A
CONSTITUTIONAL HISTORY OF THE UNITED STATES

BY ANDREW C. MCLAUGHLIN

PROFESSOR EMERITUS OF HISTORY
UNIVERSITY OF CHICAGO

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D. APPLETON-CENTURY COMPANY
INCORPORATED
NEW YORK LONDON 1936
COPYRIGHT, 1935, BY D. APPLETON-CENTURY COMPANY, INC.

All rights reserved. This book, or parts thereof, must not be reproduced in any form without permission of the publisher

PRINTED IN THE UNITED STATES OF AMERICA

"For who are a free people? Not those, over whom government is reasonably and equitably exercised, but those, who live under a government so constitutionally checked and controuled, that proper provision is made against its being otherwise exercised." — John Dickinson, Letters From a Farmer in Pennsylvania (1768).

PREFACE

The purpose of this volume is to present briefly and clearly the constitutional history of the United States during nearly two centuries. I have no special ambition to write a long and learned work — so long as to deter a prospective reader from the task of scanning its pages, and so technical that only the learned expert, to whom I can give no valuable information, will occasionally turn its pages. I have attempted, therefore, to include essentials and those alone, to discuss those matters which in my own judgment the American citizen, not highly trained in the law, should know familiarly.

But the writing of a short history of a long and complex period furnishes its special difficulties. The author is under continuous obligation to practice self-restraint. He must exercise unremitting care in selecting the materials that he wishes to include in his story. This process of choice makes unrelenting demand and requires the use of discriminating judgment; the results may not satisfy the wisely critical reader. Conclusions, though they may be based on extensive exploration, must often be summed up in a sentence or two, without cautious modification or elaborate exposition. But one can only do his best, and choose the things he believes to be the most significant and useful.

This volume does not pretend to be in the main a history of constitutional law as announced by the courts. I have sought above all to make it concrete and not abstract, to associate constitutional principles with actual political and social conditions and with actual controversies reaching far beyond the court-room. But in many cases this association had to be presented briefly or to be plainly indicated only by inference. The great controversies, however, needed to be treated with sufficient detail. After all, the most important question, during the first three-fourths of a century under the Constitution, was the question whether the nation would survive, continue to live as an undivided whole. The most significant and conclusive constitutional decision was not rendered by a court of law but delivered at the famous meeting of General Grant and General Lee at Appomattox. This is only an illustration of the fact that, not judicial pronouncements, but great controversies, discussed and rediscussed by statesmen and the common people, are, or may be, the crucial matters.

It may seem that I have given disproportionally brief attention to the first third of the present century. If that be a just criticism, it may, nevertheless, be pointed out that, when we view the occurrences within our own memories, we are in danger of forcing unduly our own prejudices upon the reader. Only the greatest historians have ever succeeded in writing objectively of their own times. Furthermore, in discussing recent events it is difficult or impossible to get perspective; and perspective is for the historian his one necessity. And yet the apparent brevity of treatment of the later years is partly not real. Constitutional decisions, rendered in the early decades of this century, are often cited or briefly discussed in connection with problems arising in the more distant past. Frequently — and I hope with due caution — problems of early years are appraised by the principles laid down at a later time. Among the 342 cases referred to in the course of the book, 112 were decided in the twentieth century. Perhaps I ought to add that I have not attempted to trace constitutional developments after 1932.

I wish to acknowledge the suggestions furnished by some of my colleagues and others: Professor Arthur H. Kent; Professor Edward W. Hinton; Professor Avery O. Craven; Professor Quincy Wright; Professor Rodney L. Mott; Professor Edward S. Corwin; Professor James G. Randall; Dr. Howard K. Beale. I wish also to give full recognition to the patient and intelligent labors of my assistant, Miss Marjorie L. Daniel.

ANDREW C. MCLAUGHLIN.
Chicago, Illinois.


CONTENTS

CHAPTER

PAGE

PREFACE .............. vii

I. INTRODUCTION ............ 3

II. THE OLD EMPIRE ........... 7

III. THE PROBLEM OF IMPERIAL ORGANIZATION. THE ALBANY PLAN .......... 17

IV. THE WRITS OF ASSISTANCE AND THE REVENUE ACT . 25

V. THE STAMP ACT ........... 35

VI. AFTER THE STAMP ACT ......... 52

VII. AN OBDURATE PARLIAMENT AND OBSTINATE COLONIES, 1769-1773. THE GREAT CONTROVERSY BETWEEN GOVERNOR AND LEGISLATURE IN MASSACHUSETTS ........... 64

VIII. THE INTOLERABLE ACTS. THE ARGUMENTS IN DENIAL OF PARLIAMENTARY AUTHORITY ..... 75

IX. THE CONGRESSES OF 1774-1775 ........ 83

X. THE PHILOSOPHY OF THE REVOLUTION AND THE DECLARATION OF INDEPENDENCE ...... 91

XI. EARLY STATE CONSTITUTIONS ....... 106

XII. THE ARTICLES OF CONFEDERATION ...... 118

XIII. THE TRIBULATIONS OF THE CONFEDERATE PERIOD. THE CHIEF PROBLEM OF THE TIME ..... 137

XIV. THE FEDERAL CONVENTION ........ 148

I. DETERMINATION TO FOUND A NATIONAL GOVERNMENT .......... 148

II. CONTROVERSY AND COMPROMISE; THE ESSENTIALS OF FEDERALISM; COERCION OF LAW AND NOT OF ARMS ....... 163

III. SECTIONAL DIVERSITY; SLAVERY; THE PRESIDENCY; THE PHILOSOPHY OF THE FATHERS 185

XV. THE ADOPTION OF THE CONSTITUTION ..... 198

XVI. ORGANIZATION OF THE GOVERNMENT. HAMILTON'S FINANCIAL POLICY. IMPLIED POWERS. THE JUDICIAL SYSTEM .......... 224

XVII. THE ESTABLISHMENT OF THE EXECUTIVE DEPARTMENTS AND THE DEVELOPMENT OF THE CABINET 238

XVIII. THE ESTABLISHMENT OF THE AUTHORITY OF THE EXECUTIVE IN FOREIGN AFFAIRS ...... 248

XIX. THE ALIEN AND SEDITION ACTS ....... 264

XX. THE VIRGINIA AND KENTUCKY RESOLUTIONS ... 272

XXI. THE ELECTION OF 1800. THE REPEAL OF THE JUDICIARY ACT OF 1801 ......... 282

XXII. THE ANNEXATION OF LOUISIANA ...... 294

XXIII. JOHN MARSHALL, CHIEF JUSTICE. THE EARLY HISTORY OF THE SUPREME COURT. MARBURY v. MADISON 299

XXIV. THE IMPEACHMENT OF PICKERING AND CHASE. THE BURR CONSPIRACY ......... 320

XXV. FEDERAL AND STATE DIFFERENCES. FEDERALIST OPPOSITION. THE EMBARGO. THE OLMSTEAD CASE . 331

XXVI. THE WAR OF 1812 ........... 348

XXVII. CONDITIONS AFTER 1815. THE RISE OF THE NEW WEST. INTERNAL IMPROVEMENTS ...... 356

XXVIII. THE DEVELOPMENT OF STATE CONSTITUTIONS ... 366

XXIX. THE MISSOURI COMPROMISE ........ 372

XXX. CONSTITUTIONAL LAW UNDER CHIEF JUSTICE MARSHALL ............ 383

XXXI. THE PARTY SYSTEM AND PARTY MACHINERY. THE DEATH OF KING CAUCUS ....... 401

XXXII. JACKSON AND THE BANK. THE EMERGENCE OF THE MODERN PRESIDENCY ........ 410

XXXIII. GEORGIA AND STATES' RIGHTS. SOUTH CAROLINA RESORTS TO NULLIFICATION. THE THEORIES OF JOHN C. CALHOUN ......... 426

XXXIV. CHIEF JUSTICE TANEY AND THE SUPREME COURT .. 454

XXXV. EARLY CONTROVERSIES OVER THE SLAVERY PROBLEM (1833-1842) .......... 473

XXXVI. THE ANNEXATION OF TEXAS ........ 496

XXXVII. WAR WITH MEXICO. THE WILMOT PROVISO. SLAVERY IN THE TERRITORIES ........ 506

XXXVIII. THE COMPROMISE OF 1850 ........ 523

XXXIX. THE REPEAL OF THE MISSOURI COMPROMISE ... 542

XL. THE DRED SCOTT CASE ......... 552

XLI. THE STRUGGLE FOR KANSAS ........ 565

XLII. THE LINCOLN-DOUGLAS DEBATES ...... 578

XLIII. THE EVE OF THE CIVIL WAR ........ 589

XLIV. CONSTITUTIONAL PROBLEMS OF THE CIVIL WAR .. 615

XLV. RECONSTRUCTION: I. EARLY PROBLEMS; RADICAL VICTORY ............. 642

XLVI. RECONSTRUCTION: II. CONGRESS HAS ITS WAY; IMPEACHMENT ........... 660

XLVII. RECONSTRUCTION: III. THE UNION RESTORED.; CARPETBAGGERS AND FEDERAL TROOPS ...... 676

XLVIII. THE ELECTION OF 1876 ........ 696

XLIX. THE FOURTEENTH AMENDMENT ...... 720

L. THE LATER YEARS OF THE NINETEENTH CENTURY. DEVELOPMENT OF NATIONAL AUTHORITY. THE PROBLEM OF IMPERIALISM ...... 760

LI. INTERSTATE COMMERCE. RAILROADS. TRUSTS. AMENDMENTS. THE PRESIDENCY. CONCLUSION ... 771

CONSTITUTION OF THE UNITED STATES ..... 795

TABLE OF CASES ........... 811

INDEX .............. 819


CHAPTER I

INTRODUCTION

To find a beginning of American constitutional history is a difficult or impossible task. Certain important principles of constitutional government were in existence long before the United States was founded; some of these principles are commonly, though rather loosely, said to have had their origin in Magna Charta. This means only that, to know fully the forces and ideas which are embodied in our constitutional system, it is necessary to know the main course of English constitutional history. There are — to choose a simple example — in the Constitution of the United States terms and provisions which disclose their full meaning only when studied as a part of English constitutional history — habeas corpus, bill of attainder, common law, trial by jury, and other phrases. Moreover, the institutions and the elementary, though all-important, constitutional principles were not suddenly begotten in the America of the eighteenth century. Even in recent years the courts of this country have found it necessary to examine the laws and constitutional principles of England which were very old when the Federal Convention met in Philadelphia in 1787.

Furthermore, institutional forms as distinguished from principles were the product of long growth; to some extent their developments can be traced in English history. They are, however, more distinctly seen in the American colonies. When these colonies became states, their institutions were patterned in very large measure on the actual institutions of the colonies as they had developed in preceding decades. The framers of the federal Constitution were in their turn guided by the state constitutions; they did not enter upon their great task by ignoring the past; they did not seek in any large degree to invent what was new and untried. A complete constitutional history of the United States would include, therefore, at least a full outline of colonial development. Indeed, the states as they stand to-day are a part of our system of government, and an exhaustive treatment of our history would necessarily deal with the origin and development of state institutional forms; it would, for instance, deal with the bicameral system and the position and authority of the governor. But if one is to compress his work within manageable and readable limits, he must begin somewhere and curb his anxiety to seek origins and to portray the forces which worked through the earlier centuries. The purpose of this work is to trace the main lines of constitutional development for more than a hundred and fifty years, beginning with the middle of the eighteenth century. State history must be largely neglected, but not totally lost to view.

Constitutional history, moreover, when viewed in its entirety, is of almost limitless extent, because to comprehend it fully one must have in mind social and industrial change and movement. Institutions and principles do not develop or move in a vacuum; they bear the impress of actual social need and of imperative adjustment, even though the waves of time often seem to dash in vain against the walls of habit and of established practice. But here again, there is so much to be taken into account that one must exercise continuous restraint. He must be satisfied by only occasional references to the pulsations of the social and economic life which cause constitutional controversies and account for important determinations by voters, legislatures, and courts.

In discussing the earlier period covered by this work, the purpose of the writer is to dwell upon the emergence of the constitutional system as embodied in the Constitution of the United States. Some attention must be paid to the transformation of colonies into self-governing commonwealths, and to the principles on which state constitutions were founded, for that was the heart of the Revolution. But I do not expect to enter upon more than incidental study of the growing irritation between the colonies and the home country. There is no need of prolonged examination of the dispute as a mere prelude to war. The causes of the conflict by arms which broke the empire in twain have been often told by competent scholars. Our main purpose must be to look for ideas, the announcements of doctrines, the unfolding of principles, which are of significance because they entered into the American constitutional system, when that system came into tangible existence.

There are two main thoroughfares which may be traced in traversing the three decades before 1788: (1) one of these marks the course of developing principles of limited government which was supposed to guard individual liberty. Legally limited governments were the impressive products of the generation which formed state constitutions and brought the United States as a body politic into being. (2) The other main thoroughfare is that which led on to the particular form which the United States assumed; with the adoption of the federal Constitution, a federal state was founded. This was a state almost, if not quite, new to the world, though to-day states of similar structure dot the earth. As a system of political order, federalism is characterized by a distribution of essential powers of sovereign authority among governments; each government has its distinct share of powers; and as long as the system remains unchanged by some constitutional process, each has its inviolable hold upon its field of activity. To put the case concretely — the United States is a federal state, because it is a composite or complex system of political organization; it has the quality of diversification, not of concentration or complete consolidation.[1] The central government on the one hand and each state on the other have their respective spheres of legal authority. The United States differs from a mere league of totally sovereign states and from a totally unitary state.

If we look upon the Revolutionary period as a period in which constitutional principles developed and found expression, and in which institutions were produced, if we are not content with the war and the cleavage of the old empire, if we examine the years to discover their creative character, we find the two main achievements which have already been mentioned — the establishment of limited government and the founding of the federal state. These were the products of discussion and aspiration. Every period in history must be evaluated by its results; only thus can its actual life be comprehended. The Revolutionary period, which lasted for a generation and ended with the adoption of the federal Constitution, was peculiarly prolific in ideas, principles, and political philosophy of a practical character; it ended in the successful building of a political structure which has survived.

Much of what is important to us as evidence of the creative forces of the Revolutionary period comes to light in an examination of the arguments used in the years before the war. Probably we can see better than did the statesmen of the time the full significance of the contest, because we know the results; we realize the implications of what was said and done as history brings them into the light. Our interest in those discussions is not due to any desire to discover whether, on the basis of the constitutional system of the old empire, the position taken by the colonists was legally sound or not. We must bear in mind the historical processes of preceding decades and also the immediate character of the controversy; but we must select those things which we find leading up to the end — the establishment of institutions and the crystallization of principles in the American constitutional system.

As one examines the speeches and pamphlets and resolutions which were put forth to support the colonial position, he discovers, quite naturally, that the lines which led on the one hand to limited government and were designed to protect individual liberty, and the lines which, on the other hand, led to the final foundation of the federal state — that is to say, the two lines of progress selected for special attention in this work — were interlaced; the arguments and pronouncements were mutually supporting. The declarations against parliamentary taxation included a demand for protection of the individual from arbitrary taxation and also the right of the colonies as constituent parts of the empire to tax themselves; they included, therefore, the striving for personal rights and for the recognition of colonial competence. The rights of the individual and the rights of each colony appeared, though logically distinguishable, to rest in some respects on a common foundation.

If chronological order is to be followed, rather than purely logical order, we may expect to find this interweaving; and in general it may be necessary to leave to the reader the comparatively easy task of determining whether the facts and arguments as presented point to the coming of limited governments guarded by written constitutions or give evidence of the principle of diversification which is embodied in the federal state. In the minds of the men of the time, the inevitable and fully-developed results of their own words were not of course perfectly plain. They were participants in a great movement, the full products of which could not be entirely appreciated.


[1] It would be easier to describe the United States as a body in which sovereignty is divided between state and nation. And that would probably be the definition of the men of the late eighteenth century. But that brings up the question whether sovereignty can be divided; and the vaguer definition given above seems therefore preferable here. If sovereignty is complete political authority, then there seems to be only one possessor of sovereignty in our system, viz., the power that can amend the Constitution of the United States.


CHAPTER II

THE OLD EMPIRE

In the middle of the eighteenth century Britain had a wide-reaching empire. It was beset with difficulties, for there were enemies of long standing who were not content. The empire was powerful and prosperous. Studious efforts had been made on the basis of mercantilism to build up a self-sustaining empire. Rigorous enactments were passed to ward off invasion by commercial rivals and to hold the profits of the empire within its own hands. There had been some attempts to simplify the colonial system, which was, however, still very complex; for things had moved along under no well-defined and consistent plan. There were two types of colonies: corporate colonies and the provinces. The corporate colonies chose their own officials and had charge, without substantial interference from Westminster, of their own internal affairs. There were two kinds of provinces: proprietary, with a charter granting to the proprietor considerable authority, which, however, in the course of time proved to be not easily or independently exercised; and royal provinces (only one, Massachusetts, having a charter), in which the royal governor as the Crown's agent was supposed to carry out the royal behests. It is quite apparent that the royal colonies were most directly, effectively, and immediately controlled from Westminster.

Each colony had an assembly, in which at least one chamber was elective. And these assemblies were not lacking in self-respect or in activity. Royal governors complained of headstrong legislatures desirous of having their own way and ready to ignore the orders sent from across the ocean. In large degree, the colonies managed their own internal affairs, occasionally hampered by royal instructions and disallowance of colonial acts. Their external affairs were in the hands of the Crown. Acts of Parliament, especially sundry measures directing the course of external commerce, had been passed and were more or less obeyed. Nothing like complete analysis of the situation can be presented here and none is here attempted. The salient fact is the reality of diversity, complexity, and the existence of an imperial system in which there was a large measure of colonial self-government. The colonies were daily growing in self-assurance, in economic well-being, and in political competence; and the time was near when they were prepared to announce their rights or to demand assurance as to what their rights were.

Not that there was a spirit of disloyalty or intentional independence; but the colonies had been living their own lives, not without restraint, but with considerable freedom. Virginia, for instance, had managed her internal affairs for over a century; her political capacity was high; any attempt to change the political system by encroaching upon the colonial field, especially in matters of taxation, was sure to awaken opposition. Connecticut, a corporate colony, complacent in her possession of self-government, serves as another example. Resentment was certain to be aroused by the intrusion of the hand of the British government, if it should roughly disturb the habits and the rights of the colony; The essential matter is this colonial competence which had been strengthened by decades of experience. The right or the propriety of interference with an established regime was not decided and cannot be decided on the basis of mere logic or abstract governmental theory.

In a general view of imperial administration and control, certain elements stand forth with some distinctness. Great officers of state were the agencies through which royal management was actually exercised. Among these ministers the Secretary of State for the Southern Department had chief charge of American affairs. The Privy Council had wide and in some respects effective authority. The Board of Trade was a body engaged in gathering information, in consultation, advice, and recommendation rather than in issuing direct and authoritative orders; but its influence was of importance and its views upon questions of colonial policy and management were often determinative. The royal authority was chiefly and most conspicuously exercised by (1) appointment and commissioning of the royal governor; (2) instructions which the governor was directed to carry out, and which were likely to include orders for the use of the gubernatorial veto or directions to see that certain policies were followed in the colony; (3) disallowance by the king in council of colonial statutes, probably the most effective and far-reaching method of control;[1] (4) review of the decisions of colonial courts by the Privy Council acting in its judicial capacity.

As a general rule, the royal control was not exercised heedlessly. The investigations of the Board of Trade were commonly painstaking and were conducted fairly and intelligently. There was little ill-considered and hasty interference with colonial affairs; and this appears to be especially true of the exercise of disallowance and judicial review. Power was used, on the whole, not for the purpose of rude intrusion, but for essentially non-local purposes, or for ends which appeared to be of imperial scope and interest.[2] But disallowance, though the most effective means of retaining imperial authority and building up a homogeneous empire, was often a source of annoyance to the colonies, more, it seems, because of delay and uncertainty before actual use of the power than because of its objects or effects. While the colonies legislated and colonial courts sat and issued decisions, the Board of Trade and the Privy Council strove, not altogether without result, to maintain and build up a common system of law — or at least a colonial recognition of certain principles. The colonies did not absorb in all respects the forms and procedure of the common law; but especially in those matters which dealt with civil rights and liberties, the history of English constitutionalism was by no means ignored. It is not easy to distinguish those elements in the common law which can safely be placed within the realm of constitutional principles and those elements which have to do only with relationships and responsibilities of individuals. But it is plain that those elements of constitutional right, not commonly catalogued as belonging within the field of common law, were common, in large measure, to the empire, if we use the term to include England and the continental colonies. During the century ending in 1780, 265 cases were carried from colonial courts to the Privy Council.[3] It is, of course, difficult to say how much emphasis should be laid on the exercise of judicial control and how much it affected later events and the establishment of American institutions. There is no very tangible evidence indicating that the American system of appeals from state to federal courts was a direct inheritance from the old imperial system; but one would not dare to deny its influence; institutional principles and practices do not spring out of nothingness; they are not self-creative. Though there appears to have been only a few cases in which the scope of the legislative authority of a colony was passed upon by the Privy Council in a manner to suggest plainly a complete parallel between the power of the Privy Council and the power of our courts in declaring an act void, the practice of judicial review, we are justified in assuming, was not without its influence upon later times.

The decisions of the Council in exercising the power of disallowance often involved constitutional principles in a very broad sense; there was an attempt to maintain the general principles of the common law and of the law of Britain, which thus became, if we use general terms, in a sort of way the law of the empire. Disallowance of colonial acts, though technically to be distinguished from judicial decisions, often in reality was exercised in such a manner as to keep the colonies within their own sphere and to preserve parliamentary acts, notably the navigation acts, from violation or impairment.[4] In other words, if a colonial law were disallowed because it exceeded the power of the legislature under a charter, or because it disregarded the principle that the colony should not pass an act contrary to the law of Britain, the disallowance really involved the question of the extent of legislative authority. There is therefore a certain resemblance between such disallowance and a decision, which, under our constitutional system, may be rendered by an American court passing upon the validity of state legislation which is asserted to be in violation of laws, treaties, or the Constitution of the United States.

The role of Parliament, beyond the passage of navigation acts and acts of trade, had not been conspicuous. If a thoughtful colonist had been asked concerning the extent of parliamentary power, his answer presumably would have been that Parliament was the supreme legislative authority in the empire; but the admission would have been qualified, as Jeremiah Dummer had at one time qualified it, by saying, "And shall not the supreme Judicature of all the Nation do right?" [5] Here again it is impossible to speak with complete accuracy in a few words, or to show with absolute certainty the extent to which parliamentary statutes had invaded or affected internal colonial concerns. But the main fact is the absence rather than the plenitude of parliamentary legislation. The colonists had lived for years in most respects unaffected by such legislation, and must have thought of the legislature at Westminster as far away from their own immediate interests.

There were a few enactments which more or less directly affected the internal legislation and freedom of action of the colonies. The conspicuous ones are the following: the Piracy Act (1700) may perhaps be thus classified though in general it appears plainly an imperial matter; but more important are the acts fixing the rates at which foreign coins should circulate (1708), establishing the post office (1710), making colonial real estate and slaves chargeable with debts (1732), providing for naturalization (1740), extending the Bubble Act to the colonies (1741), and forbidding the issue of paper money in New England (1751). But these acts were not of a purely local character; considerations of the general welfare entered into them; and at all events the very fact that such acts were passed and thus brought within the purview of actual imperial control is a matter of some consequence. This field of parliamentary legislation was occupied because of the teachings of experience or because of apparent need. And it is from the real, rather than the formal or theoretical scope of imperial power, that the empire was taking shape — a matter of importance to anyone seeking the historical foundations of the American constitutional system.

It ought to be said that, in addition to the acts referred to above which appear to have the essential quality of acts passed for general imperial interests — at all events, not to be intrusions on colonial management of internal affairs — there were certain other acts which were passed to check American manufacturing and thus to protect British interests. These measures, such as those restricting the making of woolens and, at a later time, hats and iron, rested on the assumption that the insular interests of Britain should receive particular support. But, we should notice, there were other acts or provisions of acts which were not peculiarly for British advantage.[6] Most of these matters which Parliament had actually dealt with do not appear, in the light of our own system, to be suitable subjects for local legislatures alone in a well-articulated system in which powers are distributed between the central government and the states.[7]

For a hundred years, parliamentary acts had with greater or less earnestness and success regulated the external commerce of the empire. Against the barriers set up, the colonists had at times complained. The extent to which the acts were broken is not for us a subject of extreme importance. The fact is that such acts were passed, the colonists were accustomed to the regulations. One act, the West India Act or Molasses Act of 1733, was systematically avoided; it was designed by high duties to force the colonies to purchase the products of the British insular possessions and not those of the foreign West Indian colonies, especially the commodity which was one of the main articles of colonial commerce; in the mid-eighteenth century and before that date, the rum made from West Indian molasses formed the basis of many profitable New England voyages. The policy of mercantilism pointed unerringly to the regulation of trade as a main function of an imperial government, a function second only to providing for defense. The activity of Parliament in this particular was very real; every colonist, though only slightly interested in traffic on the high seas, must have been conscious of this fact.

Once again, for purposes of emphasis, it is desirable to remind the reader that the colonial assemblies managed their own "internal police." They levied taxes for local purposes; they had in reality defended themselves as parts of the empire — more or less inadequately and without concert, it is true, but fairly successfully; their local trade was in their own hands; and they in short did the many things — sometimes under pressure from the representatives of the royal authority — that concerned the daily life of the colonies. Even in the royal colonies, the legislative assemblies had little by little worn away the actual authority of the Crown. The old method of opposition, by which the royal power in England had been gradually diminished, was often used successfully by colonial assemblies, for possession of the purse strings enabled the assemblies to reach their goal.[8]

But in certain aspects the scope of the imperial power stood forth conspicuously. Parliament regulated trade beyond the confines of any single colony. The Crown had charge of the post office, foreign affairs, war and peace, the army and navy, leaving the subordinate military forces, the militia, to the individual colony; it was in the mid-century beginning to take active general charge of Indian affairs and trade with the Indians; it had ownership of the Crown lands within the royal colonies and was soon to become busily interested in the whole western question; it had taken some part in the establishment of the colonies, though they had been begun by private enterprise; it was prepared soon after the mid-century to enter upon plans of founding and organizing new settlements. Now, every colonist must have been familiar with the main features of the picture of the empire. Some conspicuous and important powers of imperial scope must have been taken for granted; to their existence and the need of their existence the colonists were accustomed.

In the whole picture of the imperial system we see plainly the fact that each colonist was living under two governments; the colonial government which was peculiarly his own was not in possession of complete authority. The colonists at no time were wonted to the sight of a single government exercising more than limited power. If one insists that in theory the government at Westminster had complete and unalloyed power, the fact, nevertheless, if practice and habits are properly taken into account, is that the government allowed colonial governments to function. Should we admit that in theory Parliament was supreme, we must nevertheless say also that this supreme power encroached but little upon internal colonial affairs; and if we recognize the continuing power of the Crown, we must see in addition the unremitting activity of colonial assemblies. The Crown, through disallowance and judicial review, brought into light the fact of colonial subordination and the existence of a central government controlling certain matters of general importance.

This rough sketch of the empire, the reader must be warned, presents only a general picture, subject to modification or enlargement in details. But anyone even slightly familiar with the American constitutional system will see at once the similarity between the general scheme of the old empire and the American political system of federalism. Plainly enough in essentials, if we look at the actual practice, the empire of the mid-eighteenth century was a diversified empire; powers were actually distributed and exercised by various governments. And if we consider the conspicuous powers exercised by the central government, we find the list strikingly like the list confided by the Constitution of the United States to the national government. If we add to the powers exercised by imperial authority the single power to obtain money by taxation, the similarity is even more evident. It is quite impossible to estimate with detailed accuracy the measure of influence of this system in the days when the Americans were called upon to organize their own empire, but that the Americans were not influenced by their own experiences and by well-known relationships appears to be an impossible supposition; such a supposition would compel us to think that the American system of federalism was a sudden creation, unbegotten by historical forces and unguided by teachings and habits of the past.

Britain had, therefore, in the mid-eighteenth century an empire characterized in actual practice by the principle of distribution and not by concentration of authority. If Great Britain in 1760 had reached out her hand and said, "This is the law of the empire; thus the system is formed," she would have recognized herself as the most considerable member of an empire with the pivotal characteristic of federalism — many governments, each possessing its legal sphere of authority. If the empire could have been hardened or petrified into the form then existing, it would have been in essential and important particulars a federal empire.[9] This system, we must notice, was the product of growth largely unintended and unplanned. Its value came from that very fact, from opportunistic effort, from allowing, often heedlessly, spontaneous growth. Developments had been the product of natural forces and conditions.

A narrative account of colonial history would relate a series of controversies, not violent but argumentative in character, between the representative assemblies and the royal or proprietary governors. If these are made to stand forth, the impression is left of a steady movement forward to independence; but there was no real purpose of breaking the ties of allegiance. Disputes do disclose, however, a fairly continuous development of the sense of self-dependence and the desire of the colonists, especially the politicians, to have their own way; political controversy was laying the foundations for future action because of the steady growth of competence and the influence of practical experience. We are dealing in these pages, however, not with the causes of disruption but with a general scheme of empire, as it actually took shape and persisted; we are dealing with actual distribution of powers in a complex imperial system. The colonists might occasionally object to the power of a royal or proprietary governor, and they occasionally fretted under the prohibitions of the navigation acts and acts of trade; but the general system continued. Any attempt to overthrow the system, or to alter its essentials, any attempt, above all, to encroach upon that sphere of authority which had developed under the play of natural forces, was sure to awaken resentment and alarm.

We shall see, as we go on, various evidences of the effect produced by the dualistic structure of the old empire. The practice of that empire, as the colonists knew it and felt it, must be appreciated for an understanding of the rise and establishment of American federalism. In the succeeding chapters, covering the years before the federal Constitution was framed and adopted, this work has in mind two things: the emergence of federalism as a legal system and the protection of individual right and freedom under limited government.[10]


[1] Some evidence of the extent of the use of disallowance can be seen from the following statement: "Of 8,563 acts submitted by the continental colonies, 469 or 5.5 per cent. were disallowed by orders in council." E. B. Russell, The Review of American Colonial Legislation by the King in Council (Columbia University Studies in History, etc., LXIV, no. 2), p. 221. "The royal disallowance was an executive rather than a legislative act, performed not by the king but by the Council as his executive agent. It was an exercise of the royal prerogative, an expression of the king's supreme authority in the enacting of laws by inferior law-making bodies, whose right to make laws at all rested on the king's will.... The royal disallowance was, therefore, not a veto but an act of regulation and control, in the same sense that a royal letter and instruction was an act of regulation. In fact, disallowance and instruction were synonymous, for both expressed in different forms the royal will." C. M. Andrews, "The Royal Disallowance," Am. Antiq. Society Proceedings, new series, XXIV, p. 343.

[2] Professor Andrews classifies the actual purposes of disallowance as follows: "The policy which governed the board and its advisers had four leading aspects. First, to defend the law and custom of the British constitution; secondly, to guard the interest and welfare of British subjects; thirdly, to protect the colonies or any of their inhabitants from ill-advised legislation; and lastly, to prevent the passing of laws that were extraordinary, oppressive, improper, or technically defective." The first group, Andrews says, was the largest, but "Probably the most important of all the reasons for disallowance was that an act affected the trade and shipping of the kingdom or the privileges and prerogatives of British subjects." Ibid., pp. 349, 354. See also, O. M. Dickerson, American Colonial Government 1696-1765, ch. V.

[3] A. M. Schlesinger, "Colonial Appeals to the Privy Council," Pol. Sci. Quart., XXVIII, p. 446. "The king in council reversed the colonial courts 76 times and affirmed their decisions 57 times.... In 77 cases no decision is recorded; 45 cases were discharged for non-prosecution. Only eleven appeals are noted in the records as having been heard ex parte." Ibid., p. 448.

[4] The discussion in the Constitutional Convention of 1787 concerning the proposal to give Congress the authority to negative state acts will be spoken of in a later chapter. The proposal bore a distinct resemblance to the old disallowance. Madison mentioned the resemblance. It is interesting to see the men founding the American system considering, some of them advocating, the institutional practice which had been used by Britain for the maintenance of an empire. But it is even more interesting to see that the framers of the Constitution finally recognized the distinction between disallowance because of the undesirability of an act, on the one hand, and on the other, judicial determination of the illegality of an act.

[5] "It's true, the legislative Power is absolute and unaccountable, and King, Lords and Commons may do what they please; but the Question is not about Power, but Right: And shall not the supreme Judicature of all the Nation do right? One may say, that what the Parliament can't do justly, they can't do at all. In Maxim/is minima eft licentia. The higher the Power is, the greater Caution is to be us'd in the Execution of it, because the Sufferer is helpless and without Resort." Italics of the original omitted. Jeremiah Dummer, Defence of the New-England Charters (Boston, 1745), pp. 40-41.

[6] "Some of the interests sacrificed for the good of the Empire were British, some colonial." G. L. Beer, British Colonial Policy 1754-1765, p. 196.

[7] Notice the provisions in our own Constitution concerning piracy, the post office, paper money, naturalization, bankruptcy, and rates of foreign coins. The act making real estate chargeable with debts was intended to prevent a colony from releasing persons who came to settle in the colony from their obligations to the creditors to whom they owed money before their migration; it may be looked upon as an enforcement of the principles of reasonable comity.

[8] "Despite the refusal of the home government to accept the inevitable, the fact remains that before 1760 the royal control of the colonies was largely destroyed.... Thus colonial government was no longer in the hands of the royal officials; the authority of the royal and proprietary governors relaxed; they lost their patronage, their control over the military, their ability to employ secret funds, to check riots and revolts, to manage a police or to take any adequate measures to ensure security at home, or to protect the frontiers against the French and Indians." C. M. Andrews, The Colonial Period, pp. 174-175.

[9] In an earlier paper ("The Background of American Federalism," Am. Pol. Sci. Rev., XII, pp. 215-240), I said that Great Britain by the middle of the eighteenth century had a working federal empire. To this statement Professor G. B. Adams, though not criticizing the main contents of the paper, objected on the ground that an empire with a central government free from control by the empire as a whole was not a federal empire. The criticism may be sound. The important idea is, however, that the chief quality of federalism — distribution of powers — appeared in the working practices of the old empire, and that distribution, as a practical fact, does more than merely suggest the scheme of distribution in the American constitutional system of a later day. The similarity between actual distribution in the old empire and the distribution provided for by the Constitution of the United States is apparent and discloses the evident fact of a family relationship; in essentials American federalism was the child of the old empire.

[10] In addition to the references cited in this chapter, see E. B. Greene, Provincial America 1690-1740 (Am. Nation Series, VI); E. B. Greene, The Provincial Governor in the English Colonies of North America (Harvard Historical Studies, VII); M. W. Jernegan, The American Colonies 1492-1750; H. L. Osgood, The American Colonies in the Seventeenth Century, III; H. L. Osgood, The American Colonies in the Eighteenth Century, I-II.


CHAPTER III

THE PROBLEM OF IMPERIAL ORGANIZATION. THE ALBANY PLAN

By the middle of the eighteenth century Britain was faced with the problem of imperial organization. We cannot say that her leaders were fully conscious of the fact; but looking back upon those years it is plain to us that, if her empire was to survive undamaged, a problem of great difficulty presented itself. And this problem, as we now view the facts, was central and insistent in its demands. Even if the blind could not see it, the question was there. Could the empire be so organized and arranged that it could find adequate means of preserving and using its strength? Could actual conditions be so envisaged that colonial valor and colonial enterprise would, without diminution of colonial self-government, contribute their vigor to the essential unity and development of the empire? The pressing and immediate question appeared to be means of securing men and money for imperial defense;' but the necessity of the case demanded the establishment of a system which would not only recognize imperial unity but conserve local rights and local self-respect. Principles of self-government, consonant with the actual competence and experience of the colonies, must find their place in the system; principles of individual liberty, the outgrowth of English constitutionalism — and deeply cherished by the colonists — must be watchfully guarded; and all arrangements and plans must be adjusted to the needs of a powerful and developing general system of empire.

That Britain failed to find a solution of the problem the reader need not be told. The story of conflict and failure is of immense consequence in the history of British imperial growth; but we are entering upon the study of events which produced the United States; and our attention is called to the fact that essentially the problem was passed on to the American states when they became free to organize their own empire. To solve the problem of imperial organization, therefore, grounded as it was in the history of the old empire, was the central, dominating, irrepressible task of a generation (1750-1788).

If there had been no danger to Britain because of the menace of France and her Indian allies, events might have moved on quietly for a time; the old easy-going system of imperial management might have continued undisturbed, save by the recurring evidence of unrest characteristic of a people on this side of the water who were not easily content. And if in any crisis the colonists had freely, generously, and thoughtlessly turned over their funds to be spent in defense, the problem of imperial order, we may well imagine, would not have been pressing. But this is only saying that if responsibility, expense, and coöperation had been assumed voluntarily, there would have been no need of law or compulsion. The cold fact was, however, that the colonies would not work together, and if there was one thing they disliked more than granting money — a dislike common to humanity in general — it was the pain of being deprived of the right to argue about the matter and of spending the money themselves, if spend they must.[1] Hesitation, debate, and delay are among the pains and penalties of popular government.

So varied were the colonies, so different in their social and industrial life, so far-removed one from the other, that any scheme of voluntary coöperation or systematic union presented enormous difficulty. Each colony had a fixed sense of its own importance and not much interest in its neighbors or sympathy with its neighbors' needs. In one view of the case, this readiness of each colony to look out for itself, this sentiment of local allegiance, this sense of self stands forth as the salient feature in the picture of the mid-century. So evident were the conditions that it appears to-day as a remarkable fact that the colonies were later, under pressure of common danger, brought to coöperation and union. And still, underlying all this reality of variation and of local loyalty, political institutions were strikingly similar; grumble as the colonists might over navigation acts or disallowance, they had worked out their system of self-government on the basis of a common tendency and desire; they all cherished the principles of English liberty, as they conceived it. From one end of the land to the other they spoke the same political language, cherished the same ideas, believed in the same fundamental doctrines; in these respects — omitting differences in religion and in habits of life and industry which militated against a feeling of common interest — there existed a real unity, a unity which was based on possession of certain principles and aspirations. Contradictions often appear to be the core of life; and so we find the principles of self-government and of self-control making for segregation, and yet the very desire for political self-determination constituted a common quality and made for coöperation when political interests and economic needs were at stake. In the long run, coöperation and ultimate union were found to be necessary for the preservation of the separate colonies and states.

Long before the mid-eighteenth century, various suggestions or plans of union had been put forth as well as attempts on the part of the royal authority to simplify the colonial system. But it is difficult to trace with assurance the influence of these proposals upon later movements. The New England Confederation which was established in 1643 and lasted for fifty years, most of the time in a state of desuetude, had some effect in suggesting a general scheme of union when that problem in the eighteenth century demanded an answer.

After the peace of Aix-la-Chapelle, which was in reality only a truce, it was apparent that a new struggle with France was likely to come, a contest for dominion in the great valley beyond the mountains and also, it might well be, for the very existence of the coast colonies. What part were the colonies prepared to play in this encounter? Would they freely enlist their men and open wide their purses, or would they hesitate and talk and insist upon their privileges when danger was at their very doors? Their general attitude furnished little hope or consolation. It was especially necessary to hold the Iroquois Indians and in general to handle the Indian question with discretion. Recognizing the need of effective coöperation, the Board of Trade planned a conference of colonial governors, and in 1753 instructions were sent to the governors of royal and proprietary colonies [2] north of the Carolinas directing them to see that commissioners were sent to treat with the Six Nations and to renew the "Covenant Chain" with them. The formation of some kind of union appears to have had the sanction of the British authorities.

The outcome was the Albany Congress of 1754. After the Indian matters were disposed of, the commissioners entered upon consideration of the need for union and coöperation. They unanimously decided that a union was absolutely necessary for security and defense, and they drew up a plan of union which appears to have been based on "Hints" furnished by Franklin and, though seemingly the product of considerable discussion, was probably largely his own handiwork. The plan deserves careful examination for various reasons, but especially because it points unerringly to certain distinct elements in the general problem of union; and those matters came to the fore and pressed for consideration not only then but in later years; it plainly discloses the nature of the task of imperial organization and it points to certain definite powers which were of common interest and needed to be confided to some central authority. It marks the beginning of an effort to single out the things that should be turned over to a central government or an agency of central administration. Any effort to formulate a basis of classification and distribution of powers is of commanding interest to the student of the American political system as it came to be. By the terms of the plan, a Grand Council was provided for, the members to be chosen by the representative assemblies in the colonies.[3] The general executive authority was given to a President General who was to be appointed and supported by the Crown, and who had the right to negative all acts of the Council; with the advice of the Council, he was to make all Indian treaties which concerned the colonies generally, and he was to make peace or declare war with the Indians. The President and the Council were authorized to regulate Indian trade, and to "make all purchases from Indians for the Crown, of lands [now] not within the bounds of particular Colonies, or that shall not be within their bounds when some of them are reduced to more convenient dimensions." They were to have charge of founding new settlements on such purchases and of providing laws for them, until the Crown should "think fit to form them into particular Governts ." To this central authority also was confided the right to raise armies and pay them, to equip vessels of war, and "for these purposes" to levy "duties, imposts or taxes...." A General Treasurer was to be appointed and also a particular treasurer in each colony when necessary; and the President General and the Council were to have the extraordinary power of ordering the sums in the treasuries of each government into the General Treasury, or of drawing on them "for special payments...." All laws were to be, as near as might be, agreeable to the laws of England and should be transmitted to the king for approbation. The President General could nominate for the approval of the Council all military officers, while all civil officers could be nominated by the Council for approval by the executive.

The plan, therefore, granted to the proposed central government a method and the power of raising money; it marked out a fairly definite sphere of action; and it bestowed ample authority over four subjects of supreme importance — Indian affairs, war, purchase of wild lands, and control, for a time at least, of western settlement. The commissioners even ventured to provide for proportional rather than equal representation of the several colonies in the Grand Council and to suggest quite plainly the desirability of limiting the extent of the larger colonies, some of which had claims to a vast territory beyond the mountains. Both of these latter proposals were sure to arouse opposition and in later years proved to be especially perplexing obstacles in the way of forming a federal union.

The document, as we read it to-day, appears remarkably precocious. It foreshadowed the anxieties, aspirations, disputes, and achievements of the years ahead. We need not be astonished that thirty-five years later, after the debates, trials, and tribulations of a generation, Franklin declared that in his judgment, if this plan or something like it had been adopted and carried out, "Separation of the Colonies from the Mother Country might not so soon have happened, nor the Mischiefs suffered on both sides have occurred perhaps during another Century." [4] But the significance of these proposals lies not so much in their suggestions for a method of saving the old empire as in their indication of the route that was to be followed in later years.

There was small ground for hope that the plan would be favorably received on either side of the ocean. It received short shrift in England. The Board of Trade had its own ideas and drafted a plan, but it need not detain us; it is significant, however, as proof of the fact that the home authorities were seriously considering the problem of empire and chiefly the need of acquiring and controlling means of defense. No colony accepted the Albany proposals.[5] Franklin said the plan was not favored in the colonies because it allowed too much to prerogative and the Crown disapproved it because it "placed too much Weight in the Democratic Part of the Constitution...." [6]

The plan indeed was ahead of the time; though measures for defense were imperative, any general plan of union, in which the colonies would have a large share, and which would be political in character and not calculated for defense alone, was objectionable to Britain, and on the other hand, colonial self-esteem and caution looked askance at intrusion upon hard-won preserves. How disconcerting to the average colonist was the proposal to establish a central government — even a central government in which the colonies would be represented — which could put its hand into the colonial treasury and draw forth funds even for war against a common enemy! "Every Body," said Franklin, "cries, a Union is absolutely necessary; but when they come to the Manner and Form of the Union, their weak Noddles are perfectly distracted." [7] The task was to distract weak and strong noddles alike for several decades to come. This was no job for puny minds. Something, the shrewdest heads on both sides of the water believed, had to be done. The Board of Trade declared that if the colonies would not acquiesce in some such arrangement as the one proposed by the Board, there was no alternative but an act of Parliament.

Eager and anxious for imperial stability and for success in the war with France, Franklin wrote the next year (1755) that a plan of union ought to "take Place" and be established by king and Parliament. " 'Till it is done never expect to see an American War carried on as it ought to be, nor Indian Affairs properly managed." [8] Colonial governors were beginning to think that the only way to get money for defense was parliamentary taxation and some of them advised it. Governor Shirley of Massachusetts declared the behavior of the colonies showed the necessity not only of "a Parliamentary Union, but taxation...." [9] The ministry during these years must have received ample assurance [10] that the colonies would not act of themselves and that some sort of compulsion was necessary.[11] The course of the war probably hardened this belief, and yet some of the colonies participated with a good deal of vigor, especially under the inspiring leadership of Pitt. And it is an interesting example of the apparent perversity of human nature that the freer colonies, those most fully in command of themselves, were the readiest to do their part. In the royal colonies, where affairs were most directly under royal control, bickerings and disputes with the governor were prominent and almost continuous. The proprietary colonies indulged in enjoyable disputes with the representative of the proprietary authority and yielded with ill grace to any demands for effective coöperation. The spirit of individual right and an insistence on colonial privileges were marked features of the situation. Despite all of the difficulties, Britain triumphed in the war, but the embarrassment resulting from incoherence and from the absence of a thoroughly articulated empire was apparent In some respects the war probably brought forth a certain sense of imperial unity, and it may have developed a recognition of identity of interests between one colony and another. But we must not speak with too much assurance. Each colony was quite conscious of itself and of its own right to guard what it deemed to be its privileges. The war gave special opportunity for the exercise of political craftsmanship. At the end, if the need of coöperation was more evident than it had been at an earlier time, and if there was glorification of British prowess and exultation over the victory, nevertheless imperial unity, organization on any viable basis suitable to the conditions, and the establishment of any effective system were even more remote, to all appearances than before hostilities began.[12] If one is inclined to blame the British statesmen for not working out a scheme of imperial order then or at a later time, he must surely also perceive the herculean nature of the task; and, moreover, the background of colonial incoherence and of colonial self-sufficiency must be taken into account in any attempt to appreciate the job which the Americans faced, not only in 1754 but in later years, when, for their own well-being, there was imperative need of coöperation and continental organization. The casual reader is probably inclined to overemphasize the single feature of the individual's belief in his personal liberties and his readiness to defend them, and is likely to underestimate the sense of self which was cherished by each colony as a constituent part of an empire. And we must remember that the empire had grown up without any consistent and adequate political system, the eyes of the British administration being fixed largely on trade, while Britain watched her enemies and her commercial rivals in Europe. A commercial rather than a well-articulated political empire had received the weight of attention.


[1] Franklin writing in 1754 portrayed the situation: "... some Assemblies being before at variance with their governors or councils, and the several branches of the government not on terms of doing business with each other; others taking the opportunity, when their concurrence is wanted, to push for favourite laws, powers, or points, that they think could not at other times be obtained, and so creating disputes and quarrels; one Assembly waiting to see what another will do, being afraid of doing more than its share, or desirous of doing less, or refusing to do any thing because its country is not at present so much exposed as others, or because another will reap more immediate advantage; from one or other of which causes, the Assemblies of six out of seven colonies applied to, had granted no assistance to Virginia, when lately invaded by the French, though purposely convened, and the importance of the occasion earnestly urged upon them...." Franklin, Writings (A. H. Smyth, ed.), III, p. 203.

[2] Virginia and New Jersey did not send representatives. The Lieutenant-Governor of New York seems to have represented Virginia. Representatives from Rhode Island and Connecticut attended.

[3] No representation from Georgia was provided for. There were to be not less than two nor more than seven representatives from any one colony. Documents Relative to the Colonial History of the State of New-York, VI, p. 889.

[4] Franklin, Writings (A. H. Smyth, ed.), III, p. 226, note 1.

[5] Nothing could more amply bring before us the watchful regard for colonial pence than the instructions of Connecticut to her commissioners at the Albany Congress. She desired the commissioners to join with others in representing to the king the defenseless state of his governments in America, to make evident the great expense Connecticut had assumed in comparison with southern colonies in former wars, and to be sure that the obligation on Connecticut was "no greater than of necessity." The commissioners were to "agree to no proportion of expence save for the present occasion," to make no presents to the Indians unless necessary, and to oppose as far as possible everything of that nature. They were to see to it that Connecticut troops served with eastern and not western troops, if there were any such distinction, and they must be careful not to bind the colony in any way before ratification by "this Hon. Assembly." Public Records of the Colony of Connecticut. X, p. 268 note.

[6] Franklin, Writings (A. H. Smyth, ed.), III, p. 227 note.

[7] Ibid., III, p. 242.

[8] Ibid., III, p. 267.

[9] Documents Relative to the Colonial History of the State of New-York, VI, p. 940.

[10] See the "Sharpe Correspondence," I, Archives of Maryland, VI, pp. 96, 99, 203. "This perverseness of the Virginia Assembly has induced the Gover[r] to apply home as I am told some other Governors have also done for an Act of the British Legislature to be obligatory upon all the Govern[ts] equally, & compel them to contribute their Quotas for the Defence & Protection of their Properties & His Majesty's American Dominions...." Sharpe to Calvert, September 15, 1754, in Ibid., p. 99. Sharpe made his own proposals — a poll tax, or a duty on wines and liquors, or a stamp duty. "... or can I now think we can have any Dependence on the Assemblies of the different Colonies with't a B. Act of Parliam't to raise a gen'l Tax on all his M'y's Subjects on this Cont't.... I much want to know if any Thing is done in regard to the Union of the Colonies. The Scheme from Albany on y't head is by no means agreeable to our people, and I dare not give my Opinion thereon, as I hear it lies with his M'y in Council; but it will be very agreeable if any Thing can be done to bring the wrong-headed People in this Part of the World to a proper Understand'g of their pres't Danger, and to rouse an Emulat'n among them for their Safety in rais'g proper Supplies for defeat's the Designs of the Com'n Enemy." Governor Dinwiddie to the Earl of Halifax, February 12, 1755, in "Dinwiddie Papers," I, Va. Hist. Soc. Collections, new series, III, pp. 496-497. See also Governor Dinwiddie to the Lords of Trade, February 23, 1756, in "Dinwiddie Papers," II, Va. Hist. Soc. Collections, new series, IV, p. 340.

[11] For references, see G. L. Beer, British Colonial Policy 1754-1765, pp. 44-46 note. For an account of conditions, see E. I. McCormac, "Colonial Opposition to Imperial Authority During the French and Indian War," University of California Publications in History, I, no. 1, pp. 1-98.

[12] "Despite the coöperation of many colonies in a common military undertaking, which, it may be, smoothed the way to an eventual understanding, the dislike and even the enmity of colony for colony were as great in 1763 as in 1750, while the absorption of each in its own affairs was as profound as at any time in its history." C. M. Andrews, The Colonial Period, pp. 232-233.


CHAPTER IV

THE WRITS OF ASSISTANCE AND THE REVENUE ACT

Let us now take up the course of events in the years beginning about the end of the French war. In giving this chronological narrative, we shall be concerned chiefly with detecting the statement of principles of government. We shall find some confusion and some inconsistency; we shall find a shifting from one position to another, and we should err if we assumed that the Americans had at the beginning a perfectly clear line of thought which was finally triumphant. But we shall see from the experiences of the fifteen years before independence was declared some fairly definite ideas emerging; and we shall have in mind, amid the confusion, those principles that finally became domesticated and firmly seated in our institutional system; especially we shall look for two essentials of American constitutionalism: (1) that governments have only limited power; (2) that governmental power may be distributed among governments; in other words, we shall find the two most salient ideas of the American system: the written Constitution, binding on governments, and the American federal system.

In 1761 an event took place that John Adams declared marked the birth of the American Revolution — "Then and there", he said of the famous speech of James Otis against writs of assistance, "the child Independence was born." The circumstances were these. Massachusetts merchants had been in the habit of treating with a lofty disdain the navigation act burdening their trade with the foreign colonies in the West Indies. Just how common and grave was this habit of disobedience (vulgarly known as smuggling) is of no considerable Importance. Soon after the death of George II (1760), an application was made to the superior court of Massachusetts for the issuance of writs of assistance; for it appears that old writs ceased to be good six months after the death of a monarch. The writ in question gave to the persons to whom it was issued general authority to search for smuggled goods, and its terms were very comprehensive and sweeping. In opposition to the granting of such authority by the issuing of the writ, James Otis appeared before the court. He and his associates were faced by able lawyers on the other side. The subject of dispute was significant. The brilliant oratory of Otis was called into being to denounce a process which, he contended, threatened the sanctity of one's dwelling and the security of property.

We do not know very much of what Otis said. John Adams, then a young lawyer, present at the argument, wrote in later years an extended account; but that account was written nearly sixty years after the speech; and, quite plainly, Adams included in his statement a sort of summary of the Revolutionary argument; it probably differs in many ways from the line Otis followed. However that may be, Adams did put down at the very moment, certainly practically contemporaneously, a brief outline of what Otis did say; and that brief outline is full of significance. Otis denounced the dangerous character of the writ as an infringement of an Englishman's right of "House"; he dwelt upon the extensive authority given by the writ and declared it to be "against the fundamental Principles of Law." "... all Precedents," he declared, were "under the Control of the Principles of Law." He had in mind, presumably, the fundamental principles of British freedom, and he probably used the word "Constitution" as that word was and is used in Britain; but he went further, declaring that Parliament was incapable of enacting legislation providing for such a writ. As the question before the court was the lawfulness of the writ, he would not stop by endeavoring to discover whether parliamentary authority sanctioned it; for not even Parliament could lawfully go beyond the constitution. Furthermore, the court must uphold the constitution even against Parliament itself; the court must "pass such acts into disuse." [1]

We find here, therefore, more than fervid eloquence appealing to the sacred rights of Englishmen; we find American doctrines, startling probably to the solemn judges who heard them. Even an act of Parliament might be no law, and if so, it was the duty of the court so to declare. It seems almost incredible that Otis comprehended the full import of his own words; for in after years such an elementary principle in American law was not clearly seen by even keen-minded men.

But there stands his assertion. So, to Otis at least, the British constitution must have been something real and tangible, fairly direct and conclusive in its limitations. The logical conclusion from his statement is that an unconstitutional law is not necessarily a bad law, or an inappropriate law, or even a law running counter to endeared traditions; an unconstitutional law is not a law at all; it is void; and a court must so declare. One inevitable result of this reasoning he did not state and, as far as we know, perhaps he did not see; if the act in question was no law, no one was under obligation to obey it. He did, however, say that the court must not treat the act as law and thus aid in enforcing obedience.[2]

Otis's argument is so impressive and so prophetic of the constitutional system which was to come that we are in danger of overestimating its actual effect or of thinking of him as the creator of a fundamental American doctrine. We can well believe, however, that the doctrine was as precocious as it was prophetic, though it was by no means altogether without historical background. It was for the moment ahead of its time, but the days were soon to come when the refuge of Americans was to be found in the declaration that some things were beyond the power of Parliament, and if Parliament exceeded its power, it acted illegally. We should not overstress the appeal to judicial authority as a relief from unconstitutional enactment, but notice the thought on which that appeal rested: there are limits, constitutional limits, to power. That was the staff on which developing revolution was to rest, and that was the foundation on which American constitutionalism was to be reared. In light of what went on and of what men said in succeeding years, it is not so much judicial duty as this fundamental idea of limited as over against unlimited power that is of chiefest significance. Judicial authority must wait upon the developing principle that limited government is possible and that unlimited government is tyranny.

This belief that there were legal limits, beyond which Parliament must not go, was associated with the belief in natural law and the unchanging principles of reason and justice; "natural equity" were Otis's words. And of similar import were "Reason of the common law" — those fundamental principles were supposed to be established in English constitutionalism. In this connection he referred to Coke,[3] having in mind Coke's dictum in the famous Doctor Bonham case.[4] It thus appears that Otis, and others that thought like him, believed their position was founded on revered legal authority; for had not Lord Coke himself plainly spoken? "... it appears in our books, that in many cases, the common law will control Acts of Parliament, and sometimes adjudge them to be utterly void: for when an Act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will control it, and adjudge such Act to be void." Had not other British judges announced the same doctrines? But withal — and this is important — Otis was asserting that Britain had a fixed constitution and its limits were applicable, indeed must be observed, in the empire. Thus he was announcing that there already existed what in reality the Americans were to create as a tangible fact. This tendency to assert the undeniable existence of principles, which were to find institutional expression, is a significant quality of the American Revolutionary process, of which we shall find other proof.

We do not and cannot know just how much effect these declarations of Otis had on the popular mind, though we do know that the mind of the average New Englander was prepared for them. The writs were issued after some delay, and we need not follow their history. Other events were in progress which brought in new objections and similar doctrines concerning the exercise of British authority. These events now claim attention.

In 1764 Parliament passed, at the suggestion of George Grenville, First Lord of the Treasury and Chancellor of the Exchequer, the Sugar Act, part of a general plan for enforcing the acts of trade and navigation and for obtaining some revenue from the colonies.[5] It is not our business to look into Grenville's purposes minutely. However great the temptation to obtain relief for the financial burdens of Britain by getting money from America, whatever justification there might appear to be in compelling America to pay at least a portion of the expense incurred for her defense, the means and method proposed by Grenville proved to be obnoxious. They were, furthermore, innovations upon long-established practices. That the sums received from certain duties in the colonies had fallen far short of meeting the cost of collection, producing, it was said, about one-fourth of the cost,[6] was not necessarily a reason for attempting to make the customs remunerative. The acts of navigation were not for revenue, but for regulation, restriction, or prevention of trade.

The purposes for which such acts were passed might have been obtained, even if no revenue at all reached the public coffers. It is not our affair to scrutinize the violation of law or to examine the ineptitude or corruption of certain officials, though the story is an interesting, if rather sordid, tale. The facts are that the plan of enforcing the acts of navigation and at the same time using them or parts of them for revenue was a most serious innovation; and it was an innovation likely, not only to affect seriously the commercial practices of the colonies, but also to arouse colonial opposition because it involved new principles. At a later date Burke put the thing in a nutshell: "Whether you were right or wrong in establishing the colonies on the principles of commercial monopoly, rather than on that of revenue, is at this day a problem of mere speculation. You cannot have both by the same authority. To join together the restraints of an universal internal and external monopoly with an universal internal and external taxation is an unnatural union, — perfect, uncompensated slavery." [7] Men had borne the burdens of trade regulations, "Because men do bear the inevitable constitution of their original nature with all its infirmities. The Act of Navigation attended the colonies from their infancy, grew with their growth, and strengthened with their strength. They were confirmed in obedience to it even more by usage than by law." [8] Burke thus saw not only what he called "uncompensated slavery" in the joining of taxation and burdensome restriction, but that the colonies were used to the regulations of trade but not used to the imposition for revenue.[9] An examination of the West India Act — the Molasses Act of 1733 — shows that its purpose was to compel the colonies to forego trade in certain commodities with the French and Spanish colonies in the Caribbean. The Sugar Act lowered the duties, plainly to get revenue.

This act of 1764, adding in some respects rather grievous restrictions on colonial trade and onerous red tape for their enforcement, provided that trials might be instituted in any colonial court, or in any vice-admiralty court which might be appointed over all America, as the informer or prosecutor might elect. This provision was naturally unwelcome to the colonial mind, for it might involve a trial in a distant court with all the accompanying burdens and inconveniences. But objectionable as such new regulations were, they were not more ominous than the announcement in the act that the purpose was to improve the revenue, that "the commons of Great Britain, ... being desirous to make some provision ... towards raising the said revenue in America, have resolved to give and grant unto your Majesty the several rates and duties herein after-mentioned...." [10]

We can pass over the outcries against the burdensome character of the act as a restriction on trade, and against the unwisdom of interfering with a commerce beneficial to the colonies and to Britain herself, significant though those outcries were as indications of colonial feeling or provocative as they might be of later rebellion. There appeared little or no opposition, as far as I am aware, to the general right of Parliament to regulate the trade of the empire. There was opposition to the revenue plan as well as combative argument breaking out into open violence when the proposals for raising revenue were further carried out in the Stamp Act the next year (1765). The opposition to the revenue-raising feature of the Sugar Bill was especially presented by Otis in his Rights of the British Colonies Asserted and Proved,[11] a pamphlet of such popularity that it deserves special examination.

The author begins in the orthodox fashion of those questioning the authority of government; he considers the origin of government, and finds its "everlasting foundation in the unchangeable will of God, the author of nature, whose laws never vary." [12] There must be in every society a sovereign, absolute, and uncontrollable power, "from whose final decisions there can be no appeal but directly to Heaven." [13] This power was originally and ultimately in the people, who did not make nor can they rightfully make an absolute unlimited renunciation of their essential right. As people are the origin of power, and as government obtains such authority as it has from the people, "There is no one act which a government can have a right to make, that does not tend to the advancement of the security, tranquility and prosperity of the people." There remains still in the people a supreme power to remove, or alter the legislative, when they find the legislative act contrary to the trust reposed in them.[14] But though the reasoning will support revolution and though it contains the essence of democratic thinking as far as the ultimate authority in the state is concerned, this pamphlet was not intended to preach revolution. Otis probably believed that Britain would accept its fundamentals without alarm. He pointed out that the colonists, having endured the hardships of settling a new country, did not renounce their natural liberty, for the gift of God cannot be annihilated.

The powers of Parliament, the supreme legislature of the kingdom and its dominions, Otis expressly acknowledges. Parliament has the right to make acts for the general good and by naming the colonies to bind them as well as the subjects within the realm.[15] No authority, however, has a right to make itself arbitrary nor can any supreme power "take from any man any part of his property, without his consent in person, or by representation." [16] In other words, the principles of representation must apply in the empire.

To solve this problem, or as a partial solution, he commits himself to the idea of representation in Parliament, a proposal never taken very seriously by any number of persons on either side of the ocean; the proposal, nevertheless, is in itself proof beyond cavil that Otis was not then merely a revolutionary firebrand, and in succeeding portions of his paper he gives us visions of a really free and glorious empire.[17] We mistake the whole character of the work if we see in it only a pamphlet making for rebellion. Doubtless he is at times vague; he was as a matter of fact troubled by the same perplexing problem that vexed Locke and others presenting the idea of natural law as a restraint upon governmental authority. Could order be based on the right to disobey? So Otis acknowledges openly the authority of Parliament, for "There would be an end of all government, if one or a number of subjects or subordinate provinces should take upon them so far to judge of the justice of an act of parliament, as to refuse obedience to it." What then is to be done, if on the one hand government has no right to exceed certain limits and, on the other, people have no right to disobey? [18] This is his answer; this is the peaceful solution: "If the reasons that can be given against an act, are such as plainly demonstrate that it is against natural equity, the executive courts will adjudge such acts void." [19] Thus, for unauthorized acts of government, Otis finds a remedy in the organs of government itself.

The appendix to this Rights of the British Colonies Asserted and Proved[20] contains the substance of a memorial presented to the Massachusetts house in pursuance of the instructions of the town of Boston to its representatives, and by the house ordered to be sent to the colony's agent in London. " 'Tis hoped," said these men of Boston, "it will not be considered as a new doctrine, that even the authority of the parliament of Great-Britain is circumscribed by certain bounds, which if exceeded their acts become those of meer power without right, and consequently void. The judges of England have declared in favour of these sentiments, when they expresly declare; that acts of parliament against natural equity are void. That acts against the fundamental principles of the British constitution are void." [21] In a footnote to this memorial, quotations are made from English judicial decisions to the effect that acts against natural equity are void.

Concerning natural rights Otis of course refers to Locke and makes incidental reference to certain writers of continental Europe. Connected with the memorial there appears a striking passage from Vattel, the influence of which is easily discerned in the later developments of American law: "It is here demanded whether, if their power [legislative power] extends so far as to the fundamental laws, they may change the constitution of the state? The principles we have laid down lead us to decide this point with certainty, that the authority of these legislators does not extend so far, and that they ought to consider the fundamental laws as sacred, if the nation has not in very express terms given them the power to change them. For the constitution of the state ought to be fixed...." [22] In the same passage from which these words are taken, Vattel says that the legislators cannot change the constitution without thereby destroying their own foundation.

In this pamphlet Otis does not let loose his thunderbolts against the acts of trade, as Adams many years later asserted that Otis did in the writs of assistance case. On the contrary, he accepts the navigation act as "a good act...." He admits that Parliament has the right as well as the power to bind both Ireland and America, but "whether this can be extended to an indefinite taxation of both, is the greater question." He asserts that Parliament has on the whole not taxed; for the Molasses Act was intended as a prohibition, "and 'tis pity it had not beem [sic] so expressed, as there is not the least doubt of the just and equitable right of the parliament to lay prohibitions thro' the dominions, when they think the good of the whole requires it. But as has been said, there is an infinite difference between that and the exercise of unlimited power of 'taxation [sic], over the dominions, without allowing them a representation...." [23]


[1] "As to Acts of Parliament. An act against the Constitution is void; an act against natural equity is void; and if an act of Parliament should be made, in the very words of this petition, it would be void. The executive Courts must pass such acts into disuse. 8 Rep. 118 from Viner. Reason of the common law to control an act of Parliament." The words "executive Courts" distinguish the judicial tribunals from the General Court, which was the legislature of the province.

[2] Logically of course, if an act is not a law, no one is legally bound by it; he can simply refuse to obey the lawbreaker. Perhaps Otis saw it all, though later words from him make doubtful his full grasp of it. But it is to be noticed that he did summon judicial support to the constitution, and did announce a judicial power; and thus he helped to bring in the American conception of the Constitution as a law to be recognized by courts. And still, the fact is not so much the extent of Otis's influence as the inference we are entitled to make concerning a condition of affairs or an attitude of mind which would account for the doctrine. Possibly we should also take into account the fact that in this case Otis was a lawyer arguing for his client. It is by no means impossible for a lawyer to announce as undoubted law principles which he scarcely hopes the court will accept, and to which under less demanding conditions he would scarcely adhere himself.

[3] That is the significance of his reference to "8 Rep. 118 from Viner."

[4] All this is elaborately treated by Horace Gray, afterwards Justice Gray of the federal Supreme Court, in an appendix to Quincy (Mass.) Reports (1761-1772).

[5] "It was the first statute distinctly taxing the colonies, and marked a radically new departure in colonial policy." G. L. Beer, British Colonial Policy 1754-1765, p. 277.

[6] George Grenville, The Regulations Lately Made concerning the Colonies (London, 1765), p. 57.

[7] Edmund Burke, Works (revised ed.), II, p. 35.

[8] Ibid., II, p. 33.

[9] It is no answer to say that the colonists would have objected to furnishing revenue, even if the whole navigation system had been abolished. Nor is it an answer to say that some acts, the West India or Molasses Act chiefly, had been in reality sedulously disobeyed. The principles of the act were essentially new.

[10] Italics and capitalization of the original omitted. For the details of this act, see The Statutes at Large, 4 Geo. III, c. 15.

[11] This pamphlet was mentioned in Parliament in the debates on the repeal of the Stamp Act.

[12] "It is by no means an arbitrary thing, depending merely on compact or human will for its existence." But he resorts to compact as the formal method of setting up human authority. "... the form and mode of government is to be settled by compact, as it was rightfully done by the convention after the abdication of James II...." Italics of the original omitted.

[13] The distinction here between Locke and Otis is noteworthy. Otis emphasizes the power of a people before government is set up; he seems to see a people as a real preexisting authority.

[14] Cf. John Locke, Two Treatises on Civil Government (Henry Morley, ed.), bk. II, sec. 149.

[15] He asserted that to his personal knowledge this principle had been held to for twenty years in Massachusetts. "The act of navigation is a good act, so are all that exclude foreign manufactures from the plantations, and every honest man will readily subscribe to them." In the years after the war a number of changes and additions were made to the system for the regulation of trade; these were in part aimed to encourage certain branches of colonial industry. There was some indication of an appreciation of the fact of the unity of imperial interests. See G. L. Beer, The Commercial Policy of England Toward the American Colonies (Columbia University Studies in History, etc., III, no. 2), p. 145.

[16] Italics of the original omitted.

[17] The whole argument through this portion of the pamphlet is enough to show that Otis in those days was not a mere declamatory malcontent or mischief-maker. His main idea after all was the liberty of Englishmen and the building up of a free empire based on the lasting foundations of unchanging law.

[18] I am not at all sure I should say that people, according to Otis, have no right to disobey. But he was here, after flatly announcing popular right, showing that there was a remedy short of revolution and disorder, short of an "appeal ... to Heaven." He was putting forth a constructive argument.

[19] Italics of the original omitted.

[20] I cannot be absolutely sure that this appendix appeared in the original edition. There were several editions or reprints. The one I have had access to is the Boston edition, 1764.

[21] Italics of the original omitted.

[22] Emeric de Vattel, born in Neuchâtel, 1714. His Droit des gens was published in 1758, and published in English in 1760. The edition to which I have had access is dated 1811, where the reading is the constitution of the state "ought to possess stability...." The Law of Nations, bk. I, p. 11.

[23] Otis here distinguished between taxation and regulation, but the idea was not as yet brought out distinctly.


CHAPTER V

THE STAMP ACT

Grenville's general scheme for obtaining revenue from the colonies culminated in the Stamp Act (1765) — of unhappy memory.[1] It provided for a burdensome tax upon the colonies and was of course immediately resented, and that too with an approach to unanimity. How could the colonies declaim against the tax? What routes could they follow? (1) They might object in general to the grievous financial burden, and this they did. (2) They denied not only the justice but the legality of the legislation — or at least they denounced it as violation of elementary principles of English liberty; they asserted that as British subjects they were immune from taxation because they were not represented; they set forth their rights as Englishmen. (3) They declared that the colonies, as corporate parts of the empire, had their own governments possessed of the power to tax and to regulate internal concerns. The resolutions of public assemblies and the arguments in pamphlets did not of course clearly distinguish between the various modes of opposition. The contentions, though mutually supporting, were different; we find them on the one hand asserting the rights of individuals under government; and on the other announcing, even when men did not see the full nature and could not see the product of their argument, that the British empire was in reality not a simple empire but a composite empire in which each commonwealth had its share of duty and authority.

This fact is well illustrated by the resolutions offered by Patrick Henry to the Virginia House of Burgesses. They appear to have been scattered broadcast through the colonies, as broadcasting was done in those simple days. They declare that the Stamp Act encroached on the fundamental rights of Englishmen and that Virginia had its own assembly which from time immemorial had possessed the right to tax Virginians. In other words, the people had a twofold protection — the fundamental constitutional immunity belonging to Britons and also the constitution or structure of the empire.[2]

To protest against the Stamp Act, a Congress assembled in New York in October, 1765. The resolutions of the Congress are possibly not quite so plainly and forcibly constructed as those of Henry, but they follow the same general lines: His Majesty's liege subjects in the colonies are entitled to the inherent rights of natural-born subjects within the kingdom; it is essential to the freedom of a people, and is the undoubted right of Englishmen, that no taxes be imposed on them without their consent, given personally, or by their representatives; the colonists cannot be represented in Parliament; the only representatives of the people are those chosen by the people of the colonies, and no taxes ever have been or can be imposed on them but by their legislatures.[3] They acknowledge not only the same allegiance to the Crown that is owing from His Majesty's subjects within the realm but "all due subordination to that august body the parliament of Great-Britain."

The debates in the House of Commons on the repeal of the Stamp Act are illuminating because they disclose the nature of the controversy, and it seems well to discuss them before passing on to a fuller consideration of the American arguments. We find the parliamentarians, then as later, taking refuge in an absolute announcement of complete control over the colonies. The mere statement of this authority, these men seem to have thought, scarcely allowed room for protest or needed the support of elaborate argument, though ere long detailed defense of Britain's power was presented by countless pamphleteers and eager penmen. Parliamentarians scorned distinctions and refinements; Parliament, sovereign in the empire, necessarily had the right to tax. And it is desirable, in passing, to note the last resort of noble minds — an insistence upon naked legal rights; to surrender under compulsion would lower the dignity and honor of the kingdom. The duty to maintain parliamentary dignity, to wrest from the colonists an acknowledgment of parliamentary power, even though no one might intend to use it or at least to use it harshly, was first and last of supreme consequence.[4]

William Pitt, who was then the idol of America and for years to come was hailed as the founder of the empire and the friend of freedom, vigorously attacked the Stamp Act and denied that Parliament possessed the power to tax the colonies. Asserting the authority of the "kingdom over the colonies, to be sovereign and supreme, in every circumstance of government and legislation whatsoever", he denied that taxation is a part of the governing or legislating power. "The distinction between legislation and taxation is essentially necessary to liberty." [5] Grenville scouted any difference between internal and external taxation, declaring that "this kingdom has the sovereign, the supreme legislative power over America," that taxation is "one branch of the legislation", and it is, and has been, exercised over those who are not and never were represented.[6] In reply to Grenville, Pitt struck another key: "If the gentleman does not understand the difference between internal and external taxes, I cannot help it; but there is a plain distinction between taxes levied for the purposes of raising a revenue, and duties imposed for the regulation of trade, for the accommodation of the subject; although, in the consequences, some revenue might incidentally arise from the latter." [7]

The examination of Benjamin Franklin at the bar of the House was dramatic, one might also say humorous, for the Yankee from Philadelphia was even then a man of mark, and if his customary humor was not in evidence at the time, it appears to us now as we read the pages of the proceedings. But the examination was, after all, confusing in some respects, if one aim of the witness was to bring out clear distinctions between what Parliament could and what it could not do. He seems at one time to distinguish between external and internal taxation, at another to distinguish between taxation and duties or impositions laid for the regulation of commerce; the net result was probably to instill in the minds of his hearers the opposition in America to internal taxes.[8] Although he fumbled his argument a bit, he must have impressed upon the Commons the seriousness of the occasion, and he made one especially wise and humorous statement; it contained the elements of prophecy: "Does the distinction between internal and external taxes exist in the words of the charter?" he was asked. "No, I believe not." "Then may they not, by the same interpretation, object to the parliament's right of external taxation?" "They never have hitherto. Many arguments have been lately used here to shew them that there is no difference, and that if you have no right to tax them internally, you have none to tax them externally, or make any other law to bind them. At present they do not reason so, but in time they may possibly be convinced by these arguments." [9] If parliamentarians would not recognize distinctions, but insisted on absolute and complete power, then the colonists would be driven to deny that Parliament possessed any power whatsoever.

The speech of Lord Lyttelton in the House of Lords [10] admirably illustrates how cleverly men may reason to reach foolish conclusions; and the results showed how unwise it is for statesmen to bandy raw logic. The noble lord accepted as fundamental "The last great maxim of this and every other free government ... that 'No subject is bound by any law to which he is not actually or virtually consenting' ", and he then proceeded to announce that "If the colonies are subjects of Great Britain, they are represented and consent to all statutes" — equivalent to saying that, inasmuch as you admit that the foundation of British government is consent, as long as you remain subject you do consent to have money taken from your pockets whether you like the operation or not. There is no difference between internal and external taxes, he further declared; the Americans make no such distinction and Mr. Otis himself, "their champion, scouts such a distinction...." By declaring the colonists exempt from one statute, he solemnly warned the assembled Lords, "you declare them no longer subjects of Great Britain...." All of this is a pretty piece of legalism, but a very poor basis for practical statesmanship. Lord Mansfield [11] spoke much to the same effect as Lyttelton. No wonder that Pitt in the Commons exclaimed that he did not come into the House with law books doubled down in dog's-ears to defend the cause of liberty, and that Burke at a later time, scorning finespun theories, said, "The question with me is, not whether you have a right to render your people miserable; but whether it is not your interest to make them happy? It is not what a Lawyer tells me I may do, but what humanity, reason, and justice, tell me I ought to do." [12]

Nevertheless, we must take facts as they were. The British lawyers laid down absolute doctrines, unbending principles. And it is also a fact that there was serious difficulty in seeing the possibility of reconciling the power of Parliament with a reasonable or moderate freedom and self-dependence of the colonies. Instead of ridiculing British statesmen because they could not see the possibility of modified or incomplete authority, we may notice a similar blindness among many Americans. The truth is, the problem was in many aspects a perplexing one; and its final solution grew out of the nature of things and out of the necessities of the case rather than out of early and continuously clear perception of principles. But this is equally true: the defenders of American liberties in Parliament announced that there were limits to parliamentary authority; at least some of them saw that the colonies could have the right of self-taxation without dismemberment of the empire. The debates of 1766 showed fairly clearly that the gist of dispute was whether Parliament had in theory limited or unlimited authority; and that continued to be the source and center of disagreement.

Parliament repealed the Stamp Act, coupling it, however, with a fatuous Declaratory Act, the announcement of a principle, a warning that the government would not by one jot or one tittle abate its supreme authority.[13] The colonists accepted the olive branch and ignored the threatening rod; more accurately, they rejoiced in the repeal of the Stamp Act and paid little apparent heed to the announcement of power; but they never forgot Parliament's assertion of unlimited power to bind them "in all cases whatsoever." It is unnecessary to repeat that the validity of that assertion was the center of the Revolutionary controversy.

Let us leave the colonists rejoicing over their victory (a victory doubtless achieved more because of the fear or distress of British merchants than because of the weight of American resolutions and arguments), and return to view more fully than we have yet done the nature of American opposition while the Stamp Act was still in force. Let us look first at certain pamphlets, selected not altogether at random, but chosen as indicative of able, fairly conservative, and influential expositions of America's case. In The Grievances of the American Colonies Candidly Examined,[14] Stephen Hopkins, Governor of Rhode Island, protested against the wisdom of the Sugar Act as an unwholesome interference with colonial trade, a trade beneficial to both Britain and the colonies.[15] He was far from a rebellious state of mind, though he pointed out that to tax the colonies as the Stamp Act did was to deprive them of long-established rights, and that "one who is bound to obey the will of another, is as really a slave, though he may have a good master, as if he had a bad one...." Of greater interest was his acknowledgment of the power of Parliament to regulate trade and, furthermore, although each colony had a legislature, "there are many things of a more general nature, quite out of the reach of these particular legislatures, which it is necessary should be regulated, ordered and governed.... Indeed, every thing", he said, "that concerns the proper interest and fit government of the whole commonwealth, of keeping the peace, and subordination of all the parts towards the whole, and one among another, must be considered in this light...." There must be this general power, superintending and ordering the whole, and that power "every man of the least knowledge of the British constitution, will be naturally led to look for, and find it in the parliament of Great Britain...." Here, then, we find a conservative and calm presentation of an idea, so conservative and calm that it fails, perchance, in driving power: there is a whole, but there are also parts, and these parts have their own particular interests. To guard and upbuild those interests is the duty of Parliament; but that duty does not involve the right to disregard the legitimate rights of the colonies and their respective legislatures. What Hopkins sees or comprehends is an empire, within its limits are colonies possessed of their share of authority, and over all is one general superintending body whose business it is to care for the interests of the whole. The next pamphlet to be examined came from the pen of Daniel Dulany of Maryland.[16] Here again we find the distinctions already mentioned. The colonies are dependent upon Great Britain; and the authority of Parliament may be justly exercised to preserve their dependence; but from that fact does not come the right to seize the property of the colonists. "In what the Superior may rightfully controul, or compel, and in what the Inferior ought to be at Liberty to act without Controul or Compulsion, depends upon the Nature of the Dependance, and the Degree of the Subordination.... May not then the Line be distinctly and justly drawn between such Acts as are necessary, or proper, for preserving or securing the Dependance of the Colonies, and such as are not necessary or proper for that very important Purpose?" [17] He speaks of the fact that the colonies are "impowered to impose internal Taxes", but he does not in reality make the distinction between internal taxes and external, or grant Parliament the right to levy the external. On the contrary, conceding to Parliament the right "to regulate the Trade of the Colonies," for "a Denial of it would contradict the Admission of the Subordination, and of the Authority to preserve it," [18] he declares that "there is a clear and necessary Distinction between an Act imposing a Tax for the single Purpose of Revenue,[19] and those Acts which have been made for the Regulation of Trade, and have produced some Revenue in Consequence of their Effect and Operation as Regulations of Trade." [20]

It is rather sad to recall that the writer of this able pamphlet, unable to follow the colonists into rebellion, was later vehemently denounced as a Tory and his property confiscated. This is one of many examples of the loss to America of men of active minds and distinguished ability whose services were much needed in later years.

This pamphlet is of undoubted significance. Dulany was a lawyer, educated in England, with a reputation on both sides of the Atlantic, a man of very remarkable mental gifts and learning. His insistence that the British Commons had no right to "Give and Grant the Property of the Commons of America" may have suggested to William Pitt the center of his argument in the House of Commons a few months after Dulany's pamphlet was published. "... what Right", asks the writer of the Considerations, "had the Commons of Great Britain to be thus munificent at the Expence of the Commons of America?" His argument against "virtual representation" is overwhelming and convincing.

In the pamphlets which have been mentioned as especially significant, we find objections to parliamentary authority and also evidence of a desire to single out certain measures as beyond parliamentary control. The distinction between taxation and regulation of trade is made or implied, and even if the distinction between internal and external taxes appears not very sound, it indicates a problem, an attempt to separate and distinguish one power from another; internal government and taxation belonged to the colonies.

In October, 1765, the house of representatives of Massachusetts, in answer to the Governor's speech, made a significant announcement of principles in a document attributed to the flowing pen of Sam Adams.[21] We are forced to present only a portion of the document, though the whole deserves careful reading. It was at once courteous, dignified, and cutting. "You are pleased to say, that the stamp act is an act of Parliament, and as such ought to be observed. This House, sir, has too great a reverence for the supreme legislature of the nation, to question its just authority: It by no means appertains to us to presume to adjust the boundaries of the power of Parliament; but boundaries there undoubtedly are.... Furthermore, your Excellency tells us that the right of the Parliament to make laws for the American colonies remains indisputable in Westminster. Without contending this point, we beg leave just to observe that the charter of the province invests the General Assembly with the power of making laws for its internal government and taxation; and that this charter has never yet been forfeited. The Parliament has a right to make all laws within the limits of their own constitution; they claim no more. Your Excellency will acknowledge that there are certain original inherent rights belonging to the people, which the Parliament itself cannot divest them of, consistent with their own constitution: among these is the right of representation in the same body which exercises the power of taxation." The most significant words are "boundaries there undoubtedly are", but we should notice the claim, based on the charter, of the right of the colony to make laws for internal government as well as taxation, and we should notice, too, the use of the word "constitution" and the apparent influence of Vattel.

A few days after this answer, the house drew up a series of resolutions declaring "That there are certain essential rights of the British Constitution of government, which are founded in the law of God and nature, and are the common rights of mankind...." Then followed a number of declarations of their rights as Britons, the announcement that such a representation as the subjects in Great Britain enjoyed was "impracticable for the subjects in America", that the "several subordinate powers of legislation in America were constituted upon the apprehensions of this impracticability", and that "the only method whereby the constitutional rights of the subjects of this Province can be secure, consistent with a subordination to the supreme power of Great Britain, is by the continued exercise of such powers of government as are granted in the royal charter, and a firm adherence to the privileges of the same." [22]

To accuse one's opponents of harboring the most extreme views, and especially to charge them with advocating the conclusions which relentless logic may extort from their actual words, is a common practice of politicians and of all persons who indulge in heated controversy. We must therefore not take too seriously the assertions of royal officials or other informers who found the colonists even in 1765 or 1766 determined upon independence; nor need we give full credit to the announcements that the colonists were even then declaring their complete freedom from parliamentary control. Perhaps some extremists went this far; for the people were indignant, and it is easy for indignant people to utter threats or indulge in extravagant expressions. "All of a sudden," wrote Thomas Hutchinson of Massachusetts in February, 1766, "... we have it advanced that acts of parliament of England or Great Britain have no more relation to us than acts of parliament of Scotland had before the Union." [23]

No one can know just how widely such opinions were held. Some persons, it appears, besides the ready-tongued, did have some such theory in mind as early as 1766. Richard Bland of Virginia toyed with the idea; but his pamphlet is confusing.[24] He seems not only to make an able defense of colonial right to self-taxation, but also to lay a fairly good basis for looking upon the colonies as dominions of the king free from parliamentary supervision. His main reliance, however, appears to be upon the principle of natural rights, but he does not proclaim sharply that natural rights are a legal limitation upon authority. On the whole, we are justified in concluding that the Americans in no formal way, and probably few in their own minds, were asserting their complete freedom from parliamentary authority. The day for such pronouncement lay some distance ahead. The fact is, the empire was in existence and Parliament had a share in its management; and that share had actually consisted largely in passing acts for the maintenance of the trade of the empire and for matters of general rather than local concern. Though thoughtful men believed portions of the navigation acts to be a hardship, and there were manifestations of a lawless and even turbulent spirit among the restless traders and watermen of the New England seaports, there is little evidence that there was objection to the form or workings of the imperial system as it had been in the past.

Probably many Americans, though I speak only of those capable of thinking connectedly on a principle of government, were troubled by the difficulty of reconciling the freedom of the colonies, or their possession of certain powers of government, with the fact of parliamentary control in certain rather imposing aspects. It was an easy mental exercise to accept the complete and unalloyed authority of Parliament, and it was easy to deny the existence of such authority in toto; but to envisage the composite or multiple empire was not so easy. The significant fact, therefore, is not the readiness of the colonists to announce the total incapacity of Parliament, but the tardiness of such an announcement. And it should be noticed that the great powers of empire in the hands of the Crown — foreign affairs, war, peace, and the like — were not challenged.

For our constitutional history the important fact is this: however many persons were ready to proclaim the total absence of parliamentary power over the colonies, writers and debaters were struggling for years more or less successfully with the conception of restricted governmental power and the organization of a politically-diversified empire. Such success as they had in reaching the conception of distributed authority was due to their own experiences with an actual, not a theoretical, British empire, an empire of which each colony was an integral part, an integral part of an actual whole. It may not be necessary to remind the reader that the question is not whether any one principle involving the legal structure of the empire was sound in logic or law; the important thing is the situation and the argument, be it good or bad. It is not even necessary to be confident concerning just how many persons held a single doctrine. Knowing as we do the products of the time, recognizing theories foreshadowing the coming of a diversified American "empire", we must take special interest in the emergence of the idea and the nature of the problem.

In Massachusetts, at all events, thanks to the preaching of the ministers, thanks to the doctrines which the ministers had long been heralding, and thanks also to the teachings of James Otis, it is plain enough that at the Stamp Act crisis men did not devote their nimble wits to working out an idea of an empire based wholly on the Crown and the power of the Crown. They surely began by admitting the authority of Parliament and denying its omnipotence — "boundaries there undoubtedly are". Those "boundaries" were the fundamentals of the British constitution. No matter how many other arguments they might have, or how many theories as to the structure of the empire they might put forth, the colonists never lost sight of what they claimed to be the elementary rights of Englishmen. Hutchinson himself said in 1765, "The prevailing reason at this time is, that the Act of Parliament is against Magna Charta, and the natural Rights of Englishmen, and therefore, according to Lord Coke, null and void." [25] When the town of Boston presented to the Governor in council a memorial asking for the opening of the courts, stamps or no stamps, James Otis, John Adams, and Jeremy Gridley appeared in support of the memorial. Otis opened an eloquent harangue with tears; he quoted Molloy: [26] "When there are no Courts of Law to appeal to, it is then we must have Recourse to the Law of Nature...." Adams, not so tearful apparently, declared the Stamp Act "utterly void, and of no binding Force" — not, it seems, because Parliament had no authority over the colonies, but because the act was contrary to "certain Principles fixed unalterably in Nature." [27]

A Virginia court, doubtless under the influence of the same kind of reasoning as that used by Otis and Adams, did not hesitate to take a decided stand. The court "unanimously declared it to be their opinion that the said act did not bind, affect, or concern the inhabitants of this colony, in as much as they conceive the same to be unconstitutional, and that the said several officers may proceed to the execution of their respective offices without incurring any penalties by means thereof...." [28]

We have thus far seen several distinct but not contradictory ideas, all of them important to one wishing to see the emergence of American constitutionalism. Some of these ideas were as yet rather vague; some of them appeared more sharply outlined in later discussions. (1) There were certain fundamental rights which government could not take away from its subjects. (2) Those rights were embedded in the British constitution. (3) Men were not called upon to obey an act depriving them of their rights. An unconstitutional act was not binding. This doctrine was perhaps implicit rather than explicit. (4) There was a British constitution limiting governmental authority, a constitution, in the American way of viewing it, more definite, not to say rigid, than any conception of it held by Britons. (5) Furthermore, the colonies, as parts of the empire, had functions and powers. (6) There could be and there was a clear distinction between one "power" and another; the "power" to tax was distinguishable from other powers. Parliament might have one power and not another. (7) The charters and immemorial custom gave sanction to the right, the legal right, of the colonies to manage their taxation and internal government. (8) Reason and a just regard for the interests of the whole sanctioned the authority of Parliament to legislate for the maintenance of the empire and for the coöperation of its parts. I am not intent upon forcing the conclusion that every man speaking this language beheld clearly all its logical consequences; I am intent only upon showing that these theories, if not so plain that the thoughtless man could think them, were actually part of the practical politics of the early Revolutionary period. And we should notice also that the discussion at that time as well as later was within the field of law.[29] If one is desirous of tracing the development of the American argument, he is compelled to see that, in 1765 and for a year or two thereafter, the emphasis was laid on the principles of individual liberty under the British constitution rather than on the freedom of the colonies as constituent parts of the empire; but there was reliance, not only on the rights of colonists as Englishmen, but also on the right to colonial self-government in the empire.

