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The Fathers of the Constitution - Volume 13 in The Chronicles Of America Series
by Max Farrand
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THE FATHERS OF THE CONSTITUTION,

A CHRONICLE OF THE ESTABLISHMENT OF THE UNION

Volume 13 in The Chronicles Of America Series

Edited by Allen Johnson

By Max Farrand

New Haven: Yale University Press

Toronto: Glasgow, Brook & Co.

London: Humphrey Milford

Oxford University Press

1921



CONTENTS

I. THE TREATY OF PEACE

II. TRADE AND INDUSTRY

III. THE CONFEDERATION

IV. THE NORTHWEST ORDINANCE

V. DARKNESS BEFORE DAWN

VI. THE FEDERAL CONVENTION

VII. FINISHING THE WORK

VIII. THE UNION ESTABLISHED

APPENDIX

BIBLIOGRAPHICAL NOTE

NOTES ON THE PORTRAITS OF THE MEMBERS OF THE FEDERAL CONVENTION FATHERS OF THE CONSTITUTION



CHAPTER I. THE TREATY OF PEACE

"The United States of America"! It was in the Declaration of Independence that this name was first and formally proclaimed to the world, and to maintain its verity the war of the Revolution was fought. Americans like to think that they were then assuming "among the Powers of the Earth the equal and independent Station to which the Laws of Nature and of Nature's God entitle them"; and, in view of their subsequent marvelous development, they are inclined to add that it must have been before an expectant world.

In these days of prosperity and national greatness it is hard to realize that the achievement of independence did not place the United States on a footing of equality with other countries and that, in fact, the new state was more or less an unwelcome member of the world family. It is nevertheless true that the latest comer into the family of nations did not for a long time command the respect of the world. This lack of respect was partly due to the character of the American population. Along with the many estimable and excellent people who had come to British North America inspired by the best of motives, there had come others who were not regarded favorably by the governing classes of Europe. Discontent is frequently a healthful sign and a forerunner of progress, but it makes one an uncomfortable neighbor in a satisfied and conservative community; and discontent was the underlying factor in the migration from the Old World to the New. In any composite immigrant population such as that of the United States there was bound to be a large element of undesirables. Among those who came "for conscience's sake" were the best type of religious protestants, but there were also religious cranks from many countries, of almost every conceivable sect and of no sect at all. Many of the newcomers were poor. It was common, too, to regard colonies as inferior places of residence to which objectionable persons might be encouraged to go and where the average of the population was lowered by the influx of convicts and thousands of slaves.

"The great number of emigrants from Europe"—wrote Thieriot, Saxon Commissioner of Commerce to America, from Philadelphia in 1784—"has filled this place with worthless persons to such a degree that scarcely a day passes without theft, robbery, or even assassination."* It would perhaps be too much to say that the people of the United States were looked upon by the rest of the world as only half civilized, but certainly they were regarded as of lower social standing and of inferior quality, and many of them were known to be rough, uncultured, and ignorant. Great Britain and Germany maintained American missionary societies, not, as might perhaps be expected, for the benefit of the Indian or negro, but for the poor, benighted colonists themselves; and Great Britain refused to commission a minister to her former colonies for nearly ten years after their independence had been recognized.

* Quoted by W. E. Lingelbach, "History Teacher's Magazine," March, 1913.

It is usually thought that the dregs of humiliation have been reached when the rights of foreigners are not considered safe in a particular country, so that another state insists upon establishing therein its own tribunal for the trial of its citizens or subjects. Yet that is what the French insisted upon in the United States, and they were supposed to be especially friendly. They had had their own experience in America. First the native Indian had appealed to their imagination. Then, at an appropriate moment, they seemed to see in the Americans a living embodiment of the philosophical theories of the time: they thought that they had at last found "the natural man" of Rousseau and Voltaire; they believed that they saw the social contract theory being worked out before their very eyes. Nevertheless, in spite of this interest in Americans, the French looked upon them as an inferior people over whom they would have liked to exercise a sort of protectorate. To them the Americans seemed to lack a proper knowledge of the amenities of life. Commissioner Thieriot, describing the administration of justice in the new republic, noticed that: "A Frenchman, with the prejudices of his country and accustomed to court sessions in which the officers have imposing robes and a uniform that makes it impossible to recognize them, smiles at seeing in the court room men dressed in street clothes, simple, often quite common. He is astonished to see the public enter and leave the court room freely, those who prefer even keeping their hats on." Later he adds: "It appears that the court of France wished to set up a jurisdiction of its own on this continent for all matters involving French subjects." France failed in this; but at the very time that peace was under discussion Congress authorized Franklin to negotiate a consular convention, ratified a few years later, according to which the citizens of the United States and the subjects of the French King in the country of the other should be tried by their respective consuls or vice-consuls. Though this agreement was made reciprocal in its terms and so saved appearances for the honor of the new nation, nevertheless in submitting it to Congress John Jay clearly pointed out that it was reciprocal in name rather than in substance, as there were few or no Americans in France but an increasing number of Frenchmen in the United States.

Such was the status of the new republic in the family of nations when the time approached for the negotiation of a treaty of peace with the mother country. The war really ended with the surrender of Cornwallis at Yorktown in 1781. Yet even then the British were unwilling to concede the independence of the revolted colonies. This refusal of recognition was not merely a matter of pride; a division and a consequent weakening of the empire was involved; to avoid this Great Britain seems to have been willing to make any other concessions that were necessary. The mother country sought to avoid disruption at all costs. But the time had passed when any such adjustment might have been possible. The Americans now flatly refused to treat of peace upon any footing except that of independent equality. The British, being in no position to continue the struggle, were obliged to yield and to declare in the first article of the treaty of peace that "His Britannic Majesty acknowledges the said United States... to be free, sovereign, and independent states."

With France the relationship of the United States was clear and friendly enough at the time. The American War of Independence had been brought to a successful issue with the aid of France. In the treaty of alliance which had been signed in 1781 had been agreed that neither France nor the United States should, without the consent of the other, make peace with Great Britain. More than that, in 1781, partly out of gratitude but largely as a result of clever manipulation of factions in Congress by the French Minister in Philadelphia, the Chevalier de la Luzerne, the American peace commissioners had been instructed "to make the most candid and confidential communications upon all subjects to the ministers of our generous ally, the King of France; to undertake nothing in the negotiations for peace or truce without their knowledge and concurrence; and ultimately to govern yourselves by their advice and opinion."* If France had been actuated only by unselfish motives in supporting the colonies in their revolt against Great Britain, these instructions might have been acceptable and even advisable. But such was not the case. France was working not so much with philanthropic purposes or for sentimental reasons as for the restoration to her former position of supremacy in Europe. Revenge upon England was only a part of a larger plan of national aggrandizement.

* "Secret Journals of Congress." June 15, 1781.

The treaty with France in 1778 had declared that war should be continued until the independence of the United States had been established, and it appeared as if that were the main purpose of the alliance. For her own good reasons France had dragged Spain into the struggle. Spain, of course, fought to cripple Great Britain and not to help the United States. In return for this support France was pledged to assist Spain in obtaining certain additions to her territory. In so far as these additions related to North America, the interests of Spain and those of the United States were far from being identical; in fact, they were frequently in direct opposition. Spain was already in possession of Louisiana and, by prompt action on her entry into the war in 1780, she had succeeded in getting control of eastern Louisiana and of practically all the Floridas except St. Augustine. To consolidate these holdings and round out her American empire, Spain would have liked to obtain the title to all the land between the Alleghany Mountains and the Mississippi. Failing this, however, she seemed to prefer that the region northwest of the Ohio River should belong to the British rather than to the United States.

Under these circumstances it was fortunate for the United States that the American Peace Commissioners were broad-minded enough to appreciate the situation and to act on their own responsibility. Benjamin Franklin, although he was not the first to be appointed, was generally considered to be the chief of the Commission by reason of his age, experience, and reputation. Over seventy-five years old, he was more universally known and admired than probably any man of his time. This many-sided American—printer, almanac maker, writer, scientist, and philosopher—by the variety of his abilities as well as by the charm of his manner seemed to have found his real mission in the diplomatic field, where he could serve his country and at the same time, with credit to himself, preach his own doctrines.

