The executive chair of the State was at that time filled by James Bowdoin; a statesman, firm, prudent, of high principle, and devoted to the cause of constitutional order. In the first stages of the disaffection, he had been thwarted by a House of Representatives, in which the majority were strongly inclined to sympathize with the general spirit of the insurgents; but the Senate had supported him. Afterwards, when the movement grew more dangerous, the legislature became more reconciled to the use of vigorous means to vindicate the authority of the government, and a short time before it actually took the form of an armed and organized rebellion against the Commonwealth, they had encouraged the Governor to use the powers vested in him by the constitution to enforce obedience to the laws. The Executive promptly met the emergency. A body of militia was marched against the insurgents, and by the middle of February they were dispersed or captured, with but little loss of life.
The actual resources of the State, however, to meet an emergency of this kind, were feeble and few. A voluntary loan, from a few public-spirited individuals, supplied the necessary funds, of which the treasury of the State was wholly destitute.[260] At one time, so general was the prevalence of discontent, even among the militia on whom the government were obliged to rely, that men were known openly to change sides in the field, when the first bodies of troops were called out.[261] Had the government of the State been in the hands of a person less firm and less careless of popularity than Bowdoin, it would have been given up to anarchy and civil confusion. The political situation of the country did not seem to admit of an application to Congress for direct assistance, and there is no reason to suppose that such an application would have been effectively answered, if it had been made.[262]
When the news of the disturbances in Massachusetts, in the autumn of 1786, was received in Congress, it happened that intelligence from the Western country indicated a hostile disposition on the part of several Indian tribes against the frontier settlements. A resolve was unanimously adopted, directing one thousand three hundred and forty additional troops to be raised, for the term of three years, for the protection and support of the States bordering on the Western territory and the settlements on and near the Mississippi, and to secure and facilitate the surveying and selling of the public lands.[263] From the fact that the whole of these troops were ordered to be raised by the four New England States, and one half of them by the State of Massachusetts, and from other circumstances, it is quite apparent that the object assigned was an ostensible one, and that Congress intended by this resolve to strengthen the government of that State and to overawe the insurgents.[264] But this motive could not be publicly announced. The enlistment went on very slowly, however, until February, when a motion was made by Mr. Pinckney of South Carolina to stop it altogether, upon the ground that the insurrection in Massachusetts, the real, though not the ostensible, object of the resolve, had been crushed. Mr. King of Massachusetts earnestly entreated that the federal enlistments might be permitted to go on, otherwise the greatest alarm would be felt by the government of the State and its friends, and the insurrection might be rekindled. Mr. Madison advised that the proposal to rescind the order for the enlistments should be suspended, to await the course of events in Massachusetts. At the same time, he admitted that it would be difficult to reconcile an interference of Congress in the internal controversies of a State with the tenor of the Articles of Confederation.[265] The whole subject was postponed, and the direct question of the power of Congress was not acted upon. In the Convention which framed the Constitution, it was very early declared, that the Confederation had neither constitutional power, nor means, to interfere in case of a rebellion in any State.[266]
This generation can scarcely depict to itself the alarm which these disturbances spread through the country, and the extreme peril to which the whole fabric of society in New England was exposed. The numbers of the disaffected in Massachusetts amounted to one fifth of the inhabitants in several of the populous counties. Their doctrines and purposes were embraced by many young, active, and desperate men in Rhode Island, Connecticut, and New Hampshire, and the whole of this faction in the four States was capable of furnishing a body of twelve or fifteen thousand men, bent on annihilating property, and cancelling all debts, public and private.[267]
But this great peril was not without beneficial consequences. It displayed, at a critical moment, when a project of amending the Federal Constitution for other purposes was encountering much opposition, a more dangerous deficiency than any to which the public mind had hitherto been turned. While thoughtful and considerate men were speculating upon the causes of diminished prosperity and the general feebleness of the system of government, a gulf suddenly yawned beneath their feet, threatening ruin to the whole social fabric. It was but a short time before, that the people of this country had shed their blood to obtain constitutions of their own choice and making. Now, they seemed as ready to overturn them as they had once been to extort from tyranny the power of creating and erecting them in its place. It was manifest, that to achieve the independence of a country is but half of the great undertaking of liberty;—that, after freedom, there must come security, order, the wise disposal of power, and great institutions on which society may repose in safety. It was clear, that the Federal Union alone could certainly uphold the liberty which it had gained for the people of the States, and that, to enable it to do so, it must become a government.[268]
From his retreat at Mount Vernon, Washington observed the progress of these disorders with intense anxiety. To him, they carried the strongest evidence of a want of energy in the system of the Federal Union. They did more than all things else to convince him that "a liberal and energetic constitution, well checked and well watched to prevent encroachments, might restore us to that degree of respectability and consequence to which we had the fairest prospect of attaining."[269] He was kept accurately informed of the state of things in New England, and the probability that he would be obliged to come forward, and take an active part in the support of order against civil discord, was directly intimated to him.[270] He had foreseen the possibility of this; but the successful issue of the struggle relieved him from the contemplation of this painful task, and left to him only the duty of giving the whole weight of his influence and presence in the Convention, which was to assemble in the following May, for the revision of the Federal Constitution.
Origin and Necessity of the Power to regulate Commerce.
