E. CONFEDERATION AND CONSTITUTION

XXIV. THE ARTICLES OF CONFEDERATION

146. Debates in the Continental Congress on the Articles of Confederation

John Adams (Works, II, 492-502) preserved fairly full notes upon part of the discussion on the Articles. The parts dealing with western lands, with basis of taxation, and with the equality of the States in Congress are reproduced here. The form is rather fragmentary; and, in some cases, allusions are made which it would take too long to explain here. But the student can at least get the general drift and the alignment of the States on the opposing sides.

In Committee of the Whole

1776. July 25. Article 14 of the confederation. Terms in this Article equivocal and indefinite.[138]

Jefferson. The limits of the Southern Colonies are fixed. Moves an amendment, that all purchases of lands, not within the boundaries of any Colony, shall be made by Congress of the Indians in a great Council.

Sherman seconds the motion.

Chase [Maryland]. The intention of this Article is very obvious and plain. The Article appears to me to be right and the amendment wrong. It is the intention of some gentlemen to limit the boundaries of particular States. No Colony has a right to go to the South Sea; they never had; they can't have. It would not be safe to the rest. It would be destructive to her sisters and to herself.

Article 15. Jefferson. What are reasonable limits? What security have we, that the Congress will not curtail the present settlements of the States? I have no doubt that the Colonies will limit themselves.

Wilson. Every gentleman has heard much of claims to the South Sea. They are extravagant. The grants were made upon mistakes. They were ignorant of the Geography. They thought the South Sea within one hundred miles of the Atlantic Ocean. It was not conceived that they extended three thousand miles. Lord Camden considers the claims to the South Sea, as what never can be reduced to practice. Pennsylvania has no right to interfere in those claims, but she has a right to say, that she will not confederate unless those claims are cut off. I wish the Colonies themselves would cut off those claims....

July 30. Article 17. "In determining questions, each Colony shall have one vote."

Dr. Franklin. Let the smaller Colonies give equal money and men, and then have an equal vote. But if they have an equal vote without bearing equal burthens, a confederation upon such iniquitous principles will never last long.

Dr. Witherspoon. [New Jersey]. We all agree that there must and shall be a confederation for this war. ... The greatest danger we have, is of disunion among ourselves. Is it not plausible that the small States will be oppressed by the great ones? The Spartans and the Helots. The Romans and their dependents. Every Colony is a distinct person....

Clark. We must apply for pardons if we don't confederate.

Wilson. We should settle upon some plan of representation.

Wilson. If the war continues two years, each soul will have forty dollars to pay of the public debt. It will be the greatest encouragement to continue slave-keeping and to increase it, that can be, to exempt them from the numbers which are to vote and pay. Slaves are taxables in the Southern Colonies. It will be partial and unequal. Some Colonies have as many black as white; these will not pay more than half what they ought.[139] Slaves prevent freemen from cultivating a country. It is attended with many inconveniences.

Lynch [South Carolina]. If it is debated, whether their slaves are their property, there is an end of the confederation. Our slaves being our property, why should they be taxed more than the land, sheep, cattle, horses, etc.?

Freemen cannot be got to work in our Colonies; it is not in the ability or inclination of freemen to do the work that the negroes do. Carolina has taxed their negroes; so have other Colonies their lands.

Dr. Franklin. Slaves rather weaken than strengthen the State, and there is therefore some difference between them and sheep; sheep will never make any insurrections.

Rutledge. I shall be happy to get rid of the idea of slavery. The slaves do not signify property; the old and young cannot work. The property of some Colonies is to be taxed, in others, not. The Eastern Colonies will become the carriers for the Southern; they will obtain wealth for which they will not be taxed.

August 1. Hooper. North Carolina is a striking exception to the general rule that was laid down yesterday, that the riches of a country are in proportion to the numbers of inhabitants. A gentleman of three or four hundred negroes don't raise more corn than feeds them. A laborer can't be hired for less than twenty-four pounds a year in Massachusetts Bay. The net profit of a negro is not more than five or six pounds per annum. I wish to see the day that slaves are not necessary. Whites and negroes cannot work together. Negroes are goods and chattels are property. A negro works under the impulse of fear, has no care of his master's interest.[140]

The Consideration of the Seventeenth Article resumed

Article 17. Dr. Franklin moves that votes should be in proportion to numbers. Mr. Middleton moves that the vote should be according to what they pay.

Sherman thinks we ought not to vote according to numbers. We are representatives of States, not individuals. States of Holland. The consent of every one is necessary. Three Colonies would govern the whole, but would not have a majority of strength to carry those votes into execution. The vote should be taken two ways; call the Colonies, and call the individuals, and have a majority of both.[141]

Dr. Rush. Abbé Raynal has attributed the ruin of the United Provinces [Netherlands] to three causes. The principal one is, that the consent of every State is necessary; the other, that the members are obliged to consult their constituents upon all occasions. We lose an equal representation; we represent the people. It will tend to keep up colonial distinctions. We are now a new nation. ... If we vote by numbers, liberty will be always safe. Massachusetts is contiguous to two small Colonies, Rhode Island and New Hampshire; Pennsylvania is near New Jersey and Delaware; Virginia is between Maryland and North Carolina. ... Montesquieu pronounces the confederation of Lycia the best that ever was made; the cities had different weights in the scale. ... I would not have it understood that I am pleading the cause of Pennsylvania; when I entered that door, I considered myself a citizen of America.

G. Hopkins [Rhode Island]. A momentous question; many difficulties on each side; four larger, five lesser, four stand indifferent. Virginia, Massachusetts, Pennsylvania, Maryland, make more than half the people.

... It can't be expected that nine Colonies will give way to be governed by four. The safety of the whole depends upon the distinctions of Colonies.

Dr. Franklin. I hear many ingenious arguments to persuade us that an unequal representation is a very good thing. If we had been born and bred under an unequal representation, we might bear it; but to set out with an unequal representation is unreasonable. It is said the great Colonies will swallow up the less. Scotland said the same thing at the union.

August 2. "Limiting the bounds of States, which by charter, &c. extend to the South Sea."

Sherman thinks the bounds ought to be settled. A majority of States have no claim to the South Sea. Moves this amendment to be substituted in place of this clause, and also instead of the fifteenth article;—"No lands to be separated from any State, which are already settled, or become private property."

Chase [Maryland] denies that any Colony has a right to go to the South Sea.

Harrison [Virginia]. How came Maryland by its land, but by its charter? By its charter, Virginia owns to the South Sea. Gentlemen shall not pare away the Colony of Virginia. Rhode Island has more generosity than to wish the Massachusetts pared away. Delaware does not wish to pare away Pennsylvania.

Huntington. Admit there is danger from Virginia, does it follow that Congress has a right to limit her bounds? The consequence is, not to enter into confederation....

Stone [Maryland] ... Is it meant that Virginia shall sell these lands for their own emolument? All the Colonies have defended these lands against the King of Britain, and at the expense of all. Does Virginia intend to establish quit rents?...

Jefferson. I protest against the right of Congress to decide upon the right of Virginia. Virginia has released all claims to the land settled by Maryland, &c.

[This clause, as to limiting the western claims, was stricken out in committee. The subsequent history of the struggle is well known, terminating in the acts of cession of claims to the western territory. For details, cf. American History and Government, §§ 179-180.

Jefferson's Notes on this same debate (Journals of Congress, VI, 1104,—from a MS. of Jefferson's) contain the following additional item: "John Adams advocated voting in proportion to numbers. He said that we stand here as representatives of the people; that in some States the people are many, in others they are few ... that the individuality of the colonies is a mere sound. ... It has been said we are independent individuals making a bargain together: the question is not what we are now, but what we ought to be when our bargain shall be made. The Confederacy IS TO MAKE US ONE individual only; it is to form us, like separate parcels of metal, into one common mass. ..."[142]]

147. Articles of Confederation.

November 15, 1777

March 2, 1781

Text from Revised Statutes of 1878. For history, cf. American History and Government, §§ 179, 186-188 ff. The editor has used black-faced type to indicate a few passages especially important for study.

The Articles were adopted by Congress, and recommended to the States, November 15, 1777. The delegates from the several States signed as follows: New Hampshire, Massachusetts Bay, Rhode Island and Providence Plantations, Connecticut, New York, Pennsylvania, Virginia, and South Carolina, July 9, 1778; North Carolina, July 21, 1778; Georgia, July 24, 1778; New Jersey, Nov. 26, 1778; Delaware, May 5, 1779; Maryland, March 1, 1781. Congress met under the Articles, March 2, 1781.

To all to whom these Presents shall come, we the undersigned Delegates of the States affixed to our Names send greeting.

Whereas the Delegates of the United States of America in Congress assembled did on the fifteenth day of November in the year of our Lord One Thousand Seven Hundred and Seventy-seven, and in the Second Year of the Independence of America, agree to certain articles of Confederation and perpetual Union between the States of New-Hampshire, Massachusetts-bay, Rhode-Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North-Carolina, South-Carolina and Georgia in the Words following, viz.

