He saw that the Confederation contained provisions which looked to the continuance of the Union after the war had terminated, and that these provisions required practical application, through a machinery which had never been even framed. The Articles of Confederation vested in Congress the exclusive management of foreign relations; but the department of foreign affairs had never been properly organized. They also gave to Congress the exclusive regulation of trade and intercourse with the Indian nations; but no department of Indian affairs had been established with properly defined powers and duties. Nothing had been done to carry out the provision for fixing the standard of weights and measures throughout the United States, or to regulate the alloy and value of coin. Above all, the great question of means, military and naval, for the external and internal defence of the country during peace, for the preservation of tranquillity, the protection of commerce, the fulfilment of treaty stipulations, and the maintenance of the authority of the United States, had not been so much as touched. To regulate these important subjects was the design of a committee, at the head of which Hamilton was placed; and his earliest attention was directed to the most serious and difficult of them,—the provision for a peace establishment of military and naval forces.[197]
The question whether the United States could constitutionally maintain an army and navy, in time of peace, was, under the Articles of Confederation, not free from difficulty; but it became of imminent practical importance, under the treaty of peace. That treaty provided for an immediate withdrawal of the British forces from all posts and fortifications within the United States; and it became at once an important question, whether these posts and fortifications—especially those within certain districts, the jurisdiction and property of which had not been constitutionally ascertained—should be garrisoned by troops of the United States, or of the States within which they were situated. There was also territory appertaining to the United States, not within the original claim of the United States. The whole of the Western frontier required defence. The navigation of the Mississippi and the lakes, and the rights of the fisheries and of foreign commerce, all belonging to the United States, and depending on the laws of nations and treaty stipulations, demanded the joint protection of the Union, and could not with propriety be left to the separate establishments of the States.
But the Articles of Confederation contained no express provision for the establishment and maintenance of any military and naval forces during peace. They empowered the United States, generally, (and without mention of peace or war,) to build and equip a navy, and to agree upon the number of land forces to be raised, and to call upon the States to furnish their quotas. But they also declared that no vessels of war should be kept up by any State in time of peace, except such number only as should be deemed necessary by Congress for the defence of such State or its trade; and that no body of forces should be kept up by any State in time of peace, except such number only as Congress should deem requisite to garrison the posts necessary for the defence of such State. This provision might be construed to imply, that, in time of peace, the general defence was to be provided for by the forces of each State, and, in time of war, by those of the Union. But it was the opinion of Hamilton, that the restrictions on the powers of the States, with regard to maintaining forces during peace, could not with propriety be said to contain any directions to the United States, or to contravene the positive power vested in the latter to raise both sea and land forces, without mention of peace or war. He strengthened this view by the capital inconvenience of the contrary construction, and by the manifest necessities of the country, which could only be provided for by the power of the Union. If the United States could have neither army nor navy, until war had been declared, they would be obliged to begin to create both at the very moment when both were needed in actual hostilities; and, if the States were to be intrusted with the defence of the country in time of peace, that defence would be left to thirteen different armies and navies, under the direction of as many different governments.[198]
He contemplated, therefore, the formation of a peace establishment, to consist of certain corps of infantry, artillery, cavalry, engineers, and dragoons;[199] a general survey, preparatory to the adoption of a general system of land fortifications; the establishment of arsenals and magazines, and the erection of founderies and manufactories of arms. He advised the establishment of ports and maritime fortifications, and the formation and construction of a navy; and his report embraced also a plan for classing and disciplining the militia.[200]
In all this design, Hamilton pursued the purpose, which he had long entertained, of strengthening and consolidating the Union, and guarding against its dissolution, by providing the means necessary for its defence. Federal, rather than State provision for the defence of every part of the Confederacy, in peace as well as in war, seemed to him essential. He thought, that the general government should have exclusively the power of the sword, and that each State should have no forces but its militia.[201] But his great plans were arrested, partly in consequence of the doubts entertained on the point of constitutional power, and partly by reason of the great falling off of the attendance of members in Congress. At the very time when this important subject was under consideration, Congress were driven from Philadelphia, by the mutiny of a handful of men, whom they could not curb at the moment without the aid of the local authorities, and that aid was not promptly and efficiently given.[202]
Convinced, at length, that no temporary expedients would meet the wants of the country, and that a radical reform of its constitution could alone preserve the Union from dissolution, Hamilton surveyed the Confederation in all its parts, and determined to lay before the country its deep defects, with a view to the establishment of a government with proper departments and adequate powers. In this examination, he applied to the Confederation the approved maxims of free government, which had been made familiar in the formation of the State constitutions, and which point to the distinct separation of the legislative, executive, and judicial functions. The Confederation vested all these powers in a single body, and thus violated the principles on which the government of nearly every State in the Union was founded. It had no federal judicature, to take cognizance of matters of general concern, and especially of those in which foreign nations and their subjects were concerned; and thus national treaties, the national faith, and the public tranquillity were exposed to the conflict of local regulations against the powers vested in the Union. It gave to Congress the power of ascertaining and appropriating the sums necessary for the public expenses, but withheld all control over either the imposition or collection of the taxes by which they were to be raised, and thus made the inclinations, not the abilities, of the respective States, the criterion of their contributions to the common expenses of the Union. It authorized Congress to borrow money, or emit bills, on the credit of the United States, without the power of providing funds to secure the repayment of the money, or the redemption of the bills emitted.
