History of the Origin, Formation, and Adoption of the Constitution of the United States Volume I Part 14

[236] August 23, 1786.

CHAPTER II.

1784-1787.

INFRACTIONS OF THE TREATY OF PEACE.

The Treaty of Peace, ratified on the 14th of January, 1784, contained provisions of great practical and immediate importance. One of its chief objects, on the part of the United States, was, of course, to effect the immediate withdrawal of the British troops, and of every sign of British authority, from the country whose independence it acknowledged. A stipulation was accordingly introduced, by which the King bound himself, with all convenient speed, and without causing any destruction, or carrying away any negroes or other property of the American inhabitants, to withdraw all his armies, garrisons, and fleets from the United States, and from every post, place, and harbor within the same. Although the ratification of the Treaty was followed by the departure of the British forces from the Atlantic coast, many important posts in the Western country, within the incontestable limits of the United States, with a considerable territory around each of them, were still retained[237].

On the part of England, it was of great consequence to secure to British subjects the property, and rights of property, of the enjoyment of which the state of hostilities had deprived them. A war between colonies and the parent state, which had sundered the closest intimacies of social and commercial intercourse, involved of necessity vast private interests. There were two large cla.s.ses of English creditors, whose interests required protection; the British merchants to whom debts had been contracted before the Revolution, and the Tories, who had been obliged to depart from the United States, leaving debts due to them, and landed property, which had been seized. Clear and explicit stipulations were inserted in the Treaty, in order to protect these interests. It was provided that creditors on either side should meet with no lawful impediments to the recovery of the full value in sterling money of all _bona fide_ debts contracted before the date of the Treaty.[238] It was also agreed, that Congress should earnestly recommend to the legislatures of the respective States to provide for the rest.i.tution of all estates, rights, and properties, which had been confiscated, belonging to real British subjects, and to persons resident in districts in the possession of his Majesty's arms, and who had not borne arms against the United States; that persons of any other description should have free liberty to go into any of the States, and remain for the period of twelve months unmolested in their endeavors to obtain the rest.i.tution of their property and rights which had been confiscated; that Congress should recommend to the States a reconsideration and revision of all their confiscation laws, and a restoration of the rights and property of the last-mentioned persons, on their refunding the _bona fide_ price which any purchaser might have given for them since the confiscation. It was also agreed, that all persons having any interest in confiscated lands, either by debts, marriage settlements, or otherwise, should meet with no lawful impediment in the prosecution of their just rights.[239]

It was further provided, that there should be no future confiscations made, nor any prosecutions commenced against any person on account of the part he might have taken in the war, and that no person should, on that account, suffer any future loss or damage, either in person, liberty, or property, and that those who might be in confinement on such charges, at the time of the ratification of the Treaty in America, should be immediately set at liberty, and the prosecutions be discontinued.[240]

These provisions related to a great subject, with which, in the existing political system of this country, it was difficult to deal. The action of the States, with regard to some of the interests involved in these stipulations, had been irregular from an early period of the war. The Revolutionary Congress, on the commencement of hostilities, had suffered the opportunity of a.s.serting their rightful control over the subject of alien interests, except as to property found on the high seas, to pa.s.s away; and the consequence was, that the States had, on some points, usurped an authority which belonged to the Union. A Union, founded in compact, and vesting the rights of war and peace in Congress, was formed in 1775; and from that time the Colonies, or, as they afterwards became, States, were never rightfully capable of pa.s.sing laws to sequester or confiscate the debts or property of a national enemy[241]. After the great acts of national sovereignty which took place in 1775-6, a British subject could not, with any propriety, be considered as the enemy of Ma.s.sachusetts, or of Virginia; he was the enemy of the United States, and by that authority alone, as the belligerent, was his property, in strictness, liable to be seized, or the debts due to him sequestered.

But neither the Revolutionary Congress, nor that of the Confederation, appear to have ever exercised the power of confiscating the debts or property of British subjects, within the States, or to have recommended such confiscation to the States themselves[242]. On the other hand, they did not interfere when the States saw fit to do it.

With regard to those inhabitants of the States who, adhering to the British crown, had abandoned the country, and left property behind them, it cannot so clearly be affirmed that the States should not have dealt with their persons or property. Congress, as we have seen, at an early period of the war, committed the whole subject of restraining the persons of the Tories to the Colonies or States; and as Congress never a.s.sumed or exercised any jurisdiction over their property, it was of course left to be dealt with by the legislatures of the States, to whom Congress had declared that their several inhabitants owed allegiance[243]. But as these persons, by adhering to the crown, might claim of the crown the rights and protection of British subjects, the propriety of confiscating or withholding their property would remain for solution, at the negotiation of the Treaty of Peace, as a question of general justice and equity, rather than of public law.

