History of the Origin, Formation, and Adoption of the Constitution of the United States Volume I Part 7

while, in others, where the executive was appointed by the crown, the second or less numerous branch of the legislature had been elected by the people, either directly, or indirectly through the popular a.s.sembly.

The foundations, therefore, for popular governments existed in all the colonies, and furnished the means for subst.i.tuting the new source of political power, the will of the people, in the place of that of an external sovereign.

But there were other materials, also, for the formation of regular and balanced governments, with nearer approaches to perfection and with far greater completeness than a mere democracy can afford to any people, however familiar they may be with the exercise and the practice of government. The people of these colonies had been so trained as to be able to apply those principles in the construction and operation of government which enable it to work freely, successfully, and wisely, while resting on a popular basis. They were able to see, that the whole of what is meant and understood by government is comprehended in the existence and due operation of legislative, executive, and judicial powers.[136] They had lived under political arrangements, in which these powers had been distributed so as to keep them for the most part distinct from each other, and so as to mark the proper limitations of each. If, in some instances, the same individuals had exercised more than one of these powers, the distinctions between the departments, and the principles which ought to regulate such distinctions, had become known. The people of the colonies, in general, therefore, saw that nothing was so important, in constructing a government with popular inst.i.tutions, as to balance each of these departments against the others, so as to leave to neither of them uncontrolled and irresponsible power. In general, too, they understood, and had always been accustomed to the application of that other fundamental principle, essential to a well-regulated liberty, the division of the legislative power between two separate chambers, having distinct origins and of distinct constructions.[137]

But none of these ideas were applied, or were yet thought of being applied, to the construction of a government for the United States; and it is therefore at this period that we are to observe the slow progress making, through disaster and trial, to those great discoveries which led the way to the Const.i.tution, and that we are to mark the first of those failures by which the people of America learnt the bitter wisdom of experience. For the fate of the revolutionary government presents the first ill.u.s.tration in our history of the complete futility of a federative union, whose operation as a government should consist merely in agreeing upon measures in a general council, leaving the execution of those measures to the separate members of the confederacy. But this first ill.u.s.tration, we shall soon see, was not sufficient to establish this truth in the convictions of the American people.

Another and a severer trial awaited them. They were not only to be taught once more that a mere federative union was a rope of sand, but they were also to be taught, that a government inst.i.tuted upon this principle for the purposes of a war, in which the separate members of the confederacy had a common interest, would not answer the exigencies of a country like this, in time of peace. They were to learn, by a trying experience, that the vast concerns of peace are far more complex than the concerns of war; that there were important functions of government to be discharged upon this continent, which only national power and national authority can accomplish, and that those functions are essential, not only to the prosperity and happiness of this nation, but to the continued existence of republican liberty within the States themselves. They were to learn this through a state of things verging upon anarchy; amidst the decay of public virtue; the conflict of sectional interests; and the almost total dissolution of the bands by which society is held together. In this state of things was to be at last developed the fundamental idea on which the Const.i.tution of the United States now rests,--the political union of the _people_ of the United States, as distinguished from a union of the _States_ of which they are citizens.

We have, therefore, now reached the first stage in the const.i.tutional history of the country. What has thus far been stated comes to a single point, the earliest great ill.u.s.tration of the radical defects in a purely federative union. The next stage which succeeds presents the second ill.u.s.tration of this important truth.

FOOTNOTES:

[103] Was.h.i.+ngton's Writings, III. 403.

[104] Writings of Was.h.i.+ngton, IV. 72.

[105] Writings of Was.h.i.+ngton, IV. 100.

[106] Letter to the President of Congress, Was.h.i.+ngton's Writings, IV.

110. September 24, 1776.

[107] Journals, II. 357.

[108] 500 acres to a colonel; 450 to a lieutenant-colonel; 400 to a major; 300 to a captain; 200 to a lieutenant; and 150 to an ensign.

[109] Journals, II. 357. Subsequently, by a resolve pa.s.sed November 12 (1776), the option was given to enlist for the war or for three years, taking away the land bounty from those who enlisted for the latter period only. Ibid. 454.

[110] Ibid.

[111] Journals, II. 403. October 8, 1776.

[112] Writings of Was.h.i.+ngton, IV. 173.

[113] Ibid. 183, 184.

[114] Writings of Was.h.i.+ngton, IV. 184.

[115] Writings, IV. 190.

[116] Ibid. 197.

[117] Ibid. 202.

[118] Ibid. 206.

[119] Ibid. 211.

[120] Ibid. 225.

