History of the Origin, Formation, and Adoption of the Constitution of the United States Volume I Part 8

The last clause of the Articles of Confederation directed that they should be submitted to the legislatures of all the States to be considered; and if approved of by them, they were advised to authorize their delegates to ratify the instrument in Congress; upon which ratification, it was to become binding and conclusive. On the 20th of June, 1778, a call was made in Congress for the report of the delegations on the action of their several States, and on the 26th of the same month a form of ratification was adopted for signature. On the 9th of July, the ratification was signed by the delegates of eight States; New Hamps.h.i.+re, Ma.s.sachusetts, Rhode Island, Connecticut, New York, Pennsylvania, Virginia, and South Carolina. North Carolina ratified the Articles on the 21st of July; Georgia on the 24th; New Jersey on the 26th of November; Delaware on the 5th of May, 1779; Maryland on the 1st of March, 1781. On the 2d of March, 1781, Congress met under the Confederation.

Undoubtedly one of the causes which deferred the full adoption of the Confederation to so late a period after it was proposed, was the absence from Congress of many of the most important and able men, whose attention had hitherto been devoted to the affairs of the continent, but who began to be occupied with local affairs, soon after the extraordinary powers were conferred upon General Was.h.i.+ngton. In October, 1777, Hanc.o.c.k left the chair of Congress, for an absence of two months; and the votes on a resolution of thanks to him, for his services as presiding officer, show a great paucity of talent in Congress at that moment.[138] Twenty-two members only were present, and of these the only names much known to fame, at that time or since, were those of Samuel Adams, John Adams, and Elbridge Gerry of Ma.s.sachusetts, the two Lees of Virginia, Hayward and Laurens of South Carolina, and Samuel Chase of Maryland. Franklin, Arthur Lee, and Silas Deane were then in France. Patrick Henry was Governor of Virginia. Mr. Jefferson was in the legislature of Virginia, having left Congress in September, in order, as he has himself recorded, to reform the legislation of the State, which, under the royal government, was, he says, full of vicious defects.[139]

Mr. Madison was also in the legislature of his native State, a young man of great promise, but unknown at that time as a continental statesman.

He entered Congress in March, 1780.

In the year 1778, when the delegations were called upon for reports on the action of their several States upon the Confederation, and when the first objections to the Articles were to be encountered, Hanc.o.c.k had returned to Congress. Samuel Adams and Elbridge Gerry were among his colleagues from Ma.s.sachusetts. Mr. John Adams was in Europe, as Commissioner of the United States to the Court of France. Dr. Franklin was still abroad. Richard Henry Lee of Virginia, Mr. Laurens and Mr.

Hayward of South Carolina, Roger Sherman, Samuel Huntington, and Oliver Wolcott of Connecticut, and Robert Morris of Pennsylvania, were present. The rest of the members, with one brilliant exception, were not men of great distinction, influence, or capacity. That exception was Gouverneur Morris, who came into Congress in January of this year, with a somewhat remarkable youthful reputation, acquired in the public councils of New York.

When this Congress is compared with that of the year 1776, and it is remembered that the Declaration of Independence bears the names of John Adams and Robert Treat Paine of Ma.s.sachusetts, Francis Hopkinson of New Jersey, Benjamin Rush and Dr. Franklin of Pennsylvania, Caesar Rodney of Delaware, Samuel Chase of Maryland, George Wythe, Thomas Jefferson, and Benjamin Harrison of Virginia, William Hooper of North Carolina, and Edward Rutledge and Arthur Middleton of South Carolina,--none of whom were now present,--we perceive at once a striking difference in the two bodies. This difference was not un.o.bserved by those who were then deeply interested in watching the course of public affairs. More than once it filled Was.h.i.+ngton with dark forebodings;[140] and in the early part of the year 1778, it had attracted the notice of Hamilton, whose vigilant comprehension surveyed the whole field of public affairs, and detected the causes of every danger that threatened the health of the body politic.[141]

The objections made by the legislatures of several of the States to the Articles of Confederation were found, when examined, to consist almost entirely of propositions for mere verbal amendments, chiefly for the purpose of rendering the instrument more clear. All of these amendments were rejected. Some of the States objected to the rule for apportioning the taxes and forces to be raised by the States for the service of the Union; but Congress rejected every proposition to alter it, as it was believed to be impossible that any other rule should be agreed upon.

