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Union and Democracy
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UNION AND DEMOCRACY

by

ALLEN JOHNSON

Professor of American History Yale University



]



Houghton Mifflin Company Boston New York Chicago

The Riverside Press Cambridge

Copyright, 1915, by Allen Johnson All Rights Reserved

The Riverside Press Cambridge, Massachusetts U. S. A.



PREFACE

The title of this volume must be regarded as suggestive rather than as strictly accurate, for the beginnings of union are to be found farther back than 1783, and democracy in its largest sense has even yet been only imperfectly realized. At the close of the Revolution, union was but a name. What Metternich said of the Italy of his day might have been said of the United States in 1783: it was only a geographical expression. The formation of the new federal union under the Constitution is properly the main, though not the sole, theme of this volume. Behind the thirteen Atlantic communities lay a vast region which almost at once invited the colonizing activities of the people. The rise of this western world is a movement of immense significance. Out of the bosom of the West emerged the new democracy which transformed the face of society in the old States. Whether viewed economically or politically, this forms the second theme in any history of the times. Around these two movements, therefore, I have endeavored to group the events of forty-five years.

Within the last few years special studies have added much to the common stock of historical information, and in many ways effected changes in the historian's point of view. The time seemed proper to restate the salient factors in the history of this formative period. I have frankly appropriated the labors of others. Had the plan of the series permitted the use of footnotes, I would gladly have made particular acknowledgment of my indebtedness. At the same time I have not hesitated to present the results of my own studies where they have led away from the conventional view of men and events.

In preparation of the maps showing the popular vote in the elections of 1800 and 1824, I have drawn largely upon the data which Dr. Charles O. Paullin, of the Carnegie Institution, has generously put at my disposal. In States where the presidential electors were not chosen directly by the voters, other votes, such as those for governor, have been made the basis for determining the popular choice among party candidates for the presidency. Two of my graduate students, Miss Isabel S. Mitchell and Mr. Joseph E. Howe, have given me valuable assistance in the execution of the maps. I am under particular obligation to my colleague, Professor Stewart L. Mims, for reading critically both manuscript and proof.

Allen Johnson.



CONTENTS

I. The Ordeal of the Confederation 1

II. The Making of the Constitution 25

III. The Restoration of Public Credit 46

IV. The Testing of the New Government 68

V. Anglomen and Jacobins 89

VI. The Revolution of 1800 105

VII. Jeffersonian Reforms 123

VIII. The Purchase of the Province of Louisiana 143

IX. Faction and Conspiracy 161

X. Peaceable Coercion 179

XI. The Approach of War 197

XII. The War of 1812 212

XIII. The Results of the War 231

XIV. The Westward Movement 245

XV. Hard Times 266

XVI. The National Awakening 282

XVII. The New Democracy 298

XVIII. Politics and State Rights 318

XIX. The Rise of National Sovereignty 331

Index i



MAPS AND CHARTS

The United States in 1783 facing 1

State-making in the West, 1783-87 9

Distribution of Votes in Ratification of The Constitution: The New England States 37 The Middle States 39 The Southern States 42

Distribution of Population, 1790 49

Vote on Assumption 59

The Northwest, 1785-95 71

Vote on the Repeal of the Alien and Sedition Acts, February 25, 1799 between 112 and 113

Presidential Election of 1800 between 116 and 117

Distribution of Population, 1800 125

Vote on the Repeal of the Judiciary Act, March 2, 1802 between 134 and 135

The Yazoo-Georgia Land Controversy 168

The Tonnage of the United States, 1807 185

Vote on the Embargo, December 21, 1807 between 190 and 191

Vote on the Declaration of War, June 4, 1812 between 208 and 209

Land Sales and Land Offices To 1821 248

The Cotton Crop in the United States, 1801-34 250

The West As an Economic Section in 1820 253

Treaty With Spain, 1819 263

Distribution of Slaves in 1820 270

Vote on the Missouri Compromise, March 2, 1820 278

Russian Claims in North America 293

Distribution of Population, 1820 299

States Admitted To the Union Between 1812 and 1821 306

Vote on the Tariff Bill, April 16, 1824 between 310 and 311

Presidential Election of 1824 between 314 and 315

Vote on the Tariff Bill, April 22, 1828 between 328 and 329

Canals in the United States About 1825 341

Highways of the United States About 1825 344



UNION AND DEMOCRACY



[Map: The United States in 1783]



UNION AND DEMOCRACY

CHAPTER I

THE ORDEAL OF THE CONFEDERATION

It was characteristic of the people of the United States that once assured of their political independence they should face their economic future with buoyant expectations. As colonizers of a new world they were confident in their own strength. When once the shackles of the British mercantile system were shaken off, they did not doubt their ability to compete for the markets of the world. Even Washington, who had fewer illusions than most of his contemporaries, told his fellow citizens of America that they were "placed in the most enviable condition, as sole lords and proprietors of a vast tract of continent, comprehending all the various soils and climates of the world, and abounding with all the necessaries and conveniences of life." Independence was the magic word which the common man believed would open wide the gates of prosperity. Yet within a year after the ratification of the Peace of Paris, American society was in the throes of a severe industrial depression.

Contrary to the accepted view, the latter years of the war were not years of penury and want among the people. Outside of those regions of Virginia and the Carolinas, which were devastated by the marching and countermarching of the combatants, the people were living in comparative comfort. North of the Potomac, indeed, there was even a tendency to speculation in business and extravagance in living. Throughout the war farmers had found a ready market for their produce within the lines of the British and French armies. The temporary suspension of commerce had encouraged many forms of productive industry. As the war continued, venturesome skippers eluded British men-of-war and found their way to European or Dutch West India ports, bringing home rich cargoes in exchange for tobacco, flour, and rice. The prizes brought in by privateers added largely to the stock of desirable and attractive merchandise in the shops of Boston, Philadelphia, and Charleston. If such prosperity could follow in the wake of war, what commercial gains might not be expected in the piping times of peace? In anticipation of immediate returns, merchants drew heavily upon their foreign creditors and stocked their shops with imported commodities. Southern planters indulged similar expectations and bought land and slaves on credit, regardless of the price. "A rage for running in debt became epidemical," wrote a contemporary observer. "Individuals were for getting rich by a coup de main; a good bargain—a happy speculation—was almost every man's object and pursuit."

During the hard times of 1785-86 these golden dreams vanished. Instead of sharing as the people of an independent nation in the trade and commerce of the world, American shippers found themselves no better off than they were as dependents of Great Britain. Orders in council at once closed the ports of the British West Indies to all staple products which were not carried in British bottoms. Certain commodities,—fish, pork, and beef,—which might compete with the products of British dependencies, were excluded altogether. The policy of France and Spain was scarcely less illiberal. The effect was immediate. Cut off from their natural markets, American shipowners were forced either to leave their vessels to rot at their wharves or to seek new markets. For months there seemed to be no other alternative. At the same time the new industries which had sprung up during the war had to meet the shock of foreign competition, as the British manufacturer dumped on American wharves the accumulated stock of his warehouses. The plight of the small farmer and of the large planter was much the same; for both had incurred debts in expectation of continued prosperity.

Everywhere people complained of hard times. Discouragement and ill-humor displaced the buoyant optimism with which peace had been heralded. "What is independence?" asked a writer in A Shorter Catechism. "Dependence upon nothing" was the cynical answer. In many States the popular discontent found vent in a vindictive crusade against the Tories. Even sober-minded citizens shared the general detestation of these unfortunate people. In the heat of war Washington had declared them to be "abominable pests of society" who ought to be hanged as traitors. The States had quite generally confiscated their property and in some cases had passed acts of attainder against them. In communities like New York, which had long remained in the hands of the British, the popular animosity was exceedingly bitter. To aid those citizens who had been dispossessed of their estates, the legislature passed the Trespass Act, which permitted suits for the recovery of property that had passed into the hands of the enemy upon the flight of the owners. The terms of the act were in flat contradiction to the treaty of peace. Further to aid claimants, it was provided that no military order could be pleaded in court in justification of the seizure of property.

In a famous case brought before the Mayor's Court of New York by the widow Rutgers to recover her property from Joshua Waddington, a wealthy Tory, Alexander Hamilton appeared as counsel for the defendant. It was a daring act which brought down upon him the unmitigated wrath of the radical elements. Nevertheless, in an opinion which has considerable interest for students of constitutional law, the court ruled that the Trespass Act, "by a reasonable interpretation," must be construed in harmony with the treaty of peace, which was obligatory upon every State. It was not to be presumed that the legislature would intentionally violate the law of nations. The judgment of the court therefore, was in favor of the defendant. With chagrin and resentment the popular party declared that the court had set aside a law of the State and had presumed to set itself above the legislature. Wherever the radicals got the upper hand, confiscation was the order of the day; and even where the conservatives succeeded in restraining their radical brethren from legislative reprisals, no Tory was safe from the assaults of irresponsible mobs. Thousands took refuge in flight, to the infinite delight of the wits in the coffee-houses who jested of the "Independence Fever" which was carrying off so many worthy people.