The interests of both of these cla.s.ses of persons were too important to be overlooked. Three millions sterling were due from the inhabitants of the Colonies to merchants in Great Britain, at the commencement of the war. At the return of peace, the laws of five of the States were found either to prohibit the recovery of the princ.i.p.al, or to suspend its collection, or to prohibit the recovery of interest, or to make land a good payment in place of money.[244]

The purpose of the Treaty was to declare, that all _bona fide_ debts, contracted before the date of the Treaty, and due to citizens of either country, remained unextinguished by the war; and consequently, that interest, when agreed to be paid, or payable by the custom, or demandable as damages for delay of payment, was justly due. Over this whole subject of foreign debts, the national sovereignty, of right, had exclusive control; for confiscation of the property of a national enemy belongs exclusively to the power exercising the rights of war; and therefore whatever State laws might have been pa.s.sed during the war, exercising rights which belonged to the national sovereign, they could have no validity when that sovereign came to resume its control over the subject, and to stipulate that the right of confiscation, if it ever existed, should not be exercised. The State laws, however, existed, and remained in conflict with the Treaty, for several years, producing consequences to which we shall presently advert.

The fifth article of the Treaty was infringed by an act pa.s.sed by the State of New York, authorizing actions for rent to be brought by persons who had been compelled to leave their lands and houses by the enemy, against those who had occupied them while the enemy were in possession, and declaring that no military order or command of the enemy should be pleaded in justification of such occupation.[245]

The sixth article was also violated by an act of the same State, which made those inhabitants who had adhered to the enemy, if found within the State, guilty of misprision of treason, and rendered them incapable of holding office, or of voting at elections.[246]

The powers of the government were entirely inadequate to meet this state of things. The Confederation gave to the United States in Congress a.s.sembled the sole and exclusive right of determining on peace and war, and of entering into treaties and alliances. The nature of the sovereignty thus established made a treaty the law of the land, and binding upon every member of the Union; but there existed no means of enforcing the obligation. If the legislatures of the States pa.s.sed laws restraining or interfering with the provisions of a treaty, Congress could only declare that they ought to be, and recommend that they should be, repealed. The simple and effectual intervention of a national judiciary, clothed with the power of declaring void any State legislation that conflicted with the national sovereignty, and of giving the means of enforcing all rights which that sovereignty had guaranteed by compact with a foreign power, did not exist. Resort, it is true, could be had to the State tribunals; and, on one memorable occasion, such resort was had to them with success. But the legislative power a.s.sailed the independence of the judiciary, and indignantly declared a decision, made with fairness by a competent tribunal, subversive of law and good order, because it recognized the paramount authority of a treaty over a statute of the State.[247]

The effect of such State legislation upon the relations of the two countries was direct and mischievous. The Treaty of Peace was designed, and was adapted, to produce a fair and speedy adjustment of those relations, upon principles of equity and justice. But its obligations were reciprocal, and it could not execute itself. It was made, on the one side, by a power capable of performing, but also capable of waiting for the performance of the obligations which rested upon the other contracting party. On the other side, it was made by a power possessed of very imperfect means of performance, yet standing in constant need of the benefit which a full compliance with its obligations would insure.

After the lapse of three years from the signature of the preliminary articles, and of more than two years from that of the definitive Treaty, the military posts in the Western country were still held by British garrisons, avowedly on account of the infractions of the Treaty on our part. The Minister of the United States at St. James's was told, in answer to his complaints, that one party could not be obliged to a strict observance of the engagements of a treaty, and the other remain free to deviate from its obligations; and that whenever the United States should manifest a real determination to fulfil their part of the Treaty, Great Britain would be ready to carry every article of it into complete effect.[248] An investigation of the whole subject, therefore, became necessary, and Congress directed the Secretary of Foreign Affairs to make inquiry into the precise state of things. His report ascertained that the fourth and fifth articles of the Treaty had been constantly violated on our part by legislative acts still in existence and operation; that on the part of England, the seventh article had been violated, by her continuing to hold the posts from which she had agreed to withdraw her garrisons, and by carrying away a considerable body of negroes, the property of American inhabitants, at the time of the evacuation of New York.[249]

The serious question recurred,--what was to be done? The United States had neither committed nor approved of any violation of the Treaty; but an appeal was made to their justice, relative to the conduct of particular States, for which they were obliged eventually to answer.