But there was an objection made by the State of New Jersey, which should be particularly noticed here, because it foreshadowed the great idea which the Const.i.tution of the United States afterwards embodied. This objection was, that the Articles of Confederation contained no provision by which the foreign trade of the country would be placed under the regulation of Congress. The sixth of the Articles of Confederation declared, that no State should levy any imposts or duties, which might interfere with any stipulations entered into by the United States with any foreign power pursuant to the treaties already proposed to the courts of France and Spain; while the ninth article declared that no treaty of commerce should be made by the United States, whereby the legislative power of the respective States should be restrained from imposing such imposts and duties on foreigners as their own people were subjected to, or from prohibiting the exportation or importation of any species of goods or commodities whatsoever. The effect of these provisions was simply to restrain the States from laying imposts which would interfere with the then proposed treaties; in all other respects, the foreign trade of each State was left to be regulated by State legislation.

The legislature of New Jersey, in a very able memorial, laid before Congress on the 25th of June, 1778, declared that the sole and exclusive power of regulating the trade of the United States with foreign nations ought to be clearly vested in the Congress, and that the revenue arising from duties and customs ought to be appropriated to the building and support of a navy for the protection of trade and the defence of the coasts, and to other public and general purposes, for the common benefit of the States. They suggested that a great security would be derived to the Union, from such an establishment of a common and mutual interest.[142] But this suggestion was both premature and tardy. It was premature, because the States had not yet learned that their control over foreign commerce must be surrendered, if they would avoid the evils of perpetual conflict with each other; and it came too late, because the Articles of Confederation were practically incapable of amendment, at the period when the suggestion was made.[143]

The great obstacle, however, to the adoption of the Confederation, which delayed the a.s.sent of several of the smaller States for so long a period, was the claim of some of the larger States to the vacant lands lying within what they considered their rightful boundaries. The boundaries of the great States, as fixed by their charters derived from the crown of England, extended, in terms, "to the South Sea," and each of these States, as successor, by the Revolution, to the crown, with regard to territorial sovereignty, claimed to own both the jurisdiction and the property of all the crown lands within its limits. This claim was strenuously resisted by Rhode Island, Delaware, New Jersey, and Maryland. They insisted that Congress ought to have the right to fix the boundaries of the States whose charters stretched to such an indefinite extent into the Western wilderness, and that the unoccupied lands ought to be the property of the whole Union; since, if the independence of the country should be finally established, those lands would have been conquered from the crown of England by the common blood and treasure of all the States. The effect of a tacit recognition of the claims of the great States upon the welfare of such a State as Maryland, through the absence from the Articles of Confederation of any provision on the subject, was strikingly exhibited, by its legislature, in certain instructions to their delegates in Congress, which were laid before that body on the 21st of May, 1779. They pointed out two consequences likely to result from a confirmation of the claim which Virginia had set up to an extensive and fertile country; the one would be, they said, directly injurious to Maryland, while the other would be inconsistent with the letter and spirit of the proposed Confederation. They supposed, on the one hand, that a sale by Virginia of only a small proportion of these lands would draw into her treasury vast sums of money, enabling her to lessen her taxes, and thereby to drain the less wealthy neighboring State of its most useful inhabitants, which would cause it to sink, in wealth and consequence, in the scale of the confederated States. On the other hand, they suggested that Virginia might, and probably would, be obliged to divide its territory, and to erect a new State, under the auspices and direction of the elder, from whom it would receive its form of government, to whom it would be bound by some alliance, and by whose counsels it would be influenced. They declared that, if this were to take place, it would be inconsistent with the letter and spirit of the Confederation already proposed; that, if it were to result in the establishment of a sub-confederacy, an _imperium in imperio_, the State possessed of this extensive dominion must then either submit to all the inconveniences of an overgrown and unwieldy government, or suffer the authority of Congress to interpose at a future time, and lop off a part of its territory to be erected into a new and free state, and admitted into a confederation on such conditions as should be settled by nine States. If, they asked, it should be necessary for the happiness and tranquillity of a State thus overgrown, that Congress should, at some future time, interfere and divide its territory, why should the claim to that territory be now made and insisted upon? Policy and justice, they urged, alike required, that a country,--unsettled at the commencement of the war, claimed by the British crown and ceded to it by the treaty of Paris,--if wrested from the common enemy by the blood and treasure of the thirteen States, should be considered as a common property, subject to be parcelled out by Congress into free, convenient, and independent governments, in such manner and at such times as their wisdom might thereafter direct. Coolly and dispa.s.sionately considering the subject, weighing probable inconveniences and hards.h.i.+ps against the sacrifice of just and essential rights, they then instructed their delegates to withhold the a.s.sent of Maryland to the Confederation, until an article or articles could be obtained in conformity with these views.[144]

