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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 <p,-v-^
America had no power to adopt measures of defensive legisla- rTj^^^ ^
tion. There were many who considered the United States as ^p>./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, 113<S; Elliot, 332, and L, 210. X Gilpin, 1180; Elliot, 354.
f Gilpin, 1177-1179; Elliot, 352, 353.
VOL. VI. — 18
274 THE FEDERAL CONVENTION. b.iii.;ch.v.
' tlie people, were not then thought of." * ^' A reference to
the authority of the people expressly delegated to conven-
tions," insisted King, " is most likely to draw forth the best
men in the states to decide on the new constitution, and to
obviate disputes and doubts concerning its legitimacy." f
Madison spoke with intense earnestness. " The difference
between a system founded on the legislatures only and one
founded on the people is the difference between a treaty and
a constitution. A law violating a treaty ratified by a pre-
existing law might be respected by the judges ; a law vio-
lating a constitution established by the people themselves would
be considered by the judges as null and void. A breach of any
one article of a treaty by any one of the parties frees the other
parties from their engagements ; a union of the people, under
one constitution, by its nature excludes such an interpreta-
tion." x
After a full debate, the convention, by nine states against
Delaware, referred the ratification of the new constitution to
) an assembly in each state to be chosen specially for that pur-
(. pose by the people.*
In the following three days the resolutions of the federal
convention for the establishment of a national government,
consisting of twenty-three in number, were finished and re-
ferred to a committee of detail, five in number, who were or-
dered to prepare and report them in the form of a constitution.
"With them were referred the propositions of Charles Pinckney
and the plan of New Jersey. v.
The federal convention selected for its committee of detail
three members from the North and two from the South — Gor-
ham, Ellsworth, Wilson, Randolph, and John Rutledge, of
whom the last was the chairman. By ancestry Scotch-Irish,
in early youth carefully but privately educated, afterward a
student of law in the Temple at London, Rutledge became the
foremost statesman of his time south of Yirginia. At the age
of twenty-six he began his national career in the stamp-act con-
gress of 1765, and from that time was employed by his state
wherever the aspect of affairs was the gravest. Patrick Henry
* Gilpin, 1181 ; Elliot, 354. ^ Gilpin, 1183, 1184 ; Elliot, 355, 356.
t Gilpin, 1183 ; Elliot, 355. ^ Gilpin, 1185 ; Elliot, 356.
1787. OUTLINE OF THE CONSTITUTION REFERRED. 275
pronounced him tlie most eloquent man in tlie congress of
1774: ; liis sincerity gave force to his words. In the darkest
hours he was intrepid, hopeful, inventive of resources, and reso-
lute, so that timidity and wavering disappeared before him. To
the day when disease impaired his powers he was, in war and
in peace, the pride of Soutli Carolina. That state could not
have selected an abler representative of its policy on the pay-
ment of the members of the national legislature from the
treasuries of the states, on the slave-trade, the taxation of ex-
ports, and the requisition of more than a bare majority of the
legislature to counteract European restrictions on navigation.
Of his associates, Gorham was a merchant of Boston, who
from his own experience understood the commercial relations
of his country, and knew where the restrictive laws of Eng-
land, of France, and of Spain injured American trade and ship-
ping. Ellsworth, who had just established harmony between
the small and the larger states by a wdse and happy compromise,
now found himself the umpire between the extreme South and
the ^N'orth.
Cotesworth Pinckney called to mind that if the committee
should fail to insert some security to the southern states against
an emancipation of slaves, and against taxes on exports, he
should be bound by duty to his state to vote against their re-
port.* After this the convention, on the twenty-sixth of July,
unanimously adjourned till Monday, the sixth of August, that
the committee of detail might have time to prepare and report
the constitution. f
The committee in joint consultation gave their unremitting
attention to every question that came before them. J Their
best guides were the constitutions of the several states, which
furnished most striking expressions, and regulations approved
by long experience. There is neither record nor personal nar-
rative of their proceedings, though they were invested with the (
largest constructive powers; but the conduct of its several
members may be determined by light reflected from their own ;
words and actions before and after. Meanwhile the interest and •
* Gilpin, 1187 ; Elliot, 357. f Gilpin, 1220; Elliot, 374, 375.
X Wilson in Gilpin, 1249 ; Elliot, 385, and Rutledge in Gilpin, 1284 ; Elliot,
403.
276 THE FEDERAL CONVENTION. b.iii.;ch.v.
anxiety of tlie country were on the increase. In May Grayson
had written to Monroe : " The weight of General Washington
is very great in America, but I hardly think it is sufficient to
induce the people to pay money or part with power." * " If
what the convention recommend should be rejected," so wrote
Monroe to Jefferson the day after the adjournment, " they will
complete our ruin. But I trust that the presence of General
"Washington will overawe and keep under the demon of party,
and that the signature of his name to the result of their de-
liberations will secure its passage through the union."
