History of the Origin, Formation, and Adoption of the Constitution of the United States Volume I Part 16

England perceived the real want of power in the federal government, and recognized nothing in the commission but the fact that it had been issued by Congress, while the separate States had conferred no powers upon either Congress or the commissioners.[296] Prussia alone entered into a treaty, upon some of the principles laid down in the commission, and soon after it was executed, the commissioners ceased to do any thing whatever.[297]

During the period which elapsed from the Treaty of Peace with England to the a.s.sembling of the Convention at Annapolis, the legislation of the different States, designed to protect themselves against the policy of England, was of course without system or concert, and without uniformity of regulation. At one time duties were made extravagantly high; at another, compet.i.tion reduced them below the point at which any considerable revenue could be derived. At one time, the States acted in open hostility to each other; at another, they contemplated commercial leagues, without regard to the prohibition contained in the Articles of Confederation. No steady system was pursued by any of them, and the inefficacy of State legislation became at length so apparent, that a conviction of the necessity of new powers in Congress forced itself upon the public mind.

FOOTNOTES:

[271] Life of Hamilton, II. 233, 234. See also his resolutions on the defects of the federal government, intended to be offered in Congress in 1783, and especially the eighth resolution. Works of Hamilton, II. 269.

[272] Hamilton himself, in some papers which he published in 1781, under the t.i.tle of The Continentalist, gave the general sum of American statesmans.h.i.+p and its opportunities, down to that period. The events of the next seven years gave it a wonderful development. "It would be the extreme of vanity in us," said he, "not to be sensible that we began this revolution with very vague and confined notions of the practical business of government. To the greater part of us, it was a novelty; of those who under the former const.i.tution had had opportunities of acquiring experience, a large proportion adhered to the opposite side, and the remainder can only be supposed to have possessed ideas adapted to the narrow colonial sphere in which they had been accustomed to move, not of that enlarged kind suited to the government of an independent nation. There were, no doubt, exceptions to these observations;--men in all respects qualified for conducting the public affairs with skill and advantage;--but their number was small; they were not always brought forward in our councils; and when they were, their influence was too commonly borne down by the prevailing torrent of ignorance and prejudice. On a retrospect, however, of our transactions, under the disadvantages with which we commenced, it is perhaps more to be wondered at, that we have done so well, than that we have not done better. There are, indeed, some traits in our conduct, as conspicuous for sound policy as others for magnanimity. But, on the other hand, it must also be confessed, there have been many false steps, many chimerical projects and Utopian speculations, in the management of our civil as well as of our military affairs. A part of these were the natural effects of the spirit of the times, dictated by our situation. An extreme jealousy of power is the attendant on all popular revolutions, and has seldom been without its evils. It is to this source we are to trace many of the fatal mistakes, which have so deeply endangered the common cause; particularly that defect which will be the object of these remarks,--a want of power in Congress." Works, II. 186.

[273] Secret Journals, II. 7, 8.

[274] Ibid. 59.

[275] Articles of Confederation, Art. VI., IX. The expression in the _sixth_ article was: "No State shall lay any imposts, &c. that shall interfere with any stipulations in treaties entered into by the United States with any king, prince, or state, _in pursuance of_ any treaties already proposed by Congress to the court of France and Spain." The _ninth_ article saved to the States the general power of levying duties and laying prohibitions.

[276] Secret Journals, II. 65, 66. Art. XIII of the Treaty of Amity and Commerce with France. The expression employed was, "goods movable and immovable," and the right of succession was given, _ab intestato_, without first obtaining letters of naturalization.

[277] See a report on this _projet_ of the treaty, made by Mr. Madison, July 17, 1782. Secret Journals, II. 142-144.

[278] Ibid.

[279] Art. VI. of the Treaty of Amity and Commerce with the Netherlands, executed by Mr. Adams at the Hague, October 8, 1782. Journals, VIII. 96.

[280] Ibid., Art. II., III.

[281] April 3, 1783. Journals, VIII. 386-398.

[282] Mr. Pitt's bill was brought in in March, 1783, and he went out of office immediately afterwards.

[283] April, 1783.

[284] July, 1783. Their idea was, that, if the American States should choose to send consuls, they should be received, and consuls sent to them in return that each State would soon enter into all necessary regulations with the consul, and that nothing more was necessary. See Lord Sheffield's Observations on American Commerce.

[285] April 30, 1784.

[286] February 14, 1785. Journals, X. 53.

[287] By an act pa.s.sed June 22-23, 1785; laid before Congress October 10, 1785. Ibid. 353.