When Franklin was sent to Europe at the outbreak of the Revolution, it was as if destiny had intended him for that particular task. His achievements had already attracted attention; in his fur cap and eccentric dress "he fulfilled admirably the Parisian ideal of the forest philosopher"; and with his facility in conversation, as well as by the attractiveness of his personality, he won both young and old. But, with his undoubted zeal for liberty and his unquestioned love of country, Franklin never departed from the Quaker principles he affected and always tried to avoid a fight. In these efforts, owing to his shrewdness and his willingness to compromise, he was generally successful.

John Adams, being then the American representative at The Hague, was the first Commissioner to be appointed. Indeed, when he was first named, in 1779, he was to be sole commissioner to negotiate peace; and it was the influential French Minister to the United States who was responsible for others being added to the commission. Adams was a sturdy New Englander of British stock and of a distinctly English type—medium height, a stout figure, and a ruddy face. No one questioned his honesty, his straightforwardness, or his lack of tact. Being a man of strong mind, of wide reading and even great learning, and having serene confidence in the purity of his motives as well as in the soundness of his judgment, Adams was little inclined to surrender his own views, and was ready to carry out his ideas against every obstacle. By nature as well as by training he seems to have been incapable of understanding the French; he was suspicious of them and he disapproved of Franklin's popularity even as he did of his personality.

Five Commissioners in all were named, but Thomas Jefferson and Henry Laurens did not take part in the negotiations, so that the only other active member was John Jay, then thirty-seven years old and already a man of prominence in his own country. Of French Huguenot stock and type, he was tall and slender, with somewhat of a scholar's stoop, and was usually dressed in black. His manners were gentle and unassuming, but his face, with its penetrating black eyes, its aquiline nose and pointed chin, revealed a proud and sensitive disposition. He had been sent to the court of Spain in 1780, and there he had learned enough to arouse his suspicious, if nothing more, of Spain's designs as well as of the French intention to support them.

In the spring of 1782 Adams felt obliged to remain at The Hague in order to complete the negotiations already successfully begun for a commercial treaty with the Netherlands. Franklin, thus the only Commissioner on the ground in Paris, began informal negotiations alone but sent an urgent call to Jay in Spain, who was convinced of the fruitlessness of his mission there and promptly responded. Jay's experience in Spain and his knowledge of Spanish hopes had led him to believe that the French were not especially concerned about American interests but were in fact willing to sacrifice them if necessary to placate Spain. He accordingly insisted that the American Commissioners should disregard their instructions and, without the knowledge of France, should deal directly with Great Britain. In this contention he was supported by Adams when he arrived, but it was hard to persuade Franklin to accept this point of view, for he was unwilling to believe anything so unworthy of his admiring and admired French. Nevertheless, with his cautious shrewdness, he finally yielded so far as to agree to see what might come out of direct negotiations.

The rest was relatively easy. Of course there were difficulties and such sharp differences of opinion that, even after long negotiation, some matters had to be compromised. Some problems, too, were found insoluble and were finally left without a settlement. But such difficulties as did exist were slight in comparison with the previous hopelessness of reconciling American and Spanish ambitions, especially when the latter were supported by France. On the one hand, the Americans were the proteges of the French and were expected to give way before the claims of their patron's friends to an extent which threatened to limit seriously their growth and development. On the other hand, they were the younger sons of England, uncivilized by their wilderness life, ungrateful and rebellious, but still to be treated by England as children of the blood. In the all-important question of extent of territory, where Spain and France would have limited the United States to the east of the Alleghany Mountains, Great Britain was persuaded without great difficulty, having once conceded independence to the United States, to yield the boundaries which she herself had formerly claimed—from the Atlantic Ocean on the east to the Mississippi River on the west, and from Canada on the north to the southern boundary of Georgia. Unfortunately the northern line, through ignorance and carelessness rather than through malice, was left uncertain at various points and became the subject of almost continuous controversy until the last bit of it was settled in 1911.*

* See Lord Bryce's Introduction (p. xxiv) to W. A. Dunning. "The British Empire and the United States" (1914).

The fisheries of the North Atlantic, for which Newfoundland served as the chief entrepot, had been one of the great assets of North America from the time of its discovery. They had been one of the chief prizes at stake in the struggle between the French and the British for the possession of the continent, and they had been of so much value that a British statute of 1775 which cut off the New England fisheries was regarded, even after the "intolerable acts" of the previous year, as the height of punishment for New England. Many Englishmen would have been glad to see the Americans excluded from these fisheries, but John Adams, when he arrived from The Hague, displayed an appreciation of New England interests and the quality of his temper as well by flatly refusing to agree to any treaty which did not allow full fishing privileges. The British accordingly yielded and the Americans were granted fishing rights as "heretofore" enjoyed. The right of navigation of the Mississippi River, it was declared in the treaty, should "forever remain free and open" to both parties; but here Great Britain was simply passing on to the United States a formal right which she had received from France and was retaining for herself a similar right which might sometime prove of use, for as long as Spain held both banks at the mouth of the Mississippi River, the right was of little practical value.

Two subjects involving the greatest difficulty of arrangement were the compensation of the Loyalists and the settlement of commercial indebtedness. The latter was really a question of the payment of British creditors by American debtors, for there was little on the other side of the balance sheet, and it seems as if the frugal Franklin would have preferred to make no concessions and would have allowed creditors to take their own chances of getting paid. But the matter appeared to Adams in a different light—perhaps his New England conscience was aroused—and in this point of view he was supported by Jay. It was therefore finally agreed "that creditors on either side shall meet with no lawful impediment to the recovery of the full value in sterling money, of all bona fide debts heretofore contracted." However just this provision may have been, its incorporation in the terms of the treaty was a mistake on the part of the Commissioners, because the Government of the United States had no power to give effect to such an arrangement, so that the provision had no more value than an emphatic expression of opinion. Accordingly, when some of the States later disregarded this part of the treaty, the British had an excuse for refusing to carry out certain of their own obligations.

The historian of the Virginia Federal Convention of 1788, H. B. Grigsby, relates an amusing incident growing out of the controversy over the payment of debts to creditors in England:

"A Scotchman, John Warden, a prominent lawyer and good classical scholar, but suspected rightly of Tory leanings during the Revolution, learning of the large minority against the repeal of laws in conflict with the treaty of 1783 (i. e., especially the laws as to the collection of debts by foreigners) caustically remarked that some of the members of the House had voted against paying for the coats on their backs. The story goes that he was summoned before the House in full session, and was compelled to beg their pardon on his knees; but as he rose, pretending to brush the dust from his knees, he pointed to the House and said audibly, with evident double meaning, 'Upon my word, a dommed dirty house it is indeed.' The Journal of the House, however, shows that the honor of the delegates was satisfied by a written assurance from Mr. Warden that he meant in no way to affront the dignity of the House or to insult any of its members."

The other question, that of compensating the Loyalists for the loss of their property, was not so simple a matter, for the whole story of the Revolution was involved. There is a tendency among many scholars of the present day to regard the policy of the British toward their North American colonies as possibly unwise and blundering but as being entirely in accordance with the legal and constitutional rights of the mother country, and to believe that the Americans, while they may have been practically and therefore morally justified in asserting their independence, were still technically and legally in the wrong. It is immaterial whether or not that point of view is accepted, for its mere recognition is sufficient to explain the existence of a large number of Americans who were steadfast in their support of the British side of the controversy. Indeed, it has been estimated that as large a proportion as one-third of the population remained loyal to the Crown. Numbers must remain more or less uncertain, but probably the majority of the people in the United States, whatever their feelings may have been, tried to remain neutral or at least to appear so; and it is undoubtedly true that the Revolution was accomplished by an aggressive minority and that perhaps as great a number were actively loyal to Great Britain.

These Loyalists comprised at least two groups. One of these was a wealthy, property-owning class, representing the best social element in the colonies, extremely conservative, believing in privilege and fearing the rise of democracy. The other was composed of the royal officeholders, which included some of the better families, but was more largely made up of the lower class of political and social hangers-on, who had been rewarded with these positions for political debts incurred in England. The opposition of both groups to the Revolution was inevitable and easily to be understood, but it was also natural that the Revolutionists should incline to hold the Loyalists, without distinction, largely responsible for British pre-Revolutionary policy, asserting that they misinformed the Government as to conditions and sentiment in America, partly through stupidity and partly through selfish interest. It was therefore perfectly comprehensible that the feeling should be bitter against them in the United States, especially as they had given efficient aid to the British during the war. In various States they were subjected to personal violence at the hands of indignant "patriots," many being forced to flee from their homes, while their property was destroyed or confiscated, and frequently these acts were legalized by statute.