* Grayson to Monroe, 29 May 1*787.
1786. THE COLONTAL SYSTEM OF AMEPwIOA. 277
CHAPTER YL
the colonial system op the united states.
Feom Januaey 1786 to July 1787.
Before the federal convention had referred its resolutions
to a committee of detail, an interlude in congress was shaping
the character and destiny of the United States of America.
Sublime and humane and eventful in the history of mankind
as was the result, it will take not many words to tell how it
was brought about. For a time wisdom and peace and justice
dwelt among men, and the great ordinance, which could alone
give continuance to the union, came in serenity and stillness.
Every man that had a share in it seemed to be led by an invisi-
ble hand to do just what was wanted of him ; all that was wrong-
fully undertaken fell to the ground to wither by the wayside ;
whatever was needed for the happy completion of the mighty
work arrived opportunely, and just at the right moment moved
into its place.
By the order of congress a treaty was to be held, in Janu-
ary 1786, with the Shawnees, at the mouth of the Great
Miami. Monroe, who had been present as a spectator at the
meeting of the United States commissioners with the represen-
tatives of the Six Nations at Fort Stanwix, in 1784, desired to
attend this meeting with a remoter tribe. He reached Fort
Pitt, and with some of the American party began the descent
of the Ohio ; but, from the low state of the water, he aban-
doned the expedition at Limestone, and made his way to
Richmond through Kentucky and the wilderness. As the
result of his inquiries on the journey, he took with him to
congress the opinion that a great part of the western territory,
278 THE FEDERAL CONVENTION. b. iii. ; ch. vi.
especially that near Lakes Michigan and Erie, was miserably
poor ; that the land on the Mississippi and the Illinois consisted
of extensive plains which had not a single bnsh on them, and
would not have for ages ; that the western settlers, in many
of the most important objects of a federal government, would
be either opposed to the interests of the old states or but lit-
tle connected with them. He would form the territory into
no more than five states ; but he adhered to the principle of
Jefferson, that they ought as soon as possible to take part in
governing themselves, and at an early day share " the sover-
eignty, freedom, and independence " of the other states.
In the course of the winter the subject of the division of
the western territory into states was, on the motion of Monroe,
referred to a grand committee. Its report, which was pre-
sented on the twenty-fourth of March, traced the division of
the territory into ten states to the resolution of congress of
September 1780, by which no one was to contain less territory
than one hundred nor more than one hundred and fifty miles
square. This resolution had controlled the ordinance of April
1784 ; and, as the first step toward a reform, every part of that
ordinance which conflicted with the power of congress to di-
vide the territory into states according to its own discretion
was to be repealed.*
Yirginia had imbodied the resolve of congress of Septem-
ber 1780 in its cession of its claims to the land north-west of
the " Ohio. A further report proposed that Virginia should be
asked to revise its act of cession. f
At this stage of the proceedings Dane made a successful
motion to raise a committee for considering and reporting the
form of a temporary government for the western states. :[: Its
chairman was Monroe, with Johnson and King of JN^ew Eng-
* This first report of the grand committee is found in Reports of Committees,
Papers of Old Congress, xxx., 75, in the State Department, and is indorsed as hav-
ing been "read 24th of March 1780, to be considered Thursday, March 30th."
f This second report of the grand committee is found likewise in vol. xxx., 79,
and following, of Papers of Old Congress ; but it has no indorsement as to the
time when it was entered, read, or considered.
X The day on which this motion was made is not given, nor is the motion en-
tered in the Journal. It was probcibly in April. We get the fact from page 85
of vol. xxx. of the Papers of the Old Congress.
1786. THE COLONIAL SYSTEM OF AMEPwIOA. 279
land, John Kean and Charles Pinckney of South Carolina, as
his associates. On the tenth of May this committee read their
report. It asked the consent of Virginia to a division of the
territory into not less than two nor more than five states ; pre-
sented a plan for their temporary colonial government; and
promised them admission into the confederacy on the princi-
ple of the ordinance of Jefferson. ]^ot one word was said of
a restriction on slavery. "^J^o man liked better than Monroe to
lean for support on the minds and thoughts of others. He y/
loved to spread his sails to a favoring breeze, but in threaten-
ing w^eather preferred quiet under the shelter of his friends.
When Jefferson, in 1784, moved a restriction on slavery in the
western country from Florida to the Lake of the AVoods, Mon-
roe was ill enough to be out of the way at the division. When
King in the following year revived the question, he was again
absent at the vote ; now, when the same subject challenged his
attention, he was silent.'