Financially the Confederation was hopelessly embarrassed. Having sowed the wind by its issues of bills of credit, it was now reaping the whirlwind. By the end of the war this paper money had so far depreciated that it ceased to pass as currency. "Not worth a continental" has passed into our native idiom. Without power to levy taxes, Congress could only make requisitions upon the States. The returns were pitifully inadequate to the needs of government. All told, less than a million and a half of dollars came into the treasury between 1781 and 1784, although Morris, as Superintendent of Finance, had earnestly besought the governors of the States for two millions for the year 1783 alone, in order to meet outstanding obligations and current expenses. Without foreign and domestic loans the war could never have been carried to a successful conclusion; but in 1783 even that source was drained. In sheer desperation Congress authorized the Superintendent of Finance to draw bills of exchange, at his discretion, upon the credit of loans which were to be procured in Europe. In vain Morris warned Congress that no more loans could be secured. "Our public credit is gone," he declared.

The obvious remedy for the financial ills of the Confederation was to give Congress the power to levy taxes. Early in 1781, indeed, before the Articles of Confederation had been ratified by Maryland, the proposal had been made that Congress should be vested with power to levy a five per cent duty on imports; but the obstinate opposition of Rhode Island effectually blocked the amendment. "She considered it the most precious jewel of sovereignty that no State be called upon to open its purse but by the authority of the State and by her own officers." Again, in 1783, Congress submitted to the States an amendment which would confer upon it the power to place specific duties for a term of twenty-five years upon certain classes of imported commodities. The tardy response of the States to this proposal left little hope that it would be adopted.

In fact, the Confederation and its woes hardly occupied the thoughts of the people at all, except as a subject for jest and ridicule. The newspapers made merry over the peregrinations of Congress. Frightened away from Philadelphia by the riotous conduct of some troops of the Pennsylvania line, who had imbibed too freely, the delegates had withdrawn first to Princeton and then to Annapolis. Thither Washington repaired to resign his commission; but even so notable an occasion as this brought together delegates from only seven of the States. The best talent in America was drafted into the service of the several States. Men had ceased to think continentally. "A selfish habitude of thinking and reasoning," wrote one who styled himself Yorick, in the New York Packet, "leads us into a fatal error the moment we begin to talk of the interests of America. The fact is, by the interests of America we mean only the interests of that State to which property or accident has attached us." "Of the affairs of Georgia," Madison confessed in 1786, "I know as little as those of Kamskatska."

On all sides intelligent men agreed that the return of prosperity depended upon the opening-up of foreign trade. Their immediate concern was the recovery of old markets. When John Adams went to London in 1785 as the first representative of the United States, he bent all his energies to the task of securing a commercial treaty which would provide for unrestricted intercourse between the countries. It was an impossible task. At every turn he encountered the hostility of the mercantile classes, of whom Lord Sheffield was the most conspicuous representative. "What have you to give us in exchange for this and that?" "What have you to give us as reciprocity for the benefit of going to our islands?" "What assurance can you give that the States will agree to a treaty?" These were the embarrassing questions which Adams had to encounter. Baffled by the cool indifference of the English Ministry, Adams wrote home in despair that there was not the slightest prospect of relief for American commerce unless the States would confer the power of passing navigation laws upon Congress or themselves pass retaliatory acts against Great Britain.

Congress had, indeed, already urged upon the States the necessity of yielding the power to enact navigation laws; but they had replied with such deliberation and with so many conditions that Congress was as powerless as ever. Meantime, each State struck blindly at the common enemy with little or no regard for its neighbors. "The States are every day giving proofs," wrote Madison, "that separate regulations are more likely to set them by the ears than to attain the common object." When the other New England States closed their ports to British shipping, Connecticut hastened to profit at their expense by throwing her ports wide open. New Jersey, with New York on one side and Pennsylvania on the other, was likened to a cask tapped at both ends. To find a historical parallel to the annals of this period, one must go back to the bickerings and jealousies of the states of ancient Greece.

In this dark picture, however, there are cheering rays of light. One by one the States were redeeming their promises and ceding their western lands. It seemed as though the Confederation, hitherto a disembodied spirit, was about to tenant a body. By the year 1786 the United States were in joint possession of the greater part of the vast region between the Ohio, the Mississippi, and the Great Lakes—a domain of imperial dimensions. In anticipation of these cessions, Congress took under consideration an ordinance reported by a committee of which Thomas Jefferson was chairman. This ordinance contemplated the division of the land north of the thirty-first parallel into fourteen or sixteen States. The settlers in these rectangular areas were not to form state governments at once, but for their temporary government were to borrow such constitutions as they thought best from the older States. When a State had twenty thousand inhabitants, it might frame a permanent constitution and send a delegate to Congress. Admission to the Union was to be granted only when a State had as many free inhabitants as "the least numerous of the thirteen original States." Two features of Jefferson's report do not appear in the Ordinance of 1784; the fantastic names which Jefferson had selected and the fifth of the fundamental conditions which were to be a charter of compact between the old States and the new. It is perhaps no misfortune that the names Assenisipia, Polypotamia, Pelisipia, do not appear on the map; the article prohibiting slavery after the year 1800 might well have been retained.

[Map: State-Making In the West 1783-1787]

More important than the Ordinance of 1784, which indeed is interesting chiefly because it was the forerunner of the final ordinance for the Northwest Territory, is that adopted by Congress in the following year. The so-called Land Ordinance of 1785 provided in general for the survey of a series of townships six miles square in the region immediately west of Pennsylvania, and for the further division of each township into thirty-six lots, or, as they were later styled, "sections," one mile square. After satisfying the claims of the soldiers of the Continental Army, Congress proposed to distribute these lands among the States, to be sold at auction for a minimum price of one dollar an acre, reserving certain sections in each township and one third of the mineral ore which might be found. The sixteenth section in each township was to be set aside for the support of education. Each purchaser was to receive with his deed a definite description of his holding. Subsequent amendments to the Land Ordinance made the terms of purchase somewhat easier. Instead of making an out-and-out purchase, prospective settlers might pay one third in cash and receive a credit of three months for the balance of the purchase price. Yet even with these inducements only seventy-three thousand acres had been sold to individuals down to 1788. The hazards of western settlement were still too great.

Disappointed in the sales under the Land Ordinance, Congress was persuaded to consider the alternative course of selling large tracts to companies. The collapse of national credit left the public domain almost the only available source of revenue. Early in 1787 the Ohio Company offered to purchase a tract of land between the Ohio and Muskingum Rivers. The promoters of this company had been interested in an earlier project of army officers for the founding of a military colony beyond the Ohio. Organized at Boston in March, 1786, with a nominal capital of one million dollars, it had within a year raised one fourth of that amount and sent first General Samuel Parsons and then the Reverend Manasseh Cutler to secure the desired grant from Congress. The labors of this astute divine at the seat of government form an interesting chapter in the evolution of American legislative methods. By devices well known to the modern lobbyist he not only secured the grant of land, but also took a hand in the shaping of a new ordinance for the Northwest Territory. In order to secure the grant to his associates, he had to resort to log-rolling and agree to procure for a group of land speculators an option to lands on the Scioto River. The grant to the Ohio Company contained a million and a half acres; that to the Scioto Company, five million acres. But while the one paid down half a million dollars, the other made no payment, expecting to dispose of their "rights" before the first payment was due. In the following year a third grant of a million acres on the Great and Little Miami Rivers in Ohio was made to John Cleve Symmes.

From these sales Congress expected to realize over three and a half million dollars in public securities and at the same time to satisfy military bounty warrants amounting to about eight hundred thousand acres. The actual amount realized was less than six hundred thousand dollars. The Scioto Company succeeded in disposing of rights to about three million acres to a company organized in France, which in turn sold them to unsuspecting royalist emigrants. Neither company ever secured a clear title to these lands, and Congress had eventually to come to the relief of the unhappy French settlers with a donation of twenty-four thousand acres. Unforeseen circumstances prevented either the Ohio Company or Symmes from complying with the conditions of sale; and in both cases Congress consented to alter the terms of contract.

On July 13, 1787, Congress adopted the ordinance which it had long had under consideration. The authorship of this "charter of the west," after long controversy, is still in dispute. Like all legislative measures it bears the mark of many hands. Certain features of Jefferson's ordinance reappear: the provision for temporary government and eventual statehood, and the fundamental articles of compact. Other provisions are stated in a detailed fashion and suggest the probability that Congress had definite conditions to meet. The ordinance took final form while the Reverend Manasseh Cutler was representing the Ohio Company in New York. Perhaps the most striking departure from the Ordinance of 1784 is the provision for not less than three nor more than five States north of the Ohio, where Jefferson planned for ten. Admission to the Union was to be gained only after the population had reached sixty thousand. Temporary government was to consist of a governor, a secretary, and three judges appointed by Congress, who were to adopt such laws from other States as they believed suited to local conditions. In each and every case Congress reserved the right to disallow these laws. Whenever a territory attained a population of five thousand, it was to pass to the second grade of government, with a representative assembly, an appointive council, and a delegate in Congress.

