THE UNITED STATES OF AMERICA IN TWO PARTS PART I 1783-1830
BY EDWIN ERLE SPARKS, PH. D.
The story of the United States has frequently been told. It has been told in the spirit of boasting, as a marvel of local accomplishment. It has been told in the spirit of reverence, as the work of a chosen people under a special dispensation of Providence. Its glory has been ascribed now to one political party and now to another. Its success has been attributed to various statesmen and to different sections.
The Union has been viewed from one point as originally the creature of the States, whose powers it afterward ungratefully usurped and whose intent it wilfully perverted to its own aggrandisement. It has been regarded from another viewpoint as something inherent in the soil of a new world, manifest in various colonial functions, and brought fully to life and supremacy at the time of separation from England. An effort is made in this narrative to find truth in a medium ground; to trace the gradual evolution of a confederated republic under the laws of necessity; to acknowledge that radical departures have been made from first ideals as a result of progress; to take into constant consideration the underlying forces of heredity and environment. It will be necessary to omit many of the details commonly found in a history of the United States for the sake of considering only those centralising or decentralising factors which have aided or hindered the unification of the States. In brief, an attempt is made in these two volumes to tell the story of the United States; to show how the phrase "The United States is" has been slowly and unconsciously evolved in the process of time from the early practice of saying "The United States are."
I. A UNION IN FORM ONLY
II. THE PROBLEMS OF THE BACK LANDS
III. THE CARE OF THE PUBLIC LANDS
IV. FAILURE OF THE CONFEDERACY
V. REFORMING THE NATIONAL GOVERNMENT
VI. ADOPTING A NATIONAL CONSTITUTION
VII. BEGINNING AN EFFICIENT GOVERNMENT
VIII. SUMMONING THE GENII OF THE IMPLIED POWERS
IX. NATIONAL CENTRALISATION
X. FIRST LESSONS IN NATIONAL OBEDIENCE
XI. NATIONAL PARTIES ON FOREIGN ISSUES
XII. SUPPRESSING THE FRENCH SYMPATHISERS
XIII. THE FIRST STATE PROTESTS
XIV. THE ADVENT OF DEMOCRACY
XV. STRICT CONSTRUCTION AN IMPOSSIBILITY
XVI. AMERICAN NEUTRALITY LOST IN WAR
XVII. TRANSFER OF PARTY POLICIES
XVIII. SECTIONAL DISCORD OVER TERRITORY
XIX. ANNOUNCEMENT OF NATIONAL INDIVIDUALITY
XX. FULL FRUITS OF AMERICANISM
SIGNATURES TO THE DEFINITE TREATY OF 1783 Original in the Department of State.
TITLE-PAGE OF A COPY OF THE ARTICLES OF CONFEDERATION This copy was printed in 1777.
THE OLD BLOCKHOUSE AT MACKINAC, 1780
MAP SHOWING WESTERN LAND
MAP SHOWING THE PROPOSED WESTERN STATES From Morse's American Gazetteer.
NATHAN DANE'S DRAFT OF THE ANTI-SLAVERY CLAUSE IN THE ORDINANCE OF 1787
DR. CUTLER'S CHURCH AND PARSONAGE AT IPSWICH HAMLET, 1787 The place from which the first company started for the Ohio, December 3, 1787.
A PETITION FROM CONGRESS TO THE STATES
SIGNATURES TO AN ADDRESS OF THE INHABITANTS OF PRINCETON, NEW JERSEY Now in the archives of the Department of State.
SIGNATURES OF DELEGATES TO ANNAPOLIS CONVENTION
COPY OF THE ARTICLES OF CONFEDERATION AND THE CONSTITUTION IN PARALLEL COLUMNS The foot-notes show that it is an Anti-Federal print.
FIRST DRAFT OF THE CONSTITUTION OF THE UNITED STATES
LAST PAGE OF THE MINUTES OF THE OLD CONGRESS Preserved in the archives of the Department of State.
HEADING OF THE FIRST LAW PASSED UNDER THE CONSTITUTION
FEDERAL HALL, NEW YORK CITY
THE PRESIDENTIAL MANSION, FRANKLIN SQUARE, NEW YORK CITY, 1789
CERTIFICATE OF DEBT AGAINST THE UNITED STATES From the Manuscript Division of the Library of Congress.
A HALF-PAGE OF THE X Y Z DISPATCHES From the original in the Department of State.
THE CITY OF WASHINGTON From a drawing made about 1800, before the site was graded.
WESTERN ARKS AT NEW ORLEANS From Hall's "Etchings in America."
TAKING POSSESSION OF THE LOUISIANA PURCHASE
WRITTEN LAW OF THE NORTH-WEST TERRITORY A law passed at Vincennes, now Indiana, against gambling..
PRESIDENT JEFFERSON'S INAUGURAL ADDRESS
BLANK COMMISSION FOR PRIVATEER IN WAR OF 1812
DISLOYALTY OF NEW ENGLAND DURING THE WAR
THE PRESIDENT'S TEMPORARY RESIDENCE, 1815
MAP SHOWING ADVANCE OF POPULATION
THE CAPITOL BURNED BY THE BRITISH ARMY From Torrey's "American Slave Trader."
WASHINGTON IRVING From the etching by Jacques Reich.
JOHN MARSHALL Chief Justice of the United States, 1801-1836.
WESTERN END OF THE GREAT ERIE CANAL Drawn with the Camera Lucida for Hairs "Etchings of the West."
A UNION IN FORM ONLY
When did the sovereign nation of the United States begin? From one point of view, it was called into existence by the motion for Independence passed by the Continental Congress on the second day of July, 1776, when the people of the rebelling British colonies in America, by action of their representatives, assumed a free and independent position. But a motion is intangible. It is an act, of which the announcement is the visible result. "A decent respect to the opinions of mankind" prompted the Congress on July 4, 1776, to "declare the causes" which impelled it to separation. This date is accepted in the popular mind, as well as by official action, as the beginning of national existence. If recognition by other powers be assumed as the criterion, the sovereignty began in 1778, when treaties of alliance and commerce were signed with France. But if the actions indicated above were incidental steps to the commencement of sovereignty, if a general recognition by nations be necessary, together with the consent of the former owner, and a restoration of peace and order, then the real story of the United States begins on September 3, 1783. This conclusion is reached by considering fact as well as form.
A few days after that date, John Adams, Benjamin Franklin, and John Jay wrote from Paris to the president of the Continental Congress at Philadelphia:
"On the 3d instant, definite treaties were concluded between all the late belligerent powers except the Dutch, who the day before settled and signed preliminary articles of peace with Britain. We most sincerely and cordially congratulate Congress and our country in general on this happy event; and we hope that the same kind Providence which has led us through a vigorous war to an honourable peace will enable us to make a wise and moderate use of that inestimable blessing."
Thus happily ended more than eight years of warfare and almost two years of negotiation. The disturbed conditions of war gave way rapidly to the normal condition of peace. The four European powers, which had been drawn into war by the American cause, adjusted their disturbed relations. The King of England, at the next opening of Parliament, acknowledged the loss of a portion of his American possessions. John Adams with his family crossed from France to England to represent the new nation. The archives of the republic showed treaties with France, the Netherlands, Great Britain, and Sweden, soon to be followed by similar acknowledgments from Prussia and Morocco. A national frame of government had been adopted by the new power. Peace prevailed throughout the land. Local government was established in every State. In external appearance as well as internal form the career of the independent republic of the United States had most auspiciously begun.
But the course of events was soon to dispel the illusion; to show that it was a union in form only and not in affection. Conversion from provincial colonists into liberal-minded unionists was not to be so easily effected. A feeling of true nationality must await years of growth. Confidence in each other had not yet replaced fear and suspicion. That the first attempt to come into a union could have been a success, that a sacrifice to the god Provincialism could have been avoided, seems in retrospect impossible.