It made no proper or competent provision for interior or exterior defence; for interior defence, because it allowed the individual States to appoint all regimental officers of the land forces, and to raise the men in their own way, while at the same time an ambiguity rendered it uncertain whether the defence of the country in time of peace was not left to the particular States, both by sea and land;—for exterior defence, because it authorized Congress to build and equip a navy, without providing any compulsory means of manning it.
It failed to vest in the United States a general superintendence of trade, equally necessary both with a view to revenue and regulation.
It required the assent of nine States in Congress to matters of principal importance, and of seven to all others except adjournments from day to day, and thus subjected the sense of a majority of the people of the United States to that of a minority, by putting it in the power of a small combination to defeat the most necessary measures.
Finally, it vested in the federal government the sole direction of the interests of the United States in their intercourse with foreign nations, without empowering it to pass all general laws in aid and support of the laws of nations; thus exposing the faith, reputation, and peace of the country to the irregular action of the particular States.[203]
Having thus fully analyzed for himself the nature of the existing constitution, Hamilton proposed to himself the undertaking of inducing Congress freely and frankly to inform the country of its imperfections, which made it impossible to conduct the public affairs with honor to themselves and advantage to the Union; and to recommend to the several States to appoint a convention, with full powers to revise the Confederation, and to adopt and propose such alterations as might appear to be necessary, which should be finally approved or rejected by the States.[204]
But he was surrounded by men, who were not equal to the great enterprise of guiding and enlightening public sentiment. He was in advance of the time, and far in advance of the men of the time. He experienced the fate of all statesmen, in the like position, whose ideas have had to wait the slow development of events, to bring them to the popular comprehension and assent. He saw that his plans could not be adopted; and he passed out of Congress to the pursuits of private life, recording upon them his conviction, that their public proposal would have failed for want of support.[205]
There was in fact a manifest indisposition in Congress to propose any considerable change in the principle of the government. Hence, nothing but the revenue system, with a change in the rule by which a partition of the common burdens was to be made, was publicly proposed. Although this system was a great improvement upon that of the Confederation, it related simply to revenue, in regard to which it proposed a reform, not of the principle of the government, but of the mode of operation of the old system; for it embraced only a specific pledge by the States of certain duties for a limited term, and not a grant of the unlimited power of levying duties at pleasure. There was confessedly a departure from the strict maxims of national credit, by not making the revenue coextensive with its object, and by not placing its collection in every respect under the authority charged with the management and payment of the debt which it was designed to meet.[206]
These relaxations were a sacrifice to the jealousies of the States; and they show that the time had not come for a change from a mere federative union to a constitutional government, founded on the popular will, and therefore acting by an energy and volition of its own.
The temper of the time was wholly unfavorable to such a change. The early enthusiasm with which the nation had rushed into the conflict with England, guided by a common impulse and animated by a national spirit, had given place to calculations of local interest and advantage; and the principle of the Confederation was tenaciously adhered to, while the events which accompanied and followed the peace were rapidly displaying its radical incapacity. The formation of the State governments, and the consequent growth and importance of State interests, which came into existence with the Confederation, and the fact that the Confederation was itself an actual diminution of the previous powers of the Union, may be considered the chief causes of the decline of a national spirit. That spirit was destined to a still further decay, until the conflict of State against State, and of section against section, by shaking the government to its foundation, should reveal both the necessity for a national sovereignty and the means by which it could be called into life.
