Having been entrusted with the responsibility of administering the back lands, Congress immediately entered upon the work of arranging a method for their survey and sale, and of devising a feasible government to be extended over them. The pressing need of securing a revenue from them, together with a realisation that prospective purchasers would require protection both from each other and from the savages, impelled the members to immediate action. Against the many failures with which the old Congress stands charged during the eight years of its national control, the ordinances for the disposition and government of the western lands form a most pleasant and redeeming contrast. The Congress faced an absolutely new task. There were many precedents in history for colonial holding, varying from the policy of Greece, which allowed complete severance of home ties, to that of Spain, which regarded colonies as existing solely for the benefit of the mother country. By adopting the one, the United States must have left the western emigrants to perish. The other was repugnant to a people who had just rebelled against even the moderate colonial system of Great Britain. Equality is the only standard for a republic. Congress had resolved in 1780 that the lands ceded to its jurisdiction should be "disposed of for the common benefit and be settled and formed into distinct republican States which shall become members of the Federal Union and have the same rights of sovereignty, freedom, and independence as the other States." Here was an action almost unprecedented. Instead of holding the outlying region as a colonial possession for the benefit of the older portion, or making it into an Indian hunting-ground as Britain had tried to do, the Confederation of States had voluntarily agreed to erect it into independent States upon perfect equality with themselves. It was a practical application of the principles of the Declaration of Independence, of no taxation without representation, and of the real equality of all portions of the domain. The action was taken for the very practical purpose of assuring the States that if they surrendered their claims to the western lands, their citizens who migrated thither would not lose their rights by changing from State to national sovereignty.
Jefferson is presumed to be the father of the ordinance which first collected these promises into a working model; but not even Jefferson, rejoicing in laying out imaginary states from the new national possession and giving classic names to them, could foresee that there was being called into existence a factor most dangerous to his beloved individualism. The people who would remove from the States and settle upon lands purchased from the National Government, would be under national protection, subject to national legislation, and eventually be admitted by the national power to national statehood. Their affection would be gradually won away from their native States to be centred on the Union. Yet the States had not been able to hold the lands individually. Thus was necessity silently making the Union.
The provisions of the Jefferson Ordinance of 1784 for the temporary government of the western territory have been almost lost sight of because, after it had been in operation for three years and little had been accomplished through difficulty of dealing with the Indians in possession of the land, circumstances arose which brought about a new ordinance superseding the old and changing it in its working details. Yet the first ordinance embodied the main principles in creating States which have since been followed. The number of people in any given portion of the public lands was to be the determining factor. Jefferson's ordinance would allow these settlers to establish a temporary government, to adopt the constitution of any one of the thirteen States, and to elect a legislature. When their number should reach twenty thousand, they would be allowed to call a convention and establish a permanent constitution and government. Upon attaining a population of free inhabitants equal to that of the least numerous of the thirteen original States (at this time probably Georgia, whose population was estimated at twenty-five thousand) they would be admitted on equal footing with the other States. Between the establishment of the temporary government and admission to statehood, the prospective state should be allowed a representative in Congress with a right of debating but not of voting. The well-known Ordinance of 1787, which replaced that of 1784, substituted for the temporary government to be erected by the settlers a ready-made administration of governor, secretary, and territorial judges, to be sent out by the National Government, and to continue until the free male population should number five thousand, when they were to be allowed to exercise home rule in setting up a territorial government. The standard for statehood was fixed definitely in the later ordinance at sixty thousand free inhabitants.
Jefferson, notwithstanding the supposedly aristocratic training of a Virginia environment, placed no qualification for suffrage or office in his ordinance. The Ordinance of 1787, presumably drafted under democratic New England ideas, placed a qualification of ownership of two hundred acres of land upon a representative in the territorial legislature and of fifty acres upon an elector for a representative. Here was an illustration of that revertive tendency in the sections which has maintained the national equilibrium. Accumulated wealth in the North was beginning to overcome the levelling creed of the Puritan, while the economic loss resulting from slave labour in the South was reducing the colonial Cavalier class in the planter States. The exceedingly profitable cotton culture had not yet developed in the Gulf States to create the ante-bellum aristocracy of the lower South, nor had the stream of European immigration set in to the Northern States to restore the levelling tendency there.
