coke and Mr. Francis Asbury to be joint superintendents over our brethren in North America. I can- not see a more rational and scriptural way of feeding and guid- ing those poor sheep in the wilderness. As our American brethren are now totally disentangled both from the state and from the English hierarchy, we dare not entangle them again either with the one or the other. They are now at full liberty simply to follow the Scriptures and the primitive church, and we judge it best that they should stand fast in that liberty wherewith God has so strangely made them free." Nor did Wesley neglect to frame from the Anglicaii Book of Common Prayer a revised liturgy for the new church, * Coke to Bishop White, 24 April 1791, in White's Memoirs, 424. TOL. VI. — 11 162 ON THE WAY TO A FEDERAL CONVENTION, b.ii.; ch.v. and a creed from wliicli tlie article on predestination was left out. On the eigliteenth of September, about two montlis before the nonjuring bishops of Scotland consecrated a bishop for Connecticut, Coke, the first Methodist " superintendent " for America, was on the water, emulous of the glory of Francis Xavier. " Oh, for a soul like his ! " he cried. " I seem to want the wings of an eagle or the voice of a trumpet, that I may proclaim the gospel through the east and the west, and the north and the south." Arriving in JSTew York, he ex- plained to the preacher stationed at that place the new regula- tion, and received for answer : " Mr. Wesley has determined the point ; and therefore it is not to be investigated, but com- plied with." * Coke journeyed at once toward Baltimore, where Asbury had his station. At Dover, in Delaware, " he met with Free- bom Garretson, an excellent young man, all meekness and love, and yet all activity." On Sunday, the fourteenth of November, the day on which a bishop for Connecticut was consecrated at Aberdeen, he preached in a chapel in the midst of a forest to a noble congregation. After the service, a plain, robust man came up to him in the pulpit and kissed him. He was not deceived when he thought it could be no other than Francis Asbury, who had collected there a considerable num- ber of preachers in council. The plan of Wesley pleased them all. At the instance of Asbury it was resolved to hold a gen- eral conference ; and " they sent off Freeborn Garretson like an arrow from north to south, directing him to dispatch mes- sengers right and left and gather all the preachers together at Baltimore on Christmas eve." f Thence Coke moved onward, baptizing adults and infants, preaching sometimes in a church, though it would not hold half the persons who wished to hear ; sometimes at the door of a cottage when the church-door was locked against him. :|: On Christmas eve, at Baltimore, began the great conference which organized the Methodists of America as a separate fold in the one " flock of Christ." Of the eighty-one American preach- ers, nearly sixty were present, most of them young. Here Coke * Coke's First Journal, 1,13. f Coke's Journal, 16. X Ibid., 27. 1783-1787. OBSTACLES TO UNION REMOVED. 163 took his seat as superintendent ; and here, joining to himself two elders, he set apart Francis Asbury as a deacon and on the next day as an elder. Here eleven or more persons were elected elders, and all of them who were present were consecrated ; here Asbury, who refused to receive the office of superintendent at the will of Wesley alone, was unanimously " elected bishop or superintendent by the suffrages of the whole body of Method- ist ministers through the continent, assembled in general con- ference ; " and here Coke, obeying the directions of Wesley, took to himself at least the canonical number of presbyters, and ordained him, Francis Asbury, as "a superintendent of the Methodist Episcopal Church in America." * In the or- dination sermon delivered on that day and published at the time, Colce asserts his own " right to exercise the episcopal office," and defines the title of superintendent as the equivalent of " bishop." t In April 1785 Coke began to exhort the Methodist socie- ties in Virginia to emancipate their slaves, and bore public testimony against slavery and against slave-holding. It pro- voked the unawakened to combine against him ; but one of the brethren gave liberty to his eight slaves. In North Caro- lina, where the laws of the state forbade any to emancipate their negroes, the Methodist conference drew up a petition to the assembly, entreating them to authorize those who were so disposed to set them free. Asbury visited the governor and gained him over. :j: At the Yirginia conference in May they formed a petition, of which a copy was given to every preacher, inviting the general assembly of Yirginia to pass a law for the immediate or gradual emancipation of all slaves. For this they sought the signature of freeholders. And yet in June the conference thought it prudent to suspend the minute con- cerning slavery on account of the great opposition given it, " our work," they said, " being in too infantile a state to push things to extremity." The Methodist itinerant ministers learned to love more and more ^' a romantic way of life," " the preaching to large con- * Coke's certificate, 27 December 1784. f Coke in Tyerman's Life and Times of John Wesley, iii., 437. X Coke's First Journal, 37. 164 ON THE WAY TO A FEDERAL CON"VENTIOK b. ii. ; on. v. gregations in the midst of great forests witli scores of horses tied to the trees." They had delight in the beauties of J^ature, and knew how to extract " from them all the sweetness they are capable of yielding." The Methodists did not come to rend an empire in twain, nor to begin a long series of wars which should shatter the civil and the religious hierarchies of former centuries, nor to tumble down ancient orders by some new aristocracy of the elect. Avoiding metaphysical contro- versy and wars of revolution, they came in an age of tran- quillity when the feeling for that which is higher than man had grown dull; and they claimed it as their mission to awaken conscience, to revive religion, to substitute glowing affections for the calm of indifierence. They stood in the mountain forests of the Alleghanies and in the plains beyond them, ready to kindle in emigrants, who might come without hymn-book or bible, their own vivid sense of religion ; and their leaders received from all parts, especially from Kentucky, most cheering letters concerning the progress of the cause in the " new western world." At peace with the institutions of the country in which they prospered, they were the ready friends to union. America was most thoroughly a Protestant country. The whole number of Catholics within the thirteen states, as re- ported by themselves, about the year 1784, was thirty-two thousand ^ve hundred. Twenty thousand, of whom eight thousand were slaves, dwelt in Maryland. The four southern- most states had but two thousand five hundred ; l^ew England but six hundred; New York and 'New Jersey, collectively, only seventeen hundred. Pennsylvania and Delaware, lands of tolerance, had seven thousand seven hundred. The French Catholics settled between the western boundary of the states and the Mississippi were estimated at twelve thousand more.* The rancor of the Jesuits against the house of Bourbon for exiling them from Prance and Spain was relentless. The Poman Catholic clergy in the insurgent British colonies had been superintended by a person who resided in London ; and during the war they were directed by Jesuits who favored the British. The influences which in South America led to most l'/83-178r. OBSTACLES TO UNION REMOVED. 165 disastrous results for Spain were of little consequence in the United States. It was Franklin's desire to do away with this influence unfriendly to France. The Roman see proceeded with caution ; and a letter from its nuncio at Paris, on the appointment of a bishop in the United States, was communi- cated to congress. In May 1784 they, in reply, expressed a readiness to testify respect to the sovereign and the state rep- resented by the nuncio, but, disavowing jurisdiction over a purely spiritual subject, referred him to the several states indi- vidually.* The British crown, and, at a later period, British legisla- tion, had arbitrarily changed the grants of territory held under the several colonial charters. Nearly three years before the preliminary treaty of peace, ISTew York, to facihtate union among the United States of America, led the way of relin- quishing pretensions to any part of the lands acquired by the treaty of peace. Virginia, which had a better claim to west- ern territory, resigned it for the like purpose, reserving only a tract between the Scioto and the Miami as an indemnity for the expenses of its conquest. Massachusetts persisted in no claim except to the ownership of lands in New York. The charter of Connecticut carried its line all the way to the Pacific ocean ; with great wariness Poger Sherman, so Grayson relates, connected the cession of the claims of his state with the re- serve of a district in the north-east of Ohio. The right of Connecticut to a reservation was denied by Grayson, and, in Sherman's absence from congress, stoutly and successfully de- fended by Johnson. A small piece of land between the line of New York and the eastern line of the Connecticut reserve remained to the United States. Pennsylvania purchased the land and obtained of congress a willing cession of the jurisdic- tion, thus gaining access to the lake and the harbor of Erie. South Carolina had certain undefined rights to territory in the West; she ceded them without qualification to the United States. The rights of Yirginia, North Carolina, and Georgia to extend to the Mississippi, like the right of Massachusetts to the lands in Maine, were unquestioned. In this manner the * FranMin'3 Works, ix., 548. Diplomatic Correspondence, iy., 158, 169. Se- cret Journals of Congress, iii., 493. 16G ON" THE WAY TO A FEDERAL CONVENTION, b.ii.; en. v. public domain, instead of exciting animosities and conflicting claims between rival states or between individual states and the general interest, served only to bind the members of the confederacy more closely together by securing one vast terri- tory in the West extending from the Ohio to the Lake of the Woods, to be filled, under the laws of the United States, alike by emigrants from them all. A more serious matt3r was that of the customs. ]^ew York had yielded to the temptation to establish a custom-house for the sole benefit of its own treasury. Richard Henry Lee taught the authors of the measure that they were defending the rights of the states, and preserving congress from the cor- rupting influence of an independent revenue. Comforted by these opinions of an eminent statesman whom congress had raised to its presidency, New York persisted in treating the revenue levied on the commerce of its port as its own ; and here was a real impediment to union. Sadder was the institution of slavery ; for the conflicting opinions and interests involved in its permanence could never be reconciled. 1787. l^EED OF AN OVERRULING UNION. 167 CHAPTER YL state laws impaieikg the obligation of contracts peove the need of an oveeeulinq union. Before May 1787. A BRILLIANT artist has painted Fortune as a beautiful woman enthroned on a globe, which for the moment is at rest, but is ready to roll at the slightest touch. A country whose people are marked by inventive genius, industry, and skill, whose immense domain is exuberantly fertile, whose abounding products the rest of the world cannot dispense with, may hold her fast, and seat her immovably on a pedestal of four square sides. The thirteen American states had a larger experience of the baleful consequences of paper money than all the world besides. As each of them had a legislation of its own, the laws were as variant as the5' were inconvenient and unjust. The shilling had differing rates from its sterling value to an eighth of a dollar. The confusion in computing the worth of the currency of one state in that of another was hopelessly increased by the laws, which discriminated between different kinds of paper issued by the same state; so that a volume could hardly hold the tables of the reciprocal rates of exchange. Moreover, any man loaning money or making a contract in his own state or in another, was liable at any time to loss by some fitful act of separate legislation. The necessity of pro- viding effectually for the security of private rights and the steady dispensation of justice, more,, perhaps, than., anything else, brought about the new constitution.* * Gilpin, 804 ; Elliot, 162. 1G8 ON THE WAY TO A FEDERAL CONVENTION b.it.; ch.ti. ]^ sooner had tlie cry of the martyrs of Lexington reached Connecticut than its legislature put forth paper money for war expenses, and continued to do so till October 1777. These were not made legal tender in private transactions/^ and there were no other issues till 1780. In October of that year the legislature of the state, once for all, interposed itself between the creditor and debtor. It discriminated between contracts that were rightly to be paid in gold and silver and contracts understood to be made in paper currency, whether of the continent or of the state. A pay-table for settling the progressive rate of depreciation was constructed; and, to avoid the injustice which might come from a strict application of the laws, it gave to the court au- thority through referees, or, if either party refused a reference, by itself, to take all circumstances into consideration, and to determine the case according to the rules of equity.f In this wise the relations between debtor and creditor in Connecticut were settled summarily and finally, and no room left for rankling discontent. The first of the ~New England states to issue paper money on the sudden call to arms was the first to return to the use of coin. The wide-spread move- ments of 178G for the issue of paper money never prevailed within its borders. Its people, as they were frugal, indus- trious, and honest, dwelt together in peace, while other states were rent by faction. Massachusetts, after the downfall of the continental paper, returned to the sole use of gold and silver in contracts ; but its statesmen had before them a most difiicult task, for the peo- ple had been tempted by the low prices of foreign goods to run into debt, and their resources, from the interruption of their sale of ships and fish-oil in England, of fish and lumber in the British West Indies, and from the ruin of home manu- facturers by the cheapness of foreign goods, were exhausted. While it established its scale of depreciation, it did not, like Connecticut, order an impartial and definitive settlement be- tween the creditor and debtor, but dallied with danger. In July 1782 it allowed, for one year, judgments to be satisfied * Bronson's Connecticut Currency, 137. f Laws of Connecticut, ed. 1786, 49, 50. 1787. NEED OF AN OVERRULING UNION. 169 by the tender of neat cattle or otlier enumerated articles at an appraisement ; but the creditor had only to wait till the year should expire. Repeated temporary stay-laws gave no real re- lief ; they flattered and deceived the hope of the debtor, exas- perating alike him and his creditor.* But when, in May 178G, a petition was presented from towns in Bristol county for an emission of paper money, out of one hundred and eighteen members in the house of representatives, it received only nine- teen votes, and only thirty-five out of one hundred and twenty- four supported the plan of making real and personal estate a tender on an appraisement in discharge of an execution. In like manner New Hampshire, after the peace, shunned the emission of paper money. Its people suifered less than Massachusetts, because they were far less in debt. Alone of the New England states, Ehode Island, after the peace, resumed the attempt to legislate value into paper. The question had divided the electors of the state into political parties ; the farmers in the villages were arrayed against the merchants and traders of the larger towns ; and in May 178 6, after a hard contest, the party in favor of paper money, with John Collins for governor, came into power. In all haste the legislature authorized the issue of one hun- dred thousand pounds to be loaned out to any man of Rhode Island at four per cent for seven years, after which one sev- enth was to be repaid annually. Those bills were made a legal tender except for debts due to charitable corporations. A large part of the debt of the state was paid in them. To escape the very heavy fine for refusing to sell goods for paper as the full equivalent of specie,f the merchants of New- port closed their shops. The act speedily provoked litigation. In September a complaint was made against a butcher for re- fusing to receive paper at par in payment for meat. The case was tried before a full bench of the five judges. Yarnum in an elaborate argument set forth the unconstitutionality of the law and its danger as a precedent. Goodwin answered that it conflicted with notliing in the charter, which was the fundamental law of Rhode Island. Judge Howell the next * Hinot's Insurrection of Massachusetts, 14. f Compare Otto to Vcrgcnncs, 6 August 178G. 170 O:^ THE WAY TO A FEDERAL CONVENTION, b.ii.; ch.yi. morning, delivering tlie unanimous opinion of the court, de- clared the acts unconstitutional and void, and dismissed the case as not within the jurisdiction of the court. At the de- cision, one universal shout of joj rang through the court-house. The assembly of Rhode Island summoned the judges to assign the reasons for their judgment. Three of the five obeyed the summons. At the next session of the legislature Howell, "with two associates, defended the opinion of the bench and denied the accountability of the supreme judiciary to the general assembly. The assembly resolved that no satisfactory reasons had been rendered by the bench for its judgment, and discharged them from further attendance. 'New York successfully extricated itself from the confusion of continental and state paper money; but in April of the fatal year 1783 its legislature, after long debates, made re- markable by the remonstrances of Duer, voted to emit two hundred thousand pounds in bills of credit. The money so emitted was receivable for duties, and was made a legal tender in all suits.* In the council of revision strong but not successful objec- tions were raised. Livingston,f the chancellor, set forth that a scarcity of money can be remedied only by industry and economy, not by laws that foster idleness and dissipation ; that the bill, under the appearance of relief, would add to the dis- tress of the debtor ; that it at the same instant solicited and destroyed credit ; that it would cause the taxes and debts of the state to the United States to be paid in paper. Hobart, one of the justices, reported that it would prove an unwar- rantable interference in private contracts, and to this objection Livingston gave his adhesion. Morris, the chief justice, ob- jected to receiving the bills in the custom-house treasury as money, and held that the enactment would be working iniquity by the aid of law ; but a veto was not agreed upon. :{: Livingston, the governor of J^ew Jersey, communicating to its legislature, in May 1783, the tidings of peace, said : " Let us show ourselves worthy of freedom by an inflexible attachment * Jones and Varick's New York Laws, ed. 1789, 283. f Street's Council of Rerision of the State of New York, 409. X Street's Council of Revision of the State of New York, 412,416. 178T. NEED OF AN OVERRULING UNION. 171 to public f aitli and national honor ; let us establish our charac- ter as a sovereign state '^ on the only durable basis of impartial and universal justice." The legislature responded to his words by authorizing the United States to levy the duty on commerce which had been required, and by making a provision for rais- ing ninety thousand pounds by taxation for the exigencies of the year. In settling debts it gave legal power to the court and jury to decide the case to the best of their knowledge, agreeably to equity and good conscience.f But in the follow- ing December it returned to paper money, and sanctioned the issue of more than thirty-one thousand pounds J to supply the quota of the state for the year. In the conflict, the arguments against paper money were stated so fully and so strongly, that later writers on political economy have added nothing to the practical wisdom of the thoughtful men of that day ; and yet in 1786 a bill for the emission of one hundred thousand pounds marched in triumph through its assembly, which sat with closed doors. The money was a tender ; if it was refused, the debt was suspended for twelve years. In the mean time the act of limitation continued in force, and in effect destroyed it. In the council the bill was lost by eight voices to Ave.* In consequence of this check, the effigy of Livingston, the aged governor, was drawn up to the stake near Elizabethtown, but not consigned to the flames from reverence for the first magistrate of the common* wealth ; that of a member of the council was burned. In May the governor and council thought proper to yield, and the bill for paper money became a law. A law for paying debts in lands or chattels was repealed within eight months of its enact- ment. The opulent state of Pennsylvania by a series of laws emerged from the paper currency of the war. But, in Decem- ber 1784, debts contracted before 1777 were made payable in three annual instalments. [ In 1785 one hundred and fifty * Mulford's New Jersey, 473. f Act of June 1783. Patcrson's Laws of New Jersey, ed. 1800, 50. If. Wilson's Laws of New Jersey, ed. 1Y84, 363. * Grayson to Madison, 22 March 1786. Otto to Vergennes, 17 March 1786. Q Dallas's Laws of Pennsylvania, ii., 2S6. 172 ON THE WAY TO A FEDERAL CONYENTIOK b, ii. ; cii. vi. thousand pounds were issued in bills of credit, to be received as gold and silver in payments to the sta,te ; * and fifty thou- sand pounds were emitted in bills of credit on loan, f The bank of the United States refusing to receive these bills as of equal value with its own, its act of incorporation by the state was repealed. In February 1785 Delaware called in all its outstanding bills of credit, whether emitted before or since the declaration of independence, with orders for redeeming them at the rate of one pound for seventy-live. After six months they would cease to be redeemable. J Maryland, in its June session of 1780, emitted thirty thou- sand pounds sterling to be a legal tender for all debts and con- tracts. In the same session it was enacted that all contracts expressed in writing to be in specie were to be paid in specie. In 1782 it enacted a stay-law extending to January 1781, and during that time the debtor might make a tender of slaves, or land, or almost anything that land produced; but the great attempt in 1786 to renew paper money, though pursued mth the utmost violence and passion, and carried in the assembly, was successfully held in check by the senate. Georgia, in August 1782, stayed execution for two years from and after the passing of the act. In February 1785 its bills of credit were ordered to be redeemed in specie certifi- cates, at the rate of one thousand for one. This having: been done, in August of the next year fifty thousand pounds were emitted in bills of credit, which were secured " by the guaran- teed honor and faith " of the state, and by a mortgage on a vast and most fertile tract of public land.* South Carolina attracted special attention. In February 1782 that state repealed its laws making paper money a legal tender. Twenty days later the commencement of suits was suspended till ten days after the sitting of the next general assembly. 1 The new legislature, in March 1783, established, * Dallas's Laws of Pennsylvania, ii., 257. f Ibid., 291 % Laws of Delaware, cd. 1797, 801. « Watkins's Digest of the Laws of Georgia, 314, 315. I Statutes at Large of South Caroliaa, iv., 513. 1787. NEED OF AN OVERRULING UNION. 1^3 as in other states, a table of depreciation, so that debts might be discharged according to their real value at the time of the original contract.* On the twentj-sixth day of March 1784 came the great ordinance for the payment of debts in four an- nual instalments, beginning on the first day of January 1786 ; f but before the arrival of the first epoch a law of October 1785, v^hich soon became known as the " barren land law," author- ized the debtor to tender to the plaintiff such part of his prop- erty, real or personal, as he should think proper, even though it were the very poorest of his estate, and the creditor must accept it at three fourths of its appraised value. Simultane- ously with this act South Carolina issued one hundred thou- sand pounds in bills of credit, to be loaned at seven per cent. The period for the instalments was renewed and prolonged. J During the war, ]^orth Carolina made lavish use of paper money. In April 1783, after the return of peace, it still, un- der various pretences, put into circulation one hundred thou- sand pounds — ^the pound in that state being equal to two and one half Spanish milled dollars ; and in the same session, but after much debate, suits were suspended for twelve months. The town of Edenton, using the words of James Iredell, in- structed their representatives and senator in these words : " We earnestly entreat, for tlie sake of our officers and soldiers, as well as our own and that of the public at large, that no more paper money under any circumstances may be made, and that, as far as possible, the present emission may be redeemed and burned.* But the protest availed nothing. In November 1785, one hundred thousand pounds paper currency were again ordered to be emitted, and to be a lawful tender in all pay- ments whatever. So, while the confederation was gasping for life, the finances of North Carolina, both pubHc and private, were threatened with ruin by an irredeemable currency. The redemption of the country from the blight of paper money depended largely on Virginia. The greatest state in the union, resisting the British governor and forces at the out- break of the revolution, conquering the ISTorth-west, the chief reliance of the army of Greene at the South, the scene of * Statutes at Largo of South Carolina, iv., 563. ^ ^bid., 710-712. f Ibid., 610, 641. * Life of Iredell, ii., 46, 63. lU OlvT THE WAY TO A FEDERxiL CONVENTIOI^. b.ii.; on. vi. the war in its last active year, Virginia far exceeded any other state in its emission of millions in j)aper money. After the victory at Yorktown, it ceased to vote new paper money. The old was declared to be no longer receivable, except for the taxes of the year, and it was made redeemable in loan office certificates at the rate of one thousand for one.* In retalia- tion for the most wanton destruction of projDerty, British debts were not recoverable in the courts. For others it constructed a scale of depreciation in the settlement of contracts made in the six years following the first of January 1777. It had stay- laws. For a short time it allowed executions to be satisfied by the tender of tobacco, flour, and hemp at a price to be settled every month by county courts. f For a year or two lands and negroes might be tendered on judgments, but every contract made since the first of January J 782 J was to be discharged in the manner specified by the contract. So Yirginia returned to the use of coin. But in 1785 rumors went abroad that the as- sembly was resolved to issue a paper currency. George Mason, then in private life, scoffed at solemnly pledging the public credit which had so often been disregarded, and declared that, though they might pass a law to issue paper money, twenty laws would not make the people receive it.* At the end of the session Madison could write to Jefferson || that, though the desire of paper money had discovered itself, " no overt attempt was made ! " It became known that Meriwether Smith and others, aided by an unfavorable balance of trade and the burden of heavy taxation, would at the next session move for a paper medium. Aware of the danger, Washington insisted that George Mason should be a candidate for the assembly ; and his election proved a counterpoise to the popular cry. Again, quoting from his own circular of June 1783, that " honesty will be found, on every experiment, the best policy," he encouraged Bland to firmness. The subject of paper money was introduced in October 1786 by petitions from two counties, was faintly sup- ported by " a few obscure patrons," was resisted as an encour- * Ilening, x., 455. f Hening, xi., Y5, 76. j- Ibid,, 176-180. * George Mason to Washington, 9 November 1785. II Works of Madison, i., 218. 17S7. NEED OF AN OVERRULING UNION. 175 agement to " fraud in states against each other," and " as a dis- grace to republican governments in the eyes of mankind;" then, by eighty-five against seventeen, it was voted to be " un- just, impolitic, destructive of public and private confidence, and of that virtue which is the basis of republican govern- ment " The words show the mind and hand of Madison. There was need of a new bill on the district courts, but it was clogged with the proposal for the payment of private debts in three annual instalments. Madison held that " no legislative principle could vindicate such an interposition of the law in private contracts," and the bill was lost, thouga but by one vote.* The taxes of the year were allowed to be paid in tobac- co as " a commutable." " These, and such like things," such was the unbending criticism of "Washington, " are extremely hurtful, and may be reckoned among the principal sources of the evils and the corruption of the present day ; and this, too, without accomplishing the object in view, for, if we mean to be honest, debts and taxes must be paid with the substance and not the shadow." f Excusing the legislature, Madison answered : " The original object was paper money; petitions for graduated certificates succeeded ; next came instalments, and lastly a project for making property a tender for debts at four fifths of its value ; all these have been happily got rid of by very large majorities." :j: The mind of the country bent itself with all its energy to root out the evils of paper money, and establish among the states one common rule by which the obligation of contracts might be preserved unimpaired. ]^o remedy would avail that did not reach them all. They found that for the security of money there were but two remedies : frugality to diminish the need of it, and increased industry to produce more of it. They found that paper money drives specie away ; that every new issue hastens its disappearance, destroying credit and creating a famine of money ; that every penalty for the refusal to ac- cept paper money at par lowers its worth, and that the heavier the penalty the more sure is the decline. They saw the death- blow that is given to credit, when confidence, which must be * Madison, i., 239, 252, 253, 255, 260, 265, 267. f Washington to Madison. MS. | Madison, i., 20*7, 268. 176 ON THE WAY TO A FEDERAL CONVENTION, b.ii.; ch. vi. voluntary, is commanded by force. Tliej saw that the use of paper money robs industry, frugality, and honesty of their natu- ral rights in behalf of spendthrifts and adventurers.* Gray- son held that paper money with a tender annexed to it is in conflict with that degree of security to property which is fun- damental in every state in the union, f He further thought that "congress should have the power of preventing states from cheating one anotlier, as well as their own citizens, by means of paper money." :j: Madison classified the evils to be remedied under the four heads of depreciated paper as a legal tender, of property sub- stituted for money in paj^ment of debts, of laws for paying debts by instalments, and " of the occlusion of the courts of justice." To root out the dishonest system effectually, he held it necessary to give the general government not only the right to regulate coin as in the confederation, but to prevent inter- ference with state, inter-state, and foreign contracts by separate legislation of any state. The evil was everywhere the subject of reprobation ; the citizens of Massachusetts, as we learn from one of its historians,* complained of "retrospective laws;" Pelatiah Webster of Philadelphia set forth that " these acts alter the value of contracts," || and William Paterson of 'New Jersey, one of the best writers of that day on the subject, pointed out that " the legislature should leave the parties to the law under which they contracted." For resisting reform, Phode Island and l^orth Carolina were likely to be the foremost ; for demanding it, and for persisting in the demand, Connecticut had the most hopeful record. Among the statesmen to whom the country might look in the emergency, no one had been more conspicuous or more efficient than Madison ; but Poger Sherman had all the while been a member of the superior court of his own state, and so by near observation under great responsibility had thoroughly studied every aspect of the obligation of contracts. * Compare the writings and opinions of "William Paterson, R. R. Livingston, R. n. Lee, Madison, and others, written or uttered in the years immediately pre- ceding 1787. f Grayson to Madison, 22 March 1786. X Same to same, 28 May 1736. *= Minot's Insurrection, 15. [ Webster's Essays, 129, 138. 1783-1786. CONGRESS CONFESSES ITS HELPLESSNESS. I77 CHAPTEE YII. CONGRESS COl^ESSES ITS HELPLESSNESS. 1Y83-1786. " At length," so wrote Wasliington to Lafayette in 1783, " I am become a private citizen on the banks of the Potomac, solacing myself with tranquil enjoyments, retiring within my- self, able to tread the paths of private life with heartfelt satis- faction, envious of none, determined to be pleased with all ; and, this being the order for my march, I will move gently down the stream of life till I sleep with my fathers." The French minister, Luzerne, who visited Washington a few weeks after his return to private life, " found him attired in a plain gray suit like a Yirginia farmer." " To secure the hap- piness of those around him appeared to be his chief occupa- tion." ''^ His country with one voice acknowledged that but for him its war of revolution must have failed. His glory pervaded the world, and the proofs of it followed him to his retirement. Houdon, the great French sculptor of his day, moved more by enthusiasm for him than by the expected compensation for making his statue, came over with his assistants to Mount Yemen to take a mould of his person, to study his counte- nance, to watch his step as he walked over his fields, his atti- tude as he paused ; and so he has preserved for posterity the features and the form of "Washington. Marie Antoinette added words of her own to those of the king of France, who invited him to visit them. Luzerne pressed the invitation as the heartfelt desire of the French * Luzerne to Rayneval, 12 April 1784. VOL. Ti. — 12 178 01:^ THE WAY TO A FEDERAL CONVEimOK b.ii.; oh.vh. people. " Come to France," wrote Rodiambeau, speaking the wish of all the French officers who had served in America ; " come, and, in a country which honors yon, be assured of a re- ception without example, after a revolution which has not its like in history." But his presence was needed at home to re- trieve his affairs from the confusion consequent on his long service in the war, during whicli he not only refused all pay, but subscribed what he could to the public loans. Of these the amount of the principal had been reduced, and the inter- est, proportionately reduced, was paid in paper almost worth- less. Moreover, persons indebted to him had seized their op- portunity to pay him in depreciated continental bills. His estate, than which " no one in United America " seemed to him " more pleasantly situated," consisted of over nine thou- sand acres, for the most part of a grayish clay soil, lying on the south bank of the Potomac, and having, on the east and west, rivulets which rose and fell with the tides, and which, like the main stream, abounded in lish. He would gladly have found a tenant for two thirds of it at an annual rent of three thousand dollars ; but was obliged to retain the manage- ment of the whole. His unpretending mansion, with rooms of low ceilings, and neither many nor large, was well placed on a high bank of the river. For beautifying the grounds around it, he would ride in the line season into the forests and select great numbers of well-shaped trees and shrubs, elms and live-oaks, the pines and the hemlock, holly-trees and magnolias, the red-bud, the thorn, and many others, and would transplant them in the proper season. His orchard he filled Avith the best cherries and pears and apples. At the end of a year and a half he had not been able " to rescue his private concerns from the disorder into which they had been thrown by the war," though success in the effort " was become absolutely necessary for his support." * After he had been at home for two seasons, his inventory showed of horses one hundred and thirty, of cattle three hundred and thirty-six, of sheep two hundred and eighty-three; the hogs were untold, but on one winter's day a hundred and twenty- * Wasliington to Humphreys, Sparks, ix., 113. 1783-1786. CONGRESS CONFESSES ITS HELPLESSNESS. 179 eight were killed, weigliing more than seventeen thousand pounds. His "negroes," in February 1786, numbered two hundred and sixteen.^ JSTo one of them was willing to leave him for another master. As it was his fixed rule never either to buy or to sell a slave, they had the institution of marriage and secure relations of family. The sick were provided with the best medical attendance ; children, the infirm, and the aged were well cared for. Washington was but the director of his community of black people in their labor, mainly for their own subsistence. For the market they produced scarcely anything but " a little wheat ; " and after a season of drought even their own support had to be eked out from other resources ; so that, with ail his method and good judgment, he, like Madison of a later day, and in accord with common experience in Virginia, found that where negroes continued on the same land and they and all their increase were maintained upon it, their owner would gradually become more and more embarrassed or im- poverished. As to bounty lands received for service in the seven years' war and his other domains beyond the Alleghany, he "found distant property in lands more pregnant of per- plexities than profit." His income, uncertain in its amount, was not sufficient to meet his unavoidable expenses, and he be- came more straitened for money than he had ever been since his boyhood ; so that he was even obliged to delay paying the annual bill of his physician, to put ofl' the tax-gatherer once and again, and, what was harder, to defer his charities ; for, while it was his habit to conceal his gifts, he loved to give, and to give liberally. Toward the runaway slave Yv^ashington was severe. He wished that the northern states would permit men of the South to travel in them with their attendants, though they might be slaves ; and he earnestly disapproved of the interpo- sition of the philanthropist between the slave and his holder ; but, while expressing these opinions, he took care to write, most emphatically, that no one more desired universal eman- cipation than himself. He pressed his conviction upon the leading politicians in Virginia that the gradual abolition of slavery " certainly might, and assuredly ought to, be effected ; * From entries in Washington's unpublished Diary. 180 ON THE WAY TO A FEDERAL CONVENTION, b.ii.; CH.vn. and that, too, bj legislative authority."* When Coke and Asbury, the first superintendents of the Methodists, asked him to aid their petition to the Yirginia legislature for an act of universal emancipation, he told them frankly that "he was of their sentiments, and, should this petition be taken into con- sideration, he would signify it to the assembly in a letter." f Finding that the legislature of the state would not entertain a motion to do away with slavery, he sought to devise practica- ble plans for emancipating his own negroes and providing for himself and them; not succeeding, he secured their enfran- chisement by his will, if The hardships of the camp had worn upon his constitu- tion, and he was persuaded that he would not live to great age.* The price of health to him from day to day was to pass much of the time in the open air, especially on horseback. Receiving from Europe gifts of the best fox-hounds, he would join in the chase, sometimes came in first, but delighted most in a good run when every one was present at the death. It was his earliest care at Mount Yernon to arrange his papers relating to the war for the use of the historian. Being asked to write his commentaries, he answered : " If I had talents for it, the consciousness of a defective education, and a certainty of a want of time, unfit me for such an under- taking." II Every one agreed that Washington's "character was per- fectly amiable." In his retirement he so practiced all the vir- tues of private life that the synod of the Presbyterians held him up to the world as the example of purity. To use the words of one who knew him well, " The breath of slander never breathed upon him in his life nor upon his ashes." He was generous to the extent of his means and beyond them. Young * Sparks, ix., 163, 164. f Coke's First Journal, 45. I Washin^iton could emancipate his own slaves, but not those of his wife's estate ; and the two classes were linked together by marriage and family ties. To this difficulty in the way of emancipating his own negroes, Madison directed my attention. The idea has prevailed that Washington married a woman of for- tune. Her first husband dying, left his affairs in an embarrassed condition, and they certainly remained so in the hands of his executor or agent for nearly thirty years, and probably longer. # Sparks, ix., 18. B Sparks, ix., 113. 1783-1786. CONGRESS CONFESSES ITS HELPLESSNESS. 181 persons who came under his control or his guardianship he taught method in their expenses, and above all he inculcated on them the duty of husbanding their means so as to be always able and ready to give. Washington was from his heart truly and deeply religious. His convictions became more intense from the influence of the great events of his life on his character. As he looked back upon the thick-set dangers through which he had steered, we know from himself that he could not but feel that he had been sustained by " the all-powerful guide and dispenser of human things." '^ Of the Protestant Episcopal Church, he belonged decidedly to the party of moderation, and " had no desire to open a correspondence with the newly ordained bishop" of Connecticut.! Not a metaphysician nor an analyzer of creeds, his religious faith came from his experience in action. ISTo man more thorouglily believed in the overruling Providence of a just and almighty power ; and as a chemist knows that the leaf for its greenness and beauty and health needs the help of an effluence from beyond this planet, so Washington beheld in the movements of nations a marshalling intelligence which is above them all, and which gives order and unity to the universe. Like almost every great warrior, he hated war, and wished to see that plague to mankind banished from the earth. :[: "I never expect to draw my sword again," he said in 1785 to one of the French officers who had served in America. " I can scarcely conceive the cause that would induce me to do it. My iirst wish is to see the whole world in peace, and its in- habitants one band of brothers ctriving who should contribute most to the happiness of mankind." * " As a citizen of the great republic of humanity," such are his words, " I indulge the idea that the period is not remote when the benefits of free commerce will succeed the devastations and horrors of w\^r." [ He loved to contemplate human nature in the state of pro- gressive amelioration.^ His faith in Providence led him to found that hope on the belief that justice has a strength of its * Sparks, ix., 21, 22. « Ibid., 138, 139. f Diary for Monday, 10 October I'ZSS. | Ibid., 193, 194. X Sparks, is., 112, 113, ^ Ibid., 306. 182 OE" THE WAY TO A FEDERAL CONYENTION-. e.ii.; ch. th. own wliicli will by degrees command respect as the rule for all nations. He wished success to every people that were struggling for Letter days. Afflicted by the abject penury of the mass of the Irish, ^* he gave them his sympathies. A hope dawned of re- newed national life for the Greeks. He could scarcely con- ceive that the Turks would be permitted to hold any of their possessions in Europe, f He welcomed with enthusiasm the approach of the French revolution, and at an early day pointed out the danger that menaced the king and his only avenue of safety; saying: " His Most Christian Majesty speaks and acts in a style not very pleasing to republican ears or to republican forms, nor to the temper of his own subjects at this day. Liberty, when it begins to take root, is a plant of rapid growth ; the checks he endeavors to give it, however warranted by ancient usage, will more than probably kindle a flame which may not be easily extinguished, though it may be smothered for awhile by the armies at his command and the nobility in his interest. When a people are oppressed v/ith taxes, and have cause to believe that there has been a misapplication of the money, they ill brook the language of despotism." :j: To Lafayette, whose desire to signalize himself he well un- derstood, he said : " Great moderation should be used on both sides ; I caution you against running into extremes and preju- dicing your cause." * In foreign affairs "Washington inclined neither to France nor to England ; his system of politics was impartially Ameri- can. At home he Vv^as devoted to no state, to no party. His mind, though he was of Virginia, was free from any bias, northern or southern, the allegiance of his heart being given to United America. At Mount Yemon, on the twenty-eighth of March 1785, the joint commissioners of the two states divided by the Poto- mac, George Mason and Alexander Henderson of Yirginia, Daniel of St. Thomas Jenifer, Thomas Stone, and Samuel Chase of Maryland, met under the auspices of Washington. As his near neighbor, intimate friend, and old political asso- * Sparks, ix., 398. f Ibid., 360. ^ I^id., 332. # Ibid., 381. 1783-178G. CONGRESS CONFESSES ITS HELPLESSNESS. 183 ciate, Mason submitted to his influence and entered with zeal and a strong sense of duty into the movements that led to union. The commissioners prepared the terms of a compact be- tween the two states for the jurisdiction over the waters of the Chesapeake bay and the rivers that were common to both states ; and, conforming to the wishes of Washington, they requested Pennsylvania to grant the free use of the branches of the Ohio within its limits, for establishing the connection between that river and the Potomac* The primary object of their commission being fulfilled, they took up matters of general policy, and recommended to the two states a uniformity of duties on imports, a uniformity of commercial regulations, and a uniformity of currency.f George Mason was charged with the report of their doings to the legislature of his state. "When the assembly of Virginia came together, congress and the country were rent by the question of investing con- gress with an adequate power over trade. The eastern and middle states were zealous for the measure ; the southern were divided ; Pennsylvania had established duties of its own, with the avowed object of encouraging domestic manufactures ; South Carolina was deliberating on the distresses of her com- merce. In the assembly of Virginia, in which there was a great conflict of opinion, Madison J spoke for the grant of power as fraught with no danger to the liberties of the states, and as needful in order to conduct the foreign relations, to ar- rest contention between the states, to prevent enactments of one state to the injury of another, to establish a system intelli- gible to foreigners trading with the United States, to counter- act the evident design of Great Britain to weaken the confed- eracy, and to preserve the federal constitution, which, like all other institutions, could not remain long after it should cease to be useful. The dissolution of the union would be the sig- nal for standing armies in the several states, burdensome and perpetual taxes, clashing systems of foreign politics, and an appeal to the sword in every petty squabble. "Washington * Pennsylvania Archives, 511. f Rives's Madison, ii,, 68. I Notes of Madison's speech in Madison, i., 201, 202. 184 ON THE WAY TO A FEDERAL CONVENTION, b.ii.; cn.yn. being invited to offer suggestions,^ answered : " The jproposi- tion is self-evident. "We are either a united people or we are not so. If the former, let us in all matters of general concern act as a nation wliich has a national character to support." f " If the states individually attempt to regulate commerce, an abortion or a manj-headed monster would be the issue. If we consider ourselves or wish to be considered by others as a united people, why not adopt the measures which are charac- teristic of it, and support the honor and dignity of one ? If we are afraid to trust one another under qualified powers, there is an end of the union." J The house was disposed to confide to congress a power over trade ; but, by the stratagem of the adversaries of the resolu- tions, the duration of the grant was limited to thirteen years. This limitation, which was reported on the last day of Novem- ber, took from the movement all its value. "It is better," so wrote Madison to Washington, " to trust to further experience, and even distress, for an adequate remedy than to try a tem- porary measure which may stand in the vfay of a permanent one. The difficulty now found in obtaining a unanimous con- currence of the states in any measure must increase with every increase of their numbers." * All was at a stand, when suddenly a ray of light w^as thrown upon the assembly by Maryland. On the fifth of December the adhesion of that state to the compact relating to the ju- risdiction of the waters of Chesapeake bay and the Potomac was laid before Virginia, which without delay enacted a corre- sponding law of equal liberality and precision. || The desire of Maryland was likew^ise announced to invite the concurrence of Delaware and Pennsylvania in a plan for a canal between the Chesapeake and the Delaware ; " and if that is done," said Madison, " Delaware and Pennsylvania will wish the same compliment paid to their neighbors." But the immediate measure of Maryland was communicated in a letter from its legislature to the legislature of Virginia, proposing that com- * David Stuart to Washington, 16 November 1'785. f Sparks, ix., 145, 146. X Washington to Stuart, 30 November 1785. * la Elliot, i., 114, the resolutions as reported on the 30th November are pub- lished as Madison's ; but they found in Madison their strongest opponent. Madi- son, i., 205, 206, and compare 203. | Ilening, xii., 50, 55. 1783-1786. CONGRESS CONFESSES ITS HELPLESSNESS. 185 missioners from all tlie states sliould be invited to meet and regulate the restrictions on commerce for the whole. '^* Madi- son instantly saw the advantage of " a politico-commercial com- mission " for the continent. Tyler, the late speaker of the house, " wished congress to have the " entire " regulation of trade." In concert with him, a resolution was drafted by Madison for the appointment of commissioners from Virginia and all the other states to digest a report for the requisite augmentation of the powers of con- gress over trade, their report to be of no force until it should be unanimously ratified by the several states. Madison kept in reserve. Tyler, who, having never served in the federal council, was free from every suspicion of inclining to grant it too much power, presented the resolution. It was suffered to lie on the table till the last day in the session ; then, on the twenty-first of January 1786, it went through both branches of the legislature by a large majority. Among the commis- sioners who were chosen, Madison was the first selection on the part of the house. The commissioners named the first Monday of September for the day of their meeting, and An- napolis as the place, on account of its remoteness from the influences of congress and the centres of trade. The invi- tations to the states were made through the executive of Yir- ginia. On the twenty-second Madison wrote to Monroe: "The expedient is better than nothing ; and, as a recommendation of additional powers to congress is within the purview of the commission, it may possibly lead to better consequences than at first occur." f The sixth congress could not be organized until the twenty- third of November 1785, when, seven states being present, David Eamsay of South Carolina was elected president. For the half of December not states enough were present to do business. So soon as there vfas a permanent quorum, it was agreed that the confederation had its vices, and the question of policy was : Shall these vices be corrected gradually through congress, or at once and completely through a convention? Just seventeen days after Virginia had invited the states to a " Stuart to Washington, 18 December 1T85. f Mcidison, i., 222. 186 ON THE WAY TO A FEDERAL COISrVENTIOK b. n. ; ch. vii. common consultation at Annapolis, Cliarles Pinclmey of South Carolina, in a motion of very great length, ascribed the ex- tension of the commerce and the security of the liberties of the states to the joint efforts of the whole : " They have, there- fore," he insisted, " wisely determined to make the welfare of the union their first object, reflecting that in all federal regula- tions something must be yielded to aid the whole, and that those who expect support must be ready to afford it." * The motion, after being under discussion for two days, was referred to a committee of five. On tlie fifteenth. King, Pinckney, Kean, Monroe, and Pettit, representatives of South Carolina and the three great states, reported : " The requisitions of con- gress, for eight years past, have been so irregular in their oper- ation, so uncertain in their collection, and so evidently unpro- ductive, that a reliance on them in future as a source from whence moneys are to be drawn to discharge the engagements of the confederacy v/ould be not less dishonorable to the un- derstandings of those who entertain such confidence than dan- gerous to the welfare and peace of the union. The committee are, therefore, seiiously impressed with the indispensable ob- ligation that congress are under of representing to the imme- diate and impartial consideration of the several states the utter impossibility of maintaining and preserving the faith of the federal government by temporary requisitions on the states, and the consequent necessity of an early and complete accession of all the states to the revenue system of the eighteenth of A^Yil 1783." "After the most solemn deliberation, and under the fullest conviction that the public embarrassments are such as above represented, and that they are daily increasing, the committee are of opinion that it has become the duty of congress to declare most explicitly that the crisis has arrived when the people of these United States, by whose will and for whose benefit the federal government was instituted, must de- cide whether they will support their rank as a nation by main- taining the public faith at home and abroad ; or whether, for want of a timely exertion in establishing a general revenue and thereby giving strength to the confederacy, they will hazard not only the existence of the union, but of those great and in- * Journals of Congress, iv., 617. 1783-1786. COI^GRESS CONFESSES ITS HELPLESSNESS. 187 valuable privileges for wliicli they liave so arduously and so honorably contended." * Tims congress put itself on trial before the country, and the result of the year was to decide on their competency to be the guardians of the union and the upholders of its good faith. They must either exercise negation of self and invite the states to call a general convention, or they must themselves present to the country for its approval an amended constitution, or they must find out how to make their own powers under the confederation work efficiently. Should they fail in all the three, they will have given an irreversible verdict against them- selves. The course of events relating to the welfare of the whole was watched by the country more carefully than ever before. Far and wide a general convention was become the subject of thought ; and " a plan for it was forming, though it was as yet immature." f New Jersey, which had all along vainly songht the protec- tion of the general government against the taxation of her people by a local duty levied on all their importations from abroad for their own consumption throngh the port of New York, at last kindled with a sense of her wrongs, and in a resentful mood, on the twentieth of October voted by a very large majority that she would pay no part of the last requisition of congress until all the states should have accepted the measure of an im- post for the benefit of the general treasury. Alarmed at this movement, congress deputed Charles Pinckney, G-orham, and Grayson to represent to the legislature of New Jersey the fatal consequences that must inevitably result to that state and to the union from their refusal to comply with the requisition of the last congress. Grayson looked upon their vote as little else than a declaration of independence. Again Pinckney of South Carolina took the lead, and, in an address to the New Jersey legislature of the thirteenth of March, this was part of his lan- guage : " When these states united, convinced of the inability of each to support a separate system and that their protection and existence depended on their union, policy as well as pru- dence dictated the necessity of forming one general and efficient * Journals of Congress, iv., 619, 620. f Jay to Washington, 16 March 1786. 188 ON" THE WAY TO A FEDERAL CONVENTION, b.ti.; ch.vh. government, which, while it protected and secured the whole, left to the several states those rights of internal sovereignty which it was not necessary to delegate and which conld be exer- cised without injury to the federal authority. If New Jersey conceives herself oppressed under the present confederation, let her, through her delegates in congress, state to them the oppression she complains of, and urge the calling of a general convention of the states for the purpose of increasing the powers of the federal government and rendering it more ade- quate for the ends for which it was instituted ; in this consti- tutional mode of application there can be no doubt of her meeting with all the support and attention she can wish. I have long been of opinion that it is the only true and radical remedy for our public defects, and shall with pleasure assent to and support any measure of that land which may be intro- duced while I continue a member of that body." '^' Pleased with the idea of a general convention, New Jersey recalled its vote, accepted within a week the invitation of Vir- ginia to a convention at Annapolis, elected its commissioners, and empowered them "to considsr how far a uniform system in theu^ commercial regulations and other impoetant matters might be necessary to the common interest and permanent har- mony of the several states ; and to report such an act on the subject as, when ratified by them, would enable the United States in congress assembled euectually to provide for the exi- gencies of the union." f " If it should be determined that the reform of the confed- eration is to be made by a convention," so wrote Monroe at this time to Madison, " the powers of the Virginia commissioners who are to go to Annapolis are inadequate." J Explaining why more extended powers had not been given, Madison an- swered : " The assembly would have revolted against a pleni- potentiary commission to their dejDuties for the convention; the option lay between doing what was done and doing noth- ing." # * Carey's Museum, ii., 155. Otto to Vergcnnes, IT March 1YS6. Report of Berlholir, the Austrian agent. f Elliot, i., 11 7, 118. I This letter from Monroe, of a date previous to 19 March 1786, is missing. Its contents are known only from the citation of it by JIadison. * Madison to Monroe, 19 March 1786. Madison, i., 228, 229. 1783-1786. OOITGRESS C0:N"FESSES ITS HELPLESSNESS. 189 " There have been serious thoughts in the minds of mem- bers of congress," wrote Grajson to Madison, " to recommend to the states the meeting of a general convention to consider of an alteration of the confederation, and there is a motion to that eSect under consideration. I have not made up my mind whether it is not ^ better to bear the ills we have than fly to others we know not of.' I am, however, in no doubt about the weakness of the federal government. If it re- mains much longer in its present state of imbecility, we shall be one of the most contemptible nations on the face of the earth." * The subject lingered in congress till the third of May. Then South Carolina for a third time raised her voice, and Charles Pinckney moved that a grand committee be appointed on the affairs of the nation. " It is necessary," he said, " to inform the states of our condition. Congress must be invested with greater powers, or the federal government must fall. It is, therefore, necessary for congress either to appoint a conven- tion for that purpose, or by requisition to call on the states for such powers as are necessary to enable it to administer the fed- eral government." Among some of the defects in the confed- eration which he enumerated were, the want of powers for regulating commerce, for raising troops, and for executing those powers that were given. Monroe replied: "Congress has full power to raise troops, and has a right to compel com- pliance with every requisition which does not go beyond the powers with which it is invested by the confederation. All the states but l^ew York have invested congress with commer- cial powers, and New York is at this time framing an act en the subject. I, therefore, see no occasion for a convention." The discussion was continued at great length, and the matter referred to a committee of the whole, f But the discussion brought congress no nearer to the recommendation of a general convention ; its self-love refused to surrender any of its func- tions, least of all on the ground of its own incapacity to dis- charge them. Should congress tlien of itself lay a revision of the articles of confederation before the states for their acceptance ? Here * Grayson to Madison, 22 March 1780. f Thomas Rodney's Journal. 190 ON TPIE WAY TO A FEDERAL CONVENTION", b.il; oii.vii. Grayson, surveying liis colleagues witli a discerning eye, at once convinced himself tliat congress conld never agree on amendmentsj even among themselves.* For himself, he held it essential that the general government should have power to regulate commerce ; to prohibit the states from issuing paper money ; to prohibit the slave-trade ; to fix the site of the gov- ernment in the centre of the union, that is to say, near George- toAvn ; and to change the method of voting by states to a vote according to population. Of effecting these reforms he had no hope. He was sure if the question of commerce should be settled, Massachusetts would be satisfied and refuse to go further. " Pinckney, the champion of powers over commerce," he said, " will be astounded when he meets with a proposition to pre- vent the states from importing any more of the seed of Cain." New York and Pennsylvania would feel themselves aggrieved if, by a national compact, the sessions of congress should always be held in the centre of the empire. Neither Maryland, nor Rhode Island, nor New Jersey, would like to surrender its equal vote for one proportioned to its real importance in the Union. Grayson, therefore, did not " think it would be for the advantage of the union that the convention at Annapolis should produce anything decisive," since it was restricted in its scope to commerce, and the question which he proposed to Madison was : " The state of Virginia having gone thus far, had she not better go further and propose to the other states to augment the powers of the delegates so as to comprehend all the grievances of the union ? " f But Pinckney of South Carolina was not daunted. Fail- ing to secure the vote of congress for a general convention, he next obtained the appointment of a grand committee " to re- port such amendments to the confederation as it may be neces- sary to reconnnend to the several states for the purpose of ob- taining from them such powers as will render the federal gov- ernment adequate to the ends for which it was instituted." Congress, in a committee of the whole, devoted seven days of July and six of August to the solution of the great question, and before the end of August the report, which was made by a sub-committee consisting of Pinckney, Dane, and Johnson, * Grayson to Madison, 28 May IVSG. f Ibid. 1783-1736. OONGKESS CONFESSES ITS HELPLESSNESS. 191 and accepted by a grand committee, received its final amended form.* To the original thirteen articles of confederation seven new ones were added. The United States were to regulate foreign and domestic trade and collect duties on imports, but without violating the constitutions of the states. The revenue collected was to be paid to the state in which it should accrue. Congress, on making requisitions on the states, was to fix " the proper periods when the states shall pass legislative acts giving full and complete effect to the same." In case of neg- lect, the state was to be charged at the rate of ten per cent per annum on its quota in money, and twelve per cent on the ascertained average expenses on its quota of land forces. If a state should, for ten months, neglect to pass laws in compliance with the requisition, and if a majority of the states should have passed such laws, then, but not till then, the reve- nue required by congress was to be apportioned on towns or counties and collected by the collectors of the last state tax. Should they refuse to act, congress might appoint others with similar rights and powers, and v/ith full power and authority to enforce the collections. Should a state, or citizens without the disaj^proval of the state, offer opposition, the conduct of the state was to be considered " as an open violation of the fed- eral compact." Interest was to be allowed on advances by states and charged on arrears. A new system of revenue could be established by eleven states out of the thirteen ; and so in proportion as the number of states might increase. The United States were to have the sole and exclusive power to define and punish treason against them, misprision of treason, piracy or felonies on the high seas, and to institute, by appointments from the different parts of the union, a fed- eral court of seven judges, of whom four would constitute a quorum, to hear a^^peals from the state courts on matters con- * From reports of the committee. These amended resolutions may well be taken as representing the intentions of Charles Pinckncy at that time. A copy of them, very greatly abridged, is preserved in the French archives. 192 ON THE WAY TO A FEDERAL C0NVENTI02T. b.ii.; cn.vii. cerning treaties witli foreign powers, or tlie law of nations, or commerce, or tlie federal revenues, or important questions wherein the United States should be a party. To enforce the attendance of members of congress, a state might punish its faulty delegate by a disquahfication to hold office under the United States or any state. These resolutions, though most earnestly discussed in con- gress, were left to repose among its countless reports. They did not offer one eifective remedy for existing evils; they never could win a majority in congress ; no one fancied that they could obtain the unanimous assent of the states; and, could they have gained it, the articles of confederation would have remained as feeble as before. Still less was it possible for congress to raise an annual revenue. The country was in arrears for the interest on its funded debt, and in the last two years had received not more than half a million dollars in specie from all the states — a sum not sufficient for the annual ordinary charges of the federal government. Pennsylvania had complied with the late requisitions almost with exactitude ; Maryland and Virginia had furnished liberal supplies; New York exerted herself, and successfully, by the aid of her cus- tom-house ; but Massachusetts and all the other I^ew England states were in arrears, and the three southernmost states had paid little money since the conclusion of the late war. Con- gress confessed that it could not raise a revenue unless meas- ures were adopted for funding the foreign and domestic debts, and they went back to the system framed by Madison in April 1783 ; but the success of that measure depended on a unani- mous grant of new power to the general government. All the states except J^ew York had assented to the principle of deriv- ing a federal revenue from imports, though the assenting acts of a majority of them still required modifications. Congress saw fit to assume that nothing remained but to obtain the con- sent of that one state. In March a meeting of inhabitants of the city of !N"ew York unanimously petitioned the legislature to consent to the system which alone could give energy to the union or pros- perity to commerce. On the other hand, it was contended that the confederation and the constitution of each state are the 1783-1786. CONGRESS CONFESSES ITS HELPLESSNESS. 193 foundations whicli neitlier congress nor the legislatures of tlie states can alter, and on which it is the duty of both to build ; that the surrender to congress of an independent authority to levy duties would be the surrender of an authority that inheres necessarily in the respective legislatures of each state ; that deviation from the fundamental principles of the American constitutions would be ruinous, first, to the liberty of the states, and then to their existence ; that congress, already holding in one hand the sword, would hold in the other the purse, and concentrate in itseK the sovereignty of the thirteen states ; that it is the division of the great republic into different republics of a middling size and confederated laws which save it from despotism.* The legislature of New York conformed to these opinions, and, while on the fourth of May it imposed the duty of five per cent, it reserved to itself the revenue with the sole right of its collection. Nor was it long before Pennsylvania, which held a large part of the public debt, suspended its adhesion to the revenue plan of congress unless it should include supple- mentary funds. In August, King and Monroe were dispatched by congress to confer with its legislature. It is on record that the speech of King was adapted to insure applause even from an Attic audience ; f but the subject was referred to the next assembly. Congress joined battle more earnestly with New York. They recommended the executive to convene its legislature immediately for the purpose of granting the impost. The governor made reply : "I have not power to convene the legis- lature except on extraordinary occasions, and, as the present business has repeatedly been laid before them, and has so re- cently received their determination, it cannot come within that description." Congress repeated its demand, and it only served to call from Clinton a firm renewal of his refusal. The strife had degenerated into an altercation which only estab- lished before the country that congress, though it would not call a convention and could not of itself frame fit amend- ments to the confederation, had not power to raise an annual * Report of the Austrian agent, Bertholff, 1 April 1786. MS. f Henry Hill to Washington, 1 October 1V86. TOL. VI. — 13 194: OX THE WxiY TO A FEDERAL CONVEiTTION-. b. ii. ; ch. vii. revenue for the wants of the government at home, or to rescue the honor of the nation from default in payments of interest on moneys borrowed to secure their independence. The need of reform extended equally to the relation of the republic to foreign powers. Congress had no other means of fulfilling its treaty obligations than through the good-will and concurrence of every one of the states ; though in theory the articles of confederation presented the United States to all other states a3 one nation. The difiiculty which caused these perpetual failures was in- herent and incurable. Congress undertook to enact requisi- tions, and then direct the legislatures of thirteen independent states to pass laws to give them effect, itself remaining help- less till they should do so. A deliberative body ordering an- other independent deliberative body what laws to make is an anomaly ; and, in the case of congress, the hopelessness of har- mony was heightened by the immense extent of the United States, by the differences of time when the legislatures of the several states convened, and by a conflict of the interests, pas- sions, hesitancies, and wills of thirteen legislatures, independent of each other and uncontrolled by a common head. 'No ray of hope remained but from the convention which Yirginia had invited to assemble on the first Monday in September at Annapolis. 1786. VIRGINIA'S INVITATION TO A CONVENTION. 195 CHAPTEE YIIL vntginia mvites deputies of the several legislatures of the states to meet in convention. September 1786 to May 1787. Congress having confessedly failed to find ways and means for carrying on the government, the convention which had been called to Annapolis became the ground of hope for the nation. The house of delegates of Maryland promptly ac- cepted the invitation of Virginia, but the senate, in its zeal to strengthen the appeal which congress was then addressing to the states for a revenue, refused its concurrence. Neither Connecticut, nor South Carolina, nor Georgia sent delegates to the meeting. In Massachusetts two sets of nominees, among whom appears the name of George Cabot, declined the service ; the third were, like the Rhode Island delegates, ar- rested on the way by tidings that the convention was over. Every one of the commissioners chosen for New York, among whom were Egbert Benson and Hamilton, was en- grossed by pressing duties. Egbert Benson, the guiding states- man in the Hartford convention of 1780, was engaged as attorney-general in the courts at Albany. With Schloss IIo- bart, the upright judge, he agreed that the present opportunity for obtaining a revision of the system of general government ought not to be neglected. He therefore consigned his pub- lic business to a friend, reported the conversation with Schloss Hobart to Hamilton in New York, and repaired with him to Annapolis. There, on the eleventh of September, they found Madison with the commissioners of Virginia aiming at a pleni- potentiary general convention, and commissioners from New 196 ON THE WAY TO A FEDERAL CONVENTION, b. ii. ; ch. viii. Jersey instructed by their legislature to be content with noth- ing less than a new federal government, No state north of 'New York was represented, and no one south of Delaware save Virginia. It was a meeting of central states. One thought animated the assembly. Dickinson, a principal author of the articles of confederation, was unanimously elected chair- man ; and, with the same unanimity, a committee was raised to prepare a report. Hamilton, though not of the committee, made a draft ; this the convention employed two days in con- sidering and amending, when the resulting form was unani- mously adopted. In clear and passionless language they ex- pressed their conviction that it would advance the interests of the union if the states which they represented would agree, and use their endeavors to procure the concurrence of the other states to agree, " to meet at Philadelphia on the second Monday of the next May to consider the situation of the United States, and devise such further provisions as should appear necessary to render the constitution of the federal gov- ernment adequate to the exigencies of the union ; and to re- port to congress such an act as, when agreed to by them and confirmed by the legislatures of every state, would effectually provide for the same." * The proposition was explicit ; the place for meeting wisely chosen ; and the time within which congress and the thirteen states must decide and the conven- tion meet for its work was limited to less than eight months. In a few days the report, signed by the venerated name of Dickinson, was received by congress ; but the delegation from Massachusetts, led by King, prevented the recommendation of the measure which the deputations at Annapolis had asked for.f The governor of l!^ew York was of opinion that the confederation as it stood was equal to the purposes of the imion, or, with little alteration, could be made so ; and that the commissioners from New York should have confined them- selves to the purposes of their errand. J On the tenth of October Kuf us King appeared before the house of representatives of Massachusetts, and, in the presence of an audience which crowded the galleries, insisted that the * Elliot, i., 117-120. f Carrington to Madison, 18 December 1786. X Hamilton, vi., 605. 1786. VIRGINIA'S INVITATION TO A CONVENTION. 197 confederation was the act of the people ; that no part could be altered but on the initiation of congress and the confirma- tion of all the several legislatures ; if the work should be done by a convention, no legislature could have a right to confirm it ; congress, and congress only, was the proper body to pro- pose alterations. In these views he was, a few days later, sup- ported by Kathan Dane. The house of representatives, con- forming to this advice, refused to adopt the suggestions that came from Annapolis ; and there was not to be another session before the time proposed for the general convention at Phila- delphia."^ From this state of despair the country was lifted by Madi- son and Virginia. The recommendation of a plenipotentiary convention was well received by the assembly of Virginia. The utter failure of congress alike in administration and in reform, the rapid advances of the confederation toward ruin, at length proselyted the most obstinate adversaries to a politi- cal renovation. On the motion of Madison, the assembly, showing the revolution of sentiment which the experience of one year had effected, gave its unanimous sanction to the recom- mendation from Annapolis. t "We come now upon the week glorious for Virginia beyond any event in its annals, or in the history of any former republic. Madison had been calm and prudent and indefatigable, always acting with moderation, and always persistent of purpose. The hour was come for frank and bold words, and decisive action. Madison, giving effect to his own long-cherished wishes and the still earlier wishes of VTashington, addressing as it were the whole country and mar- shalling all the states, recorded the motives to the action of his own commonwealth in these words : " The commissioners who assembled at Annapolis, on the fourteenth day of September last, for the purpose of devising and reporting the means of enabling congress to provide ef- fectually for the commercial interests of the United States, have represented the necessity of extending the revision of the federal system to all its defects, and have recommended that deputies for that purpose be appointed by the several legisla- tures, to meet in convention in the city of Philadelphia on the * CarriDgton to Madison, 18 December 1786. f Madison, i., 259. 198 ON THE WAY TO A FEDERAL CONVENTION, b. ii. ; en. viii. secor.d daj of May next — a provision preferable to a discussion of the subject in congress, where it might be too much inter- rupted by ordinary business, and where it would, besides, be de- prived of the counsels of individuals Avho are restrained from a seat in that assembly. The general assembly of this common- wealth, taking into view the situation of the confederacy, as well as reflecting on the alarming representations made from time to time by the United States in congress, particularly in their act of the fifteenth day of February last, can no longer doubt that the crisis is arrived at which the people of America are to decide the solemn question whether they will, by wise and magnanimous efforts, reap the fruits of independence and of union, or whether, by giving way to unmanly jealousies and prejudices, or to partial and transitory interests, they will re- nounce the blessings prepared for them by the revolution. The same noble and extended policy, and the same fraternal and af- fectionate sentiments which originally determined the citizens of this commonwealth to unite Vv^ith their brethren of the other states in establishing a federal government, cannot but be felt with equal force now as motives to lay aside every inferior consideration, and to concur in such further concessions and provisions as may be necessary to secure the objects for which that government was instituted, and render the United States as happy in peace as they have been glorious in warJ' Such is the preamble adopted without a dissenting voice by the general assembly of the commonwealth of Yirginia, as they acceded to the proposal from Annapolis with this one variation, that the new federal constitution, after it should be agreed to by congress, was to be established, not by the legis- latures of the states, but by the states themselves, thus opening the way for special conventions of the several states. In selecting her own delegates, Yirginia placed Washing- ton at their head, surrounded by Madison, Randolph, and Ma- son. Randolph, the newly elected governor of the state, adopting words of Washington, sent the act of his state to congress, and to the executive of each one of the states in the union, asking their concurrence. Hardly had the tardy post of that day brought the glad- dening news to "New Jersey, when that state, first of the 1786-1787. VIRGINIA'S INVITATION TO A CONVENTION. 