[121] Writings, IV. 232.

[122] Journals, II. 475. A committee, at the head of which was Robert Morris, was appointed to transmit this resolve to General Was.h.i.+ngton, and in their letter they said: "We find by these resolves that your Excellency's hands will be strengthened by very ample powers; and a new reformation of the army seems to have its origin therein. Happy it is for this country, that the general of their forces can safely be intrusted with the most unlimited power, and neither personal security, liberty, nor property be in the least degree endangered thereby." In his reply, the General said to the committee: "Yours of the 31st of last month inclosed to me sundry resolves of Congress, by which I find they have done me the honor to intrust me with powers, in my military capacity, of the highest nature, and almost unlimited in extent. Instead of thinking myself freed from all _civil_ obligations, by this mark of their confidence, I shall constantly bear in mind, that, as the sword was the last resort for the preservation of our liberties, so it ought to be the first thing laid aside when those liberties are firmly established. I shall instantly set about the most necessary reforms in the army; but it will not be in my power to make so great a progress as if I had a little leisure time upon my hands." Writings of Was.h.i.+ngton, IV. 257, 552.

[123] Writings of Was.h.i.+ngton, IV. 551.

[124] Writings of Was.h.i.+ngton, IV. 551.

[125] Journals, III. 35.

[126] "We have now to lament," said Robert Morris, in a private Letter to General Was.h.i.+ngton, under date of February 27th, 1777 "the absence from the public councils of America of Johnson, Jay, R. R. Livingston, Duane, Deane, W. Livingston, Franklin, d.i.c.kinson, Harrison, Nelson, Hooper, Rutledge, and others not less conspicuous, without any proper appointments to fill their places, and this at the very time they are most wanted, or would be so, if they had not very wisely supplied the deficiency by delegating to your Excellency certain powers, that they durst not have intrusted to any other man. But what is to become of America, and its cause, if a constant fluctuation is to take place among its counsellors, and at every change we find reason to view it with regret?" Writings of Was.h.i.+ngton, IV. 340, note.

[127] Ma.s.sachusetts, in December, 1776, renewed the credentials of John Hanc.o.c.k, Samuel Adams, John Adams, Robert Treat Paine, Elbridge Gerry, Francis Dana, and James Lovell, giving power to any three or more of them, with the delegates from the other American States, to concert, direct, and order such further measures as shall to them appear best calculated for the establishment of right and liberty to the American States, upon a basis permanent and secure against the power and art of the British administration; for prosecuting the present war, concluding peace, contracting alliances, establis.h.i.+ng commerce, and guarding against any future encroachments and machinations of their enemies; with power to adjourn, &c. (Journals, IV. 14.) New Hamps.h.i.+re in the same month sent William Whipple, Josiah Bartlett, and Mathew Thornton, making any one of them a full delegation, without any other instructions than "to represent" the State in the Continental Congress for one year, and allowing only two of them to attend at a time. (Ibid. 41.) Virginia in the same month appointed Mann Page, in the room of George Wythe, with the same general instructions "to represent" the State. (Ibid. 42.) North Carolina in the same month appointed William Hooper, Joseph Hewes, and Thomas Burke, and invested them "with such powers as may make any act done by them, or any of them, or consent given in the said Congress in behalf of this State, obligatory upon every inhabitant thereof."

(Ibid. 37.) South Carolina chose Arthur Middleton, Thomas Hayward, Jr., and Henry Laurens, with power "to concert, agree to, and _execute_ every measure which one or all of them should judge necessary for the defence, security, or interest of this State in particular, and of America in general." (Ibid. 53.) Connecticut sent Roger Sherman, Samuel Huntington, Eliphalet Dyer, Oliver Wolcott, Richard Law, and William Williams, "to consult, advise, and resolve upon measures necessary to be taken and pursued for the defence, security, and preservation of the rights and liberties of the said United States, and for their common safety"; but requiring them "of such their proceedings and resolves to transmit authentic copies from time to time to the General a.s.sembly of this state." (Ibid. 5.) Of the other states, Pennsylvania, Rhode Island, New York, New Jersey, Maryland, and Georgia, which renewed their delegations somewhat later in the year, instructed them simply "to represent" the state in the Continental Congress; and Delaware empowered its delegates, on behalf of the state, "to concert, agree to, and execute any measure which they, together with a majority of the Continental Congress, should judge necessary for the defense, security, interest, and welfare of that State in particular, and America in general." (Ibid. 64, 315, 171, 169, 395, 54, 403, 86.)