Six articles of compact were also written into the ordinance, which were to remain forever unalterable except by the common consent of the parties thereto—"the original States and the people and States in the said territory." Freedom of worship, the usual rights of person and property, and the obligation of private contracts were guaranteed. Religion, morality, and education were to be forever encouraged. Neither slavery nor involuntary servitude was to be permitted. In imposing these conditions Congress undoubtedly exceeded its powers under the Articles of Confederation, for that document nowhere confers upon Congress the power to make binding contracts, nor for that matter to legislate in any wise for the government of the common domain.

The Ohio Company hastened to colonize its broad acres on the Muskingum. Before the end of the year 1787, the vanguard of the first colony was on the march through Pennsylvania to the upper waters of the Ohio. There they spent the winter constructing the craft which was to carry them to their destination. As soon as the ice broke up in the spring, they embarked on the Mayflower,—for so they had christened the craft,—and within five days set foot on the soil of Ohio. Other bands joined them, and by midsummer their rude huts and a blockhouse marked the site of what was to be the town of Marietta, the first New England settlement in the West. Across the Muskingum, at Fort Harmar, the new governor, General St. Clair, had already taken up his official residence. Farther down the river, Symmes planted a colony from New Jersey on the tract which he had purchased; and within the next few years settlements were made in the adjoining district, which Virginia had reserved as bounty land for her soldiers. The vision of virgin lands in the Ohio country was beginning to dawn upon the small farmer of the East. Emigration grew apace. Between February and June, 1788, an observer noted not less than forty-five hundred settlers drifting past Fort Harmar in their flatboats, in search of new homes in the wilderness.

While the colonization of the Northwest was going on under the eye of Governor St. Clair, hardy pioneers were laying the foundations of a new society in the Southwest, without the protecting arm of the Government. Before the war Daniel Boone had made his famous trace to "the country of Kentucke" through the Cumberland Gap; and Robertson had led his colony from North Carolina to the upper waters of the Tennessee. Settlers had followed the long-rangers; and numerous communities sprang up by salt lick and water course. In all these settlements there was much local independence. For a time the people on the Watauga had established a government of their own. Upon the cession by North Carolina of her western lands, the settlers of eastern Tennessee took matters into their own hands and prepared to organize as a State. Congress had just adopted the Ordinance of 1784, and one of Jefferson's prospective States included most of the land already appropriated by these pioneers. They nourished, too, long-standing grievances. They were taxed for the support of a government which treated them with contumely and ignored their administrative needs. The movement toward independence acquired such headway that not even the repeal of the act of cession by North Carolina could stay its course. With a confidence born of frontier conditions these "modern Franks, the hardy mountain men," as a contemporary called them, drafted a constitution, organized a government, and appealed to Congress for recognition as a State of the Confederation. For three years the State of Franklin, as it was officially christened, under the able leadership of Governor John Sovier, refused to recognize the authority of North Carolina, even to the point of resisting the militia by arms. But Congress turned a deaf ear to the petitions of the insurgents; and in the year 1788, diplomacy succeeding where coercion had failed, the people of Franklin returned to their first allegiance.

Much the same centrifugal forces were at work in northwestern Virginia and western Pennsylvania, a region which felt its isolation keenly. "Separated by a vast, extensive and almost impassible Tract of Mountains, by Nature itself formed and pointed out as a Boundary between this Country and those below it," the settlers of this trans-Alleghany region besought Congress to recognize them as a "sister colony and fourteenth province of the American Confederacy."

More menacing to the integrity of Virginia was a movement for independent statehood among the people of Kentucky. Rivers were the highways of their commerce and the current of all bore their flatboats away from the parent State. New Orleans was their inevitable entrepot. The forces of nature seemed to conspire to throw these western settlements into the hands of Spain. Washington was deeply impressed by the necessity of connecting the headwaters of the James and the Potomac with the tributaries of the Ohio, if the trade and allegiance of the people of Kentucky were to be secured to Virginia and to the Union. "The western States," he wrote to Governor Harrison of Virginia, "stand as it were upon a pivot. The touch of a feather would turn them any way." The situation in Kentucky became more acute as intimations reached the people that John Jay was proposing to renounce the free navigation of the Mississippi.

In the summer of 1785, Don Diego de Gardoqui, the first accredited Minister from Spain, arrived in the United States to settle all outstanding differences between the two countries. Congress appointed John Jay as its diplomatic agent and instructed him to hold insistently to the thirty-first parallel as the southern boundary of the States and to the free navigation of the Mississippi. The prospect of agreement was very slight. The American claims were based solely on the Treaty of 1783 which the King of Spain was determined not to recognize. Negotiations dragged on for months. Reporting to Congress in August, 1786, Jay advised the abandonment of the claim of free navigation of the Mississippi for the sake of securing an advantageous commercial treaty with Spain. The delegates from Northern States were ready to barter away the Southwest; but the Southern delegates succeeded in postponing action until the impotent Confederation gave way to a more perfect union.

At the Court of St. James, John Adams was having no better luck in pressing the rights of the moribund Confederation. Notwithstanding the explicit terms of the Treaty of 1783, British garrisons still held strategic posts along the Great Lakes, exercising a strong influence upon the Indians and guarding the interests of British fur traders. Such a situation would have been intolerable to a self-respecting nation. Smothering his pride, Adams mustered all the diplomacy which his nature permitted and sought an explanation of this extraordinary conduct from the ministers. He was finally told that he need not expect Great Britain to relinquish the Western posts so long as the States continued to put obstacles in the way of the collection of British debts.

A general reluctance to meet financial obligations was a deplorable aspect of the depression to which American society had succumbed. In all the States there was a more or less numerous class of debtors who were convinced that the Government could help them out of all their distresses. As the cause of all their woes was the scarcity of money, why, let the Government manufacture money and so put an end to the stringency. What Madison called "the general rage for paper money" seized upon Rhode Island, New Jersey, Pennsylvania, the Carolinas, and Georgia. Coupled with paper-money acts were others designed to alleviate the distress of the unfortunate. Stay laws of one sort or another were devised to keep the wolf, in the guise of the sheriff, from the door. Legal-tender acts made cattle and produce equivalent to money when offered in payment of debts. Nor was this legislation inspired altogether by dishonest intent. Many believed with Luther Martin, of Maryland, that there were times of great public distress and extreme scarcity of specie when it was the duty of the Government to pass stay laws and legal-tender acts, "to prevent the wealthy creditor and the moneyed man from totally destroying the poor, though even industrious, debtor."

No State suffered more from the paper-money aberration than Rhode Island. Under pressure from the radical elements the legislature passed an act for the emission of bills of credit which were to be issued to any freeholder who would offer as security real estate of any sort to double the amount of the loan. "Many from all parts of the State made haste to avail themselves of their good fortune, and mortgaged fields strewn thick with stones and covered with cedars and stunted pines for sums such as could not have been obtained for the richest pastures." But when they sought their creditors, not a merchant nor a shop-keeper could be found. Nobody fished to have a just debt discharged in such currency. Not to be thwarted in their purpose, the radicals then enacted a law which threatened with a summary trial and a heavy fine any one who refused to accept paper money in payment of debt.

Under this Force Act, one John Weeden, a butcher, was brought to trial for refusing to receive the paper offered by a customer in payment for meat. To the discomfiture of the legislature the court refused to enforce the law in this instance, on the ground that the statute was contrary to the constitution of Rhode Island; and when summoned before the legislature to answer for their defiance, the judges boldly stood their ground. The case of Trevett v. Weeden was not without its lesson to those who were casting about for ways and means to defend property from the assaults of popular majorities. In Virginia, too, the highest state court, in the case of Commonwealth v. Caton, boldly asserted the right of the judiciary to declare void such acts of the legislature as were repugnant to the constitution.

Meantime the debtor and creditor classes in Massachusetts were locked in a struggle which menaced the peace of the country. Here as elsewhere hard times had forced the small farmers of the interior counties to the wall. No doubt their difficulties were caused in part by their own improvidence, but they were increased by the prevailing scarcity of money. So dire was the want of a medium of exchange that many communities resorted to barter. The editor of a Worcester paper advertised that he would accept Indian corn, rye, wheat, wood, or flaxseed, in payment of debts owed to him, up to the amount of twenty shillings. It seemed to the ignorant farmer that his creditors were taking an unfair advantage of circumstances in demanding currency to settle debts which had been contracted when money was abundant. The law, however, favored the creditor. The jails were filled to overflowing with men imprisoned for debt; the courts were overwhelmed with actions. In Worcester County, with a population of less than fifty thousand people, there were in 1784 two thousand cases on the docket of the Inferior Court of Common Pleas. In this age of litigation only one class appeared to thrive—the lawyers. The anger of the poor debtors, inflamed by attachments and foreclosures, vented itself upon the ostensible cause of their misfortunes. The excessive costs of courts and the immoderate fees of lawyers are grievances which bulk large in every indictment drawn by town meeting or county convention. Young John Quincy Adams, then a senior in Harvard College, was so affected by the odium which had fallen upon the practice of law that he was almost ready to abandon the career which he had chosen.