199 twelve, on the twenty-third of IN'ovember, took its place at the side of Yirginia. Pennsylvania did not let the year go by ■without joining them. North Carolina acceded in January 1787, and Delaware in February of the following year. The solemn words of Yirginia, the example of the three central states, the inspiring influence of Hamilton, the return to congress of Madison who was preparing himself for the convention and professed great expectations of good effects from the measure, caused the scales to fall from the eyes of King. The year was but six weeks old when he wrote to Gerry, who had thus far been his ally: "Although my sentiments are the same as to the legality of the measure, I think we ought not to oppose, but to coincide with this project. Events are hurrying ns to a crisis. Prudent and sagacious men should be ready to seize the most favorable circumstances to establish a more perfect and vigorous gov- ernment." * A grand committee of the seventh congress reported in February, by a bare majority of one, that, " entirely coinciding with the proceedings of the commissioners, they did strongly recommend to the different legislatures to send forward dele- gates to the proposed convention at Philadelphia ; " but they never ventured to ask for a vote upon their report. Meantime, the legislature of New York, in an instruction to their dele- gates Id congress, taking no notice of the meeting at Annapolis, recommended a general convention to be initiated by congress itself. The proposition, as brought forward by the New York delegates, named no place or time for the convention, and knew nothing of any acts which had not proceeded from congress. It failed by a large majority. King of Massachusetts, seizing the opportunity to reconcile his present coalition with Madison and Hamilton with his old opinion that congress alone could initiate a reform of the constitution, substituted a motion which carefully ignored the act of the meeting at Annapolis, and recommended a convention as an original measure of congress, but identical in time and place with the appointment of the Annapolis commissioners. This motion, which was so framed as not to invalidate elections already made, was accepted without * Austin's Gerry, ii., 3, 4, 7, and 8. 200 ON THE WAY TO A FEDERAL CONVENTION, b. ii. ; oh. viii. opposition.^ In this way tlie seK-love of congress was appeased, and its authority arrayed in favor of a general convention. All parties in the legislature of !New York then took up the subject of representation in the convention. Yates, in the senate, proposed that " the new provisions in the articles of confederation should not be repugnant to or inconsistent with the constitution of the state." The motion was rejected by the casting vote of the president. The house would have appointed -Qyo delegates to the convention, but the inflexible senate lim- ited the number to three, and named Yates, Lansing, and Ham- ilton, who were elected in both branches without opposition. In 1786, the sufferings of the debtors in Massachusetts, es- pecially in its central and western counties, embittered by the devices of attorneys to increase their own emoluments, and ag- grieved by the barbarous laws of that day which doomed the debtor, however innocent, to imprisonment at the caprice of his creditor, had driven them to interrupt the courts in "Worces- ter. In the three western counties measures were taken to close the courts ; and once, for a moment, the national armory at Springfield was menaced. The movement assumed the as- pect of an insurrection, almost of a rebelHon, which received support even from husbandmen otherwise firm supporters of the law. The measures of Bowdoin, in which he was through- out supported by Samuel Adams, were marked by decision, celerity, and lenity. The real cause of the distress was, in part, the failure of the state of Massachusetts itself to meet its obli- gations ; and, still more, the bankruptcy of the general govern- ment, which owed large sums of money to inhabitants of almost every town for service in achieving the independence of their country. Wherever the insurgents gathered in numbers, Bow- doin sent a larger force than they could muster. In this way he gave authority to every branch of the government and peace to every town. He maintained the majesty of the law by open- ing the courts for the conviction of the worst offenders ; but, interposing with his prerogative of mercy, he did not suffer the life of any one of them to be taken. For the restoration of the public and private finances, he called together the legisla- ture of the commonwealth, which applauded his conduct, and * Journals, iv., 723, 724. Gilpin, 587, 588, 619, 620. Elliot, v., 96, 106. 1T87. YIRGmiA'S INVITATION TO A CONVENTION. 201 fulfilled the long desire of liis heart. On the twentj-second of February 1787, six days in advance of New York, and as yet in ignorance of what had been done in congress, they acceded to the invitation from Annapolis.- Before its delegates were chosen, the recommendation of a convention by that body was known ; and Bowdoin, in their commissions, wisely made use of the words of congress. The two southern states chose their delegates to the conven- tion in April. Connecticut waited for its day of election in May. Then Elizur Goodrich, the preacher of the election sermon, proved from one of the prophets of Israel the duty of strengthening the national union and restoring the national honor, or they would be obhged themselves to repeat the lam- entation that " from the daughter of Zion all her beauty was de- partedo" " Gentlemen," he broke out to those to whom he was preaching, " Heaven unite the wisdom and patriotism of Amer- ica in the proposed convention of the states in some equal sys- tem of federal subordination and sovereignty of the states." On the twelfth, Samuel Huntington, the governor, addressing the legislature, recommended a superintending power that should secure peace and justice between the states, and between all the states and foreign nations. " I am," he said, " an advocate for an efficient general government, and for a revenue adequate to its nature and its exigencies. Should the imposts be carried to excess, it will promote the growth of manufacture among yourselves of the articles affected by them, and proportionally increase our wealth and independence. Manufactures more than any other employment will increase our numbers, in which consists the strength and glory of a people." "^ The assembly then chose to the convention three men who were all closely united, and so able that scarce any delegation stood before them. Maryland, rent by a faction eager for the issue of paper money, did not elect delegates till near the end of May. New Hampshire, from the poverty of her treasury, delayed its choice till June. Ehode Island alone, under the sway of a perverse party spirit which was fast ebbing, refused to be rep- resented in the convention. * Carey's Museum, ii., 396. 202 OX THE WAY TO A FEDERAL CONYENTIOK b.ii.; oh.viii. The people of the United States watched the result of the convention with trembhng hope. " Shall we have a king ? " asked Jay, and himself answered : " Not, in my opinion, while other expedients remain untried." '^ It was foreseen that a fail- ure would be followed by the establishment of three separate confederacies. t The ministry of England harbored the thought of a constitutional monarchy, with a son of George III. as king ; and they were not without alarai lest gratitude to France should place on an American throne a prince of the house of Bourbon. J The task of preparing the outhnes of a constitution as the basis for the deliberations of the convention was undertaken by Madison. His experience and his studies fitted him for the office. He had been a member of the convention which formed the first constitution for Yirginia ; of its first legisla- ture as a state ; of its executive council when Patrick Henry and Jefferson were governors; for three years a delegate in congress ; then a member of the Yirginia legislature ; a com- missioner at Annapolis ; and, so soon as the rule of rotation permitted, once more a member of congress. From the dec- laration of independence he had devoted himself to the study of republican and of federal government. On the failure at Annapolis, Jefferson cheered him on to a broader reformation : to make the states one nation as to foreign concerns, and keep them distinct in domestic ones ; to organize " the federal head into legislative, executive, and judiciary ; " to control the in- terference of states in general affairs by an appeal to a federal court. With Edmund Randolph, Madison insisted that from him, as governor of Yii'ginia, the convention would expect some leading proposition, and dwelt on the necessity of his bending his thoughts seriously to the great work. of prepara- tion ; but Randolph declined, pleading his want of the neces- sary leisure. Madison proceeded without dismay. He held as a fixed principle that the new system should be ratified by the people of the several states, so that it might be clearly paramount to their individual legislative authority. He would make no material sacrifices to local or transient prejudices. To * Sparks, ix., 511. f Madison, i., 280. X Temple, iufra ; Adams, viii., 420. 1787. YIRGINIA'S INVITATION TO A CONVENTION. 203 him tlie independence of eacli separate state was iitterlj irre- concilable with the idea of an aggregate sovereignty, while a consolidation of the states into one simple republic was neither expedient nor attainable.* In the endeavor to reconcile the due supremacy of the nation with the preservation of the local authorities in their subordinate usefulness, he did not escape mistakes ; but he saw clearly that a widely extended territory was the true domain for a republic, and in advance of the fed- eral convention he sketched for his own use f and that of his friends, :|: and ultimately of the convention, a thoroughly com- prehensive constitutional government for the union. "Washington at Mount Yernon was equally studious. He made himself familiar with the reasonings of Montesquieu ; and he obtained the opinions, not of Madison only, but of Knox and of Jay. From their letters and his own experience he drew three separate outlines of a new constitution, differing in manifold ways, and yet each of the three designed to restore and consolidate the union.* * Madison, i., 287. f Notes on the confederacy, Madison, i., 320-828. X Madison to Jefferson, 19 March 1787, Madison, i., 284; to Randolph, Gilpin, 631 ; Elliot, 107 ; to Washington, Sparks, ix., 616. * North American Review, xxv., 263. THE FORMATION OF THE CONSTITUTION OF THE UI^ITED STATES OF AMERICA IN- FIVE BOOKS, BOOK THIRD. THE FEDERAL CONVENTION". May-Septembes 1787. CHAPTER I. the constitution in outline. 14 May to 13 June 1787. Do nations float darkling down the stream of the ages with- out hope or consolation, swaying with every wind and igno- rant whither they are drifting ? or, is there a superior power of intelligence and love, which is moved by justice and shapes their course ? From the ocean to the American outposts nearest the Mis- sissippi, one desire prevailed for a closer connection, one belief that the only opportunity for its creation was come. Men who, from their greater attachment to the states, feared its hazards, neither coveted nor accepted an election to the convention, and in uneasy watchfulness awaited the course of events. Willie Jones of North Carolina, declining to serve, was replaced by Hugh Williamson, who had voted with Jefferson for excluding slavery from the territories. Patrick Henry, Thomas Nelson, and Pichard Henry Lee refusing to be delegates, Edmund Randolph, then governor of Virginia and himself a delegate to the convention, named to one vacancy James McClurg, a professor in the college of William and Mary whom Madison had urged upon congress for the office of secretary of foreign affairs. 'No state except New York sent a delegation insensible to the necessity of a vigorous union. Discordant passions were repressed by the solemnity of the moment ; and, as the states- men who were to create a new constitution, veterans in the war and in the halls of legislation, journeyed for the most part on horseback to their place of meeting, the high-wrought hopes of the nation went along with them. Nor did they deserve 208 THE FEDERAL CONYENTION. b.iii.;ch.i. ( the interest of the people of the United States alone ; they /felt the ennobling love for their fellow-men, and knew them- [ selves to be forerunners of reform for the civilized world. George "Washington was met at Chester bj public honors. From the Schuylkill the city light horse escorted him into Philadelphia, the bells chiming all the while. His first act was to wait upon Franklin, the president of Pennsylvania. C On the fourteenth of May, at the hour appointed for open- ly ing the federal convention, Virginia and Pennsylvania, the only states which were sufficiently represented, repaired to the State-house, and, with others as they gathered in, continued to do so, adjourning from day to day. Of deputies, the creden- tials of Connecticut and Maryland required but one to repre- sent the state ; of 'New York, South Carolina, and Georgia, two ; of Massachusetts, ITew Jersey, Delaware, Virginia, and North Carolina, three ; of Pennsylvania, four. The delay was turned to the best account by James Madison of Virginia. From the completion of the Virginia delegation by the arrival of George Mason, who came with unselfish zeal to do his part in fulfilling " the expectations and hopes of all the union," they not only attended the general session, but "conferred together by themselves two or three hours every day in order to form a proper correspondence of sentiments." "^ As their state had initiated the convention, they held it their duty at its opening to propose a finished plan for consideration. ^ The choice lay between an amended confederacy and " the new constitution " f for which "Washington four years before had pleaded with the people of every state. " My wish is," so he had written to Madison, " that the convention may adopt no temporizing expedients, but probe the defects of the con- stitution to the bottom and provide a radical cure, whether agreed to or not. A conduct of this kind will stamp wisdom and dignity on their proceedings, and hold up a light which sooner or later will have its influence." $ "We know from Eandolph himseK that before departing for the convention he was disposed to do no more than amend * George Mason to his son, Philadelphia, 20 May 1787. f Washington to Lafayette, 5 April 1783. Sparks, viii,, 412. i Sparks, ix., 250, 31 March 1787. ) 1787. THE CONSTITUTION IN OUTLINE. 209 the confederation ; and Ms decision was likely to have great weight in the councils of his own commonwealth. When his royalist father, attorney-general of Virginia, took refuge with the English, the son cleaved to his native land. At his own request and the sohcitation of Eichard Henry Lee, Washington received him as an aid during the siege of Boston. In 1776 he took a part in the convention for forming the constitution of Yirginia ; and the convention rewarded his patriotism by electing him at twenty-three years of age attorney-general of Yirginia in the place of his father. In 1779 he preceded Madison by a year as a delegate to congress. In the effort for the reform of the confederation, he, with Ellsworth of Connecticut and Yarnum of Ehode Island for his associates, was the chairman of the committee appointed to report on the defects of the confederacy and the new powers necessary for its efficiency. In 1786 he was elected governor of Yirginia ; and now in his thirty-fourth year he was sent to the conven- tion, bringing with him a reputation for ability equal to his high position, and in the race for public honors taking the lead of James Monroe. But with all his merit there was a strain of weakness in his character, so that he was like a soft metal which needs to be held in place by coils of a harder grain than its own. That support he found in Madison, who had urged him to act a foremost part in the convention, and had laid before him the principles on which the new govern- ment should be organized ; and in Washington, who was un- ceasing in his monitions and encouragement. Randolph, on his arrival in Philadelphia, at once yielded to their influence, and with them became persuaded that the confederacy was destitute of every energy which a constitution of the United States ought to possess.^ ^,^ The result was harmony among the Yirginia delegates.-,"^ A plan for a national government, which imbodied the/ thoughts of Madison, altered and amended by their joint con-l sultations, was agreed to by them all. To Randolph, as the ' ofHcial representative of the state, was unanimously assigned 1 the office of bringing forward the outline which was to be; known as the plan of Yirginia. This forethought provided in ^ * Randolph to Speaker, 10 October 1787. VOL. VI. — 14 ^ 210 THE FEDERAL COIH^ENTION'. B.iii.;on.i. season a cliart for the voyage, so that the ship, skilfully bal- lasted and trimmed from the beginning, could be steered through perilous channels to the wished-for haven. A government founded directly on the people seemed to justify and require a distribution of suffrage in the national legislature according to some equitable ratio. Gouverneur Morris and other members from Pennsylvania in conversation urged the large states to unite from the first in refusing to the smaller states in the federal convention the equal vote which they enjoyed in the congress of the confederacy ; but the Vir- ginians, while as the largest state in extent and in numbers they claimed a proportioned legislative suffrage as an essential right which must be asserted and allowed, stifled the project, being of the opinion that the small states would be more will- ing to renounce this unequal privilege in return for an efficient government, than to disarm themselves before the battle with- out an equivalent.* On the seventeenth. South Carolina appeared on the floor ; on the eighteenth, JSTew York ; on the twenty first, Delaware ; on the twenty-second, ITorth Carolina. Of the delegates, some were for half-way measui-es from fear of displeasing the people ; others were anxious and doubting. Just before there were enough to form a quorum, Washington, standing self-collected in the midst of them, his countenance more than usually solemn, his eye seeming to look into futurity, said : '' It is too probable that no plan we propose will be adopted. Perhaps another dreadful conflict is to be sustained. If, to please the people, we offer what we ourselves disapprove, how can we afterward defend our work ? Let us raise a standard to which the wise and the honest can repair ; the event is in the hand of God." f On the twenty-fifth, New Jersey, completing the seven states needed to form a house, was represented by William Churchill Houston, who had been detained by illness, and was too weak to remain long. There were from the South four states, from the ISTorth, three ; from the South, nineteen members, from * Madison Papers, edited by Gilpin, 726. Stereotyped reprint of Elliot, 125. f Oration by Gouverneur Morris upon the death of Vi''a5lnngton, 31 December 1799, pp. 20, 21. Morris was, in May 1787, present in Philadelpbia, and relates what he witnessed. 1787. THE CONSTITUTIOISr IN OUTLINE. 211 the !N"ortli, ten. At the desire of Benjamin Franklin of Penn- sylvania, "Washington was unanimously elected president of the convention. During the organization it was noticed that the delegates from Delaware were prohibited from changing the article in the confederation establishing the equality of votes among the states.* On the twenty-eighth, the representation was increased to nine states by the arrival of Massachusetts and Maryland. A letter was read from men of Providence, Phode Island, among them John Brown, Jabez Bowen, Welcome Arnold, and Wil- liam Barton, explaining why their state would send no dele- gates to the convention, and hopefully pledging their best ex- ertions to effect the ratification of its proceedings. f The letter was forwarded and supported by Yarnum, a member from Phode Island in congress. The delegates from Maryland, chosen at a time when the best men of the state were absorbed in a domestic struggle against new issues of paper money, and its senate by its stub- born resistance was estranged from the house, did not ade- quately represent its public spirit ; yet the majority of them to the last promoted the national union. Of idie„iifty:five in the convention, nine were graduates of Princeton, four of Yale, three of Plarvard, two of Columbia, one of Pennsylvania ; five, six, or seven had been connected Vv^ith AYilliam and Mary's ; Scotland sent one of her sons, a jurist, who had been taught at three of her universities, and Glasgow had assisted to train another ; one had been a student in Christ Church, Oxford, and he and three others had been students of law in the Tem- ple. To many in the assembly the work of the great French magistrate on the '' Spirit of Laws," of which Washington with his own hand had copied an abstract by Madison, was the favorite manual ; some of them had made an analysis of all federal governments in ancient and modern times, and a few were well versed in the best English, Swiss, and Dutch writers on government. They had immediately before them the ex- ample of Great Britain ; and they had a still better school of political wisdom in the republican constitutions of their several * Gilpin, 723; Elliot, 124. f Gilpin, 727 ; Elliot, 125, and Appendix No. 1. ^ 212 THE FEDERAL CONYENTIOK b. iii. ; ch. i. states, wliicli many of tlieni had assisted to frame. Altogether they formed "the goodliest fellowship of" lawgivers "whereof this world holds record." In their standing rules they unani- mously forbade any registry to be made of the votes of indi- viduals, so that they might, without reproach or observation, mutually receive and impart instruction; and they sat with closed doors, lest the publication of their debates should rouse the country to obstinate conflicts before they themselves should have reached their conclusions. On the twenty-ninth, Edmund Eandolph, the governor of Virginia, opened the business of the convention in this wise : " To prevent the fulfilment of the prophecies of the downfall of the United States, it is our duty to inquire into the defects of the confederation and the requisite properties of the govern- ment now to be framed ; the danger of the situation and its remedy. " The confederation was made in the infancy of the science of constitutions, when the inefficiency of requisitions was un- known ; when no commercial discord had arisen among states ; when no rebellion like that in Massachusetts had broken out ; when foreign debts were not urgent ; when the havoc of paper money had not been foreseen ; when treaties had not been vio- lated ; and when nothing better could have been conceded by states jealous of their sovereignty. But it offered no security against foreign invasion, for congress could neither prevent nor conduct a war, nor punish infractions of treaties or of the law of nations, nor control particular states from provoking war. The federal government has no constitutional power to check a quarrel between separate states ; nor to suppress a rebellion in any one of them ; nor to establish a productive impost ; nor to. counteract the commercial regulations of other nations ; nor to defend itseK against encroachments of the states. From the manner in which it has been ratified in many of the states, it cannot be claimed to be paramount to the state constitutions ; so that there is a prospect of anarchy from the inherent laxity of the government. As the remedy, the government to be es- tablished must have for its basis the republican principle." He then proposed fifteen resolutions, which he explained one by one. 1787. THE CONSTITUTION IN OUTLINE. 213 " The articles of confederation onglit to be so corrected and enlarged as to accomplisli the objects proposed bj their insti- tution ; namely, ' common defence, security of liberty, and general welfare.' '^ The rights of suffrage in the national legislature ought to be proportioned to the quotas of contribution, *or to the num- ber of free inhabitants. " The national legislature ought to consist of two branches, of which the members of the first or democratic house ought to be elected by the people of the several states ; of the sec- ond, by those of the first, out of persons nominated by the indi- vidual legislatures. " The national legislature, of which each branch ought to possess the right of originating acts, ought to enjoy the legis- lative rights vested in congress by the confederation, and moreover to legislate in all cases to which the separate states are Incompetent, or in which the harmony of the United States might be interrupted by the exercise of individual legislation ; to negative all laws passed by the several states contravening the articles of union ; and to call forth the force of the union against any member of the union failing to fulfil its duty under the articles thereof. " A national executive, chosen by the national legislature and ineligible a second time, ought to enjoy the executive rights vested in congress by the confederation, and a general authority to execute the national laws. " The executive and a convenient number of the national judiciary ought to compose a council of revision, with author- ity to examine every act of the national legislature before it shall operate. " A national judiciary ought to be established ; to consist of supreme and inferior tribunals ; to be chosen by the national legislature ; to hold their offices during good behavior, wdth jurisdiction to hear and determine all piracies and felonies on the high seas ; captures from an enemy ; cases in which foreign- ers and citizens, a citizen of one state and a citizen of another state, may be interested ; cases which respect the collection of the national revenue ; impeachments of national officers ; and questions which may involve the national peace and harmony. 214 THE FEDERAL CONVENTIOK b. m. ; oh. i. " Provision ought to be made for tlie admission of states lawfully arising within the limits of the United States. " A republican government and the territory of each state ought to be guaranteed by the United States to each state. " Provision ought to be made for the completion of all the engagements of congress, and for its continuance until after the articles of union shall have been adopted. " Provision ought to be made for the amendment of the articles of union ; to which the assent of the national legislature ought not to be required. " The legislative, executive, and judiciary powers, within the several states, ought to be bound by oath to support the articles of union. " The amendments which shall be offered to the confedera- tion by the convention ought, after the approbation of congress, to be submitted to assemblies of representatives, recommended by the several legislatures to be expressly chosen by the people to consider and decide thereon." Pandolph concluded with an exhortation to the convention not to suffer the present opportunity of establishing general harmony, happiness, and liberty in the United States to pass away unimproved."^ The new articles of union would form a representative re- public. The nobleness of the Virginia delegation appeared in the offer of an option to found representation on " free inhab- itants " alone. The proposed government would be truly na- tional. Not the executive, not the judges, not one officer em- ployed by the national government, not members of the first branch of the legislature, would owe their election to the states ; even in the choice of the second branch of the national legisla- ture, the states were only to nominate candidates. It is worthy of note that, as Eandolph declared the propor- tioned rule of suffrage to be " the basis upon which the larger states could assent to any reform," saying, " We ought to be one nation," "William Paterson of New Jersey made note that " sovereignty is an integral thing," meaning that in the new union the states must be equal unless they all were to be merged into one.f The house referred the propositions of * Gilpin, YSl-TSS ; Elliot, 126-128. j Paterson MSS. 1787. THE CONSTITUTION IN OUTLINE. 215 Yirginia to a committee of the whole on the state of the union.* Charles Pinclmey of South CaroHna, a young man of twenty- nine, then presented a plan for a constitution, " grounded on the same principles f as the resolutions " of Yirginia. It re- ceived the same reference, but no part of it was used, and no copy of it has been preserved. On the morning of the thirtieth, ISTathaniel Gorham of Massachusetts having been elected chairman of the committee of the whole, Eandolph offered a resolution, J which Gouver- neur Morris had formulated, "that a national government ought to be established, consisting of a supreme legislative, ex- ecutive, and judiciary." The force of the word " supreme " was explained to be, that, should the powers to be granted to the new government clash with the powers of the states, the states were to yield.* Pierce Butler of South Carolina advanced the business of the day by saying in the spirit of Montesquieu : " Heretofore I have opposed the grant of new powers to congress because they would all be vested in one body ; the distribution of the powers among different bodies will induce me to go great lengths in its support." 1 " In all communities," said Gouvemeur Morris, " there must be one supreme power and one only. A confederacy is a mere compact, resting on the good faith of the parties ; '^a national, supreme government must have a complete and com- pulsive operation." Mason argued " very cogently " : " In the nature of things punishment cannot be executed on the states collectively ; therefore such a government is necessary as can operate directly on individuals." ^ Hoger Sherman, who arrived that morning and enabled Con- necticut to vote, was not yet ready to do more than vest in the general government a power to raise its o^vn revenue ; () and against the negative of his state alone, E'ew York being divided, the motion was carried by Massachusetts, Pennsylvania, Yir- ginia, and the two Carolinas, on this day aided by Delaware. * Gilpin, 735; Elliot, 128. f Yates in Elliot, i., 391. X Gilpin, 747 ; Elliot, 132. # Yates in Elliot, i., 392. II Gilpin, 747, 748 ; Elliot, 133. ^ Gilpin, 748 ; Elliot, 133. Gilpin, 748 ; Elliot, 133. 216 THE FEDERAL CONVENTION. b. iii. ; oh. i. Alexander Hamilton of 'New York next moved that " tlie rights of suffrage in the national legislature ought to be pro- portioned to the number of free inhabitants ; " and Richard Dobbs Spaight of E'orth Carolina seconded him. But, to escape irritating debates, the resolution was postponed, and Madison, supported by Gouverneur Morris, moved, in more general terms, " that the equality of suffrage established by the articles of confederation ought not to prevail in the na- tional legislature ; and that an equitable ratio of representation ought to be substituted." * Faithful to his instructions, George Eead of Delaware asked that the consideration of the clause might be postponed ; as on any change of the rule of suffrage it might become the duty of the deputies from his state to withdraw from the con- vention. " Equality of suffrage," said Madison, " may be rea- sonable in a federal union of sovereign states ; it can find no place in a national government." But, from the spirit of con- ciKation, the request for delay was granted.f The next day Georgia gained the right to vote by the ar- rival of "William Pierce, a Virginian by birth, in the war an aid /-to Greene, and now a member of congress. The Yirginia re- ^ solve, that the national legislature should be composed of two / branches, passed without debate, and, but for Pennsylvania, unanimously ; Hamilton and Robert Yates of JSTew York vot- ing together." J Three weeks later, Pennsylvania, which had hesitated only out of forbearance toward its own constitution, gave in its adhesion. The decision, which was in harmony with ,the undisputed and unchanging conviction of the whole people /of the United States, was adopted, partly to check haste in J legislation by reciprocal watchfulness, and partly to prevent / the fatal conflict which might one day take place between a single legislative body and a single executive. /^ On the method of electing the two branches, the upholders \ of the sovereignty of each state contended that the national /government ought to seek its agents through the governments I of the respective states ; others preferred that the members of Hhe first branch should be chosen directly by the people. * Gilpin, 750, 751 ; Elliot, 134. f Gilpin, 751, 752 ; Elliot, 134, 135. X Gilpin, 753 ; Elliot, 135. 1787. THE CONSTITUTION IN OUTLINE. 217 " The people," said Sherman, " should have as little to do as maj be about the government ; they want information and are constantly liable to be misled ; the election onght to be by the state legislatures." " The people do not want virtue ; but they are the dupes of pretended patriots," added Elbridge Gerry of Massachusetts. To this arraignment of the people by men of New England, Mason of Virginia rephed : " The larger branch is to be the grand depository of the democratic principle of the government. We ought to attend to the rights of every class of the people. I have often wondered at the indiiference of the superior classes of society to this dictate of humanity and policy." " Without the confidence of the j people," said James Wilson of Pennsylvania, '' no government, l least of all a republican government, can long subsist; nor [ ouglit the weight of the state legislatures to be increased by I making them the electors of the national legislature." Madi- ) son, though for the senate, the executive, and the judiciary he approved of refining popular appointments by successive , " filtrations," held the popular election of one branch of the national legislature indispensable to every plan of free gov- ernment. This opinion prevailed."^ It was agreed, unanimously and without debate, that the '] national legislature should possess the legislative powers of the • confederacy ; but, to the extension of them to all cases to which the state legislatures were individually incompetent, Charles • ' Pinckney, John Putledge, and Butler, all the three of South Carolina, objected that the vagueness of the language might imperil the powers of the states. But Pandolj)h disclaimed the intention of giving indefinite powers to the national legis- lature, and declared himself unalterably opposed to such an inroad on the state jurisdictions. Madison was strongly biasedX in favor of enumerating and defining the powers to be granted, 1 although he could not suppress doubts of its practicability. ( " But," said he, " a form of government that will provide for " the liberty and happiness of the community being the end of our deliberations, all the necessary means for attaining it must^ however reluctantly, be submitted to." f The clause was * Gilpin, 753, 75i, 755, 75G ; Elliot, 135, 13G, 137. f Gilpin, 760 ; Elliot, 139. 218 THE FEDERAL CO:&TyENTIOK b.iii.;oh.i. adopted by nine states, including 'New York and l^ew Jersey. Oliver Ellsworth of Connecticut, voting against Sherman, di- vided that state. /^ The clauses in the Virginia plan, giving to the national legis- [ lature the powers necessary to preserve harmony among the \ states, to negative all state laws contravening, in the opinion of the national legislature, the articles of union, or, as Benja- min Franklin of Pennsylvania added, " contravening treaties I subsisting under the authorit}^ of the union," v^^ere agreed to L without debate or dissent. Madison struggled to confer on the national legislature the right to negative at its discretion any state law whatever, being of the opinion that a negative of which the rightfulness was unquestioned would strip a local law of every pretence to the character of legality, and thus suppress resistance at its incep- / tion. On another day, explaining his motives, he said : " A f negative on state laws is the mildest expedient that can be de- \ vised for enforcing a national decree. Should no such precau- \ tion be engrafted, the only remedy would be coercion. The Jj-' ynegative would render the use of force unnecessary. In a > ) word, this prerogative of the general government is the great pervading principle that must control the centrifugal tendency / of the states, which, without it, will continually fly out of their / proper orbits, and destroy the order and harmony of the po- I litical system." * But the convention refused to adopt his ^ counsel. Lastly : the Virginia plan authorized the exertion of the force of the whole against a delinquent state. Madison, ac- cepting the argument of Mason, expressed a doubt of the prac- ticability, the justice, and the equity of applying force to a collective people. " To use force against a state," he said, " is more like a declaration of war than an infliction of punishment, and would be considered by the party attacked a dissolution of all previous contracts. I therefore hope that a national sys- tem, with full power to deal directly with individuals, will" be framed, and the resource be thus rendered unnecessary." The clause was postponed.! In this wise and in one day the powers of the legislature * June 8, Gilpin, 822, 823 ; Elliot, 171. f Gilpin, 761 ; Elliot, 140. / 1787. THE CONSTITUTION- IN OUTLINE. 219 which was to be the centre of the government were introduced, and, except the last, were with common consent established in their ontlines. On points essential to union, Yates and Ham- ilton, I^ew Jersey and Pennsylvania voted together. On the first day of June the convention took into consideration the national executive. The same spirit of conciliation prevailed, but with a chaos of ideas and a shyness in the members to de- clare their minds. Should the national executive be one or many ? — a question which, from a difference among themselves, the plan of the i Virginia delegates had left undecided. Should it be chosen L^^ directly by the people ? or by electors ? or by the state legisla-f J** (A tures ? or by the executives of the states ? or by one branch of! the national legislature ? or by both branches ? And, if by* both, by joint or concurrent ballot ? or by lot ? How longi should be its term of service ? And how far should its re- ^ eligibility be limited ? Should it have the sole power of peace and war ? Should it have an absolute or a qualified veto ort acts of legislation, or none at all ? Should its powers be exer-\ cised with or without a council ? Should it be hable to remov- \ al by the legislatures of the states, or by the national legisla- \ ture ? or by the joint action of both ? or by impeachment alone ? ^ Here the convention marched and countermarched for want of guides. Progress began to be made on the ascertainment that the members inclined to withhold from the executive the power over war and peace. This being understood, "Wilson and Charles Pinckney proposed that the national executive should consist of a single person. A long silence prevailed, broken at last by the chairman asking if he should put the ]/ question. Franklin entreated the members first to deliver ^ their sentiments on a point of so great importance. Putledge joined in the request, and for himself supported Pinckney and "Wilson.* On the other hand, Sherman, controlled by the pre- cedents of the confederacy which appointed and displaced executive officers just as it seemed to them fit, replied : " The legislature are the best judges of the business to be done by ~ the executive, and should be at liberty from time to time to appoint one or more, as experience may dictate." f * Gilpin, 762 ; Elliot, 140. f Gilpin, 763 ; Elliot, 140. 220 THE FEDERAL CONVENTION. b. iii. ; ch. i. " I do not mean to throw censure on that excellent fabric, the British government," said Kandolph ; " if we were in a situation to copy it, I do not know tliati should be opposed to At But the fixed genius of the people of America requires a Ndifferent form of government. The requisites for the execu- itive department — vigor, dispatch, and responsibility — can be ( found in three men as well as in one. Unity in the jsxecutive is the fo3tus .of .jnonarchy." '^ " Unity in the executive," re- torted Wilson, " will rather be the best safeguard against tyran- ny. From the extent of this country, nothing but a great confederated republic will do for it." To calm the excitement, Madison led the convention, before choosing between unity or plurality in the executive, to ^x the extent of its authority ; and the convention agreed to clothe it " with power to carry into effect the national laws and to appoint to offices in cases not otherwise provided for." f On the mode of appointing the executive, Wilson said ; " Chimerical as it may appear in theory, I am for an election by the people. Experience in ]^ew York and Massachusetts shows that an election of the first magistrate by the people at large is both a convenient and a successful mode. The objects of choice in such cases must be persons whose merits have gen- eral notoriety." " I," replied Sherman, " am for its appoint- ment by the national legislature, and for making it absolutely dependent on that body whose will it is to execute. An inde- pendence of the executive on the supreme legislature is the very essence of tyranny." Sherman and Wilson were for a period of office of three years and " against the doctrine of rota- tion, as throwing out of office the men best qualified to execute its duties." Mason asked for seven years at least, but without re-eligibility. " What," inquired Gunning Bedford of Dela- ware, "will be the situation of the country should the first magistrate elected for seven years be discovered immediately on trial to be incompetent ? " He argued for a triennial elec- tion, with an ineligibility after three successive elections. The convention, by a vote of five and a half states against four and a half, decided for the period of seven years ; :j: and by at least '^ Gilpin, '763, 764; Elliot, 141. f Gilpin, 765 ; Elliot, 141. X Gilpin, 767 ; Elliot, 143. 178r. THE CONSTITUTION IN OUTLINE. 221 seven states against Connecticut, tliat tlie executive sliould not be twice eligible.* How to choose the executive remained the perplexing prob- lem. "Wilson, borrowing an idea from the constitution of Maryland, proposed that electors chosen in districts of the sev- eral states should meet and elect the executive by ballot, but not from their own body.f He deprecated the intervention of the states in its choice. J Mason favored the idea of choosing the executive by the people ; Hutledge, by the national senate.* Gerry set in a clear light that the election by the national legis- lature would keep up a constant intrigue between that legisla- ture and the candidates ; nevertheless, Wilson's motion was at that time supported only by Pennsylvania and Maryland ; and from sheer uncertainty what else to do, the convention left the choice of the executive to the national legislature. || For relief from a bad selection of the executive, John Dick- inson of Delaware, who did not like the plan of impeaching the great officers of state, proposed a removal on the request of a majority of the legislatures of the individual states."^ Sher- man would give that power to the national legislature. " The making the executive the mere creature of the legislature," replied Mason, " is a violation of the fundamental principle of good government." ^ " The occasion is so important," said Dickinson, " that no man ought to be silent or reserved. A limited monarchy is one of the best governments in the world. Equal blessings have never yet been derived from any of the republican forms. But, though a form the most perfect perhaps in itself be unat- tainable, we must not despair. Of remedies for the diseases of republics which have flourished for a moment only and then vanished forever, one is the double branch of the legislature, the other the accidental lucky division of this country into distinct states, which some seem desirous to abolish altogether. This division ought to be maintained, and considerable powers to be left with the states. This is the ground of my consola- * Gilpin, 119 ; Elliot, 149. |j Gilpin, 770 ; Elliot, 144. f Gilpin, 763 ; Elliot, 143. ^ Gilpin, 776 ; Elliot, 147. X Gilpin, 767 ; Elliot, 143. Gilpi^. '^'^6 ; Elliot, 147. «= Gilpin, 768 ; Elliot, 143. / / 222 THE FEDERAL CONVENTION. b. hi. ; oh. i. tion for tlie future fate of my country. In case of a consolida- tion of the states into one great republic, we may read its fate in the history of smaller ones. The point of representation in the national legislature of states of different sizes must end in mutual concession. I hope that each state will retain an equal voice, at least in one branch of the national legislature." * The motion of Dickinson was sustained only by Delaware ; and the executive was made removable on " impeachment and conviction of malpractice or neglect of duty." f But the ad- vice on the distribution of suffrage in the national legislature sank deep into the minds of his hearers. Eandolph pleaded anew for an executive body of three members, one from each of the three geographical divisions of the country. " That would lead to a constant struggle for local advantages," replied Butler, who had travelled in Holland ; and from his own observation he sketched the distraction of the Low Countries from a plurality of military heads. :{: " Ex- ecutive questions," said Wilson on the fourth, " have many sides ; and of three members no two might agree.* All the thirteen states place a single magistrate at the head. Unity in the executive will favor the tranquillity not less than the vigor /of the government." || Assenting to unity in the executive, J Sherman thought a council necessary to make that unity ac- /ceptable to the people. " A council," replied Wilson, " of tener ( covers malpractices than prevents them." The proposal for a single executive was sustained by seven states against ISTew York, Delaware, and Maryland. In the Virginia delegation there would have been a tie but for AVashington."'^ The de- cision v/as reached after mature deliberation, and was accepted as final. Wilson and Hamilton desired to trust the executive with an absolute negative on acts of legislation ; but this was op- posed, though from widely differing motives, by G-erry, Frank- lin, Sherman, Madison, Butler, Bedford, and Mason,^ and was unanimously negatived. * Gilpin, IIS; Elliot, 148. i Gilpin, 781 ; Elliot, 150. t Gili in, 779 ; Elliot, 149. ^ Gilpin, 782, 783 ; Elliot, 151. X Gilpin, 780 ; Elliot, 149. ^ Gilpin, 784-787; Elliot, 151-154. * Gilpin, 782; Elliot, 150. 1787. THE CONSTITUTION IN OUTLINE. 223 "When Wilson urged upon tlie convention the Yirginia plan of vesting a limited veto on legislation in a council of revision composed of the executive and a convenient number of the ju- diciary, Gerry called to mind that judges had in some states, and with general approbation, set aside laws as being against the constitution ; but that from the nature of their otiice they were unfit to be consulted on the policy of public measures ; and, after the example of his own state, he proposed rather to confide the veto power to the executive alone, subject to be overruled by two thirds of each branch. " Judges," said Ruf us King of Massachusetts, " should expound the law as it may come before them, free from the bias of having participated in its formation." * Gerry's motion was carried by eight states against Connecticut and Maryland.f In a convention composed chiefly of lawyers, the organiza:-^ tion of the judiciary engaged eager attention ; at the close of a I long sitting, the Virginia resolution, that a national judiciary L be established, passed without debate and unanimously, with a further clause that the national judiciary should consist of one supreme tribunal and of one or more inferior tribunals. J A night's reflection developed a jealousy of transferring business from the courts of the states to the courts of the union ; and on the fifth Rutledge and Sherman insisted that state tribunals ought, in all cases, to decide in the first instance, yet without impairing the right of appeal. Madison replied : * " Unless inferior tribunals are dispersed throughout the repub- lic, in many cases with final jurisdiction, appeals will be most oppressively multiplied. A government without a proper e^^ ecutive and judiciary will be the mere trunk of a body, without! arms or legs to act or move." The motion to dispense with! the inferior national tribunals prevailed ; but Dickinson, Wil- / son, and Madison, marking the distinction between establishing/ them and giving a discretion to establish them, obtained a great majority for empowering the national legislature to provide for their institution. || On the thirteenth it was unanimously * Gilpin, 783 ; Elliot, 151. | Gilpin, 790, 791 ; Elliot, 155. t Gilpin, 791 ; Elliot, 155; and Elliot, i., 160. « Gilpin, 798, 799 ; Elliot, 159. II Gilpin, 800; Elliot, 160. Compare Elliot, i., 1G3, 097. 224: THE FEDERAL CON VENTIOK b. iii. ; oh. i. r agreed " that tlie power of tlie national judiciary should extend ) to all cases of national revenue, impeacliment of national oiii- "' cers, and questions which involve tlie national peace or har- ^^ monj." * The Yirginia plan intrusted the appointment of the judges \ to the legislature ; Wilson proposed to transfer it to the execu- tive; Madison to the senate; and on the thirteenth the last ( mode was accepted without dissent. f All agreed that their tenure of office should be good behavior, and that their com- pensation should be safe from diminution during the period of their service. On the sixth of June, Chaiies Pincknej, supported by Kut- ledge, made once more a most earnest effort in favor of elect- ing the first branch of the legislature by the legislatures of the states, and not by the people. " Vigorous authority," insisted Wilson, " should flow immediately from the legitimate source of all authority, the people. Eepresentation ought to be the exact transcript of the whole society ; it is made necessary only because it is impossible for the people to act collectively." " If it is in view," said Sherman, "to abolish the state governments, the elections ought to be by the people. If they are to be con- tinued, the elections to the national government should be made by them. I am for giving the general government power to legislate and execute within a defined province. The objects of the union are few : defence against foreign danger, internal disputes, and a resort to force ; treaties with foreign nations ; the regulation of foreign commerce and drawing revenue from it. These, and perhaps a few lesser objects, alone rendered a confederation of the states necessary. All other matters, civil and criminal, will be much better in the hands of the states." J " Under the existing confederacy," said Mason, " congress represent the states, and not the people of the states; their acts operate on the states, not on individuals. In the new plan of government the people wiU be represented ; they ought, therefore, to choose the representatives.* Improper elections in many cases are inseparable from republican governments. * Gilpin, 855 ; Elliot, 188 ; Yates in Elliot, i., 409. f Gilpin, 792, 793, 855; Elliot, 155, 156, 188. i Gilpin, 801, 802, 803 ; Elliot, 160, 161. =^ Gilpin, 803 ; Elliot, 161, 1787. THE CONSTITUTION IN OUTLINE. 225 But compare these with the advantage of this form, in favor of the rights of the people, in favor of human nature ! " Approving the objects of union which Sherman had enu- merated, "I combine with them," said Madison, "the necessity of providing more effectually for the security of private rights and the steady dispensation of justice." * And he explained at great length that the safety of a republic requires for its jurisdiction a large extent of territory, with interests so many and so various that the majority could never unite in the pur- suit of any one of them. " It is incumbent on us," he said, " to try this remedy, and to frame a republican system on such a scale and in such a form as will control all the evils which have been experienced." f " It is essential," said Dickinson, " that one branch of the legislature should be drawn immediately from the people ; and it is expedient that the other should be chosen by the legisla- tures of the states. Tliis combination of the state govern- ments with the national government is as politic as it is una- voidable." Pierce spoke for an election of the first branch by the peo- ple, of the second by tlie states ; so that the citizens of the states will be represented both individually and collectively. X When on the twenty-first the same question was revived in the convention, Charles Cotesv/orth Pinckney of South Carolina, seconded by Luther Martin of Maryland, adopting a milder form, proposed " that the first branch, instead of being elected by the people, should be elected in such manner as the legislature of each state should direct." * " It is essential to the democratic rights of the community," said Hamilton, enouncing a principle which he upheld with unswerving consistency, "that the first branch be directly elected by the people." " The democratic principle," Mason repeated, " must actuate one part of the government. It is the only security for the rights of the people." "An election by the legislature," pleaded Kutledge, " would be a more refining process." " The election of the first branch by the people," said Wilson, " is not the corner-stone only, but the foundation * Gilpin, 804 ; Elliot, 162. % Gilpin, 807 ; Elliot, 163. f Gilpin, 806 ; Elliot, 163. » Gilpin, 925 ; Elliot, 223. VOL. VI. — 15 226 THE FEDERAL CONVENTION. b. m.;cH.i. of the fabric." * Soutli Carolina, finding herself feebly sup- ported, gave up the struggle. On the seventh of June, Dickinson moved that the mem- bers of the second branch, or, as it is now called, the senate, ought to be chosen by tlie individual legislatures.! The mo- tion, without waiving the claim to perfect equality, clearly implied that each state should elect at least one senator. " If each of the small states should be allowed one senator," said Cotesworth Pinckney, " there will be eighty at least." *' I have no objection to eighty or twice eighty of them," rejoined Dicldnson. " The legislature of a numerous people ought to be a numerous body. I wish the senate to bear as strong a likeness as possible to the British house of lords, and to consist of men distinguished for their rank in life and their weight of property. Sach characters are more likely to be selected by the state legislatures than in any other mode." " To depart from the proportional representation in the senate," said Madi- son, " is inadmissible, being evidently unjust. The use of the senate is to consist in its proceeding with more coolness, sys- tem, and wisdom than the popular branch. Enlarge their number, and you communicate to them the vices which they are meant to correct. Their weight will be in an inverse ratio to their numbers." Dickinson replied : " The preservation of the states in a certain degree of agency is indispensable. The proposed national system is like the solar system, in which the states are the planets, and they ought to be left to move more freely in their proper orbits." J " The states," answered Wilson, " are in no danger of being devoured by the national government ; I wish to keep them from devouring the national government. Their existence is made essential by the great extent of our country. I am for an election of the second branch by the people in large districts, subdividing the districts only for the accommodation of voters." Gerry and Sherman declared themselves in favor of electing the senate by the individual legislatures. From Charles Pinck- ney came a proposal to divide the states periodically into three * Gilpin, 926, 927 ; Elliot, 223, 224. Yates in Elliot, i., 432, 433. f Gilpin, 812; Elliot, IGG. X Gilpin, 813, 814, 815 ; Elliot, 166, 167. 1787. THE CONSTITUTION IN OUTLINE. 227 classes according to their comparative importance ; the first class to have three members, the second two, and the third one member each ; but it received no attention. Mason closed the debate : " The state legislatures ought to have some means of defending themselves against encroachments of the national government. And what better means can we provide than to make them a constituent part of the national establishment? 'No doubt there is danger on both sides ; but we have only seen the evils arising on the side of the state governments. Those on the other side remain to be displayed ; for congress had not power to carry their acts into execution, as the national government will now have." The vote was then taken, and the choice of the second branch or senate was with one consent intrusted to the individual legislatures. In this way the states as states made their lodgment in the new constitution.* The equality of the small states was next imperilled. On the ninth, David Brearley, the chief justice of New Jersey, \ vehemently protested against any change of the equal suffrage of the states. To the remark of Randolph, that the states ought to be one nation, Paterson replied : " The idea of a national government as contradistinguished from a federal one never entered into the mind of any of the states. If the states are as states still to continue in union, they must be considered as equals. Thirteen sovereign and independent states can never constitute one nation, and at the same time be states. If we are to be formed into a nation, the states as states must be abolished, and the whole must be thrown into hotchpot, and when an equal division is made there may be fairly an equality of representation. New Jersey will never confederate on the plan before the committee. I would rather submit to a despot than to such a fate. I will not only oppose the plan here, but on my return home will do everything in my power to defeat it there." f When, on the eleventh, the committee of the w^hole was about to take the question, Franklin, ever the peace-maker, reproved the want of coolness and temper in the late debates. * Gilpin, 817, 818, 821 ; Elliot, 1G8, 169, 170 ; and i., 1G5, 399. ■{■ Paterson MSS. Gilpin, 831, 832 ; and compare STO, 902, 903 ; Elliot, 176, 177, 194, 211. 228 THE FEDERAL CONVENTION. b. iii. ; ch. i. " We are sent here," lie said, " to consult, not to contend with each other;" and, though he mingled crude proposals with wholesome precepts, he saw the danger of the pass into which they were entering. There were six states, two northern and four southern, demanding a representation in some degree pro- portioned to numbers — Massachusetts, Pennsylvania, Virginia, and the two Carolinas with Georgia, whose delegates, as they con- templated her vast and most fertile territory, indulged in glow- ing visions of her swift advances. There were two northern with one southern state for an equal representation of states — ]^ew York, 'New Jersey, and Delaware. Connecticut stood between the two. It was carried by the six national states and Connecticut against the three confederating states, Mary- land being divided, that in the first branch, or house of repre- sentatives, of the national legislature, the suffrage ought to be according to some equitable ratio. In April 1783, congress had apportioned the sup^Dlies of the states for the common treasury to the whole number of their free inhabitants and three fifths of other persons ; in this precedent the equitable ratio for representation in the popular branch was found.* Connecticut then took the lead ; and Sherman, acting upon a principle which he had avowed more than ten years before, moved that each state should have one vote in the second branch, or senate. "Everything," he said, "depends on this; the smaller states will never agree to the plan on any other principle than an equality of suffrage in this branch." Ells- worth shored up his colleague ; but they rallied only five states against the six which had demanded a proportioned represen- tation. Finally Wilson and Hamilton proposed for the second branch the same rule of suffrage as for the first ; and this, too, was carried by the phalanx of the same six states against the remaining five. So the settlement offered by Wilson, Hamil- ton, Madison, Rutledge, and others, to the small states, and adopted in the committee of the whole, was: The appoint- ment of the senators among the states according to represen- tative population, except that each state should have at least one. * Gilpin, 843; Elliot, 181. 1787. THE CONSTITUTION IN OUTLINE. 229 The convention speeded through the remainder of the Vir- ginia plan. A guarantee to each state of its territory was de- clined. A republican constitution, the only one suited to the genius of the United States, to the principles on which thej had conducted their war for independence, to their assumjDtion before the world of the responsibility of demonstrating man's capacity for self-government, was guaranteed to each one of the United States. The requirement of an oath from the highest state officers to support the articles of union was opposed by Shennan * as an intrusion into the state jurisdictions, and supported by Ran- dolph as a necessary precaution. " An oath of fidelity to the states from national officers might as well be required," said Gerry. Martin observed: "If the new oath should conflict with that already taken by state officers, it would be improp- er ; if coincident, it would be superfluous." f The clause was retained by the vote of the six national states. By the same vote the new system was referred for consideration and deci- sion to assemblies chosen expressly for the purpose by the people of the several states. The articles of union were there- after open to " amendment whensoever it should seem neces- sary." Sherman and Ellsworth, speaking on the twelfth, wished the members of the popular branch to be chosen annually. " The people of New England," said Gerry, " will never give up annual elections." J " "We ought," replied Madison, " to consider what is right and necessary in itself for the attain- ment of a proper government ; " and his proposal of a term of three years was adopted for the time ; though, to humor the eastern states, it was afterward changed to two. The ineligi- bility of members of congress to national offices was limited to one year after their retirement ; but, on the motion of Charles Pinckney, the restriction on their re-election was removed, and the power of recalling them, which was plainly inconsistent with their choice by the people, was taken away.* The qualification of age was at a later day fixed at twenty- five years for the branch elected by the people. For senators * Gilpin, 845 ; Elliot, 1S2. t Gilpin, 847 ; Elliot, 184. t Gilpin, 845 ; Elliot, 183. « Gilpin, 851 ; Elliot, 185. 230 THE FEDERAL CONVENTIOX. b. in. ; oh. i. the q-aaliiicatioii of age was at that time fixed at thirty. Pierce would have limited their term of service to three years ; Sher- man to not more than -Q-ve ; but a great majority held seven years by no means too long. The resolutions of the committee departed from the origi- nal plan of Yirginia but rarely, and, for the most part, for the better. Thus amended, it formed a complete outline of a fed- eral republic. The mighty work was finished in thirteen ses- sions, with little opposition except from the small states, and from them chiefly because they insisted on equality of suffrage in at least one branch of the leojislature. 1787. NEW JEPwSEY CLAIMS EQUAL REPKESENTATIOK 231 CHAPTEE 11. NEW JERSEY CLAIMS AN EQUAL KEPEESENTATION OF THE STATES. The Fifteenth to the Nineteenth of June 1787. The plan of Yirginia divested the smaller states of the equality of suffrage, wliicli they had enjoyed from the incep- tion of the union. " See the consequence of pushing things too far," said Dickinson to Madison ; the smaller states, though some of their members, Hke himself and the delegates from Connecticut, wished for a good national government with two branches of the legislature, were compelled, in seK-def ence, to fall back upon the articles of confederation.* The project which in importance stands next to that of Yirginia is the series of propositions of Connecticut. It con- sisted of nine sections, and in the sessions of the convention received the support of every one of the Connecticut delega- tion, particularly of Sherman and Ellsworth. It was framed while they were still contriving amendments of the articles of the confederation.! It gave to the legislature of the United *Gilpm, 863, note; Elliot, 191. f Therefore, certainly, before 19 June, and probably soon after the arrival of Sherman in Philadelphia. The Connecticut members were not chosen till Satur- day, the twelfth of Hay. Ellsworth took his seat the twenty-eighth of May, Sher- man the thirtieth, and Johnson the second of June. For the plan, see the Life of Roger Sherman by Jeremiah Evarts, in Biography of the Signers, Ed. of 1828, pp. 42-41. It may be that Sherman drew the paper ; but one of the articles cor- responds with the sixth recommendation of a committee on which Ellsworth served with Randolph in 1781 ; and is very similar to a proposition made in 1786 by a sub-committee of which Johnson was a member ; and another, the sixth, doca no more than adopt the report of a committee of which Ellsworth was a member with Hamilton and Madison in 1783. It is hard to say whether Sherman or EUs- 232 THE FEDERAL CONVENTION". b. hi. ; ch. ii. States the power over commerce with foreign nations and be- tween the states in the union, with a revenue from customs and the post-office. The United States were to make laws in all cases which concerned their common interests ; but not to interfere with the governments of the states in matters where- in the general welfare of the United States is not affected. The laws of the United States relating to their common inter- ests were to be enforced bj the judiciary and executive officers of the respective states. The United States were to institute one supreme tribunal and other necessary tribunals, and to as- certain their respective powers and jurisdiction. The individ- ual states were forbidden to emit bills of credit for a currency, or to make laws for the payment or discharge of debts or con- tracts in any manner diifering from the agreement of the par- ties, whereby foreigners and the citizens of other states might be affected. The common treasury was to be supplied by the several states in proportion to the whole number of white and other free citizens and inhabitants and three fifths of all other persons, except Indians not paying taxes, in each state. Should any state neglect to furnish its quota of supplies, the United States might levy and collect the same on the inhabitants of such state. The United States might call forth aid from the people to assist the civil officers in the execution of their laws. The trial for a criminal offence must be by jury, and must take place within the state in which the offence shall have been committed. The task of leading resistance to the large states fell to ISTew Jersey. Paterson, one of its foremost statesmen, of Scotch- Irish descent, brought from Ireland in infancy, a graduate of Princeton, desired a thoroughly good general government. Cheerful in disposition, playful in manner, and of an even temper, he was undisturbed by resentments, and knew how to bring back his friends from a disappointment to a good humor with themselves and with the world.* In his present under- ■worth was the prreatcst hater of paper money. Compare Gilpin, 1345, 1442; El- liot, 435,485. For proof of their unity of action, compare tbcir joint letter from New London, 26 September HSY, to Governor Huntington of Connecticut, in Elliot, i., 491. * Dayton to Tatcrson, 1 February ISOl. US. 1787. NEW JERSEY CLAIMS EQUAL REPRESENTzVTION. 233 taking lie was obliged to call around liim a group of states agreeing in almost nothing. New York, his strongest ally, acted only from faction. New Jersey itself needed j^rotection for its commerce against New York. Luther Martin could bring the support of Maryland only in the absence of a ma- jority of his colleagues. TJie people of Connecticut * saw the need of a vigorous general government, with a legislature in two branches. The plan of New Jersey, which Paterson presented on the fifteenth, was a revision of the articles of confederation. It preserved a congress of states in a single body ; granted to the United States a revenue from duties, stamps, and the post-office, but nothing more except by requisitions ; established a plural executive to be elected and to be removable by congress ; and conferred on state courts original though not final jurisdiction over infractions of United States laws.f " The New Jersey system," said John Lansing J of New York, on the sixteenth, " is federal ; the Virginia system, na- tional. Li the first, the powers flow from the state governments ; in the second, they derive authority from the people of the states, and must ultimately annihilate the state governments. We are invested only with power to alter and amend defective parts of the present confederation." * Now the powers granted by Virginia extended to " all fur- ther provisions necessary to render the federal constitution adequate to the exigencies of the Union." " Fully adequate," were the still more energetic words of Pennsylvania. New Jersey did not so much as name the articles of confedera- tion ; while Connecticut limited the discussions of its dele- gates only by "the general principles of republican govern- ment." 1 The states, Lansing further insisted, would not ratify a * Gilpin, S62, 863, Elliot, 191, note, wrongly classes New York and Connecti- cut together. In conduct and intention the delegates of Connecticut were very unlike Yates and Lansing. f Paterson MSS. ; Elliot,!., 175-177; Gilpin, 8G3-8G7 ; Elliot, 191-193. X Yates in Elliot, i., 411 ; compared v. ith Gilpin, 867 ; Elliot, 193 ; Paterson MSS. » Gilpin, 857 ; Elliot, 193 ; Yates in Elliot, i., 411. I Journals of Congress, iv. Appendix. 23i THE FEDERAL CONVENTION". b. iii. ; ch. n. novel sclieme, wHle they would readily approve an augmenta- tion of the familiar authority of congress.* Paterson next spoke with the skill of a veteran advocate, setting forth, "not his own opinions," as he frankly and re- peatedly avowedjt but " the views of those who sent him." " The system of government for the union wliicli I have pro- posed accords with our own powers and with the sentiments of the people, j^ If the subsisting confederation is so radically defective as not to admit of amendment, let us report its in- sufficiency and wait for enlarged powers. If no confederation at present exists, all the states stand on the footing of equal sovereignty ; and all must concur before any one can be bound.* If a federal compact exists, an equal sovereignty is its basis ; and the dissent of one state renders every proposed amendment null. The confederation is in the nature of a compact ; and can any state, unless by the consent of the whole, either in politics or law, withdraw its powers ? The larger states con- tribute most, but they have more to protect ; a rich state and a poor state are in the same relation as a rich individual and a poor one : tlie liberty of the latter must be preserved. Two branches are not necessary in the supreme council of the states ; the representatives from the several states are checks upon each other. Give congress the same powers that are intended for the two branches, and I apprehend they will act with more energy and wisdom than the latter. Congress is the sun of our political system." || Wilson refuted Paterson by contrasting the two plans.^^ " The congress of the confederacy," he continued, " is a single legislature. Theory and practice both proclaim that in a single house there is danger of a legislative despotism." ^ Cotesworth Pinckney added : " The whole case comes to this : give ISTew Jersey an equal vote, and she will dismiss her scruples and con- cur in the national system." J * Gilpin, 868, 859 ; Elliot, 194. I Paterson MSS. The informants of England name Governor Livingston as author of the system. X Gilpin, 8G9 ; Elliot, 194 ; Yates in Elliot, i., 412, # Gilpin, r69; Elliot, 194. || Paterson MSS. ^ Gilpin, 871 ; Elliot, 195 ; Elliot, i., 414 ; Paterson MSS. Gilpin, 874 ; Elliot, 196. ;f Gilpin, 875 ; Yates in Elliot, i., 415; Elliot, 197; Paterson MSS. 1787. NEW JERSEY CLAIMS EQUAL REPRESENTATION. 235 " When tliQ salvation of the republic is at stake," said Ean- dolpli, "it would be treason to our trust not to propose what we find necessary.^' Tlie insufficiency of tbe federal plan has been fully displayed by trial. The end of a general govern- ment can be attained only by coercion, or by real legislation. Coercion is impracticable, expensive, and cruel, and trains up instruments for tlie service of ambition. We must resort to a national legislation over individuals. To vest such power in the congress of the confederation would be blending the legis- lative with the executive. Elected by the legislatures who re- tain even a power of recall, they are a mere diplomatic body, with no will of their own, and always obsequious to the states who are ever encroaching on the authority of the United States.f A national government, properly constituted, will alone an- swer the purpose ; and this is the only moment v/hen it can bo established." if On the morning of the eighteenth, Dickinson, to conciliate the conflicting parties, induced the convention to proceed through a revision of the articles of the confederation to a government of the United States, adequate to the exigencies, preservation, and prosperity of the union.* Hamilton could no longer remain silent. Embarrassed by the complete antagonism of both his colleagues, he yet insisted that even the New York delegates need not doubt the ample extent of their powers, and under them the right to the free exercise of their judgment. The convention could only pro- pose and recommend ; to ratify or reject remained " in the states." II Feeling that another ineffectual effort " would beget de- spair," he spoke for " a solid plan without regard to temporary opinions." " Our choice," he said, " is to engraft powers on the present confederation, or to form a new government with complete sovereignty." ^ He set forth the vital defects of the confederacy, and that it could not be amended except by in- vesting it with most im.portant powers. To do so would estab- * Gilpin, 876 ; Elliot, 197 ; Paterson MSS. f Gilpin, 876, 877 ; Elliot, 198. t Yates in Elliot, i., 4-17; Gilpin, 877-879 ; Elliot, 198 ; Paterson MSS. * Gilpin, 878 ; Elliot, 198. || Yates in Elliot, i., 418. •^Hamilton's Vy''orks, ii., 410. 236 THE FEDERAL CONVENTION. b. hi. ; ch. ii. lish a general government in one hand without checks ; a sov- ereignty of the worst kind, the sovereignty of a single body. This is a conclusive objection to the Jersey plan.* " I have great doubts," he continued, " whether a national government on the Virginia plan can be effectual. f Gentle- men say we need to be rescued from the democracy. But what are the means proposed ? A democratic assembly is to be checked by a democratic senate, and both these by a democratic chief magistrate. J The Yirginia plan is but pork still with a little change of the sauce.* It will prove inefficient, because the means vail not be equal to the object. || "The general government must not only have a strong Boul, but strong organs by which that soul is to operate.^ I despair that a republican form of government can remove the difficulties ; I would hold it, however, unwise to change it. ^ The best form of government, not attainable by us, but the model to which we should approach as near as possible, J is the British constitution, ^ praised by Xecker as ' the only gov- ernment which unites public strength with individual se- curity.' t Its house of lords is a most noble institution. It forms a permanent barrier against every pernicious innovation, whether attempted on the part of the crown or of the com- mons.** " It seems to be admitted that no good executive can be established upon republican principles.ff The English model is the only good one. The British executive is placed above temptation, and can have no interest distinct from the public welfare. :j::j: The mference from these observations is, that, to obtain stability and permanency, we ought to go to the full length that republican principles will admit.** And the govern- ment will be republican so long as all officers are appointed by *nannlton's Works, ii., 412 ; Yates in Elliot, i., 420, 421. f Yates in Elliot, i., 417. t Hamilton, ii., 415. # Yates in Elliot, i., 423 ; Gilpin, 893, note ; Elliot, 205. I Hamilton, ii., 415. ^ Hamilton, ii., 413. ^ Yates in Elliot, i., 421. % Hamilton, ii., 413. i Yates in Elliot, i., 421 ; Hamilton, ii., 413. ± Gilpin, 886 ; Elliot, 202. *« Gilpin, 8S6, 887 ; Elliot, 203. ff Gilpin, 887 ; Elliot, 203. Xt Yates in Elliot, i., 422. *» Gilpin, 888 ; Elliot, 2C3 ; Yates in Elliot, i., 422. 1787. NEW JERSEY CLAIMS EQUAL REPEESENTATIOK 237 the people, or by a process of election originating with the people." Hamilton then read and commented on his sketch of a con- stitntion for the United States. It planted no one branch of the general government on the states ; but, by methods even more national than that of the Virginia plan, derived them all from the people. The assembly, which was to be the corner-stone of the edi- fice, was to consist of persons elected directly by the people for three years. It was to be checked by a senate elected by elect- ors chosen by the people,* and holding office during good be- havior. The supreme executive, whose term of office was to be good behavior, was to be elected by electors, chosen by elect- ors, chosen by the people.f " It may be said," these were his words, " this constitutes an elective monarchy ; but by making the executive subject to impeachment the term monarchy can not apply." :j: The courts of the United States were so insti- tuted as to place the general government above the state governments in all matters of general concern.* To prevent the states from passing laws contrary to the constitution or laws of the United States, the executive of each state was to be appointed by the general government with a negative on all state legislation. Hamilton spoke, not to refer a proposition to the com- mittee, but only to present his own ideas, and to indicate the amendments v/hich he might offer to the Yirginia plan. He saw evils operating in the states which must soon cure the people of their fondness for democracies, and unshackle them from their prejudices ; so that they would be ready to go as far at least as he had suggested. || But for the moment he held it the duty of the convention to balance inconveniences and dangers, and choose that which seemed to have the fewest objections."^ Hamilton "was praised by everybody, but supported by none." () It was not the good words for the monarchy of I think Hamilton meant the choice of electors to be made by the landholders ; pee his fuller plan, written out by himself and given to Madison near the close of the convention. The senate of New York was so chosen. f Elliot, i., 179. X Yates in Elliot, i., 422. # Ibid., 423. I Gilpin, 890 ; Elliot, 2C4. ^ Hamilton, ii., 415. () Yates in Elliot, i , 431. 238 THE FEDERAL CONVENTION b. hi. ; en. ii. Great Britain that enstranged Lis hearers. Hamilton did not go far beyond the language of Randolph,* or Dickinson,f or Gerry, :j: or Charles Piuckney.* The attachment to monarchy in the United States had not been consumed by vobanic fire ; it had disappeared because there was nothing left in them to keep it alive. The nation imperceptibly and without bitter- ness outgrew its old habits of thought. Gratitude for the revo- lution of 1G88 still threw a halo round the house of lords. But Hamilton, finding a home in the United States only after his mind was near maturity, did not cherish toward the states the feeling of those who were bom and bred on the soil, and had received into their affections the thought and experience of the preceding generation. His speech called forth from many sides the liveliest defence of the rights of the states. On the nineteenth the convention in committee rejected the milder motion of Dickinson ; and, after an exhaustive analysis by Madison || of the defects in the New Jersey plan, they re- ported the amended plan of Yirginia by the vote of the six na- tional states, aided by the vote of Connecticut.^ * Gilpin, 763 ; Elliot, 141. f Gilpin, 118 ; Elliot, 148. X Yates in Elliot, i., 408. * Gilpin, 947 ; ElUot, 234. II Gilpin, 89;i ; Elliot, 206. ^ Gilpin, 904 ; Elliot, 212 ; Yates in Elliot, i., 425. 178T. THE CONNECTICUT COMPPwOMISE. 