Articles of Confederation and perpetual Union between the States of New-Hampshire, Massachusetts-bay, Rhode-Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia.

Article I.—The stile of this Confederacy shall be, "The United States of America."

Art. II.—Each State retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.

Art. III.—The said States hereby severally enter into a firm league of friendship with each other, for their common defence, the security of their liberties, and their mutual and general welfare, binding themselves to assist each other against all force offered to, or attacks made upon them, or any of them, on account of religion, sovereignty, trade, or any other pretence whatever.

Art. IV.—The better to secure and perpetuate mutual friendship and intercourse among the people of the States in this Union, the free inhabitants of each of these states, paupers, vagabonds, and fugitives from justice excepted, shall be entitled to all privileges and immunities of free citizens in the several States; and the people of each State shall have free ingress and egress to and from any other State, and shall enjoy therein all the privileges of trade and commerce subject to the same duties, impositions, and restrictions as the inhabitants thereof respectively; provided that such restrictions shall not extend so far as to prevent the removal of property imported into any State to any other State of which the owner is an inhabitant: provided also that no imposition, duties, or restriction shall be laid by any State on the property of the United States, or either of them.

If any person guilty of, or charged with treason, felony, or other high misdemeanor in any State, shall flee from justice, and be found in any of the United States, he shall upon demand of the Governor or Executive power of the State from which he fled, be delivered up and removed to the State having jurisdiction of his offence.

Full faith and credit shall be given in each of these States to the records, acts, and judicial proceedings of the courts and magistrates of every other State.

Article V.—For the more convenient management of the general interest of the United States, delegates shall be annually appointed in such manner as the legislature of each State shall direct, to meet in Congress on the first Monday in November, in every year, with a power reserved to each State, to recall its delegates, or any of them, at any time within the year, and to send others in their stead, for the remainder of the year.

No State shall be represented in Congress by less than two, nor by more than seven members; and no person shall be capable of being a delegate for more than three years in any term of six years; nor shall any person, being a delegate, be capable of holding any office under the United States, for which he, or another for his benefit, receives any salary, fees or emolument of any kind.

Each State shall maintain its own delegates in a meeting of the States, and while they act as members of the committee of the States.

In determining questions in the United States, in Congress assembled, each State shall have one vote.

Freedom of speech and debate in Congress shall not be impeached or questioned in any court, or place out of Congress, and the members of Congress shall be protected in their persons from arrests and imprisonments, during the time of their going to and from, and attendance on Congress, except for treason, felony, or breach of the peace.

Article VI. No State without the consent of the United States in Congress assembled, shall send any embassy to, or receive any embassy from, or enter into any conference, agreement, alliance or treaty with any king, prince or state; nor shall any person holding any office of profit or trust under the United States, or any of them, accept of any present, emolument, office or title of any kind whatever from any king, prince or foreign state; nor shall the United States in Congress assembled, or any of them, grant any title of nobility.

No two or more States shall enter into any treaty, confederation or alliance whatever between them, without the consent of the United States in Congress assembled, specifying accurately the purposes for which the same is to be entered into, and how long it shall continue.

No state shall lay any imposts or duties, which may interfere with any stipulations in treaties entered into by the United States, in Congress assembled, with any king, prince, or state, in pursuance of any treaties already proposed by Congress to the courts of France and Spain.

No vessel of war shall be kept up in time of peace by any State, except such number only as shall be deemed necessary by the United States, in Congress assembled, for the defence of such State or its trade, nor shall any body of forces be kept up by any State in time of peace, except such number only as, in the judgment of the United States, in Congress assembled, shall be deemed requisite to garrison the forts necessary for the defence of such State; but every State shall always keep up a well-regulated and disciplined militia, sufficiently armed and accoutred, and shall provide and constantly have ready for use in public stores a due number of field-pieces and tents, and a proper quantity of arms, ammunition, and camp equipage.

No State shall engage in any war without the consent of the United States, in Congress assembled, unless such State be actually invaded by enemies, or shall have received certain advice of a resolution being formed by some nation of Indians to invade such State, and the danger is so imminent as not to admit of a delay till the United States, in Congress assembled, can be consulted; nor shall any State grant commissions to any ships or vessels of war, nor letters of marque or reprisal, except it be after a declaration of war by the United States, in Congress assembled, and then only against the kingdom or state, and the subjects thereof, against which war has been so declared, and under such regulations as shall be established by the United States, in Congress assembled, unless such State be infested by pirates, in which case vessels of war may be fitted out for that occasion, and kept so long as the danger shall continue, or until the United States, in Congress assembled, shall determine otherwise.

Art. VII.—When land forces are raised by any State for the common defence, all officers of or under the rank of Colonel shall be appointed by the Legislature of each State respectively by whom such forces shall be raised, or in such manner as such State shall direct, and all vacancies shall be filled up by the States which first made the appointment.

Art. VIII.—All charges of war, and all other expenses that shall be incurred for the common defence or federal welfare, and allowed by the United States in Congress assembled, shall be defrayed out of a common treasury, which shall be supplied by the several States, in proportion to the value of all land within each State, granted to or surveyed for any person, as such land and the buildings and improvements thereon shall be estimated according to such mode as the United States in Congress assembled, shall from time to time direct and appoint.

The taxes for paying that proportion shall be laid and levied by the authority and direction of the Legislatures of the several States within the time agreed upon by the United States in Congress assembled.

Article IX.[143]—The United States in Congress assembled, shall have the sole and exclusive right and power of determining on peace and war, except in the cases mentioned in the sixth article—of sending and receiving ambassadors—entering into treaties and alliances, provided that no treaty of commerce shall be made whereby the legislative power of the respective States shall be restrained from imposing such imposts and duties on foreigners, as their own people are subjected to, or from prohibiting the exportation or importation of any species of goods or commodities whatsoever—of establishing rules for deciding in all cases, what captures on land or water shall be legal, and in what manner prizes taken by land or naval forces in the service of the United States shall be divided or appropriated—of granting letters of marque and reprisal in times of peace—appointing courts for the trial of piracies and felonies committed on the high seas and establishing courts for receiving and determining finally appeals in all cases of captures, provided that no member of Congress shall be appointed a judge of any of the said courts.

The United States in Congress assembled shall also be the last resort on appeal in all disputes and differences now subsisting or that hereafter may arise between two or more States concerning boundary, jurisdiction or any other cause whatever; which authority shall always be exercised in the manner following. [A long passage as to method of constituting commissioners to decide such contests.]

The United States in Congress assembled shall also have the sole and exclusive right and power of regulating the alloy and value of coin struck by their own authority, or by that of the respective States—fixing the standard of weights and measures throughout the United States—regulating the trade and managing all affairs with the Indians, not members of any of the States, provided that the legislative right of any State within its own limits be not infringed or violated—establishing and regulating post-offices from one State to another, throughout all the United States, and exacting such postage on the papers passing thro' the same as may be requisite to defray the expenses of the said office—appointing all officers of the land forces, in the service of the United States, excepting regimental officers—appointing all the officers of the naval forces, and commissioning all officers whatever in the service of the United States—making rules for the government and regulation of the said land and naval forces, and directing their operations.

The United States in Congress assembled shall have authority to appoint a committee, to sit in the recess of Congress, to be denominated "a Committee of the States," and to consist of one delegate from each State; and to appoint such other committees and civil officers as may be necessary for manageing the general affairs of the United States under their direction—to appoint one of their number to preside, provided that no person be allowed to serve in the office of president more than one year in any term of three years; to ascertain the necessary sums of money to be raised for the service of the United States, and to appropriate and apply the same for defraying the public expenses—to borrow money, or emit bills on the credit of the United States, transmitting every half year to the respective States an account of the sums of money so borrowed or emitted,—to build and equip a navy—to agree upon the number of land forces, and to make requisitions from each State for its quota, in proportion to the number of white inhabitants in such State; which requisition shall be binding; and thereupon the Legislature of each State shall appoint the regimental officers, raise the men, and clothe, arm, and equip them in a soldier-like manner, at the expense of the United States; and the officers and men so clothed, armed, and equipped shall march to the place appointed, and within the time agreed on by the United States, in Congress assembled; but if the United States, in Congress assembled, shall, on consideration of circumstances, judge proper that any State should not raise men, or should raise a smaller number than its quota, and that any other State should raise a greater number of men than the quota thereof, such extra number shall be raised, officered, clothed, armed, and equipped in the same manner as the quota of such State, unless the Legislature of such State shall judge that such extra number cannot be safely spared out of the same, in which case they shall raise, officer, clothe, arm, and equip as many of such extra number as they judge can be safely spared, and the officers and men so clothed, armed, and equipped shall march to the place appointed, and within the time agreed on by the United States, in Congress assembled.

The United States, in Congress assembled, shall never engage in a war, nor grant letters of marque and reprisal in time of peace, nor enter into any treaties or alliances, nor coin money, nor regulate the value thereof, nor ascertain the sums and expenses necessary for the defence and welfare of the United States, or any of them, nor emit bills, nor borrow money on the credit of the United States, nor appropriate money, nor agree upon the number of vessels of war to be built or purchased, or the number of land or sea forces to be raised, nor appoint a commander-in-chief of the army or navy, unless nine States assent to the same; nor shall a question on any other point, except for adjourning from day to day, be determined, unless by the votes of a majority of the United States, in Congress assembled.