The colonists, someone may say, had no right to set up the principles of the English system as their defense, when they were claiming more than the English system actually contained; they could not properly declare that men's property could not be taken from them without their own consent given in a representative assembly of their own choosing. But the fact of their making the claim, not its theoretical justification, was the important thing. The British system of representation as it existed, and as it continued to exist until 1832, was far from recognizing the populace or the body of voters as the source of authority. No taxation could be levied save by the consent of Parliament; thus far had English constitutionalism progressed. Representation, especially borough representation, was, however, nearly farcical. Old Sarum, almost utterly without human habitation, had the privilege of sending two members to Parliament, while large and populous cities sent no member at all. And this was but one example of prevailing conditions.[30] Elections were rather a method of filling the benches of the House of Commons than a mode of ascertaining the wishes of voters or a mode of exercising their will. But again we must remind ourselves that Englishmen, though some of them were soon to fret under the system, did have something called representation which distinguished their government from the big and little autocracies of Europe. The Parliament had many able members, some of whom were the beneficiaries of the owners of pocket boroughs. The worth of English representation is not to be entirely ignored.[31]

The Americans, on the other hand, thanks to the colonial conditions, and thanks to the aquiescence, and, in part, to the magnanimity of the home authorities, had developed a system of representation fairly worthy of the name. It was not theoretically perfect, if judged by the doctrines of modern democracy; but it did in considerable degree recognize the right of popular voice in government, and it included the thought that the representative carried with him the desires and behests of his constituents. Suffrage was limited, and moreover there was no proper and proportional adjustment of representation to the numbers of the respective communities; the back-country suffered from discrimination. But withal, the fact is that the colonies had a system so far in advance of British practices that it is almost amusing to see Patrick Henry insisting upon the undoubted right of Englishmen not to be taxed without their own consent given personally or by their representatives. When, therefore, Britain and America entered upon any discussion of representation, they were separated farther than mere ocean space could divide them. Rightly or wrongly, the Americans were announcing principles which they had partly and effectively put into operation, principles to which in later years they gave fuller institutional expression and which are the basis of modern popular government.

Why did the Americans not continually cry out against the rotten and pocket boroughs, and why did they not vociferously denounce the bribery and the spoils practices so evident in the home country? Some of them did this occasionally. Otis, for example, at one time spoke impatiently of the everlasting changes rung upon the fact that large cities sent no members to Parliament; if they are not represented, he said, "they ought to be." [32] Bland spoke of the "Work worthy of the best patriotick Spirits in the Nation to effectuate an Alteration in this putrid Part of the Constitution...." [33] But the Americans as a rule were not casting aside as unworthy the whole British system; they made no pretense of having pushed onward to higher ground. They based their arguments on what they thought to be old and well-established principles; they saw in British constitutionalism the basis for their claim. Thus, the very method of approach is significant; it was legalistic rather than revolutionary; and it is difficult to overestimate the importance of this fact. The Americans setting forth the constitutional rights of Englishmen on both sides of the water, as they claimed those rights to be, did not appear to be engaged in destruction, but in conservation. The character of the formal documents which issued from America during the whole contest is a matter of consequence; they do not seem to breathe forth the air of revolution; they help us to understand how and why it was that even war did not beget thorough social disintegration, and how and why it was that the men of that generation did more than any other single generation to institutionalize principles of government and to perform the difficult task of constructive statesmanship; for in the end the movement was constructive; the institutions and principles, the establishment of which is the theme of these pages, rested not on imaginings — though men cannot move on without imagination — but on history.[34] It is easy, however, to see why the Britons did not feel comfortable, though abundant references were made to Britain's own past by the argumentative colonists. If a member of the House had acknowledged the ethics of the American position, and had not clouded the issue by what he called "virtual representation", he would have denied his right to his own seat; and a general acceptance of American principles would have shaken the British constitution to its foundations.


[1] Not merely a provision for an occasional halfpenny stamp. Newspapers or pamphlets contained in half a sheet carried "a stamp duty of one halfpenny, for every printed copy thereof." Every advertisement carried a tax of two shillings; admission to the bar, ten pounds, though a license to retail spirituous liquors, only twenty shillings; a diploma or certificate of any degree taken in a college, university, academy, or seminary, two pounds. These are but indications of the character and the weight of the tax. The act provided for stamps on legal documents, playing cards, etc.

[2] Some of the resolutions were not passed by the assembly; but all except one appear to have been in the set that was widely spread abroad. See the resolutions and notice the critical discussion by M. C. Tyler in his Patrick Henry (revised ed.), pp. 69-76 and especially p. 75, note 1. The resolutions assert first, that the colonists are entitled to all the privileges ever held by the people of Great Britain; second, that the royal charters declare that they are entitled to all immunities of natural-born subjects of England; third, that taxation by the people or persons chosen by themselves to represent them is the distinguishing characteristic of British freedom; fourth, that the Virginians have "uninterruptedly enjoyed the right of being thus governed by their own Assembly in the article of their taxes and internal police"; fifth, that the general assembly have the only and sole exclusive right and power to lay taxes and impositions; sixth, that the people of Virginia are not bound to yield obedience to any law imposing taxes on them except the laws of the general assembly of their province; seventh, that any person maintaining that any other person or persons have the right to tax the people of that colony shall be deemed an enemy of the colony.

[3] The above condensation does not give the full content of the resolutions, but it is sufficient to show their character. For the Congress and its resolutions, see H. Niles, Principles and Acts of the Revolution in America, p. 451 ff.; Select Charters (William MacDonald, ed.), pp. 313-315.

[4] The position of Mr. Nugent, afterwards Lord Clare, is characteristic of a "diehard" — a man willing to let all else go, if he can secure the acknowledgment of what he calls a principle. "... a pepper-corn," declared this gentleman, "in acknowledgment of the right, was of more value, than millions without." Parliamentary History, XVI, col. 97.

[5] Ibid., XVI, cols. 99-100. This may appear to the reader an impossible distinction, and I have no wish to defend it. One might see, however, the mere fact that the Commons had taxation fully or nearly in their control in the kingdom; and as a practical fact, taxation was singled out as a particular power in the constitution of the kingdom. Might not such a distinction be applied to the empire? Any such argument as this of Pitt is of interest in this study because it illustrates the nature of the problem. Were there limits on the power of Parliament? Could you make distinctions between powers, or must you rest content with asserting that all powers and authorities are necessarily an undivided whole?

[6] Ibid., XVI, col. 101.

[7] Ibid., XVI, col. 105. Pitt may have got this distinction from Otis, though Otis did not make the distinction so clear as it was to be made later. It more likely came from Dulany's Considerations, etc., a pamphlet discussed later.

[8] The reasons for the confusion in the minds of a good many persons doubtless were, first, the difficulty which human beings find in being logical, especially in practical politics; second, almost invariably those endeavoring to maintain that the colonists really did help to support the empire were led off into statements of the burdens of regulations which in their effect put money into the hands of British merchants and finally into the coffers of Britain.

[9] Parliamentary History, XVI, cols. 158-159.

[10] February 24, 1766, Ibid., XVI, cols. 166-168.

[11] Ibid., XVI, col. 172 ff. As illustration of the fact that in some considerable degree the British argument, at least in the ensuing years, was made not so much for money as for authority — for the recognition in theory of imperial might — see Chatham's statement in 1775: "... and when men are driven for want of argument, they fly to this as their last resource ... 'acts of parliament (say their advocates) are sacred, and should be implicitly submitted to ... for if the supreme power does not lodge somewhere operatively, and effectually, there must be an end of all legislation.' " Lord Chatham's Speech on the 20th of January 1775. Taken by a Member (London, 1775), p. 9.

The attitude of the more conservative Britons appeared in the protest or dissenting opinion of a number of the Lords (March 11, 1766), with respect to the repeal of the Stamp Act. These Lords contended that repeal in the face of tumults would make the Parliament ridiculous; that it was not only right, but expedient, for Parliament to exert its authority to lay a general tax on the colonies; that the American reasons for disobeying the Stamp Act extended to other laws, and, if admitted, would set the colonies absolutely free from any obedience to the power of the British legislature; and that concessions would lessen the respect of all His Majesty's subjects and throw the whole empire into confusion. In addition to the debates on the Declaratory Act and the repeal of the Stamp Act found in the Parliamentary History, XVI, important reports on these debates may be found in the Am. Hist. Rev., XVII, pp. 563-586.

[12] "Mr. Burke's Resolutions for Conciliation With America," American Archives (Peter Force, ed.), fourth series, I, col. 1760.

[13] The act, after stating that the colonies were "subordinate" and "dependent", went on to say "that the King's majesty, by and with the advice and consent of the lords spiritual and temporal, and commons of Great Britain, in parliament assembled, had, hath, and of right ought to have, full power and authority to make laws and statutes of sufficient force and validity to bind the colonies and people of America ... in all cases whatsoever." Italics of the original omitted.

[14] London, 1766. The first edition had the title, The Rights of Colonies Examined.

[15] Hopkins's attack on the breaking up of the trade with the West Indies is not oratorical but damaging, a severe attack, in reality, on the unwisdom of the restrictive system. The attack came naturally from a Rhode Islander, for the rum, molasses, and slave trade of the Rhode Island merchants was large and lucrative, and to break it down spelled something like disaster.

[16] Considerations on the Propriety of Imposing Taxes in the British Colonies, for the Purpose of Raising a Revenue, by Act of Parliament. This pamphlet, like that of Hopkins, did not bear the author's name. I have used the second edition (London, 1766). Tyler says the first edition issued from the press in October, 1765. M. C. Tyler, The Literary History of the American Revolution (one volume ed.), p. 101.

[17] Ibid., pp. 16-17.

[18] Ibid., p. 47. Italics mine.

[19] Ibid., p. 46. See also p. 48. Italics in the original.

[20] Ibid., p. 46. Part of the italics mine. I do not mean to assert that in this respect Dulany's argument is all the way through so perfectly clear as to be plain even to the stupid or perverse. He admits, for example, that the imposition of a duty may in some instances be the "proper Regulation." But on the whole, he plainly distinguishes between the right to regulate and the right to tax. To the unwary reader he is also confusing because he argues that the colonies have paid taxes in Great Britain; but as a matter of fact he is dealing with the incidence of taxation — on whom does the burden of a tax ultimately fall? As well might we argue that if the United States to-day levies a duty on British steel rails, the people of Great Britain are taxed to the amount of the duty.

[21] Samuel Adams, Writings (H. A. Cushing, ed.), I, p. 13 ff. Massachusetts State Papers, p. 43 ff. How much, especially in the earlier days, Sam Adams owed to Otis, is an interesting though for us not a very important question. Otis at one time said to John Adams, "I have drawn them all up, and given them to Sam to quieu whew them", at least so John declared. There is little doubt in my own mind that, whoever wrote the first draft of some important papers, the hand or the ideas of Otis are to be found in some of the papers commonly and perhaps rightly attributed to Sam Adams.

[22] Samuel Adams, Writings (H. A. Cushing, ed.), I, pp. 23-25. Italics of the original omitted. In this connection it is well to quote a passage from a letter of Sam Adams, written November 13, 1765: "... the only way to preserve to the Colonists their rights as British Subjects, consistent with their acknowledgd Subordination to the supreme Legislature of Great Britain, ... is to continue to them the same powers of Governmt , which they have hitherto been used to, with the same Checks & no other: This is all they desire:" Ibid., I, p. 39.

[23] Quoted in Quincy (Mass.) Reports (1761-1772), p. 443. "The King of Great Britain indeed is our Sovereign, but we have no representation in parliament, & strictly speaking, not meerly those acts which lay taxes upon us, but no other acts any further than we adopt them, are binding upon us." Thus Hutchinson presented the opinions of 1766.

[24] Richard Bland, An Inquiry Into the Rights of the British Colonies (Williamsburg, Virginia, 1766; reprinted in Richmond, 1922). See also Tyler, The Literary History of the American Revolution (one volume ed.), pp. 230-231. A reader of Bland's pamphlet is inclined to agree with Jefferson that it is "a singular one", not leading by a direct and simple route to a definite goal.

[25] Quoted in an appendix to Quincy (Mass.) Reports (1761-1772), p. 527. Italics of the original omitted. The whole note on pp. 527-528 is worth studying carefully. Even Justice Cushing, in a letter to Chief Justice Hutchinson, dated "In a hurry Feby . 7, 1766," said, "Its true It is said an Act of Parliament against natural Equity is void. It will be disputed whether this is such an Act. It seems to me the main Question here is whether an Act which cannot be carried into execution should stop the Course of Justice, and that the Judges are more confined than with respect to an obsolete Act." Ibid., p. 528 (quoted from 25 Mass. Archives, 55).

[26] De Jure Maritimo et Navali.

[27] Quincy (Mass.) Reports (1761-1772), p. 198 ff. Otis also referred to Grotius, De Jure Belli et Pacis. Again, the whole discussion is illuminating. It is true that Adams said, "A Parliament of Great Britain can have no more Right to tax the Colonies than a Parliament of Paris." And this sort of thing Adams in later years based on a view of the empire in which the Parliament had no authority whatever over the colonies; but his argument in 1765 was the invalidity of the act because the colonies were not represented, and was based on "our Rights as Men, and our Priviledges as Englishmen." Ibid., pp. 201, 200.

It is a noteworthy fact that the Governor, Francis Bernard, in replying to Otis and Adams, and possibly simply to escape discussion, shrewdly asserted that their arguments indicated that it was not the business of the Governor in council but of the court to determine the very question at issue: "The Arguments made Use of, both by Mr. Adams and you, would be very pertinent to induce the Judges of the Superiour Court to think the Act of no Validity, and that therefore they should pay no Regard to it; but the Question with me is, whether that very Thing don't argue the Impropriety of our Intermeddling in a Matter which solely belongs to them to judge of in their Judicial Department." Ibid., p. 206.

[28] Virginia Gazette, March 21, 1766. This decision, the first probably of any court in America and probably in the world to declare an act void because of unconstitutionality, was given by a court held for Northampton County, February 11, 1766. We need not comment here at length on the significance of all this. The thing to be stressed in this connection is not the action of the court as a court — we shall have more to say of that hereafter — but the use of the word "unconstitutional" and the principles on which it was undoubtedly based: there were certain fundamentals of the constitution, there was a constitution, and the legislature of Great Britain could not violate its principles. The thought of a constitution not to be tampered with in its fundamental principles must come before any court could act.

[29] This matter will be discussed somewhat more fully in the next chapter. As indicated at the beginning of this chapter, the Americans had more than one way of attacking the Stamp Act. Their objections were not entirely confined to the hardship entailed. Furthermore, they might have said, "This is the law; Parliament has the legal power, but we will not obey." It is of primary importance to notice that they did not say this, but denied the legal validity of this act as they came to deny the legal validity of other acts. That fact is what gave distinction to the Revolution.

[30] Samuel Curwen, an American who was in England from 1775 to 1783, wrote that the spot which formerly was the site of Old Sarum contained about sixty acres without one house on it. But on the lower plain stood one house where a family dwelt. See Edward and A. G. Porritt, The Unreformed House of Commons, I, p. 36.

[31] George Grenville, in his Regulations, gives an able argument in behalf of British representation: "All British Subjects," he says, "... are virtually represented in Parliament; for every Member of Parliament sits in the House, not as a Representative of his own Constituents, but as one of that august Assembly by which all the Commons of Great Britain are represented." "... they [Birmingham and Manchester] and the Colonies and all British Subjects whatever, have an equal Share in the general Representation of the Commons of Great Britain, and are bound by the Consent of the Majority of that House, whether their own particular Representatives consented to or opposed the Measures there taken, or whether they had or had not particular Representatives there." p. 109. Italics of the original omitted. So the men of Boston were "represented" by the ploughed fields of Old Sarum and by the pigsties and the pigeon-lofts of Richmond!

[32] Considerations on Behalf of the Colonists, in a Letter to a Noble Lord (2nd ed.; London, 1765), p. 6.

[33] Inquiry, p. 12. "... I cannot", Bland also said, "comprehend how Men who are excluded from voting at the Election of Members of Parliament can be represented in that Assembly, or how those who are elected do not sit in the House as Representatives of their Constituents." Ibid., p. 6.

[34] By this statement I do not mean that the Americans were right in their claims, nor do I mean that their arguments and their institutions were entirely the product of historical forces. It is the method of approach that is significant. Though actually creating what was in some respects new, and developing the old, American thinking was strikingly conservative. I refer, of course, not to the crowds that burned effigies and coerced stamp men, but to studied pronouncements of leaders.


CHAPTER VI

AFTER THE STAMP ACT

American satisfaction, induced by the repeal of the Stamp Act, did not long endure, for new troubles were in store. The politicians and placemen at Westminster had no proper appreciation of American sentiment; they had no sense of the enormous difficulty of managing an empire, especially an empire containing some two million colonists who were shrewd, determined, and peculiarly restless under restraint. The Rockingham ministry, in whose administration the stamp tax had been withdrawn, was succeeded in the summer of 1766 by a ministry a number of the members of which were followers of Pitt, who at the same time accepted a peerage and entered the Lords as Earl of Chatham; "the Great Commoner" was to be heard no more in the House where he had electrified his hearers and led the nation. Illness, moreover, soon came upon him, and such influence as he otherwise might have exerted was thus denied him; he could have done little to shape events. Britain was in no mood to listen to the sort of doctrine he was prepared to advocate; above all, the men who had their hands on the offices and on the treasury coffers, the men who were the leaders in politics and those who were the bright stars in the social firmament, were not inclined to emphasize the principle of freedom in the empire.

The new cabinet was a strange compound, the "mosaic" ministry Burke called it, "a very curious show, but utterly unsafe to touch and unsure to stand on." Charles Townshend, the Chancellor of the Exchequer, a nimble-witted and eminently clever man, who had a strange capacity for amusing the Commons by his audacity and trivial sallies, took matters in hand and proposed to collect a revenue in America. He could do it, he seems to have thought, without ruffling the easily-ruffled tempers of those strange people who made a nonsensical distinction between internal and external taxation; if they loved the distinction, he would make the most of it. The scheme which he carried through provided for the appointment of commissioners to superintend the collection of duties in the colonies; there were to be no more shuffling and unmannerly avoidance. Taxes were laid on glass, tea, painters' colors, and paper; the old navigation acts were to be enforced and duties were to find their way into the treasury. Furthermore, writs of assistance were elaborately provided for; and, as if intent on making the medicine as unpalatable as possible, the preamble of the Revenue Act (1767) announced the expediency of raising revenue to make a more certain "provision for defraying the charge of the administration of justice, and the support of civil government, in such provinces where it shall be found necessary; and towards further defraying the expences of defending, protecting, and securing the said dominions...." [l]

Though it is not our job to discern the cumulative irritations that finally provoked rebellion, or to discuss at length the expediency of ministerial conduct, it is scarcely possible to pass over these acts or their enforcement without comment. Here was an expensive and troublesome method of enforcing the acts of trade and navigation, a method proving to be exceedingly trying, though on the whole effective. The colonists did not like to pay taxes; they especially disliked the show of power, the ceaseless surveillance. They did not like writs of assistance, those general warrants which in the hands of unmannerly or corrupt officials appeared to menace the very sanctity of their households. They were accustomed to a wide freedom of legislation in their own assemblies; what was to become of self-government, if Parliament with a word could let loose upon them a whole flock of revenue-collecting locusts? But more distasteful than all else, more distasteful at least to the colonial politicians, was the intent or the threat of placing the courts of justice under the control of the Crown. Officers of civil government were to be paid or might be paid from the revenue thus collected. Were the royal governors to be relieved from their old fear, the fear that they might not receive their salaries, if they did not behave themselves?

Whatever argument may be made in behalf of the naked legal right of Parliament to extort money, it is plain that the cunning Charles Townshend and the clamoring official claquers at Westminster were running counter to the practices of a century and were disregardful of what Americans deemed their privileges. If the colonists had an unusual dislike of taxes, they were also proud and sensitive; and there were among them not only merchants and men of commerce, but astute players in the game of politics. If money could be raised only by such means as the agile-witted Townshend adopted, then revenue might be no blessing to anybody. The net results appear to have been, on the fiscal side, the collection of no inconsiderable revenue and the expenditure of the funds to enforce the acts;[2] on the purely human side, the exasperation of the British subjects in America; in other words, the whole thing was somewhere below the lowest limit of statesmanship. Finally, the revenue was to be used for "protecting, and securing the said dominions...." It was to be used or might be used to pay the soldiery; and though the colonists were still unwavering in their loyalty, there was no love lost between them and the British men-at-arms. True, the Britons had sent troops to fight the French and Indians; Canada had been conquered; but there must have been something humorous in the anxiety to defend colonists who for a hundred and fifty years had been gradually though surely pushing their way westward and had, almost entirely by their own exertions and brave persistence, built up an empire, the advantages of which were now supposed to accrue to the Parliament and merchants of the mother country.[3]

That the colonists were vexed is not a matter for wonder; the wonder is that they did not immediately take arms, at all events the arms of counter argument, against the whole system of trade restrictions; for the acts of navigation, though modified in some particulars for revenue purposes, were now enforced as never before, and one would be inclined to think that the system of regulating colonists "on the maxims of the counter" would have called forth maledictions on its head. But the colonists were used to the navigation acts, though in part the restrictions were honored more in the breach than the observance. And again we recall Burke's later words that "men do bear the inevitable constitution of their original nature with all its infirmities." Colonies were "confirmed in obedience ... even more by usage than by law."[4]

We must now turn to what is for us the important matter. How did the colonists take up opposition to the Townshend Acts? What principles of government did they announce? Their most important spokesman was John Dickinson of Pennsylvania. He had taken an important share in the Stamp Act Congress of 1765 and earned in the course of the coming years the title of the "Penman of the American Revolution." Like other colonial leaders, he was a lawyer by training, for lawyers were now coming into their own; he had studied law at the Middle Temple in London; like some leaders, and more than most, he could write with clearness and he knew what he was talking about — a happy, if unusual, combination of abilities. In 1767 and 1768, his "Farmer's Letters" were printed in a Philadelphia newspaper.[5] The attention they received was remarkable; they were reproduced in the American press and were soon published in pamphlet form, not only in America but abroad.[6] None but the illiterate or the remote frontiersman could have been ignorant of the case presented by the "Farmer", and the wide acclaim justifies us in believing that he stated the American cause as the people wished it to be stated.[7]

Of first importance is the fact that Dickinson, while writing with real eloquence and with literary power, did not indulge in declamation or wild denunciation. There was no intent of arousing the passions of the multitude. He was himself, as Tyler has said, "a man of powerful and cultivated intellect, with all his interests and all his tastes on the side of order, conservatism, and peace, if only with these could be had political safety and honor." [8] While he defended the principles of English liberty, he spoke for an empire of justice.

Dickinson had a difficult task, for he had really to present in broad outline a scheme of empire. He spoke as an Englishman claiming the birthright of an Englishman, as the possessor of privileges won for him and for others by Englishmen who had dared to struggle for their rights; but he spoke also as a citizen of a wide empire in which the rights of Englishmen must be maintained. His argument was not wholly new, but it presented with elaboration and with clarity important views of the constitutional structure of the empire.[9] He envisaged a composite or decentralized system regardful of individual liberty and colonial privilege. He seemed at times to be more insistent upon the unity of the empire than upon the rights of the colonies; or, if that be an over-statement, this is beyond cavil — he spoke not as a disgruntled colonist, cherishing rebellion, but as a citizen of the British empire who gloried in its symmetry and strength. The general applause which his words received is striking proof that people did not wish independence but freedom; and those capable of following his argument must have seen that his picture of the empire embraced both freedom and authority.[10]

The most signal contribution made by Dickinson, if we except his strong portrayal of imperial unity consonant with local rights, was his sharp definition of taxation and the distinction between taxation and the regulation of commerce. As we have already seen, others had made the distinction; but even Dulany had not left a clear-cut impression. Dickinson defined taxation as an imposition for raising revenue. The difference between internal and external taxation, he scorned and rejected. He quite properly denied that the Americans had ever committed themselves to such a classification; "all taxes are founded on the same principles; and have the same tendency."[11]

Why is Dickinson's position important? It is important because he believed that in the British empire powers had been distributed; because he made a sharp distinction between one "power" and another; and because our system of government rests on the distribution of "powers" among governments. Every schoolboy knows that we now, in the United States, distinguish the "power" to tax from the "power" to regulate commerce. Anyone knowing the simplest rudiments of American constitutional law as America produced it knows that "powers" are singled out and deposited in one government or another. Everybody knows that this essential characteristic of our system has caused legal discussion in Congress and courts of law and that perplexing problems have arisen in actual practice. Without distribution of powers, American federalism would be non-existent. The important thing now is to see Dickinson portraying an empire in which the central government could exercise wide authority for the whole, while the colonies maintained their freedom; for the Parliament could not tax.

The English pamphleteers could have a merry time with the "Farmer", but their merriment and their serious attempts at refutation were a tribute to the strength of his appeal. If forsooth, said the pamphleteers, you can lay impositions for trade regulations and not for taxation, then, to be sure, a light tax would be unconstitutional while an imposition, so heavy as to be prohibitory and intended to prohibit, would be constitutional; could anyone in his senses defend such a legal system? As a matter of cold fact, such refinements are now simple and crude in comparison with those constantly made by our own courts in laying down constitutional principles. Any person, even the brilliant scoffers at the "Farmer's" scheme of empire, insisting that Parliament must have all power or none,[12] ought to have known that even in the application of private law, distinctions are often to be drawn which are so tenuous as to be almost undiscernible to the untrained mind. So if you are to have a legal structure of empire, you may expect to find finely-drawn distinctions.

The whole controversy, we may remind ourselves, was over the problem of whether Parliament was absolute or not. Was it absolute in its authority over every British subject? Was it possessed of full and unqualified competence in the empire — in other words, was the empire a centralized empire or was it on the contrary a legally diversified empire? Dickinson proved, or thought he did, that Parliament had regulated trade and had not taxed. There can be no question of the fact that in a very large degree the empire had been a commercial empire, not a lawmaking empire for all its subjects. And if we did not know the perversity of human nature and the ease with which men believe what they want to believe, we should be puzzled by the men who so emphatically denied the possibility of there being legal recognition of what had in reality been a working practice for a hundred years. If Parliament had in the past regulated trade and had not taxed, why was it impossible to conceive the make-up of an empire in which Parliament could legally regulate trade and could not legally tax? [13] However this may be, the American colonists of 1768, eagerly devouring the "Farmer's Letters" and toasting the author in public houses up and down the land,[14] were, in appearance at least, accepting the theory of an empire guided by a Parliament with authority to guard the whole and to regulate intercolonial and foreign trade, and with the obligation not to tax the colonies or reduce their legislatures to impotence.

What was Massachusetts to say to the Townshend Acts and the new customs commissioners? Where Sam Adams lived, there something would be said. In the early days of 1768 the Massachusetts representatives were busily at work. Various letters were drawn up and sent to England, all of them announcing the same principles, all of them couched in polite, but unmistakable language.[15] The appeal was chiefly to the British constitution in which were placed and guarded the fundamental rights of men. Over and over again appeared in one form or another the declarations that "The supreme legislative, in every free state, derives its power from the constitution; by the fundamental rules of which, it is bounded and circumscribed." [16] "It is an essential, natural right, that a man shall quietly enjoy, and have the sole disposal of his own property. This right is adopted into the constitution." "Property is admitted to have an existence, even in the savage state of nature." "In all free states, the constitution is fixed; it is from thence, that the legislative derives its authority; therefore it cannot change the constitution without destroying its own foundation." "The security of right and property, is the great end of government." Such sentiments were often repeated, but there was no denial of parliamentary control; even in the petition to the king there was an acknowledgment of "the supreme Legislative power of the whole Empire" and its "superintending authority ... in all Cases, that can consist with the fundamental Rights of Nature & the Constitution...."

Among these documents the most important was a circular letter sent by the Massachusetts house to the speakers of other houses of representatives. It gave utterance to the principles just quoted, declaring that the constitution is fixed, that the legislative power cannot overleap the bounds of it, and that it "ascertains & limits both Sovereignty & allegiance...." This letter was of course the common property of the colonists. It was made especially conspicuous by the action of Hillsborough, the Colonial Secretary, who ordered the house to rescind; this the house promptly refused to do.

We have, then, in the "Farmer's Letters" and in these documents from the Massachusetts house definite evidence of American opinion in 1768. No doubt there were other opinions even more advanced, for some men were more rebellious in spirit; and doubtless, too, some persons were ready to assert their total freedom from parliamentary control; but almost to the days of the outbreak of war, these more radical positions cannot be considered the opinions of America. How did the principles of the "Farmer" differ from those of Sam Adams and his followers, and what did the two writers have in common? Neither one denied the authority of Parliament as the superintending power of the empire; neither denied the authority of Parliament to regulate trade. Dickinson, however, spoke more plainly than Adams of the empire; that empire was built on the foundations of English liberty; in this empire there was a distinction between powers. Adams, in denying the right to tax, relied upon the argument of natural rights, insisted that the constitution was fixed, and emphasized the right to property as fundamental. The British statesmen might announce the supreme and unlimited authority of Parliament; Adams was prepared to deny the existence of absolute authority in any free state, above all in the constitution of Britain. Briefly, one brought out clearly the possibility of distinguishing "powers" of government and presented to view a diversified empire; the other emphasized the limits on all free governments and stressed the fundamental, unchangeable bounds of the constitution; and this is only to say that the two, mutually supporting, brought forward the two chief foundations of the American constitutional system — a diversified state or empire and a fixed constitution superior to legislative authority. The constitution, as Adams and others viewed it, was fixed and, at least in certain respects, was beyond the touch of legislative authority because within it were embodied fundamental natural rights which were eternal and unalterable. The principles of Adams and of Dickinson coincided in this: both believed in the right and the necessity of living under governments constitutionally limited.

Though Dickinson dwelt chiefly on the difference between taxation and other powers, plainly the superintending power of the Parliament included more than the regulation of commerce. A full examination of the discussion would reveal the colonial acceptance, in theory at least, of the distribution of powers in the empire as the empire had been. I say "in theory at least", for lasting satisfaction with acts of trade, or humble acquiescence in the activities of customs commissioners and of a swarm of spoilsmen let loose from the hives of Westminster, would have been impossible. The Revolution might have come before many years because of diverging interests, ineptitude of British administration, and the willfulness of the colonists; in fact, however, the Americans set forth the old empire as the one with which they were content, and that empire was in practice an empire in which the colonial governments had their share of authority.

So much has been said of the justice or injustice of taxation that we do not always see that the very existence of the colonial governments was at stake. True, the eager legalists in Britain had no intention of banishing the colonial assemblies altogether; but the colonists were afraid, and justly so, for the empire in the British view was a unitary empire and a centralized empire; all power was gathered at the center and the subordinate governments existed only by sufferance. While the colonials resisted the injustice and illegality of taxation, they must have been stupid indeed not to see that the choice lay between a diversified or decentralized empire on the one hand and a unitary, centralized empire on the other.

The discussion was legal discussion; it concerned the structure of the empire and the authority of government. It will not do to dwell upon the number of shillings collected as revenue, or even upon the vexing intrusions of the royal officials, and lose sight of the peril to the assemblies and to the whole political structure of the colonies. If the colonists are not to be charged with political incapacity and a remarkable obtuseness, it is folly to declare that the Revolution was only an economic movement in its causes, operations, and results. No people, possessed of self-respect and a glimmering of political sagacity, could listen unmoved while pamphleteers proclaimed a doctrine, which, if carried out in detail and wrought out to its theoretical end, would deprive them of their own institutions of government. Without the citation of countless references, we can be confident that the American colonists, more strongly than any other people on earth, were imbued with an instinct for practical politics; they, too, were legal-minded, and they, too, even more than the obedient servants of King George, were sensitive and proud, even when not rebellious.[17]

Almost, if not quite, from the beginning of the dispute — in the Stamp Act dispute as well as later — discussion was within the realm of law. Certainly not entirely for any immediate, practical, financial gain, but from a desire to establish a system and a settled legal authority, royal officers in the colonies had spoken of remodeling colonial governments. Francis Bernard, writing in the summer of 1764, said, "It seems to me that the affairs of America are becoming very critical; that common expedients would soon begin to fail; and that a general reformation of the American Governments would become not only a desirable but a necessary measure." [18] Bernard was against mere opportunism. "The patchwork government of America will last no longer: the necessity of a parliamentary establishment of the governments of America upon fixed constitutional principles, is brought on with a precipitation which could not have been foreseen but a year ago...." This he wrote in 1765.[19] Soon after this, Hutchinson wished "to see known established principles, one general rule of subjection...." [20] "... while the rules of law are vague and uncertain, especially in such fundamental points, our condition is deplorable...."[21]

The brusque British pamphleteers laid down their final conclusion as the starting-point for their argument, and what they desired was an acknowledgment by America of parliamentary power; they desired the acceptance of a constitutional theory. We need not deny the British landowner's anxiety for a reduced tax upon his acres; but he also desired to see an acknowledgment of the authority of the Parliament in which he or men like him sat and legislated. The Americans in their turn, though many would be content with negligence, were now insisting on the necessity of maintaining their privileges and the legal basis on which they rested. They were not quite satisfied, now that the issue was raised, to accept the principles of absolute power with the assurance that a kindly king and a well-intentioned Parliament would not abuse the power: "In all free states, the constitution is fixed...." Dickinson eloquently phrased the central idea: "For who are a free people? Not those, over whom government is reasonably and equitably exercised, but those, who live under a government so constitutionally checked and controuled, that proper provision is made against its being otherwise exercised." [22] Freedom, then, there was none, if there was no constitutional restraint upon authority. This, again, is American doctrine.

Both sides were technical and legalistic. The parliamentarians were the victims of certain dogmas curiously similar to the doctrine of indivisible sovereignty, and they cherished the august power of Parliament. The Americans were legal-minded and argumentative; if Parliament asserted its supremacy, announcing that it was, so to speak, above the law, the colonists were eager to assert the supremacy of the constitution, their indefeasible, legal rights in their own institutions. They asserted that the law was above Parliament.

Soon after 1768, in light of the objection raised in America, there appears to have been no real hope in Britain of raising revenue in America. It is true that the acts regulating trade were more vigorously enforced and that more revenue was collected than in earlier days. To some considerable extent from 1766, but especially after 1768, the question was not so much whether the colonists would pay taxes as whether they would acknowledge their legal obligation to pay. To avoid misunderstanding, this should be said: the measures taken to enforce the laws of Parliament were annoying and irksome, provocative of rebellion; the colonists of Massachusetts resented troops sent to overawe them, and disliked ships of war, informers, and all the panoply of power. They resented the show of British authority and they, or many of them, had no taste for taxes or for the strict enforcement of navigation laws. That they would have flown to arms against a naked declaration of British supremacy, unaccompanied by actual acts and threats against their government, we have no reason to suppose.


[1] Italics of the original omitted.

[2] In about seven years the commissioners collected over £200,000 sterling; a large portion was paid out in salaries. See Edward Channing, A History of the United States, III, p. 91. "Actually there was no return whatever because the cost of the soldiers and sailors and vessels required to enforce these revenue acts far exceeded the gross returns." Ibid., p. 91, note 1.

[3] I have not taken up in these pages the justice or injustice of taxing the colonies; but it may be said, as the colonists distinctly said, that they did pay taxes, though not directly into the British treasury; they supported their own governments; the colonists paid the governors' salaries, though only in two colonies did they choose them. They had taken part in the wars of the empire and some of the colonies were then burdened with heavy taxes. Their trade was in some respects made secondary to the interests of West Indian planters and to the pockets of British merchants.

[4] Edmund Burke, "Speech on American Taxation" (1774), Works (revised ed.), II, p. 33.

[5] The full title was "Letters From a Farmer in Pennsylvania, to the Inhabitants of the British Colonies."

[6] Tyler, The Literary History of the American Revolution (one volume ed.), pp. 236-237, says the "Letters" were reproduced in all but four of the twenty-five newspapers then published in America. Editions appeared in England and Ireland, and there was also a French edition. Dickinson was applauded by Voltaire, and on the continent of Europe his essays "became ... the fashion." See also, John Dickinson, Writings (P. L. Ford, ed.; Memoirs of the Hist. Society of Pa., XIV), I, p. 279 ff.

[7] For a statement of the popularity of Dickinson's "Letters", see C. J. Stillé, The Life and Times of John Dickinson (Memoirs of the Hist. Society of Pa., XIII), pp. 90-92. Thomas Hutchinson stated the position the colonies had come to occupy (1767): "The authority of Parliament to pass any acts whatever affecting the interior polity of the Colonies is, he says, challenged, as destroying the effect of the charters, to which great sacredness is attached. People have teen induced to settle in the plantations on the strength of the charters, relying on the continuance of the privileges. King, Lords, and Commons form the legislature of Great Britain: the Governor, who is the King's representative, the Council, and the Assembly form the legislature of the Colony. But as Colonies cannot make laws to extend further than their respective limits, Parliament must step in in all cases to which the legislative power of the Colonies does not extend. Parliament ought to go no farther than this: all beyond is infringing upon the domain of the colonial legislatures. From Virginia to Massachusetts this has now come to be the accepted doctrine." J. K. Hosmer, The Life of Thomas Hutchinson, p. 122. This statement Hosmer bases upon Hutchinson's own words in his History of Massachusetts Bay, III, p. 172.

[8] Tyler, The Literary History of the American Revolution (one volume ed.), p. 235.

[9] As we have seen, Hopkins and Dulany had a view of empire, and the view is not to be denied to others.

[10] "The parliament unquestionably possesses a legal authority to regulate the trade of Great-Britain, and all her colonies. Such an authority is essential to the relation between a mother country and her colonies; and necessary for the common good of all. He, who considers these provinces as states distinct from the British Empire, has very slender notions of justice, or of their interests. We are but parts of a whole; and therefore there must exist a power somewhere to preside, and preserve the connection in due order. This power is lodged in the parliament; and we are as much dependent on Great-Britain, as a perfectly free people can be on another." John Dickinson, Writings (P. L. Ford, ed.; Memoirs of the Hist. Society of Pa., XIV), I, p. 312. Italics of the original omitted.

[11] Ibid., I, p. 332. Italics of the original omitted.

[12] "There is no alternative: either the Colonies are a part of the community of Great Britain, or they are in a state of nature with respect to her, and in no case can be subject to the jurisdiction of that legislative power which represents her community, which is the British parliament." See William Knox, The Controversy Between Great Britain and Her Colonies Reviewed (London, 1769), pp. 50-51. We find once again, too, the theories of centralization and the absolute authority of Parliament. Nothing could more fully discredit legalism, so shortsighted that it could not see any possibility of change. Knox was denying that Parliament or common reason could recognize the illegality of doing what it had not done and what the passing years showed it could not do.

[13] To-day those persons finding Dickinson's argument full of inconsistencies and sweeping it aside as one of those heated blunderings dear to the colonial heart seem to forget the rudiments of the American constitutional system. Dickinson was speaking in the terms of American constitutionalism as it came to be. His argument, while distinguishing between taxation and regulation of commerce, rested partly on the purpose of the legislation. He saw the difficulty of making the purpose absolutely effective. He relied on the good sense of the British people, if once the distinction was recognized. He might, theoretically, have gone further, and as James Otis had called upon the court to check legislation in violation of natural equity, so Dickinson might have declared that courts would recognize the fact of the purpose or effect and would declare void an act, which, though on its face a regulation, was intended to collect revenue.

For an attempt of Congress, under cover of a granted power, to accomplish ends not within the scope of its authority, see Hammer v. Dagenhart, 247 U. S. 251 (1918). In this case the Court declared an act which purported to regulate interstate commerce was an encroachment upon the powers of the states: "The purposes intended must be attained consistently with constitutional limitations...." 276. The necessary effect of the act, the Court declared, was "by means of a prohibition against the movement in interstate commerce of ordinary commercial commodities, to regulate the hours of labor of children in factories and mines within the States...." Ibid. See also Bailey v. Drexel Furniture Company, 259 U. S. 20 (1922), for a somewhat similar decision. In McCulloch v. Maryland, 4 Wheaton 316, 423 (1819), Chief Justice Marshall said: "Should Congress, in the execution of its powers, adopt measures which are prohibited by the constitution; or should Congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not entrusted to the government, it would become the painful duty of this tribunal, should a case requiring such a decision come before it, to say that such an act was not the law of the land." Italics mine.

[14] A town-meeting in Boston in March, 1768 passed a vote of thanks to "the ingenious author...." See Stillé, op. cit., p. 91.

[15] Most of them were written to the friends of America in Britain, and are attributed to the pen of Sam Adams. See Samuel Adams, Writings (H. A. Cushing, ed.), I, pp. 134-199. Concerning authorship, see p. 152, note 2. One letter was a petition to the King; one letter was addressed to the Lords Commissioners of the Treasury.

[16] Ibid., I, p. 134. See also, Ibid., I, p. 135 ff.

[17] Some of the words in the sentences above sound like mere patriotic exclamations of an older day than this. There is no reason for denying the influence of economic causes in the Revolution; but men have and had their pride as well as thrift, and it is folly not to see the immense significance of a struggle for constitutional liberty.

[18] Francis Bernard, Select Letters on the Trade and Government of America; and the Principles of Law and Polity, Applied to the American Colonies (London, 1774), p. 24. Capitalization and italics of the original omitted.

[19] Letter of November 23, 1765, in Ibid., pp. 33-34. Italics of the original omitted.

[20] Letter of April 21, 1766, quoted in Quincy (Mass.) Reports (1761-1772), pp. 443-444.

[21] Letter of December 31, 1766, quoted in Hosmer, Hutchinson, p. 121.

[22] John Dickinson, Writings (P. L. Ford, ed.; Memoirs of the Hist. Society of Pa., XIV), I, p. 356. Capitalization and italics of the original omitted.


CHAPTER VII

AN OBDURATE PARLIAMENT AND OBSTINATE COLONIES, 1769-1773. THE GREAT CONTROVERSY BETWEEN GOVERNOR AND LEGISLATURE IN MASSACHUSETTS

We cannot watch the gathering clouds of trouble in the empire without seeing the essence of the difficulty. The problem of managing an empire in which were colonists possessed of political skill and the spirit of freedom was too big for the brain and temper of British politicians. It is easy enough to heap blame on wrong-headed ministers and an obstinate king, but the reality to be grasped is that the social and political order of Britain still tolerated a government of that particular mental density, unsuited to the job which an empire of freedom presented. "Magnanimity in politics," said Burke, "is not seldom the truest wisdom; and a great empire and little minds go ill together." The classes ruling in society and the state had a firm grasp on the government, and to those classes the essential principles of America were obnoxious. But withal, two things need to be remembered: as we have already pointed out, the problem was inherently difficult; and Britain, if she had nothing else to be proud of, could well indulge in self-glorification, had she so minded, at the sight of colonists, the fruit of her own loins, who were so capable in politics and in reality so free — and that freedom was the product of her own liberality. Decades had to pass before Britain was in condition to yield in her own insular structure to the ever-growing forces of popular government. The tone of public life, the very principles, and practices of the kingdom, though even then there were symptoms of disquietude, lay beneath parliamentary and ministerial arrogance. We must be content here with a few facts, briefly related, which will help in bringing to light the nature of the American position.

One source of trouble was the British army. Justify as you may the need or the advisability of its presence in America, the fact remains that a regiment or two of soldiers in an American town were not considered agreeable companions. The Quartering Act, which was passed about the time of the Stamp Act, aroused special opposition in New York where the legislature was calmly ordered to provide housing and to make provision for the support of the troops. The situation, when General Gage settled down in the province with his soldiery, was next to intolerable. The legislature refused to comply fully with the demands made upon it (1766), and saw fit to debate the question; but that would never do, and the next year, along with Townshend's revenue acts, came an act of Parliament suspending the functions of the legislature until it carried out the terms of the Quartering Act. Even before the news of the measure reached the colony, the legislature yielded, "saving its face by not itemizing the 'salt, vinegar, beer or cyder' which were in dispute." [1] But cider and beer were not the whole of the matter; the measure of repression had done incalculable harm. It was the natural result of an attitude toward a social problem; the way to secure obedience is not by conciliation, not by consideration and affection, but by punishment and above all by steady adherence to a policy, lest yielding diminish dignity. And this fear and belief that America was taking advantage of indulgence took possession of many Britons who were not natively imbued with the qualities of recalcitrant Toryism. But the Americans, in their turn, were led to inquire whether their legislatures were, within their customary fields, independent bodies or only agencies of a government across the sea which could order them to make appropriations as it saw fit.

Then Hillsborough, indignant at the Massachusetts Circular Letter, sent out to the other twelve colonies a letter of his own.[2] He would have none of these efforts to create "unwarrantable combinations" and "unjustifiable opposition to the constitutional authority of Parliament"; and the Massachusetts legislature was ordered to rescind its "rash and hasty proceeding." [3] When the House of Representatives, by a vote of 92 to 17, refused to rescind, the legislature was dissolved; and the next General Court when chosen contained not 17 but 10 supporters of the prerogative.[4] Other legislatures hastened in loyal addresses to announce their adherence to the principles of Massachusetts. Hillsborough's conduct only strengthened American opposition, brought the doctrines of the Circular Letter into clearer light, and helped to unify opinion. Thus, thanks to these unseemly quarrels with the colonial legislatures, the detached question of the right of Parliament to levy taxes had risen, or degenerated, into the question whether legislatures could even pass resolutions expressing in calm and uninflammatory fashion their opinion of the constitution of the empire.[5] "If the votes of the House", said the Massachusetts assembly, "are to be controlled by the direction of a minister, we have left us but a vain semblance of liberty." [6]

Still, despite all this unnecessary and dangerous disputation, it is conceivable that Britain might have succeeded; for the revenue acts were being enforced, though not without difficulty and occasional lawlessness. But Parliament was impatient; it is the nature of fatuous high-handedness to be impatient. In an address to the throne in 1768 appeared an ominous proposal. Passed by the Lords, the address went to the Commons (1769) where there was a debate which was declared to be "very fine indeed", and the address was finally passed. It suggested the advisability of procuring full information "touching all treasons, or misprision of treason," and the appointment of a special commission for "enquiring of, hearing, and determining, the said offences within this realm, pursuant to ... the statute of the 35th year of the reign of king Henry the eighth...." A most astounding proposal — to try the "traitors" of Massachusetts in Britain! The threat aroused opposition in America. In a series of resolutions, the House of Burgesses in Virginia asserted once again that the sole right to impose taxes on Virginians was vested in that house, and that trials for treason ought to be held within the colony; sending suspected persons across the sea for trial would rob them of the "inestimable privilege of being tried by a jury from the vicinage...." [7]

The next step taken by Parliament was the repeal of duties levied by the Townshend Acts, except a duty on tea (1770). Lord North, who had just come to the head of the ministry, where he remained for years the obedient servant of the king, advocated repeal. The acts were "preposterous"; [8] he would gladly take steps to soothe the angry Americans, but lenience did not seem to encourage a spirit of obedience; it led to further insult of "our authority". The tax on tea must be retained. "The properest time to exert our right of taxation, is, when the right is refused." But there were British soldiers in America. Boston did not like them; their presence awakened unpleasant reflections. On the very day that North advocated the repeal of the Townshend duties, occurred the Boston "massacre"; and the next day came the stern demand of the citizens that the soldiers be removed to the castle in the harbor. The spirit of rebellion was waxing strong in the Puritan town.

In 1769, as the legislature refused to carry on business at Boston in the presence of troops, it was adjourned to meet at Cambridge. Governor Bernard soon departed for England, and Lieutenant-Governor Hutchinson, who shortly thereafter was given the full title, was left to meet the waves of discontent. When he summoned the legislature to Cambridge, the storm broke — not the storm of riot, but the more trying deluge of argument.[9] Samuel Adams was on hand to inquire by what authority the Governor acted. Both the council and the house objected, though on somewhat differing grounds, and contested at length the Governor's position; for he simply declared that as an officer of the Crown he could do no other; he must obey instructions. Did instructions, then, coming from a ministry three thousand miles away give full justification for the Governor's doing everything that a minister might desire? If so, what was the value of a charter and wherein lay the authority of the legislature?

The discussion [10] lasted for months and the months lengthened into years, ending only in 1772, when the legislature was allowed to meet again at Boston. And so, because of a needless order from an incompetent ministry, Massachusetts was taught to consider over and over again the nature of her institutions and her property in her principles of self-government. Hutchinson declared that the people who had previously disowned the power of Parliament now allowed little or no share of government to the king. But this indictment appears to have been false or at least extravagant in both counts; certainly, whatever may have been openly said by the irresponsible or covertly by the more radical leaders, it can hardly be declared that the colonists had come to these ultimate positions. They had not definitely reached the point of announcing in any formal and tangible way that Parliament had no power. Hutchinson himself was to bring them nearly, if not quite, to that declaration. And the time had not yet come when they were prepared to say that the king had degenerated into a tyrant. They were, however, easily to be persuaded; but, while it may to us appear in theory to be a short step from denying the binding effect of instructions to the denial of royal power, the distance in reality was considerable. If the colonists were not prepared to renounce allegiance, petty interference and nagging were likely to arouse the spirit of real rebellion almost as quickly as would acts of cruelty and tyranny.[11]

The year 1772 is for some reasons deserving of special notice; it cannot be passed over without comment. This is true especially because of the activity of Sam Adams, who, whether he was purposely working for complete independence or not, was certainly intent upon keeping alive the spirit of resistance to measures endangering his conception of American liberty.[12] Many times he used the arguments of which he was fond; he referred to Montesquieu, and Vattel, and Locke. Of chief interest was his work for the establishment of committees of correspondence in the towns of Massachusetts, a means of arousing a common action and sentiment and a common fear of peril. The document adopted by the town of Boston (November 20, 1772), seemingly the work of Adams, giving "the Rights of the Colonists and of this Province in particular, as Men, as Christians and as Subjects", is an able one, sprinkled with plentiful quotations from the philosophers and asserting the right to freedom to be inalienable. All this is of consequence to us because it brings out so clearly, once more, those fundamental notions which were widely held as the basis of free government — individual right to freedom and property and the necessity of limited rather than unlimited government.

In 1773, thanks to threats that persons accused of offenses committed in America should be sent beyond the sea for trial, another important step was taken, this time by Virginia. That colony recommended the formation of intercolonial committees of correspondence, and thus on a continental scale prepared the system which made opposition effective. The union of the colonies which later became a union of states rested thus at first on community of ideas fostered, though not begotten, by committees — extra-legal, if not illegal, bodies — which could present forcibly the spirit of discontent. Important in our history as opposition is, of importance also is the development of the mechanism and the practices which secured a degree of political unity or coöperation.[13]

In this same year (1773) Governor Hutchinson entered upon a perilous undertaking. Clothed with wisdom of the law and of history, he dared to argue with the Massachusetts legislature, to measure swords in reality with Sam Adams, who in some measure was coached by John Adams, an able and learned lawyer. The Governor dared to bring forcibly to the attention of an eager populace the essential nature of the controversy between Great Britain and the colonies. He was vigorous, talented, and determined, but we still wonder at his folly. A number of impressive state papers[14] lie before us to-day, the weapons and the products of the dispute. The Governor's speeches are perhaps the best single presentation of Britain's case, the ablest arguments for parliamentary authority. Hutchinson believed he could conquer by argument. He believed he could convince by reasoning; but where did his reasoning lead? To the conclusion that the colonists had no rights, no institutions, no security, if Parliament wished to take them away; all were held by the insecure tenure of parliamentary grace. Once more the theory of parliamentary omnipotence must be acknowledged. No self-respecting people, accustomed to manage their own affairs, could accept such conclusions.

The council's second answer to the Governor is a memorable document; it is cogent and compelling. What possibilities had Hutchinson's cleverness conjured up! The councilors insisted on freedom from parliamentary taxation, but they were not to be drawn by the Governor's forensics to a denial of all authority. "What is usually denominated the supreme authority of a nation, must nevertheless be limited in its acts to the objects that are properly or constitutionally cognizable by it." Thus, they seem to say, in any constitutionally-organized nation there are legal duties and legal limitations. There is, in the nature and practices of government, no impossibility of recognizing those duties and those obligations. This is not quite the old argument from natural rights and the existence of a constitution that must be fixed; the council saw the possibility of distributed authority in an organized empire. The council plainly grasped the principle which in its reasonings had so far been only reached after, not seized. It referred to Hutchinson's statement that, "although ... there must be one supreme authority ... , this constitution will admit of subordinate powers, with legislative and executive authority, greater or less, according to local and other circumstances." "This is very true," the council replied, "and implies that the legislative and executive authority granted to the subordinate powers, should extend and operate, as far as the grant allows; and that, if it does not exceed the limits prescribed to it, and no forfeiture be incurred, the supreme power has no rightful authority to take away or diminish it, or to substitute its own acts, in cases wherein the acts of the subordinate power can, according to its constitution, operate. To suppose the contrary, is to suppose, that it has no property in the privileges granted to it; for, if it holds them at the will of the supreme power, ... it can have no property in them.... But, as in fact, the two powers are not incompatible, and do subsist together, each restraining its acts to their constitutional objects, can we not from hence, see how the supreme power may supervise, regulate, and make general laws for the kingdom, without interfering with the privileges of the subordinate powers within it? And also, see how it may extend its care and protection to its colonies, without injuring their constitutional rights? What has been here said, concerning supreme authority, has no reference to the manner in which it has been, in fact, exercised; but is wholly confined to its general nature."

Here we see a fairly firm grasp of the essentials of federalism. Plainly the central principle — the distribution of powers among governments — was taking definite shape in some colonial minds. Though the Parliament was spoken of as "supreme", we are not justified in supposing that the council meant by that word complete and all-embracing authority. Such authority was the very object attacked. The demand was for the recognition of "property" possessed by the colony — legal security within its legal sphere of government. And if to the reader this argument seems neither conclusive nor altogether clear, the fact remains that distribution of authority in the empire and the recognition of the rights of the colonies as constituent portions of the empire were asserted. If Hutchinson's reasoning and his conclusions were legally sound, he nevertheless thrust them unwisely into the faces of a politically-minded people who had practiced freedom; to dare such a thrust was a negation of cautious statesmanship. If the colonists, convinced by his reasonings, were forced to choose between unlimited submission to Parliament and complete freedom from control, which horn of the dilemma would they choose?

In the course of his argument, Hutchinson laid down a principle which he thought was beyond the reach of all denial: "I know of no line that can be drawn between the supreme authority of Parliament and the total independence of the colonies: it is impossible there should be two independent Legislatures in one and the same state; for, although there may be but one head, the King, yet the two Legislative bodies will make two governments as distinct as the kingdoms of England and Scotland before the union." Thus he handed out a principle of political science or philosophy; but men are not always willing to be governed by the principles of philosophy. Hutchinson, be it noticed, could not conceive of a government that possessed only limited authority; he could not conceive of two independent legislatures, not to say two independent governments, in one and the same state; one must be so distinctly subordinate to the other as to have no legally indefeasible property in its own authority.

When Hutchinson boldly threw down the gauntlet, the house eagerly took it up and, after discussing the general question of the powers of Parliament over the province, reached the critical point to which the Governor's speech had forced it. "Your Excellency tells us, 'you know of no line that can be drawn between the supreme authority of Parliament and the total independence of the colonies.' If there be no such line, the consequence is, either that the colonies are the vassals of the Parliament, or that they are totally independent. As it cannot be supposed to have been the intention of the parties in the compact, that we should be reduced to a state of vassalage, the conclusion is, that it was their sense, that we were thus independent. 'It is impossible,' your Excellency says, 'that there should be two independent Legislatures in one and the same state.' May we not then further conclude, that it was their sense, that the colonies were, by their charters, made distinct states from the mother country? ... there is more reason to dread the consequences of absolute uncontroled power, whether of a nation or a monarch, than those of a total independence.

... If your Excellency expects to have the line of distinction between the supreme authority of Parliament, and the total independence of the colonies drawn by us, we would say it would be an arduous undertaking, and of very great importance to all the other colonies; and therefore, could we conceive of such a line, we should be unwilling to propose it, without their consent in Congress."

The house appears to admit the possibility of a line of distinction between complete parliamentary power and the total absence of it, but the net result was a denial of any authority at all. Cleverly also the hint was given that the colonies acting together might be able to work out a scheme which would distinguish between powers and save some remnant of parliamentary jurisdiction; and what could be more ominous in the eyes of Westminster than a continental congress? The assertions made by the men of England in their discussions over the Stamp Act repeal, the declarations continually made that the denial of one power necessarily involved the denial of all, had now brought their legitimate and inevitable fruit. The direct and inescapable crisis was induced under provocation from a cocksure Governor who believed that he could do more than English pamphleteers, parliamentary orators, and loyalist newspaper writers had been able to accomplish; he thought that by sheer weight of metal he could sink the tiny shallop of provincial assumption and could overwhelm the great incendiary, its commander. Logic may have been on his side and references to precedent may not have been unavailing; but more than logic and theory were needed. And on their side, the cohorts of Sam Adams had the historical fact, even though here and there is was weakened by precedent, that the Massachusetts legislature did exist, had existed, had legislated, and had acted as a competent legislative body.

One or two other facts require brief statement. Hutchinson endeavored with some success to show that the Massachusetts legislature, in times gone by, had acquiesced in parliamentary legislation. But this, if it be in all respects true, could not, the house replied, destroy colonial rights, for the "fundamentals of the constitution" were stipulated in the charter, and they could not be altered by the legislature. Reference was made to the old favorite doctrine and to the favorite sentiment which was gathered from Vattel: for the authority of the legislature — the house maintained — " 'does not extend so far as the fundamentals of the constitution. They ought to consider the fundamental laws as sacred, if the nation has not in very express terms, given them the power to change them. For the constitution of the state ought to be fixed; and since that was first established by the nation, which afterwards trusted certain persons with the Legislative power, the fundamental laws are excepted from their commission.' " Thus once again appeared the doctrine of fundamental law and an unchanging constitution.[15]


[1] C. H. Van Tyne, The Causes of the War of Independence, p. 278.

[2] George Bancroft, History of the United States (last revision), III, p. 284. For Hillsborough's letter as addressed to Rhode Island, see John Almon, Prior Documents, p. 220.

[3] Hillsborough to Governor Bernard, April 22, 1768, in Ibid., pp. 203-204.

[4] Edward Channing, A History of the United States, III, p. 99.

[5] Consider, for example, the sentiments of South Carolina. Was an assembly a mere gathering of schoolboys, if such sentiments were to be held as impertinent or unlawful? See D. D. Wallace, The Life of Henry Laurens, p. 155.

[6] Massachusetts State Papers, p. 150.

[7] See the Constitution of the United States, amendment VI.

[8] "Preposterous", it seems, chiefly because they were injurious to British commerce.

[9] The methods and the words of the Massachusetts leaders may appear to the reader, as he reads over the documents, exceedingly trying, and he certainly cannot wonder at the irritation or dismay of the Crown's representatives. But irritation and dismay on the one side and continuing, skillful, persistent opposition to authority on the other are for us as students of constitutional history not the center of the matter. Take as just one example the answer of the house to a statement by Bernard when removing the General Court to Cambridge. He lamented the "waste of time and treasure to no purpose." The house replied, "No time can better be employed, than in the preservation of the rights derived from the British constitution, and insisting upon points, which, though your Excellency may consider them as non essential, we esteem its best bulwarks. No treasure can be better expended, than in securing that true old English liberty, which gives a relish to every other enjoyment." We should notice they were defending English liberty, defending the principles of the English constitution. Massachusetts State Papers, pp. 172-173.

[10] The same kind of discussion had arisen in 1728 when Governor Burnet called the legislature to meet at Salem. He gave as one reason the fact that the inhabitants of Boston had in town-meeting declared against "Setling a Salary". Such "forwardness" set an example to the towns in the country and was "better adapted to the Republick of Holland than to a British Constitution." The house contested the right of the Governor to remove the legislature, but, though protesting, did its work. Journals of the House of Representatives of Massachusetts 1727-1729, p. 362 ff. Italics of the original omitted. The discussions furnish an interesting illustration of the irritation caused by the superior tone of the Governor, and an illustration also of the determination of the colonists to maintain their rights and to guard their purses. The principles of the Revolution did not suddenly flock upon the scene in bright and unknown colors in 1765.

[11] Evidence of the fact that the colonial leaders were not at this time (1770-1771) bent upon total disruption of the empire is seen in the fact that in 1773 even the Massachusetts house hurled its arguments not against the king but against the Parliament, and the papers that came from the pens of leaders in 1774 were intended to establish the legal position of the colonies as dominions of the king. Jefferson, it is true, in his "Summary View" (1774), spoke to King George in no humble tones and found fault with His Majesty's conduct, but the time had not yet come to declare that the monarch had at no time legal authority over the colonies. Indeed, the time did not come at all, for the final charge (1776) was to the effect that the king had abused his authority and acted illegally by giving his consent to acts of "pretended legislation", and he had thus degenerated into a tyrant.

[12] It is often stated that Adams was set upon independence much earlier than 1772, but his own published writings do not give proof of that assertion. Perhaps he was so determined, but if so, he kept it well out of sight, if we can properly judge from the written word. If he was so determined, his apparent reticence is evidence of the essential loyalty of those to whom he appealed. To show that his reasoning led or would lead to independence, because there was no halting place, is not enough. To reason so would be to attribute to him the very line of reasoning he emphatically denounced. "This is Chronus's 'method of reasoning', to prove that because it is necessary that the parliament should enact laws for the regulation of trade, about which there has as yet been no dispute that I know of, ... Therefore, the parliament hath a right to make laws imposing duties or taxes...." Samuel Adams, Writings (H. A. Cushing, ed.), II, p. 314. Italics of the original omitted.

[13] See Van Tyne, op. cit., p. 427 ff.; J. M. Leake, The Virginia Committee System and the American Revolution.

[14] They are to be found in J. K. Hosmer, The Life of Thomas Hutchinson, p. 249 ff. and in Massachusetts State Papers, p. 336 ff.

[15] The reader will remember that in the memorial appended to Otis's Rights of the British Colonies Asserted and Proved, this passage from Vattel was referred to, and that the house, in the Circular Letter and in other letters of 1768, had made repeated use of this sentiment. My reason for calling attention to it here is that I am desirous of making very plain that this doctrine of fundamental law superior to all governmental authority had taken hold of the Revolutionary mind. It was, however, by no means a new or unfamiliar belief.

In the preceding pages attention has been given to the developing conception of federalism; but the treatment is incomplete. The author presented the subject and considerable evidence in a paper already referred to — "The Background of American Federalism", Am. Pol. Sci. Rev., XII, pp. 215-240. The evidence there given (though again there was no attempt to present everything) appears to be enough to bring out the fact that the principle of federalism was at stake, at least so far as it embodied the idea of the distribution of authority; and it appears plain (1) that the forms and practices of the old empire were a distinct foreshadowing of the American constitutional system of federalism; (2) that the colonists almost to the last were content with what they had been accustomed to under the old imperial system which had never been formulated or diagrammed. "Every advantage that could arise from commerce they have offered us without reserve; and their language to us has been — 'Restrict us, as much as you please, in acquiring property by regulating our trade for your advantage; but claim not the disposal of that property after it has been acquired. — Be satisfied with the authority you exercised over us before the present reign.' " Richard Price, Additional Observations on the Nature and Value of Civil Liberty, and the War With America (London, 1777), p. 76. Notice also the position of the Pennsylvania convention of 1774. See American Archives (Peter Force, ed), fourth series, I, cols. 561-562. These are illustrations of what I believe to be the main fact.


CHAPTER VIII

THE INTOLERABLE ACTS. THE ARGUMENTS IN DENIAL OF PARLIAMENTARY AUTHORITY

At the end of the great controversy between Hutchinson and the political leaders to whom he had sought to read a lesson in constitutional law, certain colonial positions were fairly plain. The colonial argument rested on two main pillars: the first was the doctrine of natural rights; the English constitution was supposed to embody natural rights and to make them secure; and closely associated with these principles was the belief that the only free government is restricted government — one that is constitutionally and legally limited. The second was the assertion that the colonies were possessed of an indefeasible portion of governmental power, that the empire was not a centralized or unitary empire, but was decentralized and diversified. Probably the Revolution had already advanced too far not to have very positive results, but on the face of the formal arguments the colonists were content with what had been their privileges and their rights ten years before, in other words, content with the old empire;[1] for it will be noticed, though the Massachusetts house was driven nearly, perhaps we should say fully, to the point of announcing total freedom from parliamentary control, it referred at length to the history of the colony and sought to prove, from history its right to freedom from parliamentary interference; it did not assert its independence of the king, but complained of innovations, made by Parliament and its agents in America. The council insisted on the reality of the system of distributed powers, the system which had grown up in the empire.

Here, therefore, we can see foundation for the statements made on an earlier page of this volume. The reasoning of the colonists was wanting in some of the essentials of revolutionary thinking — that is to say, wanting in an attitude of rebellion toward established institutions, lacking an attitude of mind which would welcome an overturning and would sweep away the past and build new structures on its ruins. Colonial reasoning was both abstract and concrete. It was concrete and historical because it referred definitely to actual working institutions; it was in a measure abstract because it laid stress upon natural rights that were postulates of argument. But, it must always be remembered, those rights, as the colonists viewed them, were embodied in British citizenship; they had been given a degree of actuality in British constitutional doctrine; they had been announced time and again by revered British thinkers and political leaders, and, in part at least, were woven into the history of the "glorious revolution" of 1688, which was as near to the colonists as the days of Lincoln are to the men and women of the fourth decade of the twentieth century. It would be folly, of course, to deny that there was nothing in the spirit and history of English constitutionalism on which the colonists could base their demands.

One other thing we can see clearly: the Americans were arguing that they already possessed what in reality they were about to create — of course, only partly create, if create at all, because men, however wise, cannot make something from nothing. It is more nearly accurate to say that from the depths of history, from their own practical experiences, from the lessons of a practical exigency, they were being led forward to the time when they would establish their own institutions, and these institutions were to embody, more tangibly than ever before, adequate representation, limited government, and a diversified "imperial" or widely-extended political system. They were also to find an approach to democracy — some expression for the belief that government exists for man and is legitimately authorized to govern for his good.

The trouble was a fundamental one. The Revolution, even if we are thinking only within the rather narrow limits of constitutional history, gets its chiefest significance as a successful protest against superimposed government, a protest founded on ideas and principles which, active among the American colonists, were to find a wider expression in institutions and to shock and disturb the placid rule of the chosen few, until, in the course of time, the whole foundation on which authority rested was replaced and democracies took upon themselves the burden, the trials, and the anxieties of popular government in a troubled world. Even America, advanced as her principles were, had still to embody fully, in her thinking and her acts, the essentials of popular control — a consummation, if devoutly to be wished, not even yet actually and completely realized.

The action of Parliament (1773) in giving the British East India Company what amounted to a monopoly of the tea trade in America aroused opposition. Resistance was widespread. The most dramatic expression of resentment was the Boston Tea Party. That particular drama brought down upon the heads of the inhabitants of that uneasy town the vengeance of Parliament.[2] The destroyers of valuable property were to be adequately punished for their lawlessness until they paid for the fragrant weed they had cast upon the waters of the harbor. Indignant orators at Westminster then shouted "delenda est Carthago." Burke and a few others kept their heads, and that great statesman declared, "This dignity of yours is a terrible incumbrance to you." But the defenders of parliamentary authority were in no mood to listen to his chiding; for underneath all their exclamations was, as ever, the feeling of dignity; Parliament must be obeyed. So Parliament passed the Boston Port Bill shutting up Boston harbor, removing the customhouse to Salem, and leaving the townsmen to ponder on their poverty and their sins until the East India Company was repaid. The outraged parliamentarians might have known, had they stopped to think (an unusual exercise for some of them), that there might be serious trouble; for in other colonies the people had shown equal determination not to pay the duty, admit the principle of taxation, and drink the East India Company's tea. Not that all the colonists were determined and rebellious, far from it; but the disaffection was not confined to the uneasy and truculent Bostonians, who, if they had "to take their medicine", were not willing to take it in taxed tea. Harsh measures for the punishment of Boston were sure to awaken the resentment of the extremists from one end of the continent to the other.

Then came the Massachusetts Government Act. No more should the province be in the hands of common folks who knew nothing about politics. There is something really humorous in the statements of these men, who were about to lose an empire partly as the result of their ineptitude, denouncing the incapacity of the Boston men for politics.[3] But they had their way. The Governor of the province was by the bill given more authority; the king was to appoint the councilors of Massachusetts; and the noisy town-meetings — save for the election of town officers and representatives — were not to be held without permission of the Governor. The practical politicians of Westminster supposed they could prevent men from coming together and talking — call their meetings what you will — and supposed that these institutions, which were the very heart and center of New England life and thought, would be snuffed out at the word of a body of wisemen three thousand miles away.

To make matters worse, if it were possible, other bills were passed; one, euphoniously called a bill for the "impartial administration of justice", provided that under certain circumstances, at the word of the royal Governor, with the advice and consent of the council, the trial of an officer or soldier might be transferred to another colony or to England. Lord North might have stopped to remember, if he knew the fact, that the British soldiers charged with the crime of firing on innocent citizens at the Boston "massacre" had been defended by two able colonial lawyers,[4] and that only two were punished, and then not severely; But it was n6 time for thought or memory. Another act, the Quartering Act, directed the Governor, when the need arose, to provide suitable accommodations for the royal troops. The army, whose presence had done so much to keep the Bostonians irritated, was thus not to be housed and confined in the castle, but placed, if thought best, where its constant presence would curb the people, and, it might be said, provoke them to new outbreaks. These acts were so extreme, so far beyond the ordinary processes of government, that they were nearly in the field of martial law; they looked like war, a war by an army and a Governor responsible only to kingly authority, and directed against a town and a province.

These were four of the five "intolerable acts" of 1774. They were directed against Massachusetts and against disobedient and naughty Boston. The fifth, the Quebec Act, though in the American mind classed with the others, was really an act apart; it provided for greater fairness and justice in the administration of Canada, especially by the recognition of French law and by assuring a degree of liberty for Roman Catholics. In New England, religious animosity was pushed to the fore, and hatred of Catholicism gained new heights. More than once in these pages attention has been called to the incapacity of British statesmen in the task of solving the problems of empire; the irony of the situation is apparent, for, when Parliament did pass an act which breathed the spirit of liberality, the air of the colonies was filled with cries of denunciation.

There was also a provision for extending the boundaries of the Canadian province to the Ohio in the region beyond the mountains; and thus the colonies, some of them claiming under their charters the right to control large areas in the west, were deprived of any right or authority in the vast region toward which certain seaboard easterners were beginning to look with more than languid interest. The measure, heartily disapproved of by many colonials, was denounced as one more measure of tyranny. It should, however, be associated with the king's Proclamation of 1763, with various other plans, with the proposals of the Albany Congress, and with British interest in the Indian trade. The time was coming when the Americans must themselves tackle the western problem; the time was not far distant when they must face the task of working out the principles upon which their own empire should be extended and their own colonies established.

Boston was locked up; but her spirit was indomitable. The colonists were now not prepared to submit to measures which even to-day a person knowing the difficulties of imperial control and administration must consider harsh and intemperate. There was from colony to colony a flash of resentment and a wave of indignation. Not all of the colonists were aroused; there were still many who were acquiescent, believing that liberty could best be secured under Britain, and fearing, too, the radicals, dreading the rise of unpropertied classes — "the mob". The story of the struggle between conservatives and radicals is important, for in America there were differing views, many shades of opinion; but of greater moment in this connection was the awakened public sentiment, the realization, along the line of the colonies from north to south, of a common danger. The issue had passed beyond the mere disputed right of parliamentary taxation; for if Britain, in any emergency, could pass such acts as those which were directed against

Massachusetts, the whole fabric of colonial self-government was in peril. So while many still held back, and while there was unity in no single colony, the "intolerable acts" created sympathy, fellow feeling, the sense of a common interest among the colonies as a whole; and thus, as never before, there was the basis of a national feeling, or, if nationalism is too strong a word, the basis of colonial union.

Advanced thinkers in the colonies were by 1774 ready to move on to a new position. That was natural and inevitable. Events, humorously and ironically announced by Franklin to the Commons eight years before, had run their course. That Parliament was totally without authority over them, the colonists had not at first asserted; [5] but the lofty tone of Britain and the dignified assurance of men like Hutchinson had done their work. Not merely thoughtless and irresponsible, but sober-minded men, who were far from being temperamental rebels, were now at the point of denying that they owed obedience to Parliament in any respect. In preparing the second answer to Hutchinson, the men of the Massachusetts house had been coached on some technical legal points by John Adams, and when that controversy ceased for want of words, Adams, in a pamphlet war, announced definitely and at length his theory of the empire: the union with Britain was only a personal union; the British and the Americans owed allegiance to the same king; there were many kingdoms under the headship of George III; as one of these kingdoms, Massachusetts possessed her own Parliament.[6]

The "Summary View",[7] written by Thomas Jefferson in 1774, also contains the same theory of colonial right; it contains a spirited attack on Parliament and its acts, "acts of power, assumed by a body of men, foreign to our constitutions, and unacknowledged by our laws...." America would no longer listen to meddlesome interference. But significant as is this denunciation of Parliament, of even greater significance are the admonition to King George himself and the declaration of certain formal principles of democratic or popular government. Revolutionary thinking was moving fast toward a goal, natural to a free people who had in large degree looked after themselves and handled their own affairs. Jefferson was familiar with the arguments so often used: the origin of government in consent, the right of revolution when tyranny becomes intolerable, and all the rest of it; he well knew the great writers on law and politics; but his first notable utterance in the cause of America was more than a repetition of seventeenth-century law and philosophy, dear as they were to him.

His voice was the voice of the more radical Virginia.[8] And it is a signal fact that this young man, gifted with rare literary skill, a man of cultivation and learning, though as yet without much experience save that furnished by rural Virginia, was reading a lecture to His Majesty King George on elementary ideas of government and the duties of rulers to their superiors, the people. The big planters of the tidewater region of the Old Dominion, tenacious as they were of American rights when threatened by Britain, must have read Jefferson's words with misgivings, almost with dread, for in fact they foretold trouble for themselves and their privileges. Though they may not then have been fully aware of it, the spirit of a coming democracy was calling to them. His Majesty was warned "that he is no more than the chief officer of the people, appointed by the laws, and circumscribed with definite powers, to assist in working the great machine of government, erected for their use, and consequently subject to their superintendance.... kings are the servants, not the proprietors of the people. Open your breast, sire, to liberal and expanded thought. Let not the name of George the third be a blot in the page of history.... The whole art of government consists in the art of being honest." [9]

Jefferson's arraignment of parliamentary power went far — farther than had the ordinary complaints — in criticizing the actual acts familiar to the colonists. He attacked the acts of trade and disallowance of colonial laws as actually practiced; even the post office, he declared, seemed "to have had little connection with British convenience, except that of accommodating his majesty's ministers and favourites with the sale of a lucrative and easy office." "A Summary View" was therefore a harbinger of the Declaration of Independence; and in it we can see some of those principles of Jeffersonism which in still later years were to be influential in American politics.

I have no intention of entering upon the question of the validity of the arguments which were put forth with elaborate legalism by John Adams and more briefly and passionately by Jefferson. They are important as indicative of a growing opposition; they are important as items in the position taken by the colonial Congress in 1774 and in the Declaration of Independence which arraigned George III for giving his consent to acts of "pretended legislation"; they are of interest to the students of the history of the British empire; but they are of strangely little significance to anyone studying, not the causes of war, but the emergence of American constitutionalism. Even under the system advocated by John Adams and others, the Crown of course retained its functions, and those, as we have already indicated, need not be neglected by anyone seeking to find precedents for the grant of certain powers to the central government under the American Constitution when that was formed. But the creative or constructive effect of the arguments as a whole does not appear, save as Jefferson's statements may have been productive of American democracy. By dwelling on the separate independence of each colony, attention was in reality called away from interdependence, the actual need of coherence, and the need of a central administration in certain particulars. Scholars of unquestioned skill and learning are to-day at variance on the question of the legality of parliamentary control, in this respect reproducing the attitudes of Thomas Hutchinson on the one hand and of John Adams on the other; and this very difference of opinion is of more significance than any definite assurance concerning the indubitable legal correctness of either position.[10] Any discussion of this problem in these pages, sufficient to be of any use, would lead us away from the developments we are attempting to trace, and any dictum as to the correctness of one side or the other would be only another assertion. As in a good many other cases, the important fact is that men at a given time did differ.[11]


[1] When I say "content", I do not mean to say that there were not a good many men ready or, it may be, anxious to go beyond the old regime. I mean that in open public argument, in what we may call the formal presentment of their case, they relied ostensibly and probably honestly on the practices and what they believed to be the real structure of the empire and the real liberties of Englishmen. Whether they were legally right in their claims or not, this historical and legal or semilegal state of mind is important, as we have already said, despite no small amount of lawlessness and turbulence.

[2] The destruction of the tea aroused much opposition. The friends of America in Britain were taken aback. Chatham could not defend the unwarrantable conduct, and even Franklin hoped for a voluntary reparation and that soon. It is not the purpose of the text to glorify the Tea Party or to depreciate the difficulty of Britain's task. A man like Franklin still hoped to make American freedom secure by reason and diplomatic methods. And it is always a question whether riotous conduct furthers a cause.

[3] "I would not have men of a mercantile cast, every day collecting themselves together and debating about political matters...." Lord George Germain, as quoted by Van Tyne, op. cit., pp. 396-397.

[4] No less persons than John Adams and Josiah Quincy.

[5] Again it may be wise to say there is some evidence of opinion at a much earlier date to the effect that the colonies were not subject to Parliament. The statement of the text refers to what on the whole appears to have been formal colonial opinion.

[6] In a series of papers signed "Novanglus", published in The Boston Gazette, 1774. See John Adams, Works (C. F. Adams, ed.), IV, pp. 11-177. These papers were answers to Daniel Leonard ("Massachusettensis").

[7] "A Summary View of the Rights of British America. Set Forth in Some Resolutions Intended for the Inspection of the Present Delegates of the People of Virginia. Now in Convention." Printed at Williamsburg, reprinted in Philadelphia and in London. See Thomas Jefferson, Works (federal ed.), II, pp. 47-89.

[8] Of special interest is H. J. Eckenrode, The Revolution in Virginia. This study brings out the social and political differences in that important colony.

[9] How pleasing this would have been to George, if he had read it, as he probably did not. Had he accepted such admonitions, he would have been tempted to abandon his practice of buying seats for his supporters in the Commons. In truth, the idea that kings were servants, not masters, was startling enough. To be shocked by such sentiments one did not need to wear a crown.

[10] See C. H. McIlwain, The American Revolution: a Constitutional Interpretation; R. L. Schuyler, Parliament and the British Empire; Some Constitutional Controversies Concerning Imperial Legislative Jurisdiction.

[11] To put the matter flatly, the present writer simply cannot be enticed by his own curiosity to pass upon a controversial question when the answer does not lead him to a more distinct view of the emergence of institutional forms and the principles underlying them in the American constitutional system. If that be treason, one must make the best of it.


CHAPTER IX

THE CONGRESSES OF 1774-1775

The treatment of Boston aroused the colonists to a new pitch of resentment and to new unity of action. The first step for a continental congress seems to have been taken by Virginia, but the idea was Variously proposed. The call or suggestion of Virginia was acted upon in the summer of 1774.[1] Delegates were chosen by different methods, but largely through the agency of the committees of correspondence, those irregular but effective bodies fitted for the task of maintaining popular rights and, if need be, for bringing on revolution.[2] Formal procedure by the colonial legislature was, in nearly every case, not taken and would have been difficult, for there was not only official opposition in most of the colonies, but among the timid or conservative much objection to radical measures. The Congress was therefore decidedly and obviously an extra-legal body; save that it was not chosen to foster revolution, it might well be considered a revolutionary body — composed as it was of representatives who in most instances were not even chosen by the popular branch of the colonial legislatures.[3] In no formal sense, therefore, was the gathering representative of existing colonial governments; it represented the people, the dissatisfied elements of the people, such persons as were sufficiently interested to act, despite the strenuous opposition of the conservatives and, in general, the obstruction or disfavor of the governors.

When the Congress met in Carpenters' Hall, Philadelphia, in early September,[4] what were its tasks? The country was by no means united. The conservatives were growing fearful; many of those who strongly objected to Britain's measures were anxious to reach some means of reasonable adjustment of difficulties; the radicals were active and skillful. But the instructions or declarations of opinions which were drafted by the gatherings that sent the delegates were by no means inducements to precipitate rebellion. One question had to be solved: what principles were to be proposed that would, to use the words of Rhode Island, "establish the rights and liberties of the Colonies, upon a just and solid foundation"?

Even those delegates who were intent upon opposition to parliamentary taxation and were indignant at the treatment of Boston were not in accord concerning methods of procedure or concerning any theory of the constitution of the empire, if the empire was to exist at all. But the time had come when there must be more than complaint; there was need of a fairly decisive statement of constitutional order. The more advanced were ready and anxious to go the whole road, short of casting off the power of the king; but others held back.

John Adams tells us more clearly than the Journals, and probably quite as accurately, what the difficulties were. In the committee of which Adams was a member there was much discussion concerning the basis of American rights. Should it "recur to the law of nature, as well as to the British constitution, and our American charters and grants"?[5] This problem did not, however, prove supremely difficult; it was easy enough to lay claim to all these foundations of freedom; but that did not end the matter; for, as Adams says, "The other great question was, what authority we should concede to Parliament; whether we should deny the authority of Parliament in all cases; whether we should allow any authority to it in our internal affairs; or whether we should allow it to regulate the trade of the empire with or without any restrictions." A subcommittee of which Adams was a member met and debated the pivotal questions. Seemingly without great difficulty all the articles of its report were agreed upon "excepting one, and that was the authority of Parliament, which was indeed the essence of the whole controversy...." [6] Finally, the agreement appearing in the fourth resolution of the "Declaration and Resolves" was reached. It declared that the colonies were "entitled to a free and exclusive power of legislation in their several provincial legislatures ... in all cases of taxation and internal polity, subject only to the negative of their sovereign, in such manner as has been heretofore used and accustomed. But, from the necessity of the case, and a regard to the mutual interest of both Countries, we cheerfully consent to the operation of such acts of the British parliament, as are bona fide, restrained to the regulation of our external commerce, for the purpose of securing the commercial advantages of the whole empire to the mother country, and the commercial benefits to its respective members; excluding every idea of taxation, internal or external, for raising a revenue on the subjects in America, without their consent." [7]

This resolution appears to be essentially a compromise; [8] it did not acknowledge the legal power of Parliament even to regulate trade, but it consented to the operation of acts for that purpose. Furthermore, it did not repudiate control by the royal prerogative, which was indeed explicitly acknowledged in the address to the king a few days later.[9] There was a distinct acknowledgment of the "negative of their sovereign," which presumably meant disallowance, by the king in council. In the "address to the people of Great-Britain", the Congress said, "Place us in the same situation that we were at the close of the last war, and our former harmony will be restored." [10] Thus, as far as constitutional theory was concerned, a continental Congress could not go much further than had the Congress of nine years before. There were, it is true, many who were willing to go further; but the Congress was not prepared to pass on to a total and explicit denial of parliamentary authority; and, be it noticed, the old fact and the old practices were still on the whole dominating.

That the colonists, so far as Congress represented their true feelings, were in a temper easily to be changed into actual rebellion is apparent from the proceedings at Philadelphia. But it was still a rebellion against abuses of parliamentary authority, a rebellion to retain, in the empire and under the king, the constitutional rights which were claimed on the basis of the colonial charters and the English constitution. If, however, the British government should persist, the colonists must soon deny the authority of Parliament altogether and soon move on to rebellion against the king himself.

The Congress did not present any theory of empire or set forth any scheme of empire, though Joseph Galloway of Pennsylvania presented one.[11] But the resolutions did assert the legal title of the colonies to certain powers and privileges. Probably at that time, when men's minds were inflamed, it would have been impossible to do any piece of constructive work; for the organization of the empire required long and candid consideration and calm discussion. What the Congress did was to assert rights; it provided no real answer to the critical problem of the whole dispute — what plan could be arranged whereby there would be legal obligation, in freedom, upon the outlying parts of the empire to contribute to the defense and support of the empire? While it is not at all strange that such constructive work was not undertaken, we can reasonably assume that some men were considering it. The hope of having a legal system in which the colonies would have a legal share of power and a legal title to their rights was still in men's minds.

Of great consequence was the "Association", "a non-importation, non-consumption, and non-exportation agreement," [12] solemnly entered into by the colonial delegates before the Congress adjourned. If this could be loyally taken up and rigidly enforced, Britain, it was thought, would feel fully the force of American anger. Some portions of the undertaking were not to be put into effect at once. Throughout the colonies, from one end to the other, efforts to carry out the agreement were made, and contests of strength as well as of opinion were frequent. So nearly thorough were the provisions for the execution of the agreement that we may justly consider that the system of committees and the whole machinery constituted in a very marked degree the unification of the radical or the determined forces of the continent.

Here was union reaching out more widely and further down than previous schemes; and here was a method of securing results through the operation of committees.[13]

The winter of 1774 and 1775 was filled with distraction and with some uncertainty. We have been discussing the conflict of opinion between Britain and America; but that conflict was not all. Every colony, as we have seen, had its differences of opinion;[14] each had its own problems and its own experiences, and it is difficult therefore to use any terms of description quite applicable to all alike; and indeed the Revolutionary movement, the social and economic disturbances, the emergence of new leaders, the gleam of new aspirations among classes of men hitherto inactive or negligible in politics — all these are in some ways the most interesting and significant facts in the whole struggle.

Much more than separation from Britain or resistance to "intolerable acts" of a government across the sea was contained in the Revolution. Much social and political history is to be found in those disputes and controversies among the colonists during the years between the adoption of the "Association" and the outbreak of war and the final acceptance of independence.[15] It is not well to tell here the story of American resistance as if the colonies, each working smoothly within its own limits and in accord with the other colonies, presented a united front to Britain. Each one was internally undergoing very vital and on the whole life-giving though distracting experiences. Save in the self-governing colonies of Connecticut and Rhode Island, the actual management of the Revolutionary movements was passing into the hands of conventions or committees or provincial gatherings — governments outside of the legal government of each colony.[16] During two years or so before independence, therefore, essentially revolutionary governments had partially displaced the purely legal authorities; not that these governments, these extra-legal bodies, necessarily thought of themselves as revolutionary in character; for until toward the end they were not necessarily committed to the task of breaking the empire. They were determined to use popular power to maintain their rights against parliamentary exactions and misgovernment. The thought of complete independence was still almost frightful to many a man earnest in his advocacy of boycott and of hostility to the obnoxious laws of Britain.

