[245] Passed March 17, 1783. Secret Journals, IV. 267.

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

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

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

[249] Secret Journals, IV. 209.

[250] March 21, 1787.

[251] New Hampshire, Massachusetts, Rhode Island, Connecticut, Delaware, Maryland, Virginia, and North Carolina passed such acts.

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

[253] Marshall's Life of Washington, V. 67, 68.

[254] Gibbon, with that graceful satire which knew how to hit two objects with the same stroke of his pen, describes hereditary monarchy as "an expedient which deprives the multitude of the dangerous, and indeed the ideal, power of giving themselves a master." The historian of the Decline and Fall began to publish his great work, just as the American Revolution burst upon the world. Since that sentence was penned, the experiment of a system, by which the multitude give to themselves a master, in the constitutional organs of their own will, has had a fair trial. We may not say that its trial is past, or that the system is established beyond the possibility of further dangers. But we may with a just pride point to its escape, in the days of its first establishment and greatest danger, and to the securities which the Constitution of the United States now affords, against similar perils, when they threaten the constitutions of the States.

[255] A power to interfere in the internal concerns of a State would only have been exercised by a broad construction of the third of the Articles of Confederation, which was in these words: "The said States hereby severally enter into a firm league of friendship with each other, for their common defence, the security of their liberties, and their mutual and general welfare; binding themselves to assist each other against all force offered to or attacks made upon them, or any of them, on account of religion, sovereignty, trade, or any other pretence whatever." When this is compared with the clear and explicit provision in the Constitution, by which it is declared that "the United States shall guarantee to every State in this Union a republican form of government," there can be no wonder that a doubt was felt in the Congress of 1786-87 as to their powers upon this subject. It is true that the Massachusetts delegation, when they laid before Congress the measures which had been taken by the State government to suppress the insurrection, expressed the confidence of the legislature that the firmest support and most effectual aid would have been afforded by the United States, had it been necessary, and asserted that such support and aid were expressly and solemnly stipulated by the Articles of Confederation. (Journals, XII. 20. March 9, 1787.) But this was clearly not the case; and it was not generally supposed in Congress that the power existed by implication. All that was done by Congress towards raising troops, at the time of the insurrection, was done for the ostensible purpose of protecting the frontiers against an Indian invasion, as we shall see hereafter.

[256] Minot's History of the Insurrection, p. 6.

[257] Ibid.

[258] See the next chapter for some particulars respecting the trade of Massachusetts.

[259] Minot's History of the Insurrection, p. 82 et seq.

[260] Governor Bowdoin's Speech to the Legislature, February 3, 1787.

[261] Minot.

[262] In the spring of 1786, the State had asked the loan from Congress of sixty pieces of field artillery. The application was refused, by the negative vote of six States out of eight, one being divided, and the delegation from Massachusetts alone supporting it. Journals, XI. 65-67. April 19, 1786.

[263] Journals, XI. 258. October 30, 1786.

[264] It was well understood, for instance, in the legislature of Virginia, that this was the real purpose; for Mr. Madison says that this consideration inspired the ardor with which they voted, towards their quota of the funds called for to defray the expenses of this levy, a tax on tobacco, which would scarcely have been granted for any other purpose, as its operation was very unequal. Elliot's Debates, V. 95. February 19, 1787.

[265] Ibid.

[266] Ibid. 127.

[267] This was the estimate of their numbers formed by General Knox, on careful inquiry, and by him given to General Washington. See a letter from General Washington to Mr. Madison. Works, IX. 207.

[268] Washington, writing to Henry Lee in Congress, October 31, 1786, says: "You talk, my good sir, of employing influence to appease the present tumults in Massachusetts. I know not where that influence is to be found, or, if attainable, that it would be a proper remedy for the disorders. Influence is not government. Let us have a government by which our lives, liberties, and properties will be secured, or let us know the worst at once." Works, IX. 204.

[269] Ibid. 208.

[270] Ibid. 221.

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

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

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

[274] Ibid. 59.

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

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

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

[278] Ibid.

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

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

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

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

[283] April, 1783.

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

[285] April 30, 1784.

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

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

[288] The commission consisted of Mr. John Adams, then at the Hague, Dr. Franklin, then in France, and Mr. Jefferson, then in Congress. Mr. Jefferson sailed from Boston on the 5th of July, and arrived in Paris on the 6th of August, 1784. (Works, I. 49.) The powers with whom they were to negotiate commercial treaties were Russia, Austria, Prussia, Denmark, Saxony, Hamburg, Great Britain, Spain, Portugal, Genoa, Tuscany, Rome, Naples, Venice, Sardinia, and the Ottoman Porte. Secret Journals, III. 484-489. May 7, 1784.