239 CHAPTER III. THE CONNECTICUT COMPKOIvnSE. Feom 19 June to 2 July 1787. The convention, whicli had sliown itseK so resolute for consolidating the union, next bethought itself of home rule. In reply to what had fallen from Hamilton, Wilson said, on the nineteenth of June : " I am for a national government, but not one that will swallow up the state governments ; these are abso- lutely necessary for purposes which the national government cannot reach." " I did not intend yesterday," exclaimed Hamilton, " a total extinguishment of state governments ; but that a national gov- ernment must have indefinite sovereignty ; for if it were lim- ited at all, the rivalship of the states would gradually subvert it.* The states must retain subordinate jurisdictions." f '* If the states," said King, " retain some portion of their sovereign- ty, they have certainly divested themselves of essential portions of it. If, in some respects, they form a confederacy, in others they form a nation." Martin held that the separation from Great Britain placed the thirteen states in a state of nature toward each other. J This Wilson denied, saying : " In the declaration of independ- ence the united colonies were declared to be free and independ- ent states, independent, not individually, but unitedly." * Connecticut, which was in all sincerity partly federal and partly national, was now compelled to take the lead. As a * Gilpin, 904; Elliot, 212. X Gi'piu, 906, 907; Elliot, 213. f Yctcs in Elliot, i., 426. » Gilpin, 907 ; Elliot, 213. 240 THE FEDERAL C0NVENTI02T. b. hi. ; en. m. state she was tlie most homogeneous and the most fixed in the character of her consociate churches and her complete sys- tem of home government. Her delegation to the convention was thrice remarkable : they had precedence in age ; in experi- ence, from 1776 to 1786 on committees to frame or amend a constitution for the country ; and in illustrating the force of religion in human life. Eoger Sherman was a unique man. "No one in the conven- tion had had so large experience in legislating for the United States. Next to Franklin the oldest man in the convention, like FrankHn he had had no education but in the common school of his birthplace hard by Boston ; and as the one learned the trade of a tallow-chandler, so the other had been appren- ticed to a shoemaker. Left at nineteen an orphan on the father's side, he minis- tered to his mother during her long life ; and having suffered from the want of a liberal education, he provided it for his younger brothers. Hesolved to conquer poverty, at the age of two-and-twenty he wrapped himself in his own manliness, and, bearing with him the tools of his trade, he migrated on foot to New Milford, in Connecticut, where he gained a living by his craft or by trade, until in December 1754, after careful study, he was admitted to the bar. There was in him kind-heartedness and industry, penetra- tion and close reasoning, an unclouded intellect, superiority to passion, intrepid patriotism, solid judgment, and a directness which went straight to its end ; so that the country people among whom he lived, first at New Milford and then at New Haven, gave him every possible sign of their confidence. The church made him its deacon ; Yale college its treasurer ; New Haven its representative, and, when it became a city, its first mayor, re-electing him as long as he lived. For nineteen years he was annually chosen one of the fourteen assistants, or upper house of the legislature ; and for twenty-three years a judge of the court of common pleas, or of the superior court. A plurality of offices being then allowed, Sherman Vv^as sent to the first congress in 1774, and to every other congress to the last hour of his life, except when excluded by the funda- mental law of rotation. In congress he served on most of the 1787. THE CONNECTICUT COMPKOMISE. 2^1 important committees, the board of war, the board of the ma- rine, the board of finance. He signed the declaration of 1774, which some writers regard as the date of our nationality ; was of the committee to write, and was a signer of the declaration of independence ; was of the committee to frame the articles of the confederation, and a signer of that instniment. No one is known to have complained of his filling too many offices, or to have found fault with the manner in which he filled them. In the convention he never made long speeches, but would intuitively seize on the turning-point of a question, and pre- sent it in terse language which showed his own opinion and the strength on which it rested. By the side of Sherman stood William Samuel Johnson, then sixty years of age. He took his first degree at Yale, his second, after a few months' further study, at Harvard ; became a representative in the Connecticut assembly ; was a delegate to the stamp-act congress of 1765, and assisted in writing its address to the king. He became the able and faithful agent of his state in England, where Oxford made him a doctor of civil law. After his return in 1771, he was chosen one of the fourteen assistants, and one of the judges of the superior court. He was sent by Connecticut on a peace mission to Gage at Boston; but from the war for independence he kept aloof. His state, nevertheless, appointed him its leading counsel in its territorial disputes with Pennsylvania. A delegate to the fifth congress and the sixth, he acted in 1786 on a grand committee and its sub-committee for reforming the federal government. He had just been unanimously chosen president of Columbia college. His calm and conservative character made him tardy in coming up to a new position, so that he had even opposed the call of the federal convention.* He was of good-humor, composedness, and candor, and he knew how to conciliate and to convince. The third member of the Connecticut delegation was Oliver Ellsworth, whom we have seen on the committee of 1781 for amending the constitution, and on the committee of 1783 for addressing the states in behaK of further reforms. A native of Connecticut, he ^vas at Yale for two years, and in * Gale to Johnson, 19 Apiil 1787 ; Gilpin, 5S9 ; Elliot, 96. VOL. VI. — 16 242 THE FEDERAL CONVENTION. b. ni. ; en. iii. 1766, after two years more of study, graduated in the college of JSTew Jersey, where Luther Martin was his classmate. Of a robust habit of mind, he was full of energy and by nature hopeful ; devoid of sentimentality and safe against the seduc- tions of feeling or the delusions of imagination, he was always self-possessed. Free from rancor and superior to flattery, he could neither be intimidated nor cajoled. His mind advanced cautiously, but with great moving force. Knowing what he needed, he could not be turned from its pursuit ; obtaining it, he never wrangled for more. He had been the attorney of his own state, a member of its assembly, one of its delegates in con- gress, a colleague of Sherman in its superior court ; and now, at the age of two-and-forty, rich in experience, he becomes one of the chief workmen in framing the federal constitution. By Paterson, in his notes for a 'New Jersey plan, the pro- posed new government was named ^' the federal government of the United States ; " by Dickinson, in his resolution, " the gov- ernment of the United States." In the Virginia plan it was described as "national" nineteen times, and in the report from the convention in committee of the whole to the house, twenty- six times. Ellsworth, who then and ever after did not scruple to use the word " national," moved to substitute in the amended Yirginia plan the phrase of Dickinson as the proper title.* To avoid alarm, the friends to the national plan unhesitatingly accepted the colorless change.f Lansing then moved " that the powers of legislation ought to be vested in the United States in congress." He dwelt again on the want of power in the convention, the probable disapprobation of their constitu- ents, the consequent dissolution of the union, the inability of a general government to pervade the whole continent, the dan- ger of complicating the British model of government with state governments on principles which would gradually destroy the one or the other. "** Mason protested against a renewed agitation of the question between the two plans, and against the objection of a want of ample powers in the convention; with impassioned wisdom, he continued : " On two points the American mind is well settled : an at- * Gilpin, 90S, 909 ; Elliot, 214. f Martin in Elliot, i., 3G2. 1787. THE CONNECTICUT COMPROMISE. 243 tachmeiit to republican government, and an attacliment to more than one branch in the legislature. The general accord of their constitutions in both these circumstances must either have been a miracle, or must have resulted from the genius of the people. Congress is the only single legislature not chosen by the people themselves, and in consequence they have been con- stantly averse to giving it further powers. They never will, they never can, intrust their dearest rights and liberties to one body of men not chosen by them, and yet invested with the sword and the purse ; a conclave, transacting their business in secret and guided in many of their acts by factions and party spirit. It is acknowledged by the author of the l^^ew Jersey plan that it cannot be enforced without military coercion. The most jarring elements of nature, fire and water, are not more incompatible than such a mixture of civil liberty and military execution. " E'ot with standing my solicitude to establish a national gov- ernment, I never will agree to abolish the state governments, or render them absolutely insignificant. They are as necessary as the general government, and I shall be equally careful to preserve them. I am aware of the difiiculty of drawing the line between the two, but hope it is not insurmountable. That the one government will be productive of disputes and jeal- ousies against the other, I believe ; but it wdll produce mutual safety. The convention cannot make a faultless government ; but I will trust posterity to mend its defects." * The day ended in a definitive refusal to take up the propo- sition of Lansing; the six national states standing together against the three federal ones and Connecticut, Maryland being divided. The four southernmost states aimed at no selfish ad- vantages, when in this hour of extreme danger they came to the rescue of the union. Moreover, the people of Maryland were by a large majority on the side of the national states, and the votes of Connecticut and Delaware were given only to pave the way to an equal vote in the senate. Weary of supporting the E'ev/ Jersey plan, Sherman f pleaded for tv/o houses of the national legislature and an equal * Gilpin, 912-915 ; Elliot, 216, 217 ; Yates in Elliot, i., 428, 429. f Gilpin, 918; Elliot, 219. 244 THE FEDERAL CONVENTION. b. iii. ; oh. m. vote of tlie states in one of tliem. On the next morning John- son * took up the theme. Avoiding every appearance of dic- tation, he invited the convention to harmonize the individnaht j of the states as proposed by New Jersey with the general sov- ereignty and jurisdiction of the Virginia plan. He wished it to be well considered, whether the portion of sovereignty which was to remain with the states could be preserved without allow- ing them in the second branch of the national legislature a dis- tinct and equal vote. The six national states, re-enforced by Connecticut, then resolved f that the general legislature should consist of two branches. Upon this decision, which was carried by more than two states to one, the ISTew Jersey plan fell hopelessly to the ground. It was on the twenty-fifth, in the course of these debates, that Wilson said : " "VThen I consider the amazing extent of country, the immense population which is to fill it, the influ- ence which the government we are to form will have, not only on the present generation of our people and their multiplied posterity, but on the whole globe, I am lost in the magnitude of the object. J "We are laying the foundation of a building in which millions are interested, and which is to last for ages.* In laying one stone amiss we may injure the superstructure ; and what will be the consequence if the comer-stone should be loosely placed ? A citizen of America is a citizen of the gen- eral government, and is a citizen of the particular state in which he may reside. 1 The general government is meant for them in the first capacity; the state governments in the second. Both governments are derived from the people, both meant for the people ; both, therefore, ought to be regulated on the same principles.'*' In forming the general government we must forget our local habits and attachments, lay aside our state connections, and act for the general good of the whole. () The general government is not an assemblage of states, but of * Gilpin, 920 ; Elliot, 220 ; Yates in Elliot, i., 431. t Gilpin, 925 ; Elliot, 223 ; i., 184 ; Yates in Elliot, i., 432. i Gilpin, 956 ; Elliot, 289. » Yates in Elliot, i., 446. II Yates in Elliot, i., 445, 446. ^ Gilpin, 956 ; Elliot, 239. ^ Yates in Elliot, i., 446. 1787. THE CONNECTICUT COMPPwOMISE. 245 individuals, for certain political purposes ; it is not meant for the states, but for the individuals composing them ; the indi- viduals, therefore, not the states, ought to be represented in it." * He persisted to the last in demanding that the senate should be elected bj electors chosen by the people. Ellsworth replied : " Whether the member of the senate be appointed by the people or by the legislature, he will be a citizen of the state he is to represent. Every state has its par- ticular views and prejudices, which will find their way into the general council, through whatever channel they may flow, f The state legislatures are more competent to make a judicious choice than the people at large. Without the existence and co-operation of the states, a repubhcan government cannot be supported over so great an extent of country. We know that the people of the states are strongly attached to their own con- stitutions. If you hold up a system of general government, destructive of their constitutional rights, they will oppose it. The only chance we have to support a general government is to graft it on the state governments." :j: That the members of the second branch should be chosen by the individual legislatures, which in the committee had been unanimously accepted, was then affirmed in convention by all the states except Pennsylvania and Virginia, which looked upon this mode of choice as the stepping-stone to an equal representation.* For the term of office of the senators, who, as all agreed, were to go out in classes, Eandolph proposed seven years ; Cotesworth Pinckney, four; Gorham and Wilson, six with biennial rotation. Read desired the tenure of good behavior, but, hardly finding a second, || moved for a term of nine years as the longest which had a chance for support. Madison came to his aid. " The second branch, as a lim- ited number of citizens, respectable for wisdom and virtue, will be watched by and will keep watch over the representa- tives of the people ; it will seasonably interpose between im- petuous counsels ; and will guard the minority who are placed * Gilpin, 957 ; Elliot, 2S9. f Ibid. 1;. Yates in Elliot, i., 44G, 447. * Gilpin, 959; Elliot, 240; Yates in Elliot, i., 447. ji Con:ipare Gilpin, 960, or Elliot, 241, with Yates in Elliot, i., 448. 246 THE FEDERAL CONVENTION. b. hi. ; en. iii. above indigence against the agrarian attempts of the ever- increasing class who labor nnder all the hardships of life, and secretly sigh for a more equal distribution of its blessings. The longer the members of the senate continue in office, the better will these objects be answered. The term of nine years can threaten no real danger." ^ Sherman replied : " The more permanency a government has, the worse, if it be a bad one. I shall be content with six years for the senate : but four will be quite sufficient." f " We are now to decide the fate of republican government," said Hamilton ; " if we do not give to that form due stability, it will be disgraced and lost among ourselves, disgraced and lost to mankind forever. :j: I acknowledge I do not think favor- ably of republican government ; but I address my remarks to those who do, in order to prevail on them to tone their gov- ernment as high as possible. I profess myself as zealous an advocate for liberty as any man whatever ; and trust I shall be as willing a martyr to it, though I differ as to the form in which it is most eligible. Eeal liberty is neither found in despotism nor in the extremes of democracy, but in moderate governments.* Those who mean to form a solid republic ought to proceed to the confines of another government. If we incline too much to democracy, we shall soon shoot into a monarchy." The term of nine years received only the votes of Pennsylvania, Delaware, and Virginia ; and that for six years, with the biennial renewal of one third of its members, was carried by the voice of seven states against four. || On the twenty-seventh, Rutledge brought the convention to consider the rule of suffrage in the two branches of the national legislature. For the rest of the day, and part of the next, Martin vehemently denounced any general government that could reach individuals, and intimated plainly that Clin- ton of New York would surely prevent its adoption in that state. Lansing renewed the proposal to vote by states in the first branch of the legislature. Madison summed up a most * Gilpin, 934 ; Elliot, 242, 242 ; Yates in Elliot, i., 450. f Gilpin, 965 ; Elliot, 243 ; Yates in Elliot, i., 450. i Gilpin, 985, 966 ; Elliot, 244. « Yates in Elliot, i., 450. II Gilpin, 969 ; Elliot, 245 ; i., 451. 1787. THE CONNECTICUT COMPROMISE. 247 elaborate statement bj saying : " Tlie two extremes before lis are, a perfect separation, and a perfect incorporation of the thirteen states. In the first case, thej will be independent nations, subject only to the law of nations ; in the last, they will be mere counties of one entire republic, subject to one common law. In the first, the smaller states will have every- thing to fear from the larger ; in the last, nothing. Their true policy, therefore, hes in promoting that form of government which will most approximate the states to the condition of counties." * Johnson and Sherman and Ellsworth, Paterson and Dickinson, even at the risk of union, opposed King, the most eloquent orator, "VYilson, the most learned civilian, and Madison, the most careful statesman, of the convention. It was in vain for the smaller states to say they intended no injustice, and equally in vain for Madison to plead that the large states, from differing customs, religion, and interests, could never unite in perilous combinations. In the great diver- sity of sentiment, Johnson could not foresee the result of their deliberations ; f and at a later day Martin reported that the convention was " on the verge of dissolution, scarce held to- gether by the strength of a hair." J To restore calm, Franklin, just as the house was about to adjourn, proposed that the convention should be opened every morning by prayer. Having present in his mind his own mar- vellous career from the mocking skepticism of his boyhood, he said : " The longer I live, the more convincing proofs I see that God governs in the affairs of men. I firmly believe that * except the Lord build the house, they labor in vain that build it.' Without his concurring aid, we shall be divided by our little local interests, succeed no better than the builders of Babel, and become a reproach and by-word to future ages. "What is worse, mankind may hereafter, from this unfortunate instance, despair of establishing government by human wis- dom, and leave it to chance and war." * The motion was avoided by adjournment. The concurring aid which Franklin invoked implied a * Gilpin, 982 ; Elliot, 252. f William Samuel Johnson to his son, Philadelphia, 27 June l^ST. i Elliot, i., 358. * Gilpin, 985 ; Elliot, 253, 254. 218 THE FEDEKAL CONVENTIOJ^. b. hi. ; en. m. purification from the dominion of selfish, interests. In the next meeting the members were less absorbed by inferior motives.* The debate was opened by Johnson. " A state," he said, " exists as a political society, and it exists as a district of individual citizens. The aristocratic and other interests, and the interests of the states, must be armed with some power of self-defence. In one branch of the general govern- ment the people ought to be represented; in the other, the states." t Gorham brought together arguments for union alike from the point of view of small and of large states; and his last word was : " A union of the states is necessary to their happiness, and a firm general government is necessary to their union. I will stay here as long as any state will re- main, in order to agree on some plan that can be recommended to the people." J " I do not despair," said Ellsworth ; " I stiU trust that some good plan of government will be devised and adopted." "If this point of representation is once well fixed," said Madison, "we shall come nearer to one another in sentiment.* The necessity will then be discovered of circumscribing more effectually the state governments, and enlarging the bounds of the general government. There is a gradation from the small- est corporation with the most limited powers to the largest empire with the most perfect sovereignty. || The states never possessed the essential rights of sovereignty; these were al- ways vested in congress. Voting as states in congress is no evidence of sovereignty. The state of Maryland voted by counties. Did this make the counties sovereign ? The states, at present, are only great corporations, having the power of making by-laws not contradictory to the general confedera- tion.^ The proposed government will have powers far be- yond those exercised by the British parliament when the states were part of the British empire. " The mixed nature of the government ought to be kept in view ; but the exercise of an equal voice by unequal por- tions of the people is confessedly unjust, and would infuse ^'' Compare Walter Scott in Tho Heart of Midlothian, vol. i., chap. xiv. f Gilpin, 937 ; Elliot, 255. X Gilpin, 989 ; Elliot, 255. # Elliot, i., 4G1. 1! Gilpin, 990 ; Elliot, 25G. ^ Yates in Elliot, i., 4S1. \ 1787. THE CONNECTICUT COMPROMISE. 249 mortality into the constitution whicli we wish to last for- ever. A total sej)aration of the states from each other or partial confederacies would alike be truly deplorable; and those who may be accessory to either can never be forgiven by their country, nor by themselves." * " In all the states," said Hamilton, " the rights of individu- als with regard to suffrage are modified by qualifications of property. In like manner states may modify their right of su&age, the larger exercising a larger, the smaller a smaller share of it. Will the people of Delaware be less free if each citizen has an equal vote with each citizen of Pennsylvania ? The contest is for power, not for liberty. " No government can give us happiness at home which has not the strength to make us respectable abroad. This is the critical moment for forming such a government. As yet we retain the habits of union. We are weak, and sensible of our weakness. Our people are disposed to have a good govern- ment ;t but henceforward the motives will become feebler and the difficulties greater. It is a miracle that we are now here, exercising free deliberation; it would be madness to trust to future miracles.:]: Yv^e must therefore improve the opportunity, and render the present system as perfect as pos- sible. The good sense of the people, and, above all, the ne- cessity of their affairs, will induce them to adopt it." * It was then decided, by the six national states to four, Maryland being divided, that the rule of suffrage in the first branch ought to bear proportion to the population of the several states. A reversal of this decision was never at- tempted. Ellsworth now put forth all his strength as he moved that in the second branch the vote should be taken by states : | "I confess that the effect of this motion is to make the general government partly federal and partly national. I am not sorry that the vote just passed has determined against this rule in the first branch; I hope it will become a ground of com- promise with regard to the second. On this middle ground, " Gilpin, 990, 992 ; Elliot, 256, 257 ; Yates in Elliot, i., 462. f Yates in Elliot, i., 463. X Gilpin, 995 ; Elliot, 259. # Yates in Elliot, i., 464. j| Yates in Elliot, i., 464. 250 THE FEDERAL CONYENTIOK b. iii. ; oh. iii. and on no other, can a compromise take place.* If the great states refuse this plan, we shall be forever separated. " In the hour of common danger we united as equals ; is it just to depart from this principle now, when the danger is over ? f The existing confederation is founded on the equalit}^ of the states in the article of suffrage, :j: and is declared to be perpetual.* Is it meant to pay no regard to this plighted faith ? II "We then associated as free and independent states. To perpetuate that independence, I wish to establish a national legislature, executive, and judiciary ; for under these we shall preserve peace and harmony." ^ Abraham Baldwin, a native of Connecticut, a graduate of Yale college, for four years one of its tutors, a recent emigrant to Georgia, from which state he was now a deputy, stepped forth to the relief of Ellsworth, saying : " The second branch ought to be the representation of property,^ and ought not to be elected as the first." J '' If a minority will have their own will, or separate the union," said Wilson, on the thirtieth, " let it be done. I can- not consent that one fourth shall control the power of three fourths. The Connecticut proposal removes only a part of the objection. We all aim at giving the general government more energy. The state governments are necessary and valu- able. Ko liberty can be obtained without them. On this question of the manner of taking the vote in the second branch depend the essential rights of the general govern- ment and of the people." $ Ellsworth replied : " No salutary measure has been lost for want of a majority of the states to favor it. J If the larger states seek security, they have it fully in the first branch of the general government. Eut are the lesser states equally secure? We are razing the foundation of the building, when we need only repair the roof.** And let it be remem- bered that these remarks are not the result of partial or locSl * Gilpin, 998, 921 ; Elliot, 200. ^ Yates in Elliot, i., 465. f Elliot, i., 464, 465. Gilpin, 998 ; Elliot, 260. i Gilpin, 998 ; Elliot, 200. ^1; Yates in Elliot, i., 465. * Yates in Elliot, i. ,465. i Yates in Elliot, i., 466, 467. II Gilpin, 998 ; Elliot, 260. i Gilpin, 1003 ; Elliot, 263. ** Gilpin, 1003 ; Elliot, 263 ; Yates in Elliot, !., 468. 178T. THE CONNECTICUT COMPEOMISE. 251 views. In importance, tlie state I represent liolds a middle rank." * " If there was real danger to the smaller states," said Madi- son, ^^I would give them defensive v/eapons. But there is none. The great danger to our general government is, that the southern and northern interests of the continent are op- posed to each other, f not from their difference of size, but from climate, and principally from the effects of their having or not having slaves, if Look to the votes in congress ; most of them stand divided by the geography of the country, not by the size of the states.* Defensive power ought to be given, not between the large and small states, but between the north- em and southern. Casting about in my mind for some expe- dient that will answer this purpose, it has occurred that the states should be represented in one branch according to the number of free inhabitants only ; and in the other according to the whole number, counting the slaves as free. The southern scale would have the advantage in one house, and the northern in another." \\ By this willingness to recede from the strict claim to representation in proportion to population for the sake of protecting slavery, Madison stepped from firm ground. The argument of Ellsworth drawn from the faith plighted to the smaller states in the existing federal compact, he answered only by taunts : " The party claiming from others an adhe- rence to a common engagement ought at least to be itself guilt- less of its violation. Of all the states, Connecticut is perhaps least able to urge this plea." ^ Fixing his eyes on "Washington, Ellsworth rejoined : " To you I can with confidence appeal for the great exertions of my state during the w^ar in supplying both men and money. (} The muster rolls will show that she had more troops in the field than even the state of Virginia. J We strained every nerve to raise them ; and we spared neither money nor exer- tions to complete our quotas. This extraordinary exertion has * Gilpin, 1001 ; Elliot, 264. f Yates in Elliot, i., 405, 483. :j: Gilpin, 1006 ; Elliot, 2G1-. * Yates in Elliot, i., 466. The date in Madison is 30 June. II Gilpin, 1006 ; Elliot, 264, 265. a Gilpin, 1005 ; Elliot, 254. Gilpin, 1007 ; Elliot, 265. J Yates in Elliot, i., 469. 252 THE FEDERAL CONYENTIOK b. hi. ; on. iii. greatly impoverished us, and lias accumulated our state debts ; but we defy any gentleman to show that we ever refused a federal requisition. If she has proved delinquent through ina- bility only, it is not more than others have been without the same excuse. It is the ardent wish of the state to strengthen the federal government." ''^ Davie of JN'orth Carolina, breaking the phalanx of national states, preferred the proposition of Ellsworth to the propor- tional representation, Avhich would in time make the senate a multitudinous body.f Connecticut had won the day. Startled by the appearance of defeat, Wilson hastily offered to the smallest states one senator, to the others one for every hundred thousand souls. This expedient Franklin brushed aside, saymg : " On a proportional representation the small states con- tend that their liberties will be in danger ; with an equality of votes, the large states say their money will be in danger. A join- er, when he wants to fit two boards, takes a little from both." J And he suggested for the several states a Hke number of dele- gates to the senate, with proportionate votes on financial sub- jects, equal votes on questions affecting the rights of the states. King inveighed against the " phantom of state sovereign- ty : " " If the adherence to an equality of votes is unalterable, we are cut asunder already. My mind is prepared for every event, rather than to sit down under a government which must be as short-lived as it would be unjust." * Dayton replied : " Assertion for proof and terror for argu- ment, however eloquently spoken, will have no effect. It should have been shown that the evils we have experienced proceeded from the equality of representation." "The plan in its present shape," said Madison, "makes the senate absolutely dependent on the states ; it is, therefore, only another edition of the old confederation, and can never answer. Still I would preserve the state rights as carefully as the trial by jury." \\ * Yates in Elliot, i., 4C9, 4-70. f Gilpin, 1007 ; Elliot 265, 2G6 ; Yates in Elliot, i., 470 ; Paterson MS. t Gilpin, 1009; Elliot, 266; Yates in Elliot, i., 471. *= Gilpin, 1010, 1011 ; Elliot, 266, 267. J! Gilpin, 1012 ; Elliot, 267 ; Yates in ElUot, i., 471. irsr. THE CONNECTICUT COMPROMISE. 253 Bedford scoffed at Georgia, proud of her future greatness ; at South Carolina, puffed up with wealth and negroes ; at the great states, ambitious, dictatorial, and unworthy of trust ; and defied them to dissolve the confederation, for ruin would then stare them in the face.* To a question from King, whether by entering into a na- tional government he would not equally participate in national security, Ellsworth answered : " I confess I should ; but a gen- eral government cannot know my wants, nor relieve my dis- tress. I depend for domestic happiness as much on my state government as a new-bom infant depends upon its mother for nourishment. If this is not an answer, I have no other to give." t On the second of July live states voted with Ellsworth for equal suffrage in the senate ; five of the six national states an- swered, ISTo. All interest then centred upon Georgia, the sixth national state and the last to vote. Baldwin, fearing a disrup- tion of the convention, and convinced of the hopelessness of assembling another under better auspices, dissented from his colleague, and divided the vote of his state. So the motion was lost by a tie ; J but as all believed that New Hampshire and Rhode Island, had they been present, would have voted with Connecticut, the convention moved rapidly toward its inevitable decision. For a moment Charles Pinckney made delay by calling up his scheme for dividing the United States into northern, mid- dle, and southern groups, and apportioning the senators be- tween the three ; * a measure which, with modifications, he re- peatedly brought forward. Cotesworth Pinckney liked better the motion of Franklin, and proposed that a committee of one from each state, taking into consideration both branches of the legislature, should devise and report a compromise. || " Such a committee," said Sher- man, " is necessary to set us right." '^ Gouvemeur Morris, who, after a month's absence, had just returned, spoke abruptly for a senate for life to be appointed * Gilpin, 1012-1014 ; Elliot, 2G8. « Gilpin, lOlY; Elliot, 270. f Yates in Elliot, i., 473, 474. i Ibid. i Gilpin, lOlG ; Elliot, 259, 270. ^ Yates in Elliot, i., 475. 254 THE FEDERAL CONVENTION. b. hi. ; ch. hi. by the executive ; * but the committee was ordered by a great majority ; and the bouse showed its own inclination by select- ing Franklin, Gerry, Ellsworth, Yates, Paters on, even Bedford and Martin, Mason, Davie, Rutledge, and Baldwin. To give them time for their task, and to all the opportunity of cele- brating the anniversary of independence, the convention ad- journed for three days, f * Gilpin, 1019, 1020; Elliot, 271, 272. f Gilpin, 1023, 1024 ; Elliot, 273. 1787. THE ADJUSTMENT OF REPRESENTATION. 255 CHAPTER ly. THE ADJUSTMENT OF EEPEESENTATION. Feom THE Third to the Twenty-Thied of July 1787. On the morning of the third of Jnly the grand committee accepted as a basis for a compromise * the proposal of Frank- lin,f that in the first branch of the first congress there should be one member for every forty thousand inhabitants, counting all the free and three fifths of the rest ; that in the second branch each state should have an equal vote ; and that, in re- turn for this concession to the small states, the first branch should be invested with the sole power of originating taxes and appropriations. The settlement of the rule of representation for new states was considered, but was left to the convention. " The committee have exceeded their powers," ;{: cried Wil- son, when Gerry, on the fifth, delivered the report to the con- vention. Madison encouraged the large states to oppose it steadfastly. Butler denounced the plan as unjust.* Gouver- neur Morris, delighting to startle by his cynicism, condemned alike its form and substance, || adding : " State attachments and state importance have been the bane of the country. "We cannot annihilate the serjDents, but we may perhaps take out their teeth.^ Suppose the larger states agree, the smaller states must come in. Jersey would follow the opinions of New York and Pennsylvania. If persuasion does not unite the small states with the others, the sword will. The strongest party * Yates in Elliot, i., 4Y8. # Gilpin, 1028 ; Elliot, 216. \ Martin in Elliot, i., 358. I| Gilpin, 1028 ; Elliot, 276, X Gilpin, 1025 ; Elliot, 274. ^ Gilpin, 1030; Elliot, 277. 256 THE FEDERAL CONVENTION. b. iii. ; ch. iv. will make the weaker traitors, and hang tliem. The larger states are the most powerful ; they must decide." * Ellsworth enforced the necessity of compromise, and saw none more con- venient or reasonable than that proposed by the committee, f " We are neither the same nation, nor different nations," said Gerry ; " we therefore ought not to pursue the one or the other of these ideas too closely. "Without a compromise a se- cession will take place, and the result no man can foresee." "There must be some accommodation on this point," said Mason, " or we shall make little further progress in the work. It cannot be more inconvenient to any gentleman to remain absent from his private affairs than it is for me ; but I will bury my bones in this city rather than expose my country to the consequences of a dissolution of the convention without any- thing being done." J A throng of questions on representation thrust themselves into the foreground. Gouverneur Morris objected to the rule of numbers alone in the distribution of representatives. " ISTot liberty," said he; "property is the main object of society. The savage state is more favorable to hberty than the civilized, and was only renounced for the sake of property. A range of new states will soon be formed in the West. The rule of rep- resentation ought to be so fixed as to secure to the Atlantic states a prevalence in the national councils." Kutledge re- peated : " Property is certainly the principal object of society. If numbers should be the rule of representation, the Atlantic states will soon be subjected to the western." " If new states," said Mason and Randolph, " make a part of the union, they ought to be subject to no unfavorable discriminations." * On the morning of the sixth, Gouverneur Morris moved to refer the ratio of representation in the popular branch to a committee of five. || Wilson, who still strove to defeat the compromise between the federal and the national states, sec- onded the motion. In the distribution of representatives, Gorham thought the number of inhabitants the true guide. " Property," said King, " is the primary object of society, and, * Paterson MSS. - Gilpin, 1034, 1035 ; Elliot, 278, 219. f Gilpin, 1032; Elliot, 278. | Gilpin, 1036, 1039; Elliot, 280, 231. i Gilpin, 1032, 1033 ; Elliot, 278. 1787. THE ADJUSTMENT OF EEPRESENTATION. 257 in fixing a ratio, ought not to be excluded from tlie estimate." * " Property," said Butler, " is the only just measure of repre- sentation."t To Charles Pinckney the number of inhabitants appeared the true and only practicable rule, J and he acquiesced in counting but three fifths of the slaves. The motion of Morris was carried by 'New England, Pennsylvania, and the four south- ernmost slaveholding states. Gouvemeur Morris, Gorham, Randolph, Rutledge, and King, were chosen the committee. On the seventh the clause allowing each state an equal vote in the senate was retained as part of the report by six states against three, New York being present and voting with the majority, Massachusetts and Georgia being divided. The number and distribution of the members of the first branch of the legislature in the first congress, the rule for every future congress, the balance of legislative power between the South and the I^orth ; between the carrying states which asked for a retaliatory navigation act and the planting states which desired free freight and free trade ; between the origi- nal states and new ones ; the apportionment of representation according to numbers or wealth, or a combination of the two ; the counting of all, or three fifths, or none, of the slaves ; the equal suffrage in the senate — ^became the subjects of motions and counter-motions, postponements and recalls. To unravel the tangled skein it is necessary to trace each subject for itself to its preliminary settlement. On the ninth Gouverneur Morris presented the report of the committee of five. It changed the distribution of repre- sentation in the first congress to the advantage of the South ; for the future, no one opposing except Randolph, it author- ized, but purposely refrained from enjoining, the legislature, from time to time, to regulate the number of representatives of each state by its wealth and the number of its inhabitants. * "The report," said Sherman, "corresponds neither with any rule of numbers, nor any requisition by congress ; " || and on his motion its first paragraph was referred to a committee of one member from each state."^ Gouvemeur Morris sec- •^ Gilpin, 1037; Elliot, 280. « Gilpin, 1051, 1052; Elliot, 287, 2S8. f Gilpin, 1038; Elliot, 281. || Gilpin, 1052; Elliot, 288. X Gilpin, 1039; Elliot, 281. ^Elliot,!., 197. VOL. VI. — 17 258 THE FEDERAL CONVENTION. b. iii. ; en. iv. onded and Eandolpli approved tlie motion.* Paterson could regard negro slaves in no light but as property ; to grant their masters an increase of representation for them he condemned as an indirect encouragement of the slave- trade, f Madison revived his suggestion of a representation of free inhabitants in the popular branch ; of the whole number, including slaves, in the senate; which, as the special guardian of property, would rightly be the protector of property in slaves. :j: " The southern states are the richest," said King, who 3^et should have known that they were not so, or perhaps was thinking only of the exports of the country ^ " they will not league themselves with the northern unless some respect is paid to their superior wealth. The North must not expect to receive from the connection preferential distinctions in commerce without allowing some advantage in return." * The committee of one from each state on the very next morning, the tenth of July, produced their well-considered re- port. The committee of five had fixed the number of repre- sentatives at fifty-six ; or thirty from the l^orth, twenty-six from the South ; and Maryland and Virginia had each given up one member to South Carolina, raising her number to five. || In the confederacy each state might send to congress as many as seven delegates, so that the whole number in congress might be ninety-one. This number was adopted for the new constitution : as there were to be two branches of the legisla- ture, two members for each state were assigned to the branch representing the states, the remainiiig sixty-five were assigned to the popular branch. Thirty-five were parcelled out to the E'orth, to the South thirty. Of the new members for the South, two were allotted to Maryland, one to Virginia, and one to Georgia. In this way Connecticut, l^orth Carolina, and South Carolina, having each -Q.vg votes in the popular branch, retained in the house exactly one thirteenth of all the votes in that body, and so would hold in each branch exactly the same relative power as in the confederacy. The first cen- sus established the justice of this relative distribution between * Gilpin, 105 i; Elliot, 288, 289. + Gilpin, 1055 ; Elliot, 289, 290. f Gilpin, 1055 ; Elliot, 289. # Gilpin, 105G ; Elliot, 290. I Gilpin, 10G2, 1063; Elliot, 293; Elliot, i., 197, 198. 1787. THE ADJUSTMENT OF REPRESENTATION. 259 the JSTorth and the South ; though, within the South, Georgia and South Carohna had each at least one more than its share. The final division was approved by all except South Caro- lina and Georgia ; and these two favored states now opened a resolute but not stormy debate to gain still more legislative strength. To this end Eutledge moved to reduce the absent state of I{ew Hampshire from three to two members, pleading its deficiency in population and its poverty.* King, after demonstrating the rights of JSTew HamjDshire, proceeded : " The difference of interests lies not between the great and small states, but between the southern and eastern. For this reason I have been ready to yield something in the proportion of representatives for the security of the southern. I am not averse to yielding more, but do not see how it can be done. They are brought as near an equality as is possible ; no principle will justify giving them a majority." f Cotes worth Pinckney replied : " If the southern states are to be in such a minority, and the regulation of trade is to be given to the gen- eral government, they will be nothing more than overseers for the northern states. I do not expect the southern states to be raised to a majority of the representatives ; but I A\dsh them to have something like an equality." Randolph, speaking the opinions of Kichard Henry Lee and of Mason as well as his own, announced that he had it in contemplation to require more than a bare majority of votes for laws regulating trade. For reducing 'New Hampshire none voted but South Caro- lina and Georgia. ^ There followed successive motions to give one additional vote to each of the three southernmost states. They were all lost ; Georgia alone obtaining the voice of Vir- ginia. On that day Eobert Yates and John Lansing of ISTew York were on the floor for the last time. The governor of their state had unreservedly declared that no good was to be expected from the deliberations at Philadelphia ; that the con- federation on more full experiment might be found to answer all the purposes of the union.''* The state which had borne itself with unselfish magnanimity through the war of the revo- *Gi]pi:5, 1057; Elliot, 290. 'l Gilpin, 1059; Elliot, 291 ; Elliot, i., 193. I Gilpin, 1057, 1058; Elliot, 290, 291. * Penn. Packet, 2GJuly 1787. 260 THE FEDERAL CONVENTION. b. iii. ; oh. iv. Intion had fallen under tlie sway of factious selfishness. Yield- ing to this influence, Yates and Lansing, renouncing the path to glory and the voice of duty, deserted their post, leaying to the South the power to mould the commercial policy of the union at its will. Hamilton, being left alone, had no vote, and from this day to the end was absent more than half the time, taking very little part in the formation of the constitution. In the convention, from its organization to its dissolution, there was always a majority of at least one on the side of the southern states. After the defection of ISTew York the propor- tion remained six to four till ]S'ew Hampshire arrived. Slavery in the United States was a transient form, not an original element of their colonization, nor its necessary out- growth. In the division between northern and southern states the criterion was, whether a state retained the power and the will by its own inward energy to extricate itseK from slavery. Seven had aboHshed, or were preparing to abolish it. Madison * and others counted the southern states as no more than five ; but Delaware, like all south of it, gave signs of being not equal to the high endeavor of setting all its bondmen free ; and its votes in the convention prove that it was rightly classed by Dayton f with the South. The boundary between the two sections was Mason and Dixon's hne. Pennsylvania, purely popular, without family aristocracies or the ascendency of any one form of religion, first in agriculture and commerce, and not surpassed in ship-building, stood midway between six northern states and six southern ones, the stronghold of an undi- vided, inseparable federal republic. The abolition of slavery in the ITorth, which was aided by the long British occupation of Boston, Ehode Island, and IN'ew York, had not been accomplished without a quickening of con- science on the wrongfulness of hereditary bondage and its incon- sistency with the first principles of American polity. By the act of Pennsylvania of 1780 for the gradual abolition of slavery, persons merely sojourning in the state were permitted to retain their slaves for a term of six months ; delegates in congress from other states, foreign ministers and consuls, as long as they continued in their public characters. The right of * Gilpin, 1104 ; Elliot, 315. t Gilpin, 1058 ; Elliot, 291. 1787. THE ADJUSTME:N^T OF KEPEESENTATIOK 261 the masters of absconding slaves to take them away remained as before. But the recovery of a slave through the interposition of the courts was resisted with zeal by self-appointed agents ; * and the southern master sometimes had no relief but to seize the runaway and bring him back to bondage by force. Abolition and manumission societies were formed in various parts of the Korth. Of one of these Hamilton was the secre- tary, with Jay, Duane, and Robert R. Livingston for associates. Just at this time Frankhn was elected president of the society in Pennsylvania. The newspapers of all parties at the North teemed with essays against slavery. The opposition to it pre- vailed in nearly all religious and pohtical sects, but flamed the brightest among those of extreme democratic tendencies. In 1Y83 deputies from the yearly meeting of the Quakers were admitted to the floor f of congress, and deKvered their address, entreating that body to use its influence for the gen- eral abolition of the slave-trade, and in several later years the meeting renewed the petition. J The Presbyterian synod which met at Philadelphia in the same week as the federal con- vention resolved " to procure eventually the final abolition of slavery in America." * , The Pennsylvam'a AboHtion Society adopted a memorial to the convention to suppress the slave- trade, II though, from motives of prudence, it was not pre- sented. This conspicuous action at the ISTorth on the slave-trade and slavery might have baffled every hope of a consolidated union but for the wide distinction between those states that were least remote from the West Indies and those that lay nearer the ISTorth ; between the states which planted indigo and rice and those which cultivated by slave labor maize and wheat and tobacco ; between Georgia and South Carohna which had ever been well affected to the slave-trade, and the great slave-hold- * Dallas, i., 179, 180 ; ii., 224. f Journals of Congress, iv., 289. I Address presented 8 October 1'783, MS., at State Dept., Vol. of Kemon- strances and Addresses, S39 ; Letter to R. H. Lee, President, 21 January 1785 ; ibid., 347. See the MS. Records of the Friends, 20 October 1786, and October 1789. * Acts and Proceedings of the Synod of Xew York and Philadelphia, a. d. 11S1. I Pcnn. Packet of 14 February 1T38 ; T^dependcRt Gazetteer of 7 Mcrch 1788. 262 THE FEDERAL OONVEXTIOiN'. b. hi. ; ch. iv. ing state to the north of them which had wrestled with England for its abolition. In the three northernmost of the southern states slavery maintained itself, not as an element of prosperity, but as a bale- ful inheritance. The best of the statesmen of Virginia, without regard to other questions which divided them, desired its aboli- tion — alike Washington, Richard Henry Lee, Jefferson, Ran- dolph, Madison, and Grayson. George Mason had written to the legislature of Virginia against it with the most terrible in- vectives and gloomiest forebodings. This comparative serenity of judgment in Virginia was shared, though not completely, by I^orth Carolina, of whose population three parts out of four were free, and whose upland country attracted emigrants by its fertility, salubrity, and beauty. The difference betvfeen the two classes of slave states was understood by themselves, and was a guarantee that questions on slavery would neither inflame nor unite them. Virginia and North Carolina held the balance of power, and knew how to steer clear of a fatal collison. The preliminary distribution of rej^resentatives having been agreed upon, Gouverneur Morris on the ninth desired to leave the control of future changes to the national legislature.* Perceiving peril in confiding so vast a discretion to those who might be tempted to keep to themselves an undue share of legislative power, Randolph, following the precedent of 1781, on the tenth insisted on an absolute constitutional requirement of a census of population and an estimate of wealth, to be taken within one year after the first meeting of the legislature, and ever thereafter periodically ; and that the representation should be arranged accordingly, f Gouverneur Morris, supported by King and others, resisted this " fettering of the legislature," by which a preponderance might be thrown into the western scale. In various debates it was urged by Morris and King and others that the western people would in time outnumber those of the Atlantic states, while they would be less wealthy, less cultivated, less favorable to foreign commerce, and less willing to bide the right moment for acquiring the free navigation of the lower Mississippi; " Gilpin, 1052 ; Elliot, 288. i Gilpin, 1063 ; Elliot, 293. 1787. THE ADJUSTMENT OF EEPEESENTATIOiN". 2(53 that the busy haunts of men are the proper school for states- men; that the members from the back country are always most averse to the best measures ; that, if the western people should get the power into their hands, they would ruin the Atlantic interests ; and therefore that, in every future legisla- ture, the original states should keep the majority in their own hands. "^ To this Mason rephed : " A revision from time to time, according to some permanent and precise standard, is essential to fair representation. According to the present population of America, the northern part of it has a right to preponderate ; and I cannot deny it. But, unless there shall be inserted in the constitution some principle which will do justice to the southern states hereafter, when they shall have three fourths of the people of America within their limits, I can neither vote for the system here nor support it in my state. The western states as they arise must be treated as equals, or they will speedily revolt. The number of inhabitants is a suffi- ciently precise standard of wealth." f " Congress," said Eandolph, " have pledged the public faith to the new states that they shall be admitted on equal terms. They never will, they never ought to accede on any other." :{: Madison demonstrated that no distinctions unfavor- able to the western states were admissible, either in point of justice or policy.* By a vote of seven to three the first legislature under the new constitution was required to provide for a census ; | a periodical census ever after was then accepted without a divi- sion. Its period, first fixed at fifteen years, after repeated de- bates, was reduced to ten.^ Yet an ineradicable dread of the coming powxr of the South-west lurked in ^ew England, especially in Massachu- setts. On the fourteenth, only three days after the subject appeared to have been definitively disposed of, Gerry and King moved that the representatives of new states should never col- * Gilpin, 1063, 1064, 1072 ; Elliot, 294, 298, # Gilpin, 1073 ; Elliot, 299. f Gilpin, 1065, 1066 ; Elliot, 294, 295. I| Gilpin, 1078 ; Elliot, 301. X Gilpin, 1067 ; Elliot, 295. ^ Gilpin, 1086 ; Elliot, 305. 264 THE FEDERAL CONVENTION. b. iii. ; oh. iv. lectivelj exceed in number the representatives from sncli of the old thirteen states as should accede to the new confedera- tion.* The motion came from New England ; and from New England came the reply. " We are providing for our posteri- ty," said Sherman, who had taken the principal part in secur- ing to Connecticut a magnificent reserve of lands in northern Ohio. " Our children and our grandchildren will be as likely to be citizens of new western states as of the old states." f His words were lost upon his own colleagues. The motion was defeated by the narrowest majority, Massachusetts being sus- tained by Connecticut, Delaware, and Maryland, against New Jersey and the four southernmost states, Pennsylvania being divided. X The vote of Maryland and Delaware was but the dying expression of old regrets about the proprietaryship of western lands, from which they had been excluded ; that of Massachusetts sprung from a jealousy which grew stronger with the ever-increasing political power of the South-west. But in spite of renewed murmurs the decision was never re- versed. The final concession on the representation for slaves pro- ceeded from North Carolina. On the eleventh of July, Wil- liamson accepted for the permanent basis the free inhabit- ants and three fifths of all others.* Randolph agreed to the amendment. On the instant Butler and Cotesworth Pinckney demanded that the blacks should be counted equally with the whites. 1 New York, New Hampshire, and Ehode Island not being on the floor, the southern states were left with ample power to settle the question as they pleased. " The motion," said Mason, " is favorable to Virginia, but I think it unjust. As slaves are useful to the community at large, they ought not to be excluded from the estimate for representation ; I cannot, however, vote for them as equals to freemen." ^ On the ques- tion, Delaware alone joined South Carolina and Georgia. Butledge next insisted on proportioning representation pe- riodically according to wealth as well as population. This was * Gilpin, 1095; Elliot, SIO. # Gilpin, 1066 ; Elliot, 295. t Ibid. II Gilpin, 106Y ; Elliot, 296. t Ibid. ^ Gilpin, 1068 ; Elliot, 296. 1787. THE ADJUSTMENT OF EEPRESENTATION. 265 condemned by Mason as indefinite and impracticable, leaving to the legislatm-e a pretext for doing nothing.* Madison saw no substantial objection to fixing numbers for the perpetual standard of representation.f In like manner Sherman, John- son, Wilson, and Gorham looked upon population as the best measure of wealth ; and accepted the propriety of establishing numbers as the rule. King refused to be reconciled to any concession of repre- sentation for slaves. J Gouverneur Morris, always a hater of slavery, closed the debate by saying : " 1 am reduced to the di- lemma of doing injustice to the southern states, or to human nature, and I must do it to the former ; I can never agree to give such encouragement to the slave-trade as would be given by allowing them a representation for their negroes." * On the division, those who insisted on enumerating all the slaves and those who refused to enumerate any of them, as elements of representation, partially coalesced ; and Connecti- cut, Yirginia, and JSTorth Carolina, though aided by Georgia, were outvoted by Massachusetts, New Jersey, Pennsylvania, Delaware, Maryland, and South Carolina. || The aspect of affairs at the adjournment was not so danger- ous as it seemed. Yirginia vath a united delegation had her hand on the helm, while North Carolina kept watch at her side. But Gouverneur Morris brooded over the deep gulf by which the convention seemed to him rent in twain; and rashly undertook to build a bridge over the chasm. To that end he proposed the next morning that taxation should be in proportion to representation.^ His motion was general, ex- tending to every branch of revenue. The convention was taken by surprise. South Carolina scorned to be driven from her object by the menace of increased contributions to the general treasury ; and again demanded a full representation for all blacks. ^ Mason pointed out that the proposal of Gouverneur Morris would so embarrass the legis- '■ Gilpin, lOTl ; Elliot, 297. * Gilpin, lOVS ; Elliot, 301. f Gilpin, 1074 ; Elliot, 299. |1 Ibid. X Gilpin, 1076 ; Elliot, 300. ^ Gilpin, 1079 ; Elliot, 302. Gilpin, 1079, 1030 ; Elliot, 302. 266 THE FEDERAL CONYEN'TIOK b. iii. ; ch. it. lature in raising a revenue tliat tliey would be driven back to requisitions on the states. Appalled at discovering that his motion was a death-blow to the new constitution, Morris lim- ited it to direct taxation, saying : " It would be inapphcable to indirect taxes on exports and imports and consumjption." * Cotesworth Pinckney took fire at the idea of taxing exports. "Wilson came to the partial rescue of Morris ; and the conven- tion, without a dissentient, agreed that " direct taxation ought to be in proportion to representation." f In this short interlude, by the temerity of one man, the United States were precluded from deriving an equitable revenue from real property. Mor- ris soon saw what evil he had wrought, but he vainly strove to retrieve it. The moderating states of the South grew restless. " North Carolina," said Davie, " will never confederate on terms that do not rate their blacks at least as three fifths." J Johnson, holding the negro slave to be a man, and nothing less than a man, could not forego the conclusion " that blacks equally with the whites ought to faU within the computation," and his votes conformed to his scruples. Contrary to the wishes of Grouver- neur Morris and King, Kandolph insisted that the representa- tion allowed for slaves should be imbodied in the constitution, saying : " I lament that such a species of property exists ; but, as it does exist, the holders of it will require this security." * Ellsworth seconded Ilandolj)h, whose motion was tempered in its form by Wilson, so as to avoid the direct mention of slaveiy or slave. " The southern states," said King, " threaten to sepa- rate now in case injury shall be done them. There will be no point of time at which they will not be able to say, ' Do us justice or we wiU separate.' " The final motion to make blacks equal with whites in fixing the ratio of representation received no support but from South Carolina and Georgia ; || and the com- promise, proportioning representation to direct taxation, and both to the number of the free and three fifths of others, was established by the southern states, even Georgia approving, and South Carolina relenting so far as to divide its vote."^ * Gilpin, 1080; Elliot, 302. ^ Gilpin, 1083; Elliot, 304. t Gilpin, 1081 ; Elliot, 302. I Gilpin, 1084-1087 ; Elliot, 304-306. i Gilpin, 1081 ; Elliot, 302, 303. ^ Gilpin, 108G, 1087; Elliot, 306. 1787. THE ADJUSTMENT OF EEPRESENTATION. 2G7 Eandolph, on tlie tliirteenth, seized the opportunity to pro- pose numbers as tlie sole rule of representation. Gouverneur Morris " stated the result of his deep meditation " : " The south- ern gentlemen will not be satisfied unless they see the way open to their gaining a majority in the public councils. The conse- quence of such a transfer of power from the maritime to the interior and landed interest will, I foresee, be an oppression to commerce. In this struggle between the two ends of the union, the middle states ought to join their eastern brethren. If the southern states get the power into their hands and be joined as they will be with the interior country, everything is to be apprehended." By the interior, Morris had specially in his mind the rising- states of Kentucky and Tennessee. Butler replied : " The southern states want security that their negroes may not be taken from them, which some gentlemen within or without doors have a very good mind to do. North Carolina, South Carolina, and Georgia will have relatively many more people than they now have. The people and strength of America are evidently bearing to the South and South-west." * " The majority," said Wilson, " wherever found, ought to govern. The interior country, should it acquire this majority, will avail itseK of its right whether we will or no. If num- bers be not a proper rule, why is not some better rule pointed out ? Congress have never been able to discover a better. No state has suggested any other. Property is not the sole nor the- primary end of government and society ; the improvement of the human mind is the most noble object. With respect to this and other personal rights, numbers are surely the natural and precise measure of representation, and could not vary much from the precise measure of property." f The apportionment of representation according to numbers was adopted without a negative, Delaware alone being divided.:]: The American declaration of independence proclaimed all men free and equal ; the federal convention founded representation on numbers alone. The equality of votes of the states in the senate being re- * Gilpin, 1091-1093 ; Elliot, 308, 809. f Gilpin, 1093, 1094; Elliot, 309. X Gilpin, 1091; Elliot, 309. 268 THE FEDERAL CONVENTION". b. iii. ; en. iv. ported to the conyention on the fourteenth, was resisted bj Wilson, King, and Madison to the last as contrary to justice. On the other hand, Sherman held that the state governments could not be preserved unless they should have a negative in the general government. Caleb Strong, a statesman of consummate prudence, from the valley of the Connecticut, a graduate of Harvard, and a fit representative of the country people of Massachusetts, lucidly reviewed the case, and, from the desire to prevent the dissolu- tion of the union, found himself compelled to vote for the com- promise. Madison replied in an elaborate speech, which closed 'with these words : " Th^ perpetuity which an equahty of votes I in the second branch will give to the preponderance of the northern against the southern scale is a serious consideration. It seems now well understood that the real difference of inter- ests lies, not between the large and small, but between the northern and southern states. The institution of slavery and its consequences form the line of discrimination. Should a proportional representation take place, the northern will still outnumber the other ; but every day will tend toward an equi- librium." * The great poet of the Hellenic race relates how the most famed of its warriors was lured by one of the heavenly powers from the battle-field to chase a phantom. Had the South joined with the smaller states to establish the suffrage by states in both branches of the general legislature, it would, in less than ten years, f have arrived at an equality, alike in the house and in the senate. But it believed that swarms of emigrants were about to throng every path to the South-west, bearing with them affluence and power. It did not yet know the dynamic energy of freedom in producing wealth, and attract- ing and employing and retaining population. The equality of the vote in the senate, which Virginia and South Carolina vehemently resisted, was to gain and preserve for the slave- holding states a balance in one branch of the legislature ; in the other, where representation was apportioned to population, the superiority of the free commonwealths would increase from decade to decade till slavery in the United States should be no * Gilpin, 1104; Elliot, 315. f In 1796, on the admission of Tennessee. 1787. THE ADJUSTMENT OF KEPRESENTATION. 269 more. Shrinking from the final vote on the question, the house adjourned. On Monday, the sixteenth, as soon as the convention assem- bled, the question was taken on the amended report which included an equality of votes in the senate.* The six south- ern states were present, and only four of the northern. Four of the six states which demanded a proportioned representa- tion stubbornly refused to yield. It was of decisive influence on the history of the country that Strong and Gerry, balanc- ing the inflexible King and Gorham, pledged Massachusetts at least to neutrality. On the other side, Connecticut, "New Jersey, Delaware, and Maryland spurned the thought of sur- render. The decision was given by iN'orth Carolina, which broke from her great associates and gave a majority of one to the smaller states. More than ten years before, Jefferson had most earnestly proposed this compromise, seeking to proselyte John Adams, to whom he wrote : " The good whigs will so far cede their opinions for the sake of union." f He heard with great joy that his prophecy had come to pass. ^ The large states accepted the decision as final. When, on the seventeenth, Gouverneur Morris proposed a reconsidera- tion of the resolution of the former day, no one would second his motion.'' On the twenty-third the number of senators for each state was fixed at two, and each of these, as had been proposed by Gerry and supported by Sherman, was personally to have one vote.* From the day when every doubt of the right of the smaller states to an equal vote in the senate was quieted, they — so I received it from the Hps of Madison, and so it appears from the records — exceeded all others in zeal for granting powers to the general government. Ellsworth became one of its strongest pillars. Paterson of New Jersey was for the rest of his life a federalist of federalists. * Gilpin, 1107-1109 ; Elliot, 316, 317. f Works of John Adams, ix., 465-467. t Jefferson, ii., 329. # Gilpin, 1098, 1185, 1186 ; Elliot, 311, 312, 356, 357. 270 THE FEDERAL CONVENTION. B.iii.;cn. y. CHAPTEH Y. THE OUTLINE OF THE CONSTITUTION COMPLETED AND REFERRED. From the 17th to the 2Tth of July 17ST. ( The distribution of powers between the general govern- ^ ^ ment and the states was tlie most delicate and most difficult task 1 before the convention. Startled by the vagueness of language in the Virginia resolve, Sherman on the seventeenth of July proposed the grant of powers " to make laws in all cases which may concern the common interests of the union, but not to in- terfere with the government of the individual states in any matters of internal police which respect the government of such states only, and wherein the general welfare of the United States is not concerned." * Wilson seconded the amendment, as better exj^ressing the general principle. But, on scanning /its probable interpretation by the separate states, the objection y \ prevailed that it would be construed to withhold from the gen- sj ^eral government the authority to levy direct taxes and the I authority to suppress the paper money of the states. / Bedford moved to empower the national legislature " to \ legislate for the general interests of the union, for cases to / < which the states are severally incompetent, or in which the V i harmony of the United States might be interrupted by the exercise of individual legislation." f This Gouverneur Morris gladly seconded ; and, though Kandolph resisted, the curreut ^ ran with such increasing vehemence for union that the amend- ment was adopted at first by six states, and then by every state but South Carolina and Georgia. As to giving power to tlie national legislature " to negative * Gilpin, 1115 ; Elliot, 319, 320. f Gilpin, 1116 ; Elliot, 320. 1787. OUTLINE OF THE CONSTITUTIOISr EEFERRED. 271 laws passed by the several states," Gouvemeiir Morris, opposing'^ it as terrible to the states,'^ looked where Jefferson invited Madison to look^to the judiciary department to set aside a law that ought to be negatived.f Sherman insisted that state laws, contravening the authority of the nnion, :j: were invalid and inoperative from the beginning. Madison put forth all his strength to show that a power of negativing the improper laws of the states is the most mild and certain means of pre- serving the harmony of the system. He was supported by Massachusetts, Virginia, and North Carolina.* From the New Jersey plan it was taken, without one dis- sentient, that the laws and treaties of the United States should be the supreme law of the states, and bind their judiciaries, anything in their laws to the contrary notwithstanding. || That all power not granted to the general government remained with the states was the opinion of every member of the con- vention ; but they held it a work of supererogation to place in the constitution an express recognition of the reservation. Thus in one half of a morning the convention began and ended its distribution of power between the states and the union. The further development of the central government brought to it a wider scope of action and new ascendency over the states. The construction of the executive department was fraught with bewildering difficulties, of which a new set rose up as fast as the old ones were overcome. The convention, though it devoted many days in July to the subject, did but acquiesce for the moment in the Virginia resolve, with which its delib- erations had yet made it thoroughly discontented. Mason and the Pinckneys would have required a qualifi- cation of landed property for the executive, judiciary, and members of the national legislature."^ Gerry approved secur- ing property by property provisions. "If qualifications are proper," said Gouverneur Morris, " I should prefer them in the electors rather than the elected ; " ^ and Madison agreed * Gilpin, lllY ; Elliot, 321. |I Gilpin, 1119 : Elliot, 822. t Gilpin, Ills ; Elliot, 321. ^ Gilpin, 1211, 1213 ; Elliot, 370, 371. ± Gil-ia, lllY, 1118 ; Elliot, 321, 322. () Gilpin, 1211 ; Elliot, 3'70. ^^ GiJnJn, 1118, 1119 ; Elliot, 322. 272 THE FEDERAL COKYENTION. b.iii.;oh.v. with Mm. " I," said Dickinson, " doubt tlie policy of inter- weaving into a republican constitution a veneration for wealth. A veneration for poverty and virtue is the object of republican encoui-agement. 'No man of merit should be subjected to dis- abilities in a republic where merit is understood to form the great title to public trust, honors, and rewards." * The sub- ject came repeatedly before the convention; but it never consented to require a property qualification for any office in the general government. In this way no obstruction to uni- versal suffrage was allowed to conquer a foothold in the con- stitution, but its builders left the enlargement of suffrage to time and future lawgivers. They disturbed no more than was needed for the success of their work. They were not rest- less in zeal for one abstract rule of theoretical equality to be introduced instantly and everywhere. They were like the mariner in mid-ocean, on the rolhng and tossing deck of a ship, who learns how to keep his true course by watching the horizon as well as the sun. In leading a people across the river that divided their old condition from the new, the makers of the new form of government anchored the supporting boats of their bridge up stream. The qualifica- tions of the electors it left to be decided by the states, each for itself. All agreed "that a supreme tribunal should be estab- lished," f and that the national legislature should be empow- ered to create inferior tribunals, j;. By the report of the com- mittee, on the eighteenth, the judges were to be appointed by the senate. Gorham, supported by Gouverneur Morris, pro- posed their appointment " by the executive with the consent of the second branch " ; a mode, he said, which had been ratified by the experience of a hundred and forty years in Massachusetts.* The proposal was gradually gaining favor; but for the moment failed by an equal division. The trial of impeachments of national officers was taken from the supreme court ; and then, in the words of Madison, its jurisdiction was unanimously made to " extend to all cases arising under the national laws, or involving the national peace * Gilpin, 1213-1215; Elliot, 371, 3V2. ^ Gilpin, 113Y; Elliot, 331. f Gilpin, 1130; Elliot, 328. # Gilpin, 1134; Elliot, 330. 1787. OUTLINE OF THE CONSTITUTION KEFERRED. 273 and harmony." * Controversies wliicli began and ended in the several states were not to be removed from the courts of the states. The convention had still to decide how the new consti- tution should be ratified. " By the legislatures of the states," proposed Ellsworth, on the twenty-third, and he was seconded by Paterson. " The legislatures of the states have no power to ratify it," said Mason. " And, if they had, it would be wrong to refer the plan to them, because succeeding legislatures, hav- ing equal authority, could undo the acts of their predecessors, and the national government would stand in each state on the tottering foundation of an act of assembly. Whither, then, must we resort? To the people, with whom all power re- mains that has not been given up in the constitutions derived from them." " One idea," said Randolph, " has pervaded all our pro- ceedings, that opposition, as well from the states as from in- dividuals, will be made to the system to be proposed. Will it not, then, be highly imprudent to furnish any unnecessary pretext by the mode of ratifying it ? The consideration of this subject should be transferred from the legislatures, where local demagogues have their full influence, to a field in which their efforts can be less mischievous. Moreover, some of the states are averse to any change in their constitution, and will not take the requisite steps unless expressly called upon to refer the question to the people." f "The confederation," said Gerry, "is paramount to the state constitutions ; and its last article authorizes alterations only by the unanimous concurrence of the states." " Are all the states," replied his colleague Gorham, "to suffer them- selves to be ruined, if Rhode Island, if 'New York, should persist in opposition to general measures? Provision ought to be made for giving effect to the system, without waiting for the unanimous concurrence of the states." :{: " A new set of ideas," said Ellsworth, " seems to have crept in since the articles of confederation were established. Con- ventions of the people, with power derived expressly from » Gilpin, 113r repeated, except that intercitizenshij) was not extended to the pauper, or the vagabond, or the fugitive from justice, or the slave. And now these free inhabitants of every one of the United States, this collective people, proclaim their common intention, by their own innate life, to institute a general gov- ernment. For the name of the government they chose " The United States of America " ; words which expressed unity in plural- ity and being endeared by usage were preferred to any new description. That there might be no room to question where paramount allegiance would be due, the second article declared : " The ^ government shall consist of supreme legislative, executive, and judicial powers." f To maintain that supremacy, the legislature of the United 7 States was itself authorized to carry into execution all powers vested by this new constitution in the government of the Unit- * Journals of Congress for 5, 17, and 24 June 17V6. f Gilpin, 1226 ; Elliot, 377. J V ^ 294 THE FEDERAL CONVENTION". b. iii. ; ch. vii. ed States, or in any of its departments or offices.* The name congress was adopted to mark the two branches of the legisla- ture, which were now named the house of representatives and the senate ; the house still taking precedence as the first branch. The executive was henceforward known as " the President." r The scheme of erecting a general government on the au- \ thoritj of the state legislatures was discarded ; and the states were enjoined to prescribe for the election of the members of each branch regulations subject to be altered by the legislature of the United States ; but the convention itself, in its last days, unanimously reserved to the states alone the right to establish the places for choosing senators. f To ensure the continuous succession of the government, the legislature was ordered to meet on the first Monday in Decem- ber in every year, % " unless," added the convention, " congress should by law appoint a different day." To complete the independence of congress, provision needed to be made for the supj)ort of its members. The committee of detail left them to be paid for their services by their respective states ; but this mode would impair the self-sustaining charac- ter of the government. Ellsworth, avowing a change of opin- ion, moved that they should be paid out of the Treasury of the United States.* " If the general legislature," said Dickinson, " should be left dependent on the state legislatures, it would be happy for us if we had never met in this room." The mo- tion of Ellsworth was carried by nine states against Massachu- setts and South Carolina. || The compensation which he and Sherman would have fixed at five dollars a day, and the same for every thirty miles of travel, was left '' to be ascertained by law." ^ In the distribution of representatives among the states no change was made ; but to the rule of one member of the house for every forty thousand inhabitants Madison objected that in the coming increase of population it would render the number excessive. " The government," replied Gorham, " will not * Gilpin, 1233 ; Elliot, 379. f Gilpin, 1229, 1279, 1281, 1232, 1548, 1608 ; Elliot, 377, 401, 402, 559. X Gilpin, 1227 ; Elliot, 377. * Gilpin, 931, 1326 ; Elliot, 226, 425. I Gilpin, 1329 ; Elliot, 427. ^ Gilpin, 1330 ; Elliot, 427. 1787. THE POWERS OF OOJirGRESS. 295 last so long as to produce tliis effect. Can it be supposed that this vast country, including the western territory, will one hun- dred and fifty years hence remain one nation ? " '^ The clause was for the time unanimously made to read : " not exceeding one for every forty thousand." As the first qualification for membership of the legislature, it was agreed, and it so remains, that the candidate at the time of his election should be an inhabitant of the state in which he should be chosen. It is not required that a representative should reside in the district which he may be elected to repre- sent. Citizenship was indispensable ; and, before a comer from a foreign country could be elected to the house, he must, accord- ing to the report, have been a citizen of the United States for at least three years ; before eligibility to the senate, for at least four. " I do not choose," s^id^Mason, " to let foreigners and adventurers make laws for us and govern us without that local knowledge which ought to be possessed by the representative." And he moved for seven years instead of three.f To this all the states agreed except Connecticut. From respect to Wilson, who was born and educated in Scotland, the subject was taken up once more. Gerry, on the thirteenth, wished none to be elected but men born in the land. Williamson preferred a residence of nine years to seven. :j: Hamilton proposed to require only citizenship and inhabitancy,* and Madison seconded him. In proof of the advantage of encouraging emigration, Wilson cited Pennsyl- vania, the youngest settlement on the Atlantic except Georgia, yet among the foremost in population and prosperity ; almost all the general ofiicers of her line in the late army and three of her deputies to the convention — Bobert Morris, Fitzsimons, and himself — were not natives. || But Connecticut, Pennsyl- vania, Maryland, and Virginia, which voted with Hamilton and Madison, were overpowered by the seven other states, of which, on this question, New Hampshire, South Carolina, and Georgia were the most stubborn.