Such a condition of affairs could not long continue. Peculiarly hard was the situation in Boston where British forces maintained their hold. There was much that was disorderly about the Revolutionary movement everywhere, but on the whole the calmness and the regularity with which the people of that stern old commonwealth persisted in rebellion without suddenly breaking into tempestuous and profitless rioting is impressive and very conclusive proof of their capacity for self-government. More acts came from Parliament to be heaped on their sullen heads [17] without drawing them into thoughtless outbreaks which might have ruined their cause. The crisis came on the nineteenth of April, 1775; Lexington and Concord, and the hurried retreat of the British troops — such of them as were not killed on the. way — back to the protection of their comrades at Boston signaled the beginning of war. At last, to use the pleasing phrase of Locke, there was an "appeal to Heaven".

When the Continental Congress gathered at Philadelphia on the tenth of May, 1775, war had already begun. The Massachusetts men had gathered about Boston and the British forces. What was Congress to do? It prepared, for war and prayed for peace; it organized an army, appointed Washington commander-in-chief, and sent off to George III a new address asking for justice. The hope of obtaining a redress of grievances without disruption of the empire was daily dwindling; there was a steady though varying forward movement toward independence. Lord North's "Conciliatory Resolution", passed by the Commons (February 27, 1775), was presented to the Congress in May; but it came too late; probably it would have been at no time satisfactory, because there was no abandonment of parliamentary power to "bind the colonies and people of America ... in all cases whatsoever." The proposals were rejected in July, and in August the king issued a "Proclamation of Rebellion".

The autumn and winter passed. In the spring (April 6, 1776) the Continental Congress passed resolutions which substantially established freedom of trade with all the world save Great Britain. The old navigation acts and with them the whole system of parliamentary control and regulation of trade were cast into the discard. With the passing of such resolutions, independence could not be far away.


[1] See C. R. Lingley, The Transition in Virginia From Colony to Commonwealth, pp. 81-82; A. M. Schlesinger, The Colonial Merchants and the American Revolution, 1763-1776 (Columbia University Studies in History, etc., LXXVIII), p. 363.

[2] "When the Continental Congress met, there is good reason to believe that it was looked upon as a meeting of the committees of correspondence of the several colonies...." Van Tyne, op. cit., pp. 427-428.

[3] In New Hampshire, delegates were chosen by "a meeting of the deputies appointed by the several towns" assembled for the purpose; in Massachusetts, by the house, after locking the door to prevent notice of dissolution by the Governor; in Rhode Island, where there were no royal officers in political control, by the general assembly; in Connecticut (likewise a free corporate colony), by the house which authorized the committee of correspondence to appoint delegates; in New York, "By duly certifyed polls, taken by proper persons, in seven wards of New York City and County," and by sundry other committees of outlying districts; in New Jersey, by a convention; in Pennsylvania, by the house; in Delaware, by a convention of we "Representatives of the freemen"; in Maryland, by a convention or a "Meeting of the Committees" from the counties; in Virginia, by a provincial convention; in North Carolina, by "a general meeting of deputies of the Inhabitants"; in South Carolina, by "a general meeting of the inhabitants" whose action was ratified by the house.

It is interesting to note that the basis of representation in the Congress came up for consideration as soon as the members began the task of organization. Should each colony have one vote or should the principles of proportional representation be adopted? A proposal "to establish an equitable representation according to the respective importance of each Colony", was not carried, and in its place it was decided that "each Colony or Province shall have one Vote. — The Congress not being possess'd of, or at present able to procure proper materials for ascertaining the importance of each Colony." September 6, 1774. Journals of the Continental Congress (W. C. Ford, ed.), I, p. 25. Hereafter referred to as Journals. Each colony should have "one voice; but as this was objected to as unequal, an entry was made on the journals to prevent its being drawn into a precedent." Connecticut Delegates to Governor Trumbull, October 10, 1774. Quoted in Ibid., I, p. 25, note 1.

[4] The first meeting was on September 5, 1774. There were present 45 delegates. Representatives from North Carolina appeared later, as did a few additional delegates from colonies represented at the beginning. The first volume of the Journals gives the proceedings with copious and learned notes by the editor. The "Autobiography" and "Diary" of John Adams published in the second volume of his Works are interesting and valuable for side lights on the meeting.

[5] The resolutions as finally adopted declared that the colonists "by the immutable laws of nature, the principles of the English constitution, and the several charters or compacts, have the following Rights".

[6] John Adams, Works (C. F. Adams, ed.), II, p. 374.

[7] Journals, I, pp. 68-69.

[8] Of course, whether or not they denied in toto the authority of Parliament depends on the scope the reader may give to the words "internal polity". If those Words are interpreted as excluding entirely from parliamentary control such subjects as naturalization, coinage, the post office, etc. — in other words, those pieces of legislation which we now in our own system recognize as powers within the natural field of general government — then perhaps the conclusion must be reached that the colonies asserted their position as dominions of the king, utterly free, legally, from other control. But, it will be noticed, there was no definite declaration to the effect that Parliament at no time had any authority over them; and the absence of any such statement is to me indicative of hesitation to lay down absolutely plain legal theory. Cf. McIlwain, op. cit., pp. 116-117. Some writers and students may be misled by the wording of the first resolution as given in Select Charters (William MacDonald, ed.), pp. 358-359, the resolution there reading "they have never ceded to any foreign power whatever, a right to dispose of either [life, liberty, and property] without their consent." The word "foreign" should be "sovereign". Journals, I, p. 67; Journals of Congress (1823 ed.), I, p. 20. To object to "sovereign", in any complete sense, was characteristic of the colonial position. MacDonald's work is in general painstaking and accurate.

[9] "We wish not a diminution of the prerogative, nor do we solicit the grant of any new right in our favour." Journals, I, p. 119.

[10] Ibid., I, p. 89. The matter presented above is important for our purpose of following the main line of constitutional argument; but it should be noticed that certain essential rights of Englishmen were also asserted by the Congress: rights to the common law and trial by jury, the right peaceably to assemble and petition, and the right to be freed from the presence of a standing army in time of peace, except by consent of the legislature of the colony. It also asserted that it is necessary to good government that the constituent branches of the legislature be independent of each other and that the exercise of legislative power in the colonies by a council appointed, during pleasure, by the Crown, was unconstitutional and dangerous.

[11] Journals, I, p, 43 ff. Galloway especially pointed out the need of having some general authority in the empire with power to regulate commerce. See John Adams, Works, II, pp. 390-391.

[12] Adopted October 20, 1774. It was a most imposing and thoroughgoing document. Far more than a mere agreement, it provided for execution by calling for committees in every county, city, and town, for inspection by committees of correspondence, and for enforcement by the boycotting of profiteering merchants. It proposed to encourage frugality and to promote agriculture, to discountenance extravagance and dissipation, "especially all horse-racing, and all kinds of gaming, cock-fighting ... and other expensive diversions and entertainments...." Restraint even on the wearing of "mourning-dress" was called for.

[13] Had the Congress without interruption continued to sit and direct the activity of the various colonies, the method of organization and of action would have been strikingly like the present organization of a national political party — that organization which brings into harmonious coöperation on a national scale the interests and the activities of the remotest hamlet and the wards and precincts of the large metropolis; that impressive manifestation of political union of continent-wide dimensions, a manifestation of machinery and of articulated organs more indicative of vital nationalism than the mechanism and operation of what we call the government.

[14] In 1774, the "Association" met determined opposition from the mercantile and moderate classes who disliked the violence and the democratic arguments of the radicals. See Schlesinger, op. cit., p. 432 ff.

"It should never be forgotten that in the eyes of the older men the Revolution was a conservative movement, an effort to uphold their liberties against the encroachments of imperialism. Eighteenth-century liberalism had little touched this older generation.... They wanted the gods to nod on Parnassus — or even to snore — but they wanted the gods. They thought English thoughts and upheld English institutions and condescendingly looked down on dissenters and democrats as not of themselves." Eckenrode, op. cit., pp. 158-159. See also, p. 160. The author is speaking chiefly of Virginia, but his words may be given a somewhat wider application.

[15] Attention is called to Eckenrode, op. cit.; C. H. Lincoln, The Revolutionary Movement in Pennsylvania 1760-1776; C. L. Becker, The History of Political Parties in the Province of New York, 1760-1776; J. F. Jameson, The American Revolution Considered as a Social Movement.

[16] Georgia was still largely outside of the general movement. It was represented by a delegate from one parish in the Congress of 1775, and later (September) by others chosen by a provincial congress.

[17] An act restraining the trade of New England was passed March 30, 1775, and later extended to the other colonies. In December, a bill cutting off all trade with America was enacted. As the Americans wanted to indulge in non-importation Lord North thought they should have their desire to the utmost. "... as the Americans," he is reported to have said, "had refused to trade with Great Britain, it was but just that they be not suffered to trade with any other nation."


CHAPTER X

THE PHILOSOPHY OF THE REVOLUTION AND THE DECLARATION OF INDEPENDENCE

America was the child, the developed child, of seventeenth-century England. She had grown strong and self-reliant. She had breathed the air of a new world; she had been shaped in part by her experiences on a virgin continent; but to understand her character, we need to understand her inheritance almost as much as the environment in which she matured. There is truth in the exaggerated assertion that in the Revolution (1765-1776) the England of the seventeenth century arose to combat the England of the eighteenth; and there is truth in the declaration that America separated from Britain in the seventeenth century rather than in the second half of the next century. The simpler statement is that America was influenced in the course of her development by the thinking and by the struggles to liberalize government in the days of the Stuarts, days which saw a rebellion based on an announcement of rights beyond the reach of kingly prerogative, days which saw the execution of one king, and saw also the dethronement of another because he had broken the original contract between king and people. We are not likely to overemphasize either the fact of the English rebellion and the later peaceful revolution (1688) or the thinking that underlay revolt.

Though in the later days its most popular utterances came from a son of Virginia, and though much of its philosophy was a possession common to America as a whole, this seventeenth-century thinking was especially cherished by the New England colonists. This was so in part because the early New Englanders were the offspring of the protest against Stuart absolutism; perhaps also because Massachusetts peculiarly thought of herself as self-founded and not a child of the empire; but certainly because the thinking of the seventeenth century Was embedded in church polity and in theology.

Fundamental in New England religious thought were the following: (1) there is a divine law superior to all other and binding on every creature, on ruler and ruled; (2) the individual man before entering church relationship is an individual separate and distinct; (3) churches are formed by the consent and agreement of men; the basis of the church is covenant; churches and church government are not superimposed but created by the people composing the churches; (4) the Ruler of the universe, the embodiment and source of unvarying justice and duty, had bound Himself by covenants, by promises. The interlacing of political and religious thinking was very marked; it would be more nearly correct to say that the two modes of thought were in reality only two manifestations of one. Elementary principles of political philosophy were kept alive, not alone by recollection of the seventeenth-century struggles for liberty or by the actual methods of forming churches, but also by the sermons of the preachers, inculcating political and ecclesiastical doctrine.[1]

During the seventeenth century in England there was so much practical as well as purely theoretical presentation of doctrines concerning the origin of state and government, that it is misleading to select any one writer or politician or any one series of events as illustrative.[2] But among all the writers of that century, John Locke stands out above the rest. He did not, however, originate his doctrines, far from it; doctrines of like character had been put forth in previous centuries; for, as a matter of fact, men had often questioned the basis of governmental authority, and they had announced the all-prevailing divine law as superior to human enactment. Especially, in the hundred years before Locke wrote his famous second essay on government, Englishmen had been talking about and for a time fighting about those very problems.[3] Locke's argument in his second essay, written just after the "glorious revolution" of 1688, had continuing effect, partly because of its directness and simplicity, and partly because it came, for England at least, at the end of a controversy and furnished the basis of parliamentary authority as opposed to divine right of kings. His essay deserves our attention because it was used by the men of our Revolution. When men at that crisis thought and spoke in the terms of Locke, they naturally supposed they were relying on an authority, one of the fathers, whose words could not be meaningless to the men of England in the later eighteenth Century. In fact, though a parliamentarian, to refute colonial assumptions, could refer to Locke with approval — as the Scripture is said to be cited by the arch-enemy of mankind — he could not have been entirely at ease when the philosophy of the renowned essay was quoted against him. A reference by a colonist to Locke's writings must not be considered a mere reference to a bookman who had been speculating about government; he was thought of as the expositor of the foundations of English constitutionalism, an authority on constitutional law. When the colonists of the Revolutionary days referred to him, they thought of him as putting forth, not theories of what ought to be, but pronouncements of what actually was; in his words and in the words of many other liberal thinkers of the seventeenth century they saw pronouncements of the real basis on which the rights of Englishmen were founded. And all this is important because it is a matter of great consequence that the American Revolution had, despite much social turmoil, the quality of conserving the old and not merely blasting it; it is important above all because the Revolutionists did more than announce doctrines and quote authorities; they took the theories of the philosophers and the declarations of men like Locke and wove them into an actual constitutional structure. Locke and others like him were to the Americans more than visionaries.[4]

Seeking the source of government, as a method of ascertaining the extent of its authority, Locke started, as did many others before and after him, by declaring that there was a time when men lived in a state of nature in which there was no government. All men were in "a state of perfect freedom to order their actions, and dispose of their possessions and persons" as they saw fit. Men were also in a state of equality; there was no precedence. And yet it was not a state of license, though it was a state of liberty; for there was a law of nature which taught that no man should harm another "in his life, health, liberty or possessions...." But each man was judge in his own case; and so men turned to the establishment of government to avoid the inconveniences by which they were beset. They did not, however, set up government to be absolute over them; "he who attempts to get another man into his absolute power does thereby put himself into a state of war with him...." Man had liberty in nature, and had only the law of nature for his rule; the "liberty of man in society is to be under no other legislative power but that established by consent in the commonwealth...." As liberty existed before government, and as the right of man to his life existed before government, so also property antedated government. Property, therefore, had natural or divine sanction.

But when man leaves his natural state, "he authorizes the society, or which is all one, the legislative thereof, to make laws for him as the public good of the society shall require," and this "puts men out of a state of Nature into that of a commonwealth...." Though Locke was intent upon upholding the legislative power, his main theme was established security for fundamental natural rights under government. "If man in the state of Nature be so free as has been said, if he be absolute lord of his own person and possessions, equal to the greatest and subject to nobody, why will he part with his freedom, this empire, and subject himself to the dominion and control of any other power? To which it is obvious to answer, that though in the state of Nature he hath such a right, yet the enjoyment of it is very uncertain and ... the enjoyment of the property he has in this state is very unsafe, very insecure. This makes him willing to quit this condition ... and it is not without reason that he seeks out and is willing to join in society with others who are already united, or have a mind to unite for the mutual preservation of their lives, liberties and estates, which I call by the general name — property. The great and chief end, therefore, of men uniting into commonwealths, and putting themselves under government, is the preservation of their property...." [5]

Power, Locke declares, "in the utmost bounds of it is limited to the public good of the society.... Thus the law of Nature stands as an eternal rule to all men, legislators as well as others." [6] Having in mind the security of person and possessions, he also declares that not even the legislature can assume the power to rule by "extemporary arbitrary decrees, but is bound to dispense justice and decide the rights of the subject by promulgated standing laws, and known authorized judges." [7] "Absolute arbitrary power, or governing without settled standing laws, can neither of them consist with the ends of society and government...." [8] He was thinking of the eternal and unvarying law of nature and of nature's God, and, in addition, the need of established and open principles as a means of giving security.[9]

How far Locke goes in indicating the principles of legally limited government can especially be seen in his reference to a well-recognized principle of the common law — an administrative officer, acting beyond his warrant, may be resisted — and he inquires why this principle is not applicable to the highest magistrate in the land. We find in this the kernel of the doctrine later firmly embedded in American constitutionalism: no one has a right to enforce an unconstitutional law. There are legal bounds to governmental authority. Though we should err in attributing to Locke alone the origin of this idea, we do not err in finding in his philosophy — closely associated as it was with practical politics and with certain established principles of English liberty — a popularization of certain essential principles which were prominent at the time of the American Revolution and of great subsequent importance. That a law contrary to natural right and justice is no law at all was no new doctrine.[10]

It may be at times necessary to transcend the law. The power to act "according to discretion for the public good ... is called prerogative...."[11] But "Wherever law ends, tyranny begins, if the law be transgressed to another's harm...." [12] To go beyond the law for the good of the people, is, then, prerogative; to do so for the injury of the people is tyranny. Who is to judge what is good and what is harmful? That is the pivotal question. To determine this, there must under some circumstances be an "appeal to Heaven", and the people have the right to determine whether this appeal to the final arbitrament of force is justified or not. This right of determination they cannot surrender, "God and Nature never allowing a man so to abandon himself as to neglect his own preservation." [13]

Locke's argument leads him to the right of revolution, but it must not be conceded that the end is turmoil. May then the prince be opposed, may he be resisted as often as anyone shall find himself aggrieved? This would leave "nothing but anarchy and confusion." [14] But no such consequence is admissible because man has the right to oppose only "unjust and unlawful force." This right of revolution, this final resort to force, this right to rise not against law but against lawlessness, to rise not against legitimate but illegitimate authority, naturally was and remained a cardinal doctrine.[15]

And still, someone may declare that, as the people may dissolve a government, as this is their final right, the very hypothesis lays a foundation for frequent rebellion. The answer to this assertion is: "cry up" your governors as much as you will "for sons of Jupiter" — adopt, that is to say, your theory of divine right — and you shall still have rebellion, because people will not endure the extreme of misery; furthermore, revolutions do not occur on account of mere "slips of human frailty"; but "a long train of abuses, prevarications, and artifices, all tending the same way," may arouse the people to put the rule into hands that will secure to them the ends "for which government was at first erected...."[16] Thus we see, when once it be admitted that there are limits on government, a critical question remains: who is to judge whether the limits have been exceeded or not? That proved to be in reality a perplexing question, not to be forgotten in the history of American constitutional doctrine. Locke did not foresee the development of popular government and its mechanism; nor did he see the full implication of his assertions; but implications there were; and in the later developments of American institutions we discover a partial solution of this pressing and imperative question in the full recognition of judicial authority as well as in the right by institutional processes to reorganize government.

The idea that an act contrary to the fundamentals of the constitution (natural justice, natural equity, the law of God, and the law of nature) was no law played its part in the American Revolution. It was notably influential in New England where the ministers had frequently preached the doctrine of covenant and the limits of governmental power. A cardinal illustration is the sermon of Jonathan Mayhew which he preached in 1749-1750, the anniversary of the death of Charles I;[17] the bold young minister ridiculed the attribution of sainthood to the executed monarch, and denied the propriety of calling the great rebellion of the seventeenth century by the name of rebellion, for it surely was not unlawful to oppose acts of tyranny or to refuse to obey a monarch who had "unkinged" himself by his own acts.

In looking over this revolutionary thinking of Locke and his disciples, we discover some things especially notable in addition to those already selected for comment: (1) though his whole line of argument grew out of historical necessities and though it was applied to a practical problem, it was at the same time in its nature very artificial, making no great effort to find out whether government really did originate in compact. The artificial as opposed to the realistic method is evident at every turn. (2) The basic assumption is that men did make the state, that man existed as an individual and that, by the conscious purpose of unrelated beings, a new comprehensive being, a new entity, can come into existence. (3) As man existed in a state of nature under natural law, as he was an abstracted being, it is possible to build upon certain principles which are abstractly true, forever unchangeable; those principles are not the product of experience; they are not of relative validity but of absolute validity. We need not descant upon the value, in any argument, of having absolutes to deal with — unchanging and unchangeable principles. (4) There is in Locke's reasoning no conception of a body politic — that is to say, a conception agreeable to modern metaphysical political philosophy — a single coherent though not fully-organized body laying down its will authoritatively concerning its own structure and the limits of government.

Now, central in all this thinking is the foundation or source of authority by consent of the governed. By inevitable logic, as well as by pious thinking, governments were bound by the purposes of the compact. The whole idea of limited government, bound by law, is implicit, if not absolutely obvious, in the whole theory. We have already noticed the announcement of natural rights in sundry American arguments of the Revolutionary period. Natural and fundamental rights are conspicuous in the declarations of the Massachusetts representatives (1768). The extent to which they were to be taken seriously, when the people came to found their new institutions, will be spoken of later. At the present, the purpose is to point out briefly the nature and the logical effect of the assumption that men existed before government and had rights which were not granted by government (one of the conspicuous principles of American constitutionalism).[18] These doctrines were used as the basis of resistance to Britain, but they are to be taken into account not simply because they partly explain the American Revolution. It is, in fact, rather difficult — though perhaps the learned may succeed — to interpret the course of American constitutional history or American constitutional law without an understanding of the compact philosophy. One illustration must suffice: in a decision rendered by the Supreme Court of the United States in 1875 we find these words: "The theory of our governments, State and National, is opposed to the deposit of unlimited power anywhere.... There are limitations on such power which grow out of the essential nature of all free governments. Implied reservations of individual rights, without which the social compact could not exist, and which are respected by all governments entitled to the name."[19]

By the spring of 1776, the pretense or the appearance of waging war as subjects of the king was scarcely tenable; many there were who still shrank from formal announcement of independence; but when the Continental Congress adopted resolutions recommending the establishment of governments in the various colonies, it was apparent that they were to be considered as no longer colonies but states. The transmutation of colonies into totally self-governing commonwealths was the heart of the Revolution as a practical fact.

In May a convention in Virginia — an extra-legal body — instructed the colony's delegates in Congress to propose the declaration that the colonies were free and independent and to give the assent of the colony to such a declaration. They were also directed to give assent to any measures which might be thought proper for forming foreign alliances and a "Confederation of the Colonies," with the distinct proviso, however, that "the power of forming Government for, and the regulations of the internal concerns of each Colony, be left to the respective Colonial Legislatures." [20]

Richard Henry Lee of Virginia, offered in Congress, June 7, 1776, the following resolutions:

"Resolved, That these United Colonies are, and of right ought to be, free and independent States, that they are absolved from all allegiance to the British Crown, and that all political connection between them and the State of Great Britain is, and ought to be, totally dissolved.

"That it is expedient forthwith to take the most effectual measures for forming foreign Alliances.

"That a plan of confederation be prepared and transmitted to the respective Colonies for their consideration and approbation."

Not all the delegates were as yet convinced that the time had come to take this final and irrevocable step. If New England was restless and its leaders out of patience with discussion and delay, and if Virginia and one or two other colonies were ready and eager to move on, the large and powerful colonies of New York and Pennsylvania were still hesitating. Without unanimity of sentiment and without coöperation among the colonies from one end of the land to the other, the announcement of independence would be peculiarly bold and perhaps foolhardy.

In other colonies there were controversies; there were still differing elements in each; one element was anxious for advanced measures; another was holding back, afraid of independence or dreading the radicals and all their works; a third was lukewarm, undecided, or even uninterested. No complete picture of the situation is possible; any general statement is inexact. On the whole, this is true: the naturally conservative elements of the population, the well-to-do, the people who had most to lose from unsuccessful or perhaps from successful rebellion, many of the merchants fearing "the mob" and the total annihilation of their industry, were inclined to oppose the more eager and radical elements.[21]

On the first day of July the subject of immediate announcement of independence was discussed in the committee of the whole; the debate took up most of the day but it was, John Adams said, "an idle mispence of time," because nothing was said that had not been said a hundred times before. Only nine colonies were then prepared to take the final step. New York refused to vote; South Carolina and Pennsylvania voted in the negative; the vote of Delaware was divided. The Pennsylvania delegates were in a state of uncertainty because their authority came from the legal assembly of the colony, while the resolution favoring independence was passed by another body. In South Carolina the advocates of separation from the mother country were met by strong opposition, and the colony's delegates in Congress could not be sure of their right to vote for separation or of the support of the colony should they do so. The next day, however, the situation cleared. Caesar Rodney had hurried from Delaware to Philadelphia in time for the crucial vote. A majority of the Pennsylvania delegates decided to vote for independence, and the South Carolina delegates made up their minds that they could take the same stand. So when on July 2 the final vote was taken, only three delegates [22] are known to have cast their votes in the negative. New York did not vote at all. The formal Declaration was adopted July 4, and at a later time, August 2, it was signed by the members of Congress.[23]

The Declaration was naturally and inevitably directed against George III — inevitably because the time had come to break the bonds of allegiance between king and subjects. Moreover, there was absolutely no reason for getting involved once again in a confusing argument about the old question of parliamentary authority. The supposition underlying the Declaration was that the colonies then were and always had been free from any legal control by Parliament. The king was charged in the Declaration with having given his consent to "acts of pretended legislation". In light of the long preceding contest concerning constitutional authority, there was no other reasonable basis for the announcement of independence;[24] there were certainly men in the Congress — John Adams and Jefferson for example — who would not be ready to confess that it was necessary or proper to declare the overthrow of parliamentary power.

The document is of very great moment in American history because of the philosophy of government set forth in the opening paragraphs. Of that philosophy we have already spoken. It was the philosophy — the political thinking — of compact and natural rights, the philosophy which justified rebellion or revolution against tyranny, which announced the principle of the popular origin of government and proclaimed the doctrine that governments were possessed of derived authority — a doctrine, then and now, of pivotal importance in American constitutionalism. The passages in which these principles were proclaimed were clear and powerful; they expressed the beliefs and the theories held by the American people. Jefferson merely made use of commonly accepted ideas concerning the origin and nature of government.[25] It was not his duty to create a new system of beliefs; and therefore to charge him with having no originality and with indulging in airy phrases is, of course, quite foolish.

George III is stigmatized in the Declaration as a prince "whose character is thus marked by every act which may define a Tyrant...." How, it has been asked, can such a charge be justified? George was an obstinate, perilously active, wrong-headed monarch, but no one can justly call him a "Tyrant". In answer, one may ask a question in return — what, under the circumstances, could Jefferson and his colleagues have said? Certainly not that the king was a kindly father of his people. But in reality the propriety of using the term "Tyrant" depends on the meaning of the word, and its meaning was clearly defined in the very political philosophy which was embodied in the Declaration: a tyrant is a ruler who goes beyond the law to the injury of the people. With that definition in mind, no one desirous of independence would strain and strangle over the word "Tyrant".[26] The Americans then, according to this theory, were not lawbreakers; the king had become a lawbreaker by disregarding the very ends for which government was established — the good of the people.[27]

Earlier pages of this chapter contain a brief summary of the political philosophy of Locke and of the Revolution; and that philosophy was presented in condensed form and with astonishing skill in the Declaration. One aspect of the subject merits special attention: "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness." These words would strike few men in those days as novel or absurd. It remained for men of later times to ridicule the assumption of natural equality. But doubtless Jefferson, like Locke, did not intend to assert that each man was as strong, virtuous, and competent as every other; nor was he desirous of announcing social, economic or political equality. There were, however, certain great rights which man had in a state of nature — before there was a government to which he must be obedient; of these rights, certain ones were not surrendered and could not be surrendered. But this is not by any means the whole of the matter; for the main thesis of Jefferson is that governmental power is derived from the consent of the governed; government has not inherent or intrinsic authority, but only granted or delegated authority. The most important word in the Declaration is "deriving".[28]

In a state of nature there was equality; no one had the right to say yea or nay to his neighbor; no one had the right to bid his neighbor do this or not to do that. But government and political order were established by consent, and the system of the original state of nature and of original equality disappeared. Men must continue to be equal in the possession of fundamental natural rights, for they would not have given up equality and freedom to put themselves under absolute, arbitrary, and merciless rule; but, as the result of compact, a superior came into existence; there existed one man or body of men with authority to command; and those commands should be obeyed so long as government kept itself within the limits which the original compact implied.[29] Jefferson was not bent upon announcing to people who were then engaged, or soon to be engaged, in framing constitutions that they must provide for universal suffrage or must grant equality of either political or economic power. He was primarily intent upon presenting a basis for overthrowing the authority of King George.

The critical question, we may repeat, was how it came about that one man, a monarch, or one set of men had been placed above other men with power to issue orders, laws, and decrees; if governmental power was derived, if men voluntarily and by consent had surrendered their original equality, then, unquestionably, government was authoritative only when acting within the limits of the compact and when guarding the natural rights of life, liberty, and property. Before government was established, men were in a state of equality; after government was established they were not; they gave up their equality and subjected themselves to a superior; but this superior must rule for the common good. This is the sum and substance of the philosophy of Locke and of the Declaration of Independence.

The Declaration is not to be read as if it had no meaning for us save as it permitted an excuse or a reason for separating America from Britain. It contains doctrines which on their peculiarly theoretical side have partly lost their cogency. The notion that the only way in which men can be legitimately bound is by a promise, or something akin to promise and contract, is to-day not quite orthodox political philosophy or quite the thinking of the common man. We do not postulate a pre-social state of existence in which man was an isolated, absolutely independent, and segregated atom. We think historically; we know how governments did arise; we think of society as a living fact, even if it does in some way establish a government by votes of individuals. But the significance of the Revolution is lost if one does not see the Americans taking this "compact" philosophy seriously, and if he does not see that the elementary principle — the existence of individual rights which governments were established to protect — has not lost its force in American constitutional law.

This interpretation of the thinking of the Declaration should not imply the absence of more radical or more advanced doctrines or impulses and desires among the men of the Revolution, especially among those who in some of the colonies had been most active in protesting against the established order of things. Jefferson himself was prepared to attack the intrenchments of privilege secured by law in the Old Dominion. Everywhere men who hitherto had been ignored in colonial politics were forging to the front; they were pushing ahead to new positions, in some cases demanding or assuming further political rights. Some persons were envious of the more fortunate, and probably quite justly so; they envied the possessors of large landed estates and they disliked the economic domination of their owners. The Revolution, in part begotten by social and economic discontent within the individual colonies, was moving on to its inevitable conclusion — not to immediate social equality or to complete economic equality, but to a greater degree of power and confidence in the main body of the people. But that is a long story; its end was not reached in the days of the war or for some decades thereafter. The movements that produced the downfall of British rule, probably also the very philosophy on which the Revolution was based as well as the struggle itself, broke down old traditions and helped in carrying forward the principles of political equality and a fuller realization of the worth and competence of the common man. Revolution was working out its natural consequences; there lay ahead the inevitable diminution of that presumption of superiority which was the dear possession of social and economic leaders.


[1] Very valuable is A. M. Baldwin, The New England Clergy and the American Revolution. One must weigh the fact that two treatises, published in the early part of the eighteenth century from the pen of John Wise, which contained distinct and detailed presentation of the theory of compact, were republished in Boston in 1772, "and so eager was the perusal of them, and so extensive the demand for their clear reasoning in favor of democracy as the best government, that another edition, of which more than one thousand copies were bespoken before its issue, was put to press in the same city in the same year." H. M. Dexter, The Congregationalism of the Last Three Hundred Years, As Seen in Its Literature, pp. 501-502.

[2] Of special usefulness in this matter is T. C. Pease, The Leveller Movement.

[3] The long effort, though at times only an effort of a secluded closet philosopher, to answer the great question — are there limits on human authority? — is especially interesting to American students of constitutional law. The Revolution and the formation of American institutions should be seen as part of the history of political thought. It is not the intention of these pages to declare that the philosophy of the American Revolution was new; it is not the intention to assert that it came wholly from Locke or from the polity and theology of Puritanism. There was little that was new in the American doctrines, perhaps nothing. But we do find that Americans were ready to institutionalize their principles and not merely to fight for them. For a discussion of the antiquity of the doctrines, see James Sullivan, "The Antecedents of the Declaration of Independence," Am. Hist. Asso. Report for 1902, I, pp. 65-81. Sullivan finds all of the doctrines of the Declaration, though many parts were much older, in the philosophy of Nicolas of Cusa, of the early fifteenth century.

[4] Even after, long after, our Constitution was founded, American lawyers not only spoke in the philosophy of Locke, but quoted him or referred to him. See, as an example, T. M. Cooley, The General Principles of Constitutional Law (4th ed.), p. 138 and note 1, referring to Locke to show the unconstitutionality of delegation of power by a legislative body.

[5] Locke, op. cit., bk. II, secs. 123-124.

[6] Ibid., bk. II, sec. 135.

[7] Ibid., bk. II, sec. 136.

[8] Ibid., bk. II, sec. 137; see also secs. 22, 124.

[9] Locke's summary of his chapter, "Of the Extent of the Legislative Power", presents some of the ideas just discussed: "These are the bounds which the trust that is put in them by the society and the law of God and Nature have set to the legislative power of every commonwealth, in all forms of government. First: They are to govern by promulgated established laws, not to be varied in particular cases, but to have one rule for rich and poor, for the favourite at Court, and the countryman at plough. Secondly: These laws also ought to be designed for no other end ultimately but the good of the people. Thirdly. They must not raise taxes on the property of the people without the consent of the people given by themselves or their deputies. And this properly concerns only such governments where the legislative is always Ml being, or at least where the people have not reserved any part of the legislative to deputies, to be from time to time chosen by themselves. Fourthly: Legislative neither must nor can transfer the power of making laws to anybody else, or place it anywhere but where the people have." Ibid., bk, II, sec. 142.

[10] See, for example, Thomas Aquinas, Summa Theologica, part 2, no. 3, q. 95, art. 2, p. 57 (1915 ed.): "Every human law has just so much of the nature of law, as it is derived from the law of nature. But if in any point it deflects from the law of nature it is no longer a law; it is but a perversion of law."

[11] Locke, op. cit., bk. II, sec. 160.

[12] Ibid., bk. II, sec. 202.

[13] Ibid., bk. II, sec. 168. The reader thinking in the terms of modern politics would now answer the question by saying, "The people must judge." But it is to be noticed that Locke means their right to fight, their right to "appeal to Heaven." To constitutionalize and institutionalize this right to judge was to be part of the work of the American Revolution.

[14] Ibid., bk. II, sec. 203.

[15] Rebels in behalf of the great ends of society were not rebels; the tyrant was the lawbreaker, a rebel against law superior to himself. "In whatsoever he has no authority, there he is no king, and may be resisted: for wheresoever the authority ceases, the king ceases too...." Ibid., bk. II, sec. 239.

[16] Ibid., bk. II, sec. 225. Cf. the Declaration of Independence.

[17] A Discourse Concerning Unlimited Submission (Boston, 1750), p. 38 ff.

[18] This subject of convenant, compact, and binding law is briefly treated in the author's The Foundations of American Constitutionalism, a series of lectures delivered in New York University. The purpose of those lectures was to show the origins of American constitutional doctrines, especially as indicated by New England history.

[19] Loan Association v. Topeka, 20 Wallace 655, 663. The word "reservations" deserves special attention. It unquestionably implies the existence of rights before governments were established, and it is similar to, if not identical with, the theory of a body of natural rights under natural law anterior to the constitution of social order. We may well notice also the principles often announced in federal court decisions two hundred years and more after Locke, which declared acts void because they violated principles of right and justice; the supposition is that there is a standard of justice beyond which legislation must not go and which is protected by the due process clause of the fourteenth amendment.

[20] Journal of the convention in American Archives (Peter Force, ed.), fourth series, VI, col. 1524. See also, H. B. Grigsby, The Virginia Convention of 1776, pp. 8, 17-18. It is interesting to notice that the Pennsylvania assembly, when consenting to the compacts between the colonies in 1776, spoke of "reserving to the people of this Colony the sole and exclusive right of regulating the internal government and police of the same." American Archives, fourth series, VI, col. 755.

[21] See Becker, op. cit.; Lincoln, op. cit.; Schlesinger, op. cit., especially p. 591 ff.

[22] These were Willing and Humphreys of Pennsylvania and Read of Delaware. John Dickinson and Robert Morris of Pennsylvania were absent when the vote was taken. Dickinson appears to have been influenced by the belief that, before actual declaration of independence, state governments should be set up and that there should be agreement on the terms of confederation. It was not unreasonable to contend that substantial governmental union should precede separation or that the two be practically contemporaneous.

[23] "The declaration of independence being engrossed and compared at the table was signed...." Journals, V, p. 626. See Herbert Friedenwald, The Declaration of Independence, ch. VI. Some of the signers whose names were on the list were not members of Congress on July 4. One member is known to have signed as late as 1781.

[24] Of course, Congress might have discussed at length the problem of just how much power Parliament had had; but there would have been disagreement, and the whole declaration, if one had ever been reached, would have been ineffective. Thus Parliament was ignored as a body "foreign to our constitutions, and unacknowledged by our laws...."

[25] By this I do not mean that there were no persons who rejected the doctrines of compact and natural rights; but these beliefs were so widely held that they may with some confidence be ascribed even to many who were not ready to act upon them by rebellion.

[26] "As usurpation is the exercise of power which another hath a right to, so tyranny is the exercise of power beyond right, which nobody can have a right to...." Locke, op. cit., bk. II, sec. 199. "Wherever law ends, tyranny begins, if the law be transgressed to another's harm...." Ibid., bk. II, sec. 202. Doubtless the American patriots were willing in their excitement to use terms of denunciation fitting a Borgia or a Caligula. But without reference to that fact, the philosophy of the Declaration is consistent. It is tyranny that justifies revolution, and surely Jefferson piled up a rather large series of specific indictments.

[27] Notice that John Milton (quoted without reference by J. W. Thornton in The Pulpit of the American Revolution, pp. 67-68 note) pointed out that to resist authority acting contrary to what St. Paul makes the duty of those in authority is not to "resist the power nor the magistracy" but to "resist a robber, a tyrant, an enemy." Jared Eliot, in his Connecticut election sermon, 1738, said, "Arbitrary Despotick Government, is, When this Sovereign Power is directed by the Passions, Ignorance & Lust of them that Rule. And a Legal Government is, When this Arbitrary & Sovereign Power puts itself under Restraints, and lays itself under Limitations, in all Instances where they see it Either possible or probable, that the Exercise of this Sovereign Power may prove or have proved Prejudicial or Mischievous to the Subject: Even this is an Act of Sovereign Power. This is what we call a Legal Limited & well Constituted Government. Under such a Government only there is true Liberty." Quoted in Baldwin, op. cit., p. 176.

[28] "The Power of the greatest Potentate on Earth is not Inherent in him, but is a Derivative...." Ebenezer Pemberton, On the Power and Limitations of Magistrates, Massachusetts election sermon, 1710. Quoted in Ibid., p. 174.

[29] In a pamphlet ascribed to Elisha Williams and issued in 1744, we find this: "Reason teaches us that all Men are naturally equal in Respect of Jurisdiction or Dominion one over another.... But it [natural freedom] consists in a Freedom from any superior Power on Earth, and not being under the Will or legislative Authority of Man, and having only the law of Nature (or in other Words, of its Maker) for his Rule...." Quoted in Ibid., p. 176. The writer goes on to consider why men gave up the original state of nature and he refers to Locke.

"... 'Tis not indeed pretended that any one man or number of men have any natural right or superiority, or inherent claim of dominion or governmental authority over any other man or body of men. All men are by nature free and equal and independent in this matter. It is in compact, and in compact alone, that all just government is founded." Jonas Clark, Massachusetts election sermon, 1781, Quoted in Ibid., p. 180.

"But though men when they enter into society give up the equality, liberty, and executive power they had in the state of Nature into the hands of the society ... yet ... the power of the society ... can never be supposed to extend farther than the common good...." Locke, op. cit., bk. II, sec. 131. See also secs. 4, 54.


CHAPTER XI

EARLY STATE CONSTITUTIONS

The Declaration of Independence involved the necessity of establishing state governments. Separation from the mother country meant that the colonies were no longer colonies in the British empire, but independent states. The early stages of the process of transition were distinctly a part of the conflict with Britain. The Revolutionary movement, while it was still only a rebellion and before there was any definite intention to break with Britain altogether, necessarily produced some form of extra-legal government; royal and proprietary governors were ignored or steps were taken to overcome or circumvent their power. Provincial congresses or conventions or committees chosen in the various communities contrived, as best they might, to get their way. The growth of the power of these conferences, especially of the committees having in charge the whole management of resistance, was as a rule gradual; but it began before the fourth of July, 1776.

The Continental Congress was naturally interested in the establishment of substantial governments in the rebellious colonies. Some of the members were at an early day quite aware of what such an establishment would imply, and if they were eager for independence, they were keenly desirous of seeing the colonies enter upon the job of fashioning governments capable not only of resistance but of doing the work of self-dependent commonwealths.

The first important step was taken by the provincial congress of Massachusetts. That colony sent a formal letter (dated May 16, 1775) to the Continental Congress asking for explicit advice "respecting the taking up and exercising the powers of civil government," and promising to submit to such "a general plan" as Congress might direct for the colonies.[1] Early in June Congress answered the inquiry: inasmuch as no obedience was due to the act of Parliament for altering the charter, and no obedience to a governor or lieutenant-governor endeavoring to subvert the charter, those officers should be considered as absent and their offices vacant; it was resolved that "in order to conform, as near as may be, to the spirit and substance of the charter, it be recommended to the provincial Convention, to write letters to the inhabitants of the several places, which are intituled to representation in Assembly, requesting them to chuse such representatives, and that the Assembly, when chosen, do elect counsellors; which assembly and council should exercise the powers of Government, until a Governor, of his Majesty's appointment, will consent to govern the colony according to its charter."

In the latter part of the same year New Hampshire sent a somewhat similar request, which was answered in substantially the same manner.[2] Soon afterwards, like recommendations were made to South Carolina [3] and Virginia.[4] In these three cases, however, the advice of Congress, more clearly than in the reply to Massachusetts, brought out the idea of an independent representative body capable of setting up a government; it more nearly approached the conception of a representative constitutional convention. Indeed, that idea in its fundamentals is plain.[5]

The next spring (May, 1776) a resolution with a very expressive and conclusive preamble was passed in Congress. It declared it necessary that the exercise of every kind of authority under the Crown should be totally suppressed, that all of the powers of government should be exerted under the authority of the people, and that it be recommended to the assemblies and conventions of the united colonies, where no government sufficient to the exigencies of their affairs had been established, to adopt such government as should, in the opinion of the representatives of the people, best conduce to the happiness and safety of their constituents and of America in general.[6] Thus nearly a year had passed between the advice to Massachusetts and the general recommendation to the colonies. The hesitant might still persuade themselves that the governments established were to be but temporary, lasting only until the unfortunate dispute with the mother country should be settled, but this general advice meant that the colonies were henceforth to be free and independent states.

In the transmutation of colonies into commonwealths the principles on which these new states were to be founded were a matter of transcendent importance. And, as principles have reality and stability only when made actual, the method and the machinery whereby the states were established and organized are of signal significance. Many times in the past, writers on government had asserted that the people were the original possessors of power and the source of governmental authority. Such declarations had been announced as the corner stone of the American argument against Britain. Now that the Americans had the opportunity to set up governments, how nearly would their conduct accord with this doctrine? An intelligent people, a reading people, a people well-schooled by orators, pamphleteers, lawyers, and preachers, and instructed by the political discussions of a decade, had the chance to rear governments and to fix the limits of their power by legal and authoritative commandments. Adams tells us that he declared that the people "must be all consulted, and we must realize the theories of the wisest writers, and invite the people to erect the whole building with their own hands, upon the broadest foundation." [7] The principles of political philosophy were to be put to the test.

What then was necessary if the theories of "the wisest writers" were to be actualized with an exactness they themselves could not have conceived? It was necessary (1) to bring into political action the main body of the people; (2) to produce an organ representing the people, the duty of which would be to describe the government and to define, if need be, the limits of its power; (3) to give the people, the original of power, the opportunity of passing definitely upon the proposed constitution and of bestowing upon the government the legal right to govern; (4) so to proceed that the body drawing up the constitution should be sharply distinguished from the legislature — the legislature acting as a temporary revolutionary government and the legislature to be reëstablished under the new system; this was necessary because there must be no obscuring the derivative power of government as distinguished from the inherent power of the people. The body that drafted the constitution must not, therefore, legislate in the ordinary sense of the word. If the convention should not only draft a constitution but also act as a legislative body, then legislation and the constitution might appear to be on the same plane; the convention must not act as if it were a government; it must in all respects consider itself as a body representing the people for the specific purpose of preparing a government. If the constitution emanated from the convention and was not formally ratified by the people, the derivative character of the government might not stand forth so adequately and conclusively that even the blind could see. Only by the most careful observance of process in accord with elementary principles could it be made perfectly evident that to secure life, liberty, and the pursuit of happiness governments are instituted among men and derive their just powers from the consent of the governed.[8]

The constitutional convention is a familiar American institution, so familiar, in fact, that we find difficulty in realizing its fundamental character. Use of the process of representation for gathering a body of people with authority to draft a constitution appears so simple that we naturally think of the representative convention, the primary body subject only to the people themselves, as if the men of the Revolution created it without engaging in serious perplexity. But of course such was not the case; there was perplexity as well as failure in some cases to adopt methods plainly demonstrating the theory of popular government. But the statesmen of the day had the advantages of experience with representation as a working system and did not need to rely on theory alone. Even the provincial congresses and gatherings which had assumed control in the various colonies, though generally very irregularly constituted and irregularly chosen, were at the worst ostensibly representative; and thus the idea of a body based on systematic representation rather naturally adapted itself, under the wise guidance of Congress, to the existing practices.

In Massachusetts, after much discussion, the method which was followed showed so perfectly the theory of popular power and the nature of a constitution, that the work of that state merits our special attention although the constitution was the last of the strictly Revolutionary constitutions.[9] In May, 1777, the body which, formed on the analogy of the old charter, was the revolutionary but also the actual government of the state, recommended that the towns at the coming election empower their representatives to take part as members of a constituent convention for making a constitution which should be submitted to the towns for adoption and be instituted by the General Court, if approved by two-thirds of the freemen of the state over twenty-one years of age.[10] Upon the authorization of the towns thus secured, the assembly resolved itself into a convention, drew up a constitution and submitted it to the people (March 4, 1778). It was not accepted. There were several objections to it; especially noteworthy was the objection based on the absence of a bill of rights.[11]

If one wishes to see the literalness with which the men of those days took the theories of the origin of government in compact and the original possession of power by the people, he should read the Essex Result, the product of a convention of Essex County but largely the work of Theophilus Parsons.[12] "Over the class of unalienable rights", the Result declared, "the supreme power hath no controul, and they ought to be clearly defined and ascertained in a BILL OF RIGHTS, previous to the ratification of any constitution. The bill of rights should also contain the equivalent every man receives, as a consideration for the rights he has surrendered." [13]

After the defeat of the constitution in 1778, steps were taken to prepare another and to follow methods in all respects theoretically correct. The temporary government asked the voters to vote on two questions: did they desire a new constitution, and if so, would they empower their representatives to summon a convention for the sole purpose of framing one? As two-thirds of the towns were favorable, the towns were then called upon to select delegates who should form a constitution to be established by the vote of two-thirds of the free male inhabitants twenty-one years old, acting in town-meetings called for that purpose.[14] The convention thus provided for met (September, 1779), framed a bill of rights and a constitution, submitted its handiwork to the people, then adjourned and awaited the popular verdict. In due time the convention once again assembled, canvassed the votes, decided that the constitution was adopted, and arranged for the inauguration of the new government.[15] The process was perfect; no one could doubt that the people were the source of governmental authority, that their will was superior to the government which was their creature, or that the government and the state were not the same.

This constitution of 1780 was carefully worked out with patient thought and under able, scholarly guidance. It conclusively ended the struggle, centuries old, of enmity between government and the people; the old enemy, government, was made the servant of the politically-organized people.[16] The question for the future was whether the people possessing power would wisely use it and develop laws and political processes suitable to new needs.

The methods of Massachusetts have been here presented in some detail because of the precision with which the work was done. We must content ourselves with a summary of the action of other states. The Virginia constitution, which was drawn up before the adoption of the Declaration of Independence, was framed by a convention acting as the temporary revolutionary government but not expressly authorized to undertake the task of constitution-making. This was true also of South Carolina (1776) and New Jersey. The congresses or conventions of all the other states were expressly authorized to act, but these bodies were not chosen for the single purpose of framing constitutions. When constitutions were put into operation without being submitted to the people, there was a good deal of objection in a number of the states to the establishment of a constitution without direct popular sanction.[17]

A word on the subject of submission of the constitution to the people is appropriate here, though we must look into the decades after the Revolution for the development of the practice. Only gradually was the principle of submission taken up by the various states; the first state outside of New England to take this step was New York, in 1821. By the time of the Civil War, the practice seemed to be fairly well established. In a later period, however, various constitutions were drawn up and established without popular ratification. For example, the Mississippi constitution of 1890, the first of a series of constitutions drawn up by southern conventions, the purpose of which was to get rid of certain inconveniences of the constitutions forced upon the states during Reconstruction,[18] was not submitted.

The Revolutionary constitutions were framed in time of war, and the strange fact is, not that they failed in some particulars to carry out the perfect theoretical procedure, but that they so nearly approached it. Although in a number of the states there was a confusion of legislation and constitution-making, a confusion that necessarily obscured in some degree the fundamental distinction between ordinary legislation and the constitution as the supreme will of the state, the necessity of popular authorization seems to have been pretty fully recognized and the nature of a constitution, if not the full qualities of a convention, was in a general way clearly presented.

Although in the whole process of constitution-making there was a fairly complete recognition of the principles of popular government and of Revolutionary doctrines — more plainly so in some states than in others — there was not much in the way of sentimental theorizing unaffected by experience; and the institutions which were actually established were in large measure essentially those to which the people were accustomed. The constitutions provided for a governor and generally for a bicameral legislature. Pennsylvania and Georgia established unicameral legislatures, but soon fell into line with the practice of the other states.[19] The old colonial council was reëstablished in some cases; in some of the states a board of censors was provided for. Suffrage was limited in various ways, so variously in fact that no generalization is possible; and there were also sundry qualifications for holding important offices — not only property qualifications but religious and theological as well.[20]

These early constitutions show a general distrust of the executive and, relatively, a confidence in the legislative — another direct product of colonial experiences. Some decades had to pass before executive authority was widened. Compared with modern constitutions, the early documents were brief. Their brevity can be easily accounted for: the people trusted in the ordinary rectitude and good sense of the legislature; they had not as yet learned the need of embodying in the constitution detailed directions and explicit restrictions; they had not gained that confidence in themselves which at a later day led them to place in their constitutions various provisions not of a fundamental character, but rather in the nature of statutory enactments. Life was comparatively simple and comparatively free from social and economic problems; the later development of constitutions mirrors the increasing complexity of the social and economic order.

Some of the early constitutions did not contain provisions for amendment, and the omission is not easily explained; certainly, if the right of revolution were to be legalized, there should be legal means for altering the form and the foundation of government. The failure to make such provision is probably attributable to haste and partly to the attention given by the framers to the fundamental character of their work; they did not realize how quickly and how often the need of change would arise.[21]

Including Vermont, which began to assume and assert statehood in the period under review, eight states adopted bills of rights (New Hampshire, Vermont, Massachusetts, Pennsylvania, Delaware, Maryland, Virginia, and North Carolina).[22] They accept the theory that government rests on consent and exists for the protection of rights. The Virginia bill of rights, largely the work of George Mason, contains the same philosophy as the Declaration of Independence and it was passed in the state before the Declaration was passed. It announces the doctrine of "inherent" rights of the people and the doctrine that all power is derived power. It then outlines in a masterly way the principles upon which free government rests. Associated with the announcement of the fundamental principle that power springs from the people and that the people have the right to alter and abolish government are certain other declarations of secondary rather than primary importance; they are of service in maintaining the more elementary and fundamental rights. The announcement of religious liberty in the Virginia bill is especially significant as an indication of the liberalizing effect of the Revolutionary movement. The first and most elementary principle of bills of rights is that men possessed rights before government was formed. Though it is now an elementary principle of constitutional law that the legislature of a state in the union has all power not forbidden either expressly or by implication, no man in appearing before a court of justice needs to set forth the essentials of individual liberty as a grant made to him by government; human rights are supposed to have existed before the establishment of government or state.

One well-known principle of the American constitutions is the separation of the powers of government. The legislative, executive, and judicial branches of government are distinct, and each branch is possessed of its peculiar and particular authority. We have carried that principle to an extent not known to the modern states of Europe; it is applicable to both our state and national governments; countless questions involving the interpretation and the application of the principle have come before the courts for decision. When the federal Constitution was framed, it seems to have been taken for granted as an elementary doctrine that separation of powers was one of the main safeguards of liberty. The idea was associated with the need of checks and balances which would keep each department within its proper sphere. Not all of the early state constitutions [23] plainly provided for separation, nor did the federal Constitution explicitly do so, but only by fairly conclusive implication.

The origin of this principle is not easily determined. Like many others, it is in some respects of hoary antiquity. The influence of Locke is probable.[24] In this matter, as in others, the Americans carried doctrine to the logical ultimate. The most influential writer was Montesquieu, whose Esprit des Lois was known in Revolutionary days. John Adams, a lover of checks and balances, seems to have been affected by James Harrington.[25] But American experience strengthened, if it did not create, the principle. Men do not commonly — if they are wise, and the early American statesmen cannot be denied the attribute of wisdom — enthusiastically adopt a disembodied idea from beyond the field of practical acquaintanceship. The colonists had not lived under a system in which separation of the powers was fully recognized; but they had been engaged in a series of debates and disputes concerning the extent of the authority of different branches of government. It is true that in some instances, perhaps commonly, they were really desirous of asserting the supremacy of the legislative branch, but the idea of separation and distinction was in some instances brought fairly clearly to light.[26]

Associated with the doctrine of separation of powers is the principle that granted power cannot be delegated. And this principle brought up in the course of time a good many constitutional problems. Important as the principle of separation is, constitutions do not provide for complete isolation of the departments of government. For example, the fact that a bill requires the signature of the executive, unless it is passed over his veto, gives him a participation in legislation; and executive influence over legislation has greatly increased in the passing decades.

If it be asked why people were so unwise — and the question is often asked — as to hamper government by division of authority and by checks and balances, the answer is simple: such was the kind of government the leaders and probably men in general wanted. Who are a free people? Those who live under a government so constitutionally checked as to make life, liberty, and property secure. That would have been the explicit answer of the Revolutionary days. In some ways the most marked development of the idea of popular government from that time to this has been the development of the belief that governments, strongly directed by popular opinion, should be competent and active — a change from the belief that governments should not do things to the belief that they should do things.


[1] The letter, in the form of a resolution, was presented to Congress June 2. An essential paragraph is as follows: "We are happy in having an opportunity of laying our distressed state before the representative body of the continent, and humbly hope you will favour us with your most explicit advice respecting the taking up and exercising the powers of civil government, wch we think absolutely necessary for the Salvation of our country and we shall readily submit to such a general plan as you may direct for the colonies, or make it our great study to establish such a form of government here, as shall not only most promote our advantage but the union and interest of all America." Journals, II, p. 77. This was a very wise and shrewd approach. It took for granted that the matter was of continental concern; it was becomingly submissive to the opinion of Congress, and it indicated the desirability of a general plan for "America". But the general plan had to wait, for not all the colonies were so far along the road to independence as was Massachusetts.

[2] Laid before Congress October 18, 1775. Answered November 3, 1775.

[3] November 4, 1775.

[4] December 4, 1775.

[5] "Resolved, That it be recommended to the provincial Convention of New Hampshire, to call a full and free representation of the people, and that the representatives, if they think it necessary, establish such a form of government, as, in their judgment, will best produce the happiness of the people, and most effectually secure peace and good order in the province, during the continuance of the present dispute between G[reat] Britain and the colonies."

[6] In the above sentences the resolution of May 10 and the preamble adopted on May 15 to accompany the resolution are abbreviated and woven together. We can see in these resolutions the basis of the conversation reported by John Adams: "Mr. Duane called it to me, a machine for the fabrication of independence. I said, smiling. I thought it was independence itself, but we must have it with more formality yet." John Adams, Works (C. F. Adams, ed.), III, p. 46.

[7] Ibid., III, p. 16.

[8] These ideas and the elements of the process flowed naturally and inevitably from the whole theory of the compact-origin of government as set forth by "the wisest writers" and announced over and over again during the preceding century by the New England preachers. How well Adams and others knew written pronouncements concerning a constitutional convention which were put forth in England in the middle of the seventeenth century, we do not know. They knew the theory, and some of them probably knew Sir Henry Vane's Healing Question. They may not have known an interesting document of that earlier century which very distinctly presented the fundamental character of a constitutional convention. I refer to a plan drawn up in 1648: "That some persons be chosen by the Army to represent the whole Body; and that the well-affected in every County (if it may be) chuse some persons to represent them: And those to meet at the Head-Quarters.

"That those persons ought not to exercise any Legislative power, but onely to draw up the foundations of a just Government, and to propound them to the well-affected people in every County to be agreed to: Which Agreement ought to be above Law; and therefore the bounds, limits, and extent of the peoples Legislative Deputies in Parliament, contained in the Agreement to be drawn up into a formall contract, to be mutually signed by the well-affected people and their said Deputies upon the dayes of their Election respectively...." Legal Fundamentall Liberties, p. 34. Quoted in Pease, op. cit., p. 261. Notice the character of the body to meet at headquarters and the popular ratification by signing. It appears that deputies elected to Parliament under this fundamental instrument were, when elected, to sign, a provision similar to our provision requiring officers elected as well as others to take oath to abide by the Constitution.

[9] In New Hampshire, where the general methods of operation were likely to resemble those of Massachusetts, a constitution was adopted in 1776 by a body not chosen for that special task and that alone. In 1778 a convention properly constituted drafted a constitution which was defeated by popular vote. Other conventions met and framed constitutions which met with a like fate. One was finally approved in 1783.

[10] H. A. Cushing, History of the Transition From Provincial to Commonwealth Government in Massachusetts (Columbia University Studies in History, etc., VII, no. 1), p. 207.

[11] There is probably no need of attempting to decide exactly when and where the idea of the character of the full-fledged constitutional convention came to light. We have already noticed the appearance of the idea in England over a hundred years before the American states acted. The origin of the institution, perfectly envisaged, has been attributed to Concord, Massachusetts, by R. S. Hoar ("When Concord Invented the Constitutional Convention," Boston Transcript, July 3, 1917). The resolutions of the town-meeting (October 21, 1776) are full of interest: they declare the legislative is no body proper to form a constitution — "first Because we conceive that Constitution in its proper Idea intends a system of principals established to secure the subject in the Possession of, and enjoyment of their Rights & Privileges against any encrouchment [sic] of the Governing Part. Secondly Because the same Body that forms a Constitution have of Consequence a power to alter it — thirdly Because a Constitution alterable by the Supreme Legislative is no security at all to the subject against the encrouchment [sic] of the Governing part on any or on all their Rights and Privileges." It is quite plain that such principles underlie the great body of American constitutionalism. Edward Rutledge suggested a special congress of new members to draw up articles of confederation (August 19?, 1776). Letters of Members of the Continental Congress (E. C. Burnett, ed.), II, p. 56. It would seem, however, that the reason was chiefly grounded on the fact that Congress was busy.

[12] Cushing, op. cit., pp. 221-226. Concord cast 111 votes against the constitution and none in its favor. Hoar, op. cit.

[13] Result of the Convention of Delegates Holden at Ipswich in the County of Essex, p. 15.

[14] Cushing, op. cit., pp. 227-229. It cannot be said that there is anything sacred in the proportion of two-thirds.

[15] As to the difficulty in determining the full meaning and effect of the returns from the towns, see S. E. Morison, "The Struggle Over the Adoption of the Constitution of Massachusetts, 1780", Mass. Hist. Society Proceedings, L, p. 396 ff. (October, 1916-June, 1917). He says, "'... the plain people of the state, in town meeting assembled, were able to point out the principal flaws that time and experience would find in the constitution drafted by John Adams, and adopted by a Convention that included among its members Samuel Adams, James Bowdoin, Theophilus Parsons, John Lowell, George Cabot, and Robert Treat Paine.' "

[16] This statement may appear an exaggeration in light of the fact that there were qualifications for voting, qualifications for holding office, religious provisions, and other matters in the constitution that needed to be altered in later years; the constitution of 1780 was not altogether in accord with twentieth-century democracy. But nevertheless, one does not mistake in seeing in this constitution and the method of its adoption the logical end of a long epoch; men had found a manner of creating a government and making it subject to their will; they had found a method not only of granting power but of preserving liberty. As far as political liberty was concerned, the government was in the people's hands.

[17] "Jefferson always denied the power of the convention to adopt a permanent frame and intended that his draft, if adopted, should be referred to the people." Lingley, op. cit., p. 174. "Resolutions in New York and North Carolina expressed strongly the demand for a popular voice in the approval of constitutions, but here too it is probably the case that the popular participation was less than might have been desired because of the critical condition of affairs and of the necessity for prompt action. Even under these conditions action was taken in a number of states which amounted to an informal submission of constitutions to the people (Maryland, Pennsylvania, North Carolina, South Carolina, 1778), but the proposed Massachusetts constitution of 1778 is the first instrument of government which was formally submitted to a vote of the people." W. F. Dodd, "Constitutional Convention," Cyclopedia of American Government, I, p. 425.

[18] South Carolina, 1895; Louisiana, 1898; Virginia, 1902. The Delaware constitution of 1897 was not submitted, and the Kentucky constitution of 1891 was altered by the convention after it had been ratified. See W. F. Dodd, The Revision and Amendment of State Constitutions, pp. 67-68. The author, after a careful examination of precedents, points out that the "more usual procedure" (not universal practice) includes three popular votes: (1) the vote of the people authorizing a convention; (2) the election by the people of delegates; (3) the submission of the constitution for adoption or rejection. Ibid., p. 71. It should be noticed, however, that he brings out the fact that constitutions are "elaborated by constitutional conventions chosen for this express purpose, and distinct both in organization and election from the ordinary legislative bodies." Ibid., pp. 70-71. Amendments not formulated by conventions are frequently made by popular vote.

[19] Pennsylvania in 1790. Georgia in 1789.

[20] Something is said about this in a later chapter of this work.

[21] "The absence of provision for alteration in the constitutions of 1776-77, should not be taken as an indication that their framers thought the regular legislatures competent to alter or establish constitutions, but rather that they did not consider the matter at all." Dodd, The Revision and Amendment of State Constitutions, p. 27.

[22] For the Delaware bill of rights, see Am. Hist. Rev., III, p. 641 ff. For illustrations of the prevalence of compact thinking, see the preamble of the Massachusetts Constitution, 1780, the preamble of the New Jersey constitution, 1776, and the Maryland declaration of rights, 1776.

[23] "Of the twelve commonwealths which, prior to 1787, had adopted constitutions, six had inserted ... a general distributing clause...." William Bondy, The Separation of Governmental Powers (Columbia University Studies in History, etc., V, no. 2), p. 19. Most states now have distributing clauses, and in all the general principle is recognized.

[24] Locke spoke of three powers — legislative, executive, and federative — but did not emphasize the necessity of separation on the lines known to our constitutions.

[25] See H. F. Russell Smith, Harrington and His Oceana a Study of a 17th Century Utopia and Its Influence in America, especially pp. 63-66, 192-194.

[26] "Indeed, the doctrine of the separation and balance of powers was proclaimed in Massachusetts before the Esprit des Lois saw the light. In 1742 the house of representatives in Massachusetts rejected the demands of Governor Shirley for a permanent salary on the ground that it 'would greatly tend to lessen the just weight of the other two branches of the government, which ought ever to be maintained and preserved; especially since the governor has so great authority and check upon them.'" W. S. Carpenter, "The Separation of Powers in the Eighteenth Century," Am. Pol. Sci. Rev., XXII, p. 37.


CHAPTER XII

THE ARTICLES OF CONFEDERATION

When Lee introduced into Congress the resolution for independence (June 7, 1776), it was accompanied by a resolution that steps be taken for the formation of a confederation of the states. The need of organization had long been in the minds of certain leaders, and Franklin the year before had brought in a plan based in some degree on the Albany Plan of 1754.[1] With his plan nothing of importance was done, though it evidently had influence on later proceedings; but after independence was declared, Congress began debating at length articles brought in by a committee [2] and commonly called the Dickinson draft. Pressure upon Congress, as well as some inherent difficulties in the problem, delayed the completion of the task, and consequently not until November, 1777, were the Articles finally adopted by Congress and submitted to the states.

With the announcement of independence, the problem of imperial organization crossed the ocean; it was no longer the problem of organizing the British empire or of ascertaining its constitutional structure, but of organizing America. Nevertheless, in many respects the problem was the old one; reduced to the lowest terms, it was at least the problem of arranging some practicable scheme in which the states would work together for common ends. For there was need of coherence in the war; and as time was soon to show, coherence in peace was quite as necessary and possibly more difficult to maintain. What were the elements in the task, if we take for granted that complete unification, complete absorption of the states into a unitary system, was impossible? The most troublesome problems were again the familiar ones; and central among them was the pivotal question of supply, of finding means of assurance that the states would furnish properly the men and the money for the general needs of the union. If they were to retain a large share of self-government, and of course that was inevitable, what authority should be allowed to the body representing them all? Everybody cried, as he had done twenty years before, that union was absolutely necessary; but when it came to plans of union, there was still distraction.[3]

It is possible that, if a system of union could have been decided upon immediately after independence was announced, the Articles of union would have contained no announcement of state sovereignty. In neither the Dickinson draft (July 12, 1776) nor the draft presented to Congress by the committee of the whole (August 20) was the sovereignty of the states specified; the articles submitted on the latter day declared: "Each State reserves to itself the sole and exclusive regulation and government of its internal police, in all matters that shall not interfere with the articles of this Confederation." [4] The opening paragraphs, it is true, might be construed to signify that nothing was contemplated but a working union of sovereign states. Such glimpses as we can get of the work of construction in the succeeding months, especially in 1777, appear to indicate that, when the Articles were made distinctly to conform to the idea of a coöperative system of sovereignties, the change was the product of a developing sense of separate independence or of growing suspicion. The finished Articles, as submitted to the state legislatures for adoption, announced in plain language the retention of sovereignty by the states.[5]

There were three points on which differences of opinion especially centered: (1) whether the states should have equal voting power in the Congress of the Confederation or should vote in proportion to their population or wealth or some such indication of importance and strength; (2) what should be the basis for determining how much each state should pay into the common coffers; (3) whether the states claiming vast stretches of western lands should continue to hold them in their possession; and this included the subordinate question — whether or not Congress should be given authority to limit the dimensions of the states.[6]

The debates on the first two questions are of interest to us because they brought out a number of the crucial problems that vexed the men who labored to form a union a decade later; [7] the larger states wished proportional representation; the smaller states wished equal representation. Were the states to be unequally taxed but to have equal voting power in Congress? The debate appears to have been earnest and searching. The outcome of the discussion was the provision that each state should have one vote in Congress, thus securing the complete equality of the states in voting power; but charges of war and all other expenses were to be supplied by the states in proportion to the value of land within each state granted to or surveyed for any person, and the improvements on such land. In other words, equality of the states was accepted as the basis of voting power in Congress, inequality was accepted as the basis for contributions to the treasury. This arrangement was sure to be distasteful to many, and in the long run it proved unsatisfactory. Franklin said in the course of the debates, as John Adams noted them: "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." [8]

The western land question presented special difficulty. A suitable solution of the problem was of immense importance. The Congress was engaged in a peculiarly difficult task; under any circumstances, the establishment of a union of states, each cherishing its own interests, must present serious obstacles. And if a union could be formed, what were the prospects that it would endure? In the days when the Confederation was under debate, the critical question was whether a union could be formed at all; and the difficulty of finding an affirmative answer seemed to turn in considerable measure on the dread of the landless states that the landed states would become wealthy and powerful and would overawe and mayhap impoverish their lesser neighbors. But if land were surrendered, it must be governed by somebody; so here again the states, seeking to form a union, were confronted by an essential part of the problem of imperial organization — the problem of imperial expansion. Some of the states claimed that their sea-to-sea charters gave them territory in the west; and New York made assertions of ownership of a considerable region. Other states were within definite limits; Rhode Island, New Jersey, Delaware, and Maryland were comparatively small in area. It is not strange that they should look with jealousy upon their neighbors claiming vast territory, the source of both wealth and power.

It seems remarkable now that the ownership of the transmontane region should have been so hotly contested during those perilous days when the real question was whether the British army would not beat down resistance and the rebellion against the mother country totally fail. But discussed it was; for this western question was a perplexing one, involving much more than merely fixing the western limits of the states. With the question of boundaries went the control of land purchases and the fixing of a land policy as well as direction and control of settlements that might be made beyond the mountains. From the beginning of colonial history, the frontier policy had been for each colony a matter of difficulty, and it was not so easy as it might now seem to cast aside traditions and at once transfer the whole — policy, hopes, plans, government, and lands — into the hands of a central authority as yet untried and indeed unformed. It was characteristic of American optimism, probably, to begin the counting of chickens before they had emerged from the shells.

The problem of the west was an old one, and, like so many others, was associated with the experiences of the old empire. The Albany Plan of Union had proposed a solution. The plan which Franklin presented to Congress in 1775 declared that purchases from the Indians should be made for the general advantage and benefit of the united colonies. The Dickinson draft of a confederation, presented in July, 1776, included even more definite proposals, but they were not included in the draft of the Articles submitted by the committee of the whole the next month. Among the states without large landed possessions, Maryland was the most critical of a system of union which would leave some of the states in possession of western territory. When the Congress was discussing the Articles in the autumn of 1777 — for little had been done during many months preceding — a proposal was offered for which Maryland alone voted (New Jersey's vote was divided): "That the United States, in Congress assembled, shall have the sole and exclusive right and power to ascertain and fix the western boundary of such states as claim to the Mississippi or South Sea, and lay out the land beyond the boundary, so ascertained, into separate and independent states, from time to time, as the numbers and circumstances of the people thereof may require".

The principle of the resolution is significant: the western settlements were not to be held in permanent subordination, but were to become in the course of time independent states, presumably members of the union with equal rights. The proposal, however, was unacceptable, at least as far as it contemplated giving at once to Congress the power to fix boundaries for the large landholding states. Instead of adopting the resolution, Congress added to that paragraph of the Articles which provided for the adjudication of controversies between states the following brief but peremptory statement: "provided, also, that no State shall be deprived of territory for the benefit of the United States." [9]

The Articles were adopted by the Congress, November 15, 1777, and two days later they went forth to the states. Some of the states accepted them fairly promptly, and their delegates signed the Articles Under authorization of their respective states. Various amendments were proposed, but the most important dealt with the necessity of settling the western question and especially securing for the use of the United States the crown lands from which revenue could be obtained for paying the debts incurred for the common cause.[10] Maryland renewed her request for power in Congress to ascertain and restrict the boundaries of the large landholding states, and this was supported by Rhode Island, New Jersey, Pennsylvania, and Delaware — none of them having claims to territory in the west. By midsummer of 1778 most of the states had given their assent to the Articles. New Jersey took the step later in the year and was followed by Delaware in May, 1779. Maryland was still obdurate.

The months went by. A union of all the states was highly desirable, not to say imperative; delay was dangerous. Some concession or compromise was necessary. New York, whose claims seemed rather more nebulous than those of the states which asserted rights under sea-to-sea charters, passed a legislative act (February 19, 1780) empowering her delegates "to limit and restrict" her western boundaries. Congress now (September 6, 1780) declared this act was calculated to "accelerate the federal alliance"; the states with western land claims were asked to remove the only obstacle to a final ratification of the Articles. October 10, 1780, Congress passed a momentous resolution: all unappropriated lands ceded to the United States should be disposed of for the common benefit of the United States, "and be settled and formed into distinct republican states, which shall become members of the federal union, and have the same rights of sovereignty, freedom and independence, as the other states". Early in the following year Virginia consented to cede her territory northwest of the Ohio River. She laid down certain conditions and these raised some difficulties which do not need consideration here. Maryland could now feel fairly certain that her chief purpose was attained, and her delegates were authorized to sign the Articles. When this was done (March 1, 1781), the Confederation was complete.

Of great consequence was the final organization of the union, defective though it proved to be; and important also was the spirit of conciliation and national sentiment on which the union rested. Of some consequence, too, was the fact that the thirteen commonwealths, bound in "perpetual" union, jointly possessed a large, unsettled region; such possession probably helped in the development of a sense of common interest and common responsibilities. But of supreme importance was the discovery of the principle of expansion, of nation-building. The principle announced by Congress in 1780 was carried into effect by the famous Ordinance of 1787. Passed in the last months of the dying Confederation, the Ordinance is to-day a lasting memorial, a proof that the Americans had learned a great lesson from their own history. In the building of an empire — though for the time the empire was a confederation of sovereignties — the new settlements should not be permanently treated as dependents unfit to associate on terms of equality with the older members of the union.

It is unnecessary to recount the steps by which the various cessions of western lands were made by the states. In the course of time, those steps were taken. It is significant, however, that the Articles did not contain a provision authorizing the Congress of the Confederation to hold and manage the common territory thus granted or to lay down laws and ordinances for the government of the western settlements. Such powers may, perhaps, be inferred from the general acquiescence in the fact of possession and the circumstances under which the Articles were adopted.

A further view of the Articles is necessary. In Congress and in the states, there appears to have been less discussion concerning the powers delegated to Congress than one might have supposed. Taught by experience in the old empire, by the necessity of carrying on the war, and by earlier plans or discussions of union, the delegates in Congress were enabled to work out the distribution of powers between the central authority and the states with some approach to precision. The powers granted to Congress bear a general resemblance to those exercised by the Crown and Parliament in the old colonial system in which the colonies had grown to maturity; and if one compares the Articles with the Constitution adopted at Philadelphia in 1787, he will find a considerable similarity in the scheme of distribution.[11] Time was to show the defects of the system; but the actual merits of the system agreed upon are noteworthy. No power to lay taxes was bestowed on Congress, and no power to regulate commerce, the two things about which there had been so much dispute in the preceding decade. These omissions were largely instrumental in bringing into existence the Constitutional Convention of 1787.

Without the consent of Congress, the states were expressly forbidden to send an embassy to a foreign state, receive an embassy, enter into any agreement with a foreign power, form any treaty of combination among themselves, maintain ships of war or troops in time of peace — though a militia must be provided and sufficiently armed — , or engage in war unless actually invaded or in immediate danger of Indian attack. All charges of war and other expenses incurred for the common defense and general welfare were to be defrayed out of a common treasury supplied by the several states. To Congress was given, among other powers, the general powers of determining on war and peace, carrying on foreign affairs, though with some restrictions, regulating the alloy and value of coin, fixing the standard of weights and measures, regulating the trade and managing all the affairs with the Indians "not members of any of the States", establishing and regulating post offices from one state to another, appointing important army officers and all naval officers, borrowing money, building and equipping a navy, and making requisitions upon the states for troops. For doing the most important things, the vote of nine states in Congress was required, practically a three-fourths vote of the thirteen, a restriction certain to make effective action difficult. No alteration of the Articles could be made unless it be agreed to in Congress and confirmed by the legislatures of all the states. A "committee of the states" could, in the recess of Congress, exercise powers intrusted to it by Congress with the consent of nine states, provided that no power for which the voice of nine states was necessary should be delegated to the committee. One of the delegates could be appointed "to preside" — the predecessor, in fact, of the president of the United States, who does not preside at all.

While the Articles granted to Congress considerable authority, its powers were qualified, in some respects carefully, for the protection of the states' rights. Although Congress was given power to enter into treaties, the states were not totally forbidden to lay imposts, but they were forbidden to levy such duties as might interfere with "stipulations in treaties entered into by the United States ... in pursuance of any treaties already proposed by Congress to the courts of France and Spain." Congress could make no treaty of commerce whereby the states should be restrained from imposing such imposts on foreigners as their own people were subjected to; and apparently the states could freely prohibit the exportation or importation of any kind of goods. The failure to grant Congress complete power to regulate commerce rendered it difficult or impossible to make a commercial treaty with a foreign nation and to have assurance that the states would comply with its provisions. The years that followed disclosed the fact that the want of authority to make treaties which would bind the states was one of the cardinal defects of the system.

This "firm league of friendship", which was declared to be "perpetual", contained significant provisions for mutual friendship and coöperation among the states. While, it appears, the states were separate sovereignties, or possibly it is more correct to say, because they were separate sovereignties, the Articles contained explicit provisions concerning the rights of the "free inhabitants" of one state within the limits of another state. Such persons were declared to be "entitled to all privileges and immunities of free citizens in the several states", to have free ingress and egress to and from the respective states, and to enjoy privileges of trade and commerce. Extradition was provided for, and full faith and credit were to be given in each state to the records, acts, and judicial proceedings of every other.

The importance of these provisions for interstate relationships is this: (1) they proposed a substantial basis for a league of friendship that might in reality be perpetual; without such conditions of reciprocal consideration and recognition of common rights and interests, no league could endure. (2) They appear in similar though not identical words in the Constitution of the United States. This latter fact makes it especially important to notice that the provisions in the Articles, later transferred to the Constitution and made law, are based on the supposition that the states stand in relation of one to the other as distinct sovereignties. Extradition, for example, is in general an international matter and based on treaty provisions; no nation is bound, by any principle of "good neighborhood", to turn over to another nation, on demand or request, a fugitive from justice. The Articles embrace this international provision; it is included in the Constitution as a legal obligation.[12] The quasi-international relationship of the states of the union is most plainly illustrated by the fact that the writs issued in one state do not run in another.

More important than all else is the provision, already referred to (which became constitutional law with the adoption of the Constitution), concerning the rights and privileges of the free citizens of each state in the several states. This provision rests on the supposition of state sovereignty — in the Constitution on partial or quasi-sovereignty. The rights of the "nationals" of one state when sojourning in another state are similar to those generally recognized by the principles of international comity. Thus, again, because the states of the American union passed through a period in which they were, or thought they were, separate sovereignties, interstate relations, as far as rights of individuals are concerned, are, under the Constitution as it stands to-day, in some important respects not unlike the relations between separate national states of the world. Certain fundamental civil rights and privileges which are commonly recognized by the civilized nations of the world at large and are accorded to their own citizens are also accorded to foreigners sojourning within their limits. A citizen of America going to Britain or France expects to find, and he does find, the same degree of protection to his person and property as that enjoyed by citizens of those nations; he may, for example, make use of the courts of a foreign nation for the assertion and maintenance of his rights. And in these respects the Constitution of the United States makes such protection and such privileges legally obligatory upon the states of the union in their treatment of citizens of the several states. No nation, no national state, enforces the penal laws of another. The same principle is true of the members of the American union. In civil matters, however, every civilized nation does recognize in its courts the rights of an individual which are based upon the law or spring from the law of a foreign state. The same general principles obtain in interstate law of the American union. Some of these principles of international comity are made legally obligatory by our constitutional system. Full faith and credit are by constitutional provision accorded in each state to the public acts, records, and proceedings of every other state.[13] But in the world at large the same recognition is commonly given (and given on the same principles) by one nation to the acts and judicial proceedings of another nation. Furthermore, the general principles of jurisprudence — within the field of what is called private international law or the "conflict of laws" — are recognized and applied when questions arise concerning the rights of a citizen of one state suing or sued in the courts of another, or concerning the rights which are based on the law of a state not the state of the forum. A right established under the law of Ohio, for example, will be recognized as a right when a suit is instituted for its protection in Great Britain.[14] The principles applied in a foreign state are similar to those which will be applied in a court of an American state in passing upon the rights of litigants, when the rights so claimed spring from the law of a member of the American union. "The judiciary power of every government", said Hamilton, "looks beyond its own local or municipal laws, and in civil cases, lays hold of all subjects of litigation between parties within its jurisdiction, though the causes of dispute are relative to the laws of the most distant part of the globe." [15] In making this statement, Hamilton was explaining the relationship between the federal and state courts, but he was also stating a general principle of jurisprudence. The thing to be emphasized here is the application of these principles to the interstate law of the American union in which the members stand in a quasi-international relationship.[16]

Among the duties assigned to Congress by the Articles of Confederation was that of acting as the last resort on appeal in disputes between two or more states. Under any conditions such disputes might arise, and in fact they did arise. If, as the Articles stated, the states were sovereign, and if there were no method for peaceful settlement, disputes might have to be settled by war, the time-worn method of trial by battle. The supervising authority of the Privy Council of the old empire, familiar to the men of America, may have had direct influence on the framers of the Articles; if so, it is one more evidence of the effects of the old colonial system. For carrying out this duty, Congress was authorized to act when any state should apply for a hearing. The states in disagreement might under the supervision of Congress appoint, by joint consent, commissioners or judges for hearing and deciding the controversy; but if such a method failed, because the states could not agree upon the tribunal, Congress was authorized to appoint, by a formal and cumbersome method, commissioners or judges with power to reach a "final and conclusive" decision. This provision for peaceful settlement of controversies between sovereign states was one of the most important provisions in the Articles; it at least proposed some method other than war. It foreshadowed one of the signally significant provisions of the third article of the Constitution of the United States.[17]

This fortunate and wise provision in the Articles was not allowed to lie idle. Pennsylvania and Connecticut had long indulged in acrimonious controversy over Connecticut's claim to territory in what is now northern Pennsylvania. On the petition of Pennsylvania, a court was set up at Trenton which in 1782 unanimously decided that the state of Connecticut had no right to the lands in controversy.

During the larger portion of the war and before the Articles went into effect, appeals of prize cases were passed upon by committees of Congress. The Articles gave Congress express authority to appoint courts for the trial of piracies and felonies committed on the high seas and to establish courts for determining appeals in all cases of captures. The states were making admiralty decisions in their own courts; and an appellate tribunal, if established under the authority granted by the Articles, was to have jurisdiction of cases appealed from the states. In 1780 Congress resolved to establish a court "for the trial of all appeals from the Courts of Admiralty in these United States". Judges were appointed. This Court in its day was the highest Court in the country, and the only appellate tribunal with jurisdiction over the whole United States.[18] Between the middle of September, 1776, and May, 1787, there were, it would appear, 109 cases which were referred to the Congress committee or brought directly to the Court of Appeals. Of this number fifty-six were lodged with the Court.[19] As a basis or a precedent for the Supreme Court of the United States and for the admiralty jurisdiction of the federal judiciary, the old Court of Appeals was doubtless of influence.

"Each State", said the Articles of Confederation, "retains its sovereignty, freedom and independence...." Were, then, the states sovereign? Did they have any sovereignty to be retained? Few questions in the world's history have been so thoroughly debated; debated chiefly by public men in practical political discussion, but discussed also by historians. The reason for the emphasis upon this question is not attributable to historical curiosity, but rather to the fact that it appeared to be of supreme consequence in any endeavor to decide whether the states, after the Constitution was established, were or were not sovereign. If the states were not sovereign in the years before the adoption of the federal Constitution, no one could reasonably assert their possession of sovereignty after adoption; but if they were sovereign before such adoption, then one may find the starting-point for an argument in behalf of state sovereignty afterwards.

A treatise on constitutional history may be expected to examine this problem and reach conclusions, but in any presentation of the subject there are difficulties to be met. Even if we should decide upon a definition of "sovereignty", we might be still faced with the difficulty of deciding where sovereignty actually resides at a given time; and this difficulty is especially evident in the period of the Confederation. In the course of American history men have differed, and still differ, in their opinions concerning the nature of sovereignty; they have not always known wherein their differences lay. They have often engaged in disputes concerning the question whether at a given time the states were or were not sovereign; this fact is for the historian of more real significance than is any rigid verdict which he may reach for his own edification or for the doubtful gratification of his readers.

In any attempt to decide where at a given moment sovereignty resides in any nation, the investigator is engaged in an historical task; he is using historical data; but his conclusion is within the field of law. Though he be a mere historian, he is under no obligation to withhold from his readers his own conclusion which is a necessary product of his historical study. To give a very simple, concrete example, he may assert or assume the obvious, viz.: that the United States has been a sovereign state since 1865, one of the sovereign national states of the world; the fundamental principle of its legal structure is that it is a single, legally-competent and self-contained body politic; as an historian, he is profoundly interested in discovering how this legal structure came to be and in showing the difficulties encountered in creating or maintaining it. In studying the course of American history, the historian will find his chief task not to establish a conclusion concerning which theory of the nature of the United States was right (legally speaking) and which was wrong, but to present actual differences of opinion as they arose and to mark out the presence of conflicting forces and tendencies.

The word "sovereignty" is still often used with little respect for any rigid definition. If we should, in obedience to the definition now commonly found in books on political theory, declare sovereignty to be the supreme and absolute power by which a state is governed or to be the authority to do anything and everything of a political nature, we should still be constrained to inquire whether the men of the Revolution thus used the term and accepted all its implications. And, indeed, as we shall see more fully later on, the historian will find that very many, if not all of the men of those days, did not have this conception of sovereignty. Thus, the history of the very idea of sovereignty enters into any proper discussion. If sovereignty implies the possibility of limited authority, if sovereignty, in other words, can be divided and still remain sovereignty, then a definition connoting completeness is inappropriate and inapplicable, if applied to the words of men of a century and a half ago.

Sovereignty, whatever it may be, is often, if not always, in conflict with actual conditions in the world. The word, certainly when used in the domain of international relations, implies that each member of the family of nations has complete freedom in determining its course of action; and yet, of course, no nation is in reality completely free, but only theoretically free or free legally speaking. One sovereign nation is supposed to be the equal of every other; but again this is a convenient (or inconvenient) supposition or an accepted fiction; one state can be equal with another only in legal competence, and often the facts go far toward invalidating even this presumption of equality. But, whether the above assertions concerning the difference between realities and legal suppositions be accepted or not, sovereignty can most properly be looked upon as authority, the possession of legal right, and not as actual power; one cannot say that a sovereign acts illegally or beyond its legal capacity, if sovereignty connotes unrestrained authority. This is true not only of a sovereign nation but also of the possessor of sovereignty within a given nation. In other words, actual power to do all political acts may be beyond the capacity of the sovereign, though he has the authority.

Though sovereignty is authority and the legal right to act, it is, nevertheless, sometimes necessary to consider actual capacity. It is sometimes necessary to find out from events, from real conditions, where sovereignty rests; in the course of a revolt within a nation, for example, one may wish to discover whether a revolution has taken place and sovereignty has changed its dwelling; or, if a separation of a people into two states is attempted by rebels, it is necessary to discover whether in the course of time they have ceased to be rebels and must be held to have established a new national state. Thus the legal theory as to where sovereignty resides may be damaged or overthrown by consideration of what really is.

Adhering to our belief that sovereignty belongs within the field of law, we may study the years between 1776 and 1788 with the intent to discover where, as America was then organized, sovereignty resided. Accepting for the moment the definition of sovereignty as complete authority, full legal right, can we decide where it rested? The evidence is confusing: at least able and honest men have differed in their conclusions. Even in the Constitutional Convention of 1787, there was a difference of opinion, some men holding that the states did not become sovereign when independence was declared, others seemingly (and one member plainly) asserting that the states did become separate sovereigns.[20]

Now the truth appears to the writer to be just this: it was a time of revolution and of reconstruction; and in consequence there was and is some uncertainty about the nature of the governmental system. The states frequently acted as if they had real authority and not merely nominal sovereignty. In the Articles of Confederation they announced their separate sovereignty, but their actual incapacity to act as independent sovereignties was often at variance with their presumption. The necessities of the situation indicated plainly that safety was in union, in coöperation; and so one may believe, if one chooses to do so, that the reality of interdependence was sufficient to overthrow any legal fiction of independence and separate existence.[21] There were, furthermore, strong ties that bound the states together, forces working through the social and economic order, forces that were powerful and likely to become dominant; certain realities were ignored by declarations concerning separate sovereign existence; and the real problem of the time, a compelling problem, was to bring political forms into accommodation with actual needs and with the dominating fact of interdependence and identity of interests. Again, whatever may be said on this harrowing question, another unavoidable fact is this: there had been union, a greater or less degree of coöperation, even though all the communities had, in contemplation of law, not been absorbed into one body politic. If anyone wishes to assert that the years between 1775 and 1789 were a period of transition, and that the difficulty of deciding upon the residence of sovereignty in the period in question is insurmountable — if anyone wishes to make such an assertion, the writer lays no indictment against him.