Among all the causes which led to the establishment of the Constitution of the United States, there is none more important, and none that is less appreciated at the present day, than the inability of the Confederation to manage the foreign commerce of the country. We have seen that, when the Articles of Confederation were proposed for adoption by the States, the State of New Jersey remonstrated against the absence of all provision for placing the foreign trade of the States under the regulation of the federal government. But this remonstrance was without effect, and the instrument went into operation in 1781, with no other restriction upon the powers of the States to regulate trade according to their pleasure, than a prohibition against levying imposts or duties which would interfere with the treaties then proposed. While the war continued, the subject was of comparatively little importance. But the return of peace found this country capable of becoming a great commercial, as well as agricultural nation; and it could not be overlooked, that its government possessed very inadequate means for establishing such relations with foreign powers as would best develop its resources and conduce to its internal harmony and prosperity. How early this great interest had attracted the attention of those who were most capable of enlarged and statesmanlike views of the actual nature of the Union and the wants of the States, there are perhaps as yet before the world no sufficient means of determining. We know, however, that, before the peace, Hamilton saw clearly that it was essential for the United States to be vested with a general superintendence of trade, both for purposes of revenue and regulation; that he foresaw the encouragement of our own products and manufactures, by means of general prohibitions of particular articles and a judicious arrangement of duties, and that this could only be effected by a central authority; and that the due observance of any commercial treaty which the United States might make with a foreign power could not be expected, if the different States retained the regulation of their own trade, and thus held the practical construction of treaties in their own hands.[271]
But it does not appear that, among the other principal statesmen of the Revolution, these ideas had made much progress, until the entire incapacity of the Confederation to negotiate advantageous commercial treaties, for want of adequate power to enforce them, had displayed the actual weakness of its position, and the oppressive measures of other countries had taught them that there was but one remedy for such evils. Then, indeed, they saw that the United States could have a standing as a commercial power among the other powers of the world, only when their representatives could be received and dealt with as the representatives of one, and not of thirteen sovereignties; and that, if the measures of other countries, injurious to the trade of America, were to be counteracted at all, it must be by a power that could prohibit access to all the States alike, or grant it as to all, as circumstances might require.[272]
The actual commercial relations of the United States with other countries, when the peace took place, were confined to treaties of amity and commerce with France, Sweden, and the Netherlands; the two latter transcending, in some degree, the powers of the Confederation. In 1776, the Revolutionary Congress had adopted a plan of treaties to be proposed to France and Spain, which contemplated that the subjects of each country should pay no duties in the other except such as were paid by natives, and should have the same rights and privileges as natives in respect to navigation and commerce.[273] When a treaty of amity and commerce came to be concluded with France, in 1778, the footing on which the subjects of the two countries were placed, in the dominions of each other, was that of the most favored nations, instead of that of natives.[274] The Articles of Confederation, proposed in 1777, and finally ratified in March, 1781, reserved to the States the right of levying duties and imposts, excepting only such as would interfere with any treaties that might be made "pursuant to the treaties proposed to France and Spain." The United States could therefore constitutionally complete these two treaties, and such as were dependent upon them, but no others which should have the effect of restraining the legislatures of the States from prohibiting the exportation or importation of any species of goods or merchandise, or laying whatever duties or imposts they thought proper.[275]
In 1782, negotiations were entered into for a similar treaty with the States General of the Netherlands. When the instructions to Mr. Adams to negotiate this treaty were under consideration in Congress, it was recollected that the French treaty contained a stipulation, the effect of which would enable the heirs of the subjects of either party, dying in the territories of the other, to inherit real property, without obtaining letters of naturalization.[276] The doubt suggested itself,—as it well might,—whether such an indefinite license to aliens to possess real property within the United States, was not an encroachment upon the rights of the States. It seems to have been expected, when the French treaty was entered into, that the States would acquiesce in this provision, on account of the peculiar relations of this country to France, and because of the saving clause in the Articles of Confederation in favor of the treaties to be made with that power and with Spain.[277] But such a stipulation as this was clearly not within the meaning of that clause; and it was received with great repugnance by many of the States.[278] In the treaty with the Netherlands, it was proposed to insert a similar provision; but it was found to be extremely improbable that the States would comply with a similar engagement with another power. The language was therefore varied, so as to give the privilege of inheritance only as to the "effects" of persons dying in the country;—an expression which would probably exclude real property, but which might possibly be construed to include it.[279]
With regard to duties and imposts, the Dutch treaty contained the same stipulation as the French, putting the subjects of either power on the footing of the most favored nations, and thereby holding out to the subjects of the United Provinces the promise of an equality, under the laws of the United States, with the subjects of France.[280] The same stipulation was inserted in a treaty subsequently made at Paris with the King of Sweden.[281]
If these stipulations were supposed or intended to be binding upon the States, so as to restrain them from adopting, within their respective jurisdictions, any other rule than that fixed by the French treaty, for the subjects of the United Provinces and the King of Sweden, it is quite clear that the Articles of Confederation gave no authority to Congress to make them. They could have no effect, therefore, in producing a uniformity of regulation throughout the United States, with regard to the trade with Sweden and the Netherlands.