The historian of the Loyalists of Massachusetts, James H. Stark, must not be expected to understate the case, but when he is describing, especially in New England, the reign of terror which was established to suppress these people, he writes:

"Loyalists were tarred and feathered and carried on rails, gagged and bound for days at a time; stoned, fastened in a room with a fire and the chimney stopped on top; advertised as public enemies, so that they would be cut off from all dealings with their neighbors; they had bullets shot into their bedrooms, their horses poisoned or mutilated; money or valuable plate extorted from them to save them from violence, and on pretence of taking security for their good behavior; their houses and ships burned; they were compelled to pay the guards who watched them in their houses, and when carted about for the mob to stare at and abuse, they were compelled to pay something at every town."

There is little doubt also that the confiscation of property and the expulsion of the owners from the community were helped on by people who were debtors to the Loyalists and in this way saw a chance of escaping from the payment of their rightful obligations. The "Act for confiscating the estates of certain persons commonly called absentees" may have been a measure of self-defense for the State but it was passed by the votes of those who undoubtedly profited by its provisions.

Those who had stood loyally by the Crown must in turn be looked out for by the British Government, especially when the claims of justice were reinforced by the important consideration that many of those with property and financial interests in America were relatives of influential persons in England. The immediate necessity during the war had been partially met by assisting thousands to go to Canada—where their descendants today form an important element in the population and are proud of being United Empire Loyalists—while pensions and gifts were supplied to others. Now that the war was over the British were determined that Americans should make good to the Loyalists for all that they had suffered, and His Majesty's Commissioners were hopeful at least of obtaining a proviso similar to the one relating to the collection of debts. John Adams, however, expressed the prevailing American idea when he said that "paying debts and compensating Tories" were two very different things, and Jay asserted that there were certain of these refugees whom Americans never would forgive.

But this was the one thing needed to complete the negotiations for peace, and the British arguments on the injustice and irregularity of the treatment accorded to the Loyalists were so strong that the American Commissioners were finally driven to the excuse that the Government of the Confederation had no power over the individual States by whom the necessary action must be taken. Finally, in a spirit of mutual concession at the end of the negotiations, the Americans agreed that Congress should "recommend to the legislatures of the respective states to provide for the restitution" of properties which had been confiscated "belonging to real British subjects," and "that persons of any other description" might return to the United States for a period of twelve months and be "unmolested in their endeavours to obtain the restitution."

With this show of yielding on the part of the American Commissioners it was possible to conclude the terms of peace, and the preliminary treaty was drawn accordingly and agreed to on November 30, 1782. Franklin had been of such great service during all the negotiations, smoothing down ruffed feelings by his suavity and tact and presenting difficult subjects in a way that made action possible, that to him was accorded the unpleasant task of communicating what had been accomplished to Vergennes, the French Minister, and of requesting at the same time "a fresh loan of twenty million francs." Franklin, of course, presented his case with much "delicacy and kindliness of manner" and with a fair degree of success. "Vergennes thought that the signing of the articles was premature, but he made no inconvenient remonstrances, ill procured six millions of the twenty."* On September 3, 1783, the definite treaty of peace was signed in due time it was ratified by the British Parliament as well as by the American Congress. The new state, duly accredited, thus took its place in the family of nations; but it was a very humble place that was first assigned to the United States of America.

* Channing, "History of the United States," vol. III, p. 368.



CHAPTER II. TRADE AND INDUSTRY

Though the word revolution implies a violent break with the past, there was nothing in the Revolution that transformed the essential character or the characteristics of the American people. The Revolution severed the ties which bound the colonies to Great Britain; it created some new activities; some soldiers were diverted from their former trades and occupation; but, as the proportion of the population engaged in the war was relatively small and the area of country affected for any length of time was comparatively slight, it is safe to say that in general the mass of the people remained about the same after the war as before. The professional man was found in his same calling; the artisan returned to his tools, if he had ever laid them down; the shopkeeper resumed his business, if it had been interrupted; the merchant went back to his trading; and the farmer before the Revolution remained a farmer afterward.

The country as a whole was in relatively good condition and the people were reasonably prosperous; at least, there was no general distress or poverty. Suffering had existed in the regions ravaged by war, but no section had suffered unduly or had had to bear the burden of war during the entire period of fighting. American products had been in demand, especially in the West India Islands, and an illicit trade with the enemy had sprung up, so that even during the war shippers were able to dispose of their commodities at good prices. The Americans are commonly said to have been an agricultural people, but it would be more correct to say that the great majority of the people were dependent upon extractive industries, which would include lumbering, fishing, and even the fur trade, as well as the ordinary agricultural pursuits. Save for a few industries, of which shipbuilding was one of the most important, there was relatively little manufacturing apart from the household crafts. These household industries had increased during the war, but as it was with the individual so it was with the whole country; the general course of industrial activity was much the same as it had been before the war.

A fundamental fact is to be observed in the economy of the young nation: the people were raising far more tobacco and grain and were extracting far more of other products than they could possibly use themselves; for the surplus they must find markets. They had; as well, to rely upon the outside world for a great part of their manufactured goods, especially for those of the higher grade. In other words, from the economic point of view, the United States remained in the former colonial stage of industrial dependence, which was aggravated rather than alleviated by the separation from Great Britain. During the colonial period, Americans had carried on a large amount of this external trade by means of their own vessels. The British Navigation Acts required the transportation of goods in British vessels, manned by crews of British sailors, and specified certain commodities which could be shipped to Great Britain only. They also required that much of the European trade should pass by way of England. But colonial vessels and colonial sailors came under the designation of "British," and no small part of the prosperity of New England, and of the middle colonies as well, had been due to the carrying trade. It would seem therefore as if a primary need of the American people immediately after the Revolution was to get access to their old markets and to carry the goods as much as possible in their own vessels.

In some directions they were successful. One of the products in greatest demand was fish. The fishing industry had been almost annihilated by the war, but with the establishment of peace the New England fisheries began to recover. They were in competition with the fishermen of France and England who were aided by large bounties, yet the superior geographical advantages which the American fishermen possessed enabled them to maintain and expand their business, and the rehabilitation of the fishing fleet was an important feature of their programme. In other directions they were not so successful. The British still believed in their colonial system and applied its principles without regard to the interests of the United States. Such American products as they wanted they allowed to be carried to British markets, but in British vessels. Certain commodities, the production of which they wished to encourage within their own dominions, they added to the prohibited list. Americans cried out indignantly that this was an attempt on the part of the British to punish their former colonies for their temerity in revolting. The British Government may well have derived some satisfaction from the fact that certain restrictions bore heavily upon New England, as John Adams complained; but it would seem to be much nearer the truth to say that in a truly characteristic way the British were phlegmatically attending to their own interests and calmly ignoring the United States, and that there was little malice in their policy.

European nations had regarded American trade as a profitable field of enterprise and as probably responsible for much of Great Britain's prosperity. It was therefore a relatively easy matter for the United States to enter into commercial treaties with foreign countries. These treaties, however, were not fruitful of any great result; for, "with unimportant exceptions, they left still in force the high import duties and prohibitions that marked the European tariffs of the time, as well as many features of the old colonial system. They were designed to legalize commerce rather than to encourage it."* Still, for a year or more after the war the demand for American products was great enough to satisfy almost everybody. But in 1784 France and Spain closed their colonial ports and thus excluded the shipping of the United States. This proved to be so disastrous for their colonies that the French Government soon was forced to relax its restrictions. The British also made some concessions, and where their orders were not modified they were evaded. And so, in the course of a few years, the West India trade recovered.

* Clive Day, "Encyclopedia of American Government," Vol. I, p. 340.

More astonishing to the men of that time than it is to us was the fact that American foreign trade fell under British commercial control again. Whether it was that British merchants were accustomed to American ways of doing things and knew American business conditions; whether other countries found the commerce not as profitable as they had expected, as certainly was the case with France; whether "American merchants and sea captains found themselves under disadvantages due to the absence of treaty protection which they had enjoyed as English subjects";* or whether it was the necessity of trading on British capital—whatever the cause may have been—within a comparatively few years a large part of American trade was in British hands as it had been before the Revolution. American trade with Europe was carried on through English merchants very much as the Navigation Acts had prescribed.

* C. R. Fish, "American Diplomacy," pp. 56-57.