But someone may say that all this is avoidance or an apology for not answering the question whether the states were separately sovereign. To this it may be answered, the historian is under no obligation to answer the question. Could he fully present his evidence, his facts, he would be entitled, should it so please him, to leave the verdict to his readers. If, however, one must state an opinion, the writer of these lines is compelled to say that, if one adheres strictly to the conception of sovereignty as implying legal authority, then the only bodies whose doings must be held to be law, because those bodies did them, were the states; they possessed the technical legal authority. If such a conclusion is of value to anyone, he is welcome to it.[22] One cannot very well ignore the word "sovereignty" in the Articles; but one cannot be absolutely sure of the meaning of the word in the minds of men that used it; and one cannot, on the other hand, blind one's eyes to the fact that the states announcing their sovereignty were incompetent to act individually as completely self-reliant members of the family of nations.

In the days of the Revolution and the Confederation, the reigning philosophy was in conflict with the idea that complete unlimited authority could exist anywhere or be possessed by anybody. The conception of the organic or vital character of a body politic was not in accord with "social compact" thinking. Only when in later years men began to think of the state — meaning by the word "state" a body politic, or as we often now say, a nation — as a being possessed of life and will, only when they began to think of the vital source of authority behind all mandates, all agreements, all governments, did they begin to conceive with any clarity and definiteness of a complete and indivisible power. Some things were said in the Constitutional Convention of 1787 which appear consistent with the idea of indivisible sovereignty; but on the whole, it appears just to say, the idea in the minds of the men of that body was that compelling legal authority was to be exercised within given fields; one field was to belong to the national government, one to the states.


[1] Presented to Congress July 21, 1775. For Franklin's use of the New England Confederation and the Albany Plan of Union, see L. K. Mathews, "Benjamin Franklin's Plans for a Colonial Union, 1750-1775," Am. Pol. Sci. Rev., VIII, pp. 393-412.

[2] The committee was appointed June 12, 1776. It reported July 12, and the reported articles were discussed for some time thereafter. The committee of the whole, after discussing the report, submitted the amended scheme to Congress on August 20.

[3] Edward Rutledge wrote to John Jay as early as June 29, 1776: "I have been much engaged lately upon a plan of a Confederation which Dickenson has drawn; it has the Vice of all his Productions to a considerable Degree; I mean the Vice of Refining too much. Unless it's greatly curtailed it never can pass, as it is to be submitted to Men in the respective Provinces who will not be led or rather driven into Measures which may lay the Foundation of their Ruin.... The Idea of destroying all Provincial Distinctions and making every thing of the most minute kind bend to what they call the good of the whole, is in other Terms to say that these Colonies must be subject to the Government of the Eastern Provinces.... I am resolved to vest the Congress with no more Power than that is absolutely necessary...." Letters of Members of the Continental Congress (E. C. Burnett, ed.), I, pp. 517-518 (hereafter referred to as Burnett, Letters).

August 19 (?), 1776, Rutledge wrote to Robert Livingston: "We have done nothing with the Confederation for some Days, and it is of little Consequence if we never see it again; for we have made such a Devil of it already that the Colonies can never agree to it. If my opinion was likely to be taken I would propose that the States should appoint a special Congress to be composed of new Members for this purpose — and that no Person should disclose any part of the present plan. If that was done we might then stand some Chance of a Confederation, at present we stand none at all." Ibid., II, p. 56. This latter statement is interesting in light of what came eleven years later.

[4] The article in the Dickinson draft was slightly longer, but to the same effect.

[5] "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."

Of the article regarding sovereignty of the states, Thomas Burke of North Carolina wrote, "It stood originally the third article; and expressed only a reservation of the power of regulating the internal police, and consequently resigned every other power. It appeared to me that this was not what the States expected, and, I thought, it left it in the power of the future Congress or General Council to explain away every right belonging to the States and to make their own power as unlimited as they please. I proposed, therefore, an amendment, which held up the principle, that all sovereign power was in the States separately, and that particular acts of it, which should be expressly enumerated, would be exercised in conjunction, and not otherwise; but that in all things else each State would exercise all the rights and power of sovereignty, uncontrolled. This was at first so little understood that it was some time before it was seconded, and South Carolina first took it up. The opposition was made by Mr. Wilson of Pennsylvania, and Mr. R. H. Lee of Virginia; in the end however the question was carried for my proposition, eleven ayes, one no, and one divided. The no was Virginia; the divided New Hampshire.... In a word, Sir, I am of opinion, the Congress should have power enough to call out and apply the common strength for the common defence: but not for the partial purposes of ambition.... The inequality of the States, and yet the necessity of maintaining their separate independence, will occasion dilemmas almost inextricable." Thomas Burke to the Governor of North Carolina, April 29, 1777, in Burnett, Letters, II, pp. 345-346. Thus Burke clearly stated the gist of the problem of imperial organization.

"Since my last we have made no progress in the business of Confederation. A difficulty occurs, which, I fear, will be insuperable: that is how to secure to each State its separate independence, and give each its proper weight in the public Councils. So unequaled as the States are, it will be nearly impossible to effect this; and after all it is far from improbable that the only Confederation will be a defensive Alliance." Thomas Burke to the Governor of North Carolina, May 23, 1777, in Ibid., II, pp. 370-371.

[6] Burnett, Letters, II, p. xvi.

[7] As showing the interstate and intersectional jealousies, a letter of Richard Henry Lee (May 26, 1777) is especially illustrative: "Our enemies, and our friends too, know that America can only be conquered by disunion. The former, by unremitting art had endeavored to create jealousy and discord between the Southern and Eastern Colonies, and in truth Sir, they had so far prevailed, that it required Constant attention, and a firmness not to be shaken, to prevent the malicious act [art?] of our enemies from succeeding." Richard Henry Lee to the Governor of Virginia, in Ibid., II, p. 374. See also Burke's letter of February 10 (or 16), 1777, to the Governor of North Carolina, in Ibid., II, p. 257; Benjamin Harrison to Robert Morris, January 8, 1777, in Ibid., II, p. 208; Carter Braxton to Landon Carter, April 14, 1776, in Ibid., I, p. 421, a letter of an earlier date but not without significance for later times. From the notes of discussion in Congress taken by Jefferson, and from reports of certain speeches, we find Samuel Chase of Maryland distinctly asserting the cleavage between the larger and the smaller states on the subject of representation. See especially, Journals, VI, p. 1102. John Witherspoon of New Jersey said, "if an equal vote be refused, the smaller states will become vassals to the larger...." Ibid., VI, p. 1103. The problem of taxation and representation was rendered more difficult by the fact that the southern states had large numbers of slaves. One article in the earlier drafts of the Articles (July 12, 1776 and August 20, 1776) provided that all charges of war and other expenses should be defrayed out of a common treasury supplied by the several colonies in proportion to the number of inhabitants, except Indians not paying taxes.

[8] July 30, 1776. Journals, VI, p. 1079.

[9] For Maryland's position, see H. B. Adams, Maryland's Influence Upon Land Cessions to the United States (Johns Hopkins University Studies in Hist. and Pol. Science, third series, III, no. 1). The whole western question and the land cessions are ably discussed by B. A. Hinsdale, The Old Northwest. Burnett, Letters, II, contains valuable material.

[10] Rhode Island asked that all lands which before the war were the property of the Crown should be considered as the property of the United States, reserving to the states, however, within whose limits such crown lands might be, the jurisdiction thereof. New Jersey's wish was similar to that of Rhode Island. Journals, XI, pp. 639, 650.

[11] Reference has already been made to the Albany Plan of 1754, to Franklin's evident study of the New England Confederation of 1643, which did not expire until 1684, as well as to the actual practice of the old empire.

[12] The courts have not held that the federal authorities are under obligation to compel or to seek to compel rendition of a fugitive by one state to another at the latter's request.

[13] See Constitution, Art. IV, sec. I.

[14] A somewhat unique relationship in such matters exists between France and America, but it serves as an exception to prove the rule.

[15] The Federalist (1818 ed.), no. LXXXII, p. 446. See also John Marshall's speech in the Virginia convention, June 20, 1788. The Debates in the Several State Conventions, on the Adoption of the Federal Constitution (Jonathan Elliot, ed.), 1866 ed., III, p. 556. Hereafter referred to as Elliot, Debates.

[16] An illustration of the quasi-international relationship follows. In 1829, Justice Washington, giving the opinion and decision of the federal Supreme Court, said: "For all national purposes embraced by the Federal Constitution, the States and the citizens thereof are one, united under the same sovereign authority, and governed by the same laws. In all other respects the States are necessarily foreign to and independent of each other. Their constitutions and forms of government being, although republican, altogether different, as are their laws and institutions. This sentiment was expressed with great force by the President of the Court of Appeals of Virginia, in the case of Warder v. Arrell (2 Wash., 298); where he states that in cases of contracts, the laws of a foreign country where the contract was made must govern; and then adds as follows: 'The same principle applies, though with no greater force, to the different States of America; for though they form a confederated government, yet the several States retain their individual sovereignties, and, with respect to their municipal regulations, are to each other foreign.'" Buckner v. Finley, 2 Peters 586, 590-591. In this case the question was whether a bill of exchange drawn in Maryland upon a drawee in Louisiana was a "foreign bill". The Supreme Court decided that it was.

[17] For an interesting discussion of this subject, see R. G. Caldwell, "The Settlement of Inter-state Disputes," Am. Jour, of Int. Law, XIV, p. 38 ff.; A. H. Snow, The Development of the American Doctrine of Jurisdiction of Courts Over States, Publications of the American Society for Judicial Settlement of International Disputes no. 4 (May, 1911); also other pamphlets issued by the same society. Concerning the authority of the Privy Council, Caldwell has this to say: "It is safe to say that from the authority of this administrative body is derived the quasi-international authority of every federal court in the world, except the German Bundesrath whose power to settle the disputes of the members of the German Empire has a wholly distinct origin in the Diets of the Confederation and of the Holy Roman Empire." Op. cit., p. 39. He also mentions nine chief cases coming somewhat formally before the Privy Council in colonial days. Ibid. Only one of these, Penn v. Lord Baltimore, "came before an ordinary court in a fashion at all comparable to a modern case between two States in the Supreme Court of the United States." Ibid., p. 41. "These early settlements were evidently not in any sense international arbitrations, but had all the paternal character of administrative determinations both in their nature and results." But this "habit of looking to this common administrative court ... became a real though reluctant habit until almost the moment of war." Ibid., p. 41. Six disputes came before Congress before the Constitution was adopted. See Ibid., pp. 53-54 and J. C. B. Davis, "Federal Courts Prior to the Adoption of the Constitution," in an appendix to 131 U. S. Supreme Court Reports. In two of these controversies a court was agreed upon but it did not sit and render a decision in either case. But in the Pennsylvania-Connecticut case the court did sit and it rendered a decision. Since the adoption of the Constitution forty-five interstate controversies have come before the federal Supreme Court (to 1932). This statement is based upon data afforded by Professor Caldwell, in a personal letter, March 18, 1932.

[18] Davis, op. cit., pp. XXV-XXVI. The difficulty arising from the fact that the duty or the power to carry out the Court's decisions rested with state authorities is commented on by Davis. Ibid., p. XXIX. Cf. also, J. F. Jameson, "The Predecessor of the Supreme Court," Essays in the Constitutional History of the United States (J. F. Jameson, ed.), p. 1 ff.

[19] Davis, op. cit., p. XXXIV.

[20] See the statements of Luther Martin, James Wilson, Alexander Hamilton, and Rufus King, June 19; of Martin, June 20. Charles C. Pinckney, who had been a member of the Federal Convention, speaking to the South Carolina legislature, January 18, 1788, declared that the "separate independence and individual sovereignty of the several states were never thought of by the enlightened band of patriots who framed this Declaration [of Independence].... Let us, then, consider all attempts to weaken this Union, by maintaining that each state is separately and individually independent, as a species of political heresy...." Elliot, Debates (1863 ed.), IV, p. 301.

Among the many discussions of this subject the following may be especially useful: A. W. Small, The Beginnings of American Nationality (Johns Hopkins University Studies in Hist, and Pol. Science, eighth series, VIII, nos. 1-2); C. H. Van Tyne, "Sovereignty in the American Revolution," Am. Hist. Rev., XII, p. 529 ff.; A. H. Stephens, A Constitutional View of the Late War Between the States, I (the classic argument for continued state sovereignty, written by the Vice-President of the southern Confederacy); J. C. Calhoun, Works (R. K. Crallé, ed.), I; J. I. C. Hare, American Constitutional Law, I (opening discussion); Alexander Johnston, "Declaration of Independence," Cyclopaedia of Political Science (J. J. Lalor, ed.), I, p. 743 ff.; Alexander Johnston, "State Sovereignty," in Ibid., III, p. 788 ff.; and E. S. Corwin, National Supremacy.

[21] This is what Alexander Johnston means when he says, "... calling themselves sovereign did not make them so." "State Sovereignty," loc. cit., p. 791. If this sentence is at all reconcilable with the idea that sovereignty is legal authority, not full power to exercise it, we shall have to construe it as meaning that the states were so far incapable of acting as separate full-governing bodies that the assumption that they possessed sovereignty was invalidated.

[22] What will one do with a statement like this, which plainly declares that by the Confederation the people became one people? "AGAIN, the formation and completion of that social compact among these States, which is usually stiled the Confederation, is another instance of the great things our God has done for us. This is that which gives us a national existance and character.... By this event, the Thirteen United States ... became ONE PEOPLE." More than once the states together are spoken of by this author as constituting a "nation". John Rodgers, The Divine Goodness displayed, in the American Revolution (New York, 1784), p. 28 ff.


CHAPTER XIII

THE TRIBULATIONS OF THE CONFEDERATE PERIOD. THE CHIEF PROBLEM OF THE TIME

The vicissitudes of the years from the adoption of the Articles to the formation of the federal Constitution deserve more attention than can be given in these pages. Almost everything points in only one direction — toward the need of a competent central government and the necessity of finding a system of union which could maintain itself. Elaborate presentation of details is therefore for our purposes not required. The whole story is one of gradually increasing ineptitude; of a central government which could less and less function as it was supposed to function; of a general system which was creaking in every joint and beginning to hobble at every step. The men who came to Philadelphia in the spring of 1787 had learned the lessons taught by the failings of the Confederation.

One source of the difficulty was the Revolution itself. For the Revolution involved war; it started as a revolt against authority. It had deeply affected the old social order, and although, as we have pointed out, the philosophy on which the movement was founded had within it elements of stability and sobriety, the war left, as war always does, the combatants in a state of mental disquietude; social and economic foundations had been shaken; the full hopes of the conflict could not in the twinkling of an eye be gathered into reality. If a war is fought for liberty, why is it necessary to forge chains of perpetual union and obedience to government? Tom Paine's philosophy, which was permeated by the real spirit of real revolution, had gone beyond the limits of the older doctrines on which the social and political order was supposed to rest; for that ardent propagandist was not fond of picturing the state of nature as a place from which men had emerged for their own greater comfort and security; if his most widely trumpeted sayings are to be taken at their face value, all things which had grown up since the age of primeval bliss and serenity could have no real sanction for their existence, not even the sanction and support of time — "Government like dress, is the badge of lost innocence; the palaces of kings are built on the ruins of the bowers of paradise." Just how far this new state of nature and all the emanations of this tragic philosophy influenced the average man of those days, no one can say; but their presence is plain enough.

Furthermore, there was the age-old feeling that government is inevitably the enemy of man and not his servant. We cannot neglect the effect of the long struggle in history to curb government lest it act the tyrant. Government in America was not as yet securely in the hands of the people-at-large (if there be any such security anywhere at any time), but a long step forward had been taken. "It takes time", however, as John Jay remarked, "to make sovereigns of subjects" — a wise saying. It took time for the people to realize that the government was their own.

Interstate jealousy did not fail to add to the complexities of the situation.[1] The contest for local rights under the old imperial system had strengthened the sense of state reality; men were conscious of their states; the states were in a sense their own creation. It was difficult, after the strain of war had gone, to feel acutely the reality of America and the dependence of its members one upon another; and as the days went by disorganization rather than integration seemed to be gathering headway, until the more serious patriots and watchers of the night feared for the safety of their country. States with commodious harbors had an advantage over their neighbors, and they did not shrink from using it. Madison, speaking of this condition, declared that at one time "New Jersey, placed between Phila . & N. York, was likened to a Cask tapped at both ends: and N. Carolina between Virga . & S. Carolina to a patient bleeding at both Arms." [2] The experience of those years brought clearly home to thinking men the need of some general regulation of commerce.

The industrial and commercial conditions after the war were in considerable confusion. Readjustments were necessary, especially for the resuscitation of the New England shipping industry. Some improvement came fairly quickly, and there is evidence that by 1786 the clouds of depression were beginning to lift. But it was hard to make much headway, especially as Britain was not ready to treat her former colonies as if they deserved particular favors or consideration; they had made their own beds, now let them lie there — a condition of retirement not suited to the restless spirit of the New England skippers whose ships were soon plowing the seas, even on to the Orient as well as to the ports of continental Europe. Commercial treaties were desirable, and some steps were taken in that direction; but it was hard to do anything effectively as long as the individual states could not be relied on to fulfill their obligations. Foreign nations naturally queried whether America was one or many, or, perhaps, one to-day and thirteen to-morrow.

The treaty of peace was not carried out. Britain still held the western posts from Lake Champlain to Mackinaw and thus retained control of the northern fur trade and influence over the Indians. Spain holding the mouth of the Mississippi was unwilling to allow free navigation through her territory. Trouble was brewing because of American treatment of the loyalists and because the stipulation in the treaty, that there should be no lawful impediment to the collection of debts due British creditors, received no particular attention. John Jay declared in 1786 that the treaty had been constantly violated by one state or another from the time of its signing and ratification. The Barbary powers, eager to take advantage of a helpless country, to seize American seamen, and to hold them for ransom, entered upon the game with lusty vigor. A nation which was not yet a nation in terms of law and political authority could do nothing to resist scorn and humiliation.

The pivotal problem, the immediate and unrelenting problem, was how to get revenue for the pressing needs of the Confederation. Financial affairs were in a pitiful shape and conditions daily grew worse. At the end of active hostilities the situation was bad enough. "Imagine", wrote Robert Morris who had charge of the newly-created office of superintendent of finance, "the situation of a man who is to direct the finances of a country almost without revenue (for such you will perceive this to be) surrounded by creditors whose distresses, while they increase their clamors, render it more difficult to appease them; an army ready to disband or mutiny; a government whose sole authority consists in the power of framing recommendations." [3] Conditions did not improve; gloom deepened into darkness. The continental paper money ere long became a joke; and the returns from requisitions upon the states soon were lamentably inadequate. A committee of Congress reported in 1786 that the amount received in fourteen months was not sufficient for the "bare maintenance of the federal government on the most economical establishment, and in time of profound peace." [4] The sums due for interest on the domestic and foreign debts were piling up to staggering heights and even the principal of the debts — for, strange as it may seem, Congress had succeeded in borrowing — was increasing ominously. Morris had by this time resigned; he did not wish to be a "minister of injustice." Congress was at its wit's end. "... the crisis has arrived," a committee announced, "when the people of these United States, by whose will, and for whose benefit the federal government was instituted, must decide whether they will support their rank as a nation, by maintaining the public faith at home and abroad; or whether, for want of a timely exertion in establishing a general revenue, and thereby giving strength to the confederacy, they will hazard not only the existence of the union, but of those great and invaluable privileges for which they have so arduously and so honourably contended."[5]

At the very beginning, indeed before the Articles had been signed by the delegates from Maryland, Congress submitted to the states an amendment (February 3, 1781) vesting in Congress a power to levy a duty of five per cent. on imported goods, with a few exceptions, and a like duty on "prizes and prize goods". The monies arising from the duties were to be used for discharging the principal and interest of the public debts. The amendment was not adopted, one state, Rhode Island, failing to ratify. Two years later a similar attempt to obtain revenue was made. In an amendment proposed at this time, certain commodities were designated with various rates of duties; on all other goods a five per cent. duty was provided for; the proceeds were to be applied to the discharge of the debts, but the duties were not to be continued for more than twenty-five years. The states were also recommended to take steps for appropriating annually for a like term of years the sum of $1,500,000, the amount to be apportioned among the states. This amendment met the same fate as its predecessor.

In 1784, an amendment was submitted to the states which, if it had been ratified, would have given Congress certain powers over the regulation or restraint of foreign commerce. "Unless the United States in Congress assembled", it was declared, "shall be vested with powers competent to the protection of commerce, they can never command reciprocal advantages in trade; and without these our foreign commerce must decline & eventually be annihilated...." The amendment was ratified by only two states.

Within the individual states, paper money added to the confusion and made recovery of economic stability difficult. Some of the states refused to be drawn down into the whirlpool; but seven of the thirteen had entered upon the scheme. The wise and proper way to get out of debt was to resort to the printing-press; for what forsooth did free government exist? "Choose such men", said one voice crying from the wilderness of poverty and debt, "as will make a bank of paper money, big enough to pay all our debts, which will sink itself (that will be so much clear gain to the state)".[6] Without question, the debtor was in a bad way; but associated with this sort of appeal for relief were all the uneasy spirits whose attitudes of mind, when minds they used, were inimical to steady economic well-being and to stable and competent government. Whether one approves or disapproves the content and the agitation of the whole controversy, the fact remains that conditions were fraught with peril, a peril enhanced by the poverty of debtors and by the mental and spiritual disquietude which, as we all know, are the fruits of war and the companions of the ensuing peace.

Social unrest passed beyond the grumbling stage in Massachusetts where Shays's rebellion broke out and aroused the anxieties of the conservatives from one end of the continent to the other. Its chiefest interest to us lies in the fact that it unquestionably had the effect of prompting men of mind as well as men of property to strengthen the union and to create self-respecting government. "There are combustibles in every State," Washington wrote in 1786, "which a spark might set fire to." "Good God!" he exclaimed, lamenting the disorder, "Who, besides a Tory, could have foreseen, or a Briton predicted them?" John Marshall, writing to James Wilkinson early in 1787, said, "I fear, and there is no opinion more degrading to the dignity of man, that these have truth on their side who say that man is incapable of governing himself. I fear we may live to see another revolution." [7]

After this hurried view of the conditions during the so-called "critical period", we may now turn to a consideration of the political system to discover what the leaders of the time believed to be the trouble and especially to see what remedies they proposed. We have already seen that Congress had proposed amendments to the Articles authorizing the collection of customs duties to be used by Congress for defraying the debts of the union, and we have seen that in each case the amendment failed of ratification. These proposals showed the necessity of congressional income, not dependent on state caprice; a conspicuous defect in the Articles was the absence of congressional authority to obtain necessary funds; the old trouble of the taxing power in an imperial system remained. At sundry times the rights and authority of Congress and the character of the Confederation were discussed in Congress and beyond its doors. The proposals and announcements disclose the compelling nature of a serious problem and they bring before us the question of national existence as that question appeared to leading statesmen of the time.[8]

Almost immediately after Maryland's delegates had signed the Articles, a committee of Congress reported that by article thirteen a general and implied power was vested in Congress to carry all the Articles into effect against any state refusing or neglecting to abide by them; that no particular provision had been made for that purpose, and that therefore an amendment should be added fully authorizing Congress to use "the force of the United States" to compel a "State or States to fulfil their federal engagements...." At that early date the need of compulsion was seen by a congressional committee including James Madison who presented the report. This report, sent to a grand committee, resulted in a full presentation (August 22, 1781) of what were believed to be requisites for "execution" of the Confederation; it was also recommended that certain additional powers should be given to Congress, notably the authority "To distrain the property of a state delinquent in its assigned proportion of men and money." Thus again, the central problem of imperial organization — how to secure supplies for the maintenance of the system — came up for solution, and the proposed solution was the use of force, or at least the seizure of property. These proposed amendments were not presented to the states for ratification.

Men interested in public affairs were actively discussing the nature and the defects of the union. Pelatiah Webster, an able publicist, issued A Dissertation on the Political Union and Constitution of the Thirteen United States in which he pointed out the necessity of vesting the power of taxation in what he called "The supreme authority"; this authority should have sufficient power to enforce obedience to treaties and alliances. "No laws of any State whatever," he declared, "which do not carry in them a force which extends to their effectual and final execution, can afford a certain or sufficient security to the subject". With this in mind, he proposed naively that every person, "whether in public or private character, who shall, by public vote or other overt act, disobey the supreme authority, shall be amendable [sic] to Congress," and shall be haled before that body to be fined or imprisoned, "on due conviction".[9] Hamilton in 1783 drafted resolutions "Intended to be submitted to Congress, but abandoned for want of support." He enumerated at length the defects of the Confederation, and made a severe arraignment of the system. The first defect consisted in "confining the power of the Federal Government within too narrow limits". The whole discussion or criticism is extremely interesting to anyone wishing to study the nature of Hamilton's political thinking as well as the critical problem of the time. He plainly objected not only to the inconsistencies of the Articles, but to the impracticability of their effective operation. In 1785, Noah Webster, in his Sketches of American Policy, announced a doctrine which by that time must have been fairly familiar, at least to those willing to think: "... in all the affairs that respect the whole, Congress must have the same power to enact laws and compel obedience throughout the continent, as the legislatures of the several states have in their respective jurisdictions." [10]

Of most significance, however, is the report (August, 1786) of a grand committee of Congress of which Charles Pinckney of South Carolina was chairman.[11] It is important because Pinckney was an influential member of the Convention which met a few months later and drew up the Constitution of the United States. Early in 1786 Congress, in the manifesto mentioned on a previous page, had in a most solemn manner exposed the deplorable and perilous condition of the union. "Oh! my country!" said Jeremy Belknap, "To what an alarming situation are we reduced, that Congress must say to us, as Joshua did to Israel, 'Behold, I set before you life and death.' " [12]

The report of the committee is a sad commentary on the moribund Confederation, for if the proposed remedies had been administered, the result might well have been sudden demise in the place of lingering death. Congress was to be given the power to regulate interstate and foreign trade, with the consent of nine states, and the power of levying additional requisitions in the way of punishment upon any state not promptly complying with requisitions for men or money. If the delinquent and disobedient state should persist in its conduct, while the majority had lived up to their obligations, then Congress should have power to levy and collect taxes and in the last extremity compel the local officers in the delinquent state to do their duty; should such a step prove ineffective, then Congress might itself appoint assessors and collectors. If there were further opposition to congressional authority, the conduct on the part of the state should be considered "an open violation of the federal compact." All this is an exposition of a desperate condition, for the ultimate remedy must be no remedy at all, but only a solemn declaration that a disobedient state had broken its promises; and yet the amendments contained provisions for compulsion upon the states by using every conceivable means of coercion short of sending troops into the state — if perchance the troops could be found ready to seize the property of citizens. The committee also proposed as amendments to the Articles that Congress be granted the power to institute a federal judiciary and to provide for securing the attendance of delegates in Congress; if such delegates did not attend, or if they withdrew, they should under certain circumstances be "proceeded against", provided punishment should extend no further than disqualifications to be delegates or to hold any office under the United States or any state.

Nothing could more amply demonstrate the feebleness and distraction of Congress and the necessity for energetic reform, if the union was to last many days. The cumbersome methods proposed for getting money, the practical admission of a continuing and probably inescapable refusal of the states to comply with reasonable requests to defray the absolutely necessary common expenses, and above all, the more pitiful suggestion of measures which might induce members from the states to come to Congress and attend to business, were a confession of masterly incapacity.

Another source of anxiety was the light-hearted way in which treaties were regarded by the states. John Jay, the Secretary for Foreign Affairs, on whose shoulders rested much of the wearying responsibility of the time, persuaded himself, or tried to, that treaties, when once made, were binding on the states and were part of the "laws of the land" — a significant expression. "Your secretary considers the thirteen independent sovereign states as having, by express delegation of power, formed and vested in Congress a perfect though limited sovereignty for the general and national purposes specified in the confederation. In this sovereignty they cannot severally participate (except by their delegates) or have concurrent jurisdiction.... When therefore a treaty is constitutionally made, ratified and published by Congress, it immediately becomes binding on the whole nation, and superadded to the laws of the land, without the intervention, consent or fiat of state legislatures." [13] In March, 1787, resolutions were passed by Congress declaring treaties "constitutionally made" were "part of the law of the land"; the states were called upon to repeal acts violating the treaty with Britain and to direct the state courts to adjudge cases in accord with the treaty, "any thing in the ... acts to the contrary ... notwithstanding." [14]

But what was the very center of the difficulty? What was the chief problem of the time? The trouble and confusion were manifestly caused by the failure of the states to abide by their obligations. The problem was to find a method, if union was to subsist at all, for overcoming the difficulty, to find therefore some arrangement, some scheme or plan of organization wherein there would be reasonable assurance that the states would fulfill their obligations and play their part under established articles of union and not make mockery of union by willful disregard or negligent delay. That was the chief problem of the day. The need of granting certain powers to Congress was plain; in other words, the distribution of powers between the center and the parts was imperfectly provided for in the Confederation. The distribution of powers, however, did not constitute the radical difficulty. If additional "powers" were granted Congress, could there be any assurance that the old trouble would not immediately arise? To the men of 1786 — such men as were anxious for national stability — the real remedy appeared to be some application of force, the coercion of recalcitrant states, something more than the grant of naked authority to the central organ of union. The problem of imperial order had been reduced in some respects to fairly simple terms; if the task of distinguishing between powers was no longer especially troublesome, the question remaining was perplexing: could the states be held together in a firm and effective union and what arrangement could be made for securing or assuring obedience to their obligations as members of the union? Plainly enough the men of the time — the men of course who really thought — were troubled and perplexed; but few of them could even then see much further than the need of compulsion — the use of force against disobedient states.[15]

But the year of gloom was not allowed to pass utterly without hope or light. Virginia and Maryland had been discussing troublesome questions concerning the navigation of the Potomac. But if two states could consult upon matters of mutual interest, why not more than two? Out of these conferences, therefore, came the Annapolis convention in the autumn of 1786. Five states were represented, and a report was drawn up proposing a convention "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 federal government adequate to the exigencies of the Union...." The proposal, submitted to the states, was sent to Congress which (February 21, 1787) passed a resolution in substantial accord with the recommendation from the Annapolis gathering. A method was thus found for stabilizing the union and for saving it from complete disintegration, saving the new-born United States from becoming "one of the most contemptible nations on the face of the earth." [16] Eager nationalists were anxiously at work during the months that followed; and when May came, the prospect of effective results appeared bright; at least there was ground for hope.


[1] "Il règne dans la formation de ces Etats un vice radical qui s'opposera toujours à une union parfaite, c'est que les Etats n'ont ré-ellement aucun intérêt pressant d'etre sous un seul chef." Otto, French charge d'affaires, to comte de Montmorin, April 10, 1787. See The Records of the Federal Convention of 1787 (Max Farrand, ed.), III, p. 16.

[2] See Madison's preface to the debates in the Federal Convention, Documentary History of the Constitution, III, p. 7. The preface was written at a later time but Madison's general description of conditions is valuable. See also a letter from Madison to Jefferson, March 18, 1786, in Charles Warren, The Making of the Constitution, p. 16.

[3] Letter from Morris to Franklin, January 11, 1783, in The Revolutionary Diplomatic Correspondence of the United States (Francis Wharton, ed.), VI, p. 203.

[4] February 15, 1786. Journals of Congress (1823 ed.), IV, pp. 619-620.

[5] February 15, 1786. Ibid., IV, p. 620.

[6] New Haven Gazette, March 22, 1787. Quoted in O. G. Libby, Geographical Distribution of the Vote of the Thirteen States on the Federal Constitution, 1787-8 (Bulletin of the University of Wisconsin, Economics, Political Science, and History Series, I, no. 1), p. 58.

[7] Letter from Marshall to Wilkinson, January 5, 1787, in Am. Hist. Rev., XII, p. 348. This coincidence of Washington's and Marshall's sentiments is instructive, if one would understand the later career of each. Marshall seems never to have forgotten the privations of Valley Forge or the menace of Shays's rebellion.

[8] A very useful collection of proposals of this kind is Proposals to Amend the Articles of Confederation, 1781-1789 (American History Leaflets, A. B. Hart and Edward Channing, eds., no. 28).

[9] This plan of Webster contained much more than is indicated in the text above; but the declaration concerning the necessity of force is the thing I wish to stand out clearly. Some other statements, however, are interesting as indications of his idea of sovereignty: "A number of sovereign States uniting into one Commonwealth, and appointing a supreme power to manage the affairs of the union, do necessarily and unavoidably part with and transfer over to such supreme power, so much of their own sovereignity [sic], as is necessary to render the ends of the union effectual.... In like manner, every member of civil society parts with many of his natural rights, that he may enjoy the rest in greater security under the protection of society." Italics of the original omitted. Thus Webster thinks a commonwealth can be made by the uniting of sovereign states; but these sovereign states may give up only a portion of their sovereignty (in other words, sovereignty is divisible); and the "supreme power" is evidently only supreme in the powers thus granted.

[10] A sentiment of almost exactly the same character came from Washington — one of those indications of the clearness with which he could sum up a situation without mincing phrases: "I do not conceive we can exist long as a nation without having lodged some where a power, which will pervade the whole Union in as energetic a manner as the authority of the State governments extends over the several States." George Washington, Writings (W. C. Ford, ed.), XI, pp. 53-54. The emphasis of Webster's document was on the need of effective power. To each state, in his opinion, might be left its "sovereign right of directing its own internal affairs; but give to Congress the sole right of conducting the general affairs of the continent." He thus advocated by the division of sovereignty an organization with effective force at the center.

[11] George Bancroft, History of the Formation of the Constitution, II, pp. 373-377.

[12] Letter of March 9, 1786, in Mass. Hist. Society Collections, fifth series, II, part 1, p. 431.

[13] Secret Journals of the Acts and Proceedings of Congress, IV, pp. 203-204. Cf. Constitution, Art. VI, para. 2. A committee report to the Congress of the Confederation, discussed March 26, 1784, contained the following provision: " 'That these United States be considered in all such treaties, and in every case arising under them, as one nation, upon the principles of the federal constitution' ". A motion was made to strike out this instruction. On the question, shall it stand, the vote stood: New Hampshire, Massachusetts, New York, New Jersey, Pennsylvania, Maryland, Virginia, North Carolina, South Carolina, aye; Rhode Island, Connecticut, no. Secret Journals of the Acts and Proceedings of Congress, III, pp. 452-454.

[14] Journals of Congress (1823 ed.), IV, pp. 730, 737.

[15] Perhaps some of them did. Washington's statement quoted in note 10 (ante) may possibly be so interpreted. Noah Webster appears to me to have been nearest a grasp of a solution of the problem. But the way in which that solution was finally found is a most interesting study; and the study awaits us on the succeeding pages of this work. If the rule of apportioning requisitions were made "plain and easy," and if "refusal were then to follow demand," Richard Henry Lee declared, "I see clearly, that no form of government whatever, short of force, will answer...." "Do you not think, sir, that it ought to be declared, by the new system, that any State act of legislation that shall contravene, or oppose, the authorized acts of Congress, or interfere with the expressed rights of that body, shall be ipso facto void, and of no force whatsoever?" Letter from Lee to George Mason, May 15, 1787, in K. M. Rowland, The Life of George Mason, II, pp. 105, 107. Jefferson wrote to Madison from Paris, June 20, 1787, suggesting appeals from state courts to a federal court. Jefferson, Works (federal ed.), V, p. 285. See also a letter from Richard Henry Lee to Madison, November 26, 1784, in The Letters of Richard Henry Lee (J. C. Ballagh, ed.), II, p. 307.

[16] Letter from William Grayson to Madison, March 22, 1786. Quoted in George Bancroft, History of the Formation of the Constitution, I, p. 258.


CHAPTER XIV

THE FEDERAL CONVENTION I: DETERMINATION TO FOUND A NATIONAL GOVERNMENT

Seventy-four delegates were appointed to the Convention;[1] nineteen for one reason or another did not attend; thirty-nine signed the document which resulted from nearly four months of discussion. Rhode Island did not deign to participate, and the delegates from New Hampshire did not come until July 23, after the Convention had decided some of its most difficult problems. The early and, indeed, the conspicuously troublesome questions were therefore passed upon by delegations from eleven states. Many of the members had had political experience. Even at that time, when men were not affected as we are likely to be by tradition, there was a general acknowledgment of the ability and rectitude of the delegates. America, in a crisis, had chosen her best.

One fact is very evident in the Convention's work — results were reached by debate, by interchange of opinion, by deliberate but earnest consideration of problems. There was little or no declamation for its own sake. Conclusions were the product of discussion; and the reader of the debates can to-day see the gradual unfolding of principles and institutional forms as the weeks went by. This means, of course, that no faction worked its will and no leader dominated the rest. Not one delegate envisaged in advance the whole system and all the fundamental principles on which it rested. For once at least in the course of history, opinions were formed and changed as the result of argument.

The most conspicuous, and perhaps the most influential, member of the Convention was Washington. He had hesitated to accept the appointment, but had finally done so; his presence gave prestige to the Convention and calmed apprehensions of people who feared a plot or some ruthless attack upon their liberties. He was no great student of political theory or of history, but he had grasped the essentials of the problem of national organization as few others had done. "... my wish is," he wrote Madison, before the Convention met, "that the convention may adopt no temporizing expedients, but probe the defects of the constitution to the bottom, and provide a radical cure, whether they are agreed to or not." America, then in the process of construction, was his country. Though he spoke but once on the floor, of his position on certain essential and critical questions there is no doubt. He allied himself with the national party and appears to have supported Madison's views in particular.[2]

The leader on the floor and in some ways the most effective man in the Convention was Madison. For a considerable time his mind had been absorbed with the problem of national reorganization; he came prepared for his work. Without eloquence, as the word is commonly used, he could speak with cogency and skill. No one saw more clearly into the complexities of the problem or the general nature of the solutions that must be reached. He had examined the ancient leagues and pondered the lessons of their history. He had analyzed the defects of the Confederation and found no sanction, no compelling power. "A sanction", he said, "is essential to the idea of law, as coercion is to that of Government." He believed in the need of framing a new constitution, not merely amending the Articles, and in a letter to Washington, written a month before the Convention met, he used these especially significant words: "Conceiving that an individual independence of the States is utterly irreconcileable with their aggregate sovereignty, and that a consolidation of the whole into one simple republic would be as inexpedient as it is unattainable, I have sought for middle ground, which may at once support a due supremacy of the national authority, and not exclude the local authorities wherever they can be subordinately useful." In a letter to Jefferson, then in Europe, he spoke of the expediency of laying "the foundation of the new system in such a ratification by the people themselves of the several States as will render it clearly paramount to their Legislative authorities." [3] In letters to others [4] he outlined with a remarkable approach to accuracy the main features of the Constitution as it finally came from the hands of the framers.

In the Pennsylvania delegation were two men who labored ably for union and competent government. James Wilson, a Scotchman by birth who had studied in the universities of his native country, had a remarkably clear, critical mind; he was strongly national in his sympathies and stands beside Madison as one of the two strongest thinkers in the Convention. On more than one occasion he marked out with special clarity the nature of the Convention's task and the general principles on which the new system should rest. Gouverneur Morris, eloquent, active-minded, at times caustic and aggressive, played a prominent role. He, too, toiled valiantly for an effective national government. Madison in later years spoke of the "brilliancy of his genius" and of his readiness to surrender hastily-formed opinions. To him Madison also ascribed the "finish given to the style and arrangement of the Constitution" in its final form; but there is evidence of Wilson's participation in this task of final revision, and perhaps his share was even greater than that of Morris.[5]

The New York delegation was composed of three men; two of them, Yates and Lansing, were anxious to guard the states against encroachment. They were associated in their beliefs and fears with Governor Clinton of New York and the group who were charged, not unjustly, with setting up an "idol of State Sovereignty".[6] A third member was Alexander Hamilton, an able advocate of efficient government and a coherent union. Seven years before the Convention met he had spoken of the necessity of "a solid coercive union",[7] and somewhat later he said, "there is something ... diminutive and contemptible in the prospect of a number of petty States, with the appearance only of union, jarring, jealous, and perverse, without any determined direction, fluctuating and unhappy at home, weak and insignificant by their dissensions in the eyes of other nations." [8] His views in certain respects were so extreme — some of them perhaps put forth in the Convention chiefly to arouse discussion — that they had little if any effect. A proof of his amazing genius is seen in his defense of the Constitution when it was finished and presented to the states for ratification, and especially in the articles of supreme power and intelligence which he contributed to The Federalist; but his work in the Convention itself was not significant.[9] His colleagues in the New York delegation disagreed with him; with the apparent exception of one day he was absent for six weeks (June 29 to August 13); when he returned, his colleagues had left the Convention (July 10), and the vote of the state was not cast.

Connecticut sent three able men, Roger Sherman, Oliver Ellsworth, and William S. Johnson. In the earlier days they took a stand against the radical or advanced plans and purposes of the nationalist leaders, but they were not narrow-minded men hemmed in by local patriotism or petty state jealousy. William Paterson was the most important delegate from New Jersey. When the great principle of nationalism was under discussion and the leaders of the Convention seemed to be on the verge of carrying out their will without effective opposition, he became the prominent protagonist for the cause of the smaller states and the advocate of the principles of the Confederation. The Maryland delegation was so made up that on certain critical questions the votes of its members were equally divided; Luther Martin, a lawyer of marked ability, an active defender of the states, labored valiantly against what proved to be the Convention's will. From Delaware came John Dickinson, the "Penman of the American Revolution". Of the South Carolina delegates John Rutledge and Charles Pinckney were the more effective men. The latter, then only twenty-nine years of age, had had valuable experience in Congress and had taken particular interest in the establishment of a competent government.[10]

The Convention was summoned to meet on the second Monday of May, which fell on the fourteenth. Only a few of the delegates arrived promptly. While waiting for the arrival of other delegates and the organization of the Convention, the members from Virginia set to work on a plan for new articles of union. Virginia felt especially responsible for the meeting and her representatives thought it best to have definite proposals for presentation.[11] Whatever others might think, they were not content with mere amendments for patching up the Confederation. To James Madison, it is fair to assume, we owe a good part of the first plan that was drawn up for the Convention's deliberations.

Eleven days after the time appointed for meeting, seven states were represented and the Convention was organized (May 25), electing George Washington as the presiding officer. Soon after formal organization, rules of procedure were adopted providing, among other things, that nothing spoken in the house should be printed or otherwise published or communicated without leave, and that no copy be taken of any entry on the journal during the sitting of the house without its leave. This injunction of secrecy was obeyed with a remarkable fidelity. Rumors concerning the Convention's labors circulated occasionally beyond the statehouse walls, but the actual work of the assembly went forward undisturbed by popular clamor and apparently uninfluenced by the curiosity of the public. The reason for this secrecy is obvious; it enabled the members to speak plainly, if they would; it prevented tentative or vaguely-formed proposals from going forth to the press; it precluded the likelihood of prejudice or opposition based on incomplete evidence, and it allowed the Convention to present its conclusions. Though leaders proposed at the beginning to correct and enlarge the Articles of Confederation, the plan they entered upon was so different from that of the Articles that they might well have feared an outcry of protest from the public had their purpose been fully exposed to view.

The journal of the Convention, kept by the Secretary, William Jackson, was meager; in some respects he was an untidy workman. If we had nothing else but this official journal on which to rely, we should to-day be almost as uncertain as were the people of that earlier day concerning the nature of the discussions, and we should have only a dim idea of what went on behind the closed doors and under the seal of secrecy. Fortunately the indefatigable Madison was at hand. Day by day with great patience and with consummate skill he wrote down not only motions and votes, but also the arguments of the various speakers. All of it was done with clarity and precision and — what is more remarkable — with candor and freedom from petty jealousy.

In addition to Madison's Notes we have other sources of information, but they are relatively unimportant. Yates of New York made fairly full notes, but he was not present after July 10. His minutes were published in 1821. Luther Martin, reporting to the Maryland legislature, gave in his Genuine Information an account of what took place and presented his interpretation of the proceedings of the Convention and the purposes of its leaders; this statement was printed, soon afterwards. In later years Madison criticized the statements of both Yates and Martin. Yates, he said, was inaccurate and in some cases did injustice to the arguments and opinions of particular members; and still, when later revising his own manuscripts, he added a few of Yates's statements. Martin's report betrayed "feelings which had a discolouring effect on his statements." The criticisms seem to be essentially just; there is value in the work of both of these men, but no one probably would suspect Martin, an able, determined, and rather truculent advocate, of possessing a high degree of objectivity, the quality which gives Madison's Notes peculiar worth. Within recent years, a few notes and other papers, some of them apparently rather hastily written or prepared as memoranda for debate, have been made available — notes by King of Massachusetts, McHenry of Maryland, Pierce of Georgia, Paterson of New Jersey, Hamilton of New York, and Mason of Virginia —; not one of them adequately covers any considerable portion of the Convention's proceedings; they do, however, throw light on episodes in the Convention's work. To this list should be added certain papers showing the work of the important committee of detail. There are a few other stray papers of no great significance.

Thirty years after the Convention met, John Quincy Adams, then Secretary of State, was assigned the task of preparing for publication the formal official journal — and a task it proved to be. The volume was printed in 1819. Though inaccurate in some respects (most of the inaccuracies being of slight importance), and though extremely brief, it remained for years the only continuous and authoritative statement of the Convention's proceedings. After Madison's death, which occurred in 1836, his papers were purchased by the government and the Notes were printed four years later. We find, therefore, this very important fact: during fifty years of our history, politicians, statesmen, and judges relied (if they relied on any source at all) on entirely insufficient, partial, and in some respects prejudiced accounts of the proceedings and debates. The great decisions of John Marshall, the speeches of Hayne and Webster, the theories and pronouncements of Calhoun, were all made with nothing like the information that might have been gained had Madison's Notes been published. Story's Commentaries appeared in their first edition three years before Madison's death. Important as these facts are, it may be even more interesting to notice how little intelligent use was made of the invaluable information furnished by the Notes after they had appeared in print.[12]

If the Convention's job had been confined to the formation of a thoroughly competent government, theoretically sound and capable; had its problem been only that of establishing a completely centralized system, the difficulties would have been sufficient to tax the intelligence of statesmen. But in this instance the problem to be solved was more subtle and more complex. The members found themselves engaged in the task of constructing a new kind of body politic, neither a centralized system on the one hand nor a league or confederation on the other. Certain minor problems, as we shall see, were perplexing and to them was given much discussion — for example, the method of choosing the executive — , but the really difficult job was to form a strong and infrangible union without destroying the states as integral, and, in many respects, autonomous parts of an integral system. The solution of this problem was the signal contribution of the Convention to the political life of the modern world. To aid them, the members had the practices of the old empire, as we have already seen; they had in addition their own experiences in the Revolution and under the Articles of Confederation; their most immediate source of knowledge was the failure of the Confederation to function; to this failure the delegates in the Convention frequently referred; it furnished the most convincing lesson.

In one matter — the distribution of powers between the states on the one side and the central government on the other — the old empire and the Articles furnished them with lessons of organization. But the principle of union and the method of its maintenance had to be worked out, hammered out, in the processes of debate. Our first and most important work, therefore, is to point out in the course of the succeeding pages how that particular task was done. The great achievement was to solve the problem of imperial order, the problem which Parliament had found itself incapable of solving and which now remained for the Americans themselves, a problem calling for supremely intelligent statesmanship and no longer to be avoided.

The "main business" of the Convention was opened by Randolph, who made an effective speech and presented a plan of union which had been sketched by the Virginia delegates.[13] He pictured the existing situation and especially showed the defects of the Confederation and the necessity of change in certain essential respects. The fourth and fifth defects, as Madison noted them, are peculiarly important — "the foederal government could not defend itself against the incroachments from the states", and "it [presumably the Articles] was not even paramount to the state constitutions, ratified as it was in may [sic] of the states." It is difficult to find any interpretation of this brief statement except one signifying the belief of the Virginia delegation that the new scheme of union was to be based on a constitution, which, as far as it went, was to be superior to the state constitutions.

Though skillfully prepared, the Randolph or Virginia plan, which was soon taken as the basis of the Convention's work, was in some respects only a fairly elaborate outline. It declared the need of correcting and enlarging the Articles of Confederation, and then at once announced "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...." It provided for a bicameral legislature, the members of the first branch to be elected by the people, the members of the second to be chosen by those of the first, out of a number of persons "nominated by the individual Legislatures...." The assignment of powers to the national legislature was stated in general but fairly comprehensive, though indefinite, terms. Its general principle was clear: "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...." The plan provided for a national executive and a national judiciary; the executive and a convenient number of the judiciary were to form a "council of revision", empowered to examine every act of the national legislature before it should "operate, and every act of a particular Legislature before a Negative thereon shall be final;" the dissent of this council was to "amount to a rejection," unless the legislature passed the act a second time or the act of a state legislature was "again negatived by [] of the members of each branch."

Other portions of the plan need not be recited; but it is important to notice that the "amendments" made to the Confederation by the Convention were, after approbation of the Congress of the Confederation, to be passed upon by an assembly or assemblies of representatives, "recommended by the several Legislatures to be expressly chosen by the people...." In other words, the work of the Convention was to be presented as offering amendments to the existing system; but it was to stand on the will of the people and not on the authority of the state governments. This plan evidently proposed the establishment of something more than a union of sovereign states acting through a body of delegates to an international conference. The provision for proportional representation from the states was of signal importance. The idea was not new; it was to be found in the Albany Plan; it had been discussed in the Continental Congress; and now because of the fears and forebodings of the small states, it was certain to become a center of controversy. Viewed as a whole, the Randolph plan makes plain the intention of the Virginia delegates not to be content with mere "temporizing expedients".

The proposal to establish a national government with power to do all things which the states were incompetent to do may be considered in itself an answer to what I have called the "chief problem", as conditions appeared to the thoughtful men of the day anxious for union and peace. If such a government could be founded on the popular will, the customary readiness of the states to disregard their obligations might be obviated. But in addition to the distinct establishment of a national system, the Virginia plan contained three explicit answers to the problem: (1) the national legislature was empowered "to negative all laws passed by the several States, contravening", in its opinion, "the articles of Union...." (2) It was empowered "to call forth the force of the Union against any member of the Union failing to fulfill its duty under the articles thereof." (3) The "Legislative Executive and Judiciary powers within the several States ought to be bound by oath to support the articles of Union".

Of these three explicit proposals for means of assuring the obedience of the states to their obligations, only one, the third, found its way into the finished Constitution; there it stands to-day, as it has for a century and more, as a sign of moral and legal obligation to maintain the federal system. The fate of the other two provisions will be presented in subsequent pages. The three together furnish conclusive evidence of the fear of dissolution of the union, and fear that the union would be but a shadow as the old one had proved to be, because the states had refused or neglected to perform their duties.

When Randolph had finished, with an exhortation not to suffer the opportunity of establishing peace and harmony to go by unimproved, his plan was referred to a committee of the whole. A "draught of a federal Government", prepared by Charles Pinckney, was also presented and was likewise referred. Just what this latter plan contained we do not know. What has been frequently printed as the Pinckney plan is certainly not what the ardent young statesman of South Carolina actually laid before the Convention.[14] When John Quincy Adams was editing the Secretary's notes thirty years after the Convention adjourned, he wrote to Pinckney and received from him a document which Adams placed in the edited journal as the Pinckney plan. It is quite inconceivable that Pinckney, or anyone else, could have presented to the Convention at the beginning a series of proposals so closely resembling the finished Constitution as does the pseudo-plan which Adams inserted in the journal. The paper on which the "plan", as Adams received it, was written, bore the watermark of the year 1797, and therefore no great amount of historical criticism is needed to decide the document to be not the original but at the best a copy. Pinckney himself, a year after the adjournment of the Convention, wrote to a correspondent that he had no copy of his plan in his possession. From available authentic materials we can reach reasonably certain conclusions concerning the character of the original plan; it proposed not mere amendments to the Confederation, but the establishment of a real government and one, at least in some particulars, endowed with powers and authority.

The committee of the whole went in session the next day (May 30) and immediately took up the Virginia plan as the basis of deliberation. At the beginning of those deliberations a significant step was taken. There were some members who thought it wise to commit the Convention at the outset to fundamental principles.[15] The first resolution of the Virginia plan, indicating the purpose of the Convention, declared the need of correcting and enlarging the Articles of Confederation. Randolph, on the suggestion of Gouverneur Morris, moved the postponement of this resolution in order that three new resolutions might be considered which would announce in general but explicit terms the intention of the Convention. Postponement was agreed to. The first two of these resolutions were strangely similar; each in substance repeated the other: no union of states "merely federal", no treaty or treaties among the states as individual sovereignties would be sufficient to accomplish the objects "proposed by the articles of Condeferation [sic], namely common defence, security of liberty, and general welfare." These two resolutions were passed over without much discussion; but the third, which indeed stated affirmatively the principle of the earlier two, was taken up for more careful consideration. Though possibly its full import can be seen only when examined by the side of the other two, the meaning of the third resolution is perfectly plain: "that a national Government ought to be established consisting of a supreme Legislative, Executive and Judiciary." [16]

Discussion of the third resolution followed, less however, Madison tells us, "on its general merits than on the force and extent of the particular terms national and supreme." Charles Pinckney asked Randolph whether he meant to abolish the state governments. Randolph replied "that he meant by these general propositions merely to introduce the particular ones which explained the outlines of the system he had in view." The question and answer are significant: just what did the establishment of a supreme national government imply? Did it involve the disappearance or the total absorption of the states? In the weeks following that problem proved to be, as we have already indicated, difficult and perplexing.[17]

"Mr. Gouverneur Morris explained the distinction between a federal and national, supreme, Government; the former being a mere compact resting on the good faith of the parties; the latter having a compleat and compulsive operation." The word "federal", which we now use as synonymous with "national", was then used in its original sense (Latin, foedus, treaty). Mason at once struck at an essential fact; admitting the deficiency of the Confederation in not providing for coercion and punishment of delinquent states, he "argued very cogently that punishment could not in the nature of things be executed on the States collectively, and therefore that such a Government was necessary as could directly operate on individuals, and would punish those only whose guilt required it." By "States collectively" he evidently meant states in their corporate characters as distinguished from the individuals composing them. Sherman was hesitant; acknowledging that the Confederation was defective and that additional powers were necessary, he stated — and the statement is important — that in no case ought the general and particular jurisdictions to be concurrent; he was indisposed to make too great inroads on the existing system, "intimating as one reason, that it would be wrong to lose every amendment, by inserting such as would not be agreed to by the States".

The third resolution, as given above, was adopted; six states voted in the affirmative; one, Connecticut, in the negative; New York was divided. So at the very beginning, the Rubicon was passed. The Convention decided not merely to add powers to the Congress of the Confederation but to frame a government national in scope and character. Long days of discussion followed; but there is not a scintilla of evidence that the Convention turned its back upon the purpose distinctly laid down on the thirtieth of May. State jealousies and anxieties, local pride, and fear of an overawing national authority were still to be dealt with; but the majority adhered to its purpose of establishing a system which would not be a mere league of sovereigns.

Difficulty, however, lay immediately ahead; to vote for an efficient government and even for one founded on national principles was one thing; but if nationalism meant unequal representation of the states in the national legislature, any plan of proportional representation was certain to arouse the amour propre of the small states; the old fears and jealousies would be awakened. There arose therefore not only the question of the independence and sovereignty of the states, but also the natural unwillingness of some of the delegates to favor a plan which would diminish the consequence and prestige of their respective states. A small and weak state wished to hold up its head as the equal of a richer and more powerful neighbor.[18] This dread lest the stronger states oppress the weaker was of long standing; it had shown itself especially in the formation of the Confederation, when states, notably Maryland, had hesitated to sign the Articles because of the power and influence of their larger landholding neighbors; it proved to be of consequence in the Convention's labors. The grouping of the states was not quite the same as it had been ten years before; but in general the same feeling of state pride and the same feeling of foreboding on the part of the less populous or less powerful states rendered the task of forming an effective union a difficult one.

The full meaning and implication of proportional representation were however clearly brought forth in this early discussion, for "Mr. Madison observed that whatever reason might have existed for the equality of suffrage when the Union was a federal one among sovereign States, it must cease when a national Government should be put into the place." But the Delaware delegates were restrained by their commission "from assenting to any change of the rule of suffrage.

[]. " And so the matter was postponed for later consideration. During the next few days the discussion — still in the committee of the whole — was devoted to various points of interest. The Virginia resolutions were taken up one by one and conclusions were reached which, however, had to be debated again and in some respects modified in later days. The subjects debated in these early days we may pass over with only a few words of comment, though some of them were of crucial importance. Wilson made a number of especially able speeches from which we can cull a few significant sentences: "If we are to establish a national Government, that Government ought to flow from the people at large." "Federal liberty is to States, what civil liberty, is to private individuals. And States are not more unwilling to purchase it, by the necessary concession of their political sovereignty, that [sic] the savage is to purchase Civil liberty by the surrender of the personal sovereignty, which he enjoys in a State of nature." Pointing to a principle which proved to be fundamental in the scheme of imperial order ultimately agreed upon in the Convention, he said, "All interference between the general and local Governments should be obviated as much as possible."

The resolution providing for the adoption of the new Constitution by conventions of the people was not debated at length, but in the course of the discussion Madison presented the necessity for this method of ratification, if the new government was to have substantial authority: "he thought it indispensable that the new Constitution should be ratified in the most unexceptionable form, and by the supreme authority of the people themselves." [19] The resolution for popular ratification was passed (June 12), six states voting in the affirmative; Connecticut, New York, and New Jersey in the negative. Delaware and Maryland were divided.[20] That ratification by the people would place the Constitution above state laws was clearly presented, and, it would seem, thoroughly understood. Thus by the very force called into operation for establishing the Constitution, the chief problem of the period found a partial answer: the new union arising immediately from the people was no longer to be a submissive and humble suitor dependent on the whims, negligence, and changeful humors of state governments.

But the basis of representation in the national legislature could not be indefinitely postponed; that particularly difficult bridge had to be crossed. Despite opposition which had not, however, reached its most formidable stage, a decision was reached not to follow the old rule of equal votes in the legislature; proportional representation in both branches of the legislature was decided upon. Franklin's assertion, at an earlier time, that a system founded on injustice could not last, was in process of fulfillment. The alignment of the states on this question is significant: on the question of proportional representation "in the first branch", seven states voted in the affirmative — Massachusetts, Connecticut, Pennsylvania, Virginia, North Carolina, South Carolina, Georgia. New York, New Jersey, and Delaware voted in the negative. Maryland was divided. The vote of Connecticut is specially significant because it is plain that as early as this her delegation was ready to accept proportional representation in one house, if equal representation in the other should be granted. Dickinson had expressed belief in the advisability of a similar adjustment.[21] When the question of representation in the second branch came to be voted on, the states were grouped much as before; but Connecticut voted for equal representation, as did Maryland, no longer divided.

Quite plainly, at the end of two weeks of debate the Convention contained two groups differing in opinion on certain pivotal if not absolutely essential matters. On the one side were Massachusetts and Pennsylvania and the four states south of the Potomac. They favored a system involving the principle of nationalism and they defended a method of representation and a mode of ratifying the Constitution which were consistent with the existence of a national government.

Made up of states large in population or area, this group had shown a certain degree of solidarity and unity of purpose. They objected to a system of equality in representation which would allow the inhabitants of a state like Delaware as much power in the government as that of its more powerful neighbors. If all were to be citizens of the United States under a common government, then the number of citizens within a given area should naturally indicate the proportional number of representatives in the national legislature.

The small-state group — Connecticut, New Jersey, Maryland, Delaware, New York — gradually hardening into a fairly efficient opposition was less coherent and less clear in its views than was the other. The vote of Maryland had so far proved to be uncertain. As Hamilton could make no headway against the two other delegates from New York, the vote of that state was frankly against the purpose and designs of the nationalists. Connecticut was open to reason, but its members were determined not to accept a plan of organization which would belittle the states or leave them helpless.[22] New Jersey stood for the principles of the Articles of Confederation.

In the course of the first fortnight many fundamental questions were touched upon — in fact nearly all of the most essential principles and differences of opinion were brought into view, though not fully discussed. On the whole, the nationalists had had their own way. Much remained to be done; but the leaders had some ground for expecting a speedy and successful conclusion of their labors. Unanimity, however, could scarcely have been hoped for. There were differences of opinion which must be reconciled and harmonized to save the Convention from shipwreck.

II: CONTROVERSY AND COMPROMISE; THE ESSENTIALS OF FEDERALISM; COERCION OF LAW AND NOT OF ARMS

The committee of the whole presented to the Convention (June 13) nineteen resolutions, the product of its consideration of the Virginia plan. These resolutions provided for a national government, a bicameral legislature based on proportional representation in both branches, a national executive, a national judiciary to consist of one supreme tribunal, power being given to the national legislature to appoint inferior tribunals, and submission of the Convention's work to assemblies chosen by the people. There were other not unimportant provisions. The whole, though still general in its terms, constituted a substantial scheme for a lasting and workable union. The resolutions included the proposal to grant to the legislature the power to negative state laws "contravening in the opinion of the National Legislature the articles of Union, or any treaties subsisting under the authority of the Union." The proposal of the Virginia plan to bestow upon the national legislature the authority to coerce the delinquent states was not included in the committee's resolutions.

At this juncture, the report of the committee of the whole having been presented, Paterson told the Convention that it was the wish of "several deputations, particularly that of New Jersey," to have further time to consider the committee's report, and "to digest one purely federal, and contradistinguished from the reported plan." The request having been granted, he laid before the Convention (June 15) a set of resolutions which he wished to be substituted for the plan "proposed by Mr. Randolph." The delegates from Connecticut, New York, New Jersey, Delaware, and "perhaps", says Madison, "Mr Martin from Maryland",[23] appear to have participated in the preparation of these resolutions. The defenders of this "federal" scheme of organization — the word "federal" being used to signify a plan of confederate organization — differed, as we have already said, in their main purposes. Dickinson said to Madison: "you see the consequence of pushing things too far. Some of the members from the small States wish for two branches in the General Legislature, and are friends to a good National Government; but we would sooner submit to a foreign power, than submit to be deprived of an equality of suffrage, in both branches of the legislature, and thereby be thrown under the domination of the larger States." [24] He had at an earlier time opposed "consolidation of the States into one great Republic", and had advocated equal representation in one branch of the legislature.[25] Plainly there was no unity or agreement in the small-state group in behalf of the whole scheme of maintaining the essential principle of the Confederation, the political equality and unimpaired sovereignty of its members. Some of the small-state men were ready for national government, provided the states were not destroyed. Could the problem be solved?

The small-state plan proposed to amend the Articles of Confederation by giving additional powers to Congress. It bestowed upon that body authority to regulate foreign and interstate commerce, to levy import and stamp duties, and to make rules and regulations for their collection. In this way it proposed adding to the existing government — if Congress can be called a government — the two essential powers without which any system of union would be weak and probably helpless. Congress, by this plan, was also authorized to resort to the old method of making requisitions upon the states and "to direct the collection thereof" in any state not complying within a specified time; the requisitions were to be in proportion to the whole number of white and other free inhabitants and three-fifths of all other persons except Indians not paying taxes. There was a provision for a federal executive and a judiciary. But even this scheme of bolstering up the old federal union had to face the vexing possibility of a state's disregard of obligations — "the chief problem" once more. What answer did the New Jersey plan contain? It contained a declaration, which will be discussed later, that the acts of Congress and treaties should be "the supreme law of the respective States so far forth as those Acts or Treaties shall relate to the said States or their Citizens, and that the Judiciary of the several States shall be bound thereby in their decisions, any thing in the respective laws of the Individual States to the contrary notwithstanding...." But the plan included another answer — the use of force; coercion, appearing at first in the Virginia plan, but abandoned after brief discussion in the committee of the whole, was embodied in the New Jersey plan: "if any State, or any body of men in any State shall oppose or prevent the carrying into execution such acts or treaties, the federal Executive shall be authorized to call forth the power of the Confederated States, or so much thereof as may be necessary to enforce and compel an obedience to such Acts, or an Observance of such Treaties." Even the small-state party saw that the union could not survive, if reliance were based entirely on the whims or the temperamental inclinations of the several states. Both the national plan, when first presented, and the state sovereignty plan contemplated the use of force to maintain the union.

One may inquire whether even the plan of the small states, purporting only to amend the Articles, really conserved the principle of the Articles and left the Confederation a union of sovereignties. But the mere grant of powers to Congress and even the authority to collect requisitions would not necessarily imply the transformation of the Confederation into something more, something in essence quite different. Furthermore, though the proposal of the particularists authorizing coercion of states is important, it does not imply legal nationalism; the use of armed force against a state as a corporate body was thoroughly consistent with the principle of state sovereignty.

The debates of the next three days (June 16, 18, 19) were crucial and critical. Would the committee of the whole adhere to nationalism or be content with modification of the Confederation? The issue was by no means entirely new. At an earlier session, Paterson had declared the Convention's powers were limited to amendment of the Articles. Referring to the wishes of the people, the commissions under which the delegates acted, and the sentiments of the states, he said: "The idea of a national Government as contradistinguished from a federal one, never entered into the mind of any of them.... We have no power to go beyond the federal scheme, and if we had the people are not ripe for any other.... A confederacy supposes sovereignty in the members composing it and sovereignty supposes equality." To this Wilson had replied, "If New Jersey will not part with her Sovereignty it is in vain to talk of Government." [26] That was the issue in these three eventful days of debate.

The advocates of state sovereignty made an able defense. The Paterson plan, said Lansing, "sustains the sovereignty of the respective States, that of Mr. Randolph distroys it...." And Paterson declared, "If the sovereignty of the States is to be maintained, the Representatives must be drawn immediately from the States, not from the people: and we have no power to vary the idea of equal sovereignty. The only expedient that will cure the difficulty, is that of throwing the States into Hotchpot" — equalizing the states or making one geographic and political whole as the basis of political nationalism. Meeting the assertions of the small-state group, Randolph declared in a powerful and appealing speech, "The true question is whether we shall adhere to the federal plan, or introduce the national plan.... We must resort therefore to a national Legislation over individuals, for which Congress are unfit.... A National Government alone, properly constituted, will answer the purpose; and he begged it to be considered that the present is the last moment for establishing one. After this select experiment, the people will yield to despair." Madison and Wilson subjected the Paterson proposals to searching analysis and criticism, pointing to their radical defects.

The issue was clearly stated. On the question whether the Randolph plan "should be adhered to as preferable" to that of Paterson, seven states voted in the affirmative — Massachusetts, Connecticut, Pennsylvania, Virginia, North Carolina, South Carolina, Georgia. New York, New Jersey, and Delaware voted in the negative; Maryland was again divided. So by a conclusive majority, but in the face of strong opposition, once again the committee of the whole decided in favor of a national system. The vote of the Connecticut delegates shows once more the readiness to favor an effective government, and more than that, a system avowedly national. If they had participated in drafting the state sovereignty plan, they cast aside their own handiwork; as we shall see, however, they were still determined not to allow the states to be overwhelmed. The report of the committee of the whole was now before the Convention, and in the following sessions all its parts and all its principles were vigorously debated.

The day after the critical vote was taken and the nationalists had won a victory, which, as far as principle was concerned, appeared decisive, Ellsworth (June 20), seconded by Gorham of Massachusetts, moved that the first resolution of the plan, which was then before the Convention, be changed so as to read: " 'the Government of the United States ought to consist of a supreme legislative, Executive and Judiciary'." This change, he explained, "would drop the word national, and retain the proper title 'the United States.' ... He wished also the plan of the Convention to go forth as an amendment to the articles of Confederation, since under this idea the authority of the Legislatures could ratify it. If they are unwilling, the people will be so too.... He did not like these [state] conventions.... They were better fitted to pull down than to build up Constitutions." To this proposal Randolph replied that he "did not object to the change of expression, but apprised the gentleman who wished for it that he did not admit it for the reasons assigned; particularly that of getting rid of a reference to the people for ratification." The Ellsworth resolution was thereupon unanimously adopted.[27]

This dropping of the word "national" was in after years cited as positive proof of the Convention's change of heart — proof that the members had decided to abandon the aim of the nationalists and to form a constitution on the basis of state sovereignty. Such an assertion could not, with any show of reason, have been made except on the basis of the published journal (1819) and Yates's minutes, which gave only in the meagerest possible terms the fact of the formal omission of the word so objectionable later to the ardent apostles of state sovereignty. But even these sources of information, when the time and the circumstances are considered, should have led one to doubt the sudden alteration of the Convention's purpose. The national plan had just been accepted by seven states of the eleven present, the vote of one state being divided. To suppose immediate retraction and sudden yielding to the particularistic group is to suppose the impossible; and Madison's Notes, already quoted, prove that there was no such retraction or surrender. Furthermore, the plan of ratification by the people was later adopted, and as a matter of fact, though this is not important, the word "national" was used in debate, but not of course in formal resolutions.

The rejection of the Paterson plan did not entirely discourage the small-state party. At intervals during the next fortnight the vexed subject of proportional representation arose, a subject, it will be remembered, which involved theoretically the surrender, or the diminution, of state sovereignty, but also touched the amour propre of the smaller states. Some members, who were not localists by prejudice and principle, feared lest the states be totally submerged.

The question of representation became connected with the resolution, already passed by the committee of the whole and in accordance with the Virginia plan, to establish a legislature of two branches. Declaring that "the true question here was, whether the Convention would adhere to or depart from the foundation of the present Confederacy", Lansing proposed (June 20) that the powers of legislation be vested in the United States in Congress — that is to say, in a single body similar to the Congress of the Confederation. To this Mason objected, saying that the mind of the people was well-settled in an attachment to republican government and to more than one branch in the legislature. Sherman, however, though supporting Lansing, expressed a willingness to compromise: "If the difficulty on the subject of representation can not be otherwise got over, he would agree to have two branches, and a proportional representation in one of them, provided each State had an equal voice in the other." This proposal was not, as we have seen, original with Sherman, nor was it confined to the Connecticut delegation, though that delegation seems to have been specially interested in it.

Obviously, some of the men fearing the larger states and quite unwilling to see the smaller states totally robbed of equal power in the national councils might be content with something less than complete victory. Lansing's proposal as given above — that legislative power be vested in the United States in Congress — was defeated by the customary majority — the six large states voting against it. Connecticut, New York, New Jersey, and Delaware voted in its favor; Maryland was divided. This vote registered the decision of at least six states not to be content with a unicameral legislature; and on the true question underlying it all — whether the Convention would or would not depart from the fundamental principle of the Confederation — the particularists had once more suffered defeat. But the question still remained whether the Convention, by direct affirmative vote, would decide upon two legislative branches in the proposed national system. The very next day (June 21) the affirmative resolution to establish a legislature of two branches was passed by a vote of seven to three (Maryland again divided). This time Connecticut voted with the large states.

Though much remained to be done and anxious days were ahead, the Convention had now reached a position — as yet perhaps not fully seen by its members — which deserves careful examination. The problem of representation was not fully disposed of. The large-state or national party had been moving victoriously forward. Were its plans to be carried through to the end? And, if carried through, just what did that success imply? The Convention was now approaching the center of the complicated problem of imperial organization. As we have already pointed out several times, the task of forming a national government and of bestowing upon it powers sufficient to guarantee effective life to the system was naturally troublesome and perplexing: but the critical matter was to provide not only for an effective government but also for the preservation of the states as political bodies which would be more than administrative districts.

The problem of establishing a federal republic, as distinguished from one purely national, could not be solved by destroying the states. So thoroughly had the Convention determined upon a national system that before the end of June the question was not whether the states should be united in an integral union but whether they should be placed at the mercy of a central government. At least one member of the Convention saw the real nature of the problem and was able to state it clearly. Probably others were equally aware of the difficulty and recognized its critical character, but Johnson of Connecticut stated it exactly: "On a comparison of the two plans which had been proposed from Virginia and New Jersey, it appeared that the peculiarity which characterized the latter was its being calculated to preserve the individuality of the States. The plan from Virginia did not profess to destroy this individuality altogether, but was charged with such a tendency. One Gentleman alone (Colonel Hamilton) in his animadversions on the plan of New Jersey, boldly and decisively contended for an abolition of the State Governments. Mr. Wilson and the gentleman from Virginia who also were adversaries of the plan of New Jersey held a different language. They wished to leave the States in possession of a considerable, though a subordinate jurisdiction. They had not yet however shewn how this could consist with, or be secured against the general sovereignty and jurisdiction, which they proposed to give to the national Government. If this could be shewn in such a manner as to satisfy the patrons of the New Jersey propositions, that the individuality of the States would not be endangered, many of their objections would no doubt be removed. If this could not be shewn their objections would have their full force. He wished it therefore to be well considered whether in case the States, as was proposed, should retain some portion of sovereignty at least, this portion could be preserved, without allowing them to participate effectually in the General Government, without giving them each a distinct and equal vote for the purpose of defending themselves in the general Councils."[28]

Whatever we may think of Johnson's suggestion of state participation in the general government, he comprehended clearly the problem of preserving the states as political entities.

Wilson and Madison tried to answer Johnson's question. Neither believed the states were in danger. "The General Government", said Wilson, "will be as ready to preserve the rights of the States as the latter are to preserve the rights of individuals...." Madison concluded that "Guards were more necessary against encroachments of the State Governments — on the General Government than of the latter on the former.... Were it practicable for the General Government to extend its care to every requisite object without the coöperation of the State Governments the people would not be less free as members of one great Republic than as members of thirteen small ones." Evidently Madison was still impressed with the danger of dissolution, the product of state heedlessness and willful pride.

The Convention had been in session for a month and the crucial question of representation was not yet disposed of. It was brought up for settlement June 27, on a resolution for proportional representation in the first branch of the national legislature. In opposition, we need to remember, were the proponents of state sovereignty, those not especially addicted to a principle but because of state pride unwilling to surrender equality, and others like Johnson fearing lest the states be totally submerged. So critical did the situation seem to be that after the debate had continued some time, Franklin, asserting his belief "that God governs in the affairs of men", proposed that the Convention henceforth open its sessions with prayers "imploring the assistance of Heaven...." But the members feared "disagreeable animadversions"; the public might believe the calling in of divine guidance due to embarrassments and dissensions. Within the Convention Williamson remarked, however, that "the true cause of the omission could not be mistaken. The Convention had no funds." Could no minister be unearthed in Philadelphia who would pray for his country without price?

Opening the discussion on this salient matter of representation in Congress, Martin, in a speech which lasted three hours on one day and was continued on the day following (June 27, 28), presented "at great length and with great eagerness" the cause of state sovereignty. "... an equal vote in each State was", he said, "essential to the federal idea, and was founded in justice and freedom, not merely in policy ... that the States being equal cannot treat or confederate so as to give up an equality of votes without giving up their liberty...." Hamilton, who was about to leave the Convention (June 29) and not participate in its debates for a considerable time,[29] pleaded for effective union, and pointed out the distinction between the "carrying and non-carrying States", which would hold the largest states apart one from the other rather than give harmony and group activity.[30] Madison made two exceptionally able speeches; and he spoke, as did Hamilton, of the improbability of combination between such states as Virginia, Massachusetts, and Pennsylvania, which, different in manners and religion and in point of the staple productions, "were as dissimilar as any three other States in the Union." These two men were thus presenting the true situation; there was and could be no real antithesis between the small states and their powerful neighbors; the real danger, if danger should ever come, would be caused by differences of economic interests or diversities of manners and attitudes of mind, and not by the wealth or power of the respective states. On the third day of debate (June 29) it was voted that in the first branch of the legislature the rule of suffrage should not be according to that of the Articles of Confederation. The six large states of course voted in the affirmative; the others — Connecticut, New York, New Jersey, Delaware — in the negative; Maryland was again divided. At the opening of that day's session, Johnson had strongly expressed again the opinion to which we have already given special attention; something must be done to save the states from annihilation. And now that proportional representation in the lower house had been decided upon, his colleague, Ellsworth, rose to advocate equal representation in the second chamber. He was not sorry on the whole, he said, that the vote just passed had registered the Convention's decision against that rule of suffrage in the first branch. He hoped it would become the basis of a compromise: "We were partly national; partly federal. The proportional representation in the first branch was conformable to the national principle and would secure the large States against the small. An equality of voices was conformable to the federal principle and was necessary to secure the Small States against the large."

In the Convention we must notice — if repetition may be pardoned — that Johnson was, to all appearances, not greatly interested in the controversy between large states and small, but in the danger that nationalism would entirely submerge the states. Ellsworth, it is true, if we can judge from his argument at this juncture, feared large-state domination; and still, how, in the absence of modern terms of description, could the men then forming a new kind of body politic, which we now call a "federal state" and which the men of the day soon came to call a "confederated republic", have better expressed the nature of that political system than in Ellsworth's words — a system "partly national; partly federal"?[31] Toward the end of a long day (June 30), filled with acute argument and with a fervor verging upon acrimony, Ellsworth declared: "Under a National Government he should participate in the National Security, as remarked by Mr. King but that was all. What he wanted was domestic happiness. The National Government could not descend to the local objects on which this depended. It could only embrace objects of a general nature. He turned his eyes therefore for the preservation of his rights to the State Governments." King's answer to Ellsworth is noteworthy: "In the establishment of Societies the Constitution was to the Legislature what the laws were to individuals. As the fundamental rights of individuals are secured by express provisions in the State Constitutions; why may not a like security be provided for the Rights of States in the National Constitution."

These quotations are given here to demonstrate, as far as a few words can, that in the minds of some of the men — how many we do not know — the aim was not to prevent nationalism, but to assure the existence of the states; in other words, to solve the problem of imperial federalism and not allow nationalism to become consolidation. It is interesting to see Ellsworth, who some ten days previously had moved to change the opening resolution of the committee of the whole's report, so as to omit the word "national", now speaking of a "National Government" and assuming the establishment of such a government. But the idea, possibly the hope, of maintaining state sovereignty, as such, was not entirely dead; Martin, of course, was adamant. Bedford of Delaware "contended that there was no middle way between a perfect consolidation and a mere confederacy of the States." The large states, he declared, dared not dissolve the confederacy, and if they should, the small states would find some foreign ally to take them by the hand.

In the debate on Ellsworth's motion for equal representation in the second branch, Wilson and Madison gave elaborate expositions of their doctrine of nationalism and defended the organization of a government which they believed to be consonant with nationalism. Though not advocating destruction of the states, they were determined to prevent equality of representation in the second legislative chamber as well as in the first; they believed the danger to the small states to be imaginary only; and they thought an equality, which disregarded facts, was unwise. "If the minority of the people of America", said Wilson, "refuse to coalesce with the majority on just and proper principles, if a separation must take place, it could never happen on better grounds.... We talk of States, till we forget what they are composed of." Madison now declared the division of interests did not in fact lie between the large and the small states but between northern and southern. King, ably and eloquently speaking in behalf of the cause of nationalism, declared he was filled with astonishment at the sight of men, who, if they were convinced that every individual was secured in his rights, "should be ready to sacrifice this substantial good to the phantom of State sovereignty".

The vote on the resolution for equality of suffrage in the second branch came at the opening of the session on July second. The result was a tie — five votes to five.[32] Georgia, which had steadily voted with the large-state party, was now divided — Baldwin voting for equal representation, and Houstoun against it. Baldwin was a Connecticut man who had not long before removed to Georgia, and we may well suppose he was influenced by the old, seasoned politicians of the northern state to support their cause and perhaps save the Convention from dissolution and failure. The vote of Maryland, which had been so often tied, was cast by Martin alone because of the tardiness of his colleague Jenifer in coming to the meeting. If Baldwin had continued to vote as he had previously voted, and if Jenifer had been prompt in attendance on that eventful morning, the large-state party would have been successful once more. On this narrow margin did the fateful decision — or evidence of inability to reach decision — depend.[33]

The Convention was now, as Sherman said, "at a full stop...." Evidently the small-state men were beyond persuasion; and if they were defeated, the Convention would be a failure. Concession was inevitable. General Pinckney proposed the appointment of a committee to report a compromise. Madison and Wilson were opposed to the commitment. But Martin warned the Convention that no modifications whatever could "reconcile the Smaller States to the least diminution of their equal Sovereignty." A committee of one from each state was agreed upon. That the result would be a report recommending compromise was foreseen; and the committee was so constituted as to make at least partial victory for the small-state men a foregone conclusion; not one of the steadiest objectors to equality in the Senate was named a member. The Convention adjourned to allow time for the committee's work.

Those were anxious days, though in fact the crisis was actually passed; no committee report could shatter the fundamentals of the national system already agreed upon. The committee's report — constituting the great compromise on the subject which had vexed the Convention for weeks — provided that in the first branch of the legislature each state should be allowed one member for every 40,000 inhabitants; in the second branch, each state should have an equal vote; all bills for raising or appropriating money and for fixing salaries must originate in the first branch and not be altered or amended by the second.

The more strenuous members of the large-state party protested; they were not content. Madison did not regard the power of the lower house to originate money bills as any concession, and he "was not apprehensive that the people of the small States would obstinately refuse to accede to a Government founded on just principles...." Morris made a peculiarly vigorous appeal to the sense of the assembly. He came there, he said, as a representative of America, "in some degree as a Representative of the whole human race; for the whole human race will be affected by the proceedings of this Convention." If the small states should refuse to consent to a system essentially sound, they might, he declared, make "a noise for a time," but eventually they would find ties of interest, kindred, and common habits too strong to be broken. "This Country", he exclaimed, "must be united. If persuasion does not unite it, the sword will." He appears to have had clearly in mind a thought which we have seen Madison expressing before, that groups of like economic and social interests would come to the fore, and that the antithesis between the large and small states was unreal; at all events, the future proved (and is proving to-day) the essential truth of that position.

For more than a week the debate went on; the report of the committee was taken up piecemeal; it was discussed and rediscussed; changes and additions were made, but the essentials of the committee's recommendations, including the crucial clause which gave equal representation in the Senate, stood unaltered. The question of agreeing to the whole report as amended was carried by a vote of five to four (July 16). Pennsylvania, Virginia, South Carolina, and Georgia voted in the negative; Massachusetts was divided. Once again by the narrowest of margins a momentous decision was reached; but the importance of the decision consists not so much in the content of the resolution as in the fact that a decision was reached at all and that the break-up of the Convention was avoided.

The truth is, the nationalists had lost little or nothing, though some of them were for the moment discouraged. Equal representation of the States in the Senate neither injured the large states as such nor destroyed the principle of nationalism; in the long run it probably had no appreciable effect in preserving the states from being compounded into a consolidated republic; it did not protect the smaller states against their larger neighbors. The Senate has at no time stood as a guardian of the weaker members of the union. Nationalism, though endangered by sectionalism, brought into play the loyalties and the coöperation of groups irrespective of the size or material wealth of the particular states. Such nationalism as we now know — a nationalism of patriotism and loyalty — had to grow by degrees; and the development of the central government, produced by the industrial and social changes of the passing decades, was not hindered by the Senate of the United States.

Only one week after the settlement* of the great dispute by the acceptance of compromise, a motion was made that the members of the second branch, the Senate, should vote per capita (July 23). Ellsworth said he always had been in favor of such a provision. But it was a momentous change. Martin pointed out that it meant a departure from "the idea of the States being represented...." Possibly the small-state men — such of them as remained — supposed the senators from any one state would act together on any matter directly affecting the interests of their state; but the resolution was at variance with the idea that the senators came as ambassadors to express the will of their master; and in fact, Gerry, a few days earlier, had suggested per capita voting because it would prevent delays and inconveniences which had been experienced in the old Congress, "and would give a national aspect and Spirit to the management of business."

By the adoption of the great compromise neither party in the Convention was entirely satisfied. Lansing and Yates had left before the crucial vote was taken, reporting to Governor Clinton that the Convention was proceeding along lines beyond the powers of the delegates and that it was impracticable to establish a general government pervading every part of the United States, certain in a short time to "be productive of the destruction of the civil liberty of such citizens who could be effectually coerced by it".[34] Luther Martin remained, though he left before the end to make an attack upon the Convention's work. But others went on with the job. "From the day when every doubt of the right of the smaller states to an equal vote in the senate was quieted, they — so I received it from the lips of Madison, and so it appears from the records — exceeded all others in zeal for granting powers to the general government. Ellsworth became one of its strongest pillars." [35]

It is expedient to mention here a discussion concerning treason which arose a month after the great compromise. There was no doubt about the possibility of treason against the United States, but could there be treason against a state? A clause of the resolution of the committee of detail declared treason to consist "only in levying war against the United States, or any of them; and in adhering to the enemies of the United States, or any of them." Differences of opinion developed, and the nature of the discussion cannot be ascertained with assurance from Madison's treatment. Johnson, who two months before had stated so clearly the necessity of preserving the states, now declared there could be no treason against a particular state. Mason said the United States would have a qualified sovereignty only; the individual states would retain a part. "An Act may be treason against a particular State which is not so against the United States." But Johnson answered, "That case would amount to Treason against the Sovereign, the supreme Sovereign, the United States". The trouble plainly arose in part from the difficulty of determining the nature and extent of the sovereignty which the states retained, if they retained any at all. Ellsworth maintained the existence of divided sovereignty, the United States being sovereign on one side of the line dividing the jurisdictions, the states on the other: "each", he said, "ought to have power to defend their respective Sovereignties." But in the end the decision was to leave out reference to the states and define treason against the United States. Whether or not this conclusion implies and was meant to imply that there can be treason against a state is uncertain; beyond all doubt, however, it recognizes the sovereign character of the union, perhaps on the theory of a sovereignty divided between states and nation.[36]

Thus far we have followed the main line of the Convention's work and have attempted to make clear the struggle over the nature of the union. The contest had centered on the question of representation, because, if the union was to be a national union, people, citizens, should be the basis of representation, not states as corporate bodies. The advocates of state equality and equal representation of the states had met with successive defeats; but those who were anxious to preserve the states, though not averse to a national system, attained their goal, as they believed, by providing equal representation in the Senate.

It had been at least partly taken for granted that the establishment of a national government logically and properly implied the operation of that government directly on individuals. King and Madison had announced (July 14) the principle with especial plainness. There never will be a case, said King, in which the general and national government "will act as a federal Government on the States and not on the individual Citizens." Madison "called for a single instance in which the General Government was not to operate on the people individually." [37] Wilson, moreover, had brought forth with great clearness that there should be little or no contact between the central government and the states: "The same train of ideas which belonged to the relation of the Citizens to their State Governments were applicable to their relations to the General Government and in forming the latter, we ought to proceed, by abstracting as much as possible from the idea of State Governments. With respect to the province and objects of the General Government they should be considered as having no existence." [38]

Quite obviously, if there were to be spheres of authority, there was need of marking out the political domain of each with considerable distinctness. And here, let us notice, is not only a central principle of the American federal state, but the real answer to the anxieties which had burdened the hearts of the small-state men who feared destruction of the states; the answer to their anxieties did not in reality rest on equal representation in the Senate, but on granting to the national government clearly-stated and clearly-recognizable powers. Only on such a principle, could freedom from friction between governments be avoided; and only in this way could the states have reasonable assurance of their continuance as efficient and effective members of an integral union.

Now, it is an interesting fact that this question of exact distribution of powers between the states on the one hand and the central government on the other did not receive much consideration during the first two months. When the Convention turned over to the committee of detail a series of resolutions to be fashioned into a constitution, the statement of distribution was still general and indefinite.[39] Why this delay in making explicit assignment of powers? The delegates were particularly interested in the establishment of a permanent union, and not until that troublesome question was answered were they ready for details. But most important of all was the fact that the assignment of powers did not present an intricate and novel difficulty; the men of those days, though engaged in a task requiring great wisdom and discretion, were not dependent on mere theory concerning this essential matter. Behind them lay the practices of the old empire, the experiences of the Revolution, and the provisions of the Articles of Confederation. Historical facts pointed the way.[40]

The assignment of explicitly enumerated powers was first worked out not in open Convention but by the committee of detail.[41] In its report the powers of Congress were named in eighteen brief paragraphs. The new government was to have prescribed powers. Such was the inevitable presumption, but it was made clear beyond all presuming when, after the ratification of the Constitution, the tenth amendment was adopted. The powers thus granted were stated in broad and rather generous terms, without niggardly precision. The vitality of a federal republic — its continuance as a working system — depends on the accuracy with which powers are distributed; those that can be most effectively administered by the central government, without undue encroachment on local affairs, should be deposited with that government; those powers adapted to local needs and properly subject to local authority should be left to the individual commonwealth. Changes in the social and industrial order, such changes as came in the last half of the nineteenth century and after, may make advisable a reassortment of powers; but the principle of distribution based on the capacity for serving the needs of society must remain, if the federal state is to continue, preserve its essential character, and not be lost in centralized nationalism.