The Congress of the United States shall have power to adjourn to any time within the year, and to any place within the United States, so that no period of adjournment be for a longer duration than the space of six months, and shall publish the journal of their proceedings monthly, except such parts thereof relating to treaties, alliances, or military operations as in their judgment require secrecy; and the yeas and nays of the delegates of each State, on any question shall be entered on the journal, when it is desired by any delegate; and the delegates of a State, or any of them, at his or their request shall be furnished with a transcript of the said journal, except such parts as are above excepted, to lay before the Legislatures of several States.

Article X.—The committee of the States, or any nine of them, shall be authorized to execute, in the recess of Congress, such of the powers of Congress as the United States in Congress assembled, by the consent of nine States, shall from time to time think expedient to vest them with; provided that no power be delegated to the said committee, for the exercise of which, by the articles of confederation, the voice of nine States in the Congress of the United States assembled is requisite.

Article XI.—Canada acceding to this confederation, and joining in the measures of the United States, shall be admitted into, and entitled to all the advantages of this Union: but no other colony shall be admitted into the same, unless such admission be agreed to by nine States.

Article XII.—All bills of credit emitted, monies borrowed and debts contracted by, or under the authority of Congress, before the assembling of the United States, in pursuance of the present confederation, shall be deemed and considered as a charge against the United States, for payment and satisfaction whereof the said United States, and the public faith are hereby solemnly pledged.

Article XIII.—Every State shall abide by the determinations of the United States in Congress assembled, on all questions which by this confederation are submitted to them. And the articles of this confederation shall be inviolably observed by every State, and the Union shall be perpetual; nor shall any alteration at any time hereafter be made in any of them; unless such alteration be agreed to in a Congress of the United States, and be afterwards confirmed by the Legislatures of every State.

And whereas it hath pleased the Great Governor of the World to incline the hearts of the Legislatures we respectively represent in Congress, to approve of, and to authorize us to ratify the said articles of confederation and perpetual union. Know ye that we the undersigned delegates, by virtue of the power and authority to us given for that purpose, do by these presents, in the name and in behalf of our respective constituents, fully and entirely ratify and confirm each and every of the said articles of confederation and perpetual union, and all and singular the matters and things therein contained. And we do further solemnly plight and engage the faith of our respective constituents, that they shall abide by the determinations of the United States, in Congress assembled, on all questions which by the said Confederation are submitted to them; and that the Articles thereof shall be inviolably observed by the States we respectively represent, and that the Union shall be perpetual.

In witness whereof we have hereunto set our hands in Congress. Done at Philadelphia in the State of Pennsylvania the ninth day of July in the year of our Lord one thousand seven hundred and seventy-eight, and in the third year of the independence of America.

[The signatures follow. Cf. introduction, on p. 475, for the dates.]

FOOTNOTES:

XXV. THE NATIONAL DOMAIN

148. Desire for Statehood; Self-confidence of the West

Early in 1784, North Carolina ceded her western territory (afterward Tennessee) to Congress, giving that body two years in which to accept. The Westerners, already bitterly dissatisfied, now complained loudly that the mother State had cast them off; they would not wait two years, in anarchy, for possible action by the dilatory Congress; they would take their fate at once into their own hands. Accordingly, the three counties of eastern Tennessee (the outgrowth of the Watauga settlement, numbering now some 10,000 souls) established themselves for a time as the State of Frankland ("Land of the Freemen").

The militia had been organized by territorial units, each "company" from one group of hamlets, or "stations." Each "company" now chose delegates to a central convention. This "preliminary" convention recommended the people to choose another "constitutional convention,"[144] with full powers to set up a government. August 23, 1784, this second convention, composed of forty delegates with John Sevier as president, resolved on immediate statehood, and put forth an interesting address to justify that action. The following passage from that address illustrates the wild hopes of the West as to immediate development. (Cf. also American History and Government, §§ 173-175.)

"If we should be so happy as to have a separate government, vast numbers from different quarters, with a little encouragement from the public, would fill up our frontier; which would strengthen us, improve agriculture, perfect manufactures, encourage literature and everything truly laudable. The seat of government being among ourselves would evidently tend, not only to keep a circulating medium in gold and silver among us,[145] but would draw it from many individuals living in other States, who claim large quantities of land that would lie within the bounds of the new State."

[A constitution was adopted by yet a third convention, and government instituted under it. North Carolina, however, repealed her cession before Congress had accepted it, and reasserted her authority over "Frankland," not without long and bitter conflict.]

149. Organization by Congress

a. A Plan for a Temporary Government of the Western Territory. April 23, 1784

Journals of Congress (1801 edition), IX, 109-110.

This act is usually known as Jefferson's Territorial Ordinance of 1784. For history, cf. American History and Government, § 181. It is given here mainly for comparison with the Ordinance of 1787 (No. 149b), and, by most students, it can be read to best advantage after a study of that document.

"Resolved that so much of the territory ceded or to be ceded by individual states to the United States [the rest of this paragraph provides for division into two tiers of states, bounded by alternate parallels of latitude, with some rather obscure provisions for fragmentary pieces of territory on the north and east, cf. American History and Government, § 181.]

"That the settlers on any territory so purchased, and offered for sale, shall, either on their own petition or order of Congress, receive authority from them, with appointments of time and place, for their free males of full age within the limits of their state to meet together, for the purpose of establishing a temporary government, to adopt the constitution and laws of any one of the original states; so that such laws nevertheless shall be subject to alteration by their ordinary legislature; and to erect, subject to a like alteration, counties, townships, or other divisions, for the election of members for their legislature.

"That when any such state shall have acquired 20,000 free inhabitants, on giving due proof thereof to Congress, they shall receive from them authority, with appointments of time and place, to call a convention of representatives to establish a permanent constitution and government for themselves. Provided that both the temporary and permanent governments be established on these principles as their basis:

"1st. That they shall for ever remain a part of this confederacy of the United States of America.

"2d. That they shall be subject to the articles of confederation in all those cases in which the original states shall be so subject, and to all the acts and ordinances of the United States in Congress assembled, conformable thereto.

"3d. That they in no case shall interfere with the primary disposal of the soil by the United States in Congress assembled, nor with the ordinances and regulations which Congress may find necessary, for securing the title in such soil to the bona fide purchasers.

"4th. That they shall be subject to pay a part of the federal debts contracted or to be contracted, to be apportioned on them by Congress, according to the same common rule and measure by which apportionments thereof shall be made on the other states.

"5th. That no tax shall be imposed on lands, the property of the United States.

"6th. That their respective governments shall be republican.

"7th. That the lands of non-resident proprietors shall, in no case, be taxed higher than those of residents within any new state, before the admission thereof to a vote by its delegates in Congress.

"That whensoever any of the said states shall have, of free inhabitants, as many as shall then be in any one the least numerous of the thirteen original states, such state shall be admitted by its delegates into the Congress of the United States, on an equal footing with the said original states; provided the consent of so many states in Congress is first obtained as may at the time be competent to such admission. (And in order to adapt the said articles of confederation to the state of Congress when its numbers shall be thus increased, it shall be proposed to the legislatures of the states, originally parties thereto, to require the assent of two-thirds of the United States in Congress assembled, in all those cases wherein by the said articles, the assent of nine states is now required, which being agreed to by them, shall be binding on the new states.) Until such admission by their delegates into Congress, any of the said states after the establishment of their temporary government shall have authority to keep a member in Congress, with a right of debating, but not of voting.

"That measures not inconsistent with the principles of the confederation, and necessary for the preservation of peace and good order among the settlers in any of the said new States, until they shall assume a temporary government as aforesaid, may from time to time, be taken by the United States in Congress assembled.[146]

"That the preceding articles shall be formed into a charter of compact ... [provision for promulgation] and shall stand as fundamental constitutions between the thirteen original States and each of the several States now newly described, unalterable ... but by the joint consent of the United States in Congress assembled and of the particular State within which such alteration is proposed to be made."

b. The Northwest Ordinance (July 13, 1787)

Journals of Congress (1801 edition), XII, 58 ff.

For history of this document, cf. American History and Government, § 182. The documents relating to the acquisition of a "Public Domain" are quoted so extensively in that work that they are omitted in this collection. Cf., however, No. 146 above for discussions in Congress.

An Ordinance for the government of the territory of the United States Northwest of the River Ohio

Be it ordained by the United States in Congress Assembled that the said territory for the purposes of temporary government be one district, subject however to be divided into two districts as future circumstances may in the opinion of Congress make it expedient.