This period of fear of centralisation, which began even before the close of the Revolutionary War, a time of mutual distrust, of paramount individualism, is little known and rarely dwelt upon at present. Perhaps the omission is due to a happy nature, which recalls only the pleasant events of the past. The school-texts dismiss it with a few paragraphs; statesmen rarely turn to its valuable lessons of experience; and to the larger number of the American people, the statement that we have lived since our independence under a national frame of government other than the Constitution is a matter of surprise. A writer of fiction somewhere describes two maiden sisters, one of whom had a happy and the other a melancholy disposition. In recalling the family history, one could remember all the marriages and the other all the deaths. To recall only national successes is undoubtedly most pleasant; but posterity sitting ever at the feet of History gains a more valuable lesson by including the failures of the past.
Criticism of the Confederation which our fathers framed to take the place of British rule must be tempered by the reflection that the action was taken while the land was in the chaos of war. Praise is due their genius for organisation, inherited from the mother country they were warring against, which enabled them to contemplate a new form of government while engaged in dissolving the old. The Government is dead; long live the Government. According to the intention, there was to be no interregnum in which Anarchy might rear his ugly head, and destroy existing forms and instincts of government. Unfortunately a genius for undertaking a beneficent enterprise may lack opportunity of carrying it out. The war to secure the permanence of the Government they were trying to establish produced a delay in completing the frame, and allowed the individual States to assume a headway and win the people to an allegiance, which the Union has not yet fully overcome.
In the form of British colonies, the States were well-recognised units before resistance to authority compelled the people to entrust the common defence to an irregularly formed Continental Congress. To the revolutionary central authority thus formed and acknowledged through necessity, colony after colony had turned for advice as their governors and other royal officials fled to escape popular vengeance. Over a year before national Independence was declared, the Congress had advised the colony of Massachusetts that she owed no fealty to a parliament attempting to change her charter, or to a governor who would not abide by the old compact. The people, therefore, were urged to select certain representatives. They in turn were to choose a council to act until a governor should be appointed by the King, who would consent to rule justly. Similar advice given to the other colonies resulted in the formation of State constitutions and the erection of State governments. The States, in this peculiar manner, dated their existence from the suggestion of the Central Government, made at a time when it itself had not been regularly formed. In turn, the States were now to complete the Central Government by confederating themselves under a written document.
Great Britain, the mother country, had never possessed a written constitution, or frame of government; but the colonies were planted under written charters. Perhaps this precedent has produced the American predilection for written constitutions. Many statesmen of the colonial days had attempted a written plan of union for the colonies. Franklin had been one of these and, within three weeks after Washington took command of the American Army, Franklin presented to the Congress certain Articles of Confederation creating "The United Colonies of North America." The federation was intended to be temporary in case the colonial grievances were redressed, but otherwise permanent. The proposition was unheeded at the time but was recalled nearly a year later by one part of Richard Henry Lee's famous motion for Independence. A committee was to be appointed "to prepare and digest the form of a confederation to be entered into between these colonies." The importance of the task was indicated by the fact that the committee was composed of one member from each of the colonies represented, while the committee, appointed at almost the same time, to draw up a declaration concerning independency, had only five members. On July 12th, the former committee brought in a draft of thirteen Articles of Confederation, by common consent ascribed to John Dickinson, but evidently based on Franklin's draft of a year before. This is indicated by the style and form, although the details differ in many particulars. Eighty copies of these proposed Articles were ordered printed for the use of the members, extreme secrecy being enjoined upon all concerned.
These steps toward a national government were taken, it must be remembered, in the midst of a war. The nascent nation had never experienced the duties which peace places on a government; it was familiar only with the requirements of war. The main idea running through the Articles as reported by the committee was a "union for the common defence." The general welfare found no place. The activities of government were confined almost exclusively to conducting a foreign war. The Central Government was authorised to declare war, make peace, and send ambassadors. It had charge of appointing high officers of the State armies, of judging prizes in war, of trials for piracy, and of granting letters of marque. Its few peace functions embraced the postal service between the States, regulating Indian trade, issuing bills of credit, determining the national and State standard of coins, and assessing quotas of expense on the States. Conversely, the States were forbidden to perform these national acts.
Remembering that the Articles were framed to meet the exigencies of war, and considering the condition of public sentiment at the time, one finds it difficult to conceive how any other form of union could have been secured. Individualism was in the saddle. Engaging in war to resist the encroachments of a centralised government and smarting under the actions of a body in which they were not represented, the people would naturally resolve to retain the control which the rebellion had thrown into their hands. Distributed power must never be centralised again. Liberty was closely associated with individualism. A majority was no safeguard. Reaction from a centralised monarchy had evidently swung public sentiment to the other extreme, resulting in a decentralised confederacy.
As implied in the name, this Continental Congress had been called together originally as a consulting body for the thirteen distinct colonies. When the war forced the second session into making laws, the name should have been changed to "Parliament"; but, in the chaotic condition of affairs and the very gradual assumption of sovereignty, a change in name went by default. Although the Congress became a parliament in form, its members never so regarded it. They still served their sovereign States in a national body, consulting and providing for the common defence. They had no desire to make a modern union at the time they formed the Confederation. This is evidenced by the preliminary statement of the Articles that each State retained its sovereignty, freedom, and independence. In this view, "a firm league of friendship," the phrase used to describe the nature of the Confederation, is exact and appropriate. It formed a league of individual units, such as the separate colonies had been, "binding themselves to assist each other against all force offered to, or attacks made upon them, or any of them, on account of religion, sovereignty, trade, or any other pretence whatever."
This individualistic tendency was manifest in the workings of the Articles. Franklin's plan provided for an executive council of twelve, appointed by Congress from its own numbers. Instead of this arrangement, the Articles allowed the consulting Congress to retain all the executive powers which it had gradually assumed. Fear of delegating authority to any kind of executive, lest the action might lead eventually to another king, was responsible for this mistake. Retaining also the legislative powers, which it had assumed, and such judicial powers as had arisen from the adjudication of prizes appeals, the Congress would monopolise all the functions of the National Government. It would probably continue to consult and recommend, and do nothing more. It had a president, chosen by itself from its own number; but he was simply an officer to preside over the sessions.
In voting in Congress, each State was given one vote, being considered a unit. In declaring assessments, Congress dealt with the individual States and not the people. Congress was authorised to make an estimate of the value of land and improvements in each State for proportioning expenses; but the matter was left to the States and never done. In an elaborate plan for adjudication between States in the numerous boundary disputes, Congress again dealt with the States as units. The central authority would nowhere come into contact with citizens of the States. It had no way of gaining their respect, their gratitude, or their allegiance. It apparently dealt with them in the provision guaranteeing citizens of each State all their rights in the several States; but if a State transgressed on the rights of citizens of another State, the Confederation could only complain and protest. It had no power of punishment or coercion.
One of the chief disagreements over the Articles, as they were considered by Congress, arose from the conflicting claims to the land lying between the Alleghany Mountains and the Mississippi. The claims put forth by Massachusetts, Connecticut, Virginia, the Carolinas, and Georgia, that their charters extended interminably into the land, were resisted by New Hampshire, Rhode Island, New Jersey, Pennsylvania, and Maryland, whose western boundaries were distinctly defined. New York put forth a claim for the Ohio valley, based on an Indian treaty. It lay athwart the claims of some of the other States.
Virginia's assertion that the "South Sea" mentioned in her charter as her western limits entitled her to the land as far west as the Pacific, if British authority should ever extend so far, was declared preposterous by delegates from other States who looked upon the land between the Alleghanies and the Mississippi as a valuable common asset, if the war should terminate favourably to their cause.
"Every gentleman," said Wilson, of Pennsylvania, in debate, "has heard much of the claims to the South Sea. They are extravagant. The grants were made upon mistake. They were ignorant of geography. They thought the South Sea within one hundred miles of the Atlantic Ocean. It was not conceived they extended three thousand miles. Lord Camden considers the claims to the South Sea as what can never be reduced to practice. Pennsylvania has no right to interfere in these claims, but she has a right to say that she will not confederate unless those claims were cut off."
On the other hand, Virginia and the States having these western claims had sufficient influence in the Congress to strike out every proposed clause attempting to restrict the western limits; but they could not prevent the regulation of trade with the Indians not inhabiting a State being handed over to the proposed Confederation. This was the initial step in national regulation of western affairs.