We have seen how, despite fears and jealousies, a national government with extensive powers was decided upon. This was an essential part of the solution of the problem of which the reader has often been reminded — the problem of establishing a system in which the states would abide by their obligations and not destroy the union. But, so far, we have not seen what became of two provisions which were put forth at an early stage as solutions of this problem — the proposals to give the national legislature authority to coerce a recalcitrant state and the authority to negative state laws. Coercion fell by the wayside in the early days of the Convention as the plan of forming a national government operating directly on individuals took shape; as the implications of the plan became apparent, coercion was abandoned.[42 ] Not only did war upon a state, because of the misdeeds of its government, inflict suffering on individual citizens, but it was really a method — a method inherited from barbarism — of settling disputes between nations in the absence of enforceable law.[43] The Constitution in its final form gave Congress the power to call forth the militia to execute the laws of the union, suppress insurrections, and repel invasions, but coercion of delinquent states in their corporate capacity was abandoned because coercion of individual citizens, disobedient to the law, was consistent with real nationalism and consistent too with the prospect of a permanent, smoothly-working union.

The proposal to give the national legislature authority to veto state laws, which, like coercion, was thought to be a proper method for preserving the union and solving "the chief problem", was for a considerable time ably defended by some of the eager nationalists. It was accepted without dissent or debate (May 31 ).[44] But objections arose, and six weeks later (July 17) the matter came up for final decision. Madison still believed the negative as essential "to the efficacy and security of the General Government"; the necessity of such a government proceeded, he said, from the propensity of the states to pursue their particular interests. Gouverneur Morris, on the other hand, said such a power would be "terrible to the States, and not necessary, if sufficient Legislative authority should be given to the General Government." Then Sherman made a most significant statement: the negative, in his opinion, was unnecessary, "as the Courts of the States would not consider as valid any law contravening the Authority of the Union, and which the [national] legislature would wish to be negatived." A law that ought to be negatived, Morris now declared, would be set aside by the judiciary department, and if that security should fail, the law might be repealed by a national law. The principle was, however, firmly grasped and most clearly stated by Sherman, who asserted that the power proposed to be given to Congress involved "a wrong principle, to wit, that a law of a State contrary to the articles of the Union, would if not negatived, be valid and operative." In other words, a state act contrary to the Constitution could not be law; it had no validity.

Immediately after the vote on the power of negativing was taken, Martin rose and presented a resolution which had first appeared in the small-state party plan and was probably his own handiwork.[45] Reference to it has already been made. It deserves repetition here: "that the Legislative acts of the United States made by virtue and in pursuance of the articles of Union, and all treaties made and ratified under the authority of the United States shall be the supreme law of the respective States, as far as those acts or treaties shall relate to the said States, or their Citizens and inhabitants — and that the Judiciaries of the several States shall be bound thereby in their decisions, any thing in the respective laws of the individual States to the contrary notwithstanding". The resolution was adopted without dissent (July 17).

A month and more after the adoption of this resolution, it was amended (August 23), and the amendment is of signal interest; it added at the beginning the words "This Constitution". Thus, not only laws and treaties of the United States, but the Constitution itself was declared to be the supreme law of the respective states and of their citizens and inhabitants. The wording of this provision, as it appeared in the final draft of the Constitution, differs slightly from that just given: "This Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding." The people of a state, acting even in their primary capacity when forming their own constitution, cannot legally violate the Constitution, laws, or treaties of the United States. This declaration, therefore, taken on its face, does not leave a shred of state sovereignty as a legal theory of the union — if, of course, we mean by state sovereignty the undiminished authority of a fully-competent body politic.

It is difficult to overemphasize the importance of this declaration in the Constitution. The significant word is not "supreme", but "law". If the Constitution is law, nothing contrary to it can also be law. There can be no such thing as illegal law. Furthermore, to make the declaration explicit beyond all chance of misunderstanding, the judges in their court-rooms are bound to recognize and apply the Constitution. Courts — acting as all courts are expected to act in distributing justice to litigants — must treat the Constitution as law. The very structure of the union, the very essentials of the federal system were thus intrusted to courts. No special tribunal was set up, no body of censors, no board of review; judges in the quiet of their own courtrooms must maintain the authority of government and the binding effect of the Constitution on which the federal system rests.

The resolution, when it was first presented, imposed responsibility upon the state courts, and the article as finally adopted especially mentions state judges. But we can hardly suppose the framers' intention not to include the federal courts. Logically at least, they also must treat the Constitution as law, and this logic is supplemented by the words of the third article giving to the federal courts jurisdiction of cases arising under the Constitution, laws of the United States, and treaties. This brings up the question whether or not the courts of the United States and the courts of the state were assumed to have the right to declare an act of Congress void. That the courts must interpret the Constitution and determine its particular applications before they can decide certain kinds of controversies, seems an inevitable conclusion; and in doing so they may be called upon to uphold the Constitution and ignore an act. This subject will be considered somewhat more fully in later pages of this work; it is sufficient to point here to the cardinal fact that the Constitution is plainly declared to be law, enforceable in courts, to be handled as other law is handled, to be treated with the respect with which other laws are treated, to be enforced as other laws are enforced; for the duty of any court is to announce and apply law. That the Constitution was to be binding and legally infrangible is a matter of immense importance; but here we are considering the right to judge whether an act violates it; and in this connection the significant fact is that courts and judges are mentioned at all and that the courts are called upon to treat the Constitution as law.

We must add that the principle of judicial authority to declare a legislative act void was mentioned in the Convention at various times. Martin, for example, — perhaps the ablest technical lawyer of them all — objecting to the association of the judges with the executive as a council of revision, declared, "And as to the Constitutionality of laws, that point will come before the Judges in their proper official character. In this character they have a negative on the laws." Some of the delegates were, it is true, not prepared to accept this principle; and in fact, though the duty of state judges to treat the Constitution as law was made perfectly plain, there was no complete and definite announcement by the Convention of a court's duty to pronounce congressional acts void. And still, it may be fair to say, the existence of this judicial power was by most of the delegates taken for granted.[46] The delegates knew the principle well enough; they did not need to create an idea entirely new. They were, moreover, not likely to be especially affrighted by the spectacle of a court's ignoring a congressional act. Though anxious to establish an effective government and an indestructible union, they were not desirous of so arranging the system that an unfettered democracy might have its way or that a government might move on without check or hindrance — quite the contrary.[47]

III: SECTIONAL DIVERSITY; SLAVERY; THE PRESIDENCY; THE PHILOSOPHY OF THE FATHERS

During the first two months, while the Convention was engaged in discussing the nature of the new union and in seeking to adjust the differences between the large and the small-state factions, various other subjects were debated and at times the serious fact of sectional diversity came into view. The differences between east and west and between north and south were real. Should new states when admitted to the union be allowed representation on the same terms as those provided for the other states? In other words, in a developing empire, was the union to be one of equal states or not? And if the principle of proportional representation were adopted, should slaves be counted in the enumeration of inhabitants?

Proposals to limit the power of the west were advocated especially by Gouverneur Morris, who believed "The Busy haunts of men not the remote wilderness, was the proper School of political Talents." [48] For once, the mild-mannered Madison forgot to be gentle. Morris, he said, on the one hand recommended to the southern states implicit confidence in the northern majority, and at the same time "was still more zealous in exhorting all to a jealousy of a Western majority. To reconcile the gentleman with himself it must be imagined that he determined the human character by the points of the compass."[49]

Before Morris had announced his fears, Mason proclaimed his antagonism to discrimination against the frontier: "Strong objections", he said, "had been drawn from the danger to the Atlantic interests from new Western States. Ought we to sacrifice what we know to be right in itself, lest it should prove favorable to States which are not yet in existence." So here was a strange antithesis: Morris, representing the freemen of a state which had been a wilderness only a hundred years or so before, speaking words of disparagement concerning the frontiersmen; Mason, a master of many slaves, the ruler of a large plantation, the owner of a magnificent estate where his daily wants were ministered to by a retinue of black servitors, insisting upon the principle of democratic equality. The counsels of liberality prevailed. The Convention refused to provide for limited and inferior representation of the west.[50]

But when provision for the admission of new states was under consideration, Morris returned to the idea of protecting the east. He did not succeed in securing definite decision in favor of inequality, but he was successful in obtaining the abandonment of an explicit provision for the admission of new states "on the same terms with the original States". The decision of the Convention, as it appears in the finished Constitution, simply reads, "New States may be admitted by the Congress into this Union...." [51] It is difficult to escape the conclusion that this was a vague and inexplicit compromise which left to Congress the right at its discretion to prescribe such terms of admission as would make the new states inferior to the old.[52] Certainly the principle of equality was not plainly and definitely announced.

Connected with the question of the west and its proportionate participation in the new government was the question whether slaves should be counted in fixing the basis of representation. In the earlier days the proposal to enumerate three-fifths of the slaves appeared to be acceptable, but at a later time objections arose. Certain men from the far south declared in favor of enumerating all the slaves. Some of the northern members, on the other hand, could see no propriety in counting any of them. "Are they admitted as Citizens?" asked Wilson. "Then why are they not admitted on an equality with White Citizens? Are they admitted as property? then why is not other property admitted into the computation?" Morris declared "he verily belived [sic] the people of Pennsylvania will never agree to a representation of Negroes." The problem was complicated by the belief that property should be taken into consideration as a basis of representation, and negro labor was apparently supposed to be less productive of wealth than free labor.[53]

Davie of North Carolina insisted upon counting at least three-fifths of the blacks. Without such recognition of slave property and numbers, North Carolina would never "confederate". Morris proposed that the basis of taxation and representation be the same, and this proved to be the way out of the maze; the proposal was adopted. Direct taxation and representation stood together; in assigning representation and direct taxation, three-fifths of the slaves were to be counted. If a slaveholding state had more wealth, as judged by its population, let it pay more taxes. We should notice that the resolution as finally phrased refers to direct taxes, by which, it is probable, the Convention meant something in the nature of a requisition, something at least different from an excise or a tax on imports; but in the course of the following years indirect taxation was the mode commonly used for revenue.

Toward the end of August, after three months of labor, new difficulties arose and brought the existing sectional diversities sharply to the light. Serious though not prolonged debate arose over the proposal to deny to Congress the power to levy duties on exports. "To deny this power", Wilson declared, "is to take from the Common Government half the regulation of trade". The discussion brought differing economic interests to the light, but sectional lines were not sharply drawn and concession was reached without great difficulty. The proposal to deny the power was adopted.[54]

The greater trouble, however, was presented by the slave-trade. Here there was not only diversity of sectional interests — for the far south demanded the right to import slaves — but also a moral problem. Georgia and South Carolina wanted more slaves to till their fields; the men of the middle region protested against the trade. Some of the New England men thought it better to allow the importation of slaves than to abandon the hope of a constitution; they believed slavery was disappearing and could not endure. Morris had at an earlier day bitterly attacked slavery, and now Mason, a slave-owner, with great feeling and intense earnestness, passed judgment upon its iniquities: "Every master of slaves is born a petty tyrant. They bring the judgment of heaven on a Country. As nations can not be rewarded or punished in the next world they must be in this. By an inevitable chain of causes and effects providence punishes national sins, by national calamities."[55]

As some of the delegates from the south declared that, if the right to import slaves were denied, their states would not accept the Constitution, the Convention had to do something to settle the difficulty. The draft of the Constitution reported by the committee of detail (August 6) denied to Congress the authority to levy a tax on the migration or importation of such persons as the several states should think proper to admit, and denied the authority to prohibit such migration or importation; the committee had also reported a provision requiring a two-thirds vote for the passage of a navigation act. Thus an opportunity for compromise was offered; and so the final agreement was reached: the slave-trade was not to be prohibited before the first of January, 1808, but in the meantime a tax not exceeding ten dollars per person might be imposed; the proposal requiring a two-thirds vote for the passage of a navigation act was abandoned. In the course of the discussion Madison complained that twenty years would produce all the mischief that could be apprehended from the liberty to import slaves. New Jersey, Pennsylvania, Delaware, and Virginia, voted against allowing importation for twenty years.[56]

In later years the Constitution was spoken of as if it were a compact or agreement between the slave states and the free. Nothing can be more false to the fact. The opposition to slavery was by no means confined to the northern states. The right to continue the slave-trade was extorted from the Convention by the delegates of two or three states,[57] and by reluctance of others to see the hope of union shattered. Slavery was openly condemned, and no one but Charles Pinckney ventured upon an elaborate defense of it; he presented briefly an argument with an aroma similar to the philosophy of Calhoun fifty years later.[58] Though the New Englanders later voted in favor of allowing importation for a time, they appear to have been influenced, as has been suggested, by the belief that slavery would not last. Alas! Before a decade had passed, Eli Whitney had invented the cotton gin.

No single problem was more perplexing than that presented by the presidency. The chief magistrate, with extensive executive powers, must be effective but not clothed with the majesty of monarchical authority; he must not appear to the people, when the veil should be lifted from the Convention's handiwork, as only another king and perhaps an incipient despot. He must be dependent and not autocratic, but he must also have sufficient though not dangerous independence. The principle of the separation of powers must be made secure; the executive must not be the mere creature of the legislature.

But if the Convention was to succeed in establishing an executive clothed with authority and still so held in leash that he could do no serious harm, some suitable method of election must be discovered. Wilson said, as the Convention neared the end, "This subject has greatly divided the House, and will also divide people out of doors. It is in truth the most difficult of all on which we have had to decide." [59] If there had been complete confidence in the intelligent will of the people-at-large, possibly popular election might have solved the problem; but this is merely a vague hypothesis, and we need not look askance at the Convention's attitude of mind when we think of the America of those days, without good roads, with no telegraph, no railroads, no newspapers of general circulation, no adequate means of knowing who were the suitable men to be intrusted with the leadership of the nation; there were no national parties and no national party machines; in short, men were living in the eighteenth century. There appears in general to have been some confidence in the process of successive filtrations: a chosen few selected for the ultimate task would have the requisite wisdom to elect to high office men of superior ability and virtue.

The decision was at length in favor of choice by electors. This arrangement, however, brought up new objections, for, by the plan proposed, if the electors should fail to give any one person a majority, the duty of choice would fall to the Senate. Mason declared that "nineteen times in twenty the President would be chosen by the Senate, an improper body for the purpose." To allow the Senate this power of choice appeared unendurable because the president had already been made subservient to the Senate in certain vital particulars. "... the President", Wilson said, "will not be the man of the people as he ought to be, but the Minion of the Senate. He cannot even appoint a tide-waiter without the Senate". But other difficulties were to be met: by the proposed method of election each state was to appoint as many electors as it had representatives and senators; this was an advantage to the large states. But if the Senate would frequently have the duty of electing when no one person had received the majority of votes for the presidency, then the small states would profit. Once again, the delegates must take into consideration the old differences, imaginary rather than real, between the large states and the small. Finally, the right of choice, in case the electoral vote was not conclusive, was transferred to the House, where, however, the votes must be taken by states, the representatives from each state having one vote. Thus the undue influence of the Senate was avoided and the small states retained their share of power.

When the engrossed copy of the Constitution had been read, Franklin, the weather-beaten statesman who had been interested for thirty years and more in an effective union, offered a speech which was read by Wilson. Confessing his disapproval of several parts of the Constitution, he was not sure he never should approve them. "... the older I grow," he said, "the more apt I am to doubt my own judgment, and to pay more respect to the judgment of others." And he told of "a certain french lady, who in a dispute with her sister, said 'I don't know how it happens, Sister but I meet with no body but myself, that's always in the right' — II n'y a que moi qui a toujours raison." Evidently the Convention had some prospects of ending its days in an atmosphere of humor. Franklin then moved that the Constitution be signed by the members, and offered as a convenient form of statement: " 'Done in Convention, by the unanimous consent of the States present....' " "This ambiguous form had been drawn up by Mr. Gouverneur Morris in order to gain the dissenting members, and put into the hands of Doctor Franklin that it might have the better chance of success." [60]

Probably no one found every portion of the Constitution to his liking; but the work was finished, the result of patient toil and amicable accommodation. Refusal to accept the document with hopes for the future could mean nothing but folly; the choice lay between the hopeful chance of a national system and reversion to a confusion which might be little less than disaster.[61] Of the fifty-five delegates who had taken part in the Convention, thirty-nine signed the finished instrument; three, Mason, Gerry, and Randolph refused to sign. Martin left a few days before the end of the Convention and did not sign. Of the remaining twelve regular members who were not in attendance at the end and did not sign, seven are known to have approved and three are known to have disapproved of the Constitution.[62]

The Constitution was turned over to Washington to be sent to the Congress, with recommendations that it be submitted to the states. A letter to Congress was prepared by the Convention: "the consolidation of our Union," the letter declared, "the greatest interest of every true American," had been kept steadily in view and the Constitution was "the result of a spirit of amity...." There is in the letter one especially significant statement: "It is obviously impracticable in the foederal government of these States, to secure all rights of independent sovereignty to each, and yet provide for the interest and safety of all — Individuals entering into society, must give up a share of liberty to preserve the rest." In other words, the old philosophy of natural rights and of contract was here made to apply to the organization of the new system; the sovereignty of the states was to be diminished; a portion was to be surrendered.[63]

The federal state which these men succeeded in formulating had the following salient features: (1) sovereign powers were distributed between the states and the national government; (2) the national government had only the powers granted it explicitly or by implication; the states individually retained the residue; (3) each government within its sphere of authority operated immediately over the individual citizen; (4) neither government was to be inferior to the other or in ordinary operation to come into contact with the other; (5) the constitutional system was established as law enforceable in courts and was superior to the authority of every state acting either through its government or by convention of its citizens; (6) the national government recognized and made applicable the principle of the separation of powers with certain modifications.

When we remember that the Convention met before the shadow of the Shays rebellion had been lifted, and that conservatives had been distressed by the tribulations of the Confederate period, the liberality of the Constitution and the broad-mindedness of the delegates are particularly impressive. There was no decision to limit the suffrage or to prescribe property or religious qualifications for office. In these respects the delegates were more liberal than the makers of the state constitutions ten years before. Many of the members appear to have been holders of public securities; [64] but had they been penniless, they could scarcely have shown less interest in the obligation of the new government to pay the debts of the old — unless they had been quite without respect for public faith. An amendment declaring that the legislature "'[] fulfil the engagements and discharge the debts of the United States,' " was objected to by Butler, "lest it compel payment as well to the Blood-suckers who had speculated on the distresses of others, as to those who had fought and bled for their country." Mason objected to the term " 'shall'" as too strong, declaring "There was a great distinction between original creditors and those who purchased fraudulently of the ignorant and distressed." Randolph moved that " 'All debts contracted and engagements entered into, by or under the authority of Congress shall be as valid against the United States under this constitution as under the Confederation' ". The motion was adopted by a vote of ten to one, Pennsylvania alone voting in the negative.[65]

Two provisions in the Constitution were, in a way, directed toward the protection of property: no state shall emit bills of credit, and no state shall pass a law impairing the obligation of contracts. Both of these prohibitions resulted from the experiences of the Confederate period. Forty years later, John Marshall, who had lived through the critical years and had taken great interest in the adoption of the Constitution, said of the impairment of contracts: "The mischief had become so great, so alarming, as not only to impair commercial intercourse, and threaten the existence of credit, but to sap the morals of the people, and destroy the sanctity of private faith." [66]

Some of the delegates feared the rise of classes or, indeed, believed the stratification of society to be inevitable. Gouverneur Morris was ready on all occasions to inculcate the political depravity of men, and he pointed to the necessity of checking one vice or interest by an opposing vice or interest.[67] Madison, himself, though impatient with the cynicism of Morris, feared lest in the long run, as the numbers of the unpropertied classes increased, they might combine to endanger property and public liberty, or would become the tools of opulence and ambition. But, though the members of the Convention were rich men according to the standards of the time, there was practically no inclination to give special protection to wealth. There was not then, it is true, confidence in the wisdom of the common people (the confidence characteristic of the professed democracy of the next century); but on the other hand, the grievous influences of the rich and the rise of a plutocratic aristocracy were especially feared.[68] The men of those days believed in liberty; liberty and property were not considered mutually opposed. We may have forgotten for how many decades the word "liberty" was the chosen symbol of American life. A government with powers of ruthless interference with property would not have been considered a government to be endured by a free people.

Liberty was to be assured by a government so checked and balanced as to curb the sway of malign influences and to prevent the exercise of tyrannical authority. Just how much the delegates were affected by writings of John Adams, the supreme advocate of checks and balances, we do not know. But the desire of men, realizing as these men did the need of an effective national government, was to have a government so organized as to make liberty secure and to make difficult or impossible the despotism of faction or of passion.[69]

But on the whole the Convention was not ruled by abstract theories — doctrines quite abstracted from the teachings of history and from the facts well-known to the Convention's members. References to the ancient world were occasionally indulged in; lessons from the failures of other nations were mentioned; the fundamental principles of constitutional rights and the elements of English liberty were in the minds of the men who made the Constitution. That generation, of which these men were the flower, had been steeped in the discussion of political principles and had been engaged in the actual construction of governments and constitutions. The greatest single teacher was experience, and the state constitutions were the chief source of governmental forms. The framers were now giving institutional reality to the ideas which the course of colonial history, the practices of the old empire, their own struggle for independence, and their earlier attempts to establish union had inculcated. All through the Revolutionary struggle, until the Revolution was made complete by the adoption of the Constitution, the men of that generation — though some engaged in the vaporings of self-created philosophy — did not bring many absolutely new ideas to birth. They were in fact tremendous realists. Had they set forth to create a new system free from the shackles of history, they must have failed. To call into being a constitutional system which has lasted for over a century, a system which has withstood perplexing diversities and conflicting sectional interests, the development of democracy, the increase of population from four million to thirty times that number, is a notable achievement.


[1] This number includes those who declined to serve and the substitutes who in some cases took their places. Records of the Federal Convention (Max Farrand, ed.; hereafter referred to as Farrand, Records), III, p. 557 ff. See also J. F. Jameson, "Studies in the History of the Federal Convention of 1787," Am. Hist. Asso. Report for 1902, I, p. 157 and note a. Charles Warren, The Making of the Constitution, p. 55, gives the following details: thirty-nine of the delegates had served in Congress; eight had signed the Declaration of Independence; eight had helped to form state constitutions; five had been members of the Annapolis convention; seven had been chief executives of their states; twenty-one had fought in the Revolution.

[2] Of special value on this subject is Max Farrand, "George Washington in the Federal Convention," Yale Review, XVI, p. 280 ff.

[3] March 19 (18?), 1787. Madison, Writings (Gaillard Hunt, ed.), II, p. 326.

[4] See letter to Edmund Randolph, April 8, 1787, in Ibid., II, p. 336 ff.; letter to Washington, April 16, 1787, in Ibid., II, p. 344 ff.

[5] See Warren, op. cit., pp. 687-688; Max Farrand, The Framing of the Constitution, p. 181.

[6] Warren, op. cit., p. 339.

[7] Letter to James Duane, September 3, 1780, in Alexander Hamilton, Works (J. C. Hamilton, ed.), I, p. 157.

[8] July 4, 1782. See Ibid., II, p. 201.

[9] Warren says, "Ten men stand out as chiefly responsible for the form which the Constitution finally took — Madison, Randolph, Franklin, Wilson, Gouverneur Morris, King, Rutledge, Charles Pinckney, Ellsworth, and Sherman." Warren, op. cit., p. 57. Probably this is as good a selection as anyone can make, though it necessarily ignores valuable work by others. Franklin's work was rather that of peacemaker than of contributor to the actual structure of the Constitution. Randolph did some effective speaking, at first appeared as a leader, but finally refused to sign. Furthermore, the list leaves out Washington. Farrand, The Framing of the Constitution, gives a brief sketch of the members, p. 14 ff.

[10] Gouverneur Morris made 173 speeches; Wilson, 168; Madison, 161; Sherman, 138; Mason, 136; Gerry, 119. See Warren, op. cit., p. 125. On a good many occasions the votes of one or more states were divided. "There were twenty-three occasions when, had there been no divided vote, the result of the vote might have been altered." Maryland's vote was evenly divided twenty-seven times.

[11] "On the arrival of the Virginia Deputies at Philadelphia it occurred to them that from the early and prominent part taken by that State in bringing about the Convention some initiative step might be expected from them. The Resolutions introduced by Governor Randolph were the result of a Consolidation on the subject...." "James Madison: Preface to Debates in the Convention of 1787," in Farrand, Records, III, p. 549. See also Randolph's remarks, May 29. To facilitate reading, the writer has taken the liberty to spell out abbreviations, to modernize certain eighteenth-century spellings, and to omit certain parentheses which appear in the Farrand edition of the Records.

[12] The Records of the Federal Convention, in three volumes, edited by Max Farrand, contain practically all available sources for the study of the Convention's proceedings. The volumes contain not only Madison's Notes and the others mentioned above, but also statements made in later years by men who had been members of the Convention. Some day, possibly, further notes may come to light, but this collection is practically definitive and is rendered more valuable by the critical scholarship of the editor. There are various other editions of Madison's Notes, sometimes improperly called Madison's Journal. (The word Notes is put in italics for convenience, not as a book title.) References to the notes will be cited: Madison's Notes (with the date and without specific page references).

[13] See letter from Madison to Noah Webster, October 12, 1804, in Farrand, Records, III, p. 409.

[14] J. F. Jameson, in his "Studies in the History of the Federal Convention of 1787," loc. cit., not only demolishes the pseudo-Pinckney plan, but by very clever and scholarly work brings out from the study of the debates in the Convention fairly clear indication of what the real plan was. A paper which he found among the Wilson papers proved to be a portion of the real plan and seems to demonstrate that it was elaborate. The author of this volume, relying on the substantial character of Jameson's work, found what is evidently an outline of the original plan. This outline is printed in Am. Hist. Rev., IX, pp. 735-747, with notes and comments. A "reconstructed" plan, based on the outline and on other sources, is to be found in Farrand, Records, III, p. 604 ff.

[15] According to McHenry, Hamilton had said, before the close of the previous session (May 29), that it struck him as a necessary and proper preliminary to inquire whether the United States "were susceptible of one government, or required a separate existence connected only by leagues offensive and defensive and treaties of commerce." See Farrand, Records, I, p. 27. There is no reference in the journal or in Madison's Notes that Hamilton made any such statement in the open Convention, and it seems likely that it was not made during formal proceedings. The incisive young statesman from New York evidently wished to cut the main problem to the heart and to perform the operation at once. So now it was determined to test the sense of the whole body as to whether or not a mere league of sovereignties was sufficient.

[16] For some indication of the reason for not taking action on the first two resolutions, see Ibid., I, p. 39.

[17] At a much later time Gouverneur Morris stated the problem thus: "there was a serious discussion on the importance of arranging a national system of sufficient strength to operate, in despite of State opposition, and yet not strong enough to break down State authority." Morris to W. H. Wells, February 24, 1815, in Ibid., III, p. 421.

[18] The significance of the opposition of the small states, which is to be considered more fully in later pages, is thus stated in the text above because it seems possible to overemphasize the idea that the small states were influenced only by their desire to conserve their complete sovereignty. The subject of sovereignty was discussed and the discussion was connected with the question of representation — for if sovereignty necessarily included equality, the states could not surrender equality of representation without diminishing their sovereignty. But there were differences among the delegates from the small states. Some of them were insistent upon the retention of the complete sovereignty of the states. Others appear to have objected to the abandonment of complete equality of representation in Congress, not so much because inequality indicated the surrender of sovereignty as because inequality lowered the prestige of the states. Of course, as we have indicated, the old jealousies were still active; the small states feared the strength of their powerful neighbors.

[19] At a later day (July 23) Madison pointed out "the difference between a system founded on the Legislatures only, and one founded on the people, to be the true difference between a league or treaty, and a Constitution."

[20] The journal omits Pennsylvania, but see Madison's Notes, June 12.

[21] Madison's Notes, June 2, 6, 7. For Sherman's opinion, see his speech at the opening of the session of June 11. Farrand, Records, I, p. 196.

[22] Madison in a footnote, added probably at a much later time to his notes taken in the Convention, says, "Connecticut and New York were against a departure from the principle of the Confederation, wishing rather to add a few new powers to Congress than to substitute, a National Government." This does not appear to be a proper statement of the Connecticut position, unless in the earlier days, and especially May 30 when, as we have seen, on the resolution to establish a national government, Connecticut voted in the negative and New York was divided, the six other states voting in the affirmative.

[23] That Martin participated appears to be highly probable; first, because of the significance of the sixth resolution, which contained a principle he later proposed to the Convention in almost the same identical words; second, because he was a truculent, or at least an aggressive and unrelenting, advocate of state sovereignty.

[24] A footnote by Madison, placed under the date of June 15.

[25] In committee of the whole, June 2.

[26] Madison's Notes, June 9.

[27] "One reason why the Connecticut delegates disliked ratification by Conventions was that, in that State, a Convention had assembled at Middletown in December, 1783, which had violently opposed the votes of Congress as to commutation of pay for officers of the Continental army — and other subjects, and the action of this Convention had caused considerable disturbance in other States." Warren, op. cit., p. 348, note 1. Of course, the impressive fact is not the hesitation among some members to refer their work to the people, but the readiness to rely upon popular decision, and the necessity, for legal and constitutional reasons, to obtain basic authority for the Constitution.

[28] Madison's Notes, June 21. See in addition Johnson's brief statement, June 25, and especially his words on June 29, when, with other pronouncements of a similar character, he said: "Does it not seem to follow, that if the States as such are to exist they must be armed with some power of self-defence.... On the whole he thought that as in some respects the States are to be considered in their political capacity, and in others as districts of individual citizens, the two ideas embraced on different sides, instead of being opposed to each other, ought to be combined; that in one branch the people, ought to be represented; in the other, the States."

[29] "Attended on May 18; left Convention June 29; was in New York after July 2; appears to have been in Philadelphia on July 13; attended Convention August 13; was in New York August 2O-September 2." Farrand, Records, III, p. 588.

[30] It is very interesting to notice that Read of Delaware, who had pointed out that the instructions of the Delaware delegates precluded their accepting anything but equal representation, advocated nationalism and even expressed approval of Hamilton's plan of centralization. See Madison's Notes, June 6, June 11, June 29. He "wished it to be considered by the small States that it was their interest that we should become one people as much as possible...." Ibid., June 26.

[31] Compare Madison in The Federalist, no. XXXIX. Bancroft speaks of this arrangement — proportional representation in one branch, equal representation in the other — as the "Connecticut compromise". The propriety of the appellation has been questioned, but much is to be said for it. It is true the idea was not confined in its inception or in the course of discussion to the Connecticut men. But that they saw the situation, were not afraid of effective government provided it did not crush the states, and were largely influential in bringing about the conclusion they desired, seems unquestionable.

[32] Massachusetts, Pennsylvania, Virginia, North Carolina, and South Carolina voted against equal representation. Connecticut, New York, New Jersey, Delaware, and Maryland voted for equal representation.

[33] Martin, reporting to the Maryland legislature, said, "Immediately after the question had been taken, and the President had declared the votes, Mr. Jenifer came into the convention, when Mr. King, from Massachusetts, valuing himself on Mr. Jenifer to divide the State of Maryland on this question, as he had on the former, requested of the President that the question might be put again; however, the motion was too extraordinary in its nature to meet with success." See Farrand, Records, III, p. 188 note.

[34] Farrand, Records, III, pp. 244-247. Warren justly calls our attention to various contents of the Constitution as it was at the time of the compromise, and says: "... the small States were entirely right in believing that no such form of Government as the Nationalists, at that stage in the Convention, were supporting would ever be accepted by the people of the States...." Warren, op. cit., p. 310. But we should notice that he is speaking of the fact that, as it then stood, the Constitution gave large and undefined power to the national legislature, including the right to veto state laws. He does not declare that the principle of nationalism, under properly guarded assignment of governmental authority, would have defeated the Constitution.

[35] George Bancroft, History of the Formation of the Constitution of the United States, II, p. 88.

[36] It is interesting and important to notice, in light of the supremely important controversy concerning the nature of the union in the decades ahead and the ending in civil war, that Luther Martin advocated a clause declaring that no act done by one or more states against the United States or by any citizen of any one of the United States under the authority of any one or more states should be deemed treason or punished as such; " 'but, in case of war being levied by one or more of the States against the United States, the conduct of each party towards the other, and their adherents respectively, shall be regulated by the laws of war and of nations.'" Martin reported to his legislature that this proposal was "opposed to the great object of many of the leading members of the convention, which was, by all means to leave the States at the mercy of the general government, since they could not succeed in their immediate and entire abolition." See Farrand, Records, III, p. 223.

[37] See also Madison's statement (June 19) where he pointed out that "in a federal Government [as distinguished from a national government], the power was exercised not on the people individually; but on the people collectively, on the States."

[38] June 25. Farrand, Records, I, p. 406. Very early in the debates (May 30) Sherman had "admitted also that the General and particular jurisdictions ought in no case to be concurrent." See Ibid., I, pp. 34-35.

[39] "Resolved That the Legislature of the United States ought to possess the legislative Rights vested in Congress by the Confederation; and moreover to legislate in all Cases for the general Interests of the Union, and also in those Cases to which the States are separately incompetent, or in which the Harmony of the United States may be interrupted by the Exercise of individual Legislation." Ibid., II, pp. 131-132.

[40] Reference has been made in an earlier chapter to the structure of the old empire which in its actual practices foreshadowed the structure of the federal organization of the American union.

[41] This committee was composed of Rutledge of South Carolina, Randolph of Virginia, Gorham of Massachusetts, Ellsworth of Connecticut, and Wilson of Pennsylvania. Working on the task of framing the submitted resolutions into a constitution, they arranged the materials into articles and sections, and presented the results of careful organization. To the committee had been referred not only the resolutions adopted by the Convention but the Pinckney and Paterson plans. At the end of ten days they made their report, and this — which was in the form of a constitution — was then discussed item by item for about six weeks by the Convention.

[42] In comment on the Paterson plan, Mason said (June 20): "The most jarring elements of nature; fire and water themselves are not more incompatible that [sic] such a mixture of civil liberty and military execution. Will the militia march from one State to another, in order to collect the arrears of taxes from the delinquent members of the Republic? ... Rebellion is the only case in which the military force of the State can be properly exerted against its Citizens." Farrand, Records, I, pp. 339-340.

[43] Soon after the Convention adjourned Madison wrote to Jefferson: "It was generally agreed that the objects of the Union could not be secured by any system founded on the principle of a confederation of Sovereign States. A voluntary observance of the federal law by all the members could never be hoped for. A compulsive one could evidently never be reduced to practice, and if it could, involved equal calamities to the innocent & the guilty, the necessity of a military force both obnoxious & dangerous, and in general a scene resembling much more a civil war than the administration of a regular Government. Hence was embraced the alternative of a Government which instead of operating, on the States, should operate without their intervention on the individuals composing them; and hence the change in the principle and proportion of representation." October 24, 1787. Madison, Writings (Gaillard Hunt, ed.), V, p. 19. Ellsworth, addressing the Connecticut convention, said: "Hence we see how necessary for the Union is a coercive principle. No man pretends the contrary: we all see and feel this necessity. The only question is, Shall it be a coercion of law, or a coercion of arms? [Hamilton had used the same expression in the Convention at Philadelphia, June 18] ... I am for coercion by law — that coercion which acts only upon delinquent individuals." Elliot, Debates, II, p. 197.

[44] "The other clauses giving powers necessary to preserve harmony among the States to negative all State laws contravening in the opinion of the National Legislature the articles of Union down to the last clause, the words 'or any treaties subsisting under the authority of the Union', being added after the words 'contravening &c. the articles of the Union'; on motion of Doctor Franklin, were agreed to without debate or dissent." Farrand, Records, I, p. 54. The wording of this leaves it uncertain whether the provision concerning treaties was in the original Randolph plan or not. Probably it was not.

[45] Of course such a resolution was quite out of place in the Paterson plan with its principle of maintaining the Confederation. Its presence there is an evidence of the hurried preparation of the plan, and impressive evidence also of how fully it was recognized that the states must be held to their obligations. But how could the , idea of state sovereignty be reconciled with an arrangement which authorized the central government to make "supreme law of the respective States"? Possibly the super-astute mind can conceive such a reconciliation. But the resolution, at all events, would make of the Confederation, if it remained a Confederation, a strange and rather anomalous one. Calhoun, in his most competent days, could, probably, show the consistency between state sovereignty and law binding on state judges; the even stronger provisions of the Constitution did not prove insuperable for him. Why Martin should have favored the resolution as a special child of his own, we do not know. He was a very able lawyer. Looking about for a principle which would counteract the weakness of a union of sovereignties, perhaps he instinctively turned to courts.

[46] An extended examination of this question is ably made by C. A. Beard, The Supreme Court and the Constitution.

[47] It is impossible here to discuss in detail the origin of this idea, so critically significant; all great ideas have a long history in their growth to maturity. We should, however, be at a loss in any endeavor to discover the origin of the idea that courts might declare an act void unless we appreciate the philosophy of the Revolution and, indeed, of history preceding. Central in that philosophy and in the practical politics of the Revolution was the principle that a government transcending its assigned powers acts illegally.

[48] See Madison's Notes, July 11. See also July 5.

[49] It is interesting to notice that while the subject was under discussion, the old decrepit Congress at New York was engaged in enacting the Ordinance of 1787 (July 13), which provided for equality of the new states of the old northwest when they should be admitted into the union. Randolph remarked in the Convention (July 11): "Congress have pledged the public faith to New States, that they shall be admitted on equal terms." This reference was, of course, to the resolution of Congress passed seven years before.

[50] In this connection it should be noted that the western question was involved in the whole difficult problem of determining the basis of representation. "The majority of people", said Wilson, "wherever found ought in all questions to govern the minority. If the interior Country should acquire this majority they will not only have the right, but will avail themselves of it whether we will or no. This jealousy misled the policy of Great Britain with regard to America.... Again he could not agree that property was the sole or the primary object of Government and Society. The cultivation and improvement of the human mind was the most noble object." A vote passed at one time to take as a basis both wealth and population was finally changed by striking out "wealth". The question to strike out "wealth" was adopted with practical unanimity — nine states voted in the affirmative, Delaware divided (July 13).

[51] The whole subject of the expansion of the union was complex and perplexing. Vermont was likely to be admitted ere long. Furthermore, the problem of admitting as new states certain portions of the old states made a statement of general principles difficult. For the conclusion see Constitution, Art. IV, sec. 3, para. I.

[52] The chapter in this work on the Missouri Compromise discusses this subject. See Max Farrand, "Compromises of the Constitution," Am. Hist. Rev., IX, p. 479 ff.; Warren, op. cit., p. 595 ff.

[53] "Mr. Mason could not agree to the motion [to strike out the words "three fifths" and therefore count all the slaves], notwithstanding it was favorable to Virginia because he thought it unjust. It was certain that the slaves were valuable, as they raised the value of land, increased the exports and imports, and of course the revenue, would supply the means of feeding and supporting an army, and might in cases of emergency become themselves soldiers.... He could not however regard them as equal to freemen and could not vote for them as such." "Dr. Johnson, thought that wealth and population were the true, equitable rule of representation; but he conceived that these two principles resolved themselves into one; population being the best measure of wealth. He concluded therefore that the number of people ought to be established as the rule, and that all descriptions including blacks equally with the whites, ought to fall within the computation." Farrand, Records, I, pp. 581, 593. Professor Farrand is quite right in pointing out that the whole subject of slavery did not occupy as much attention in the Convention as was later ascribed to it. He objects to calling the adoption of the three-fifths rule a compromise at all. See Farrand, The Framing of the Constitution, pp. 107-108; Farrand, "Compromises of the Constitution," Am. Hist. Rev., IX, pp. 479-481. This contention is based partly on the fact that the proportion had been proposed before that time and even before the Convention met. Moreover, the discussion arose in connection with the great compromise, the report of the committee of July 5; the counting of slaves as the basis of representation did not form the most critical problem under discussion. Though of considerable importance in later days, in the course of the Convention it was one of the minor adjustments. There seems no doubt, however, that Morris's proposal smoothed the troubled waters. "The purpose of this provision [connecting direct taxation with representation] was to lessen the inducement to the Southern States to seek to increase their representation; since, by so doing, they would proportionally increase their share of the tax burdens. It is important to note, however, that Morris and some other delegates from the North were actuated quite as much by their fears of conditions which might arise in the West, as by their anxiety over the South." Warren, op. cit., p. 290.

[54] For obvious reasons the states were later also forbidden to levy duties on exports without the consent of Congress. For a full statement see Constitution, Art. I, sec. 10, para. 2.

[55] Mason "lamented that some of our Eastern brethren had from a lust of gain embarked in this nefarious traffic." It may be that such New Englanders as were willing to allow the slave-trade to continue, because of the demand of the far south were influenced by the interest of their section in the trade. Their very distance from the plantation region probably influenced them. Ellsworth said, "As population increases; poor laborers will be so plenty as to render slaves useless. Slavery in time will not be a speck in our Country." August 22. See also Sherman's remarks, August 22.

[56] The position of Maryland is uncertain though the vote was cast for allowing the importation during the period. Martin had earlier opposed importation as "dishonorable to the American character...."

[57] Probably North Carolina should be added to South Carolina and Georgia. The opposition of the North Carolina delegates appears, however, to have been directed against complete restriction. North Carolina's position can be seen, though only indistinctly, from remarks by Williamson, August 22 and 25. See also remarks by Morris and Mason, August 25, and by Rutledge, August 22.

[58] And still, he thought the southern states, if left to themselves, would probably stop the importation of slaves. He, as a citizen of South Carolina, would vote for it. Madison's Notes, August 22.

[59] "On twenty-one different days this subject was brought up in the Convention. Over thirty distinct votes were taken upon different phases of the method of election. Five times they voted in favor of appointment by the national legislature, and once against it. Once they voted for a system of electors chosen by the state legislatures, and twice they voted against such a system. Three times they voted to reconsider the whole question." Farrand, "Compromises of the Constitution," loc. cit., pp. 486-487.

[60] At least one member, Blount, was willing to sign under the terms proposed; he would attest the fact that the Constitution was "the unanimous act of the States", but he would not pledge his own support.

[61] Hamilton asked: "is it possible to deliberate between anarchy and Convulsion on one side, and the chance of good to be expected from the plan on the other." Gouverneur Morris said, "The moment this plan goes forth all other considerations will be laid aside — and the great question will be, shall there be a national Government or not?"

[62] Jameson, "Studies in the History of the Federal Convention of 1787," loc. cit., p. 157. Dickinson was absent, but at his request his name was put down by his colleague, Read. Farrand, Records, III, p. 81.

[63] The toil and trouble were passed. Washington's own words from his diary are of interest:

"Monday — 17th.

Met in Convention when the Constitution received the unanimous assent of 11 States and Colonel Hamilton's from New York (the only delegate from thence in Convention) and was subscribed to by every Member present except Governor Randolph and Colonel Mason from Virginia — and Mr. Gerry from Massachusetts. The business being thus closed, the Members adjourned to the City Tavern, dined together and took a cordial leave of each other. — after which I returned to my lodgings — did some business with, and received the papers from the secretary of the Convention, and retired to meditate on the momentous work which had been executed, after not less than five, for a large part of the time six, and sometimes 7 hours sitting every day, Sundays and the ten days adjournment to give a Committee opportunity and time to arrange the business for more than four months." Farrand, Records, III, p. 81.

[64] I say "appear", because, though Professor C. A. Beard in his An Economic Interpretation of the Constitution, a product of toilsome research, has shown that a large number of the delegates presented bonds in 1791, in accordance with Hamilton's funding plan, we cannot be entirely certain that these men owned the certificates in 1787. Furthermore, it is more than likely that in some cases the former members of the Convention acted, when they presented their certificates, as agents of other persons. An incomplete examination of the data, carried on at my suggestion by the Department of Historical Research of the Carnegie Institution at Washington, appears to justify this statement. A number of the more influential delegates presented no certificates in 1791. The fact remains that many of the delegates in all probability were creditors of the states and of the Congress.

[65] The Constitution says "All debts contracted and engagements entered into before the adoption of this Constitution shall be as valid against the United States under this Constitution as under the Confederation." Art. VI, para. I. This statement leaves out the words " 'under the authority of Congress' " of the Randolph resolution, and may indicate a purpose to allow the assumption of state debts.

[66] Dissenting opinion in Ogden v. Saunders, 12 Wheaton 213, 355 (1827).

[67] Morris's philosophy is illustrated by his speech on July 2; see also, his remarks on August 7. He said on July 6: "As to the alarm sounded, of an aristocracy, his creed was that there never was, nor ever will be a civilized Society without an Aristocracy. His endeavor was to keep it as much as possible from doing mischief." Note Madison's comments, August 7 and 10. Madison in general desired proper protection for minorities. Mason's position is stated August 8 and 14 and September 15; Gerry's, August 14; Williamson's, September 5; Randolph's, September 5; Wilson's, September 6.

[68] Various announcements indicate this. Dickinson "doubted the policy of interweaving into a Republican constitution a veneration for wealth. He had always understood that a veneration for poverty and virtue, were the objects of republican encouragement." Franklin declared, "Some of the greatest rogues he was ever acquainted with, were the richest rogues."

[69] For Adams's philosophy, see his Defence of the Constitutions of Government of the United States; "Three Letters to Roger Sherman, on the Constitution of the United States," Works (C. F. Adams, ed.), VI, p. 427 ff. See especially C. M. Walsh, The Political Science of John Adams.


CHAPTER XV

THE ADOPTION OF THE CONSTITUTION

Congress received the Constitution with no unseemly expression of pleasure; indeed, as Bancroft says, it had been in reality invited "to light its own funeral pyre." No body can be expected to decree gladly its own demise; but there seems to have been no special desire on the part of the moribund Congress to prolong its own futile life. On the twenty-eighth of September, 1787, a resolution without words of commendation was unanimously adopted [1] transmitting the Constitution to the several legislatures to be submitted by them to the state conventions.

The reception of the Constitution by the people at first appeared favorable. Gouverneur Morris wrote a characteristic letter to Washington: "The states eastward of New York appear to be almost unanimous in favor of the new Constitution, (for I make no account of the dissension in Rhode Island).... Jersey is so near unanimity in her favorable opinion, that we may count with certainty on something more than votes, should the state of affairs hereafter require the application of pointed arguments." He thought parties in New York were nearly balanced, but as the state was "hemmed in between the warm friends of the Constitution" there was ground for hoping that the "federal party" would prove successful. Of Pennsylvania he had fuller knowledge and entertained doubts. "True it is, that the city and its neighborhood are enthusiastic in the cause; but I dread the cold and sour temper of the back counties, and still more the wicked industry of those who have long habituated themselves to live on the public, and cannot bear the idea of being removed from the power and profit of state government...." [2]

Randolph reported favorable reception of the Constitution in Baltimore and Virginia, while Madison gathered a like impression Concerning New York City and most of the eastern states. But the ratification had dangerous foes to meet, and as the days went by the contest became more serious. It will be remembered that Yates and Lansing, of New York, had left the Convention at an early day; and in a letter to Governor Clinton they forcibly expressed their objections to the proposed system of government, for they believed any general government, however guarded by declarations of rights, would be "productive of the destruction of ... civil liberty...." Clinton and his immediate retinue were particularly hostile and sought by correspondence with leaders of the opposition in some of the other states to create a coöperative resistance. Luther Martin of Maryland, who had declaimed vehemently against the new system, went home to attack it. Gerry played a similar role in Massachusetts; he declared in a letter to the legislature that the "liberties of America were not secured by the system...." He believed that in many respects the Constitution had merits and by proper amendments might be "adapted to the 'exigencies of government, and preservation of liberty' "; the document as proposed had "few, if any, federal features," but was "rather a system of national government." [3] George Mason proved a valiant opponent of the new system to which he had himself contributed.[4] Randolph, who had labored earnestly in the Convention itself but had refused to sign, wrote the speaker of the Virginia house, not condemning the Constitution but suggesting its failings, the need of amendments, and the propriety of making changes "while we have the Constitution in our power...." [5] Fortunately, however, perhaps under the persuasion of Washington, he decided to favor adoption and worked to that end in the Virginia convention. It was soon evident that there would be strong opposition in three very important states, Massachusetts, New York, and Virginia, and without them a union would be useless and impracticable. A letter of Richard Henry Lee, written as early as October 16, expressed the opinion of one who was prepared to battle with unstinted persistence against ratification; a new convention ought to be summoned: "It cannot be denied, with truth, that this new Constitution is, in its first principles, highly and dangerously oligarchic...."

In the course of the public discussion few portions of the Constitution escaped scathing criticism. Dangers were found lurking in one clause after another and they were gleefully brought to light to confound the friends of the new order. To meet such opposition naturally proved a difficult matter; for it appeared not infrequently that every power granted was certain to be abused and to involve the destruction of American liberties. The dread of granting power filled many minds with foreboding; this dread was the most formidable obstacle to be overcome. The new government seemed something extraneous and distinct, as if it were not to be in the hands of the same people as those choosing the state governments and not to be subject to popular control. The patience, wisdom, and skill with which objections were met call forth deep admiration as one reads to-day the pamphlets and debates of those trying years. Hamilton and Madison deserve the greatest credit, probably, for masterly management and skillful argument. But it is safe to say that the character of George Washington secured the adoption of the Constitution; there was one man known to be strongly in favor of the new system in whom the masses of men had faith. Some persons feared the presidential authority under the new government; as Patrick Henry said, "Your President may easily become King." [6] Many foolish and extravagant attacks appeared in the newspapers. The delegates in the conventions appreciated the magnitude and solemnity of their task; and if the criticisms of the Constitution appear now to be the offspring of unnecessary fear of tyranny, the earnestness and the general intelligence of the discussion furnish marked evidence of political capacity. No mere analysis of the arguments can present the impression gathered by any thoughtful reader from the discussion, an impression of shrewdness and sagacity and common sense.[7]

In some of the central states, conventions soon gathered and acted promptly. Before the first of the year, the Constitution was ratified by Delaware, New Jersey, and Pennsylvania, the two former unanimously giving a favorable vote. In Pennsylvania, though the final vote was two to one for acceptance, the debates lasted three weeks and were marked by the persistence of a determined opposition sufficient to call for the full strength of Wilson and McKean in advocacy of the new government.

Wilson's defense of the Constitution was very able. He had to meet two main objections — the absence of a bill of rights and the charge that the Constitution established a consolidated government. In answer to the former objection he declared a bill of rights would be "highly imprudent". "In all societies, there are many powers and rights which cannot be particularly enumerated. A bill of rights annexed to a constitution is an enumeration of the powers reserved. If we attempt an enumeration, every thing that is not enumerated is presumed to be given." [8] He considered at length the assertion "that the boasted state sovereignties will, under this system, be disrobed of part of their power";[9] he spoke of the new system as a "confederated republic". "I consider the people of the United States as forming one great community; and I consider the people of the different states as forming communities, again, on a lesser scale." [10] Denying that the states would be obliterated, he asserted there would be consolidation so far as the general objects of the union were concerned: "so far it was intended to be a consolidation, and on such a consolidation, perhaps, our very existence, as a nation, depends."[11] Though Wilson's statement concerning the essential nature of a bill of rights is not without theoretical foundation, practically there could be no sound objection to the announcement of certain principles in the amendments to the Constitution, provided it was made perfectly clear that the denial of certain powers did not imply that powers not denied to Congress were granted.

The opponents of the Constitution were working for delay, and they wanted amendments to be offered to Congress and "taken into consideration by the United States" before the Constitution should be finally ratified.[12] To this there was of course objection; the convention decided against the proposal by a vote of forty-six to twenty-three, and the Constitution was ratified by the same vote.[13] After adoption public agitation and discussion ensued. Nearly nine months after the ratifying convention had adjourned, a gathering at Harrisburg proposed amendments to the Constitution and advocated a revision by a general convention from the several states of the union.[14] But the discontented elements, here as elsewhere, were not intransigent; they advised the people of the state to acquiesce in the organization of the government.

January saw the adoption of the Constitution by Georgia and Connecticut; the next month it was adopted by Massachusetts after a prolonged and serious discussion. Maryland and South Carolina soon fell into line. Before the first of June, therefore, eight states had ratified. The New Hampshire convention, meeting in February, was adjourned to a later time, but finally adopted the Constitution, June 21, 1788. But the all-important states of New York and Virginia were still in doubt.

Massachusetts, as we have seen, voted for ratification early in the winter, but a brief presentation of the convention's debates may now be given, as well as some account of the controversies in Virginia and New York. In the first of these states there was opposition from the interior region,[15] where Daniel Shays had found his support, where people were still smarting under a sense of unjust treatment, and still disliking the social and economic power of Boston and the eastern section in general. Added to this smoldering discontent was the fear, common to the opponents of the Constitution everywhere, of a new government on which was bestowed vast authority endangering the well-being of the states and the liberty of the individual man. Hancock and Samuel Adams, both of them possessors of considerable influence among the plain people, were reticent at first, seemingly the prey of misgiving and uncertainty. Adams indeed wrote Richard Henry Lee in December: "...I stumble at the Threshold. I meet with a National Government, instead of a Federal Union of Sovereign States." Hancock was chosen chairman of the convention but for a time did not attend the sessions because of an illness which some persons thought would be cured when he discovered which way the winds of popular favor were blowing. But ere long his uncertainty vanished. Ratification was secured in Massachusetts, and it seems the anxiety of Hancock and Adams was banished by a letter from Washington, which had been printed in Virginia and Pennsylvania and was published in a Boston paper while the convention was in session:[16] "... and clear I am if another Federal Convention is attempted, the sentiment of the members will be more discordant.... I am fully persuaded ... that it [the Constitution] or disunion, is before us. If the first is our choice, when the defects of it are experienced, a constitutional door is open for amendments and may be adopted in a peaceable manner without tumult or disorder." This was a plain solution of the perplexities of the anxious and earnest men who, like Adams, were stumbling at the threshold and saw their dearly-won liberties surrendered to a new and dreadful government.

The plan of ratifying the Constitution and recommending amendments was followed. Nine amendments were proposed, and the representatives of the state in Congress were enjoined to exert their influence to obtain adoption of the amendments in the manner prescribed by the Constitution. But the victory was a narrow one. Of the 355 delegates, 168 refused to yield even to the lure of subsequent amendments. By a change of ten votes from the affirmative to the negative, the Constitution would have been defeated in Massachusetts. What the consequence would have been we can only imagine; but our imagination calls forth a picture of confusion and, mayhap, strife. Union might have resulted from arms, not from peaceful agreement.

And still, there was a readiness to acquiesce in a decision reached after long and fair discussion.[17] Delegates who had objected earnestly to the Constitution went back to their constituents to say that the new system, ratified after free debate, would receive their support. To anyone knowing anything of the career of "irreconcilables" in modern European history, the most conspicuous thing in the struggle over the adoption of the American Constitution is found in this readiness to accept defeat and not to cherish undying animosities. The readiness of a minority to accept a fair defeat is necessary for successful democracy and popular government; the right of the majority to govern, subject to the necessity of a consideration for minority rights, is no more a part of democracy than is the duty of the minority to coöperate in the acknowledgment of majority power.

In the Virginia convention there was fervid and declamatory attack upon the proposed Constitution. Patrick Henry led the attack ably and eloquently. Richard Henry Lee was not in the convention, but the depth of his opposition to the new system was known and his influence in the state and in the land at large was not slight. George Mason was chosen to the convention and ably supported Henry's oratorical attacks, while James Monroe gave such assistance as he could. But Madison was also there, and without Madison the federal Constitution would have stood no chance of surviving. He was aided by John Marshall, then a young man of thirty-two, by George Nicholas, and by Randolph, who, as we have seen, had finally decided to advocate adoption. Madison bore the brunt of the fight. Quietly, almost placidly, meeting the assaults of Henry's waves of oratory with arguments, facts, and logic — in short, in his own gentle way — he performed feats of forensic skill in one of the great debates of history.[18]

One subject of dispute — the extent of the treaty-making power — was particularly important in Virginia and added to the difficulty of securing ratification; the western part of the state feared that free navigation of the Mississippi would be surrendered or that some humiliating agreement with Spain would be entered into.[19] But there were many other objections to the Constitution. Henry left no stone unturned in his effort to defeat ratification; his ingenuity was as clever as his oratory was bold and defiant. The men at Philadelphia, he declared, had no authority to do more than amend the Confederation, and yet they had proceeded to draw up plans for a consolidated government: "... What right had they to say, We, the people? ... Who authorized them to speak the language of, We, the people, instead of, We, the states? States are the characteristics and the soul of a confederation. If the states be not the agents of this compact, it must be one great, consolidated, national government, of the people of all the states.... Even from that illustrious man who saved us by his valor, I would have a reason for his conduct...." [20] As the days went by, ably supported by Mason and a few others, he assaulted — there is no better word — provision after provision of the new Constitution.

In the course of the debates Madison found it necessary to describe the nature of the new union. Here, it will be noticed, he had to meet the assertion that the Constitution provided for a "consolidated government", one of the main charges of his opponents: "In some respects it is a government of a federal nature; in others, it is of a consolidated nature.... Thus it is of a complicated nature; and this complication, I trust, will be found to exclude the evils of absolute consolidation, as well as of a mere confederacy. If Virginia was separated from all the states, her power and authority would extend to all cases: in like manner, were all powers vested in the general government, it would be a consolidated government; but the powers of the federal government are enumerated; it can only operate in certain cases; it has legislative powers on defined and limited objects, beyond which it cannot extend its jurisdiction." [21] This did not satisfy Henry: "This government is so new, it wants a name. I wish its other novelties were as harmless as this." [22] But the sneer was unjustified; even to-day one might find it difficult to give an untechnical description more satisfactory than Madison's.[23]

Henry's dislike of the whole document was so intense, if one may justly gather his opinion from the debates, that one has difficulty in seeing how he could give his adherence to ratification under any condition; but toward the end his chief demand was for the adoption of amendments before the acceptance of the Constitution. Here, however, as in Massachusetts, the convention decided to ratify the Constitution and to associate with ratification a series of amendments for adoption after the establishment of the new system. So after these weeks of strenuous and orderly, but heated, controversy, the Federalists won by the narrow margin of eleven votes.[24]

In New York, as in Virginia, the advocates of the Constitution met vigorous opposition — so vigorous and so ably led that for a long time ratification seemed to be quite impossible. The Clinton faction, led by a leader who had the confidence of large numbers of the people, were determined to prevent ratification of the Constitution as it was presented, and they prosecuted their attack unrelentingly. Taking the name of the Federal Republicans, they brought to bear all possible forces of persuasion and influence. In other states men appeared to be chiefly concerned with the danger to individual liberty; in New York this fear was not absent; appeals could be made to sentiment as well as to economic interest. But the localists were playing a dangerous game; New York, as yet not one of the most populous states, could not safely play a lone hand. There was a considerable sense of self-sufficiency, a reliance on the state's own strength, but its frontiers were open to attack; it was not safe, either as a member of a distracted and incompetent Confederation or standing quite alone, to face with its own feeble strength a world hungry for power. The Clinton men wanted a union not sufficiently strong to prevent the state from having its own way in certain essential particulars. And Clinton himself of course declared, as did men in other states, that the Constitution in the end would establish a consolidated government. We find therefore an atmosphere of personal ill feeling, based in part on animosities, or less vehement feeling, which had been developing for some time, and based also on a desire for a large degree of economic or commercial freedom. New York City possessed a magnificent harbor which gave to the state commercial advantages over its neighbors, and the leaders of the Clinton group, seeing in prospect a development which the coming decades turned into achievement, looked with misgivings upon any scheme of government likely to rob the state of its peculiar strength. "... the constitution called forth in New York the fiercest resistance that selfish interests could organize." [25]

John Jay, a mild-tempered man, capable of taking a strong position but not given to the use of bitter words, writing before the state convention met, thus placed the facts before the people: "We have unhappily become divided into parties; and this important subject has been handled with such indiscreet and offensive acrimony, and with so many little, unhandsome artifices and misrepresentations, that pernicious heats and animosities have been kindled, and spread their flames far and wide among us." [26] He did not charge the Clintonians alone with being the victims of party zeal and acrimony; he was pleading for sane and reasonable consideration of the Constitution and for freedom from vindictive strife. New York City and the more immediate neighborhood favored ratification. The small farmers in general, it appears, were arrayed against the large landowners.[27] So there was not only a clash of pecuniary interests but something like class antagonism. The geographical differences were plain and the feeling was acute — so plain in fact that it was even rumored that the region in and about New York City might venture to separate from the rest of the state.[28]

The Letters from the Federal Farmer, written by Richard Henry Lee, the implacable foe of the Constitution, were circulated freely in New York. But able defenders of the Constitution were at hand. Robert R. Livingston and Jay, men of character and influence, strongly advocated ratification. And one continentalist, peculiarly fitted by temperament and intelligence for forensic conflict, entered the lists with enthusiasm; Hamilton, now reaching the height of his intellectual power and filled with zeal for a cause he had long cherished, saved the union and the Constitution in New York.

In explaining and defending the Constitution, Madison, Hamilton, and Jay published essays in the New York press. They were signed by the pen-name of "Publius" and later published under the title of The Federalist. These essays were probably of service in winning support of the Constitution; but the extent of that service we naturally cannot measure. For much immediate practical effect they were perhaps too learned, too free from passion. Not often are many people converted by plain logic and unadorned presentation of facts and principles; and doubtless those vehemently detesting the new system were not convinced. We do know, however, that the essays then published are among the few great treatises on government ever published by political philosophers or statesmen. The traditional treatise had been more or less vague, distant, theoretical, and written not infrequently in a style quite beyond the grasp of any but the learned, and the specially learned at that. But The Federalist was not clouded by the mists of needless abstractions or darkened by a heavy and opaque style. The articles were directed toward one great question — the worth of the proposed Constitution — and this fact gave them a certain coherence; but, withal, they were filled with wise discussions of the principles of government. No one can read them to-day without admiration for the learning and skill of these young men engaged in one of the most momentous political struggles in all history. One additional fact is to be noted: The Federalist probably had more effect after the new government went into operation than in the days of uncertainty when the fate of the union seemed to hang in the balance; its learned and logical and yet concrete interpretation of the Constitution long continued to be influential in solving the practical problems of law and government.

When the New York convention met, the advocates of ratification faced an opposition so strongly intrenched, so ably generated, and so capable of offensive attack, that the task of the constitutionalists must have seemed well-nigh hopeless. Hamilton himself is authority for the statement that two-thirds of the elected delegates were hostile. Could the known opposition, supported by combined interests astutely managed, be overcome by the weapons of argument and persuasion? Governor Clinton, chosen as the president of the convention, had not much to say in the discussion upon the floor. The Anti-Federalists were led by Lansing and Melancthon Smith; the Federalists by Hamilton, Jay, and Robert R. Livingston, We do not find in the debates announcement that union was unnecessary or even that the Confederation was sufficient without modification; but as in other states the Constitution was subjected to criticism in many details and was held forth as destructive of the states [29] and the liberties of the people. The opponents of the proposed system, though continuous in their attacks, came ere long to the point where they were willing to accept some sort of conditional ratification.

At one stage in the anxious days of debate Hamilton seems almost to have yielded to despair. Complete and unqualified ratification appeared unlikely, if not quite impossible. He wrote Madison asking his opinion of a conditional ratification with "the reservation of a right to recede" in case amendments were not obtained. "My opinion is," Madison wrote in reply, "that a reservation of a right to withdraw, if amendments be not decided on under the form of the Constitution within a certain time, is a conditional ratification; that it does not make New-York a member of the new Union, and consequently that she could not be received on that plan." [30] It was no time to abandon the contest.

Toward the end of the convention, Smith moved that the Constitution ought to be ratified "upon condition, nevertheless, That until a convention shall be called and convened for proposing amendments" certain powers granted to Congress should not be exercised. Lansing moved to postpone the various propositions before the house in order to take into consideration a draft of a conditional ratification, with a bill of rights prefixed and with amendments. Mr. Jones, to whom honor is due, moved that the words "on condition" in Smith's motion be obliterated, and that the words "in full confidence" be substituted. This motion was carried. The crisis was passed; Melancthon Smith himself voted for unconditional ratification, as did Gilbert Livingston, who had complained bitterly against the menacing specter of the new government.[31] But the margin of victory was narrow; thirty-one voted for unconditional ratification, twenty-nine against it. The next day (July 24) Lansing, not to be overcome, moved to adopt a resolution announcing the reservation of the right of the state to withdraw within a certain number of years, unless proposed amendments should previously be submitted to a general convention. "The motion was negatived" is the brief but sufficient statement in the records of debate. The final ratification was agreed upon July 26 by a vote of thirty to twenty-seven. Two votes, changed from affirmative to negative, would have changed the result, and New York would have refused to accept the Constitution, except under embarrassing conditions and qualifications. Nine states had ratified the Constitution before Virginia and New York acted.

It appears to have been the hope of Clinton and his cohorts from the beginning rather to insist on a new convention and amendments than to advocate outright the rejection of the Constitution, and, after the vote was taken, the convention unanimously adopted a circular letter addressed to the governors of the several states requesting them to secure action by the legislatures in order that Congress might speedily summon a convention.[32] Madison declared this letter to be of "a most pestilent tendency"; but it was the only way to secure New York's acceptance, and it was a cheap price to pay. The prospect of another convention gave some encouragement to North Carolina and Rhode Island, both of which still held back.[33] The Virginia legislature, dominated by Henry, hastened to make application to Congress and to issue a circular letter to the other states. But the movement for the new convention failed; the people were doubtless weary of prolonged discussion. In Connecticut it received no support; Massachusetts thought a second convention might endanger the union; and the Pennsylvania house announced that it could not consistently with its duty to the good people of the state, or with its affection to the citizens of the United States, concur with Virginia in asking for a convention.[34]

As we have seen, the objections to the Constitution by its opponents were plentiful. Possibly the most frequent charge was the absence of a bill of rights. The Federalists endeavored to defend the failure to lay down the fundamental principles and reservations because the Constitution was a grant of power, and, in consequence, the new government would have no authority except what was actually bestowed. This argument, while technically correct, did not assuage the fears of the opponents; they desired to have some limitations expressly laid down. The history of the Constitution after adoption is evidence of the wisdom of these demands.[35]

The single most serious objection, with the possible exception of the one just mentioned, was the overthrow of the Confederation and the alleged complete "consolidation" of the union.[36] But there were many others: the reëligibility of the president and the danger of monarchy; the vast power of the president, who was neither checked nor assisted by a council; the treaty-making power of the president and Senate, especially dwelt upon in Virginia and North Carolina; the power of the Senate and length of the senatorial term; the authority of Congress over the seat of government; the power of Congress to regulate the time, place, and manner of electing representatives, a power which would be used to vex and enslave the people; the two-year term for representatives; the small number of representatives; the regulation of commerce; and the absence of provision for jury trial in civil cases. Even the vice-presidency — though not receiving much attention — was spoken of as a useless office. Patrick Henry, proclaiming the common detestation of slavery, but asserting the ruinous consequences of manumission, held up to view the awful thought that Congress, legislating for the common defense and general welfare, might call for the emancipation of slaves.[37]

In the system established by the Constitution, the courts were called upon to exercise wide authority. Probably few fully appreciated how important a part they were destined to play; for, as we have seen, on the courts — state and national — rests much of the obligation of maintaining the constitutional system. The fear of judicial methods and processes dangerous to individual liberty was often manifest in the debates; and the provisions of the sixth, seventh, and eighth amendments, which were adopted after the ratification of the Constitution, give evidence of this fear and of the need of restrictions for the protection of individual rights. But of special significance was the opposition to the broad jurisdiction of the federal courts, for they, it was alleged, would absorb all judicial authority and would leave none for the state tribunals, or, at the best, leave them but the puny role of passing upon trivial local disputes.

There was not much debate on the power of the federal Court to declare a law of Congress void;[38] the right of the courts to do this could scarcely alarm those who were filled with fear of congressional tyranny. There was some objection to the clause making the Constitution, laws, and treaties the supreme law of the land; but it is probably right to say the objection bore rather upon the fact or the principle of federal supremacy than upon its maintenance by courts. The more serious objection, as said above, was directed to inclusive and widely-extended federal jurisdiction.

On this subject Hamilton's discussion in The Federalist is especially interesting and impressive. The doctrines which he laid down may have helped the men, who, after the new government went into effect, marked out the judicial system. Of chief consequence is his use of fundamental principles of jurisprudence, particularly those within what the lawyers call the "conflict of laws". He applied those principles to the new federal system.[39] Here, he seems to say, is no strange and fantastic novelty, nothing revolutionary; these fundamental doctrines are well-seasoned and need create no great perplexity. There are few things more important than the acceptance and the continuation of the principles of the common law and the principles of general jurisprudence in our constitutional system.

Quieting the fears of those who saw the state courts relegated to a condition of insignificance, Hamilton appears to intimate that they might have more duties rather than less: "... I hold that the state courts will he divested of no part of their primitive jurisdiction, further than may relate to an appeal; and I am even of opinion, that in every case in which they were not expressly excluded by the future acts of the national legislature, they will of course take cognizance of the causes to which those acts may give birth. This I infer from the nature of judiciary power, and from the general genius of the system." [40] This means that the setting up of a system of courts with their special and limited jurisdiction will not in itself lessen the previous jurisdiction and authority of other courts; furthermore, as there is a new lawmaking power, there will be additional laws to be recognized and applied by the courts already in existence. In Hamilton's statement there is only one word to which one might take exception; that is "expressly".

The exposition in The Federalist discloses to clear view the nature of our federal judicial system. State laws are (in accord with principles of general jurisprudence) recognized and applied in federal courts; federal laws are recognized and applied in state courts, and the Constitution, of course, is law in both.[41]

It is of course an interesting and critical question whether the men of 1787-1788 intended to establish a government and a new political system totally different in essential character from that provided by the Articles of Confederation. Did they purpose to abandon a union of sovereign states? That they had no such purpose is often asserted to-day; but the reader of the contemporary literature will find insurmountable difficulty in reaching this conclusion. He will find abundant assertion by friends, and even more by enemies of the new order, that a national system was being founded; the advocates of ratification felt called upon to stress the fact that the states were not being entirely robbed of powers and utterly doomed to destruction. It is sometimes said, and has been said by historians, that the people would have firmly refused to adopt the Constitution had they not supposed that a state could at any time withdraw. Such an assertion needs evidence to support it. Of the intention of the framers to establish a national government and to abandon a Confederation of sovereign states there is no possibility of doubt. Madison's statement to Jefferson (October 24, 1787) is fully supported by all the evidence: "It appeared to be the sincere and unanimous wish of the Convention to cherish and preserve the Union of the States.... It was generally agreed that the objects of the Union could not be secured by any system founded on the principle of a confederation of Sovereign States." The people of that generation had been making constitutions; they knew what the very word involved. The prolonged discussion in the conventions and in the controversial literature of 1787-1788 appears all to have been based on the belief that the people were engaged in a most solemn undertaking, and that its consequences could affect their happiness and welfare for generations. They were certainly well warned: "It is to be observed", said Richard Henry Lee in the Letters from the Federal Farmer, "that when the people shall adopt the proposed constitution it will be their last and supreme act; it will be adopted not by the people of New Hampshire, Massachusetts, &c., but by the people of the United States...." [42]

The argument for state sovereignty will be discussed on later pages, but it may be said here that the argument rests upon a notion of sovereignty different from that commonly if not universally held by the men of 1788. The position so elaborately portrayed and defended by Calhoun and his disciples was not based essentially on concrete evidence of the purposes of the people, certainly not on direct testimony. The state sovereignty argument in general does not rest on direct testimony expressed contemporaneously with the adoption of the Constitution to the effect that the people believed they were establishing a system and intended to establish a system from which any state, when it so desired, might withdraw.[43]

The demand for a second convention before the adoption of the Constitution is in itself an evidence (perhaps not conclusive, but evidence nevertheless) of a belief by the opponents of the proposed system that the states were irretrievably bound and could not withdraw at any time when they found the new yoke oppressive. It is significant, too, that there was no successful effort, like that made when the Articles of Confederation were under discussion, to announce in the Constitution the retention of sovereignty by the states. If anyone knew the character of the new document, it was Oliver Ellsworth; he had struggled valiantly in the Convention to save the identity of the states and to keep them from being submerged in the national system; he was an able lawyer and later a chief justice of the United States. Advocating the adoption of the Constitution, he pointed to the authority of the judiciary to declare void any law unauthorized by the Constitution, whether passed by the national legislature or by the states. "Still, however, if the United States and the individual states will quarrel, if they want to fight, they may do it, and no frame of government can possibly prevent it. It is sufficient for this Constitution, that, so far from laying them under a necessity of contending, it provides every reasonable check against it. But perhaps, at some time or other, there will be a contest; the states may rise against the general government. If this do take place, if all the states combine, if all oppose, the whole will not eat up the members, but the measure which is opposed to the sense of the people will prove abortive. In republics, it is a fundamental principle that the majority govern, and that the minority comply with the general voice. How contrary, then, to republican principles, how humiliating, is our present situation! A single state can rise up, and put a veto upon the most important public measures.... Hence we see how necessary for the Union is a coercive principle. No man pretends the contrary: we all see and feel this necessity. The only question is, Shall it be a coercion of law, or a coercion of arms? There is no other possible alternative. Where will those who oppose a coercion of law come out? Where will they end? A necessary consequence of their principles is a war of the states one against the other. I am for a coercion by law — that coercion which acts only upon delinquent individuals. This Constitution does not attempt to coerce sovereign bodies, states, in their political capacity. No coercion is applicable to such bodies, but that of an armed force.... But this legal coercion singles out the guilty individual, and punishes him for breaking the laws of the Union."[44] No one searching for belief among the fathers that any state might legally withdraw from the union and that its citizens might legally refuse to obey the laws of the union can obtain from these words much satisfaction.

At a later day, fifty years or so after the adoption of the Constitution, the advocates of the right of the states to secede from the union cited certain resolutions and declarations made by the state ratifying conventions. But these assertions, depended on to indicate the right of a state at any time to withdraw, were in reality the commonplaces of the compact philosophy, entirely out of harmony with the idea that a state of the union, as if it were an international body, acting upon its sovereign authority, could withdraw from a treaty relationship. They announce the fundamental principles of free government. Resolutions of Virginia, New York, and Rhode Island are those commonly cited.

In ratifying the Constitution the Virginia convention used the following words: "We the Delegates of the People of Virginia ... Do in the name and in behalf of the People of Virginia declare and make known that the powers granted under the Constitution being derived from the People of the United States may be resumed by them whensoever the same shall be perverted to their injury or oppression and that every power not granted thereby remains with them and at their will: that therefore no right of any denomination can be cancelled abridged restrained or modified by the Congress by the Senate or House of Representatives acting in any Capacity by the President or any Department or Officer of the United States except in those instances in which power is given by the Constitution for those purposes: & that among other essential rights the liberty of Conscience and of the Press cannot be cancelled abridged restrained or modified by any authority of the United States." [45]

New York and Rhode Island adopted resolutions which were substantially alike. The first New York declaration is: "That all Power is originally vested in and consequently derived from the People, and that Government is instituted by them for their common Interest Protection and Security." The third declaration reads: "That the Powers of Government may be reassumed by the People, whensoever it shall become necessary to their Happiness; that every Power, Jurisdiction and right, which is not by the said Constitution clearly delegated to the Congress of the United States, or the departments of the Government thereof, remains to the People of the several States, or to their respective State Governments to whom they may have granted the same...." [46] After these expressions appear statements concerning freedom of religion, the right to keep and bear arms, and similar pronouncements. In this respect the Rhode Island resolutions were of a similar character.

The Rhode Island convention, adopting the Constitution in 1790, declared "That all power is naturally vested in, and consequently derived from the People.... That the powers of government may be reassumed by the people, whensoever it shall become necessary to their happiness...." [47] All this is orthodox enough in the philosophy of social compact. But perhaps of more interest is the fact that, after making sundry statements concerning the guaranties and principles of safe government, the convention enjoined the senators and representatives who were to be elected to Congress to prepare certain amendments. The first of these is as follows: "The United States shall guarantee to each State its sovereignty, freedom and independence, and every power, jurisdiction and right, which is not by this constitution expressly delegated to the United States." [48] These words are almost an exact copy of the second article of the Articles of Confederation. Did Rhode Island suppose she was entering into a new confederation of sovereignties? Washington had at an earlier day expressed the hope that the scales were "ready to drop from the eyes, and the infatuation to be removed from the heart" of the people of that state.[49] Evidently some of the scales were still in place. But the nearest approach — and it was rather a rejection than an approach — to the resolution recommended by Rhode Island guaranteeing sovereignty, was the important principle announced in what became the tenth amendment: "The powers not granted to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively or to the people." This statement was intended to safeguard the rights of the component parts of an integral union.

It is sometimes said that, if the people of the whole country in primary meetings or by individual votes had had the opportunity of passing upon the Constitution, it would have been rejected.[50] But of course no one can positively know whether such assertions are true or not. There was strong opposition. It was most intense in the back-country, in those sections where people felt less keenly than in the seashore towns the need of national organization and government; opposition was not unnatural among persons living the free life of the frontier. One cannot, however, go studiously through the debates without seeing the impracticability, or at least the difficulty, of properly discussing such matters as were involved by any other method than that actually followed. The proposed system was attacked and defended, caricatured and lauded in the newspapers; pamphlets were issued and were widely distributed; learned treatises were written and read; hand-to-hand debates tested the strength of argument. Had Henry's passionate oratory been addressed to crowds of listeners at the county courthouses, his eloquence might have won a sweeping victory; but in the quiet of the assembly hall it proved no match for Madison's relentless and unemotional logic. If the New York voters had been subjected only to the cleverness of Clinton and the skillful arguments of Melancthon Smith, they would perhaps have failed to read The Federalist; but the arguments of Hamilton were too strong for the opponents of ratification under conditions in which arguments counted.

The debates in Massachusetts, a critical state, were, as already suggested, impressive; fears and forebodings and prejudices were met frankly; over 350 delegates from a population of about half a million discussed and debated for a month the alleged dangers and the probable value of the proposed system. And this sort of thing, we are sometimes told, was a conspiracy to rob the people of their rights! [51] The action of New Hampshire is especially interesting. When the convention assembled, a majority, including many members from the remote parts of the state, opposed the Constitution. Some of the delegates were instructed by their towns to vote against ratification. But, as has already been noticed, the convention adjourned; there was further discussion and time for consideration, and when it met again the Constitution was adopted by a vote of fifty-seven to forty-seven.[52]

Just how many people voted for the delegates to the state conventions of ratification cannot be told. It seems all but certain that only a small portion voted and only a fraction of those qualified to vote. The residents of the more thickly-populated regions could and probably did vote in greater proportions than those in the sparsely-settled regions. This may have given the towns or the commercial areas an advantage. The unavoidable fact is that the men of those days did not eagerly participate in elections when they had the right and the opportunity. In Philadelphia only about five per cent. of the population voted for delegates,[53] though one would gather from the papers and pamphlets that there was much excitement. In Boston where 2700 were entitled to vote, only 760 electors participated in the election of delegates to the ratifying convention, about one-half as many as voted in the next gubernatorial election.[54]

Several conclusions seem reasonably well-founded: the majority of the people, even when the issue was important and had been much discussed, were apathetic; the "better classes", the "well-born", had had influence and they long continued to exercise it. The new government was set up by men who were sufficiently interested to take the trouble to vote. The democracy of the nineteenth century had not yet arrived.

It is quite impossible to classify accurately the opponents or the advocates of the Constitution. Economic influences of course played their part. If generalizations must be indulged in, it is probably correct to say that on the whole the well-to-do — especially the commercial elements of the population — favored ratification; the sections remote from the centers of trade were inclined to be opposed to it. But even this classification needs modification. Not all of the back-country — the region naturally less affected by government and in some instances bearing a traditional grudge against domination by the eastern section — was opposed to ratification; and by no means were all of the prosperous planters or men of property advocates of the new system. No attempt to draw lines sharply dividing the people into classes can be successful. Geographical and sectional conditions were of considerable influence in determining the attitudes of men; some differences of opinion were apparently due to special economic interests. If one thinks of the struggle in Virginia, where Washington and Mason represented opposite sides, the difficulty of classification is plain. Richard Henry Lee, after referring to debtors and also to aristocrats desirous of power, said: "these two parties are really insignificant compared with the solid, free, and independent part of the community." [55] Though the areas favorable to ratification, in a number of instances, lay along routes of trade, it is quite possible, of course, that this attitude toward the Constitution was due, at least in a measure, to the fact that the people of those areas could be reached by information emanating from the east, and were not solely guided by economic influences or geographical environment.[56]

Certain it is that the fear lest the states be submerged, lest personal liberty be endangered, lest one section or group of states should tyrannize over another (in other words, sectional jealousy that was only partly due to any particular sectional economic interests) embodied the great list of objections to the Constitution. The first amendment to the Constitution provided for religious liberty; not one amendment proposed to the Constitution struck at the prohibition of paper money[57] or at the provision against the impairment of the obligation of contracts.

The adoption of the Constitution was a great event in history; the representatives of a numerous people living in various communities, along a coast a thousand miles and more in length, met in their respective gatherings and there, generally without bitter partisan strife and totally without uproar, debated the nature of the government which they proposed to establish over half a continent.[58]

The Constitution was ratified by the states in the following order:

Delaware, December 7, 1787. Unanimous.

Pennsylvania, December 12, 1787. 46-23.

New Jersey, December 18, 1787. Unanimous.

Georgia, January 2, 1788. Unanimous.

Connecticut, January 9, 1788. 128-40.

Massachusetts, February 6, 1788. 187-168.

Maryland, April 26, 1788. 63-11.

South Carolina, May 23, 1788. 149-73.

New Hampshire, June 21, 1788. 57-47.

Virginia, June 25, 1788. 89-79 (89-78).

New York, July 26, 1788. 30-27.

North Carolina, November 21, 1789. August 2, 1788, refused by a vote of 184-83 to ratify until a bill of rights and other amendments were put forth. Ratified November 21, 1789, by a vote of 195-77.

Rhode Island, May 29, 1790. 34-32.

Vermont, whose entry into the union was contemplated by the Federal Convention, adopted the Constitution January 10, 1791, and was admitted March 4.


[1] Members from eleven states were present, "and from Maryland Mr Ross". Rhode Island was not represented. Documentary History of the Constitution, II, p. 22.

[2] October 30, 1787. See Elliot, Debates (1866 ed), I, pp. 505-506.

[3] See Elliot, Debates, I, p. 493.

[4] The letters of Yates and Lansing, of Gerry, Mason, and Randolph are in Elliot, Debates, I. They give exceedingly good indication of the nature and extent of objections to the Constitution. This volume also contains Martin's "Genuine Information". See also Farrand, Records, III, especially p. 151 ff; p. 172 ff.

[5] See Elliot, Debates, I, p. 490.

[6] Richard Henry Lee's powerful opposition to the Constitution, expressed in his Observation ... of the system of government, proposed by the late Convention.... In ... Letters from the Federal Farmer to the Republican, which was one of the most popular and widely-distributed pamphlets of the day, called forth the following stinging rebuke from Oliver Ellsworth in his "Letters of a Landholder": "The factious spirit of R. H. L., his implacable hatred to General Washington, his well-known intrigues against him in the late war ... is so recent in your minds it is not necessary to repeat them. He is supposed to be the author of most of the scurrility poured out in the New-York papers against the constitution." See Essays on the Constitution (P. L. Ford, ed.), p. 161. Ellsworth hit hard and did not belabor his opponents — Martin, for example — with gloves.

[7] The remarks of a Mr. Smith in the Massachusetts convention are worth quoting at length, as showing how one plain man could look at the problem. We must be content with only a few of his sentences: "Mr. President, I am a plain man, and get my living by the plough. I am not used to speak in public, but I beg your leave to say a few words to my brother ploughjoggers in this house.... I had been a member of the Convention to form our own state constitution, and had learnt something of the checks and balances of power, and I found them all here. I did not go to any lawyer, to ask his opinion; we have no lawyer in our town, and we do well enough without. I formed my own opinion, and was pleased with this Constitution.... But I don't think the worse of the Constitution because lawyers, and men of learning, and moneyed men, are fond of it. I don't suspect that they want to get into Congress and abuse their power.... I don't know why our constituents have not a good right to be as jealous of us as we seem to be of the Congress; and I think those gentlemen, who are so very suspicious that as soon as a man gets into power he turns rogue, had better look at home." Elliot, Debates (1863 ed.), II, pp. 102-103. One may make a shrewd guess to the effect that this plowman's direct appeal won as many votes as did many more labored addresses; men such as Mr. Smith were able to found and perpetuate free government.

[8] Ibid., II, p. 436. Italics of the original omitted.

[9] Ibid., II, p. 443. Italics of the original omitted.

[10] Ibid., II, p. 456. "The United Netherlands are, indeed, an assemblage of societies; but this assemblage constitutes no new one, and therefore it does not correspond with the full definition of a confederate republic." Ibid., II, p. 422. Italics of the original omitted.

[11] Ibid., II, p. 461.

[12] J. B. McMaster and F. D. Stone, Pennsylvania and the Federal Constitution, p. 424.

[13] Philadelphia broke forth into rejoicing. At a dinner celebrating ratification thirteen toasts were proposed and drunk. Among them were the following: "The People of the United States." "May order and justice be the pillars of the American Temple of Liberty." "The virtuous minority of Rhode Island." Noteworthy, too, as indicative of a belief in the mission of America to enlighten the world and to bring freedom to Europe were the toasts: "May the flame, kindled on the Altar of Liberty in America, lead the nations of the world to a knowledge of their rights and to the means of recovering them." "May America diffuse over Europe a greater portion of political light than she has borrowed from her." "Peace and free governments to all the nations in the world." Ibid., pp. 428-429

[14] Ibid., p. 558 ff.

[15] See O. G. Libby, The Geographical Distribution of the Vote of the Thirteen States on the Federal Constitution, 1787-8 (Bulletin of the University of Wisconsin, Economics, Political Science, and History Series, I, no. 1), p. 12. Libby says the eastern section was 73 per cent. for ratification and 27 per cent. against; the middle section was 14 per cent. for and 86 per cent. against; the western section was 42 per cent. for and 58 per cent. against.

[16] See letter from Washington to Charles Carter, December 14, 1787, in Washington, Writings (W. C. Ford, ed.), XI, pp. 210-211 note. See also, George Bancroft, History of the United States (last revision), VI, pp. 401, 380. Earlier than the date of the letter to Carter, Washington's private letters show he had advocated ratification, and, if it seemed necessary, the submission of amendments after ratification. See especially, Writings, XI, p. 185. For the Massachusetts convention, see S. B. Harding, The Contest Over the Ratification of the Federal Constitution in the State of Massachusetts (Harvard Historical Studies, II).

[17] See, for example, Elliot, Debates, II, pp. 182-183.

[18] As E. P. Smith properly says, "Now it is not easy for us to make the comparison fairly." "The Movement Towards a Second Constitutional Convention in 1788," Essays in the Constitutional History of the United States (J. F. Jameson; ed.), p. 83. We irresistibly side with Madison and see the telling quality of his arguments. Even acknowledging the disadvantage arising from the passing of a century and more, we need not deny ourselves the pleasure of admiring the quality of Madison's skill. Henry was doubtless a very great orator, one of the most commanding in a century of great orators among the English-speaking peoples; his prestige was large, his manner often, as is the wont with orators of the Chatham type, intimidating; but Madjson won the victory.