Be it ordained by the authority aforesaid, that the estates both of resident and non resident proprietors in the said territory dying intestate shall descend to and be distributed among their children and the descendants of a deceased child in equal parts; the descendants of a deceased child or grandchild to take the share of their deceased parent in equal parts among them; and where there shall be no children or descendants then in equal parts to the next of kin in equal degree; and among collaterals the children of a deceased brother or sister of the intestate shall have in equal parts among them their deceased parent's share and there shall in no case be a distinction between kindred of the whole and half blood; saving in all cases to the widow of the intestate her third part of the real estate for life, and one third part of the personal estate: and this law relative to descents and dower shall remain in full force until altered by the legislature of the district. And until the governor and judges shall adopt laws as herein after mentioned, estates in the said territory may be devised or bequeathed by wills in writing signed and sealed by him or her in whom the estate may be, being of full age, and attested by three witnesses, and real estates may be conveyed by lease and release or bargain and sale, signed, sealed and delivered by the person being of full age in whom the estate may be, and attested by two witnesses, provided such wills be duly proved and such conveyances be acknowledged or the execution there of duly proved, and be recorded within one year after proper magistrates, courts and registers shall be appointed for that purpose; and personal property may be transferred by delivery saving however to the French and Canadian inhabitants and other settlers of the Kaskaskies, Saint Vincents and the neighbouring villages, who have hereto fore professed themselves citizens of Virginia, their laws and customs now in force among them, relative to the descent and conveyance of property.

Be it ordained by the authority aforesaid, that there shall be appointed, from time to time, by Congress, a governor, whose commission shall continue in force for the term of three years, unless sooner revoked by Congress; he shall reside in the district, and have a freehold estate therein in 1000 acres of land, while in the exercise of his office.

There shall be appointed, from time to time, by Congress, a secretary, whose commission shall continue in force for four years unless sooner revoked; he shall reside in the district, and have a freehold estate therein in 500 acres of land, while in the exercise of his office; it shall be his duty to keep and preserve the acts and laws passed by the legislature, and the public records of the district, and the proceedings of the governor in his Executive department; and transmit authentic copies of such acts and proceedings, every six months, to the Secretary of Congress: There shall also be appointed a court to consist of three judges, any two of whom to form a court, who shall have a common law jurisdiction, and reside in the district, and have each therein a freehold estate in 500 acres of land while in the exercise of their offices; and their commissions shall continue in force during good behavior.

The governor and judges, or a majority of them, shall adopt and publish in the district such laws of the original States, criminal and civil, as may be necessary and best suited to the circumstances of the district, and report them to Congress from time to time: which laws shall be in force in the district until the organization of the General Assembly therein, unless disapproved of by Congress; but, afterwards, the legislature shall have authority to alter them as they shall think fit.

The governor, for the time being, shall be commander-in-chief of the militia, appoint and commission all officers in the same below the rank of general officers; all general officers shall be appointed and commissioned by Congress.

Previous to the organization of the General Assembly, the governor shall appoint such magistrates and other civil officers, in each county or township, as he shall find necessary for the preservation of the peace and good order in the same. After the General Assembly shall be organized, the powers and duties of the magistrates and other civil officers shall be regulated and defined by the said Assembly; but all ... civil officers not herein otherwise directed shall during the continuance of this temporary government be appointed by the governor.

For the prevention of crimes and injuries the laws to be adopted or made shall have force in all parts of the district; and for the execution of process criminal and civil, the governor shall make proper divisions thereof, and he shall proceed from time to time as circumstances may require to lay out the parts of the District in which the Indian titles shall have been extinguished into counties and townships subject however to such alterations as may thereafter be made by the legislature.

So soon as there shall be five thousand free male inhabitants of full age in the district, upon giving proof thereof to the governor, they shall receive authority with time and place to elect representatives from their counties or townships to represent them in the general Assembly, provided that for every five hundred free male inhabitants there shall be one representative; and so on progressively with the number of free male inhabitants shall the right of representation encrease until the number of representatives shall amount to twenty five, after which the number and proportion of representatives shall be regulated by the legislature; provided that no person be eligible or qualified to act as a representative unless he shall have been a citizen of one of the United States three years and be a resident in the district or unless he shall have resided in the district three years, and in either case shall likewise hold in his own right in fee simple two hundred acres of land within the same; provided also that a freehold in fifty acres of land in the district having been a citizen of one of the states and being resident in the district, or the like freehold and two years residence in the district shall be necessary to qualify a man as an elector of a representative.

The representatives thus elected shall serve for the term of two years, and in case of the death of a representative or removal from office, the governor shall issue a writ to the county or township for which he was a member, to elect another in his stead to serve for the residue of the term.

The general Assembly or legislature shall consist of the governor, legislative council and a house of representatives. The legislative council shall consist of five members to continue in Office five years unless sooner removed by Congress, any three of whom to be a quorum and the members of the council shall be nominated and appointed in the following manner, to wit: As soon as representatives shall be elected, the governor shall appoint a time and place for them to meet together; and, when met, they shall nominate ten persons, residents in the district, and each possessed of a freehold in 500 acres of land, and return their names to Congress; five of whom Congress shall appoint and commission to serve as aforesaid; and, whenever a vacancy shall happen in the council, by death or removal from office, the house of representatives shall nominate two persons, qualified as aforesaid, for each vacancy, and return their names to Congress; one of whom Congress shall appoint and commission for the residue of the term. And every five years, four months at least before the expiration of the time of service of the members of council, the said house shall nominate ten persons, qualified as aforesaid, and return their names to Congress; five of whom Congress shall appoint and commission to serve as members of the council five years, unless sooner removed. And the governor, legislative council, and house of representatives, shall have authority to make laws in all cases, for the good government of the district, not repugnant to the principles and articles in this ordinance established and declared. And all bills, having passed by a majority in the house, and by a majority in the council, shall be referred to the governor for his assent; but no bill, or legislative act whatever, shall be of any force without his assent. The governor shall have power to convene, prorogue, and dissolve the General Assembly, when, in his opinion, it shall be expedient.

The governor, judges, legislative council, secretary, and such other officers as Congress shall appoint in the district, shall take an oath or affirmation of fidelity and of office; the governor before the President of Congress, and all other officers before the governor. As soon as a legislature shall be formed in the district, the council and house assembled in one room, shall have authority, by joint ballot, to elect a delegate to Congress, who shall have a seat in Congress, with a right of debating but not of voting during this temporary government.

And, for extending the fundamental principles of civil and religious liberty, which form the basis whereon these republics, their laws and constitutions are erected; to fix and establish those principles as the basis of all laws, constitutions, and governments, which forever hereafter shall be formed in the said territory: to provide also for the establishment of States, and permanent Government therein, and for their admission to a Share in the federal Councils on an equal footing with the original States, at as early periods as maybe consistent with the general interest—

It is hereby Ordained and declared by the authority aforesaid, That the following Articles shall be considered as Articles of compact between the Original States and the People and States in the said territory, and forever remain unalterable, unless by common consent, to wit,

Article the First. No Person demeaning himself in a peaceable and orderly manner shall ever be molested on account of his mode of worship or religious sentiments in the said territory—

Article the Second. The Inhabitants of the said territory shall always be entitled to the benefits of the writ of Habeas Corpus, and of the trial by jury; of a proportionate representation of the people in the legislature, and of judicial proceedings according to the course of the common law; all Persons shall be bailable unless for capital offences, where the proof shall be evident, or the presumption great; all fines shall be moderate, and no cruel or unusual punishments shall be inflicted; no man shall be deprived of his liberty or property but by the judgment of his Peers, or the law of the land; and should the Public exigencies make it necessary for the common preservation to take any person's property, or to demand his particular Services, full compensation shall be made for the same,—and in the just preservation of rights and property it is understood and declared, that no law ought ever to be made, or have force in the said territory, that shall in any manner whatever interfere with or affect private Contracts or engagements, bona fide and without fraud previously formed.

Article the Third. Religion, Morality and knowledge being necessary to good Government and the happiness of mankind, Schools and the means of education shall forever be encouraged. The utmost good faith shall always be observed towards the Indians; their lands and property shall never be taken from them without their consent; and in their property, rights and liberty, they never shall be invaded or disturbed, unless in just and lawful wars authorized by Congress; but laws founded in justice and humanity shall from time to time be made, for preventing wrongs being done to them, and for preserving peace and friendship with them—

Article the Fourth. The said Territory, and the States which may be formed therein, shall forever remain a part of this Confederacy ... subject to the Articles of Confederation, and to such alterations therein as shall be constitutionally made; and to all the acts and ordinances of the United States in Congress assembled, conformable thereto. The inhabitants and settlers in the said territory shall be subject to pay a part of the federal debts contracted or to be contracted, and a proportional part of the expenses of government, to be apportioned on them by Congress according to the same common rule and measure by which apportionments thereof shall be made on the other States; and the taxes, for paying their proportion, shall be laid and levied by the authority and direction of the legislatures of the district or districts, or new States, as in the original States within the time agreed upon by the United States in Congress assembled. The legislatures of those districts or new States shall never interfere with the primary disposal of the soil by the United States in Congress assembled, nor with any regulations Congress may find necessary for securing the title in such soil to the bona fide purchasers. No tax shall be imposed on lands the property of the United States; and, in no case, shall non-resident proprietors be taxed higher than residents. The navigable waters leading into the Mississippi and St. Lawrence, and the carrying places between the same, shall be common highways, and forever free, as well to the inhabitants of the said territory as to the citizens of the United States, and those of any other States that may be admitted into the Confederacy, without any tax, impost, or duty, therefor.