The adjournment of the General Court in July, 1786, without authorizing an issue of paper money or passing a legal-tender act or fixing the fees of lawyers and the costs of courts, contributed to the unrest which was now assuming a threatening aspect. During August and September riotous mobs prevented the courts from sitting at Northampton, Worcester, Great Barrington, and Concord. Alarmed by these disorders Governor Bowdoin convened the legislature in special session and summoned the militia to the protection of the capital. While the legislature was devising ways and means of allaying the public excitement, another demonstration occurred at Worcester which resulted in the dispersion of the Court of General Sessions by a force of armed men. From Worcester the disorders spread into adjoining counties; and something like a concerted movement upon Boston and Cambridge seemed to be preparing. The prompt action of the state authorities however, balked the plans of the insurgents. The main body of insurgents under Shays scattered; but a month later they rallied around Springfield to prevent the holding of court. Governor Bowdoin then dispatched troops, four thousand strong, under the command of General Lincoln, to the assistance and protection of the civil authorities. A civil war seemed imminent. Shays had planned an attack upon the national arsenal at Springfield, but he could not bring his rustics to act together. Before the determined resistance of the local militia his undisciplined troops broke and fled. The arrival of the state militia under Lincoln completed the demoralization of Shays' army. Retreating through the hilly country of Hampshire, they wore finally overtaken and routed at Petersham. Some of the insurgents went to their homes, completely humbled and subdued; others fled across the border to await better times; and still others, unrepentant and unsubdued, continued to harass the countryside. It was not until the following September that Governor Bowdoin ventured to disband the militia.

To these disturbances in Massachusetts, Congress had not remained indifferent. Aside from the direct interest that all members were bound to take in a rebellion which seemed to threaten the very foundations of a sister State and which might easily recur in their own, Congress was concerned for the fate of the national arsenal at Springfield. But no forces were available for the protection of the property of the Confederation. The few hundred men who comprised the army were scattered in garrisons along the western frontier. Acting as intermediary between Congress and Governor Bowdoin, General Knox as Secretary of War made what provision he could for the defense of the arsenal by local militia; but these measures were confessedly inadequate. Upon his report Congress was finally moved to increase the army, ostensibly for the protection of the frontier, where in truth Indian hostilities required the presence of additional troops. As these forces would be raised chiefly in New England, they could be employed first to protect Springfield. Any open avowal of this plan was avoided, however, lest the insurgents should take alarm and immediately attack the arsenal. But these plans were wrecked on the reef of financial bankruptcy. Congress could only supplicate the States for money and borrow what it might on its expectations. Recruiting went on so slowly that the rebellion was practically over when two companies of artillery, numbering seventy-three men each, which had been raised in Massachusetts, were finally marched to Springfield. All the other recruits were dismissed. The inefficiency of Congress and its want of moral influence were self-confessed.

In his famous circular letter of 1783, Washington had spoken of the times as a period of "political probation." The moment had come for the United States to determine, said he, "whether they will be respectable and prosperous, or contemptible and miserable, as a nation." Three years had now passed and the period of probation seemed to have ended in the ruin of national hopes. The events of the years 1786 made a profound impression upon the minds of all responsible and conservative men. In undisguised alarm, Washington wrote: "There are combustibles in every State which a spark might set fire to.... I feel ... infinitely more than I can express to you, for the disorders which have arisen in these States. Good God! Who, besides a Tory, could have foreseen, or a Briton, predicted them?" Rightly or wrongly, men of the upper classes believed that the foundations of society were threatened and that the State Governments would fall a prey to the radical and unpropertied elements, unless a stronger Federal Government were created. "With this idea, they are thinking, very seriously," wrote an interested observer at the seat of Federal Government in New York, "in what manner to effect the most easy and natural change of the present form of the Federal Government to one more energetic, that will, at the same time, create respect, and secure properly life, liberty, and property. It is, therefore, not uncommon to hear the principles of government stated in common conversation. Emperors, kings, stadtholders, governors-general, with a senate or house of lords, and house of commons, are frequently the topics of conversation." There were those who frankly advocated a monarchical government as the only way of escape from the ills under which American society was laboring. There is reason to believe that a project was on foot to invite Prince Henry of Prussia to become the head of a new consolidated government. The influence of the Order of the Cincinnati was much feared by friends of republican institutions. Individually members of the order did not hesitate to express their impatience with popular government. What was to come out of this political chaos, no man could tell.

BIBLIOGRAPHICAL NOTE

The two most extensive histories dealing with the period of the Confederation are George Bancroft's History of the Formation of the Constitution of the United States of America (2 vols., 1882) and G. T. Curtis's History of the Origin, Formation, and Adoption of the Constitution of the United States (2 vols., 1854). In the fourth volume of Hildreth's History of the United States (6 vols., 1849-52), a concise but rather dry account of the Confederation may be found. More entertaining is John Fiske's The Critical Period of American History, 1783-1789 (1888). Valuable information bearing on the social as well as the political history of the times is contained in the first volume of J. B. McMaster's History of the People of the United States from the Revolution to the Civil War (7 vols., 1883-1913). More recent histories of the period are A. C. McLaughlin's The Confederation and the Constitution, 1783-1789 (in The American Nation, vol. 10, 1905), and Edward Channing's History of the United States, vol. III (3 vols., 1905- ). A vigorous narrative of the exploits of the pioneers beyond the Alleghanies has been written by Theodore Roosevelt, Winning of the West (4 vols., 1889-96). A more restrained account of the beginnings of Western settlement is B. A. Hinsdale's The Old Northwest, the Beginnings of our Colonial System (1899).



CHAPTER II

THE MAKING OF THE CONSTITUTION

Notwithstanding the manifold differences between State and State in the Confederation, there were everywhere groups of men who confronted much the same economic conditions. Between the farmer who tilled his sterile hillside acres in the interior of New England and the cultivator of the richer soil of the Piedmont in Virginia and the Carolinas, a greater identity of economic interests existed than the casual observer would have suspected. The feeling of hostility which circumstances bred in the followers of Daniel Shays toward the merchants of Boston was akin to that which the farmers of middle and western Pennsylvania harbored toward the aristocratic and wealthy classes of Philadelphia and the eastern counties. A similar antagonism appears between the yeomen of the uplands and the planters of the tidewater farther to the south, accentuated, no doubt, by religious and racial differences. The Scotch-Irish or German dissenter, who was treated with contempt as a foreigner and forced to support a church established by a State Government which discriminated against numbers and in favor of property, was not likely to feel kindly toward the tidewater aristocracy. Bad crops spelled disaster for these farmers, for they had incurred debt to purchase their lands and had borrowed capital to work them. In hard times they were the first to suffer, for whether money was scarce or plentiful, the tax-collector and the money-lender knocked inexorably at their doors. Bad roads kept them isolated and want of intercourse bred much ignorance and prejudice in even honest men. Were the recorded grievances of these inland groups brought together, they would show a surprising agreement.

Set over against this interior population with predominant agrarian interests were those classes, urban for the most part, whose income was derived from personal rather than real property. Even at this time a capitalist class of no mean proportions existed. No inconsiderable part of this personalty was invested in shipping and manufacturing. A part, not easily determined, was tied up in Western lands, which appealed strongly to the speculative instincts of the American. The amount of money at interest was also considerable in States like Massachusetts. As creditors of the debt-burdened farmers these classes were everywhere on the defensive. To this group should be added the holders of public securities, both state and continental, who could not have remained uninterested witnesses of the demise of the Confederation.

The logic of events was drawing these holders of personal property together. Capitalists with idle money found the avenues to profitable investment closed by the inability of Congress to offer protection to either manufacturing or shipping; creditors with money at interest witnessed with alarm the inability or unwillingness of state legislatures to resist attacks upon private contracts and public credit; holders of public securities shared the general contempt for a Government, which, so far from providing for the ultimate redemption of its obligations, could not even pay interest on its debts; speculators in lands despaired of a rise in values so long as the Government could not defend its borders and protect its frontier population. The desire of all these classes, from Boston to Charleston, was for a Government which would govern.

Under these circumstances the idea of a special convention to revise the Articles of Confederation grew in favor. Some of the States, notably Delaware, Massachusetts, and New Hampshire, had employed constituent conventions to draft new frames of government. The legislature of New York had in 1782 proposed a convention to revise the Articles of Confederation. At the suggestion of Governor Bowdoin, the General Court of Massachusetts had resolved in 1785 in favor of such a convention; but the delegates in Congress, for reasons best known to themselves, had refused to present the resolution. In any case Congress could hardly be expected to take the initiative.

For many years Virginia and Maryland had been at loggerheads over the navigation of the Potomac River and Chesapeake Bay. In 1784 commissioners from both States met at Alexandria, and subsequently at Washington's country-seat, at Mount Vernon, to make a last effort to adjudicate their differences. It speedily appeared that the question of commercial regulations was one that concerned also their neighbors to the north. Maryland proposed that Pennsylvania and Delaware should be invited to a further conference. The assembly of Virginia went still further and appointed delegates to meet with delegates from other States "to take into consideration the trade of the United States" and "to consider how far a uniform system in their commercial regulations may be necessary to their common interest and their permanent harmony." Annapolis was selected as the place of meeting.