[289] Massachusetts, New York, New Jersey, and Virginia.

[290] Connecticut, Pennsylvania, and Maryland.

[291] New Hampshire.

[292] Rhode Island.

[293] North Carolina.

[294] Delaware, South Carolina, and Georgia.

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

[296] The Duke of Dorset, the English Ambassador at Paris, wrote to the commissioners (March 26, 1785) as follows: "Having communicated to my court the readiness you expressed in your letter to me of the 9th of December to remove to London, for the purpose of treating upon such points as may materially concern the interests, both political and commercial, of Great Britain and America; and having at the same time represented that you declared yourselves to be fully authorized and empowered to negotiate, I have been, in answer thereto, instructed to learn from you, gentlemen, what is the real nature of the powers with which you are invested,—whether you are merely commissioned by Congress, or whether you have received separate powers from the respective States. A committee of North American merchants have waited upon his Majesty's principal Secretary of State for Foreign Affairs, to express how anxiously they wished to be informed upon this subject; repeated experience having taught them in particular, as well as the public in general, how little the authority of Congress could avail in any respect, where the interest of any one individual State was even concerned, and particularly so where the concerns of that State might be supposed to militate against such resolutions as Congress might think proper to adopt. The apparent determination of the respective States to regulate their own separate interests renders it absolutely necessary, towards forming a permanent system of commerce, that my court should be informed how far the commissioners can be duly authorized to enter into any engagements with Great Britain, which it may not be in the power of any one of the States to render totally fruitless and ineffectual." Diplomatic Correspondence, II. 297.

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

[298] October 15, 1777. Secret Journals, I. 328.

[299] Ibid.

[300] See the account of the adoption of the Confederation, ante, pp. 131-141.

[301] Ante, pp. 131-136.

[302] October 30, 1779. Journals, V. 401, 402.

[303] September 6, 1780.

[304] February 19, 1780.

[305] October 10, 1780.

[306] The Federalist.

[307] Ibid.

[308] June 20, 1783.

[309] September 13, 1783.

[310] The granting part of the deed of cession, exclusive of its recitals, is as follows: "That we, the said Thomas Jefferson, Samuel Hardy, Arthur Lee, and James Munroe, by virtue of the power and authority committed to us by the act of the said General Assembly of Virginia before recited, and in the name and for and on behalf of the said Commonwealth, do by these presents convey, transfer, assign, and make over unto the United States in Congress assembled, for the benefit of the said States, Virginia inclusive, all right, title, and claim, as well of soil as of jurisdiction, which the said Commonwealth hath to the territory or tract of country within the lines of the Virginia charter, situate, lying, and being to the northwest of the river Ohio, to and for the uses and purposes, and on the conditions, of the said recited act." The cession was made with the reservation of such a portion of the territory ceded, between the rivers Scioto and Little Miami, as might be required to make up the deficiencies of land on the south side of the Ohio, called the Green River lands, reserved for the Virginia troops on continental establishment. (Journals, IX. 47-49.) Subsequently, the act of cession was altered, so as to admit of the formation of not more than five, nor less than three States, of a size more convenient than that described in the act of cession and in the resolve of October 10, 1780. (Journals, XI. 139, 140. July 9, 1786.)

[311] April 23, 1784. Journals, IX. 153.

[312] April 23, 1784. Journals, IX. 153.

[313] April 29, 1784. Journals, IX. 184.

[314] This proposition was introduced by Rufus King, March 16, 1785, and was committed by the votes of eight States against four.

[315] April 19, 1785.

[316] May 20, 1785.

[317] September 14, 1786. Journals, XI. 221-223. The deed of cession, and the act of Connecticut recited in it, do not disclose this reservation. The territory ceded is described by certain lines which include less than the whole claim of Connecticut. It appears from the Journals, under the date of May 22-26, 1786, and from various propositions considered between those dates, that the State of Connecticut claimed to own a larger extent of territory than she proposed to cede; and by way of compromise, her claim was so far acceded to, that Congress agreed to accept of a cession of less than the whole. The reservation embraced about six millions of acres. See Sparks's Washington, IX. 178, note, where it appears that the right of the State to this territory was considered very feeble at the time.

[318] July 9, 1786.

[319] December 30, 1788.

[320] August 9, 1789.

[321] That of North Carolina was made February 25, 1790, and that of Georgia, April 24, 1802.

[322] See Mr. Madison's notes of the Debates in the Confederation. Elliot, V. 128, 157, 190, 211, 376, 381.