Article the Fifth. There shall be formed in the said territory, not less than three nor more than five States; and the boundaries of the States, as soon as Virginia shall alter her act of cession, and consent to the same, shall become fixed and established as follows, to wit: The Western State in the said territory, shall be bounded by the Mississippi, the Ohio, and Wabash rivers; a direct line drawn from the Wabash and Post St. Vincent's, due North, to the territorial line between the United States and Canada; and, by the said territorial line, to the Lake of the Woods and Mississippi. The middle State shall be bounded by the said direct line, the Wabash from Post Vincent's, to the Ohio; by the Ohio, by a direct line, drawn due North from the mouth of the Great Miami, to the said territorial line, and by the said territorial line. The Eastern State shall be bounded by the last mentioned direct line, the Ohio, Pennsylvania, and the said territorial line: Provided however, and it is further understood and declared, that the boundaries of these three States shall be subject so far to be altered, that, if Congress shall hereafter find it expedient, they shall have authority to form one or two States in that part of the said territory which lies North of an East and West line drawn through the Southerly bend or extreme of lake Michigan. And, whenever any of the said States shall have 60,000 free inhabitants therein, such State shall be admitted, by its delegates, into the Congress of the United States, on an equal footing with the original States in all respects whatever, and shall be at liberty to form a permanent constitution and State government: Provided, the constitution and government, so to be formed, shall be republican, and in conformity to the principles contained in these articles; and, so far as it can be consistent with the general interest of the confederacy, such admission shall be allowed at an earlier period, and when there may be a less number of free inhabitants in the State than 60,000.

Article the Sixth. There shall be neither slavery nor involuntary servitude in the said territory, otherwise than in the punishment of crimes, whereof the party shall have been duly convicted: Provided, always, That any person escaping into the same, from whom labor or service is lawfully claimed in any one of the original States, such fugitive may be lawfully reclaimed and conveyed to the person claiming his or her labor or service as aforesaid.

Be it ordained by the authority aforesaid, That the resolutions of the 23d of April, 1784, relative to the subject of this ordinance, be, and the same are hereby, repealed and declared null and void.[147]

Done by the United States, in Congress assembled, the 13th day of July, in the year of our Lord 1787, and of their sovereignty and independence the twelfth.

[The great Sixth Article has rendered this Ordinance immortal. This anti-slavery provision, however, has been spoken of sometimes in terms more rhetorical than exact. Senator Hoar, in a centennial memorial oration at Marietta, in 1888, said: "Here was the first human government under which absolute civil and religious liberty has always prevailed. ... Here no slave was ever born, or dwelt." The student may compare American History and Government, § 333, close. But Daniel Webster was the historian rather than merely the orator when he said: "I doubt whether one single law of any lawgiver, ancient or modern, has produced effects of more distinct, marked, and lasting character, than the Ordinance of 1787."

August 7, 1789, the First Congress under the Constitution passed a Confirmatory Act, reenacting the Northwest Ordinance, with the provision that the appointments therein referred to Congress should be made by the President, subject to confirmation by the Senate.]

FOOTNOTES:

XXVI. DRIFTING TOWARD ANARCHY

150. Danger (or Hope) of a Military Dictator (1783)

Gouverneur Morris to John Jay

Life and Works of Morris (Sparks' edition), I, 249. If this letter is taken in conjunction with the army plots, it would seem that Morris was not averse to a military revolution as a step toward aristocratic rule.

Philadelphia, January 1, 1783.

... The army have swords in their hands. You know enough of the history of mankind to know much more than I have said,—and possibly much more than they themselves yet think of. I will add, however, that I am glad to see things in this present train. Depend on it; good will arise from the situation to which we are hastening. ... Although I think it probable that much of convulsion will ensue, yet it must terminate in giving to government that power without which government is but a name.

151. Shays' Rebellion

a. A temperate statement of real grievances leading to the "Rebellion"

Minot's History of the Insurrection in Massachusetts, pages 34-37.

The following "schedule of grievances" was adopted by a mass convention of Hampshire County, Massachusetts, in 1786. For the general narrative, cf. American History and Government, § 188-192.

At a meeting of the delegates from fifty towns in the county of Hampshire, in convention held at Hatfield, in said county, on Tuesday, the 22d day of August instant [1786], and continued by adjournments until the twenty fifth, etc. Voted, that this meeting is constitutional.

The convention from a thorough conviction of great uneasiness, subsisting among the people of this county and Commonwealth, then went into an inquiry for the cause; and, upon mature consideration, deliberation, and debate, were of opinion, that many grievances and unnecessary burdens now lying upon the people, are the source of that discontent so evidently discoverable throughout this Commonwealth. Among which the following articles were voted as such, viz.

1st. The existence of the Senate.[148]

2d. The present mode of representation.

3d. The officers of government not being annually dependent on the representatives of the people, in General Court assembled, for their salaries.

4th. All the civil officers of government, not being annually elected by the Representatives of the people, in General Court assembled.

5th. The existence of the Courts of Common Pleas, and General Sessions of the Peace.

6th. The Fee Table as it now stands.

7th. The present mode of appropriating the impost and excise.

8th. The unreasonable grants made to some of the officers of government.

9th. The supplementary aid.

10th. The present mode of paying the governmental securities.

11th. The present mode adopted for the payment and speedy collection of the last tax.

12th. The present mode of taxation, as it operates unequally between the polls and estates, and between landed and mercantile interests.

13th. The present method of practice of the attorneys at law.

14th. The want of a sufficient medium of trade, to remedy the mischiefs arising from the scarcity of money.

15th. The General Court sitting in the town of Boston.

16th. The present embarrassments on the press.

17th. The neglect of the settlement of important matters depending between the Commonwealth and Congress, relating to monies and averages.

18th. Voted, This convention recommend to the several towns in this county that they instruct their Representatives, to use their influence in the next General Court, to have emitted a bank of paper money, subject to a depreciation; making it a tender in all payments, equal to silver and gold, to be issued in order to call in the Commonwealth's securities.

19th. Voted, That whereas several of the above articles of grievances arise from defects in the constitution; therefore a revision of the same ought to take place.

20th. Voted, That it be recommended by this convention to the several towns in this county, that they petition the Governour to call the General Court immediately together, in order that the other grievances complained of, may, by the legislature, be redressed.

21st. Voted, That this convention recommend it to the inhabitants of this county, that they abstain from all mobs and unlawful assemblies, until a constitutional method of redress can be obtained.

22d. Voted, That Mr. Caleb West be desired to transmit a copy of the proceedings of this convention to the convention of the County of Worcester.

23d. Voted, That the chairman of the convention be desired to transmit a copy of the proceedings of this convention to the county of Berkshire.

24th. Voted, That the chairman of this convention be directed to notify a county convention, upon any motion made to him for that purpose, if he judge the reasons offered be sufficient, giving such notice together with the reasons therefor, in the publick papers of this county.

25th. Voted, That a copy of the proceedings of this convention be sent to the press in Springfield for publication.

b. Washington's Alarm

(1) George Washington to Henry Lee.

Washington's Writings (Ford edition), XI, 76-78. Lee was a Virginia delegate in the Continental Congress. Washington's letter is in reply to one received from Lee.

Mount Vernon, October 31, 1786.

... The picture which you have exhibited ... of the commotions and temper of numerous bodies in the eastern States, are equally to be lamented and deprecated. They exhibit a melancholy proof of what our transatlantic foe has predicted; and of another thing perhaps, which is still more to be regretted, and is yet more unaccountable, that mankind, when left to themselves, are unfit for their own government. I am mortified beyond expression when I view the clouds that have spread over the brightest morn that ever dawned upon any country. In a word, I am lost in amazement when I behold what intrigue, the interested views of desperate characters, ignorance, and jealously of the minor part, are capable of effecting, as a scourge on the major part of our fellow citizens of the Union; for it is hardly to be supposed, that the great body of the people, though they will not act, can be so shortsighted or enveloped in darkness, as not to see rays of a distant sun through all this mist of intoxication and folly.

You talk, my good Sir, of employing influence to appease the present tumults in Massachusetts. I know not where that influence is to be found, or, if attainable, that it would be a proper remedy for the disorders. Influence is no government. Let us have one by which our lives, liberties, and properties will be secured, or let us know the worst at once. Under these impressions, my humble opinion is, that there is a call for decision. Know precisely what the insurgents aim at. If they have real grievances, redress them if possible; or acknowledge the justice of them, and your inability to do it in the present moment. If they have not, employ the force of government against them at once. If this is inadequate, all will be convinced, that the superstructure is bad, or wants support. To be more exposed in the eyes of the world, and more contemptible than we already are, is hardly possible. To delay one or the other of these, is to exasperate ... or to give confidence, and will add to their numbers; for, like snow-balls, such bodies increase by every moment unless there is something in the way to obstruct and crumble them before the weight is too great and irresistible....