The relations of the United States with Great Britain were, however, far more important, than their relations with Sweden or Holland. When the war was drawing to a close, and the provisional articles of peace had been agreed upon, a measure was in preparation in England, under the auspices of Mr. Pitt, designed as a temporary arrangement of commercial intercourse between Great Britain and the United States, and which would have enabled the government of this country to have formed a treaty so advantageous, that the States would doubtless have conformed their legislation to its provisions. That great statesman perceived, that it was extremely desirable to establish the intercourse of the two countries on the most enlarged principles of reciprocal benefit, and his purpose was, by a provisional arrangement, to evince the disposition of England to be on terms of amity with the United States, preparatory to the negotiation of a treaty.[282] But the administration, in which he was then Chancellor of the Exchequer, went out of office immediately after he had proposed this measure, and their successors, following a totally different line of policy, procured an act of Parliament authorizing the King in Council to regulate the commercial intercourse between the United States and Great Britain and her dependencies.[283]
Mr. Pitt's bill was designed to admit the vessels and subjects of the United States into all the ports of Great Britain, in the same manner as the subjects and vessels of other independent sovereign states, and to admit merchandise and goods, the growth, produce, or manufacture of this country, under the same duties and charges as if they were the property of British subjects, imported in British vessels. It also proposed to establish an entirely free trade between the United States and the British islands, colonies, and plantations in America. The new administration, on the contrary, believing that this would encourage the American marine, to the ruin of that of Great Britain, and would deprive the latter of a monopoly in the consumption of her colonies, and in their carrying trade, resolved to reverse this entire policy. In this course, they were encouraged by the views which they took of the internal situation of this country, and which were, to a great extent, justified by the fact. They believed that we could not act, as a nation, upon questions of commerce; that the climates, the staples, and the manners of the States were different, and their interests therefore opposite; and that no combination was likely to take place, from which England would have reason to fear retaliation. They supposed, that, inasmuch as the Confederation had no power to make any but general treaties, and as the States had reserved to themselves nearly every power concerning the regulation of trade, no treaty could be made that would be binding upon all the States; and that, if treaties should become necessary, they must be made with the States respectively. But they denied that treaties were necessary, and maintained that it would be unwise to enter at present into any arrangements by which they might not wish afterwards to be bound. They determined, therefore, to deal with this country as a collection of rival States, with each of which they could make their own terms, after the pressure of their policy, and the impossibility of escaping from its effects, had begun to be felt. They accordingly began, by excluding from the British West Indies, under Orders in Council, the whole American marine, and by prohibiting fish, and many important articles of our produce, from being carried there, even in British vessels.[284]
At the termination of the war, the foreign commerce of the United States was capable of great expansion. It consisted of three important branches,—the trade of the Eastern, that of the Middle, and that of the Southern States; each of which required at once the means of reaching foreign markets. The rice and indigo of the South might be carried to Europe. The Middle States might export to Europe tobacco, tar, wheat, and flour; and to the West Indies, pork, beef, bread, flour, lumber, tar, and iron. The Eastern States might supply the markets of Europe with spars, ship-timber, staves, boards, fish, and oil, and those of the West Indies with lumber, pork, beef, live cattle, horses, cider, and fish. The whole of these great interests of course received a sudden and almost fatal blow from the English Orders in Council, and no means whatever existed of countervailing their effects, but such as each State could provide for its own people, by its own legislation.
Congress, however, awoke to the perception of an efficient and appropriate remedy, of a temporary character, and prepared to apply it, through an amendment of their powers. For the purpose of meeting the policy of Great Britain with similar restrictions on her commerce, they recommended to the States to vest in Congress, for the term of fifteen years, authority to prohibit the vessels of any power, not having treaties of commerce with the United States, from importing or exporting any commodities into or from any of the States, and also with the power of prohibiting, for a like term, the subjects of any foreign country, unless authorized by treaty, from importing into the United States any merchandise not the produce or manufacture of such country.[285] There was already before the States, as we have seen, in the revenue system of 1783, a proposal to them to vest in Congress power to levy certain duties on foreign commodities, for the same period; and if these two grants of power had been made, and made promptly, by the States, Congress would have possessed, for a time, an effectual control over commerce, and the practical means of forming suitable commercial treaties.
But the proposal of the 30th of April, 1784, met with a tardy and reluctant attention among the States. Only one of them had acted upon it, as late as the following February, when the delegates for Maryland laid before Congress an act of that State upon the subject.[286] New Hampshire was the next State to comply, in the succeeding June.[287] In the mean time, however, Congress prepared to prosecute negotiations in Europe, trusting to the chances of an enlargement of their powers, in pursuance of their recommendation. Accordingly, they proceeded, in the spring of 1784, to appoint a commission to negotiate commercial treaties, and settled the principles on which such treaties were to be formed. The leading principle then determined on was, that each party to the treaty should have a right to carry their own produce, manufactures, and merchandise in their own bottoms to the ports of the other, and to take thence the produce, manufactures, and merchandise of the other, paying, in both cases, such duties only as were paid by the most favored nation. The resolves appointing the commission also contained a very explicit direction, that "the United States, in all such treaties, and in every case arising under them, should be considered as one nation, upon the principles of the Federal Constitution."[288] Yet the Federal Constitution did not, at that very moment, make the United States one nation for this purpose. Its principles gave to Congress no authority which could prevent the States from prohibiting any exportations or importations whatever, as to their respective territories; and the validity of these treaties, thus proposed to be negotiated with fifteen European powers, depended altogether upon the precarious assent of the thirteen States to the alterations in the principles of the Federal Constitution which Congress had proposed.