The two ordinances were alike in precluding the separation of any part of the territory from the United States, requiring the inhabitants to pay a portion of the national debt, and forbidding new States, to interfere with the sale of or to tax the national public lands within their limits.
Two provisions in Jefferson's first draft of the Ordinance of 1784 were struck out by the Congress before adoption. One, which forbade granting of titles of nobility, was eliminated because, as Jefferson wrote to Madison, "it was thought an improper place to encounter them." The contest against the introduction of aristocracy was unlikely to be precipitated in the backwoods bordering the Ohio River. Yet the provision would have been in keeping with the spirit of the times. Congress had recently rejected a proposition made to Washington by the Polish Order of Knights of Divine Providence that their order should be officially extended to the United States. The other eliminated provision, forbidding slavery and involuntary servitude in the territory after the year 1800 except as a punishment for crime, is important not only as the first attempted restriction of the slavery system by the National Government, but also as furnishing an interesting comparison with the later sentiment on this unfortunate controversy which affected every phase of United States history for a century.
When he incorporated this provision in his draft of the ordinance, Jefferson was but little in advance of the opinion of the day on the effects of employing slave labour. Never until its death was the system so near dissolution as in the organising days between the birth of the republic and the invention of the cotton-gin. State after State in forming its constitution, or by special enactment, arranged for immediate abolition or gradual emancipation. Even in slaveholding Virginia and North Carolina, few could be found to defend the system from an economic standpoint, although they had to admit the necessity of its use in the rice swamps of South Carolina and Georgia.
Lafayette was urging Washington to employ his recently acquired leisure in transforming slaves into free tenants. "Such an example as yours," he wrote from Cadiz, "might render it a general practice."
"Would to God a like spirit might diffuse itself generally into the minds of the people of this country," replied the Virginia farmer, "but I despair of seeing it. To set the slaves afloat at once would, I really believe, be productive of much inconvenience and mischief, but by degrees it certainly might and assuredly ought to be effected; and that too by legislative authority."
At the same time he put himself on record as determined never to add another to the number of his slaves by purchase. A petition for emancipation had just been introduced into the Virginia House of Delegates and was "rejected without dissent; but not without an avowed patronage of its principles by sundry respectable members," as Madison informed Washington. "A motion was made to throw it under the table, which was treated with as much indignation on one side as the petition itself was on the other."
Jefferson had been disappointed at an earlier time because no emancipation provision had been incorporated in the Constitution of Virginia.
"What a stupendous, what an incomprehensible machine is man!" he wrote in this connection, "who can endure toil, famine, stripes, imprisonment, and death itself in vindication of his own liberty and the next moment be deaf to all those motives whose power supported him thro' his trial and inflict on his fellow men a bondage, one hour of which is fraught with more misery than ages of that which he rose in rebellion to oppose."
An interesting commentary on the industrial progress of the country is afforded by comparing these early views of Southern statesmen upon the slavery system with those held by a later generation.
Public sentiment in Virginia was not ready to follow the champions of individual freedom to the emancipation point, and it refused as strenuously to be coerced as it did in later years. When the Quakers of Philadelphia attempted to secure by law the freedom of a body-servant whom a neighbour of Washington had taken with him on a visit to that city, the General wrote to his friend, Robert Morris, the wealthy merchant of Philadelphia, "If the practice of this society, of which Mr. Dalby speaks, is not discountenanced, none of those whosemisfortuneit is to have slaves as attendants, will visit the city if they can possibly avoid it."
However, the clause which was struck from the Ordinance of 1784 was not intended to abolish slavery where it already existed, but to prevent the extension of the system to new territory. It was the forerunner of a similar controversy which attended every addition to the national territory as the people spread westwardly, and which eventually became a strong factor in precipitating the Civil War. The motion to cast out was made by Spaight, of North Carolina, but Williamson, his colleague, voted to retain the clause and thus divided the State. Jefferson was outvoted by his two colleagues who favoured no restriction on the people desiring to migrate to the new lands. Maryland and South Carolina were the only Southern States unanimously against the clause. Six States north of the Mason and Dixon line voted to retain the clause. Jefferson took the defeat sorely.