(2) George Washington, to James Madison.

Writings (Ford edition), XI, 80, 81. Note especially the extracts quoted from General Lincoln, in command against the rebels.

November 5, 1786.

I thank you for the communications in your letter of the 1st instant. ... Fain would I hope that the great and most important of all subjects, the federal government, may be considered with ... calm and deliberate attention. ... No morn ever dawned more favorably than ours did; and no day was ever more clouded than the present. Wisdom and good examples are necessary at this time to rescue the political machine from the impending storm. Virginia has now an opportunity to set the latter, and has enough of the former, I hope, to take the lead in promoting this great and arduous work. Without an alteration in our political creed, the superstructure we have been seven years in raising, at the expense of so much treasure and blood, must fall. We are fast verging to anarchy and confusion.

... a letter which I have received from General Knox, who had just returned from Massachusetts, whither he had been sent by Congress consequent of the commotions in that State, is replete with melancholy accounts of the temper and designs of a considerable part of that people. Among other things he says:

"Their creed is, that the property of the United States has been protected from the confiscation of Britain by the joint exertions of all; and therefore ought to be the common property of all; and he that attempts opposition to this creed, is an enemy to equity and justice, and ought to be swept from off the face of the earth." Again: "They are determined to annihilate all debts, public and private, and have agrarian laws, which are easily effected by the means of unfunded paper money, which shall be a tender in all cases whatever." He adds: "The number of these people amount in Massachusetts to about one fifth part of several populous counties, and to them may be collected people of similar sentiments from the States of Rhode Island, Connecticut, and New Hampshire, so as to constitute a body of about twelve or fifteen thousand desperate and unprincipled men. They are chiefly of the young and active part of the community."

How melancholy is the reflection, that in so short a space we should have made such large strides towards fulfilling the predictions of our transatlantic foes! "Leave them to themselves, and their government will soon dissolve." Will not the wise and good strive hard to avert this evil? Or will their supineness suffer ignorance, and the arts of self interested, designing, disaffected, and desperate characters, to involve this great country in wretchedness and contempt? What stronger evidence can be given of the want of energy in our government, than these disorders? If there is not power in it to check them, what security has a man for life, liberty, or property? To you I am sure I need not add aught on this subject. The consequences of a lax or inefficient government are too obvious to be dwelt upon. Thirteen sovereignties pulling against each other, and all tugging at the federal head, will soon bring ruin on the whole; whereas a liberal and energetic constitution, well guarded and closely watched to prevent encroachments, might restore us to that degree of respectability and consequence to which we had a fair claim....

152. A Shrewd Foreign Observer's View of the Social Conflict over the Adoption of a New Constitution

Louis Guillaume Otto to Vergennes[149]

George Bancroft's History of the Constitution (1882), II, Appendix, 399 ff.

Philadelphia, October 10, 1786.

[The letter first describes the failure of the Annapolis Convention.]

The people are not ignorant that the natural consequences of an increase of power in the government would be a regular collection of taxes, a strict administration of justice, extraordinary duties on imports, rigorous executions against debtors—in short, a marked preponderance of rich men and of large proprietors.

It is, however, for the interest of the people to guard as much as possible the absolute freedom granted them in a time when no other law was known but necessity, and when an English army, as it were, laid the foundations of the political constitution.

In those stormy times it was necessary to agree that all power ought to emanate only from the people; that everything was subject to its supreme will, and that the magistrates were only its servants.

Although there are no nobles in America, there is a class of men denominated "gentlemen," who, by reason of their wealth, their talents, their education, their families, or the offices they hold, aspire to a pre-eminence which the people refuse to grant them; and, although many of these men have betrayed the interests of their order to gain popularity, there reigns among them a connection so much the more intimate as they almost all of them dread the efforts of the people to despoil them of their possessions, and, moreover, they are creditors, and therefore interested in strengthening the government, and watching over the execution of the laws....

The majority of them being merchants, it is for their interest to establish the credit of the United States in Europe on a solid foundation by the exact payment of debts, and to grant to congress powers extensive enough to compel the people to contribute for this purpose. The attempt, my lord, has been vain, by pamphlets and other publications, to spread notions of justice and integrity, and to deprive the people of a freedom which they have so misused. By proposing a new organization of the federal government all minds would have been revolted; circumstances ruinous to the commerce of America have happily arisen to furnish the reformers with a pretext for introducing innovations.

They represented to the people that the American name had become opprobrious among all the nations of Europe; that the flag of the United States was everywhere exposed to insults and annoyance....

[Otto continues at length to represent that the gentry sought to secure a stronger government by inflaming the common people against foreign powers. He then declares that it was never intended that the Annapolis convention should do anything; that it was only one step in a "plot" to secure a more unfettered convention.]

The measures were so well taken that at the end of September no more than five states were represented at Annapolis, and the commissioners from the northern states tarried several days at New York, in order to retard their arrival.

The states which assembled, after having waited nearly three weeks, separated under the pretext that they were not in sufficient numbers to enter on business, and, to justify this dissolution, they addressed to the different legislatures and to congress a report, the translation of which I have the honor to enclose to you [i.e., the paper reproduced in No. 153].

In this paper the commissioners employ an infinity of circumlocutions and ambiguous phrases to show to their constituents the impossibility of taking into consideration a general plan of commerce and the powers pertaining thereto, without at the same time touching upon other objects closely connected with the prosperity and national importance of the United States.

Without enumerating these objects, the commissioners enlarge upon the present crisis of public affairs, upon the dangers to which the confederation is exposed, upon the want of credit of the United States abroad, and upon the necessity of uniting, under a single point of view, the interests of all the states.

They close by proposing, for the month of May next, a new assembly of commissioners, instructed to deliberate not only upon a general plan of commerce, but upon other matters which may concern the harmony and welfare of the states, and upon the means of rendering the federal government adequate to the exigencies of the union.

In spite of the obscurity of this document, you will perceive, my lord, that the commissioners were unwilling to take into consideration the grievances of commerce, which are of exceeding interest for the people, without at the same time perfecting the fundamental constitution of congress.

FOOTNOTES:

XXVII. MAKING THE CONSTITUTION

153. Call issued by the Annapolis Convention

Documentary History of the Constitution, I, 1-6. For a narrative of the circumstances, cf. American History and Government, § 199.

Sundry of the States having in Consequence of a Resolution and Circular Letter from the State of Virginia appointed Commissioners to meet at such time and Place as should be agreed upon by them the said Commissioners, to take into Consideration the Trade and Commerce of the United States etc:—the Commissioners of Virginia, Delaware, Pennsylvania, New Jersey and New York, met at the City of Annapolis on the 11th of September 1786, but did not think it advisable to proceed on the Business of their Mission. They therefore broke up after making a Report to the States by which they had been appointed and transmitting to Congress a Copy thereof which is as follows.

To the Honorable the Legislatures of Virginia, Delaware, Pennsylvania, New Jersey and New York.

The Commissioners from the said States respectively Assembled at the City of Annapolis, humbly beg leave to Report:

That, pursuant to their several Appointments, they met at Annapolis in the State of Maryland, on the eleventh day of September Instant, and, having proceeded to a communication of their Powers, they found that the States of New York, Pennsylvania and Virginia had, in substance, and nearly in the same terms, authorized their respective Commissioners "to meet such Commissioners as were or might be appointed by the other States in the Union, at such time and Place as should be agreed upon by the said Commissioners, to take into Consideration the trade and Commerce of the United States, to consider how far an uniform System in their commercial intercourse and regulations might be necessary to their common interest and permanent harmony, and to report, to the several States, such an Act relative to this great Object, as when unanimously ratified by them, would enable the United States in Congress Assembled effectually to provide for the same."

That the State of Delaware had given similar Powers to their Commissioners, with this difference only, that the Act to be framed in virtue of those Powers, is required to be reported "to the United States in Congress Assembled to be agreed to by them and Confirmed by the Legislatures of every State."

That the State of New Jersey has enlarged the Object of their Appointment, empowering their Commissioners, "to consider how far an uniform System in their Commercial Regulations, and other important matters, might be necessary to the common interest and permanent harmony of the several States;" and to "report such an Act on the Subject, as when ratified by them" would "enable the United States in Congress Assembled effectually to provide for the exigencies of the Union."

That appointments of Commissioners have also been made by the States of New Hampshire, Massachusetts, Rhode Island and North Carolina, none of whom have however attended, but that no information has been received by your Commissioners of any Appointment having been made by the States of Connecticut, Maryland, South-Carolina or Georgia.

That the express terms of the Powers to your Commissioners supposing a Deputation from all the States, and having for Object the trade and Commerce of the United States, your Commissioners did not conceive it advisable to proceed on the business of their Mission, under the Circumstance of so partial and defective a Representation.