As a consequence and proof of the decline of national power, it is worthy of observation, that, at the close of the year 1783, Congress had practically dwindled to a feeble junto of about twenty persons, exercising the various powers of the government, but without the dignity and safety of a local habitation. Migrating from city to city and from State to State, unable to agree upon a seat of government, from jealousy and sectional policy; now assembling in the capitol of a State, and now in the halls of a college; at all times dependent upon the protection and even the countenance of local authorities, and without the presence of any of the great and powerful minds who led the earlier counsels of the country, this body presented a not inadequate type of the decaying powers of the Union.[207] At no time in the history of the Confederation, had all the States been represented at once; and the return of peace seemed likely to reduce the entire machinery of the government to a state of complete inaction.[208]
The Confederation, at the close of the war, is found to have accomplished much, and also to have failed to accomplish much more. It had effected the cession of the public lands to the United States; for although that cession was not completed until after the peace, still the arch on which the Union was ultimately to rest for whatever of safety and perpetuity remained for it through the four following years, was deposited in its place, when the Confederation was established. It had also placed the United States, as a nation, in a position to contract some alliances with foreign powers. It had finished the war; it had achieved the independence of the nation; and had given peace to the country. It had thus demonstrated the value of the Union, although its defective construction aided the development of tendencies which weakened and undermined its strength.
But its imperfect performance of the great tasks to which it had been called, displayed its inherent defects. It had often been unequal to the purpose of effectually drawing forth the resources of its members for the common welfare and defence. It had often wanted an army adequate to the protection and proportioned to the abilities of the country. It had, therefore, seen important posts reduced, others imminently endangered, and whole States and large parts of others overrun by small bodies of the enemy;—had been destitute of sufficient means of feeding, clothing, paying, and appointing its troops, and had thus exposed them to sufferings for which history scarcely affords a parallel. It had been compelled to make the administration of its affairs a succession of temporary expedients, inconsistent with order, economy, energy, or a scrupulous adherence to public engagements. It found itself, at the close of the war, without any certain means of doing justice to those who had been the principal supporters of the Union;—to an army which had bravely fought, and patiently suffered,—to citizens and to foreigners, who had cheerfully lent their money,—and to others who had contributed property and personal service to the common cause. It was obliged to rely, for the last hope of doing that justice, on the precarious concurrence of thirteen distinct legislatures, the dissent of either of which might defeat the plan, and leave the States, at an early period of their existence, involved in all the disgrace and mischiefs of violated faith and national bankruptcy.[209]
While, therefore, the United States emerged from the war, which for seven long years had wasted the energies and drained the resources of the people, with national independence, dark and portentous clouds gathered about the dawn of peace, as the future opened before them. The past had been crowned with victory;—dearly bought, but not at too dear a price, for it brought with it the vast boon of civil liberty. But the dangers and embarrassments through which that victory had been achieved made it apparent that the government of the country was unequal to its protection and prosperity. That government was now called to assume the great duties of peace, without the acknowledged power of maintaining either an army or a navy, and without the means of combining and directing the forces and wills of the several parts to a general end; without the least control over commerce; without the power to fulfil a treaty; without laws acting upon individuals; and with no mode of enforcing its own will, but by coercing a delinquent State to its federal obligations by force of arms. How it met the great demands upon its energy and durability which its new duties involved, we are now to inquire.
BOOK III.
THE CONSTITUTIONAL HISTORY OF THE UNITED STATES, FROM THE PEACE OF 1783 TO THE FEDERAL CONVENTION OF 1787.
CHAPTER I.
January, 1784-May, 1787.
Duties and Necessities of Congress.—Requisitions on the States.—Revenue System of 1783.
The period which now claims our attention is that extending from the Peace of 1783 to the calling of the Convention which framed the Constitution, in 1787. It was a period full of dangers and difficulties. The destinies of the Union seemed to be left to all the hazards arising from a defective government and the illiberal and contracted policy of its members. Patriotism was generally thought to consist in adhesion to State interests, and a reluctance to intrust power to the organs of the nation. The national obligations were therefore disregarded; treaty stipulations remained unfulfilled; the great duty of justice failed to be discharged; rebellion raised a dangerous and nearly successful front; and the commerce of the country was exposed to the injurious policy of other nations, with no means of counteracting or escaping from its effects. At length, the people of the United States began to see danger after they had felt it, and the growth of sounder views and higher principles of public conduct gave to the friends of order, public faith, and national security a controlling influence in the country, and enabled the men, who had won for it the blessings of liberty, to establish for it a durable and sufficient government.