From the very first settlement of the American continent the colonists had exhibited one of the earliest and most lasting characteristics of the American people adaptability. The Americans now proceeded to manifest that trait anew, not only by adjusting themselves to renewed commercial dependence upon Great Britain, but by seeking new avenues of trade. A striking illustration of this is to be found in the development of trade with the Far East. Captain Cook's voyage around the world (1768-1771), an account of which was first published in London in 1773, attracted a great deal of attention in America; an edition of the New Voyage was issued in New York in 1774. No sooner was the Revolution over than there began that romantic trade with China and the northwest coast of America, which made the fortunes of some families of Salem and Boston and Philadelphia. This commerce added to the prosperity of the country, but above all it stimulated the imagination of Americans. In the same way another outlet was found in trade with Russia by way of the Baltic.

The foreign trade of the United States after the Revolution thus passed through certain well-marked phases. First there was a short period of prosperity, owing to an unusual demand for American products; this was followed by a longer period of depression; and then came a gradual recovery through acceptance of the new conditions and adjustment to them.

A similar cycle may be traced in the domestic or internal trade. In early days intercolonial commerce had been carried on mostly by water, and when war interfered commerce almost ceased for want of roads. The loss of ocean highways, however, stimulated road building and led to what might be regarded as the first "good-roads movement" of the new nation, except that to our eyes it would be a misuse of the word to call any of those roads good. But anything which would improve the means of transportation took on a patriotic tinge, and the building of roads and the cutting of canals were agitated until turnpike and canal companies became a favorite form of investment; and in a few years the interstate land trade had grown to considerable importance. But in the meantime, water transportation was the main reliance, and with the end of the war the coastwise trade had been promptly resumed. For a time it prospered; but the States, affected by the general economic conditions and by jealousy, tried to interfere with and divert the trade of others to their own advantage. This was done by imposing fees and charges and duties, not merely upon goods and vessels from abroad but upon those of their fellow States. James Madison described the situation in the words so often quoted: "Some of the States,... having no convenient ports for foreign commerce, were subject to be taxed by their neighbors, thro whose ports, their commerce was carryed on. New Jersey, placed between Phila. & N. York, was likened to a Cask tapped at both ends: and N. Carolina between Virga. & S. Carolina to a patient bleeding at both Arms."*

* "Records of the Federal Convention," vol. III, p. 542.

The business depression which very naturally followed the short revival of trade was so serious in its financial consequences that it has even been referred to as the "Panic of 1785." The United States afforded a good market for imported articles in 1788 and 1784, all the better because of the supply of gold and silver which had been sent into the country by England and France to maintain their armies and fleets and which had remained in the United States. But this influx of imported goods was one of the chief factors in causing the depression of 1785, as it brought ruin to many of those domestic industries which had sprung up in the days of nonintercourse or which had been stimulated by the artificial protection of the war.

To make matters worse, the currency was in a confused condition. "In 1784 the entire coin of the land, except coppers, was the product of foreign mints. English guineas, crowns, shillings and pence were still paid over the counters of shops and taverns, and with them were mingled many French and Spanish and some German coins.... The value of the gold pieces expressed in dollars was pretty much the same the country over. But the dollar and the silver pieces regarded as fractions of a dollar had no less than five different values."* The importation of foreign goods was fast draining the hard money out of the country. In an effort to relieve the situation but with the result of making it much worse, several of the States began to issue paper money; and this was in addition to the enormous quantities of paper which had been printed during the Revolution and which was now worth but a small fraction of its face value.

* McMaster, "History of the People of the United States", vol. I, pp. 190-191.

The expanding currency and consequent depreciation in the value of money had immediately resulted in a corresponding rise of prices, which for a while the States attempted to control. But in 1778 Congress threw up its hands in despair and voted that "all limitations of prices of gold and silver be taken off," although the States for some time longer continued to endeavor to regulate prices by legislation.* The fluctuating value of the currency increased the opportunities for speculation which war conditions invariably offer, and "immense fortunes were suddenly accumulated." A new financial group rose into prominence composed largely of those who were not accustomed to the use of money and who were consequently inclined to spend it recklessly and extravagantly.

* W. E. H. Lecky, "The American Revolution," New York, 1898, pp. 288-294.

Many contemporaries comment upon these things, of whom Brissot de Warville may be taken as an example, although he did not visit the United States until 1788:

"The inhabitants... prefer the splendor of wealth and the show of enjoyment to the simplicity of manners and the pure pleasures which result from it. If there is a town on the American continent where the English luxury displays its follies, it is New York. You will find here the English fashions: in the dress of the women you will see the most brilliant silks, gauzes, hats, and borrowed hair; equipages are rare, but they are elegant; the men have more simplicity in their dress; they disdain gewgaws, but they take their revenge in the luxury of the table; luxury forms already a class of men very dangerous to society; I mean bachelors; the expense of women causes matrimony to be dreaded by men. Tea forms, as in England, the basis of parties of pleasure; many things are dearer here than in France; a hairdresser asks twenty shilling a month; washing costs four shillings a dozen."*

*Quoted by Henry Tuckerman, "America and her Commentators," 1886.

An American writer of a later date, looking back upon his earlier years, was impressed by this same extravagance, and his testimony may well be used to strengthen the impression which it is the purpose of the present narrative to convey:

"The French and British armies circulated immense sums of money in gold and silver coin, which had the effect of driving out of circulation the wretched paper currency which had till then prevailed. Immense quantities of British and French goods were soon imported: our people imbibed a taste for foreign fashions and luxury; and in the course of two or three years, from the close of the war, such an entire change had taken place in the habits and manners of our inhabitants, that it almost appeared as if we had suddenly become a different nation. The staid and sober habits of our ancestors, with their plain home-manufactured clothing, were suddenly laid aside, and European goods of fine quality adopted in their stead. Fine rues, powdered heads, silks and scarlets, decorated the men; while the most costly silks, satins, chintzes, calicoes, muslins, etc., etc., decorated our females. Nor was their diet less expensive; for superb plate, foreign spirits, wines, etc., etc., sparkled on the sideboards of many farmers. The natural result of this change of the habits and customs of the people—this aping of European manners and morals, was to suddenly drain our country of its circulating specie; and as a necessary consequence, the people ran in debt, times became difficult, and money hard to raise."*

*Samuel Kercheval, "History of the Valley of Virginia," 1833, pp. 199-200.

The situation was serious, and yet it was not as dangerous or even as critical as it has generally been represented, because the fundamental bases of American prosperity were untouched. The way by which Americans could meet the emergency and recover from the hard times was fairly evident first to economize, and then to find new outlets for their industrial energies. But the process of adjustment was slow and painful. There were not a few persons in the United States who were even disposed to regret that Americans were not safely under British protection and prospering with Great Britain, instead of suffering in political isolation.



CHAPTER III. THE CONFEDERATION

When peace came in 1783 there were in the United States approximately three million people, who were spread over the whole Atlantic coast from Maine to Georgia and back into the interior as far as the Alleghany Mountains; and a relatively small number of settlers had crossed the mountain barrier. About twenty per cent of the population, or some six hundred thousand, were negro slaves. There was also a large alien element of foreign birth or descent, poor when they arrived in America, and, although they had been able to raise themselves to a position of comparative comfort, life among them was still crude and rough. Many of the people were poorly educated and lacking in cultivation and refinement and in a knowledge of the usages of good society. Not only were they looked down upon by other nations of the world; there was within the United States itself a relatively small upper class inclined to regard the mass of the people as of an inferior order.

Thus, while forces were at work favorable to democracy, the gentry remained in control of affairs after the Revolution, although their numbers were reduced by the emigration of the Loyalists and their power was lessened. The explanation of this aristocratic control may be found in the fact that the generation of the Revolution had been accustomed to monarchy and to an upper class and that the people were wont to take their ideas and to accept suggestions from their betters without question or murmur. This deferential attitude is attested by the indifference of citizens to the right of voting. In our own day, before the great extension of woman suffrage, the number of persons voting approximated twenty per cent of the population, but after the Revolution less than five per cent of the white population voted. There were many limitations upon the exercise of the suffrage, but the small number of voters was only partially due to these restrictions, for in later years, without any radical change in suffrage qualifications, the proportion of citizens who voted steadily increased.

The fact is that many of the people did not care to vote. Why should they, when they were only registering the will or the wishes of their superiors? But among the relatively small number who constituted the governing class there was a high standard of intelligence. Popular magazines were unheard of and newspapers were infrequent, so that men depended largely upon correspondence and personal intercourse for the interchange of ideas. There was time, however, for careful reading of the few available books; there was time for thought, for writing, for discussion, and for social intercourse. It hardly seems too much to say, therefore, that there was seldom, if ever, a people-certainly never a people scattered over so wide a territory-who knew so much about government as did this controlling element of the people of the United States.