"" At first Monroe flattered himself that his report was gener-
ally approved ; * but no step was taken toward its adoption^
All that was done lastingly for the West by this congress was
the fruit of independent movements. On the twelfth of May,
at the motion of Grayson seconded by King, the navigable
waters leading into the Mississippi and the St. Lawrence, and
the carrying places between them, were declared to be common
highways, forever free to all citizens of the United States,
without any tax, impost, or duty.
. The assembly of Connecticut, which in the same month
held a session, was resolved on opening a land ofiice for the
sale of six millions of acres west of the Pennsylvania line
which their state had reserved in its cession of all further
claims by charter to western lands. The reservation was not
excessive in extent ; the right of Connecticut under its charter
had been taken away by an act of the British parliament of
which America had alw^ays denied the validity. The federal
constitution had provided no mode of settling a strife between
a state and the United States ; a war would cost more than the
land was worth. f Grayson ceased his opposition ; and on the
* Monroe to' Jefferson, New York, 11 May 1786.
f Grayson to Madison, "28 May 1786.
280 THE FEDERAL CONVENTION. b. iii. ; ch. vi.
fourteenth of the following September congress accepted the
deed of cession by which Connecticut was confirmed in the
possession of what was called her " western reserve." The
compact establishment of the culture of l^ew England in that
district had the most beneficent effect on the character of Ohio
and the development of the union.
For diminishing the number of the states to be formed out
of the western territory, Monroe might hope for a favorable
hearing. At his instance the subject was referred to a grand
committee, which on the seventh of July reported in favor of
obtaining the assent of Virginia to the division of the territory
north-west of the Ohio into not less than two nor more than
five states.
With singular liberality Grayson proposed to divide the
country at once into not less than five states. He would run
a line east and west so as to touch the most southern part of
Lake Michigan, and from that line draw one meridian line to
the western side of the mouth of the Wabash, and another to
the western side of the mouth of the Great Miami, making
three states between the Mississippi and the western lines of
Yirginia and Pennsylvania. The peninsula of Michigan was
to form a fourth state ; the fifth would absorb the country be-
tween Lake Michigan, Lake Superior, and the line of water to
the northern boundary in the Lake of the Woods on the one
side and the Mississippi on the other. This division, so unfa-
vorable to southern influence, was voted for by Maryland, Vir-
ginia, ISTorth Carolina, and Georgia, South CaroHna being di-
vided ; the North did not give one state in its favor ; and the
motion was lost. It was then agreed that the district should
ultimately be divided at least into three states, the states and
individuals being unanimous, except that Grayson adhered to
his preference of five."^
The cause which arrested the progress of the ordinance of
Monroe was a jealousy of the political power of the western
states, and a prevailing desire to impede their admission into
the union. To Jefferson he explained with accurate foresight
the policy toward which congress was drifting.
When the inhabitants of the Kaskaskias presented a peti-
* Journals of Congress, iv., 662, 663.
1786-1787. THE COLONIAL SYSTEM OF AMERICA. 281
tion for the organization of a government over their district,
Monroe took part in the answer, that congress had nnder con-
sideration the plan of a temporary government for their dis-
trict in which it would manifest a due regard to their interest.*
This is the last act of congress relating to the West in which
Monroe participated. With the first Monday of the coming
J^ovember the rule of rotation would exclude him from con-
gress.
During the summer Kean was absent from congress, and
his place on the committee was taken by Melancthon Smith f
of New York. In September, Monroe and King went on a
mission from Congress to the legislature of Pennsylvania, and
their places were filled by Henry of Maryland and Dane. The
committee with its new members represented the ruling senti-
ment of the house ; and its report, which was made on the
nineteenth of September, required of a western state before
its admission into the union a population equal to one thir-
teenth part of the citizens of the thirteen original states ac-
cording to the last preceding enumeration. Had this report
been adopted, and had the decennial census of the population
of territories and states alone furnished the rule, Ohio must
have waited twenty years longer for admission into the union ;
Indiana would have been received only after 1850 ; IIHnois
only after 18G0 ; Michigan could not have asked admittance
till after the census of 1880 ; and after that census Wisconsin
must still have remained a colonial dependency.
The last day of September 1786 was given to the considera-
tion of the report ; but before anything was decided the sev-
enth congress expired.
The new congress, to which Madison and Eichard Henry
Lee, as well as Grayson and Edward Carrington, were sent by
Yirginia, had no quorum till February 1787, and then was oc-
cupied with preparations for the federal convention and with
the late insurrection in Massachusetts. But the necessity of
providing for a territorial government was urgent ; and near
the end of April the committee of the late congress revived
* Journals of Congress, iv,, 688, 689.
f The name of Smith as one of the committee occurs in August 1*786. Journals
of Congress, iv., 688.