That assent was not likely to be given, so as to become effectual for the purposes for which it had been asked. The action of the States was found, in the spring of 1786, to present a mass of incongruities, which rendered the whole scheme of thus increasing the federal powers almost hopeless. Four of the States had passed laws, conforming substantially to the recommendations of Congress, but restraining their operation until the other States should have complied.[289] Three of the States had passed the requisite acts, and had fixed different periods at which they were to take effect.[290] One State had granted full powers to regulate its trade, by restrictions or duties, for fifteen years, with a proviso that the law should be suspended until all the other States had done the same.[291] Another State had granted power, for twenty-five years, to regulate trade between the respective States, and to prohibit or regulate the importation only of foreign goods in foreign vessels, but restricting the operation of the act until the other States had passed similar laws.[292] Still another State had granted powers like the last, but without limitation of time, and with the proviso that, when all the other States had made the same grants, it should become an Article of the Confederation.[293] The three remaining States had passed no act upon the subject.[294] Upon these conflicting and irreconcilable provisions, Congress could take no other action, than to call the attention of the States again to the original proposal, and request them to revise their laws.[295]
While this discordant legislation was manifesting at home the entire impracticability of amending the Federal Constitution by means of the separate action of the State legislatures, the commissioners abroad were engaged in efforts, nearly as fruitless, to negotiate the treaties which they had been instructed to make. The commission was opened at Paris on the 13th of August, 1784, and its objects announced to the different governments. France was not disposed to change the existing relations. England perceived the real want of power in the federal government, and recognized nothing in the commission but the fact that it had been issued by Congress, while the separate States had conferred no powers upon either Congress or the commissioners.[296] Prussia alone entered into a treaty, upon some of the principles laid down in the commission, and soon after it was executed, the commissioners ceased to do any thing whatever.[297]
During the period which elapsed from the Treaty of Peace with England to the assembling of the Convention at Annapolis, the legislation of the different States, designed to protect themselves against the policy of England, was of course without system or concert, and without uniformity of regulation. At one time duties were made extravagantly high; at another, competition reduced them below the point at which any considerable revenue could be derived. At one time, the States acted in open hostility to each other; at another, they contemplated commercial leagues, without regard to the prohibition contained in the Articles of Confederation. No steady system was pursued by any of them, and the inefficacy of State legislation became at length so apparent, that a conviction of the necessity of new powers in Congress forced itself upon the public mind.
1783-1787.
The Public Lands.—Government of the Northwestern Territory.—Threatened Loss of the Western Settlements.
The Confederation, although preceded by a cession of Western territory from the State of New York for the use of the United States, contained no grant of power to Congress to hold, manage, or dispose of such property. There had been, while the Articles of Confederation were under discussion in Congress, a proposal to insert a provision, giving to Congress the sole and exclusive right and power to ascertain and fix the western boundary of such States as claimed to the Mississippi or the South Sea, and to lay out the land beyond the boundary so ascertained into separate and independent States, from time to time, as the numbers and circumstances of the inhabitants might require.[298] This proposal was negatived by the vote of every State except Maryland and New Jersey.[299] Its rejection caused the adoption of the Confederation to be postponed for a period of more than two years after it was submitted to the States.[300] Virginia had set up claims to an indefinite extent of territory, stretching far into the Western wilderness, which were looked upon with especial jealousy by Maryland; and when the Articles of Confederation came before the legislature of that State for consideration, the absence of any provision vesting in the Union any control over these claims, or any power to ascertain and fix the western boundaries of the great States, became at once a cause of irritation and alarm. The steps taken by Maryland to have this power introduced into the Articles have already been detailed.[301] But the Articles could not be amended. Congress could only make efforts to remove this impediment to their adoption, by recommending to the States to cede their territorial claims to the Union. The first step which they took, for this purpose, was to recommend to the State of Virginia, and all the other States similarly situated, not to make sales of unappropriated lands during the continuance of the war.[302] This was followed by a full consideration of the subject presented by the objections of Maryland and the remonstrance of Virginia. Declining to reopen the question of the merits or policy of attempting to engraft the proposed power upon the Confederation, Congress deemed it more advisable to endeavor to procure a surrender of a portion of the territorial claims of the several States.[303] In pressing a recommendation to this effect, they were greatly aided by the course of the State of New York, which had already authorized its delegates in Congress to limit its western boundaries, and to cede a portion of its vacant lands to the United States.[304] They then immediately declared, by resolve, the purposes for which such cessions were to be held. The territories were to be disposed of for the common benefit of the United States; to be settled and formed into distinct republican States, which should become members of the Federal Union, and have the same rights of sovereignty, freedom, and independence as the other States. Each State so formed was to contain a suitable extent of territory, not less than one hundred, nor more than one hundred and fifty miles square; the necessary expenses incurred by any State in acquiring the territory ceded, were to be reimbursed; and the lands were to be granted or settled at such times, and under such regulations, as should thereafter be agreed upon by the United States in Congress assembled, or any nine or more of them.[305]
The cessions were made under the guaranties of this resolve. Strictly speaking, there was no express constitutional power under which Congress could thus act, either before or after the adoption of the Articles of Confederation. Before that period, if the United States could acquire and hold lands, for any purpose, it could only be by the common attribute of sovereignty belonging to every government. Perhaps this power existed, by implication, in the revolutionary government; but the compact which was to constitute the new government contained no authority for the establishment of new States within the limits of the Union. But when, aside from the Articles of Confederation, and before they had been adopted, the Revolutionary Congress undertook, in 1780, to hold out these inducements to the States, as motives for their adoption of that instrument, and these motives were acted upon and the cessions made, it must be taken that the territory came rightfully into the possession of the United States. Whether the adoption of the Articles, containing no power for the government of such territories, or for the admission of new States into the Union, did not place the new government in a position where, if it acted at all, it would act beyond the scope of its constitutional authority, certainly admitted of grave question.[306] But the acquisition of the territory itself rested upon acts, which were so directly and expressly connected with the establishment of the new Union under the Confederation, as to make the acquisition itself part of the fundamental conditions of that Union, and the principal guaranty of its continuance. Among the declared purposes for which these acquisitions were made, was that of forming them into new States, to be admitted into the Union; and as all the States acquiesced in and embraced this purpose, they may be said to have conferred upon Congress an implied power to legislate to carry it into effect. Still, the want of an express authority in the Articles thus to deal with acquired territory was afterwards felt and insisted upon, as the Confederation drew towards the close of its career.[307]