^ * Gilpin, 1263 ; Elliot, 392. # Gilpin, 1299, 1300 ; Elliot, 411. f Gilpin, 1256, 1257 ; Elliot, 389. || Gilpin, 1300, 1301 ; Elliot, 412. i Gilpin, 1299 ; Elliot, 411. ^ Gilpin, 1301 ; Elliot, 412. 296 THE FEDERAL CONVENTIOX. b. m. ; en. vii. Goiiverneur Morris desired that tlie proviso of seven years should not affect any person then a citizen. On this candid motion 'New Jersey joined the four more liberal states ; but Rutledge, Charles Pinckney, Mason, and Baldwin spoke with inveterate tenacity for the disfranchisement against Gorham, Madison, Morris, and Wilson ; and the motion was lost by five states to six."^ For a senator, citizenship for nine years was required; Connecticut, Pennsylvania, and Maryland alone finding the number of years excessive.f Three days later, power was vested in the legislature of the United States to establish a uni- form rule of naturalization throughout the United States. :j; The committee of detail had evaded the question of a prop- erty qualification for the members of the federal legislature and other branches of the government by referring it to legis- lative discretion. Charles Pinckney, who wished to require for the president a fortune of not less than a hundred thousand dollars, for a judge half as much, and a like proportion for the members of the national legislature, ventured no more than to move generally that a property qualification should be required of them all.* Franklin made answer : " I dislike everything that tends to debase the spirit of the common people. If honesty is often the companion of wealth, and if poverty is exposed to peculiar temptation, the possession of property Increases the desire for more. Some of the greatest rogues I was ever acquainted with were the richest rogues. Kemember, the scripture requires in rulers that they should be men hating covetousness. If this constitution should betray a great par- ( tiality to the rich, it will not only hurt us in the esteem of the \ most liberal and enlightened men in Europe, but discourage ]the common people from removing to this country." || The ^motion was rejected by a general "no." The question was for / a while left open, but the constitution finally escaped without ,■ imposing a property qualification on any person in the public ^ employ. Various efforts were made by Gorham, Mercer, King, and * Gilpin, 1301-1305 ; Elliot, 412-414. # Gilpin, 1283, 1284 ; Elliot, 402, 403. t Gilpin, 1305 ; Elliot, 414. | Gilpin, 1284, 1285 ; Elliot, 403. X Elliot, i., 245. 1787. THE POWERS OF CONGRESS. 297 Gouverneur Morris to follow the precedent of the British par- liament, and constitute a less number than a majority in each house sufficient for a quorum, lest the secession of a few mem- bers should fatally interrupt the course of public business. But, by the exertions of Wilson and Ellsworth, Randolph and Madison, power was all but unanimously given to each branch to compel the attendance of absent members, in such manner and under such penalties as each house might provide. More- over, each house received the power, unknown to the confed- eracy, to expel a member with the concurrence of two thirds of those voting.* What should distinguish the "electors" of the United States from their citizens ? the constituency of the house of representatives of the United States from the people ? The report of the committee ran thus : " The qualifications of the electors shall be the same, from time to time, as those of the electors in the several states of the most numerous branch of their own legislatures." f Gouverneur Morris desired to re- strain the right of suffrage to freeholders ; and he thought it not proper that the quahfications of the national legislature should depend on the will of the states. " The states," said Ellsworth, " are the best judges of the circumstances and tem- per of their own people." :j: " Eight or nine states," remarked Mason, "'have extended the right of suffrage beyond the free- holders. What will the people there say if any should be disfranchised ? " * "' Abridgments of the right of suffrage," declared Butler, "tend to revolution." "The freeholders of the country," replied Dickinson, " are the best guardians of liberty ; and the restriction of the right to them is a necessary defence against the dangerous influence of those multitudes without property and without principle, ^^dth which our coun- try, like all others, will in time abound. As to the unpopu- larity of the innovation, it is chimerical. The great mass of our citizens is composed at this time of freeholders, and will be pleased with it." " Ought not every man who pays a tax," asked Ellsworth, " to vote for the representative who is to levy and dispose of his money ? " 1 " The time," said Gouverneur * Gilpin, 1291 ; Elliot, 407. f Gilpin, 1227 ; Elliot, 377. i Gilpin, 1250; Elliot, 386. ^ Ibid. | Gilpin, 1251 ; Elliot, 386. t % THE FEDERAL CONVENTION. b. iii. ; ch. vn. Morris, "is not distant wlien tliis country will abound with mechanics and manufacturers, who will receive their bread from their employers. Will such men be the secure and faith- ful guardians of hbertj — the impregnable barrier against aris- tocracy? The ignorant and the dependent can be as little trusted with the public interest as children. Mne tenths of the people are at present freeholders, and these will certainly be pleased with the restriction." ^ " The true idea," said Ma- son, " is that every man having evidence of attachment to the society, and permanent common interest with it, ought to share in all its rights and privileges." " In several of the states," said Madison, " a freehold is now the qualification. Yiewing the subject in its merits alone, the freeholders of the country would be the safest depositories of republican liberty. In future times, a great majority of the people will not only be without property in land, but property of any sort. These will either combine under the influence of their common situa- tion, in which case the rights of property and the public lib- erty will not be secure in their hands, or, what is more proba- ble, they will become the tools of opulence and ambition ; in w^hich case there will be equal danger on another side." f Franklin reasoned against the restriction from the nobleness of character that the possession of the electoral franchise in- spires. :J: " The idea of restraining the right of suffrage to the freeholders," said Eutledge, " would create division among the people, and make enemies of all those who should be exclud- ed." * The movement of Morris toward a freehold qualifica- tion gained no vote but that of Delaware ; and the section as reported was imanimously approved. SEach state was therefore left to fix for itself within its own limits its conditions of suffrage ; but where, as in New York and Maryland, a discrimination was made in different elections, the convention applied the most liberal rule adopted in the state to the elections of members of congress, accepting in advance any extensions of the suffrage that in any of the states might grow out of the development of republican insti- tutions. Plad the convention established a freehold or other * Gilpin, 1252 ; Elliot, 886, 387. t Gilpin, 1254 ; Elliot, 388. t Gilpin, 1253 ; Elliot, 38Y. « Gilpin, 1255 ; Elliot, 383. 1787. THE POWERS OF CONGRESS. 299 qualification of its own, it must liave taken upon itself the introduction of this restriction into every one of the states of the union. On the question of representation the only embarrassmentl that remained grew out of that part of the report of the com- mittee of detail which sanctioned the perpetual continuance of the slave-trade. Everywhere, always, by everybody, in stat- utes alike of Virginia and South Carolina, in speeches, in let- ters, slavery in those days was spoken of as an evil. Every- where in the land, the free negro always, the slave from the instant of his emancipation, belonged to the class of citizens, though in Virginia, South Carolina and Georgia, and in Dela- ware, for all except those who before 1787 had already ac- quired the elective franchise,* color barred the way to the ballot-box. The convention did nothing to diminish the rights of black men ; and, to the incapacities under which they labored in any of the states, it was careful to add no new one. Madi- son, in the following February, recommending the constitution for ratification, writes : " It is admitted that, if the laws were to restore the rights which have been taken away, the negroes could no longer be refused an equal share of representation with the other inhabitants." f The convention had agreed to the enumeration of two fifths of the slaves in the representa- tive population ; but a new complication was introduced by the sanction which the committee of detail had lent to the per-J petuity of the slave-trade. King had hoped for some compromise on the subject of the slave-trade and slavery. " I never can agree," said he, in the debate of the eighth, " to let slaves be imported without limitation of time, and be represented in the national legisla- ture." i Gouvemeur Morris then moved that there should be no^ representation but of " free inhabitants." " I never will con- / cur in upholding domestic slavery. It is a nefarious institu- 7 tion. It is the curse of heaven on the states where it prevails. 1 Com]3are the free regions of the middle states, where a rich \ and noble cultivation marks the prosperity and happiness of * I so interpret the Delaware statute of 17S7. f Federalist, No. liv. X Gilpin, 1262; Elliot, 392. 300 THE FEDERAL CONVENTION. b. iii. ; en. vii. the people, with the misery and poverty which overspread tlie barren wastes of Virginia, Maryland, and the other states having slaves. Travel through the whole continent, and you behold the prospect continually varying with the appearance and disappearance of slavery. The moment you leave the eastern states and enter 'New York, the effects of the institu- tion become visible. Passing through the Jerseys and enter- ing Pennsylvania, every criterion of superior improvement witnesses the change; proceed southwardly, and every step you take through the great regions of slaves presents a desert increasing with the increasing proportion of these wretched beings. Upon what principle shall slaves be computed in the representation ? Are they men ? Then make them citizens, and let them vote. Are they property ? Why, then, is no other property included ? The houses in this city are worth more than . all the wretched slaves who cover the rice-swamps of South Carolina. The admission of slaves into the represen- tation, when fairly explained, comes to this : that the inhabit- ant of Georgia and South Carolina who goes to the coast of Africa, and in defiance of the most sacred laws of humanity tears away his fellow-creatures from their dearest connections and damns them to the most cruel bondage, shall have more votes in a government instituted for protection of the rights of mankind than tlie citizen of Pennsylvania or I^ew Jersey, who views with a laudable horror so nefarious a practice. I will add, that domestic slavery is the most prominent feature in the aris- tocratic countenance of the proposed constitution. The vassal- age of the poor has ever been the favorite offspring of aristoc- racy. And what is the proposed compensation to the northern states for a sacrifice of every principle of right, of every im- pulse of humanity ? They are to bind themselves to march their militia for the defence of the southern states against those very slaves of whom they complain. They must supply vessels and seamen, in case of foreign attack. The legislature will have indefinite power to tax them by excises and duties on im- ports, both of which will fall heavier on them than on the southern inhabitants. On the other side, the southern states are not to be restrained from importing fresh supplies of wretched Africans, at once to increase the danger of attack and ( 1787. THE POWEPwS OF COI^GRESS. 301 the difficulty of defence ; nay, they are to be encouraged to it by an assurance of having their votes in the national govern- ment increased in proportion ; and are, at the same time, to have their exports and their slaves exempt from all contribu- tions for the public service. I mil sooner submit myself to a ) tax for paying for all the negroes in the United States than | saddle posterity with such a constitution." "^ Dayton seconded ^> the motion, that his sentiments on the subject might appear, whatever might be the fate of the amendment, f Charles Pinclmey " considered the fisheries and the western frontier as more burdensome to the United States than the slaves." % Wilson thought an agreement to the clause would be no bar to the object of the motion, which itself was premature. I^ew Jersey voted aye, ten states in the negative. So ended the skirmish preliminary to the struggle on the continuance of the slave-trade. Great as was the advance from the articles of the confeder- acy, the new grants, not* less than the old ones, of power to the legislature of the United States to lay taxes, duties, imposts, and excises, and collect them ; to regulate foreign and domes- tic commerce ; alone to coin money and regulate the value of foreign coin ; to fix the standard of weights and measures ; and establish post-offices, were accepted on the sixteenth, with little difference of opinion.* E'o one disputed the necessity of clothing the United States with power " to borrow money." The committee of de- tail added a continuance of the permission " to emit bills on the credit of the United States." | Four years before, Hamil- ton, in his careful enumeration of the defects in the confeder- ation, pronounced that this authority " to emit an unfunded paper as the sign of value ought not to continue a formal part of the constitution, nor ever, hereafter, to be employed ; being, in its nature, pregnant with abuses, and liable to be made the engine of imposition and fraud; holding out temptations equally pernicious to the integrity of government and to the morals of the people." ^ * Gilpin, 1263-1265 ; Elliot, 392, 393. # Gilpin, 1343 ; Elliot, 434. t Gilpin, 1265 ; Elliot, 393. \ Gilpin, 1232 ; Elliot, 378. X Gilpin, 1265, 1266; Elliot, 393-397. ^ Hamilton's Works, ii., 271. 302 THE FEDERAL OONVENTION". b. iii. ; ch. vii. Gouverneiir Morris on the fifteenth recited the history of paper emissions and the perseverance of the legislative assem- Llies in repeating them, though well aware of all their distress- ing efl'ects, and drew the inference that, were the national legis- lature formed and a war to break out, this ruinous expedient, if not guarded against, w^ould be again resorted to.* On the sixteenth he moved to strike out the power to emit bills on the credit of the United States. " If the United States," said he, " have credit, such bills will be unnecessary ; if they have not, they will be unjust and useless." f Butler was urgent for dis- arming the government of such a power, and seconded the motion. :j: It obtained the acquiescence of Madison. Mason of Virginia " had a mortal hatred to paper money, yet, as he could not foresee all emergencies, he was unwilling to tie the hands of the legislature. The late war could not have been carried on had such a prohibition existed." * " The power," said Gorham, ^' as far as it will be necessary or safe, is involved in that of borrowing money." || Mercer of Mary- land was unwilling to deny to the government a discretion on this point ; besides, he held it impolitic to excite the opposition to the constitution of all those who, like himself, were friends to paper money."^ " This," said Ellsworth, " is a favorable moment to shut and bar the door against paper money, which can in no case be necessary. The power may do harm, never good. Give the government credit, and other resources will offer." ^ Eandolph, notwithstanding his antipathy to paper money, could not foresee all the occasions that might arise. J "Paper money," said Wilson, "can never succeed while its mischiefs are remembered ; and, as long as it can be resorted to, it will be a bar to other resources." $ " Rather than give the power," said John Langdon of !N'ew Hampshire, " I would reject the whole plan." J With the full recollection of the need, or seeming need, of paper money in the revolution, with the menace of danger in * Gilpin, 1334; Elliot, 429. ^ Gilpin, 1344, 1345 ; Elliot, 435. f Gilpin, 1343 ; Elliot, 434. Gilpin, 1345 ; Elliot, 435. X Gilpin, 1344 ; Elliot, 434. I Ibid. # Ibid. I Ibid. I Gilpin, 1344 ; Elliot, 435. | Gilpin, 1346 ; Elliot, 435. 1787. THE POWEKS OF CONGRESS. 303 future time of war from its prohibition, authority to issue bills | of credit that should be legal-tender was refused to the general t government by the vote of nine states against New Jersey \ and Maryland. It was Madison who decided the vote of Yir-^ ginia ; and he has left his testimony that " the pretext for a I paper currency, and particularly for making the bills a tender, \y^ either for public or private debts, was cut off." This is the ( interpretation of the clause, made at the time of its adoption I alike by its authors and by its opponents,* accepted by all the \ statesmen of that age, not open to dispute because too clear for j argument, and never disputed so long as any one man who tooku/ part in framing the constitution remained alive. History can not name a man who has gained enduring I honor by causing the issue of paper money. Wherever such ji * For Madison's narrative and opinion, see Gilpin, 1344-1346, and note on 1346 ; Elliot, 434, 435. The accuracy of the historical sketch of Luther Martin, officially addressed, 27 January 1788, to the speaker of the house of delegates of Maryland, has in ninety-six years never been questioned. It may be found in Elliot, i., 369, 370, and is as follows : " By our original Articles of Confederation, the congress have power to borrow money and emit bills of credit on the credit of the United States ; agreeable to which was the report on this system as made by the committee of detail. When we came to this part of the report, a motion was made to strike out the words ' to emit bills of credit.' Against the motion we urged that it would be improper to deprive the congress of that power ; that it would be a novelty unprecedented to establish a government which should not have such authority ; that it was impossible to look forward into futurity so far as to decide that events might not happen that should render the exercise of such a power absolutely necessary ; and that we doubted whether, if a war should take place, it would be possible for this country to defend itself without having recourse to paper credit, in which case there would be a necessity of becoming a prey to our enemies or violating the constitution of our government ; and that, considering the administration of the government would be principally in the hands of the wealthy, there could be little reason to fear an abuse of the power by an unnecessary or injurious exercise of it. But, sir, a ma- jority of the convention, being wise beyond every event, and being willing to risk any political evil rather than admit the idea of a paper emission in any possible case, refused to trust this authority to a government to which they were lavishing the most unlimited powers of taxation, and to the mercy of which they were will- ing blindly to trust the liberty and property of the citizens of every state in the union ; and they erased that clause from the system." With regard to the paper money issued during the late civil war, congress healed the difficulty by obtaining, in the fourteenth amendment, from the whole country what may be regarded as an act of indemnity ; and, while the country made itself responsible for the debt which was contracted, the amendment pre served the original clause of the constitution in its full integrity and vigor. 304 THE FEDERAL CONVENTION. b. hi. ; en. vii. ' [ paper lias been employed, it has in every case thrown upon its authors the burden of exculpation under the plea of pressing necessity. ^ /* Paper money has no hold, and from its very nature can ac- I quire no hold, on the conscience or affections of the people. I It impairs all certainty of possession, and taxes none so heavily \ as the class who earn their scant possession by daily labor. It I injures the husbandman by a twofold diminution of the ex- changeable value of his harvest. It is the favorite of those / who seek gain without willingness to toil ; it is the deadly foe / of industry. 'No powerful political party ever permanently / rested for support on the theory that it is wise and right. No \ , statesman has been thought well of by his kind in* a succeeding generation for having been its promoter.* In the plan of government, concerted between the members from Connecticut, especially Sherman and Ellsworth, there was this further article : " That the legislatures of the individual states ought not to possess a right to emit bills of credit for a currency, or to make any tender laws for the payment or dis- charge of debts or contracts in any manner different from the agreement of the parties, or in any manner to obstruct or im- pede the recovery of debts, whereby the interests of foreigners or the citizens of any other state may be affected."f The committee of detail had reported : " No state, without the consent of the legislature of the United States, shall emit bills of credit. With a nobler and safer trust in the power of truth and right over opinion, Sherman on the twenty-eighth, scorning compromise, cried out : " This is the favorable crisis for crushing paper money," and, joining "Wilson, they two pro- posed to make the prohibition absolute. Gorham feared that * This paragraph is a very feeble abstract of the avowed convictions of the great statesmen and jurists who made the constitution. Their words are homely and direct condemnation ; and they come not from one party. Eichard Henry Lee is as strong in his denunciation as Washington, Sherman, or Eobert R. Living- ston. William Paterson of New Jersey wrote in 1786 as follows : " An increase of paper money, especially if it be a tender, will destroy what little credit is left ; will bewilder conscience in the mazes of dishonest speculations ; will allure some and constrain others into the perpetration of knavish tricks ; will turn vice into a legal virtue ; and sanctify iniquity by law," etc. — From the holograph of William Paterson. f Sherman's Life, in Biography of the Signers, ii., 43, 1787. THE POWERS OF CONGRESS. 305 the absolute prohibition would rouse the most desperate oppo- sition ; but four northern states and four southern states, Mary- land being divided, New Jersey absent, and Virginia alone in the negative, placed in the constitution these unequivocal words : " 1^0 state shall emit bills of credit." The second part of the' clause, " JSTo state shall make anything but gold and silver coin a tender in payment of debts," was accepted without a dissen- tient state. So the adoption of the constitution is to be the end forever of paper money, whetlier issued by the several states or by the United states, if the constitution shall be rightly in- terpreted and honestly obeyed. It was ever the wish of Sherman and Ellsworth to prohibit " the discharge of debts or contracts in any manner different from the agreement of the parties." Among the aggressions made by the states on the rights of other states, Madison, in his enumeration,* names the enforced payment of debts in paper money, the enforced discharge of debts by the convey- ance of land or other property, the instalment of debts, and the " occlusion " of courts. For the last two of these wrongs no remedy was as yet provided. King moved to add, as in the ordinance of congress for the establishment of new states, " a prohibition on the states to in- terfere in private contracts." f " This would be going too far," interposed Gouverneur Morris. " There are a thousand laws relating to bringing actions, limitations of actions, and the like, which affect contracts. The judicial power of the United States will be a protection in cases within their juris- diction ; mthin the state itself a majority must rule, whatever may be the mischief done among themselves." :[:. " Why, then, prohibit bills of credit?" inquired Sherman. "Wilson was in favor of King's motion. Madison admitted that inconveni- ences might arise from such a prohibition, but thought on the whole its utility would overbalance them. He conceived, how- ever, that a negative on the state laws could alone secure the end. Evasions might and would be devised by the ingenuity of legislatures.* His colleague Mason replied : " The mo- tion " of King " is carrying the restraint too far. Cases will * Madison, i., 321. t Ibid, f Gilpin, 1443 ; Elliot, 485. * Ibid. VOL. TI. — 20 306 THE FEDERAL CONVENTION. b.iii.; ch.vii. happen tliat cannot be foreseen, where some kind of interfer- ence will be proper and essential." He mentioned the case of limiting the period for bringing actions on open account, that of bonds after a lapse of time, asking whether it was proper to tie the hands of the states from making provision in such cases.* "The answer to these objections is," Wilson explained, " that retrospective interferences only are to be prohibited." " Is not that already done," asked Madison, " by the prohibi- tion of ex jpost facto laws, which will oblige the judges to de- clare such interferences null and void ? " f But the prohibi. tion which, on the motion of Gerry and McHenry, had been adopted six days before, was a limitation on the powers of con- gress. Instead of King's motion, Rutledge advised to extend that limitation to the individual states ; % and accordingly they, too, were now forbidden to pass bills of attainder or exjpost facto laws by the vote of seven states against Connecticut, Maryland, and Yirginia, Massachusetts being absent. So the motion of King, which had received hearty support only from Wilson, was set aside by a very great majority. The next morning " Dickinson mentioned to the house that, on exaraning Blackstone's Commentaries, he found that the term ecu jpost facto related to criminal cases only ; that the words would consequently not restrain the states from retro- spective laws in civil cases ; and that some further provision for this purpose would be requisite." * Of this remark the convention at the moment took no note ; and the clause of Rutledge was left in the draft then making of the constitution, as the provision against the " stay laws and occlusion of courts " so much warned against by Madison, "the payment or dis- charge of debts or contracts in any manner different from the agreement of the parties," as demanded by Sherman and Ells- worth. 1 * Gilpin, 1443 ; Elliot, 485. \ Gilpin, 1399, 1444 ; Elliot, 462, 485. % Ex post facto, not retrospective, was the form used by Rutledge. Correct Gilpin, 1444, by the Journal of the Convention, in Elliot, i., 271, and compare Elliot, i., 257. » Gilpin, 1450 ; Elliot, 488. II That no other motion in form or substance was adopted by the convention till after the draft went into the hands of the committee of style and revision, ap- pears from a most careful comparison of the printed journal of the convention, of 1787. THE POWERS OF CONGRESS. 307 Among the prohibitions on the states which the committee of detail reported on the twenty-eighth, was that of laying du- ties on imports. "Particular states," observed Mason, "may wish to encom-age by impost duties certain manufactures for which they enjoy natural advantages, as Virginia the manufac- ture of hemp, etc." * Madison rephed : " The encouragement of manufactures in that mode requires duties, not only on im- ports directly from foreign countries, but from the other states in the union, which would revive all the mischiefs experienced from the want of a general government over commerce." f King proposed to extend the prohibition not to imports only, but also to exports, so as to prohibit the states from taxing either. Sherman added, that, even with the consent of the United States, the several states should not levy taxes on im- portations except for the use of the United States. This move- ment Gouverneur Morris supported as a regulation necessary to prevent the Atlantic states from endeavoring to tax the western states and promote their separate interest by opposing the navigation of the Mississippi, which would drive the west- ern people into the arms of Great Britain. George Clymer of Pennsylvania " thought the encouragement of the western country was suicide on the part of the old states. If the states have such different interests that they cannot be left to regu- late their own manufactures, without encountering the interests of other states, it is a proof that they are not fit to compose one nation." X King did not wish to " interfere too much with the policy of states respecting their manufactures," holding that such a policy of protection in a separate state might be necessary. " Pevenue," he reminded the house, " was the ob- ject of the general legislature." * By a large majority the pro- hibition on the several states of taxing imports was made de- pendent on the consent of the legislature of the United States ; its Journal as preserved in manuscript, of every scrap of paper containing any mo- tion or sketch of a motion preserved among the records of the convention in the state department, of the debates of the convention as reported by Madison, and of the several copies of the broadside which were used for the entry of amendments by Washington, by Madison, by Brearley, by Gilman, by Johnson, and another, which seems to be that of the secretary, Jackson. * Gilpin, 14-i5 ; Elliot, 486. X Gilpin, U46, 14-17 ; Elliot, 487. f Ibid. * Gilpin, 1447 ; Elliot, 478. 308 THE FEDERAL CONYENTIOIT. b. m. ; ch. vii. and with tliis limitation it was carried witliout a dissentient vote. The extending of the prohibition to exports obtained a majority of but one. That taxes on imports or exports by the states, even with the consent of the United States, should be exclusively for the use of the United States, gained every state but Massachusetts and Maryland. The power to protect do- mestic manufactures by imposts was taken away from the states, and, so far as it is incident to tlie raising of revenue, was confined to the United States. The country had been filled with schemes for a division of the thirteen states into two or more separate groups ; the con- vention, following its committee of detail, would suffer no state to enter into any confederation, or even into a treaty or alliance with any confederation. The restriction was absolute. To make it still more clear and peremptory, it was repeated and enlarged in another article, which declared not only that ^' no state shall enter into any agreement or compact with any foreign power," but that " no state shall enter into any agree- ment or compact with any other state." ^' Each state was con- fined in its government strictly to its own duties within itself. As to slavery, it was by a unanimous consent treated as a sectional interest; freedom existed in all the states; slavery was a relation established within a state by its own law. Un- der the sovereignty of the king of G-reat Britain the laws of a colony did not on British soil prevail over the imperial law. In like manner in America, a slave in one American colony, finding himself on the soil of another, was subject only to the laws of the colony in which he might be found. It remained so on the declaration of independence ; not as an innovation, but as the continuance of an established fact. The articles of confederation took no note of slavery, except by withholding the privileges of intercitizenship from the slave. The enu- meration of slaves was in the distribution of political power a matter of indifference so long as congress voted by states and proportioned its requisitions of revenue to wealth alone. In framing a constitution in which representation in one branch of the legislature was made to depend on population, it became the political interest of the states in which slaves * Article xiii. Gilpin, 1239, 1447; Elliot, 381, 48'7. 1787. THE POWERS OF CONGRESS. 309 abounded to have tliem included in tlie enumeration of the population equally with the free negroes and the whites. They so far succeeded that the slave inhabitants were held to be a part of the grand aggregate of the people of the United States, and as such were entitled to bring a proportional increase of representation to the state in which they abode. For this pur- pose of representation the slaves were by a compromise allowed to be counted, but only as three out of five ; should the master see fit to liberate the slave, he became at once a free inhabitant and a citizen with the right of intercitizenship, and of being counted equally in the representative population. Intercitizenship was the life-blood of the union. The re- port of the committee of detail, changing only the words " free inhabitants " for " citizens," followed the articles of confedera- tion in declaring that " the citizens of each state shall be en- titled to all privileges and immunities of citizens in the several states." * The slave remained a slave, but only in states whose local laws permitted it. After three weeks' reflection, Cotesworth Pinckney, on the twenty-eighth of August, avowed himself not satisfied with the article ; he wished that " some provision should be included in favor of property in slaves." The article was nevertheless adopted, but not unanimously ; South Carolina voted against it, and Georgia was divided, showing that discontent with the want of the protection to slavery was seated in their breasts, even so far as to impugn the great principle which was a necessary condition of union.f The convention proceeded with its work, and proposed that any person who should flee from justice should be delivered up on the demand of the executive of the state from which he fled. Butler and Charles Pinckney moved, as an amendment, to require fugitive slaves to be delivered up like criminals. " This," answered Wilson, " would oblige the executive of the state to do it at the public expense." " The public," said Sherman, " can with no more propriety seize and surrender a slave or servant than a horse." Butler withdrew his motion and the article as proposed was unanimously adopted. :j: * Gilpin, 1240; ElUot, 881. f Gilpin, 1447; Elliot, 487. X Gilpin, 1447, 1448; Elliot, 487. 310 THE FEDERAL CONVENTION. b. iii. ; ch. yii. The convention was not unprepared to adopt a fugitive slave law, for such a clause formed a part of the ordinance of 1787, adopted in the preceding July for the government of the north-western territory. On the twenty-ninth, Butler, after the opportunity of reflection and consultation, offered a pro- posal : " That the fugitive slaves escaping into another state shall be delivered up to the person justly claiming their ser- vice or labor." This for the moment was agreed to without dissent.* The trouble and expense of making the claim fell on the slave-holder ; the language of the article did not clearly point out by whom the runaway slave was to be delivered up. * Gilpin, 1456; Elliot, 492. Compare Gilpin, 1558; Elliot, 564. 1787. THE POWEKS OF CONGRESS. 311 CHAPTER YIII. the constitution in detail. the powees of congkess, continued. From the Middle to the End of August 1787. On the eighteenth of August, Entledge insisted that it was necessary and expedient for the United States to assume " all the state debts." A committee of eleven, to whom the subject was referred, on the twenty-first reported a grant of power to the United States to assume " the debts of the several states incurred during the late war for the common defence and gen- eral welfare." But the states which had done the most toward discharging their obligations were unwilling to share equally the burdens of those which had done the least ; and the con- vention, adopting on the twenty-fifth the language of Ran- dolph, afiirmed no more than that the engagements of the confederation should be equally valid against the United States under this constitution.* The convention, on the seventeenth, agreed with its com- mittee in giving jurisdiction to the United States over the crime of counterfeiting their coins and over crimes committed on tlie high seas, or against the law of nations. f The report of the committee of detail gave power to con- gress " to subdue a rebellion in any state on the apphcation of its legislature." Martin, on the seventeenth, approved the limitation to which Charles Pinckney, Gouverneur Morris, and Langdon objected. Ellsworth moved to dispense with the ap- plication of the legislature of the rebellious state when that body could not meet. " Gerry was against letting loose the * Gilpin, 1426 ; Elliot, 476. f Gilpin, 1349 ; Elliot, 437. 312 THE FEDERAL CONVENTIOT^. b. hi. ; ch. viii. myrmidons of the United States on a state without its own consent. The states will be the best judges in such cases. More blood wonld have been spilt in Massachusetts in the late insurrection if the general authority had intermeddled." The motion of Ellsworth was adopted ; but it weighed down the measure itseK, which obtained only four votes against four.* Z' "We come to a regulation where the spirit of repubhcanism ( exercised its humanest influence. The world had been re- 'V j tarded in civilization, unpoverished and laid waste by wars of / the personal ambition of its kings. The committee of detail 4^ y and the convention, in the interest of peace, intrusted the ' power to declare war, not to the executive, but to the deliber- i ate decision of the two branches of the legislature,! each of them having a negative on the other; and the executive re- '- taining his negative on them both. On the eighteenth Madison offered a series of propositions, granting powers to dispose of the lands of the United States ; to institute temporary governments for new states ; to regulate affairs with the Indians ; to exercise exclusively legislative au- thority at the seat of general government ; to grant charters of incorporation where the public good might require them and the authority of a single state might be incompetent ; to secure to authors their copyrights for a limited time; to establish a university ; to encourage discoveries and the advancement of useful knowledge. J In that and the next sitting Charles Pinckney proposed, among other cessions, to grant immunities for the promotion of agriculture, commerce, trades, and manu- factures. They were all unanimously referred to the commit- tee of detail. Gerry would have an army of two or three thousand * at the most ; a number in proportion to population greater than the present army of the United States. The power to raise and support armies was, however, accepted unanimously, with no " fetter on " it, except the suggestion then made by Mason and soon formally adopted, that "no appropriation for that use should be for a longer term than two years." * Gilpin, 1350, 1351 ; Elliot, 437, 438. # Gilpin, 1360 ; Elliot, 443. \ Gilpin, 1351 ; Elliot, 488. Elliot, i., 247. i Gilpin, 1353, 1354, 1355; Elliot, 439, 440. 1787. THE POWERS OF CONGRESS. 313 The idea of a navy was welcome to the country. Jefferson thought a small one a necessity.* The convention accepted unanimously the clause giving power "to build and equip fleets ; " or, as the power was more fitly defined, " to provide and maintain a navy." f The report gave to the general government only power to call forth the aid of the militia. J Mason moved to grant the further power of its regulation and discipKne, for "thirteen states would never concur in any one system " ; * but he re- served " to the states the appointment of the officers." In the opinion of Ellsworth, the motion went too far. " The militia should be under rules established by the general government when in actual service of the United States. The whole au- thority over it ought by no means to be taken from the states. Their consequence would pine away to nothing after such a sacrifice of power. The general authority could not suffi- ciently pervade the union for the purpose, nor accommodate itseK to the local genius of the people." Sherman supported him. " My opinion is," said Dickinson, " that the states never ought to give up all authority over the militia, and never will." 1 Swayed by Dickinson, Mason modified his original motion, which Cotesworth Pinckney instantly renewed. A grand committee of eleven, to which this among other subjects was referred, on the twenty-first reported''^ that the legislature should have power " to make laws for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States." Ellsworth and Sherman, on the twenty-third, accepted the lat- ter part of the clause, but resisted the former. " The disci- pline of the militia," answered Madison, "is evidently a na- tional concern, and ought to be provided for in the national constitution." And the clause was adopted by nine states against Connecticut and Maryland. {) * Notes on Virginia, end of the answer to query 22 ; Jefferson, i., 592, 606 ; ii., 211, 218; Madison, i., 196. » Gilpin, 1355 ; Elliot, 440. f Gilpin, 1360; Elliot, 443. || Gilpin, 1361, 1362; Elliot, 443, 444. i Gilpin, 1233 ; Elliot, 379. ^ Gilpin, 1378 ; Elliot, 451. Gilpin, 1406, 1407 ; Elliot, 466. 314 THE FEDERAL CONVENTION b. hi. ; ch. viii. Madison always wished to reserve to the United States the appointment of general officers in the militia. This Sherman pronounced absolutely inadmissible. "As the states are not to be abolished," said Gerry, "I w^onder at the attempts to give powers inconsistent with their existence. A civil war may be produced by the conflict between people who will sup- port a plan of vigorous government at every risk and others of a more democratic cast." " The greatest danger," said Madi- son, " is disunion of the states ; it is necessary to guard against it by sufficient powers to the common government ; the great- est danger to liberty is from large standing armies ; it is best to prevent them by an effectual provision for a good militia." Madison gained for his motion only N'ew Hampshire, South Carolina, and Georgia. The appointment of officers by the states was then agreed to ; and the states were to train tlie mi- litia, but according to the discipline prescribed by the United States.* The power " to make all laws necessary and proper for car- rying into execution the powers vested by this constitution in the government of the United States, or in any department or office thereof," was so clearly necessary that, without cavil or remark, it was unanimously agreed to.f The definition of treason against the United States, though made in language like that of the English law, took notice of the federal character of the American government by defining it as levying war against the United States or any one of them ; thus reserving to the United States the power to punish treason, whether by war against the United States or by war against a state. Johnson was of opinion that there could be no treason against a particular state even under the confederation, much less under the proposed system. Mason answered: " The United States will have a qualified sovereignty only ; the individual states will retain a part of the sovereignty." "A rebellion in a state," said Johnson, "would amount to treason against the supreme sovereign, the United States." " Treason against a state," said King, " must be treason against the United States." Sherman difl:ered from him, saying: " Kesistance against the laws of the United States is distin- * Gilpin, 1407, 1408 ; Elliot, 466, 467. f Gilpin, 1370; Elliot, 447. 1787. THE POWERS OF CONGRESS. 315 guished from resistance against the laws of a particular state." Ellsworth added : " The United States are sovereign on one side of the line dividing the jurisdictions, the states on the other. Each ought to have power to defend their respective sovereignties." ^ " War or insurrection against a member of the union," said Dickinson, "must be so against the whole body." The clause as amended, evading the question, spoke only of treason by levying war against the United States or adhering to their enemies, giving them aid or comfort. No note was taken of the falsification of election returns, or the dangers peculiar to elective governments. Martin relates that he wished an amendment excepting citizens of any state from the penalty of treason, when they acted expressly in obedience to the authority of their own state ; but seeing that a motion to that effect would meet with no favor, he at the time shut up the thought within his own breast.f The members of the convention long held in " recollection the pain and difficulty which the subject of slavery caused in that body," and which " had well-nigh led southern states to break it up without coming to any determination." ^ The members from South Carolina and Georgia were moved by the extreme desire of preserving the union and obtaining an effi- cient government ; but as their constituents could not be rec- onciled to the immediate prohibition of the slave-trade by the act of the United States, they demanded that their states should retain on that subject the liberty of choice which all then possessed under the confederation. Unwilling to break the imion into fragments, the committee of detail proposed limitations of the power of congress to regulate commerce. No tax might be laid on exports, nor on the importation of slaves. As to the slave-trade, each state was to remain, as under the articles of confederation, free to import such persons as it "should think proper to admit." The states might, one by * Gilpin, 1375; Elliot, 450. f Elliot, i., 382, 383. I think Martin did not make the motion, as it is found neither in the journal nor in Madison. His narrative is, perhaps, equivocal. His words are: "I wished to have obtained"; and again: "But this provision was not adopted." Here is no assertion that he made the motion. :J: Baldwin's Speech in the House, 12 February 1*790. 316 THE FEDERAL CONVENTIO>T. b. iii. ; on. viii. one, eatih for itself, prohibit the slave-trade ; not the United States by a general law. This decision was coupled with no demand of privileges for the shipping interest. Ellsworth, in the committee, had consented, unconditionally, that no naA^iga- tion act should be passed without the assent of two thirds of the members present in each house. On the twenty-first the prohibition to tax exports was car- ried by Massachusetts and Connecticut with the five most southern states. Thus absolute free trade as to exports became a part of the fundamental law of the United States. The vote of Virginia was due to Mason, Eandolph, and Blair ; "Washing- ton and Madison were always unwilling to seem to favor a local interest, especially a southern one, and were ready to trust the subject to the general government.* fFrom Maryland came a voice against the slave-trade. For three reasons Martin proposed to prohibit or to tax the impor- tation of slaves : " The importation of slaves affects the ap- portionment of representation, weakens one part of the union which the other parts are bound to protect, and dishonors the principles of the revolution and the American character." Kutledge answered : " Religion and humanity have nothing to do with this question ; interest alone is the governing prin- ciple with nations. The true question at present is, whether the southern states shall or shall not be parties to the union ? If the northern states consult their interest they w^ill not oppose the increase of slaves, which -^dll increase the commodities, of w^hich they will become the carriers." Ellsworth, speaking consistently with the respect which he had always shown for the rights of the states, answered : " I am for leaving the clause as it stands. Let every state import what it pleases. The morality or wisdom of slavery are considerations belonging to the states themselves. The old confederation did not meddle with this point ; and I do not see any greater necessity for bringing it within the policy of the new one." " South Caro- lina," said Charles Pinckney, " can never receive the plan if it . prohibits the slave-trade." The debate was continued through the next day. Sherman was perplexed between his belief in the inherent right of man * Gilpin, 1388; Elliot, 456. 1787. THE POWERS OF C0:N"GRESS. 317 to freedom and the tenet of the right of each state to settle for itself its internal affairs, and said : " I disapprove of the slave-trade ; yet, as the states are now possessed of the right to import slaves, and as it is expedient to have as few objec- tions as possible to the proposed scheme of government, I think it best to leave the matter as we find it." Mason, compressing the observation of a long life into a few bm-ning words, replied : " This infernal trafiic originated in the avarice of British merchants ; the British government constantly checked the attempts of Yirginia to put a stop to it. The present question concerns not the importing states alone, but the whole union. Maryland and Yirginia have al- ready prohibited tlie importation of slaves expressly; North Carohna has done the same in substance. All this would be in vain if South Carolina and Georgia be at liberty to import them. The western people are already calling out for slaves for their new lands, and will fill that country with slaves if they can be got through South Carolina and Georgia. Slavery discourages arts and manufactures. The poor despise labor when performed by slaves. They prevent the emigration of whites, who really enrich and strengthen a country. They produce the most pernicious effect on manners. Every master of slaves is born a petty tyrant. They bring the judgment of heaven on a country. As nations cannot be rewarded or pun- ished in the next world, they must be in this. By an inevi- table chain of causes and effects, Providence punishes national sins by national calamities. I lament that some of our eastern brethren have, from a lust of gain, embarked in this nefarious traffic. As to the states being in possession of the right to import, this is the case with many other rights, now to be prop- erly given up. I hold it essential in every point of view, that the general government should have power to prevent the in- crease of slavery." Mason spoke from his inmost soul, anxious for freedom and right, for the happiness of his country and the welfare of mankind. To words of such intense sincerity Ellsworth answered with almost mocking irony : " As I have never owned a slave I can- not judge of the effects of slavery on character. If, however, it is to be considered in a moral light, we ought to go further 318 THE FEDERAL CONVENTION. b. m. ; ch. viii. and free the slaves already in the country. Besides, slaves multiply so fast in Yirginia and Maryland that it is cheaper to raise than import them, whilst in the sickly rice-swamps foreign supplies are necessary ; if we go no further than is urged, we shall be unjust toward South Carolina and Georgia. Let us not intermeddle. As population increases, poor labor- ers will be so plenty as to render slaves useless. Slavery, in time, will not be a speck in our country. Provision is made in Connecticut for abolishing it ; and the abolition has already taken place in Massachusetts." " If the southern states are let alone," said Charles Pinck- ney, " they will probably of themselves stop importations. I would myself, as a citizen of South Carolina, vote for it." In the same vein Cotesworth Pinckney remarked : " If I and all my colleagues were to sign the constitution and use our personal influence, it would be of no avail toward obtaining the assent of our constituents. South Carolina and Georgia cannot do without slaves. Virginia will gain by stopping the importations. Her slaves will rise in value, and she has more than she wants. It would be unequal to require South Caro- lina and Georgia to confederate on such terms. Slaves should be dutied like other imports ; but a rejection of the clause is the exclusion of South Carolina from the union." Baldwin, with opinions on the rights of the states like those of Ells- worth and Sherman, continued : " The object before the con- vention is not national, but local. Georgia cannot purchase the advantage of a general government by yielding the abridg- ment of one of her favorite prerogatives. If left to herself, she may probably put a stop to the evil." " If South Carolina and Georgia," observed Wilson, " are themselves disposed to get rid of the importation of slaves in a short time, they will never refuse to unite because the impor- tation might be prohibited." To this Cotesworth Pinckney made answer: "I think myseH bound to declare candidly that I do not believe South Carolina will stop her importa- tions of slaves in any short time, except occasionally as she now does." " On every principle of honor and safety," said Dickinson, " it is inadmissible that the importation of slaves should be 1787. THE POWERS OF CONGRESS. 319 authorized to the states by the constitation. The true ques-" tion is whether the national happiness will be promoted or impeded by the importation ; and this question ought to be left to the national government, not to the states particularly interested. I cannot believe that the southern states will refuse to confederate on that account, as the power is not likely to be immediately exorcised by the general government." Here was the opening to a grant of the power, coupled with a prospect ' of delay in using it. Williamson, himself no friend of slavery, distinctly inti- mated that North Carolina would go with her two neighbors on the south. Cotesworth Pinckney now moved to commit the clause, that slaves might be made liable to an equal tax with other imports. " If the convention," said Rutledge, " thinks that North Carolina, South Carolina, and Georgia will ever agree to the plan, unless their right to import slaves be untouched, the expectation is vain ; " and he seconded the mo- tion for a commitment. Gouvemeur Morris wished the whole subject to be committed, including the clauses relating to taxes on exports and to a navigation act. These things might form a bargain among the northern and southern states. "Eather than to part with the southern states," said Sherman, " it is better to let them import slaves. But a tax on slaves imported makes the matter worse, because it implies they are property." " Two states," said Randolph, " may be lost to the union ; let us, then, try the chance of a commitment." The motion for commitment was adopted by the votes of Connecticut, New Jersey, and the five southernmost states, against New Hamp- shire, Pennsylvania, and Delaware; Massachusetts was ab- sent. Charles Pinckney and Langdon then moved to commit the section relating to a navigation act. " I desire it to be remem- bered," said Gorham, remotely hinting at possible secession, " the eastern states have no motive to union but a commercial one." Ellsworth, maintaining the position which he had de- liberately chosen, answered : " I am for taking the plan as it is. If we do not agree on this middle and moderate ground, I am afraid we shaU lose two states with others that may stand aloof ; 320 THE FEDERAL CONVENTION. b. iii. ; ch. viii. and fly, most probably, into several confederations, not without bloodshed." * Had the convention listened to no compromise on the slave-trade, Georgia and South Carolina would not have ac- cepted the new constitution ; IS^orth Carolina would have clung to them, from its internal condition ; Virginia, however earnest might have been the protest against it by Madison and Wash- ington, must have acted with J^orth CaroHna, and, as a conse- quence, there would from the beginning have been a federa- tion of slave-holding states. The committee to which the whole subject of restriction on the power over commerce was referred consisted of Langdon, King, Johnson, the aged Will- iam Livingston of New Jersey, Clymer, Dickinson, Martin, Madison, Williamson, Cotesworth Pinckney, and Baldwin,f a large majority of them venerable for uprightness and ability. Their report, made on the twenty-fourth, denied to the United States the power to prohibit the slave-trade prior to the year 1800, but granted the power to impose a tax or duty on sucli migration or importation at a rate not exceeding the average of the duties laid on imports, f On the twenty-fifth, when the report of the committee of eleven was taken up, Cotesworth Pinckney immediately moved to extend the time allowed for the importation of slaves till the year 1808. Gorham was his second. Madison spoke ear- nestly against the prolongation ; * but, without further debate, the motion prevailed by the votes of the three New England states, Maryland, and the three southernmost states, against New Jersey, Pennsylvania, Delaware, and Virginia. || Sherman once more resisted the duty " as acknowledging men to be property " by taxing them as such under the char- acter of slaves ; and Madison supported him, saying : " I think it wrong to admit in the constitution the idea that there can be property in men." ^ But, as the impost which had been proposed on all imported articles was of five per cent and the slave was deemed to have an average value of two hundred dollars, the rate was fixed definitively at ten dollars on every * Gilpin, 1388-1396 ; Elliot, 4&6-461. # Gilpin, 1427 ; Elliot, 477. f Gilpin, 1397; Elliot, 461. | Gilpin, 1429; Elliot, 478. i Gilpin, 1415 ; Elliot, 471. ^ Gilpin, 1429, 1430 ; Elliot, 473. 1787. THE POWERS OF CONGRESS. 321 imported slave, and tlie clause tlius amended was unanimously held fast as a discouragement of the traffic. " It ought to be considered," wrote Madison near the time, " as a great point gained in favor of humanity, that a period of twenty years may terminate forever within these states a traffic which has so long and so loudly upbraided the barbarism of modern poHcy. Happy would it be for the unfortunate Afri- cans if an equal prospect lay before them of being redeemed from the oppressions of their European brethren ! " * The confederation granted no power to interfere with the slave-trade. The new constitution gave power to prohibit it in new states immediately on their admission, in existing states at the end of the year 1807. Louisiana, by annexation to the union, lost the license to receive slaves from abroad. On the second day of December 1806, Thomas Jefferson, president of the United States of America, addressed this message to con- gress : f " I congratulate you, fellow-citizens, on the approach of the period at which you may interpose your authority con- stitutionally to withdraw the citizens of the United States from all further participation in those violations of human rights which have been so long continued on the unoffending inhabit- ants of Africa, and which the morality, the reputation, and the best interests of our country have long been eager to pro- scribe." Unanimous legislation followed the words from the presi- dent, and, as th e^year ISO ^Jbr oke upon the United States , th e inv portnti o n of slaves had censerl . And did slavery have as peaceful an end ? Philanthropy, like genius and like science, must bide its time. Man cannot hurry the supreme power, to which years are as days. Two members of the convention, with the sincere integrity which clears the eye for prophetic vision, read the doom of slave-holding. Mason, fourteen years before, in a paper pre- pared for the legislature of Virginia, had given his opinion that as the natural remedy for political injustice the constitu- tion should by degrees work itself clear by its own innate/ strength, the virtue and resolution of the community; andl added : " The laws of impartial Providence may avenge upon ] * The Federalist, No. xlii. f Journals of Congress, v., 468. TOL. VI. — 21 322 THE FEDERAL CONVENTION. b. hi. ; ch. viii. our posterity the injury done to a set of wretclies whom our injustice hath debased almost to a level with the brute creation. These remarks were extorted by a kind of irresistible, perhaps an enthusiastic, impulse ; and the author of them, conscious of his own good intentions, cares not whom they please or of- fend." * During a previous debate on tlie value of slaves. Mason had observed of them that they might in cases of emergency themselves become soldiers.f On the twenty-second of Au- gust J he called to mind that Cromwell, when he sent commis- sioners to Virginia to take possession of the country, gave them power to arm servants and slaves. He further pointed out that the British might have prevailed in the South in the war of the revolution had they known how to make use of the slaves ; that in Virginia the royal governor invited them to rise at a time wlien he was not in possession of the country, and, as the slaves were incapable of self -organization and direc- tion, his experiments by proclamation, addressed to them in regions not within his sway, totally failed ; but that in South Carolina, where the British were in the full possession of the country, they might have enfranchised the slaves and enrolled them for the consoUdation and establishment of the royal au- /( thority. But the civil and military officers in those days of a/ y abject corruption chose rather to enrich themselves by ship- I ping the slaves to the markets of the West Indies. Five )lnonths later Madison, in a paper addressed to the country, re- marked : " An unliappy species of population abounds in some of the states who, during the calm of the regular government, are sunk below the level of men ; but who, in the tempestuous scenes of civil violence, may emerge into the human character, and give a superiority of strength to any party with which they may associate themselves."* Slave-holding was to be borne down on the field of battle. The dignity and interests of the United States alike de- * George Mason's extracts from the Virginia charters, with some remarks on them, made in the year 1773. MS. The paper, though communicated to the legislature of Virginia, has not been found in its archives. My copy, which is, perhaps, the only one now in existence, I owe to the late James M. Mason. f Gilpin, 1068 ; Elliot, 296. t Gilpin, 1390 ; Elliot, 458. * Madison in the Federalist, No. xliii., published 25 January 1788. 1787. THE POWERS OF CONGRESS. 323 manded a grant of power to tlie general government for tlie regulation of foreign as well as domestic trade. "Without it the navigation of the country would have been at the mercy of foreign restrictions. For this regulation the new constitution required, as in all other acts of legislation, no more than a ma- jority of the two houses of congress. A strong opposition started up in the South under the lead of Charles Pinckney and Martin, inflamed by Mason and by Randolph ; but it was in vain. On the twenty-ninth, Madison, Spaight, and Rutledge defended the report of the eleven like statesmen, free from local influences or prejudice. It was clearly stated that the ships of^ nations in treaty with the United States would share in their / carrying trade ; that a rise in freight could be but temporary, I because it would be attended by an increase of southern as well / . / as of northern shipping ; that the West India trade was a great / object to be obtained only through the pressure of a navigation act. Cotesworth Pinckney owned that he had been prejudiced^ against the eastern states, but had found their delegates as liberal and as candid as any men whatever. On the question, Delaware and South Carolina joined the united IN'orth against Maryland, Virginia, ]N"orth Carolina, and Georgia. After this"^ vote the convention accepted unanimously the proposition I to grant to the majority in the two branches of congress full \ power to make laws regulating commerce and navigation. ( Randolph was so much dissatisfied that he expressed a " doubt I whether he should be able to agree to the constitution." Mason, j more deeply in earnest, as yet held his emotions in check. Of new states, the Virginia plan knew those only '' lawfully arising within the limits of the United States," and for their admission vaguely required less than a unanimous vote ; the committee of detail demanded the consent of two thirds of each house of congress, as well as the concurrence of the states with- in whose " limits " the new states should arise. At this stage Gouverneur Morris enlarged the scope and sim- plified the language of the article. The confederation had opened the door to Canada at its own choice alone, and to any other territory that could obtain the consent of two thirds of con- gress. It was no longer decent to hold out to Canada an invi- tation to annex itseK to the union ; but the American mind, in 324: THE FEDEKAL CONYENTIOK b. iii. ; en. viii. the strength of independence, foresaw its expansion. The rising states beyond the mountains were clamorons for the un- obstructed navigation of the Mississippi, which might lead to the acquisition by treaty of all the land east of that river; and the boundary on the south, as well of Georgia as of Florida, had never been adjusted with Spain. Gouverneur 'Morris had at an early day desired to restrict the limits of the United States ; he now gave his ancient fears to the winds, and, acceding in advance to the largest eventual annexations, he proposed these few and simple words : " JN'ew States may be admitted by the legislature into the union/' with the full un- derstanding and intention that an ordinary act of legislation should be sufficient by a bare majority to introduce foreign territory as a state into the union.^ This clause the convention accepted without a debate, and without a division. On the thirtieth, Maryland, impelled by a desire to guard the right of the United States to the back lands, and to be the champion of Kentucky, of Maine, of Vermont, and of the settlements on the Tennessee river and its branches, would have granted to the legislature of the United States unlimited power to dismember old states, but was supported only by Delaware and New Jersey. Vermont might once have been included within " the limits " of New York, but certainly re- mained no longer within its jurisdiction. By changing the word "limits" to "jurisdiction," the convention, still follow- ing Gouverneur Morris, provided for its future admission to the union without the consent of New York. In regard to the south-western settlements, the preliminary consent of the states of which they then formed a part was not dispensed with. In like manner no state could be formed by the junction of two or more states or parts thereof without the concurrence of such states. The country north-west of the Ohio having already been provided for, the rule for the admission of new states was thus completed for every part of the territory of the states or of the United States. The convention, still using the language of Gouverneur Morris, and no one but Maryland dissenting, assigned to the legislature the power to dispose of and make * Gilpin, 1458 ; Elliot, 493. Life and Writings of GouTerneur Morris by Sparks, iii., 183, 185, 290. Cooley's Story, 1282, etc. 1787. THE POWERS OF COJS^GPwESS. 325 all needful rules and regulations respecting the territory or other property belonging to the United States. Every word in the constitution bearing on the subject of slavery was chosen with the greatest caution ; every agreement was jealously guarded. After the section relating to the slave- trade, the committee of detail inserted : " No capitation tax shall be laid unless in proportion to the census hereinbefore directed to be taken." * This was intended to prevent con- gress from enforcing a general emancipation by the special taxation of slaves.f * Gilpin, 1234, 1415 ; Elliot, 379, 471, f Speech of Baldwin in the house of representatives, 12 February 1790. 326 THE FEDERAL CONVENTION. b. iii. ; ch. ix. CHAPTER IX. the president. July, August, and September 1787. How to call fortli one of the people to be their executive chief for a limited period of years, and how to clothe him with just sufficient powers, long baffled the convention. Federal governments, in G-reece, in Switzerland, and in Holland, like the confederation of the United States, had been without a separate executive branch ; and the elective monarchies of Po- land, of the Papal states, and of Germany, offered no available precedents. The report of the committee of detail of the sixth of August introduced no improvement in the manner of select- ing a president ; and it transferred to the senate the power to make treaties and to appoint ambassadors and judges of the supreme court.* Questions relating to his duties long remained in doubt ; the mode of his election was reached only just be- fore the close of the convention. The Virginia plan confided the choice of the executive to the national legislature. " An election by the national legisla- ture," objected Gouverneur Morris, on the seventeenth of July, " will be the work of intrigue, of cabal, of corruption, and of faction ; it will be like the election of a pope by a con- clave of cardinals ; of a king by the diet of Poland ; real merit will rarely be the title to the appointment." He moved for an election by the " citizens of the United States." f Sherman preferred a choice by the national legislature. Wilson insisted on an election by the people ; should no one have a majority, then, and then only, the legislature might decide between the * Gilpin, 1234 ; Elliot, 379. f Gilpin, 1120; Elliot, 322. 1787. THE PRESIDENT. 327 candidates.^ Charles Pinckney opposed the election by the people, because it would surrender the choice to a combination of the populous states led by a few designing men.f " To refer the choice of a proper character for a chief magistrate to the people," protested Mason, " would be as unnatural as to refer a trial of colors to a blind man." J " An election by the people," observed "Williamson, "is an appointment by lot." On the first vote Pennsylvania stood alone against nine states. Martin proposed to intrust the appointment to the legislatures of the states ; and was supported only by Delaware and Maryland. On the mode of choosing the president, the length of his period of office and his re-eligibility would be made to depend. The convention, in committee, had fixed that period at seven years with a prohibition of re-election. On the motion of "William Houston of Georgia, supported by Sherman and Gouverneur Morris, this compulsory rotation was struck out by six states, against Delaware, Virginia, and the two Carolinas. The executive becoming re-eligible, Jacob Broom of Delaware revived the idea of a shorter period of service. McClurg held that the independence of the executive was no less essential than the independence of the judiciary ; that a president, elected for a small number of years by the national legislature, and looking to that body for re-election, would be its dependent. To escape from corrupt cabals and yet preserve a good officer in place, he moved that the tenure of office should be good behavior. Gouverneur Morris beamed with. joy. Broom found all his difficulties obviated. " Such a tenure," interposed Sherman, " is neither safe nor admissible ; re-elec- tion will depend on good behavior." * Madison, who to the last refused with unabated vigor to in- trust the choice of the national executive to the national legis- lature, and at heart would not have been greatly disinclined to the longest period of service for the executive if " an easy and effectual removal by impeachment could have been set- tled," II argued from the necessity of keeping the executive, legislative, and judiciary powers independent of each other, * Gilpin, 1121 ; Elliot, 323. X Gilpin, 1123; Elliot, 324. f Gilpin, 1121 ; Elliot, 323. # Gilpin, 1125, 1126; Elliot, 325. 11 Madison's Writings, i, 345 ; Gilpin, 1127; Elliot, 326. 328 THE FEDERAL CONVENTION. b. iii. ; oh. ix. tliat the tenure of good behavior for the executive was a less evil than its dependence on the national legislature for re- election. Mason replied: "An executive during good behavior is only a softer name for an executive for life ; the next easy- step will be to hereditary monarchy. Should the motion suc- ceed, I may myself live to see such a revolution." " To pre- vent the introduction of monarchy," rejoined Madison, "is, with me, the real object. Experience proves a tendency in our governments to throw all power into the legislative vortex. The executives of the states are in general little more than ciphers ; the legislatures omnipotent. If no effectual check be devised on the encroachments of the latter, a revolution will be inevitable." After explanations by McClurg, four states — 'New Jersey, Pennsylvania, Delaware, and Virginia, Madison voting with McClurg — expressed their preference for the ten- ure of good behavior to the tenure of seven years with a per- petual re-eligibility by the national legislature.* Massachu- setts was among the six states in the negative, though to King, who "relied on the vigor of the executive as a great security for the public liberties," the tenure of good behavior would have been most agreeable, " provided an independent and ef- fectual forum could be devised for the trial of the executive on an impeachment." f This discussion brought the convention unanimously if to the opinion that if the executive was to be chosen by the na- tional legislature, he ought not to be re-eligible. Those, there- fore, who agreed with Sherman, that the statesman who had proved himself most fit for an office ought not to be excluded by the constitution from holding it, were bound to devise some other acceptable mode of election. The first thought was an immediate choice by the people. But here Madison pointed out that " the right of suffrage was much more diffusive in the northern states than in the south- ern ; and that the latter would have no influence in the election on the score of the negroes." * To meet this difficulty. King revived Wilson's proposition for the appointment of the ex- * Gilpin, 1127, 1128, 1129 ; Elliot, 326, 327. t Gilpin, 1147; Elliot, 337. f Gilpin, 1157 ; Elliot, 342. » Gilpin, 1148 ; Elliot, 337. 1787. THE PRESIDENT. 329 ecntive by electors cliosen by the people expressly for the pur- pose ; * and Madison promptly accepted it as, " on the whole, liable to fewest objections." f So, too, in part, thought the convention, which, on the motion of Ellsworth, decided, by six states to three, that the national executive should be appointed by electors ; and, by eight states to two, that the electors should be chosen by the state legislatures. J From confidence in the purity of the electoral body thus established, the re-eligibility of the executive was again affirmed by a vote of eight states against the two Carolinas ; * and, in consequence of the re-eli- gibility, the term of office was, at Ellsworth's motion, reduced by the vote of all the states but Delaware from seven years to six. II So the convention hoped to escape from the danger of a corrupt traffic between the national legislature and candidates for the executive by assembling in one place one grand elec- toral college, chosen by the legislatures of the several states for the sole purpose of electing that officer. To this system Caleb Strong of Massachusetts started this grave objection : " A new set of men, like the electors, will make the government too complex ; nor will the first charac- ters in the state feel sufficient motives to undertake the office." "^ On the previous day Houston of Georgia had directed the thoughts of the convention " to the expense and extreme in- convenience of drawing together men from all the states for the single purpose of electing the chief magistrate." () To him, likewise, it now seemed improbable that capable men would undertake the service. He was afraid to trust to it. Moved by these considerations, but still retaining its conviction of the greater purity of an electoral college, the convention, by seven votes against four, in the weariness of vacillation, returned to the plan of electing the national executive by the national legis- lature. J But the vote was sure to reopen the question of his re-eligibility. The convention was now like a pack of hounds in full chase, suddenly losing the trail. It fell into an anarchy of opinion, * Gilpin, 1147; Elliot, 336. | Gilpin, llRl, 1152; Elliot, 389. f Gilpin, 1148 ; Elliot, 337. ^ Gilpin, 1189 ; Elliot, 358. X Gilpin, 1150; Elliot, 338. Gilpin, 1186; Elliot, 357. # Gilpin, 1150, 1151 ; Elliot, 338. i Gilpin, 1190 ; Elliot, 359. 330 THE FEDERAL CONVENTION. b. hi. ; ch. ix. and one crude sclieme trod on the heels of another. "William- son, pleading the essential difference of interests between the northern and southern states, particularly relating to the carry- ing trade, " wished the executive power to be lodged in three men, taken from three districts, into which the states should be divided."* "At some time or other," said he, "we shall have a king ; to postpone the event as long as possible, I would render the executive ineligible." f In the event of the ineligibility of the executive, Martin, forgetting the state of anarchy and faction that would attend a long period of service by an incompetent or unworthy incum- bent, proposed that the term of executive service should be eleven years. J " From ten to twelve," said Williamson.* " Fifteen," said Gerry ; and King mocked them all by propos- ing " twenty years, the medium life of princes." || Wilson, seeing no way of introducing a direct election by the people, made the motion^ that the executive should be chosen by electors to be taken from the national legislature by lot. Ellsworth, on the twenty-fifth, pointed out that to secure a candidate for re-election against an improper dependence on the legislature, the choice should be made by electors.^ Madison Hked best an election of the executive by the quali- fied part of the people at large. "Local considerations," he said, "must give way to the general interest. As an indi- vidual from the southern states, I am willing to make the sacrifice." J And now came into consideration an element which exer- cised a constant bias on the discussion to the last. Ellsworth complained that the executive would invariably be taken from one of the larger states. "To cure the disadvantage under which an election by the people would place the smaller states," Williamson proposed that each man should vote for three can- didates. ^ Gouverneur Morris accepted the principle, but de- sired to limit the choice of the voters to two, of whom at least * Gilpin, 1180; Elliot, 353. f Gilpin, 1191 ; Elliot, 360. f Gilpin, 1189, 1190 ; Elliot, 359. ^ Gilpin, 1196 ; Elliot, 362. i Gilpin, 1191 ; Elliot, 360. ^ Gilpin, 1198 ; Elliot, 363. * Gilpin, 1190; Elliot, 359. ^ Gilpin, 1201; Elliot, 365. ^ Gilpin, 1204 ; Elliot, 366. 1787. THE PRESIDENT. 331 one should not be of his own state. This Madison approved, believing that the citizens would give their second vote with sincerity to the next object of their choice.* We shall meet the proposition again. Lastly, Dickinson said : " Insuperable objections lie against an election of the executive by the national legislature, or by the legislatures or executives of the states. I have long leaned toward an election by the people, which I regard as the best and the purest source. Let the people of each state choose its best citizen, and out of the thirteen names thus selected an ex- ecutive magistrate may be chosen, either by the national legis- lature or by electors appointed by it." f From hopelessness of an agreement, Gerry and Butler were willing to refer the resolution relating to the executive to a committee, but Wilson insisted that a general principle must first be fixed by a vote of the house. :j: On the morning of the next day * Mason recapitulated all the seven different ways that had been proposed of electing the chief magistrate : by the people at large ; by the legisla- tures of the states ; by the executives of the states ; by electors chosen by the people ; by electors chosen by lot ; by the legis- lature on the nomination of three or two candidates by each several state ; by the legislature on the nomination of one can- didate from each state. After reviewing them all, he con- cluded that an election by the national legislature, as originally proposed, was the best. At the same time he held it to be the very palladium of civil liberty, that the great ofiicers of state, and particularly the executive, should at fixed periods return to that mass from which they were taken. Led for the mo- ment by this train of thought, the convention by six states, against Pennsylvania, Delaware, and Maryland, with Yirginia equally divided, resolved that a national executive be insti- tuted ; to consist of a single person ; who should be chosen by the national legislature ; for the term of seven years ; and be inehgible a second time. || Foremost in undiminished disapproval of the choice of the executive by the legislature were Washington, Madison, Wil- * Gilpin, 1205 ; Elliot, S67. t Gilpin, 1207; Elliot, 368. f Gilpin, 1206 ; Elliot, 367. * Ibid. || Gilpin, 1211 ; Elliot, 370. 332 THE FEDEKAL CONVENTIOK b. iii. ; oh. ix. son, Gouvernenr Morris, and Gerry ; foremost for the election by that body were Eutledge, Mason, and, in a moderate de- gree. Strong. During the debate Gouvernenr Morris had de- clared : " Of all possible modes of appointing the executive, an election by the people is the best ; an election by the legisla- ture is the worst.