[128] This was Mr. Abraham Clark, one of the signers of the Declaration of Independence. Mr. Sparks has preserved a curious letter written by this gentleman on the subject. Writings of Was.h.i.+ngton, IV. 298.

[129] The whole of this alarm evidently arose from the use of the words "oath of allegiance" in General Was.h.i.+ngton's proclamation. Probably this phrase was used by him as a convenient description of the obligation which he intended to exact. He did not use it as a jurist, but as a general and a statesman. In a letter written by him on the 5th of February (1777) to the President of Congress, desiring that body to urge the States to adopt an oath of fidelity, he said: "From the first inst.i.tution of civil government, it has been the national policy of every precedent state to endeavor to engage its members to the discharge of their public duty by the obligation of some oath"; and he then observes, with his characteristic wisdom, that "an oath is the only subst.i.tute that can be adopted to supply the _defect of principle_." He advised that every State should fix upon some oath or affirmation of allegiance, to be tendered to all the inhabitants without exception, and to outlaw those that refused it. (Writings, IV. 311, 312.) Afterwards, when the Legislative Council of New Jersey--where some of the people had refused to take the oath required by his proclamation--applied to him to explain the nature of the oath, and to be furnished with a copy of it, that they might know whether it was the oath prescribed by the General a.s.sembly of that State, he informed them that he had prescribed no form, and had reverted to none prescribed by them; that his instructions to the brigadiers who attended to that duty were, to insist on nothing more than an obligation in _no manner to injure the States_; and that he had left the form to his subordinates; but that if he had known of any form adapted to the circ.u.mstances of the inhabitants, he would certainly have ordered it. (Ibid. 319, note.) This explanation makes it quite certain, that what General Was.h.i.+ngton called in his proclamation an oath of allegiance was merely a military exaction of an obligation in favor of a belligerent power against the enemy; and his advice on the subject of a general civil oath of allegiance, to be exacted by the States, shows that he understood the niceties of the subject as well as any casuist in or out of Congress. This topic may be dismissed by reverting here to the fact, that in February, 1778, Congress prescribed an oath or affirmation, to be taken by the officers of the army, and all others holding office under Congress, which was simply a renunciation of allegiance to the King of Great Britain, an acknowledgment of the independence of the United States, and a promise to support, maintain, and defend them against King George III. and his successors, and to serve the United States in the office mentioned with fidelity, and the best skill and understanding of the party taking the oath. Journals, IV.

49.

[130] Ante, p. 100.

[131] Letter to General Knox, February 11, 1777. Writings, IV. 316.

[132] Letter to Governor Trumbull, May 11, 1777. Writings, IV. 413. See also Letter to Major-General Stephen, May 24, 1777. Ibid. 431.

[133] Marshall's Life of Was.h.i.+ngton, III. 102.

[134] The exact numbers of the troops on both sides, in this battle, are not known. Sir William Howe estimated the American force at 15,000, including militia; and this number is given in the Annual Register. But the effective force of the American army was always, at this period of the war, considerably less than the total number; and Chief Justice Marshall states it to have been, on this occasion, 11,000, including militia. The Annual Register gives the number of the royal army brought into action as 15,000. Marshall supposes it to have been 18,000, when they landed on the sh.o.r.es of the Chesapeake. Marshall's Life of Was.h.i.+ngton, III. 140, 141. Annual Register for 1777, XX. 127.

[135] Connecticut and Rhode Island.

[136] See John Adams's letter to R. H. Lee.