Virginia, in 1781, offered to make a cession to the United States of her title to lands northwest of the Ohio, upon certain conditions, which were not satisfactory, and the subject had not been acted upon in Congress when the revenue system of 1783 was adopted for recommendation to the States. Looking to the prospect of vacant lands, as a means of hastening the extinguishment of the public debts, as well as of establishing the harmony of the Union, Congress accompanied the recommendation of the revenue system by new solicitations to the States which had made no cessions of their public lands, or had made them in part only, to comply fully with the former recommendations. This drew from the State of New Jersey, apprehensive that the offer of Virginia might be accepted, a remonstrance against the cession proposed by that State, as partial, unjust, and illiberal.[308] Congress again took the subject into consideration, examined the conditions which the legislature of Virginia had annexed to their proposed grant, declared some of them inadmissible, and stated the conditions on which the cession could be received.[309] Virginia complied with the terms proposed by Congress, and upon those terms ceded to the United States all right, title, and claim, both of soil and jurisdiction, which the State then had to the territory within the limits of its charter, lying to the northwest of the river Ohio. That magnificent region, in which now lie the powerful States of Ohio, Indiana, Illinois, Michigan, and Wisconsin, became the property of the United States, by a grant of twenty lines, executed in Congress by Thomas Jefferson and three of his colleagues, on the 1st day of March, 1784.[310]
Soon after this cession had been completed, Congress passed a resolve for the regulation of the territory that had been or might be ceded to the United States, for the establishment of temporary and permanent governments by the settlers, and for the admission of the new States thus formed into the Union.[311] This resolve provided, that the territory which had been or might be ceded to the United States, after the extinguishment of the Indian title, and when offered for sale by Congress, should be divided into separate States, in a manner specified; that the settlers on such territory, either on their own petition or on the order of Congress, should receive authority to form a temporary government; and that when there should be twenty thousand free inhabitants within the limits of any of the States thus designated, they should receive authority to call a convention of representatives to establish a permanent constitution and government for themselves, provided that both the temporary and permanent governments should be established on these principles, as their basis:—1. That they should for ever remain a part of the Confederacy of the United States of America. 2. That they should be subject to the Articles of Confederation and the acts and ordinances of Congress, like the original parties to that instrument. 3. That they should in no case interfere with the disposal of the soil by Congress. 4. That they should be subject to pay a part of the federal debts, present and prospective, in the same measure of apportionment with the other States. 5. That they should impose no tax upon lands, the property of the United States. 6. That their respective governments should be republican. 7. That the lands of non-resident proprietors should not be taxed higher than those of residents, in any new State, before its delegates had been admitted to vote in Congress.
The resolve also contained a provision, which appears to have been designed to meet the want of constitutional power, under the Articles of Confederation, relative to the admission of new States. It was declared, that whenever any of the States thus formed should have as many free inhabitants as the least numerous of the thirteen original States, it should be admitted by its delegates into Congress on an equal footing with the original States, provided the assent of so many States in Congress should be first obtained, as might at the time be competent to such admission. It was further declared, that, in order to adapt the Articles of Confederation to the condition of Congress when it should be thus increased, it should be proposed to the original States, parties to that instrument, to change the rule, which required a vote of nine States, to a vote of two thirds of all the States in Congress; and that when this change had been agreed upon, it should be binding upon the new States.
After the establishment of a temporary government, and before its admission into the Union, each of the new States was to have the right to keep a member in Congress, with the privilege of debating, but not of voting. It was also provided, that measures not inconsistent with the principles of the Confederation, and necessary for the preservation of peace and good order among the settlers in any of the said new States, until they had assumed a temporary government, might, from time to time, be taken by the United States in Congress assembled.
These provisions were to stand as a charter of compact and as fundamental constitutions between the thirteen original States and each of the new States thus described, unalterable from and after the sale of any part of the territory of such State, but by the joint consent of the United States in Congress assembled, and of the particular State to be affected.[312]
New and urgent recommendations followed the passage of this resolve, pressing the States to consider that the war was now happily brought to a close, by the services of the army, the supplies of property by citizens, and loans of money by citizens and foreigners, constituting a body of creditors who had a right to expect indemnification, and that the vacant territory was an important resource for this great object.[313]
The subject does not seem to have again occupied the attention of Congress until the spring of the following year, when a proposition was introduced and committed, to exclude slavery and involuntary servitude, otherwise than in punishment of crimes, from the States described in the resolve of April 23d, 1784, and to make this provision part of the compact established by that resolve.[314]
Soon afterwards, a cession was made by Massachusetts of all its right and title, both of soil and jurisdiction, to the Western territory lying within the limits of the charter of that State.[315] In the succeeding month, Congress adopted an ordinance for ascertaining the mode of disposing of the Western lands to settlers.[316] In the course of the next year, the cession by Connecticut was made, after various negotiations, with a reservation to that State of the property in a considerable tract of country, since called the Connecticut Reserve, lying to the south of Lake Erie, and now embraced within the State of Ohio.[317]
Before this transaction had been completed, it had become manifest, from the knowledge that had been obtained of the country northwest of the Ohio, that it would be extremely inconvenient to lay it out into States of the extent and dimensions described in the resolve of October 10, 1780, under which the cession of Virginia had been made; and the legislature of that State were accordingly asked to modify their act of cession, so as to enable Congress to lay out the territory into not more than five nor less than three States, as the situation and circumstances of the country might require.[318] This suggestion was complied with.[319]
A cession by South Carolina then followed, of all its claim to lands lying towards the river Mississippi;[320] but no other cessions were made to the United States under the Confederation; those of Georgia and North Carolina having been made after the adoption of the Constitution.[321]
It appears, therefore, that, with the exception of the claims of South Carolina to territory lying due west from that State towards the river Mississippi, the United States, before the 13th of July, 1787, had become possessed of the title to no other territory than that which had been surrendered to them by the States of New York, Virginia, Massachusetts, and Connecticut. The great mass of this territory was that embraced within the cession of Virginia, and lying to the northwest of the river Ohio; and after the whole title to this region, with the exception of some reserved tracts, had become complete in the United States, it was subject to the resolves of 1780 and of 1784. The provisions of the resolve of 1784, however, were soon seen to be inconvenient and inapplicable to the pressing wants of this region. Immediate legislation was plainly demanded for this territory, which could not wait the slow process of forming first temporary and then permanent governments, as had been contemplated by that resolve. Congress had had cast upon it the administration of an empire, exterior to the Confederation, and rapidly filling with people, in which the rights and tenure of property, the preservation of order and tranquillity, and the shaping of its political and social destinies, required instant legislation. This legislation was therefore provided in the celebrated Ordinance for the Government of the Northwestern Territory, enacted July 13, 1787, which was designed to supersede and in terms directly repealed the resolve of 1784. As this fundamental law for a new and unsettled country—at that time a novel undertaking—must always be regarded with interest in every part of the world, and as it lies at the foundation of the civil polity of a sixth part of these United States, its principles and provisions should be carefully examined.