The practical character, as well as the political genius, of the Americans was never shown to better advantage than at the outbreak of the Revolution, when the quarrel with the mother country was manifesting itself in the conflict between the Governors, and other appointed agents of the Crown, and the popularly elected houses of the colonial legislatures. When the Crown resorted to dissolving the legislatures, the revolting colonists kept up and observed the forms of government. When the legislature was prevented from meeting, the members would come together and call themselves a congress or a convention, and, instead of adopting laws or orders, would issue what were really nothing more than recommendations, but which they expected would be obeyed by their supporters. To enforce these recommendations extra-legal committees, generally backed by public opinion and sometimes concretely supported by an organized "mob," would meet in towns and counties and would be often effectively centralized where the opponents of the British policy were in control.

In several of the colonies the want of orderly government became so serious that, in 1775, the Continental Congress advised them to form temporary governments until the trouble with Great Britain had been settled. When independence was declared Congress recommended to all the States that they should adopt governments of their own. In accordance with that recommendation, in the course of a very few years each State established an independent government and adopted a written constitution. It was a time when men believed in the social contract or the "compact theory of the state," that states originated through agreement, as the case might be, between king and nobles, between king and people, or among the people themselves. In support of this doctrine no less an authority than the Bible was often quoted, such a passage for example as II Samuel v, 3: "So all the elders of Israel came to the King to Hebron; and King David made a covenant with them in Hebron before the Lord; and they anointed David King over Israel." As a philosophical speculation to explain why people were governed or consented to be governed, this theory went back at least to the Greeks, and doubtless much earlier; and, though of some significance in medieval thought, it became of greater importance in British political philosophy, especially through the works of Thomas Hobbes and John Locke. A very practical application of the compact theory was made in the English Revolution of 1688, when in order to avoid the embarrassment of deposing the king, the convention of the Parliament adopted the resolution: "That King James the Second, having endeavored to subvert the Constitution of the Kingdom, by breaking the original Contract between King and People, and having, by the advice of Jesuits, and other wicked persons, violated the fundamental Laws, and withdrawn himself out of this Kingdom, has abdicated the Government, and that the throne is hereby vacant." These theories were developed by Jean Jacques Rousseau in his "Contrat Social"—a book so attractively written that it eclipsed all other works upon the subject and resulted in his being regarded as the author of the doctrine—and through him they spread all over Europe.

Conditions in America did more than lend color to pale speculation; they seemed to take this hypothesis out of the realm of theory and to give it practical application. What happened when men went into the wilderness to live? The Pilgrim Fathers on board the Mayflower entered into an agreement which was signed by the heads of families who took part in the enterprise: "We, whose names are underwritten... Do by these presents, solemnly and mutually, in the Presence of God and one another, covenant and combine ourselves together into a civil Body Politick."

Other colonies, especially in New England, with this example before them of a social contract entered into similar compacts or "plantation covenants," as they were called. But the colonists were also accustomed to having written charters granted which continued for a time at least to mark the extent of governmental powers. Through this intermingling of theory and practice it was the most natural thing in the world, when Americans came to form their new State Governments, that they should provide written instruments framed by their own representatives, which not only bound them to be governed in this way but also placed limitations upon the governing bodies. As the first great series of written constitutions, these frames of government attracted wide attention. Congress printed a set for general distribution, and numerous editions were circulated both at home and abroad.

The constitutions were brief documents, varying from one thousand to twelve thousand words in length, which established the framework of the governmental machinery. Most of them, before proceeding to practical working details, enunciated a series of general principles upon the subject of government and political morality in what were called declarations or bills of rights. The character of these declarations may be gathered from the following excerpts:

"That all men are by nature equally free and independent, and have certain inherent rights,... the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety. That no man, or set of men, are entitled to exclusive or separate emoluments or privileges from the community, but in consideration of public services.

"The body politic is formed by a voluntary association of individuals; it is a social compact by which the whole people covenants with each citizen and each citizen with the whole people that all shall be governed by certain laws for the common good.

"That all power of suspending laws, or the execution of laws, by any authority, without consent of the representatives of the people, is injurious to their rights, and ought not to be exercised.

"That general warrants,... are grievous and oppressive, and ought not to be granted.

"All penalties ought to be proportioned to the nature of the offence.

"That sanguinary laws ought to be avoided, as far as is consistent with the safety of the State; and no law, to inflict cruel and unusual pains and penalties, ought to be made in any case, or at any time hereafter.

"No magistrate or court of law shall demand excessive bail or sureties, impose excessive fines....

"Every individual has a natural and unalienable right to worship God according to the dictates of his own conscience, and reason; ...

"That the freedom of the press is one of the great bulwarks of liberty, and can never be restrained but by despotic governments."

It will be perceived at once that these are but variations of the English Declaration of Rights of 1689, which indeed was consciously followed as a model; and yet there is a world-wide difference between the English model and these American copies. The earlier document enunciated the rights of English subjects, the recent infringement of which made it desirable that they should be reasserted in convincing form. The American documents asserted rights which the colonists generally had enjoyed and which they declared to be "governing principles for all peoples in all future times."

But the greater significance of these State Constitutions is to be found in their quality as working instruments of government. There was indeed little difference between the old colonial and the new State Governments. The inhabitants of each of the Thirteen States had been accustomed to a large measure of self-government, and when they took matters into their own hands they were not disposed to make any radical changes in the forms to which they had become accustomed. Accordingly the State Governments that were adopted simply continued a framework of government almost identical with that of colonial times. To be sure, the Governor and other appointed officials were now elected either by the people or the legislature, and so were ultimately responsible to the electors instead of to the Crown; and other changes were made which in the long run might prove of far-reaching and even of vital significance; and yet the machinery of government seemed the same as that to which the people were already accustomed. The average man was conscious of no difference at all in the working of the Government under the new order. In fact, in Connecticut and Rhode Island, the most democratic of all the colonies, where the people had been privileged to elect their own governors, as well as legislatures, no change whatever was necessary and the old charters were continued as State Constitutions down to 1818 and 1842, respectively.

To one who has been accustomed to believe that the separation from a monarchical government meant the establishment of democracy, a reading of these first State Constitutions is likely to cause a rude shock. A shrewd English observer, traveling a generation later in the United States, went to the root of the whole matter in remarking of the Americans that, "When their independence was achieved their mental condition was not instantly changed. Their deference for rank and for judicial and legislative authority continued nearly unimpaired."* They might declare that "all men are created equal," and bills of rights might assert that government rested upon the consent of the governed; but these constitutions carefully provided that such consent should come from property owners, and, in many of the States, from religious believers and even followers of the Christian faith. "The man of small means might vote, but none save well-to-do Christians could legislate, and in many states none but a rich Christian could be a governor."** In South Carolina, for example, a freehold of 10,000 pounds currency was required of the Governor, Lieutenant Governor, and members of A he Council; 2,000 pounds of the members of the Senate; and, while every elector was eligible to the House of Representatives, he had to acknowledge the being of a God and to believe in a future state of rewards and punishments, as well as to hold "a freehold at least of fifty acres of land, or a town lot."

* George Combe, "Tour of the United States," vol. I, p. 205.

** McMaster, "Acquisition of Industrial, Popular, and Political Rights of Man in America," p. 20.

It was government by a property-owning class, but in comparison with other countries this class represented a fairly large and increasing proportion of the population. In America the opportunity of becoming a property-owner was open to every one, or, as that phrase would then have been understood, to most white men. This system of class control is illustrated by the fact that, with the exception of Massachusetts, the new State Constitutions were never submitted to the people for approval.

The democratic sympathizer of today is inclined to point to those first State Governments as a continuance of the old order. But to the conservative of that time it seemed as if radical and revolutionary changes were taking place. The bills of rights declared, "That no men, or set of men, are entitled to exclusive or separate emoluments or privileges from the community, but in consideration of public services." Property qualifications and other restrictions on officeholding and the exercise of the suffrage were lessened. Four States declared in their constitutions against the entailment of estates, and primogeniture was abolished in aristocratic Virginia. There was a fairly complete abolition of all vestiges of feudal tenure in the holding of land, so that it may be said that in this period full ownership of property was established. The further separation of church and state was also carried out.