[19] George Nicholas referred to the tendency of the opposition to harp upon this matter: "Gentlemen recurred to their favorite business again — their scuffle for Kentucky votes." Elliot, Debates (1863 ed.), III, p. 502. For some time past Jay had been engaged on behalf of the Confederation in negotiations with the Spanish minister.

[20] Ibid., III, pp. 22-23; see also, pp. 156, 171, 395. George Mason declared: "... it is a national government, and no longer a Confederation.... The assumption of this power of laying direct taxes does, of itself, entirely change the confederation of the states into one consolidated government." Ibid., III, p. 29. In the Philadelphia convention he had not taken a stand, especially in the earlier days, in opposition to the establishment of a national system. See especially his remarks on May 30, June 7, June 20, July 23.

[21] Elliot, Debates, III, pp. 94-95. The whole of Madison's defense against the charge of consolidation is important. Cf. Wilson's statement referred to on a previous page.

[22] Ibid., III, p. 160.

[23] He discussed the same subject in The Federalist, no. XXXIX.

[24] June 25, 1788. The vote is given in the Debates as eighty-nine to seventy-nine, but the count of ayes and noes is eighty-nine to seventy-eight. See Elliot, Debates, III, pp. 654-655. Henry at one time treated with eloquent contempt the proposals for subsequent amendments. Such proposals, he declared, were made "only to lull our apprehensions.... Will gentlemen tell me that they are in earnest about these amendments? I am convinced they mean nothing serious." Ibid., III, pp. 649-650. Libby points out that the eastern section of Virginia was 80 per cent. favorable to adoption. The middle region, the region of small farmers, was 74 per cent. against adoption. The third district, including the Shenandoah valley, chiefly Scotch-Irish and German in population, was 97 per cent. for adoption. The Kentucky district was 90 per cent. against adoption. This was the region fearing the closure of the Mississippi, and it was also the region of the "Spanish conspiracy". Libby, op. cit., pp. 34-35.

[25] George Bancroft, History of the United States (last revision), VI, p. 454. We may question, however, whether one side was more influenced by its interests than the other.

[26] Elliot, Debates, I, p. 500.

[27] "We must conclude, then, that although the better part of Antifederal New York was indeed infested with great estates which monopolized the best lands as late as 1788, the opposition to the Constitution came from the small farmer, generally a tenant on a large manor or patent, not from the manor lord or proprietor." E. W. Spaulding, New York in the Critical Period 1783-1781), p. 83. Cf. Libby, op. cit., p. 26.

[28] Ibid., p. 19; Bancroft, History of the United States (last revision), VI, p. 455.

[29] Melancthon Smith said: "He was pleased that, thus early in debate, the honorable gentleman [Livingston?] had himself shown that the intent of the Constitution was not a confederacy, but a reduction of all the states into a consolidated government." Elliot, Debates, II, p. 224.

[30] Hamilton, Works (J. C. Hamilton, ed.), I. pp. 464-465; see also, A. C. McLaughlin, The Confederation and the Constitution, pp. 310-311.

[31] "What will be their [the Senate's] situation in a federal town? Hallowed ground! Nothing so unclean as state laws to enter there, surrounded, as they will be, by an impenetrable wall of adamant and gold, the wealth of the whole country flowing into it." At this someone asked what wall was meant and Livingston answered, "A wall of gold — of adamant, which will flow in from all parts of the continent" — a reply which caused "a great laugh in the house." Elliot, Debates, II, p. 287.

[32] Elliot, Debates, II, pp. 413-414.

[33] Space does not allow extended discussion of the debates in North Carolina or Rhode Island. Both states did not ratify until after the Constitution had gone into operation. See L. I. Trenholme, The Ratification of the Federal Constitution in North Carolina, and F. G. Bates, Rhode Island and the Formation of the Union, chs. V-VI.

[34] Smith, "The Movement Towards a Second Constitutional Convention in 1788," loc. cit., pp. 101-103, 109-110.

[35] The Federalist, no. LXXXIV, argues there are in the Constitution certain definite restrictions, e.g., provision for habeas corpus, provision against bills of attainder, etc. But such an assertion militates against the succeeding theoretical argument. If there were need of some restrictions to protect liberty, why not of others? "Here," says the writer, "in strictness, the people surrender nothing; and as they retain every thing, they have no need of particular reservations.... I go further, and affirm, that bills of rights, in the sense and to the extent they are contended for, are not only unnecessary, in the proposed constitution, but would even be dangerous. — They would contain various exceptions to powers not granted; and on this very account, would afford a colourable pretext to claim more than were granted." Wilson's argument already referred to is of like character.

[36] In speaking of this objection, Rufus King in the Massachusetts convention said: "The introduction to this Constitution is in these words: 'We, the people,' &c. The language of the Confederation is, 'We, the states,' &c. The latter is a mere federal government of states." Elliot, Debates, II, p. 55. Nason said: "Let us, sir, begin with this Constitution, and see what it is. And first, 'We, the people of the United States, do,' &c. If this, sir, does not go to an annihilation of the state governments, and to a perfect consolidation of the whole Union, I do not know what does.... How, then, can we vote for this Constitution, that destroys that sovereignty?" Ibid., II, p. 134.

[37] Warren quite properly points out that a "fair survey of the situation will satisfy one that the Antifederalist party had its share of 'men distinguished alike for their integrity and ability'." He quotes a letter written by Madison from New York, October 30, 1787: " 'I am truly sorry to find so many respectable names on your list of adversaries to the Federal Constitution. The diversity of opinion on so interesting a subject among men of equal integrity and discernment is at once a melancholy proof of the fallibility of the human judgment and of the imperfect progress yet made in the science of government.'" Warren, The Making of the Constitution, pp. 751-752.

[38] Hamilton ably discussed this in no. LXXVIII of The Federalist. James Iredell discussed the general principles of judicial review most illuminatingly in 1787. See G. J. McRee, Life and Correspondence of James Iredell, II, p. 172 ff.

[39] Marshall made a similar statement in the Virginia convention. See Elliot, Debates, III, p. 556. Notice Mason's attack upon article III of the Constitution. Ibid., p. 551. Note Wilson's description of the judiciary. Ibid., II, p. 486 ff.

[40] In no. XXXII of The Federalist Hamilton lays down general principles which he believes applicable to the legislative authority of the new government. Especial attention is paid to the question whether Congress will necessarily have exclusive authority over fields of legislation granted to it by the Constitution. The line of thought he proposes in this number is followed as a basis of the learned discussion of the judicial power, which he treats in no. LXXXII.

[41] It. is unnecessary to point out here the instances in which the federal courts have exclusive jurisdiction. The general principle is as stated in the text. "The laws of the United States are laws in the several States, and just as much binding on the citizens and courts thereof as the State laws are. The United States is not a foreign sovereignty as regards the several States, but is a concurrent, and, within its jurisdiction, paramount sovereignty. Every citizen of a State is a subject of two distinct sovereignties, having concurrent jurisdiction in the State, — concurrent as to place and persons, though distinct as to subject-matter. Legal or equitable rights, acquired under either system of laws, may be enforced in any court of either sovereignty competent to hear and determine such kind of rights and not restrained by its constitution in the exercise of such jurisdiction. Thus, a legal or equitable right acquired under State laws, may be prosecuted in the State courts, and also, if the parties reside in different States, in the Federal courts." Claflin v. Houseman, 93 U. S. 130, 136 (1876). For a plain announcement that rights arising under congressional acts may be enforced in state courts, see Second Employers' Liability Cases, 223 U. S. 1, 55-59 (1912).

[42] See Pamphlets on the Constitution (P. L. Ford, ed.), p. 311. "The 'Letters of the Federal Farmer' was one of the most popular of arguments against the new government, 'four editions (and several thousands) of the pamphlet ... being in a few months printed and sold in the several states' ". Note in Ibid., p. 277. There were so many declarations that the new system did not maintain the principle of the Confederation that references are hardly necessary, but see Gerry's statement as another example. Farrand, Records, III, pp. 128-129. A letter of "Cato" (George Clinton), printed in The New York Journal, represented the strong opposition to the Constitution in New York: "what have they done? ... This Convention have exceeded the authority given to them, and have transmitted to Congress a new political fabric, essentially and fundamentally distinct and different from it, in which the different states do not retain separately their sovereignty and independency, united by a confederate league — but one entire sovereignty, a consolidation of them into one government...." See Essays on the Constitution (P. L. Ford, ed.), p. 253. Cf. a letter of Roger Sherman, printed in The New Haven Gazette, in which he pointed out that each state retains "its sovereignty in what concerns its own internal government...." Essays on the Constitution, p. 238.

[43] The ablest and most elaborate exposition of historical evidence in favor of state sovereignty is in A. H. Stephens, A Constitutional View of the Late War Between the States, I. There is no space here to examine his treatment, but it is fair to say that he conspicuously stresses certain phrases or words from which the inferences may be drawn that the states retained complete sovereignty and the right to secede.

[44] Elliot, Debates, II, pp. 196-197. This statement of Ellsworth should be studied in connection with the question in 1860-1861 whether the states could be coerced. He here states clearly that individuals in states can be forced to obey national law.

[45] Documentary History of the Constitution, II, p. 145.

[46] Ibid., II, pp. 190-191. It is specially singular that New York should be mentioned as a state reserving the power to withdraw from the union, for in the ratifying convention, as we have seen, a proposal to retain that power was voted down. Is it possible to believe that, when the great question had been thus settled, the defenders of the Constitution in New York would have quietly accepted a resolution declaring the right to secede? For Rhode Island, see Ibid., p. 310 ff. The resolutions are more like bills of rights than anything else. The Rhode Island resolutions, for example, begin with the declaration "That there are certain natural rights, of which men when they form a social compact, cannot deprive or divest their posterity...."

[47] Only such portions of the resolutions of Virginia, New York, and Rhode Island as might be conceived to be assertions of the right to secede are given here. They in reality contain the principles of the compact philosophy — government has derived and not indigenous authority. Some of these doctrines are discussed in A. C. McLaughlin,, The Foundations of American Constitutionalism and The Courts, the Constitution and Parties.

[48] Documentary History of the Constitution, II, p. 316.

[49] Washington, Writings (W. C. Ford, ed.), XI, p. 287. Italics of original omitted.

[50] Libby says, "... there is sufficient proof of a general correspondence between the sentiment of the constituency and the vote of the delegate at the state convention to warrant the conclusion, that the votes of these representatives registered the public sentiment in each state on the question of ratifying the Federal Constitution." Libby, op. cit., p. 70. Hildreth questions whether "upon a fair canvass," a majority of the people, even in the ratifying states, were in favor of the Constitution. He appears to rely chiefly on the dissent by the minority of the Pennsylvania convention. The History of the United States (revised ed.), second series, IV, pp. 28-29. See also, Smith, "The Movement Towards a Second Constitutional Convention in 1788," loc. cit., p. 111.

[51] In Pennsylvania the opponents of adoption continued in an ill humor for some time. The region in which the "whisky rebellion" afterwards occurred (1794) was especially hostile to the new system. In Pennsylvania the suffrage was widely distributed and, though the adoption of the Constitution was accomplished quickly, perhaps hurriedly, the people had every chance that a public press afforded.

[52] See especially, Libby, op. cit., pp. 70-75, with quotations from newspapers; J. B. Walker, A History of the New Hampshire Convention.

[53] C. A. Beard, An Economic Interpretation of the Constitution, pp. 246-247. For New York, see Spaulding, op. cit., p. 230.

[54] Beard, op. cit., p. 244. Voting in the early days has been painstakingly presented by J. F. Jameson, "Did the Fathers Vote?" New England Magazine, new series, I, p. 484 ff. See also C. O. Paullin, "The First Elections Under the Constitution," The Iowa Journal of History and Politics, II, p. 3.

[55] Quoted in Warren, The Making of the Constitution, p. 747.

[56] Warren, after speaking of the natural hesitation of men of the back-country to grant to a new government extensive powers, and of the fact that they were necessarily ignorant of the legislation of other states which had produced political evils, says, "And in addition to all these considerations, a division between the Western and Eastern portions of the States, in 1787, represented, to some extent, a division between the less well-informed and the better informed, rather than a division between the poor and the well-to-do." Ibid., pp. 749-750.

[57] There must have been a good deal of opposition on this ground, though it did not come prominently to the fore. Madison, writing to Jefferson, October 17, 1788, declared that the articles relating to treaties, to paper money, and to contracts created more enemies than all the errors in the system positive and negative together. Henry announced in the Virginia convention his detestation of paper money. Elliot, Debates, III, p. 156. He protested, however, against undue infringement upon state competence: "If we cannot be trusted with the private contracts of the citizens, we must be depraved indeed." Ibid.

[58] To lament, as some appear to do, that the Constitution was not adopted by a method which might perhaps be suitable at the present day, is to lose sight of the momentous character of the undertaking which must be viewed with an appreciation of the background of preceding centuries. Jefferson wrote, March 18, 1789, "The example of changing a constitution by assembling the wise men of the State, instead of assembling armies, will be worth as much to the world as the former examples we had given them." Jefferson, Works (federal ed.), V, pp. 469-470.


CHAPTER XVI

ORGANIZATION OF THE GOVERNMENT.
HAMILTON'S FINANCIAL POLICY.
IMPLIED POWERS.
THE JUDICIAL SYSTEM.

To put the Constitution into effect and the government into operation, the old Congress named the first Wednesday in January for the appointment of presidential electors, the first Wednesday in February for the election of the president, and the first Wednesday in March, which was the fourth day of the month, for the establishment of the new government at New York, then the meeting-place of Congress. The new legislature met with the deliberation characteristic of those days. A quorum of the House was not in attendance until the first of April and of the Senate not until some days later. Washington was declared elected President and Adams Vice-President; the President took the oath of office April 30, 1789. Even before the inauguration of the President the House had gone to work upon a revenue bill, which was passed after some weeks of discussion, and after modification by the Senate the act became a law; the new government had means of getting revenue. At an early date provision was made for the organization of executive departments. Washington named to the important offices provided for by the congressional act, Thomas Jefferson, Secretary of State; Alexander Hamilton, Secretary of the Treasury; and Henry Knox, Secretary of War. The office of Attorney-General, not strictly an executive office, was given to Edmund Randolph.[1] Some months passed, however, before these offices were filled and the executive branch of the government was in working order.

The new government went into operation quietly. Those who had opposed the adoption of the Constitution were prepared to accept the results of the long discussion and not to prevent the peaceful inauguration of the system. There were, it is true, many who still retained certain fears and forebodings — fears lest under cover of the Constitution personal rights would be ignored or even a counter-revolution be brought to pass. Such opposition, if opposition it may be called, was, as we shall see, confined practically to a determination not to allow the Constitution to he maltreated by the men charged with the duty of making it operative. The Constitution marked the limits of governmental power; those limits must not be crossed. We need to bear in mind that the Constitution was actualized as a living fact by translation into tangible institutions. To comprehend now the importance of this early transmutation is not easy; but the fact is plain; every step taken, every principle announced or acted upon, was important in giving life to words; conduct was creative; practice and procedure soon became constitutional reality.

As we have seen, some of the states when ratifying the Constitution had advocated and proposed amendments. At the first session of the first Congress twelve amendments were proposed, ten of which were in the course of time ratified by the requisite number of states. These amendments are restrictions on the powers of the national government, not on the powers of the states.[2]

Finance was the crucial problem of the time. How were the debts of the country to be provided for? Any attempt to establish a thorough financial system, indeed anything likely to give effectiveness to the new government, was sure to meet with objection. In the autumn of 1789 Congress directed the Secretary of the Treasury to prepare a plan for the support of the public credit. Hamilton entered joyously upon the task and in January presented his report. The whole paper richly rewards reading, if anyone desires to know the principles for which Hamilton stood and the basis on which the financial system of the new government was made to rest. By what means, he asked, is the maintenance of public credit to be effected? "The ready answer to which question is, by good faith; by a punctual performance of contracts." The answer appears simple enough now, but its importance thus announced at the beginning, in days of poverty when at least partial repudiation was thinkable, was of great moment. It involved the establishment of the national character. The proper and honest handling of the debts meant more than financial stability or economic well-being in any narrow sense; there was a moral obligation. There was, the Secretary declared, a general belief that the credit of the United States would be established on "the firm foundation of an effectual provision for the existing debt." "... among ourselves," he said, "the most enlightened friends of good government are those whose expectations are the highest. To justify and preserve their confidence; to promote the increasing respectability of the American name; to answer the calls of justice; to restore landed property to its due value; to furnish new resources, both to agriculture and commerce; to cement more closely the union of the States; to add to their security against foreign attack; to establish public order on the basis of an upright and liberal policy; — these are the great and invaluable ends to be secured by a proper and adequate provision, at the present period, for the support of public credit."

He deprecated making any discrimination between the "original holders of the public securities, and present possessors, by purchase".[3] Against such a proposal he presented vigorous objections. In this connection he referred to the constitutional provision concerning the validity of the debt. The state debts, too, he believed should be assumed: "Indeed, a great part of the particular debts of the States has arisen from assumptions by them on account of the Union. And it is most equitable that there should be the same measure of retribution for all." The total foreign and domestic national debt, including arrears of interest, he placed at $54,124,464.56; the state debts he estimated to be about $25,000,000, making in the aggregate nearly $80,000,000.

The discussion in the House disclosed distrust and divergence of opinion. Concerning the debt owed to foreign governments, there was not much to be said; but the domestic debt was another matter. Why pay the present holders the face value of the certificates, when, as everyone knew, many of these certificates had been secured for a small fraction of their face value? Why put money in the pockets of the speculators and the money-changers? Some members probably wished a definite depreciation of the debt. Madison, not edified by the eagerness of the bondholders to reap their unexpected reward, proposed in the House to pay to the holders of the certificates the highest price which the certificates had up to that time reached in the market, and to pay the remainder to the original holders. Such a plan was of course impracticable, and is here mentioned only because it gives evidence of Madison's separation from Hamilton and his failure to identify himself with the elements that were gathering about the Secretary of the Treasury and applauding his plans. And all this is important for constitutional history because opposition based upon constitutional argument arose and conflicting theories of constitutional construction concerning the powers of the national government were put forth. The debates in the House were sufficiently earnest and excited to give warning of the struggle to come. Madison's proposal received only thirteen out of forty-nine votes.

The assumption of the state debts had a particularly hard road to travel. Over that matter the debate was heated, vehement. The root of the difficulty was that some of the states, and notably Virginia, had considerably reduced their debts, while others had not. The debt of Massachusetts was burdensome, as was that of South Carolina. The members from the states with large debts and all holders of state securities were naturally impressed with the wisdom of Hamilton's proposal for assumption; but it was at first not acceptable to Congress. Hamilton did not despair. Jefferson had recently appeared in New York to take up the duties of office, and partly through his assistance a bargain was struck whereby enough votes were obtained to secure assumption, and it was arranged that the seat of government should be for ten years at Philadelphia and thereafter on the Potomac. The bill for the funding of the debt, including the debts of the states at specified amounts, was passed in August, 1790. Jefferson later lamented that for "This game", as he called it, "... I was most ignorantly & innocently made to hold the candle." "... the more debt Hamilton could rake up, the more plunder for his mercenaries."

Hamilton's reasons for desiring assumption were fairly plain. By this as by other plans he doubtless desired to attract the interest of those "enlightened friends of good government" of whom he had spoken. Assumption would be of value to security-holders and would be approved by all or many who desired stability and good order in financial affairs. If such persons were drawn to support the new government, it would have real and substantial strength. Probably of great moment in his mind was the effect of having creditors look to the national government rather than to the states for payment of their claims.[4]

The question of assumption had arisen in the Constitutional Convention,[5] and Hamilton's plan therefore could have been no new and startling proposal to a good many members of Congress. Disintegration of the union was a real danger, to men like Hamilton, the greatest danger. If there should be but one debtor — the nation — the creditors would be deeply interested in the national stability. A creditor is always interested in the well-being of his debtor. Why the seat of government should be considered such a weighty matter is less easy to understand. Whatever the reason, it appeared to be a thing of vital importance. The site of the national government had been discussed before there was any government worthy of the name, and at a time when men might properly doubt whether there would be a nation; of course state pride and jealousy played their parts, and that very jealousy was fraught with peril. Though of trivial importance in comparison with Hamilton's wide and deeply-laid plans, it was one of those tangible questions which are wont to arouse men's combative local patriotism.[6]

Did Hamilton's assumption measure really help to strengthen the union? One cannot be sure. Doubtless anything making for financial and commercial stability and for strengthening the public credit helped to create national vitality and to develop national sentiment. But enmities were aroused, sectional differences appeared, and the agrarian opposition to the certificate-holders and speculators quickened suspicions and alarms. Hamilton's plans for developing political unity and strengthening the new government were not altogether promoted by assumption. Ere long Jefferson was bitterly hostile to all the devices which seemed calculated to enrich the speculators. The agrarian elements were not ready to balance financial stability and commercial prosperity over against the ready-made fortunes of the few; the whole funding process appeared to be begotten of evil.

Hamilton's plans included the levying of an excise tax on distilled liquors as well as an increase in customs duties. In the spring of 1791, the Excise Act was passed. There could be no reasonable objection to it on constitutional grounds, for the right to levy excises is explicitly mentioned in the Constitution, but it provoked indignant opposition. The objectors in the back-country, who had been accustomed to use this liquid currency for more than their own delectation, carried their opposition so far that it was necessary at a later time (1794) to call forth troops to suppress the "whisky rebellion" in western Pennsylvania. Men claimed the natural right to drink freely without having their simple joys disturbed, and they doubtless failed to see the humor in the suggestion that they might be drinking down the national debt.

Of most importance from the viewpoint of the constitutional historian was Hamilton's plan for a national bank. On that subject he made a separate report in December, 1790. To justify the measure the Secretary had to show the advantages of a bank and its service to the government. The principal advantages he declared were the augmentation of active or productive capital, the greater facility of the government in obtaining pecuniary aids, especially in emergencies, and lastly, the increased facility in the payment of taxes. A capital of ten million dollars was proposed, one-fourth payable in specie and the remainder in certificates of the public debt; one-fifth of the capital stock was to be subscribed for by the government, that sum to be borrowed of the bank.

The proposal was of course sharply attacked. A large portion of the American people have never felt affection for banks; in those days the mysteries of the banking business were to many persons as hateful as they were obscure. In Congress Madison furnished the arguments against the constitutionality of the measure, and as usual he spoke with ability and precision.[7] Doubtless he found himself in an awkward position. He had ardently desired the organization of a real union; more than any other man he could be credited with the honor of forming the system which was now going into effect. But was the document which he had so ably defended in Virginia against the blasts of Henry's eloquence to be distorted by clever interpretation? We may assume his dislike of seeing nationalism and governmental authority attained by indirection; and if we think he was over-precise, we need to remember also that in Hamilton's deft, but not too delicate hands, the Constitution might be transmuted into a document quite unlike that intended by its makers.[8] Madison's opposition to Hamilton's ideas and proposals, an opposition which soon grew in intensity, has often been commented upon. He was now plainly drawing away from his companion in the recent titanic struggle for the establishment of a national government and an efficient union. In him those elements of the people who dreaded the extension of the governmental power and saw no need for banks or bonds, and who looked with foreboding upon a huge national debt, found an able and conscientious leader.

In full sympathy with Madison was the Secretary of State, a man with a strange and exceptional capacity for popular leadership, and with a decided objection to overhead government. It used to be not uncommon to attribute Madison's retirement from active coöperation with Hamilton to the machinations or the uncanny influence of Jefferson. How much we can fairly ascribe to such influence, no one can say. But it is not quite fair to assume that, because Madison favored a strong government during days of disorder when the union seemed to be in process of disintegration, he could not, unless he were converted by secret and selfish counsels, have taken a stand against what appeared to be an extravagant and unexpected interpretation of governmental authority. The government was established; that was the salient fact; it had gone into operation; and no one can now find cause for wonder in discovering differences of opinion concerning constitutional construction. Some men, anxious to keep faith, or fearing, as many did, the rise of a dominating and dictatorial government, were not ready at once to acquiesce silently in the exercise of every power which the acute Secretary of the Treasury thought advisable. Madison's opposition was not an entirely new attitude or based on unreasoning jealousy or foolish foreboding. The Constitutional Convention had refused to grant even a restricted and limited power to create a corporation.[9] It would have been strange indeed, had Madison openly advocated under the Constitution a power which he knew the Convention had refused to consign to the new government.

The bank bill passed both houses in the early days of 1791, and was approved by the President (February 25). But before signing, Washington asked for the opinion of others, and this request brought forth two able state papers which presented two conflicting principles of constitutional construction. Jefferson, finding the bill unconstitutional, laid down the doctrine of strict construction; Hamilton advocated broad or liberal construction. Each paper may properly be considered the classical exposition of the respective theories set forth. All the ingenuity of later days fell short of discovering more cogent or adroit argument.

Jefferson quoted the tenth amendment and declared that the incorporation of a bank was not one of the delegated powers; it was not one of those specially enumerated powers; nor was it within the "general phrases" of the Constitution wherein authority is granted to impose taxes to provide for the general welfare and to make all laws necessary and proper for carrying the enumerated powers into execution. He pointed out that the general welfare clause bestowed on Congress power, not to do anything it might please to provide for the general welfare, but only to lay taxes for that purpose.[10] The necessary and proper clause he interpreted by an emphasis on "necessary"; all the enumerated powers could be carried into execution without a bank, and it was therefore not necessary and consequently not authorized. Bank bills might be a more convenient vehicle for payment of taxes than treasury orders; but a little difference in the degree of convenience could not constitute the necessity which the Constitution mentioned. In this last statement we find the dangerously weak link in his whole argument; if a government cannot use means which it considers suitable for exercising its powers, and if it cannot be guided by considerations of convenience and of ease in the management of its undoubted authority, then it is almost hopelessly restricted. For the captious critic might without difficulty find that any or every proposed measure is unnecessary and hence unconstitutional because some other measure or proceeding might be used. No government strictly confined by such a doctrine could function.

Hamilton's argument was a masterly exposition of the theories of a broad and liberal interpretation of the Constitution. His general conclusions were those on which the government has acted from its foundation and which are still supposed to be effective. He did not dare to announce what appears in these latter days to be the opinion of no inconsiderable number of people: that the federal government can legally do anything and everything thought to be for the general welfare. He did not deny, of course, that the government is one of enumerated powers. At the outset, the astute young Secretary laid down the principle, which he declared to be inherent in the very definition of government, "That every power vested in a government is in its nature sovereign, and includes, by force of the term, a right to employ all the means requisite and fairly applicable to the attainment of the ends of such power, and which are not precluded by restrictions and exceptions specified in the Constitution, or not immoral, or not contrary to the essential ends of political society."

The critical question concerned the right to erect a corporation; Hamilton contended, as it is "unquestionably incident to sovereign power to erect corporations," it is consequently incident "to that of the United States, in relation to the objects intrusted to the management of the government." In this portion of the argument he was approaching dangerously near to the idea that, if other governments had the power to establish corporations, the United States government must be supposed to have it. But he did not pass over into that forbidden territory. He found in the Constitution implied as well as express powers, and for the sake of accuracy he declared there were also "resulting powers", which he defined as those resulting from the whole mass of the powers of government and from the nature of political society.[11] "... necessary", he maintained, "often means no more than needful, requisite, incidental, useful, or conducive to.... The degree in which a measure is necessary, can never be a test of the legal right to adopt it; that must be a matter of opinion, and can only be a test of expediency." He then propounded his doctrine of implied powers in words that needed no addition in the future, when men defended liberal construction. Speaking of the test of the constitutionality of an act, he said, "This criterion is the end, to which the measure relates as a mean. If the end be clearly comprehended within any of the specified powers, and if the measure have an obvious relation to that end, and is not forbidden by any particular provision of the Constitution, it may safely be deemed to come within the compass of the national authority." [12]

These two doctrines or principles of constitutional interpretation underlay many of the debates and controversies in the decades that followed their first pronouncement. It is sometimes said that they constituted the continuing foundations and principles of parties; that the line of cleavage between contesting parties was the line marking off the advocates of broad construction from the defenders of the outer ramparts of narrow construction. But obviously such a generalization is not tenable. Devotion to either one of these doctrines, even if it seems to occupy a particular shrine and be worshiped by the faithful of a party, must at best be of secondary, not primary, importance; for men do not swear fealty to a mode of constitutional interpretation for its own sake; they do not bow down to an abstraction of constitutional law. Jefferson, for example, was a strict constructionist (at least part of the time), not because he was a narrow-minded technician, but because he had definite ideas of social needs and because he had a social philosophy. Hamilton wanted to do things; he was not primarily burning candles before the altar of a disembodied principle of constitutional interpretation. Parties, furthermore, have the qualities of a chameleon; they easily change color; and when a party is in power, things which shocked its constitutional conscience when it was in opposition appear harmless and beneficial. It is so easy to transfer the lares and penates of daily worship from one niche to another. Almost from the very beginning of the government the Constitution was vigorously defended both by those who believed that granted power should be used freely and by those who feared lest constitutional limits be exceeded; no one seriously criticized it. Both groups, differing in their opinion as to the limits of constitutional authority, buckled on the armor of orthodox righteousness in defense of the Constitution itself. All this, of course, was of tremendous influence in conserving, and, on the whole, in stabilizing constitutional government. This "worship of the Constitution", this apotheosis of a sheet of parchment, has often aroused the curiosity and the wonder of the outside world; but man must, it seems, worship something, and the American man soon paid reverence to the document which symbolized to him union, the product of stress and storm, a noble achievement of which he was fully prepared to boast. Debates and quarrels about construction of the Constitution made for permanency by lifting the document itself beyond the reach of ordinary party evaluation and beyond the assaults of malignant malcontents.

At the very beginning of the government Congress took up the task of establishing the judicial system. The framers of the Constitution had left to Congress a large measure of discretion. The general principles are laid down in the Constitution but the details are not given. The extent of the judicial power is stated in broad and comprehensive terms; the power is "vested in one Supreme Court, and in such inferior courts as Congress may from time to time ordain and establish";[13] but the Constitution does not state the number of judges and does not make it obligatory on Congress to establish inferior courts. The task lay with Congress to work out a system of courts and to establish the system by law. The duty was one of great importance, and especially important was the task of designating the relationship between the state courts and the federal courts, a subject on which there had been considerable discussion in the past. The Judiciary Act, which is attributed chiefly to the skill of Oliver Ellsworth, was passed in September, 1789. It remained for over a century without vital alteration, and the more general and critical principles are still in force.

The Supreme Court, as established by the act, consisted of one chief justice and five associate justices. Thirteen districts were established, in each of which there was to be a district court.[14] Three circuits were provided for; in each was to be held a court consisting of any two justices of the Supreme Court and the district judge. To the district courts was assigned cognizance of crimes of an inferior order and they were given exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction.[15] The circuit courts were to have original jurisdiction, concurrent with the courts of the states, of all suits of a civil nature at common law or in equity, where the sum involved was more than five hundred dollars, and the suit was between a citizen of a state in which the suit was brought and a citizen of another state. To the circuit courts was assigned exclusive cognizance of crimes and offenses cognizable under the authority of the United States, except where the act otherwise provided, and also concurrent jurisdiction with the district courts of criminal cases which might be there instituted. Provision was made for removal of causes from a state court to a circuit court under certain conditions.[16] Appeals might be made, by writ of error, from a district to a circuit court, and by like process from a circuit court to the Supreme Court.[17]

Of paramount significance are the provisions of the act concerning review by the federal Supreme Court of judgments and decrees of state tribunals. This subject, which is covered by section twenty-five of the act, was in later years the center of acute and bitter controversy. The Constitution does not explicitly grant to the federal judiciary any such right to examine, review, or affirm the decisions of state courts. The Judiciary Act established this authority in the following manner: a case could be carried to the Supreme Court for review (1) when a decision of the highest state court "in which a decision in the suit could be had" was against the validity of a treaty or statute of the United States, or an authority exercised under the United States; (2) when the validity of a statute of a state or an authority exercised by a state had been drawn into question on the ground of its being repugnant to the Constitution, laws, or treaties of the United States, and the decision of the state court be in favor of the validity; (3) when there was drawn into question the construction of any clause of the Constitution or of a treaty or statute of the United States, and the decision was against the title, right, privilege, or exemption claimed by either party.

An examination of this statement, which at first sight appears perplexing, shows that the purpose was to provide that a state decision could be carried to the Supreme Court for review only if the state court was charged with failing to give full effect to the Constitution, laws, or treaties of the United States. And this fact carries us back again to what I have called the chief problem of the critical period, the problem of finding a method by which there would be assurance that the states would fulfill their obligations. The obligation to uphold the Constitution and the structure of the union was specifically thrown upon state judges. But how could there be any certainty that the judges would not uphold a state law, even though it be contrary to the "law of the land", or would not deny to a litigant at the bar a privilege claimed to belong to him under the federal Constitution, law, or treaty? To establish such certainty, or at least to provide for such assurance as federal judicial oversight would furnish, the Judiciary Act included the system of review of state decisions.

The Judiciary Act does not indicate any objection to a decision by a state court refusing to recognize the validity of a federal statute; but it does provide for a review to test the legality of the decision; it seems, indeed, to take for granted that such a decision might properly be rendered, and from this we are led to conclude that the federal Supreme Court could agree with the state tribunal as well as disagree; therefore the Judiciary Act, even though it makes no specific declaration of the power, assumes the right of a court, either state or national, to declare congressional acts void. As this fundamental statute was enacted by men, some of whom had been active in the Federal Convention, we are entitled to gather from it evidence of the intention of the framers to recognize this important judicial power. That fact should be taken into consideration by those who even to-day question the constitutional right of any court to declare an act void, or, to use the words of James Otis of an earlier day, pass it "into disuse".[18]


[1] The office of attorney-general was provided for by the Judiciary Act of 1789. Among other duties the attorney-general was to be legal adviser to the president and the heads of departments. See H. B. Learned, The President's Cabinet, p. 105.

[2] See Barron v. Baltimore, 7 Peters 243 (1833). This is perfectly in accord with the general principles of constitutional construction and with the history of the proposal and adoption of the amendments.

[3] "Those who advocate a discrimination are for making a full provision for the securities of the former at their nominal value, but contend that the latter ought to receive no more than the cost to them, and the interest." Hamilton, "First Report on the Public Credit," Works (H. C. Lodge, ed.), II, pp. 236-237.

[4] It should be noticed that in his report he mentions that in countries in which the public debt is properly funded it answers most of the purposes of money: "... stock, in the principal transactions of business, passes current as specie." When one considers the monetary conditions of that day the advantage of stock that might thus pass current is obvious. He also points out that under the new government a principal branch of revenue "is exclusively vested in the Union;" and the states, for various reasons, would always be checked in the levying of taxes on articles of consumption.

[5] See Farrand, Records, II, p. 327; III, p. 361.

[6] The Pennsylvania convention at the time of adopting the Constitution, though eleven states had still to act, appointed a committee which actually reported on the proposal to cede to Congress a seat of government. See McMaster and Stone, op. cit., p. 430.

[7] He called attention to the rejection in the Convention of granting Congress the power of incorporation, declaring in addition: "It appeared on the whole that the power exercised by the bill was condemned by the silence of the Constitution; was condemned by the rule of interpretation arising out of the Constitution; was condemned by its tendency to destroy the main characteristics of the Constitution; was condemned by the expositions of the friends of the Constitution whilst depending before the people; was condemned by the apparent intentions of the parties which ratified the Constitution; was condemned by the explanatory amendments proposed by Congress themselves to the Constitution." Quoted in D. R. Dewey, Financial History of the United States, pp. 99-100. See also Gaillard Hunt, The Life of James Madison, p. 202. It may be noticed that a quarter of a century later Madison signed the bill creating the Second Bank of the United States.

[8] In this connection the ruminations of a contemporary are illustrative. William Maclay, a Senator from Pennsylvania, filled with the suspicions and forebodings which were By no means peculiar to himself, wrote in his Journal, April 4, 1790: "Hence appears plainly how much the assumption of the State debts was made a point of by the court party. In fact, the reduction of the State governments was the object in theory in framing both the Constitution and the Judiciary and in as many laws of the United States as were capable of taking a tincture of that kind. But it won't do." Journal of William Maclay, p. 232. "... I clearly see," he wrote in 1791, "that the poor goddess of liberty is likely to be hunted out of this quarter as well as the other quarters of the globe." Ibid., p. 402.

[9] Madison, in the Convention, moved that Congress be given power " 'to grant charters of incorporation where the interest of the U. S. might require & the legislative provisions of individual States may be incompetent'." Farrand, Records, II, p. 615.

[10] "To lay and collect taxes, duties, imposts, and excises, to pay the debts and provide for the common defense and general welfare of the United States...." Art. I, sec. 8, para. 1.

"To make all laws which shall be necessary and proper for carrying into execution the foregoing powers...." Art. I, sec. 8, para. 18.

This must be held to-day a position theoretically sound, though it sometimes seems as if the theory were lost in the mists of practical politics.

[11] Hamilton mentioned as an example of resulting powers the right of the United States to possess sovereign jurisdiction over conquered territory. Compare Marshall's opinion in The American Insurance Co. v. Canter, 1 Peters 511 (1828).

[12] Note the following from the opinion of the Court in Kansas v. Colorado, 206 U. S. 46 (1907): "The last paragraph of the section which authorizes Congress to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the Government of the United States, or in any department or office thereof, is not the delegation of a new and independent power, but simply provision for making effective the powers theretofore mentioned." Ibid., 88. "But, as our national territory has been enlarged, we have within our borders extensive tracts of arid lands which ought to be reclaimed, and it may well be that no power is adequate for their reclamation other than that of the National Government. But if no such power has been granted, none can be exercised." Ibid., 91-92. This case appears to repudiate the doctrine, which had certain advocates in the early twentieth century, to the effect that an object not within the competence of any one state is, in consequence, within the scope of federal authority.

[13] The absence of explicit provision for inferior courts is doubtless due to the uncertainty of the framers about the advisability of explicitness. Then there was a difference of opinion in regard to the need for any inferior courts. See the discussion in the Convention, June 5, 1787.

[14] There were then eleven states in the union. Each was made a district. Maine, then a part of Massachusetts, was also made a district, as was the Kentucky region, then a part of Virginia.

[15] Statutes at Large, I, ch. 20, sec. 9.

[16] The reader should notice that this does not refer to an appeal from a state court, but for removal of a cause at an early stage in the proceedings. Ibid., sec. 12.

[17] Ibid., sec. 22. The text above does not attempt to give in detail the extent and character of the jurisdiction prescribed by the statute; such portions of the act as appear especially important are selected.

[18] See C. A. Beard, The Supreme Court and the Constitution, where this subject is treated at length.


CHAPTER XVII

THE ESTABLISHMENT OF THE EXECUTIVE DEPARTMENTS AND THE DEVELOPMENT OF THE CABINET

We must now briefly present the main facts and influences which produced the president's cabinet. This body, though it is not provided for by the Constitution, is now and has been almost from the beginning of the government a conspicuous portion of the actual political system. For an understanding of its rise, it is necessary to go back to the time of the Revolution and the old Congress and also to see the experiences of the Confederate period, which gave their lessons to the men of that generation. Even a brief examination of the rise of the cabinet as an advisory council brings into view the very character of the presidency, as the office and its duties emerged and as it took fairly definite form and being in the early years.

During nearly the whole course of the Revolution, the general business of the government had been carried on by committees and boards, or possibly one might better say, not carried on. The clumsy and inefficient methods taught their lesson, however; by 1781 Congress from its own ineptitude had learned enough to provide for departments, each in charge of a single officer.[1] The titles of these officials were Secretary for Foreign Affairs,[2] Superintendent of Finance, Secretary at War, and Secretary of Marine. The system suffered various lapses and modifications, partly caused by the difficulty in getting suitable persons to accept or carry on the offices. But, in an uncertain way, experience had proved the desirability of individual responsibility in administrative work.

Robert Morris held the office of Superintendent of Finance from May, 1781 until November, 1784. About the time of Morris's retirement, John Jay became Foreign Secretary and held the position until after the establishment of the new government. Henry Knox, becoming Secretary at War in 1785, was also in office when the Confederation expired. The services of Morris and especially of Jay must have made fairly clear the idea of executive officers, with administrative assistants, and with considerable independence in the ordinary conduct of their duties.[3] When Washington assumed office there were only two department heads holding positions inherited from the old regime — Jay and Knox.

The Constitution contains no more than incidental references to executive departments. The president is authorized to "require the opinion in writing of the principal officer in each of the executive departments upon any subject relating to the duties of their respective offices...." The other reference is found in the clause granting Congress the power to vest the appointment of inferior officers "in the President alone, in the courts of law, or in the heads of departments."[4] It follows by necessary implication that departments with a principal officer in each are contemplated by the Constitution; but the number and duties of such departments are left to the determination of Congress at its discretion.

The words of the Constitution and the experiences of the Confederation were a sufficient guide to Congress. By acts passed in 1789, state, war, and treasury departments, and the office of attorney-general [5] were established. At the head of each department was a secretary. The departments of state and war were called executive departments, and the secretaries were directed to perform such duties as should be intrusted to them by the president. The treasury was not called an executive department; the secretary, it seems, was thought of as standing in a peculiar relationship to Congress; he was to perform all such services relative to the finances as he should be directed to perform, and he was to "make report and give information to either branch of the Legislature, in person or in writing, (as he may be required,) respecting all matters referred to him by the Senate or House of Representatives, or which shall appertain to his office...." If it were intended to place the treasury under the special guardianship of Congress, such intention was doubtless due to the experience of colonial days. In the royal and proprietary colonies, the executive and the legislative branches of the legislature were not unlikely to be in opposition, or at least to have different points of view, especially on fiscal matters; and little by little the assemblies had gained a large degree of control over the colonial treasuries.

The wording of the act establishing the treasury department indicates, therefore, the possibility of the development of a system in which the secretary would be very directly responsible to Congress or subject to some sort of very immediate control. On the other hand — though this seems rather fanciful — he might have become a minister directing or attempting to direct the course of financial legislation. Had the early Congress summoned the secretary or allowed him to appear in person, the intimacy between his office and the legislature would, presumably, have been greater than any association based on written reports. The first Secretary was eager enough to lead; but he was not given the opportunity of advocating his measures on the floor. He appears at times to have looked upon his office as that of minister extraordinary, and he had great influence on the development of the executive power; in the early years he shaped in considerable measure the financial policy of Congress. We are not dealing with mere shadows when we contemplate the possibility of the establishment of practices, growing out of the intimacy between Congress and the treasury, which would have affected the strength and character of the presidency; a divided or far from unified executive might have been the result.[6]

Hamilton and Jefferson, the two leading men among Washington's advisers, deserve special attention. Around them and their opinions gathers in considerable measure the constitutional and political history of the last decade of the century. They also represent with very peculiar distinctness certain differences of mind and underlying principles of action — such attitudes and tendencies, be they of one kind or the other, as commonly affect men and women in their political and social relations. Of Hamilton something has already been said in these pages. At the time of life when most boys are engaged in the aimless frivolities of adolescence, Hamilton was deeply interested in the cause of the Revolution. He was a man of very marked mental gifts, an able lawyer, with a decided capacity for financial affairs. He was indefatigable and earnest, striking direct and unerring blows, leading his followers with no apparent misgivings and with no doubt of the validity of his considered opinions. For years he had been deeply concerned by the distress and the inefficiency of the Confederation; his anxiety was caused by a native dislike for confusion and a native talent for system, and withal he belonged to that small body of wide-visioned men whose country was America and who did not enshroud themselves in the clouds of petty local politics. He was a continentalist, a nationalist, by temperament and by training. In some ways he was a natural leader, but, though not without a degree of personal charm, there was within him a certain headstrong determination, a product, it may be, of his own logical talent. His assurance and the very qualities of his genius appear to have made him incapable of wide and appealing popular leadership. As so often happens in human life, his strength was his weakness.

Of Jefferson, too, only a word can be said, though many words would be insufficient because his character was so complex and his interests so varied. Primarily he was not of the administrative temper; a learned lawyer and a practical politician, he was fundamentally a philosopher. He, too, was profoundly interested in the success of America, but he did not see success in a smoothly-working governmental system or in administrative devices; he had come to distrust governmental machinery and to place his confidence in the primary impulses of his fellow men. This confidence, it may be the part of caution to say, was a part, the creative part, of his philosophy; but in practice he was at times not confiding, but suspicious; his philosophy taught him confidence in man; his experience or, it may be, a sensitive temperament, sometimes made him suspicious of men, the actual men of affairs with whom he had to deal. Though reared in the solitudes of Virginia, he was, after some years of residence at Paris, a man of the world. He had given his mind to the study of human affairs, not so much to the science of orderly and stable government, as to the science or philosophy of human well-being. Conditions in Europe shocked and antagonized him. In the early days of the Revolution he had arrayed himself with a radical anti-British element, and in the years before he went to France he had been engaged in the task of freeing Virginia from the hold of the big plantation owners. To class him with Clinton or any of the other localists, whose minds were glued to immediate interests and who were incapable of seeing beyond state limits, is a radical blunder; what he feared was the establishment in America of a burdensome, expensive, overhead government, aping, in its manners and in its attitude toward the common man, the governments of Europe, against whose impositions his whole nature and its accordant philosophy were arrayed. His thinking was national — or international — rather than provincial; but because he had no liking for elaborate legalism, he failed at times to see with proper clarity that the very success of popular government depended upon the stability of the American union.

Comparisons are odious; and they may be especially so when great men are compared. Hamilton and Jefferson were, by any standards, great men. The country needed both of them. It needed Hamilton's talent for organization, his conception of national authority and of efficiency. It needed Jefferson and his sympathy for the genius of the young, fresh country just breaking away from the bonds of colonialism and entering upon the perils and trials of democratic government. It needed Hamilton's administrative skill and his fervid nationalism; it also needed Jefferson's vision, his comprehension of the needs and the aspirations of the common folks, the farmers, the plain people, who never to the end lost confidence in him because he continued confident of them. We cannot see how America could have become the America we know without both of them. One can scarcely overemphasize the influence of Hamilton in the establishment of the governmental system. Jefferson — or Jeffersonism — embodied the hopeful and adventurous America which was coming into existence and gaining a consciousness of itself.

So far we have been concerned with the organization of executive departments distinctly provided for by the Constitution. A consideration of the origin and development of the cabinet as we know it to-day must now command our attention. In the Constitutional Convention there had been considerable discussion about the desirability of a council of revision, a privy council, a council of state — some advisory body to act with the president.[7] Such plans were natural accompaniments of an unwillingness to establish an executive free from oversight and dangerously competent. The institutions of the colonies, the provisions of some of the state constitutions, and perhaps also the royal council of Britain, probably influenced those members of the Convention who desired a check upon presidential power. The Senate, because of its share in appointments and in the making of treaties, constituted to some extent a check on the executive and was, probably, especially in treaty-making, supposed to furnish advice and consent. But nothing that we may term a cabinet council was provided for in the Constitution. From actual conditions, therefore, and from the practical necessities of the case as problems of government presented themselves, the cabinet came into existence.

The cabinet is a well-known political institution in America; or, to speak more correctly, the term is one in common use. If we mean by the word "cabinet" a council or advisory body — and that is the ordinary connotation — the institution is entirely unknown to formal law, either to constitutional or statute law; it is a product of history, a part of our unwritten constitutional system. The term "cabinet" in a congressional enactment first appeared in 1907; [8] but the word was then used almost incidentally and cannot be considered as indicating the intention to establish the cabinet as a body — in any technical sense a legal institution.[9] Concerning some of its customary characteristics, one has to speak with caution. It is to-day made up of the heads of the various executive departments; it meets frequently and discusses matters of general interest and policy. Its conclusions, if it reaches any, are not binding upon the president; he is not under any legal necessity of calling the members together or of asking their opinions; but the habit of group consultation is an established habit, and a president neglecting consultation and acting quite without advice would be considered as violating tradition, possibly one should say good manners. No one would venture to say that there must be unanimity of opinion; but there is a certain or uncertain degree of general loyalty to the purposes of the president; there is a distinct or nebulous administrative policy or tendency which no member is expected openly to flout. The members are the president's appointees and are naturally expected to work harmoniously with him. A cabinet officer can, of course, in the seclusion of the cabinet meetings, express his opposition to a proposed line of conduct; but public opposition, even if it should have no serious consequences, is looked upon with disfavor. If he finds himself in substantial disagreement with the president and has conscientious objections to the presidential policy, he is expected to retire from office. The essential unity of the executive forces must be maintained. Congress cannot by legislation place any official in the cabinet, though when a department is created the secretary is by tradition and custom a member of the body;[10] the president can do without cabinet meetings, refuse to summon some secretaries, invite the vice-president to participate, in short, legally speaking, do as he thinks best.

The fact of meeting, the giving of advice and the interchange of opinions, though these things are important, are not the matters of most consequence. The most significant thing is the most intangible — the expression of the vague and indefinable need of administrative or executive coherence. This need, as we shall see in a moment, came clearly, though gradually, to view in the course of the first twelve years; when we enter upon Jefferson's administration we find ourselves in the presence of a body of men with similar views and enthusiasms, not merely a number of executive officers, but a body of councilors with a common loyalty. This, of course, could not have come to very full realization until there were policies calling for executive judgment and discretion, marking off one set of men from another, until, in other words, there were parties, even if the parties were not fully equipped with all the paraphernalia and common loyalties of the modern party system.

Washington, it is sometimes said, strangely appointed to his cabinet two men, Jefferson and Hamilton, representing different parties — an unfortunate statement, for at the beginning there was no cabinet and there were no parties, at least no parties fully-organized and recognized. The President could have had no idea that he was to have a cabinet. In his administrations both of these institutions began to take form, both of them the product of the new tasks and the new opportunities of popular government. Theoretically, the heads of the various departments, though subject to the President's orders, could have gone along independently and separately; theoretically, too, the new government could have operated without parties; as a matter of fact, the men making the Constitution were apparently ignorant of the party as we now use the term. But as issues arose, as violent differences of opinion developed, as the possibilities of popular contention — the garrulous companion of democratic government — came upon the scene, the need of something like unity in the executive came to light. On the surface, heads of the departments were executive officers, and only executive officers, with the duty of giving separate advice or information when it was called for; but the President needed counsel and he needed support; he needed it more than he did the haggling and disputatious argument of men whom he called together for advice.

We must not suppose that at the beginning Washington thought of the chief executive officers as his sole advisers; much less did he consider them as a council with fairly consistent or tangible policies. In the very early years of his presidency he consulted various people, some of them not in executive office. In 1790, he asked for written opinions not only from the three secretaries but also from John Adams and John Jay — the Vice-President and the Chief Justice. Thereafter he occasionally asked Adams for written advice.[11] He even asked Madison to prepare for him a veto of the bank bill (1791), which he might use if he decided against the measure. The President naturally needed expert assistance in solving difficult questions of constitutional construction. Concerning problems of foreign affairs, over which the Constitution gave him great authority, there was abundant opportunity for differences of opinion, and there was need of deciding upon a policy, even the need of deciding upon the extent and character of the President's power. It was necessary to take affirmative action and not merely to carry out legislative orders. Amid the perplexities arising from the French treaties in 1793, Washington requested the federal judges to give their opinions on the legal problems involved. The judges, however, declined to answer the questions propounded.

During the absence of the President from the seat of government there was special need of interchange of opinions among members of what we now call the "administration". Accordingly we find Washington writing (April 4, 1791) to the secretaries — the Attorney-General not being mentioned — asking them to consult together upon any serious and important cases that might arise, and to determine whether his own presence was necessary. He suggested the advisability of calling upon Adams to participate in the consultation, if Adams had not left the seat of government. The three secretaries and the Vice-President met and discussed various matters. Jefferson sent a report to Washington.[12] This was the beginning, as far as we know, and the first of what before long were called cabinet meetings.

In the next year (1792) there were other meetings. Of one, Jefferson says: "Mar. 31. A meeting at the P's, present Th: J., A.H., H.K. & E.R. The subject was the resoln of the H. of Repr. of Mar. 27. to appt a commee to inquire into the causes of the failure of the late expdn under Maj. Genl. St. Clair...." In 1793, consultations were sufficiently frequent to justify us in saying that the habit had been established. For another year or two the opinion of the Vice-President was occasionally asked, but the cabinet normally consisted of the secretaries and the Attorney-General. In 1793 the word "cabinet" began to be used with more or less frequency.

Harmony and a common understanding among the members of the cabinet did not prevail. The differences between Hamilton and Jefferson developed into animosities. The latter surrendered his office at the end of 1793. Hamilton and Knox remained about a year longer. Thereafter there appears to have been comparative peace, though Randolph, who had become Secretary of State, made his contributions to the President's vexations and anxieties. After his disappearance from the scene (1795), there was no occasion for much unbecoming quarreling or clandestine intrigue. Washington wrote (September 27, 1795): "I shall not, whilst I have the honor to administer the government, bring a man into any office of consequence knowingly, whose political tenets are adverse to the measures, which the general government are pursuing; for this, in my opinion, would be a sort of political suicide."

This pronouncement is often taken as a declaration of Washington's recognition of parties and even of his conscious affiliation with the Federalists. That may be so; but the conclusion must be reached only with suspicion of its correctness. Certainly, however, he had come to see that a reasonable degree of harmony and common purpose among his chief advisers was a necessity. After his experiences with Randolph, the need of having men in the principal offices who would support and not mangle his policies is to us so plain that there is no necessity of accounting for his sentiment by attributing it to party devotion or to a newly-awakened belief in the party system. The time had come when the presidential office must be considered to have a policy which it must attempt to follow consistently as issues arose. In carrying out that policy, the president must be able to rely on the loyalty and the intelligent coöperation of those with whom he consulted and who had the duty of carrying out the policies determined upon. Washington's tolerance of varying opinion and his desire to call into requisition the intelligence of others were characteristic of him. And probably tolerance was safer in those early days than any set determination to have no one about him but those in all respects determined to see only one side of every question; but the executive, a unified executive, was at all events taking shape, created by the compelling necessities of the case. The disturbances in Adams's cabinet and the need, once more displayed, of coherence and essential harmony, it is not necessary to dwell upon here. Those conditions brought forth again the fact that the president must have about him men in personal sympathy with him and his policies and ready to carry his program faithfully into operation.


[1] Secretary for Foreign Affairs, January 10, 1781; Superintendent of Finance, Secretary at War, and Secretary of Marine, February 7, 1781. Journals of Congress (1823 ed.), III, pp. 564, 575. The marine department did not last long, its duties being turned over to the Superintendent of Finance. Ibid., III, p. 665. "It is positively pathetic to follow Congress through its aimless wanderings in search of a system for the satisfactory management of its executive departments. At no period between 1774 and 1781 can we find it pursuing any consistent line of action with reference to them. A humble committee served as the common origin of all. With the exception of the Committee of Foreign Affairs, they developed independently into boards, and afterwards each was tossed about and tinkered at different times and under different circumstances." J. C. Guggenheimer, "The Development of the Executive Departments, 1775-1789," Essays in the Constitutional History of the United States (J. F. Jameson, ed.), p. 148.

[2] Changed in 1782 to Secretary to the United States of America for the Department of Foreign Affairs. H. B. Learned, The President's Cabinet, pp. 53-54.

[3] See Ibid., p. 59.

[4] Reference may also be made to the Constitution, Art. I, sec. 8, para. 18.

[5] The attorney-general was considered a member of the cabinet when it got well under way; but not before 1870 did he become the head of the department of justice. The post office went on at first on about the same basis as under the Confederation. Samuel Osgood was appointed Postmaster-General in 1789 and the office was more fully provided for in 1794. The postmaster-general was not at first admitted as a regular member of the cabinet; the department was not explicitly called an executive department until 1874.

[6] Learned points out that there are three underlying principles of the American presidency: (1) unity in the executive power; (2) responsibility to the people for the execution of the law; (3) discretionary power in the president to direct and remove his assistants. Learned, op. cit., p. 379. Each one of these is in some measure the result of developing practices. The second obtained its special significance forty years and more after the Constitution was adopted. The third, now generally accepted, was not established without some verbal turmoil. The three are mutually or reciprocally supporting.

[7] See especially the discussion on September 7, 1787, and the approval of the provision to give the president authority to call for the opinions of the heads of departments.

[8] Learned, op. cit., p. 157.

[9] It may be questioned whether Congress could establish a cabinet by law.

[10] The postmaster-general was first made a cabinet member by Jackson (1829).

[11] Learned, op. cit., pp. 120-121. Learned's accumulation of evidence on the early growth of the cabinet is particularly helpful. See ch. V. See also M. L. Hinsdale, A History of the President's Cabinet. It is noteworthy that when Jefferson became Vice-President he declared privately that he considered his office "as constitutionally confined to legislative functions" and that he could not take part "in executive consultations, even were it proposed...." Letter from Jefferson to Elbridge Gerry, May 13, 1797. See Jefferson, Works (federal ed.), VIII, p. 284.

[12] See Jefferson, Works (federal ed.), VI, p. 243 ff.


CHAPTER XVIII

THE ESTABLISHMENT OF THE AUTHORITY OF THE EXECUTIVE IN FOREIGN AFFAIRS

The provision in the Constitution concerning the power to make treaties was the product of considerable discussion in the Federal Convention. The problem of determining where this important power should rest presented serious difficulty. At that time the fisheries and our relations with Spain were matters of immediate interest; there was anxiety, especially in some portions of the south, lest the navigation of the Mississippi be surrendered and lest the government be too complaisant in dealing with Spanish claims and ambitions.[1] One cannot say just how much the anxieties or misgivings of the moment influenced the delegates; but they probably did influence them to some extent. However that may be, checks upon the free exercise of the treaty-making power were inevitable.[2] The committee of detail, reporting August 6, bestowed the power upon the Senate alone; but this provision was at length changed, and the power was granted to the president by and with the concurrence of two-thirds of the Senate. This provision was placed in the second article of the Constitution, the article dealing with the executive authority. That the Senate should serve as a guard or check upon the president, lest he act ignorantly or corruptly, is plain; to what extent he was expected to treat the Senate as an advisory council, which he should continually consult and which he should at all times keep informed of the progress of negotiations, is not so evident.

It is common now to think of the Senate's right to concur or to refuse when a treaty is laid before it. The extent to which the president may take the Senate, or more usually the committee on foreign relations, into his confidence, formally or informally, during the processes of negotiations, depends upon circumstances and, indeed, upon the president's inclination. The president carries on diplomatic correspondence; and this duty necessarily involves the power of communicating with foreign governments during all the proceedings preliminarv to the formal concurrence of the Senate. He discusses with the foreign government, a party to the proposed treaty, any modifications which the Senate may have insisted upon, in case he consents to renew negotiations after such modifications are proposed. Ratification, when the terms of the treaty are agreed upon, is also a presidential prerogative. It is hardly necessary to add that the negotiations with foreign governments are, in practice, carried on by the secretary of state, or by a minister or a commission, all of whom are the president's servants. These practices and principles, which we now accept as part of the constitutional system, are the products of interpretation as the necessity for interpretation and action arose. The main principles came out fairly clearly during Washington's presidency.

At the beginning Washington believed oral communications with the Senate indispensable; but his first attempt brought forth difficulties. In the summer of 1789 he appeared before the Senate, accompanied by the Secretary of War. He wished to advise with them on the terms of the treaty to be negotiated with the southern Indians, which the Secretary was prepared to explain. William Maclay, a Senator from Pennsylvania, on whose Journal we are largely dependent for our knowledge of the activities of the Senate in the early days, says that Washington "told us bluntly that he had called on us for our advice and consent.

..." Just what the bluntness consisted in we do not know, but probably it was a product of Maclay's own suspicions. He and presumably some others who were not so critical and so absurdly sensitive were fearful lest they be trodden upon. Some portions of the treaty were postponed for later consideration. Robert Morris, at the suggestion of Maclay, moved reference of the matter to a committee, and that method of procedure the Senate decided upon. Washington, so Maclay records, "started up in a violent fret" and said, "This defeats every purpose of my coming here" — which was indeed the fact. He therefore soon withdrew "with a discontented air. Had it been any other man than the man whom I wish to regard as the first character in the world, I would have said, with sullen dignity." [3] Two days later the discussion was continued and the business was concluded. But thereafter neither Washington nor any of his successors undertook to obtain advice and consent by personal consultation.

If the senators wished to follow legislative methods, to appoint a committee, and in fact refuse to consult with the President for fear lest their own dignity be infringed upon, there was nothing to be done about it; and if they must make speeches, nothing could prevent them. But as a result, presidents have been left free to carry forward the whole process of negotiations and of treaty-making until the finished document is laid before the Senate for its concurrence. Maclay, cherishing a super-heated fear of executive power, would have been surprised probably, had he been told that the Senate was in fact surrendering in considerable measure its right to be consulted at various stages, and that the president was to be left a large amount of unhampered freedom. After this encounter with the Senate, Washington endeavored, by sending communications, though not appearing in person, to treat the Senate as an advisory body in the ordinary sense of the word. But conditions were making against the establishment of the practice as a formal necessity. The most critical treaty of his administration, the Jay treaty of 1794, seems to have been submitted without previous consultation or communication.[4] The conditions of that eventful year were fraught with peril; and the danger of war and internal commotion was too imminent to admit of long delay, interminable harangues, and ill-natured strife.

When war between France and Britain broke out in 1793, grave problems arose. The treaties with France, which had been made during the Revolution, contained embarrassing commitments. If they should be carried out with scrupulous regard for all their obligations, the country would find itself at war with Britain, the main result of which, we may justly assume, would be ruin. We do not need to consider at any length the ethical propriety of disregarding a treaty; it is not a question for constitutional history; but anyone knowing the plans brought by Genet, the French minister, will realize that conditions prevailed which appeared, and appear even more strongly now, to relieve the administration from any reasonable accusation of bad faith and stubborn ingratitude.

In reaching a decision concerning the stand to be taken by the administration, differences arose in the cabinet. Sympathies with one combatant or the other were too intense to allow complete objective and unimpassioned consideration of the problem. But as a matter of fact, despite differences, there was substantial agreement on certain essentials. The cabinet unanimously agreed that a minister from the French Republic should be received and that a proclamation, now commonly called a proclamation of neutrality, should be issued; that was the heart of the matter. Jefferson put forward an able statement of the inviolability of treaties; he cited plentiful authorities; but even he confessed that "if performance becomes self-destructive to the party, the law of self-preservation overrules the laws of obligation to others." [5] He believed renunciation or open disregard of the French treaties should be postponed at least until actual peril was manifest. Hamilton believed the United States would be justified in ignoring the treaties on sundry grounds, especially because the government of France was quite different from the one with which the treaties had been made, and because the French were quite plainly the aggressive combatants. At first he did not advocate the complete and open renunciation of the treaties, but desired that before the French minister should be received, he should be apprised of the intention to reserve for future consideration the question whether the operation of the treaties should be suspended.[6] The Constitution expressly gives the president authority to receive ambassadors, and though this might not necessarily be construed to include the authority to receive, when reception in fact constitutes the recognition of a new government, such has been the established interpretation, and it probably depends in part on Washington's reception of the French minister. Genet was received and immediately proceeded to make himself disagreeable — not to the more excited populace, but to those anxious lest the country be thrown into war as a companion in arms of the French Republic; [7] such a possibility had already affrighted the souls of the conservatives. But the conduct of the French minister eased the situation by the middle of the summer, and the cabinet decided to request his recall.

Regarding the actual position to be taken when the question first arose concerning the treaties, there was, as we have said, no really critical diversity between the two secretaries, though they do not appear to have been quite calm and merely placidly argumentative. The truth is, a decision to remain neutral and announce the fact settled the matter, if all the inevitable consequences of neutrality were to be adhered to. But Jefferson seems to have objected to the word "neutrality" [8] as indicating a decision of the executive concerning the future, and because the authority of Congress to declare war should not be encroached upon by a declaration that there was to be no war. And the proclamation when issued did not contain the word "neutral" or "neutrality".

Washington's proclamation is considered to-day an important document in the history of international law. The discussions that arose concerning the President's authority are important in constitutional history. Despite what seems to have been a degree of superficial harmony in the cabinet, there was bitterness underneath, and the public was more than uneasy.[9] Still the constitutional controversy might, we may suppose, have been kept to some extent under cover, had not Hamilton, always combative, decided to show his whole hand. He published articles in the press under the pen name of "Pacificus", and spread out his doctrines for popular consumption. With customary ability and incisiveness, he defended the President's right to issue the proclamation. But why he should have thought it necessary to add to the public indignation by outlining at length his full theory of the executive power, is not plain. He was no friend of halfway measures and he probably believed it was time that the people should know the scope of the president's power; if they were shocked by the picture, they would recover.

One statement in defense of the proclamation was of crushing force, and had it stood alone, it might be held conclusive; possibly it might have silenced opposition, or, if that were quite impossible, it might have had a quieting effect: "If, on the one hand, the Legislature have a right to declare war, it is on the other, the duty of the executive to preserve peace till the declaration is made". But Hamilton did not content himself with this assertion. The executive was, he declared, the department to which the Constitution intrusted intercourse with foreign nations; the legislature was "charged neither with making nor interpreting treaties." The authority to issue a proclamation of neutrality belonged to the executive: "As the organ of intercourse between the nation and foreign nations; as the interpreter of the national treaties, in those cases in which the judiciary is not competent — that is, between government and government; as the power which is charged with the execution of the laws, of which treaties form a part; as that which is charged with the command and disposition of the public force."

Such assertions as these, while they seem to us quite ordinary and orthodox, were not likely to be received joyfully by the Jeffersonians and the crowds then shouting for France and liberty; but Hamilton did not stop there; he proceeded to lay down statements concerning the scope and character of the executive powers which were certain to awaken resentment and dismay. He quoted from the Constitution: "the EXECUTIVE POWER shall be vested in a President of the United States"; and he referred to certain presidential powers which the Constitution specially mentioned. This enumeration of specified powers was, however, "merely to specify the principal articles implied in the definition of executive power; leaving the rest to flow from the general grant of that power, interpreted in conformity with other parts of the Constitution, and with the principles of free government. The general doctrine of our Constitution, then, is, that the executive power of the nation is vested in the President; subject only to the exceptions and qualifications which are expressed in the instrument." These exceptions he mentioned: the participation of the Senate in the appointment of officers and in the making of treaties, and the right of Congress to declare war and grant letters of marque and reprisal. "With these exceptions, the executive power of the United States is completely lodged in the President." He took occasion also to dwell on the president's power to receive ambassadors and other public ministers: "This right includes that of judging, in the case of a revolution of government in a foreign country, whether the new rulers are competent organs of the national will, and ought to be recognized or not".

Here was the picture of no supine official, humbly awaiting the public behests or meekly carrying legislative orders into execution. One cannot wonder at the consternation produced by these pronouncements, as men, fearful of executive power and dreading the group whom Jefferson called the "monocrats", looked upon the large outlines of the sturdy figure of the presidency, even though at that moment Washington himself held the office.[10] Hamilton's words are of interest because it would be nearly impossible even now to draw the outlines of the executive in more sweeping and comprehensive terms than those he laid down. Especially in very recent decades, the leadership of the president in legislative matters has greatly grown; but it is difficult to say just how much of Hamilton's view of the scope of the executive office has been substantiated by the passing years.

As in many cases, the propriety of a statement depends on the interpretation of a word or two; if "executive" meant what Hamilton declared it meant, then for his argument that was enough.[11] He had in his mind, whether quite conscious of the fact or not, many of the lineaments of the executive as that figure appeared in the British system; consequently, under our constitutional system, whatever might be justly, perhaps traditionally, considered executive power belonged, with few explicit exceptions, to the president, who was a constitutional reproduction of a monarchical prototype. The executive had all "executive" power not by the Constitution denied him! We may still find it difficult to acquiesce in all these broad and unrestrained assertions of executive authority, and we may perchance especially question Hamilton's assumption that full power is granted subject only to a few express limitations; but whether we acquiesce or not, Hamilton drew the outlines of a vigorous and competent official, and the influence of this opinion and of Washington's general attitude were doubtless of effect.

But the men who feared the development of autocratic authority in America were not content. "For God's sake, my dear Sir, take up your pen," Jefferson wrote to Madison, "select the most striking heresies and cut him to pieces in the face of the public." Madison, writing under the pseudonym "Helvidius", entered upon a long (and one might justly say tiresome) attack, and his criticism of the pronouncements of "Pacificus" frustrates any attempt at successful condensation. He naturally objected to Hamilton's method of argument; and we must acknowledge that in one respect his animadversions were pertinent: whence, he asks, can the propounder of the theories of executive power under the Constitution have borrowed his ideas? "There is but one answer to this question. The power of making treaties and the power of declaring war, are royal prerogatives in the British government, and are accordingly treated as executive prerogatives by British commentators." [12] This statement cannot be fairly considered as a purely partisan attack intended to quicken the animosity of the multitude. Once admit, Madison said, the theories of the executive put forth by "Pacificus", and you admit inferences and consequences against which no constitutional ramparts could defend the public liberty; "no citizen could any longer guess at the character of the government under which he lives".

What would have happened if Congress had been in session during that anxious spring and summer when mobs were grumbling in the streets,[13] we cannot know and fortunately do not need to imagine. In August, the President wrote asking the opinion of his advisers as to whether Congress should be summoned. Differences of opinion appeared. "Knox s[ai]d we sh[oul]d have had fine work if Congress had been sitting these two last months. The fool thus let out the secret. Hamilton endeavored to patch up the indiscretion of this blabber, by saying 'he did not know; he rather thought they would have strengthened the Executive arm.' " This is Jefferson's story. But if Knox, like an enfant terrible, had let the cat out of the bag, how fortunate for Hamilton that he had been able to get his ideas of the executive authority put into public expression without congressional uproar.

The year 1793, as we have seen, was replete with perplexities that sorely distressed Washington and his advisers; but the following year was more difficult still. Had there been a united nation, or had the politicians been fairly reasonable, the situation would still have been perilous. But the country was sharply divided in its sympathies for the warring nations of Europe; politicians were loquacious and contentious; and under such conditions Washington had to meet difficulties that would have tested the wisdom and the courage of any government. The country, just accustoming itself to its new institutions, was in no condition for a conflict, which almost surely would have included civil tumult. In addition to the discord among the people and the inflammatory declarations of the "democratic societies", there were four serious problems needing solution, to be solved peaceably if possible; for, however much some bold people might speak of American prowess, Washington must have seen that a foreign war would be disastrous, (1) Spain had not acquiesced in the treaty of 1783, but insisted on claiming territory north of the thirty-first parallel; a claim coupled with control of the southern Mississippi was especially obnoxious to the men in the new settlements beyond the mountains, and there were a few miscreants in that region who were not above plotting with Spaniards and receiving bribes from the Spanish treasury. (2) The Excise Act was openly flouted in western Pennsylvania where men bitterly resented a tax upon their customary beverage. (3) Great Britain, retaining the frontier posts within the American border and retaining also the fur trade with the northern Indians, was believed to be encouraging the red men in their warfare against the western settlers.[14] (4) The war upon the sea had opened to Britain opportunities for harassing American commerce, which were peculiarly irritating.

The settlement of these problems — the weathering of the storms of that perilous year, probably the most menacing time between the treaty of peace and the war of 1861 — we must pass over hastily; but they belong in constitutional history because upon their wise solution depended the character, perhaps the very existence, of the new government. A treaty was made with Spain, fixing the southern boundary (1795). A force much larger than Washington had had at his command many times during the Revolution was sent against the insurgents in western Pennsylvania, and the insurrection ceased. Washington appears to have believed that the lawlessness was a natural result of the activities of "self-created societies", those imitation Jacobin clubs which had been making so much vocal disturbance for some little time.[15] He doubtless welcomed the opportunity of testing the strength of the new government and finding whether it could enforce its laws; if he were successful, he would demonstrate to the public that they had a government whose behests must be obeyed. Fortunately, the fervor of the "democratic societies" was nearly burning out; though perils were not yet passed, the emotional tumults were beginning to subside; common sense was reasserting itself. The end of that eventful year marked the decline of the kind of declamation and parade which in its essence endangered the stability or even the existence of the government — at all events the existence of the kind of government Washington was seeking to strengthen.[16]

In 1794, the Indians of the northwestern region were for the time thoroughly beaten, and the next year a treaty with them settled the major difficulties. But the relations with Britain were serious in the extreme; in the spring of 1794 war appeared to be imminent; Congress provided for an embargo and other measures of defense were taken. Washington decided to send Jay to Britain to make a treaty that would preserve the peace. The result was the famous treaty of 1794, which, whatever its defects and however heated the demonstration by the ardent friends of France, at least saved America from war. But the fury of the malcontents, when the treaty was known, was unbounded; no other government than one under the direction of George Washington could have stood the strain.

The President called a special session of the Senate (June, 1795)[17] and submitted the treaty for acceptance; there was no previous conference or discussion between the Senate and the President; advice and counsel were limited in practice to assent or dissent. The Senate decided for acceptance on condition that there be added to the treaty an article suspending the operation of a clause concerning the trade with the British West Indies. But the trouble was not yet over; the House had something to say when a bill was introduced for carrying the treaty into effect. The debate was long and earnest. Inasmuch as the treaty, when once made, was "the supreme law of the land", was the House under legal obligation to take the necessary step to make it in all respects operative? Could the House inquire into the merits of the treaty and, for that purpose, must it be furnished with information from the Executive? A resolution passed the House asking for Jay's instructions and for the correspondence and other papers relative to the treaty, "excepting such of said papers as any existing negotiation may render improper to be disclosed." The President refused the request, denying the right of the House "to demand, and to have, as a matter of course, all the papers respecting a negotiation with a foreign Power". The power of making treaties, he asserted, is exclusively vested in the president by and with the advice and consent of the Senate, provided two-thirds of the senators present concur; every treaty so made and promulgated is the law of the land. It naturally follows from Washington's assertion that the House is under constitutional obligation to pass the necessary measures for making a treaty effective. Hamilton, in a communication to Washington, had declared "the House of Representatives have no moral power to refuse the execution of a treaty, which is not contrary to the Constitution, because it pledges the public faith; and have no legal power to refuse its execution because it is a law, until at least it ceases to be a law by a regular act of revocation of the competent authority."

Though disavowing any claim to a share in the making of treaties, the House, by a very decided majority, asserted, after Washington's refusal, its full right and duty to deliberate on the expediency of carrying a treaty into effect, when it "stipulates regulations on any of the subjects submitted by the Constitution to the power of Congress" and its execution depends on the passage of a law or laws. The bill carrying the appropriation for the execution of the treaty was finally passed by the House. It thus appears that Washington carefully guarded the executive power, and the House recognized the validity of his position in certain respects. But it did not admit that its sole duty was to stand blindfolded and pass any or every act necessary for the execution of a treaty. The theory of the matter, if treated abstractly, may give some room for dispute, and has indeed been subjected to minute consideration at various times in the past.

One or two things are now fairly well established: a treaty may be self-executing, that is to say, it may need no congressional act to bring it to full execution; but if it does require such an act, the House cannot be coerced; and to declare as a general principle that the House is legally bound to pass necessary legislation is a principle which the House has many times rejected. Probably no one would assert that, if a treaty be manifestly unconstitutional, the House must nevertheless pass legislation to make it operative; and furthermore, if it be founded on bribery or some other form of rascality, the House cannot be expected to ignore the fact. In other words, there are some limits on the obligation of the House. There may seem to be a certain degree of folly in asserting, when a political body is independent, that it cannot use discretion in the exercise of its power. But there are doubtless both moral and legal obligations upon Congress which it cannot properly ignore. Naturally, as a matter of practical fact, there must be reasonable accommodation; for when all is said, it takes common sense, quite as much as acute logic and forensic argument, to make a constitutional system actually work. In the course of years, there have appeared certain practices indicative of an appreciation of the sensitiveness of the House and a readiness to recognize the rights and duties of the House, especially in fiscal matters.[18]

During the debates on the Jay treaty, Albert Gallatin, defending the rights of the House, as he conceived them, made an exceedingly able speech,[19] in the course of which he referred to some especially interesting and perplexing questions. He discussed the constitutional extent of the treaty-making power: "A Treaty is unconstitutional if it provides for doing such things, the doing of which is forbidden by the Constitution; but if a treaty embraces objects within the sphere of the general powers delegated to the Federal Government, but which have been exclusively and specially granted to a particular branch of Government, say to the legislative department, such a Treaty, though not unconstitutional, does not become the law of the land until it has obtained the sanction of that branch." He declared that a law could not repeal a treaty or a treaty repeal a law; but this is a statement which we must now say is not sound; the exact reverse is the accepted constitutional principle.[20] In some respects his most interesting remarks bore upon the question as to whether or not there were any limits upon the authority of the treaty-making power. His chief purpose was to defend the legislative branch of the House in particular, but if he had mentioned the possibility of the treaty-making power's so acting as to rob the states of their reserved constitutional rights, he would - have touched upon a subject more disturbing and more perplexing than encroachment on the particular functions of either house or both houses of Congress.

On this general subject a few words may be appropriate here, though the principles involved were by no means made clear in 1796. The right to make a treaty which will affect the field of state legislative authority, and even take from the state a right and freedom which it might otherwise freely exercise, was early upheld by the Supreme Court.[21] Only a moment's attention is needed to convince anyone that, if every power in the hands of the states were to be immune from the slightest encroachment by the treaty-making power, the scope of that power would be slender indeed. If a state, which normally has control of internal police in a very full sense of the word, could continue to enforce its regulations without reference to any treaty stipulations, some of the most important matters commonly dealt with in international agreements could not be handled at all.

Unquestionably, therefore, the domain of states' rights cannot be considered as bounded by an impassable wall; but the question remains to what extent or under what circumstances can the barrier be passed.

It may now be accepted as established, that if a treaty requires legislation for its execution, Congress has constitutional authority to pass such legislation, even if without the treaty there should be no such authority. The fact that such a treaty interferes with the powers commonly exercised by the states, and considered to be within their sphere of reserved power, does not make the treaty or the law for its execution unconstitutional. In a recent case (1920)[22] these principles are clearly laid down. "We do not mean to imply", said Justice Holmes, giving the opinion of the Court, "that there are no qualifications to the treaty-making power;" but the opinion does not, naturally, tell us what the qualifications or limits are.[23] "No doubt the great body of private relations usually fall within the control of the State, but a treaty may override its power." The opinion contains one statement which is very illustrative of the broad interpretation of the Constitution with which we are now familiar, and though it is specially inapplicable to the days of 1796, when the Jay treaty was discussed, it may well be given here: "... when we are dealing with words that also are a constituent act, like the Constitution of the United States, we must realize that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters. It was enough for them to realize or to hope that they had created an organism; it has taken a century and has cost their successors much sweat and blood to prove that they created a nation. The case before us must be considered in the light of our whole experience and not merely in that of what was said a hundred years ago. The treaty in question does not contravene any prohibitory words to be found in the Constitution. The only question is whether it is forbidden by some invisible radiation from the general terms of the Tenth Amendment. We must consider what this country has become in deciding what that Amendment has reserved." [24]


[1] See, for example, the speeches of Gouverneur Morris and Hugh Williamson on September 8, 1787. See also, Charles Warren, The Making of the Constitution, p. 656 ff.

[2] A grant of this exceedingly important power to the president alone was, for that time, quite impossible. There was too much fear of one-man power. In the Convention James Wilson even proposed joining the House with the Senate. He also declared that the requirement of a two-thirds vote in the Senate would put it into the power of a minority to control the will of a majority, and that the same provision would allow a minority to perpetuate war (September 7, 8). In the state conventions there was considerable contention over the treaty-making provision. "In view of the sentiment which has developed in recent years against requiring more than a majority of the Senate to ratify a treaty, it is interesting to notice that, in 1788, much of the opposition to the treaty clause was based on the feeling that the two thirds requirement was too small." Warren, op. cit., p. 658. Virginia proposed an amendment requiring for certain kinds of treaties "the concurrence of three fourths of the whole number of the members of both Houses respectively."

[3] Journal of William Maclay, pp. 128-131. Italics of the original omitted.

[4] A brief treatment of the treaty-making power may be found in J. M. Mathews, The Conduct of American Foreign Relations. See especially pp. 140-148. In later years, the president in a few instances communicated with the Senate before negotiations were completed, and even consulted the Senate, though not personally present. President Wilson went before the Senate to give a formal address July 10, 1919. Congressional Record, 66 Cong., 1 sess., p. 2336 ff. See, for examples of consultation, S. B. Crandall, Treaties, Their Making and Enforcement (Columbia University Studies in History, etc., XXI, no. 1), p. 59 ff.

[5] Works (federal ed.), VII, p. 286. "The danger which absolves us must be great, inevitable & imminent." Ibid., p. 287.

[6] "Jefferson ... disapproved of connecting the reception of the minister with any reservation on the treaties, even if it should be decided to make such a reservation. In the latter case he thought the suspension should be a separate act. He denied that the reception of the minister had anything to do with the applicability of the treaties, and that such a qualified reception was necessary to protect the interest of the United States." C. M. Thomas, American Neutrality in 1793, pp. 72-73. It is worthy of note that Washington decided to receive the French minister without any qualifications. "We are not permitted to know the relative influence which the various arguments had in determining this decision; whether it was due entirely to a conviction that a suspension of the treaties was unwise, or whether it was due partly to a persuasion that there was no reason for joining such an announcement to the reception of a minister, and this being the case, that the announcement could well await the development of events. Whatever reasons may have appealed to the President, it is clear that he accepted the position of the Secretary of State and rejected the advice of the Secretary of the Treasury." Ibid., p. 76. The treaties were formally declared no longer legally obligatory in 1798. This was done by act of Congress. The constitutional authority of the president to interpret a treaty and to determine its application in a given instance is passed over intentionally in the text above without comment. For the termination of treaties, denunciation and abrogation by Congress, and denunciation by the president, etc., see Quincy Wright, The Control of American Foreign Relations, pp. 256-262.

[7] Jefferson wrote to Monroe (July 14, 1793) declaring Genet's "conduct is indefensible by the most furious Jacobin." Jefferson, WorksI(federal ed.), VII, p. 449.

[8] "The proclamn as first proposed was to have been a declaration of neutrality. It was opposed on these grounds. 1. That a declaration of neutrality was a declaration there should be no war, to which the Executive was not competent. 2. That it would be better to hold back the declaration of neutrality, as a thing worth something to the powers at war, that they would bid for it, & we might reasonably ask a price... ," Letter from Jefferson to Madison, June 23, 1793, in Ibid., VII, pp. 407-408.

[9] "Every Gazette I see (except that of the U. S.) exhibits a spirit of criticism on the anglified complexion charged on the Executive politics.... The proclamation was in truth a most unfortunate error.... It wounds the popular feelings by a seeming indifference to the cause of liberty. And it seems to violate the forms & spirit of the Constitution, by making the executive Magistrate the organ of the disposition the duty & the interest of the Nation in relation to War & peace, subjects appropriated to other departments of the Government." Letter from Madison to Jefferson, June 10, 1793. See Madison, Writings (Gaillard Hunt, ed.), VI, p. 127 note. Madison thought it "mortifying" to the real friends of the President to see his fame and influence unnecessarily made to depend on "political events in a foreign quarter of the Globe...." We can scarcely refrain from the conclusion that the usually cautious Madison was not thinking very soberly in some particulars.

[10] "How far the President considers himself as committed with respect to some doctrines. He is certainly uneasy at those grasped at by Pacificus...." Letter from Jefferson to Madison, August 3, 1793, in Jefferson, Works (federal ed.), VII, p. 464.

[11] Hamilton may have had in mind the statements of Montesquieu and Locke. Montesquieu spoke of three sorts of power: "the legislative; the executive, in respect to things dependent on the law of nations; and the executive in regard to things that depend on the civil law." Locke distinguished executive, legislative, and federative powers. He said that though the executive and federative powers are distinct, they are hardly to be placed in the hands of distinct persons. See Wright, op. cit., pp. 141-142.

[12] Madison, Writings (Gaillard Hunt, ed.), VI, p. 150.

[13] "You certainly never felt the terrorism excited by Genet in 1793 when ten thousand, people in the streets of Philadelphia day after day threatened to drag Washington out of his house and effect a revolution in the government to compel it to declare war in favor of the French Revolution and against England." Letter from John Adams to Jefferson, many years afterwards, quoted in C. D. Hazen, Contemporary American Opinion of the French Revolution (John Hopkins Univ. Studies in Hist. and Pol. Science, extra volume XVI), p. 186. Italics of the original omitted. We may credit the figures, "ten thousand", probably to Adams's flowing pen. But the situation was serious.

[14] In this year Lord Dorchester made a speech to the Indians which our government naturally and properly resented. This subject of the frontier posts is a large one. See S. F. Bemis, Jay's Treaty; A. C. McLaughlin, "The Western Posts and the British Debts", Am. Hist. Asso. Report for 1894, pp. 413-444; Theodore Roosevelt, The Winning of the West, especially IV.

[15] In his address to Congress, November 19, 1794, he spoke of "certain self-created societies". The Senate's address of November 21, is unmistakable. "Our anxiety arising from the licentious and open resistance to the laws in the Western counties of Pennsylvania, has been increased by the proceedings of certain self-created societies, relative to the laws and administration of the Government; proceedings, in our apprehension, founded in political error, calculated, if not intended, to disorganize our Government, and which, by inspiring delusive hopes of support, have been influential in misleading our fellow citizens in the scene of insurrection." The address of the House on the President's speech, adopted after long discussion, is significant. The House felt, with the President, "the deepest regret at so painful an occurrence in the annals of our country"; it had learned with the greatest concern of misrepresentations of the government and its proceedings; but the crisis had demonstrated to a candid world that the great body of the American people were "attached to the luminous and vital principle of our Constitution, which enjoins that the will of the majority shall prevail". Annals of Congress, 3 Cong., 2 sess., cols, 788, 794, 947-948.

[16] The prominent fact is that the American people did keep their heads. As one reads of the silly extravagances of the populace he may forget that the world was on fire, and that the American people, though they had just passed through a Revolution and a succeeding period of uncertainty and disorder, went forward without devastating insurrection, and, under the guidance of wise architects, built up a substantial government. Those days in America can be understood only by remembering conditions in England and in Europe generally. One may well recall how deeply the intellectuals of Britain — many of them — were stirred as nothing before or perhaps since has stirred that class of the people; those were the days when, as Wordsworth tells us, it was bliss to be alive, but to be young were very heaven.

[17] Called March 3, 1795 to convene June 8.

[18] Cf. Mathews, op. cit., pp. 201-212, and references there cited. "Resolved, That it is the sense of this House that the negotiation by the Executive Department of the Government of a commercial treaty whereby the rates of duty to be imposed on foreign commodities entering the United States for consumption should be fixed would, in view of the provision of section 7 of article I of the Constitution of the U. S. be an infraction of the Constitution and an invasion of one of the highest prerogatives of the House of Representatives." Hinds, Precedents, II, 989, quoted in Ibid., p. 204, note 2. "It thus appears that in the case of treaties relating to certain matters which, under the Constitution, are delegated to the legislative control of Congress, the treaty-making power has conceded that a treaty should not be put into effect until it has been approved by Congress. This has been agreed to particularly in relation to the regulation of customs revenue...." Mathews, op. cit., p. 211. See also, as an indication of the position of the House, Statutes at Large, XXXIII, ch. I, sec. I. The act in question declared that nothing herein contained "shall be held or construed as an admission on the part of the House of Representatives that customs duties can be changed otherwise than by an Act of Congress, originating in said House."

[19] Annals of Congress, 4 Cong., 1 sess., col. 464 ff.

[20] "... it is well settled that in case of a conflict between an act of Congress and a treaty — each being equally the supreme law of the land — the one last in date must prevail in the courts." Justice Harlan in Hijo v. United States, 194 U. S. 315, 324 (1904).