Against this proposition, the State of Virginia, which had already ratified the Articles of Confederation, so remonstrated, that there appeared to be no prospect of reconciling the difficulty. At this juncture the State of New York came forward, and by an act of its legislature, pa.s.sed on the 19th of February, 1780, authorized its delegates in Congress to limit the western boundaries of the State, and ceded a portion of its public lands for the use and benefit of such of the United States as should become members of the federal alliance. The motives upon which this concession was expressly made had reference to the formation of the Union, by removing, as far as depended upon the State of New York, the impediment which had so long prevented it.[145]

After they had received official notice of this act, by a report made on the 6th of September, 1780, Congress pressed upon the other States, similarly situated, the policy of a liberal surrender of a portion of their territorial claims, as they could not be preserved entire without endangering the stability of the general confederacy;--reminding them how indispensably necessary it was to establish the Federal Union on a fixed and permanent basis, and on principles acceptable to all its respective members,--how essential it was to public credit and confidence, to the support of the army, to the vigor of the national councils, to tranquillity at home, to reputation abroad, and to the very existence of the people of America as a free, sovereign, and independent people. At the same time, they earnestly requested the legislature of the State of Maryland to accede to the Confederation.[146]

That State was not without examples of patriotic confidence among her smaller sister States. As early as the 20th of November, 1778, New Jersey had led the way to a generous trust on the part of the States which still remained out of the Union. She declared that the Articles of Confederation were in divers respects unequal and disadvantageous to her, and that her objections were of essential moment to the welfare and happiness of her people; yet, convinced of the present necessity of acceding to the confederacy proposed, feeling that every separate and detached interest ought to be postponed to the general good of the Union, and firmly believing that the candor and justice of the several States would, in due time, remove the inequality of which she complained, she authorized her delegates to accede to the Confederation.[147]

Delaware followed with not unequal steps. On the 1st of February, 1779, she declared that, although she was justly ent.i.tled to a right, in common with the other members of the Union, to that extensive tract of country lying to the westward of the frontiers of the United States, gained by the blood and treasure of all, and therefore proper to become a common estate, to be granted out on terms beneficial to all; yet, for the same reasons, and from the same motives with those announced by New Jersey, and with a like faith in the sense of justice of her great confederates, she ratified the Articles of Confederation.[148]

These examples were not without influence upon the councils of patriotic Maryland. On the 30th of January, 1781, her legislature pa.s.sed an act, the preamble of which commences with these memorable words: "Whereas it hath been said, that the common enemy is encouraged, by this State not acceding to the Confederation, to hope that the union of the sister States may be dissolved; and they therefore prosecute the war in expectation of an event so disgraceful to America; and our friends and ill.u.s.trious ally are impressed with an idea, that the common cause would be promoted by our formally acceding to the Confederation: This General a.s.sembly, conscious that this State hath, from the commencement of the war, strenuously exerted herself in the common cause, and fully satisfied that, if no formal confederation were to take place, it is the fixed determination of this State to continue her exertions to the utmost, agreeable to the faith pledged in the Union;--from an earnest desire to conciliate the affection of the sister States, to convince all the world of our unalterable resolution to support the independence of the United States, and the alliance with his most Christian Majesty, and to destroy for ever any apprehension of our friends, or hope in our enemies, of this State being again united to Great Britain;--Be it enacted," &c. The act then proceeded to adopt and ratify the Articles of Confederation, relying on the justice of the other States to secure the interests of the whole in the unoccupied Western territory.[149]