[288] The commission consisted of Mr. John Adams, then at the Hague, Dr.

Franklin, then in France, and Mr. Jefferson, then in Congress. Mr.

Jefferson sailed from Boston on the 5th of July, and arrived in Paris on the 6th of August, 1784. (Works, I. 49.) The powers with whom they were to negotiate commercial treaties were Russia, Austria, Prussia, Denmark, Saxony, Hamburg, Great Britain, Spain, Portugal, Genoa, Tuscany, Rome, Naples, Venice, Sardinia, and the Ottoman Porte. Secret Journals, III.

484-489. May 7, 1784.

[289] Ma.s.sachusetts, New York, New Jersey, and Virginia.

[290] Connecticut, Pennsylvania, and Maryland.

[291] New Hamps.h.i.+re.

[292] Rhode Island.

[293] North Carolina.

[294] Delaware, South Carolina, and Georgia.

[295] See a report made in Congress, March 3, 1786. Journals, XI. 41.

[296] The Duke of Dorset, the English Amba.s.sador at Paris, wrote to the commissioners (March 26, 1785) as follows: "Having communicated to my court the readiness you expressed in your letter to me of the 9th of December to remove to London, for the purpose of treating upon such points as may materially concern the interests, both political and commercial, of Great Britain and America; and having at the same time represented that you declared yourselves to be fully authorized and empowered to negotiate, I have been, in answer thereto, instructed to learn from you, gentlemen, what is the real nature of the powers with which you are invested,--whether you are merely commissioned by Congress, or whether you have received separate powers from the respective States. A committee of North American merchants have waited upon his Majesty's princ.i.p.al Secretary of State for Foreign Affairs, to express how anxiously they wished to be informed upon this subject; repeated experience having taught them in particular, as well as the public in general, how little the authority of Congress could avail in any respect, where the interest of any one individual State was even concerned, and particularly so where the concerns of that State might be supposed to militate against such resolutions as Congress might think proper to adopt. The apparent determination of the respective States to regulate their own separate interests renders it absolutely necessary, towards forming a permanent system of commerce, that my court should be informed how far the commissioners can be duly authorized to enter into any engagements with Great Britain, which it may not be in the power of any one of the States to render totally fruitless and ineffectual."

Diplomatic Correspondence, II. 297.

[297] Jefferson's Works, I. 50, 51. The whole proceedings of this commission may be found in the Diplomatic Correspondence, II. 193-346.

CHAPTER V.

1783-1787.

THE PUBLIC LANDS.--GOVERNMENT OF THE NORTHWESTERN TERRITORY.--THREATENED LOSS OF THE WESTERN SETTLEMENTS.

The Confederation, although preceded by a cession of Western territory from the State of New York for the use of the United States, contained no grant of power to Congress to hold, manage, or dispose of such property. There had been, while the Articles of Confederation were under discussion in Congress, a proposal to insert a provision, giving to Congress the sole and exclusive right and power to ascertain and fix the western boundary of such States as claimed to the Mississippi or the South Sea, and to lay out the land beyond the boundary so ascertained into separate and independent States, from time to time, as the numbers and circ.u.mstances of the inhabitants might require.[298] This proposal was negatived by the vote of every State except Maryland and New Jersey.[299] Its rejection caused the adoption of the Confederation to be postponed for a period of more than two years after it was submitted to the States.[300] Virginia had set up claims to an indefinite extent of territory, stretching far into the Western wilderness, which were looked upon with especial jealousy by Maryland; and when the Articles of Confederation came before the legislature of that State for consideration, the absence of any provision vesting in the Union any control over these claims, or any power to ascertain and fix the western boundaries of the great States, became at once a cause of irritation and alarm. The steps taken by Maryland to have this power introduced into the Articles have already been detailed.[301] But the Articles could not be amended. Congress could only make efforts to remove this impediment to their adoption, by recommending to the States to cede their territorial claims to the Union. The first step which they took, for this purpose, was to recommend to the State of Virginia, and all the other States similarly situated, not to make sales of unappropriated lands during the continuance of the war.[302] This was followed by a full consideration of the subject presented by the objections of Maryland and the remonstrance of Virginia. Declining to reopen the question of the merits or policy of attempting to engraft the proposed power upon the Confederation, Congress deemed it more advisable to endeavor to procure a surrender of a portion of the territorial claims of the several States.[303] In pressing a recommendation to this effect, they were greatly aided by the course of the State of New York, which had already authorized its delegates in Congress to limit its western boundaries, and to cede a portion of its vacant lands to the United States.[304] They then immediately declared, by resolve, the purposes for which such cessions were to be held. The territories were to be disposed of for the common benefit of the United States; to be settled and formed into distinct republican States, which should become members of the Federal Union, and have the same rights of sovereignty, freedom, and independence as the other States. Each State so formed was to contain a suitable extent of territory, not less than one hundred, nor more than one hundred and fifty miles square; the necessary expenses incurred by any State in acquiring the territory ceded, were to be reimbursed; and the lands were to be granted or settled at such times, and under such regulations, as should thereafter be agreed upon by the United States in Congress a.s.sembled, or any nine or more of them.[305]