Certainly leveling influences were at work, and the people as a whole had moved one step farther in the direction of equality and democracy, and it was well that the Revolution was not any more radical and revolutionary than it was. The change was gradual and therefore more lasting. One finds readily enough contemporary statements to the effect that, "Although there are no nobles in America, there is a class of men denominated 'gentlemen,' who, by reason of their wealth, their talents, their education, their families, or the offices they hold, aspire to a preeminence," but, the same observer adds, this is something which "the people refuse to grant them." Another contemporary contributes the observation that there was not so much respect paid to gentlemen of rank as there should be, and that the lower orders of people behave as if they were on a footing of equality with them.

Whether the State Constitutions are to be regarded as property-conserving, aristocratic instruments, or as progressive documents, depends upon the point of view. And so it is with the spirit of union or of nationality in the United States. One student emphasizes the fact of there being "thirteen independent republics differing... widely in climate, in soil, in occupation, in everything which makes up the social and economic life of the people"; while another sees "the United States a nation." There is something to be said for both sides, and doubtless the truth lies between them, for there were forces making for disintegration as well as for unification. To the student of the present day, however, the latter seem to have been the stronger and more important, although the possibility was never absent that the thirteen States would go their separate ways.

There are few things so potent as a common danger to bring discordant elements into working harmony. Several times in the century and a half of their existence, when the colonies found themselves threatened by their enemies, they had united, or at least made an effort to unite, for mutual help. The New England Confederation of 1643 was organized primarily for protection against the Indians and incidentally against the Dutch and French. Whenever trouble threatened with any of the European powers or with the Indians—and that was frequently—a plan would be broached for getting the colonies to combine their efforts, sometimes for the immediate necessity and sometimes for a broader purpose. The best known of these plans was that presented to the Albany Congress of 1754, which had been called to make effective preparation for the inevitable struggle with the French and Indians. The beginning of the troubles which culminated in the final breach with Great Britain had quickly brought united action in the form of the Stamp Act Congress of 1765, in the Committees of Correspondence, and then in the Continental Congress.

It was not merely that the leaven of the Revolution was already working to bring about the freer interchange of ideas; instinct and experience led the colonies to united action. The very day that the Continental Congress appointed a committee to frame a declaration of independence, another committee was ordered to prepare articles of union. A month later, as soon as the Declaration of Independence had been adopted, this second committee, of which John Dickinson of Pennsylvania was chairman, presented to Congress a report in the form of Articles of Confederation. Although the outbreak of fighting made some sort of united action imperative, this plan of union was subjected to debate intermittently for over sixteen months and even after being adopted by Congress, toward the end of 1777, it was not ratified by the States until March, 1781, when the war was already drawing to a close. The exigencies of the hour forced Congress, without any authorization, to act as if it had been duly empowered and in general to proceed as if the Confederation had been formed.

Benjamin Franklin was an enthusiast for union. It was he who had submitted the plan of union to the Albany Congress in 1754, which with modifications was recommended by that congress for adoption. It provided for a Grand Council of representatives chosen by the legislature of each colony, the members to be proportioned to the contribution of that colony to the American military service. In matters concerning the colonies as a whole, especially in Indian affairs, the Grand Council was to be given extensive powers of legislation and taxation. The executive was to be a President or Governor-General, appointed and paid by the Crown, with the right of nominating all military officers, and with a veto upon all acts of the Grand Council. The project was far in advance of the times and ultimately failed of acceptance, but in 1775, with the beginning of the troubles with Great Britain, Franklin took his Albany plan and, after modifying it in accordance with the experience of twenty years, submitted it to the Continental Congress as a new plan of government under which the colonies might unite.

Franklin's plan of 1775 seems to have attracted little attention in America, and possibly it was not generally known; but much was made of it abroad, where it soon became public, probably in the same way that other Franklin papers came out. It seems to have been his practice to make, with his own hand, several copies of such a document, which he would send to his friends with the statement that as the document in question was confidential they might not otherwise see a copy of it. Of course the inevitable happened, and such documents found their war into print to the apparent surprise and dismay of the author. Incidentally this practice caused confusion in later years, because each possessor of such a document would claim that he had the original. Whatever may have been the procedure in this particular case, it is fairly evident that Dickinson's committee took Franklin's plan of 1775 as the starting point of its work, and after revision submitted it to Congress as their report; for some of the most important features of the Articles of Confederation are to be found, sometimes word for word, in Franklin's draft.

This explanation of the origin of the Articles of Confederation is helpful and perhaps essential in understanding the form of government established, because that government in its main features had been devised for an entirely different condition of affairs, when a strong, centralized government would not have been accepted even if it had been wanted. It provided for a "league of friendship," with the primary purpose of considering preparation for action rather than of taking the initiative. Furthermore, the final stages of drafting the Articles of Confederation had occurred at the outbreak of the war, when the people of the various States were showing a disposition to follow readily suggestions that came from those whom they could trust and when they seemed to be willing to submit without compulsion to orders from the same source. These circumstances, quite as much as the inexperience of Congress and the jealousy of the States, account for the inefficient form of government which was devised; and inefficient the Confederation certainly was. The only organ of government was a Congress in which every State was entitled to one vote and was represented by a delegation whose members were appointed annually as the legislature of the State might direct, whose expenses were paid by the State, and who were subject to recall. In other words, it was a council of States whose representatives had little incentive to independence of action.

Extensive powers were granted to this Congress "of determining on peace and war,... of entering into treaties and alliances," of maintaining an army and a navy, of establishing post offices, of coining money, and of making requisitions upon the States for their respective share of expenses "incurred for the common defence or general welfare." But none of these powers could be exercised without the consent of nine States, which was equivalent to requiring a two-thirds vote, and even when such a vote had been obtained and a decision had been reached, there was nothing to compel the individual States to obey beyond the mere declaration in the Articles of Confederation that, "Every State shall abide by the determinations of the United States in Congress assembled."

No executive was provided for except that Congress was authorized "to appoint such other committees and civil officers as may be necessary for managing the general affairs of the United States under their direction." In judicial matters, Congress was to serve as "the last resort on appeal in all disputes and differences" between States; and Congress might establish courts for the trial of piracy and felonies committed on the high seas and for determining appeals in cases of prize capture.

The plan of a government was there but it lacked any driving force. Congress might declare war but the States might decline to participate in it; Congress might enter into treaties but it could not make the States live up to them; Congress might borrow money but it could not be sure of repaying it; and Congress might decide disputes without being able to make the parties accept the decision. The pressure of necessity might keep the States together for a time, yet there is no disguising the fact that the Articles of Confederation formed nothing more than a gentlemen's agreement.



CHAPTER IV. THE NORTHWEST ORDINANCE

The population of the United States was like a body of water that was being steadily enlarged by internal springs and external tributaries. It was augmented both from within and from without, from natural increase and from immigration. It had spread over the whole coast from Maine to Georgia and slowly back into the interior, at first along the lines of river communication and then gradually filling up the spaces between until the larger part of the available land east of the Alleghany Mountains was settled. There the stream was checked as if dammed by the mountain barrier, but the population was trickling through wherever it could find an opening, slowly wearing channels, until finally, when the obstacles were overcome, it broke through with a rush.

Twenty years before the Revolution the expanding population had reached the mountains and was ready to go beyond. The difficulty of crossing the mountains was not insuperable, but the French and Indian War, followed by Pontiac's Conspiracy, made outlying frontier settlement dangerous if not impossible. The arbitrary restriction of western settlement by the Proclamation of 1763 did not stop the more adventurous but did hold back the mass of the population until near the time of the Revolution, when a few bands of settlers moved into Kentucky and Tennessee and rendered important but inconspicuous service in the fighting. But so long as the title to that territory was in doubt no considerable body of people would move into it, and it was not until the Treaty of Peace in 1783 determined that the western country as far as the Mississippi River was to belong to the United States that the dammed-up population broke over the mountains in a veritable flood.

The western country and its people presented no easy problem to the United States: how to hold those people when the pull was strong to draw them from the Union; how to govern citizens so widely separated from the older communities; and, of most immediate importance, how to hold the land itself. It was, indeed, the question of the ownership of the land beyond the mountains which delayed the ratification of the Articles of Confederation. Some of the States, by right of their colonial charter grants "from sea to sea," were claiming large parts of the western region. Other States, whose boundaries were fixed, could put forward no such claims; and, as they were therefore limited in their area of expansion, they were fearful lest in the future they should be overbalanced by those States which might obtain extensive property in the West. It was maintained that the Proclamation of 1763 had changed this western territory into "Crown lands," and as, by the Treaty of Peace, the title had passed to the United States, the non-claimant States had demanded in self-defense that the western land should belong to the country as a whole and not to the individual States. Rhode Island, Maryland, and Delaware were most seriously affected, and they were insistent upon this point. Rhode Island and at length Delaware gave in, so that by February, 1779, Maryland alone held out. In May of that year the instructions of Maryland to her delegates were read in Congress, positively forbidding them to ratify the plan of union unless they should receive definite assurances that the western country would become the common property of the United States. As the consent of all of the Thirteen States was necessary to the establishment of the Confederation, this refusal of Maryland brought matters to a crisis. The question was eagerly discussed, and early in 1780 the deadlock was broken by the action of New York in authorizing her representatives to cede her entire claim in western lands to the United States.