As soon as this act of Maryland was laid before Congress, the joyful news was announced to the country, that the Union of the States was consummated under the written instrument, which had been so long projected. The same month which saw the completion of this Union witnessed a cession by Virginia to the United States of all her claims to lands northwest of the river Ohio; but the cession was not finally completed and accepted until the month of March, 1784. This vast territory, now the seat of prosperous and powerful States, came into the possession of the United States, under a provision made by Congress, that such lands should be disposed of for the common benefit of the United States, and should be settled and formed into distinct republican States, to become members of the Federal Union, with the same rights of sovereignty, freedom, and independence as the other States.

The historian who may, in any generation, record these n.o.ble acts of patriotism and concession, should pause and contemplate the magnitude of the event with which they were connected. He should pause, to render honor to the ill.u.s.trious deeds of that great community, which first generously withdrew the impediment of its territorial claims; and to the no less gallant confidence of those smaller States, which trusted to the future for the final and complete removal of the inequality of which they complained. He should render honor to the State of New York, for the surrender of a territory to which she believed her legal t.i.tle to be complete; a t.i.tle which nothing but the paramount equity of the claims of the whole Confederacy ought to have overcome. That equity she acknowledged. She threw aside her charters and her t.i.tle-deeds; she ceased to use the language of royal grants, and discarded the principle of succession. She came forth from among her parchments into the forum of conscience, in presence of the whole American people; and--recognizing the justice of their claim to territories gained by their common efforts--to secure the inestimable blessings of union, for their good and for her own, she submitted to the national will the determination of her western boundaries, and devoted to the national benefit her vast claims to unoccupied territories.

Equal honor should be rendered to New Jersey, to Delaware, and to Maryland. The two former, without waiting for the action of a single State within whose reputed limits these public domains were situate, trusted wholly to a future sense of justice, and ratified the Union in the confidence that justice would be done. The latter waited; but only until she saw that the common enemy was encouraged, and that friends were disheartened, by her reserve. Seeing this, she hesitated no longer, but completed the union of the States before Virginia had made the cession, which afterwards so n.o.bly justified the confidence that had been placed in her.[150]

The student of American const.i.tutional history, therefore, cannot fail to see, that the adoption of the first written const.i.tution was accomplished through great and magnanimous sacrifices. The very foundations of the structure of government since raised rest upon splendid concessions for the common weal, made, it is true, under the stern pressure of war, but made from the n.o.blest motives of patriotism.

These concessions evince the progress which the people of the United States were then making towards both a national character and a national feeling. They show that, while there were causes which tended to keep the States apart,--the formation of State const.i.tutions, the conflicting interests growing out of the inequalities of these different communities, and the previous want of a national legislative power,--there were still other causes at work, which tended to draw together the apparently discordant elements, and to create a union in which should be bound together, as one nation, the populations which had hitherto known only inst.i.tutions of a local character. The time was indeed not come, when these latter tendencies could entirely overcome the former. It was not until the trials of peace had tested the strength and efficiency of a system formed under the trials of war,--when another and a severer conflict between national and local interests was to shake the republic to its centre,--that a national government could be formed, adequate to all the exigencies of both. Still, the year 1781 saw the establishment of the Confederation, caused by the necessities of military defence against an invading enemy. But it was accomplished only through the sacrifice of great claims; and the fact that it was accomplished, and that it led the way to our present Const.i.tution, proves at once the wisdom and the patriotism of those who labored for it.