The response of the States to this call was disappointing. Only five States sent delegates. Positive action on trade relations was, of course, out of the question. But Alexander Hamilton, who attended as a delegate from New York, drafted a report which went far to redeem the situation. Addressed to the legislatures of the States represented at Annapolis, it called attention to the critical state of the Union and the need of a convention of delegates with wider powers from all the States; and in conclusion, it named Philadelphia and the second Monday in May, 1787, as a suitable place and time for such a convention. "From motives of respect" a copy of this report was sent to Congress.

With its wonted indecision, Congress dallied with this bold proposal until late in the following February. Meantime, Virginia and other States appointed delegates to the convention which Congress had not yet sanctioned. When Congress finally issued the summons, it made no reference to the Annapolis Convention, though it took over bodily the recommendations of that body. The sole and express purpose of the convention was declared to be the revision of the Articles of Confederation.

The delegates to the Philadelphia Convention were to be "appointed by the States." As a matter of course, the choice devolved upon the legislature in every instance. To what extent the active economic interests directed and controlled the selection is a mere matter of speculation. Certain it is that the members of the convention belonged to the governing class in their respective communities. Almost to a man they had held important public positions. To a surprising extent they came from the commercial sections of their States. "Not one member represented in his immediate personal economic interests the small farming or mechanic classes." A large majority were "directly and personally interested in the outcome of their labors through their ownership of property, real or personal." Many were holders of public securities and profited by the later funding operations of the new Government; some had invested in Western lands; others had capital invested in manufacturing, shipping, and slaves. Thus circumstanced, they had no mind to try doubtful experiments in government.

Among the first of the delegates to reach Philadelphia was James Madison. Other members of the Virginia delegation soon joined him, and on the 13th of May, Washington made what was really a triumphant entry into the city. When the 14th dawned only a few delegates had arrived. Inclement weather and bad roads detained many, no doubt; but a general dilatoriness in heeding the summons was accountable for the tardiness of others. Until a majority of States were represented, the delegates could only adjourn from day to day. That the gentlemen from Virginia put this time to good use appears from the plan which they drew up as a tentative program and which Randolph presented to the convention. Indeed, there is little doubt that much unrecorded progress was made throughout the convention by informal conferences among the leaders.

It was not until Friday, May 25, that seven States were represented and a preliminary organization could be effected. Washington was the unanimous choice for president, though tradition has it that Franklin was the first choice of many delegates. Altogether, though not at any one time, there were fifty-five delegates in attendance from twelve States. Rhode Island was never represented. The average attendance was hardly more than thirty. It was possible, therefore, to adopt simple rules of procedure and to permit full discussion. The credentials of the delegates gave them, with a single exception, free hand in revising the Articles of Confederation. Delaware alone forbade its representatives to make any alterations which should deprive the State of its equal vote in Congress.

As the doors closed on this notable body in the chamber over Independence Hall in the State House, profound secrecy enveloped its proceedings. Not until the publication of the journal by act of Congress in 1819 were the actual proceedings of the convention divulged; and many more years passed before Madison's notes on the debates were given to the curious public. The earth scattered on the pavement to silence the rattling of wheels and the sentries stationed at the doors to warn intruders gave added emphasis to the importance of this gathering.

The task before the convention was one of immense difficulty. The most general criticism of the Confederation was that expressed in the vague phrase, "lack of power"; but the defect could not be overcome merely by giving new powers to Congress. Any such increase of authority involved a delicate readjustment of the relations of the States to each other and to the central Government. Before the convention had been in session a fortnight, a line of cleavage among the delegates appeared. To the most obtuse mind the resolutions presented as the Virginia plan seemed to reach far beyond any mere revision of the Articles of Confederation. Randolph frankly admitted the scope of his resolutions by urging that a union of the States merely federal would not suffice. The convention so far yielded to the general drift as to adopt, in committee of the whole, the resolution "that a national government ought to be established consisting of a supreme Legislative, Executive, and Judiciary."

As the group of nationally minded delegates, led by Madison and Wilson, of Pennsylvania, seized this initial advantage and secured the acceptance, step by step, of the main features of a national government, the delegates from the smaller States drew together in alarmed opposition. It was in their behalf that Paterson, of New Jersey, presented his resolutions. In contrast to the Virginia plan, this held out only the prospect of an improved Confederation. Additional powers were to be given to Congress and there was to be an executive and a supreme judiciary; but the basal principle of the Confederation—the equality of the States—was left untouched. Given the alternative between the New Jersey plan and the Virginia plan as amended, seven States voted for the latter. Only New York, New Jersey, and Delaware preferred the former. The vote of Maryland was divided. The convention then returned to the detailed consideration of the amended Virginia plan. The large-State men were now disposed to make some concessions. The word "national" was dropped from all the resolutions; and minor changes were made in the interest of harmony. But on the fundamental question of what was termed "proportional representation,"—that is, representation of the States in proportion to numbers in the national legislature,—no agreement seemed possible. More than once the convention was on the point of adjourning sine die. Even the usually placid Franklin suggested that "prayers imploring the assistance of Heaven ... be held in this Assembly every morning."

In spite of the opposition of the smaller States, the convention finally voted that the rule of suffrage in the first branch of the legislature ought not to be according to that established by the Articles of Confederation. Debate then turned on the manner of constituting the upper chamber. On July 2, a vote was taken on the proposal of the Connecticut delegation that each State should have an equal vote in the upper house. The result was a tie, five States against five, with the vote of one State divided. The deadlock seemed complete.

Hoping that a compromise might even yet be effected, General Pinckney proposed a committee of one from each State to consider the whole matter. Opposition was made, but the convention indorsed the proposal and chose the members of the committee by ballot. The selection was obviously favorable to the small-State party, for the committee abandoned the idea of proportional representation in the second chamber. On July 5, it recommended that in the first branch of the legislature there should be one representative for every forty thousand inhabitants in each State, counting three fifths of the slaves, and that in the second chamber the States should have an equal vote. The first proposition underwent further changes at the hands of a special committee, but the principle of representation was accepted. On July 16, the first proposition as amended and the second proposition without change were adopted by a vote of five States to four, with the vote of one State divided. Very properly historians have termed this the great compromise of the Constitution, for without it the further work of the convention would have been impossible. In agreeing that three fifths of the slaves should be counted in apportioning representation, the convention made no innovation, but simply took over the federal ratio which Congress had recommended in 1783 as the basis for future apportionment of requisitions among the States. On this point there was no great difference of opinion in the convention.

It would be a mistake, however, to suppose that with this obstacle to union removed, the Constitution speedily took form. On the contrary, every proposal bristled with controversial points. The Northern commercial States demanded insistently that Congress should be given power to regulate commerce. It was, indeed, the desire of the commercial classes in all the States that Congress should be given power to pass retaliatory acts against Great Britain, but the planters of the Carolinas and Georgia feared—not without reason—that the power to regulate commerce might be used to interfere with the importation of slaves. Here, too, the spirit of compromise prevailed. The power was granted, but the importation of such persons as the States thought proper to admit was not to be prohibited before the year 1808.

From first to last, divergent views were held as to the constitution of the chief executive office. After the initial question, whether the office should be single or plural, was decided, the manner of election remained to be considered. The early proposal to make the President elective by the national legislature was dropped as the office assumed greater importance in the general scheme. If the independence of the legislature was to be maintained, some form of indirect popular choice was favored. But if the people were to elect, the larger States would have a decided advantage. Here was the old question in another form. The electoral scheme finally adopted was essentially a compromise. In most instances—Mason, of Virginia, said nineteen out of twenty times—it was believed that the electors would so scatter their votes that no candidate would have a majority; consequently the Senate would make a choice from among the five candidates having the highest votes. By this arrangement the large States would in effect nominate and the small States elect the President. But because the Senate had already been given extensive powers, the convention transferred the final election to the House, with the provision that the vote there should be by States. The eventual election of a Vice-President was left to the Senate, whenever the electoral college failed to make a choice.

From time to time the convention resorted to committees to facilitate its work. Most important services were rendered by the committee of detail, which early in August put into orderly and connected form the conclusions which the convention had reached. It was the committee on unfinished business which suggested the method finally adopted of electing the President. In its final form and phrasing the Constitution is the work of Gouverneur Morris, who prepared the report of the committee of style.

Citizens of Philadelphia who took up their copies of the Pennsylvania Advertiser on Tuesday, September 17, found to their surprise that the columns were completely filled with the new Constitution. This was their first intimation of what the convention had really done. Rumor had stalked abroad that the convention was rent by dissensions; but the envious reader saw at the end of his paper the words, "Done in convention by the unanimous consent of the States ... in witness whereof we have hereunto subscribed our names." Done by unanimous consent of the delegates the Constitution was not, for not all the delegates who were present on the last day would affix their signatures. It was Gouverneur Morris who suggested the phrase which gave a specious unanimity to the work of the convention.