282 THE FEDERAL CONVENTION. b. hi. ; oh. vi.
its project of the preceding September. On the ninth of May
it was read a second time ; the clause which would have indefi-
nitely delayed the admission of a w^estern state was cancelled ; *
a new draft of the bill as amended was directed to be tran-
scribed, and its third reading was made the order of the next
day, t when of a sudden the further progress of the ordinance
was arrested.
Kufus Putnam, of Worcester county, Massachusetts, who
had drawn to himself the friendly esteem of the commander-
in-chief, and before the breaking up of the army received the
commission of brigadier-general, was foremost in promoting a
petition to congress of ofiicers and soldiers of the revolution
for leave to plant a colony of the veterans of the army between
Lake Erie and the Ohio, in townships of six miles square, with
large reservations " for the ministry and schools." For him-
self and his associates he entreated Washington to represent
to congress the strength of the grounds on which their petition
rested. :j: Their unpaid services in the war had saved the in-
dependence and the unity of the land ; their settlement would
protect the frontiers of the old states against alarms of the sav-
ages ; their power would give safety along the boundary line on
the north ; under their shelter the endless procession of emi-
grants would take up its march to fill the country from Lake
Erie to the Ohio.
With congress while it was at Princeton, and again after
its adjournment to Annapolis, Washington exerted every power
of which he was master to bring about a speedy decision. The
members with whom he conversed acquiesced in the reasonable-
ness of the petition and approved its policy, but they excused
their inertness by the want of a cession of the north-western
lands.
When, in March 1784, the lands were ceded by Virginia,
Pufus Putnam again appeals to Washington : " You are sensi-
ble of the necessity as well as the possibility of both ofiicers
and soldiers fixing themselves in business somewhere as soon as
* This appears from the erasures on the printed bill, which is still preserved.
f Journals of Congress, iv., 747.
X S. p. Hildreth, Pioneer Settlers of Ohio, 88. Walker, 29. Letter of Rufus
1785-1787. THE COLONIAL SYSTEM OF AMERICA. 283
possible ; many of tbem are unable to lie long on tlieir oars ; "
but congress did not mind the spur. In tbe next year, under
the land ordinance of Grayson, Rufus Putnam was elected
a surveyor of land in the western territory for Massachu-
setts ; and as he could not at once enter on the service, another
brigadier-general, Benjamin Tupper of Chesterfield, in the
same state, was appointed for the time in his stead.* Tupper
repaired to the West to superintend the work confided to him ;
but disorderly Indians prevented the survey ; without having
advanced farther west than Pittsburgh, he returned home;
and, like almost every one who caught glimpses of the West,
he returned with a mind filled with the brightness of its
promise.
Toward the end of 1T85, Samuel Ilolden Parsons, the son
of a clergyman in Lyme, Connecticut, a graduate of Harvard,
an early and a wise and resolute patriot, in the war a brigadier-
general of the regular army, travelled to tlie West on public
business, descended the Ohio as far as its falls, and, full of the
idea of a settlement in that western country, wrote, before the
year went out, that on his way he had seen no place which
pleased him so much for a settlement as the country on the
Muskingum.f
In the treaty at Fort Stanwix, in 1734, the Six Nations re-
nounced to the United States all claims to the country west of
the Ohio. A treaty of January 1785, with the Wyandotte,
Delaware, Chippewa, and Ottawa nations, released the country
east of the Cuyahoga, and all the lands on the Ohio, south
of the line of portages from that river to the Great Miami
and the Maumee. On the last day of January 1786, George
Rogers Clark, the conqueror of the North- west, Richard Butler,
late a colonel in the army, and Samuel Ilolden Parsons, acting
under commissions from the United States, met the Shawnees
at the mouth of the Great Miami, and concluded with them a
treaty by which they acknowledged the sovereignty of the
United States over all their territory as described in the treaty
of peace with Great Britain, and for themselves renounced all
claim to property in any land east of the main branch of
* Journals of Congress, iv., 520, 527, 547.
f William Frederick Poole inN. A. Review, liii., 331.
284 THE FEDERAL CONYEl^TIOJ^'. b. hi. ; ch. vi.
the Great Miami.* In tliis way the Indian title to southern
Ohio, and all Ohio to the east of the Cuyahoga, was quieted.
Six days before the signature of the treaty with the Shaw-
nees, Kuf us Putnam and Benjamin Tupper, after a careful con-
sultation at the house of Putnam, in Rutland, pubHshed in the
newspapers of Massachusetts an invitation to form " the Ohio
Company " for purchasing and colonizing a large tract of land
between the Ohio and Lake Erie. The men chiefly engaged
in this enterprise were husbandmen of ISTew England, nurtured
in its schools and churches, laborious and methodical, patriots
who had been further trained in a seven years' war for freedom.