Four years only elapsed, between the return of peace and the downfall of a government which had been framed with the hope and promise of perpetual duration;—an interval of time no longer than that during which the people of the United States are now accustomed to witness a change of their rulers, without injury to any principle or any form of their institutions. But this brief interval was full of suffering and peril. There are scarcely any evils or dangers, of a political nature, and springing from political and social causes, to which a free people can be exposed, which the people of the United States did not experience during this period. That these evils and dangers did not precipitate the country into civil war, and that the great undertaking of forming a new and constitutional government, by delegates of the people, could be entered upon and prosecuted, with the calmness, conciliation, and concession essential to its success, is owing partly to the fact that the country had scarcely recovered from the exhausting effects of the Revolutionary struggle; but mainly to the existence of a body of statesmen, formed during that struggle, and fitted by hard experience to build up the government. But before their efforts and their influences are explained, the period which developed the necessity for their interposition must be described. He who would know what the Constitution of the United States was designed to accomplish, must understand the circumstances out of which it arose.
On the 3d of November, 1783, a new Congress, according to annual custom, was assembled at Annapolis, and attended by only fifteen members, from seven States. Two great acts awaited the attention of this assembly;—both of an interesting and important character, both of national concern. The one was the resignation of Washington; a solemnity which appealed to every feeling of national gratitude and pride, and which would seem to have demanded whatever of pomp and dignity and power the United States could display. The other was a legislative act, which was to give peace to the country, by the ratification of the Treaty. Several weeks passed on, and yet the attendance was not much increased. Washington's resignation was received, at a public audience of seven States, represented by about twenty delegates;[210] and on the same day letters were despatched to the other States, urging them, for the safety, honor, and good faith of the United States, to require the immediate attendance of their members.[211] It was not, however, until the 14th of January that the Treaty could be ratified by the constitutional number of nine States; and, when this took place, there were present but three-and-twenty members.[212]
It should undoubtedly be considered, that, from the nature and form of the government, the delegates in Congress had in some sense an ambassadorial character, and were assembled as the representatives of sovereign States. But with whatever dignity, real or fictitious, they may be considered as having been clothed, the government itself was one that created a constant tendency to the neglect of its functions, and therefore produced great practical evils. The Articles of Confederation provided that delegates should be annually appointed by the States, to meet in Congress on the first Monday in November in every year; and although they also gave to Congress the power of adjournment for a recess, during which the government was to be devolved on a Committee of the States, they fixed no period for the termination of a session. While the war lasted, it had been both customary and necessary for the old Congress, and for its successors under the Confederation, to be perpetually in session; and this practice was continued after the peace, with very short intervals of Committees of the States, partly from habit, and partly in consequence of the reduction of the delegations to the lowest constitutional number. This rendered despatch impossible, by putting it in the power of a few members to withhold from important matters the constitutional concurrence of nine States. Without any reference to population by the Articles of Confederation, not less than two nor more than seven delegates were allowed to each State; and by casting the burden of maintaining its own delegates upon each State, they created a strong motive for preferring the smaller number, and often for not being represented at all. This motive became more active after the peace, when the immediate stimulus of hostilities was withdrawn; and it was at the same time accompanied, in most of the States, by a great jealousy of the powers of Congress, a disinclination to enlarge them, and a prevalent feeling that each State was sufficient unto itself for all the purposes of government.[213] The consequence was, that the Congress of the Confederation, from the ratification of the Treaty of Peace to the adoption of the Constitution, although entitled to ninety-one members, was seldom attended by one third of that number; and the state of the representation was sometimes so low, that one eighth of the whole number present could, under the constitutional rule, negative the most important measures.[214]
Such was the government which was now called to provide for the payment of at least the interest on the public debts, and to procure the means for its own support; to carry out the Treaty of Peace, and secure to the country its advantages; to complete the cessions of the Western lands, and provide for their settlement and government; to guard the commerce of the country against the hostile policy of other nations; to secure to each State the forms and principles of a republican government; to extend and secure the relations of the country with foreign powers; and to preserve and perpetuate the Union. By tracing the history of its efforts and its failures with regard to these great objects, we may understand the principal causes which brought about the conviction on the part of the people of the United States, that another and a stronger government must take the place of the Confederation.