[21] "We do not have to invoke the later developments of constitutional law for this proposition...." Justice Holmes giving the opinion of the Court in Missouri v. Holland, 252 U. S. 416, 434 (1920). He cites among other cases, Hopkirk v. Bell, 3 Cranch 454; Ware v. Hylton, 3 Dallas 199; Chirac v. Chirac, 2 Wheaton 259 — all fairly early cases.

[22] Missouri v. Holland, 252 U. S. 416. This is the "migratory bird case" involving the constitutionality of an act of Congress carrying into effect a treaty for the protection of migratory birds. The fact that game laws and similar legislation have been considered within the police power of the state, and would be within such power in the absence of treaty regulations, did not make the treaty or the act for its execution unconstitutional. So the principle holds that the treaty-making power justifies Congress in passing legislation which without a treaty would be unconstitutional.

[23] The Court in some instances has said that there are limits. "The treaty power ... is in terms unlimited except by those restraints which are found in that instrument [the Constitution] against the action of the government or of its departments, and those arising from the nature of the government itself and of that of the States." Geofroy v. Riggs, 133 U. S. 258, 267 (1890). See, for a discussion of this principle, W. W. Willoughby, Principles of the Constitutional Law of the United States (2nd ed.), p. 241. This author believes that dicta of the Supreme Court which would appear to restrict the treaty-making power from infringing upon the reserved rights of the states will sooner or later be finally repudiated by the Court.

[24] For a discussion of the extent of the treaty-making power, see E. S. Corwin. National Supremacy, especially ch. VI, "Treaty-Power Versus Police Power".


CHAPTER XIX

THE ALIEN AND SEDITION ACTS

The House passed the bill for carrying the Jay treaty into effect in the spring of 1796, and in the summer of that year Britain gave up the western posts. Washington must have breathed more easily and with deep satisfaction. The most trying and perilous crisis was passed. For two years he had been without the aid of first-rate advisers; Jefferson had retired from office at the end of 1793, Hamilton a year later.[1] While these two men were his official advisers he could feel confident that, however much they might differ, or even because of their differences, he was getting material on which to base his own judgment. Factious disputes were peculiarly annoying to him, hut he seems to have had natural aptitude for choosing his course when alternatives were clearly and ably presented. After Hamilton's withdrawal, Washington occasionally appealed to him for assistance, which was given with usual precision and positiveness.[2] But on the whole, the President had to get on as he best could with advisers of mediocre quality.

When Washington retired to Mount Vernon, hoping to enjoy the labor and the ease of plantation life, Adams came to the presidency, with Jefferson as Vice-President — a combination indicative of the imperfect organization of parties. Adams was a lonely figure; he did not stand with the Hamilton group, whose leaders did not like him; nor was he more of a favorite with the Jefferson group or with that great body of voters and politicians who were beginning to form a real party with an organization capable of waging successful partisan warfare. He retained for a time in the executive offices the men who had been serving under Washington, but they looked to Hamilton as their leader. Not without executive ability, though with marked incapacity for holding men to himself by bonds of personal attachment and confidence, Adams finally took the reins into his own hands, accepted the resignation of McHenry, his Secretary of War, and dismissed Pickering, the Secretary of State. This was in 1800; for the previous three years, however, the President had struggled along with advisers on whose general loyalty and sympathy he could not thoroughly rely. Washington, as we have said, had a signal facility in reaching conclusions when conflicting opinions were proposed; and so in theory might a president pursue his way. But Adams was in no such position and had no such aptitude.

Washington might well feel not only relieved but gratified at the end of his term; he had performed services of inestimable value to his country, though doubtless he was the last man to appraise at their true worth his own influence and his own wisdom. Anxious though he was, unduly anxious, about factious party strife, he had good reason to believe that the government would live. But there were dangerous breakers ahead. If the Jay treaty had solved for the time the perilous disputes with Britain, it irritated France; and that country was making things unpleasant for America and was playing the bully. There resulted the well-known X.Y.Z. controversy; commissioners (Charles C. Pinckney, John Marshall, and Elbridge Gerry) sent by Adams to Paris to settle the dispute were treated with disrespect, confronted with humiliating terms at the very beginning, and, to crowd insult upon injury, were informed by insolent emissaries that if they desired attention, the members of the Directory must be properly bribed.

The publication of the X.Y.Z. correspondence (sent to Congress by Adams April 3, 1798) had very immediate effect. Old party antagonisms were for the moment forgotten or nearly forgotten. Preparations were made for war, and Washington was summoned from retirement to take charge of the army. Adams, often charged with being hot-headed and impetuous, in the emergency was wise and cautious. Receiving a hint that new negotiations could be conducted with decency, he named a commission (1799) which succeeded in making a treaty and quieting the disturbance. Adams's decision was sensible and prudent; indeed, he acted throughout the period with good judgment, but his decision to approach France and reach a peaceful solution of the difficulties made the Federalist leaders almost frantic.

The political events of the decade under discussion — the decade during which the government was established, parties were formed, and practices of enduring effect were begun — have been passed over rapidly in the preceding pages; but we have now come to a crisis and a controversy demanding careful examination. The French trouble in 1798 and 1799 produced legislation of a radical nature and, on the other hand, led the Republican leaders to the announcement of principles which were very far-reaching, much farther reaching than the politicians expected or probably intended, for political leaders are likely to have a very immediate goal in view; and even Madison and Jefferson could not, of course, see the far distant future.

The Federalists, irritated by the scandalous assaults of journalists and pamphleteers, fearing the effects of abuse and misrepresentation when war with France appeared inevitable, having no patience at the best with the clamor of the common folks, angered by the mouthings of the aliens who took advantage of a free country to heap abuse upon its rulers, the kind of abuse that would not have been tolerated in their native land — the Federalists were now beside themselves. Congress, despite serious and able opposition, passed important and eventful acts, (1) The Naturalization Act (June 18, 1798) provided for fourteen years' residence before the granting of full citizenship and required registration of resident aliens as well as new arrivals. (2) The Alien Enemies Act (July 6, 1798) provided that whenever a proclamation by the president announcing war or predatory invasion was issued, alien enemies should be liable to apprehension and removal; the president was authorized "to direct the conduct to be observed, on the part of the United States, towards the aliens who shall become liable...." (3) The Alien Act (June 25, 1798) authorized the president to order such aliens as he might deem dangerous or to be engaged in "treasonable or secret machinations" against the government to depart from the country; if anyone so ordered should be "found at large" and without a license to remain, he should "on conviction thereof" be imprisoned for not more than three years and become ineligible to citizenship. The president might in his discretion grant a license to remain in the country, but he was on the other hand given full authority to send forth any alien already in prison under the provisions of the act; and if any alien so dismissed should return without permission, he should "on conviction thereof" be imprisoned so long as in the opinion of the president the public safety might require. Both this act and the Alien Enemies Act allowed an alien to remove his property, and there were other provisions which respected his property rights. (4) The Sedition Act (July 14, 1798) was directed against unlawful combination or conspiracy purposing to oppose governmental measures or impede their operation. In sweeping and comprehensive language, it further provided for punishing anyone publishing or causing to be published scandalous and malicious writings against the government, or either house of the Congress, or the president, with intent to defame them or to bring them "into contempt or disrepute", or to stir up sedition, or excite unlawful combinations for resisting any law of the United States or any act of the president done in pursuance of such laws. A person accused under the act might be brought before "any court of the United States having jurisdiction thereof," and punished by a fine not exceeding two thousand dollars, and by imprisonment not exceeding two years.[3]

The question of the constitutionality of these acts which were soon vehemently attacked must now be examined. But the reader should be warned that it is in some measure improper, in an historical investigation, to present as criteria judicial decisions and pronouncements of a later time.

Little need be said of the Naturalization Act. The portion dealing with the term of residence before admission to citizenship is of course unquestionably constitutional; and, though the provision for registration of aliens and, under some circumstances, for their giving surety for good behavior might even now raise questions of propriety, the constitutionality of the act can be passed by without serious comment. The act was, however, reactionary in character, certain to awaken hostility toward the party responsible for it.

The Alien Enemies Act likewise does not demand much attention. There can be no doubt of the right of Congress to authorize the president to take such steps as seem necessary to protect the country against the machinations of enemies; indeed one might say that in all probability the president, as commander-in-chief, might go far in this direction without formal statutory authorization. It is true, he might act tyrannically and might abuse his power. Possibly we might criticize the act because no provision was made for the proper protection of those persons who were alleged to be enemy aliens but asserted they were citizens; but on the face of the act itself one cannot find the assignment of unconstitutional authority.[4]

The Alien Act and the Sedition Act were drastic and extravagant pieces of legislation. "Let us not", wrote Hamilton at the time, "establish a tyranny. Energy is a very different thing from violence."[5] The former act authorized the president without the shadow of a trial to order out of the country any alien judged dangerous, no matter how long he had been a resident; it thus offered plentiful opportunity for injustice and harsh treatment. The assignment of such power was certain to arouse intense opposition and awaken public alarm. Assertion of the Jeffersonians that alien friends were within the care of the states and the states alone can now be dismissed as untenable. The act, as we have seen, provided that any alien who was ordered to depart and "found at large" without a license should "on conviction thereof" be punished. The offense appears to be failure to obey the command of the executive. Was personal liberty properly safeguarded? We can leave that question unanswered, only referring once more to the possibility of tyrannical administration. But the courts in comparatively recent days have gone so far in upholding the right to deport aliens that one must hesitate to condemn the Alien Act as a positive infringment of constitutional liberty because of its provisions granting wide executive power in this respect. The critical question is whether judicial trial is imperative, a trial, that is to say, with the usual formalities of a court of justice. Because of traditional habits of thought, we naturally at first sight react against the theory that personal rights, even though the person may be alleged to be a foreigner, should be passed upon outside of a court of law; but necessity has given rise to more expeditious, and perhaps we should say, more summary methods; executive tribunals and officials have been allowed great authority, and their decisions considered final. The courts have reserved the right to determine whether or not a fair hearing has been allowed by the administrative officials; but they have not denied, that, as a principle, the officials have the power to act, if reasonable and suitable methods of conduct have been followed.[6]

The Sedition Act presents more serious difficulties. Suppression of freedom of speech and the press must under all circumstances be looked upon with misgivings. And this is so not so much because any specific words in the Constitution may perhaps be violated or given improper construction, as because the very vitals of free government are endangered or maltreated when freedom of thought and discussion are crudely interfered with. One of the chief attacks upon the Sedition Act immediately after its passage was founded on the assertion that it took for granted that the federal courts had jurisdiction of common law crimes. It is perfectly true, as the Supreme Court later declared,[7] that there is no such jurisdiction; but as a matter of fact, the Sedition Act established a statutory crime; and the question is whether Congress had the authority to announce the crime and provide for its punishment. In general, of course, libel and slander are matters within the province of the states. If statements, which would be commonly regarded as criminally libelous, were directed against John Adams or any member of Congress as a private individual, and if such an attack could have no reasonably assignable or conceivable connection with the safety of the government and its operation, then the United States could not punish the culprit in its courts. We cannot now doubt that the government — quite plainly, in times of peril — can protect itself against verbal attack, either upon its officials or its policies, if the attack is of such a character as to endanger its safety or reasonable security in the conduct of its affairs; an act providing for the trial of an alleged culprit cannot be considered under such circumstances an assumption of authority totally belonging to the states.

The question remains how far Congress may go without violating the first amendment, which guarantees freedom of speech and the press. Once more we are aided by judicial decisions of much later date. This subject in some of its aspects was passed upon by the courts in considering the constitutionality of certain parts of the Espionage Act of 1917. It appears to be a safe conclusion to say that whether an act is a violation of the amendment depends upon the scope of the act, perhaps more evidently upon its application, and also, as is so often the case, upon actual circumstances and conditions. Freedom of speech does not mean unlimited liberty to say anything and everything, under any and all conditions; there are limits: "The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.... The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree. When a nation is at war many things that might be said in times of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right." [8] It is difficult, therefore, to pass any sweeping judgment on the constitutional validity of the Sedition Act; so much must depend upon the interpretation of its more extreme provisions and upon the question of the application of its provisions by the courts in concrete cases. But we must remember that any act which gives opportunity to officials for punishing the innocent must be considered as approaching the verge of unconstitutionality; for, when all is said, the protection of an innocent and peaceful citizen is quite as important as the rapid and condign punishment of the guilty; and reasonable assurance of such protection and safety should appear on the surface of the act.

The more important question remains whether, technicalities being cast aside, the acts of 1798 were contrary to the spirit of the Constitution and appear in essence to be at variance with the elementary principles of free and liberal government. Without a great degree of actual liberty to express opinion and to criticize authority, democratic government cannot exist; it is in danger of being hidden in the mists and miasmic vapors which obscure normal vision in time of war; and this fact of course points to the antagonism between war, which rests on force, and popular government, which demands argument. That the acts which we are considering breathe on the whole a spirit of arrogance and intolerance, and that such a spirit was noxious and menacing, appears to be beyond doubt.[9]


[1] Jefferson, December 31, 1793. Hamilton, January 31, 1795.

[2] The above remark is especially applicable to the argument concerning the propriety or obligation to send information on the Jay treaty to the House. On two or three other occasions, including the preparation of the famous farewell address, Hamilton served the President.

[3] The Naturalization Act was repealed in 1802 and five years were established as the term of residence. The Alien Enemies Act was not repealed. The Alien Act was limited by its terms to two years and was not renewed. The Sedition Act expired in 1801 and was not renewed.

[4] Referring to the deportation of aliens under the General Immigration Act of 1917, the Supreme Court said, "Jurisdiction in the executive to order deportation exists only if the person arrested is an alien. The claim of citizenship is thus a denial of an essential jurisdictional fact." The Court referred to a similar situation when proceedings are taken against a person under the military service and he denies that he is in the military service. "It is well settled that in such a case a writ of habeas corpus will issue to determine the status." Ng Fung Ho v. White, 259 U. S. 276, 284 (1922).

[5] Letter from Hamilton to Oliver Wolcott, June 29, 1798, in Hamilton, Works (H. C. Lodge, ed.), X, p. 295.

[6] "That Congress may exclude aliens of a particular race from the United States", said the Supreme Court in a comparatively recent case, "prescribe the terms and conditions upon which certain classes of aliens may come to this country; establish regulations for sending out of the country such aliens as come here in violation of law; and commit the enforcement of such provisions, conditions, and regulations exclusively to executive officers, without judicial intervention, — are principles firmly established by the decisions of this court." Yamataya v. Fisher, 189 U. S. 86, 97 (1903). See also United States v. Ju Toy, 198 U. S. 253 (1905) and cases there quoted and referred to. In Fong Yue Ting v. United States, 149 U. S. 698 (1893), the right to expel or deport foreigners who have not been naturalized or taken any steps toward becoming citizens is specifically upheld. Concerning right to a hearing, consult Chin Yow v. United States, 208 U. S. 8 (1908). Concerning punishment without judicial trial see Wong Wing v. United States, 163 U. S. 228 (1806).

[7] See United States v. Hall, 8 Otto 343 (1879) and cases cited, particularly United States v. Hudson and Goodwin, 7 Cranch 32 (1812). In the former case Justice Clifford said, "Such courts possess no jurisdiction over crimes and offences committed against the authority of the United States, except what is given to them by the power that created them; nor can they be invested with any such jurisdiction beyond what the power ceded to the United States by the Constitution authorizes Congress to confer, — from which it follows that before an offence can become cognizable in the Circuit Court the Congress must first define or recognize it as such, and affix a punishment to it, and confer jurisdiction upon some court to try the offender." 345. In United States v. Hudson and Goodwin, the Court held that the circuit courts could not exercise common law jurisdiction of criminal cases. There may be implied powers in the government to preserve its own existence and promote its ends; but if such powers do exist, "The legislative authority of the Union must first make an act a crime, affix a punishment to it, and declare the court that shall have jurisdiction of the offence." 33-34. The constitutionality of these acts has been attacked on the ground that there was no proper designation of the court or assignment of jurisdiction; but such criticism appears to be without thorough basis because of the general provision of the Judiciary Act of 1789 assigning criminal jurisdiction to the circuit courts. As to there being a common law of the United States, see Western Union Tel. Co. v. Call Pub. Co., 181 U. S. 92 (1901) and references.

[8] Justice Holmes giving the opinion of the court in Schenck v. United States, 249 U. S. 47, 52 (1919). In another case, Justice Holmes, dissenting, said: "I had conceived that the United States through many years had shown its repentance for the Sedition Act of 1798, by repaying fines that it imposed. Only the emergency that makes it immediately dangerous to leave the correction of evil counsels to time warrants making any exception to the sweeping command, 'Congress shall make no law ... abridging the freedom of speech.'" Abrams v. United States, 250 U. S. 616, 630-631 (1919). Professor Corwin has summed up a discussion of freedom of speech by saying, "... Congress is not limited to forbidding words which are of a nature 'to create a clear and present danger' to national interests, but it may forbid words which are intended to endanger those interests if in the exercise of a fair legislative discretion it finds it 'necessary and proper' to do so.... In short, the cause of freedom of speech and press is largely in the custody of legislative majorities and of juries, which, so far as there is evidence to show, is just where the framers of the Constitution intended it to be." E. S. Corwin, "Freedom of Speech and Press Under the First Amendment," Yale Law Journal, XXX, p. 55.

[9] In the earlier years of the twentieth century and especially after the world war there was much discussion concerning this subject. An illustration of the position of the more "liberal" opinion on the bench is the dissenting opinion of Justice Holmes in Gitlow v. New York, 268 U. S. 652, 673 (1925): "It is said that this manifesto was more than a theory, that it was an incitement. Every idea is an incitement.... If in the long run the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way." See also the concurring opinion of Justice Brandeis (in which Justice Holmes concurred) in Whitney v. California, 274 U. S. 357, 376-377 (1927): "Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared witches and burnt women. It is the function of speech to free men from the bondage of irrational fears.... Only an emergency can justify repression. Such must be the rule if authority is to be reconciled with freedom. Such, in my opinion, is the command of the Constitution. It is therefore always open to Americans to challenge a law abridging free speech and assembly by showing that there was no emergency justifying it."


CHAPTER XX

THE VIRGINIA AND KENTUCKY RESOLUTIONS

Jefferson and Madison thought it high time that there be some public protest against the Alien and Sedition Acts, and against the whole doctrine of constitutional interpretation wantonly made use of by the Federalists to justify their ends. The government, still young, still without established principles, might be so carried on as to become in reality a government of unlimited authority, doing as it listed without respect for constitutional restraint. In any attempt to evaluate or understand the protests that came from these two men, we must bear in mind not only their desire to defend individual liberty, but (perhaps chiefly) their antagonism to a Federalist system of constitutional interpretation which they feared would make of the Constitution nothing but a scrap of paper. They determined to call the attention of the country to the fact that, on proper constitutional principles, the government was a limited government, not to be magnified into omnipotence by processes of cunning construction. That was the central assertion.

Jefferson drew up resolutions which were passed in somewhat softened form, but without very material alteration, by the Kentucky legislature, November 16, 1798. Their authorship was not known until long afterwards. Madison prepared resolutions which were adopted by a majority of the Virginia legislature after earnest debate, December 24, 1798. Appeal was made for the coöperation of the other members of the union. The Kentucky resolutions expressed the belief that the "co-States, recurring to their natural right in cases not made Federal, will concur in declaring these acts void and of no force, and will each unite with this Commonwealth in requesting their repeal at the next session of Congress." The Virginia resolutions expressed confidence that the other states would concur in declaring the obnoxious acts unconstitutional, and that each would take necessary and proper measures for coöperating with Virginia in maintaining "the authorities, rights, and liberties reserved to the States respectively, or to the people." After hearing from various states, Kentucky passed a second set of resolutions (November 22, 1799) which indicated no repentance, but contained the word "Nullification" which in the course of time came to have dramatic if not tragic connotations in American history: "That a Nullification by those sovereignties, of all unauthorized acts done under color of that instrument is the rightful remedy".[1] The words "nullification" and "the rightful remedy" appeared in Jefferson's draft of the previous year.[2] The Virginia legislature (1800) considered an elaborate and very able report prepared by Madison, presenting what in his opinion were the fundamentals of the constitutional system and forcefully declaring that in the last resort the states must judge of the extent of the government's powers. After this consideration, the legislature reaffirmed its adherence to the principles previously announced.

The resolutions of 1798 — the first sets which were sent forth by the two protesting states — are the most important. The Kentucky resolutions at considerable length skillfully arraigned the constitutionality of the Alien and Sedition Acts; they declared that the Congress of the United States, having been granted power to punish certain crimes, such as treason and piracy, had no power to punish other crimes; that this power belonged to the respective states; that alien friends were under the jurisdiction of the state wherein they reside; that no power over freedom of speech and of the press was delegated to Congress; that authorizing the president to remove an alien without a shadow of a judicial trial was a palpable violation of the Constitution. The Virginia resolutions were briefer and less specific but of the same general tenor.

In each of the first series of resolutions, we find one paragraph laying down certain general principles concerning the nature of the union; and those general principles were in later years often quoted and rehearsed; their sentiments were loudly proclaimed and applauded by tens of thousands who doubtless had never seen or read the documents for which they expressed so much reverent affection. The resolutions of 1798 were held to contain the creed of the Democratic-Republican party, and they were, in fact, the classic expression of the states' rights doctrine. Furthermore, at a later time, especially when Calhoun took up the task of defending South Carolina against the tariff (1828-1833), they were used to support the doctrine of state sovereignty, a doctrine far in advance of mere states' rights.[3] These particular paragraphs — the third in the Virginia set, the first in the Kentucky — require our special attention, for it will be noticed that the main contention of the resolutions, viz., the unconstitutional character of the Alien and Sedition Acts as encroachments on individual liberty, was in the course of time lost from sight and attention was paid to the general principles which were laid down as introductory to the argument.

The third paragraph of the Virginia resolutions is as follows: "That this Assembly doth explicitly and peremptorily declare that it views the powers of the Federal Government as resulting from the compact to which the States are parties, as limited by the plain sense and intention of the instrument constituting that compact; as no further valid than they are authorized by the grants enumerated in that compact; and that, in case of a deliberate, palpable, and dangerous exercise of other powers not granted by the said compact, the States, who are parties thereto, have the right and are in duty bound to interpose for arresting the progress of the evil, and for maintaining within their respective limits the authorities, rights, and liberties appertaining to them."

The first paragraph of the Kentucky resolutions reads: "Resolved, that the several States composing the United States of America, are not united on the principle of unlimited submission to their general government; but that by compact under the style and title of a Constitution for the United States and of amendments thereto, they constituted a general government for special purposes, delegated to that government certain definite powers, reserving each State to itself, the residuary mass of right to their own self-government; and that whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force: That to this compact each State acceded as a State, and is an integral party, its co-States forming, as to itself, the other party: That the government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers; but that as in all other cases of compact among parties having no common Judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress."

What was the constitutional theory of these documents? As far as the remedy for unconstitutional exercise of authority is concerned, it may perhaps be that they were intended to mean and did mean only that the states in coöperation could lay down authoritative interpretation of the Constitution, either by amendment or by some such process. It may be that the purpose of the resolutions was only to call upon the states to recognize and announce a principle; possibly the chief immediate purpose was to persuade the people to choose congressmen who would register dissent from Federalist doctrine. That these various methods were in Madison's mind seems the inevitable conclusion from his words in the report of 1800.[4] But there are a few words, especially those of Jefferson, which militate against this gentle and favorable construction.[5]

"Nullification" as used by Jefferson presents more difficulty then does "bound to interpose." Jefferson's pen ran swiftly and with perilous ease. But we need not ignore the latter portion of his resolutions — the set adopted with modifications by Kentucky in 1798 — which contained an eloquent denunciation of tyranny. His main assumption in this connection appears to be sufficiently orthodox, at least for his day. Just as individuals when they enter society and set up government may surrender certain rights which were theirs in a state of nature and reserve the rest, so states entering the union could grant away a portion of their sovereign rights. What was to be done in case the reserved rights were encroached upon? Possibly he meant that each state could separately resist and, if necessary, retire. Neither he nor Madison would be willing to acknowledge that men could not in times of supreme danger resist government.[6] This so-called right of revolution was, however, quite different from the right of a sovereign body politic to act upon its absolute, legal, sovereign authority under any and all circumstances and refuse to be bound by an international engagement. We must remember also that we are almost certain to be misled, if we insist upon interpreting the words "nullification" or "bound to interpose" as meaning exactly what they did after Calhoun and South Carolina had given visible and objective lessons in the subject. This fact must give us pause. We must stop to realize the likelihood, if not the certainty, of our erring, if at the outset we apply to words of 1798 the connotations with which words were clothed thirty years later, after John Taylor and John C. Calhoun had let the light of their intellects play upon the subject of sovereignty, and after Calhoun had elaborated a metaphysical philosophy.

It is well to recall the object of the resolutions. The framers and advocates of these resolutions had no intention of breaking up the union, though they may have feared the dissolution of the union as the result of Federalist aggression. Nor did they wish to announce that the central government had no power; they wished to assert that it did not have all power; that its authority was limited by the plain sense and intention of the Constitution; [7] that there were limits on congressional power; and that, if Congress overstepped those limits, its acts were void. Now there is no more elementary principle of American government than this; it is the very first foundation-stone of our whole system; government has only delegated authority. But if it has only delegated authority, what is to be done in case it oversteps the prescribed bounds? Who is to judge whether the bounds have been passed or not? Jefferson declared the states — perhaps an individual state — were to judge of the infraction of the Constitution; Madison believed they had the right to "interpose"; Jefferson emphatically announced that the national government was not the exclusive and final judge of the powers delegated to itself. There, in other words, stood the old question: granted that government, founded on consent, has only delegated authority, who is to judge whether further authority has been seized? It is the old question which Locke and the advocates of derived government had to meet; they justified opposition only when "a long train of abuses" (to quote both Locke and the Declaration of Independence) dangerously infringed upon natural rights. The critical problem of constitutional history, therefore, was not whether the states were possessed of unqualified sovereignty, but whether it was theirs to pass judgment concerning an alleged deliberate, palpable, and dangerous encroachment upon their reserved rights. In the course of time, but only in the course of time, the right of the national government to judge of its own powers, subject to revision by amendment to the Constitution, became, from the practical necessity of the situation, the accepted constitutional principle. But for the first forty years of the Constitution's life the problem most frequently appearing and giving the most anxious attention was this very question — the right to judge.

The more important question remains: what theories of the nature of the union were held by the framers of these documents and by those giving the resolutions their support? A common, almost universal, method of interpretation begins by ignoring the argument for individual liberty and the very able presentation of constitutional limitation; the main content of the resolutions is held to be a declaration that the union is a system of sovereign states, a confederation from which each state can retire at any moment at its discretion; nullification- — refusal to be bound by any objectionable act — is within the rights of any state; and if an attempt is made to enforce the act, secession is the natural remedy.[8] Jefferson and Madison, then, — the one "the founder of the Democratic party", the other "the father of the Constitution" — were also the founders and fathers of state sovereignty, forcible nullification, and secession. This method of interpretation, which finds in the resolutions the full-blown doctrine of state sovereignty and secession, depends upon the significance attributed to certain words, the most important being "compact", "parties", and "sovereign". If the Constitution is a compact, and if parties by entering into a compact cannot thereby form a new body politic and establish a legal authority, then of course it follows, as night the day, that the states are not legally bound by the Constitution, that they are not members of a body, and that they can withdraw from the system in which they have temporarily aligned themselves. If the states are "sovereign", as the second Kentucky resolutions declare, and if sovereignty means complete political authority, then, naturally, the union is not sovereign or partly sovereign; the individual states are totally self-determining; they cannot do anything illegal because any step they may take is legal. But on the other hand, if a compact is binding, if by a compact a body politic can be formed, then to call the Constitution a compact does not mean that a body politic was not formed; it does not mean that the Constitution is not binding. If sovereignty is divisible, then to call the states sovereign does not necessarily mean that they have undiminished sovereignty. In other words, if you insist on making certain words mean what you want them to mean, you can reach the conclusion you wish to reach.

The discussion just given brings to our attention the nature of the thinking of the men of 1798. The pivotal doctrines announced in the resolutions were those written by Jefferson in the Declaration of Independence; the philosophy was the philosophy of the American Revolution. Is it necessary to repeat the substance of that philosophy? All free and rightful government rests on consent, on agreement; all rightful governmental authority is delegated authority; if government exceeds the bounds of delegated authority, its acts are unauthoritative and of no force. The latter portion of the ninth resolution of Kentucky brings out the idea succinctly: "... the co-States, recurring to their natural right in cases not made Federal, will concur in declaring these acts void and of no force...." The Virginia and Kentucky resolutions rest on a political philosophy which at a later day Calhoun and the advocates of state sovereignty positively rejected. No long disquisition should be necessary for the student of eighteenth-century politics. There was no more solemn word in the political vocabulary of the eighteenth century than the word "compact"; all decent government rested on compact; every free state rested on compact; social relations rested on compact; kingship and the once-revered English constitution rested on compact; governments derived their just power from the consent of the governed. Furthermore, the men of the eighteenth century believed sovereignty could be divided.[9]

Madison's letters of a later day, when Calhoun and South Carolina issued their pronouncements, were complete answers to the declaration, or rather the assumption, that his theories of 1798 were identical with those of the great Carolinian: "Were this a mere league, each of the parties would have an equal right to expound it; and of course, there would be as much right in one to insist on the bargain, as in another to renounce it. But the Union of the States is, according to the Virga doctrine in 98-99, a Constitutional Union; and the right to judge in the last resort, concerning usurpations of power, affecting the validity of the Union, referred by that doctrine to the parties to the compact.

On recurring to original principles, and to extreme cases, a single State might indeed be so oppressed as to be justified in shaking off the yoke; so might a single county of a State be, under an extremity of oppression. But until such justifications can be pleaded, the compact is obligatory in both cases." [10] There is nothing more interesting, and, in the history of constitutional construction, more important, than the controversies that arose when men had forgotten the meaning of words. Madison had not forgotten.

Someone may say that the theory that the states could judge of encroachments on their reserved rights menaced in plain everyday reality the stability of the union quite as much as did the doctrine of complete sovereignty. But there is an obvious distinction (and for everyday practical purposes a useful distinction) between the assertion that the states are wholly sovereign — no more bound than England or France or Spain would be if they entered into a treaty — and the assertion that they have the duty of protecting their reserved rights. If we are interested in the history of constitutional interpretation, such a distinction is vital.

The resolutions brought forth answers from the legislatures of sister states.[11] The question could not be divorced from the violence and prejudice of party politics. The chief topic under consideration was the constitutionality of the Alien and Sedition Acts. Some of the answers deserve attention because they explicitly declare that it is not the duty of state legislatures to decide on the constitutionality of federal laws, for such power has been bestowed upon the judiciary. Furthermore, the failure of the states to deny that the Constitution was a compact is illuminating.[12] This failure may be considered as indicating that they accepted the idea that each state was absolutely sovereign and bound only by treaty, that no state was legally bound. But the very absence of this failure indicates just the contrary. No one was likely to be shocked by a reference to the Constitution as a "compact"; to the men of that day the word did not have the connotations which the men in later years put upon it. Massachusetts, who in adopting her own state constitution called it a "compact", declared through her senate in 1799: "... that ... they cannot admit the right of the state legislatures to denounce the administration of that government to which the people themselves, by a solemn compact, have exclusively committed their national concerns.... That the people, in that solemn compact which is declared to be the supreme law of the land, have not constituted the state legislatures the judges of the acts ... of the federal government...."

Virginia, it is often said, prepared for forcible resistance in 1798.[13] The charge, resting on almost no evidence which can be considered as real evidence, has been pretty thoroughly demolished. It should no longer be cited as proof that the resolutions of 1798 were intended to be a declaration of a single state's right to resist in arms or of an intention, if need be, to resort to war and a dissolution of the union.[14]


[1] Italics of the original omitted.

[2] Jefferson had said, "... in cases of an abuse of the delegated powers, the members of the general government, being chosen by the people, a change by the people would be the constitutional remedy; but, where powers are assumed which have not been delegated, a nullification of the act is the rightful remedy." Works (federal ed.), VIII, p. 471.

[3] "States' rights" and "state sovereignty" are often used as synonymous expressions; but a distinction should be made. One may well hold, and indeed must hold, that under our constitutional system the states have rights of government beyond the reach of the central government; but he need not hold that the states are sovereign, certainly he need not believe them possessed of the unalloyed and undiminished sovereignty which Calhoun asserted belonged to them.

[4] Elliot, Debates, IV, p. 546, and especially pp. 578-579. Twenty-five years later (1823), Jefferson wrote: "The ultimate arbiter is the people of the Union, assembled by their deputies in convention, at the call of Congress, or of two-thirds of the States." Works (H. A. Washington, ed.), VII, p. 298.

[5] Alexander Johnston made an excellent study of the constitutional phases of the resolutions, especially in regard to "nullification". See Alexander Johnston, "Kentucky and Virginia Resolutions," Cyclopaedia of Political Science (J. J. Lalor, ed.), II, pp. 672-677. By way of summary, Johnston says that "... the resolutions of both series are a protest against a supposed intention of the federalists to place some restrictions upon any attempt of state legislatures to demand a national convention to sit in judgment upon the acts of the federal government; that the belief in such an intention was fostered by the federalists' use of the then novel word 'sovereign,' as applied to the federal government, and by their constant assertions that the federal government was the 'final' judge of the extent of its own powers, thus seeming to exclude any such power in a new national convention; that both Jefferson and Madison intended, 1, to appeal to public opinion, and 2, to rouse the states for a prompt call for a national convention upon the first appearance of an attempt by congress and the president to make such legislative action penal under a new sedition law...." p. 676. Johnston states that the word "compact" in the resolutions is unessential; that Madison clearly did not use the word "in its full sense", and that the case is much more doubtful in regard to Jefferson. By "compact" "in its full sense" Johnston evidently means what Calhoun at a later date meant by it, i.e., an agreement or contract which did not establish a new and authoritative body politic.

[6] In 1832 Madison, writing to C. E. Haynes, said: "It is true that in extreme cases of oppression justifying a resort to original rights, and in which passive obedience & non-resistance cease to be obligatory under any Government, a single State or any part of a State might rightfully cast off the yoke." Italics mine. Writings (Gaillard Hunt, ed.), IX, p. 483. This, it will be noticed, is the right of self-preservation and the right to resist government which any individual or group is supposed to have, and not the right of a sovereign body to retire from a league.

[7] If the reader will refer to the Virginia resolution quoted above, and will substitute the word "Constitution" for "compact", he will probably not find much contrary to orthodox constitutional interpretation; he will probably find nothing to affront him, however nationalistic his opinions, until he reaches in his reading that portion of the resolution referring to the right of the states to "interpose". And what does "interpose" mean?

[8] The best example of this kind of interpretation is H. von Holst, The Constitutional and Political History of the United States, I, ch. IV. According to this writer, Madison and Jefferson meant the same thing; Madison was a bit more wily or circumspect; but "bound to interpose" and "nullification" meant exactly the same thing; the resolutions meant everything that came out in the South Carolina troubles of 1832, and meant the constitutional doctrine that underlay secession.

[9] "It has hitherto been understood, that the supreme power, that is, the sovereignty of the people of the States, was in its nature divisible, and was in fact divided, ... that as the States, in their highest sov. char., were competent to surrender the whole sovereignty and form themselves into a consolidated State, so they might surrender a part & retain, as they have done, the other part.... Of late, another doctrine has occurred, which supposes that sovereignty is in its nature indivisible; that the societies denominated States, in forming the constitutional compact of the U. States, acted as indivisible sovereignties, and consequently, that the sovereignty of each remains as absolute and entire as it was then.... In settling the question between these rival claims of power, it is proper to keep in mind that all power in just & free Govts. is derived from compact...." Madison, Writings (Gaillard Hunt, ed.), IX, pp. 568-569. See Letters and Other Writings of fames Madison (1865 ed.), IV, pp. 61, 75, 293-294, 393, 419. See also, Kohl v. United States, 91 U. S. 367, 372 (1876).

In Gaillard Hunt, The Life of James Madison, there is an interesting and valuable chapter on "The Madison Doctrine and Nullification". "When the nullification doctrine [of 1828 and after] appeared the Virginia Legislature resolved by a vote almost unanimous that the Virginia resolutions of 1798 did not support it, and Madison wrote to Edward Livingston: 'The doctrine of nullification [is] as new to me as it was to you." The conclusion is inevitable that these public men who were personally concerned in the movement of 1798 and who saw the South Carolina doctrine appear in 1828 did not believe that the former furnished a fair foundation upon which to build the latter." p. 263.

[10] Letter from Madison to J. C. Cabell, September 7, 1829, in Writings (Gaillard Hunt, ed.), IX, pp. 347-348.

[11] Elliot, Debates, IV, p. 532 ff. Certain additional materials, contributed by F. M. Anderson, are in Am. Hist. Rev., V, pp. 45-63; 225-252.

[12] "This fundamental doctrine received no attention in any of the replies or the discussions over them, so far as the latter have been preserved, except in the reply of Vermont to Kentucky." F. M. Anderson, "Contemporary Opinion of the Virginia and Kentucky Resolutions, II," Am. Hist. Rev., V, p. 237. Professor Anderson also says, "Thus, according to Madison's further reasoning, the people of each state instead of the people of the United States en masse, were the parties to the Constitution. In the counter-resolutions offered by the Federalists this interpretation of the parties to the Constitution is accepted entirely. The conclusion which the Federalists drew from this premise, as applied to the particular question at hand was quite different from that drawn by Madison, but the agreement between them is significant, for it shows that many of the Federalists as well as the Republicans accepted the fundamental doctrine of state sovereignty." Ibid., p. 242. Probably the vast majority of people in 1798-1799, if they thought at all, believed that the Constitution was a compact and was adopted by the states; but did they place upon the word the meaning with which Calhoun invested it thirty years later? In one respect I cannot agree with Professor Anderson: the fundamental doctrine of state sovereignty, I should say, is not that the Constitution is a compact, but that, because it is a compact it is not binding law, and that if it was adopted by the states, then it was only an agreement. John Marshall also believed that the people of the states adopted the Constitution.

[13] See the evidence cited in A. J. Beveridge, The Life of John Marshall, II, pp. 399-400; see von Holst, op. cit., I, pp. 156-158.

[14] See P. G. Davidson, "Virginia and the Alien and Sedition Laws," Am. Hist. Rev., XXXVI, pp. 336-342. In fact, anyone reading carefully through the debates in the Virginia legislature will find it difficult or impossible to believe that armed conflict was preparing. That a state by legislative act could prepare for war, build an arsenal and the like, and do all this in almost complete and profound secrecy at the time, is too great a strain upon one's power of credence.


CHAPTER XXI

THE ELECTION OF 1800.
THE REPEAL OF THE JUDICIARY ACT OF 1801

The trouble with France, which had gone so far that battles had actually been fought on the sea, was in process of settlement by the capable diplomacy and common sense of the President. But as the excitement cooled, the Federalists appeared not to have won laurels. The war, it is true, had for a time given Adams popularity and appeared to revivify the Federalist party. Reaction was however inevitable, a reaction made more intense by the acts that sought to suppress discussion, by the taxation which was of course unpopular, and by the arrogance of the Federalist leaders. The party was ill-managed; its leaders found difficulty in working together in harmony; there were in fact too many leaders and too few privates in the array. Hamilton did not like or trust Adams and sought to prevent his reëlection to the presidency. The popular tide had turned against the party whose leading members had done much to give the new government strength and stability. In the election of 1800 Adams was defeated; but to the consternation of many and to Jefferson's discomfort he and Aaron Burr received the same number of electoral votes.

As the Constitution then stood, each elector voted for two persons; the person having the highest number of votes, if such number was a majority of the whole, was to be president. If there should be more than one person with such a majority, and with an equal number of votes, then the House of Representatives, after the counting of the votes in the presence of both houses, should immediately choose one of them for president, but in such choice the votes should be taken by states, each state having one vote. The framers of the Constitution had supposed that the electors, appointed by the states, would act as free agents, each giving by his ballot his personal opinion as to the man best fitted for the presidency. The fathers foresaw neither parties, as we know parties, nor the formal processes of nomination and of intricate and effective party machinery. It was understood among the Republicans of 1800 that Jefferson was the candidate for the presidency, Burr the candidate for the vice-presidency. But the natural working of the party system resulted in every Republican elector's voting for both candidates; and the simplest mathematical product was the embarrassing tie.

When the result was seen, rumors began to fly. The House was made up of men elected during the excitement of the trouble with France. Would the Federalist members acting as automatons, without prejudice, quietly register what might be considered the desire of their opponents, choose Jefferson and leave the vice-presidency to Burr? To many Federalists, Jefferson was anathema; party spirit was acute, flaming, intolerant. The situation was disclosed by the first ballot taken in the House (February 11, 1801). There was no choice. The Federalists had on the whole decided to support Burr, the man whose elevation Hamilton said could "only promote the purposes of the desperate and profligate." From New England he received four votes; from the south he received the support of South Carolina and Delaware. Eight states voted for Jefferson, one less than a majority; one member from New Jersey who Jefferson at an earlier date had thought would "come over",[1] and the only member from Georgia (the other member having died) had made it possible to cast the vote of those two states for the man whom the Republicans considered their candidate. Vermont and Maryland were divided.

If this situation should continue, the election might be delayed indefinitely and the end of Adams's term would see the land without a chief magistrate. Various proposals were discussed; danger of an interregnum or conflict and chaos appeared imminent.[2] If there were no choice, could some officer, perhaps John Marshall, then Secretary of State, or some other person selected by the Federalist Congress, be authorized to assume the presidential office? The Republicans, to put the case mildly, were wroth; to any such measure they were not prepared to accede. Conditions are best presented in Jefferson's own words: "If they [the Federalists] could have been permitted", he wrote Monroe (February 15, 1801), "to pass a law for putting the government into the hands of an officer, they would certainly have

prevented an election. But we thought it best to declare openly and firmly, one & all, that the day such an act passed, the middle States would arm, & that no such usurpation, even for a single day, should be submitted to. This first shook them; and they were completely alarmed at the resource for which we declared, to wit, a convention to re-organize the government, & to amend it. The very word convention gives them the horrors, as in the present democratical spirit of America, they fear they should lose some of the favorite morsels of the constitution." [3]

Conditions were, however, not hopeless or so fraught with danger of civil tumult as the Jeffersonians feared. Hamilton was known to be unfavorable to Burr, and his influence still had some weight. Common sense, and probably a fear of serious consequences, began to take the place of besotted partisanship. So, after a week of anxiety, an end was reached (February 17, 1801). The Maryland Federalists put in blanks and the rest of the delegation voted for Jefferson. The same result was brought about in the Vermont delegation by the withdrawal of one of the members. Bayard, the only representative from Delaware, cast a blank ballot, and the South Carolina delegation did the same. Jefferson was thus chosen by a vote of ten states to four, the minority votes coming from the four old New England states.

Unquestionably the Federalists were justified constitutionally in voting for Burr. Technically their conduct was irreproachable. No one, however, can defend them, if they seriously thought of preventing an election by delay; and it is quite possible to impugn their judgment in preferring Burr to Jefferson. The significance of the situation lies in the fact that the Federalists acted as they did for party ends; that party candidates, distinctly so considered, had been presented; and that a question could actually arise whether or not individual members of the House could use their own judgment or must consider themselves bound in some vague way to recognize the intention of the electors, the intention also of those who had chosen the electors, and of those who had selected the candidates. Obviously the party system had wrought a change. If electors chosen to support candidates would vote for the party nominees, a tie was not only possible but inevitable; at every election, unless party machinery were so developed that word would go out from some central party organ to the electors, directing one of them not to cast his vote for the vice-presidential candidate, a tie would occur. Even then complications might arise. The one most obvious fact is that there were candidates; and each elector of a party would vote for both.

The method of choosing the president, which had been the subject of so much discussion in the Constitutional Convention, had broken down in one particular. Some modification which would adjust the Constitution to facts was necessary. The subject had been brought to attention four years before this, when Adams and Jefferson were chosen, though they were of differing political faiths. Proposals for amendment had been made in Congress at various times, but nothing had been done. Even after the election of 1800-1801 there was delay, caused in part by party dispute; but in December, 1803, the twelfth amendment providing for separate electoral ballots for president and vice-president was adopted by Congress and sent to the states for ratification. It was proclaimed in force September 25, 1804. Three states rejected it: Massachusetts, Connecticut, and Delaware. The New Hampshire legislature ratified it but the Governor vetoed the ratification.[4] The veto, however, probably did not invalidate the ratification, for the Constitution plainly gives the authority to the legislatures of the states.[5] The opposition of the Federalists to the amendment is an interesting example of sectional suspicion and petty partisanship.[6]

The defeat of the Federalists may be attributed to quite obvious causes; in part at least, it may be accounted for by impulsive reaction, one of those changes in public sentiment, sometimes quite unexpected, which have often come in our political history. But there were doubtless more serious and more meaningful reasons. The Federalist party had been a great party; its leaders were able men; under them the Constitution had been translated into an actual working system; but the party had its weakness in a country where the common voter had power. This power he was beginning to appreciate. The Federalist leaders were deficient because of a native inability to appeal, by and large, to the masses of the people. If they were wise statesmen, they were not very competent politicians. Their fundamental philosophy was benevolent leadership, accompanied by a distrust of those whom they would command. The capacity of their opponents, the Jeffersonians, to reach out to the people and, in the next few years after 1800, to form a party organization of a comprehensive character, was one which the Federalists did not possess, partly no doubt because of the very nature of their party and its social philosophy. Something new was coming into being, a well-articulated institution, the national party with its tentacles reaching out to the remotest hamlet, nationalistic in its character and influence. There was a new and growing loyalty, a sense of devotion to the party. The developing power of the Republicans came partly from the fact that their principles were in accord with the sentiments of the people, and partly from skill in the establishment and the management of party machinery.[7] There is something amusing, no doubt, in the sight of this party advocating local self-government and the right of the individual to fight his own way to comfort and happiness, and, nevertheless, creating an elaborate and powerful national organization; for nationalism and local rights are by nature hardly companionable bedfellows; and organization is hourly in opposition to actual individualism. But such are the processes of history; human affairs do not go forward in obedience to logic.

Jefferson in later years spoke of the election as the "revolution of 1800". But to what extent and in what respects there was a revolution is not evident on the surface. Events soon showed that when necessity arose the government was not conducted with loving adherence to the doctrine of strict construction, nor did it always show anxiety lest the rights of the states be encroached upon. It is difficult to find any material change in the character or activities of the government. But if we consider imponderable elements, the passing of the Federalist regime is of decided significance. Jefferson's idealistic political philosophy, his belief in the essentials of individualistic democracy, his confidence in the power and character of the common man, were, in essence, diametrically opposed to the political thinking and social attitude of the Federalists. Democracy was to make tremendous strides forward in the early decades of the new century; Jeffersonism was in many respects in keeping with the developing social forces of the time.

If the history of America is the history of a people entering upon the great adventure of popular government and marching forward with a considerable degree of achievement, nothing can be much more important than the accession to the presidency of a man who had faith and foresight. Jefferson's inaugural address was a great state paper, and can be read to-day as an incomparable presentation of the spirit and the essential meaning of democracy, especially democracy resting upon confidence in man's individual right to seek his own salvation. We must remember that America had to do more, or was to do more, than found a government, provide laws, establish order, and maintain national dignity. The land was to be the home of a confident, buoyant, and powerful people whose destiny was in their own hands. We cannot lose sight of the fact that for many decades, perhaps even to the present time, America meant to Europe a land in which people were seeking to build up a new political and social system, free from the stratifications of the old world; it was in the eyes of the European man, be he of high or low degree, a land whose success in democracy, if success be won, threatened and more than threatened the stability of privilege, superimposed authority, and all those suppositions concerning the superiority of upper class domination which the old world had inherited from a feudal past. In the opening months of the nineteenth century there came to the presidential chair a man who was permeated with confidence in the brightness of an alluring future.

In December, 1800, nearly three months before the end of Adams's administration, a bill was introduced in Congress, still in the hands of the Federalists, proposing extensive changes in the Judiciary Act of 1789. There were some good reasons for these changes; in fact, the year before, President Adams had recommended revision and amendment of the act, and a committee of the House had reported a bill. Under the existing system, the justices of the Supreme Court were obliged to hold circuit courts; and in those days traveling was neither comfortable nor expeditious; the duty involved actual hardship. '"... the First Magistrate," said Gouverneur Morris, "in selecting a character for the bench, must seek less the learning of a judge than the agility of a post-boy." Under the prevailing system, too, a justice sitting in the Supreme Court might be called upon, unless he voluntarily refrained, to take part in the decision of a controversy on which he had already delivered an opinion when holding circuit court. Something also may be said for the need of increasing the number of districts and thereby making the federal courts more easily accessible — a consideration, however, which did not pleasantly affect the average Republican congressman.

The bill, which was enacted less than three weeks before Adams's retirement and the end of the Federalist regime, provided that from and after the next vacancy, the number of justices of the Supreme Court should be five, instead of six, and it relieved the justices of their duties as postboys. It increased the number of district courts and provided for circuit judges, sixteen in number, with corresponding marshals and attorneys. Here was a golden opportunity for the office-seeker and for the extension of party influence. The indignation of the Republicans might have been tempered, had they been given the chance of filling the new offices with their own party adherents. But no such opportunity was granted them. With an eye for detail, Adams patiently proceeded to appoint to the new positions none but members of his own party before he hurried away in his carriage, not lingering until the new President had taken the oath and delivered his inaugural address.[8] John Marshall, who had been appointed Chief Justice some time before, was left to bear the brunt of Republican suspicion and opprobrium.

The new Judiciary Act, however admirable it may appear, was passed at a most inopportune time. The Republicans were nursing their dislike of the judiciary, a dislike begotten by the harshness and arrogance of certain judges, notably Chase, in the sedition trials, and by the tendency to recognize the common law as a part of the national body of law. They could not quietly accept the new act; they were irritated at the sight of a party, beaten in the election and deprived of control in the political branches of the government, now taking refuge in the judiciary where they would be free from popular pressure and might be able to perpetuate their obnoxious and unpopular doctrines. So bitter was the feeling, so extreme the partisanship, that the freedom and the independence of the judiciary were endangered. "We have been asked," said Senator Jackson of Georgia, in a debate on the repeal of the act establishing the new courts, "if we are afraid of having an army of judges? For myself, I am more afraid of an army of judges, under the patronage of the President, than of an army of soldiers.... Have we not seen sedition laws? Have we not heard judges crying out through the land, sedition!" [9]

Jefferson was not willing to acquiesce in this extension of the judicial system. He had by no means recovered from his hostility to the Alien and Sedition Acts. He distrusted the judiciary in the hands of the Federalists. His message to Congress (December, 1801) contained this passage: "The judiciary system of the United States, and especially that portion of it recently erected, will of course present itself to the contemplation of Congress, and, that they may be able to judge of the proportion which the institution bears to the business it has to perform, I have caused to be procured from the several States and now lay before Congress an exact statement of all the causes decided since the first establishment of the courts, and of those which were depending when additional courts and judges were brought in to their aid." This was plainly a gentle hint of the needlessness of more courts and more judges. Senator Breckenridge[10] of Kentucky offered a motion to repeal the new Judiciary Act. For two months the subject was before Congress. The debate is of importance, not as a mere exhibition of party strife, though that was conspicuous, but because certain fundamental constitutional problems were discussed with earnestness and ability.

The arguments of those who advocated repeal and defended the right of Congress to take such action amounted to this: legislation for the removal of a judge from office would be illegal, but there was a plain distinction between a removal from office and the abolition of the office itself; there were in the Constitution certain limitations of congressional competence in dealing with the judiciary, but there were only three: there must be one and only one Supreme Court, the judges should not be removed from office during good behavior, and their compensation while in office should not be diminished. The advocates of repeal, when they discussed constitutional authority at all, also laid special emphasis upon the right of Congress to establish inferior courts; such courts, they claimed, being created by Congress could be abolished at the discretion of the body which created them. This argument can scarcely be considered totally unreasonable and only the offspring of party passion and prejudice. Concerning the general validity of this reasoning, no dogmatic assertion is desirable. The opponents of repeal stoutly maintained the constitutional impropriety of destroying the office, and thus by indirection removing the newly-appointed judges. But the Federalists may be charged with their full share of partisanship and with the sin of disregarding the spirit of the Constitution; for to use judicial positions for purely partisan purposes or for some ulterior reason is an offense against the spirit. The Constitution plainly does not contemplate making the judiciary the plaything of party politics.[11]

In the course of the debate, the right of a court to declare a congressional act void was discussed. This matter was brought into the debate chiefly, not from the expressed announcement by the Federalists that the Supreme Court would declare the repeal of the Judiciary Act void, but as evidence of the independence of the judiciary, an independence which would be destroyed if the inferior judges should be considered as only the creatures of Congress, and if, to promote the will of a majority of Congress, judicial positions could be abolished. "On examination," said Senator Mason of Massachusetts, "it will be found that the people, in forming their Constitution, meant to make the judges as independent of the Legislature as of the Executive. Because the duties which they have to perform, call upon them to expound not only the laws, but the Constitution also; in which is involved the power of checking the Legislature in case it should pass any laws in violation of the Constitution." [12]

In the Senate, Breckenridge clearly and cogently gave the basis for repudiating this doctrine: "My idea of the subject ... is, that the Constitution intended a separation of the powers vested in the three great departments, giving to each exclusive authority on the subjects committed to it.... That those who made the laws are presumed to have an equal attachment to, and interest in the Constitution; are equally bound by oath to support it, and have an equal right to give a construction to it. That the construction of one department of the powers vested in it, is of higher authority than the construction of any other department; and that, in fact, it is competent to that department to which powers are confided exclusively to decide upon the proper exercise of those powers: that therefore the Legislature have the exclusive right to interpret the Constitution, in what regards the law-making power, and the judges are bound to execute the laws they make."[13]

When Breckenridge closed, Gouverneur Morris rose and congratulated the Senate and America "that we have at length got our adversaries upon the ground where we can fairly meet [them]...." "... the honorable member last up has told us in so many words, that the Legislature may decide exclusively on the Constitution, and that the judges are bound to execute the laws which the Legislature enact.... If this doctrine be sustained ... what possible mode is there to avoid the conclusion that the moment the Legislature of the Union declare themselves supreme, they become so? ... The sovereignty of America will no longer reside in the people, but in the Congress, and the Constitution is whatever they choose to make it." [14] In the House, John Randolph, with characteristic vehemence, announced principles similar to those of Breckenridge: "Here", he exclaimed, "is a new power.... But, sir, are we not as deeply interested in the true exposition of the Constitution as the judges can be? With all the deference to their talents, is not Congress as capable of forming a correct opinion as they are?" [15]

In these discussions, it should be noticed, those denying the power of a court to pronounce an act void did not suggest that the Constitution was not binding on both Congress and the courts. Their strongest pronouncement was in defense of the right of the legislators, in wielding powers confided to them by the Constitution, to judge, without judicial interference or check, of the extent of those powers. The winter passed before the final vote was taken; the debating was earnest and intelligent. In early March (1802) the act of repeal was passed and signed by the President. It provided that acts in force before the enactment of the Judiciary Act of 1801 were revived and in full operation.

Near the end of April an amendatory act was passed which made sundry alterations in the existing system; it provided that there should be but one term of the Supreme Court each year, which should begin on the first Monday in February. No session of the Court could be held, therefore, until some nine months had passed. If John Marshall and his colleagues should contemplate finding the repeal of the Judiciary Act of 1801 void, they would have to wait for a time, and meanwhile the public excitement would be abated. That this was the purpose of the Republicans in passing the act is by no means certain, though it is often asserted; but the act contained many other provisions, and there was comparatively little attention paid in the debates to the postponement of the Court's session. At all events, delay made a declaration of the unconstitutionality of the repeal difficult, perhaps impossible;[16] it also postponed the decision of a case to be discussed on later pages — the famous case of Marbury v. Madison.


[1] Letter from Jefferson to Madison, December 19, 1800, in Jefferson, Works (federal ed.), IX, p. 158.

[2] That the crisis was trying is indicated by the following item from The National Intelligencer (February 16, 1801), as the situation disclosed itself: "All the accounts received from individuals at a distance, as well as the feelings of citizens on the spot, concur in establishing the conviction that the present is among the most solemn eras which have existed in the annals of our country."

[3] Jefferson, Works (federal ed.), IX, p. 179. See also, James Monroe, Writings (S. M. Hamilton, ed.), III, pp. 256-257.

[4] H. V. Ames, The Proposed Amendments to the Constitution of the United States During the First Century of Its History (Am. Hist. Asso. Report for 1896, II), p. 79, note 7.

[5] On this matter there is no authoritative decision; but probably, on the whole, both reason and practice indicate that the governor's consent is not necessary. "It is believed that the framers of the Constitution did not anticipate that the chief executives of the States would participate with the legislative bodies in the approval or disapproval of amendments submitted, for at the time the Constitution was framed but one of the States conferred upon the governor the veto power." Ibid., p. 297. The reason above given is only one of the reasons for thinking the governor does not participate. The same principle appears to obtain with reference to the president, whose signature to a proposed amendment is unnecessary. Ibid., pp. 295-296. See Hollingsworth v. Virginia, 3 Dallas 378, 381, note 1 (1798). In that case Justice Chase appears to have said, "The negative of the President applies only to the ordinary cases of legislation. He has nothing to do with the proposition, or adoption, of amendments to the Constitution." In this connection it is interesting to notice that the opponents of the twelfth amendment in the federal House declared the resolution not constitutionally passed in the Senate because not two-thirds of the senators but only two-thirds of those present voted for it. Ames, The Proposed Amendments, loc. cit., p. 79. In the National Prohibition Cases, 253 U. S. 350 (1920), the Court held that the required two-thirds vote is two-thirds of the members present. For an excellent survey of the amending process, see H. V. Ames, "The Amending Provision of the Federal Constitution in Practice," Am. Philosophical Society Proceedings, LXIII, pp. 62-75.

[6] After the twelfth amendment to the federal Constitution no other was passed and accepted by the states until the thirteenth, the immediate product of the Civil War. Two amendments proposed by Congress were not accepted — one proposed in 1810 and one in 1861, the latter being intended to protect slavery in the states.

[7] The skill with which the Republicans so organized their forces as to give the appearance of carrying out popular behests, and at least to gather popular backing, is to be distinguished from the Federalist system, which appeared to consist in talking down to the plain people and pointing the way they should go. The more elaborate organizing was done early in the nineteenth century. Of great interest in this connection is G. D. Luetscher, Early Political Machinery in the United States.

[8] Channing says that Adams's yielding to the pressure for office in the last two months of his administration was "most unfortunate, but it should be attributed to the goodness of his heart rather than to any selfish desire to defraud Jefferson of any of his rights." See Edward Channing, A History of the United States, IV, p. 241. If Adams's heart was on the right side, it was the Federalist side! Channing also says that the recent death of his son was the reason for Adams's "seemingly discourteous departure" before Jefferson's inauguration. Ibid., IV, p. 243, note 2.

[9] Annals of Congress, 7 Cong., 1 sess., col. 47.

[10] There is some variation in the spelling of this name. The form used here is that which appears in the Annals of Congress.

[11] One has to confess that there may be at times sound reason for filling judicial positions with men who have certain theories of the Constitution. Like so many other questions, this is not purely an abstract constitutional matter. In recent days we have seen senators opposing the appointment to judicial positions of men who have particular attitudes toward matters of pressing interest; we have seen men, like Lincoln in 1858, declaring that a certain tendency in the Supreme Court must be checked or counteracted. In all such matters, the degree of impropriety needs to be taken into consideration. If we say that all such plans and purposes are unconstitutional, if we contend that only a man's personal honor and legal learning need be considered, we are demanding as constitutional standards what conditions of practical statesmanship will probably make untenable. At all events, we are faced with a problem of ethics rather than one of constitutional power. And as long as men continue to be political beings and as long as judges are thought of as human, presidents and senators will be likely to consider more than mere intellectual acumen in appointees for the bench.

[12] Annals of Congress, 7 Cong., 1 sess., col. 32. "To my mind, these considerations are satisfactory, that, from the very constitution of our courts, from the practice and admission of our State courts and State Legislatures, and Federal courts, and Federal Legislature, that the judges of the United States, sitting in court, have the power, and by oath are bound to pronounce, that an act contrary to the Constitution, is void.... The concentrating the branches of power either Executive and Legislative, or Legislative and Judiciary, in the same hands, is the very essence of tyranny...." John Stanley in the House. Ibid., col. 576.

[13] Ibid., col. 179. How this principle could be accepted, if the question was whether or not a president was to be the sole judge of his own authority and quite free from judicial restraint, it is not easy to see.

[14] Ibid., cols. 180-181.

[15] Ibid., col. 661.

[16] "The chief alterations made from the old system consist in the holding the Supreme Court only once a year by four justices, and the establishment of six circuits, within each district of which circuit courts are to be holden twice a year, composed of one justice of the Supreme Court and the judge of the district, in which said court is held." Annals of Congress, 7 Cong., 1 sess., col. 1160. It is often said that the act in question postponed a session for fourteen months: "... the Supreme Court ... was practically abolished for fourteen months." A. J. Beveridge, The Life of John Marshall, III, p. 97. As a matter of fact, after the passage of the act of April, 1802, about nine months passed without a session of the Court. It is true that about fourteen months passed between the meeting of the Court, which had been held in December, 1801, and the meeting in February provided for by the act of April, 1802. That the act was passed by the Republicans with the intention of preventing a decision by the Court on the validity of the repeal of the Judiciary Act of 1801, may be true, as has been suggested; that motive was touched on in the debates in the House by Bayard and was denied by Nicholson. The chief attack of the Federalists was against the impropriety of providing only one session per year.


CHAPTER XXII

THE ANNEXATION OF LOUISIANA

In the early nineteenth century the most important event in American history, an event important too in the world's history, was the annexation of Louisiana — a vast territory which Napoleon with a magnificent gesture threw into the laps of the American envoys at Paris, receiving in return fifteen million dollars that his coffers might be filled for fighting the obstinancy of Britain. However much Napoleon might still cherish a grandiose scheme for a colonial empire in the Americas, he had surrendered a region which added to the United States an area larger than the land bounded by the treaty of 1783. For a time the accession gave excuse for further bitterness in the hearts of New England malcontents; but its great and lasting effect was to build up and strengthen the young republic. The central valley of the continent, with all its potential riches, a great geographical unit, destined to be the heart of a powerful nation, was brought under the American flag.[1] The old Mississippi question which had vexed the country from the earliest days of the Revolution was to vex it no more; almost unlimited space for expansion under national protection was furnished; and the spirit of nationalism, the feeling and sentiment of strength, vitality, and destiny, were given new and dominant energy.

This extension of the American domain was brought about by the Republican party under the leadership of Thomas Jefferson. If Jefferson was a localist, intent upon saving the states from the power of an overtowering national government, his purpose was badly damaged when he reached out his hand for the treaty which Livingston and Monroe had signed at Paris. Of course states' rights were not affected as a mere theory; but the extension of the national domain tended to develop national interests and to add to national responsibilities. Jefferson was not, it is true, at any time anything less than an American; his advocacy of states' rights was primarily in defense of individual liberty; his affections and hopes extended far beyond the confines of his native state.

Jefferson had been vigorously opposed to a free and easy interpretation of the Constitution. When faced by imperative necessity, he put his constitutional scruples aside. The matter of Jefferson's inconsistency, because of his willingness to annex territory when no such power appeared to be given by the Constitution, does not need many words of sardonic comment. He was not alone in his inconsistency; in fact, the leaders of neither party appeared to honor consistency as a factor of statesmanship. The Federalist leaders showed no marked inconsistency with the inner spirit of their party — instinctively it was a party believing in the right of superiors to rule; it did not shrink from imperialism — , but they of course objected to the treaty, partly no doubt because they were faithfully carrying out the doctrine that the duty of a party of opposition is to oppose.

The constitutional difficulties gave Jefferson anxiety and he thought it advisable to amend the Constitution, though that might have granted authority after the deed was done. "I had rather", he wrote, "ask an enlargement of power from the nation, where it is found necessary, than to assume it by a construction which would make our powers boundless. Our peculiar security is in possession of a written Constitution. Let us not make it a blank paper by construction." [2] His proposals, however, met with cold reception even from those who had been the warmest exponents of strict construction and states' rights. He drafted constitutional amendments and submitted them to members of his cabinet.[3] Gallatin, to whom one copy was sent, and who had already expressed his opinion that "the United States as a nation have an inherent right to acquire territory",[4] barely acknowledged its receipt and appears to have made no comments. From other quarters the worried President received slight help or consolation. No way out of the trouble was open to him but to acquiesce, "confiding, that the good sense of our country will correct the evil of construction when it shall produce ill effects." [5] He alone and unaided could not amend the Constitution, nor, in light of the emergency — for Napoleon might not forever await ratification of the treaty and payment of the price — was it wise to linger and delay. His party was against him, and a handful of Federalists were eager for the fray. But with the annexation of Louisiana, strict, narrow, construction was badly damaged; it might be again dragged to the light for party or sectional service; but for the time being it was useless in the hands of those who had begotten it.

The debate over measures for carrying the treaty into effect brought forth Federalist opposition and Republican support in both houses of Congress. The Federalist party did not haggle over the fact of annexation but dwelt chiefly upon certain provisions of the treaty and their implications. The framers of the Constitution, declared Gaylord Griswold of New York, "carried their ideas to the time when there might be an extended population; but they did not carry them forward to the time when an addition might be made to the Union of a territory equal to the whole United States, which additional territory might overbalance the existing territory, and thereby the rights of the present citizens of the United States be swallowed up and lost." [6] Here was the old fear lest the east be shorn of its powers; and yet the consequences of this extensive scope of the treaty-making power might have caused anyone, if he looked into the future, to hesitate and indulge in misgivings. The Federalist position, however, was most clearly presented by Roger Griswold of Connecticut: "A new territory and new subjects may undoubtedly be obtained by conquest and by purchase; but neither the conquest nor the purchase can incorporate them into the Union. They must remain in the condition of colonies, and be governed accordingly." [7]

The opposition made no serious impression on the House; the resolutions for establishing a provisional government and paying France were referred to committees. On the critical resolution, that provision ought to be made for carrying the treaty into effect, the vote was ninety to twenty-five,[8] two-thirds of the minority being from New England.

In the Senate a few members did not hesitate to attack the constitutionality of the treaty; it was not however the validity of annexation which they denied, but the right to incorporate people, and to absorb them into the United States. No such act could be effected, declared Pickering of Massachusetts, without an amendment of the Constitution which should be made not by the concurrence of two-thirds of both houses and ratification by three-fourths of the states, but by all the members of the union, "in like manner as in a commercial house, the consent of each member would be necessary to admit a new partner into the company...." [9] He did not doubt the right to acquire territory, either by purchase or by conquest, and to govern the territory so acquired as a dependent province.[10] With these doctrines, Tracy of Connecticut substantially agreed.[11] Extreme Federalism, then, had reduced the Constitution to a partnership in which the original influence and authority of each member could not be diminished without its express consent.

And what a change had swept over the advocates of states' rights! The two senators from Virginia, John Taylor [12] and Wilson Gary Nicholas, as well as Senator Breckenridge of Kentucky, all of whom had been prominent advocates of the resolutions of 1798, now looked with sorrow upon the Federalist doctrines of national incompetency. They appeared to have no misgivings; they were not inclined to indulge, as did their leader in the White House, in lamentation over the necessity of assuming powers.

Both parties agreed on one point: foreign territory could be annexed. But the Federalist spokesmen looked with favor upon a union which would narrowly guard the balanced powers of the states — parties to the constitutional compact — , while the Republicans scorned meagerly technical views of the constitutional system and of national authority. The Federalists granted the possibility of an empire over a vast area and over a dependent people; the Republicans wanted Louisiana and gave their sanction not only to the annexation but to the ultimate absorption of people into the United States, a step which made certain the creation of a new union and was sure to cast reproach upon any doctrine of state sovereignty, as far as that doctrine rested for support upon the sovereignty of the original thirteen states when they ratified the federal compact.[13]

While the New England opposition was fostered by provincialism and by partisanship, we cannot look upon the Federalist argument itself as only a piece of intellectual perversity. Certainly men might well stop at least to question the advisability of incorporation of an extensive area and its people into the United States. The extent of the treaty-making power as exemplified by the treaty raised a question of much perplexity; the interpretation of the clause concerning incorporation presented difficulties. The impressive fact is that (whether the impulse sprang merely from national land-hunger or not) nationalism had so far developed by 1803 that a treaty doubling the area of the United States met with little opposition — a treaty promising the people of the annexed region admission as soon as possible into the advantages and immunities of citizens of the United States. Impressive too is the Federalist doctrine of empire. Neither party could look upon the United States as a mere collection of impotent sovereignties.[14]


[1] The Mississippi River, the central line of a magnificent valley, flowed henceforth through American territory. If we look for the bonds that held the American states and American sections together, we may find the strongest bond, not to have been laws and courts, but water, the river system of the Mississippi valley. When Mr. Russell, the correspondent of the London Times, was introduced to Lincoln, the President put out his hand and said, "Mr. Russell, I am very glad to make your acquaintance, and to see you in this country. The London Times is one of the greatest powers in the world, — in fact, I don't know anything which has much more power, — unless perhaps it's the Mississippi." Quoted in Abraham Lincoln Association Papers (1931), p. 21.

[2] Jefferson to Wilson Gary Nicholas, September 7, 1803, in Jefferson, Works (federal ed.), X, p. 10 note.

[3] One was drawn in July and the other in August.

[4] Gallatin to Jefferson, January 13, 1803, in Albert Gallatin, Writings (Henry Adams, ed.), I, p. 113.

[5] Jefferson to Wilson Gary Nicholas, September 7, 1803, in Jefferson, Works (federal ed.), X, p. 11 note.

[6] Annals of Congress, 8 Cong., 1 sess., col. 433. The third article of the treaty read: "The inhabitants of the ceded territory shall be incorporated in the Union of the United States, and admitted as soon as possible, according to the principles of the Federal constitution, to the enjoyment of all the rights, advantages, and immunities of citizens of the United States; and in the mean time they shall be maintained and protected in the free enjoyment of their liberty, property, and the religion which they profess."

[7] Ibid., col. 463. Griswold also objected to great powers in the hands of the President and the Senate. "It is, in my opinion, scarcely possible for any gentleman on this floor to advance an opinion that the President and Senate may add to the members of the Union by treaty whenever they please, or, in the words of this treaty, may 'incorporate in the union of the United States' a foreign nation who, from interest or ambition, may wish to become a member of our Government. Such a power would be directly repugnant to the original compact between the States, and a violation of the principles on which that compact was formed." Ibid., col. 461. Concerning the significance of incorporation, see Downes v. Bidwell, 182 U. S. 244 (1901).

[8] Annals of Congress, 8 Cong., 1 sess., cols. 488-489.

[9] Ibid., col. 45.

[10] Ibid.

[11] Ibid., cols. 55-58.

[12] See especially, Ibid., col. 50. Taylor's position is significant because of the nature of his writings and theories at a later date.

[13] I do not understand that the Republican leaders plainly committed themselves to an interpretation of the treaty which would involve the right of the treaty-making power to provide for admission of annexed territory into the union as a state without congressional action.

[14] Jefferson doubted at this time whether new states could be formed out of annexed territory. "But when I consider that the limits of the U S are precisely fixed by the treaty of 1783, that the Constitution expressly declares itself to be made for the U S, I cannot help believing the intention was to permit Congress to admit into the Union new States, which should be formed out of the territory for which, & under whose authority alone, they were then acting." Jefferson to Wilson Cary Nicholas, September 7, 1803, in Jefferson, Works (federal ed.), X, p. 10 note.


CHAPTER XXIII

JOHN MARSHALL, CHIEF JUSTICE.
THE EARLY HISTORY OF THE SUPREME COURT.
MARBURY v. MADISON

Before Adams left office he appointed John Marshall Chief Justice of the United States. This office Marshall held for more than three decades (1801-1835), and his influence in shaping the foundations of American constitutional law can hardly be overestimated. Presidents were elected and retired from office; parties were broken up and reconstituted; changes in social and economic conditions were wrought by time; the population of the land greatly increased in numbers; the boundaries of the republic were extended; new states were formed; old ideas and mental attitudes of the eighteenth century passed away; but Marshall in the quiet of the court-room continued to give forth decisions from the bench and to win for himself fame as one of the great judges of all time. He had a unique opportunity. He was called upon to construe the fundamental law of a nation, to lay down principles which were to be of supreme consequence in securing national stability and national development. No other justice in the course of the past ages had such an opportunity and such responsibilities. The Constitution which he was called upon to interpret and apply was the Constitution, moreover, of a federal, not of a unitary or centralized state; in consequence, judicial problems were novel, and little help could be gained from precedent, especially in deciding those controveries which were most vital and significant. If not always free from emotional strain, he was peculiarly judicial in his outward attitude; he was decisive without being overbearing. His literary style, especially in his more important opinions in the years when he had reached the summit of his intellectual power, was clear, simple, and eloquent, if the occasion made eloquence appropriate. The layman as well as the learned practitioner can read his words and grasp their meaning.[1]

His early training and preparation for his task were not very thorough; he had had none of the prolonged drill to which the modern student is subjected; but his experiences in the army and in political life had given him an insight into practical problems and had furnished him with stern convictions. The years spent in the Revolutionary army, where he had suffered the slings and arrows of outrageous fortune, had left their deep impressions; and if we seek the basic depths of his devoted nationalism, we can doubtless find them in the privations of Valley Forge; these privations, he well knew, were the product of incompetent government, an imperfect union of the states, and the absence of national patriotism. In his greatest and most powerful opinions, as we read them to-day, he appears to us to be speaking not in the terms of technical law but as one of Washington's soldiers who had suffered that the nation might live. Had he been more of a technical lawyer, thoroughly steeped in the history and entangled in the intricacies of the law, he might not have been so great a jurist; for his duties called for the talent and the insight of a statesman capable of looking beyond the confines of legal learning and outward onto the life of a vigorous people entering upon the task of occupying a continent and soon to be confronted with new and imperious problems.[2]

There appears to be a tendency among modern writers to attribute to Marshall the creation of the elementary principles of constitutional construction. This is true of both those who extol and those who criticize or lament his work, especially his great decisions which expounded the principles of nationalism. But as a matter of plain fact, his predecessors in the Court, when passing on questions which involved the general nature of the Constitution and the structure of the union, viewed the Constitution in much the same way as Marshall did. From the very beginning to the present there has been no variation from the main line of construction which Marshall in successive cases drew with a firm and strong hand; the decisions made by the Court in the first decade of the Constitution's life furnished solid foundation for later constructions embodying legal nationalism.

The most important of the early decisions, that were rendered before Marshall came to the bench, was Chisholm v. Georgia.[3] The question at issue was whether one of the states of the union was suable by a citizen of another state. As the Constitution then stood, the judicial power of the United States extended to controveries "between a State and citizens of another State", and therefore at first sight the question appeared easily answerable in the affirmative. And still, if the states were supposed to retain even partial sovereignty, their suability presented difficulties.[4] Moreover, the prospect of a state's being brought before the Court and ordered to pay its debts was not alluring. The dignity of the state would be affronted; and its treasure, if it had any, diminished. The Court discussed the question at great length and decided that a state could be sued.

In giving their opinions the justices considered not only the clause directly involved but also the nature of the union. Justice Iredell dissented, holding that in the absence of explicit legislation by Congress a state could not be sued, and said that his "present opinion" was against any construction of the Constitution which would "admit, under any circumstances, a compulsive suit against a State for the recovery of money." [5] He declared that every state "in every instance where its sovereignty has not been delegated to the United States, I consider to be as completely sovereign, as the United States are in respect to the powers surrendered." [6] This was the doctrine of divided sovereignty which appeared in other opinions as the doctrine of the Court. Justice Wilson construed the Constitution in terms of decided nationalism: "As a Judge of this Court, I know, and can decide upon the knowledge, that the citizens of Georgia, when they acted upon the large scale of the Union, as a part of the 'People of the United States,' did not surrender the Supreme or sovereign Power to that State; but, as to the purposes of the Union, retained it to themselves. As to the purposes of the Union, therefore, Georgia is NOT a sovereign State." Chief Justice Jay said, "Every State Constitution is a compact made by and between the citizens of a State to govern themselves in a certain manner; and the Constitution of the United States is likewise a compact made by the people of the United States to govern themselves as to general objects, in a certain manner." His general position was that "the sovereignty of the nation is the people of the nation, and the residuary sovereignty of each State, in the people of each State...." The people of the United States, he declared, "acting as sovereigns of the whole country", established "a Constitution by which it was their will, that the State Governments should be bound, and to which the State Constitutions should be made to conform."

Georgia indulged in loud lamentation; its house of representatives passed a bill "declaratory of certain parts of the retained sovereignty of the state" and subjecting to death "without benefit of clergy" any officer or other person levying on the property of the state by virtue of the authority of any court. It is impressive, this tender sense of sovereign self-sufficiency,[7] in a state of about 80,000 inhabitants including slaves. But Georgia was not alone. Suits had been begun against Maryland, New York, and Massachusetts;[8] and those states, as well as others, were eager to banish the danger of being compelled to pay their debts. An amendment was drawn up by Congress and proposed to the states for their acceptance in 1794, but not until January 8, 1798, was announcement made of complete ratification:[9] "The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another State, or by citizens or subjects of any foreign State."

The amendment did not by these words explicitly exclude a suit brought against a state by one of its own citizens. The question arose nearly a century after the decision in the Chisholm case. In the later case,[10] the Supreme Court solemnly declared Iredell's position to be right, and that of the other judges wrong: "The suability of a State without its consent was a thing unknown to the law. This has been so often laid down and acknowledged by courts and jurists that it is hardly necessary to be formally asserted. It was fully shown by an exhaustive examination of the old law by Mr. Justice Iredell in his opinion in Chisholm v. Georgia; and it has been conceded in every case since, where the question has, in any way, been presented...." [11]

In the case of Calder v. Bull[12] the term "ex post facto" was interpreted as applying only to criminal laws. The Court also indicated what provisions in an act would be considered ex post facto in character. In addition, the announcement was clearly made that the state legislatures retain all powers delegated to them by the state constitutions which are not taken away by the federal Constitution, and that the federal Court had no jurisdiction to determine that any law of a state contrary to the constitution of such state is void. Of special interest is one statement of Justice Chase: "An act of the Legislature (for I cannot call it a law) contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority." [13] Justice Iredell, on the other hand, declared that, while an act violating constitutional provisions is void, the Court cannot pronounce it void merely because in the opinion of the judiciary it is contrary to the principles of natural justice.[14] In this matter Iredell's opinion coincides with principles later followed by the courts;[15] but the due process of law clause in the fifth and fourteenth amendments of the federal Constitution, and like provisions in state constitutions, as judicially construed in later years, make the distinction not very important, if there be any distinction at all.

An important decision was rendered concerning the binding effect of the treaty of peace and especially of the provision which declared that "creditors on either side shall meet with no lawful impediment to the recovery ... of all bona fide debts heretofore contracted." The Court held that the treaty nullified the sequestering act of Virginia which was passed during the Revolution, and that, as the Constitution declared that all treaties "made, or which shall be made, under the authority of the United States, shall be the supreme law of the land", the treaty was binding upon the states and must be recognized and applied by the judiciary. "A treaty", said Justice Chase, "cannot be the supreme law of the land, that is of all the United States, if any act of a State Legislature can stand in its way." [16] The nationalistic interpretation of the Constitution stands forth conspicuously in this opinion.

In this same year (1796) the Court, passing upon the question whether a tax on carriages was or was not a direct tax as the term appears in the Constitution,[17] declared such a tax could be levied without apportionment among the states. Members of the Court expressed the opinion that only two taxes could be classified as direct — a capitation tax and a tax on land. But this opinion, though at times referred to in later cases, did not finally settle the question concerning the actual limits of direct taxation. A century afterwards the Court declared unconstitutional an act levying taxes on incomes.[18] The nature of that decision will be discussed in later pages of this work.

Even while the discussions which ended in the repeal of the Judiciary Act of 1801 were going on, a very important case came before the Supreme Court. William Marbury, who had been appointed by Adams to be a justice of the peace in the District of Columbia, had not received his commission. Marshall, who had acted as Secretary of State until the end of Adams's term, had neglected, because of the hurry of the later days, to attend to the transmission of the commission, and Marbury sought the aid of the Court. Motion was made in the December term of 1801 for a rule requiring the Secretary of State, Madison, to show cause why a mandamus should not issue directing him to deliver the commission. The rule was issued, but Madison ignored it. On motion for a mandamus, Marshall gave an opinion and the Court made a decision in which for the first time a congressional enactment was declared by the Supreme Court to be unconstitutional and of no effect (1803).[19]

The Chief Justice first passed upon the question of Marbury's right to receive the commission, and then, having decided in favor of that right, proceeded to declare invalid a portion of the Judiciary Act of 1789 which granted to the Court the power to issue a mandamus; he thereupon dismissed the application for the mandamus because the Court had no constitutional authority to issue it, and had, indeed, no jurisdiction of a case of this kind. It thus appears that the Court announced the duty of the administration and the rights of Marbury in a case which constitutionally it had no authority to entertain. This method of procedure appears to-day most extraordinary.

Can it be reasonably said that a court can lay down an authoritative decision concerning the merits of a controversy over which it has no jurisdiction? And if the Court in this instance had no jurisdiction, why was it not proper to make that declaration at once and without further ado, and without announcing Marbury's right to his commission? Certainly there is no obligation upon a court to decide whether rights have been violated before it considers its own capacity. In this case, according to Marshall's own theories, the want of jurisdiction was plain on the very face of the pleadings.[20]

The ire of the Republicans had already been aroused by what they considered the gross impropriety of ordering the Secretary of State to show cause; they resented the assumption of power in a court to call a high executive officer before it; they were not in a mood to view temperately the sight of a court, not only declaring an act void, but, before doing so, casting opprobrium upon high executive officers — members and leaders of their own party. Had Marshall had the temerity — perhaps it is fortunate that the opportunity did not arise — to declare the repeal of the Judiciary Act of 1801 unconstitutional, the result might have been disastrous to judicial independence.

What Marshall succeeded in doing was (1) to condemn his political opponents, (2) to exhibit the power of the Court to declare legislative acts void, and (3) to refuse to issue the mandamus; he thus avoided a contest with the President in which he would have been inevitably worsted, because Jefferson would have paid no attention either to him or to his writ. Steps were soon to be taken for testing by impeachment the sanctity of judicial tenure and the immunity of partisan justices; the impeachments which will be considered on later pages must be borne in mind, if we wish to appreciate how critical were the problems and how sensitive the temper of the time. There is no evidence that the Marbury case was trumped up for the purpose of giving Marshall the opportunity to declare an act void, but we can well assume his pleasure in discovering that he had the chance to do so and could exercise the power without bringing on a perilous dispute. We must now turn to the more important part of Marshall's opinion, a declaration that a certain portion of the thirteenth section of the Judiciary Act of 1789 was void. That section assigned to the Supreme Court the power to issue "writs of mandamus ... in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office, under the authority of the United States." [21] The Constitution says that the Supreme Court shall have original jurisdiction in two classes of cases: those affecting ambassadors, other public ministers, and consuls, and those in which a state shall be a party. In all the other cases to which the federal judicial power extends, the Supreme Court is given appellate jurisdiction. The Marbury case, instituted as an original proceeding in the Supreme Court, was plainly not within the original jurisdiction of the Court.

But there was, nevertheless, no need of declaring the provision of the Judiciary Act void. If we read the whole section of the act, a few words of which are quoted in the preceding paragraph, we find no distinct and obvious intention to grant to the Supreme Court the right to issue writs of mandamus, except where it had jurisdiction of the case — that is to say, when the Court was exercising its appellate jurisdiction or its original jurisdiction under the terms and restrictions of the Constitution. The Chief Justice could have properly said that, though the words of the act might be construed as an attempt to grant unconstitutional authority to the Court, they were quite capable of another construction; and this construction should be placed upon them — that is to say, such a construction as would signify the right to issue a writ of mandamus "in cases warranted by the principles and usages of law," and in connection with controversies over which the Court, by the Constitution, had jurisdiction.[22]

Before further discussion of the principle involved in this famous decision, and before looking for its historical basis, it is well to disabuse our minds of the notion, if the notion be there, that it is the peculiar function of the Supreme Court to pronounce legislative acts void; that Court stands in no peculiar relationship to Congress and is not charged with the special and exclusive duty of upholding the Constitution which is law. It is the duty of any and every court to announce the law and to apply the law in distributing justice to litigants. No matter how lowly a court may be, such is its duty; that is its ordinary and daily job; and in strict theory it proceeds no differently, when deciding whether a legislative act is law or not law, from the way it proceeds when it passes on any other legal problem. Naturally and inevitably an inferior court will hesitate to pronounce a legislative act void; but in theory it has the right and the duty, for the Constitution is the law. We have recently seen a judge of an inferior federal court practically declare an amendment to the Constitution void; and though the Supreme Court, passing upon the question when the case was carried up on appeal, overruled the decision of the lower court, it did not even remotely suggest that the judge was guilty of presumption.[23] Furthermore, we must remember, this judicial power has been used for a hundred and fifty years by state courts; it has been used hundreds of times when those courts have been called upon to consider the constitutionality of state statutes and to decide whether they were or were not contrary to the state constitution or to the Constitution of the United States.[24] The Judiciary Act of 1789, as we have seen, plainly took for granted the right and the possibility of a state court's declaring an act of Congress void; and provision was therefore made for a review in the Supreme Court of the United States to determine whether the decision of the state court should stand.

In giving the famous opinion, Marshall, referring to the distinction between governments which are limited and those which are unlimited, said the distinction was abolished if the limits did not confine the persons on whom they were imposed, and if acts prohibited and acts allowed were of equal obligation. "The constitution is either a superior paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it.... Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and, consequently, the theory of every such government must be, that an act of the legislature, repugnant to the constitution, is void." He declared this theory to be essentially attached to a written constitution. He also declared, "It is emphatically the province and duty of the judicial department to say what the law is.... If two laws conflict with each other, the courts must decide on the operation of each." This argument was buttressed by the statement that, inasmuch as the judicial power of the United States extends to all cases arising under the Constitution, the courts must examine the Constitution: "In some cases, then, the constitution must be looked into by the judges. And if they can open it at all, what part of it are they forbidden to read or to obey?" Now, the critical question was not whether the Constitution was or was not binding. The question was whether Congress, though acknowledging the obligation to observe constitutional limitations of its power, had the right to decide what the limits were.[25] As a basis for the power of a court to disagree with the legislature and declare an act void, it is not enough to point to a written Constitution. We now know that a country may have a written constitution and the courts may nevertheless have no such power. A court, however, is not without justification in giving weight to historical forces, principles which may have been begotten, and fundamental theories upon which constitutions and laws must be supposed to rest. In fact, this particular judicial power rests so plainly on purely historical forces, rather than on any piece of formal logical argument from a document, that anything less than a discussion of historical influences leaves one in doubt concerning the Court's authority. We can recognize the basic principle of the decision only if we know the developments of American thought and of American constitutional principles during forty years and more before Marbury asked for the mandamus. Even should we find in state and federal constitutions the explicit announcement of such extraordinary judicial power (and there is no such announcement), we would be led to inquire into the origin of the principle and to examine the nature of the forces that brought such power into existence.

Although the Marbury case was the first in which the Supreme Court declared a congressional act void, there had been various expressions of opinion and dicta by federal justices and some important decisions which need to be taken into consideration as a preparation for Marshall's decision. This examination will lead us over ground already traversed and give us opportunity to review facts and theories already presented. If we begin with the date of Marshall's opinion and work our way backward, seeking to find the origin of the principle on which he acted, we shall find ourselves, even in a hasty and cursory search, studying not only the immediate antecedents of the Marbury case but reaching farther back and looking once more at the doctrines and philosophy of the American Revolution. The doctrine of what is now called "judicial review" is the last word, logically and historically speaking, in the attempt of a free people to establish and maintain a non-autocratic government. It is the culmination of the essentials of Revolutionary thinking and, indeed, of the thinking of those who a hundred years and more before the Revolution called for a government of laws and not of men.