Have these men the creative power to plant a commonwealth ?
And is a republic the government under which political organi-
zation for great ends is the most easy and the most perfect ?
To bring the Ohio company into formal existence, all per-
sons in Massachusetts who wished to promote the scheme were
invited to meet in their respective counties on "Wednesday, the
fifteenth day of the next February, and choose delegates to
meet in Boston on Wednesday, the first day of March 1786,
at ten of the clock, then and there to consider and determine
on a general plan of association for the company. On the ap-
pointed day and hour, representatives of eight counties of
Massachusetts came together ; among others, from "Worcester
county, Pufus Putnam; from Suffolk, Winthrop Sargent;
from Essex, Manasseh Cutler, lately a chaplain in the army,
then minister at Ipswich ; from Middlesex, John Brooks ; from
Hampshire, Benjamin Tupper. Eufus Putnam was chosen
chairman of the meeting, Winthrop Sargent its secretary. On
the third of March, Putnam, Cutler, Brooks, Sargent, and
Cushing, its regularly appointed committee, reported an asso-
ciation of a thousand shares, each of one thousand dollars in
continental certificates, which were then the equivalent of one
hundred and twenty-five dollars in gold, with a further liability
to pay ten dollars in specie to meet the expenses of the agen-
cies. Men might join together and subscribe for one share.
A year was allowed for subscription. At its end, on the
eighth of March 1787, a meeting of the subscribers was held
at Boston, and Samuel Holden Parsons, Eufus Putnam, and
* U. S. Statutes at Large, vii., 15, 16-18, 26.
1787. THE COLONIAL SYSTEM OF AMERICA. 285
Manasseli Cutler were cliosen directors to make application to
congress for a purchase of lands adequate to the purposes of
the company.
The basis for the acquisition of a vast domain was settled
by the directors, and Parsons repaired to l^ew York to bring
the subject before congress. On the ninth of May 1787, the
same day on which the act for the government of the North-west
was ordered to a third reading on the morrow, the memorial of
Samuel Holden Parsons, agent of the associators of the Ohio
company, bearing date only of the preceding day, was presented.*
It interested every one. For vague hopes of colonization, here
stood a body of hardy pioneers ; ready to lead the way to the
rapid absorption of the domestic debt of the United States ; se-
lected from the choicest regiments of the army ; capable of self-
defence ; the protectors of all who should follow them ; men
skilled in the labors of the field and of artisans ; enterprising
and laborious ; trained in the severe morality and strict ortho-
doxy of the New England villages of that day. All was
changed. There was the same difference as between sending
out recruiting officers and giving marching orders to a regular
corps present with music and arms and banners. On the in-
stant the memorial was referred to a committee consisting of
Edward Carrington, Eufus King, IN'athan Dane, Madison, and
Egbert Benson — a great committee : its older members of con-
gress having worthy associates in Carrington and Benson, of
whom nothing was spoken but in praise of their faultless in-
tegrity and rightness of intention.
On the fourth day of July 1787, for the first time since the
eleventh of May, congress had a quorum. There were present
from the North, Massachusetts, New York, and New Jersey ;
from the South, Virginia, the two Carolinas, and Georgia, soon
to be joined by Delaware. The South had all in its own way.
The president of congress being absent, "William Grayson of
Virginia was elected the temporary president.
■^" The memorial of Parsons is in his own handwriting. It is contained in vol.
xli. of Papers of the Old Congress, vol. viii., 226, of the Memorials. It is indorsed
in the handwriting of Roger Alden, " Memorial of Samuel II. Parsons, agent of the
associators for the purchase of lands on the Ohio. Read May ninth 1181. Re-
ferred to Mr. Carrington, :Mr. King, Mr. Dane, Mr. Madison, Mr. Benson. Acted
on July 23, 1181. See committee book."
286 THE FEDERAL CONVENTION. b. iii. ; ch. vi.
On Friday, the fifth, there was no quorum. In the even-
ing arriyed Manasseh Cutler, one of the three agents of the
Ohio company, sent to complete the negotiations for western
lands. On liis way to J^ew York, Cutler had visited Parsons,
his fellow-director, and now acted in full concert with him.
Carrington gave the new envoy a cordial welcome, introduced
him to members on the floor of congress, devoted immediate
attention to his proposals, and abeady, on the tenth of July,
his report granting to the Ohio company all that they desired
was read in congress.*
This report, which is entirely in the handwriting of Edward
Carrington, assigns as gifts a lot for the maintenance of public
schools in every township ; another lot for the purpose of re-
ligion ; and four complete townships, " which shall be good land,
and near the centre," for the purpose of a university. The land,
apart from the gifts, might be paid for in loan -office certificates
reduced to specie value or certificates of liquidated debts of the
United States. For bad land, expenses of surveying, and in-
cidental circumstances, the whole allowance was not to exceed
one third of a dollar an acre. The price, therefore, was about
sixty-six cents and two thirds for every acre, in United States
certificates of debt. But as these were then worth only twelve
cents on the dollar, the price of land in specie was between
eight and nine cents an acre.