They could only resolve and recommend; and accordingly, after having declared that the legislatures of the States could not, of right, do any thing to explain, interpret, or limit the operation of a treaty, Congress recommended to the States to pa.s.s a general law, repealing all their former acts that might be repugnant to the Treaty, and leaving to their courts of justice to decide causes that might arise under it, according to its true intent and meaning, by determining what acts contravened its provisions.[250] This recommendation manifestly left the interests of the Union exposed to two hazards; the one, that the legislatures of the States might not pa.s.s the repealing statute, which would submit the proper questions to their courts, and the other, that their courts might not decide with firmness and impartiality between the policy of the State, on the one hand, and the interests of foreigners and obnoxious Tories, on the other.

But this was all that could be done, and partial success only followed the effort. Most of the States pa.s.sed acts, in compliance with the recommendation of Congress, to repeal their laws which prevented the recovery of British debts.[251] But the State of Virginia, although it pa.s.sed such an act, suspended its operation, until the Governor of the State should issue a proclamation, giving notice that Great Britain had delivered up the Western posts, and was taking measures for the further fulfilment of the Treaty, by delivering up the negroes belonging to the citizens of that State, which had been carried away, or by making compensation for their value.[252] The two countries were thus brought to a stand, in their efforts to adjust the matters in dispute, and the Western posts remained in the occupation of British garrisons, inflaming the hostile temper of the Indian tribes, and enhancing the difficulty of settling the vacant lands in the fertile region of the Great Lakes.[253]

FOOTNOTES:

[237] Secret Journals of Congress, IV. 186, 187.

[238] Article IV.

[239] Article V.

[240] Article VI.

[241] See the Report made to Congress on this subject by Mr. Jay, Secretary of Foreign Affairs, October, 1786. Secret Journals, IV. 209.

[242] Ibid.

[243] Resolve of June 24, 1776. Journals, II. 216. Ante, p. 52, note.

[244] An act pa.s.sed by the legislature of Ma.s.sachusetts, November 9, 1784, suspended judgment for interest on British debts, until Congress should have put a construction upon the Treaty declaring that it was due. An act of the State of New York, of July 12, 1782, restrained the collection of debts due to persons within the enemy's lines.

Pennsylvania, soon after the peace, pa.s.sed a law restraining the levy of executions. Virginia, at the time of the peace, had existing laws inhibiting the recovery of British debts. South Carolina had made land a good payment, in place of money. (See Mr. Jay's Report.)

[245] Pa.s.sed March 17, 1783. Secret Journals, IV. 267.

[246] Pa.s.sed May 12, 1784, after the Treaty had been ratified. Secret Journals, IV. 269-274.

[247] This happened in New York, in a case under the "Trespa.s.s Act,"

where a suit was brought in the Mayor's Court of the City of New York, "to recover the rents of property held by the defendant under an order of Sir Henry Clinton." Hamilton, in the defence of this case, contended, with great power, that the act was a violation of the Treaty, and the court sustained his position. But the legislature pa.s.sed resolves, declaring the decision to be subversive of law and good order, and recommending the appointing power "to appoint such persons Mayor and Recorder of New York as will govern themselves by the known law of the land." Life of Hamilton, II. 244, 245.

[248] Mr. John Adams was sent as the first Minister of the United States to the Court of St. James's in 1785. He received this reply to a memorial which he addressed to the British government, on the subject of the Western posts, in February, 1786. Secret Journals, IV. 187.

[249] Secret Journals, IV. 209.

[250] March 21, 1787.

[251] New Hamps.h.i.+re, Ma.s.sachusetts, Rhode Island, Connecticut, Delaware, Maryland, Virginia, and North Carolina pa.s.sed such acts.

[252] Pitkin's History of the United States, II. 198.

[253] Marshall's Life of Was.h.i.+ngton, V. 67, 68.

CHAPTER III.

1786-1787.

NO SECURITY AFFORDED BY THE CONFEDERATION TO THE STATE GOVERNMENTS.--SHAYS'S REBELLION IN Ma.s.sACHUSETTS, AND ITS KINDRED DISTURBANCES.

No federative government can be of great permanent value, which is not so constructed that it may stand, in some measure, as the common sovereign of its members, able to protect them against internal disorders, as well as against external a.s.saults. The Confederation undertook but one of these great duties. It was formed at a time when the war with England was the great object of concern to the revolted Colonies, and when they felt only the exigencies which that war created.