[323] His recommendation contemplated a survey of James River and the Potomac, from tide-water to their respective sources; then to ascertain the best portage between those rivers and the streams capable of improvement which run into the Ohio; then to traverse and survey those streams to their junction with the Ohio; then, passing down the Ohio to the mouth of the Muskingum, to ascend that river to the carrying-place to the Cuyahoga; then down the Cuyahoga to Lake Erie, and thence to Detroit. He also advised a survey of Big Beaver Creek, and of the Scioto, and of all the waters east and west of the Ohio, which invited attention by their proximity and the ease of land transportation between them and the James and Potomac Rivers. "These things being done," he said, "I shall be mistaken if prejudice does not yield to facts, jealousy to candor, and finally, if reason and nature, thus aided, do not dictate what is right and proper to be done." (Writings of Washington, IX. 65.) This suggestion was adopted, and a commission appointed.

[324] Writings, IX. 63, 117-119. August 22, 1785.

[325] Article II. Journals, IX. 26.

[326] Executed November 30, 1782. Secret Journals, III. 338.

[327] Article VIII. Journals, IX. 29.

[328] June 25, 1784. Communicated to Congress November 19, 1784. Secret Journals, III. 517, 518.

[329] Guardoqui arrived and was recognized July 2, 1785. Secret Journals, III. 563.

[330] August 25, 1785. Secret Journals, III. 585, 586.

[331] See the communication made by Mr. Jay to Congress, August 3, 1786. Secret Journals, IV. 43.

[332] Henry Lee, then in Congress, wrote to Washington on the 3d of July, 1786, as follows: "Your reasoning is perfectly conformable to the prevalent doctrine on that subject in Congress. We are very solicitous to form a treaty with Spain for commercial purposes. Indeed, no nation in Europe can give us conditions so advantageous to our trade as that kingdom. The carrying business they are like ourselves in, and this common source of difficulty in adjusting commercial treaties between other nations does not apply to America and Spain. But, my dear General, I do not think you go far enough. Rather than defer longer a free and liberal system of trade with Spain, why not agree to the exclusion of the Mississippi? This exclusion will not, cannot, exist longer than the infancy of the Western emigrants. Therefore, to these people what is now done cannot be important. To the Atlantic States it is highly important; for we have no prospect of bringing to a conclusion our negotiations with the court of Madrid, but by yielding the navigation of the Mississippi. Their Minister here is under positive instructions on that point. In all other arrangements, the Spanish monarch will give to the States testimonies of his regard and friendship. And I verily believe, that, if the above difficulty should be removed, we should soon experience the advantages which would flow from a connection with Spain." (Writings of Washington, IX. 173, note.)

[333] Washington's Writings, IX. 205, 206, note.

[334] Washington had not changed his opinion, at the time of these negotiations. On the 18th of June, 1786, he wrote to Henry Lee, in answer to his letter above quoted: "The advantages with which the inland navigation of the rivers Potomac and James is pregnant, must strike every mind that reasons upon the subject; but there is, I perceive, a diversity of sentiment respecting the benefits and consequences which may flow from the free and immediate use of the Mississippi. My opinion of this matter has been uniformly the same; and no light in which I have been able to consider the subject is likely to change it. It is, neither to relinquish nor to push our claim to this navigation, but in the mean while to open all the communications which Nature has afforded between the Atlantic States and the Western territory, and to encourage the use of them to the utmost. In my judgment, it is matter of very serious concern to the well-being of the former to make it the interest of the latter to trade with them; without which, the ties of consanguinity, which are weakening every day, will soon be no bond, and we shall be no more, a few years hence, to the inhabitants of that country, than the British and Spaniards are at this day; not so much, indeed, because commercial connections, it is well known, lead to others, and united are difficult to be broken. These must take place with the Spaniards, if the navigation of the Mississippi is opened. Clear I am, that it would be for the interest of the Western settlers, as low down the Ohio as the Big Kenhawa, and back to the Lakes, to bring their produce through one of the channels I have named; but the way must be cleared, and made easy and obvious to them, or else the ease with which people glide down streams will give a different bias to their thinking and acting. Whenever the new States become so populous and so extended to the westward as really to need it, there will be no power which can deprive them of the use of the Mississippi. Why, then, should we prematurely urge a matter which is displeasing, and may produce disagreeable consequences, if it is our interest to let it sleep? It may require some management to quiet the restless and impetuous spirits of Kentucky, of whose conduct I am more apprehensive in this business than I am of all the opposition that will be given by the Spaniards." (IX. 172, 173.)