Since the Congress in this new form was to be the sole visible agency of the National Government, possessing the legislative, the executive, and even such judicial powers as the Confederation possessed, representation in it had to be most carefully considered. The committee had provided that in determining questions the present method should be continued which allowed each State to have one vote; and in vain did the advocates of representation according to population plead against it. Franklin pointed to the effects of unequal representation in England and begged that the new Government might be started aright. "Let the smaller colonies give equal money and men," said he, "and then have an equal vote." His fellow-delegate from Pennsylvania, Dr. Rush, added the voice of prophecy when he declared that the States ought to represent the whole people; and that each State retaining one vote would tend to keep up colonial distinctions.
"We are now a new nation," said he. "Our trade, language, customs, manners, don't differ more than they do in Great Britain. The more a man aims at serving America, the more he serves his colony. We have been too free with the word independence; we are dependent on each other, not independent States. I would not have it understood that I am pleading the cause of Pennsylvania. When I entered that door I considered myself a citizen of America."
Truly here was the voice of unionism crying in the wilderness of individualism. It is the sentiment of a century later.
The advocates of equal State representation had the advantage of precedent and of present practice. The large States had won in retaining their claims to the western lands. It was now the turn of the small States. In the final vote on representation, the four large States of Virginia, Massachusetts, Maryland, and Pennsylvania, containing over one-half the entire population of the thirteen States, were outvoted by the five small States of New Hampshire, Rhode Island, New Jersey, Delaware, and Georgia. The State and not individual voting was to continue in Congress. The medium-sized States of Connecticut, New York, and the two Carolinas, showed a "disinterested coolness" in the matter. Few took so gloomy a view of such an arrangement as did John Adams, who predicted that within ten years the Articles would be found as weak as a rope of sand in holding the people together.
Being one of the chief causes of the Revolution, the power of direct taxation was a very sensitive point. To avoid this, the pernicious system of assessing quotas on the several States was continued. It was derived from the colonial custom, and might be expected to produce as little revenue and as much discord as it had done in those days. The Articles as adopted by the Congress were an improvement upon any effort of the kind previously attempted; but the results likely to follow the withdrawal of the pressure of war and the return of decentralising peace might easily be predicted.
Having at length been agreed to in the Congress, the Articles were sent to the several State Legislatures to be accepted or rejected. Although popular conventions had come into use in forming the various State Constitutions, the Congress maintained its early diplomatic and consulting nature by dealing with the State Legislatures instead of popular conventions. The members of Congress were too well aware of the many defects in the new frame to hope that it would be speedily adopted. In the official letter which accompanied it to the State Legislatures, they confessed that the business of coming into the national agreement had been attended with uncommon embarrassment and delay.
"To form a permanent union," said the address, "accommodated to the opinion and wishes of the delegates of so many states, differing in habits, produce, commerce, and internal police, was found to be a work which nothing but time and reflection, conspiring with a disposition to conciliate, could mature and accomplish. Hardly is it to be expected that any plan, in the variety of provisions essential to our union, should exactly correspond with the maxims and political views of every particular State."
As rapidly as the State Legislatures adopted the proposed plan, they were to notify their delegates in Congress to sign the document, thus formally entering the Confederation. It was provided in the Articles that they should not go into effect until signed by every State. Neither could they be amended without unanimous consent. These unfortunate provisions were due to the tender regard which prevailed at the time for the rights of the individual. "Government proceeds from the consent of the governed" was interpreted by many enthusiasts to mean the consent of every individual and not simply the majority. These Article days mark not only the ultimate point of the fear of centralisation, but also the greatest solicitude for the individual. Even in Congress, where delay in legislation might be hazardous, no important action could be taken by a majority, but the consent of nine States must be had.
The required unanimity of ratification kept the Articles for nearly three years awaiting action by all the State Legislatures, while the people gradually lapsed into that lawlessness which a civil war always brings in its train. The war itself contributed in no small degree to the delay. When a State was invaded by the enemy, help was needed, and the confederation feeling ran high; but the civic machinery, disturbed by war, could not be made to serve the purpose of ratification. When the tide of war swept on, and the State was relieved from immediate danger, the old feeling of local importance returned, individualism revived, and the union feeling waned.
The Legislatures of seven States in ratifying thought they could improve the Articles in certain particulars. Some wanted a test oath applied to all national officers; others would have wealth as a basis of apportionment simply a trial arrangement; and still others would remove the requirement that nine States be represented in Congress for the consideration of certain matters. New Jersey had the clearest vision of all.
"We are of the opinion," said her Legislature, "that the sole and exclusive power of regulating the trade of the United States with foreign nations ought to be clearly vested in the Congress, and that the revenue arising from all duties and customs imposed thereon ought to be appropriated to the building, equipping, and manning a navy, for the protection of the trade and defence of the coasts, and to such other public and general purposes as to the Congress shall seem proper and for the common benefit of the states."
Neither this nor any of the forty-six amendments thus proposed by the States was adopted by the Congress. The Articles stood as first adopted until their overthrow.
Maryland, for reasons to be given hereafter, was the last State to consent to the Articles. On March 2, 1781, the legal government of the Articles of Confederation took the place of the illegal revolutionary government, which had existed by common consent since 1776. A few guns were fired, and flags displayed, but there was nothing to show the change. The United States Congress, as it came to be called, was the chief evidence of the Federation. Its actions were now justified by a written agreement among the States and its powers definitely prescribed. Otherwise affairs continued as before. The war was still the engrossing business.
The Articles were in reality only a general treaty between thirteen sovereign States occupying contiguous territory and pledging themselves mutually to resist any attacks made upon them. Such a plan might have been practicable, if the States had occupied thirteen islands, each using a different language, and each producing sufficient to satisfy its inhabitants, so that trade and communication need never have become necessary. As it was, the framers failed to appreciate the force of geographic contiguity. They believed that they could create and maintain a kind of central clearing-house for national needs, giving to it only the duties of declaring war and peace, managing ambassadors, making treaties, establishing prize courts, managing the post-office, and commanding such land and naval forces as might at any time be necessary. Regardless of the expanding laws of growth, they thought the central authority could be confined to these stated activities.
Compared with the present National Government, which a different plan and a liberal interpretation for a century have conspired to bring about, the Articles of Confederation presented some strange anomalies of administration. The Federal Government could declare war, but could not enlist soldiers. It could only call upon each State to furnish its proportion. If, as was likely to happen, any particular portion of the country was threatened by an enemy, Congress might call for an extra number of soldiers; but the State Legislature might judge how many could safely be spared from the service of the State. The National Government could not even appoint its own officers below the rank of colonel. It could make peace, but, in order to secure a successful end to a war, it could not collect a dollar for expense, except as each State graciously consented to pay its share. It could make a treaty with another sovereign, but could not compel its own subjects to obey the terms of the treaty. It could send an ambassador to a foreign Court, but had to turn to the States for money to pay his salary. It could regulate prizes and subdue piracies on the high seas, but had no control over goods entering its own ports. At the close of the war, it could gratefully vote a monument to General Washington to be erected at the seat of government, but could not secure enough money to erect it.
The National Government under the Articles of Confederation could destroy the commerce of an enemy, but could not retaliate upon the products of an unfriendly rival in time of peace. It could regulate the alloy and value of coins, but could not keep a State from issuing waggon-loads of paper money, destined to depreciate and to disturb its own finances. It could make laws within certain limits but could not enforce the least of its decrees. It pledged its faith to discharge all debts contracted by the Continental Congress, but it could not collect a sixpence with which to do it. The States entering the agreement promised to refrain from inter-alliances and foreign treaties, from making war except against Indians or pirates, and from keeping standing armies or vessels of war; yet if a State broke one of these stipulations, no provision was made for punishing it. Although any State could levy impost duties on goods coming into it from another State the same as from a foreign country, thereby engendering endless dispute, the Central Government had no court or other means of settling such contentions or of getting redress for individuals.