It matters little that the claim of New York was not as good as that of some of the other States, especially that of Virginia. The whole situation was changed. It was no longer necessary for Maryland to defend her position; but the claimant States were compelled to justify themselves before the country for not following New York's example. Congress wisely refrained from any assertion of jurisdiction, and only urgently recommended that States having claims to western lands should cede them in order that the one obstacle to the final ratification of the Articles of Confederation might be removed.

Without much question Virginia's claim was the strongest; but the pressure was too great even for her, and she finally yielded, ceding to the United States, upon certain conditions, all her lands northwest of the Ohio River. Then the Maryland delegates were empowered to ratify the Articles of Confederation. This was early in 1781, and in a very short time the other States had followed the example of New York and Virginia. Certain of the conditions imposed by Virginia were not acceptable to Congress, and three years later, upon specific request, that State withdrew the objectionable conditions and made the cession absolute.

The territory thus ceded, north and west of the Ohio River, constituted the public domain. Its boundaries were somewhat indefinite, but subsequent surveys confirmed the rough estimate that it contained from one to two hundred millions of acres. It was supposed to be worth, on the average, about a dollar an acre, which would make this property an asset sufficient to meet the debts of the war and to leave a balance for the running expenses of the Government. It thereby became one of the strong bonds holding the Union together.

"Land!" was the first cry of the storm-tossed mariners of Columbus. For three centuries the leading fact of American history has been that soon after 1600 a body of Europeans, mostly Englishmen, settled on the edge of the greatest piece of unoccupied agricultural land in the temperate zone, and proceeded to subdue it to the uses of man. For three centuries the chief task of American mankind has been to go up westward against the land and to possess it. Our wars, our independence, our state building, our political democracy, our plasticity with respect to immigration, our mobility of thought, our ardor of initiative, our mildness and our prosperity, all are but incidents or products of this prime historical fact.*

* Lecture by J. Franklin Jameson before the Trustees of the Carnegie Institution, at Washington, in 1912, printed in the "History Teacher's Magazine," vol. IV, 1913, p. 5.

It is seldom that one's attention is so caught and held as by the happy suggestion that American interest in land or rather interest in American land—began with the discovery of the continent. Even a momentary consideration of the subject, however, is sufficient to indicate how important was the desire for land as a motive of colonization. The foundation of European governmental and social organizations had been laid in feudalism—a system of landholding and service. And although European states might have lost their original feudal character, and although new classes had arisen, land-holding still remained the basis of social distinction.

One can readily imagine that America would be considered as El Dorado, where one of the rarest commodities as well as one of the most precious possessions was found in almost unlimited quantities that family estates were sought in America and that to the lower classes it seemed as if a heaven were opening on earth. Even though available land appeared to be almost unlimited in quantity and easy to acquire, it was a possession that was generally increasing in value. Of course wasteful methods of farming wore out some lands, especially in the South; but, taking it by and large throughout the country, with time and increasing density of population the value of the land was increasing. The acquisition of land was a matter of investment or at least of speculation. In fact, the purchase of land was one of the favorite get-rich-quick schemes of the time. George Washington was not the only man who invested largely in western lands. A list of those who did would read like a political or social directory of the time. Patrick Henry, James Wilson, Robert Morris, Gouverneur Morris, Chancellor Kent, Henry Knox, and James Monroe were among them.*

* Not all the speculators were able to keep what they acquired. Fifteen million acres of land in Kentucky were offered for sale in 1800 for nonpayment of taxes. Channing, "History of the United States," vol. IV, p. 91.

It is therefore easy to understand why so much importance attached to the claims of the several States and to the cession of that western land by them to the United States. But something more was necessary. If the land was to attain anything like its real value, settlers must be induced to occupy it. Of course it was possible to let the people go out as they pleased and take up land, and to let the Government collect from them as might be possible at a fixed rate. But experience during colonial days had shown the weakness of such a method, and Congress was apparently determined to keep under its own control the region which it now possessed, to provide for orderly sale, and to permit settlement only so far as it might not endanger the national interests. The method of land sales and the question of government for the western country were recognized as different aspects of the same problem. The Virginia offer of cession forced the necessity of a decision, and no sooner was the Virginia offer framed in an acceptable form, in 1783, than two committees were appointed by Congress to report upon these two questions of land sales and of government.

Thomas Jefferson was made chairman of both these committees. He was then forty years old and one of the most remarkable men in the country. Born on the frontier—his father from the upper middle class, his mother "a Randolph"—he had been trained to an outdoor life; but he was also a prodigy in his studies and entered William and Mary College with advanced standing at the age of eighteen. Many stories are told of his precocity and ability, all of which tend to forecast the later man of catholic tastes, omnivorous interest, and extensive but superficial knowledge; he was a strange combination of natural aristocrat and theoretical democrat, of philosopher and practical politician. After having been a student in the law office of George Wythe, and being a friend of Patrick Henry, Jefferson early espoused the cause of the Revolution, and it was his hand that drafted the Declaration of Independence. He then resigned from Congress to assist in the organization of government in his own State. For two years and a half he served in the Virginia Assembly and brought about the repeal of the law of entailment, the abolition of primogeniture, the recognition of freedom of conscience, and the encouragement of education. He was Governor of Virginia for two years and then, having declined reelection, returned to Congress in 1783. There, among his other accomplishments, as chairman of the committee, he reported the Treaty of Peace and, as chairman of another committee, devised and persuaded Congress to adopt a national system of coinage which in its essentials is still in use.

It is easy to criticize Jefferson and to pick flaws in the things that he said as well as in the things that he did, but practically every one admits that he was closely in touch with the course of events and understood the temper of his contemporaries. In this period of transition from the old order to the new, he seems to have expressed the genius of American institutions better than almost any other man of his generation. He possessed a quality that enabled him, in the Declaration of Independence, to give voice to the hopes and aspirations of a rising nationality and that enabled him in his own State to bring about so many reforms.

Just how much actual influence Thomas Jefferson had in the framing of the American land policy is not clear. Although the draft of the committee report in 1784 is in Jefferson's handwriting, it is altogether probable that more credit is to be given to Thomas Hutchins, the Geographer of the United States, and to William Grayson of Virginia, especially for the final form which the measure took; for Jefferson retired from the chairmanship and had already gone to Europe when the Land Ordinance was adopted by Congress in 1785. This ordinance has been superseded by later enactments, to which references are usually made; but the original ordinance is one of the great pieces of American legislation, for it contained the fundamentals of the American land system which, with the modifications experience has introduced, has proved to be permanently workable and which has been envied and in several instances copied by other countries. Like almost all successful institutions of that sort, the Land Ordinance of 1785 was not an immediate creation but was a development out of former practices and customs and was in the nature of a compromise. Its essential features were the method of survey and the process for the sale of land. New England, with its town system, had in the course of its expansion been accustomed to proceed in an orderly method but on a relatively small scale. The South, on the other hand, had granted lands on a larger scale and had permitted individual selection in a haphazard manner. The plan which Congress adopted was that of the New England survey with the Southern method of extensive holdings. The system is repellent in its rectangular orderliness, but it made the process of recording titles easy and complete, and it was capable of indefinite expansion. These were matters of cardinal importance, for in the course of one hundred and forty years the United States was to have under its control nearly two thousand million acres of land.

The primary feature of the land policy was the orderly survey in advance of sale. In the next place the township was taken as the unit, and its size was fixed at six miles square. Provision was then made for the sale of townships alternately entire and by sections of one mile square, or 640 acres each. In every township a section was reserved for educational purposes; that is, the land was to be disposed of and the proceeds used for the development of public schools in that region. And, finally, the United States reserved four sections in the center of each township to be disposed of at a later time. It was expected that a great increase in the value of the land would result, and it was proposed that the Government should reap a part of the profits.