Hence its most important powers, as well as its leading purpose, concerned the common cause of resistance to a foreign domination. A federal league of States independent of each other, formed princ.i.p.ally for mutual defence against a common enemy, was all that succeeded to the general superintending power of the British crown, by which the internal affairs of each of them had always been regulated and controlled, in the last resort. When the tie was broken by which they had been held to the parent state, each of them created for itself a new government, resting for its basis on the popular will, and deriving its authority directly from the people; but none of them provided for the creation of a power, external to itself, which might stand as the guarantor and protector of their new inst.i.tutions, and secure the principles on which they rested against violence and overthrow. Yet the const.i.tutions thus formed, from their peculiar nature, eminently needed the safeguards which such a power could afford.

These const.i.tutions were admirably constructed. They contained principles imperfectly known to the ancient governments; found in modern times only in the government of England; and applied there with far less consistency and completeness. They embraced the regular distribution of political power into distinct departments; legislative checks and balances, by means of two coordinate branches of the legislature; a judiciary in general holding office during good behavior; and the representation of the people in the legislature, by deputies of their own actual election, in which the theory of such representation was more perfectly carried into practice than it had ever been in the country from which it was derived. But the fundamental principle on which they all rested, and without which they could not maintain existence, required means of defence. They were established upon the great doctrine, that it is the right of every political society to govern itself, and for the purposes of such self-government, to create such const.i.tutions and ordain such fundamental laws as its own judgment and its own intelligent choice may find best suited to its own interests.

But society can act only by an expression of the aggregate will of its members; and as there may be members who dissent from the views and determinations of the great ma.s.s of society, and it is therefore necessary to decide with whom the power of compelling obedience resides,--since there must be obedience in order that there may be peace,--nature and reason have determined that this power is to reside with a majority of the members. The American const.i.tutions, therefore, are founded wholly upon the principle, that a majority expresses the will of the whole society, and may establish, change, and abrogate forms of government at its pleasure.[254] It follows, as a necessary deduction from this fundamental doctrine, that so soon as society has acted in the formation and establishment of a government, upon this principle, no change can take place, but by a new expression of the will of society through the voice of a majority; and whether a majority desires or has actually decreed a change, is a fact that must be made certain, and can only be made certain in one of two modes,--either by the evidence and through the channels which the society has previously ordained for this purpose, or by the submission of all its members to a violent and successful revolution.

The first const.i.tution of Ma.s.sachusetts did not designate any mode in which it was to be amended or changed. But no peaceable change can take place in any government founded on the expressed will of a majority of the people, consistently with the principle on which it had been established, until it has been ascertained, in some mode, that a change is demanded by the same authority. The vital importance of ascertaining this fact with precision was not so clearly perceived, at that early period, as it is now.

Seizing upon the newly established doctrine, which made them the sources of all political power, the people did not at once apprehend the rule which preserves and upholds that power, and makes the doctrine itself both practicable and safe. Hence, when troubles arose, individuals were led to suppose that they had only to declare a grievance, to demand a change, and to compel a compliance with their demand by force. So far as they reasoned at all, they persuaded themselves that, as their government was the creation of the people, by their own direct act, bodies of the people could a.s.semble in their primary capacity, and, by obstructing any of its functions which they connected with a particular grievance, produce a reform, which the people have always a right to make. By overlooking, in this manner, the only safe and legitimate mode in which the popular will can be really ascertained, they pa.s.sed into the mischiefs of anarchy and rebellion, mistaking the voices of a minority for the ascertained will of society.

To these tendencies, the recently established governments of New England, where the spirit of liberty was most vigorous, could oppose no efficient check; while, in any open outbreak, they were without any external defender, on whose power they could lean. The Confederation succeeded to the Revolutionary Congress, as we have more than once had occasion to observe, with less power than its predecessor might have exercised. It was formed by a written const.i.tution, yet it was, strictly speaking, scarcely a government. It was a close union of the States; but it was a union from which all powers had been jealously withheld which would have enabled it to interfere with vigor and success between an insurgent minority of the people of a State and its lawful rulers. The Revolutionary Congress was once possessed of such large, indefinite powers, that, upon principles of public necessity, it might have a.s.sumed, in a great emergency, to hold a direct relation to the internal concerns of any Colony. It was, in fact, looked to, in some degree, for direction in the formation of the State governments, after it had broken the bonds of colonial allegiance to the English crown; and it might very properly have undertaken to support the governments whose establishment it had recommended. But such a relation between the early States and the continental power, though it certainly existed in 1776, was soon lost in the independent and jealous att.i.tude which they began to occupy, and the Union rapidly a.s.sumed a position, where the character of sovereignty which it appeared to wear when it promulgated the Declaration of Independence was scarcely to be discerned. At no period in the history of the Confederation did it act upon the internal concerns or condition of a State. Its written articles of union hardly admitted of a construction which would have enabled it to do so, and certainly contained no express delegation of such a power.