The thoughtful reader of the Constitution must have been impressed by the new features which caught his eye. In place of the old inefficient and powerless Congress, he observed a well-organized national legislature, an independent executive, and a federal judiciary of ample jurisdiction. Further scrutiny must have apprised him that the new Government would operate directly upon individuals, thus remedying a vital defect in the Confederation. The powers given to Congress may well have set at rest the minds of anxious public creditors. With the power to lay and collect taxes, to raise and support a military and naval establishment, and to regulate commerce, Congress had ample means to pay the public debt, to enforce its claims, and to offer protection to trade and industry. Not less significant to property-owners were the brief clauses in the new Constitution which sharply forbade States to emit bills of credit, to make anything but gold and silver legal tender in payment of debts, and to make laws impairing the obligation of contracts.

[Map: Distribution of Votes in Ratification of the Constitution The New England States (Based on the map of Dr. O. G. Libby)]

But what guaranty was there that States would observe these prohibitions? The power to coerce a State was nowhere conferred. The militia, to be sure, could be called out to execute the laws; and the United States guaranteed to every State a republican form of government and promised protection against domestic violence. Congress could deal surely and effectively with any future Shays if it were invited to do so. But what if a State passed a law violating the obligation of contracts? The answer is contained in the clause which reads: "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." This and the correlative clause which extended the judicial power to all cases arising under the Constitution, the laws and the treaties of the United States, may be called the keystone of the whole constitutional structure. "For the first time in history, courts are called upon by the simple processes of administering justice, in cases where private right or personal injury is involved, to uphold the structure of the body politic." And there were those in the convention who believed that the principle of judicial control included the power of passing upon the constitutionality of laws enacted by Congress.

It was still within the power of the old Congress to expedite or block the ratification of the new Constitution. The document which the Philadelphia Convention presented was technically only a revision of the Articles of Confederation, which might be altered only with the consent of the legislatures of all thirteen States; but the last article of this new instrument provided that when ratified by conventions (not legislatures) in nine States, it should go into effect among the States so acting. In effect, Congress was asked to sanction a secession of nine States from the old Union which had been declared perpetual. Making a virtue of necessity, Congress finally yielded and passed the Constitution on to the States.

[Map: Distribution of Votes in Ratification of the Constitution The Middle States (Based on the map of O. G. Libby)]

Since the party struggles of Whigs and Tories no campaign of continental proportions had ever been seen like that which ensued between the friends and foes of the new Constitution. By their forehandedness and their clear perception of what they must do, the Federalists, as the proponents of better government styled themselves, had a slight tactical advantage. The Anti-Federalists resented the assumption of the name by their opponents. They were the true friends of federal government, while the friends of the new Constitution aimed to set up a consolidated government. The press teemed with letters and essays, allegories and satires, squibs and pasquinades, expostulating, warning, ridiculing. The public was invited to heed the admonitions of Cato, Cassius, and many another worthy Roman.

Although much the same arguments, sober or satirical, were used everywhere, the campaign had to be fought out in the several States, each with its own peculiar social, economic, and political conditions. In Massachusetts the eastern counties, with their dominant commercial and mercantile interests, favored the Constitution, while the interior agricultural section, which had fought the battles of the Revolution and recruited the ranks of Shays' army, opposed it. The interior counties of New York containing the farming population were Anti-Federal, while the city and county of New York with its environs—the commercial section—were Federalist. In Pennsylvania, those who had opposed the domination of the Scotch-Irish and German radicals in the State Government now united in advocacy of the new Constitution. Here as elsewhere the Federal area corresponded closely to the counties where commercial and mercantile interests were most in evidence. In Virginia, the old-time social and economic antagonism between east and west, between the planters and merchants of the tidewater and the small farmers of the interior, reappeared. Much the same alignment is found in the Carolinas. Beyond the Alleghanies, the people were a unit in opposing the Constitution.

Detailed studies of the geographical distribution of votes in the state conventions, and recent investigations in the archives of the Treasury Department, sustain the conclusion to which the historian is driven by the testimony of contemporaries, that the fundamental opposition between the advocates and opponents of the Constitution was based on distinctions of wealth. On his first view of the Constitution young John Quincy Adams wrote in his diary: "It is calculated to increase the influence, and power, and wealth of those who have any already." A writer in the Boston Gazette declared that the supporters of the Constitution consisted generally of the noble Order of Cincinnatus, holders of public securities, bankers, and lawyers: "these with their train of dependents form the Aristocratick combination." Over against this should be put the remark of Alexander Hamilton: that the new Constitution encountered the "opposition of all men much in debt, who will not wish to see a government established, one object of which is to restrain the means of cheating creditors." According to John Adams, the Constitution was "the work of the commercial people in the seaport towns, of the planters of the slaveholding states, of the officers of the Revolutionary army, and the property-holders everywhere."

From November to the following July the campaign continued. Delaware, New Jersey, and Georgia ratified the Constitution unanimously; Connecticut by a majority of three to one; and Pennsylvania, by a majority of two to one. But there is reason to believe that these majorities in the ratifying conventions did not reflect public opinion accurately. Massachusetts, Maryland, and South Carolina followed hesitatingly, each proposing amendments to the Constitution. Toward the end of June the ninth State, New Hampshire, threw in her lot with the majority; and on the heels of this news came the intelligence that the Old Dominion had also ratified. The Constitution was now the law of the land. In the stanch Federal city of Philadelphia, the Fourth of July was celebrated with great rejoicing, for in the parlance of the time the sloop Anarchy was ashore on Union Rock, the old scow Confederation had put to sea, and the good ship Federal Constitution had come into port bringing a cargo of Public Credit and Prosperity.

[Map: Distribution of Votes in Ratification of the Constitution The Southern States, 1787-1790 (Based on the map by Dr. O. G. Libby)]

But until New York ratified the Constitution this rejoicing was premature. Geographically New York was a pivotal State. A union without this member was not worthy of the name. The task of the Federalists was here most difficult. Fully two thirds of the convention were at first opposed to the Constitution. The leadership of the Federalists fell to Hamilton. Together with James Madison and John Jay, he contributed to the newspapers a series of essays in advocacy of the Constitution, which, under the title The Federalist, have become a classic in our political literature. Just how the Federalists succeeded in overcoming a hostile majority and in securing a ratification of the Constitution by a vote of thirty to twenty-seven, remains a mystery to this day.

Half a century later it became the habit of statesmen of the nationalist school to speak of the Constitution as the work of the people of the United States. John Marshall declared the Constitution to be "an expression of the clear and deliberate will of the whole people." As a matter of fact, no direct popular vote was taken at any stage in its evolution. The delegates to the Philadelphia Convention were chosen by the state legislatures; their work was ratified by conventions of delegates in the several States; and these delegates were chosen in every State but one on a carefully limited suffrage. New York alone provided that delegates to the convention should be elected on the basis of manhood suffrage. Elsewhere property qualifications were imposed which disfranchised probably about one third of the adult male population. In all the States a considerable proportion of the voters abstained from voting. In Boston, where twenty-seven hundred were qualified to vote, only seven hundred and sixty took the trouble to vote for delegates to the state convention. A recent writer hazards the guess that "not more than one fourth or one fifth of the adult white males took part in the election of delegates to the state conventions." If this be true, the Constitution expressed something less than the will of the whole people and perhaps not even of a majority. The making of the Constitution was clearly the work of a party rather than of the whole people. In the ranks of the Federalist party were the wealth and intelligence which made possible concerted and rapid action. The leadership fell naturally to those who had been accustomed to public life. From this point of view, the adoption of the Constitution was the triumph of a "natural aristocracy."

Meantime, Congress nearing its end made testamentary provision for its heir. After much wrangling and vacillation, it fixed upon New York as the seat of the new Government and summoned the States to choose presidential electors, Senators, and Representatives. The new national legislature was to assemble on the first Wednesday in March, which fell upon the 4th. To this summons, two States turned a deaf ear. Not having ratified the new Constitution, North Carolina and Rhode Island were strangely circumstanced. Of all the States which had entered into the "firm league of friendship," they alone remained loyal—loyal, but discredited.

BIBLIOGRAPHICAL NOTE

Full accounts of the work of the Federal Convention may be found in the histories of Bancroft and Curtis; briefer accounts, in the volumes already cited, by McMaster, Fiske, McLaughlin, and Channing. A succinct narrative is given by Max Farrand, The Framing of the Constitution (1913). A suggestive volume, treating of the Constitution as the resultant of conflicting economic interests, is C. A. Beard's An Economic Interpretation of the Constitution of the United States (1913). Among the special studies of the ratification of the Constitution may be mentioned, O. G. Libby, The Geographical Distribution of the Vote of the Thirteen States on the Federal Constitution, 1787-1788 (1888); McMaster and Stone, Pennsylvania and the Federal Constitution, 1787-1788 (1888); S. B. Harding, The Contest over the Ratification of the Federal Constitution in the State of Massachusetts (1896); and F. G. Bates, Rhode Island and the Formation of the Union (1898). The most illuminating notes of the debates in the Convention were those taken by James Madison, which are printed in the Records of the Federal Convention (3 vols., edited by Farrand, 1911). The most valuable commentary on the Constitution is still The Federalist, written by Madison, Hamilton, and Jay.