On the ninth of July, Eichard Henry Lee took his seat in
congress. His presence formed an era. On that same day the
report for framing a western government, which was to have
had its third reading on the tenth of May, was referred to a
new committee t of seven, composed of Edward Carrington
* The business of congress was done with closed doors and with rigid secrecy.
Hence some slight misconceptions in the journal of Cutler. N. A. Review, liii.,
334, etc. He says that on July sixth a committee was appointed to consider his
proposal. The committee was appointed not on July sixth, but on the ninth
of May, and was not changed. Its report is to be found in vol. v. of the Reports
of Committees, and in Old Papers of Congress, xix., 27. The report is in the
handwriting of Edward Carrington, and by his own hand is indorsed ; " Report of
Committee on Memorial of S. H. Parsons." Mr. Thomson's hand indorses fur-
ther : " Report of Mr. Carrington, Mr. King, Mr. Dane, Mr. Madison, Mr. Benson.
Read July 10th, 1787. Order of the day for the eleventh." On what day it
was presented is not recorded.
f In the Journals of Congress, iv., 751, for the lltb of July, mention is made
1787. THE COLONIAL SYSTEM OF AMERICA. 287
and Dane, Eichard Henry Lee, Kean of Soutli Carolina, and
Melancthon Smith of New York. There were then in con-
gress five southern states to three of the JS^orth ; on the com-
mittee two northern men to three from the South, of whom the
two ablest were Virginians.
The committee, animated by the j^resence of Lee, went to
its work in good earnest. Dane, who had been actively em-
ployed on the colonial government for more than a year, and
for about ten months had served on the committee which had
the subject in charge, acted the part of scribe. Like Smith
and Lee, he had opposed a federal convention for the reform
of the constitution. The three agreed very well together,
though Dane secretly harbored the wish of finding in the West
an ally for " eastern politics." They were pressed for time,
and found it necessary finally to adopt the best system they
could get. At first they took up the plan reported by Mon-
roe ; but new ideas were started ; and they worked with so
much industry that on the eleventh of July their report of an
ordinance for the government of the territory of the United
States north-west of the river Ohio was read for its first time
in congress.
The ordinance imbodied the best parts of the work of their
predecessors. For the beginning they made the whole north-
western territory one district, of which all the officers appointed
by congress were to take an oath of fidelity as well as of office.
Jefferson, in his ordinance for the sale of lands, had taken care
for the equal descent of real estate, as well as other property,
to children of both sexes. This was adopted and expressed in
the forms of the laws of Massachusetts. The rule of Jefferson
was followed in requiring no property qualification for an elect-
or ; but was not extended, as Jefferson had done, to the officers
to be elected.
The committee then proceeded to establish articles of com-
pact, not to be repealed except by the consent of the original
states and the people and states in the territory. Among these,
that the report of a committee touching the temporary government for the west-
ern territory had been referred to the committee. I find an indorsement in the
State Department on one of the papers that the day on which that reference was
made was July ninth.
288 THE FEDERAL CONVENTION. b. hi. ; ch. vi.
as in Massacliusetts and Virginia, were freedom of religions
worship and of religions thought ; and various articles from
the usual bills of rights of the states.
The next clause bears in every word the impress of the
mind of Richard Henry Lee. " No law ought ever to be made
in said territory that shall in any manner whatever interfere
with or conflict with private contracts or engagements, honafide
and without fraud previously formed." This regulation re-
lated particularly to the abuse of paper money.*
The third article recognised, like the constitution of Massa-
chusetts, and like the letter of Rufus Putnam of 1783,t that
religion, morality, and knowledge are necessary to good govern-
ment and the happiness of mankind, and declared that schools
and the means of education shall forever be encouraged.
The utmost good faith was enjoined toward the Indians ;
their lands and property, their rights and liberty, were ordered
to be protected by laws founded in justice and humanity ; so
that peace and friendship with them might ever be preserved.
The new states, by compact which neither party alone
could change, became, and were forever to remain, a part of
the United States of America. The waters leading into the
Mississippi and St. Lawrence, and the carrying places between
them, according to the successful motion of Grayson and King,
were made common highways and forever free. The whole
territory was divided into three states only, the population re-
quired for the admission of any one of them to the union was
fixed at sixty thousand ; but both these clauses were subject to
the future judgment of congress. The prayer of the Ohio
* " Cette disposition porte particulieremcnt sur I'abus du papier monnaie."