With such false conceptions of the relations between individualism and unionism, with a national frame foredoomed to failure, with the distracting situations of the war still upon them, the people of the United States attempted in 1783 to take that stand among the nations which they declared God had given them. At once they came into contact with the habits and precedents of old and well-established governments. Diplomacy is not a game for amateurs. Fortunately a decade was to elapse before a European crisis would call attention to the new-comer as a possible pawn in the game. Their first introduction in the character of solicitors for aid had not been auspicious. The process of securing this aid had gained for them a treaty with France and indirectly with Holland; but Spain, more suspicious of the new nation because of the proximity of her Floridas and Louisiana to them, still dallied with their advances. England, compelled to make a treaty to close the war, refused to do more. Sweden, Prussia, and Morocco were of insufficient maritime importance to make the treaties with them a cause for rejoicing.
Admission to full membership and to an equal share in trade did not follow necessarily from these first greetings. They could be gained only by proof of fitness and even compulsion. The applicant must make a place for himself. Sentiment plays no part in the rivalry of nations. Self-preservation is the prime law.
John Adams, conscious of his prominent part in the rebellion, militant in his ideas of republicanism, elbowed his way into the Court of St. James as the first representative of the former British possessions. He was distressed, as he wrote to Livingston, Secretary of Foreign Affairs, at being obliged to consume the labour of his fellow-citizens upon the foolish ostentation of a Court presentation. Anxious concerning the reception which he would meet from representatives of other nations, he was relieved to find that custom required them to call first upon a new-comer. "We shall now see," he wrote, "who will and who will not."
As a whole, his reception by both Court and diplomatic corps was satisfactory, especially the courtesies shown him by the King. But he was chagrined to find what a small impression the birth of his country had made on British memory and British policy. Political independence had been allowed, but commercial independence was denied. No treaty of commerce could he add to the existing treaty of peace. The West India ports remained closed to American trade. Pitt's bill to annul the Navigation Acts so far as they concerned the United States was dropped in Parliament. It was feared to put the Americans on the same footing as European nations, lest they might be able to retain the trade which they had enjoyed as British colonists. Certain additional restrictive measures were put into force. "Our trade was never more completely monopolised by Great Britain when it was under the direction of the British Parliament," Madison complained to Monroe.
Neither would Britain grant the new sovereign power the courtesy of sending a Minister in return for Adams.
"At present," Lord Sheffield advised in his book on Observations on the Commerce of the American States, which passed through several editions, "the only part Britain should take is most simple and perfectly sure. If the American States choose to send consuls, receive them, and send a consul to each State. Each State will soon enter into all the necessary regulations with the consul and this is the whole that is necessary."
This gentle insinuation that the Confederation had no force and the suggestion of uncertainty whether the new nation consisted of one or thirteen powers contained too much truth to be pleasant to the Americans.
Mrs. John Adams, exchanging the social station accorded her in Braintree, Massachusetts, for the diplomatic colony at London, found herself of little service in aiding her husband's social standing. She shared his Americanism. She wrote home that she had never seen an assembly room in America which did not exceed that at St. James in point of elegance and decoration, and that the women of the Court, in all their blaze of diamonds set off with Parisian rouge, could not match the blooming health, the sparkling eye, and modest deportment of the dear girls of her native land. When presented to the King, she declared that her reception stung her like an adder, although His Majesty was kind enough to salute her cheek. She thought Queen Charlotte rather embarrassed and Mrs. Adams confessed to a disagreeable feeling. Yet the Queen simply inquired whether Mrs. Adams had gotten into her new house and how she liked it. Years after, Mrs. Adams confessed that the humiliation of Queen Charlotte was no sorrow for her. Three years of neglect could not be readily forgotten or forgiven.
"Nothing but retaliation, reciprocal prohibitions, and imposts, and putting ourselves in a posture of defence," the American Minister informed his Government, could make an impression on England. National action along any of these lines was impossible, because each State had control of its own commerce. Individual retaliation was a burlesque. Virginia at one time placed a tonnage duty on British vessels four times that charged French and Dutch traders with whom the United States had treaty arrangements. British vessels simply avoided Virginia ports and sailed freely into those of other States. "When Massachusetts set on foot a retaliation of the policy of Great Britain," wrote Madison, sending the news to Jefferson in France, "Connecticut declared her ports free. New Jersey served New York the same way. And Delaware, I am told, has lately followed the example, in opposition to the commercial plans of Pennsylvania." Many similar cases might be cited. Some wag likened such efforts to a man who plugged up most carefully the worm-holes in one end of a cask and knocked the whole head out at the other end.
Fully three-fourths of all shipping to be seen in American ports flew the British flag; yet American vessels could bring only American goods into British ports. American ships were positively forbidden to trade in the British West Indies, and American vessels sold in England could not be used in British colonial trade. Under these circumstances, John Adams became convinced that nothing but a complete change in the form of the American National Government, giving over the control of commerce into the hands of the Confederation, would be of avail in bringing Britain to terms. As the end of her husband's mission drew nigh, Mrs. Adams declared that she would quit Europe with more pleasure than she came to it, and uncontaminated, she hoped, with its manners and its vices. She attributed the ill success of her husband's efforts to the lack of concord at home; to the debts which her countrymen had contracted in Europe and were unable to pay; to the expectation in England that prohibitory acts and heavy duties would bring the Americans back to British allegiance; and to the calumnies circulated by the Tory refugees in England. Their departure was marked, in the opinion of John Adams, by a dry decency and a cold civility, which made him feel, in breathing the air of his own country again, as if he had just escaped from prison.
THE PROBLEMS OF THE BACK LANDS
The ease with which the American domain had been permitted to extend to the Mississippi in the peace negotiations with Great Britain did not mean a freedom from future anxiety concerning the "back lands," lying to the west of the thirteen States. The entire domain contained about 827,000 square miles, inhabited by about three million people, very unequally distributed. Population was most dense near the coast and gradually shaded off toward the interior. The front wave of civilisation may be located by an irregular line passing through central New Hampshire, skirting Lake Champlain, narrowing down to the Mohawk valley, and across north-western New Jersey, whence it turned due west across the mountains in a long arm reaching to Pittsburg. Retreating to the Shenandoah valley, it descended to central Georgia and thence to the sea. An "island" of people was to be found in central Kentucky and another in north-central Tennessee. A great tract of vacant but desirable land, comprising probably three-fourths of the domain, stretched from within two hundred miles of the seacoast to the distant Mississippi River. Barring a few French villagers, it was inhabited only by savage men and beasts.
The lack of co-operation among the colonies in managing the Indians had made a lasting impression. During the Revolutionary War, the Congress gradually assumed the management of the savages to keep them from serving the British forces. This was especially true of the tribes dwelling beyond the recognised limits of the thirteen States. The State Governments readily consented to allow the central body a large control in this matter, because it meant so much for the common defence. The British method of Indian agents and commissioners for different geographical departments was adopted by the Congress, the whole being placed under control of the Department of War. The National Government thus came into control of the savages who inhabited the vast trans-Alleghany region. The thought naturally followed that it should be given control of the land itself, if it were to manage the savages successfully.
Following the war, commissioners and agents complained that they could not get the confidence and trade of the Indians of the North-west, because of the influence of the British troops remaining in the forts, in that quarter. According to the stipulations of the treaty of peace, the forts located on the American side of the boundary line were to be evacuated. There were some half-dozen of these posts, ranging along the international line from Michilimackinac at the head of Lake Huron, to Dutchman's Point, near Lake Champlain. The number of troops in each was not sufficient to cause any fear of invasion; but their presence produced an uncertainty in the Indian mind whether the control was still with the British or had passed to the United States. The fur trade, which should have passed through the States, was diverted to Canada along the old lines.
Instead of vacating, the troops went out from some of the forts and built additional new posts on American soil. "The Great Father across the Waters," said a chief, when returning an unsigned treaty to Col. Harmar, "has not given this country over to the Thirteen Fires." Knowing the former predilection of the Indians for the French, the services of Lafayette were enlisted, prior to his return to France, in addressing a council on the frontier of New York to enlighten the natives concerning their new allegiance. It was felt that all efforts would be of no avail until the British were removed. To all American protests, the British Government replied that the posts would not be evacuated until the Americans had fulfilled their part of the treaty concerning the debts owed to British merchants.