On the 26th of July of the same year, he again wrote to the same gentleman, expressing the same opinions; and on the 31st of October, he said that these sentiments "are controverted by only one consideration of weight, and that is, the operation which the occlusion of the river may have on the minds of the Western settlers, who will not consider the subject in a relative point of view, or on a comprehensive scale, and may be influenced by the demagogues of the country to acts of extravagance and desperation, under the popular declamation, that their interests are sacrificed." In July, 1787, he retained the same views as to the true policy of the different sections of the country interested in this question, but admitted that, from the spirit manifested at the West, it had become a moot point to determine, when every circumstance was brought into view, what was best to be done. (IX. 172, 180, 205, 261.)

[335] See Mr. Jay's reasoning, Secret Journals, IV. 53, 54.

[336] August 29, 1786. Secret Journals, IV. 109, 110. The States which voted to rescind these instructions were New Hampshire, Massachusetts, Rhode Island, Connecticut, New York, New Jersey, Pennsylvania, and Maryland; Virginia, North and South Carolina, and Georgia, voted not to rescind. Another resolution was carried on the following day (August 30), by the votes of seven States, instructing the Secretary to insist on the territorial limits or boundaries of the United States, as fixed in the Treaty with Great Britain, and not to form any treaty with the Spanish Minister, unless those boundaries were acknowledged and secured. Ibid. 111-116.

[337] This agreement was made between the 29th of August, the date of the rescinding resolution, and the 6th of October, 1786. See Mr. Jay's communication to Congress under the latter date, Secret Journals, IV. 297-301.

[338] This seizure was made on the 6th of June, 1786. Secret Journals, IV. 325.

[339] See the documents laid before Congress, April 13, 1787. Secret Journals, IV. 315-328. On the 30th of January, 1787, Mr. Jefferson thus writes to Mr. Madison, from Paris: "If these transactions give me no uneasiness, I feel very differently at another piece of intelligence, to wit, the possibility that the navigation of the Mississippi may be abandoned to Spain. I never had any interest westward of the Alleghany; and I never will have any. But I have had great opportunities of knowing the character of the people who inhabit that country; and I will venture to say, that the act which abandons the navigation of the Mississippi is an act of separation between the Eastern and Western country. It is a relinquishment of five parts out of eight of the territory of the United States; an abandonment of the fairest subject for the payment of our public debts, and the chaining those debts on our own necks, in perpetuam. I have the utmost confidence in the honest intentions of those who concur in this measure; but I lament their want of acquaintance with the character and physical advantages of the people, who, right or wrong, will suppose their interests sacrificed on this occasion to the contrary interests of that part of the Confederacy in possession of present power. If they declare themselves a separate people, we are incapable of a single effort to retain them. Our citizens can never be induced, either as militia or as soldiers, to go there to cut the throats of their own brothers and sons, or rather, to be themselves the subjects instead of the perpetrators of the parricide. Nor would that country quit the cost of being retained against the will of its inhabitants, could it be done. But it cannot be done. They are able already to rescue the navigation of the Mississippi out of the hands of Spain, and to add New Orleans to their own territory. They will be joined by the inhabitants of Louisiana. This will bring on a war between them and Spain; and that will produce the question with us, whether it will not be worth our while to become parties with them in the war, in order to reunite them with us, and thus correct our error. And were I to permit my forebodings to go one step further, I should predict that the inhabitants of the United States would force their rulers to take the affirmative of that question. I wish I may be mistaken in all these opinions." (Jefferson, II. 87.)

[340] Secret Journals, IV. 311-313.

[341] February 28, 1787.

[342] Madison. Elliot's Debates, V. 97.

[343] These instructions were adopted in November, 1786. Pitkin, II. 207. They were laid before Congress, April 19, 1787. Madison. Elliot's Debates, V. 103.

[344] Henry Lee did not approve of this policy. See Washington's Works, IX. 205, note.

[345] See Madison's account of two interviews with Guardoqui, March 13 and 19, 1787. Elliot, V. 98, 100. At the first of these interviews, Guardoqui stated that he had had no conference with Mr. Jay since the previous October, and never expected to confer with him again.

[346] April 18, 1787. Madison. Elliot, V. 102. On the next day (April 19) the instructions of Virginia were laid before Congress, but a motion to refer them also to the Secretary was lost, Massachusetts and New York voting against it, and Connecticut being divided. Ibid. When Mr. Jay's report came under consideration, Mr. Gorham of Massachusetts, according to Madison, avowed his opinion, that the shutting of the Mississippi would be advantageous to the Atlantic States, and wished to see it shut. Ibid. 103.