* I prefer a short period and re-eligibility, but a diiferent mode of election." f In this he spoke the mind of Pennsylvania ; and he refused to accept the decision of that day as final. On the twenty-fourth of August the report of the com- mittee of detail relating to the executive came before the con- vention. All agreed that the executive power should be vested in a single person, to be styled : the President of the United States of America ; and none questioned that his title might be : His Excellency. J According to the report, he was to be elected by ballot by the legislature for a term of seven years, but might not be elected a second time.* The strife on the manner of his election revived. Daniel Carroll of Maryland, seconded by "Wilson, renewed the mo- tion, that he should be elected by the people ; but the house was weary or unprepared to reopen the subject, and at the moment the motion received only the votes of Pennsyl- vania and Delaware. || Hutledge then moved that the elec- tion of the president be made by the legislature in "joint ballot." The conducting of business, especially of elections, by the two branches of the legislature in joint session was from early days familiar to the states, and was at that time established in every one of them which had prepared a constitution of its own with two branches of the legislature, so that the regula- tions for that mode of choice were perfectly well understood. "New Hampshire had had the experience of both methods; many of its officers were chosen annually by joint ballot, while its representatives to congress were appointed by the concur- rent vote of the two houses. Unhappily, throughout this part of the work, the equal vote of the smaller states with the larger * Gilpin, 1193, 1204 ; Elliot, 361, 366. * Gilpin, 1236 ; Elliot, 380. f Gilpin, 1195 ; Elliot, 362. | Gilpin, 1418 ; Elliot, 472. X Gilpin, 1417; Elliot, 472. 1787. THE PEESIDENT. 333 ones in the senate persistently biased the movements of the convention. In the special interest of the smaller states Sherman ob- jected to a vote of the two houses in joint ballot, because it would deprive the senate of a negative on the more numerous branch. " It is wrong," said Gorham, " to be considering at every turn whom the senate will represent ; the pubHc good is the object to be kept in view ; delay and confusion will en- sue if the two houses vote separately, each having a negative on the choice of the other." Dayton and Brearley, following in the wake of Sherman, opposed a joint ballot, as impairing the power of the smaller states;* but Langdon of JSTew Hampshire, enlightened by experience at home, dwelt on the great difficulties of which the mode of separate votes by the two houses was productive ; and, like a good patriot as he was, he approved the joint ballot, "though unfavorable to l^ew Hampshire as a small state." "Wilson remarked "that the senate might have an interest in throwing dilatory obstacles in the way, if its separate concurrence should be required." On the same side spoke Madison; and the motion of Kutledge prevailed by seven states, against Connecticut, l^ew Jersey, Maryland, and Georgia.t These four states, joined by Delaware, then demanded that, on the joint ballot, the vote should be taken by states ; the decision turned on 'New Hampshire ; and following the patri- otic opinion of Langdon, it joined the five larger states and negatived the proposal. For an election of president, a ma- jority of the votes of the members present was required, New Jersey alone dissenting. J " In case the votes of the two highest should be equal," Eead of Delaware, taking a clause from the constitution of his own state, moved that the presi- dent of the senate should have an additional vote ; but it was disagreed to by a general negative. At this moment Gouverneur Morris interposed with de- cisive effect. He set forth the danger of legislative tyranny that would follow from leaving the executive dependent on the legislature for his election ; he dwelt once more on the * Gilpin, 1418 ; Elliot, 472. f Gilpin, 1419 ; Elliot, 473. X Gilpin, 1420 ; Elliot, 473. 334 ' THE FEDERAL CONVENTIOK b. m. ; ch. ix. " cabal and corruption " * wliicli would attach to that method of choice. The plan of choosing the president bj electors, which he now revived, had made such progress that five states voted with him, among them Pennsylvania and Virginia. A reference of the subject to a committee was lost for the mo- ment bj a tie vote, Connecticut being divided. f But opinion ripened so fast that, on the thirty-first of August, the mode of choosing the president, his powers, and the question of his re- eligibility, was with other unfinished business referred to a grand committee of one from each state. The Eleven, ap- pointed by ballot, were Gilman, King, Sherman, Brearley, Gouverneur Morris, Dicldnson, Carroll, Madison, Williamson, Butler, and Baldwin. J Gouverneur Morris had loudly put forward his wish to make of the senate a thoroughly aristocratic body, and of the president a tenant for life. It agreed with this view to repose the eventual election of the president in the senate. The electoral colleges, in the want of all means of rapid intercom- munication, would have rarely cast a majority for one man ; and the requisition on the electors to vote each for two men increased the chances that there would be no election, and that one of the candidates at least would be a citizen of a smaller state. He was aware that the outgoing president would be apt to be a candidate for re-election ; and desired nothing better than such a junction between the president and senate as would secure a re-election during life. Sherman hated aristocracy ; but he was specially watchful of the equal power of the smaller states, and saw that, on the first ballot of the election, the large states, having many votes, would always bring forward their candidates with superior strength. To gain a chance for electing a president from the small states, they insisted that, in case there should be no elec- tion by the colleges, not less than five names should be reported as candidates for the eventual election, and among five names there was a great probability that there would be one from the smaller states. They therefore insisted that the eventual elec- tion should be made by the senate ; and this was carried by a * Gilpin, 1420; Elliot, 473. f Gilpin, 1421 ; Elliot, 474. X Gilpin, 1478 ; Elliot, 503. 1787. THE PRESIDENT. 335 coalition of aristocratic tendencies in Gouvemeur Morris and others from the large states with the passion of the small states for disproportionate chances for power. The committee, having considered the subject in all its bearings, made their report on the fourth daj of September.* The term of the presidency was limited to four years ; and the election was confided to electors to be appointed in each state as its legislature might direct ; and to be equal to the whole number of its senators and representatives in congress ; so that the electoral colleges collectively were to be the exact counter- part of the joint convention of the legislature. The electors of each state were to meet f in their respective states and vote by ballot for two persons, of whom one, at least, should not be an inhabitant of the same state with themselves. A certified list of these votes, under the seal of the electoral college, was to be transmitted to the president of the senate. J " The president of the senate," discharging a purely minis- terial ofiice, " shall in that house open all the certificates, and the votes shall be then and there counted. The person having the greatest number of votes shall be the president, if such number be a majority of that of the electors ; and if there be more than one who has such a majority and an equal number of votes — a case that would most rarely, perhaps never, occur — then the senate shall-*'' choose by ballot one of them for presi- dent ; but if no person has a majority, then, from the five highest on the list, ' the senate,' " in which body the smallest state had an equal vote with the largest, " shall choose by ballot the president." " After the choice of the president, the per- son having the greatest number of votes," whether a majority of them or not, '^ shall be vice-president" — an officer now for the first time introduced; ^'but if there should remain two or more who have equal votes, then the senate shall choose from them the vice-president." || Mason, who thought the insulated electoral colleges would hardly ever unite their votes on one man, spoke earnestly: * Gilpin, 1485-148S ; Elliot, 606, 607. f Gilpin, 1486 ; Elliot, 507. X Ibid. * " Immediately," not in original report. It was inserted 6 September. Gil- pin, 1509 ; Elliot, 518, and i., 283, 289. || Gilpin, 1486, 1487 ; Elliot, 507. 336 THE FEDERAL CONVENTION". b. hi. ; ch. ix. ^' The plan is liable to this strong objection, that nineteen times in twenty the president will be chosen by the senate, an im- projDer body for the purpose." To the objection of Charles Pinckney, that electors would be strangers to the several can- didates, and unable to decide on their comparative merits, Baldwin answered: "The increasing intercourse among the people of the states will render important characters less and less unknown." * " This subject," said Wilson, " has greatly divided the house, and will divide the people. It is, in truth, the most difficult of all on which we have had to decide. I have never made up an opinion on it entirely to my own satis- faction." The choice by electors " is, on the whole, a valuable improvement on the former plan. It gets rid of cabal and corruption ; and continental characters will multiply as we more and more coalesce, so as to enable the electors in every part of the union to know and judge of them. It clears the way for a discussion of the question of the re-eligibility of the president on its own merits, which the former mode of elec- tion seemed to forbid. It may, however, be better to refer the eventual appointment to the legislature than to the senate, and to confine it to a smaller number than five of the candi- dates." t " I wish to know," asked Eandolph, chiming in with "Wil- son, " why the eventual election is referred to the senate, and not to the legislature ? I see no necessity for this, and many objections to it." :[: On the fifth. Mason, supported by Gerry, attempted to reduce the number of candidates to be voted for from ^ye to three ; * but the small states, who saw their best chance of fur- nishing a president in the larger number, were humored by the convention, and to the last the nimiber of ^Ye was not changed. One great objection of Mason would be removed by depriv- ing the senate of the eventual election. || Wilson proposed the capital amendment, to transfer the eventual election from the senate to the " legislature." '^ This change Dickinson ap- proved. But the convention was not yet ripe for the motion, * Gilpin, 1491 ; Elliot, 509. * Gilpin, 1502 ; Elliot, 514. \ Gilpin, 1491, 1492 ; Elliot, 509. I Gilpin, 1498, 1499 ; Elliot, 513. X Gilpin, 1492 ; Elliot, 510. ^ Gilpin, 1500; Elliot, 513. 1787. THE PEESIDEN-T. 337 all the smaller states voting against it, except ISTew Hampsliire, which was divided. " The mode of appointment as now regulated," said Mason at the close of the day, " is utterly inadmissible. I should pre- fer the government of Prussia to one which will put all power into the hands of seven or eight men " — a majority of a quorum of the senate — "and fix an aristocracy worse than absolute monarchy." * On the sixth, Gerry, supported by King and Williamson, proposed that the eventual election should be made by the legislature. Sherman, sedulously supporting the chances of the small states, remarked, that if the legislature, instead of the senate, were to have the eventual appointment of the presi- dent, it ought to vote by states. f Wilson himself, on the same morning, spoke with singular energy, disapproving alike the eventual choice of the presi- dent by the equal vote of the states and the tendency to clothe the senate with special powers : " I have weighed carefully the report of the committee for remodelling the constitution of the executive ; and, on combining it with other parts of the plan, I am obliged to consider the whole as having a ten- dency to aristocracy, as throwing a dangerous power into the hands of the senate. They will have, in fact, the appoint- ment of the president, and, through his dependence on them, the virtual appointment to ofiices — among others, the officers of the judiciary department ; they are to make treaties ; and they are to try all impeachments. The legislative, executive, and judiciary powers are all blended in one branch of the government. The power of making treaties involves the case of subsidies ; and here, as an additional evil, foreign influence is to be dreaded. According to the plan as it now stands, the president will not be the man of the people, as he ought to be, but the minion of the senate. He cannot even appoint a tide-waiter without it. I have always thought the senate too numerous a body for making appointments to office. With all their powers, and the president in their interest, they will depress the other branch of the legislature, and aggrandize themselves in proportion. The new mode of appointing the * Gilpin, 1503 ; Elliot, 515. f Gilpin, 1504 ; Elliot, 516. VOL. VI. — 22 338 THE FEDERAL CONVENTION. b. ni. ; en. ix president bj electors is a valuable improvement; but I can never agree to purchase it at the price of the ensuing parts of the report." * " The mutual connection of the president and senate," said Hamilton, " will perpetuate the one and aggrandize both. I see no better remedy than to let the highest number of ballots, whether a majority or not, appoint the president." f The same motion had the day before been offered by Mason, J but the convention, especially the smaller states, inflexibly required a majority. WilHamson, to avoid favoring aristocracy in the senate, and yet to secure the assent of the small states, wished to transfer the eventual choice to the legislature, voting by states. To the legislature Sherman preferred the house of representatives, the members from each state having one vote ; * and the con- vention so decided by ten states out of eleven. ]^or would the convention intrust the counting of the votes to the senate alone. By amendments adopted on the sixth,! it was thus finally established: "The president of the senate shall, in the presence of the senate and house of repre- sentatives, open all the certificates, and the votes shall then be counted." In every stage of the proceeding the convention suffered no chance for the failure of an election, and had spe- cially guarded against the failure of an election by the nega- tive of one house upon the other, leaving the rules for the conduct of the electoral colleges, or of the two houses when in presence of each other, to be suppHed by the familiar expe- rience of the states. On one point, and on one point only, the several states of that day differed in their manner of count- ing votes. In Yirginia the ballot of the two houses was taken in each house respectively, and the boxes examined jointly by a committee of each house. In Massachusetts the whole work was done by the senators and representatives assembled in one room. On this point, therefore, and on this point only, there was need of a special regulation ; and, accordingly, the consti- tution enjoined the counting of the votes in the presence of * Gilpin, 1504, 1505; Elliot, 5l6. ** Gilpin, 1510; Elliot, 5l9. f Gilpin, 1507 ; Elliot, 517. I Gilpin, 1509, I5l3 ; Elliot, 6l8, 520. X Gilpin, 1498, 1499 ; Elliot, 5l3. 1787. THE PRESIDENT. 339 the senate and house of representatives after the manner of Massachusetts.* The language of this clause of the constitution is a concise, clear, and imperative command; "The votes shall then be counted." The convention is left with no one but itself to in- terpret its duties and prescribe its rules of action. ISTo power whatever over the counting of the votes is devolved on the house of representatives or on the senate ; whatever is granted is granted to the two houses " in the presence of " each other ; representing the states and the people according to the com- promise adopted for the electoral colleges. And now the whole line of march to the mode of the elec- tion of the president can be surveyed. The convention at first reluctantly conferred that office on the national legislature; and to prevent the possibility of failure by a negative of one house on the other, to the legislature voting in joint ballot. To escape from danger of cabal and corruption, it next trans- ferred full and final power of choice to an electoral college * Constitution of Virginia, of 1776. B. P. Poore's edition, 1910, 1911. A governor, or chief magistrate, shall be chosen annually by joint ballot of both houses (to be taken in each house respectively) deposited in the conference room ; the boxes examined jointly by a committee of each house, and the numbers sever- ally reported to them that the appointments may be entered (which shall be the mode of taking the joint ballot of both houses, in all cases). . . . A privy council, or council of state, consisting of eight m-embers, shall be chosen by joint ballot of both houses of assembly. The delegates for Virginia to the continental congress shall be chosen annu- ally, or superseded in the mean time, by joint ballot of both houses of assembly. The two houses of assembly shall, by joint ballot, appoint judges of the su- preme court of appeals, and general court, judges in chancery, judges of admiral- ty, secretary, and the attorney-general, to be commissioned by the governor, and continue in office during good beha-vior. Constitution of Massachusetts, of 1780. B, P. Poore's edition, 967, 969. Ch. IT., Art. IT. Nine councillors shall be annually chosen from among the persons returned for councillors and senators, on the last Wednesday in May, by the joint ballot of the senators and representatives assembled in one room. Ch. II., Art. I. The secretary, treasurer, and receiver-general, and the commis- Fary-general, notaries public, and naval officers, shall be chosen annually, by joint ballot of the senators and representatives, in one room. Ch, IV. The delegates of this commonwealth to the congress of the United States shall, some time in the month of June, annually, be elected by the joint ballot of the senate and house of representatives assembled together in one room. 340 THE FEDERAL CONVENTION-. b. hi. ; ch. ix. that should be the exact counterpart of the joint convention of the two honses in the representation of the states as units, as well as the population of the states, and should meet at the seat of government. Then, fearing that so large a number of men would not travel to the seat of government for that single pur- pose, or might be hindered on the way, they most reluctantly went back to the choice of the president by the two houses in joint convention. At this moment the thought arose that the electors might cast their votes in their own several states, and transmit the certificates of their ballots to the seat of govern- ment. Accordingly, the work of electing a president was di- vided; the convention removed the act of voting from the joint session of the two houses to electoral colleges in the sev- eral states, the act of voting to be followed by the transmission of authenticated certificates of the votes to a branch of the gen- eral legislature at the seat of government ; and then it restored to the two houses in presence of each other the same office of counting the collected certificates which they would have per- formed had the choice remained with the two houses of the legislature. Should no one have a majority, the eventual elec- tion of the president, to satisfy the rising jealousy of the pre- rogatives of the senate, was assigned to the house of represen- tatives, and, to please the small states, to the representatives voting by states. And the house of representatives was in the clearest language ordered " immediately " to choose by ballot one of two, when their vote was equal, one of five where no person had a majority. In this way a collision between the two houses, by a negative vote of one on the other, was com- pletely guarded against in every stage of the procedure."^ * When, thirteen years later, this clause came up for consideration, Madison and Baldwin, two surviving members of the grand committee to whom the federal convention had referred everything relating to the choice of the president, left on record their interpretation of the clause. For the opinion of Madison, see Madison to Jefferson, 4 April 1800, in writings of Madison, ii., 158, where the name "Ni- cholson's " is erroneously printed for " Nicholas's," as appears from a comparison which has been made of the printed letter with the original. The opinion of Bald- win is found in " Counting Electoral Votes," page 19. Baldwin gives his vote with Langdon and Pinckney, both of whom had been members of the federal con- vention, for the right of the joint convention to count the votes. By the kindness of Miss Sarah Nicholas Randolph, granddaughter of Governor Wilson Gary Nicho- las of Virginia, and great-granddaughter of Thomas Jefferson, I have been al- 1787. THE PKESIDENT. 341 The almost certain election of the vice-president was secured by declaring the candidate haying the most votes to be duly elected. In the extremely improbable case, that two persons should lead all the candidates with an exactly equal number of votes, the election was to devolve on the senate. " Such an officer as vice-president," said "Williamson on the seventh, " is not wanted." * To make an excuse for his exist- ence, the convention decreed that he should be president of the senate. " That," said Mason, '' is an encroachment on the sen- ate's rights ; and, moreover, it mixes too much the legislative and the executive." It was seen that the vice-president brings to the chair of the senate the dignity of one of the two high- est officers in the land chosen by the whole country ; and yet that he can have no real influence in a body upon which he is imposed by an extraneous vote. That the vice-president should, in the event of a vacancy, act as president, prevents the need of a new election before the end of the regular term ; but an immediate appeal to the peo- ple might give a later and truer expression of its wishes. "While the method to be adopted for the election of the president still engaged the untiring efforts of the convention, it proceeded in the ascertainment of his powers. His style was lowed to take from the holograph of Jefferson a copy of his paper on this subject, written by him for the use of W. C. Nicholas when senator from Virginia in con- gress in 1800. The question as voted upon in congress in 1800 was decided not by any bear- ing on the selection of Jefferson or Burr for the presidency, for the party opposed to Jefferson had a majority in each branch, but on the unwillingness of the sen- ate to give to the house of representatives superior weight in the decision of elec- tions. Jefferson, iv., 322. The vice-president was never charged with the power to count the votes. The person who counted the first votes for president and vice- president was no vice-president, but a senator elected by the senate as its presid- ing officer for that act under a special authority conferred by the constitution for that one occasion when the constitution was to be set in motion. On any pretence of a right in the vice-president to count the votes, compare the words spoken in the senate by Senator Conkling, 23 and 24 January 1877, and Senator Edmunds, 20 November 1 877. The laws of historical criticism require the historian to study the words of the state constitutions from which the article in the United States constitution is taken, and the practice of the state legislatures of that day under the original articles in the state constitutions ; and these must decide on the right interpretation of the language employed in the constitution of the United States. * Gilpin, 1517 ; Elliot, 522. 342 THE FEDERAL CONVENTION. b. hi. ; en. ix. declared to be " the President of the United States of America ; " the clause that his title should be " His Excellency " was still suffered to linger in the draft. He was to be the minister to carry out the will of the legislature, and see tliat the laws are executed. It was made his duty to give information of the state of the union ; and to recommend necessary and expedient measures. He could not prorogue the two branches of the legislature nor either of them ; nor appeal to the people by dissolving them. They alone had the power to adjourn ; but on extraordinary occasions to him belonged the prerogative to convene them, or to convene the senate alone. Wilson was most apprehensive that the legislature, by swal- lovdng up all the other powers, would lead to a dissolution of the government, no adequate self -defensive power having been granted either to the executive or judicial department.* To strengthen the president and raise a strong barrier against rash legislation, Gouverneur Morris would have granted the presi- dent a qualified veto on the repeal of a law, an absolute veto on every act of legislation.f In June the convention had agreed that the veto of the president on an act of congress could be overruled by two thirds of each house ; on the fifteenth of August, at the instance of "Williamson, it was agreed that the veto of the president could be overruled only by three fourths of each branch of congress, and on the next day the same rule was applied to every order, resolution, or vote to which the concurrence of the two houses might be necessary, except it were a question of adjournment.:|: Sherman, on the twenty-fifth of August, had proposed that pardons should require the consent of the senate ; but no state except his own was willing thus to restrict the clemency of the president.* All agreed that he should be commander-in-chief of the army and the navy ; but, on the twenty-seventh of August, at Sherman's instance, he was to command the militia only when it should be called into the actual service of the United States. || The men who made the constitution had taken to heart the * Gilpin, 1836, 183Y; Elliot, 430. * Gilpin, 1433 ; Elliot, 480. f Gilpin, 1334 ; Elliot, 429. fl Gilpin, 1434 ; Elliot, 480. i Gilpin, 1337, 1338; Elliot, 431. irsr. THE PRESIDENT. 343 lesson tliat the three great powers — legislative, judicial, and ex- ecutive — should be lodged in different hands. "Executing the laws and appointing officers not appertaining to and ap- pointed by the legislature," Wilson had said, so early as the first of June, " are strictly executive powers." * Yet it seemed needful to keep watch over the president, and Gerry f and Sherman had favored the appointment of an executive council.:]: Charles Pinckney wished the president to consult the heads of the principal departments.* " A superfluous proposition," said Hamilton, " for the president will at any rate have that right." Mercer, on the fourteenth of August, suggested " a council composed of members of both houses of the legislature to stand between the aristocracy and the executive." || But the thought did not take root. The convention was anxious to reconcile a discreet watch- fulness over the executive with his independence. In August Ellsworth had recommended a council to be composed of the president of the senate, the chief justice, and the ministers, or secretaries as Gouverneur Morris named them, of the foreign, the interior, war, treasury, and navy departments, " to advise, but not conclude the president." ^ Gerry pronounced the nomi- nation of the chief justice particularly exceptionable. () Dick- inson urged that the great appointments of the heads of depart- ments should be made by the legislature, in which case they might properly be consulted by the executive. The elaborate plan of a council of state which Gouverneur Morris proposed on the twentieth differed from that of Ellsworth mainly in its exclusion of the president of the senate. The persistent convention next consulted its committee of detail, which on the twenty-second reported : that " the privy council of the president of the United States shall consist of the president of the senate, the speaker of the house of repre- sentatives, the chief justice of the supreme court, and the prin- cipal officer in each of five departments as they shall from time to time be established ; their duty shall be to advise him in * Gilpin, '763; Elliot, 141. f Gilpin, 1318; Elliot, 421. f Ibid. ^ Gilpin, 1358, 1359 ; Elliot, 442. i Gilpin, 782 ; Elliot, 150. Gilpin, 1359 ; Elliot, 442. « Gilpin, 811 ; Elliot, 165. 344 THE FEDERAL CONVENTION. b. hi. ; en. ix. matters wliicli he shall lay before them ; but their advice shall not conclude him, nor affect his responsibility." * The report did not satisfy the convention, which, still hopeful and perse- vering, referred the subject to the grand committee of the eleven states. The report of the committee, made on the fourth of Sep- tember, did no more than permit the executive to " require the opinion in writing of the principal officer in each of the executive departments, upon any subject relating to the duties of his office." f "In rejecting a council to the president," such were the final words of Mason, "we are about to try an experiment on which the most despotic government has never ventured ; the Grand Seignior himself has his Divan ; " and he proposed an executive council to be appointed by the legis- lature or by the senate, and to consist of two members from the eastern, two from the middle, and two from the southern states ; with a rotation and duration of office similar to those of the senate. J He was seconded by Franklin, who " thought a council would be a check on a bad president, a relief to a good one." * Wilson " approved of a council, in preference to making the senate a party to appointments." So did Dick- inson and Madison ; but the motion gained only three states ; || and then by a unanimous vote the president was authorized to take written opinions of the heads of departments,"^ who thus became his constitutional advisers. The failure to establish an efficient council led the conven- tion most reluctantly to vest the senate with some control over acts of the executive. On the seventh it was agreed " that the president shall have the power to make treaties by and with the advice and consent of the senate." () " And of the house of representatives," "Wilson would have added ; saying : " As treaties are to have the operation of laws, they ought to have the sanction of laws." But Sherman represented that the ne- cessity of secrecy forbade a reference to both houses, and every state assented except Pennsylvania. J * Gilpin, 1398, 1399 ; Elliot, 4G2. |I Gilpin, 1524 ; Elliot, 526. f Gilpin, 14S8 ; Elliot, 507. ^ Ibid. X Gilpin, 1523 ; Elliot, 525. ^ Gilpin, 1519, Elliot, 523. * Ibid. X Gilpin, 1519 ; Elliot, 523. 1787. THE PRESIDENT. 345 It has already been related that to diminish the temptation to war, the power to declare it was confided to the legislature. In treaties of peace, Madison, fearing in a president a passion for continuing war, proposed to dispense with his concurrence. " The means of carrying on the war," said Gorham, " will not be in the hands of the president, but of the legislature." " No peace," insisted Gouverneur Morris, " ought to be made with- out the concurrence of the president, who is the general guar- dian of the nation." And Maryland, South Carolina, and Georgia alone voted for the amendment.* On the seventh, the advice and consent of the senate was, by a unanimous vote, required for the appointment of ambas- sadors, other public ministers, consuls, and judges of the sti* preme court ; f and for all other officers of the United States by nine states against Pennsylvania and South Carolina. { But eight days later the legislature was authorized to vest the appointment of inferior officers in the president alone, in the courts of law, or in the heads of departments.* All agreed in giving the president power to fill up, tem- porarily, vacancies that might happen during the recess of the senate. || Had the consent of the senate been made necessary to dis- place as well as to appoint, the executive would have suffered degradation ; and the relative importance of the house of rep- resentatives a grave diminution. To change the tenure of office from the good opinion of the president, who is the em- ployer and needs efficient agents in executing the laws, to the favor of the senate, which has no executive powers, would create a new fealty alien to the duties of an officer of the United States. " The three distinct powers, legislative, judicial, and execu- tive," said Ellsworth, as senator, in 1789, explaining the con- stitution which he had done so much to frame, " should be placed in different hands. He shall take care that the laws he faithfully executed^ are sweeping words. The officers should be attentive to the president, to whom the senate is not a coun- * Gilpin, 1521, 1522 ; Elliot, 524, 525. =» Gilpin, 1588, 1589 ; Elliot, 550. t Glipin, 1520 ; Elliot, 528, 524. U Gilpin, 1520; Elliot, 524. X Gilpin, 1520; Elliot, 524. 346 THE FEDERAL CONVENTION. b. m. ; ch. ix. cil. To turn a man out of office is an exercise neither of legislative nor of judicial power. The advice of the senate does not make the appointment ; the president appoints : there are certain restrictions in certain cases, but the restriction is as to the appointment and not as to the removal." ^ One question on the qualifications of the president was among the last to be decided. On the twenty-second of August the committee of detail, fixing the requisite age of the presi- dent at thirty-five, on their own motion and for the first time required that the president should be a citizen of the United States, and should have been an inhabitant of them for twenty- one years. t The idea then arose that no number of years could properly prepare a foreigner for the office of presi- dent ; bat as men of other lands had spilled their blood in the cause of the United States, and had assisted at every stage of the formation of their institutions, the committee of states who were charged with all unfinished business proposed, on the fourth of September, that " no person except a natural-born citizen, or a citizen of the United States at the time of the adoption of this constitution, should be eligible to the office of president," and for the foreign-born proposed a reduction of the requisite years of residence to fourteen. On the seventh of September the modification, with the restriction as to the age of the president, was unanimously adopted. "No majorities of the legislature could force a president to retire before the end of his term ; but he might be impeached by the house of representatives for treason, bribery, or other high crimes and misdemeanors. The tribunal for his arraign- ment was at first the supreme court of the United States ; but they would be few in number ; the president, after condemna- tion, might be further amenable to them ; and besides, they would be of his appointment. Hamilton had suggested a forum composed of the chief justice of each state. :j: Contrary to the opinion of Madison, the English precedent was followed, and the senate was made the court to try all officers liable to impeachment ; and, on conviction by a two thirds vote, to re- move them. As the vice-president, on the president's removal, * MS. report of Ellsworth's speech by William Patcrson. f Gilpin, 1398 ; Elliot, 4G2. X Gilpin, 892, 1158 ; Elliot, 205, 342. 1787. THE PRESIDENT. 347 would succeed to Ms place, the chief justice was directed to preside on the trial of the president. At so late a day as the fourteenth of September, Rutledge and Gouverneur Morris moved that persons impeached be sus- pended from their offices until they be tried and acquitted ; but Madison defeated the proposition by pointing out that this in- termediate suspension would put it in the power of one branch only to vote a temporary removal of the existing magistrate.* Judgment in cases of impeachment could extend only to removal from office and disqualification; but the party re- mained liable to indictment, trial, and punishment, according to law. The trial of all crimes, except in cases of impeach- ment, could be only by jury. * Gilpin, 1572; Elliot, 512. 348 THE FEDERAL CONVENTION. B.ni.;oH.x. CHAPTEE X. the federal judiciaey. August aub September 1787. The resolution on the federal judiciary whicli went from the convention to the committee of detail purposely described the extent of its jurisdiction in vague and general terms. The very able lawyers on that committee, Hutledge, "Wilson, Ran- dolph, and Ellsworth, proceeding with equal boldness and pre- cision, shrinking from aggressions on the rights of the states and yet entertaining efficient and comprehensive designs, brought in a report, which caused little diversity of opinion, and was held to need no essential amendment. But on one point they kept silence. A deeply-seated dread of danger from hasty legislation pervaded the mind of the convention ; and Mason, Madison, and others persistently desired to vest in the supreme court a revisionary power over the acts of congress, with an independent negative, or a negative in conjunction with the executive. Though the measure had been repeatedly brought forward and as often put aside, Madison, on the fif- teenth of August, proposed once more that " Every bill which shall have passed the two houses shall, before it becomes a law, be severally presented to the president of the United States, and to the judges of the supreme court, for the revision of each ; " * the veto of the judges not to be overthrown by less than two thirds, nor, if the president joined them, by less than three fourths of each house. He was seconded by Wilson. Charles Pinckney opposed the interference of the judges in legislation, because it would involve them in the conflict of * Gilpin, 1332 ; Elliot, 428. 1787. THE FEDERAL JUDICIARY. 349 parties and tinge tlieir opinions before tlieir action in court. " The judiciary," said John Francis Mercer of Maryland, " ought to be separate from the legislative and independent of it. I disapprove the doctrine that the judges should, as ex- positors of the constitution, have authority to declare a law void. Laws ought to be well and cautiously made, and then to be uncontrollable." * To the regret of Gouvemeur Morris, the motion of Madison was supported only by Maryland, Dela- ware, and Yirginia. Dickinson was strongly impressed with the objection to the power of the judges to set aside the law. He thought no such power ought to exist, but was at a loss for a substitute. " The justiciary of Aragon," he observed, " be- came by degrees the law-giver." f On the morning of the twentieth Charles Pinckney sub- mitted numerous propositions ; among them was one that " Each branch of the legislature, as well as the supreme execu- tive, shall have authority to require the opinions of the su- preme judicial court upon important questions of law, and upon solemn occasions." J This article, as well as the rest, was referred to the committee of detail, without debate or consid- eration by the house, and was never again heard of. On the twenty-seventh the article on the judiciary reported by the committee of detail was taken up ; and it was agreed that " the judicial power of the United States shall be vested in one supreme court, and such inferior courts as shall, when necessary, from time to time, be constituted by the legislature of the United States." * " The judges of the supreme court, and of the inferior courts, shall hold their offices during good behavior. They shall, at stated times, receive for their services a compensation which shall not be diminished during their continuance in office." || Judges of inferior courts were clothed * with the same independence of the two other branches of the government as the judges of the supreme court. Dickinson thought that the tenure of office was made too absolute; and, following the example of Great Britain and Massachusetts, he desired that the judges should be removable * Gilpin, 1333 ; Elliot, 429. # Gilpin, 1435 ; Elliot, 481. f Gilpin, 1334; Elliot, 429. |! Gilpin, 1437; Elliot, 482. i Gilpin, 1365; Elliot, 445; i., 249. S50 THE FEDERAL CONVENTION. b.iii.;oh.x. by the executive on application of the senate and the house of representatives.'^ " If the supreme court," said Rutledge, " is to judge between the United States and particular states, this alone is an insuperable objection to the motion." The clause gained no vote but that of Connecticut, Massachusetts being absent. In England the highest judicial officer is liable to change with every change of administration, and every one may be removed on the request of a majority in each house of parliament ; every judge of the United States, from the highest to the lowest, is an officer for life, unless on impeachment he should be convicted by the vote of two thirds of the senate. The judicial power was by a motion of Johnson extended to cases in law and equity. He further proposed to extend it " to all cases arising under the constitution ; " and the mo- tion was agreed to without dissent, because in the opinion of the convention the jurisdiction given was constructively limited to cases of a judiciary nature. f In this way Madison's scheme of restraining unconstitu- tional legislation of the states by reserving to the legislature of the union a veto on every act of state legislation was finally abandoned ; and the power of revising and reversing a claase of a state law that conflicted with the federal constitution was confided exclusively to the federal judiciary, but only when a case should be properly brought before the court. The deci- sion of the court in all cases within its jurisdiction is final be- tween the parties to a suit, and must be carried into effect by the proper officers ; but, as an interpretation of the constitu- tion, it does not bind the president or the legislature of the United States. Under the same qualification the constitution gives to the judges the power to compare any act of congress with the constitution. But the supreme bench can set aside in an act of congress or of a state only that which is at variance with the constitution ; if it be merely one clause, or even but one word, they can overrule that word or that clause, and no more. The whole law can never be set aside unless every part of it is tainted with unconstitutionality. :j: Kutledge next observed that the jurisdiction of the court * Gilpin, 1436 ; Elliot, 431. f Gilpin, 1438, 1439 ; Elliot, 483. :{: Curtis in Howard, xix., 623. 1787. THE FEDERAL JUDICIARY. 351 should extend to treaties made, or to be made, Tinder the authority of the United States ; and this proposal was readily adopted.* The proposition that the courts should conduct the trial of impeachments was put aside, and that duty was afterward as- signed to the senate. Two clauses in the report of the commit- tee of detail, which, after a precedent in the confederacy, con- fided to the senate the settlement of all controversies between two or more states respecting jurisdiction or territory, and all controversies concerning grants of the same lands by two or more states, were in the course of the discussion removed from the senate and made over to the federal courts. In constructing the judiciary, extreme care was taken to keep out of the United States courts all questions which re- lated to matters that began and ended within a separate com- monwealth. This intention is stamped alike on the federal proposals of Virginia, of New Jersey, and of Connecticut ; it was carefully respected in those clauses which limit the action of the individual states. The original jurisdiction of the supreme court embraces only cases affecting ambassadors, other public ministers and consuls. Cases in which a state should be a party were added for the single purpose of authorizing a state as plaintiff to seek justice in a federal court ; it was as little intended to per- mit individuals to bring a state there as defendant as to arraign an ambassador. The appellate power included cases of admi- ralty and maritime jurisdiction. In these three classes the juris- diction of the court, original in two of them, appellate in the third, is in imperative language extended " to all cases." But as " to controversies to which the United States shall be a party ; to controversies between two or more states ; between a state and citizens of another state ; between citizens of different states ; between citizens of the same state claiming lands under grants of different states, and between a state or the citizens thereof and foreign states, citizens or subjects," the judicial power is limited. The section implies that only a part of the controversies in each of the enumerated classes may come un- der the jurisdiction of the federal courts ; and it was left to * Gilpin, 14S9 ; Elliot, 483. • 352 THE FEDEEAL COKVENTION". b.iii.;ch.x. the federal legislature to make the discrimination which in its judgment public policy might dictate.'^ Here congress, and congress alone, selects the controversies to which the appellate judicial power may extend, and at its own judgment limits the right of appeal. The convention purposely made it the duty of congress to watch over the development of the system, and restrict accordingly the appellate jurisdiction. Bj reserving to the tribunals of the states jurisdiction over cases that may properly belong to them, it may rescue the federal court from the danger of losing its efficiency beneath larger masses of business than it can dispose of. The method of choosing the federal judiciary was settled without strife. The motion for its appointment by the execu- tive, with the advice and consent of the senate, when first pro- posed, gained an equal vote ; and on the seventh of September was agreed to without a division.f /S The supreme court was to be the " bulwark of a limited constitution against legislative encroachments." J A bench of a few, selected with care by the president and senate from the nation, seemed a safer tribunal than a multitudinous assembly elected for a short period under the sway of passing currents of thought, or the intrepid fixedness of an uncompromising party. There always remains danger of erroneous judgments, arising from mistakes, imperfect investigation, the bias of previous connections, the seductions of ambition, or the instigations of surrounding opinions ; and a court from which there is no ap- peal is apt to forget circumspection in its sense of security. The passage of a judge from the bar to the bench does not nec- essarily divest him of prejudices ; nor chill his relations to the particular political party to which he may owe his advance- ment ; nor blot out of his memory the great interests which he may have professionally piloted through doubtful straits ; nor quiet the ambition which he is not required to renounce, even though his appointment is for life; nor cure predilections which sometimes have their seat in his own inmost nature. But the constitution retains the means of protecting itseK against the errors of partial or interested judgments. In the * Story in Curtis, iii., 669 ; Ellsworth in Curtis, i., 243. f Gilpin, 1520; Elliot, 524. X Federalist, ksYiii. 1787. THE FEDEPwAL JUDICIARY. 353 first place, the force of a judicial opinion of tlie supreme court, in so far as it is irreversible, reaches only the particular case in dispute; and to this society submits, in order to escape from anarchy in the daily routine of business. To the decision on an underlying question of constitutional law no such finality attaches. To endure, it must be right. If it is right, it will approve itself to the universal sense of the impartial. A judge who can justly lay claim to integrity will never lay claim to in- fallibility ; but with indefatigable research will add, retract, and correct whenever more mature consideration shows the need of it.* The court is itself inferior and subordinate to the constitution ; it has only a delegated authority, and every opin- ion contrary to the tenor of its commission is void, except as settling the case on trial. The prior act of the superior must be preferred to the subsequent act of an inferior ; otherwise it might transform the limited into an unlimited constitution. When laws clash, the latest law is rightly held to express the corrected will of the legislature ; but the constitution is the fundamental code, the law of laws ; and where there is a con- flict between the constitution and a decision of the court, the original permanent act of the superior outweighs the later act of the inferior, and retains its own supreme energy unaltered and unalterable except in the manner prescribed by the consti- tution itseK. To say that a court, having discovered an error, should yet cling to it because it has once been delivered as its opinion, is to invest caprice with inviolability and make a wrong judgment of a servant outweigh the constitution to which he has sworn obedience. An act of the legislature at variance with the constitution is pronounced void; an opin- ion of the supreme court at variance with the constitution is equally so. ^^--^Next to the court itself, the men who framed the constitu- tion relied upon the power and the readiness of congress to punish through impeachment the substitution of the personal will of the judge for the law. A third influence may rise up " as the rightful interpreter of this great charter " of American rights and American power in " the good sense " f of the land, wiser than the judges alone, * Wilson's Works, i., 29. j Cooley's Constitutional Law, 224 ; Curtis, iv., 390. VOL. VI. — 23 354: THE FEDERAL CONVENTION b. hi. ; oh. x. because it includes within itself the wisdom of the judges them- selves ; and this may lead either to the better instruction of the court, or to an amendment of the constitution by the collective mind of the country. The consolidation of the union was to be made visible to the nation and the world by the establishment of a seat of gov- ernment for the United States under their exclusive jurisdic- tion ; and like authority was to be exercised over all places pur- chased for forts, dock-yards, and other needful buildings.* It was not doubted that the government of the union should de- fend each state against foreign enemies and concurrently against domestic violence ; and should guarantee to every one of the states the form of a republic, f Sherman hesitated about granting power to establish uni- form laws on the subject of bankruptcies, lest they might be made punishable even with death. " This," said Goavemeur Morris, " is an extensive and delicate subject. I see no danger of abuse of the power by the legislature of the United States." J On the question the clause was agreed to, Connecticut alone being in the negative. So soon as it was agreed that the states should have an equal representation in the senate, the small states ceased to be jealous of its influence on money bills ; finally, on the eighth of September, it was settled that, while all bills for raising revenue should originate in the house of representatives, the senate might propose or concur with amendments as on other bills.* On the same day, just before the adjournment, Williamson strove to increase the number of the first house of representa- tives ; and was seconded by Madison. Hamilton spoke with earnestness and anxiety for the motion. " I am," said he, " a friend to a vigorous government ; at the same time I hold it essential that the popular branch of the government should rest on a broad foundation. The house of representatives is on so narrow a scale as to warrant a jealousy in the people for their * Gilpin, 740, 1218, 1295, 1612; Elliot, 130, 374, 409, 561. f Gilpin, 734, 861, 1141, 1241,1621 ; Elliot, 128, 190, 333, 381, 564. i Gilpin, 1481 ; Elliot, 504. * GUpin, 1494, 1530, 1531 ; Elliot, 510, 529 ; Elliot, i., 285, 294, 295. 1787. THE FEDERAL JUDICIARY. 355 liberties. The connection between the president and the senate will tend to perpetuate him by corrupt influence; on this account a numerous representation in the other branch of the legislature should be estabhshed." The motion was lost by one majority ; Pennsylvania and the four states nearest her on the south being outvoted by ISTew Jersey and the JSTew England states at one extreme, and South CaroHna and Georgia at the other.* It remained to mark out the way in which the new consti- tution should be ratified. The convention had shown a dis- inchnation to ask for it the approbation of congress. Hamilton saw in the omission an indecorum, and made the rash motion that congress, if they should agree to the constitution, should transmit it for ratification to the legislatures of the several states. Gerry seconded him.f Wilson strongly disapproved " the suspending the plan of the convention on the approbation of congress." He declared it worse than folly to rely on the concurrence of the Hhode Island members of congress. Mary- land had voted, on the floor of the convention, for requiring the unanimous assent of the thirteen states to the change in the federal system ; for a long time New York had not been rep- resented ; deputies from other states had spoken against the plan. " Can it then be safe to make the assent of congress necessary ? We are ourselves, at the close, throwing insuper- able obstacles in the way of its success." J Clymer thought the proposed mode would fetter and embarrass congress ; and King and Eutledge concurring with him, Hamilton's motion was supported only by Connecticut.* It was then voted, in the words of the report of the committee of detail : " This con- stitution shall be laid before the United States in congress assembled ; and it is the opinion of this convention that it should be afterward submitted to a convention chosen in each state, under the recommendation of its legislature, in order to receive the ratiflcation of such convention." In substance this method was never changed ; in form it was removed from the constitu- tion and imbodied in a directory resolution. | * Gilpin, 1533; Elliot, 530. f Gilpin, 1539; Elliot, 533. X Gilpin, 1540 ; Elliot,- 534. # Gilpin, 1541 ; Elliot, 534. II Art. xxii. of draft of the constitution submitted to the committee of revi- sion, September 10th. Gilpin, 1570 ; Elliot, 541. 356 THE FEDEEAL CONVENTION b. iii. ; ch. x. Eandolpli now began to speak of the constitution as a plan wliicli would end in tyranny ; and proposed tliat the state con- ventions, on receiving it, should have power to adopt, reject, or amend it ; after which another general convention should meet with full power to adopt or reject the proposed altera- tions, and to establish finally the government. Frankhn sec- onded the motion.* Out of respect to its authors, the pro- position was allowed to remain on the table ; but by a unani- mous vote it was ordered that the constitution should be established on its ratification by the conventions of nine states.f Finally, a committee of five was appointed to revise its style and the arrangement of its articles. * Gilpin, 1542; Elliot, 535. f Gilpin, 1571 ; Elliot, 541. 1787. THE LAST DAYS OF THE CONVENTION. 357 CHAPTEE XL the last days of the conventiolsr. September 12 to September 17, 1787. The committee to whom tlie constitution was referred for tlie arrangement of its articles and the revision of its style were Johnson, Hamilton, Gouverneur Morris, Madison, and King. The final draft of the instrument was written by Gou- verneur Morris,* who laiew how to reject redundant and equiv- ocal expressions, and to use language with clearness and vigor ; but the convention itself had given so minute, long-continued, and oft-renewed attention to every phrase in every section, that there scarcely remained room for improvement except in the distribution of its parts. Its first words are : " We the people of the United States, in order to form a more perfect union, to establish justice, en- sure domestic tranquillity, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this con- stitution for the United States of America." Here is no tran- sient compact between parties : it is the institution of govern- ment by an act of the highest sovereignty ; the decree of many who are yet one ; their law of laws, inviolably supreme, and not to be changed except in the way which their forecast has provided. The names of the thirteen states, so carefully enumerated in the declaration of independence and in the treaty of peace, were omitted, because the constitution was to go into effect on its acceptance by nine of them, and the states by which it would * G. Morris to T. Pickering, 22 December 1814, in Life by Sparks, iii., 323. 358 THE FEDERAL COITVENTIOK b. m. ; en. xi. be ratified could not be foreknown. Tlie deputies in the con- vention, representing but eleven states, did not pretend to be " the people ; " and could not institute a general government in its name. The instrument which they framed was like the report of a bill beginning with the words " it is enacted," though the binding enactment awaits the will of the legislature; or Kke a deed drawn up by an attorney for several parties, and awaiting its execution by the principals themselves. Only by its acceptance could the words " vf e the people of the United States " become words of truth and power. The phrase "general weKare," * adopted from the articles of confederation, though seemingly vague, was employed in a rigidly restrictive sense to signify " the concerns of the union at large, not the particular policy of any state." f The word "national" was excluded from the constitution, because it might seem to present the idea of the union of the people with- out at the same time bringing into view that the one republic was formed out of many states. Toward foreign powers the country presented itseK as one nation. The arrangement of the articles and sections is faultless ; the style of the whole is nearly so. The branches of the legis- lature are definitively named senate and house of represen- tatives, the senate, at last, having precedence ; the two together take the historic name of congress. The veto of the president could still be overmled only by three fourths of each branch of congress ; the majority of the convention, fearing lest so large a requisition would impose too great a difficulty in repeahng bad laws, J at this last mo- ment substituted the vote of two thirds. "Williamson pointed out the necessity of providing for juries in civil cases. " It is not possible," said Gorham, " to discriminate equity cases from those in which juries would be proper; and the matter may safely be trusted to the repre- sentatives of the people." * Gerry urged the necessity of juries as a safeguard against corrupt judges. " A general principle laid down on this and some other points would be sufficient," * Gilpin, 1543; Elliot, 558. \ Washington to William Gordon, 8 July 1183. i Gilpin, 1563 ; Elliot, 537. * Gilpin, 15G5 ; Elliot, 538. 1787. THE LAST DAYS OF THE CONYEI^TIOISr. 359 said Mason, and he joined with Gerry in moving for a bill of rights. The declaration of American independence, by the truths which it announced, called forth sympathy in all parts of the world. Could the constitution of the United States have been accompanied by a like solemn declaration of the principles on which it rested, the states would have been held together by the holiest and strongest bonds.* But the motion was lost by the unanimous vote of ten states, Massachusetts being ab- sent, and Ehode Island and 'New York not represented. The style of the executive, as silently carried forward from the committee of detail, was still " his Excellency ; " this van- ished in the committee of revision, so that he might be known only as the president of the United States. Following a precedent of the first congress. Mason, on the thirteenth, seconded by Johnson, moved for a committee to report articles of association for encouraging economy, fru- gality, and American manufactures. f It was adopted without debate and without opposition. The proposal was referred to Mason, Franklin, Dickinson, Johnson, and William Living- ston ; but they made no report. From the work of the committee of detail the word " ser- vitude " survived as applied to the engagement to labor for a term of years ; on the motion of Randolph the word " service " * Here manuscripts and printed texts differ in an astonishing manner. Text of Madison in Elliot^ «., 306. It was moved and seconded to appoint a committee to prepare a bill of rights ; which passed unanimously in the negative. Manuscript of Madison. On the question for a committee to prepare a bill of rights — N. H. no, Mas. abst., Ct. no, N. J. no, Pa. no, Del. no, Md. no, Ya. no, N. C. no, S. C. no, Geo. no. Text of Madison in Gilpin^ 1566; in Elliot, 538. On the question for a committee to prepare a bill of rights — New Hampshire, Connecticut, New Jersey, Pennsylvania, Delaware, aye — 5 ; Maryland, Virginia, North Carolina, South Carolina, Georgia, no — 5 ; Massachu- setts, absent. The manuscript of Madison, which is plainly written, represents the motion as negatived unanimously ; the printed edition, as lost by a purely geographical division. The change remains as yet a mystery. f Gilpin, 1568 ; Elliot, 540. 360 THE FEDERAL CONVENTION. b. hi. ; ch. xi. was iinanimously substituted for it, servitude being tliougbt to express the condition of slaves, service an obligation of free persons."^ On tlie same day Jolinson, from the committee on style, reported t resolutions for the ratification of the constitution through congress by conventions of the people of the several states ; and then for the election of senators, representatives, and electors, and through them of president. I^Tothing was omitted to make it certain that at a fixed time and place the government under the constitution would start into being. On the fourteenth it was confirmed without dissent that congress should have no right to change the places of the elec- tion of senators. The appointment of the treasurer as the keeper of the purse had thus far been jealously reserved to the two houses of congress. J It marks the confidence of the convention in its own work, that at this period the selection of that officer was confided to the president and senate. On the same day Franklin, seconded by Wilson, moved to add, after the authority to establish post-offices and post-roads, a power " to provide for cutting canals." * " The expense," ob- jected Sherman, " will fall on the United States, and the bene- fit accrue to the places where the canals are cut." ".Canals," replied \Yilson, "instead of being an expense to the United States, may be made a source of revenue." Madison, sup- ported by Randolph, suggested an enlargement of the motion into a warrant to grant charters of incorporation which might exceed the legislative provisions of individual states, and yet be required by the interest of the United States; political obstacles to an easy communication between the states being removed, a removal of natural ones ought to follow. The necessity of the power was denied by King. " It is necessa- ry," answered "Wilson, " to prevent a state from obstructing the general welfare." " The states," rejoined King, " will be di- vided into parties to grant charters of incorporation, in Phila- delphia and New York to a bank, in other places to mercantile * Gilpin, 1233, 1544, 15G9 ; Elliot, 3T9, 540, 559. f Gilpin, 1570, 1571 ; Elliot, 541. X Gilpin, 15'74; Elliot, 542. « Gilpin, 1576 ; Elliot, 543. 1787. THE LAST DAYS OF THE CONVENTION". 361 monopolies." Wilson mentioned the importance of facilitat- ing by canals the communication with the western settlements. The motion, even when limited to the case of canals, gained no votes but those of Pennsylvania, Yirginia, and Georgia.'^"" Madison and Charles Pinckney asked for congress permis- sion to establish a university in which no preferences should be allowed on account of religion. " The exclusive power of congress at the seat of government will reach the object," said Gouverneur Morris. The motion was sustained only by Penn- sylvania, Yirginia, and ]S"orth and South Carolina ; in Connec- ticut, Johnson divided against Sherman. f In framing the constitution, Madison kept in mind that the functions of the general government should extend to the prevention of " trespasses of the states on the rights of each other." :j: " The rights of individuals," he said in the conven- tion, " are infringed by many of the state laws, such as issuing paper money, and instituting a mode to discharge debts diifer- ing from the form of the contract." ^ It has already been told how the delegates from Connecticut had agreed among themselves, " that the legislatures of the individual states ought not to possess a right to make any laws for the discharge of contracts in any manner different from the agreement of the parties." || Stringent clauses in the constitution already pro- hibited paper money. For the rest. King, as we have seen, proposed a clause forbidding the states to interfere in private contracts; but the motion had been condemned as reaching too far ; and instead of it, at the instance of Rutledge, the con- vention denied to the states the power " to pass bills of attain- der or fa?j9(952^y«cz'(? laws." "^ In this manner it was supposed that laws for closing the courts, or authorizing the debtor to pay his debts by more convenient instalments than he had covenanted for, were effectually prohibited. But Dickinson, as we have seen, after consulting Blackstone, mentioned to the house that the term ex post facto related to criminal * Gilpin, 1576, 1577; Elliot, 544. f Gilpin, 1577, 157S ; Elliot, 544. :}: Madison, i., 321. # Yates's Minutes, Elliot, i., 424, 425. Compare Gilpin, 898 ; Elliot, 20a II Sherman by J. Evarts in Biography of the Signers, ii., 43. ^Elliot, i., 271. 362 THE FEDERAL CO:&TYENTIOK b. iii. ; oh. xi. cases only; and that restraint of the states from retrospec- tive law in civil cases would require some further provision.* Before an explanatory provision had been made, the section came into the liands of the committee on revision and style. That committee had no authority to bring forward any new proposition, but only to make corrections of style. Gouver- neur Morris retained the clause forbidding ex post facto laws; and, resolute not " to countenance the issue of paper money and the consequent violation of contracts," f he of himself added the words : " Ko state shall pass laws altering or impairing the obligation of contracts." The convention reduced the explan- atory words to the shorter form : " No state shall pass any law impairing the obligation of contracts." J In this manner an end was designed to be made to barren land laws, laws for the instalment of debts, and laws closing the courts against suitors. On the fifteenth, from fresh information, it appeared to Sherman that !N"orth Carolina was entitled to another represen- tative ; and Langdon moved to allow one more member to that state, and likewise one more to Rhode Island.* " If Rhode Island is to be allowed two members," said King, " I can never sign the constitution." Charles Pinckney urged separately the just claim of l!Torth Carolina ; on which Bedford put in a like claim for Rhode Island and for Delaware; and the original proposition was hopelessly defeated. || Randolph and Madison disliked leaving the pardon for treason to the president alone ; but the convention would not suffer the legislature or the senate to share that power. ''^ The committee of revision had described a fugitive slave as " a person legally held to service or labor in one state." The language seemed to imply that slavery was a " legal " condition ; the last word of the convention relating to the subject defined the fugitive slave to be " a person held to service or labor in one state under the laws thereof," making it clear that, in the meaning of the constitution, slavery was local and not federal.^ * Gilpin, 1450 ; Elliot, 488. * Gilpin, 1583 ; Elliot, 547. f G. Morris by Sparks, iii., 323. |i Gilpin, 1583, 1584 ; Elliot, 64'7. i Gilpin, 1552, 1581 ; Elliot, 546, 561. ^ Gilpin, 1587 ; Elliot, 549. ^ Gilpin, 1558, 1589, 1620; Elliot, 650, 564. 1787. THE LAST DAYS OF THE CONVENTION. 363 The convention gave tlie last touches to the modes of amending the constitution. In August the committee of detail had reported that, " on the application of the legislatures of two thirds of the states in the union, the legislature of the United States shall call a convention for that purpose." * On the thirtieth day of August, Gouverneur Morris had suggested that congress " should be at liberty to call a convention when- ever it pleased." f "An easier mode of introducing amend- ments," said Hamilton, reviving the question, "is desirable. The state legislatures will not apply for alterations but with a view to increase their own powers. The national legislature will be the first to perceive the necessity of amendments ; and on the concurrence of each branch ought to be empowered to call a convention, reserving the final decision to the people." J Madison supported Hamilton. Here Sherman suggested an alternative: the legislature may propose amendments directly to the several states, not to be binding until consented to by them all.* " To be binding when consented to by two thirds of the several states," inter- posed Wilson. To facilitate amendments, the convention au- thorized two thirds of congress to introduce amendments to the constitution ; but, to prevent hasty changes, required for their ratification the assent of three fourths of the legislatures or conventions of the states. Madison, summing up the ideas that had found favor, moved that the legislature of the United States, upon a vote of two thirds of both houses, or upon the application of two thirds of the legislatures of the states, shall propose amend- ments to the constitution which shall be valid when they shall have been ratified by three fourths at least of the several states in their legislatures or conventions, as one or the other mode of ratification may be proposed by the legislature of the United States. II This motion was accepted, but not till it had been agreed that the clauses in the constitution forming special covenants with the South on slavery should not be liable to change. * Gilpin, 1241 ; Elliot, 381. « Gilpin, 1535 ; Elliot, 631. f Gilpin, 1468 ; Elliot, 498. | Ibid. X Gilpin, 1534; Elliot, £31. 364: THE FEDEEAL CONVENTION". b. hi. ; ch. xi. Five days later the fears of tlie small states were quieted by a proviso that no state mthoiit its own consent should ever be deprived of its equality in the senate.* Finally, on maturest reflection, the proposition of the com- mittee of detail, obliging congress to call a convention on ap- plication of two thirds of the states, was restored. Amend- ments to the constitution might proceed from the people as represented in the legislatures of the states ; or from the peo- ple as represented in congress ; or from the people as present in a convention ; in every case to be valid only with the assent of three fourths of the states. Mason, in sullen discontent at the grant of power to a bare majority of congress to pass navigation acts, and dreading that " a few rich merchants in Philadelphia, j^ew York, and Bos- ton" might by that means monopolize the staples of the south- ern states and reduce their value perhaps fifty per cent, moved " that no law in the nature of a navigation act be passed before the year eighteen hundred and eight, without the consent of two thirds of each branch of the legislature ; " but he was sup- ported only by Maryland, Virginia, and Georgia. f ISText, Randolph, whose weight as governor of Yirginia might turn the scale in that state, declared his intention to withhold his signature from the constitution that he miglit re- tain freedom as to his ultimate action ; and, agreeing exactly with Ricliard Henry Lee, :[ he moved " that state conventions might have the power to offer to the constitution which was to be laid before them as many amendments as they pleased ; and that these amendments, together with the constitution, should be submitted to another general convention " * for a final de- cision. He was seconded by Mason, who said : " The govern- ment as established by the constitution will surely end either in monarchy or a tyrannical aristocracy. As it now stands, I can neither give it my support in Yirginia, nor sign it here. With the expedient of another convention I could sign." || " I, too," said Charles Pinckney, " object to the power of a majority of congress over commerce ; but, apprehending the * Gilpin, 1592 ; Elliot, 552. | Gilpin, 1593 ; Elliot, 552. t Compare R. II. Lee to Chancellor Pendleton, 22 May 1783, in Life, ii., 93, 94. * Gilpin, 1593 ; Elliot, 552. || Gilpin, 1591 ; Elliot, 552, 553. 1787. THE LAST DAYS OF THE CONVENTION". 365 danger of a general confusion and an ultimate decision by the sword, I shall give the ])lan my support." Then Gerry counted up eight objections to the constitution, " all " of which he could yet get over, were it not that the legislature had general power to make " necessary and proper " laws, to raise " armies and money " without limit, and to establish " a star chamber as to civil cases ; " and he, too, contended for a second general convention. On the proposition for another convention all the states answered " ISTo." Washington then put the question of agree- ing to the constitution in its present form ; and all the states present answered " Aye." The constitution was then ordered to be engrossed, and late on the evening of Saturday the house adjourned.* One morning Washington, in a desultory conversation with members of the convention before the chair was taken, observed how unhappy it would be should any of them oppose the sys- tem when they returned to their states.f On Monday, the seventeenth of September, Franklin made a last effort to win over the dissenting members. " Mr. President," said he, " sev- eral parts of this constitution I do not at present approve, but I am not sure I shall never approve them. It astonishes me to find this system approaching so near to perfection. I consent to this constitution because I e:q)ect no better, and because I am not sure that it is not the best. The opinions I have had of its errors I sacrifice to the public good. " On the whole, sir, I cannot help expressing a wish that every member of the convention, who may still have objections to it, would with me on this occasion doubt a little of his own infallibility, and, to manifest our unanimity, put his name to this instrument." J He then moved that the constitution be signed by the members ; and he offered as the form of signa- ture a simple testimony that the constitution had received " the unanimous consent of the states present." * But this ample concession induced neither Mason, nor Gerry, nor Eandolph to relent. * Gilpin, 1595; Elliot, 553. •f Luther Martin in Maiyland Journal of 21 March 1788. X Gilpin, 1597, 1598; Elliot, 554, 555. ^Gilpin, 1598; Elliot, 555. 366 THE FEDERAL CONYENTIOK b. iii. ; oh. xi. Before the question was put, Gorham, obeying an intima- tion from Washington, proposed to render the house of repre- sentatives a more popular body by allowing one member for every thirty thousand inhabitants. He was warmly seconded by King and Carroll.* Hising to put the question, the president, after an apology for offering his sentiments, said : " I would make objections to the plan as few as possible. The smallness of the number of representatives has been considered by many members as in- sufficient security for the rights and interests of the people ; and to myseK has always appeared exceptionable ; late as is the moment, it will give me much satisfaction to see the amend- ment adopted." f And at his word it was adopted unani- mously. On the question to agree to the engrossed constitution, all the states answered " Aye." J Kandolph then apologized for refusing to sign the constitu- tion, "notwithstanding the vast majority and the venerable names which gave sanction to its wisdom and its worth. I do not mean by this refusal," he continued, " to decide that I shall oppose the constitution without doors ; I mean only to keep myself free to be governed by my duty, as it shall be prescribed by my future judgment." * " I, too, had objections," said Gouverneur Morris ; " but con- sidering the present plan the best that can be attained, I shall take it with all its faults. The moment it goes forth, the great question will be : ' Shall there be a national government, or a general anarchy ? ' " " I am anxious," said Hamilton, "that every member should sign. A few by refusing may do infinite mischief. No man's ideas are more remote from the plan than my own are known to be; but is it possible to deliberate between anarchy and convulsion on the one side, and the chance of good to be ex- pected from the plan on the other ? " || " I," said Gerry, " fear a civil war. In Massachusetts there are two parties : one devoted to democracy, the worst, I think, of all political evils ; the other as violent in the opposite ex- * Gilpin, 1599 ; Elliot, 555. f Gilpin, 1599, 1600; Elliot, 556, 566. X Gilpin, 1600 ; Elliot, 556. # Ibid. || Gilpin, 1601 ; Elliot, 556. 1787. THE LAST DAYS OF THE COITYENTION. 367 treme. From tlie collision of these, confusion is greatlj to be feared." " I shall sign the constitution with a view to support it with all my influence," said Cotesworth Pinclmey, " and I wish to pledge myself accordingly." ^ Jared IngersoU of Pennsyl- vania considered the signing as a recommendation of what, all things considered, was the most eligible. The form proposed by Franklin was accepted with no dis- sent, except that South Carolina was impatient at its want of an affirmative expression of unhesitating approval. The jour- nals and papers of the convention were confided to the care of the president, subject to the order of the new government when it should be formed. f Hamilton successively inscribed on the great sheet of parchment the name of each state as the dele- gations one after the other came forward in geographical order and signed the constitution. When it appeared that the unani- mous consent of all the eleven states present in convention was recorded in its favor, Franklin, looking toward a sun which was blazoned on the president's chair, said of it to those near him: "In the vicissitudes of hope and fear I was not able to tell whether it was rising or setting ; now I know that it is the rising sun." J The members were awe-struck at the result of their coun-'. cils ; the constitution was a nobler work than any one of them/ had believed it possible to devise. They all on that day dined together, and took a cordial leave of each other. "Washington at an early hour of the evening retired " to meditate on the momentous work which had been executed." * * Gilpin, 1603, 1604 ; Elliot, 557, 558. t Gilpin, 1624 ; Elliot, 565. f Gilpin, 1605 ; Elliot, 558. * Diarj of Washington for the day. THE FOMATIOX OF THE CONSTITUTION UNITED STATES OF AMEEIOA /iVr FIVE BOOKS. BOOK FOURTH. THE PEOPLE OF THE STATES IN" JUDGMENT ON THE CO:t^STITUTION'. 1787-1^ VOL. VI. — 24 CHAPTER I. the constitution in congress and in vieginia. Septe:mbek to Novei^iber 1787. On the twentieth of September the letter of the president of the convention to the president of congress, the full text of the proposed constitution, and the order of the convention, were laid before congress, and on the next day appeared in tlie daily papers of 'New York. The letter of Washington said : The powers necessary to be vested in " the general government of the union " are too extensive to be delegated to " one body of men." '' It is im- practicable, in the federal government of these states, to secure all rights of independent sovereignty to each, and yet provide for the interest and safety of all ; it is difficult to draw with precision the line between those rights which must be sur- rendered and those which may be reserved ; on the present occasion this difficulty was increased by a difference among the several states as to their situation, extent, habits, and par- ticular interests. We kept steadily in view the consolida- tion of our union, in which is involved our prosperity, felicity, safety, perhaps our national existence. And thus the consti- tution which we now present is the result of that mutual def- erence and concession which the peculiarity of our political situation rendered indispensable." The constitution instantly met with opposition from the in- defatigable Richard Henry Lee,* supported by Nathan Dane f and all the delegates from ISTew York, of whom Melancthon * Carrington to Madison, Sunday, 23 September IVSY. f Gilpin^ 643, 650; Elliot, 506, 568. 372 THE STATES RATIFY THE CONSTITUTION", b. iv.;oh.i. Smith, was the ablest. Till Madison returned, the delegates from Yirginia were equally divided, Grayson opposing the government because it was too feeble, and Lee because it was too strong.