At the beginning of the Revolutionary War, large sums had been due British exporters and factors by American planters and traders, because of the commercial system in vogue at that time. The war gave excuse to unscrupulous debtors to withhold payment. Associations were formed in many communities to adopt this form of retaliation, although discountenanced by the better classes. At the close of the war, it was said that there was not sufficient money in circulation to discharge these long-due obligations. Jefferson estimated the debts due British merchants in Virginia alone at thirty times the amount of money in circulation in the State. Many States had passed stay laws against executions to recover such debts and had thrown other legal obstructions in the way of the British creditors. Claim was made not only for the original amount of the debts, but for back interest as well. The American merchants rejoined that they could pay neither principal nor interest until they had been compensated for their slaves carried away by the British Army and the Tories at the end of the war and contrary to the terms of the treaty of peace. The labour of these slaves, they said, would enable them to pay the debts.
Undoubtedly American statesmen wished to sustain inviolate the provisions of the treaty, not only by preventing the States from interfering with the collection of valid debts, but also by protecting the Loyalists or Tories, as the treaty demanded. The English negotiators, having small experience with a Confederation, supposed that the clause in the treaty binding Congress to recommend actions to the several State Legislatures was equivalent to a warrant. It was agreed that the privilege should be granted to any person to go into and remain twelve months in any part of the United States to regain his property by law. The treaty provided further that Congress would recommend to the States the restoration of all property to former owners upon payment of the bona fide price which the present possessors paid for it after confiscation. The treaty also implicitly promised that there should be no more confiscations or prosecutions. The several provisions for the alleviation of these Loyalists indicate slightly the misfortunes into which their action brought them. Their treatment both officially and by the mob has been described by some foreign writers as the darkest page in American history. But they had choice of sides in the issue. Granted that they supposed they were right in upholding government against rebellion; yet the law of consequences accepts no excuse for over-conservatism. He who fails to keep step with the march of events falls behind and suffers the consequences. The Loyalists were on the losing side and suffered the common fate of the conquered.
War is abnormal. It undermines ideas of justice prevalent in time of peace. Thus it came about that the treatment of the Loyalists reacted unfortunately on the patriots. They had harried the royal sympathisers out of the land. They had grown accustomed to using force and could not readily return to law-abiding methods. They would not obey even the provisions of a national treaty. The Articles of Confederation, under which they were attempting to live in concord, kept a State from laying a duty which would interfere with the proposed treaties with France and Spain. Otherwise there was no compulsion aside from the moral obligation attached to a treaty. However, John Jay, Secretary of Foreign Affairs, acting in the capacity of an Attorney-General, rendered an opinion that no State according to the Articles could disobey or even interpret the provisions of a national treaty. Congress adopted resolutions to the same effect. But without coercive power, resolutions of Congress were idle as the wind. Jay confessed to Jefferson in France, his fears that "some of the States had gone so far in their deviations from the treaty that I fear they will not easily be persuaded to tread back their steps." He also stated his conviction after investigation that there had not been a single day since the treaty had been signed in which it had not been broken by some State. Washington also testified to the helplessness of Congress by saying, "If you tell the Legislatures that they have violated the treaty of peace, and invaded the prerogatives of the Confederacy, they will laugh in your face." In this manner, a series of unfortunate diplomatic complications turned upon the British possession of the American forts along the frontier.
Nor was the impotence of the new nation exhibited toward England only in the western country. Because it drained almost the whole of the great inland valley, forming with its tributaries a network of ready-made highways, the Mississippi River assumed an importance to the trans-Alleghanian settlers which is lost in these days of artificial means of transportation. As Madison once said, "It is the Hudson, the Delaware, the Potomac, and all the navigable waters of the Atlantic States formed into one stream." It is true that the freedom of navigating the Great Lakes and the St. Lawrence was secured to these western people by the Treaty of 1783, but these ways to the sea were closed by ice during a portion of the year and were impeded by falls. The lower Mississippi, on the other hand, had neither of these obstructions to navigation. Near its mouth was the city of New Orleans, where ocean vessels lay ready to receive western products. The current made easy the voyage thither. For twenty years the traditionally easy-going Spaniard had held the mouth of the river, placing severe restrictions upon foreign traders, but too indolent to enforce them.
Great Britain and the United States had ignored Spain when they declared in the treaty of peace that the Mississippi, from its source to the Gulf, should remain for ever free and open to citizens of both countries. Perhaps because she was disappointed in not getting a portion of the middle valley away from the Americans in the course of the peace negotiations, Spain soon began to show that she was at least mistress of the lower part of the river. Just where her dominion began was uncertain. During the war, a Virginia captain raised his colours on the Mississippi a few miles above Natchez. A Spanish commandant buried a box near the same spot with the colours of his sovereign as a token of possession. After 1783, the flatboatmen, who adventured down the river with loads of tobacco, flour, or planks, seeking a market at New Orleans or adjacent settlements, found at the Walnut Bluffs, about ten miles below the mouth of the Yazoo River, a post of Spanish customs guards. These bade them lower their flag and put themselves under the protection of the governor of Natchez before proceeding. If the goods escaped paying a duty at this place, they were examined a second time when they reached the group of about one hundred houses, crowning the bluff, which constituted the city of Natchez. On a prominent point, commanding a view of the river for many miles, stood the governor's palace and the fort, at which were usually stationed about a score of Spanish troops.
The hardy frontiersmen, who escaped the perils of navigating the river as far as Natchez, bore the inspection and frequent seizure of their goods as a great hardship and unwarrantable action. Scarcely had trade opened after the war before Congress received a complaint from one Fowler that his flatboat loaded with produce for the New Orleans market had been seized for refusal to pay duties at Natchez. A few months later, Thomas Amis, a North Carolina trader, reported the seizure of his stock at the same point, consisting of 142 Dutch ovens, 53 pots and kettles, 34 skillets, 33 cast boxes, 3 pairs dog irons, a pair of flat irons, a spice mortar, a plough mould, and 50 barrels of flour.
Complaints of some of these seizures officially reached Congress. Countless tales of other infringements upon American rights on the lower Mississippi were told among the settlers along the western slope of the Alleghanies, arousing them to the conviction that they were being sacrificed by the commercial interests of the Atlantic plain who wished to preserve a profitable trade with Spain. Gardoqui had arrived at the seat of government in 1785 as the first representative of the Spanish King. He was determined, as he said, to make the lower Mississippi a "bone of contention" in negotiating the long-delayed treaty with the United States. Not much agitation on his part was necessary. The western people were wrought up to the determination to take matters into their own hands, if necessary, to procure an outlet to Europe for their goods. The rumour that Jay, Secretary of Foreign Affairs, had approved to Congress the suggestion of Gardoqui, that the river be closed for ten years as the price of a commercial treaty, drove them to the point of forcible resistance. The Spanish also continued to occupy posts on the American side of the Florida boundary line, but this was a grievance only as they were accused of arousing the Indians to hostility against American settlers. In truth, these western pioneers formed a long arm of people thrust out between Indians under British dominance on the north and Indians under Spanish control on the south.
Believing themselves outside the pale of eastern protection, the western people entertained various projects for self-preservation. George Rogers Clark, whose daring Virginia expedition into the Illinois country had gained him fame in the Revolutionary days, placed himself at the head of a volunteer company which called itself the "Wabash regiment," and had been recruited in Kentucky for an expedition against the Shawnee Indians. Clark had degenerated through intemperance into a kind of border freebooter. Turning his troops from the original purpose, he seized the goods of the Spanish traders at Post Vincennes as a retaliation upon the Spanish, and prepared to descend upon New Orleans. Congress was compelled to take strong measures for disbanding his followers and making amends to Spain. A short time after, another Kentuckian was at Vincennes organising men to drive out the Spanish and make a settlement at Natchez, presumably inside the limits of Georgia. "Ireland is a free country to what this will be when its navigation is entirely shut," he wrote to the governor of Georgia in unfolding his scheme. An emissary was sent through the Illinois French settlements to describe the Spanish outrages on the lower Mississippi. Seditious papers were circulating in Kentucky and in the revolutionary State of Franklin. "In case we are not countenanced," said one of these documents, "and succoured by the United States, our allegiance will be thrown off and some other power applied to. Great Britain stands ready with open arms to receive and support us." One adventurer assured Gardoqui that fifty thousand men would be in arms in the western country to get their commercial rights.