Deeply impressed however with the magnitude and importance of the Object confided to them on this Occasion, your Commissioners cannot forbear to indulge an expression of their earnest and unanimous wish that speedy measures may be taken to effect a general meeting of the States in a future Convention, for the same, and such other Purposes, as the situation of Public Affairs may be found to require.

If in expressing this wish, or in intimating any other Sentiment, your Commissioners should seem to exceed the strict bounds of their Appointment, they entertain a full Confidence that a Conduct dictated by an anxiety for the welfare of the United States, will not fail to receive an indulgent Construction.

In this persuasion, your Commissioners submit an Opinion, that the Idea of extending the Powers of their Deputies to other Objects than those of Commerce, which has been adopted by the State of New Jersey, was an improvement on the original Plan, and will deserve to be incorporated into that of a future Convention. They are the more naturally led to which Conclusion, as in the course of the Reflections on the Subject, they have been induced to think, that the Power of regulating Trade, is of such comprehensive extent, and will enter so far into the General System of the Fœderal Government, that to give it efficacy, and to obviate questions and doubts concerning its precise nature and limits, may require a corresponding adjustment of other Parts of the Fœderal System.

That there are important defects in the System of the Fœderal Government, is acknowledged by the Acts of those States which have concurred in the present Meeting. That the defects, upon a closer examination may be found greater and more numerous than even these Acts imply, is at least so far probable from the embarrassments which characterize the present state of our National Affairs, foreign and domestic, as may reasonably be supposed to merit a deliberate and candid discussion, in some mode, which will unite the Sentiments and Councils of all the States. In the choice of the mode, your Commissioners are of Opinion that a Convention of Deputies from the different States, for the special and sole purpose of entering into this investigation and digesting a Plan for supplying such defects as may be discovered to exist, will be entitled to a preference, from Considerations which will occur without being particularized.

Your Commissioners decline an enumeration of those National Circumstances on which their Opinion respecting the Propriety of a future Convention with more enlarged Powers is founded; as it would be an useless intrusion of facts and Observations, most of which have been frequently the Subject of Public Discussion, and none of which can have escaped the penetration of those to whom they would in this instance be addressed. They are however of a nature so serious as, in the View of your Commissioners, to render the situation of the United States delicate and critical, calling for an exertion of the united Virtue and Wisdom of all the Members of the Confederacy.

Under this Impression Your Commissioners, with the most respectful deference, beg leave to suggest their unanimous conviction that it may essentially tend to advance the interests of the Union, if the States by whom they have been respectively delegated would themselves concur, and use their endeavours to procure the concurrence of the other States, in the Appointment of Commissioners to meet at Philadelphia on the second Monday in May next, to take into Consideration the situation of the United States, to devise such further Provisions as shall appear to them necessary to render the Constitution of the Fœderal Government adequate to the exigencies of the Union; and to report such an Act for that purpose to the United States in Congress Assembled, as when "agreed to by them and afterwards confirmed by the Legislatures of every State" will effectually provide for the same.

Though your Commissioners could not with propriety address these Observations and Sentiments to any but the States they have the honor to Represent, they have nevertheless concluded, from motives of respect, to transmit Copies of this Report, to the United States in Congress Assembled, and to the Executives of the other States.

By Order of the Commissioners

John Dickinson, Chairman

Dated at Annapolis September 14th 1786.

154. Appointment of Delegates: Credentials (Georgia)

Records of the Federal Convention (Farrand), III, 576-577.

Georgia is here selected for illustration, because of the emphasis upon the sovereignty of the State in the forms used.

GEORGIA

By the Honorable George Mathews Esquire, Captain General, Governor and Commander in Chief, in and over the said State aforesaid.

To all to whom these Presents shall come Greeting.

Know Ye that John Milton Esquire, who hath certified the annexed Copy of an Ordinance intituled "An Ordinance for the appointment of Deputies from this State for the purpose of revising the Fœderal Constitution"—is Secretary of the said State in whose Office the Archives of the same are deposited. Therefore all due faith, Credit and Authority are and ought to be had and given the same.

In Testimony whereof I have hereunto set my hand and caused the Great Seal of the said State to be put and affixed at Augusta, this Twenty fourth day of April in the Year of our Lord One thousand seven hundred and eighty seven and of our Sovereignty and Independence the Eleventh.

Geo. (Seal) Mathews.

By his Honor's Command J. Milton Secy

An Ordinance for the appointment of Deputies from this State for the purpose of revising the Fœderal Constitution.

Be It Ordained by the Representatives of the Freemen of the State of Georgia in General Assembly met and by the Authority of the same, that William Few, Abraham Baldwin, William Pierce, George Walton, William Houstoun and Nathaniel Pendleton Esquires, Be, and they are hereby appointed Commissioners, who, or any two or more of them are hereby authorized as Deputies from this State to meet such deputies as maybe appointed and authorized by other States to assemble in Convention at Philadelphia and to join with them in devising and discussing all such Alterations and farther Provisions as may be necessary to render the Federal Constitution adequate to the exigencies of the Union, and in reporting such an Act for that purpose to the United States in Congress Assembled as when agreed to by them, and duly confirmed by the several States will effectually provide for the same. In case of the death of any of the said Deputies, or of their declining their appointments, the Executive are hereby authorized to supply such Vacancies.

By Order of the House (signed) WM GIBBONS Speaker. Augusta the 10th February 1787. Georgia. Secretary's Office

The above is a true Copy from the Original Ordinance deposited in my Office.

Augusta 24 April 1787.

J. Milton, Secretary.

The State of Georgia by the grace of God free, Sovereign and Independent

To the Honorable William Pierce, Esquire.

Whereas you, the said William Pierce, are in and by an Ordinance of the General Assembly of our said State Nominated and Appointed a Deputy to represent the same in a Convention of the United States to be assembled at Philadelphia, for the Purposes of devising and discussing such Alterations and farther Provisions as may be necessary to render the Fœderal Constitution adequate to the exigencies of the Union.

You are therefore hereby Commissioned to proceed on the duties required of you in virtue of the said Ordinance

Witness our trusty and well beloved George Mathews Esquire, our[150] Captain General, Governor, and Commander in Chief, under his hand and our Great Seal at Augusta this Seventeenth day of April in the Year of our Lord one thousand seven hundred and eighty seven and of our Sovereignty and Independence the Eleventh.[151]

Geo: Mathews (Seal)

By His Honor's Command. J. Milton. Secy.

[Like commissions for the other delegates.]

155. George Mason on the Preliminaries at Philadelphia

George Mason to George Mason, Jr.

Records of the Federal Convention (Farrand), III, 22-24.

Philadelphia, May 20th, 1787.

... Upon our arrival here on Thursday evening, seventeenth May, I found only the States of Virginia and Pennsylvania fully represented; and there are at this time only five—New York, the two Carolinas, and the two before mentioned. All the States, Rhode Island excepted, have made their appointments; but the members drop in slowly; some of the deputies from the Eastern States are here, but none of them have yet a sufficient representation, and it will probably be several days before the Convention will be authorized to proceed to business. The expectations and hopes of all the Union centre in this Convention. God grant that we may be able to concert effectual means of preserving our country from the evils which threaten us.

The Virginia deputies (who are all here) meet and confer together two or three hours every day, in order to form a proper correspondence of sentiments; and for form's sake, to see what new deputies are arrived, and to grow into some acquaintance with each other, we regularly meet every day at three o'clock. These and some occasional conversations with the deputies of different States and with some of the general officers of the late army (who are here upon a general meeting of the Cincinnati), are the only opportunities I have hitherto had of forming any opinion upon the great subject of our mission, and, consequently, a very imperfect and indecisive one. Yet, upon the great principles of it, I have reason to hope there will be greater unanimity and less opposition, except from the little States, than was at first apprehended. The most prevalent idea in the principal States seems to be a total alteration of the present federal system, and substituting a great national council or parliament, consisting of two branches of the legislature, founded upon the principles of equal proportionate representation, with full legislative powers upon all the subjects of the Union; and an executive: and to make the several State legislatures subordinate to the national, by giving the latter the power of a negative upon all such laws as they shall judge contrary to the interest of the federal Union ... and what is a very extraordinary phenomenon, we are likely to find the republicans, on this occasion, issue from the Southern and Middle States, and the anti-republicans from the Eastern; however extraordinary this may at first seem, it may, I think be accounted for from a very common and natural impulse of the human mind. Men disappointed in expectations too hastily and sanguinely formed, tired and disgusted with the unexpected evils they have experienced, and anxious to remove them as far as possible, are very apt to run into the opposite extreme; and the people of the Eastern States, setting out with more republican principles, have consequently been more disappointed than we have been....

156. The Virginia Plan

Records of the Federal Convention (Farrand), I, 20-22, for May 29. For history of the plan, cf. American History and Government, § 202. On the opening day of the Philadelphia Convention for business Mr. Randolph, after a brilliant speech, introduced the following resolutions in behalf of the Virginia delegation.

1. Resolved that the articles of Confederation ought to be so corrected and enlarged as to accomplish the objects proposed by their institution; namely, "common defence, security of liberty and general welfare."