The territory was, for the purposes of temporary government, constituted one district, subject to be divided into two, as future circumstances might require. An equal distribution of property among the children of persons dying intestate, with a life estate to the widow in one third of the real and personal estate, was made the law of the territory, until it should be altered by its legislature. Persons of full age were empowered to dispose of their estates by a written will, executed in the presence of three witnesses. Real estates were authorized to be conveyed by deed, executed by a person of full age, acknowledged and attested by two witnesses. Both wills and deeds were required to be registered. Personal property was transferable by delivery.
The civil government of the territory was to consist of executive, legislative, and judicial branches. A Governor was to be appointed from time to time by Congress, and to be commissioned for three years, subject to removal; but he was to reside in the district, and to have a freehold estate there in one thousand acres of land, while in the exercise of his office. A Secretary was also to be appointed from time to time by Congress, and to be commissioned for four years, subject to removal, but to reside in the district, and to have a freehold estate there in five hundred acres of land, while in the exercise of his office. There was also to be appointed a court of common law jurisdiction, to consist of three judges, any two of whom should form a court; they were to reside in the district, and to have each a freehold estate there in five hundred acres of land, while in the exercise of their office; their commissions to continue in force during good behavior.
The Governor and Judges, or a majority of them, were to adopt and publish in the district such laws of the original States, criminal and civil, as might be necessary and best suited to the circumstances of the district, to be in force in the district until the organization of the General Assembly, unless disapproved by Congress, to whom, from time to time, they should be reported;—but the legislature, when constituted, were to have authority to alter them as they should think fit.
Magistrates and other civil officers were to be appointed by the Governor, previous to the organization of the General Assembly, for the preservation of peace and good order. After the organization of the General Assembly, the powers and duties of magistrates and other civil officers were to be regulated and defined by the legislature, but their appointment was to remain with the Governor.
For the prevention of crimes and injuries, the laws to be adopted or made were to have force in all parts of the district, and for the execution of process, criminal and civil, the Governor was to make proper divisions of the territory, and to lay out the portions where the Indian titles had been extinguished, from time to time, into counties and townships, subject to future alteration by the legislature.
As soon as there should be five thousand free male inhabitants, of full age, in the district, upon giving proof thereof to the Governor, they were to receive authority to elect representatives from their counties or townships, to represent them in the General Assembly. For every five hundred male inhabitants, there was to be one representative; and so on progressively the right of representation was to increase, until the number of representatives should amount to twenty-five, after which their numbers and proportions were to be regulated by the legislature. The qualifications of a representative were to be previous citizenship in one of the United States for three years, and residence in the district, or a residence of three years in the district, with a fee-simple estate, in either case, of two hundred acres of land within the district. The qualifications of electors were to be a freehold in fifty acres of land in the district, previous citizenship in one of the United States, and residence in the district, or the like freehold and two years' residence in the district.
The Ordinance then proceeded to state certain fundamental articles of compact between the original States and the people and States in the territory, which were to remain unalterable, except by common consent. The first provided for freedom of religious opinion and worship. The second provided for the right to the writ of habeas corpus; for trial by jury; for a proportionate representation in the legislature; for judicial proceedings according to the course of the common law; for offences not capital being bailable; for fines being moderate, and punishments not cruel nor unusual; for no man's being deprived of his liberty or property, but by the judgment of his peers or the law of the land; for full compensation for property taken or services demanded for the public; and that no law should ever be made, or have force in the territory, that should in any manner whatever interfere with or affect private contracts or engagements, previously formed, bona fide and without fraud. The third provided for the encouragement of religion and education, for schools, and for good faith towards the rights and property of the Indian tribes. The fourth provided that the territory and the States to be formed therein should for ever remain a part of the Confederacy, subject to the constitutional authority of Congress; that the inhabitants should be liable to be taxed proportionately for the public expenses; that the legislature in the territory should never interfere with the primary disposal of the soil by Congress, nor with their regulations for securing the title to purchasers; that no tax should be imposed on lands, the property of the United States; that non-resident proprietors should not be taxed more than residents; and that the navigable waters leading into the Mississippi and St. Lawrence, and the carrying-places between them, should be common highways and for ever free.