It was ascertained in April, 1784, that a sum exceeding three millions of dollars would be wanted to pay the arrears of interest, and to meet the interest and current expenses of the public service for the year.[215] Two sources only could be looked to for this supply. It must either be obtained by requisitions on the States, according to the old rule of the Confederation, or from the new duties and taxes proposed by the revenue system of 1783. But that proposal was still under the consideration of the State legislatures; some of them having as yet acceded to the impost only, and others having decided neither on the impost nor on the supplementary taxes. Some time must therefore elapse before the final confirmation of this system, even if its final confirmation were probable; and, after it should have been confirmed, further time would be requisite to bring it into operation. It was quite clear, therefore, that other measures must be resorted to. Requisitions presented the sole resource. But in what mode were they to be made? The preceding Congress had offered two recommendations to the States on the subject of the rule of the Confederation, which directed that the quotas of the several States should be apportioned according to the value of their lands. The Congress of 1783, in order to give this rule a fair trial, had recommended to the States to make returns of their lands, buildings, and inhabitants;[216] but, apprehending that the insufficiency of the rule would immediately show itself, they had followed this recommendation with another, to change the basis of contribution from land to numbers of inhabitants.[217] Both of these propositions were still under the consideration of the State legislatures, and four States only had acceded to them.[218] A new requisition, therefore, if made at all, must be made under the old rule of the Confederation, and with entirely imperfect means of making it with justice and equality. It was found, however, that large arrears were still due from the States, of the old requisitions made during the war.[219] A new call upon them to pay one half of these arrears, deducting therefrom the amount of their payments to the close of the year, would, if complied with, produce a sum nearly sufficient for the wants of the government. This resource was accordingly tried.[220]
In the year 1785, three millions, it was ascertained, would be required for the service of the year. A renewed call was made for the remaining unpaid moiety of the old requisition of eight millions, and for the whole of the old requisition of two millions; but, considering that the public faith required Congress to continue their annual demand for money, they issued a new requisition for three millions, and adjusted it according to the best information they could obtain.[221]
In the year 1786, a sum of more than three millions was wanted for the current demands on the treasury, and a new requisition was made for it, under the old rule of the Confederation.[222] Two of the States, Rhode Island and New Jersey, thereupon passed acts, making their own paper currency receivable on all arrears of taxes due to the United States, and proposing to pay their quotas in such currency.[223]
But the entire inadequacy of this source of supply to maintain the federal government, and to discharge the annual public engagements, had now become but too apparent. From the 1st of November, 1781, to the 1st of January, 1786, less than two and a half millions of dollars had been received from requisitions made during that period, amounting to more than ten millions.[224] For the last fourteen months of that interval, the average receipts from requisitions amounted to less than four hundred thousand dollars per annum, while the interest alone due on the foreign debt was more than half a million; and, in the course of each of the nine following years, the average sum of one million, annually, would become due by instalments on the principal of that debt.[225] In addition to this, the interest on the domestic debt; the security of the navigation and commerce of the country against the Barbary powers; the immediate protection of the people dwelling on the frontier from the savages; the establishment of military magazines in different parts of the Union, quite indispensable to the public safety; the maintenance of the federal government at home, and the support of the public servants abroad,—each and all depended upon the contribution of the States under the annual requisitions, and were each and all likely to be involved in a common failure and ruin.[226]
There can be no doubt that the continuance of the practice of making requisitions, after the proposal of the revenue system of 1783, had some tendency to prevent the adoption of that system by the States. But there was no other alternative within the constitutional reach of Congress; and in the mean time, the revenue system, submitted as it necessarily was to the legislatures of thirteen different States, was, as far as it was assented to, embarrassed with the most discordant and irreconcilable provisions. It was ascertained in February, 1786, that seven of the States had granted the impost part of the system, in such a manner, that, if the other six States had made similar grants, the plan of the general impost might have been immediately put into operation.[227] Two of the other States had also granted the impost, but had embarrassed their grants with provisos, which suspended their operation until all the other States should have passed laws in full conformity with the whole system.[228] Two other States had fully acceded to the system in all its parts;[229] but four others had not decided in favor of any part of it.[230]
No member of the Confederacy had, at this time, suggested to Congress any reasonable objection to the principles of the system; and the contradictory provisions by which their assent to it had been clogged, present a striking proof of the inherent difficulties of obtaining any important constitutional change from the legislatures of the States. The government was founded upon a principle, by which all its powers were derived from the States in their corporate capacities; in other words, it was a government created by, and deriving its authority from, the governments of the States. They alone could change the fundamental law of its organization; and they were actuated by such motives and jealousies, as rendered a unanimous assent to any change a great improbability. Still, the Congress of 1786 hoped that, by a clear and explicit declaration of the true position of the country, the requisite compliance of the States might be obtained. They accordingly made known, in the most solemn manner, the public embarrassments, and declared that the crisis had arrived, when the people of the United States must decide whether they were to continue to rank as a nation, by maintaining the public faith at home and abroad; or whether, for want of timely exertion in establishing a general revenue, they would hazard the existence of the Union, and the great national privileges which they had fought to obtain.[231]