CHAPTER III

THE RESTORATION OF PUBLIC CREDIT

"The people have been ripened by misfortune for the reception of a good government," Washington wrote to Jefferson, in the midsummer of 1788. "They are emerging from the gulf of dissipation and debt into which they had precipitated themselves at the close of the war. Economy and industry are evidently gaining ground." There is, indeed, abundant evidence that thrift and enterprise were steadily banishing hard times. The task of establishing the new government was made incomparably easier by the confidence inspired by returning prosperity.

Already West India commerce had resumed very nearly its old volume. Both France and Spain had made concessions to vessels which came to the island ports laden with American produce. The Dutch and the Danish islands had always been kept open to American trade; and evidence is not wanting that the needs of British West India planters were stronger than their respect for orders in council. At all events, by hook or crook, American farm products and lumber found their way to British planters as well as to their French competitors. But something more than the resumption of the West India traffic was needed to restore prosperity. Necessity drove American sea captains to longer voyages and larger ventures. American vessels found their way in increasing numbers through the Baltic to Russia, and around Cape Horn to the Pacific ports, to China, and to the East Indies. One of the pioneers of this traffic to the Far East was Captain Robert Gray, of Boston, who, in his ship, the Columbia, doubled the Cape of Good Hope and completed the first American voyage around the world.

While hardy seamen were seeking new markets, American ingenuity was trying to reproduce the machinery which was coming into use in England for the manufacture of textiles. In the year 1789, Pennsylvania was manufacturing cotton cloths, hats, and "all articles in leather," while Massachusetts was making cordage, duck, and glass. "The number of shoes made in one town, and nails in another, is incredible," wrote Washington. When Hamilton made his famous report on manufactures two years later, he described some seventeen industries which had already attained considerable proficiency, though nearly all of these were carried on in the household.

The dawn of the 4th of March was saluted by the guns at the Battery in New York and by the ringing of church bells. This day was to witness the inauguration of the new Government. Delusive expectation! The dilatory habits of a decade were not so readily unlearned. To the amusement of ill-wishers, barely a score of Congressmen appeared in the city; and the carpenters were still at work remodeling the old City Hall into a fitting habitation for the new Federal Congress. It was not until the 30th that enough Representatives were in attendance to make up a quorum and to permit the House to organize. Another week passed before the Senate could organize.

On the 6th of April, the Senate summoned the House to attend the counting of the electoral votes. It then appeared that George Washington had received the highest number (69) and John Adams the next highest (34). This happy result had not been achieved without some concerted action among the Federalist leaders. The great personal influence of Washington was needed, indeed, to give dignity to the new office. While messengers were hastening to inform Washington and Adams of their election, the members of Congress had ample opportunities to look each other over. If they were not well known to each other, they were at least conspicuous in their respective communities. Nearly every man had held public office under his State Government and a large proportion had sat in the state conventions which had ratified the Constitution. Over two thirds of the Representatives counted themselves Federalist, or at least friends of the new Constitution.

[Map: Distribution of Population 1790 (Indian Tribes beyond the settled area)]

On the 30th of April, the Senate and House in joint session received the President-elect. With simple ceremonies as befitted the occasion, the inauguration of our first President was consummated. Stepping from the Senate chamber upon the balcony, Washington looked out upon the crowds which thronged Wall Street. The Chancellor of New York administered the oath, the populace shouted, "Long live George Washington, President of the United States!" and then the President withdrew to deliver his inaugural address.

When the minutes of the Senate were read next day an incident occurred, which, trivial as it seems, was indicative of a spirit that may be truly characterized as American. The President's address was referred to as "His most gracious Speech." In a moment the doughty Maclay, of Pennsylvania, sprang to his feet with a vigorous protest. These were words which savored of kingly authority and which were odious to the people. He moved that they be struck out. Vice-President John Adams remonstrated mildly; he saw no objection to borrowing the practices of a government under which we had lived so long and happily. Senator Maclay was on his feet at once with the declaration that the sentiments of the people had undergone a change adverse to royal government. Such a phrase on the minutes of the Senate would immediately be represented as "the first rung of the ladder in the ascent to royalty." Maclay had his way and the offensive phrase was erased. Much the same republican spirit appeared in the debate on titles. The Senate would have preferred to address the President as "His Highness, the President of the United States and Protector of their Liberties"; but the House insisted on having the plain title, "President of the United States."

Even before the inauguration, the House of Representatives had entered upon its first tariff debate, for an immediate revenue was needed if the wheels of government were to move. Madison was ready with a scheme of customs duties patterned very largely after the ill-fated project of 1783. On all sides it was agreed that taxes should be external rather than internal, upon foreign rather than domestic commerce. Madison advocated duties upon "articles of requisition likely to occasion the least difficulty," such as spirituous liquors, molasses, wines, tea, coffee, cocoa, pepper, and sugar. But almost at once the idea was broached that indirect aid should be given to certain industries. The clash of opposing sectional interests appears even in this first debate. In the end Madison's simple revenue measure was set aside. Specific duties were levied on more than thirty articles, and ad valorem duties ranging from five to fifteen per cent on all others. Revenue was still the main object, but protective duties were deliberately grafted upon the bill. Tonnage dues were fixed in a separate act, while still another act laid the foundations of our national fiscal administration. In every State, side by side with local officials, yet independent of state control, there were to be collectors, surveyors of ports, inspectors, weighers, gaugers, measurers,—in short, so many living witnesses to the existence of a self-sufficient central government.

When Congress addressed itself to the work of establishing the executive departments, questions of constitutional interpretation thrust themselves into the foreground. Experience under the Confederation proved the need of at least the three departments of foreign affairs, war, and treasury. Bills to establish these departments were at once framed and favorably considered, but exception was taken to the provisions making the heads of these departments, who were appointed by the President and Senate, removable by the President alone. It was finally agreed to assume that the President had the power to remove from office. The act was therefore made to read, "Whenever said principal officer shall be removed by the President." In this wise, by legislative construction, the Constitution was expanded at many points in the early years of the new Government.

The bill to establish the Treasury Department was drawn in accordance with the ideas of Hamilton, for it was expected that he would be the first incumbent of the office. It may have been his well-known partiality for British institutions that caused the House to mistrust the phrase which made it the duty of the Secretary "to digest and report plans for the improvement and management of the revenue, and the support of the public credit." "If we authorize him to prepare and report plans," argued Tucker, of Virginia, voicing that fear of executive authority which was then instinctive, "it will create an interference of the executive with the legislative powers; it will abridge the particular privilege of this House.... How can business originate in this House, if we have it reported to us by the Minister of Finance?" The House was not minded to make Alexander Hamilton a Chancellor of the Exchequer. The bill was amended to read, "digest and prepare." Subsequently the House showed unmistakably its determination to assume direction of the national revenues and expenditures.

One of the first concerns of Congress was to give substance to the colorless statement of the Constitution that there should be one supreme court and such inferior courts as Congress should ordain and establish. On the day following its organization, while the House was grappling with the question of revenue, the Senate appointed a committee to bring in a bill to establish the federal courts. The chairman of this committee was Oliver Ellsworth, of Connecticut, who had sat on the bench of the Court of Appeals under the Confederation and who had been an influential member of the Federal Convention. The bill reported by the committee was substantially his work. It provided for a supreme court bench of six judges—a chief justice and five associates; for thirteen district courts, each with a single judge; and for three circuit courts, each of which was to consist of two justices of the Supreme Court and a district judge. Lengthy provisions in the act carefully delimited the jurisdiction of these courts, and laid down the modes of procedure and practice in them. Of great importance was the twenty-fifth section, which provided for taking cases on appeal to the Supreme Court from the lower federal and state courts. The words of the act, by a fair implication, would seem to confer upon the Supreme Court the power to review the decision of a state court holding an act of the United States unconstitutional. It would seem to follow logically that the Supreme Court might do also directly what it might do indirectly—declare an act of Congress void by reason of its repugnance to the Constitution. Ellsworth, at least, held that in the discharge of their ordinary duties, the judges of the federal courts would have the right to pronounce acts of Congress void when they stood in conflict with the Constitution. Attempts were made, in the course of the debate on the Judiciary Act, to strip the federal courts of all jurisdiction except in admiralty and maritime cases. Many members of Congress agreed with Maclay in thinking that the Judiciary Act was calculated to draw all law business into the federal courts. "The Constitution is meant to swallow all the state constitutions, by degrees," averred the worthy Senator from Pennsylvania; "and this [bill] to swallow, by degrees, all the state judiciaries."