The fifth provided, that there should be formed in the territory not less than three, nor more than five States, with certain boundaries; and that whenever any of the States should contain sixty thousand free inhabitants, such State should be (and might be before) admitted by its delegates into Congress, on an equal footing with the original States in all respects whatever, and should be at liberty to form a permanent constitution and State government, provided it should be republican, and in conformity with these articles of compact.
The sixth provided, that there should be neither slavery nor involuntary servitude in the territory, otherwise than in the punishment of crimes; but that fugitives owing service in other States might be reclaimed.
American legislation has never achieved any thing more admirable, as an internal government, than this comprehensive scheme. Its provisions concerning the distribution of property, the principles of civil and religious liberty which it laid at the foundation of the communities since established under its sway, and the efficient and simple organization by which it created the first machinery of civil society, are worthy of all the praise that has ever attended it. It was not a plan devised in the closet, upon theoretical principles of abstract fitness. It was a constitution of government drawn by men who understood, from experience, the practical working of the principles which they undertook to embody. Those principles were, it is true, to be applied to a state of society not then formed; but they were taken from states of society in which they had been tried with success. The equal division of property; general, not universal suffrage, but a suffrage guarded by some degree of interest in society; representative government; the division of the three grand departments of political power; freedom of religious opinion and worship; the habeas corpus, trial by jury, and the course of the common law; the right to be bailed for offences not capital, and the prohibition of immoderate fines and cruel or unusual punishments; the great principle of compensation for property or service demanded by the public, and the legislative inviolability of contracts; the encouragement of schools and the means of education,—were all taken from the ancient or recent constitutions of States, from which the greater part of the inhabitants of the new territory would necessarily come. A community founded on these principles was predestined to prosperity and happiness.
But it was in the provisions of the Ordinance relative to the admission into the Union of the new States to be formed upon this territory, that the relation between the existing government of the United States and its great dependency was afterwards found to involve serious difficulties. The Union was at that time a confederacy of thirteen States, originally formed mainly with reference to the exigencies of the war; and, although the Articles of Confederation had been ratified under circumstances which gave to the United States the authority to acquire this property, they had vested in Congress no power to enlarge the Confederacy by the admission of new States. Yet the Ordinance undertook to declare that new States should be admitted into the Congress of the United States on an equal footing with the existing States in all respects whatever, without proposing to submit that question to the original parties to the Confederacy.
It does not appear from contemporary evidence that this difficulty attracted public attention, at the time of the passage of the Ordinance. In the year 1787, the Confederation was laboring under far more pressing and alarming defects than the want of strict constitutional power to create new States. Public attention was consequently more engaged with the consideration of evils which affected the prosperity of the original States themselves, than with the destiny of the new communities, or the method by which they were to be brought into the Union. It was not immediately perceived, also, that a property, capable at no distant day of becoming a vast mine of wealth to the United States, as a great and independent revenue, had come under the management of a single body of men, constituted originally without reference to such a trust, and with no declared constitutional provisions for its administration. When, however, the Constitution was in the process of formation, the necessity for provisions under which Congress could dispose of the public lands, and by which new States could be admitted into the Union, was at once felt and conceded on all sides.[322]
Far more serious difficulties, however, attended the management by the Confederation of the interests of the Western country;—difficulties which commenced immediately after the Peace, and continued to increase, until the course taken by Congress had nearly lost to the Union the whole of that immense region which now pours its commerce down the Mississippi and its great tributary waters. These difficulties sprang from the inherent weakness of the federal government,—from the absolute incapacity of Congress, constituted as it was, to deal wisely, safely, and efficiently with the foreign relations of the country and its internal affairs, under the delicate and critical circumstances in which it was then placed. After the Treaty of Peace, the Western settlements, flanked by the dependencies of Great Britain at the north and of Spain at the south, and rapidly filling with a bold, adventurous, and somewhat lawless population, whose ties of connection with the Eastern States were almost sundered by the remoteness of their position and the difficulties of communication, stood upon a pivot, where accident might have thrown them out of the Union. This population found themselves seated in a luxuriant and fertile country, capable of a threefold greater production than the States eastward of the Alleghany and Appalachian Mountains, and intersected by natural water communications of the most ample character, all tending to the great highway of the Mississippi. A soil richer than any over which the Anglo-Saxon race had hitherto spread itself upon this continent, in any of its temperate climes; large plains and meadows, capable, without labor, of supporting millions of cattle; and fields destined to vie with the most favored lands on the globe in the production of wheat, were already accumulating upon the banks of their great rivers a weight of produce far beyond the necessities of subsistence, and loudly demanding the means of reaching the markets of the world. The people of the Atlantic States knew little of the resources or situation of this country. They valued it chiefly as a means of paying the public debts by the sale of its lands; but until they were in imminent danger of losing it, from the inefficiency of the national government, they had little idea of the supreme necessity of securing for it an outlet to the sea, if they would preserve it to the Union.
Washington, in the autumn of 1784, after his retirement to Mount Vernon, made a tour into the Western country, for the express purpose of ascertaining by what means it could be most effectually bound to the Union. The policy of opening communications eastward, by means of the rivers flowing through Virginia to the Atlantic Ocean struck him at once. On his return, he addressed a letter to the Governor of the State, in which he recommended the appointment of a commission, to make a survey of the whole means of natural water communication between Lake Erie and the tide-waters of Virginia. He does not seem at this time to have considered the navigation of the Mississippi as of great importance; but he thought rather that the opening of that river would have a tendency to separate the Western from the Eastern States.[323] A year later, he held a clear opinion, that its navigation ought not at present to be made an object by the United States, but that their true policy was to open all the possible avenues between the Atlantic States and the Western territory, and that, until this had been done, the obstructions to the use of the Mississippi had better not be removed.[324] Those obstructions, however, involved the hazard of a loss of the territory to which the navigation of that river had already become extremely important. Their nature is, therefore, now to be explained.