Even a more efficient government than a Confederation would have experienced difficulty in overcoming these decentralising effects of the Alleghany Mountains, before improved methods of transportation had annihilated the barrier. The people along the Atlantic Ocean and those in the Mississippi valley lived really in two parallel north and south plains, having easier outlets through foreign countries and therefore more points of contact with them than with each other. Although obscured by the later north and south sectionalism, this east and west difference for many years caused a fear in the older portion that the newer or valley part would secede from it. This fear began with the troubles over the navigation of the Mississippi, it was renewed by Genet's intrigues, it reached its climax in Burr's expedition, and it subsided only when railways and canal transportation had levelled the mountains and thereby lessened the importance of waterways.
European strategists made ready use of the isolated condition of the western people, not always with the object of absorbing them, but rather of using them in the great game of territorial acquisition played so many times on the American board. For instance, in 1787, the French Minister to the United States forwarded to his Government a document presented to him, evidently by a native of France residing in America, which described the extent of the Mississippi valley and the dissatisfaction of its inhabitants. The paper asserted that the people beyond the mountains
"seek for a new support and offer to the power which will welcome them advantages which will before long effect those which America, as it now is, could promise.... It requires a protector; the first who will stretch out his arms to it will have made the greatest acquisition that could be desired in this new world. Fortunate my country if she does not let this moment escape, one of those not presented twice."
A year or two later, the British consul at Philadelphia was suggesting to his Government the use of the western settlements of the United States in an expedition to be made against Spanish New Orleans. These frontiersmen would co-operate, he thought, in any measure that might tend to secure them a free trade which the uninterrupted passage of the Mississippi would effectually establish. He pronounced them a hardy race, adventurers by profession, and ready to seize every opportunity of profit or employment. They were described in a project for using them presented at another time to the French Government as "hardy, enterprising, good marksmen, lovers of liberty, and always armed."
The extent to which the western people were prepared to go in the Confederation days was a matter of much dispute, and was aired fully in the course of time by controversies in Kentucky politics. But their hardihood and capacity for achievement have never been questioned. They were qualified by nature to insist upon their rights even if such insistence embarrassed the foreign negotiations of the home Government. Bred in the rural districts of Virginia and the Carolinas, accustomed to solitude and privations, depending upon their rifles for food and largely for dress, they felt no ties binding them to home and the old life when once they had crossed the mountains. They were self-dependent in nearly every particular except arms and ammunition. Carrying the organising instinct of their English forefathers, they set up local government as rapidly as their numbers warranted. To be held as colonists by the States to the eastward of the mountains was contrary to that spirit of inherited freedom which had already made those States out of colonies. Just at the dawn of the Revolution the colonisation of the far-famed "blue grass" region of Kentucky had begun, when Daniel Boone led the Transylvania Company from North Carolina to found Boonesboro. Although the independent government which this company erected was suppressed by the governors of Virginia and North Carolina, the movement could not be stayed. A few years later, these Kentuckians, increased in numbers by the enormous migration thither, were holding secession conventions which Virginia thought wise not to resist. North Carolina repressed with some effort the independent State of Franklin, or "Frankland," the land of the free Franks, as it was first called, which John Sevier and other hardy spirits set up in what is now eastern Tennessee.
While these attempts to create independent States in the remote regions are now praised as evidences of the organising instinct of the American people, it must not be forgotten that at the time they were formed within the legitimate bounds of regular States and seriously threatened to impair their domains. The domain of a State is regarded as one of the most inviolable attributes of its sovereignty. The third Article of the Confederation bound the States to assist any of their number against attacks made upon its sovereignty. Not only were the States of Virginia and Kentucky threatened with the loss of territory through insurrection. The "Green Mountain boys," headed by Ethan Allen, had succeeded in setting up an independent State, with a popular innkeeper as governor, upon land claimed by New York. Against these infringements upon the integrity of the States, the Congress could do nothing more than draw up resolutions expressing "the highest disapprobation" of those who participated.
The experience of the National Government under the Articles of Confederation with the settlers on the frontier beyond the recognised limits of the thirteen States, although alarming at the time, was invaluable as a lesson. It taught thinking men not only that the Central Government must be given more power to protect the States themselves, but that these remote districts could be best governed by the central authorities. Every argument of this kind was timely since it might induce the States still holding out to yield their back lands as a common property. The beginning of ceding the western lands to the common stock is important as a precedent since it created ultimately the profit-sharing principle of the public domain. Mention has been made of the failure in Congress to place western bounds on certain States. When the Articles were sent to all the States for ratification before going into effect, individual State Legislatures had opportunity of making such boundary restriction the price of a national agreement. Individualism in this instance proved a blessing. It is important to an appreciation of the times to note that the State whose persistence won the victory was not one of the largest or most influential. Maryland was the eighth in rank of territory and probably the sixth in number of population. Her powerful neighbour and ancient enemy, Virginia, upon assuming statehood, had reiterated her charter claims to full one-half the territory of British North America, magnanimously "ceding" to the States of Pennsylvania, Maryland, and the two Carolinas the land of which they were already possessed.
As Virginia admitted, the British Government had always assumed that the Atlantic coast-plain was the seat of its thirteen American colonies, and had refused to acknowledge openly their claims much beyond the crest of the Alleghanies. The ownership of the vacant lands between the mountains and the Mississippi River was vested in the King under the name of "Crown lands." But no sooner had the struggle for independence begun than the colonies determined in case of success to claim the entire British possessions in those parts; that is, to the Mississippi. As early as 1776, Silas Deane, the commercial agent of the United States in Paris, suggested to Congress the sale of the vacant lands to French colonists as a means of paying the expenses of the war. The rich valley, when fully regarded as a possible spoil of war, became a golden apple of discord. It had been won, small States argued, "by the blood and treasure of all, and ought, therefore, to be a common estate."
Led more by the necessity for some kind of a national government to replace the rule of Britain thrown off in 1776 than by such appeals, the Legislature of New York in 1781 authorised her delegates in Congress to quitclaim all lands lying outside her present boundaries to the General Government for the benefit of present and future States of the Union. Although the claim of New York, based upon a treaty with the Indians, had been regarded as shadowy by other States, yet her greatly lauded action led in the same year to propositions from Virginia and, a few years later, to advances from Massachusetts and Connecticut resulting eventually in their giving up all territory north of the Ohio and west of Pennsylvania and New York. Persuaded by these favourable indications, Maryland signed the Articles, as heretofore described.
Whether the persistence of Maryland was due to her desire for the national good, to selfishness in wishing a share of the national spoils of war, or to animosity toward Virginia dating from their ancient boundary dispute, the result may well be pronounced the most important step toward union since the appointment of Washington to the head of a national army. The public domain was the first inheritance the needy National Government ever received aside from debts and disputes. Not that the pecuniary return from the sale of the public lands proved as large as at first imagined; but that this tangible asset gave some dignity to the intangible Union. The disposal of the land, as a profit-sharing enterprise, formed a business undertaking which concerned all the States. It could be managed only by the combined powers.
THE CARE OF THE PUBLIC LANDS
Having been entrusted with the responsibility of administering the back lands, Congress immediately entered upon the work of arranging a method for their survey and sale, and of devising a feasible government to be extended over them. The pressing need of securing a revenue from them, together with a realisation that prospective purchasers would require protection both from each other and from the savages, impelled the members to immediate action. Against the many failures with which the old Congress stands charged during the eight years of its national control, the ordinances for the disposition and government of the western lands form a most pleasant and redeeming contrast. The Congress faced an absolutely new task. There were many precedents in history for colonial holding, varying from the policy of Greece, which allowed complete severance of home ties, to that of Spain, which regarded colonies as existing solely for the benefit of the mother country. By adopting the one, the United States must have left the western emigrants to perish. The other was repugnant to a people who had just rebelled against even the moderate colonial system of Great Britain. Equality is the only standard for a republic. Congress had resolved in 1780 that the lands ceded to its jurisdiction should be "disposed of for the common benefit and be settled and formed into distinct republican States which shall become members of the Federal Union and have the same rights of sovereignty, freedom, and independence as the other States." Here was an action almost unprecedented. Instead of holding the outlying region as a colonial possession for the benefit of the older portion, or making it into an Indian hunting-ground as Britain had tried to do, the Confederation of States had voluntarily agreed to erect it into independent States upon perfect equality with themselves. It was a practical application of the principles of the Declaration of Independence, of no taxation without representation, and of the real equality of all portions of the domain. The action was taken for the very practical purpose of assuring the States that if they surrendered their claims to the western lands, their citizens who migrated thither would not lose their rights by changing from State to national sovereignty.