* Already the JS'ew York faction was actively scattering the seeds of opposition, and Hamilton dauntlessly opposing them in the public papers by arguments for union, f It was only out of the ashes of the confederation that the new constitution could spring into being ; and the letter of the convention did indeed invite congress to light its own funeral pyre. On the twenty-sixth it was first contended that con- gress could not properly give any positive countenance to a measure subversive of the confederation to which they owed their existence. To this it was answered, that in February congress itself had recommended the convention as " the most probable means of establishing a firm national government," and that it was not now more restrained from acceding to the new plan than the convention from proposing it. If the plan was within the powers of the convention, it was within those of congress ; if beyond those powers, the necessity which justified the one would justify the other ; and the necessity existed if any faith was due to the representations of congress them- selves, confirmed by twelve states in the union and by the gen- eral voice of the people. Lee next attempted to amend the act of the convention be- fore it should go forth from congress to the people. " Where," said he, " is the contract between the nation and the govern- ment? The constitution makes mention only of those who govern, and nowhere speaks of the rights ^of the people who are governed." :j: He wished to qualify the immense power of the government by a bill of rights, which had always been re- garded as the palladium of a free people. The bill of rights was to relate to the rights of conscience, the freedom of the press, the trial by jury in civil cases as well as criminal, tlie prohibition of standing armies, freedom of elections, the inde- pendence of the judges, security against excessive bails, fines, or punishments, against unreasonable searches or seizure of * Carrington to Jefferson, 23 October 1787. •f Carrington to Madison, 23 September 1787. X Minister Otto to Count Montmorin, New York, 23 October 1787. 1787. THE CONSTITUTION IN CONGRESS. 373 persons, houses, papers, or property ; and tlie right of petition. He further proposed amendments to the constitution ; a coun- cil of state or privy council, to be joined with the president in the appointment of all officers, so as to prevent the blending of legislative and executive powers ; no vice-president ; an in- crease of the number of the representatives ; and the requisi- tion of more than a majority to make commercial regulations. The restraint on the power of regulating commerce and navigation would have been fatal to the wealth and prosperity of 'New York. J^evertheless, the propositions of Lee were supported by Melancthon Smith, who insisted that congress had the undoubted right and the duty to amend the plan of the federal constitution, in which the essential safeguards of liberty had been omitted. To this it was replied that congress had certainly a right of its own to propose amendments, but that these must be addressed to the legislatures of the states, and would require ratification by all the thirteen ; but that the act of the federal convention was to be addressed to conven- tions of the several states, of which any nine might adopt it for themselves. So the first day's debate ended without ad- mitting the proposed amendments to consideration.* The next day Lee, seconded by Smith, offered a resolution that congress had no power whatever to assist f in creating a " new confederacy of nine " states ; and therefore he would do no more than, as a mark of respect, forward the acts of the convention to the executives of every state to be laid before their respective legislatures. On the instant Abraham Clarke of New Jersey, seconded by Nathaniel Mitchell of Delaware, proposed to add : " In order to be by them submitted to con- ventions of delegates to be chosen agreeably to the said resolu- tions of the convention." On the question, Georgia and the two Carolinas voted unanimously against Lee ; so did Dela- ware and the only member from Maryland, with Pennsylvania, New Jersey, Connecticut, Massachusetts, New Hampshire. Virginia, on the return of Madison, joined them by the in- flexible majority of Madison, Carrington, and Henry Lee, * Madison to Washington, New York, 30 September 1787 ; R. H. Lee to Sam- uel Adams, New York, 5 October 1787 ; Life of R. H. Lee, ii., 74, 76. f Gilpin, 643 ; Elliot, 566. 371 THE STATES RATIFY THE C0:N'STITUTI0N. B.iv.;cn.i. against Grajson and Eichard Henry Lee. All the states ex- cept 'New York were for tlie motion; and all except New York and Yirginia were unanimously so. The majority in congress was impatient to express its approval of the acts of the convention in still stronger language ; Carrington of Yir- ginia, therefore, seconded by Bingham of Pennsylvania, pro- posed that it be recommended to the legislatures of the several states to cause conventions to be held as speedily as may be, to the end that the same may be adopted, ratified, and confirmed.* In this stage of the business congress adjourned. The friends of the new constitution desired to send it to the states by the unanimous vote of congress. The members from New York would not consent to any language that implied approval. To win their vote the resolution of congress must be neutral. On the other hand, the idea of unanimity required the efiiace- ment of every motion adverse to the reference of the consti- tution. Accordingly, congress, when it next assembled, ex- punged from its journal the proposed amendments of Richard Henry Lee, and the vote of the preceding day ; f and having obliterated every record of opposition, it resolved on the twenty-eighth unanimously, eleven states being present, Mary- land having one delegate, Rhode Island alone being altogether unrepresented, that the said report, with the resolutions and letter accompanying the same, be transmitted to the several legislatures, in order to be submitted to a convention of dele- gates chosen in each state by the people thereof, in conformity to the resolves of the convention. :j; Bafiled within the convention, Richard Henry Lee appealed to the world through the press in a series of " Letters from the Federal Farmer," of which thousands of copies were scattered through the central states. He acknowledged the necessity of reforming the government, but claimed to discern a strong ten- dency to aristocracy in every part of the proposed constitution, which he slighted as the work of visionary young men,* bent on changing the thirteen distinct independent republics under a federal head into one consolidated government."^ He way- * MS. Journals of Congress in S;;ate Department. f MS. Journals of Congress. * Letters from tlie Federal Farmer, 8. :}: Journals of Congress, iv., '782. ^ Letters from the Federal Farmer, 6. nsr. THE CONSTITUTION IN VIRGINIA. 375 laid Gerry when bound for home, and assisted him in prepar- ing an official letter to explain his refusal to sign the constitu- tion, lie addressed himself to Samuel Adams, the "dear friend with whom he had long toiled in the vineyard of lib- erty," submitting to his wisdom and patriotism the objections to the new constitution which he had proposed in congress in the form of amendments, but disingenuously substituting other words for his remonstrance against vesting congress with power to regulate commerce. He extended his intrigues to Pennsylvania and Delaware, hoping to delay their decisions. " I am waiting wdth anxiety for the echo from Virginia, but with very faint hopes of its corresponding with my wishes," wrote Madison from N^ew York city to Washington.* The party in power in ISTew York was passionately opposed to the constitution ; but already day had begun to scatter the dusk of earliest morning. In the first moment after his return to Mount Yernon, Washington sent a copy of the constitution to Patrick IIenry,f to Harrison, and to Nelson, each of whom had been governor of Virginia. In a propitiatory letter he appealed to their ex- perience of the difficulties which had ever arisen in attempts to reconcile the interests and local prejudices of the several states. " I wish," he continued, " the constitution which is offered had been more perfect ; but it is the best that could be obtained at this time, and a door is opened for amendments hereafter. The political concerns of this country are suspended by a thread. The convention has been looked up to by the reflect- ing part of the community with a solicitude which is hardly to be conceived ; and if nothing had been agreed on by that body, anarchy would soon have ensued, the seeds being deeply sown in every soil." A visitor at Mount Vernon, just after this letter was sent out, writes of Washington : " He is in perfect health, and looks almost as well as he did twenty years ago. I never in my life saw him so keen for anything as he is for the adoption of the new form of government." J Throughout the whole country he * Madison to Washington. Gilpin, 646 ; Elliot, 567. f Washington to Henry, 24 September 1181. Sparks, ix., 265. t A. DoualJ to Jclierscn, 12 November 1787. \\J^ 376 THE STATES EATIFY THE COI^STITUTIOK b. iv. ; on. i. was the centre of interest ; in Yirginia of power. The leaders of opposition answered him frankly, but with expressions of deference and affection. " The seeds of civil discord," replied Harrison, " are plenti- fully sown in very many of the powers given, both to the presi- dent and congress. If the constitution is carried into effect, the states south of the Potomac will be little more than ap- pendages to those to the nortWard of it. My objections chiefly he against the unlimited powers of taxation, the regula- tion of trade, and the jurisdictions that are to be established in every state altogether independent of their laws. The sword and such powers will, nay, must, sooner or later establish a tyranny." * Avowing very sincerely " the highest reverence " for Wash- ington, Patrick Henry answered positively : " I cannot bring my mind to accord with the proposed constitution." f George Mason, who had rendered the highest and wisest service in shaping the constitution, now from wounded pride resisted his inmost convictions, enumerating to his old friend his objections, of which the grant to congress of power to regu- late commerce by a bare majority was the capital one. ;{: I^ext Richard Henry Lee, professing himself " compelled by irresistible conviction of mind to doubt about the new sys- tem for federal government," wrote : " It is, sir, in consequence of long reflection upon the nature of man and of government, that I am led to fear the danger that will ensue to civil hberty from the adoption of the new system in its j)resent form." And, having at once fixed in his mind the plan on which resist- ance to its adoption should be conducted, he avowed his wish " that such amendments as would give security to the rights of human nature and the discordant interests of the different parts of this union might employ anotlier convention." * But the influence of Washington outweighed them all. He was embosomed in the affections and enshrined in the pride of the people of Yirginia ; and in all their v/averings during * Sparks, ix., 266, 267. Note. f Sparks, ix., 266. Note. X George Mason to Washington, 7 October 1787. Sparks, ix., 267, 268. Note. * R. H. Lee to Washington, New York, 11 October 1787. Letters to W., iv., 180, 181. 1787. THE CONSTITUTION IN VIRGINIA. 377 tlie nine months following the federal convention he was the anchor of the constitution. His neighbors of Alexandria to a man agreed with him ; and Fairfax county unanimously in- structed its representatives, of whom George Mason was one, " that the peace, security, and ' prosperity of Yirginia and of the United States depended on the speedy adoption of the federal constitution." * ^. In the close division of parties in the state it was of vital importance to secure the influence of Edmund Eandolph, its governor ; and his old military chief in due time received from him an elaborate paper which he had prepared in the form of an address to the speaker of the house of delegates. In this letter, not yet pledging himself to the unconditional support of the constitution, he avowed that he prized the intimate and unshaken friendship of Washington and Madison as among the happiest of all his acquisitions ; but added : '^ Dreadful as the total dissolution of the union is to my mind, I entertain no less horror at the thought of partial confederacies. The ut- most limit of any partial confederacy which Yirginia could expect to form would comprehend the three southern and her nearest northern neighbor. But they, like ourselves, are di- minished in their real force by the mixture of an unhappy species of population." f Monroe wrote to Madison that his " strong objections " to the constitution " were overbalanced by the arguments in its favor." :j: The legislature of Yirginia was to hold its regular meeting on the third Monday of October ; this year there was a quo- rum on the first day of the session, which had not happened since the revolution. On the nineteenth the vote of congress transniitting the constitution came before the house ; Patrick Henry, refus- ing to make an issue where he would have met with de- feat, declared that the constitution must go before a conven- * Meeting of Fairfax county, Tuesday, 2 October 1787. Carey's Museum, ii., 892,393. f Edmund Randolph to the speaker of the house of delegates of Yirginia, 10 October 1787. Elliot, i., 487. I Monroe to Madison, 13 October 1787. 378 THE STATES KATIFY THE CONSTITUTION, b. iv. ; ch. i. tion, as it transcended the power of the house to decide on it.* But when, on the twentj-fifth, Francis Corbin proposed " a convention to be called according to the recommendation of congress," Henry objected that under that limitation its members " would have power to adopt or reject the new plan, but not to propose amendments " of its " errors and defects." His motion to give this power to the convention of the state was seconded by Mason, w4io added : " I declare that from the east of JS^ew Hampshire to the south of Georgia there is not a man more fully convinced of the necessity of establishing some general government than I am ; that I regard our perfect union as the rock of our political salvation." f After some debate, John Marshall of Richmond, conced- ing the point as to " leaving the door open for amendments," "H^ pleaded that the legislature should not seem to disapprove the new federal government, and, for the form of the resolution, proposed that " the new constitution should be laid before the convention for their free and ample discussion." *•" This form was silently accepted by Henry, while Mason declared "that the house had no right to suggest anything to a body para- mount to itself." The vote was unanimous, the form of the resolution being that of Marshall, while in substance it yielded up all that Henry and Mason required. [ From " unfriendly intentions toward the constitution," ^ the choice of the conven- tion was postponed till the court days in March, and its time of meeting to the first Monday in June. Should many of the states then be found against the constitution, Yirginia could assume the office of mediator between contending parties, and dictate to all the rest of the union. () * Bushrod Washington to G. W., 19 October ITST. Sparks, ix., 273. f Report of Debate in Packet, 10 November 1*787. X Madison, i., .^68, 364. * Report of the Debate from Penn. Packet, 10 Norember 17S7. II Compare George Mason to G. ^Y., 6 November 1787, in Letters to G. W., iv., 190. Report of Debates in Penn. Packet, 10 November 1787. Buh;hrod Wash- ington in Sparks, ix,, 287. ^Edward CarHngton to T, Jefferson, 10 November 1787. Bushrod Wash- ington was inexperienced, and at first judged the disposition of the legislature too favorably ; Carrington had keener-eyed correspondents. ^ Monroe to Madison, 7 February 1788. Carrington to Madison, 18 January 1787. THE COI^STITUTION IN VIRGINIA. 379 Since amendments liad been unanimously authorized, it seemed fair that any expense of an attempt to make them should be provided for with the other charges of the conven- tion.* A letter from Richard Henry Lee, a representative from Yirginia in congress, to the governor of the common- wealth, recommended, as a policy open to " no objection and promising great safety and mucli good," f that amendments adopted severally by the states should all be definitively re- ferred to a second federal convention. To carry out this policy, resolutions were on the last day of IN'ovember introduced into the house, and supported by Henry and Mason, pledging the general assembly to defray the ex- pense of a deputy or deputies which the convention of the commonwealth in the following June might think proper to send to confer with a convention of any one or more of the sister states, " as well as the allowance to be made to the depu- ties to a federal convention, in case such a convention should be judged necessary." The friends of the constitution, who now perceived the direction in which they were drifting, made a rally ; but they were beaten by a majority of about fifteen. A bill pursuant to the resolutions, reported by a committee composed mainly of the most determined " malcontents," soon became a law. j^ Friends of the constitution who had been jubilant at the first aspect of the legislature now doubted whether it any longer had a majority in its favor ; its enemies claimed a decisive victory. Early in December, Monroe re- ported to Madison : " The cloud which hath hung over us for some time past is not likely soon to be dispelled." * But on Washington's mind no cloud rested. On the last day of November he had replied to David Stuart of his own state : " I am sorry to find by your favor that the opposition gains strength. If there are characters who prefer disunion or separate confederacies to the general government which is offered to them, their opposition may, for aught I know, pro- ceed from principle ; but as nothing, according to my concep- tion of the matter, is more to be deprecated than a disunion or 1788. Washington to Carter, 14 December 1787, in Penn. Packet of 11 January 1788. * Sparks, ix., 287. f Lee's Life, ii., 81 ; Elliot, i., 505. X Hening, xii., 462. * Monroe to Madison, 6 December. MS 380 THE STATES EATIFY THE OONSTITUTIO]!^. b.iv.;ch.i. three distinct confederacies, as far as my voice can go it shall be offered in favor of the general government." * l^OT did he lose heart or trust ; on the fourteenth of De- cember, in a letter which soon reached the people of Virginia through the newspapers, he wrote to Charles Carter of Freder- icksburg : " I am pleased that the proceedings of the conven- tion have met your approbation. My decided opinion on the matter is that there is no alternative between the adoption of it and anarchy. If one state, however important it may con- ceive itself to be," and here he meant Yirginia, " or a minority of them," meaning the five southernmost states, " should sup- pose that they can dictate a constitution to the union, unless they have the power of applying the ultima ratio to good effect, they will find themselves deceived. All the opposition to it that I have yet seen is addressed more to the passions than to reason ; and clear I am, if another federal convention is attempted, that the sentiments of the members will be more discordant or less accommodating than the last. In fine, they will agree upon no general plan. General government is now suspended by a thread ; I might go further, and say it is really at an end ; and what mil be the consequence of a fruitless at- tempt to amend the one which is offered before it is tried, or of the delay of the attempt, does not in my j^udgment need the gift of prophecy to predict. " I saw the imperfections of the constitution I aided in the birth of before it was handed to the public ; but I am fully persuaded it is the best that can be obtained at this time, that it is free from many of the imperfections with which it is charged, and that it or disunion is before us to choose from. If the first is our election, when the defects of it are experi- enced, a constitutional door is opened for amendments and may be adopted in a peaceable manner, without tumult or disor- der." f But as Yirginia has delayed her convention till June, our narrative must turn to the states which were the first to meet in convention. * In Sparks, ix., 284, for " these distinct confederacies " read " three distinct confederacies." f Washington to Charles Carter, 14 December 1787, in Penn. Packet of 11 January 1788. The original draft of the letter is preserved in the State Department. 1787. THE CONSTITUTION IN PENNSYLVANIA. 381 CHAPTEE II. the constitution in pennsylvania, delaware, and new jersey ; and in georgia. From 18 September 1787 to 2 January 1788. Our liappy theme leads from one great act of universal in- terest to another. A new era in the life of the race begins : a people select their delegates to state conventions to pronounce their judgment on the creation of a federal republic. One more great duty to his fellow-citizens and to mankind is to be fulfilled by Franklin ; one more honor to be won by Philadelphia as the home of union ; one new victory by Penn- sylvania as the citadel of the love of the one indivisible coun- try. That mighty border commonwealth, extending its line from Delaware bay to the Ohio, and holding convenient passes through the Alleghanies, would not abandon the South, nor the West, nor the North ; she would not hear of triple confed- eracies nor of twin confederacies ; but only of one government embracing all. Its people in their multifarious congruity had nothing adverse to union ; the faithful of the proprietary party were zealous for a true general government ; so too was every man in public life of the people called Quakers ; * so was an overwhelming majority of the Germans ; f so were the Bap- tists, as indeed their synod authoritatively avowed for every state. The perfect liberty of conscience prevented religious differences from interfering with zeal for a closer union. In the first period of the confederacy the inhabitants of Philadelphia did not extend their plans for its reform beyond the increase of its powers, but, after the flight of congress r Independent Gazetteer, 15 January 1788. f Independent Gazetteer. 382 THE STATES EATIFY THE CONSTITUTIOK b. iv. ; oh. ii. from their city, tliej began to say to one another that " it would be more easy to build a new ship of state than to repair the old one ; " that there was need of a new constitution with a legislature in two branches. Merchants, bankers, holders of the national debt, the army officers, found no party organized against this opinion ; Dickinson was magnanimous enough to become dissatisfied with the confederation which he had chiefly assisted to frame ; and he and Mifflin and McKean and George Clymer and Rush manifested no opposition to the policy of Wilson, Eobert Morris, Gouverneur Morris, and Fitzsimons ; although remoter counties, and especially the backwoodsmen on each side of the mountains, loved their wild personal lib- erty too dearly to welcome a new supreme control. At eleven in the morning of the eighteenth, Benjamin Franklin, then president of Pennsylvania, more than fourscore years of age, fulfilling his last great public service, was ushered into the hall of the assembly, followed by his seven colleagues of the convention. After expressing in a short address their iiope and belief that the measure recommended by that body would produce happy effects to the commonwealth of Pennsyl- vania as well as to every other of the United States, he pre- sented the constitution and accompanying papers. For the next ten days the house, not willing to forestall the action of congress, confined itself to its usual business ; but as it had resolved to adjourn si7ie die on Saturday, the twenty- ninth, Clymer, on the morning of the last day but one of the session, proposed to refer the acts of the federal convention to a convention of the state. That there might be time for re- flection, Robert Whitehill of Carlisle, on behalf of the minor- ity, requested the postponement of the question at least until the afternoon. This was conceded ; but in the afternoon the minority, nineteen in number, did not attend, and refused to obey the summons of the speaker delivered by the sergeant-at- arms, so that no quorum could be made. This factious seces- sion so enraged the inhabitants that early the next morning a body of " respectable men " made a search for the delinquents ; and finding two of them, just sufficient to form a house, dragged them into the assembly, where, in spite of their protests, they were compelled to stay. Meantime a fleet messenger, sent 1787. THE CONSTITUTION IN PENNSYLVANIA. 383 from New York by William Bingham, a delegate in congress from Pennsylvania, arrived with an authentic co2)y of a resolu- tion of congress of the preceding day, unanimously recom- mending the reference of the constitution to conventions of the several states ; and within twenty hours * from the adop- tion of the resolution, the Pennsylvania assembly called a con- vention of the state for the third Tuesday in JSTovember.f The vote was received by the spectators with three heartfelt cheers ; the bells of the churches were rung ; and signs of faith in the speedy return of prosperity were everywhere seen. But the minority, trained in resistance to what were thought to be aristocratic influences, refused to be reconciled, and be- came the seed of a permanent national party. Pichard Henry Lee had disseminated in Philadelphia the objections of himself and George Mason to the constitution ; and seventeen of the seceding members imbodied them in an appeal to their constituents. :f But the cause of the inflamma- tion in Pennsylvania was much more in their state factions than in the new federal system.* The efforts of Pichard Henry Lee were counteracted in Philadelphia by Wilson, whom Washington at the time called ^' as able, candid, and honest a member as was in the conven- tion." On the sixth of October, at a great meeting in Phila- delphia, he held up the constitution as the best w^hich the world had as yet seen. To the objection derived from its want of a bill of rights, he explained that the government of the United States was a limited government, which had no powers except those which were specially granted to it. The speech was promptly reprinted in ]^ew York as a reply to the insinu- ations of Lee ; and through the agency of Washington it was republished in Pichmond. || But the explanation of the want of a bill of rights satisfied not one state. Great enthusiasm was awakened among the jDeople of Penn- * Carey's Museum, vol. ii., Chronicle, pp. 6, 7. \ Lloyd's Debates of Pennsylvania Legislature, p. 137. P. Bond to Lord Car- marthen, Philadelphia, 29 September 1787. X Washington to Madison, 10 October 1787, in Letter Book at State Depart- ment. * Madison to Jefferson, 19 February 17S8, in Madison, i., 377. II Sparks, ix., 271. 384: THE STATES RATIFY THE CONSTITUTION, b. iv. ; en. ii. sylvania in tlie progress of the election of their delegates ; thej rejoiced at the near consummation of their hopes. The con- vention was called to meet on Tuesday, the twentieth of No- vember ; a quorum appeared on the next day. Before the week was over the constitution on two successive days received its first and second reading. Its friends, who formed a very large and resolute majority, were intensely in earnest, and would not brook procrastination. On Saturday, the twenty-fourth,* Thomas McKean of Phi- ladelphia, seconded by John Allison of Franklin county, offered the resolution in favor of ratifying the constitution ; and Wil- son, as the only one present who had been a member of the federal convention, opened the debate : " The United States exliibit to the world the first instance of a nation unattacked by external force, unconvulsed by do- mestic insurrections, assembling voluntarily, deliberating fully, and deciding calmly concerning that system of government under which they and their posterity should live. To form a good system of government for a single city or an inconsidera- ble state has been thought to require the strongest efforts of human genius ; the views of the convention were expanded to a large portion of the globe. '' The difficulty of the business was equal to its magnitude. The United States contain already thirteen governments mu- tually independent ; their soil, climates, productions, dimen- sions, and numbers are different ; in many instances a differ- ence and even an opposition subsists among their interests, and is imagined to subsist in many more. Mutual concessions and sacrifices, the consequences of mutual forbearance and con- ciliation, were indispensably necessary to the success of the great work. " The United States may adopt any one of four different systems. They may become consolidated into one government in which the separate existence of the states shall be entirely absolved. They may reject any plan of union and act as un- connected states. They may form two or more confederacies. * Correct the date in Elliot, ii., 417, by Independent Gazette of 29 November I'lSI. Especially, Centinel in the same, 4 December. Mr. W. [Wilson] in a speech on Saturday, 24 instant, Pa. Packet of 27 November. 1787. THE COIsrSTITUTION' m PEN"NSYLYANIA. 385 They may unite in one federal republic. I^eitlier of tliese systems found advocates in tlie late convention. The remain- ing system is a union in one confederate republic* " The expanding quality of a government by which several states agree to become an assemblage of societies that consti- tute a new society, capable of increasing by means of further association, is peculiarly fitted for the United States. But this form of government left us almost without precedent or guide. Ancient history discloses, and barely discloses, to our view some confederate republics. The Swiss cantons are connected only by alliances ; the United JSTetherlands constitute no new society ; from the Germanic body little useful knowledge can be drawn. " Since states as well as citizens are represented in the con- stitution before us, and form the objects on which that consti- tution is proposed to operate, it is necessary to mention a kind of liberty which has not yet received a name. I shall distin- guish it by the appellation of federal liberty. 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 po- litical liberty, they retain the free and generous exercise of all their other faculties, so far as it is compatible with the weKare of the general and superintending confederacy. " The powers of the federal government and those of the state governments are drawn from sources equally pure. The principle of representation, unknown to the ancients, is con- fined to a narrow comer of the British constitution. For the American states were reserved the glory and happiness of dif- fusing this vital principle throughout the constituent parts of government. " The convention found themselves embarrassed with another difficulty of pecuhar delicacy and importance ; I mean that of drawing a proper line between the national government and the governments of the several states. Whatever object of government is confined in its operation and eSects within the bounds of a particular state should be considered as belong- * Elliot, li., 427, 428. VOL. YI. — 25 386 THE STATES RATIFY THE COI^STITUTION. b. iv. ; ch. ii. ing to the goyernment of that state ; whatever object of gov- ernment extends in its operation or effects beyond the bound? of a particular state should be considered as belonging to the government of the United States. To remove discretionary construction, the enumeration of particular instances in which the application of the principle ought to take place will be found to be safe, unexceptionable, and accurate. " To control the power and conduct of the legislature by an overruling constitution limiting and superintending the op- erations of legislative authority was an improvement in the science and practice of government reserved to the American states. Oft have I marked with silent pleasure and admiration the force and prevalence through the United States of the principle that the supreme power resides in the people, and that they never part with it. There can be no disorder in the community but may here receive a radical cure. Error in the legislature may be corrected by the constitution ; error in the constitution, by the people. The streams of power run in different directions, but they all originally flow from one abundant fountain. In this constitution all authority is de- rived from the people." Already much had been gained for the friends of the con- stitution. "I am sensible," said John Smilie of Fayette county, " of the expediency of giving additional strength and energy to the federal head." The question became on the one side the adoption of the constitution as it came from the convention ; on the other, with amendments. Smilie spoke against a system of precipitancy which would preclude deliber- ation on questions of the highest consequence to the happiness of a great portion of the globe. " Is the object," he asked, " to bring on a hasty and total adoption of the constitution ? The most common business of a legislative body is submitted to repeated discussion upon different days." Robert "White- hill of Carlisle, in Cumberland county, fearing a conveyance to the federal government of rights and liberties which the peo- ple ought never to surrender, asked a reference to a committee of the whole. He was defeated on the twenty-sixth, by a vote of forty-three to twenty-four ; but each member obtained leave to speak in the house as often as he pleased. When it was ob- 1787. THE CONSTITUTION IN PENNSYLVANIA. 387 served that the federal convention had exceeded the powers given to them by their respective legislatures, Wilson an- swered : " The federal convention did not proceed at all upon the powers given to them by the states, but upon original principles ; and having framed a constitution which they thought would promote the happiness of their country, they have submitted it to their consideration, who may either adopt or reject it as they please." * On the twenty-seventh, Whitehill, acting in concert with the Virginia opposition and preparing the way for entering on the journals a final protest against the proceedings of the ma- jority, proposed that upon all questions where the yeas and nays were called any member might insert the reason of his vote upon the journal of the convention. This was argued all the day long, and leave was refused by a very large ma- jority.! The fiercest day's debate, and the only one where the de- cision of *the country was finally in favor of the minority, took place on the twenty-eighth of N^ovember. There was a rising discontent at the omission of a declaration of rights. To prove that there was no need of a bill of rights, Wilson said : " The boasted Magna Charta of England derives the liberties of the inhabitants of that kingdom from the gift and grant of the king, and no wonder the people were anxious to obtain bills of rights ; but here the fee simple remains in the people ; and by this constitution they do not part with it. The preamble to the proposed constitution, ' We the people of the United States do establish,' contains the essence of all the bills of rights that have been or can be devised." :j: The defence was imperfect both in sentiment and in public law. To the sentiment, Smilie answered : " The words in the preamble of the proposed sys- tem, however superior they may be to the terms of the great charter of England, must yield to the expressions in the Penn- sylvania bill of rights and the memorable declaration of the fourth of July 1776." As a question of public law, the an- swer of Smilie was equally conclusive : " It is not enough to * Independent Gazetteer, 29 Xovembor 1*787. f Independent Gazetteer for 3 December; and especially for 1 December 1787. X Elliot's Debates, ii., 434-439. 388 THE STATES RATIFY THE CONSTITUTION. b.iv.;ch.ii. reserve to the people a right to alter and abolish government, but some criterion should be established by which it can easily and constitutionally ascertain how far the government may proceed and when it transgresses its jurisdiction." " A bill of rights," interposed McKean, " though it can do no harm, is an unnecessary instrument. The constitutions of but live out of the thirteen United States have bills of rights." The speaker was ill informed. South Carolina and Georgia had alone de- clined the opportunity of establishing a bill of rights ; every state to the north of them had one except Ehode Island and Connecticut, which as yet adhered to their original charters, and 'New Jersey, which still adhered to its government as es- tablished just before the declaration of independence. New York had incorporated into its constitution the whole of that declaration. Wilson asserted that in the late convention the desire of '' a bill of rights had never assumed the shaj^e of a motion." Here his memory was at fault ; but no one present could cor- rect him. " In civil governments," he proceeded, '' bills of rights are useless, nor can I conceive whence the contrary no- tion has arisen. Virginia has no bill of rights." Smilie inter- rupted him to cite the assurance of George Mason himself that Virginia had a bill of rights ; and he repeated the remark that Mason * had made in the convention : " The laws of the gen- eral government are paramount to the laws and constitutions of the several states ; and as there is no declaration of rights in the new constitution, the declarations of rights in the con- stitutions of the several states are no security. Every stipula- tion for the most sacred and invaluable privileges of man is left at the mercy of government." f On Saturday, the first of December, William Findley, the third leading member of the opposition, in a long and elabo- rate argument endeavored to prove that the proposed plan of government was not a confederation of states, but a consolida- tion of government. He insisted that the constitution formed a contract between indi\dduals entering into society, not a * Gilpin, 1566; Elliot, 538. f Independent Gazetteer, December 10, 13, 18, 20, 24, 27. Review of the Constitutions by De La Croix, English translation, ii., 386, note. 178T. THE CONSTITUTION IN DELAWARE. 380 union of independent states ; that in the legislature it estab- lished the vote by individuals, not by states ; that between two parties in the same community, each claiming independent sovereignty, it granted an unlimited right of internal taxation to the federal body, whose stronger will would thus be able to annihilate the power of its weaker rival ; that it conceded a right to regulate and judge of elections ; that it extended the judicial power as widely as the legislative ; that it raised the members of congress above their states, for they were paid not by the states as subordinate delegates, but by the general gov- ernment ; and finally, that it required an oath of allegiance to the federal government, and thus made the allegiance to a separate sovereign state an absurdity.^' Meantime the zeal of the majority was quickened by news from " the Delaware state," whose people were for the most part of the same stock as the settlers of Pennsylvania, and had groAvn up under the same proprietary. On the proposal for the federal convention at Philadelphia, its general assembly declared that " they had long been fully convinced of the ne- cessity of revising the federal constitution," "being wilhng and desirous of co-operating with the commonwealth of Vir- ginia and the other states in the confederation." f Now that an equality of vote in the senate had been conceded, the one single element of . opposition disappeared. The legislature of Delaware met on the twenty-fourth of October, and follow- ing " the sense and desire of great numbers of the people of the state, signified in petitions to their general assembly," " adopted speedy measures to call together a convention." :j: The constituent body, which met at Dover in the first week of December, encountered no difficulty but how to find lan- guage strong enough to express their joy in what had been done. On the sixth "the deputies of the people of the Delaware state fully, freely, and entirely approved of, assented to, rati- fied, and confirmed the federal constitution," to which they all on the next day subscribed their names.* * Independent Gazetteer, 6 December, 1*787. f Laws of Delaware, page 892, in edition of 1797. :j: Packet, 17 November 1787. * Journals of Congress, iv. Appendix, 46. 390 THE STATES RATIFY THE CONSTITUTION. b.iv.;ch.ii. When it became known tliat Delaware was leading the way at the head of the grand procession of the thirteen states, McKean, on Monday, the tenth of December, announced to the Pennsylvania convention that he should on the twelfth press the vote for ratification. On the next day Wilson summed up his defence of the con- stitution, and repeated : " This system is not a compact ; I cannot discern the least trace of a compact ; the introduction to the work is not an unmeaning flourish ; the system itself tells you what it is, an ordinance, an establishment of the ]3eo- ple." * The opposition followed the Hne of conduct marked out by the opposition in Virginia. On the twelfth, before the question for ratification was taken, Whitehill presented peti- tions from seven hundred and fifty inhabitants of Cumberland county against adopting the constitution without amendments, and particularly without a bill of rights to secure liberty in matters of religion, trial by jury, the freedom of the press, the sole power in the individual states to organize the militia ; the repeal of the executive power of the senate, and consequent appointment of a constitutional council ; a prohibition of re- pealing or modifying laws of the United States by treaties ; restrictions on the federal judiciary power; a confirmation to the several states of their sovereignty, with every power, juris- diction, and right not expressly delegated to the United States in congress assembled. In laboring for this end, he showed a concert with the measure which Mason and Randolph liad pro- posed in the federal convention and Richard Henry Lee in congress, and which led the Virginia legislature on that very day to pass the act for communicating with sister states, f The amendments which Whitehill proposed were not suf- fered to be entered in the journal. His motion was rejected by forty-six to twenty-three; and then the new constitution was ratified by the same majority. On Thursday the convention marched in a procession to the court-house, where it proclaimed the ratification. Returning to the place of meeting, the forty-six subscribed their names to their act. The opposition were invited to add their names as a fair and honorable acquiescence in the principle that the * Elliot, ii., 497, 499. f Hening, xii., 463. 1787. THE CONSTITUTION IN NEW JERSEY. 391 majority should govern. John Harris refused, yet held himself bound by the decision of the majority. Smilie answered: " My hand shall never give the lie to my heart and tongue." Twenty-one of the minority signed an exceedingly long address to their constituents, complaining that the extent of the country did not admit of the proposed form of government without danger to liberty; and that the powers vested in congress would lead to an iron-handed despotism, with unlimited con- trol of the purse and tlie sword. The ratification gave unbounded satisfaction to all Penn-" sylvania east of the Susquehanna ; beyond that river loud mur- murs were mingled with threats of resistance in arms. On the fifteenth the convention dissolved itself, after offering a permanent and a temporary seat of government to the United States. The population of 'New Jersey at that time was almost ex- clusively rural ; in the west chiefly the descendants of Quak- ers, in the east of Dutch and Scottish Calvinists. This in- dustrious, frugal, and pious people, little agitated by political disputes, received the federal constitution with joy, and the consciousness that its ow^n sons had contributed essentially to its formation.* On the twenty-sixth of October its legislature called a state convention by a unanimous vote. On the eleventh of Decem- ber the convention of New Jersey, composed of accomplished civilians, able judges, experienced generals, and fair-minded, intelligent husbandmen, assembled in Trenton. The next day was spent in organizing the house, all the elected members being present save one. John Stevens was chosen president by ballot ; Samuel Whitham Stockton, secretary. The morn- ing began with prayer. Then with open doors the convention proceeded to read the federal constitution by sections, giving opportunity for debates and for votes if called for ; and, after a week's deliberation, on Tuesday, the eighteenth, determined unanimously to ratify and confirm the federal constitution. A committee, on which appear the names of Brearley, a mem- ber of the federal convention, "Witherspoon, Neilson, Beatty, former members of congress, was appointed to draw up the * Penn. Journal, 7 November 1'787. 302 THE STATES EATIFY THE CONSTITUTION-, b. iv. ; ch. ii. form of the ratification ; and tlie people of the state of 'New Jersey, " by the unanimous consent of the members present, agreed to, ratified, and confirmed the proposed constitution and every part thereof." * On the next day, the resolve for ratification having been engrossed in duplicate on parchment, one copy for the con- gress of the United States and one for the archives of the state, every member of the convention present subscribed his name. In the shortest possible time, Delaware, Pennsylvania, and New Jersey, the three central states, one by a majority of two thirds, the others unanimously, accepted the constitution. The union of the central states was of the best omen. Be- fore knowing their decision, Georgia at the extreme south had independently taken its part ; its legislature chanced to be in session when the message from congress arrived. All its rela- tions to the United States were favorable ; it was in j^ossession of a territory abounding in resources and large enough to con- stitute an empire ; its people felt the need of protection against Spain, w^hich ruled along their southern frontier from the Mississippi to the Atlantic, and against the savages who dwelt in their forests and hung on the borders of their settlements. A convention which was promptly called met on Christmas- day, with power to adopt or reject any part or the whole of the proposed constitution. Assembled at Augusta, its members finding themselves all of one mind, on the second day of the new year, unanimously, for themselves and for the people of Georgia, fully and entirely assented to, ratified, and adopted the proposed constitution. They hoped that their ready com- pliance would " tend to consolidate the union " and " promote the happiness of the common country." The completing of the ratification by the signing of the last name was announced by a salute of thirteen guns in token of faith that every state would accede to the new bonds of union. f * Penn. Journal and Penn. Packet, 22 and 29 December. •j- Stevens, History of Georgia, ii., 387. 1787-1788. THE CONSTITUTION IN CONNECTICUT. 393 CIIAPTEE III. the constitution in connecticut and massachusetts. Feom 26 September 1787 to G Febeuart 1788. On the twenty-sixtli of September Eoger Sliennan and Oliver Ellsworth, two of the delegates from Connecticut to the federal convention, transmitted to Samuel Huntington, then governor of the state, a printed copy of the constitution to be laid before the legislature. In an accompanying official letter they observed that the proportion of suffrage accorded to the state remained the same as before ; and they gave the assur- ance that the " additional powers vested in congress extended only to matters respecting the common interests of the union, and were specially defined; so that the particular states re- tained their sovereignty in all other matters." * The restraint on the legislatures of the several states respecting emitting bills of credit, making anything but money a tender in payment of debts, or impairing the obligation of contracts by ex jpost facto laws, was thought necessary as a security to commerce, in which the interest of foreigners as wxll as of the citizens of different states may be affected.f The governor was a zealous friend of the new constitution. The legislature, on the sixteenth of October, unanimously :|: sailed a convention of the state. To this were chosen the re- tired and the present highest officers of its government ; the judges of its courts ; " ministers of the Gospel ; " and nearly sixty who had fought for independence. Connecticut had a special interest in ratifying the constitution ; the compromise * Compare the remark of Wilson, supra, 385, 386. t Elliot, i., 491, 492. ij: Madison, i., 359. 394 THE STATES EATIFY THE CONSTITUTIOK b. iv. ; ch. hi. requiring for acts of legislation a majority of tlie states and a majority of the representatives of the people had prevailed through its own delegates. In January 1788, the convention, having been organized in the State-house in Hartford, moved immediately to the North Meeting House, where, in the presence of a multitude, the constitution was read and debated section by section, under an agreement that no vote should be taken till the whole of it should have been considered.* On the fourth, Oliver Ellsworth explained the necessity of a federal government for the national defence, for the manage- ment of foreign relations, for preserving peace between the states, for giving energy to the public administration. He pointed out that a state like Connecticut was specially benefited by the restraint on separate states from collecting duties on for- eign importations made through their more convenient harbors. Johnson added : While under the confederation states in their political capacity could be coerced hy nothing but a mili- tary force ; the constitution introduces the mild and equal energy of magistrates for the execution of the laws. " By a signal intervention of divine providence, a convention from states differing in circumstances, interests, and manners, have harmoniously adopted one grand system ; if w^e reject it, our national existence must come to an end." f The grave and weighty men who listened to him approved his words ; but when tlie paragraph which gave to the general government the largest powers of taxation was debated, James "Wadsworth, who had served as a general officer in the war, objected to duties on imports as partial to the southern states. " Connecticut," answered Ellsworth, " is a manufacturing state ; it already manufactures its implements of husbandry and half its clothes." Wadsworth further objected, that authority which unites the power of the sword to that of the purse is despotic. Ellsworth replied : " The general legislature ought to have a revenue ; and it ought to have power to defend the state against foreign enemies ; there can be no government without the power of the purse and the sword." '' So w^ell guarded is this constitution," observed Oliver Wolcott, then lieutenant-go v- * Penn. Packet for 18 January 1788. f Penn. Packet, 24 January 1788 1787-1788. THE COJ^STITUTIOl!^ IN CONNECTICUT. 395 ernor, " it seems impossible that tlie riglits eitlier of tlie states or of the people should be destroyed." When on the ninth the vote was taken, one hundred and twenty-eight appeared for the constitution ; forty only against it.* The people received with delight the announcement of this great majority of more than three to one ; at the next election the " wrong-headed " James Wadsworth was left out of the government ; and opposition grew more and more faint till it wholly died away. The country from the St. Croix to the St. Mary's now fixed its attention on Massachusetts, whose adverse decision would in- evitably involve the defeat of the constitution. The rejDresen- tatives of that great state, who came together on the seven- teenth of October, had been chosen under the influence of the recent insurrection ; and the constitution, had it been submit- ted to their judgment, would have been rejected.f In com- municating it to the general court, the governor most wisely avoided provoking a discussion on its merits, and simply recom- mended its reference to a convention from regard to the worth of its authors and their unanimity on questions affecting the prosperity of the nation and the complicated rights of each separate state. :j: Following his recommendation with exactness, the senate, of which Samuel Adams was president, promptly adopted a resolve to refer the new constitution to a convention of the commonwealth. On motion of Theox^hilus Parsons, of xTew- buryport, a lawyer destined to attain in his state the highest professional honors, the resolve of the senate was opened in the house. Spectators crowded the galleries and the floor. * Penn. Packet, 24 January 1788. f B. Lincoln to Washington, Boston, 19 March 1788. i The conduct of Hancock in support of the constitution vras from beginning to end consistent ; and so wise that the afterthought of the most skilful caviller can not point out where it could be improved. Nathaniel Gorham, who had known Hancock lonp and well, in a letter to Madison of 27 January 1788, the darkest hour, places Hancock and Bowdoin foremost in the list of the managers of the cause of the constitution, naming them with equal confidence. Hancock, who was not wanting in sagacity, may have seen, and others may have let hira know that they too saw, how much the support of the constitution would strengthen his position in public life : but at that time he had nothing to fear from the rivalry of Bowdoin, who had definitively retired. 396 THE STATES RATIFY THE OONSTITUTIOK b. iv. ; en. iii. Signs of a warm opposition appeared ; the right to supersede the old confederation was denied alike to the convention and to the people ; the adoption of a new constitution by but nine of the thirteen states would be the breach of a still valid com- pact. An inalienable power, it was said in reply, resides in the people to amend their form of government. An array of parties was avoided ; and with little opposition a convention was ordered. The choice took place at a moment when the country peo- ple of Massachusetts were bowed down by cumulative debts, and quivering in the agonies of a suppressed insurrection ; the late disturbers of the peace were scarcely certain of amnesty ; and they knew that the general government, if established, must array itself against violence. The election resulted in the choice of at least eighteen of the late insurgents. The ru- ral population were disinclined to a change. The people in the district of Maine, which in territory far exceeded Massa- chusetts, had never willingly accepted annexation ; the desire for a government of their own outweighed their willingness to enter into the union as a member of Massachusetts ; and one half of their delegates were ready to oppose the constitution. On the other hand, the commercial towns of Maine, all manu- facturers, men of wealth, the lawyers, including the judges of all the courts, and nearly all the officers of the late army, were in favor of the new form of general government. The voters of Cambridge rejected Elbridge Gerry in favor of Francis Dana ; in Beverly, Nathan Dane was put aside * for George Cabot ; the members from Maine were exactly balanced ; but of those from Massachusetts proper a majority of perhaps ten or twelve was opposed to the ratification of the constitution. Among the elected were King, Gorham, and Strong, who had been of the federal convention ; the late and present governors, Bowdoin and Hancock ; Heath and Lincoln of the army ; of rising statesmen, John Brooks and Christopher Gore ; The- ophilus Parsons, Theodore Sedgwick, John Davis, and Fisher Ames ; and about twenty ministers of various religious de- nominations. So able a body had never met in Massachusetts. Full of faith that the adoption of the constitution was the * Ind. Gazetteer, 8, 9 January 1788. 1788. THE CONSTITUTION IN MASSACHUSETTS. 397 greatest question of the age, the f ederaKsts were all thoroiighl;y in earnest, and influenced bj no inferior motives ; so that there could be among them neither cabals in council nor uncertainty in action. They obeyed an immovable determination to over- come the seemingly adverse majority. As a consequence, they had discipline and concerted action. It was consistent with the whole public life of Samuel Ad- ams, the helmsman of the revolution at its origin, the truest representative of the home rule of Massachusetts in its town- meetings and general court, that he was startled when, on en- tering the new " building, he met with a national government instead of a federal union of sovereign states ; " but, in direct antagonism to George Mason and Richard Henry Lee, he had always approved granting to the general government the power of regulating commerce."^ Before he had declared his inten- tions, perhaps before they had fully ripened, his constituents of the industrial classes of Boston, which had ever been his main support, came together, and from a crowded hall a cry went forth that on the rejection of the constitution " naviga- tion " would languish and " skilful mechanics be compelled to emigrate," so that " any vote of a delegate from Boston against adopting it would be contrary to the interests, feelings, and wishes of the tradesmen of the town." The morning betokened foul weather, but the heavy clouds would not join together. The enterprising and prosperous men of Maine, though they desired separation from Massachu- setts, had no sympathy with the late insurrection ; and the country people, though they could only by slow degrees ac- custom their minds to untried restraints on their rustic liberty, never wavered in their attachment to the union. The conven- tion was organized with the governor of the commonwealth as its president.f The federahsts of Philadelphia had handled their opponents roughly ; the federalists of Massachusetts re- * The activity and wise and efficient support of the constitution by Samuel Adams I received from my friend John Davis, who was a member of the conven- tion, and who was singularly skilful in weighing evidence. The account which he gave me is thoroughly supported by the official record. f Debates and Proceedings in the Convention, etc., published by the legislature of Massachusetts, edited by B. K. Peirce and C. Ilale. The best collection on the subject. 398 THE STATES EATIFY THE CONSTITUTION, b. iv. ; ch. iii. solved never in debate to fail in gentleness and courtesy. A motion to request Elbridge Gerry to take a seat in the conven- tion, that he might answer questions of fact, met no objection ; and he was left to grow sick of sitting in a house to which he had failed of an election, and in whose debates he could not join. On motion of Caleb Strong, no vote was to be taken till the debate, which assumed the form of a free conversation, should have gone over the several paragraphs of the constitu- tion.* Massachusetts had instructed its delegates in the federal convention to insist on the annual election of representatives ; Samuel Adams asked why they were to be chosen for two years. Strong explained that it was a necessary compromise among so many states; and Adams answered; "I am satis- fied." f This remark the federal leaders entreated him to re- peat ; he did so, when all gave attention, and the objection was definitively put to rest. Referring to tlie power of congress to take part in regu- lating the elections of senators and representatives, Phineas Bishop of Rehoboth proclaimed "the liberties of the yeo- manry at an end." It is but " a guarantee of free elections," said Cabot. " And a security of the rights of the people," added Theophilus Parsons. " Our rulers," observed Widgery of Maine, " ought to have no power which they can abuse." if " All the godly men we read of," added Abraham White of Bristol, " have failed ; I would not trust a flock, though every one of them should be a Moses." On the seventeenth an ofiicial letter from Connecticut an- nounced the very great majority by which it had adopted the constitution ; but its enemies in Massachusetts w^ere unmoved. Samuel Thompson of Maine condemned it for not requiring of a representative some property qualification, saying : " Men w^ho have nothing to lose have nothing to fear." " Do you wish to exclude from the federal government a good man be- cause he is not rich ? " asked Theodore Sedgwick. '' The men who have most injured the country," said King, " have com- monly been rich men." On tlie eighteenth the compromise respecting the taxation * Elliot, ii., d. f From John Davis. X Elliot, ii., 28. 1788. THE CONSTITUTION IN MASSACHUSETTS. 399 and representation of slaves was cried against. Thomas Dawes of Boston answered : " Congress in tlie year 1808 may wlioHy prohibit the importation of them, leaving every particular state in the mean time its own option totally to prohibit their intro- duction into its own territories. Slavery could not be abol- ished by an act of congress in a moment ; but it has received a mortal wound." * On the nineteenth a farmer of Worcester county com- plained : " There is no provision that men in power should have any religion ; a Papist or an inhdel is as eligible as Chris- tians." John Brooks and Parsons spoke on the other side ; and Daniel Shute, the minister of Hingham, said; ''I^o con- ceivable advantage to the whole will result from a test." Wil- liam Jones of Maine rejoined : " It would be happy for the United States if our public men were to be of those who have a good standing in the church." Philip Payson, the minister of Chelsea, retorted : " Human tribunals for the consciences of men are impious encroachments upon the prerogatives of God. A religious test, as a qualification for otfice, would have been a great blemish." William Jones of Maine objected to the long period of otfice for the senators. " One third of the senators," observed Fisher Ames, "are to be introduced every second year; the constitution, in practice as in theory, will be that of a federal republic." "We cannot," continued Jones, "recall the sena- tors." " Their duration," answered King, " is not too long for a right discharge of their duty." On the twenty-first. King explained the nature of the tran- sition f from a league of states with only authority to make requisitions on each state, to a republic instituted by the peo- ple with the right to apply laws directly to the individual members of the states. He showed that without the power over the purse and the sword no government can give security to the people ; analyzed and defended the grant of revenue alike from indirect and direct taxes, and insisted that the pro- posed constitution is the only efiicient federal government that can be substituted for the old confederation. Thomas Dawes of Boston defended the power of laying * EU'ot, ii., 41. t Elliot, ii., 54-5'7. 400 THE STATES EATIFY THE CONSTITUTIOi^. b. iv. ; oh. hi. imposts and excises in this wise : " For want of general laws of prohibition through the union, our coasting trade, our whole commerce, is going to ruin. A vessel from Halifax with its fish and whalebone finds as heart j a welcome at the southern ports as though built and navigated and freighted from Salem or Boston. South of Delaware three fourths of the exports and three fourths of the returns are made in British bottoms. Of timber, one half of the value — of other produce shipped for London from a southern state, three tenths — ^go to the Brit- ish carrier in the names of freight and charges. This is money which belongs to the l^ew England states, because we can fur- nish the ships much better than the British. Our sister states are willing that these benefits should be secured to us by national laws ; but we are slaves to Europe. We have no uniformity in duties, imposts, excises, or prohibitions. Congress has no authority to withhold advantages from foreigners in order to obtain reciprocal advantages from them. Our manufacturers have received no encouragement by national duties on foreign manuf actui-es, and they never can by any authority in the con- federation. The very face of our country, our numerous falls of water, and places for mills, lead to manufactures : have they been encouraged ? Has congress been able by national laws to prevent the importation of such foreign commodities as are made from such raw materials as we ourselves raise? The citizens of the United States within the last three years have contracted debts with the subjects of Great Britain to the amount of near six millions of dollars. If we wish to en- courage our own manufactures, to preserve our own commerce, to raise the value of our own lands, we must give congress the powers m question." ^ Every day that passed showed the doubtfulness of the con- vention. " The decision of Massachusetts either way," wrote Madison from congress, " will involve the result in ITew York," and a negative would rouse the minority in Pennsylvania to a stubborn resistance. Langdon of ISTew Hampshire, and men from l^ewport and Providence who came to watch the course of the debates, reported that I^ew Hampshire and Rhode Island would accept the constitution should it be adopted by * Elliot, ii., 57-60. 1788. THE CONSTITUTION" IN MASSACHUSETTS. 401 Massacliusetts. Gerry, under the influence of HicLard Henry Lee, had written a letter to the two houses of Massachusetts, insinuating that the constitution needed amendments, and should not be adopted till they were made. These same sug- gestions had been circulated throughout Virginia, where, as has already been related,* Washington threw himself into tlie discussion and advised, as the only true policy, to accept the constitution and amend it by the methods which the con- stitution itself had established. The letter in which he had given this advice reached Boston in season to be published in the Boston "Centinel" of the twenty- third of January. In the convention the majority still seemed adverse to the consti- tution. To win votes from the ranks of its foes, its friends, following the counsels of Washington, resolved to combine with its ratification a recommendation of amendments. For this end Bowdoin and Hancock, Theophilus Parsons and Gor- ham, Samuel Adams, Heath, and a very few other resolute and trusty men, matured in secret council a plan of action. f Meantime Samuel Thompson could see no safety but in a bill of rights. Bowdoin spoke at large for the new govern- ment with its ability to pay the public debts and to regulate commerce. "Power inadequate to its object is worse than none ; checks are provided to prevent abuse. The whole con- stitution is a declaration of rights. It will complete the tem- ple of American liberty, and consecrate it to justice. May this convention erect Massachusetts as one of its pillars on the foundation of perfect union, never to be dissolved but by the dissolution of nature." J Parsons recapitulated and answered the objections brought against the constitution, and closed his remarks by saying : " An increase of the powers of the federal constitution by usurpa- tion wiU be upon thirteen completely organized legislatures having means as well as inclination to oppose it successfully. The people themselves have power to resist it without an ap- peal to arms. An act of usurpation is not law, and therefore is not obligatory ; and any man may be justified in his resist- ance. Let him be considered as a criminal by the general * See page 380 of this volume. f King to Madison, quoted in Madison's Writings, i., 373. ^ Elliot, ii., S0-S8. VOL. VI. — 26 402 THE STATES RATIFY THE CONSTITUTION, b. iv. ; oh. iii. government ; liis own fellow-citizens are his jurj ; and if they pronounce him innocent, not all the powers of congress can hurt him." * On the morning of the twenty-fourth, Nason of Maine, an implacable enemy of the constitution, proposed to cease its discussion by paragraphs so as to open the whole question. This attempt " to hurry the matter " was resisted by Samuel Adams in a speech so eifective that the motion was negatived without a division. On the next day Amos Singletary of Sutton, a husband- man venerable from age and from patriotic service from the very beginning of the troubles with England, resisted the con- stitution as an attempt to tax and bind the people in all cases whatsoever. Jonathan Smith of Lanesborough, speaking to men who like himself followed the plough for their livelihood, began a reply by arguments drawn from the late insurrection, when he was called to order. Samuel Adams instantly said with au- thority : " The gentleman is in order ; let him go on in his own way." The " plain man " then proceeded in homely words to show that farmers in the western counties, in their great dis- tress during the insurrection, would have been glad to snatch at anything like a govermnent for protection. " This constitu- tion," he said, " is just such a cure for these disorder as w^e wanted. Anarchy leads to tyranny." Attention was arrested by the clause on the slave-trade. '* My profession," said James Neal of Maine, " obliges me to bear witness against anything that favors making merchandise of the bodies of men, and unless this objection is removed I cannot put my hand to the constitution." " Shall it be said," cried Samuel Thompson, " that after we have established our own independence and freedom we make slaves of others? How has Washington immortalized himself ! but he holds those in slavery who have as good a right to be free as he has.' ' Dana and Samuel Adams rejoiced that a door was to be opened for the total annihilation of the slave-trade after twenty years ; but hatred of slavery influenced the final vote.f On the morning of the thirty-first of January, Hancock, * Elliot, ii., 94. f Elliot, ii., 107, 120. 1738. THE CONSTITUTIOIsr IN" MASSACHUSETTS. 403 wlio till tlien had been kept from liis place by painful illness, took the chair, and the concerted movement began. Conver- sation came to an end ; and Parsons proposed " that the con- vention do assent to and ratify the constitution."* Heath suggested that in ratifying it they should instruct their mem- bers of congress to endeavor to provide proper checks and guards in some of its paragraphs, and that the convention should correspond with their sister states, to request their con- currence." t Hancock then spoke earnestly for the necessity of adopting the proposed form of government ; and brought forward nine general amendments. Taken from the letters of Richard Henry Lee, the remonstrance of the minority in Pennsylvania, and the objections made in the Massachusetts debates, " they were the production of the federalists after mature delibera- tion," and were clad in terse and fittest words, which revealed the workmanship of Parsons. " All powers not expressly dele- gated to congress," so ran the most important of them, " are reserved to the several states." " I feel myself happy," thus Samuel Adams addressed the chair, " in contemplating the idea that many benefits w^ill re- sult from your Excellency's conciliatory proposition to this commonwealth and to the whole United States. The objec- tions made to this constitution as far as Virginia are similar. I have had my doubts ; other gentlemen have had theirs ; the proposition submitted will tend to remove such doubts, and conciliate the minds of the convention and of the people out- of-doors. The measure of Massachusetts will from her impor- tance have the most salutary effect in other states where con- ventions have not yet met, and throughout the union. The people should be united in a federal government to withstand the common enemy and to preserve their rights and liberties ; I should fear the consequences of large minorities in the sev- eral states. "The article which empowers congress to regulate com- merce and to form treaties I esteem particularly valuable. For want of this power in our national head our friends are grieved ; our enemies insult us ; our minister at the court of * Elliot, ii., 120. f ElUot, ii., 122. 404 THE STATES EATIFY THE COiTSTITUTION. b. iy. ; oh. hi. London is a cipher. A power to remedy this evil should be given to congress, and applied as soon as possible. I move that the paper read by your Excellency be now taken into con- sideration." * Samuel Adams, on the first day of February, invited mem^ bers to propose still further amendments; but Nason of Maine, the foremost in opposition, stubbornly refused to take part in supporting a constitution which, they said, " destroyed the sovereignty of Massachusetts." f The measure was referred to a committee formed on the principle of selecting from each county one of its friends and one of its opponents ; but as both of the two delegates from Dukes county were federalists, only one of them took a place in the committee. Thirteen of its members were federalists from the beginning. At the decision, the committee consisted of twenty-four members; one absented himself and one de- clined to vote ; so that in the afternoon of Monday, the fourth of February, Bowdoin as chairman of the committee could re- port its approval of the constitution with the recommendation of amendments by a vote of fifteen to seven. At tliis result opposition flared anew. Thomas Lusk of "West Stockbridge revived complaints of the slave-trade, and of opening the door to popery and the inquisition by dispens- ing with a religious test. But Isaac Backus, the Baptist min- ister of Middleborough, one of the most exact of ITew Eng- land historians, replied : " In reason and the holy scriptures religion is ever a matter between God and individuals ; the imposing of religious tests hath been the greatest engine of tyranny in the world." Rebuking the importation of slaves with earnestness, he trusted in the passing away of slavery itself, saying : " Slavery grows more and more odious to the world." J " This constitution," said Fisher Ames, on the fifth * Elliot, ii., 123-125. Let no one be misled by the words "conditional amendments " in the report of Mr. Adams's speech. He spoke not of amend- ments offered as the condition of the acceptance of the constitution by Massa- chusetts, but advised that Massachusetts should connect with its ratification a recommendation of amendments ; the ratification to be valid whatever fate might await the amendments. This is exactly the proposition concerted between Par- sons, Hancock, and himself. Rufus King to Knox, in Drake's Knox, 98. f Elliot, ii., 133, 134. J Elliot, ii., 148-151. 1788. THE CONSTITUTION IN MASSACHUSETTS. 405 day, " is comparatively perfect ; no subsisting government, no government which I have ever heard of, will bear a compari- son with it. The state government is a beautiful structure, situated, however, upon the naked beach; the union is the dike to fence out the flood." * John Taylor of Worcester county objected that the amendments might never become a part of the system, and that there was no bill of rights. " No power," answered Par- sons, "is given to congress to infringe on any one of the natural rights of the people ; should they attempt it without constitutional authority, the act would be a nullity and could not be enforced." Gilbert Dench of Middlesex, coinciding with the wishes of the opposition in Yirginia, and with a mo- tion of Whitehill in the convention of Pennsylvania, proposed an adjournment of the convention to some future day. A long and warm contest ensued ; but Samuel Adams skiKully resisted the motion, and of the three hundred and twenty-nine members who were present, it obtained but one hundred and fifteen votes. f On the sixth the office of closing the debate was by com- mon consent assigned to Samuel Stillman, a Baptist minister of Boston. Recapitulating and weighing the arguments of each side, he said, in the words of a statesman of Virginia : " Cling to the union as the rock of our salvation," and he sum- moned the state of Massachusetts " to urge Yirginia to finish the salutary work which hath been begun." :j: Before putting the question, Hancock spoke words that were remembered : " I give my assent to the constitution in full confidence that the amendments proposed will soon be- come a part of the system. The people of this commonwealth will quietly acquiesce in the voice of the majority, and, where they see a want of perfection in the proposed form of govern- ment, endeavor, in a constitutional way, to have it amended." The question being taken, the counties of Dukes, Essex, Su£[olk, and Plymouth, and in Maine of Cumberland and Lincoln, all counties that touched the sea, gave majorities in favor of the constitution ; Middlesex and Bristol, the whole of Massachusetts to the west of them, and the county of York in * Elliot, ii., 154-159. f Elliot, ii., 161, 162. + Elliot, u., 162, 170. / 406 THE STATES RATIFY THE CONSTITUTION, b. iv. ; ch. iii. Maine, gave majorities against it. The majority of Maine for tlie constitution was in proportion greater than in Massachusetts. ^ The motion for ratifying the constitution was declared to be in the affirmative by one hundred and eighty-seven votes against one hundred and sixty-eight.* The bells and artillery announced the glad news to every part of the town. With the declaration of the vote, every symptom of per- sistent opposition vanished. No person even wished for a protest. Tlie convention, after dissolving itseK, pai*took of a modest collation in the senate-chamber, where, merging party ideas in mutual congratulations, they all " smoked the calumet of love and •union." " The Boston people," WTote Knox to Livingston, " have lost their senses with joy." f The Long Lane by the meeting-house, in which the convention held its sessions, took from that time the name of Federal street. The prevaiUng joy difiPused itself through the commonwealth. In 'New York, at noon, men hoisted the pine-tree flag with an appropriate inscription. Six states had ratified, and six salutes, each of thirteen guns, were lired. The example of Massachusetts was held worthy of imita- tion. " A conditional ratification or a second convention," so wrote Madison to Eandolph in April, " appears to me utterly irreconcilable with the dictates of prudence and safety. Rec- ommendatory alterations are the only ground for a coalition among the real federalists." :j: Jefferson, w^hile in congress as the successor of Madison, had led the way zealously toward rendering the American constitution more perfect. "The federal convention," so he wrote to OPiC correspondent on liearing who were its members, "is really an assembly of demigods;" and to another: "It consists of the ablest men in America." He hoped from it a broader reformation, and saw with satisfaction " a general dis- position through the states to adopt what it should propose." To Washington he soberly expressed the opinions from which during his long life he never departed : " To make our states one as to all foreign concerns, preserve tliem several as to all * Elliot, ii., T74-176, 181. f Knox to Livingston, 13 February 1788. X Madison's Works, i., 3S6, and compare 37G-379. 1787-1789. THE CONSTITUTION IN MASSACHUSETTS. 407 merely domestic, to give to the federal liead some peaceable mode of enforcing its just authority, to organize that head into legislative, executive, and judiciary departments, are great desiderata." * Early in ITovember Jefferson received a copy of the new constitution, and approved the great mass of its provisions.! But once he called it a kite set np to keep the hen-yard in or- der ; :j: and with three or four new articles he would have pre- served the venerable fabric of the old confederation as a sacred rehc. To Madison * he explained himself in a long and deliber- ate letter. A house of representatives elected directly by the people he thought would be far inferior to one chosen by the state legislatures ; but he accepted that mode of election from respect to the fundamental principle that the people are not to be taxed but by representatives chosen immediately by them- selves. He was captivated by the compromise between the great and smaller states, and the method of voting in both branches of the legislature by persons instead of voting by states; but he utterly condemned the omission of a bill of rights, and the abandonment of the principle of rotation in the choice of the president. In December he declared himself " a friend to a very energetic government ; " for he held that it would bo " always oppressive." He presumed that Virginia would reject the new constitution ; || for himself he said : " It is my principle that the will of the majority should prevail ; if they approve, I shall cheerfully concur in the proposed con- stitution, in hopes they will amend it whenever they shall find that it works Avrong." ^ In February 1788 he wrote to Madi- son (} and at least one more of his correspondents : *' I wish with all my soul that the nine first conventions may accept the new constitution, to secure to ns the good it contains ; but I equally wish that the four latest, whichever they may be, may refuse to accede to it till a declaration of rights be annexed ; but no objection to the new form must produce a schism in * Jefferson, i., 349, 260, 140, 2G4, 250, 251. f Jefferson, i., 79, and ii., 58G. || Jefferson, ii., 325. X Jefferson, ii., 319. ^ Jefferson, ii., 332. # Jefferson, ii., 328-331. () Jefferson to Madison, G February 1788. 408 THE STATES EATIFY THE CONSTITUTIO:^'. b. it. ; oh. hi. our union." This was the last word from him which reached America in time to have any influence. But in May of that year, so soon as he heard of the method adopted by Massachu- setts, he declared that it was far preferable to his own, and wished it to be followed by every state, especially by Vir- ginia.