The cessions were made under the guaranties of this resolve. Strictly speaking, there was no express const.i.tutional power under which Congress could thus act, either before or after the adoption of the Articles of Confederation. Before that period, if the United States could acquire and hold lands, for any purpose, it could only be by the common attribute of sovereignty belonging to every government. Perhaps this power existed, by implication, in the revolutionary government; but the compact which was to const.i.tute the new government contained no authority for the establishment of new States within the limits of the Union. But when, aside from the Articles of Confederation, and before they had been adopted, the Revolutionary Congress undertook, in 1780, to hold out these inducements to the States, as motives for their adoption of that instrument, and these motives were acted upon and the cessions made, it must be taken that the territory came rightfully into the possession of the United States. Whether the adoption of the Articles, containing no power for the government of such territories, or for the admission of new States into the Union, did not place the new government in a position where, if it acted at all, it would act beyond the scope of its const.i.tutional authority, certainly admitted of grave question.[306] But the acquisition of the territory itself rested upon acts, which were so directly and expressly connected with the establishment of the new Union under the Confederation, as to make the acquisition itself part of the fundamental conditions of that Union, and the princ.i.p.al guaranty of its continuance. Among the declared purposes for which these acquisitions were made, was that of forming them into new States, to be admitted into the Union; and as all the States acquiesced in and embraced this purpose, they may be said to have conferred upon Congress an implied power to legislate to carry it into effect. Still, the want of an express authority in the Articles thus to deal with acquired territory was afterwards felt and insisted upon, as the Confederation drew towards the close of its career.[307]

Virginia, in 1781, offered to make a cession to the United States of her t.i.tle to lands northwest of the Ohio, upon certain conditions, which were not satisfactory, and the subject had not been acted upon in Congress when the revenue system of 1783 was adopted for recommendation to the States. Looking to the prospect of vacant lands, as a means of hastening the extinguishment of the public debts, as well as of establis.h.i.+ng the harmony of the Union, Congress accompanied the recommendation of the revenue system by new solicitations to the States which had made no cessions of their public lands, or had made them in part only, to comply fully with the former recommendations. This drew from the State of New Jersey, apprehensive that the offer of Virginia might be accepted, a remonstrance against the cession proposed by that State, as partial, unjust, and illiberal.[308] Congress again took the subject into consideration, examined the conditions which the legislature of Virginia had annexed to their proposed grant, declared some of them inadmissible, and stated the conditions on which the cession could be received.[309] Virginia complied with the terms proposed by Congress, and upon those terms ceded to the United States all right, t.i.tle, and claim, both of soil and jurisdiction, which the State then had to the territory within the limits of its charter, lying to the northwest of the river Ohio. That magnificent region, in which now lie the powerful States of Ohio, Indiana, Illinois, Michigan, and Wisconsin, became the property of the United States, by a grant of twenty lines, executed in Congress by Thomas Jefferson and three of his colleagues, on the 1st day of March, 1784.[310]

Soon after this cession had been completed, Congress pa.s.sed a resolve for the regulation of the territory that had been or might be ceded to the United States, for the establishment of temporary and permanent governments by the settlers, and for the admission of the new States thus formed into the Union.[311] This resolve provided, that the territory which had been or might be ceded to the United States, after the extinguishment of the Indian t.i.tle, and when offered for sale by Congress, should be divided into separate States, in a manner specified; that the settlers on such territory, either on their own pet.i.tion or on the order of Congress, should receive authority to form a temporary government; and that when there should be twenty thousand free inhabitants within the limits of any of the States thus designated, they should receive authority to call a convention of representatives to establish a permanent const.i.tution and government for themselves, provided that both the temporary and permanent governments should be established on these principles, as their basis:--1. That they should for ever remain a part of the Confederacy of the United States of America. 2. That they should be subject to the Articles of Confederation and the acts and ordinances of Congress, like the original parties to that instrument. 3. That they should in no case interfere with the disposal of the soil by Congress. 4. That they should be subject to pay a part of the federal debts, present and prospective, in the same measure of apportionment with the other States. 5. That they should impose no tax upon lands, the property of the United States. 6. That their respective governments should be republican. 7. That the lands of non-resident proprietors should not be taxed higher than those of residents, in any new State, before its delegates had been admitted to vote in Congress.