In Calder v. Bull, the statements of Justice Chase and Justice Iredell concerning the power of the Court are noteworthy.[26] Two years earlier, in the case of Hylton v. the United States,[27] a federal act was attacked as unconstitutional, and, though the Court did not so decide, the suit was brought on the supposition that the Court had the power to declare the act invalid. In Van Home's Lessee v. Dorrance, Justice Paterson said: "... if a legislative act oppugns a constitutional principle, the former must give way, and be rejected on the score of repugnance.... It is an important principle, which, in the discussion of questions of the present kind, ought never to be lost sight of, that the Judiciary in this country is not a subordinate, but co-ordinate, branch of the government." [28] This latter statement is especially to be noticed, because, if we should examine carefully all of the early decisions, both state and national, we would find frequent emphasis on the coordinate authority of departments and the independence of the judiciary; a court had power to review and reject an act, not because it was superior to the legislature, not because the court was set up as a body of censors, but because it was entitled to its own independent judgment concerning the meaning of the Constitution and the extent of legislative competence. In the so-called "First Hayburn Case", it appears that certain federal justices in a circuit court declared void a portion of an act requiring judges to sit as pension commissioners.[29 ] , If we look beyond judicial dicta and decisions, we find similar announcements of the principle. It was by no means novel in 1803. In replies to the Virginia and Kentucky resolutions, several states spoke of the national judiciary as the final interpreter of the Constitution. In 1791 and 1792, James Wilson delivered a series of lectures to the students of the University of Pennsylvania in which he fully developed the doctrine of the Court's independent right to construe the Constitution, and, if necessary, to reject a legislative act. Time and again this subject was touched on in Congress in the first decade after the establishment of the government, and with one exception the speaker took for granted the authority of the Court to ignore unconstitutional legislation.[30] Hamilton's discussion of judicial authority in The Federalist is extensive and explicit; he took issue with those who had fallen into "perplexity respecting the right of the courts to pronounce legislative acts void, because contrary to the constitution ... from an imagination that the doctrine would imply a superiority of the judiciary to the legislative power." [31] He referred with approval to the integrity of the state judiciary — evidently having in mind instances in which state judges had declared acts void — and said, "they must have commanded the esteem and applause of all the virtuous and disinterested." In the state conventions which ratified the Constitution this power of the courts was referred to on several occasions; their right to declare acts void was held forth as a safeguard against improper extension of the legislative power.[32]

If we examine the decisions of state courts, passing upon the construction or the validity of state acts, we find a number of instances in which the principle we are here considering was applied or announced. Again we must remind ourselves that the right of the judiciary to independent judgment concerning legislative competence is not confined to federal courts or to judges of any particular description when the question of the constitutionality of legislation arises. The early exercise of this power by state courts to declare such state acts void as they believed to be in conflict with the principles of the state constitutions is especially impressive because no constitution contained the specific statement that it was law.[33] Pronouncements of the principle which we are considering were made both before and after the federal Constitution was adopted.[34]

As already said, the Constitution contains no explicit grant of power to declare acts void, and the debates in the Convention do not banish all doubt — if anyone wishes or is anxious to doubt — concerning the intention of the framers or their assumption that this power, not explicitly granted, would nevertheless be exercised. A careful examination of the debates will, however, probably convince the skeptic that men of the Convention made that assumption. Some delegates, at one stage of the Convention's work, disapproved of the exercise of such power; but the general trend of the discussion appears to indicate the general assumption that the power would be exercised in cases over which the courts had jurisdiction.[35]

Special attention should be paid to the words of the Constitution which declare that the Constitution is law. The fact that a constitution, like any other law, is to be interpreted and applied in courts is the salient and cardinal idea. If anyone argues that the quality of the Constitution as law does not necessarily imply the right to judge of the constitutionality of a congressional act, when Congress has exercised its own power to judge, he must nevertheless see that, if the Constitution were not law, the courts could not exercise the power we are discussing; [36] upon the state courts was placed the explicit obligation to handle the federal Constitution as law, to pronounce, if need be, portions of their own state constitutions void. Courts — that is the central fact — were to be used to preserve the constitutional system. Again — the repetition needs no apology — the principle and the practice of enforcing either a state or a national constitution as law is the pivotal matter which needs explanation and understanding.

We have already called attention to the principle of the separation of the powers of government, a principle widely held and in some state constitutions given explicit expression. With this was included, of course, the independence of the judiciary, which was supposed to make for the preservation of liberty. If this spirit or fact of independence were carried far enough, the courts would (and they did) announce their independent right to declare what the law is and to disregard the judgment of the legislature concerning the extent of its own authority. This independence, like so many other things, takes its roots in English history; no judges of England, had, it is true, gone further than to declare that "the common law will control Acts of Parliament and adjudge them to be utterly void...." But English courts had a considerable degree of independence in fact and, on the whole, much independence in spirit in endeavoring to maintain what they might possibly have called the law of the constitution,[37] certainly the essential rights of civil liberty.

The old Congress of the Confederation was especially tried by the readiness of the states to disregard the treaty of peace. The result of such conduct was confusion; in the conduct of foreign affairs it caused ineptitude, demoralizing incompetence. We have noticed in a preceding chapter that even in the time of the Confederation the Congress saw the desirability of courts' upholding treaties; when treaties are "constitutionally made" they become "part of the law of the land...." Resolutions of Congress called upon the state legislatures to repeal their objectionable acts and to authorize the courts to decide cases in accordance with the treaty and to disregard a state law in conflict with the treaty. The declaration, it is true, was not made that a court should disregard a distinct legislative enactment; but the statement nevertheless cannot be considered of no value in any attempt to discover the rise of judicial power.[38] This fact is significant chiefly as indicative of a tendency or a state of mind in the days immediately before the Federal Convention met.

In connection with the cases decided before the adoption of the federal Constitution, we find references to the reasoning of Vattel, to whose influence on the men of the Revolution attention was called on preceding pages of this volume. These pronouncements, restating the principles of the Revolution, were the product of a period of stress and storm in which elementary or fundamental doctrines — more important than institutional forms — were the common possession of the people; the courts were prepared to make those doctrines real in the law; they institutionalized a theory by acting on it. James Iredell, of North Carolina, who later became a member of the federal Supreme Court, said (1786, 1787), "We were not ignorant of the theory of the necessity of the legislature being absolute in all cases, because it was the great ground of the British pretensions." "Without an express Constitution the powers of the Legislature would undoubtedly have been absolute (as the Parliament in Great Britain is held to be), and any act passed, not inconsistent with natural justice (for that curb is avowed by the judges even in England), would have been binding on the people. The experience of the evils which the American war fully disclosed, attending an absolute power in a legislative body, suggested the propriety of a real, original contract between the people and their future Government, such, perhaps, as there has been no instance of in the world but in America." [39] This transmutation of Revolutionary doctrine into judicial decisions, in which the state courts took their stand against the authority of the legislature and maintained the state constitution, as the judges conceived the constitution to be, was not in all instances hailed with approval.[40] But the courts, as we have seen, gradually developed and asserted their power.

In some of the early state constitutions provisions were made for checks upon legislative powers. Had the duty of the courts been fully understood, those provisions, it may be, would not have been made. But on the whole, they bring out in strong light the fundamental thought of the time: there is danger in unchecked legislative power; absolute government is not free government; legislators must obey the law. And thus, if we are looking for a state of mind, for a philosophy of government, for basic principles on which courts act in refusing to recognize unconstitutional legislation, these attempts of the early constitution-makers to find methods of limiting legislative discretion rather strengthen than weaken the position and the theory of the courts, when they definitely carried into operation (without clearly assigned instruction from the people) this belief that only constitutionally-restrained government is free and safe.

To the reader who has been patient enough to follow the writer in discussing the principles of the Revolution as given on earlier pages, further discussion may seem unnecessary. But a word or two may not be amiss. The colonists flatly opposed parliamentary acts on the ground that such acts were unconstitutional and hence not binding. And after all, the essential principle is this: no one is bound to obey an act which is not law. In our anxiety to discover why a court can declare an act void, we may lose sight of this primary principle; the courts only recognize the supremacy of that principle and make it operative; the individual litigant declares an act void and asks the court to agree with him. We need to remember also the formal announcement of the Revolutionary days, "In all free states, the constitution is fixed", the constant use of Locke's second essay, and the repetition of Vattel's assertion that legislators cannot change the constitution without destroying the foundation of their own authority. Locke points out that according to the elementary principles of the common law, an officer acting without authority may be resisted.[41] Over and over again in the Revolutionary argument we find assertion that Parliament was bound and limited by the constitution; the colonists attributed to Britain a principle which they were to make actual in their own constitutions; and the courts, when opportunity arose, assumed the right, in their independence, to act upon that principle and make the Revolutionary doctrine as real as their own position permitted. If we look back through the ages, we see constantly arising the question: are there no limits on governmental power? The framers of our written constitutions sought to answer that question; they established bills of rights referring to rights which government did not create and which no government could violate. Once again, "who are a free people?" The courts carried the principle of inviolable law into practical effect in their administering of justice.[42]

The right of a court to declare an act of Congress void was acted upon only twice before the Civil War. Fifty-four years after Marbury v. Madison, the Supreme Court declared the Missouri Compromise beyond congressional competence and hence invalid. In these two cases, the Supreme Court might have avoided the issue of constitutionality altogether: in the Marbury case, Marshall could have properly construed the act of 1789 in such a way as to deny the jurisdiction of the Court without declaring a portion of the act void; Taney could have avoided any declaration concerning the constitutionality of the Missouri Compromise, and it seems fairly if not conclusively certain that his decision was unwarranted. The salient facts are, therefore, (1) the principle took its rise in the state courts; (2) the state courts have used the power freely in a multitude of cases; (3) especially for the first seventy years the most important power of the federal Supreme Court, in viewing the constitutionality of legislation, was the power to declare state acts invalid, if they violated the federal Constitution, laws, or treaties; this power preserved the federal system from disintegration.[43]

The judicial authority we are here considering may have gained strength from colonial conditions and the institutional practices of the old empire; for we cannot explain the rise and establishment of the principle in American constitutional structure without recognizing it, as we have said, as the product of history, the result of a developing attitude of mind toward government and authority. It may be well, therefore, to notice that there never had existed in America a legislature free from external restraint; in some colonies there had been charters granting and limiting colonial power. The early settlements had been made in some instances by corporations, and beyond the powers assigned to the corporation it of course could not go. The influence of the corporation has probably not received sufficient attention in our studies of the growth of American constitutionalism. Furthermore, the king in council exercised the right to disallow colonial acts, and the same body entertained appeals from colonial courts. Probably these experiences and these institutional practices had their effect in making clear to the American mind that a legislature need not necessarily have complete authority or be the ultimate and conclusive judge of its own power. But when all is said, the main line of argument and the main ideas announced by the courts arose during the course of the Revolutionary discussion. Those ideas took their beginning chiefly in the history of seventeenth-century England — the century in which America took her birth. The conscious line of approach to the principle of judicial independent right to protect civil liberty, the line followed in the early state decisions, rested on the basis of fundamental law (a principle distinctly stated and an ideal striven for during the Cromwellian period, especially 1647-1653) [44] and on doctrines of natural justice and natural right which were thought to be inviolable.

Before leaving this subject and passing on to consider the historical events of the early nineteenth century, attention may be called again to the relation of the courts to executive authority. The connection between the power to ignore unconstitutional legislation and to treat executive acts as valid, only if they be legal and constitutional, is evident; it is evident at least, if we are looking for fundamental principles. This power is of tremendous significance, one of the most important in our whole constitutional system. The right of a court in its ordinary distribution of justice to punish the agents of the highest executive power, if they act beyond the law, took its rise in English law; it is a primary principle of the British-American system of law and of British-American constitutionalism. Is it more than a. narrow step from this right and this principle, which keeps the executive within constitutional limits, to the right and the principle which restrain the legislature by refusing to treat unconstitutional enactments as law? Even if the two principles or rights be kept distinct and be without necessary logical connection, nevertheless the authority of a court — and of course this is true within the state constitutional system as well as within the federal — to restrain or hold in check executive power cannot be considered less important than the right to ignore unconstitutional legislation.


[1] "To the accomplishment of that task [of laying down the legal principles of nationalism] Marshall brought the master-mind of American constitutional government, hardly the perfection of legal reasoning and learning, but so sound a common-sense for the practical working of legal theory, so just an instinct for the national welfare, and so austere and unswerving a judicial fairness and openness of mind that no judge since may be compared with him." Introduction to The Constitutional Decisions of John Marshall (J. P. Cotton, Jr., ed.), I, p. xxxvi.

[2] It is doubtless this quality of Marshall's work which has occasionally induced some writers (in the present writer's judgment) to overstress his political purposes as distinguished from the compulsion of purely legal or, we might say, abstract principles of disembodied law — if there be such a thing.

[3] 2 Dallas 419 (1793).

[4] Marshall in the Virginia convention of 1788 said, "I hope that no gentleman will think that a state will be called at the bar of the federal court.... It is not rational to suppose that the sovereign power should be dragged before a court." Elliot, Debates, III, p. 555. Madison said, "It is not in the power of individuals to call any state into court." Ibid., p. 533. See also Hamilton, in The Federalist, no. LXXXI.

[5] 2 Dallas 419, 449.

[6] "The United States are sovereign as to all the powers of Government actually surrendered". 2 Dallas 419, 435.

[7] But it is not plain that the act meant that Georgia retained full sovereignty.

[8] Ames, The Proposed Amendments, loc. cit., p. 156.

[9] Messages and Papers of the Presidents (J. D. Richardson, compiler; hereafter referred to as Richardson, Messages and Papers), I, p. 260.

[10] Hans v. Louisiana, 134 U. S. 1, 16 (1890). An important early case in interpreting the amendment is Osborn v. Bank of the United States, 9 Wheaton 738 (1824). See also, Cohens v. Virginia, 6 Wheaton 264, 412 (1821).

[11] Naturally one may inquire (1) whether the states in adopting the Constitution including the third article did not thereby consent to suits; (2) whether the states retained their fundamental character or quality of sovereignty, for the jurists of 1793 and 1890 really agreed that the states retained only modified sovereignty. In the Hans v. Louisiana case Justice Harlan dissented as to the disapproval of Chishoim v. Georgia. He said that comments made upon the decision in Chisholm v. Georgia were not necessary to the determination of the present case and besides, "the decision in that case was based upon a sound interpretation of the Constitution as that instrument then was." In 1907 (Kawananakoa v. Polyblank, 205 U. S. 349, 353), we find this: "A sovereign is exempt from suit, not because of any formal conception of obsolete theory, but on the logical and practical ground that there can be no legal right as against the authority that makes the law...." In 1883 the Court declared that a state, by assuming the prosecution of debts owing to its citizens by another state, cannot create a controversy with another state within the meaning of the term as used in the Constitution. New Hampshire v. Louisiana, and New York v. Louisiana, 108 U. S. 76. In 1904, the question arose as to whether one state can sue another and be entitled to recover, when claims of individuals have passed absolutely into the hands of the state. The Court decided that the suit can be instituted: "Obviously that jurisdiction is not affected by the fact that the donor of these bonds could not invoke it." Four justices dissented. South Dakota v. North Carolina, 192 U. S. 286, 312.

[12] 3 Dallas 386 (1798).

[13] Ibid., 388. Capitalization and italics of the original omitted.

[14] Ibid., 399.

[15] But see Loan Association v. Topeka, 20 Wallace 655, 663 (1875), in which the Court speaks of "Implied reservations of individual rights, without which the social compact could not exist, and which are respected by all governments entitled to the name."

[16] Ware v. Hylton, 3 Dallas 199, 236 (1796). Italics of the original omitted.

[17] Hylton v. the United States, 3 Dallas 171 (1796). The Constitution says "Representatives and direct taxes shall be apportioned among the several States ... according to their respective numbers...." Art. I, sec. 2, para. 3. "No capitation or other direct tax shall be laid, unless in proportion to the census or enumeration herein before directed to be taken." Art. I, sec. 9, para. 4.

[18] Pollock v. Farmers' Loan and Trust Co., 157 U. S. 429; 158 U. S. 601 (1895).

[19] Marbury v. Madison, 1 Cranch 137 (1803). In the case of Cooper v. Telfair, 4 Dallas 14, 19 (1800), Justice Chase said that "although it is alleged that all acts of the legislature, in direct opposition to the prohibitions of the constitution, would be void; yet, it still remains a question, where the power resides to declare it void? It is, indeed, a general opinion, it is expressly admitted by all this bar, and some of the Judges have, individually, in the circuits decided, that the supreme court can declare an act of congress to be unconstitutional, and, therefore, invalid; but there is no adjudication of the supreme court itself upon the point. I concur, however, in the general sentiment...." In this case the question was whether an act of Georgia was constitutional, and therefore the power to declare an act of Congress void was not really the question before the Court.

[20] Chief Justice Taft in Myers v. United States, 272 U. S. 52 (1926), said the opinion of Marshall in the Marbury case, as far as it bore on the right of a president to dismiss an officer, was obiter dictum. Justice McReynolds upheld the procedure of Marshall in every particular. Why he should do so, the lay mind fails to understand. If the Court in this instance had declared Marbury not entitled to his commission, would the decision have been conclusive of his rights? Can a conclusive decision concerning personal rights be laid down by a court in a case over which it has no jurisdiction? And if the Court had no authority to pass upon the rights involved, why could not Marshall say so and go on to another job?

[21] Statutes at Large, I, ch. 20, sec. 13. Italics of the original omitted.

[22] See A. C. McLaughlin, "Marbury vs. Madison Again," American Bar Association Journal, XIV, pp. 155-159. It has long been an established principle — not always conscientiously adhered to — that a court will adopt a construction of a statute, which, without doing violence to its fair meaning, will bring it into harmony with the Constitution. This principle offers opportunity for escaping the necessity of declaring an act void. See United States v. D. and H. Co., 213 U. S. 366 (1909), and Knights Templars' Indemnity Co. v. Jarman, 187 U. S. 197, 205 (1902), and cases there cited. A court often will so interpret a statute that it will not conflict with a fundamental or important principle of the common law. This statement may appear to the reader to have no bearing on the problem we are considering. But as a matter of fact, at least historically speaking, there is a close association between the attitude of courts toward the common law and their attitude in America toward the Constitution. The famous Doctor Bonham case, to which James Otis paid attention in his speech on the writs of assistance, was just this kind of a case; Coke was upholding the principles of the common law and he insisted on so construing a parliamentary act as not to violate the common law and fundamental principles of justice. In any attempt to understand the development of judicial power, we should not lose sight of the fact that there were supposed to be fundamental rights which government should not encroach upon; and if an act could bear a construction which would make it consistent with common law and with the essential justice supposed to be embodied in the common law, then that construction would be adopted by the court. The same principle obtains to-day in an American court; a statute will not receive a construction violating fundamental common law and old, established principle, if another construction can be reasonably made use of. See Marshall's statement declaring that an act of Congress ought not to be construed to violate the law of nations, "if any other possible construction remains...." Murray v. Schooner Charming Betsy, 2 Cranch 64, 118 (1804).

[23] United States v. Sprague et al., 282 U. S. 716 (1931).

[24] W. F. Dodd says that in Illinois alone the state supreme court "during the period from 1870 to 1913 passed upon 789 cases involving the constitutionality of statutes, and in more than a fourth of these cases statutes were declared invalid." W. F. Dodd, State Government (1922 ed.), p. 147.

[25] The classical presentation of the right of the legislature to decide on the extent of its own authority was given by Justice Gibson in Eakin v. Raub, 12 Sergeant and Rawle (Pennsylvania) 330, 350 (1825): "But, in theory, all the organs of the government are of equal capacity; or, if not equal, each must be supposed to have superior capacity only for those things which peculiarly belong to it; and as legislation peculiarly involves the consideration of those limitations which are put on the law-making power, and the interpretation of the laws when made, involves only the construction of the laws themselves, it follows, that the construction of the constitution, in this particular, belongs to the legislature, which ought, therefore, to be taken to have superior capacity to judge of the constitutionality of its own acts." Justice Gibson was speaking of the right of a state court to declare a state act void.

[26] 3 Dallas 386 (1798).

[27] 3 Dallas 171 (1796).

[28] 2 Dallas 304, 309 (1795).

[29] Max Farrand, "The First Hayburn Case, 1792," Am. Hist. Rev., XIII, pp. 281-285. Professor Farrand seems to demonstrate that Wilson, Blair, and Peters actually met the issue and declared the law unconstitutional. Notice also United States v. Yale Todd, referred to in a note appended to United States v. Ferreira, 13 Howard 40, 52-53 (1851). For further announcement of the doctrine, see Ogden v. Witherspoon, 3 North Carolina 227 (1802), and Federal Cases, no. 10, 461, where Marshall declared a state act void because it violated the principle of the separation of powers; see Chase's words in United States v. Callender, Federal Cases, no. 14,709 (1800), and Iredell's opinion in Minge v. Gilmour, Federal Cases, no. 9,631 (1798).

[30] A careful examination of the records so far as printed discloses the fact that "in every Congress from 1789 to 1802, the power of the Court to hold Acts of Congress invalid was not only recognized but endorsed by members of both political parties ... and that there is but one specific recorded objection ... namely by Charles Pinckney ... in 1799...." Charles Warren, Congress, the Constitution, and the Supreme Court, p. 97.

[31] The Federalist (1818 ed.), no. LXXVIII, p. 421. The importance of this idea of equality and independence, rather than superiority, I have already referred to, but I again call attention to it because that was one of the chief foundations for the doctrine we are considering.

[32] Note Oliver Ellsworth in the Connecticut convention. Elliot, Debates, II, p. 196. Wilson, in the Pennsylvania convention, announced that the courts would have this power "as a consequence of their independence, and the particular powers of government being defined...." McMaster and Stone, op. cit., p. 354. Note also Marshall in the Virginia convention. Elliot, Debates, III, p. 553. See Luther Martin, "Genuine Information," in Ibid., 7, p. 380. It will be recalled that Hamilton, Ellsworth, Wilson, and Martin had been members of the Federal Convention.

[33] On this phase of the subject, as indeed of the whole, a scholarly and able treatment will be found in C. G. Haines, The American Doctrine of Judicial Supremacy, second ed. A briefer statement is in A. C. McLaughlin, The Courts, the Constitution and Parties.

[34] The following are examples of state cases in which state legislative acts were declared unconstitutional by state courts or in which the principle of judicial review was announced: Whittington v. Polk, I Harris and Johnson (Maryland) 236, 241 (1802); Lindsay and others v. the Commissioners, 2 Bay (South Carolina) 38, 61-62 (1796); State v. ——— , 1 Haywood (North Carolina) 28, 29, 40 (1794); Bowman and others v. Middleton, 1 Bay (South Carolina) 252, 254 (1792), a conspicuous case, the court declaring an act void because it was against "common right" and "magna charta"; Kamper v. Hawkins, 1 Virginia Cases 20 (1793); Stidger v. Rogers, 2 Kentucky 52 (1801); State v. Parkhurst, 4 Halsted (New Jersey) 427 (1802); Austin v. University of Pennsylvania, I Yeates (Pennsylvania) 260, 261 (1793); Respublica v. Duquet, 2 Yeates (Pennsylvania) 493 (1799); Turner v. Turner's Executrix, 4. Call (Virginia) 234 (1792); Cases of the Judges, 4 Call (Virginia) 135 (1788). See also, Austin Scott, "Holmes vs. Walton: the New Jersey Precedent," Am. Hist. Rev., IV., pp. 456-469. The case was decided in 1780. Commonwealth v. Caton et al., 4 Call (Virginia) 5 (1782) contains an announcement of the theory. Rutgers v. Waddington (1784), often referred to, is important but is not a clear precedent. See [...], Cases on Constitutional Law, part 1, pp. 63-72. The two most conspicuous and consequential cases are Trevett v. Weeden (Rhode Island, 1786) and Bayard and Wife v. Singleton (North Carolina, 1787). For the former case, see the argument of J. M. Varnum, in P. W. Chandler, American Criminal Trials, II, p. 281 ff., and in Brinton Coxe, Judicial Power and Unconstitutional Legislation, p. 236 ff. Reference should also be made to W. P. Trent, "The Case of Josiah Philips" (1778), Am. Hist. Rev., I, pp. 444-454, which is not a substantial precedent in all respects. The newspapers in July, 1787, when the Federal Convention was in session, contained a notice that the General Court of New Hampshire had repealed a certain act "and thereby justified the conduct of the Justices of the Inferior Court who have uniformly opposed it as unconstitutional and unjust." Quoted in Warren, The Making of the Constitution, p. 337 and note 1.

[35] Farrand, Records, II, pp. 73-80. See also Ibid., II, pp. 27-28. At a later date, Mercer of Maryland, who was present in the Convention for only a few days altogether, disapproved of the doctrine; and Dickinson said he was impressed by Mercer's statement and thought no such power ought to exist, but he was "at a loss what expedient to substitute." Ibid., II, pp. 298-299. See also debates of June 4 in Madison's Notes in Ibid., I, p. 97; and Pierce's notes in Ibid., I, p. 109. This subject is briefly discussed in Charles Warren, The Making of the Constitution, p. 331 ff., and also in his Congress, the Constitution, and the Supreme Court, ch. IV. See also, F. E. Melvin, "The Judicial Bulwark of the Constitution," Am. Pol. Sci. Rev., VIII, pp. 167-203. A longer discussion is in Charles Beard, The Supreme Court and the Constitution, where the author, in an attempt to answer the question whether the Court usurped power to declare laws void, presents not only the words used in the Convention but also other evidence. Among other things he cites the Judiciary Act of 1789, and points to the number of men in the Congress passing that act who had been members of the Convention. Reference is also made to the fact that certain delegates in the Convention had direct knowledge of the exercise of this power by the state judges.

[36] The courts carried the principle and the philosophy on which it was based to its logical conclusion.

[37] Certainly worthy of special attention is the fact that the ordinary judiciary in Britain entertains cases involving the rights of a litigant who claims that his rights have been violated by an official; there is and was no special court having jurisdiction of cases involving the authority of officials; questions are passed upon by the ordinary courts of law in distributing justice to individuals. In other words, the courts did recognize as law the principles of the constitution protecting civil liberty, though they did not go so far as to pronounce parliamentary acts void.

[38] See Journals of Congress (1823 ed.), IV, pp. 730, 737.

[39] G. J. McRee, Life and Correspondence of James Iredell, II, pp. 146, 172-173.

[40] Madison said in the Federal Convention: "In R. Island the Judges who refused to execute an unconstitutional law were displaced, and others substituted, by the Legislature who would be willing instruments of the wicked & arbitrary plans of their masters." Farrand, Records, II, p. 28. This case must have been well known.

[41] It may seem strange to the reader that one should call attention to the common law of a country in which the theory holds that Parliament possesses sovereign authority and that what it does must be law. It is unnecessary to cite again the dicta of English judges. The essential fact is this: common law judges were and are engaged in announcing principles not laid down in formal legislative enactments. They may refer to precedents, but they make no pretense, in enforcing the common law, of carrying out the mandates of a government, mandates laid down in legislation. The principles they announce are supposed to have existed before governments, to be founded in custom and in substantial justice; such was the source of the belief that the English constitution embodied certain fundamental principles of common right — the colonists said natural right and justice. Had courts been accustomed only to interpret and apply legislative acts, they would have found it more difficult, more at variance with their habits of thought and their method of approach, to declare a legislative act void and of no effect. Furthermore, even the elementary common law principles, announced by Locke as justifying opposition to officials, were made the basis, by his own reasoning, of a constitutional right for opposition to unwarranted governmental action.

[42] The foundation for this power as an historical fact rested on the general assumptions that underlie compact and natural rights thinking: government is founded on compact; rights existed before government; governments are established to protect rights. See E. S. Corwin, "The 'Higher Law' Background of American Constitutional Law," Harvard Law Review, XLII, pp. 149-185, 365-409; A. C. McLaughlin, The Foundations of American Constitutionalism, especially ch. V.

[43] "The United States would not come to an end if we lost our power to declare an Act of Congress void." Speech of Holmes, February 15, 1913, Speeches of Oliver Wendell Holmes, quoted in Charles Warren, The Supreme Court in United States History, I, p. 17 and note 2. The power certainly appears of no supreme significance before the Civil Rights Cases, 1883, though the important principle of that case had been announced in earlier cases. There has been a marked increase in the number of cases since 1865.

[44] "The idea of limiting government by law was in the air. A reëstablishment of the constitution in such form that it could not again be set aside by the rivalry of king and Parliament was probably the one thing that men of all parties desired." T. C. Pease, The Leveller Movement, p. 194. The author is speaking here of 1647, but in a measure the idea continued beyond that year.


CHAPTER XXIV

THE IMPEACHMENT OF PICKERING AND CHASE. THE BURR CONSPIRACY.

Even before the decision in Marbury v. Madison, Jefferson sent to the House (February 3, 1803) documents and a message calling attention to the conduct of John Pickering, a federal district judge in New Hampshire, and saying that "proceedings of redress" were within the powers of the House, "if they shall be of opinion that the case calls for them." The House speedily took action for impeaching Pickering before the Senate, but the trial was not begun until the next winter (January, 1804). He was charged with malfeasance and unlawful conduct in the handling of one particular case, and of being a man of loose morals and intemperate habits who had appeared upon the bench "in a state of total intoxication", and had "frequently, in a most profane and indecent manner, invoke[d] the name of the Supreme Being".

Difficult questions of constitutional interpretation arose. The Constitution provides for the removal of civil officers from office "on impeachment for and conviction of treason, bribery, or other high crimes and misdemeanors." Could an officer be convicted only for an indictable offense, or could he be convicted and removed from office because of gross misconduct? Judge Pickering, it appeared from a petition from his son, had for some time been insane; and Robert G. Harper, representing the petitioner, asked for an opportunity to show this fact. Evidence was admitted and it established the Judge's insanity and habitual drunkenness — the latter, we may charitably suppose (it was indeed so asserted in one deposition), the result of the former condition. Harper declared "that to constitute any crime a vicious will is necessary, and that a man insane cannot be put upon his trial...." The Senate, thus faced by an awkward problem, finally voted, not without protest from some of its members, that Pickering was "guilty, as charged". By using this form of verdict the Senate took refuge in a subterfuge, avoiding an explicit announcement of its right to remove an officer for acts not technically criminal. The final vote did not establish a precedent of much value.[1]

But a more worthy and valiant foeman to meet the steel of the excited Republicans was Justice Samuel Chase of the Supreme Court, a man of imperious and domineering temper whose zeal was not always moderated by discretion. His shameful conduct in the Fries, Callender, and Cooper cases, the latter two under the Sedition Act, had aroused justifiable resentment.[2] But those matters were of the past and might possibly have been ignored, had he not in 1803, in charging a grand jury at Baltimore, taken occasion to make a political harangue of an objectionable character. For political discourses from the bench there were some notable precedents, but in this instance Chase exceeded moderation. In a non-technical sense his misbehavior seems unquestionable.[3] Was his misconduct such as to justify removal from office? Did it constitute a misdemeanor, in the constitutional sense of the word?

In a series of eight articles Chase was charged with various offenses, among them conducting himself in the Fries trial "in a manner highly arbitrary, oppressive, and unjust"; unbecoming conduct and disregard of law in the Callender case; stooping "to the level of an informer" by refusing to discharge a grand jury at Newcastle, and indulging in other objectionable procedure, thereby "degrading his high judicial functions"; and addressing the grand jury at Baltimore in a "highly indecent" manner, "tending to prostitute the high judicial character with which he was invested...."[4] The trial opened January 2, 1805; various delays ensued, time being given for the preparation of Chase's answer; and so not until February 4, 1805, did the Senate proceed to the actual trial on the charges submitted.

The proceedings were solemn and dignified; the crisis was real. Perhaps in imitation of the famous trial of Warren Hastings, when, as Macaulay tells us, "The gray old walls were hung with scarlet", the Senate chamber was "fitted up in a style of appropriate elegance. Benches, covered with crimson, ... were assigned to the members of the Senate."[5] The managers appointed by the House were led by John Randolph, who not long before had begun his meteoric career in Congress. The accused was defended by an array of able lawyers — Robert G. Harper, Joseph Hopkinson, and Luther Martin, the "Federalist bulldog", for Martin was now an implacable Federalist. He was not only a brilliant speaker, quite capable if need be of vehement attack, but also learned and skillful in the presentation of his argument. His speech toward the end of the trial occupied the greater part of two days and was a powerful defense of his client's rights.

The critical question was what constituted an impeachable offense. The counsel for Chase insisted that the offense must be an indictable one, not merely reprehensible conduct of which the senators might disapprove. The controversy on this particular question may be summed up in the words of Martin: "... no judge or other officer can ... be removed from office but by impeachment, and for the violation of some law, which violation must be, not simply a crime or misdemeanor, but a high crime or misdemeanor." He called attention to the statement of Rodney, one of the House managers, that a judge holds his office during good behavior and that misbehavior and misdemeanor are synonymous. Martin shrewdly admitted the identity of meaning, declaring that only such misbehavior as constituted a misdemeanor, "a violation of some law punishable", could be considered misbehavior in the constitutional sense.[6] Had the House managers been as adroit, as well-prepared, and as consistent as their adversaries, the result might have been the same; but the reader of the arguments has an unwonted feeling of compassion for Randolph, whose copious vocabulary was an insufficient defense against the assaults of his opponents. The verdict for acquittal was pronounced March 1. Thirty-four members were in attendance; twenty-three votes were necessary for conviction. The highest number voting "guilty" on any one article — the eighth, which referred to the Baltimore harangue — was nineteen.

What might have ensued had Chase been convicted, no one can say. It is difficult to believe that Marshall would have been the next victim; he had not indulged in unbecoming behavior or treated attorneys in a manner which they at least thought contemptuous; he had not declared the repeal of the Judiciary Act of 1801 void; his greatest error or ground for partisan attack was his method of handling the Marbury case, not his exercising the right of the Court to declare an act unconstitutional.[7] Such right had been so often acknowledged that impeachment on that ground could have been maintained only by the most extreme and violent partisanship. In the high excitement of the time, however, a general assault upon the judiciary might have followed. John Quincy Adams wrote to his father: "The attack by impeachment upon the Judicial Department of our National Government began two years ago, and has been conducted with great address as well as with persevering violence.... The assault upon Judge Chase ... was unquestionably intended to pave the way for another prosecution, which would have swept the Supreme Judicial Bench clean at a stroke, ..." [8] Certainly the most important matter was not the legal basis for impeachment but the attack upon the judiciary, which, if successful, might have made the courts political footballs; the attack upon the judiciary must have made it plain that justices were engaged in a dangerous practice when they displayed violent partisan temper on the bench. As a result of this trial the basis of impeachment still remained indefinite. Neither the Senate nor the House committed itself to the doctrine laid down by Martin. There is, however, much space open to occupancy between the right to convict an officer for purely partisan purposes or for immediate particular interests, on the one hand, and the right to do so for only a penal offense, on the other. We have no reason to suppose that a Senate, thoroughly convinced of the serious misconduct of a judge on the bench or of any other official, will be deterred by technical interpretation of "high crimes and misdemeanors" from pronouncing sentence against him.[9]

Hardly was the Chase trial out of the way when a new excitement took its place. Newspapers and partisan orators were given another opportunity to display their talents. Few events in our history have been so theatrical, so well-supplied with all the features of melodrama, as the conspiracy of Aaron Burr and his trial for treason. It is a long, intricate, and perplexing story; and before.it ends we find the names of many men, playing one role or another, who are famous in American history: Aaron Burr, the central figure, a debonair, conscienceless adventurer; James Wilkinson, who had for years been in the pay of Spain, ready for any safe intrigue with money in it; poor Blennerhasset, who fell a prey to Burr's gracious cajoleries only to lose his fortune and find his romantic hero "a vulgar swindler"; Samuel Swartwout, afterwards appointed by President Jackson to be collector at the port of New York where he stole more than a million dollars; John Randolph of Roanoke, acting as the foreman of the grand jury; Andrew Jackson, who, incapable of treason, had been approached by Burr for his own purposes; Jonathan Dayton, a framer of the federal Constitution and one of Burr's active confederates; William Wirt, representing the government at the trial, an orator of the first rank; Luther Martin, one of Burr's able attorneys through many days of strenuous and violent debate; Thomas Jefferson, who had at first taken lightly the story of intrigue and treason but finally used the authority of his office for conviction with an amazing intensity of purpose, as if the credit of his administration and his party were hanging in the balance; John Marshall, imperturbable, realizing that more was at stake than the conviction of a worthless prisoner, prepared laboriously to expound the law and defend the Constitution. And so, as the facts developed, as the trial came on and wound its way along, the court and the Chief Justice were once more in the limelight, once more the objects of denunciation.

What Burr was trying to do, or thought he was trying to do, is still a matter of conjecture. Recent investigators have come to the conclusion that he was not intent upon separating the west from the union, but was planning to make use of strained relations between Spain and the United States to win glory and wealth for himself, basing his hopes on the traditional dislike for the Spaniards especially among the southwesterners. But to reach this conclusion Burr's own words must be cast aside as a mere attempt to obtain money from foreign governments by false pretenses; in fact, there was so much secrecy and so much lying that to reach a positive opinion is difficult. [10] Just what Burr had in mind we do not need to determine. Whatever it was, the conspiracy added fuel to sectional and party controversies already sufficiently aglow. The government was in the midst of severest perplexities in its relations with foreign nations, for Great Britain was impressing our seamen, and at the beginning of this exciting summer news came that a British man-of-war had poured a broadside into an American frigate. Our claim to West Florida raised delicate questions of our relations with Spain. The New England leaders were seriously discontented and openly grumbling. Burr's plans, even if they were intended to be but a joyful attack upon the despised Spaniard, imposed a new and maddening burden upon a sorely-perplexed administration. But it was not the administration alone that was in danger; the stability and safety of the nation were imperiled by foreign aggression and domestic discontent.

In the course of the multiple hearings, disputes, arguments, and opinions arising from Burr's escapade, a series of significant constitutional questions arose and important decisions were rendered. Two young men, Bollman and Swartwout,[11] who had been brought under the spell of Burr and used for his own ends, having been committed by a circuit court and charged with treason, applied to the Supreme Court for a writ of habeas corpus. The Constitution defines treason as levying war against the United States or adhering to their enemies and giving them aid and comfort. The Chief Justice, delivering the opinion of the Court, found no evidence sufficient to justify the commitment of the prisoners on the charge of treason. In reaching this conclusion he said, "To conspire to levy war, and actually to levy war, are distinct offenses. The first must be brought into open action by the assemblage of men for a purpose treasonable in itself, or the fact of levying war cannot have been committed.... It is not the intention of the court to say that no individual can be guilty of this crime who has not appeared in arms against his country. On the contrary, if war be actually levied, that is, if a body of men be actually assembled for the purpose of effecting by force a treasonable purpose, all those who perform any part, however minute, or however remote from the scene of action, and who are actually leagued in the general conspiracy, are to be considered as traitors."

This statement appeared to give considerable basis for finding Burr guilty, when his turn came, though of course the question remained whether or not the famous assemblage at Blennerhassett's Island was an assemblage for a treasonable purpose. On the other hand, a letter from Burr to Wilkinson, which was presented in the Bollman case to show that a treasonable enterprise was on foot, was declared by Marshall to contain not one syllable having "a natural reference to an enterprise against any territory of the United States." [12] This belief of course cast doubt upon the treasonable character of the whole undertaking.

The next step was taken against Burr himself. When the question of his indictment was under consideration by the grand jury at Richmond, Marshall took the extraordinary step of issuing a writ of subpoena duces tecum to Jefferson. It was of course disregarded and only added to the fury of Jefferson's dislike of the Chief Justice and to his own wrathful determination to bring Burr to the gallows. The struggle appeared in reality not so much a contest over the question of Burr's guilt as a passage-at-arms between the President and the man holding the highest judicial office. As to whether Marshall was technically justified in issuing the writ, there still appears to be a difference of opinion.[13] But it certainly added fuel to the flame of partisan controversy; and the heat engendered remained long after Burr himself had dwindled into appropriate obscurity, leaving behind him his grandiose conspiracy for the tender ministrations of the historian.

In the summer of 1807, Burr was finally indicted for treason and, in a separate indictment, for misdemeanor. The list of attorneys for the government and for the defense included men of ability and distinction. William Wirt fought valiantly for conviction. Luther Martin, defending Burr, had the time of his life, for nothing was dearer to his heart than a controversy with Jefferson; "as great a scoundrel as Tom Jefferson" is said to have been his customary method of denouncing a particularly obnoxious person.

The Constitution provides that no person shall be convicted of treason "unless on the testimony of two witnesses to the same overt act, or on confession in open court." The crisis of the trial arose in connection with the question of the admissibility of certain evidence offered by the prosecution. The attorneys for the defense objected on the ground that Burr was not present with the forces at Blennerhassett's Island, that he was at a great distance and in a different state, and that the testimony offered to connect him with those who committed the overt act was totally irrelevant. Marshall's ruling against the admission of the kind of evidence which proposed to show Burr's connection with the assemblage was decisive. The verdict of the jury was that Burr was "not proved to be guilty under this indictment by any evidence submitted to us" — a form of verdict which perhaps tells its own story. The court decided that the verdict should remain as found by the jury; and that an entry should be made on the record of "not guilty".[14]

Marshall's opinion was long and elaborate; the questions involved were difficult and intricate. However learned and acute his argument may be, it appears to be wanting in the clarity, simplicity, and convincing force so apparent in his later decisions. If this be so, the want may be chargeable to the intricacy of the problem, or, perhaps, to the fact that the Chief Justice had not as yet reached the pinnacle of his powers; but his position was a delicate one; political and personal passions were involved; any precise and sweeping opinion not laboriously exposing his position, any opinion appearing to be dogmatic and peremptory, would have been fraught with danger to his authority and the dignity of the court.

He referred to the opinion in the Bollman and Swartwout case and to the words already quoted: "if war be actually levied, ... all those who perform any part however minute or however remote from the scene of action and who are actually leagued in the general conspiracy are to be considered as traitors." But he declared: "This opinion does not touch the case of a person who advises or procures an assemblage and does nothing further. The advising certainly, and perhaps the procuring is more in the nature of a conspiracy to levey [sic] war than of the actual levying of war." This was a crucial position because it made a distinction between actual presence with an armed force, or actual participation in the levying of war, on the one hand, and advice and like services, on the other.

The pivotal statements in the opinion cannot easily be selected, but the following pronouncement is especially important: "If in one case the presence of the individual make the guilt of the assemblage his guilt, and in the other case the procurement by the individual make the guilt of the assemblage his guilt, then presence and procurement are equally component parts of the overt act, and equally require two witnesses.... The presence of the party, where presence is necessary, being a part of the overt act must be positively proved by two witnesses. No presumptive evidence, no facts from which presence may be conjectured or inferred will satisfy the constitution and the law. If procurement take the place of presence and become part of the overt act, then no presumptive evidence, no facts from which the procurement may be conjectured or inferred, can satisfy the constitution and the law." "... the fact itself [the procurement] must be proved by two witnesses, and must have been committed within the district." [15] This means, in simple phraseology, that the fact of Burr's responsibility for the assembling of the armed forces had to be established by two witnesses who could testify to the same overt act. The prosecution despaired of securing the necessary testimony.

This mode of reasoning has been strongly attacked,[16] and our own judgment is uncalled for. Though the Chief Justice made abundant references to English authorities, the opinion leaves the impression of a determination not to allow English history or law to dull his belief in the liberal provisions of a free Constitution. Certainly he gave the fullest effect to the words which were intended to guard against the establishment or punishment of constructive treason. Actual participation in a treasonable enterprise had to be established by competent testimony of the nature provided by the Constitution. Doubtless the decision makes it difficult to establish the guilt of one who may be the real leader in a treasonable movement; for, while an actual assembling in arms and the presence of a single person with the armed forces may be easily susceptible of proof, it is difficult to establish the guilt of one who carries on his machinations in secret, where secrecy is the sine qua non of success. To such objections Marshall made answer: "If it be said that the advising or procurement of treason is a secret transaction, which can scarcely ever be proved in the manner required by this opinion, the answer which will readily suggest itself is, that the difficulty of proving a fact will not justify conviction without proof. Certainly it will not justify conviction without a direct and positive witness in a case where the constitution requires two. The more correct inference from this circumstance would seem to be, that the advising of the fact is not within the constitutional definition of the crime. To advise or procure a treason is in the nature of conspiring or plotting treason, which is not treason in itself." [17]

Withal we cannot lament the determination of the Chief Justice so to construe the Constitution that treason is not to be inferred from any amount of conjecture or surmise. Furthermore, Burr's intentions were too uncertain to furnish any assurance that a verdict of guilty would have been just, had all the facts been exposed. Marshall's reflection on Wilkinson's letter, when he was passing on the matter of Bollman and Swartwout, leads us to think he had grave doubts about the actual treasonable nature of the whole enterprise. And we may well imagine that he was glad, when interpreting the Constitution as a new and positive safeguard of freedom, to find a method whereby the critical question of Burr's essential intent and purpose was avoided and was not passed on by the jury with insufficient if not misleading evidence at its command.

Further proceedings against the alleged culprit broke down and came to naught. When Burr was released, the air reeked with maledictions. Jefferson was piqued; he was indignant. His message to Congress, though certain especially truculent sentences were stricken out of the first draft, displayed his discontent. Why should he, the popular leader, the head of a victorious party, be once again balked by the Chief Justice, a crafty manipulator of the law? Once more the strange and fascinating contradiction: Jefferson, the foe of tyranny, the apostle of freedom and individual rights, was angry because the Chief Justice, an advocate of strong and effective government, had so interpreted the Constitution as to protect a prisoner alleged to be guilty of treason against the nation. Marshall's decision partook of the character of Jeffersonian liberalism and modernism; and Jefferson lamented.


[1] The senators, said Senator Dayton, "were simply to be allowed to vote, whether Judge Pickering was guilty as charged — that is, guilty of the facts charged in each article — aye or no.... There were members who were disposed to give sentence of removal ... who could not, however, conscientiously vote that they [the facts alleged and proved] amounted to high crimes and misdemeanors, especially when committed by a man proved at the very time to be insane, and to have been so ever since...." Annals of Congress, 8 Cong., 1 sess., col. 365. Senator White declared that such procedure would give warrant for removing anyone from office; every officer of government would be "at the mercy of a majority of Congress...." Ibid. The vote of "guilty, as charged" stood nineteen yeas, seven nays. Ibid., col. 367. Proceedings are found in Ibid., cols. 315-367. The Pickering impeachment was the second to come before the Senate. William Blount of Tennessee, a Senator, was not convicted, his defense being that a senator was not a civil officer of the United States; furthermore, he had already been expelled from the Senate.

[2] "In short, the assaults upon the National Judiciary were made possible chiefly by the conduct of the National judges themselves." A. J. Beveridge, The Life of John Marshall, III, p. 30.

[3] To the grand jury Chase commented upon the repeal of the Judiciary Act: "The independence of the national Judiciary is already shaken to its foundation, and the virtue of the people alone can restore it." Universal suffrage, he said, will "rapidly destroy all protection to property, and all security to personal liberty; and our republican constitution will sink into a mobocracy, the worst of all possible governments." "... the modern doctrines by our late reformers, that all men in a state of society are entitled to enjoy equal liberty and equal rights, have brought this mighty mischief upon us...." The address is given in full in Annals of Congress, 8 Cong., 2 sess., cols. 673-676.

[4] Ibid., cols. 85-88.

[5] Ibid., col. 100. "... a new gallery was raised, and fitted up with peculiar elegance, intended primarily for the exclusive accommodation of ladies. But this feature of the arrangement, made by the Vice President, was at an early period of the trial abandoned, it having been found impracticable to separate the sexes!"

[6] Ibid., col. 436. A detailed and valuable account of the impeachments is given in Henry Adams, History of the United States, II, chs. VII, X.

[7] See Charles Warren, The Supreme Court in United States History, I, pp. 243-244. Beveridge says, "... Marshall had actually proposed to his associates upon the Supreme Bench that they refuse to sit as circuit judges, and 'risk the consequences.' " Beveridge, op. cit., III, p. 122.

[8] March 8, 1805. Quoted in Charles Warren, The Supreme Court in United States History, I, pp. 294-295.

[9] "By the liberal interpretation of the term 'high misdemeanor,' which the Senate has given it, there is now no difficulty in securing the removal of a judge for any reason that shows him unfit...." Ex-President Taft, speaking to the American Bar Association in 1913. American Bar Association Report for 1913, XXXVIII, p. 432.

[10] Henry Adams, History of the United States, II, ch. VIII; III, chs. X-XIV, XIX, gives a full narrative. W. F. McCaleb, The Aaron Burr Conspiracy, attempts, perhaps successfully, to establish the fact that Burr did not plan to dismember the union. Beveridge, op. cit., III, chs. VI-IX, agrees with McCaleb and develops his thesis. Adams, writing before McCaleb's studies, relies in part for his condemnation of Burr on statements made by Burr which were not improbably pure fiction.

[11] Ex parte Bollman and ex parte Swartwout, 4 Cranch 75 (1807).

[12] 4 Cranch 75, 132-133. Documents bearing on the question can be found in 4 Cranch, appendixes A and B.

[13] "The course of recent criticism has usually been to support Marshall in this matter of the subpoena. It is confessed that the court had no authority to enforce this command against the President, and it must be admitted that the issuing of futile orders is not conducive to the dignity of the court. And again, it seems a curious conception of the judicial function to call the head of the nation from his official duties to give testimony. The incident seems best explained as an honest mistake of judgment...." The Constitutional Decisions of John Marshall (J. P. Cotton, Jr., ed.), I, p. 99.

[14] David Robertson, Reports of the Trials of Colonel Aaron Burr, II, pp. 446-447.

[15] Ibid., II, pp. 436-437. Italics mine. "The present indictment charges the prisoner with levying war against the United States, and alleges an overt act of levying war. That overt act must be proved, according to the mandates of the constitution and of the act of congress, by two witnesses. It is not proved by a single witness. The presence of the accused has been stated to be an essential component part of the overt act in this indictment, unless the common law principle respecting accessories should render it unnecessary; and there is not only no witness who has proved his actual or legal presence, but the fact of his absence is not controverted. The counsel for the prosecution offer to give in evidence subsequent transactions at a different place and in a different state, in order to prove — what? the overt act laid in the indictment? that the prisoner was one of those who assembled at Blannerhassett's [sic] island? No: that is not alleged. It is well known that such testimony is not competent to establish such a fact." Ibid., II, p. 443.

[16] See E. S. Corwin, John Marshall and the Constitution, ch. IV.

[17] Robertson, op. cit., II, p. 437.


CHAPTER XXV

FEDERAL AND STATE DIFFERENCES.
FEDERALIST OPPOSITION. THE EMBARGO. THE OLMSTEAD CASE.

Why did the Federalist leaders object to the terms of the Louisiana treaty? Partly because they would have objected to the annexation of paradise, if the arrangements had been made by Thomas Jefferson; partly because they were growing bitter at the sight of Virginia's domination; partly because they were afraid of the south and were perhaps more afraid of the west where new states were growing up and would ere long rob New England of her powers and influence. To some of the New Englanders, and doubtless to others as well, the specter of democracy appeared menacing and frightful. Government was intended for the wise, the good, and the rich, and the future held nothing but desolation for a country ruled by Jacobins and an ignorant populace.[1]

Then began deliberate but secret whisperings of secession.[2] We shall probably never know just how definite the conspiracy was and just who were implicated. The irascible Pickering, "honest Tim", was foremost and the most confident. "I do not know one reflecting Nov-Anglian", he wrote to Rufus King in 1804, "who is not anxious for the GREAT EVENT at which I have glanced." [3] The difficulty in appraising this declaration as evidence arises from a suspicion of Pickering's judgment, about which no words of praise would be justified. Furthermore, no one would be capable of reflection except a person viewing the world in general and the vices of democracy as Pickering did. George Cabot kept his head, though he was also depressed by the awful spectacle of democracy: "We are democratic altogether", he told Pickering, "and I hold democracy, in its natural operation, to be the government of the worst." [4] But nothing, he believed, could be done until the people felt something real and serious, such as a war with Great Britain, "manifestly provoked by our rulers." [5] The people were not in a state of distress; they were not greatly disturbed or anxious; and yet some of these wise, good, and rich leaders actually seemed to think New England could be led by her fears and forebodings to dissolve the union, although the strongest ground for taking the step must be the democratic theories of the Virginians. It was much like saying to the people, "The Virginians, under the tutelage of Jefferson, trust the people; we do not; therefore all of you should coöperate with us in destroying the union." The truth appears to be that the conspiracy, despite Pickering's words, was confined to a few; but outside of this rather narrow circle a considerable number were restless and grumbling. When serious hardship arose, many were ready to join in denunciation of the government (1808-1814); then the wise and the good had more material to work with.

In 1804, the plan of the conspiracy leaders included the enticing of New York into the camp of the malcontents; they hoped to do this by bringing Aaron Burr into the fold. In its most positive form this scheme appears to have consisted of making Burr the leader in a secession movement; New York and the New England states were to form a new confederacy. There is really not much evidence of the sober intent to carry this plan to its final consummation. Perhaps the purpose — at all events as a beginning — was to consolidate the northern interests for effective resistance to the Jeffersonian party. The plan, whatever it was, failed. Burr was defeated in the campaign for the governorship of New York, though supported by no small number of Federalists; and when he shot Alexander Hamilton his career and even his capacity for mischief were badly shattered. That the conspirators would have been willing to separate the northern states is fairly certain; but it appears likely that success in building up a northern party by the capture of New York and perhaps other middle states would have satisfied or dulled their ambition for secession until an extreme emergency arose.[6]

There is something peculiarly unattractive in the conduct of these conspiring New Englanders; they were victims of bigoted partisanship. Some of them were attached to the cause of England without sufficient respect for America's own dignity and rights. They were planting their feet to resist movements that were to sweep all obstacles aside from the pathway of democracy, expansion, union, and nationalism. It is not our business, as mere historians, to pronounce democracy, expansion, and nationalism essentially wise and noble; but those opposing these movements were placing themselves outside the currents of the nineteenth century. We must remind ourselves, however, that patriotism was necessarily of slow growth; democratic ideals and the early and emphatic rejection of the doctrines of the wise, the good, and the rich are altogether too much to expect from any set or group who were themselves comfortably established in social position.

At a later day (1828-1829) the career of the Federalist party in the early years of the century was strongly, perhaps one should say stridently, described by John Quincy Adams. The description was the result of a dispute with certain gentlemen of New England who resented his charging Federalist leaders with entertaining plans for dissolving the union:

"This coalition of Hamiltonian Federalism with the Yankee spirit had produced as incongruous and absurd a system of politics as ever was exhibited in the vagaries of the human mind. It was compounded of the following prejudices:

"1. An utter detestation of the French Revolution and of France, and a corresponding excess of attachment to Great Britain, as the only barrier against the universal, dreaded empire of France.

"2. A strong aversion to republics and republican government, with a profound impression that our experiment of a confederated republic had failed for want of virtue in the people.

"3. A deep jealousy of the Southern and Western States, and a strong disgust at the effect of the slave representation in the Constitution of the United States.

"4. A belief that Mr. Jefferson and Mr. Madison were servilely devoted to France, and under French influence." [7]

The relations of America with the warring powers of Europe, especially after 1805, were replete with difficulty. There is no need of our trying to estimate the comparative weight of insults and injuries which the United States suffered on the one side from Britain's ruthless disregard of neutral rights and, on the other, from the sly and insidious attacks of Napoleon. But after the Chesapeake affair (1807) conditions were almost intolerable, though Jefferson continued to bear them — not with light heart and a sunny smile, but to bear them none the less. It is easy enough for us to criticize and to lament the weakness of the administration and the frailty of a divided country; but it is not so easy to say what ought to have been done to preserve the semblance of national self-respect and to preserve it in the presence of virulent partisanship and sectional bitterness. Of course, the elementary difficulty was the absence of thoroughgoing national consciousness, the impelling sense of common interest. Before the trouble was over, the continuity of the union was seriously threatened. And still, as we shall see, when after years of tribulation war actually came, the union did hold together; there was still enough nationalism and patriotism to assure its survival.

In the latter part of 1807 Jefferson saw that something must be done. He decided upon an embargo. When, as a result of French decrees and Britain's orders in council, American ships were in danger of either being quietly confiscated or blown out of the water, was it not wise to hold them safe in their own harbors and allow the shipmasters to fret their souls away in idleness and discontent? [8] He therefore entered upon a terrapin policy; America should withdraw within her shell and look forth from this calm security upon the tribulations of the world.[9] The rapidity with which Congress responded illustrates the authority which Jefferson still wielded, an authority to be rather severely crippled after the embargo had been tried and found wanting. The Senate agreed to the proposal after a few hours of debate. John Quincy Adams exclaimed, "The President has recommended the measure on his high responsibility. I would not consider, I would not deliberate; I would act!" [10] The House took time for consideration but acted promptly. The final vote in the Senate was twenty-two to six; in the House, eighty-two to forty-four.

The act was passed and was signed by the President on December 22, 1807. Early in the next year two supplementary acts were passed to make the measure more sweeping and effective. In the succeeding months preparations were made for armed defense of the country. Money was appropriated for Jefferson's toy gunboats and for fortifications, and provisions were made for building up a small army and for equipping the militia. But it can hardly be said that the days of the embargo were energetically used to prepare for inevitable war. The President hoped that under the peaceful policy of restriction the warring nations of Europe would be brought to their senses, learn to leave American commerce alone, permit the merchantmen to traverse the ocean with their cargoes unmolested, and allow them to reap the fruits which the old world's war provided for an energetic neutral.

All through the weary months of 1808 opposition to the embargo increased; there was occasional violence; the heart of New England gradually hardened. The shipmasters and traders were not prepared placidly to endure the sight of their vessels tied up at the wharves or anchored in the harbors; and the wrath of the men of the northern region, when the embargo interfered with trade across the Canadian border, was not less ominous. The opposition became each day more serious. Jefferson's efforts at enforcement led him on to a position which in some respects resembled that of a dictator in war rather than that of a peaceful leader whose main desire was to allow and secure the placid development of his country. The following is an illustration: "Yours of July 27th", Jefferson wrote to General Dearborn, "is received. It confirms the accounts we received from others that the infractions of the embargo in Maine & Massachusetts are open.... The tories of Boston openly threaten insurrection if their importation of flour is stopped. The next post will stop it. I fear your Governor [Sullivan, himself a Jeffersonian Republican!] is not up to the tone of these parricides, and I hope, on the first symptom of an open opposition to the laws by force, you will fly to the scene and aid in suppressing any commotion." [11]

But perhaps the most significant indication of how nearly the embargo resembled war itself, with many of war's privations and dislocations, or how its enforcement necessitated such orders as might have been endured with courage had a foreign enemy blockaded the coast, is shown by a statement of the harried President when it must have seemed to him that peaceful coercion of the foreigner was proving a failure and was repelling even his own former followers in New England. Writing of conditions at Buckstown, he said to Gallatin: "This is the first time the character of the place had been brought under consideration as an objection. Yet a general disobedience to the laws in any place must have weight towards refusing to give them any facilities to evade. In such a case we may fairly require positive proof that the individual of a town tainted with a general spirit of disobedience, has never said or done anything himself to countenance that spirit." [12]

Gallatin had already written to the President his opinion that if the embargo was to be persisted in, two determinations must be adopted: one, no vessel should be allowed to move without the special permission of the Executive; and, two, the collectors should be given "the general power of seizing property anywhere, and taking the rudders or otherwise effectually preventing the departure of any vessel in harbor, though ostensibly intended to remain there; and that without being liable to personal suits." In other words, customary and essential safeguards for personal property and liberty and the right of individual redress in courts of law must be abandoned.

Such conditions could not continue. The presidential election resulted in the choice of Madison as Jefferson's successor. Jefferson's last annual message (November, 1808) indicates how great a change had, in at least one respect, come over his dream. He actually pointed with a measure of pride and gratification to the fact that the situation "into which we have thus been forced has impelled us to apply a portion of our industry and capital to internal manufactures and improvements." The embargo, as if it were a prohibitory tariff, had in fact driven the Americans, and especially the New Englanders, to enter upon manufacturing; and Jefferson, whose ideal had been a country flourishing in simple productive labor of the farm and plantation, free from the debasing influence of the factory and the scarcely less degrading effect of the countingroom, now looked with satisfaction upon the consoling prospect of an industrial and self-sustaining nation. But once more, flinging stones at Jefferson's inconsistencies serves no purpose. His readiness, however, to see the possibility of a self-sufficient country, with "home manufactures" and internal improvements, is noteworthy because it foreshadowed the efforts and the controversies which arose after the war of 1812 and became the center of heated controversy and constitutional dispute.

Jefferson knew the embargo to be a failure, thanks to the implacable hostility of New England — a hostility which appears not to have been modified by the fact that restriction was laying foundations for new industries. The winter months (1808-1809) were filled with debate and with attack and counterattack; but after more than a year of anxiety and hatred the embargo policy was doomed. In the last trying months Jefferson made little effort to exercise leadership; Madison had been elected to take office in March and Gallatin's skillful hand was still at the helm of the treasury. Josiah Quincy, as if to exemplify the sweetness of Federalist temper, spoke of the retiring President still in office as "a dish of skim-milk curdling at the head of our nation". Some portions of the embargo were temporarily retained, but it was in effect succeeded by nonintercourse with Britain and France. More trouble lay ahead of a country distracted by sectional and factious opposition. War appeared scarcely less perilous than peace.

The constitutional questions which arose during the embargo days now demand brief attention. One objection to the measure was the absence of a time limit. Could prohibition of commercial intercourse be enacted without any provision for termination? The dispute does not merit any agonizing examination. Congress which passed the measure could repeal it. The failure to fix the life of an act does not make it unconstitutional. Of more significance was the denial of congressional power to prohibit commerce under pretense of regulating it. The conclusion laid down by Judge John Davis of the federal district court of Massachusetts appears irrefutable: "Power to 'regulate,' it is said, cannot be understood to give a power to annihilate.... It will be admitted that partial prohibitions are authorized by the expression; and how shall the degree or extent of the prohibition be adjusted but by the discretion of the national government, to whom the subject appears to be committed.... Further, the power to regulate commerce is not to be confined to the adoption of measures exclusively beneficial to commerce itself, or tending to its advancement; but in our national system, as in all modern sovereignties, it is also to be considered as an instrument for other purposes of general policy and interest." [13] Nothing can better illustrate the contradictions of politics than the contention of Federalists that a court should take a stand contrary to their own traditions.

The opposition to the embargo, wherever and however that opposition displayed itself, is important in constitutional history because it brings to our attention the frailty of the union and the danger lest the constitutional system be overthrown. But we are now called upon to consider the nature of the arguments and the declarations put forth in Congress and by state officials; we must endeavor to discover what theory of the union and of the constitutional order was commonly presented by those who attacked the constitutionality of the measure. Before entering upon a brief presentation of a few important documents in this embargo controversy, it may be well to put forth this general thesis: during the years from the adoption of the Constitution, and notably from the Virginia and Kentucky resolutions, until the close of the war of 1812, and indeed for some time later, the central constitutional controversy was not concerning state sovereignty but states' rights; and it was particularly concerned with the question whether the states as individual bodies had the right to judge of their own authority and its extent, or, on the other hand, whether the central government was the judge of its' own powers and the states must quietly accept the conclusions of that government. We can, in the writer's opinion, scarcely overemphasize the weight of the fact that the dissatisfied legislatures, under Federalist control, insisted upon the right of the states to judge; their position is associated closely with the philosophy of the Revolution, with the idea of divided sovereignty, and with the principle of legally limited government. The statement of Jefferson in the Kentucky resolutions was bearing fruit — now, in practice, not quite to his own taste — that the parties to the compact were the ultimate judges of the extent of delegated authority. The Constitution did not in so many words declare where the right to judge rested; controversy and dispute were inevitable; because of the self-consciousness of the individual states, the adherents of the old compact philosophy, as well as the more thoughtless and acrimonious partisans, were intent upon the right of the parties to the compact to decide.

It appears a wrong interpretation, though it is the common one, to find in these protests and denunciations the full embodiment of the doctrine of state sovereignty. Only a careful examination of the doctrines, elaborately outlined by John Taylor and Calhoun at a later day, can bring to light the difference between them and the prevailing political thinking of the earlier decades under the Constitution. Certainly such an examination will disclose how far were the men of the first four decades from fully envisaging the doctrines of state sovereignty as later exposed to view. If there is this essential difference, then we are led astray or are wandering from the path, if we find in every announcement of opposition to national authority a threat of secession as the natural consequence of sovereignty, which remained without modification in the separate states. Any resolution by a state legislature impugning national authority is now looked upon as a piece of presumption; and if we so look upon it, we lose sight of the signal importance of the discussions in our history bearing on the question of the right to judge.[14]

If, when a legislative resolution calls a state a "sovereign" state, we must conclude that it means to assert the state's full and unqualified authority in every particular, then we must believe that in some instances the states did look upon the union as a league and not as a body politic. Much depends upon what was meant by "sovereignty"; and anyone who is to-day at all conversant with the word and its history will not be dogmatic and impose a definition upon the consciousness of state legislators of a century and more ago. We must bear in mind the easy fluency with which at the present time a state is spoken of as "sovereign"; and we must also remember that the doctrine of divided sovereignty was, and probably is, orthodox in the legal creed of constitutionalists.[15] One of the results of loose speech, the prerogative of practical politics, is a confusion of the terms state sovereignty and states' rights.

There can be no question that there were threats of rebellion as well as whisperings about the desirability of breaking away from the contaminating influence of Virginia and Jeffersonism. But the main thought seems to have been that if rebellion should come, it would be a rebellion justified by the national government's violation of legal authority; it would be based in part on the right of individuals to life, liberty, and the pursuit of happiness, and in part on the right of the states to protect their liberty which in certain essentials had not been surrendered by the establishment of a national government with limited powers. We must recognize a clear distinction between opposition to illegal acts and secession from the union on the ground that secession is based upon unalloyed sovereignty. The impressive fact is the absence of a distinct and frank assertion of the legal right to break the union at any time and without demonstration of illegality by the central government. Still it may be that at this time there was coming into the mind of the discontented New Englanders the conception of the Constitution as a treaty, rather than as a compact analogous to the social compact. But during the embargo period the writer has found only slight evidence of that fact.

It is impossible to present here in any detail illustrations of the sort of assertions which were made by the querulous New Englanders during the months that sorely tried their patience. Demonstration by ample quotation, if demonstration be possible, would require not only plenteous quotations, but studious examination of words and phrases within their context. We must be content with only a few brief examples. In Congress, Josiah Quincy, who cannot be looked upon as a timid soul shrinking from announcement of convictions, admitted that the embargo laws were the laws of the land, but he asked, "... who shall deny to a representative of the people the right, in their own favorite tribunal, of bringing your laws to the test of the principles of the Constitution?" Asking what should be the remedy for unconstitutional legislation, "so oppressive upon the mass of the people that it is impossible to wait upon the slow processes of the Judiciary", he answered by saying that the people and the state legislatures were in duty bound not to rebel or to break the union, "but to take the Constitution, that great charter of their liberties, into their consideration, and to strengthen and support its principles by vindicating them from violation."

In January, 1809, in reference to a speech from the Governor of Massachusetts in which he condemned lawless disregard of the embargo, the state senate declared the union "is a confederation of equal and independent states with limited powers...." "We beg leave to observe," the response also said, "that those rights, which the people have not chosen to part with, should be exercised by them with delicacy — only in times of great danger — not with 'distraction and confusion' — not to oppose the laws, but to prevent acts being respected as laws, which are unwarranted by the commission given to their rulers." [16] The house gave similar opinions: "We are unwilling to believe that any division of sentiment can exist among the New England States or their inhabitants as to the obvious infringement of rights secured to them by the Constitution of the United States;.and still more so that any man can be weak or wicked enough to construe a disposition to support that Constitution and preserve the union by a temperate and firm opposition to acts which are repugnant to the first principles and purposes of both, into a wish to recede from the other states.... If ever such suspicions existed they can have arisen only in the minds of those who must be sensible that they had adopted and were persisting in, measures which had driven the people to desperation, by infringing rights which the citizens of Massachusetts conceive to be unalienable, and which they fondly hoped had been inviolably secured to them by the federal compact.... Nothing but madness or imbecility could put at hazard the existence of a 'balanced government, capable of operating and providing for the public good,' unless the administration of that Government, by its arbitrary impositions had endangered or destroyed the very objects for the protection of whch [sic] it had been instituted," [17]

A report and resolutions drawn up by the Massachusetts legislature the next month are somewhat more extreme. The most advanced and threatening assertions are as follows — though only a reading of the whole document can bring out its full meaning: "While the laws continue to have their free course, the judicial courts are competent to decide this question, and to them every citizen, when aggrieved, ought to apply for redress. It would be derogatory to the honour of the commonwealth to presume that it is unable to protect its subjects against all violations of their rights, by peaceable and legal remedies. While this state maintains its sovereignty and independence, all the citizens can find protection against outrage and injustice in the strong arm of the state government." The resolutions declare the embargo and supplementary acts unjust and unconstitutional and not legally binding on the citizens of the state, and announce the willingness of the legislature to coöperate with any of the other states "in all legal and constitutional measures" for procuring such amendments to the Constitution as would protect commerce and afford permanent security.[18] The resolutions conclude with a reference to the necessity of rescuing "our common country" from impending ruin and of preserving inviolate the union of the states.[19]

No attempt has been made in this chapter to do more than sketch the outlines of a dangerous situation — dangerous to the continuity of the union and to the effective authority of the government. So much depends on the connotation of words that opportunities are offered for differences of opinion concerning the extent to which the theory of unalloyed state sovereignty was held or proclaimed. But one thing is probably evident: the center of the controversy was the question of the state's right to preserve its reserved authority and to resist intrusions upon its field of sovereign power.[20] In the writer's opinion, the fully-equipped doctrine of state sovereignty or the belief in it was, to say the least, not prominent; and we in some respects lose sight of the nature of the controversies during the first forty years of our history under the Constitution unless we appreciate, as already said, the continuity and the persistence of this question as to who had the right to pass final judgment on the extent of a governmental power.

During the years in which there was much dangerous discontent among the New England Federalists, an old controversy broke out anew in Pennsylvania. The dispute began during the Revolution when the committee of appeals of the old Congress, reviewing the decision of a Pennsylvania court, decided that prize money arising from the sale of the sloop Active and her cargo belonged to Gideon Olmstead and other claimants. Pennsylvania refused to abide by the decision. A portion of the proceeds of the sale, in the form of loan-office certificates, subsequently passed into the hands of David Rittenhouse,[21] the state Treasurer, who, however, did not formally commit them to the treasury, and they later passed into the possession of the executrixes of the Rittenhouse estate. In 1803, the federal district court gave personal judgment against the executrixes; but the state was still obdurate; the legislature ordered the Governor to protect the "rights of the state" and the "persons and properties" of the executrixes. The executrixes finally turned the disputed sum into the state, which promised them protection from liability by giving "a sufficient instrument of indemnification...." Olmstead was as persistent as a Connecticut Yankee is entitled to be, and he and his fellows secured in 1809 a mandamus from the federal Supreme Court directing Judge Peters to issue process for carrying out the judgment previously awarded.

In giving the opinion [22] Chief Justice Marshall used the following forceful and characteristic words: "If the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery, and the nation is deprived of the means of enforcing its laws by the instrumentality of its own tribunals." The state was not compliant; the militia was called out to prevent service and execution. Armed conflict between federal officers and state troops appeared inevitable; but the federal marshal by a clever ruse succeeded in serving his writ. By this time the state was ready to retreat. The federal authority was amply sustained, for General Bright, who had commanded the militia, and others with him were haled before the federal court, convicted, and sentenced to pay fines and suffer imprisonment for obstructing the court. Madison, who had upheld the national authority, pardoned the condemned men, probably wisely, because they had acted under a mistaken sense of duty.[23]

Resolutions which were passed by the Pennsylvania legislature (April 3, 1809) are especially illuminating.[24] They express a desire that the other states, "who are equally interested in the preservation of the state rights", should understand the position taken by Pennsylvania, and also that the government of the United States should see "that the Legislature, in resisting encroachments on their rights, are not acting in a spirit of hostility to the legitimate powers of the United States' courts; but are actuated by a disposition to compromise, and to guard against future collisions of power, by an amendment to the constitution...." They declare "That, as a member of the Federal Union, the Legislature of Pennsylvania acknowledges the supremacy, and will cheerfully submit to the authority of the general government, as far as that authority is delegated by the constitution of the United States." The senate and house trust "they will not be considered as acting hostile to the General Government, when, as guardians of the State rights, they can not permit an infringement of those rights, by an unconstitutional exercise of power in the United States' courts." Powers are granted to the general government and rights are reserved to the states, but "it is impossible, from the imperfections of language, so to define the limits of each, that difficulties should not some times arise from a collision of powers...." What is needed, therefore, is an amendment to the Constitution establishing a tribunal for the purpose of settling disputed jurisdiction of state and national governments: "To suffer the United States' courts to decide on STATE RIGHTS will, from a bias in favor of power, necessarily destroy the FEDERAL PART of our Government: And whenever the government of the United States becomes consolidated, we may learn from the history of nations what will be the event."

How was this proposal received by the other states? There were then seventeen states in the union, and at least eleven of them disapproved.[25] Virginia's answer is worth noting: a tribunal was already provided for — "the Supreme Court, more eminently qualified ... to decide the disputes aforesaid in an enlightened and impartial manner, than any other tribunal which could be erected." This reply was drawn up twelve years after the famous resolutions of 1798; but Virginians were now in the saddle; a Virginian was President, a Virginian was the Chief Justice, and though Jefferson and other sturdy citizens of the Old Dominion fretted under Marshall's hand, and, before another decade passed, were pouring out vials of their wrath upon him, still it must have been some consolation to Virginians to think that, when all was said, he was one of their own blood. So much depended on local pride, on partisan prejudice, on personal passion, that varieties of constitutional interpretation, instead of a single simple one, came continually to the fore. But the contest in this particular was obviously over the power to judge.

The following year, the Pennsylvania legislature, adopting resolutions in opposition to the renewal of the United States Bank charter, made certain pronouncements more nearly in accord with the idea of complete state sovereignty than did any other state during this period: "The act of union thus entered into being to all intents and purposes a treaty between sovereign states, the general government by this treaty was not constituted the exclusive or final judge of the powers it was to exercise; for if it were so to judge then its judgment and not the constitution would be the measure of its authority." These phrases, though more extreme in their connotations than those of the Kentucky resolutions of an earlier day, are plainly sippings from that perennial fountain. Here, the reader may say, we find the complete and authoritative doctrine of state sovereignty in native nudity. But a careful examination of even this document awakens doubt of that interpretation, if it does not actually strengthen the belief that the critical matter was the right to judge. The resolutions speak of the federal Constitution's adoption by the "people of the United States", [26] of the establishment of a general government for special purposes, of the reservation of rights riot delegated, and of the anxiety "to secure an administration of the federal and state governments, conformably to the true spirit of their respective constitutions...." [27] One is left, therefore, with at least a vague impression that these legislators looked upon the Constitution of the United States as a constitution.

The admission of Louisiana into the union (1812) called forth bitter opposition from the New Englanders who feared the growing ascendancy of the south and the increase of western power. The easterners saw their own section submerged by the rising tide of other sections; they saw their influence and authority flouted and their interests subjected to slave-owners and intellectual incompetents. The speech of Josiah Quincy, delivered while admission was under discussion, is well-known: "... if this bill passes," he exclaimed, "the bonds of this Union are virtually dissolved; that the States which compose it are free from their moral obligations, and that, as it will be the right of all, so it will be the duty of some, to prepare definitely for a separation — amicably if they can, violently if they must." [28] He spoke of the analogy between a political partnership and an ordinary business partnership; he did not desire to see a new partner admitted; he did not believe the people adopting the Constitution intended to grant political power to the people of Louisiana. It appears rather unwise to take too seriously the exclamations of excited forensic oratory, though on this occasion the arguments against the right of Congress to admit states from territory, which was not held by the union when the Constitution was adopted, are not totally absurd and unreasonable. At a later date (June 16, 1813), a committee of the Massachusetts senate drew up a report [29] which strongly set forth objections to the admission of states "created in territories, beyond the limits of the old United States.... It is, in truth, nothing less than the power to create in foreign countries, new political sovereignties, and to divest the old United States of a proportion of their political sovereignty, in favor of such foreigner." [30]


[1] "Like death it [a democracy] is only the dismal passport to a more dismal hereafter", wrote Fisher Ames, who was probably the most doleful of all the malcontents. Letter from Ames to Christopher Gore, October 3, 1803, in Fisher Ames, Works (Seth Ames, ed.), I, p. 324. "Our country is too big for union, too sordid for patriotism, too democratic for liberty.... Its vice will govern it, by practising upon its folly." Letter from Ames to Thomas Dwight, October 26, 1803, in Ibid., I, p. 328. "The federalists must entrench themselves in the State governments, and endeavor to make State justice and State power a shelter of the wise, and good, and rich, from the wild destroying rage of the southern Jacobins." Letter from Ames to Christopher Gore, December 13, 1802, in Ibid., I, p. 310.

[2] The chief sources are Henry Adams, Documents Relating to New-England Federalism. 1800-1815; H. C. Lodge, Life and Letters of George Cabot; Works of Fisher Ames (Seth Ames, ed.), I; J. C. Hamilton, History of the Republic of the United States, VII; W. P. and J. P. Cutler, Life, Journals and Correspondence of Rev. Manasseh Cutler, especially II, pp. 86-87, 140.

[3] Adams, New-England Federalism, p. 352.

[4] Ibid., p. 346.

[5] Ibid., p. 347.

[6] For a succinct statement, see S. E. Morison, The Life and Letters of Harrison Gray Otis, I, pp. 264-267. Hamilton's opinion was as follows: the election of Burr would reunite the scattered fragments of the Democratic party and reënforce it by a detachment of Federalists under his leadership; in New England the ill opinion of Jefferson and jealousy of the ambition of Virginia were leading men to think of dismembering the union. "It would probably suit Mr. Burr's views to promote this result, to be the chief of the Northern portion...." Hamilton, Works (H. C. Lodge, ed.), VIII, pp. 374-375. Cabot believed in 1804 that a war with Britain might be a signal for the break-up of the union. See ante, note 5. "... but, if they had involved us by their folly and baseness in a war with Great Britain, I believe New England might be roused to do any thing which her leading men should recommend." Letter from Cabot to King, March 17, 1804, in Adams, New-England Federalism, p. 363. But see a letter from Cabot to Pickering, October 5, 1808, in Ibid., p. 373.

[7] Adams, New-England Federalism., p. 284. Pickering, who was ready to believe anything sufficiently damaging to his opponents, said in 1812 that he had no doubt that French money had been distributed to bring on the war against Britain. Letter from Pickering to Edward Pennington, July 12, 1812, in Ibid., p. 388. On the secession movements, 1804-1814, Morison makes the following comments: "The secession movement of 1804 was a select conspiracy, confined to a handful of extremist leaders; the movements of 1808 and 1814 were entered into by the entire Federal party in New England, and their object was not disunion, but, in the one case, relief from the embargo, and in the other, peace and protection to New England interests. Pickering, indeed, attempted to steer the Hartford Convention into a disunion course, but failed. The conspiracy of 1804 was an isolated affair, the real significance of which is personal — the example it offers of the manner in which political Jesuits throw aside every scruple to attain their ends." Morison, op. cit., I, pp. 269-270.

[8] Jefferson's special message (December 18, 1807) indicates at least this main purpose. Jefferson, Works (federal ed.), X, pp. 530-531.

[9] "When the great American tortoise", declared John Randolph, with characteristic venom in a speech, at a later date, "draws in his head, as this nation laying an embargo has been compared to this animal, you do not see him trotting along; he lies motionless on the ground; it is when the fire is put on his back, that he makes the best of his way, and not till then." April 5, 1808. Annals of Congress, 10 Cong., 1 sess., col. 1963.

[10] So Timothy Pickering reported, at a somewhat later time. "The words were spoken in secret session, but Senator Pickering noted them for future use. Among the antipathies and humors of New-England politics none was more characteristic than this personal antagonism, beginning a new conspiracy which was to shake the Union to its foundations." Henry Adams, History of the United States, IV, p. 173. Adams's treatment of the mission of George Rose is especially entertaining, and the presentation of Pickering's subterraneous operations is illuminating. Ibid., IV, p. 178 ff.

[11] August 9, 1808. Jefferson, Works (federal ed.), XI, pp. 40-41.

[12] November 13, 1808. Jefferson, Writings (H. A. Washington, ed.), V, pp. 386-387.

[13] See Adams, History of the United States, IV, pp. 268-269.

[14] See the chapter on the Virginia and Kentucky resolutions, ante.

[15] "To deny, therefore, a limited sovereignty to a State of the Union, under the Constitution, is, forensically and historically, as incorrect and mischievous as to assert more than a limited sovereignty for the United States under the Constitution. Each is sovereign; but each is sovereign only within the limits traced by the Constitution." D. H. Chamberlain, "The State Judiciary," Constitutional History of the United States as Seen in ... American Law, p. 247. This book is a series of addresses by T. M. Cooley and other eminent jurists. Just how this able lawyer would define "sovereignty" may awaken our curiosity; but he could not — if he thought a moment — define it as complete political authority. Cooley, referring with approval to Jay's opinion in Chisholm v. Georgia, says, "And the deduction was irresistible: the sovereignty of the nation was in the people of the nation, and the residuary sovereignty of each State in the people of each State." Ibid., p. 48.

[16] State Documents on Federal Relations (H. V. Ames, ed.; hereafter referred to as Ames, State Documents), no. 1, p. 28.

[17] Ibid., no. 1, pp. 29-31. Notice also an additional statement to the effect that when a man's liberty is infringed, "if not absolved from his allegiance, he may demand redress, and take all lawful measures to obtain it." p. 32.

[18] February 15, 1809. Ibid., no. 1, pp. 34-35.

[19] The report and resolutions were to be transmitted "to the legislatures of such of our sister states, as manifest a disposition to concur with us in measures to rescue our common country from impending ruin, and to preserve inviolate the union of the states." Ibid., no. 1, p. 36.

[20] Notice even Timothy Pickering writing, "Pray look into the Constitution, and particularly to the10th article of the amendments. How are the powers reserved to the States respectively, or to the people, to be maintained, but by the respective States judging for themselves and putting their negative on the usurpations of the general government?" Letter from Pickering to Christopher Gore, January 8, 1809, in Adams, New-England Federalism, p. 378. Italics of the original omitted. When the Constitution was before the people for adoption, Pickering (December 24, 1787) made assertions concerning the nature of the Constitution which were orthodox at that time, i.e., that there was "partial consolidation": "The 'Federal Farmer' admits the necessity of the 'partial consolidation,' as the only plan of government which can secure the freedom and happiness of this people; and yet, when the Convention have proposed a partial consolidation, he says they evidently designed thereby to effect ultimately an entire consolidation!" Quoted in C. W. Upham, The Life of Timothy Pickering, II, p. 355.

[21] The certificates were afterwards "funded by him, in his own name, under the act of Congress making provision for the debt of the United States.... These certificates remained in the private possession of David Rittenhouse ... and after his death they remained in possession of his representatives...." United States v. Judge Peters, 5 Cranch 115, 138 (1809).

[22] Ibid., 136.

[23] The historical incidents are discussed by J. F. Jameson, "The Predecessor of the Supreme Court," Essays in the Constitutional History of the United States (J. F. Jameson, ed.), p. 17 ff.; by J. C. B. Davis, in an appendix to 131 U. S., p. XXIX ff.; Richard Hildreth, The History of the United States of America (revised ed.), VI, pp. 155-164. Of interest in this connection is a similar incident, which called forth protest from New Hampshire against the findings of the federal judiciary. Penhallow et al. v. Doane's Administrators, 3 Dallas 54 (1795). New Hampshire's protests are in Ames, State Documents, no. 1, pp. 11-15. The contention plainly was that by the adoption of the Constitution the state did not then intend to admit that the "confederation was in force prior to March, 1781, or that the federal constitution existed with respect to New Hampshire before June, 1788."

[24] Ames, State Documents, no. 2, pp. 2-4.

[25] New Hampshire, Massachusetts, Vermont, New Jersey, Maryland, Virginia, North Carolina, Georgia, Ohio, Kentucky, Tennessee. Ibid., no. 2, p. 5. See Pennsylvania's further declaration in behalf of an impartial tribunal, 1810. Ibid., no. 2, pp. 7-8. Various resolutions are in the journals of the Pennsylvania senate and house, 1809-1810. Of special interest are the resolutions in the Journal of the Senate, XX, p. 376 ff., and in the Journal of the House, XX, pp. 250-254, 403-424. We should notice, however, that a minority of the legislature strongly attacked the doctrine of the right to resist the federal courts. But the minority likewise accepted the principle of divided authority.

[26] The one expression which Calhoun abhorred was this. The acknowledgment that there was a people of the United States violated his principles.

[27] Ames, State Documents, no. 2, pp. 8-10; American State Papers, Finance, II, p. 467. Virginia was opposed to the Bank. The stand taken by W. B. Giles in Congress deserves attention. His natural inclination was not toward nationalism. His stand was distinctly upon the idea of divided sovereignty. See Annals of Congress, 11 Cong., 3 sess., col. 181 ff.

[28] January 14, 1811. Annals of Congress, 11 Cong., 3 sess., col. 525. Edmund Quincy, writing his father's biography in 1867, says of this speech "that the secessionism it contains is a very different doctrine from that preached in later times." This may appear a pious example of wishful thinking; but an examination of the whole speech will lead the reader to think that there was some ground for the statements of the biographer. See Life of Josiah Quincy, p. 213.

[29] Ames, State Documents, no. 2, pp. 21-24.

[30] Though the writer has been over the main documents time and time again and examined them critically, he should acknowledge the aid of a thesis by M. C. Kennedy, States Rights, 1807-1815 (MS. in the library of the University of Chicago), an able and careful examination of the available material.


CHAPTER XXVI

THE WAR OF 1812

After long years of vexation and dispute, after attempts at peaceful coercion of the warring nations of Europe, after diplomatic controversy and failure of formal protest, war finally came. It was brought on partly by the "war hawks" of the south and west under the leadership of Henry Clay. It found its main support in the western regions from New Hampshire to Georgia; it was supported by an enthusiastic group in the farther south;[1] and it made its special appeal to the younger men of a new generation who were less timid than their elders, more appreciative of national dignity, and less influenced by a pet prejudice against one or the other of the European belligerents. The congressional vote disclosed a dangerous absence of unanimity. In the House, seventy-nine voted for war; forty-nine for peace. In the Senate, nineteen voted for war, thirteen for peace. Furthermore, the voting disclosed sectional diversity; representatives of the states north and east of New Jersey opposed the war; the far south and the west were solidly for war.[2] In other words, the sections suffering the least from the British navy and having little commerce to be protected were ready for a conflict to avenge attacks upon American rights on the seas. Some of the more sanguine spirits were out for conquest and expansion.

In a war thus begun there was bound to be trouble. Sectionalism and partisan suspicion were prevalent and were soon made perilously evident.[3] New England provincialism was prepared to display itself [] the privations of the struggle added to the discontent which soon became clamorous and denunciatory. Complaints were directed against a war which the New Englanders believed was actuated by an unreasonable hatred of Britain and a detestable devotion to France. In the minds of the angry malcontents there lurked the suspicions and forebodings which have already been mentioned: dislike of Jeffersonian democracy and all its progeny; distrust of the south and the west; objection to restrictions which appeared to be totally devastating to commerce; and in addition, the rank injustice of enumerating three-fifths of the slaves as the basis of representation, for that gave the southerners power in the government to be used in combating the