The great office of the Confederation, in our political history, will be a proper topic for consideration, after the a.n.a.lysis of its provisions. But we should not omit to observe here, that, when the union of the States was thus secured, the motives on which it was formed, and the concessions by which it was accompanied and followed, created a vast obstacle to any future dissolution. The immediate object of each State was to obtain its own independence of the crown of Great Britain, through the united, and therefore more powerful, action of all the States. But, in order to effect such a union, that immense territory, over which, in the language of Maryland, "free, convenient, and independent governments" were afterwards to be formed, was to be ceded in advance, or to be impliedly promised to be ceded, to the use and benefit of the whole confederacy. A confederacy of states, which had become possessed of such a common property, was thus bound together by an interest, the magnitude and force of which cannot now be easily estimated. The Union might incur fresh dangers of dissolution, after the war had ceased; its frame of government and its legislative power might prove wholly inadequate to the national wants in time of peace; the public faith might be prostrated, and the national arm enfeebled;--still, while the Confederacy stood as the great trustee of property large enough for the accommodation of an empire, a security existed against its total destruction. No State could withdraw from the Confederation, without forfeiting its interest in this grand public domain; and no human wisdom could devise a satisfactory distribution of property ceded as a common fund for the common benefit of sovereign States, without any fixed ratio of interest in the respective beneficiaries, and without any clear power in the government of the Confederation to deal with the trust itself.[151]

FOOTNOTES:

[138] Hanc.o.c.k retired on the 31st of October, for a short absence, after an unremitted service of two years and five months in the chair. A vote of thanks was moved, as soon as he had concluded his address; but before the question was put, it was moved "to resolve as the opinion of Congress, that it is improper to thank any president for the discharge of the duties of that office"; and it is a curious fact, that on this motion the States were equally divided. The previous motion was then put, and five States voted in the affirmative, three in the negative, and the delegation of one State was divided. Journals, III. 465-467.

[139] Writings of Jefferson, I. 29.

[140] Writings of Was.h.i.+ngton, V. 326, 327, 350.

[141] "America once had a representation that would do honor to any age or nation. The present falling off is very alarming and dangerous. What is the cause? and How is it to be remedied? are questions that the welfare of these States requires should be well attended to. The great men who composed our first council,--are they dead, have they deserted the cause, or what has become of them? Very few are dead, and still fewer have deserted the cause: they are all, except the few who still remain in Congress, either in the field, or in the civil offices of their respective States; far the greater part are engaged in the latter.

The only remedy, then, is to take them out of these employments, and return them to the place where their presence is infinitely more important. Each State, in order to promote its own internal government and prosperity, has selected its best members to fill the offices within itself, and conduct its own affairs. Men have been fonder of the emoluments and conveniences of being employed at home; and local attachment, falsely operating, has made them more provident for the particular interests of the States to which they belonged, than for the common interests of the Confederacy. This is a most pernicious mistake, and must be corrected. However important it is to give form and efficiency to your interior const.i.tutions and police, it is infinitely more important to have a wise general council; otherwise, a failure of the measures of the Union will overturn all your labors for the advancement of your particular good, and ruin the common cause. You should not beggar the councils of the United States to enrich the administration of the several members. Realize to yourself the consequences of having a Congress despised at home and abroad. How can the common force be exerted, if the power of collecting it be put in weak, foolish, and unsteady hands? How can we hope for success in our European negotiations, if the nations of Europe have no confidence in the wisdom and vigor of the great continental government? This is the object on which their eyes are fixed; hence it is, America will derive its importance or insignificance in their estimation." Letter by Hamilton to George Clinton, written from the head-quarters of the army, February 13, 1778. Writings of Was.h.i.+ngton, V. 508.

[142] Journals, IV. 269, 270. This wise and well-considered doc.u.ment contained many other very important suggestions; among which was that of an oath, test, or declaration to be taken by the delegates in Congress, previous to their admission to their seats. "It is indeed to be presumed," said the memorial, "that the respective States will be careful that the delegates they send to a.s.sist in managing the general interests of the Union, take the oaths to the government from which they derive their authority: but as the United States, collectively considered, have interests as well as each particular State, we are of opinion, that some test or obligation, binding upon each delegate while he continues in the trust, to consult and pursue the former as well as the latter, and particularly to a.s.sent to no vote or proceeding which may violate the general confederation is necessary. The laws and usages of all civilized nations evince the propriety of an oath on such occasions, and the more solemn and important the deposit, the more strong and explicit ought the obligation to be."