Jefferson is presumed to be the father of the ordinance which first collected these promises into a working model; but not even Jefferson, rejoicing in laying out imaginary states from the new national possession and giving classic names to them, could foresee that there was being called into existence a factor most dangerous to his beloved individualism. The people who would remove from the States and settle upon lands purchased from the National Government, would be under national protection, subject to national legislation, and eventually be admitted by the national power to national statehood. Their affection would be gradually won away from their native States to be centred on the Union. Yet the States had not been able to hold the lands individually. Thus was necessity silently making the Union.
The provisions of the Jefferson Ordinance of 1784 for the temporary government of the western territory have been almost lost sight of because, after it had been in operation for three years and little had been accomplished through difficulty of dealing with the Indians in possession of the land, circumstances arose which brought about a new ordinance superseding the old and changing it in its working details. Yet the first ordinance embodied the main principles in creating States which have since been followed. The number of people in any given portion of the public lands was to be the determining factor. Jefferson's ordinance would allow these settlers to establish a temporary government, to adopt the constitution of any one of the thirteen States, and to elect a legislature. When their number should reach twenty thousand, they would be allowed to call a convention and establish a permanent constitution and government. Upon attaining a population of free inhabitants equal to that of the least numerous of the thirteen original States (at this time probably Georgia, whose population was estimated at twenty-five thousand) they would be admitted on equal footing with the other States. Between the establishment of the temporary government and admission to statehood, the prospective state should be allowed a representative in Congress with a right of debating but not of voting. The well-known Ordinance of 1787, which replaced that of 1784, substituted for the temporary government to be erected by the settlers a ready-made administration of governor, secretary, and territorial judges, to be sent out by the National Government, and to continue until the free male population should number five thousand, when they were to be allowed to exercise home rule in setting up a territorial government. The standard for statehood was fixed definitely in the later ordinance at sixty thousand free inhabitants.
Jefferson, notwithstanding the supposedly aristocratic training of a Virginia environment, placed no qualification for suffrage or office in his ordinance. The Ordinance of 1787, presumably drafted under democratic New England ideas, placed a qualification of ownership of two hundred acres of land upon a representative in the territorial legislature and of fifty acres upon an elector for a representative. Here was an illustration of that revertive tendency in the sections which has maintained the national equilibrium. Accumulated wealth in the North was beginning to overcome the levelling creed of the Puritan, while the economic loss resulting from slave labour in the South was reducing the colonial Cavalier class in the planter States. The exceedingly profitable cotton culture had not yet developed in the Gulf States to create the ante-bellum aristocracy of the lower South, nor had the stream of European immigration set in to the Northern States to restore the levelling tendency there.
The two ordinances were alike in precluding the separation of any part of the territory from the United States, requiring the inhabitants to pay a portion of the national debt, and forbidding new States, to interfere with the sale of or to tax the national public lands within their limits.
Two provisions in Jefferson's first draft of the Ordinance of 1784 were struck out by the Congress before adoption. One, which forbade granting of titles of nobility, was eliminated because, as Jefferson wrote to Madison, "it was thought an improper place to encounter them." The contest against the introduction of aristocracy was unlikely to be precipitated in the backwoods bordering the Ohio River. Yet the provision would have been in keeping with the spirit of the times. Congress had recently rejected a proposition made to Washington by the Polish Order of Knights of Divine Providence that their order should be officially extended to the United States. The other eliminated provision, forbidding slavery and involuntary servitude in the territory after the year 1800 except as a punishment for crime, is important not only as the first attempted restriction of the slavery system by the National Government, but also as furnishing an interesting comparison with the later sentiment on this unfortunate controversy which affected every phase of United States history for a century.
When he incorporated this provision in his draft of the ordinance, Jefferson was but little in advance of the opinion of the day on the effects of employing slave labour. Never until its death was the system so near dissolution as in the organising days between the birth of the republic and the invention of the cotton-gin. State after State in forming its constitution, or by special enactment, arranged for immediate abolition or gradual emancipation. Even in slaveholding Virginia and North Carolina, few could be found to defend the system from an economic standpoint, although they had to admit the necessity of its use in the rice swamps of South Carolina and Georgia.
Lafayette was urging Washington to employ his recently acquired leisure in transforming slaves into free tenants. "Such an example as yours," he wrote from Cadiz, "might render it a general practice."
"Would to God a like spirit might diffuse itself generally into the minds of the people of this country," replied the Virginia farmer, "but I despair of seeing it. To set the slaves afloat at once would, I really believe, be productive of much inconvenience and mischief, but by degrees it certainly might and assuredly ought to be effected; and that too by legislative authority."
At the same time he put himself on record as determined never to add another to the number of his slaves by purchase. A petition for emancipation had just been introduced into the Virginia House of Delegates and was "rejected without dissent; but not without an avowed patronage of its principles by sundry respectable members," as Madison informed Washington. "A motion was made to throw it under the table, which was treated with as much indignation on one side as the petition itself was on the other."
Jefferson had been disappointed at an earlier time because no emancipation provision had been incorporated in the Constitution of Virginia.
"What a stupendous, what an incomprehensible machine is man!" he wrote in this connection, "who can endure toil, famine, stripes, imprisonment, and death itself in vindication of his own liberty and the next moment be deaf to all those motives whose power supported him thro' his trial and inflict on his fellow men a bondage, one hour of which is fraught with more misery than ages of that which he rose in rebellion to oppose."
An interesting commentary on the industrial progress of the country is afforded by comparing these early views of Southern statesmen upon the slavery system with those held by a later generation.
Public sentiment in Virginia was not ready to follow the champions of individual freedom to the emancipation point, and it refused as strenuously to be coerced as it did in later years. When the Quakers of Philadelphia attempted to secure by law the freedom of a body-servant whom a neighbour of Washington had taken with him on a visit to that city, the General wrote to his friend, Robert Morris, the wealthy merchant of Philadelphia, "If the practice of this society, of which Mr. Dalby speaks, is not discountenanced, none of those whose misfortune it is to have slaves as attendants, will visit the city if they can possibly avoid it."
However, the clause which was struck from the Ordinance of 1784 was not intended to abolish slavery where it already existed, but to prevent the extension of the system to new territory. It was the forerunner of a similar controversy which attended every addition to the national territory as the people spread westwardly, and which eventually became a strong factor in precipitating the Civil War. The motion to cast out was made by Spaight, of North Carolina, but Williamson, his colleague, voted to retain the clause and thus divided the State. Jefferson was outvoted by his two colleagues who favoured no restriction on the people desiring to migrate to the new lands. Maryland and South Carolina were the only Southern States unanimously against the clause. Six States north of the Mason and Dixon line voted to retain the clause. Jefferson took the defeat sorely.
"Seven States being requisite to decide the proposition affirmatively," he said, "it was lost. The voice of a single individual of the State which was divided or of one of those which were of the negative, would have prevented this abominable crime from spreading itself over the new country."
To Madison he reported, "South Carolina, Maryland, and! Virginia! voted against it. N. Carolina was divided as would have been Virginia had not one of its delegates been sick in bed." The absent member was young James Monroe, serving his first term in Congress.
The close vote, of which Jefferson complains, well illustrates the evils of voting by States in Congress. Seven affirmative State votes were necessary to retain the anti-slavery clause. Only eleven States were represented. One of these had but one delegate and his vote was cast out by the rule requiring a State to be represented by at least two delegates to participate in a vote. Of the ten States remaining, seven must have at least two delegates of an affirmative mind from each to retain the clause. Six of these States voted solidly to keep the restriction, but the seventh State could not be secured, as Jefferson stated. Considered by our present method of voting, sixteen of the twenty-three delegates present voted affirmatively and seven negatively; yet the motion was lost and the clause struck out. Rarely has the power of a minority been so great. The individual may be allowed to hide the mass by being held too close to the vision.