The resolve also contained a provision, which appears to have been designed to meet the want of const.i.tutional power, under the Articles of Confederation, relative to the admission of new States. It was declared, that whenever any of the States thus formed should have as many free inhabitants as the least numerous of the thirteen original States, it should be admitted by its delegates into Congress on an equal footing with the original States, provided the a.s.sent of so many States in Congress should be first obtained, as might at the time be competent to such admission. It was further declared, that, in order to adapt the Articles of Confederation to the condition of Congress when it should be thus increased, it should be proposed to the original States, parties to that instrument, to change the rule, which required a vote of nine States, to a vote of two thirds of all the States in Congress; and that when this change had been agreed upon, it should be binding upon the new States.

After the establishment of a temporary government, and before its admission into the Union, each of the new States was to have the right to keep a member in Congress, with the privilege of debating, but not of voting. It was also provided, that measures not inconsistent with the principles of the Confederation, and necessary for the preservation of peace and good order among the settlers in any of the said new States, until they had a.s.sumed a temporary government, might, from time to time, be taken by the United States in Congress a.s.sembled.

These provisions were to stand as a charter of compact and as fundamental const.i.tutions between the thirteen original States and each of the new States thus described, unalterable from and after the sale of any part of the territory of such State, but by the joint consent of the United States in Congress a.s.sembled, and of the particular State to be affected.[312]

New and urgent recommendations followed the pa.s.sage of this resolve, pressing the States to consider that the war was now happily brought to a close, by the services of the army, the supplies of property by citizens, and loans of money by citizens and foreigners, const.i.tuting a body of creditors who had a right to expect indemnification, and that the vacant territory was an important resource for this great object.[313]

The subject does not seem to have again occupied the attention of Congress until the spring of the following year, when a proposition was introduced and committed, to exclude slavery and involuntary servitude, otherwise than in punishment of crimes, from the States described in the resolve of April 23d, 1784, and to make this provision part of the compact established by that resolve.[314]

Soon afterwards, a cession was made by Ma.s.sachusetts of all its right and t.i.tle, both of soil and jurisdiction, to the Western territory lying within the limits of the charter of that State.[315] In the succeeding month, Congress adopted an ordinance for ascertaining the mode of disposing of the Western lands to settlers.[316] In the course of the next year, the cession by Connecticut was made, after various negotiations, with a reservation to that State of the property in a considerable tract of country, since called the Connecticut Reserve, lying to the south of Lake Erie, and now embraced within the State of Ohio.[317]

Before this transaction had been completed, it had become manifest, from the knowledge that had been obtained of the country northwest of the Ohio, that it would be extremely inconvenient to lay it out into States of the extent and dimensions described in the resolve of October 10, 1780, under which the cession of Virginia had been made; and the legislature of that State were accordingly asked to modify their act of cession, so as to enable Congress to lay out the territory into not more than five nor less than three States, as the situation and circ.u.mstances of the country might require.[318] This suggestion was complied with.[319]

A cession by South Carolina then followed, of all its claim to lands lying towards the river Mississippi;[320] but no other cessions were made to the United States under the Confederation; those of Georgia and North Carolina having been made after the adoption of the Const.i.tution.[321]

It appears, therefore, that, with the exception of the claims of South Carolina to territory lying due west from that State towards the river Mississippi, the United States, before the 13th of July, 1787, had become possessed of the t.i.tle to no other territory than that which had been surrendered to them by the States of New York, Virginia, Ma.s.sachusetts, and Connecticut. The great ma.s.s of this territory was that embraced within the cession of Virginia, and lying to the northwest of the river Ohio; and after the whole t.i.tle to this region, with the exception of some reserved tracts, had become complete in the United States, it was subject to the resolves of 1780 and of 1784. The provisions of the resolve of 1784, however, were soon seen to be inconvenient and inapplicable to the pressing wants of this region.

Immediate legislation was plainly demanded for this territory, which could not wait the slow process of forming first temporary and then permanent governments, as had been contemplated by that resolve.