Under the influence of this urgent representation, all the States, except New York, passed acts granting the impost, and vesting the power to collect it in Congress, pursuant to the recommendations of 1783, but upon the condition that it should not be in force until all the States had granted it in the same manner. The State of New York passed an act[232], reserving to itself the sole power of levying and collecting the impost; making the collectors amenable to and removable by the State, and not by Congress; and making the duties receivable in specie or bills of credit, at the option of the importer. Such a departure from the plan suggested by Congress, and adopted by the other States, of course made the whole system inoperative in the other States, and there remained no possibility of procuring its adoption, but by inducing the State of New York to reconsider its determination. All hope of meeting the public engagements, and of carrying on the government, now turned upon the action of a single State.
The principal argument made use of, by those who supported the conduct of New York, was, that Congress, being a single body, might misapply the money arising from the duties. An answer to this pretence, from the pen of Hamilton, declared that the interests and liberties of the people were not less safe in the hands of those whom they had delegated to represent them for one year in Congress, than they were in the hands of those whom they had delegated to represent them for one or four years in the legislature of the State; that all government implies trust, and that every government must be trusted so far as it is necessary to enable it to attain the ends for which it is instituted, without which insult and oppression from abroad, and confusion and convulsion at home, must ensue[233]. The real motive, however, with those who ruled the counsels of New York at this period, was a hope of the commercial aggrandizement of the State; and the jealousies and fears of national power, which were widely prevalent, were diligently employed to defeat the system proposed by Congress.
After the passage of the act of New York, and the adjournment of the legislature, Congress earnestly recommended to the executive of that State to convene the legislature again, to take into its consideration the recommendation of the revenue system, for the purpose of granting the impost to the United States, in conformity with the grants of other States, so as to enable the United States to carry it into immediate effect[234]. The Governor declined to accede to this recommendation.[235] Congress repeated it, declaring that the critical and embarrassed state of the finances required that the impost should be carried into immediate operation, and expressing their opinion, that the occasion was sufficiently important and extraordinary for them to request that the legislature should be specially convened.[236] The executive of New York again refused the request of Congress, and the fate of the impost system remained suspended until the meeting of the legislature, at its regular session in January, 1787. It was never adopted by that State, and consequently never took effect.
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 classes 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 restitution 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 restitution 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 asserting their rightful control over the subject of alien interests, except as to property found on the high seas, to pass 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 passing 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 Massachusetts, 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 assumed 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 classes 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 principal, 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 passed 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 passed 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 assembled 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 passed 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 assailed 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 pass 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 pass 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 passed 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 passed 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]
CHAPTER III.
1786-1787.
No Security afforded by the Confederation to the State Governments.—Shays's Rebellion in Massachusetts, 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 assaults. 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 principally 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 institutions, and secure the principles on which they rested against violence and overthrow. Yet the constitutions thus formed, from their peculiar nature, eminently needed the safeguards which such a power could afford.
These constitutions 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 coördinate 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 constitutions 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 mass 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 constitutions, 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 constitution of Massachusetts 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 assemble 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 passed 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 constitution, 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 assumed, 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 attitude which they began to occupy, and the Union rapidly assumed 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.