^ To Madison he wrote in July : " The constitution is a good canvas on which some strokes only want retouching." f In 1789 to a friend in Philadelphia he wrote with perfect truth : " I am not of the party of federalists ; but I am much further from that of the anti-federalists." J The constitution was to John Adams more of a surprise than to Jefferson ; but at once he formed his unchanging judg- ment, and in December 1787 he wrote of it officially to Jay : " The public mind cannot be occupied about a nobler object than the proposed plan of government. It appears to be ad- mirably calculated to cement all America in affection and in- terest as one great nation. A result of compromise cannot perfectly coincide with every one's ideas of perfection ; but, as all the great principles necessary to order, liberty, and safety are respected in it, and provision is made for amendments as they may be found necessary, I hope to hear of its adojotion by all the states." * * Jefferson, ii., 398, 399, 404. f Jefferson, ii., 445. X Jefferson, ii., 585, 586. * John Adams's Works, viii., 467; Diplomatic Correspondence, 1783-1789, v., 356. 1788, THE CONSTITUTION IN NEW HxiMPSHIRE. 409 CHAPTER lY. THE CONSTITUTION IN" NEW HAMPSHIRE, IkLVRYLANDj AND SOUTH CAROLINA. Feom Febeuaey TO 23 May 1788. Langdon, the outgoing cliief magistrate of ISTew Hamp- shire, and Sullivan, his successful competitor, vied with each other in zeal for federal measures ; but when, in February 1788, the convention of the state came together there appeared to be a small majority against any change. In a seven days' debate, Joshua Atherton of Amherst ; Yf illiam Plooper, the minister of Marbury ; Matthias Stone, deacon of the church in Claremont; Abiel Parker, from Jaffrey, reproduced the ob- jections that had been urged in the neighboring state ; while John Sullivan, John Langdon, Samuel Livermore, Josiah Bart- lett, and John Pickering explained and defended it with con- ciliatory moderation. When zealots complained of the want of a religious test, Woodbury Langdon, lately president of Harvard college, but now a minister of the gospel at Hampton Falls, demonstrated that religion is a question between God and man in which no civil authority may interfere. Dow, from Weare, spoke against the twenty years' sufferance of the foreign slave-trade; and to the explanation of Langdon that under the confederation the power exists without limit, Ather- ton answered : " It is our full purpose to wash our hands clear of becoming its guarantees even for a term of years." The friends of the constitution won converts enough to hold the balance ; but these were fettered by instructions from their towns. To give them an opportunity to consult their constituents, the friends of the constitution proposed an ad- 410 THE STATES RATIFY THE C0:N"STITUTI0X. B.iv.;cn.iy. joTirnment till June, saying, witli ofclier reasons, that it would be verj prudent for a small state like ISTew Hampsliire to wait and see wliat the other states would do. This was the argu- ment which had the greatest weight.* The place of meeting was changed from Exeter, a stronghold of federalism, to Con- cord ; and the adjournment was then carried by a slender ma- jority.! The assembly of Maryland, in November 1787, summoned its delegates to tha federal convention to give them informa- tion of its proceedings; and Martin rehearsed to them and published to the world his three days' arraignment of that body for having exceeded its authority. He was answered by McIIenry, who, by a concise analysis of the constitution, drew to himself the sympathy of his hearers. The legislature unani- mously ordered a convention of the people of the state; it copied the example set by Virginia of leaving the door open for amendments ; ^ and by a majority of one the day for the choice and the day for the meeting of its convention were postponed till the next April. The long delay gave opportunity for the cabalings of the anti-federalists of Virginia.* Hichard Henry Lee was as zeal- ous as ever ; and Patrick Henry disseminated propositions for a southern confederacy ; || but Washington, who felt himself at home on the Maryland side of the Potomac, toiled fearless- ly and faithfully, with Madison at his side, for the immediate and unconditioned ratification of the constitution by the South. In the three months' interval before the election, the fields and forests and to^^vns of Maryland were alive with thought ; the merits of the constitution were scanned and sifted in every public meeting and at every hearth ; and on the day in 1788 for choosing delegates, each voter, in designating the candidate of his preference, registered his o^vn deliberate decision. In fifteen counties, and the cities of Baltimore and Annapolis, there was no diversity of sentiment. Two counties only re- * Report in the Mass. Spy, copied into Ind. Gazetteer of 9 April 17S8. f Ind. Gazetteer, 17 March 1788. X Madison to Jefferson, 9 December 17S7 ; Madison, i., 363, 3G1. * Letters to Washington, iv., 196. I This is repeatedly told of Henry by Carriugton. See also Madison, i., 365 I 1783 THE CONSTITUTION" IN MARYLAND. 411 turned none but anti-federalists ; Harford county elects d tliree of that party and one trimmer. The day before the convention was to assemble, Washing- ton, guarding against the only danger that remained, addressed a well-considered letter to Thomas Johnson : " An adjoui-n- ment of your convention will be tantamount to the rejection of the constitution. It cannot be too much dej)reeated and guarded against. Great use is made of the postponement in New Hampshire, although it lias no reference to the conven- tion of this state. An event similar to this in Maryland would have the worst tendency imaginable; for indecision there would certainly have considerable influence upon South Caro- lina, the only other state which is to precede Yirginia ; and it submits the question almost wholly to the determination of the latter. The pride of the state is already touched, and will be raised much higher if there is fresh cause." * The advice, which was confirmed by similar letters from Madison, was communicated to several of the members ; so that the healing influence of Yirginia proved greater than its power to wound. But the men of Maryland of themselves knew their duty, and Washington's advice was but an encour- agement for them to proceed in the way which they had chosen. On Monday, the twenty-first of April, a quorum of the convention assembled at Annapolis. The settlement of repre- sentation in the two branches of the federal legislature was pleasing to all the representatives of fifteen counties, and the cities of Baltimore and Annapolis agreed with each other per- fectly that the main question had already been decided by the people in their respective counties ; and that the ratification of the constitution, the single transaction for which they were convened, ought to be speedily completed. Two days were given to the organization of the house and establishing rules for its government ; on the third tlie constitution was read a first time, and the motion for its ratification was formally made. The plan of a confederacy of slave-holding states found not * "Washington to Thomas Johnson, 20 April 1'788 ; T. Johnson to Washing- ton, 10 October 1788. Compare Washington to James McIIenry, 27 April 1788 ; to Daniel of St. Thomas Jenifer, 27 April 1788 ; to James Madison, 2 ilay 1788. 412 THE STATES RATIFY THE CONSTITUTION, b. iv. ; ch. iv. one supporter ; not one suggested an adjournment for tlie pur- pose of consultation with Virginia. The malcontents could embarrass the convention only by proposing pernicious amend- ments. On the morning of the twenty-fourth, Samuel Chase took his seat, and at the second reading of the constitution began from elaborate notes the fiercest opposition : The powers to be vested in the new government are deadly to the cause of hberty, and should be amended before adoption ; five states can now force a concession of amendments which after the national gov- ernment shall go into operation could be carried only by nine.* He spoke till he was exhausted, intending to resume his argu- ment on the following day. In the afternoon, William Paca of Harford county, a signer of the declaration of independence, aj^peared for the first time and sought to steer between the clashing opinions, saying : " I have a variety of objections ; not as conditions, but to accompany the ratification as standing instructions to the representatives of Maryland in congress." To Johnson the request seemed candid; and on his motion the convention adjourned to the next morning. f The interval was em- ployed in preparing a set of amendments to the constitution, which were adapted to injure the cause of federalism in Vir- ginia. J On Friday morning a member from each of eleven several counties and the two cities, one after the other, declared " that he and his colleagues were under an obligation to vote for the government ; " and almost all declared further that they had no authority to propose amendments which their constituents had never considered, and of course could never have directed.* When Paca began to read his amendments, he was called to order by George Gale of Somerset county, the question before the house being still " on the ratification of the constitution." Chase once more " made a display of all his eloquence ; " John F. Mercer discharged his whole " artillery of inflammable * Notes of Chase on the constitution, MS. ; and the historical address of Alex. C. Hanson, MS. f Hanson's MS. narrative. X James Mellenry to Washington, 18 May 1788. # Alex. C. Hanson. MS. Elliot, ii., 548. 1788. THE CONSTITUTIOlNr IN MAEYLAND. 413 matter ; " and Martin rioted in boisterons " vehemence ; " " but no converts were made ; no, not one." * The friends to the federal government " remained inflexibly silent." The malcontents having tired themselves out, be- tween two and three o'clock on Saturday, the twenty-sixth, the constitution was ratified by sixty-three votes against eleven, Paca voting with the majority. Proud of its great majority of nearly six to one, the convention fixed Monday, at three o'clock, for the time when they would all set their names to the instrument of ratification. Paca then brought forward his numerous amendments, say- ing that with them his constituents would receive the consti- tution, without them would oppose it even with arms.f After a short but perplexed debate he was indulged in the appoint- ment of a committee of thirteen, of which he himself was the chairman; but they had power only to recommend amend- ments to the consideration of the people of Maryland. The majority of the committee readily acceded to thirteen resolu- tions, explaining the constitution according to the construction of its friends, and restraining congress from exercising power not expressly delegated. The minority demanded more ; the committee fell into a wrangle ; the convention on Monday sent a summons for them ; and Paca, taking the side of the minori- ty, would make no report. Thereupon the convention dis- solved itself by a great majority. The accession of Maryland to the new union by a vote of nearly six to one brought to the constitution the majority of the thirteen United States, and a great majority of their free inhabitants. The state which was cradled in religious liberty gained the undisputed victory over the first velleity of the slave-holding states to form a separate confederacy. " It is a thorn in the sides of the leaders of opposition in this state!" wrote Washington to Madison. J " Seven afiirmative without a negative would almost convert the unerring sister. The fiat of your convention will most assuredly raise the edifice," * were his words to Jenifer of Maryland. * Washington to Madison, 2 May 1788. f Hanson. MS. X Washington to Madison, 2 May 1788. * Washington to Daniel of St. Thomas Jenifer, 27 April 1788. 414 THE STATES RATIFY THE CONSTITUTION b. iv. ; en. iv. In his hours of meditation he saw the movement of the di- vine power which gives nnitj to the "universe, and order and connection to events : " It is impracticable for any one who has not been on the spot to realize the change in men's minds, and the progress toward rectitude in thinking and acting. " The plot thickens fast. A few short weeks will deter- mine the political fate of America for the present generation, and probably produce no small influence on the happiness of society through a long succession of ages to come. Should everything proceed w^ith harmony and consent according to our actual wishes and expectations, it will be so much beyond anything we had a right to imagine or expect eighteen months ago that it will, as visibly as any possible event in the course of human affairs, demonstrate the linger of Providence." ^ In South Carolina the new constitution awakened fears of oppressive navigation acts and of disturbance in the ownership of slaves. The inhabitants of the upper country, who suffered from the undue legislative power of the city of Charleston and the lower counties, foreboded new inequalities from a consolidation of the union. A part of the low country, still suffering from the war, had shared the rage for instalment laws, paper money, and payment of debts by appraised prop- erty ; and to all these the new constitution made an end. The opposition from Virginia f intrigued for a southern confederacy, while Madison, in entire unison with Washing- ton, wrote to his friends in behalf of union.:]: They both knew that there was to be resistance to the constitution, with Rawlins Lowndes for its spokesman ; and as he could by no possibility be elected into the convention, the chief scene of the opposition could only be the legislature.* In January 1788 the senate unanimously voted thanks to the members from their state in the federal convention for their faithfulness. On the sixteenth, in the committee of the whole house of representatives, Charles Pinckney gave a his- * Washington to the Marquis de la Fayette, 28 May 1*788. f Jefferson to Shippen, 14 July 1783. "Mr. Henry disseminated propositions there for a southern confederacy." X Madison to Washington, 10 April 1788. Works, i., 384, 885. * Madison, i., 382 ; Elliot, iv., 274. 1788. THE CONSTITUTIOiT IN" SOUTH CAROLINA. 415 tor J* of the formation and tlie character of "the federal re- public ; " which was to operate upon the people and not upon the states. At once Lowndes f objected that the interests of South Carolina were endangered by the clause in the constitu- tion according to which a treaty to be made by two thirds of the senate, and a president who w^as not likely ever to be chosen from South Carolina or Georgia, would be the supreme law of the land. Cotesworth Pinckney condemned the reasoning as disingenuous. "Every treaty," said John Kutledge, "is law paramount and must operate," not less under the confederation than under the constitution, f "If treaties are not superior to local laws," asked Kamsay, "who will trust them?" Lowndes proceeded, saying of the confederation : " We are now under a most excellent constitution — a blessing from heaven, that has stood the test of time, and given us liberty and independ- ence ; yet we are impatient to pull down that fabric w^hich we raised at the expense of our blood." * Now, Eawlins Lowndes had pertinaciously resisted the declaration of independence ; and when, in 1778, South Carolina had made him her governor, had in her reverses sought British protection. He proceeded : " When this new constitution shall be adopted, the sun of the southern states will set, never to rise again. AVhat cause is there for jealousy of our importing negroes ? Why confine us to twenty years ? Why limit us at all ? This trade can be justified on the principles of religion and humanity. They do not like our slaves because they have none themselves, and, therefore, v^ant to exclude us from this great advantage." ] " Every state," interposed Pendleton, " has prohibited the importation of negroes except Georgia and the two Carolinas." Lowndes continued: "Without negroes this state would degenerate into one of the most contemptible in the union, l^egroes are our wealth, our only natural resource ; yet our kind friends in the ISTorth are determined soon to tie up our hands and drain us of w^hat we have." " Against the restrictions that might be laid on the African trade after the year 1808," said Cotesworth Pinckney on the * Elliot, iv., 253-263. t Elliot, iv., 267, 268. f Elliot, iv., 265, 266. * Elliot, iv., 270-272. I Elliot, iv.. 272. 416 THE STATES EATIFY THE CONSTITUTION, b. iv. ; ch. i\r. seventeentli, " jour delegates had to contend with the reh'gious and political prejudices of the eastern and middle states, and with the interested and inconsistent opinion of Virginia. It was alleged that slaves increase the weakness of any state which admits them ; that an invading enemy could easily turn them against ourselves and the neighboring states ; and tliat, as we are allowed a representation for them, our injfluence in government would be increased in proportion as we were less able to defend ourselves. ' Show some period,' said the mem- bers from the eastern states, ' when it may be in our power to put a stop, if we please, to the importation of this weakness, and we will endeavor, for your convenience, to restrain the re- ligious and political prejudices of our people on this subject.' The middle states and Virginia made us no such proposition ; they were for an immediate and total prohibition. A com- mittee of the states was appointed in order to accommodate this matter, and, after a great deal of difficulty, it was settled on the footing recited in the constitution. " By this settlement we have secured an unlimited impor- tation of negroes for twenty years. The general government can never emancipate them, for no such authority is granted, and it is admitted on all hands that the general government has no powers but what are expressly granted by the consti- tution. We have obtained a right to recover our slaves in whatever part of America they may take refuge, which is a right we had not before. In short, considering all circum- stances, we have made the best terms in our power for the security of this species of property. "We would have made better if we could ; but, on the whole, I do not think them bad." * " Six of the seven eastern states," continued Lowndes, " form a majority in the house of representatives. Their inter- est will so predominate as to divest us of any pretensions to the title of a republic. They draw their subsistence, in a great measure, from their shipping ; the regulation of our commerce throws into their hands the carrying trade under payment of whatever freightage they think proper to impose. Why should the southern states allow this without the consent of * Elliot, iv., 277-286. ,1788. THE CON-STITUTION" IN" SOUTH OAEOLIN-A. 417 nine states ? If at any future period we should remonstrate, ' mind your business ' will be the style of language held out toward the southern states." "The fears that the northern interests will prevail at all times," said Edward Kutledge, " are ill-founded. Carry your views into futurity. Several of the northern states are already full of people ; the migrations to the South are immense ; in a few years we shall rise high in our representation, while other states will keep their present position." * The argument of Lowndes rested on the idea that the southern states are weak. " We are weak," answered Cotes- worth Piuckney ; " by ourselves we cannot form a union strong enough for the purpose of effectually protecting each other. Without union with the other states, South Carolina must soon fall. Is there any one among us so much a Quixote as to sup- pose that this state could long maintain her independence if she stood alone, or was only connected w^ith the southern states ? I scarcely believe there is. As, from the nature of our climate and the fewness of our inhabitants, we are undoubtedly weak, should we not endeavor to form a close union with the eastern states, who are strong ? We certainly ought to endeavor to increase that species of strength which will render them of most service to us both in peace and war. I mean their navy. Justice to them and humanity, interest and policy, concur in prevailing upon us to submit the regulation of commerce to the general government.f Lowndes renewed his eulogy on the old confederation. " The men who signed it were eminent for patriotism and vir- tue ; and their wisdom and prudence particularly appear in their care sacredly to guarantee the sovereignty of each state. The treaty of peace expressly agreed to acknowledge us free, sovereign, and independent states ; but this new constitution, being sovereign over all, sweeps those privileges away." X Cotesworth Pinckney answered : " We were independent before the treaty, which does not grant, but acknowledges our independence. We ought to date that blessing from an older charter than the treaty of peace ; from a charter which our * Elliot, iv., 272, 274, 276, 277, 288. I Elliot, iv., 283, 284. X Elliot, iv., 287. VOL. VI.— 27 4:18 THE STATES EATIFY THE CONSTITUTIOIT. b. iv. ; ch. iv. babes should be taught to lisp in their cradles ; which our youth should learn as a carmen necessarium^ an indispensable lesson ; which our young men should regard as their compact of free- dom ; and which our old should repeat with ejaculations of gratitude for the bounties it is about to bestow on their pos- terity. I mean the declaration of independence, made in con- gress the 4th of July 17TG. This manifesto, which for impor- tance of matter and elegance of composition stands unrivalled, confutes the doctrine of the individual sovereignty and inde- pendence of the several states. The separate independence and individual sovereignty of the several states were never thought of by the enlightened band of patriots who framed this decla- ration. The several states are not even mentioned by name in any part of it ; as if to impress on America that our freedom and independence arose from our union, and that without it we could neither be free nor independent. Let us, then, con- sider all attempts to weaken this miion by maintaining that each state is separately and individually independent, as a spe- cies of political heresy which can never benefit us, but may bring on us the most serious distresses." "^ Lowndes sought to rally to his side the friends of paper money, and asked triumphantly : " What harm has paper money done ? " " What harm ? " retorted Cotesworth Pinck- ney. " Beyond losses by depreciation, paper money has cor- rupted the morals of the people ; has diverted them from the paths of honest industry to the ways of ruinous speculation ; has destroyed both public and private credit ; and has brought total ruin on numberless widows and orphans." f James Lincoln of Ninety-six pressed the objection that the constitution contained no bill of rights. Cotesworth Pinck- ney answered : " ^y delegating express powers, w^e certainly reserve to ourselves every power and right not mentioned in the constitution. Another reason weighed particularly with the members from this state. Bills of rights generally begin with declaring that all men are by nature born free. Now, we should make that declaration with a very bad grace when a large part of our property consists in men who are actually born slaves." X * ElUot, iv., 301, 302. f Elliot, iv., 306. % Elliot, iv., 315, 316. 1788. THE CONSTITUTION^ IN SOUTH CAROLINA. 419 Lowndes, following the lead of the opposition of Virginia, had recommended another convention in which every objection could be met on fair giounds, and adequate remedies applied.* The proposal found no acceptance ; but he persevered in cavil- ling and objecting. At last John Rutledge impatiently ex- pressed a hope that Lowndes would find a seat in the coming convention, and pledged himself there to prove that all those grounds on which he dwelt amounted to no more than mere declamation ; that his boasted confederation was not worth a farthing ; that if such instruments were piled up to his chin they would not shield him from one single national calamity ; that the sun of this state, so far from being obscured by the new constitution, would, when united with twelve other suns, aston- ish the world by its lustre." f The resolution for a convention to consider the constitution Was unanimously adopted. In the rivalry between Charleston and Columbia as its place of meeting, Charleston carried the day by a majority of one vote. :j: The purest spirit of patriotism and union and veneration for the men of the revolution pervaded South Carohna at the time of her choice of delegates. Foremost among them were the venerable Christopher Gadsden and John llutledge, Moul- trie and Motte, William Washington, Edward Rutledge, the three Pincloieys, Grimke, and Ramsay ; the chancellor and the leading judges of the state ; men chiefly of English, Scotch, Scotch-Irishj and Huguenot descent ; a thorough representation of the best elements and culture of South Carolina. The convention organized itself on the thirteenth of May, with Thomas Pinckney, then Governor of South Carolina, as president. The ablest man in the opposition was Edanus Burke ; but the leader in support of the Virginia malcontents was Sumter. A week's quiet consideration of the constitu- tion by paragraphs showed the disposition of the convention, when on the twenty-first Sumter, as a last effort of those w^ho wished to act with Virginia, made a motion for an adjourn- ment for five months, to give time for the further considera- tion of the federal convention. A few gave way to the hope of conciliating by moderation ; but after debate the motion * Elliot, iv., 290. f Elliot, iv., 312. X Elliot, iv., 316, 317. d:20 THE STATES RATIFY THE CONSTITUTION. B.iy.;oH.iv. received only eighty-nine votes against one hundred and thirty- five. Three or four amendments were recommended; and then, at five o'clock in the evening of the twenty-third, the constitution was ratified by one hundred and forty-nine votes against seventy-three — more than two to one.* As the count was declared, the dense crowd in attendance, carried away by a wild transport of joy, shook the air with their cheers. When order was restored, the aged Christopher Gadsden said : " I can have but little expectation of seeing the happy effects that will result to my country from the wise decisions of this day, but I shall say with good old Simeon : Lord, now lettest thou thy servant depart in peace, for mine eyes have seen the salvation of my country." f The delegates of South Carolina to the federal convention received a vote of thanks. Those in the opposition promised as good citizens to accept the result. In 1765 South Carolina was one of the nine states to meet in convention for resistance to the stamp-act ; and now she was the eighth state of the nine required for the adoption of the constitution. When the astonishing tidings reached IN'ew Hampshire, her people grew restless to be the state yet needed to assure the new bond of union ; but for that palm she must run a race with Yirginia. * Elliot, iv., 318, 338-340. f Penn. Packet, 14 June 1788. 1735-1786. THE NAVIGATION OF THE MISSISSIPPI. 421 CHAPTEE Y. the constitution in virginia and in new hampshire. From May 1785 to 25 June 1788. From Yirginia proceeded the soutliern opposition to the consolidation of the union. A strife in congress, in which tlie North was too much in the wrong to succeed, united the five southernmost states together in a struggle which endangered the constitution. In May 1785, Diego Gardoqui arrived, charged with the afEairs of Spain, and seemingly empowered to fix the respect- ive limits and adjust other points * between two countries which bordered on each other from the Atlantic to the head- spring of the Mississippi. On the twentieth of July 1785 congress invested Secretary Jay with full powers to negotiate with Gardoquijf instructing him, however, previous to his making or agreeing to any proposition, to communicate it to congress. The commission was executed, and negotiations im- mediately began. Jay held the friendship of Spain most de- sirable as a neighbor ; as a force that could protect the United States from the piracies of the Barbary powers and conciliate the good-will of Portugal and Italy ; as a restraint on the in- fluence of France and of Great Britain ; and as the ruler of dominions of which the trade offered tempting advantages. He therefore proposed that the United States, as the price of a treaty of reciprocity in commerce, should forego the naviga- tion of the Mississippi for twenty-five or thirty years. On the third of August 1786, Jay appeared before congress * Diplomatic Correspondence, vi., 81-97. Secret Journals, iii., 669, 570. f Secret Journals, iii., 568-570. 422 THE STATES RATIFY THE CONSTITUTION, b. it. ; ch. v. and read an elaborate paper, in whicli lie endeavored to prove that the experiment was worth trying.* The proposal sacrificed a vitally important right of one part of the union to a commer- cial interest of another ; yet the instruction which made the right to the navigation of the Mississippi an ultimatum in any treaty with Spain was, after three wrecks' reflection, re- pealed by a vote of seven northern states against Maryland and all south of it. On the twenty-fifth of August, Secretary Jay was enjoined in his plan of a treaty with the king of Spain to stipulate the right of the United States to their territorial bounds, and the free navigation of the Mississippi from its source to the ocean as established in their treaties with Great Britain ; and neither to conclude nor to sign any treaty with the Spanish agent until he should have communicated it to congress and received their approbation, f The members of the southern states were profoundly alarmed. On the twenty-eighth Charles Pinckney, supported by Carrington, in their distrust of Jay, sought to transfer the negotiation to Madrid; but in vain. The delegates of Vir- ginia, Grayson at their head, strove to separate the commer- cial questions from those on boundaries and navigation. " The surrender or proposed forbearance of the navigation of the Mississippi," they said, "is inadmissible upon the principle of the right, and upon the highest principles of national ex- pedience. In the present state of the powers of congress, every wise statesman should pursue a system of conduct to gain the confidence of the several states in the federal council, and thereby an extension of its powers. This act is a dismember- ment of the government. Can the United States then dismem- ber the government by a treaty of commerce? But Jay, supported by the North, persisted, if Monroe still loyally retained his desire that the regulation! of commerce should be in the hands of the United States, and! his opinion that without that power the union would infalliblyj tumble to pieces ; but now he looked about him for means to strengthen the position of his own section of the country ; and * Diplomatic Correspondence, vi., 177. f Secret Journals, iii., 686. I Secret Journals, iv., 87-110. 1786-1788. THE CONSTITUTION IN VIRGINIA. 423 to Madison on the third of September he wrote : " 1 earnestly wish the admission of a few additional states into tlie confed- eracy in the southern scale." * " There is danger," reported Otto to Yergennes, t "that the discussion may become the germ of a separation of the southern states." Murmurs arose that plans were forming in New York for dismembering the confederacy and throwing New York and New England into one government, with the addition, if possible, of New Jersey and Pennsylvania. " Even should the measure triumph under the patronage of nine states or even the whole thirteen," wrote Madison in October, "it is not expedient because it is not just." :j: The next legislature of Virginia unanimously re- solved " that nature had given the Mississippi to the United States, that the sacrifice of it would violate justice, contravene the end of the federal government, and destroy confidence in the federal councils necessary to a proper enlargement of their authority." The plan could not succeed, for it never had the consent of Spain ; and if it should be formed into a treaty, the treaty could never obtain votes enough for its ratification. In the new congress. New Jersey left the North ; Pennsylvania, of which a large part lay in the Mississippi valley, became equally divided ; and Rhode Island began to doubt. But already many of Virginia's '' most federal " statesmen were extremely disturbed ; Patrick Henry, who had hitherto been the cham- pion of the federal cause, refused to attend the federal conven- tion that he might remain free to combat its result ; and an uncontrollable spirit of distrust drove Kentucky to listen to Eichard Henry Lee, and imperilled the new constitution. The people of Virginia, whose undisputed territory had ample harbors convenient to the ocean, and no western limit but the Mississippi, had never aspired to form a separate re- public. They had deliberately surrendered their claim to the north-west territory ; and true to the idea that a state should not be too large for the convenience of home rule, they sec- onded the desire of Kentucky to become a commonwealth by itself. The opinion of Washington that the constitution would * Monroe to Madison, 3 September 1786. f Otto to Vergennes, 10 September 1786. | MaJison, i., 250. 424 THE STATES KATIFY THE COi^STITUTIOl^. b. iv. ; oh. v. be adopted by Yirginia was not shaken.* Relieved from anx- iety at borne, be found time to watcb tbe gathering clouds of revolution in Europe, and shaped in bis own mind the foreign policy of tbe republic. His conclusions, which on New Year's day 1788 he confided to Jefferson, his future adviser on the foreign relations of tbe country, were in substance precisely as follows : Tbe American revolution has spread through Europe a better knowledge of the rights of mankind, the privileges of the people, and tbe principles of Hberty than has existed in any former period ; a war in that quarter is likely to be kin- dled, especially between France and England ; in tbe impend- ing struggle an energetic general government must prevent the several states from involving themselves in tbe political disputes of the European powers. Tbe situation of the United States is such as makes it not only unnecessary but extremely imprudent for them to take part in foreign quarrels. Let them wisely and properly improve tbe advantages which na- ture has given them, and conduct themselves with circum- spection. By that policy, and by giving security to property and liberty, they will become tbe asylum of the peaceful, the industrious, and the wealthy from all parts of tbe civilized world.f lN"or did Washington cease bis vigilant activity to confirm Yirginia in federal opinions. Especially to Edmund Ran- dolph, then governor of Yirginia and in the height of bis pop- ularity, be addressed himself:): with convincing earnestness, and yet with a delicacy that seemed to leave the mind of Ran- dolph to its own workings. Madison, likewise, kept up with Randolph a most friendly and persuasive correspondence. As a natural consequence, the governor, who began to see tbe impossibility of obtaining amendments without endangering the success of the constitu- tion, soon planted himself among its defenders ; while Monroe, leaving his inconsistency unexplained, was drawn toward the adversaries of Madison. * Washington to Lafayette, 10 January 1788. f Washin!]cton to Jefferson, 1 January 1788. Compare Washington to Knox, 10 January 1788. MS. X Washington to Edmund Randolph, 8 January 1788. Sparks, ix., 297. 1788. THE COISrSTITUTION IN VIRGINIA. 425 The example of Massacliusetts had great influence by its recommendation of amendments ; and still more by the avowed determination of the defeated party honestly to support the decision of tlie majority. But while the more moderate of the malcontents " appeared to be preparing for a decent sub- mission," and even Eichard Henry Lee set bounds to his op- position,* the language of Henry was : " The other states can- not do without Virginia, and we can dictate to them what terms we please." " His plans extended contingently even to foreign alliances." f The report from the federal convention agitated the people more than any subject since the first days of the revolution, and with a greater division of opinion. :j: It was remarked that while in the seven northern states the principal ofiicers of gov- ernment and largest holders of property, the judges and law- yers, the clergy and men of letters, were almost without ex- ception devoted to the constitution, in Virgin ia the bar and the men of the most culture and property were divided. In Yirginia, too, where the mass of the people, though accus- tomed to be guided by their favorite statesmen on all new and intricate questions, now, on a question which surjDassed all others in novelty and intricacy, broke away from their lead and followed a mysterious and prophetic influence T7hich rose from the heart. The phenomenon w^as the more wonderful^ as all the adversaries of the new constitution justified their op-'^ position on the ground of danger to the liberties of the people.*. And over all discussions, in private or in public, there hovered the idea that "Washington was to lead the country safely along the untrodden path. In the time preceding the election the men of Kentucky were made to fear the surrender of the Mississippi by the federal government ; and the Baptists, the reunion of church and state. 11 The election of Madison to the convention was * Compare Cyrus Griffin to Thomas Fitzsimons, 15 February 1*788. f Carrington to Madison, 18 January 1788. it Monroe to Madison, 13 October 1787. * Madison, i., 365, 366. I James Madison, Sr., to his son, 30 January 1788 ; Scrapie's Baptists in Virginia, 76, 77. 426 THE STATES KATIFY THE CONSTITUTION, b. it. ; ch. v. held to be indispensable.* " lie will be the main pillar of the constitution," thought Jefferson ; " but though an immensely powerful one, it is questionable whether he can bear the weight of such a host." f But the plan for a southern confederacy was crushed by the fidelity of South Carolina ; and Washing- ton, who had foreseen the issue, cheered Madison on with good words : " Eight affirmatives without a negative carry weight of argument if not eloquence with it that would cause even * the unerring sister ' to hesitate." :j: On the day appointed for the meeting of the convention a quorum was present in Hichmond. It was auspicious that Ed- mund Pendleton, the chancellor, was unanimously chosen its president. The building which would hold the most listeners was made the place of meeting, but Henry was alarmed at the presence of short-hand reporters from the Philadelphia press, as he wished " to speak the language of his soul " * without the reserve of circumspection. During the period of the confedera- tion, which had existed but Kttle more than seven years, it had become known that slavery and its industrial results divided the South from the North ; and this conviction exercised a sub- tle influence. George Mason, following the advice of Richard Henry Lee, II and the precedent of Massachusetts, proposed that no question relating to the constitution should be propounded until it should have been discussed clause by clause ; and this was acquiesced in unanimously. The debates which ensued cannot be followed in the order of time, for Henry broke through every rule ; but an outline must be given of those which foreshadowed the future. Patrick Henry dashed instantly into the battle, saying: " The constitution is a severance of the confederacy. Its lan- guage, ' "We the people,' is the institution of one great con- solidated national government of the people of all the states, in- stead of a government by cr>mpact with the states for its agents. The people gave the convention no power to use their name." '^ * Washington in Rives, ii., 54Y. f Jefferson, Randolph's ed., ii., 270 ; in Rives, ii., 558. t Washington to Sladison, 2 May 1788. * Penn. Packet, 12 June 1788. II R. H. Lee to G. Mason, 7 May 1788. Life of R. H. L., ii., 89. ^ Elliot, iii., 21-23. 1788. THE CONSTITUTIOiT IN VIRGINIA. 427 "The question," said Ttandol]3li, "is now between union and no union, and I would sooner lop off mj right arm than consent to a dissolution of the union." ^^ " It is a national government," said George Mason, losing Ids self-control and becoming inconsistent. "It is ascertained by history that there . never was one government ever a very extencive country' p without destroying the liberties of the people. The power of laying direct taxes changes the confederation. The general government being paramount and more powerful, the state governments must give way to it ; and a general consolidated government is one of the worst curses that can befall a nation." f " There is no quarrel between government and liberty," said Pendleton ; " the former is the shield and protector of the latter. The expression ' We the people ' is a common one, and with me is a favorite. Who but the people can delegate pow- ers, or have a right to form government ? The question must be between this government and the confederation ; the latter is no government at all. Common danger, union, and the spirit of America carried us through the war, and not the con- federation of which the moment of peace showed the imbecility. Government, to be effectual, must have complete powers, aA legislature, a judiciary, and executive, l^o gentleman in this committee would agree to vest these three powers in one body. * The proposed government is not a consolidated government. It is on the whole complexion of it a government of laws and not of men." J Madison explained at large that the constitution is in part a consolidated union, and in part rests so completely on the states that its very life is bound up in theirs. And on another day he added ; " The powers vested in the proposed govern- ment are not so much an augmentation of powers in the general government as a change rendered necessary for the purpose of giving efficacy to those which were vested in it before." * The opposition set no bounds to their eulogy of the British constitution as compared with the proposed one for America. " The wisdom of the English constitution," said Monroe, " has given a share of the legislation to each of the three branches, * Elliot, Hi., 25-26. f Elliot., iii., 29-33. X Elliot, iii., 35-41. # Elliot, iii., 86-97, and 259. 4:28 THE STATES RATIFY THE CONSTITUTION, b. iv. ; en. v. which enables it to defend itself and to preserve the liberty of the X, people. In the plan for America I can see no real checks." * " We have not materials in this country," said Grayson, " for such a government as the British monarchy ; but I would have a president for life, choosing his successor at the same time ; a senate for life, with the powers of the house of lords ; and a triennial house of representatives, with the powers of the house of commons in England." f " How natural it is," said Henry, " when comparing deformities to beauty, to be stnick with the superiority of the British government to the proposed system. In England self-love, seK-interest stimulates the executive to advance the prosperity of the nation. Men cannot be depended on without self-love. Your president will not have the same motives of self-love to impel ]iim to favor your interests. His poHtical character is but transient. In the British government / the sword and purse are not united in the same hands ; in this system they are. Does not infinite security result from a sepa- ration? "J Madison on the fourteenth replied : " There never was, there never will be, an efficient government in which both the sword and purse are not vested, though they may not be given to the same member of government. The sword is in the hands of the British king ; the purse in the hands of the par- liament. It is so in America, as far as any analogy can exist. When power is necessary and can be safely lodged, reason commands its cession. From the first moment that my mind was capable of contemplating political subjects I have had a uniform zeal for a well-regulated republican government. Tlie estabhshment of it in America is my most ardent desire. If the bands of the government be relaxed, anarchy will produce despotism. Faction and confusion preceded the revolutions in Germany ; faction and confusion produced the disorders and commotions of Holland. In this commonwealth, and in every state in the union, the relaxed operation of the government has been sufficient to alarm the friends of their country. The rapid increase of population strongly calls for a republican or- ganization. There is more responsibility in the proposed gov- ernment than in the English. Our representatives are chosen * Elliot, iii., 218, 219. f Elliot, iii., 2V9. X Elliot, iii., 387, 388. 1788. THE CONSTITUTION IN VIKGINIA. 429 for two years, in England for seven. Any citizen may "be elected here ; in Great Britain no one without an estate of the annual value of six hundred pounds sterling can represent a county ; nor a corporation without half as much. If confidence be due to the government there, it is due tenfold here." * Against the judiciary as constituted by the constitution Henry on the twentieth exceeded himself in vehemence, find- ing dangers to the state courts by the number of its tribunals, by appellate jurisdictions, controversies between a state and the citizens of another state ; dangers to the trial by jury ; dan- gers springing out of the clause against the impairment of the obligations of a contract. On the same day Marshall, following able speakers on the same side, summed up the defence of the judiciary system : " Tribunals for the decisions of controversies, which were be- fore either not at all or improperly provided for, are here ap- pointed. Federal courts will determine causes with the same fairness and impartiality as the state courts. The federal judges are chosen with equal wisdom, and they are equally or more independent. The power of creating a number of courts is necessary to the perfection of this system. The jurisdiction of the judiciary has its limit. The United States court cannot extend to everything, since, if the United States were to make a law not warranted by any of the enumerated powers, the judges would consider it as an infringement of the constitu- tion. The state courts are crowded with suits ; if some of them should be carried to a federal court, the state courts will still have business enough. To the judiciary you must look for protection from an infringement on the constitution. ]^o other body can afford it. The jurisdiction of the federal courts over disputes between a state and the citizens of another state has been decried with unusual vehemence. There is a diffi- culty in making a state defendant which does not prevent its being plaintiff. It is not rational to suppose that the sovereign power should be dragged before a court. The intent is to ena- ble states to recover claims against individuals residing in other states. This construction is warranted by the words." On the clause relating to impairing the obligation of con- * Elliot, iii., 393-395. 430 THE STATES RATIFY THE CONSTITUTION", b. iv. ; ch. v. tracts, Marshall said tliis : '' A suit instituted in tlie federal courts bj the citizens of one state against the citizens of another state will be instituted in the court where the defendant resides, and will be determined bj the laws of the state where the con- tract was made. The laws which govern the contract at its formation govern it at its decision. Whether this man or that man succeeds is to the government all one thing. Congress is empowered to make exceptions to the appellate jurisdiction of the supreme court, both as to law and as to fact ; and these exceptions certainly go as far as the legislature may think proper for the interest and liberty of the people." * The planters of Virginia were indebted to British mer- chants to the amount of ten millions of dollars ; and the Yir- ginid legislature, under tlie influence of Henry, had withheld from these creditors the right to sue in the courts of Virginia until England should have fulfilled her part of the treaty of peace by surrendering the western posts and by making com- pensation for slaves that had been carried away ; he now cen- sured the federal constitution for granting in the case retro- spective jurisdiction. Marshall replied : " There is a difference between a tribunal which shall give effect to an existing right, and creating a right that did not exist before. The debt or claim is created by the individual ; a creation of a new court does not amount to a retrospective law." f Questions as to the powers which it would be wise to grant to the general government, and as to the powers which had been granted, dividod the convention. The decision of Mary- land and South Carolina dashed the hope of proselyting Vir- ginia to propose a separate southern confederacy ; but Henry on the ninth still said : " Compared with the consolidation of one power to reign with a strong hand over so extensive a country as this is, small confederacies are little evils. Virginia and N"orth Carolina could exist separated from the rest of America." :j: But he limited himself to proposing that Vir- ginia, " the greatest and most mighty state in the union," * followed by North Carolina and by New York, which state he announced as being in high opposition, || should hold the con- * Elli )t, iii., 551-560. f Elliot, iii., 539, 546, 561. t Elliot, iii., 161. « Elliot, iii., 142. B Elliot, iii., 157, 183. 1788. THE CONSTITUTION IN VIRGINIA. 431 stitution in suspense until they liad compelled the other states to adopt the amendments on which she should insist. He cited Jefferson as advising " to reject the government till it should be amended." * Randolph interpreted the letter which Henry had cited, as the expression of a strong desire that the govern- ment might be adopted by nine states with Virginia for one of the nine ; f and two days later Pendleton cited from the same letter the words that " a schism in our union would be an incurable evil." :{: On the eleventh and the seventeenth Mason introduced a new theme, saying: "Under the royal government the im- portation of slaves was looked upon as a great oppression ; but the African merchants prevented the many attempts at its prohibition. It was one of the great causes of our separation from Great Britain. Its exclusion has been a principal object of this state and most of the states in this union. The aug- mentation of slaves weakens the states. Such a trade is dia- bolical in itself and disgraceful to mankind ; yet by this con- stitution it is continued for tw^enty years. Much as I value a union of all the states, I would not admit the southern states into the union unless they agree to its discontinuance. And there is no clause in this constitution to secure the property of that kind which w^e have acquired under our former laws, and of which the loss would bring ruin on a great many people ; for such a tax may be laid as will amount to manumission." * Madison equally abhorred the slave-trade ; but on the seven- teenth answered, after reflection and with reserve : " The gen- tlemen of South Carolina and Georgia argued, ' By hindering us from importing this species of property the slaves of Yir- ginia will rise in value, and we shall be obliged to go to your markets.' I need not expatiate on this subject ; great as the evil is, a dismemberment of the union would be worse. Under the articles of confederation the traffic might be continued forever ; by this clause an end may be put to it after twenty years. From the mode of representation and taxation, congress can- not lay such a tax on slaves as will amount to manumission. At present, if any slave elopes to any of those states where * Elliot, lii., 152. t Elliot, ill., 304. f Elliot, ill., 200. # Elliot, iii., 270, 452. 1 432 THE STATES KATIFY THE CONSTITUTION". b.iv.;ch.v. slaves are free, lie becomes emancipated by their laws ; in this constitution a clause was expressly inserted to enable owners of slaves to reclaim them." Tyler supported Madison, speaking at large and with warmth : " This wicked traffic is impolitic, iniquitous, and dis- graceful. It was one cause of the complaints against British tyranny ; nothing can justify its revival. But for this tem- porary restriction, congress could have prohibited the African trade. My earnest desire is that it should be handed down to posterity, that I have opposed this wicked clause." * On the twenty-fourth Henry raised a new cry on the dan- ger of emancipation : " The great object of national govern- ment is national defence ; the northern states may call forth every national resource ; and congress may say, ' Every black man must fight.' In the last war acts of assembly set free every slave who would go into the army. Slavery is detested ; we feel its fatal effects ; we deplore it with all the pity of hu- manity. Let that urbanity which I trust will distinguish Americans, and the necessity of national defence, operate on their minds ; they have the power, in clear, unequivocal terms, to pronounce all slaves free, and they will certainly exercise the power. Much as I deplore slavery, I see that the general government ought not to set the slaves free ; for the major- ity of congress is to the North and the slaves are to the South." t The governor of Virginia first showed that the constitution itself did not, even in the opinion of South Carolina, menace enfranchisement ; and thus proceeded : " I hope that there is no one here who, considering the subject in the calm light of philosophy, will advance an objection dishonorable to Virginia ; that, at the moment they are securing the rights of their citi- zens, there is a spark of hope that those unfortunate men now held in bondage may, by the operation of the general govern- ment, be made free." J The representative from Augusta county, Zachariah John- son, complained that the bill of rights which the convention was preparing as an amendment to the constitution did not ac- knowledge that all men are by nature equally free and inde- * Elliot, Hi., 453, 454, 455. f Elliot, iil., 590. t Elliot, iii., 598. 1788. THE CONSTITUTION IN VIRGINIA. 433 pendent. " Gentlemen tell ns," he said, " that they see a pro- gressive danger of bringing about emancipation. The total aboHtion of slavery would do much good. The principle has begun since the revolution. Let us do what we may, it will come round." * To the declamations of Henry that the adoption of the con- stitution would be the renunciation of the right to navigate the Mississippi, Madison, on the twelfth, after a candid relation of what had transpired in congress, and giving the information that New Jersey and Pennsylvania were now strenuous against even any temporary cession of the navigation of that river, made the further irrefragable reply : " The free navigation of the Mississippi is our right. The confederation is so weak that it has not formed, and cannot form, a treaty which will secure to us the actual enjoyment of it. Under an efficient government alone shall we be able to avail ourselves fully of our right. The new government will have more strength to enforce it." " Should the constitution be adopted," said Mon- roe on the thirteenth, " the northern states will not fail to re- linquish the Mississippi in order to depress the western country and prevent the southern interest from preponderating." f " To preserve the balance of American power," continued Henry, " it is essentially necessary that the right of the Missis- sippi should be secured, or the South will ever be a contempti- ble minority." J " This contest of the Mississippi," said Grayson on the four- teenth, " is a contest for empire, in which Virginia, Kentucky, the southern states are deeply interested. It involves this great national question, whether one part of the continent shall govern the other. From the extent of territory and fertility of soil, God and nature have intended that the weight of popu- lation should be on the southern side. At present, for various reasons, it is on the other. If the Mississippi be shut up, emi- grations will be stopped entirely ; no new states will be formed on the western waters ; and this government will be a govern- ment of seven states." # To the last Grayson said : " The seven states, which are a majority, being actually in possession, * Elliot, iii., 648. , % Elliot, iii., 352. f Elliot, iii., 340. « Elliot, iii., 365, 366. VOL. TI. — 28 434 THE STATES RATIFY THE CONSTITUTION will never admit any soutliern state into the union so as to lose that majority." '^ The power of the government to establish a navigation act by a bare majority was bitterly complained of by George Ma- son ; t by Grayson, who complained that the interests of the carrying states would govern the producing states ; :j: by Tyler, who mourned over his own act in having proposed to cede the regulation of commerce to the confederation, since it had led to the grant of powers too dangerous to be trusted to any set of men whatsoever.^ Complaint was further made that treaties were to go into effect without regard to the opin- ion of the house of representatives ; and especially that there was no bill of rights, and that there was no explicit reserva- tion of powers not delegated to the general government. In some parts of the country the settlers were made to dread a resuscitation of old land companies through the federal judi- ciary. The prohibition on the states to issue paper money weighed on the minds of the debtor class ; but it was not much dis- cussed, for on that point George Mason and Kichard Henry Lee were the great leaders in favor of the suppression of paper money " as founded upon fraud and knavery." || And Mason had forced the assembly of Virginia in their last session to adopt a series of resolutions declaring that paper currency created scarcity of real money, and substituted for the real standard of value a standard variable as the commodities them- selves, ruining trade and commerce, weakening the morals of the people, destroying public and private credit and all faith between man and man, and aggravating the very evils which it was intended to remedy.^ And yet there were those in the convention whose votes were swayed by the consideration that, if the constitution should be established, there would be an end of inconvertible bills of credit forever. But that which af- fected the decision more than anything else was that the con- stitution would bring with it to British creditors a right to * Elliot, iii., 585. f Elliot, iii., 604. t Elliot, iii., 616. * Elliot, iii., 640, 641. II George Mason to ^Ya3llington, 6 November lYSYjin Letters to G. W., iv., 190, ^ Independent Gazetteer, 17 November 1*787. 1788. THE CONSTITUTION IN VIRGINIA. 435 recover tlirongli the federal courts claims on Virginia planters for about ten millions of dollars. The discussions had been temperately conducted till just at the last, when for a moment pretending that the acceptance of the constitution would make an end of the trial bj jury, Henry said, on the twentieth : " Old as I am, it is probable I may yet have the appellation of rebel. But my neighbors will protect me." * This daring drew out the reply that Virginia would be in arms to support the constitution ; and on the twenty-fifth James Innes of Williamsburg, quoting against him his own words, said : " I observe with regret a general spirit of jealousy with respect to our northern brethren. If we had had it in 1Y75 it would have prevented that unani- mous resistance which triumphed over our enemies ; it was not a Yirginian, a Carolinian, a Pennsylvanian, but the glorious name of an American, that extended from one end of the con- tinent to the other." f But the feeling was soon pacified, and the last words of Henry himself were : "If I shall be in the minority, I shall yet be a peaceable citizen, my head, my hand, and my heart being at liberty to remove the defects of the system in a constitutional way." J The last word was from the governor of Yirginia ; " The accession of eight states re- duces our deliberations to the single question of union or no union." ^ For more than three weeks the foes of the constitution had kept up the onset, and day after day they had been beaten back as cavalry that tries in vain to break the ranks of in- fantry. For more than three weeks Henry and Grayson and Mason renewed the onslaught, feebly supported by Monroe, and greatly aided by the weight of character of Benjamin Harrison and John Tyler ; day by day they were triumphantly encountered by Madison, on whom the defence of the con- stitution mainly rested; by Pendleton, who, in spite of in- creased infirmities, was moved even more deeply than in the beginning of the revolution ; and by the popular eloquence of Kandolph. These three champions were well seconded by * Elliot, iii., 546. t Elliot, iii., 652. f Elliot, iii., 633. * Ibid. 436 THE STATES RATIFY THE CONSTITUTION, b. iv. ; ch. v. George ^Nicholas, Jolin Marshall, James Innes, Ilenrj Lee, and Francis Corbin.* On the twentj-fif th, after debates for three weeks, the mal- contents had no heart for further resistance. The convention was willing to recommend a bill of rights in twenty sections, with twenty other more questionable amendments. The first motion was : '' Ought the declaration of rights and amend- ments of the constitution to be referred by this convention to the other states in the American confederacy for their con- sideration previous to the ratification of the new constitution of government ? " It was lost, having only eighty voices against eighty-eight. Then the main question was put, that the constitution be ratified, referring all amendments to the first congress under the constitution. The decision would be momentous, not for America only, but the whole world. "Without Virginia, this great country would have been shivered into fragmentary confederacies, or separate independent states. The roll was called ; and eighty-nine delegates, chiefly from the cities of Richmond and Williamsburg, from counties near the ocean, from the northern neck, from the north-western border counties, and from the counties between the Blue Ridge and the Alleghanies, voted for the constitution. Seventy-nine, mainly from other central and southern border counties, and from three fourths of the counties of Kentucky, cried 'No. The committee for reporting the form of ratification were Randolph, JSTicholas, Madison, Marshall, and Corbin — all from among the stanchest supporters of the constitution. In the form which was adopted they connected with the ratification " a few declaratory truths not affecting the validity of the act ; " f and shielded the rights of the states by the as- sertion *' that every power not granted by the constitution re- mains for the people of the United States and at their will." :j: After the vote was taken, the successful party were careful not to ruffle their opponents by exultation. Henry showed his genial nature, free from all malignity. He was like a billow of the ocean on the first bright day after the storm, dashing itself against the rocky cliff, and then, sparkling with light, re- * Compare Rives, ii., 561. f Madison to Washington, in Rives, ii., 608. if Elliot, iii., 656. 1788. THE CONSTITUTION IN VIPwGINIA. 437 treating to its home. It was more difficult for Mason to calm the morbid sensibility of his nature and to heal his sorrow at having abandoned one of the highest places of honor among the fathers of the constitution which he had done so much to initiate, to form, and to improve. He was pacified by words from Harrison and from Tyler, who held it the duty of good citizens to accept the decision of the majority, and by precept and example to promote harmony and order and union among their fellow-citizens. But that which did most to soothe the minority was their trust in Washington. " For the president," said Mason, " there seldom or never can be a majority in favor of one, except one great name, who wdll be unanimously elect- ed." * " Were it not for one great character in America," said Grayson, " so many men would not be for this govern- ment. We do not fear while he lives ; but who beside him can concentrate the confidence and affections of all Amer- ica? "f And Monroe reported to Jefferson: "Be assured, Washington's influence carried this government." J Nor was that influence confined to Virginia alone. The country was an instrument with thirteen strings, and the only master who could bring out all their harmonious thought w^as Washington. Had he not attended the federal convention, its work would have met a colder reception and more strenuous opponents. Had the idea prevailed that he would not accept the presidency, it would still have proved fatal.* Yirginia lost the opportunity of being the ninth state to constitute the union. While the long winter of New Hamp- shire intercepted the labors of husbandry, the fireside of the freeholders in its hundreds of townships became the scene for discussing the merits of the federal constitution with tlie dele- gates of their choice and with one another. Their convention reassembled in June. Four days served them to discuss the constitution, to prepare and recommend twelve articles of amendment, and, by fifty-seven voices against forty-six, to ratify the constitution. They took care to insert in their record that their vote w^as taken on Saturday, the twenty-first * Elliot, iii., 493; and compare 134. | Elliot, iil., 610. X Monroe to Jefferson, 12 July 17S8. * Life of Morris by Sparks, i., 289, 230. 438 THE STATES RATIFY THE CONSTITUTION", b. iv. ; on. v. of June, at one o'clock in the afternoon, that Yirglnia by a vote at a later hour of the same day might not dispute with them the honor of giving life to the constitution.* Bj their decision, accompanied by that of Virginia, the United States of America came formally into existence. As the glad tidings iiew through the land, the heart of its people thrilled with joy that at last the tree of union was firmly planted. Never may its trunk be riven by the lightning ; nor its branches crash each other in the maddening storm ; nor its beauty wither ; nor its root decay. * Tobias Lear to Washicgton, 22 June 1788. Letters to "Washington, iv., 225. THE FORMATION OF THE CONSTITUTION OF THE UITITED STATES OF AMEEIOA m FIVE BOOKS. BOOK FIFTH. THE FEDERAL GOVERNMENT. June, 1787. ^ CHAPTEK I. THE CONSTITUTION. 1787. " The American constitution is tlie most wonderful T70rk ever struck off at a given time by the brain and purpose of man ; " but it bad its forerunners. England bad suffered the thirteen colonies, as free states, to make laws each for itself and never for one of the others ; and had established their union in a tempered subordination to the British crown. Among the many guides of America, there had been Winthrop and Cotton, Hooker and Haynes, George Fox and William Penn, Roger Williams and John Clarke ; scholars of Oxford and many more of Cambridge ; Gustavus Adolphus and Oxenstiern; the merchants of the United Netherlands ; Southampton and Baltimore, with the kindliest influences of the British aristocracy ; Shaftesbury with Locke, for evil as well as for good ; all the great slave- traders that sat on thrones or were fostered by parliament ; and the philanthropist Oglethorpe, who founded a colony exclu- sively of the free on a territory twice as large as France, and though he had to mourn at the overthrow of his plans for liberty, lived to see his plantation independent. There were other precursors of the federal government; but the men who framed it followed the lead of no theoretical writer of their own or preceding times. They harbored no de- sire of revolution, no craving after untried experiments. They wrought from the elements which were at hand, and shaped them to meet the new exigencies which had arisen. The least possible reference was made by them to abstract doctrines; 44:2 THE FEDERAL GOVERNMENT. b. v. ; ch. i. tliej moulded their design by a creative power of tlieir own, but nothing was introduced that did not already exist, or was not a natural development of a well-known principle. The materials for building the American constitution were the gifts of the ages. Of old, the family was the rudiment of the state. Of the Jews, the organization was by tribes. The citizens of the com- monwealths of the Hellenes were of one blood. Among the barbarous tribes of the fourth continent, the governments and the confederacies all rested on consanguinity, l^ations, as the word implied, were but large communities of men of one kin ; and nationalities survive to this day, a source of strength in their unity, and yet of strife where two or more of them exist in their original separateness and are nevertheless held in sub- jection under one ruler. Rome first learned to cherish the human race by a common name and transform the vanquished into citizens. The process of assimilation which Eome initiated by war received its perfect development in the land where the Dutch and the Swedes, and in the country north-west of the Ohio the French, competed in planting colonies ; where the English, the L'ish, the Scotch for the most part came over each for himself, never reproducing their original nationality ; and where from the first fugitives from persecution of all nations found a safe asylum. Though subjects of the English king, all were pres- ent in America as individuals. The English language maintained itself without a rival, not merely because those speaking it as their mother tongue very greatly outnumbered all others, and because all acknowledged English supremacy ; but for the simplicity of its structure ; its logical order in the presentment of thought ; its suitableness for the purposes of every-day life ; for the discussion of ab- stract truths and the apprehension of Anglo-Saxon political ideas ; for the instrument of the common law ; for science and observation ; for the debates of public life ; for every kind of poetry, from humor to pathos, from descriptions of nature to the action of the heart and mind. But tlie distinctive character of the new people as a whole, their nationahty, so to say, was the principle of individuality 1T87. THE CONSTITUTION. 443 wliicli prevailed among tliem as it had nowhere done before. This individuality was strengthened by the straggles with 'Na- ture in her wildness, by the remoteness from the abodes of an- cient institutions, by the war against the traditions of absolute power and old superstitions, till it developed itself into the most perfect liberty in thought and action ; so that the Ameri- can came to be marked by tlio readiest versatility, the spirit of enterprise, and the faculty of invention. In the declaration of independence the representatives of the United States called themselves " the good people of these colonies." The states- men who drew the law of citizenship in 1776 made no distinc- tion of nationalities, or tribes, or ranks, or occupations, or faith, or wealth, and knew only inhabitants bearing allegiance to the governments of the several states in union. Again, this character of the people appeared most clearly in the joint action of the United States in the federal conven- tion, where the variant prejudices that still clung to separate states eliminated each other. x The constitution establishes nothing that interferes with^ equality and individuality. It knows nothing of differences by descent, or opinions, of favored classes, or legalized religion, or the political power of property. It leaves the individual alongside of the individual. No nationality of character could take form, except on the principle of individuality,'so that the mind might be free, and every faculty have the unlimited op- portunity for its development and culture. As the sea is made up of drops, American society is composed of separate, free, and constantly moving atoms, ever in reciprocal action, advanc- ing, receding, crossing, struggling against each other and with each other ; so that the institutions and laws of the country rise out of the masses of individual thought, which, like the waters of the ocean, are rolling evermore. The rule of individuality w^as extended as never before. The synod of the Presbyterians of E'ew York and Philadel- phia, a denomination inflexibly devoted to its own creed, in their pastoral letter of May 1783, published their joy that " the rights of conscience are inalienably secured and interwoven with the very constitutions of the several states." Religion was become avowedly the attribute of man and not of a cor- 444: THE FEDERAL GOVERNMENT. b.v.,-ch.i. poration. In the earliest states known to history, government and religion were one and indivisible. Each state had its special deity, and of these protectors one after another might be overthrown in battle, never to rise again. The Peloponne- sian war grew ont of a strife about an oracle. Eome, as it adopted into citizenship those whom it vanquished, sometimes introduced, and with good logic for that day, the worship of their gods. No one thought of vindicating liberty of religion for the conscience of the individual till a voice in Judea, break- ing day for the greatest epoch in the life of humanity by estab- lishing for all mankind a pure, spiritual, and universal religion, enjoined to render to Csesar only that which is Csssar's. The rule was upheld during the infancy of this gospel for all men. Ko sooner was the religion of freedom adopted by the chief of the Homan Empire, than it was shorn of its character of uni- versality and enthralled by an unholy connection with the unholy state : and so it continued till the new nation — the least defiled with the barren scoffings of the eighteenth century, the most sincere believer in Christianity of any people of that age, the chief heir of the reformation in its purest form — when it came to establish a government for the United States, refused to treat faith as a matter to be regulated by a corporate body, or having a headship in a monarch or a state. Vindicating the right of individuality even in religion, and in religion above all, the new nation dared to set the example of accepting in its relations to God the principle first divinely ordained in Judea. It left the management of temporal things to the temporal power ; but the American constitution, in har- mony with the people of the several states, withheld from the federal government the power to invade the home of reason, the citadel of conscience, the sanctuary of the soul ; and not from indifference, but that the infinite spirit < »f eternal truth might move in its feedom and purity and power. With this perfect individuality extending to conscience, freedom should have belonged to labor. What though slavery existed and still exists in the older states known to history, in Egypt, in China, coming down continuously from an unknown date ; what though Aristotle knew no mode of instituting a republican household but with a slave ; and Julius Caesar, irsr. THE CONSTITUTION". 445 when Italy was perisliing by the vastness of its slave estates, crowded tliem witli new hordes of captives ? What though the slave-trade was greedily continued under the passionate encouragement of the British parliament, and that in nearly all of the continent of Europe slavery in some of its forms prevailed ? In America, freedom of labor was the moral prin- ciple of the majority of the people ; was established, or moving toward immediate establishment, in a majority of the states ; was by the old confederation, with the promptest and oft- repeated sanction of the new government, irrevocably ordained in all the territory for which the United States could at that time make the law. The federal convention could not inter- fere with the slave laws of the separate states ; but it was care- ful to impose no new incapacitation on free persons of color ; it maintained them in all the rights of equal citizenship ; it granted those rights to the emancipated slave ; and it kept to itself the authority to abolish the slave-trade instantly in any ter- ritory that might be annexed ; in all other states and lands, at the earliest moment for which it had been able to obtain power. The tripartite division of government into legislative, executive, and judicial, enforced in theory by the illustrious Montesquieu, and practiced in the home government of every one of the American states, became a part of the Constitution of the United States, which derived their mode of instituting it from their own happy experience. It was established by the federal convention with a rigid consistency that went be- yond the example of Britain, where one branch of the legis- lature was still a court of appeal. Each one of the three de- partments proceeded from the people, and each is endowed with all the authority needed for its just activity. The presi- dent may recommend or dissuade from enactments, and has a limited veto on them ; but whatever becomes a law he must execute. The power of the legislature to enact is likewise un- controlled except by the paramount law of the constitution. The judiciary passes upon every case that may be presented, and its decision on the case is definitive ; but without further authority over the executive or the legislature, for the conven- tion had wisely refused to make the judges a council to either of them. 446 THE FEDERAL GOVERNMENT. b.v.;oh.i Tripartite division takes place not only in tlie threefold powers of government ; it is established as the mode of legis- lation. There, too, three powers, proceeding from the people, must concur, except in cases provided for, before an act of legislation can take place. This tripartite division in the power of legislation — so at the time wrote Madison, so thought all the great builders of the constitution, so asserted John Adams with vehemence and sound reasoning — is absolutely essential to the success of a federal republic ; for if all legislative pow- ers are vested in one man or in one assembly, there is despot- ism ; if in two branches, there is a restless antagonism between the two ; if they are distributed among three, it will be hard to unite two of them in a fatal strife with the third. But tlie executive, and each of the two chambers, must be so chosen as to have a character and strength and popular support of its own. The government of the United States is thoroughly a government of the people. By the English aristocratic revo- lution of 1688, made after the failure of the popular attempt at reform, the majority of the house of commons was in sub- stance composed of nominees of the house of lords, so that no ministry could prevail in it except by the power of that house ; and as the prime minister and cabinet depend on the majority in the house of commons, the house of lords directly controlled the government not only in its own branch but in the com- mons, and through the commons in the nomination of the min- istry. All three branches of the government were in harmony, for in those days, before the house of commons had entered successfully upon its long struggle for reform of the mode of its election, all three branches represented the aristocracy. In the United States, on the other hand, all the branches of power — president, senators, and representatives — ^proceed directly or indirectly from the people. The government of the United States is a government by the people, for the people. To perfect the system and forever prevent revohition, power is reserved to the people by amendments of their con- stitution to remove every imperfection which time may lay bare, and adapt it to unforeseen contingencies. But no change can be hastily made. An act of parliament can at any time alter the constitution of England; no similar power is dele- 1787. THE CONSTITUTION-. 447 gated to the congress of the United States, which, like parlia- ment, may be swayed by the shifting majorities of party. As to the initiation of amendments, it could not be intrusted to the president, lest it might lead him to initiate changes for his own advantage ; still less to a judiciary holding office for hfe, for, such is human nature, a tribunal so constituted and decid- ing by a majority, by whatever political party its members may have been named, cannot safely be invested with so tran- scendent a power. The legislatures of the states or of the United States are alone allowed to open the " constitutional door to amendments ; " and these can be made valid only through the combined intervention of the state legislatures and of congress, or a convention of all the states elected ex- pressly for the purpose by the people of the several states. In this way no change of the constitution can be made in haste or by stealth, but only by the consent of three quarters of the states after a full and free and often-repeated discussion. There is no legal road to amendment of the constitution but through the consent of the people given in the form prescribed by law. America, being charged with the preservation of lib- erty, has the most conservative polity in the world, both in its government and in its people. The new nation asserted itself as a continental republic. The discovery was made that the time had passed for little commonwealths of a single city and its environs. The great Frederick, who had scoffed at the idea of attempting to gov- ern an imperial domain without a king, was hardly in his grave when a commonwealth of more than twenty degrees in each direction, containing from the iirst an area six or seven times as large as the whole of Great Britain and Ireland, fifty or sixty times as great as the Netherlands or Switzerland, able to include more than a thousand confederacies as large as the Achaian, and ready to admit adjoining lands to fellowship, rose up in the best part of the temperate zone on a soil that had been collecting fertility for untold centuries. The day of the Greek commonwealth had passed forever ; and, after the establishment of the representative system, it was made known that a republican government thrives best in a vast territory. Monarchy had held itself a necessity for the formation of large 448 THE FEDERAL GOVERNMENT. b. v. ; ch. i. states ; but now it was found out that even in them monarchy can be dispensed with ; and the world w^as summoned to gaze at the spectacle of a boundless society of republican states in union. The United States of America are not only a republic, they are " a society of societies," " a federal republic." * Toward foreign powers the country has no seam in its garment ; it exists in absolute unity as a nation, with full and undisputed national resources. At home it is '' a union," or ''one out of many ; " ydthhi its own sphere supreme and self-supporting. For this end it has its own legislature to make enactments ; its own functionaries to execute them ; its own courts ; its own treasury ; and it alone may have an army and a navy. All- sufficient powers are so plainly given that there is no need of striving for more by straining the words in which they are granted beyond their plan and natural import. The constitution, the laws of the United States made in pursuance of it, and all treaties framed by their authority, are the supreme law of the land, binding the judges in every state even if need be in spite of the constitution and the laws of the state ; and all executive, legislative, and judicial officers, both of the United States and of the several states, are to be sworn to its support. The constitution provides within itself for the redress of every wrong. The supreme court offers relief in a " case " of injustice or conflict with the constitution ; the remedy for a bad law is to be sought through the freedom and frequency of elections; a fault in the constitution by its amendment. Except for the powers granted to the federal government, each state is in all things supreme, not by grace, but of right. The United States may not interfere with any ordinance or law that begins and ends within a state. This supremacy of the states in the powers which have not been granted is as essen- tially a paii; of the system as the supremacy of the general government in its sphere. The states are at once the guard- ians of the domestic security and the happiness of the in- dividual, and they are the parents, the protectors, and the stay of the union. The states and the United States are members * Words used by Montesquieu, Esprit dcs Lois, livre ix., cb. i. 1787. THE CONSTITUTION. 