2. Resd. therefore that the rights of suffrage in the National Legislature ought to be proportioned to the Quotas of contribution, or to the number of free inhabitants, as the one or the other rule may seem best in different cases.

3. Resd. that the National Legislature ought to consist of two branches.

4. Resd. that the members of the first branch of the National Legislature ought to be elected by the people of the several States every —— for the term of ——; to be of the age of —— years at least; to receive liberal stipends by which they may be compensated for the devotion of their time to public service; to be ineligible to any office established by a particular State, or under the authority of the United States, except those peculiarly belonging to the functions of the first branch, during the term of service, and for the space of —— after its expiration; to be incapable of re-election for the space of —— after the expiration of their term of service, and to be subject to recall.

5. Resd. that the members of the second branch of the National Legislature ought to be elected by those of the first, out of a proper number of persons nominated by the individual Legislatures, to be of the age of —— years at least; to hold their offices for a term sufficient to ensure their independency; to receive liberal stipends, by which they may be compensated for the devotion of their time to public service; and to be ineligible to any office established by a particular State, or under the authority of the United States, except those peculiarly belonging to the functions of the second branch, during the term of service, and for the space of —— after the expiration thereof.

6. Resolved that each branch ought to possess the right of originating Acts; that the National Legislature ought to be impowered to enjoy the Legislative Rights vested in Congress by the Confederation and moreover to legislate in all cases to which the separate states are incompetent, or in which the harmony of the United States may be interrupted by the exercise of individual Legislation; to negative all laws passed by the several States, contravening in the opinion of the National Legislature the articles of Union; and to call forth the force of the Union against any member of the Union failing to fulfill its duty under the articles thereof.

7. Resd. that a National Executive be instituted; to be chosen by the National Legislature for the term of —— years, to receive punctually at stated times, a fixed compensation for the services rendered, in which no increase or diminution shall be made so as to affect the Magistracy existing at the time of increase or diminution, and to be ineligible a second time; and that besides a general authority to execute the National laws, it ought to enjoy the Executive rights vested in Congress by the Confederation.

8. Resd. that the Executive and a convenient number of the National Judiciary, ought to compose a council of revision with authority to examine every act of the National Legislature before it shall operate, and every act of a particular Legislature before a Negative thereon shall be final; and that the dissent of the said Council shall amount to a rejection, unless the Act of the National Legislature be again passed, or that of a particular Legislature be again negatived by —— of the members of each branch.

9. Resd. that a National Judiciary be established to consist of one or more supreme tribunals, and of inferior tribunals to be chosen by the National Legislature, to hold their offices during good behaviour; and to receive punctually at stated times fixed compensation for their services, in which no increase or diminution shall be made so as to affect the persons actually in office at the time of such increase or diminution that the jurisdiction of the inferior tribunals shall be to hear and determine in the first instance, and of the supreme tribunal to hear and determine in the dernier resort, all piracies and felonies of the high seas, captures from an enemy; cases in which foreigners or citizens of other States applying to such jurisdiction may be interested, or which respect the collection of the National revenue; impeachments of any National officers, and questions which may involve the national peace and harmony.

10. Resd. that provision ought to be made for the admission of States lawfully arising within the limits of the United States, whether from a voluntary junction of Government and Territory or otherwise, with the consent of a number of voices in the National legislature less than the whole.

11. Resd. that a Republican Government and the territory of each State, except in the instance of a voluntary junction of Government and territory, ought to be guaranteed by the United States to each State.

12. Resd. that provision ought to be made for the continuance of Congress and their authorities and privileges, until a given day after the reform of the articles of Union shall be adopted, and for the completion of all their engagements.

13. Resd. that provision ought to be made for the amendment of the Articles of Union whensoever it shall seem necessary; and that the assent of the National Legislature ought not to be required thereto.

14. Resd. that the Legislative Executive and Judiciary powers within the several States ought to be bound by oath to support the articles of Union.

15. Resd. that the amendments which shall be offered to the Confederation by the Convention, ought at a proper time, or times, after the approbation of Congress to be submitted to an assembly or assemblies of Representatives, recommended by the several Legislatures to be expressly chosen by the people to consider and decide thereon.

157. George Mason on the Convention and its Aristocratic Tendencies (June, 1787)

George Mason to George Mason, Jr.

Records of the Federal Convention (Farrand), III, 32-33

Philadelphia, June 1, 1787.

... Virginia has had the honor of presenting the outlines of the plan upon which the convention is proceeding; but so slowly that it is impossible to judge when the business will be finished, most probably not before August—festina lente may very well be called our motto. When I first came here, judging from casual conversations with gentlemen from the different States, I was very apprehensive that, soured and disgusted with the unexpected evils we had experienced from the democratic principles of our governments, we should be apt to run into the opposite extreme and in endeavoring to steer too far from Scylla, we might be drawn into the vortex of Charybdis, of which I still think there is some danger,[152] though I have the pleasure to find in the convention, many men of fine republican principles. America has certainly, upon this occasion, drawn forth her first characters; there are upon this Convention many gentlemen of the most respectable abilities, and so far as I can discover, of the purest intentions. The eyes of the United States are turned upon this assembly, and their expectations raised to a very anxious degree....

All communications of the proceedings are forbidden during the sitting of the Convention; this I think was a necessary precaution to prevent misrepresentations or mistakes; there being a material difference between the appearance of a subject in its first crude and undigested shape, and after it shall have been properly matured and arranged.

158. The New Jersey Plan

Records of the Federal Convention (Farrand), I, 242-245 (for June 15). The Convention, in committee of the whole, in two weeks of debate, had adopted nineteen resolutions based upon the fifteen in the Virginia Plan above. Action upon this report of the committee of the whole was then interrupted by the presentation of the following plan on which the "Small States" had now agreed.

Mr. Patterson [New Jersey] laid before the Convention the plan which he said several of the deputations wished to be substituted in place of that proposed by Mr. Randolph. After some little discussion of the most proper mode of giving it a fair deliberation it was agreed that it should be referred to a Committee of the Whole, and that in order to place the two plans in due comparison, the other should be recommitted. At the earnest desire of Mr. Lansing [New Jersey], and some other gentlemen, it was also agreed that the Convention should not go into Committee of the Whole on the subject till tomorrow, by which delay the friends of the plan proposed by Mr. Patterson wd. be better prepared to explain and support it, and all would have an opportunity of taking copies.—

The propositions from N. Jersey moved by Mr. Patterson were in the words following.

1. Resd. that the articles of Confederation ought to be so revised, corrected and enlarged as to render the federal Constitution adequate to the exigencies of Government, and the preservation of the Union.

2. Resd. that in addition to the powers vested in the U. States in Congress, by the present existing articles of Confederation, they be authorized to pass acts for raising a revenue, by levying a duty or duties on all goods and merchandizes of foreign growth or manufacture, imported into any part of the U. States, by Stamps on paper, vellum or parchment, and by a postage on all letters or packages passing through the general post-Office, to be applied to such federal purposes as they shall deem proper and expedient; to make rules and regulations for the collection thereof; and the same from time to time to alter and amend in such manner as they shall think proper: to pass Acts for the regulation of trade and commerce as well with foreign nations as with each other: provided that all punishments, fines, forfeitures and penalties, to be incurred for contravening such acts rules and regulations shall be adjudged by the Common law judiciaries of the State in which any offence contrary to the true intent and meaning of such Acts rules and regulations shall have been committed or perpetrated, with liberty of commencing in the first instance all suits and prosecutions for that purpose in the superior Common law Judiciary in such State, subject nevertheless, for the correction of all errors, both in law and fact in rendering judgment, to an appeal to the Judiciary to the U. States.

3. Resd. that whenever requisitions shall be necessary, instead of the rule for making requisitions mentioned in the articles of Confederation, the United States in Congs. be authorized to make such requisitions in proportion to the whole number of white and other free citizens and inhabitants of every age sex and condition including those bound to servitude for a term of years and three fifths of all other persons not comprehended in the foregoing description, except Indians not paying taxes; that if such requisitions be not complied with, in the time specified therein, to direct the collection thereof in the non complying States and for that purpose to devise and pass acts directing and authorizing the same; provided that none of the powers hereby vested in the U. States in Congs. shall be exercised without the consent of at least —— States, and in that proportion, if the number of Confederated States should hereafter be increased or diminished.

4. Resd. that the U. States in Congs. be authorized to elect a federal Executive to consist of —— persons, to continue in office for the term of —— years, to receive punctually at stated times a fixed compensation for their services, in which no increase or diminution, shall be made so as to affect the persons composing the Executive at the time of such increase or diminution, to be paid out of the federal treasury; to be incapable of holding any other office or appointment during their time of service and for —— years thereafter; to be ineligible a second time, and removeable by Congs. on application by a majority of the Executives of the several States; that the Executives besides their general authority to execute the federal acts ought to appoint all federal officers not otherwise provided for, and to direct all military operations; provided that none of the persons composing the federal Executive shall on any occasion take command of any troops, so as personally to conduct any enterprise as General, or in other capacity.