However, the defeat of Jefferson's plan of excluding slavery from the territory after the year 1800 must be considered fortunate by all in sympathy with the general purpose. By it, slavery would have been permitted in the western country for sixteen years. The large influx of migration into the territory within that period, especially from the Southern States, would have established the system too thoroughly to be eradicated. The difficulty with which slavery was permanently kept out, although expressly prohibited by the Ordinance of 1787, is a proof of this assertion. The clearing of the way for the later prohibitive action by striking out the clause tended to the ultimate good. On the other hand, it is pointed out that the Jefferson ordinance provided only for "a temporary government of the western territory" and covered "so much of the territory ceded or to be ceded by the individual States to the United States as is already purchased or shall be purchased of the Indian inhabitants and offered for sale by Congress." Eulogists of Jefferson argue, consequently, that if his restricting clause had been allowed to remain it would have prohibited slavery in all the land west of the thirteen States, both north and south, after the year 1800, and thus the entire slavery system would have died through non-extension. But it must be remembered that the only land thus far ceded lay north of the Ohio and immediately west of the free States. It is not conceivable that such a restriction would have been permitted to hold south of the Ohio and west of the slaveholding States, directly in the line of migration. Indeed, when the time did arrive to create a government south of the Ohio, interference with slavery was distinctly prohibited. It is true, also, that Jefferson's ordinance as adopted solemnly declared its articles a charter of compact to stand as unalterable constitutions both before and after the sale of any part of the vacant land; but that a new ordinance should supersede it after three years, simply because a proposed purchaser demanded some additional guarantees, is a proof that none of its provisions could have withstood the pressure of slave territorial expansion.
However, at the time, there seemed small prospect that the National Government would ever be required to make regulations for any territory south of the Ohio. Congress had sent out appeal after appeal to North Carolina, citing the action of the other States, and begging her to yield her claim to what is now the State of Tennessee. But she resisted until 1790. South Carolina retained control of a long, narrow strip, south of the present Tennessee and extending to the Mississippi, until 1787. Georgia, claiming almost the whole of the present States of Alabama and Mississippi, remained deaf likewise to the entreaties of Congress until 1802. Virginia, having yielded so much of her original claim as lay north of the Ohio, was disposed to retain her claim to the Kentucky country. Jefferson wished to yield all lying west of the mouth of the Kanawha. Washington approved of this limit, seeing, as he said, "the impolicy of this State's grasping at more territory than they are competent to the government of." This liberal sentiment was never sufficiently general to be effective. Thus it came about that the Southwestern territory, which Congress ultimately created from all land ceded south of the Ohio, was never more than a temporary and passing arrangement compared with the North-west territory.
After much study, Congress drew up the Ordinance of 1785 for the survey and sale of such land as might be given to its care. The details of this important arrangement in the story of the American people illustrate the advantages arising from instituting new governments at a stroke. The rectangular system of land surveys, like the decimal system of money, was devised and not inherited. Each has proved a blessing in its simplicity. The divisions of the land upon an even-number basis, the progressive numbering of the divisions, the elasticity of the system, and the subdivisions arranged to accommodate small purchasers, have conduced by their simplicity and adaptability to speedy disposition and settlement of the national domain and have minimised later litigation and discord. Since the history of the American people has been influenced so extensively and persistently by the disposal and peopling of the public lands, the simple survey system may be counted among the valuable parts of the national machinery.
Surveys were to be made by the "geographer" of the United States, assisted by a surveyor from each of the States. One-seventh of all lands surveyed was to be reserved for the land bounties promised to those who had served in the Continental army. An old handbill, frequently reproduced, shows that among the inducements to enlistment held out during the darkest period of the war were "Ease, affluence, and a good farm." The certificates issued to the soldiers at the close of the war in lieu of money were made receivable in payment for public land. A share in all gold, silver, lead, and copper mines was retained by the National Government. Lot number sixteen in every township was reserved for the maintenance of public schools. A provision for setting aside the section adjoining it for the support of religion was struck out, nor could a motion prevail to preserve it for "charitable uses." The votes on this question seemed to be governed purely by individual opinion. The delegates from Virginia, whose Legislature had just dealt the Established Church in that State its death-blow, voted to retain the reservation of land for religious purposes, much like the old church glebe lands. But the separation of Church and State had become too complete to enter upon a scheme so suggestive of establishment.
For three years the Ordinance of 1784 awaited the migration of settlers to the territory who would be protected by it, and, at the same time, put it into effect. Thomas Hutchins, the national "geographer," and his assistants from the several States, laid off seven ranges of townships, in the eastern part of the present State of Ohio, according to the land Ordinance of 1785, before rumours of hostile Indians drove them back. The Secretary of War was instructed to draw by lot enough of the surveyed land to satisfy such bounty land certificates as might be presented and to advertise the remainder for sale. United States troops were employed to drive out the "squatters" on the public lands, to burn their cabins, and destroy their crops. But not an acre was sold in those three years, not a certificate of national indebtedness redeemed, and not a shilling received from the land sales for the needy treasury.
The Jefferson ordinance had been intended for such western lands as might from time to time be given to the National Government. But no land south of the Ohio was surrendered. Congress, therefore, determined to cast aside the old ordinance, and to form the portion yielded into a specific territory, with a new ordinance which would allow more leeway in forming the States and give Congress more control over the domain from its incipience. Accordingly, Johnson, of Maryland, offered a new ordinance in the spring of 1786, which passed to a second reading. With the exception of the reforms noted above, it closely resembled the old ordinance. But in July following, after an interregnum of no quorum, the Congress passed, by an almost unanimous vote and after a consideration of only a few days, an entirely new law governing the territory north-west of the Ohio. It was the famous Ordinance of 1787. Its sudden transformation, inexplicable to early investigators and solved only by later research, was the result of a business transaction connected with the bounty certificates given to the Revolutionary soldiers.
During the progress of the war, it had been necessary to secure enlistment by offering bounty lands. The desire to realise on these promises was shared by officers and privates alike. Doubtless around many a camp-fire, as the war drew to a close, the value of these land certificates was discussed, and plans made for "associating" to form colonies in the "back lands" to which the soldiers were winning both right and title. The danger-line in the future would be along the frontier, where the newly won empire must be guarded from invasion both from British Canada and the Spanish Floridas, and where the advancing line of pioneers must be protected from hostile Indians. Bands of these "associators" were organised to obtain their allotments in the new country and to settle upon them. They would "plant a brave, a hardy, and respectable race of people as our advanced post," wrote Washington in presenting the project to Congress. "A settlement formed by such men would give security to our frontiers; the very name of it would awe the Indians."
One body of men, styling themselves "The Ohio Company of Associators," composed of ex-Revolutionary officers and privates residing in and about Boston, sent a botanist-parson, the Reverend Manasseh Cutler, to the Congress in the summer of 1787, to urge a proposition they had advanced for the purchase of a large tract on the Ohio River. These "adventurers," as they styled themselves, were desirous of driving a good bargain in a low price for the land and also of gaining certain guarantees from Congress which would give them as much personal liberty and protection in the new home and under the National Government as they enjoyed in their present residences under their State Governments. Cutler, provided with forty-two letters of introduction to members of Congress and prominent citizens of New York city, reached the seat of government in due time. "At 11 o'clock," he wrote in his private journal, "I was introduced to a number of members on the floor of Congress Chamber, in the City Hall, by Colonel Carrington, member from Virginia. Delivered my petition for purchasing lands for the Ohio Company, and proposed terms and conditions of purchase." Fortunately there was a quorum in Congress, the first in nearly two months. A few days later, Cutler was sent a copy of the Johnson ordinance then pending. To this he proposed "several amendments." Three days afterward, the celebrated Ordinance of 1787, for the government of that portion of the territory north-west of the Ohio, was completed and adopted to Cutler's satisfaction. "It is in a degree remodelled," he wrote in his journal. "The amendments I proposed have all been made except one, and that is better qualified."