[137] Three of the colonies, namely, New Hamps.h.i.+re, South Carolina, and Virginia, proceeded to form const.i.tutions of government before the Declaration of Independence was adopted, under a special recommendation given to each of them by Congress, in the latter part of the year 1775, addressed to the provincial convention, advising them "to call a full and free representation of the people, to establish such a form of government as in their judgment will best promote the happiness of the people, and most effectually secure good order in the province during the continuance of the present dispute between Great Britain and the colonies." (Journals, I. 231, 235, 279.) In New Hamps.h.i.+re, this suggestion was carried out in January, 1776, by the representatives of the people, who had first met as a Provincial Congress of deputies from the towns, and then a.s.sumed the name and authority of a "house of representatives," or "a.s.sembly" of the Colony; in which capacity they proceeded to elect twelve persons from the several counties, to form a distinct branch of the legislature, as a council. The council were to elect their own presiding officer. All acts and resolves, to be valid, were required to pa.s.s both branches; all public officers, except clerks of courts, were to be appointed by the two houses, and all money bills were to originate in the popular branch. In case the dispute with Great Britain should continue longer than the year 1776, and the general Congress should not give other instructions, it was provided that the council should be chosen by the people of each county, in a mode to be prescribed by the council and house. This form of government continued through the Revolution, and until the year 1790, when a new const.i.tution was formed. (Pitkin's History of the United States, II. 294.) In South Carolina, the Provincial Congress likewise resolved itself a "general a.s.sembly," and elected a legislative council, from their own body. By these two bodies, acting jointly, an executive, styled a president, a commander-in-chief, and a vice-president, was chosen. The legislative authority was vested in the president and the two houses. The judiciary were elected by the two houses and commissioned by the president, and were to hold their offices during good behavior, subject to removal on the address of both houses. This form of government remained until June, 1790, when a new const.i.tution was formed by a convention. On the 15th of May, 1776, the Provincial Convention of Virginia proceeded to prepare a declaration of rights and a const.i.tution. The latter declared that the legislative, executive, and judiciary departments ought to be distinct and separate, and divided the legislative department into two branches, the house of delegates and the senate, to be called "the General a.s.sembly of Virginia." The members of the house of delegates were chosen from each county, and one from the city of Williamsburg and one from the borough of Norfolk. The senate consisted of twenty-four members, chosen from as many districts. A governor and council of state were chosen annually by joint ballot of both houses. The legislature appointed the judges, who were commissioned by the governor, and held their offices during good behavior. Ma.s.sachusetts was one of the colonies whose situation rendered it necessary to defer the formation of a const.i.tution for several years. The transition in that colony from the government of the King to a government of the people took place in the latter part of the year 1774 and the beginning of 1775. The occurrences which led the House of Representatives to resolve themselves into a Provincial Congress have been stated in the text of a previous chapter (ante, p.

26). This body, which a.s.sumed the control of the affairs of the colony in October, 1774, first a.s.sembled at Cambridge, where they continued in session until the 10th of December, and then dissolved themselves, having first appointed a _Committee of Safety_ to manage the public concerns, until a new Congress should be a.s.sembled. On the 1st of February, 1775, a new Provincial Congress met at Cambridge, adjourned to Concord, and thence to Watertown, and were dissolved on the 23d of May.

On the 16th of May, they wrote to the Continental Congress, requesting their advice on "taking up and exercising the powers of civil government." In their letter they said, "As the sword should in all free states be subservient to the civil powers, and as it is the duty of the magistrate to support it for the people's necessary defence, we tremble at having an army, although consisting of our own countrymen, established here, without a civil power to provide for and control them." On the 9th of June, the Continental Congress pa.s.sed a resolve, recommending the election of a new General a.s.sembly, under the directions of the Provincial Congress, and that the a.s.sembly, when chosen, should exercise the powers of government, until a governor of the King's appointment would consent to govern the Colony according to its charter. (Journals, I. 115.) Meanwhile, a third Provincial Congress met at Watertown, on the 31st of May, and sat until the 19th. The new General a.s.sembly of the Province, called "the General Court," after its ancient usage, met in the mode provided by the charter, and elected a council. These two branches continued to administer the government, as nearly in the spirit of the charter as might be, without a governor, until 1780, when a convention was called and a const.i.tution framed, similar in all its main features to the present const.i.tution of the State. The const.i.tutions of the other States were formed under the general recommendation of the resolve of Congress of May 10th, 1776, addressed to all the colonies, which contemplated the formation of permanent governments, and dissolved the allegiance of the people to the crown of Great Britain. The const.i.tutions of New Jersey, Maryland, Delaware, and North Carolina were formed in 1776, and that of New York in April, 1777; all having three branches, the legislative, the executive, and the judiciary, and all having a legislature consisting of two houses. The const.i.tution of Georgia was formed in 1789, after the same general model. That of Pennsylvania was formed in 1776, with a legislature consisting of a single branch, but with the like division of the legislative, executive, and judicial departments.

CHAPTER V.

NOVEMBER, 1777--MARCH, 1781.

ADOPTION OF THE ARTICLES OF CONFEDERATION.--CESSIONS OF WESTERN TERRITORY.--FIRST POLITICAL UNION OF THE STATES.

We have now to examine the period which intervened between the recommendation of the Confederation by Congress, in November, 1777, and its final adoption by all the States, in March, 1781;--a period of three years and a half. The causes which protracted the final a.s.sent of the States to the new government, and the mode in which the various objections were at length obviated, are among the most important topics in our const.i.tutional history. But, before they are examined, the order of events by which the Confederation finally became obligatory upon all the States should here be stated.