At the same time, some of the State governments, during the period of which we are treating, were singularly exposed to the dangers of anarchy. None of them had any standing forces of any consequence, three years after the peace, and the New England States had no military forces whatever but their militia. No State could call upon its neighbors for aid in quelling an insurrection, for their militia would not have obeyed the summons, if it had been issued; and no State could call upon the federal government, in such an emergency, with any certainty of success in the application.[255]
In such a state of things, the year 1786 witnessed an insurrection in Massachusetts of a very dangerous character, which, from the fortunate circumstance that her counsels were then guided by a man of singular energy and firmness of character, she was just able to subdue. The remote causes of this insurrection lie too far from the path of our main subject to be more than summarily stated.
At the close of the Revolutionary war, the State of Massachusetts was oppressed with an enormous debt. At the breaking out of that war, the debt of the Colony was less than one hundred thousand pounds. The private debt of the State, in the year 1786, was one million three hundred thousand pounds, besides two hundred and fifty thousand pounds due to the officers and soldiers of the State line of the Revolutionary army. The State's proportion of the federal debt was not less than one million and a half of pounds.[256] According to the customary mode of taxation, one third of the whole debt was to be paid by the ratable polls, which scarcely exceeded ninety thousand.[257] The Revolution had made the people of Massachusetts familiar with the great general doctrines of liberty and human rights; but it had given them little insight into the principles of revenue and finance, and little acquaintance with the rules of public economy. No sufficient means, therefore, to relieve the people from direct taxation, by encouraging a revival of trade and at the same time drawing from it a revenue, were devised by the legislature. The exports of the State, moreover, had suffered a fearful diminution. The fisheries, which had been a fruitful source of prosperity to the colony, had been nearly destroyed by the war, and the markets of the West Indies and of Europe were now closed to the products of this lucrative industry, by which wealth had formerly been drawn from the wastes of the ocean. The State had scarcely any other commodity to exchange for the precious metals in foreign commerce. Its agriculture yielded only a scanty support to its population, if it yielded so much; its manufactures were in a languishing condition; and its carrying trade had been driven from the seas during the war, and was afterwards annihilated by the oppressive policy of England, which succeeded the Peace. The people were every year growing poorer than they had been the year before, and taxes, onerous taxes, beyond their resources and always odious, were pressing upon them with a constantly increasing accumulation, from which the political state of the country seemed to promise no relief.[258]
But the demand of the tax-gatherer was not the sole burden which individuals had to encounter. Private debts had accumulated during the war, in almost as large a ratio as the public obligations. The collection of such debts had been generally suspended, while the struggle for political freedom was going on; but that struggle being over, creditors necessarily became active, and were often obliged to be severe. Suits were multiplied in the courts of law beyond all former precedent, and the first effect of this sudden influx of litigation was to bring popular odium upon the whole machinery of justice. In a state of society approaching so nearly to a democracy, the class of debtors, if numerous, must be politically formidable. They had begun to be so before the close of the war. Their clamors and the supposed necessity of the case led the legislature, in 1782, to a violation of principle, in a law known as the Tender Act, by which executions for debt might be satisfied by certain articles of property, to be taken at an appraisement. This law was limited in its operation to one year; but in the course of that year it taught the debtors their strength, and gave the first signal for an attack upon property. A levelling, licentious spirit, a restless desire for change, and a disposition to throw down the barriers of private rights, at length broke forth in conventions, which first voted themselves to be the people, and then declared their proceedings to be constitutional. At these assemblies, the doctrine was publicly broached, that property ought to be common, because all had aided in saving it from confiscation by the power of England. Taxes were voted to be unnecessary burdens, the courts of justice to be intolerable grievances, and the legal profession a nuisance. A revision of the constitution was demanded, in order to abolish the Senate, reform the representation in the House, and make all the civil officers of the government eligible by the people.
A passive declaration of their grievances did not, however, content the disaffected citizens of Massachusetts. They proceeded to enforce their demands. The courts of justice were the nearest objects for attack, as well as the most immediately connected with the chief objects of their complaints. Armed mobs surrounded the court-houses in several counties, and sometimes effectually obstructed the sessions of the courts. These acts were repeated, until, in the autumn of 1786, the insurrection broke out in a formidable manner in the western part of the State. The insurgents actually embodied, and in arms against the government, in the month of December, in the counties of Worcester and Hampshire, numbered about fifteen hundred men, and were headed by one Daniel Shays, who had been a captain in the continental army.[259]