The Treaty of Peace with Great Britain recognized, as the southern boundary of the United States, a line drawn from a point where the thirty-first degree of north latitude intersected the river Mississippi, along that parallel due east to the middle of the river Appalachicola; thence along the middle of that river to its junction with the Flint River; thence in a straight line to the head of St. Mary's River; and thence down the middle of that river to the Atlantic Ocean.[325] At the time of the negotiation of this treaty West Florida was in the possession of Spain; and a secret article was executed by the British and American plenipotentiaries, which stipulated that in case Great Britain, at the conclusion of a peace with Spain, should recover or be put in possession of West Florida, the north boundary between that province and the United States should be a line drawn from the mouth of the river Yassous, where it unites with the river Mississippi, due east to the river Appalachicola.[326] The treaty also stipulated, that the navigation of the Mississippi, from its source to the ocean, should for ever remain free and open to the subjects of Great Britain and the citizens of the United States.[327]
When the treaty came to be ratified and published, in 1784, the Spanish government was already acquainted with this secret article. Justly assuming that no treaty between Great Britain and the United States could settle the boundaries between the territories of the latter power and those of Spain, or give of itself a right to navigate a river passing wholly through their dominions, they immediately caused it to be signified to Congress, that, until the limits of Louisiana and the two Floridas should be settled and determined, by an admission on the part of Spain that they had been rightfully described in the Treaty with England, they must assert their territorial claims to the exclusive control of the river; and also, that the navigation would under no circumstances be conceded, while Spain held the right to its control.[328] To accommodate these difficulties, Congress resolved to send Mr. Jay, their Secretary of Foreign Affairs, to Spain; but his departure was prevented by the arrival in the United States of Don Diego Guardoqui, as Minister from Spain, charged with the negotiation of a treaty.[329]
Preparatory to this negotiation, the first instruction which Mr. Jay received from Congress was, to insist upon the right of the United States to the territorial boundaries and the free navigation of the Mississippi, as settled by their treaty with Great Britain.[330] Upon this point, however, the Spanish Minister was immovable. A long negotiation ensued, in which he evinced entire readiness to make a liberal commercial treaty with the United States, conceding to their trade very important advantages; but at the same time refusing the right to use the Mississippi. Such a treaty was regarded as extremely important to the United States. There was scarcely a single production of this country that could not be advantageously exchanged in the Spanish European ports for gold and silver. The influence of Spain in the Mediterranean, with Portugal, with France, with the States of Barbary, and the trade with her Canaries and the adjacent islands, rendered a commercial alliance with her of the utmost importance. That importance was especially felt by the Eastern and Middle States, whose influence in Congress thus became opposed to the agitation of the subject of opening the Mississippi.[331] Indeed, the prevailing opinion in Congress, at this time, was for not insisting on the right of navigation as a necessary requisite in the treaty with Spain; and there were some important and influential persons in that body ready to agree to the abandonment of the right, rather than defer longer a free and liberal system of trade with a power able to give conditions so advantageous to the United States.[332] The Eastern States considered a commercial treaty with Spain as the best remedy for their distresses, which flowed, as they believed, from the decay of their commerce. Two of the Middle States joined in this opinion. Virginia, on the other hand, opposed all surrender of the right.[333]
In this posture of affairs, Mr. Jay proposed to Congress a middle course. Believing, as Washington continued to believe,[334] that the navigation of the Mississippi was not at that time very important, and that it would not become so for twenty-five or thirty years, he suggested that the treaty should be limited to that period, and that one of its articles should stipulate, that the United States would forbear to use the navigation of the river below their territories to the ocean. It was supposed that such a forbearance, carrying no surrender of the right, would, at the expiration of the treaty, leave the whole subject in as favorable a position as that in which it now stood. Besides, the only alternative to obtaining such an article from Spain was to make war with her, and enforce the opening of the river. The experiment, at least, it was argued, would do no injury, and might produce much good.[335]
These arguments prevailed, so far as to cause a change in Mr. Jay's instructions, by a vote, which was deemed by him sufficient to confer authority to obtain such an article as he had suggested, but which was clearly unconstitutional. Seven States against five voted to rescind the instructions of August 25, 1785, by which the Secretary had been directed to insist on the right of navigation, and not to conclude or sign any treaty until he had communicated it to Congress.[336] Mr. Jay accordingly agreed with the Spanish Minister on an article which suspended the use of the Mississippi, without relinquishing the right asserted by the United States.[337]
While these proceedings were going on, and before the vote of seven States in Congress had been obtained in favor of the present suspension of this difficult controversy, an occurrence took place at Natchez, which aroused the jealousy of the whole West. A seizure was made there, by the Spanish authorities, of certain American property, which had been carried down the river for shipment or sale at New Orleans.[338] The owner, returning slowly in the autumn to his home, in the western part of North Carolina, by a tedious land journey through Kentucky, detailed everywhere the story of his wrongs and of the loss of his adventure. The news of this seizure, as it circulated up the valley from below, encountered the intelligence coming from the eastward, that Congress proposed to surrender the present use of the Mississippi. Alarm and indignation fired the whole population of the Western settlements. They believed themselves to be on the point of being sacrificed to the commercial policy of the Atlantic States; and, feeling that they stood in the relation of colonists to the rest of the Union, they held language not unlike that which the old colonies had held towards England, in the earlier days of the great controversy.