449 of one great whole ; and the one is as needful as the othsr. The powers of government are not divided between them ; they are distributed ; so that there need be no collision in their exercise. The union without self -existent states is a harp with- out strings ; the states without union are as chords that are un- strung. Bat for state rights the union would perish from the paralysis of its limbs. The states, as they gave life to the union, are necessary to the continuance of that life. Within their own limits they are the guardians of industry, of proper- ty, of personal rights, and of liberty. But state rights are to be defended inside of the union ; not from an outside citadel from which the union may be struck at or defied. The states and the United States are not antagonists ; the states in union form the federal republic ; and the system can have life and health and strength and beauty only by their harmonious ac- tion. In short, the constitution knows nothing of United States alone, or states alone ; it adjusts the parts harmoniously in an organized unity. Impair the relations or the vigor of any part, and disease enters into the veins of the whole. That there may be life in the whole, there must be healthy life in every part. The United States are the states in union ; these are so inwrought into the constitution that the one cannot per- ish without the other. Is it asked who is the sovereign of the United States^ The words " sovereign " and " subjects " are unknown to the constitution. There is no place for princes with unlimited\ power, or conquering cities, or feudal chiefs, or privileged aris- tocracies, ruling absolutely with their correlative vassals or subjects. The people of the United States have declared in their con- stitution that the law alone is supreme ; and have defined that supreme law. Is it asked who are the people of the United States that instituted the " general government " ? Tlie fed- eral convention and the constitution answer, that it is the con- curring people of the several states. The constitution is con- stantly on its guard against permitting the action of the aggregate mass as a unit, lest the whole people, once accus- tomed to acting together as an individual, might forget the existence of the states, and the states now in union succumb to VOL. VI. — 29 450 THE FEDERAL GOVERNMENT. b. v. ; ch. i. eentrallzation and absolutism. The people of the states de- manded a federal convention to form the constitution ; the congress of the confederation, voting by states, authorized that federal convention ; the federal convention, voting likewise by states, made the constitution ; at the advice of the federal con- vention the federal congress referred that constitution severally to the people of each state ; and by their united voice taken severally it was made the binding form of government. The constitution, as it owes its life to the concurrent act of the peo- ple of the several states, permits no method of amending itself except by the several consent of the people of the states ; and within the constitution itself the president, the only officer who has an equal relation to every state in the union, is elected not by the aggregate people of all the states, but by the sepa- rate action of the people of the several states according to the number of votes allotted to each of them. Finally, there is one more great and happy feature in the constitution. Eome, in annexing the cities around itself, had not given them equal influence with itself in proportion to their wealth and numbers, and consequently there remained a cause of dissatisfaction never healed. America has provided for admission of new states upon equal terms, and only upon equal terms, with the old ones. For Europe there remained the sad necessity of revolution. For America the gates of revolution are shut and barred and bolted down, never again to be thrown open ; for it has found a legal and a peaceful w^ay to introduce every amelioration. Peace and intercitizenship and perfect domestic free-trade are to know no end. The constitution is to the American people a possession for all ages ; it creates an indissoluble union of im- perishable states. The federal republic will carry tranquillity, and freedom, and order throughout its vast domain. Will it, within less than a century, extend its limits to the capes of Florida, to the mouth of the Mississippi, to the region beyond the Mississippi, •to California, to Oregon, to San Juan ? Will it show all the Spanish colonies how to transform themselves into independ- ent republics stretching along the Pacific till they turn Cape Horn ? Will it be an example to France, teaching its great 1787. THE CONSTITUTION. 45I benefactor how to gain free institutions? In the country from which it broke away will it assist the hberal statesmen to bring parliament more nearly to a representation of the peo- ple ? Will it help the birthplace of the reformation to gather together its scattered members and become once more an em- pire, with a government so entirely the child of the nation that it shall have but one hereditary functionary, with a fed- eral council or senate representing the several states, and a house elected directly by universal suffrage? Will it teach England herself how to give peace to her groups of colonies, her greatest achievement, by establishing for them a federal republican dominion, in one continent at least if not in more ? And will America send manumitted dark men home to their native continent, to introduce there an independent republic and missions that may help to civilize the races of Africa? The philosophy of the people of the United States was neither that of optimism nor of despair. Believing in the justice of "the Great Governor of the world," and conscious of their own honest zeal in the cause of freedom and mankind, they looked with astonishment at their present success and at the future with unclouded hope. 4.52 THE FEDERAL GOVERNMENT. b. v. ; on. ii. CHAPTEE II. THE LINGEKma STATES. 1787 TO 2 August 1788. When the constitution was referred to the states Hamilton revived a long-cherished plan, and, obtaining the aid of Jay and Madison, issued papers which he called The Federalist, to prepare all the states and the people for accepting the deter- minations of the federal convention. Of its eighty-five num- bers. Jay wrote Hve, Madison twenty-nine, and Hamilton fifty- one.* They form a work of enduring interest, because they are * Mr. Madison's list of the authors of The Federalist : Number 1 by A. H. No. 2, J. J. No. 3, J. J. No. 4, J. J. No. 5, J. J. No. 6, A. U. No. 7, A. H. No. 8, A. II. No. 9, A. II. No. 10, J. M. No. 1 1, A. H. No. 12, A. II. No. 13, A. H. No. 14, J. M. No. 15, A. H. No. 16, A. H. No. 17, A. H. No. 18, J. M. No. 19, J. M. No. 20, J. M. No. 21, A. II. No. 22, A. II. No. 23, A. H. No. 24, A. H. No. 25, A. II. No. 26, A. II, No. 27, A. II. No. 28, A. H. No. 29, A. H. No. 30, A. H. No. 31, A. H. No. 32, A. H. No. 33, A. IT. No. 34, A. II. No. 35, A. H. No. 36, A. H. No. 37, J. M. No. 38, J. M. No. 89, J. M. No. 40, J. M. No. 41, J. M. No. 42, J. M. No. 43, J. M. No. 44, J. M. No. 45, J. M. No. 46, J. M. No. 47, J. M. No. 48, J. M. No. 49, J. M. No. 50, J. M. No. 51, J. M. No. 52, J. M. No. 53, J. M. No. 54, J. M. No. 55, J. M. No. 56, J. M. No. 57, J. M. No. 58, J. M. No. 59, A. H. No. 60, A. IT. No. 61, A. H. No. 62, J. M. No. 63, J. M. No. 64, J. J. No. 65, A. II. No. 66, A. H. No. 67, A. II. No. 68, A. II. No. 69, A. II. No. 7^,'A. II. No. 71, A. H. No. 72, A. IT, No. 73, A. II. No. 74, A. H. No 75, A. H. No. 76, A. H. No. 77, A. II. No. 78, A. H. No. 79, A. H. No. 80, A. IT., and to the end. Note in Mr. Madisoii's ovm hand. " No. 18 is attributed to Mr. Hamilton and Mr. Madison jointly. A. II. had drawn up something on the subjects of this (No. IS) and the two next Ncs. (19 and 20). On finding that J. M. was engaged in them with larger materials, and with a view to a more precise delineation, he put what he had written into the hands of J. M. It is possible, though not recollected, that something in the draught may have been incorporated into the numbers as printed. But it was certainly not of a nature or amount to affect the impression left on the mind of 1787-1788. THE FEDERALIST. 453 the earliest commentary on tlie new experiment of mankind in establishing a republican government for a country of bound- less dimensions ; and were written by Madison, who was the chief author of the constitution, and Hamilton, who took part in its inception and progress. Hamilton dwelt on the defects of the confederation ; the praiseworthy energy of the new federal government ; its rela- tions to the public defence ; to the functions of the executive ; to the judicial department, to the treasury ; and to commerce. Himself a friend to the protection of manufactures, he con- demned " exorbitant duties on imported articles," because they " beget smuggling," are '' always prejudicial to the fair trader, and eventually to the revenue itself ; " tend to render " other classes of the community tributary in an improper degree to the manufacturing classes," and to "give them a premature monopoly of the markets ; " to " force industry out of its most natural channels," and to " oppress the merchant." * Madison commented with severe wisdom on its plan ; its conformity to republican principles; its powers; its relation to slavery and the slave-trade ; its mediating office between the union and the states ; its tripartite separation of the depart- J. M., from whose pen the papers went to the press, that they were of the class written by him. As the histoiical materials of A. II., as far as they went, were doubtless similar, or the same with those provided by J. M., and as a like applica- tion of them probably occurred to both, an impression might be left on the mind of A. H. that the Nos. in question were written jointly. These remarks are made as well to account for a statement to that effect, if made by A. H., as in justice to J. M., who, always regarding; them in a different light, had so stated them to an inquiring friend, long before it was known or supposed that a different impres- sion existed anywhere. (Signed) J. M." There exists no list of the authors of The Federalist by the hand of Hamilton. There exists no authentic copy of any list that may liave been made by Hamilton. It is a great wrong to Hamilton's memory to insist that he claimed the authorship of papers which were written for him at his request by another, and which the completcst evidence proves that he could not have written. The list of the au- thors of the several papers given above rests on the written authority of Madison. From this list JIadison has never been known to vary in the slightest degree. The correctness of his statement is substantiated beyond room for a cavil by various evidence. Meeting an assertion that Madison in some paper in the department of state had changed one figure in his list, I requested a former secretary of state to order a search to be made for it. A search was made, and no such paper was found. * The Federalist, xxxv. 454 THE FEDERAL GOYERNMEIs^T. b. v. ; en. ii. ments ; and its mode of constructing the house of representa- tives. Hamilton began the work by saying that a wrong deci- sion would not only be ^' the dismemberment of the union," but " the general misfortune of mankind ; " ''' he closed with the words : " A nation without a national government is an awful spectacle. The establishment of a constitution, in time of profound peace, by the voluntary consent of a whole people, is a prodigy, to the completion of wliich I look forward with trembling anxiety." f During the time in which the consti- tution was m jeopardy Hamilton and Madison cherished for each other intimate and affectionate relations, differing in tem- perament, but one in purpose and in action. To the day of their death they both were loyally devoted to the cause of miion. JSTew York, having the most convenient harbor for world- wide commerce, rivers flowing directly to the sea, to Delaware bay, to the Chesapeake, to the Mississippi, and to the water- course of the St. Lawrence, and having the easiest line of com- munication from the ocean to the great West, needed, more than any other state, an efficient general government ; and yet of the thirteen it was the most stubborn in opposition. More than half the goods consumed in Connecticut, in ]^ew Jersey, in Vermont, and the western parts of Massachusetts, were bought within its limits and paid an impost for its use. :|: Dur- ing the war it agreed to give congress power to collect a five per-cent impost ; as soon as it regained possession of the city it preferred to appropriate the revenue to its own purposes ; and, as a consequence, the constitution called forth in ^New York the fiercest resistance that selfish interests could organize. To meet the influence of The Federalist, the republicans published inflammatory tracts, and circulated large editions of the Letters from the Federal Farmer by Richard Henry Lee. They named themselves federal republicans. Their election- eering centre was the 'New York custom-house, then an insti- tution of the state with John Lamb as collector. After the fashion of the days of danger they formed a committee of correspondence and sought connections throughout the land. * The Federalist, i. f The Federalist, Ixxxv. $ Williamson to Iredell, 1 July 1788. McKee's Iredell, ii., 227, 228. 1788. THE CONSTITUTION IN NEW YORK. 455 They sent their own emissaries to attend the proceedings of the Massachusetts convention, and, if possible, to frustrate its acceptance of the union. Their letters received answers from Lowndes, from Henry and Grayson, from Atherton of ISTew Hampshire, and from Richard Henry Lee, who told tliem that " the constitution was an elective despotism." At the regular meeting of the legislature in January 1788, Clinton recommended the encouragement of commerce and of manufactures, but sent in the proceedings of the federal con- vention without remark.'^ All others remaining silent for twenty days, Egbert Benson, on the last day of January, pro- posed a state convention in the precise mode recommended by congress. Schoonmaker offered a preamble, condemning the federal convention for having exceeded its powers. Benson conducted the debate with rare abihty, and the amended pre- amble gained but twenty-five votes against twenty-seven. In the senate the motion to postpone the question mustered but nine votes against ten. The convention was ordered ; but in its choice the constitutional qualifications of electors v/ere thrust aside, and every free male citizen of twenty-one years of age, though he had been a resident but for a day, might be a voter and be voted for. According to the wish of the Virginia opposition, the time for the meeting of the convention was delayed till the seven- teenth of June. Of its sixty-five members, more than two thirds were enemies to the constitution. f But it was found that the state was divided geographically. The seat of oppo- sition was in Ulster county, the home of Governor Clinton, and it extended to the coimties above it. The southern counties on the Hudson river and on Long Island, and the city of ISTew York, were so unanimously for union as to encourage the rumor that they would at all events adhere to it. Clinton himself began to think it absolutely necessary that the state should in some form secure a representation under the new constitution. The greater number of his friends were, like him, aversp to its total rejection ; but, while some were willing to be con- tent with recommendatory amendments, and others with ex- planatory ones, to settle doubtful constructions, the majority * Ind. Gazetteer, 19 January lYSS. f Uamilton, i., 454. 456 THE FEDERAL GOVERNMENT. b. v. ; en. ii. seemed "anwillmg to be reconciled with less than previous amendments. All the while the people of the state were drift- ing toward union.* On the seventeenth of June, fifteen days after tlie organi- zation of the Virginia convention, that of New York met at Ponghkeepsie and unanimously elected Clinton as its president. Among the delegates of the city of 'New York were Jay, Chief- Justice Morris, Hobart, Livingston, tiien chancellor of the state, Duane, and Hamilton. On the other side the foremost men were George Clinton, the governor ; Yates and Lansing, who had deserted the federal convention under the pretence that it was exceeding its power ; Samuel Jones, a member of the New York bar, who excelled in clearness of intellect, moderation, and simplicity of character ; and Melancthon Smith, a man of a religious cast of mind, familiar with metaphysical discussions, of undaunted courage, and gifted with the power of moderation.f On the nineteenth the chancellor opened the debate, show- ing the superiority of a republic to a confederacy. Without a strong federal government and union New York was incapable of self-defence, and the Bricish posts within the limits of the state would continue to form connections with hostile tribes of Indians, and be held in defiance of the most solemn treaties. In the course of the discussion every objection that had been made to the constitution either in Massachusetts or in Virginia was strongly stated ; and replied to. Lansing, adher- ing to the system of the confederation, loved union ; but pro- fessed to love liberty more. :j: Melancthon Smith declared him- self most strongly impressed with the necessity of union, and refused to say that the federal constitution was at war with public liberty. Hamilton, speaking in the spirit of gentleness and wisdom, contrasted the method of requisitions to be en- forced by coercion of the states, with general laws operating directly on individuals ; and he showed how greatly the new system excelled in simplicity, in efiiciency, in respect for per- sonal rights, in the protection of the public liberty, and, above all, in humanity. On the twenty-fourth swift riders, dispatched by Langdon, * Compare Jay's Jay, i., 268. f Thompson's Long Island, ii., 504, 505, 495. | Elliot, ii., 208-216, 219. 1T88. THE CONSTITUTION IN NEW YORK. 457 brought to Hamilton the tidings that New Hampshire as the ninth state had assented to the constitution ; jet tlie vote did not decide New York. " Our chance of success depends upon you," wrote Hamilton to Madison. '^ Symptoms of relaxation in some of the leaders authorize a gleam of hope if you do well, but certainly I think not otherwise." * Clinton claimed that he and his own partisans were " the friends to the rights of mankind ; " their opponents " the ad- vocates of despotism ; " " the most that had been said by the new government men had been but a second edition of The Federalist well delivered. One of the New York delegates," meaning Hamilton, " had in substance, though not explicitly, thrown off the mask, his arguments tending to show the neces- sity of a consolidated continental government to the exclusion of any state government." On the twenty-seventh Hamilton replied by a full declara- tion of his opinions. " The establishment of a republican gov- ernment on a safe and solid basis is the wish of every honest man in the United States, and is an object, of all others, the nearest and most dear to my own heart. This great purpose requires strength and stability in the organization of the gov- ernment, and vigor in its operations. The state governments are essentially necessary to the form and spirit of the general system.f With the representative system a very extensive country may be governed by a confederacy of states in w^hich the supreme legislature has only general powers, and the civil and domestic concerns of the people are regulated by the laws of the several states. State governments must form a leading principle. They can never lose their powers till the whole people of America are robbed of their liberties." :j: In answer to Hamilton on this and two other occasions, Clinton carefully set forth the principles on which he reposed. During the war he had wished for a strong federal govern- ment ; he still wished a federal republic for the mutual pro- tection of the states and the security of their equal rights. In * Hamilton's Works, i., 462. f Elliot, ii., 301, 304. For Hamilton's brief of his speeches in June [not of those in July], see Hamilton, ii., 463-466. X Elliot, ii., 352-355. 458 THE FEDERAL GOVERNMENT. B.v.;cn.ii. sucli a confederacy there slioiild be a perfect representation ; but of that representation "the states are the creative princi- ple," and, having eqnal rights, ought for their protection to be equally represented. The delegates and the senators of a state should be subject to its instructions and liable to be recalled at its pleasure, for the representation should be an exact and con- tinuous representation of its reflection and judgment and will. Moreover, the senators should vote in their place not as indi- viduals, but collectively, as the representation of the state. He would further have the members of congress depend on the states for support. Above all, he abhorred the idea of reducing the states to the degraded situation of petty corporations and rendering them liable to suits. " The sovereignty of the states he considered the only stable security for the liberties of the people against the encroachments of power." * On the tliird of July, while the convention was still engaged in considering the constitution, and noting the propositions of amendments, the decisive news of the unconditional ratification of the constitution by Yirginia broke on its members ; and from that moment it was certain that they would not venture to stand alone against the judgment of every state in JS^ew England except Ehode Island, and every other state except North Carolina. ! The question at first became whether the constitution should be accepted with or without previous amendments. On the tenth Lansing offered a bill of rights, to which no one objected ; and numerous amendments,f of which the class relating to a standing army in time of peace, direct taxes, the miiitia, and elections to congress were made con- ditions of the ratification. After they were read, the conven- tion, on the proposal of Lansing, adjourned, leaving an informal committee of equal numbers of both parties to bring the busi- ness by compromise to a quick and friendly decision. In the committee Jay declared that the word " conditional " must be erased before any discussion of the merits of the amendments. As this point was refused, the committee was dissolved ; but * This summary of three speeches made by Clinton, one in June, two in July after Virginia had been heard from, is compiled from the manuscripts of Clinton preserved in the state library at Albany. t Penn. Packet, 18 July nsS; Ind. Gazetteer, 18 July 1T88. 1788. THE CONSTITUTION IN NEW YORK. 459 already Melanctlion Smith and Samuel Jones showed signs of relenting. On the eleventh Jay, taking the lead, moved the ratifica- tion of the constitution and the recommendation of amend- ments. After a long debate, Melancthon Smitli interposed with a resolution which meant in substance that New York would join the union, reserving the right to recede from it if the desired amendments sliould not be accepted. Against this motion Hamilton, after vainly proposing a form of ratifica- tion* nearly similar to that of Virginia, spoke on Saturday, the nineteenth, with such prevailing force that Smith con- fessed himself persuaded to relinquish it. At this Lansing revived the proposition to enter the union, but only with a re- served right to withdraw from it ; and on the following Mon- day the question might be taken. f Madison having resum.ed his place in congress, Hamilton wrote in all haste for his ad- vice. On Sunday, Madison speeded an answer to Poughkeep- sie, and on the morning of Monday, the twenty-first, Hamilton read to the convention its words, which were as follows : " My opinion is, that a reservation of a right to withdraw, if amendments be not decided on under the form of the con- stitution within a certain time, is a conditional ratification ; that it does not make JSTew York a member of the new union, and, consequently, that she could not be received on that plan. The constitution requires an adoption in toto and for- ever. It has been so adopted by the other states. An adop- tion for a limited time would be as defective as an adoption of some of the articles only. In short, any condition whatever must vitiate the ratification. The idea of reserving a right to withdraw was started at Kichmond, and considered as a conditional ratification, which was itself abandoned as worse than a rejection." J The voice of Yirginia, heard through Madison, was effect- ive. Following the example of Massachusetts, and appro- priating the words of its governor, on the twenty-third Samuel * Hamilton, ii , 467-471. f For the latter part of the convention there is need to resort to the Pcnn. Packet and the Independent Gazetteer for July 1788, where details are given. X Hamilton's Works, !., 465. d:60 THE FEDERAL GOVERNMENT. b. v. ; en. ii. Jones, supported hj Melancthon Smith, proposed, like Han- cock, to make no "condition" and to ratify the constitution " in full confidence " of the adoption of all needed amend- ments. Lansing's motion for conditions was negatived in committee by a vote of thirty-one to twenty-eight, and on Friday, the twenty-iifth, the convention agreed to the report of its committee of the whole in favor of the form of Samuel Jones and Melancthon Smith by thirty yeas to twenty-five nays, the largest vote on any close division during the whole session. This vote was purchased at the price of consenting to the unanimous resolution, that a circular letter be prepared to be laid before the different legislatures of the United States recommending a general convention to act upon the proposed amendments of the different legislatures of the United States. On Saturday, the twenty-sixth, the form of ratification of the constitution was agreed to by a vote of thirty against twenty- seven. More persons were absent from the vote than would have been necessary to change it. On the following Monday 'New York invited the governors of the several states in the union to take immediate and effectual measures for calling a second federal convention to amend the constitution. "We are unanimous," said Clinton, "in thinking this measure very conducive to national harmony and good government." Madison, as he read the letter, called the proposal a pestilent one, and Washington was touched with sorrow at the thought that just as the constitution was about to anchor in harbor it might be driven back to sea. But the city of New York set no bounds to its gladness at the acceptance of the constitution ; the citizens paraded in a procession unrivalled in splendor. The miniature ship which was drawn through the streets bore the name of Hamilton. For him this was his happiest moment of unclouded tri- umph. North Carolina held its convention before the result in New York was known. The state wanted geographical unity. A part of its territory west of the mountains had an irregular separate organization under the name of Frankland. Of the rest there was no natural centre from which a general opinion could emanate ; besides, toward the general government the 1788. THE CONSTITUTION IN NORTH CAROLINxV. 461 state was delinquent, and it had not yet shaken from itself the bewildering influence of paper money. " In this crisis," wrote Washington, ^* the wisest way for IN'orth CaroHna will be to adjourn until the people in some parts of the state can consider the magnitude of the question and the consequences involved in it, more coolly and delib- erately." * The convention, which consisted of two hundred and eighty-four members, assembling on the twenty-first of July, elected as its president Johnston, then governor of the state, organized itself with tranquillity and dignity, and pro- ceeded to discuss the constitution in committee, clause by clause. The convention employed eight days in its able de- bates, of which very full and fair accounts have been pre- served. First among the federalists,f and the master mind of the convention, was James Iredell, who, before he was forty years old, was placed by Washington on the supreme bench of the United States. He was supported by William Eichardson Davie, who had gained honor in the war and at the bar, and afterward held high places in North Carolina and in the union ; by Samuel Johnston, Archibald Maclaine, and Rlcliard Dobbs Spaight. The other side was led by Willie Jones of Halifax, noted for wealth and aristocratic habits and tastes, yet by nature a steadfast supporter of the principles of democracy. :j: He was sustained by Samuel Spencer of Anson, a man of candor and moderation, and as a debater far superior to his associates ; by David Caldwell from Guilford, a Presbyterian divine, fertile in theories and tenacious of them ; and by Timothy Eloodworth, a former member of congress, who as a preacher abounded in offices of charity, as a politician dreaded the subjection of southern to northern interests. The friends of the constitution had the advantage of spread- ing their arguments before the people ; on the other side Willie Jones, who held in his hand the majority of the con- vention, citing the wish of Jefferson that nine states might * Sparks, ix., 390, 391. I McRce's Iredell, ii., 180-183; for instruction an invaluable work. i McRee's Iredell, ii., 232 ; Moore's N. C, i., 384. 462 THE FEDERAL GOVERNMENT. b. v. ; en. ii. ratify tlie constitution, and tlie rest hold aloof for amendments, answered in this wise : " We do not determine on the consti- tution ; we neither reject nor adopt it ; we leave ourselves at liberty ; there is no doubt we shall obtain our amendments and come into the union." At his word the convention on the first of August deferred the ratification of the constitution, and proposed amendments by one hundred and eighty-four votes against eighty-four. But harmony between the state and the new federal govern- ment was pre-established by a rule adopted on the next day, that any impost which congress might ordain for the union should be collected in North Carolina by the state " for the use of cono-ress." o The scales were ready to drop from the eyes of Rhode Island. That state, although it had taken no part in the fed- eral convention and for a year and more had neglected to at- tend in congress, watched without disapprobation the great revolution that was taking place. ^Neither of the two states which lingered behind remonstrated against the establishment of a new government before their consent ; nor did they ask the United States to wait for them. The worst that can be said of them is, that they were late in arriving. 1788. THE GOVEPwNMENT OF THE UNITED STATES. 463 CHAPTER III. THE FEDERAL GOVERNMENT OF THE UNITED STATES. 178S TO 5 May 17S9. It was time for America to be known abroad as a nation. The statesmen of France reproaclied her unsparingly for fail- ing in her pecuniary engagements. Boatmen who bore the flag of the United States on the father of rivers were fearlessly arrested by Spain, while Don Gardoqui, its agent, in private conversation tempted the men of Kentucky " to declare them- selves independent " by the assurance that he was authorized to treat with them as a separate power respecting commerce and the navigation of the Mississippi.* The colonists in Nova Scotia were already absorbing a part of south-eastern Maine, and inventing false excuses for doing so. Great Britain declined to meet her own obligations with regard to the slaves whom she had carried away, and who finally formed the seed of a Britisli colony at Sierra Leone. She did not give up her negotiations with the men of Ver- mont. She withheld the interior posts, belonging to the United States ; in the commission for the government of Upper Cana- da she kept out of sight the line of boundary, in order that the commanding officer might not scruple to crowd the Americans away from access to their inland water-line, and thus debar them from their rightful share in the fur-trade. She was all the while encouraging the Indian tribes within the bounds of New York and to the south of the western lakes to assert their independence. Hearing of the discontent of the Kentuckians and the men of west North Carolina, she sought to foment the * Letters to Washington, iv., 248. 464: THE FEDERAL GOVERNMENT. b. v. ; on. in. passions which might hurrj them out of the union, as far as it could be done without promising them protection. In England John Adams had, in 1786, vainly explained the expectation of congress that a British plenipotentiary minister should be sent to the United States.* The bills regulating New- foundland and intercourse with America were under the lead- ership of the same Jenkinson who had prepared the stamp act ; and, with the acquiescence of Pitt, the men and the principles which had governed British policy toward America for most of the last twenty years still prevailed.f In February 1788 the son of George Grenville, speaking for the ministry in the house of commons, said : " Great Britain, ever since the peace, has condescended to favor the United States." J Moreover, the British government would take no notice of American remonstrances against the violations of the treaty of peace. Self-respect and patriotic pride forbade John Adams to re- main. Adams and Jefferson had exchanged with each other their portraits, as lasting memorials of friendship ; and Adams, on leaving Europe, had but two regrets : one, the opportunity of research in books ; the other, that immediate correspondence with Jefferson which he cherished as one of the most agreeable events in his life. '^ A seven months' intimacy with him here and as many weeks in London have given me opportunities of studying him closely," wrote Jefferson to Madison. " He is vain, irritable, and a bad calculator of the force and probable effect of the motives which govern men. This is all the ill which can possibly be said of him. He is disinterested, pro- found in liis views, and accurate in his judgment, except where knowledge of the world is necessary to form a judg- ment. He is so amiable that you will love him, if ever you become acquainted with him." * In America the new constitution was rapidly conciliating the affections of the people. Union had been held dear ever since it was formed ; and novf that the constitution was its * Adams to Carmarthen, 6 Febmary 17S6. f Adams to Jay, 27 February 1786. X Speech of Grenville, 11 February 1788. Almon's Parliamentary Register, 23, p. 179. * Jefferson, ii., 107. 1788. THE GOVERNMENT OF THE UNITED STATES. 465 surest guarantee, no party could succeed wliicli did not inscribe union, and with union the constitution, on its banner. In September 1788 the dissidents of Pennsylvania held a con- ference at Harrisburg. With the delegates from beyond the mountains came Albert Gallatin, a native of Geneva, and edu- cated there in a republic of a purely federal form. Their pro- ceedings bear the marks of his mind. They resolved for themselves and recommended to all others to acquiesce in the organization of the government under " the federal constitu- tion, of which the ratification had formed a new era in the American world ; " they asked, however, for its speedy revision by a general convention. All their actions were kept within the bounds of legality."^ In Virginia there had been a great vibration of opinion. Its assembly, which met on the twentieth of October 1788, was the first to take into consideration the proposal for another federal convention. The enemies to the government formed a decided majority of the legislature.f 'No one of its members was able to encounter Patrick Henry in debate, and his edicts were registered without opposition. :j: He had only to say, " Let this be law," and it became law. Taking care to set forth that so far as it depended on Virginia the new plan of govern- ment would be carried into immediate operation, the assembly, on the thirtieth, proposed a second federal convention, and in- vited the concurrence of every other state.* Madison was the fittest man in the union to be of the senate of the United States : Henry, on the eighth of November, after pouring forth a declamation against his federal principles, || nominated Kich- ard Henry Lee and Grayson for the two senators from Vir- ginia, and they were chosen at his bidding. He divided the state into districts, cunningly restricting each of them to its own inhabitants in the choice of its representative, and taking care to compose the district in which Madison would be a candidate out of counties which were thought to be unfriendly * Life of Gallatin by Henry Adams, 11 ; Elliot, ii., 514. f Madison, !., 436, 437. i Washington to Madison, 11 November 1788. Tobias Lear to Langdon, 31 January 1789. # Rives's Madison, ii., 646. i Madison, i., 443, 444. VOL. VI. — 30 4:QQ THE FEDERAL GOYERNMEISrT. b. y. ; oh. m. to federalism. Assured by these iniquitous preparations, Mon- roe, without scruple, took tlie field against Madison. In Connecticut, in October, the circular letter of 'New York bad a reading among other public communications, but "no anti- federalist had hardiness enough to call it up for considera- tion or to speak one word of its subject." * The legislature of Massachusetts concurred with Hancock, the governor, that an immediate second federal convention might endanger the union. f The legislature of Pennsylvania put the question at rest by saying : " The house do not perceive this constitution wanting in any of those fundamental principles which are calculated to ensure the liberties of their country. The happiness of America and the harmony of the union depend upon suffering it to proceed undisturbed in its operation by premature amendments. The house cannot, consistently with their duty to the good people of this state or with their affection to the citizens of the United States at large, concur with Yirginia in their application to congress for a convention of the states." This vote Mifflin, the governor, early in March 1789, com- municated to the governor of Virginia, J and the subject was heard of no more. Congress, as early as the second of July 1788, was notified that the constitution had received the approval of nine states ; but they wasted two months in wrangling about the perma- nent seat of the federal government, and at last could agree only on New York as its resting-place. Not till the thirteenth of September was the first "Wednesday of the following Janu- ary appointed for the choice of electors of president in the several states; and the first Wednesday in March, which in that year was the fourth, for commencing proceedings under the constitution. The states, each for itself, appointed the times and places for electing senators and representatives. The interest of the elections centred in New York, Yir- ginia, and South Carolina. In four districts out of the six into which New York was divided the federalists elected their * Trumbull to Washington, 28 October 1788. Letters to Washington, iv., 238. f New York Daily Gazette of 17 February 1789. ^ Pennsylvania Archives, xi., 557, 558. 1788-1789. THE GOVERNMENT OF THE UNITED STATES. 467 candidates. Having in the state legislature but a bare ma- jority in the senate, while their opponents outnumbered them in the house, each branch made a nomination of senators ; but the senate refused to go into a joint ballot. For this there was the excuse that the time for a new election was close at hand. But the senate further refused to meet the house for the choice of electors of president, and this was an act of fac- tion. The star of Hamilton was then in the ascendant, and he controlled the federalists ; but only to make his singular in- capacity to conduct a party as apparent as his swiftness and power of thought. He excluded the family of the Living- stons from influence. To defeat Clinton's re-election as gov- ernor, he stepped into the camp of his opponents, and with Aaron Burr and other anti-federalists selected for their candi- date Eobert Yates, who had deserted his post in the federal convention, but had since avowed the opinion which was held by every one in the state that the new constitution should be supported. 'New York at the moment was thoroughly federal, yet CHnton escaped defeat through the attachment of his own county of Ulster and the insignilicance of his opponent, while the federalists were left without any state organization. In the new legislature both branches were federal, and, at the be- hest of Hamilton, against the remonstrances of Morgan Lewis and others, Rufus King, on his transfer of residence from Massachusetts to J^ew York, received the unexampled wel- come of an immediate election with Schuyler to the senate. In Virginia, Madison went into the counties that were re- lied on to defeat him, reasoned with the voters face to face, and easily won the day. Of the ten delegates from the state, seven were federalists, of whom one was from Kentucky. South Carolina elected avowed anti-federalists, except Butler, of the senate, who had conceded many points to bring about the union, and yet very soon took the alarm that " the southern interest was imperilled." * Under the constitution the house of representatives formed a quorum on the first of April 1789. The senate on the sixth chose John Langdon of New Hampshire its president. The * Pierce Butler to Iredell, in Life of Iredell, ii., 264, 265. 468 THE FEDERAL GOVERNMENT. b. v. ; ch. hi. house of representatives was immediately summoned, and in the presence of the two branches he opened and counted the votes. Every one of the sixty-nine, cast by the ten states which took part in the election, was for Washington. John Adams had thirty-four votes ; and as no other obtained more than nine, he was declared to be the vice-president. The house devolved upon the senate the office of communicating the result to those who had been chosen ; and proceeded to business. "I foresee contentions," wrote Madison, "first between federal and anti-federal parties, and then between northern and southern parties, which give additional disagreeableness to the prospect." ^ The events of the next seventy years cast their shadows before. Madison revived the bill which he had pre- sented to congress on the eighteenth of March 1783, for duties on imports, adding to it a discriminating duty on tonnage. For an immediate public revenue, Lawrence of JSTew York proposed a general duty ad valorem. England herself, by re- straining and even prohibiting the domestic industry of the Americans so long as they remained in the condition of colonial dependence, had trained them to consider the establishment of home manufactures as an act of patriotic resistance to tyranny. Fitzsimons of Pennsylvania disproved of a uniform ad valo- rem duty on all imports. He said : " I have in contemplation to encourage domestic manufactures by protecting duties." Tucker of South Carolina enforced the necessity of great de- liberation by calling attention to the antagonistic interests of the eastern, middle, and southern states in the article of ton- nage. Boudinot of ISTew Jersey wished glass to be taxed, for there were already several manufactures of it in the country. "We are able," said Hartley of Pennsylvania, "to furnish some domestic manufactures in sufficient quantity to answer the consumption of the whole union, and to work up our stock of materials even for exportation. In these cases I take it to be the policy of free, enlightened nations to give their manu- factures that encouragement necessary to perfect them without oppressing the other parts of the community." " We must consider the general interests of the union," said Madison, "as much as the local or state interest. My * Madison, i., 450, 451. 1789. THE GOVERNMENT OF THE UNITED STATES. 469 general principle is that commerce ought to be free, and labor and industry left at large to find their proper object." But he admitted that " the interests of the states which are ripe for manufactures ought to have attention, as the power of protect- ing and cherishing them has bj the present constitution been taken from the states and its exercise thrown into other hands. Eegulations in some of the states have produced establishments which ought not to l)e allowed to perish from the alteration which has taken place, while some manufactures being once formed can advance toward perfection without any adventitious aid. Some of the propositions may be productive of revenue and some may protect our domestic manufactures, though the latter subject ought not to be too confusedly blended with the former." " I," said Tucker, " am opposed to high duties be- cause they will introduce and establish a system of smuggling, and because they tend to the oppression of citizens and states to promote the benefit of other states and other classes of citi- zens." * The election to the presidency found Washington prepared with a federal policy, which was the result of long meditation. He was resolved to preserve freedom, never transcending the powers delegated by the constitution ; even at the cost of life to uphold the union, a sentiment which in him had a tinge of anxiety from his thorough acquaintance with what Grayson called " the southern genius of America ; " to restore the pub- lic finances ; to establish in the foreign relations of the country a thoroughly American system ; and to preserve neutrality in the impending conflicts between nations in Europe. Across the Atlantic Alfieri cried out to him : " Happy are you, who have for the sublime and permanent basis of your glory the love of country demonstrated by deeds." On the fourteenth of April he received the official an- nouncement of his recall to the public service, and was at ten o'clock on the morning of the sixteenth on his way. Though reluctant " in the evening of life to exchange a peaceful abode for an ocean of difficulties," he bravely said : " Be the voyage long or short, although I may be deserted by all men, integrity and firmness shall never forsake me." * Annals of Congress, i., 291. 470 THE FEDERAL GOVERNMENT. b. v. ; oh. hi. But for liim the country could not liave achieved its inde- pendence ; but for him it could not have formed its union ; and but for him it could not have set the federal government in successful motion. His journey to New York was one con- tinued march of triumph. All the way he was met with ad- dresses from the citizens of various towns, from societies, uni- versities, and churches. His neighbors of Alexandria crowded round him with the strongest personal affection, saying : " Farewell, and make a grateful people happy ; and may the Being who maketh and unmaketh at his will, restore to us again the best of men and the most beloved fellow-citizen." * To the citizens of Baltimore, "Washington said : " I hold it of little moment if the close of my life shall be embittered, provided I shall have been instrumental in securing the hber- ties and promoting the happiness of the American people." f He assured the society for promoting domestic manufac- tures in Delaware that " the promotion of domestic manufac- tures may naturally be expected to flow from an energetic government ; " and he promised to give " a decided preference to the produce and fabrics of America." J At Philadelphia, " almost overwhelmed with a sense of the divine munificence," he spoke words of hope: "The most gracious Being, who has hitherto watched over the interests and averted the perils of the United States, will never suffer so fair an inheritance to become a prey to anarchy or despot- ism." * At Trenton he was met by a party of matrons and their daughters, dressed in white, strewing flowers before him, and singing an ode of welcome to " the mighty chief " who had rescued them from a " mercenary foe." Embarking at Elizabeth Point in a new barge, manned by pilots dressed in white, he cleaved his course swiftly across the bay, between gayly decorated boats, filled with gazers who cheered him with instrumental music, or broke out in songs. As he touched the soil of New York he was welcomed by the two houses of congress, by the governor of the state, by the * Sparks, xii., 139, note. ^ Sparks, xii., 141. f Sparks, xii., 140, 141. # Sparks, xii., 145. 1789. THE GOVERNMENT OF THE UNITED STATES.. 471 magistrates of tlie city, by its people ; and so attended he pro- ceeded on foot to the modest mansion lately occupied by the presiding officer of the confederate congress. On that day he dined with Clinton ; in the evening the city was illuminated. The senate, under the influence of John Adams and the per- sistency of Richard Henry Lee, would have given him the title of " Highness ; " but the house, supported by the true repub- lican simplicity of the man whom they both wished to honor, insisted on the simple words of the constitution, and prevailed. On the thirtieth, the day appointed for the inauguration, "Washington, being fifty-seven years, two months, and eight days old, was ceremoniously received by the two houses in the hall of the senate. Stepping out to the middle compartment of a balcony, which had been raised in front of it, he found before him a dense throng extending to Broad street, and fill- ing Wall street to Broadway. All were hushed as Livingston, the chancellor of the state, administered the oath of office ; but when he cried : " Long Hve George Washington, President of the United States ! " the air was rent with huzzas, which were repeated as Washington bowed to the multitude. Then returning to the senate-chamber, with an aspect grave almost to sadness and a voice deep and tremulous, he addressed the two houses, confessing his distrust of his own endowments and his inexperience in civil administration. The magnitude and difficulty of the duties to which his country had called him weighed upon him so heavily that he shook as he proceeded : " It would be peculiarly improper to omit, in this first official act, my fervent supplications to that Almighty Being who presides in the councils of nations, that his benediction may consecrate to the liberties and happiness of the people of the United States a government instituted by themselves. ]^o people can be bound to acknowledge the invisible hand which conducts the affairs of men more than the people of the United States. Every step by which they have advanced to the character of an independent nation seems to have been distinguished by some token of providential agency. There exists in the economy of nature an indissoluble union between an honest and magnanimous policy and public prosperity. Heaven can never smile on a nation that disregards the eternal 472 THE FEDERAL GOVERNMENT. b. v. ; oh. hi. rules of order and right. The preservation of liberty, and the destiny of the republican model of government, are justly con- sidered as deeply, perhaps as finally, staked on the experiment intrusted to the American people." At the close of the ceremony the president and both branches of congress were escorted to the church of St. Paul, where the chaplain of the senate read prayers suited to the occasion, after which they all attended the president to his mansion. "Every one without exception," so reports the French minister to his government,* " appeared penetrated with ven- eration for the illustrious chief of the republic. The humblest was proud of the virtues of the man who was to govern him. Tears of joy were seen to flow in the hall of the senate, at church, and even in the streets, and no sovereign ever reigned more completely in the hearts of his subjects than Washing- ton in the hearts of his fellow-citizens. Nature, which had given him the talent to govern, distinguished him from all others by his appearance. He had at once the soul, the look, and the figure of a hero. He never appeared embarrassed at hom- age rendered him, and in his manners he had the advantage of joining dignity to great simplicity." To the president's inaugural speech one branch of the legislature thus responded : " The senate will at all times cheer- fully co-operate in every measure which may strengthen the union and perpetuate the liberties of this great confederated republic." The representatives of the American people likewise ad- dressed him : " With you we adore the invisible hand which has led the American people through so many difiiculties ; and we cherish a conscious responsibility for the destiny of repub- lican liberty. We join in your fervent supplication for our country ; and we add our own for the choicest blessings of heaven on the most beloved of her citizens." In the same moments of the fifth day of May 1789, when these words were reported, the ground was trembling beneath the arbitrary governments of Europe as Louis XYI. pro- ceeded to open the states-general of France. The day of * Moustier's report on the inauguration of the president of the United States. 1789. THE GOVERNMENT OF THE UNITED STATES. 473 wrath, against which Leibnitz had warned the monarchs of Europe, was beginning to break, and its judgments were to be the more terrible for the long delay of its coming. The great Frederick, who alone of them all had lived and toiled for the good of his land, described the degeneracy and insig- nificance of his fellow-rulers with cynical scorn. J^ot one of them had a surmise that the only sufficient reason for the ex- istence of a king lies in his usefulness to the people. !Nor did they spare one another. The law of morality was never suf- fered to restrain the passion for conquest. Austria preyed upon Italy until Alfieri could only say, in his despair, that despotic power had left him no country to serve ; nor did the invader permit the thought that an Italian could have a right to a country. The heir in the only line of protestant kings on the continent of Europe, too blind to see that he would one day be stripped of the chief part of his own share in the spoils, joined with two other robbers to divide the country of Kosciuszko. In Holland dynastic interests were betraying the welfare of the republic. All faith was dying out ; and self, in its eagerness for pleasure or advantage, sti:Qed the voice of justice. The atheism of the great, who lived without God in the world, concealed itself under superstitious observances which were enforced by an inquisition that sought to rend be- hefs from the soul, and to suppress inquiry by torments which surpassed the worst cruelties that savages could invent. Even in Great Britain all the branches of government were con- trolled by the aristocracy, of which the more liberal party could in that generation have no hope of being summoned by the kmg to frame a cabinet. The land, of which every member of a clan had had some share of ownership, had been for the most part usurped by the nobility ; and the people were starv- ing in the midst of the liberality which their own hands ex- torted from nature. The monarchs, whose imbecility or ex- cesses had brought the doom of death on arbitrary power, were not only unfit to rule, but, while their own unlimited sovereign- ty was stricken with death, they knew not how to raise up statesmen to take their places. "Well-intentioned friends of mankind burned with indignation, and even the wise and pru- dent were incensed by the bitterest consciousness of wrong ; 474 THE FEDERAL GOyERNMEKT. b. v. ; oh. m. while the lowly classes, clouded by d^^spair, were driven some- times to admit the terrible thought that religion, which is the poor man's consolation and defence, might be but an instru- ment of government in the hands of their oppressors. There was no rehef for the nations but through revolution, and their masters had poisoned the weapons which revolution must use. In America a new people had risen up without king, or princes, or nobles, knowing nothing of tithes and little of landlords, the plough being for the most part in the hands of free holders of the soil. They were more sincerely religious, better educated, of serener minds, and of purer morals than the men of any former republic. By calm meditation and friendly councils they had prepared a constitution which, in the union of freedom with strength and order, excelled every one known before ; and which secured itself against violence and revolution by providing a peaceful method for every needed reform. In the happy morning of their existence as one of the powers of the world, they had^chosen justice for .their guide ; and while they proceeded on their way with a well-founded confidence and joy, all the friends of mankind invoked success on their unexampled endeavor to govern states and territories of imperial extent as one federal republic. THE CONSTITUTION UNITED STATES OF AMERICA, WITH THE AMENDMENTS. OOMPAEED WITH THE ORIGINAL IIT THE DEPAETMENT OF STATE, SEPTEMBEE 17, 1872, AND FOUND TO BE OOREEOT. OOI^STITUTIOE" OF THE UNITED STATES OP AMERICA. / We the People of tlie United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Wel- fare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America. ARTICLE. I. Section. 1. All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives. Section. 2. The House of Representatives shall be com- posed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature. No Person shall be a Representative who shall not have attained to the Age of twenty-five Years, and been sev en Ye ^s a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen. Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, ac- cording to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians 478 THE OONSTITUTIOIT OF not taxed, three fifths of all other Persons. The actual Enu- meration shall be made within three Years after the first Meet- ing of the Congress of the United States, and within every sub- sequent Term of ten Years, in such Manner as they shall by Law direct. The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative ; and until such enumeration shall be made, the State of New Hampshire shall be entitled to chuse three, Massachusetts eight, Rhode-Island and Providence Plantations one, Connecticut five. New York six, New Jersey four, Pennsyl- vania eight, Delaware one, Maryland six, Virginia ten. North Carolina five. South Carolina five, and Georgia three. When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies. The House of Representatives shall chuse their Speaker and other Officers ; and shall have the sole Power of Impeachment. Sectioi^. 3. The Senate of the United States shall be com- posed of two Senators from each State, chosen by the Legislature thereof, for six Years ; and each Senator shall have one Vote. Immediately after they shall be assembled in Consequence of the first Election, they shall be divided as equally as may be into three Classes. The Seats of the Senators of the first Class shall be vacated at the Expiration of the second Year, of the second Class at the Expiration of the fourth Year, and of the third Class at the Expiration of the sixth Year, so that one third may be chosen every second Year ; and if Vacancies happen by Resig- nation, or otherwise, during the Recess of the Legislature of any State, the Executive thereof may make temporary Appointments until the next Meeting of the Legislature, which shall then fill such Vacancies. No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen. The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided. The Senate shall chuse their other Officers, and also a Presi- dent pro tempore, in the Absence of the Vice President, or when he shall exercise the Office of President of the United States. THE UNITED STATES OF AMERICA. 479 The Senate shall have the sole Power to try all Impeach- ments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside : And no Person shall be convicted without the Concurrence of two thirds of the Members present. Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and en- joy any Office of honor, Trust or Profit under the United States : but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law. Section. 4. The Times, Places and Manner of holding Elec- tions for Senators and Representatives, shall be prescribed in each State by the Legislature thereof ; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators. The Congress shall assemble at least once in every Year, and such Meeting shall be on the first Monday in December, unless they shall by Law appoint a different Day. Section. 5. Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business Abut a smaller^ ^ Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide. Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Con- currence of two thirds, expel a Member. Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy ; and the Yeas and Nays of the Members of either House on any question shall, at the De- sire of one fifth of those Present, be entered on the Journal. Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting. Section. 6. The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and 480 THE CONSTITUTIOIT OF paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same ; and for any Speech or Debate in either House, they shall not be questioned in any other Place. ISTo Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time ; and no Person holding any Office under the United States, shall be a Member of either House during his Continu- ance in Office. Sectioit. 7. All Bills for raising Revenue shall originate in the House of Representatives ; but the Senate may propose or concur with Amendments as on other Bills. Every Bill which shall have passed the House of Representa- tives and the Senate, shall, before it become a Law, be presented to the President of the United States ; If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objec- tions, to the other House, by which it shall likewise be reconsid- ered, and if approved by two thirds of that House, it shall be- come a Law. But in all such Cases the Votes of both Houses shall be determined by yeas and l^ays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively. If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law. Every Order, Resolution, or Vote to which the Concurrence- of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States ; and before the Same shall takci Effect, shall be approved by him, or being disapproved by him. THE UNITED STATES OF AMERICA. 481 shall be repassed by two thirds of the Senate and House of Rep- resentatives, according to the Rules and Limitations prescribed in the Case of a Bill. Sectio:n-. 8. '^he Congress shall have Power To lay and col- lect Taxes, Duties, Imposts and Excises,^o pay the Debts and provide for the common Defence and general Welfare of the United States ;Qbut all Duties, Imposts and Excises shall be uni- form throughout the United States ; To borrow Money on the credit of the United States ; To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes ; To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States ; To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures ; To provide for the Punishment of counterfeiting the Securi- ties and current Coin of the United States ; »/To establish Post Offices and post Roads ; To promote the Progress of Science and useful Arts, by se- curing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries ; To constitute Tribunals inferior to the supreme Court ; To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations ; To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water ; To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years ; To provide and maintain a Navy ; To make Rules for the Government and Regulation of the land and naval Forces ; To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions ; To provide for organizing, arming, and disciplining, the Mili- tia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respect- ively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress ; yoL. VI.-J-31 4:82 THE CONSTITUTION OF To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by- Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock- Yards, and other needful Buildings ; — And To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof. SECTioi>r. 9. The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person. The Privilege of the Writ of Habeas Corpus shall not be sus- pended, unless when in Cases of Rebellion or Invasion the public Safety may require it. No Bill of Attainder or ex post facto Law shall be passed. No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken. No Tax or Duty shall be laid on Articles exported from any State. No Preference shall be given by any Regulation of Com- merce or Revenue to the Ports of one State over those of an- other : nor shall Vessels bound to, or from, one State, be obliged ^\^ to enter, clear, or pay Duties in another. 1^).. No Money shall be drawn from the Treasury, but in Conse- quence of Appropriations made by Law ; and a regular State- ment and Account of the Receipts and Expenditures of all pub- lic Money shall be published from time to time. No Title of Nobility shall be granted by the United States : And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any pres- ent. Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State. THE UNITED STATES OF AMERICA. 483 Sectioi!^. 10. ' 'No State shall enter into any Treaty, Alliance, or Confederation ; grant Letters of Marque and Reprisal ; coin Money ;' emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts ; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility. No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it's inspection Laws : and the net Produce of all Duties and Imposts, laid by any State on Im- ports or Exports, shall be for the Use of the Treasury of the United States ; and all such Laws shall be subject to the Re- vision and Controul of the Congress. No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, ox* Ships of War in time of Peace, enter into any Agreeriient or Compact with another State, or with a foreign Power, or engage in War, unless actually in- vaded, or in such imminent Danger as will not admit of delay. ARTICLE. IL Section. 1. The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as fol- lows Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress : but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector. The Electors shall meet in their respective States, and vote by Ballot for two Persons, of whom one at least shall not be an Inhabitant of the same State with themselves. And they shall make a List of all the Persons voted for, and of the Number of Votes for each ; which List they shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted. The Person having the greatest Number of / 484: THE CON^STITUTIOiT OF Votes shall be the President, if such Number be a Majority of the Avhole Number of Electors appointed ; and if there be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately chuse by Ballot one of them for President ; and if no Person have a Majority, then from the five highest on the List the said House shall in like Manner chuse the President. But in chusing the President, the Votes shall be taken by States, the Repre- sentation from each State having one Vote ; A quorum for this Purpose shall consist of a Member or Members from two thirds of the States, and a Majority of all the States shall be necessary to a Choice, nln every Case, after the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be the Vice President. But if there should remain two or more who have equal Votes, the Senate shall chuse from them by Ballot the Vice President. The Congress may determine the Time of chusing the Elec- tors, and the Day on which they shall give their Votes ; which Day shall be the same throughout the United States. No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President ; neither shall any Person be eligible to that Office who shall not have attained to the '^'^^e of thirty five Years, and been fourteen Years a Resi- uint within the United States. In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President, and the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the Presi- dent and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Dis- ability be removed, or a President shall be elected. The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be encreased nor dimin- ished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolu- ment from the United States, or any of them. Before he enter on the Execution oi his Office, he shall take the following Oath or Affirmation : — " I do solemnly swear (or affirm) that I will faithfully execute the Office of President of THE UNITED STATES OF AMERICA. 485 the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States." Sectioit. 2. The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States ; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment. He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Sen- ators present concur ; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassa- dors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Ap- pointments are not herein otherwise provided for, and which shall be established by Law : but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments. The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Com- missions which shall expire at the End of their next Session. C ( Section. 3. He shall from time to time giVe to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and ex- pedient ;1 he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may ad- journ them to such Time as he shall think proper ;lhe shall re- ceive Ambassadors and other public Ministers ; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States. Section. 4. The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors. C 486 THE CO:^STITUTION OF ARTICLE III. Section". 1. The judicial Power of tlie United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, re- ceive for their Services, a Compensation, which shall not be diminished during their Continuance in Office. Sectioist. 2. The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority ; — to all Cases affecting Ambassadors, other public Ministers and Consuls ; — to all Cases of admiralty and maritime Jurisdiction ; — to Controversies to which the United States shall be a Party ; — to Controversies between two or more States ; — between a State and Citizens of another State ; — between Citizens of different States, — between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citi- zens or Subjects. In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make. The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury ; and such Trial shall be held in the State where the said Crimes shall have been committed ; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed. Section. 3. Treason against the United States, shall consist only in levying War against them, or in adhering to their Ene- mies, giving them Aid and Comfort. !N'o Person shall be con- victed of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court. The Congress shall have Power to declare the Punishment of THE UNITED STATES OF AMERICA. 487 Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person at- tainted. ARTICLE. lY. Section". 1. Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws pre- scribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof. Section. 2. The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States. A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in an- other State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having. Jurisdiction of the Crime. No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due. Section-. 3. New States may be admitted by the Congress into this Union ; but no new State shall be formed or erected within the Jurisdiction of any other State ; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress. The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States ; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State. Sectioi:^. 4. The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion ; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence. 488 THE CONSTITUTION OF ARTICLE. V. The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitu- tion, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amend- ments, which, in either Case, shall be valid to all Intents and Purposes, as part of this Constitution, when ratified by the Legis- latures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratifi- cation may be proposed by the Congress ; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article ; and that BO State, without its Consent, shall be deprived of its equal Suffrage in the Senate. ARTICLE. VL All Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confedera- tion. This Constitution, and the Laws of the United States which shall be made in Pursuance thereof ; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land ; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution ; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States. ARTICLE. VIL The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same. Done in Convention by the Unanimous Consent of the States present the Seventeenth Day of September in the Year of THE UOTTED STATES OF AMEPwIOA. 489 New Hampshire Massachusetts. our Lord one thousand seven hundred and Eighty seven and of the Independence of the United States of America the Twelfth In Witness whereof We have hereunto subscribed our Names, G^: WASHINGTOlSr— JPresidt. and deputy from Virginia ( John Langdon ) ( Nicholas Gilman ) j Nathaniel Gorham ( RuFus King j Wm. Saml. Johnson ( RoGEK Sherman New York Alexander Hamilton WiL : Livingston David Brearley. Wm. Paterson. JoNA : Dayton B Franklin Thomas Mifflin RoBT. Morris. Geo. Clymer Thos. Fitzsimons Jared Ingersoll James Wilson Gouv Morris Connecticut. New Jersey . Fensylvania Delaware. Maryland Virginia North Carolina, '' Geo : Read Gunning Bedford Jun John Dickinson Richard Bassett Jaco : Broom James McHenry Dan of St Thos. Jenifer Danl. Carroll j John Blair — ( James Madison Jr. r Wm. Blount RiCHD. DoBBS Spaight Hu Williamson 490 THE CONSTITUTION. South Carolina, Georgia. Attest j. rutledge Charles Coteswoeth Pinckney Chaeles Pinckney PlEECE BUTLEE. William Few Abe Baldwii^ WILLIAM JACKSON Secretary The Word, " the ", being interlined between the seventh and eighth Lines of the first Page, The Word *' Thirty " being partly- written on an Erazure in the fifteenth Line of the first Page, The Words " is tried " being interlined between the thirty sec- ond and thirty third Lines of the first Page and the Word " the " being interlined between the forty third and forty fourth Lines of the second Page. [lN"oTE BY THE Depaetment OF State. — The foregoing ex- planation in the original instrument is placed on the left of the paragraph beginning with the words, "Done in Convention," and therefore precedes the signatures. The interlined and re- written words, mentioned in it, are in this edition printed in their proper places in the text.] AETIGLES THE CONSTITUTION OF THE UNITED STATES OF AMERICA, PROPOSED BY CONGRESS, AND EATIFIED BY THE LEGISLATURES OF THE SEVERAL STATES, PURSTJANT TO THE EIPTH ARTICLE OE THE ORIGINAL CONSTITUTION. [ARTICLE I] Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof ; or abridging the freedom of speech, or of the press ; or the right of the people peaceably to assemble, and to petition the Government for a re- di'ess of grievances. [ARTICLE IL] A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed. [ARTICLE III.] No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law. [ARTICLE IV.] The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon prob- able cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. 492 . THE CONSTITUTION OF [ARTICLE v.] "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger ; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb ; nor shall be compelled in any Criminal Case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law ; nor shall private property be taken for public use, without just com- pensation. [ARTICLE YL] In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation ; to be con- fronted with the witnesses against him ; to have compulsory process for obtaining Witnesses in his favor, and to have the Assistance of Counsel for his defence. [ARTICLE VIL] In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be pre- served, and no fact tried by a jury shall be otherwise re-exam- ined in any Court of the United States, than according to the rules of the common law. [ARTICLE VIIL] Excessive bail shall not be required, nor excessive fines im- posed, nor cruel and unusual punishments inflicted. [ARTICLE IX.] The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. [ARTICLE X.] The powers not delegated to the United States by the Con- stitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. / THE UNITED STATES OF AMERICA. 493 [ARTICLE XI.] The Judicial power of the United States shall not be con- strued to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of an- other State, or by Citizens or Subjects of any Foreign State. [ARTICLE XII.] The Electors shall meet in their respective states, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with them- selves ; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Yice- President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate ; — The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted ; — The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed ; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose im- mediately, by ballot, the President. But in choosing the Presi- dent, the votes shall be taken by states, the representation from each state having one vote ; a quorum for this purpose shall con- sist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in the case of the death or other con- stitutional disability of the President. The person having the greatest number of votes as Vice-President, shall be the Vice- President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President ; a quorum for the purpose shall consist of two- 494: THE CONSTITUTION OF thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligi- ble to that of Vice-President of the United States. ARTICLE XIII. Sectioj^" 1. Neither slavery nor involuntary servitude, ex- cept as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction. Section- 2. Congress shall have power to enforce this article by appropriate legislation. ARTICLE XIV. Section- 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 'No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States ; nor shall any State deprive any person of life, liberty, or property, without due process of law ; nor deny to any person within its jurisdic- tion the equal protection of the laws. Section- 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twen- ty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State. Section- 3. No person shall be a Senator or Representative Congress, or elector of President and Vice President, or hold Q 3e, civil or military, under the United States, or under THE UNITED STATES OF AMERICA. 495 any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such dis- ability. Sectioit 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave ; but all such debts, obligations and claims shall be held illegal and void. Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article. ARTICLE XY. Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude. Section 2. The Congress shall have power to enforce this article by appropriate legislation. ( J I. A 1 9 UNIVERSITY OF CALIFORNIA LIBRARY Los Angeles This book is DUE on the last date stamped below. 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