[143] Three States only voted in favor of adopting any of the suggestions made by New Jersey: six voted against them, and one was divided. Journals, IV. 272.

[144] Secret Journals, I. 433.

[145] Secret Journals, I. 440.

[146] Ibid. 442.

[147] Secret Journals, I. 421.

[148] Ibid. 424.

[149] Secret Journals, I. 445.

[150] After the Confederation had thus been formed, by subsequent cessions of their claims by the other States, to use the language of Mr.

Justice Story, "this great source of national dissension was at last dried up."

[151] One of the great inducements to the adoption of the Const.i.tution of the United States was to give the general government adequate const.i.tutional power to dispose of the Western territory and to form new States out of it. Congress, under the Confederation, had no express authority to do this, although they proceeded both to dispose of the lands and to erect new States, by the Ordinance of 1787. See The Federalist, No. 38, 42, 43. Story's Commentaries on the Const.i.tution, III. 184-190, 1st edition.

CHAPTER VI.

NATURE AND POWERS OF THE CONFEDERATION.

The nature of the government established by the Articles of Confederation can be understood only by an a.n.a.lysis of their provisions.

For this purpose, the instrument must here be examined with reference to three princ.i.p.al topics: first, the union which it established between the different members of the Confederacy; second, the form of the government which it created; and third, the powers which it conferred, or omitted to confer, upon that government.

I. The parties to this instrument were free, sovereign, and independent political communities,--each possessing within itself all the powers of legislation and government, over its own citizens, which any political society can possess. But, by this instrument, these several States became united together for certain purposes. The instrument was styled, "Articles of Confederation and Perpetual Union between the States," and the political body thus formed was ent.i.tled "The United States of America." The Articles declared--as would, indeed, be implied, in such circ.u.mstances, without any express declaration--that each State retained its sovereignty, freedom, and independence, and every power, jurisdiction, and right not expressly delegated by the instrument itself to the United States in Congress a.s.sembled. The nature and objects of this union were described as a firm league of friends.h.i.+p between the States, for their common defence, the security of their liberties, and their mutual and general welfare; and the parties bound themselves to a.s.sist each other against all force offered to or attacks made upon them, or any of them, on account of religion, sovereignty, trade, or under any pretence whatever.

It was also provided, that the free inhabitants of each State should be ent.i.tled to all the privileges of free citizens in the several States;[152] that there should be an open intercourse and commerce between the different States; that fugitives from justice from one State to another should be delivered up; and that full faith and credit should be given in each State to the records, acts, and judicial proceedings of every other State.[153]

II. The government established by the Articles of Confederation consisted of a single representative body, called a General Congress.

In this body were vested all the powers, executive, legislative, and judicial, granted to the United States. The members of it were to be chosen by the States, in such manner as the legislature of each State might determine; no State to be represented by more than seven delegates, or by less than two. No delegate was eligible for more than three years in a period of six; and no delegate could hold any office of emolument under the United States. Each State was to maintain its own delegates, and in the determination of questions, the voting was to be by States, each State having one vote.

III. It should be remembered, that the objects and purposes of the Confederation related chiefly to the defence of the States against external attacks; and it was, therefore, as it purported to be, a league for mutual defence and protection, through the combined powers of the whole, operating in certain forms and under certain restrictions. For the manner in which this new authority was to be exercised, we are to look at the powers conferred upon "the United States in Congress a.s.sembled." These powers related to external and to internal affairs.

With regard to the external relations of the country, Congress was invested with the sole and exclusive right of determining on peace and war, unless in case of an invasion of a State by enemies, or an imminent danger of invasion by Indians; of sending and receiving amba.s.sadors; of entering into treaties and alliances, under the limitation that no treaty of commerce could be made, which would have the effect to restrain the legislature of any State from imposing such imposts and duties on foreigners as their own people were subjected to, or which would operate to prohibit the exportation or importation of any commodity whatever. Congress was also invested with power to deal with all captures and prizes made by the land or naval forces of the United States; to grant letters of marque and reprisal in times of peace; and to establish courts for the trial of piracies and felonies committed on the high seas, and for determining appeals in cases of capture.