Otto to Montmorin, successor of Vergennes at Versailles, 20 July 1787. R. H.
Lee to George Mason, Chantilly, 15 May 1787. Life of Richard Henry Lee, ii.,
71-73, Lee hated paper money, and therefore had entreated his friends in the
convention at Philadelphia to take from the states the right of issuing it. More-
over, he piqued himself upon the originality of his suggestion : " a proposition
that I have not heard mentioned." Compare Lee to Washington, in Sparks's Let-
ters to Washington, iv., 174. More than forty-two years later Dane claimed for
himself " originality " in regard to the clause against impairing contracts [Mas-
sachusetts Historical Society Proceedings, 1867 to 1869, p. 479], but contemporary
evidence points to R. H. Lee as one with whom he must at least divide the
honor.
\ The proposals presented by Cutler arc in the handwriting of Parsons.
1787. THE COLONIAL SYSTEM OF AMERICA. 289
company had been but tliis : " The settlers shall be under the
immediate government of congress in such mode and for such
time as congress shall judge proper ; " the ordinance contained
no allusion to slavery ; and in that form it received its first
reading and was ordered to be printed.
Grayson, then the presiding ofiicer of congress, had always
opposed slavery. Two years before he had wished success to
the attempt of King for its restriction ; and everything points
to him * as the immediate cause of the tranquil spirit of dis-
interested statesmanship which took possession of every south-
ern man in the assembly. Of the members of Yirginia,
Richard Henry Lee had stood against Jefferson on this very
question ; but now he acted with Grayson, and from the states
of which no man had yielded before, every one chose the part
which was to bring on their memory the benedictions of all
coming ages. Obeying an intimation from the South, Nathan
Dane copied from Jefferson the prohibition of involuntary
servitude in the territory, and quieted alarm by adding from the
report of King a clause for the delivering up of the fugitive
slave. This at the second reading of the ordinance he moved
as a sixth article of compact, and, on the thirteenth day of July
1787, the great statute forbidding slavery to cross the river
Ohio was passed by the vote of Georgia, South Carolina, North
Carolina, Virginia, Delaware, New Jersey, New York, and
Massachusetts, all the states that were then present in congress.
Pennsylvania and three states of New England were absent ;
* William Grayson voted for King's motion of reference, by which the prohi-
bition of slavery was to be immediate ; he expressed the hope that congress would
be liberal enough to adopt King's motion ; he gave, more than any other man in
congress, efficient attention to the territorial questions ; in 1785 he framed and
carried through congress an ordinance for the sale of western lands ; his influence
as president of congress was great ; his record as against slavery is clearer than
that of any other southern man who was present in 1787. The assent of Virginia
being requisite to the validity of the ordinance, he entreated Monroe to obtain
tliat consent. The consent was not obtained. Though in shattered health, he
then became a member of the next Virginia legislature, and was conspicuous in
obtaining the assent of Virginia. Add to this in the debate on excluding slavery
from the territory of Arkansas, Hugh Nelson of Virginia was quoted as having
ascribed the measure to Grayson. Austin Scott fell upon, and was so good as to
point out to me, this passage in Annals of Congress for February 1819, column
1225. Thus far no direct report of Nelson's speech has been found.
VOL. TI. — 19
290 THE FEDERAL CONVENTION. b. iii. ; en. vi.
Maryland only of the South. Of the eighteen members of
congress who answered to their names, every one said " aye "
excepting Abraham Yates the yonnger of New York, who in-
sisted on leaving to all future ages a record of his want of good
judgment, right feeling, and common sense.
Thomas Jefferson first summoned congress to prohibit slav-
ery in all the territory of the United States ; Euf us King lifted
up the measure when it lay almost lifeless on the ground, and
suggested the immediate instead of the prospective prohibition ;
a congress composed of fi.ve southern states to one from ]New
England, and two from the middle states, headed by "William
Grayson, supported by Eichard Henry Lee, and using Nathan
Dane as scribe, carried the measure to the goal in the amended
form in which King had caused it to be referred to a committee ;
and, as Jefferson had proposed, placed it under the sanction
of an irrevocable compact.*
The ordinance being passed, the terms of a sale between
the United States and Manasseh Cutler and Winthrop Sargent,
as agents of the Ohio company, were rapidly brought to a
close, substantially on the basis of the report of Carrington.f
The occupation of the purchased lands began immediately,
and proceeded with the order, courage, and regularity of men
accustomed to the discipline of soldiers. '^ 'No colony in
America," said Washington in his joy, " was ever settled un-
der such favorable auspices as that which has just commenced
at the Muskingum. Information, property, and strength will
be its characteristics. I know many of the settlers personally,
and there never were men better calculated to promote the
welfare of such a community." :J: Before a year had passed by,
free labor kejDt its sleepless watch on the Ohio.