The wisdom of the new President appeared in his appointments to office. Concerned solely with the fate of the federal experiment, he sought consistently the support of those who would add weight to the new Government, and who were Federalists in politics. Not only personal fitness but sectional interests had to be taken into consideration. Washington was solicitous to draw "the first characters of the union" into the judiciary, particularly those who had served in the state courts and commanded public confidence. His choice for Chief Justice fell upon John Jay. Rutledge, of South Carolina, Wilson, of Pennsylvania, Cushing, of Massachusetts, Harrison, of Maryland, and Blair, of Virginia, were first named as Associate Justices. Washington chose his chief advisers also from different sections. Thomas Jefferson was invited to become Secretary of State—a post which he accepted somewhat reluctantly. Hamilton did not have to be urged to take the headship of the Treasury. Knox was given the superintendence of a military establishment which then numbered only a few hundred men. Edmund Randolph was appointed Attorney-General.

Before Congress adjourned in the fall, it adopted and sent to the States for ratification twelve amendments to the new Constitution. There were those who thought this action precipitate. Why tinker with a constitution which had hardly been tried? To all such Madison replied cogently that the amendments which his committee reported did not alter the framework of the instrument, but added only certain safeguards to individual rights. The lack of a declaration of rights had been deplored in every convention and had cost the support of many respectable people. Moreover, two communities had not yet "thrown themselves into the bosom of the Confederacy." The wisdom of this course was attested by the prompt ratification of ten of the twelve proposed amendments.

On November 21, 1789, North Carolina ratified the Constitution, leaving Rhode Island to a position of hazardous isolation. Congress was considering a bill to cut off the commercial privileges of the State, by putting her on the footing of a foreign nation, when news came that a convention at Newport had ratified the Constitution by the narrow margin of two votes. In the following year the number of States was increased by the admission of Vermont. The admission of Kentucky followed in 1792; and Congress paved the way for the entrance of other States into the Union by organizing the Southwest Territory out of Western lands ceded by the three southernmost States. The expansion of the United States had begun, bringing with it unforeseen problems.

The severest labors of Congress began in the second session, when the new Secretary of the Treasury presented his first report on public credit. Shortly after the Convention of 1787, Hamilton had expressed his belief that one of the great dangers which threatened American society was "the depredations which the democratic spirit is apt to make on property." Distrusting the political capacity of the people, whom in private he called "a great beast," he believed that the new Government would succeed or fail in just the proportion that it enlisted the support of the influential and wealthy classes. He set himself deliberately to the task of identifying the interests of the propertied classes with those of the Government.

It was a sorry state in which Hamilton found the national finances. The foreign debt, including principal and arrears of interest, amounted to $11,710,000. The domestic debt, much more difficult to determine, was not less than $42,414,000, about one third of which was made up of arrears of interest. The debts of the individual States, principal and interest, were estimated at about $25,000,000. These were heavy burdens for the shoulders of a young Government whose fiscal powers were as yet untested. But the shoulders had to be fitted to the burden, if public credit was to be restored.

In this first report on public credit, January 9, 1790, Hamilton analyzed the financial situation with masterly clearness and set forth his plans for the adjustment of the national debt. The determination of Congress to make adequate provision for the support of the public credit was justified in his mind by every consideration. A country like the United States, possessed of little active wealth, must borrow in emergencies; to borrow on good terms, it must establish its credit; and to maintain its credit, it must faithfully observe its contracts. But over and above these considerations, dictated by expediency, were "immutable principles of moral obligation." Moreover, the national debt was no ordinary obligation: it was "the price of liberty." On all sides, it was agreed that the debt contracted abroad should be provided for in the precise terms of the contracts.

It was only in regard to the domestic debt that differences of opinion were likely to arise. The notes representing this debt were of all sorts and kinds. Much of it had changed hands and all of it had depreciated in value. Some of it still circulated as a monetary medium. The vital question was: how were the present holders to be paid? At the face value of the paper, or at the price for which it had been purchased? Hamilton argued firmly against any discrimination, both because it was a breach of contract and because it was a violation of the rights of a fair buyer.

When this part of Hamilton's plan came before Congress in concrete form, it gave rise to the bitterest debate which had been heard. That it would give opportunity for immoderate speculation was plain enough; yet every alternative which aimed to do justice by both the original and the present holder was confessedly inadequate, when a certificate of indebtedness, for example, had passed through several hands without record.

No sooner was Hamilton's proposal made than a wild scramble began for the possession of the hitherto worthless government paper. "Couriers and relay horses by land, and swift sailing pilot boats by sea, were flying in all directions," wrote Jefferson. "Active partners and agents were associated and employed in every state, town, and country neighborhood, and this paper was bought up at 5/ and even as low as 2/ in the pound, before the holder knew Congress had already provided for its redemption at par. Immense fortunes were thus filched from the poor and ignorant, and fortunes accumulated by those who had themselves been poor enough before."

[Map: Vote on Assumption July 24, 1790]

The second part of the scheme outlined in Hamilton's first report aroused even more bitter opposition. With a fine audacity he proposed the assumption of state debts. It is difficult to believe that Hamilton was perfectly ingenuous in stating his reasons for this move. He apprehended, he said, that the States would be hampered in satisfying their creditors because they had surrendered one important source of revenue to the central Government, duties on imports. In resorting to other means, the States might pass conflicting measures which would oppose industry. Besides, the debts had been incurred in the cause of Union and should be borne by all. But deeper than these reasons was probably a political motive. Hamilton had no local attachments. A thoroughgoing nationalist, he saw in the claims of the States to autonomy only so many obstacles in the path of national unity. "To cement more closely the Union of States" by creating a solidarity of financial interests, was, indeed, the basal principle of his fiscal plans.

The wrath of Congressmen from States like Virginia, which had already discharged most of their debts, knew no bounds. After they had practiced thrift and met their obligations, should they, forsooth, now aid their less provident sisters? The chief opponents of assumption came from the South, and the chief advocates from the North. South Carolina and New Hampshire parted company with their neighbors, the one because it had a large debt and the other because it had not. Pennsylvania was divided on this question. For a time the opposition was too strong to be overcome. On May 25, 1790, an adverse vote seemed to seal the fate of "Miss Assumption," as the wits of the day called this measure. Just at this juncture the question of the location of the future capital, which had been debated inconclusively during the first session, was revived. Here again the North was arrayed against the South. Should the capital be located on the Potomac, as Maryland and the Southern States wished, or somewhere in Pennsylvania? New York was now out of the question, and since Pennsylvania would not support assumption, the New England States rather spitefully opposed the claims of Philadelphia.

Here was a situation which called for the finesse of the politician. Might not votes for one project be traded for the other? Would the Virginia representatives abandon their opposition to assumption for the sake of locating the capital on the banks of the Potomac? It was at this juncture that Hamilton sought out Jefferson, whose influence over the Congressmen from Virginia was very considerable, and laid the project before him. With a readiness which he afterward regretted, Jefferson fell in with the scheme, and invited Hamilton and certain Virginia Representatives to dine at his table. In this comfortable fashion, over their wine, these gentlemen reached an amicable agreement. Such is Jefferson's account, but the matter could not have been quite so simple, for other Representatives than those from Virginia changed their votes and so contributed to the final settlement of the controversy. Nor is Jefferson quite ingenuous when he afterward described himself as duped by Hamilton, for he had not shown himself averse to assumption at any time. Be this as it may, Congress voted to assume the debts of the States, and to remove the seat of government from Philadelphia after ten years to a district ten miles square on the Potomac, which Washington was to select.

The need of further revenue was now imperative. As Hamilton said in his second report on the public credit, the duties on imported articles had reached a point which might not be exceeded "without contravening the sense of the body of the merchants." When Congress met for its third session in December, 1790, Hamilton boldly urged what was perhaps as unpopular a tax as he could have proposed—a duty on distilled spirits. To most Americans an excise was not only an internal tax, but as Jefferson said, "an infernal one." It was bound to fall with heavy weight upon the people of the interior who turned much of their corn and rye into whiskey, for more convenient transportation over the mountains to Eastern markets. But despite strenuous opposition the excise was voted. It was, as a member of Congress expressed it, like "drinking down the national debt."

In this same report of December 13, 1790, Hamilton advocated the establishment of a national bank. Such an institution, he believed, would increase the amount of active capital in the country and at the same time serve the Government as a fiscal agent in obtaining loans and in collecting taxes. Opposition to this project gathered rapidly and was encouraged by the Secretary of State. The debates in Congress touched upon the monopolistic tendency of such a banking institution and its constitutionality, rather than upon its intrinsic merits and demerits. The bill was carried by substantial majorities in February, 1791, and sent to the President for his approval.

Washington was so beset with doubts as to the constitutionality of the bank bill that he asked his secretaries and the Attorney-General to express their opinions. Jefferson argued that the power to incorporate a bank was not given by the Constitution to Congress, for it was not among the enumerated powers and it was not a power which belonged to any of the enumerated powers as indispensably necessary to their exercise. Hamilton deprecated this attempt to confine the general Government either to powers expressly granted or to powers absolutely necessary to carry out the enumerated powers. There was another class, he contended, which might be termed "resulting" powers. If the end to be gained by a measure was comprehended within the specified powers, and the measure was obviously a means to that end and not forbidden by the Constitution, then it was clearly within the compass of the national authority. Washington finally yielded to Hamilton's persuasions, and signed the bill.

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