It is evident that the primary purpose of the public land policy as first developed was to acquire revenue for the Government; but it was also evident that there was a distinct purpose of encouraging settlement. The two were not incompatible, but the greater interest of the Government was in obtaining a return for the property.

The other committee of which Jefferson was chairman made its report of a plan for the government of the western territory upon the very day that the Virginia cession was finally accepted, March 1, 1784; and with some important modifications Jefferson's ordinance, or the Ordinance of 1784 as it was commonly called, was ultimately adopted. In this case Jefferson rendered a service similar to that of framing the Declaration of Independence. His plan was somewhat theoretical and visionary, but largely practical, and it was constructive work of a high order, displaying not so much originality as sympathetic appreciation of what had already been done and an instinctive forecast of future development. Jefferson seemed to be able to gather up ideas, some conscious and some latent in men's minds, and to express them in a form that was generally acceptable.

It is interesting to find in the Articles of Confederation (Article XI) that, "Canada acceding to this confederation, and joining in the measures of the United States, shall be admitted into, and entitled to all the advantages of this Union: but no other colony shall be admitted into the same unless such admission be agreed to by nine States." The real importance of this article lay in the suggestion of an enlargement of the Confederation. The Confederation was never intended to be a union of only thirteen States. Before the cession of their western claims it seemed to be inevitable that some of the States should be broken up into several units. At the very time that the formation of the Confederation was under discussion Vermont issued a declaration of independence from New York and New Hampshire, with the expectation of being admitted into the Union. It was impolitic to recognize the appeal at that time, but it seems to have been generally understood that sooner or later Vermont would come in as a full-fledged State.

It might have been a revolutionary suggestion by Maryland, when the cession of western lands was under discussion, that Congress should have sole power to fix the western boundaries of the States, but her further proposal was not even regarded as radical, that Congress should "lay out the land beyond the boundaries so ascertained into separate and independent states." It seems to have been taken as a matter of course in the procedure of Congress and was accepted by the States. But the idea was one thing; its carrying out was quite another. Here was a great extent of western territory which would be valuable only as it could be sold to prospective settlers. One of the first things these settlers would demand was protection—protection against the Indians, possibly also against the British and the Spanish, and protection in their ordinary civil life. The former was a detail of military organization and was in due time provided by the establishment of military forts and garrisons; the latter was the problem which Jefferson's committee was attempting to solve.

The Ordinance of 1784 disregarded the natural physical features of the western country and, by degrees of latitude and meridians of longitude, arbitrarily divided the public domain into rectangular districts, to the first of which the following names were applied: Sylvania, Michigania, Cherronesus, Assenisipia, Metropotamia, Illinoia, Saratoga, Washington, Polypotamia, Pelisipia. The amusement which this absurd and thoroughly Jeffersonian nomenclature is bound to cause ought not to detract from the really important features of the Ordinance. In each of the districts into which the country was divided the settlers might be authorized by Congress, for the purpose of establishing a temporary government, to adopt the constitution and laws of any one of the original States. When any such area should have twenty thousand free inhabitants it might receive authority from Congress to establish a permanent constitution and government and should be entitled to a representative in Congress with the right of debating but not of voting. And finally, when the inhabitants of any one of these districts should equal in number those of the least populous of the thirteen original States, their delegates should be admitted into Congress on an equal footing.

Jefferson's ordinance, though adopted, was never put into operation. Various explanations have been offered for this failure to give it a fair trial. It has been said that Jefferson himself was to blame. In the original draft of his ordinance Jefferson had provided for the abolition of slavery in the new States after the year 1800, and when Congress refused to accept this clause Jefferson, in a manner quite characteristic, seemed to lose all interest in the plan. There were, however, other objections, for there were those who felt that it was somewhat indefinite to promise admission into the Confederation of certain sections of the country as soon as their population should equal in number that of the least populous of the original States. If the original States should increase in population to any extent, the new States might never be admitted. But on the other hand, if from any cause the population of one of the smaller States should suddenly decrease, might not the resulting influx of new States prove dangerous?

But the real reason why the ordinance remained a dead letter was that, while it fixed the limits within which local governments might act, it left the creation of those governments wholly to the future. At Vincennes, for example, the ordinance made no change in the political habits of the people. "The local government bowled along merrily under this system. There was the greatest abundance of government, for the more the United States neglected them the more authority their officials assumed."* Nor could the ordinance operate until settlers became numerous. It was partly, indeed, to hasten settlement that the Ordinance of 1785 for the survey and sale of the public lands was passed.**

* Jacob Piat Dunn, Jr., "Indiana: A Redemption from Slavery," 1888.

** Although the machinery was set in motion, by the appointment of men and the beginning of work, it was not until 1789 that the survey of the first seven ranges of townships was completed and the land offered for sale.

In the meantime efforts were being made by Congress to improve the unsatisfactory ordinance for the government of the West. Committees were appointed, reports were made, and at intervals of weeks or months the subject was considered. Some amendments were actually adopted, but Congress, notoriously inefficient, hesitated to undertake a fundamental revision of the ordinance. Then, suddenly, in July, 1787, after a brief period of adjournment, Congress took up this subject and within a week adopted the now famous Ordinance of 1787.

The stimulus which aroused Congress to activity seems to have come from the Ohio Company. From the very beginning of the public domain there was a strong sentiment in favor of using western land for settlement by Revolutionary soldiers. Some of these lands had been offered as bounties to encourage enlistment, and after the war the project of soldiers' settlement in the West was vigorously agitated. The Ohio Company of Associates was made up of veterans of the Revolution, who were looking for homes in the West, and of other persons who were willing to support a worthy cause by a subscription which might turn out to be a good investment. The company wished to buy land in the West, and Congress had land which it wished to sell. Under such circumstances it was easy to strike a bargain. The land, as we have seen, was roughly estimated at one dollar an acre; but, as the company wished to purchase a million acres, it demanded and obtained wholesale rates of two-thirds of the usual price. It also obtained the privilege of paying at least a portion in certificates of Revolutionary indebtedness, some of which were worth about twelve and a half cents on the dollar. Only a little calculation is required to show that a large quantity of land was therefore sold at about eight or nine cents an acre. It was in connection with this land sale that the Ordinance of 1787 was adopted.

The promoter of this enterprise undertaken by the Ohio Company was Manasseh Cutler of Ipswich, Massachusetts, a clergyman by profession who had served as a chaplain in the Revolutionary War. But his interests and activities extended far beyond the bounds of his profession. When the people of his parish were without proper medical advice he applied himself to the study and practice of medicine. At about the same time he took up the study of botany, and because of his describing several hundred species of plants he is regarded as the pioneer botanist of New England. His next interest seems to have grown out of his Revolutionary associations, for it centered in this project for settlement of the West, and he was appointed the agent of the Ohio Company. It was in this capacity that he had come to New York and made the bargain with Congress which has just been described. Cutler must have been a good lobbyist, for Congress was not an efficient body, and unremitting labor, as well as diplomacy, was required for so large and important a matter. Two things indicate his method of procedure. In the first place he found it politic to drop his own candidate for the governorship of the new territory and to endorse General Arthur St. Clair, then President of Congress. And in the next place he accepted the suggestion of Colonel William Duer for the formation of another company, known as the Scioto Associates, to purchase five million acres of land on similar terms, "but that it should be kept a profound secret." It was not an accident that Colonel Duer was Secretary of the Board of the Treasury through whom these purchases were made, nor that associated with him in this speculation were "a number of the principal characters in the city." These land deals were completed afterwards, but there is little doubt that there was a direct connection between them and the adoption of the ordinance of government.

The Ordinance of 1787 was so successful in its working and its renown became so great that claims of authorship, even for separate articles, have been filed in the name of almost every person who had the slightest excuse for being considered. Thousands of pages have been written in eulogy and in dispute, to the helpful clearing up of some points and to the obscuring of others. But the authorship of this or of that clause is of much less importance than the scope of the document as a working plan of government. As such the Ordinance of 1787 owes much to Jefferson's Ordinance of 1784. Under the new ordinance a governor and three judges were to be appointed who, along with their other functions, were to select such laws as they thought best from the statute books of all the States. The second stage in self-government would be reached when the population contained five thousand free men of age; then the people were to have a representative legislature with the usual privilege of making their own laws. Provision was made for dividing the whole region northwest of the Ohio River into three or four or five districts and the final stage of government was reached when any one of these districts had sixty thousand free inhabitants, for it might then establish its own constitution and government and be admitted into the Union on an equal footing with the original States.

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