But this was not enough. Virginia had retained the right
to a very large tract north-west of the Ohio ; and should she
consent that her own sons should be forbidden to cross the
river with their slaves to her own lands ?
It was necessary for her to give her consent before the or-
dinance could be secure ; and Grayson earnestly entreated
* Nathan Dane to Rufiis King, 16 July llSI.
f Compare Carrington's report with its amended form in Journals of Con
gress, iv., Appendix 17. t Sparks, ix., 385.
1787. THE COLONIAL SYSTEM OF AMERICA. 291
Monroe to gain that consent before the year should go out.
But Monroe was not equal to the task, and nothing was accom-
plished.
At the next election of the assembly of Yirginia, Grayson,
who was not a candidate in the preceding or the following
year, was chosen a delegate ; and then a powerful committee,
on which were Carrington, Monroe, Edmund Eandolph, and
Grayson, successfully brought forward the bill by which Yir-
ginia confirmed the ordinance for the colonization of all the
territory then in the possession of the United States by free-
men alone.
The white men of that day everywhere held themselves
bound to respect and protect the black men in their liberty
and property. The suffrage was not as yet regarded as a right
incident to manhood, and could be extended only according to
the judgment of those who were found in possession of it.
When in 1785 an act providing for the gradual abolition of
slavery within the state of 'New York, while it placed the chil-
dren born of slaves in the rank of citizens, deprived them of
the privileges of electors, the council of revision, Clinton and
Sloss Hobart being present, and adopting the report of Chan-
cellor Livingston, negatived the act, because, " in violation of
the rules of justice and against the letter and spirit of the con-
stitution," it disfranchised the black, mulatto, and mustee citi-
zens who had heretofore been entitled to a vote. The veto
prevailed ; ^ and in the state of New York the colored man
retained his impartial right of suffrage till the constitution of
1821. Yirginia, which continued to recognise free negroes as
citizens, in the session in which it sanctioned the north-western
ordinance, enacted that any person who should be convicted
of stealing or selling any free person for a slave shall suffer
death without benefit of clergy. f This was the protection
which Yirginia, when the constitution was forming, extended
to the black man.
* Street's New York Couucil of iievisiou, 268, 2G9. f Heniag, xii., 531
292 THE FEDERAL CONVENTION. b. hi. ; en. vii.
CHAPTER yil.
the constitution in detail. the powers of congeess.
6 August to 10 September 1787.
The twentj-tliree resolutions of the convention were dis-
tributed by the committee of detail into as many articles, which
included new subjects of the gravest moment. On the sixth
of August 1787 every member of the convention received a
copy of this draft of a constitution, printed on broadsides in
large type, with wide spaces and margin for minutes of amend-
ments.* The experience of more than two months had in-
spired its members with the courage and the disposition to
make still bolder grants of power to the union.
The instrument f opens with the sublime words : " We, the
people of the states," enumerating JNew Hampshire and every
other of the thirteen, " do ordain, declare, and establish the
following constitution for the government of ourselves and our
posterity." X
When in 1776 " tlie good people " of thirteen colonies, each
having an organized separate home government, and each
hitherto forming an integral part of one common empire,
jointly prepared to declare themselves free and independent
states, it was their first care to ascertain of whom they were
composed. The question they agreed to investigate and decide
* Of these copies six have been examined, including that of the president of
the convention, and, as is believed, that of its secretary.
f Gilpin, 1226; Elliot, 376.
i " We the people of Massachusetts — do — ordain and establish the following
—constitution of civil government for ourselves and posterity." Preamble to the
first constitution of Massachusetts.
1787. THE POWERS OF CONGRESS. 293
by a joint act of tliem all. For this end congress selected from
its numbers five of its ablest jurists and most trusted states-
men : Jolm Adams of Massachusetts, Thomas Jefferson of Vir-
ginia, Edward Rutledge of South Carolina, James Wilson of
Pennsylvania, and Robert R. Livingston of 'New York ; the
fairest representation that could have been made of New Eng-
land, of the South, and of the central states. The committee
thought not of embarrassing themselves with the introduction
of any new theory of citizenship ; they looked solely for exist-
ing facts. They found colonies with well-known territorial
boundaries ; and inhabitants of the territory of each colony ;
and their unanimous report, unanimously accepted by congress,
was : " All persons abiding within any of the United Colonies, '
and deriving protection from the laws of the same, owe allegi-
ance to the said laws, and are members of such colony." *
From " persons making a visitation or temporary stay," only a
secondary allegiance was held to be due.
When the articles of confederation w^ere framed with the
grand principle of intercitizenship, which gave to the Ameri-
can confederation a superiority over every one that preceded r
it, the same definition of membership of the community was >r
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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