"Seven States being requisite to decide the proposition affirmatively," he said, "it was lost. The voice of a single individual of the State which was divided or of one of those which were of the negative, would have prevented this abominable crime from spreading itself over the new country."
To Madison he reported, "South Carolina, Maryland, and! Virginia! voted against it. N. Carolina was divided as would have been Virginia had not one of its delegates been sick in bed." The absent member was young James Monroe, serving his first term in Congress.
The close vote, of which Jefferson complains, well illustrates the evils of voting by States in Congress. Seven affirmative State votes were necessary to retain the anti-slavery clause. Only eleven States were represented. One of these had but one delegate and his vote was cast out by the rule requiring a State to be represented by at least two delegates to participate in a vote. Of the ten States remaining, seven must have at least two delegates of an affirmative mind from each to retain the clause. Six of these States voted solidly to keep the restriction, but the seventh State could not be secured, as Jefferson stated. Considered by our present method of voting, sixteen of the twenty-three delegates present voted affirmatively and seven negatively; yet the motion was lost and the clause struck out. Rarely has the power of a minority been so great. The individual may be allowed to hide the mass by being held too close to the vision.
However, the defeat of Jefferson's plan of excluding slavery from the territory after the year 1800 must be considered fortunate by all in sympathy with the general purpose. By it, slavery would have been permitted in the western country for sixteen years. The large influx of migration into the territory within that period, especially from the Southern States, would have established the system too thoroughly to be eradicated. The difficulty with which slavery was permanently kept out, although expressly prohibited by the Ordinance of 1787, is a proof of this assertion. The clearing of the way for the later prohibitive action by striking out the clause tended to the ultimate good. On the other hand, it is pointed out that the Jefferson ordinance provided only for "a temporary government of the western territory" and covered "so much of the territory ceded or to be ceded by the individual States to the United States as is already purchased or shall be purchased of the Indian inhabitants and offered for sale by Congress." Eulogists of Jefferson argue, consequently, that if his restricting clause had been allowed to remain it would have prohibited slavery in all the land west of the thirteen States, both north and south, after the year 1800, and thus the entire slavery system would have died through non-extension. But it must be remembered that the only land thus far ceded lay north of the Ohio and immediately west of the free States. It is not conceivable that such a restriction would have been permitted to hold south of the Ohio and west of the slaveholding States, directly in the line of migration. Indeed, when the time did arrive to create a government south of the Ohio, interference with slavery was distinctly prohibited. It is true, also, that Jefferson's ordinance as adopted solemnly declared its articles a charter of compact to stand as unalterable constitutions both before and after the sale of any part of the vacant land; but that a new ordinance should supersede it after three years, simply because a proposed purchaser demanded some additional guarantees, is a proof that none of its provisions could have withstood the pressure of slave territorial expansion.
However, at the time, there seemed small prospect that the National Government would ever be required to make regulations for any territory south of the Ohio. Congress had sent out appeal after appeal to North Carolina, citing the action of the other States, and begging her to yield her claim to what is now the State of Tennessee. But she resisted until 1790. South Carolina retained control of a long, narrow strip, south of the present Tennessee and extending to the Mississippi, until 1787. Georgia, claiming almost the whole of the present States of Alabama and Mississippi, remained deaf likewise to the entreaties of Congress until 1802. Virginia, having yielded so much of her original claim as lay north of the Ohio, was disposed to retain her claim to the Kentucky country. Jefferson wished to yield all lying west of the mouth of the Kanawha. Washington approved of this limit, seeing, as he said, "the impolicy of this State's grasping at more territory than they are competent to the government of." This liberal sentiment was never sufficiently general to be effective. Thus it came about that the Southwestern territory, which Congress ultimately created from all land ceded south of the Ohio, was never more than a temporary and passing arrangement compared with the North-west territory.
[Illustration: MAP SHOWING THE PROPOSED WESTERN STATES. From Morse's"American Gazetteer". The five States here outlined in the North-westTerritory, with slightly changed boundaries, are to be found on themap at present.]
After much study, Congress drew up the Ordinance of 1785 for the survey and sale of such land as might be given to its care. The details of this important arrangement in the story of the American people illustrate the advantages arising from instituting new governments at a stroke. The rectangular system of land surveys, like the decimal system of money, was devised and not inherited. Each has proved a blessing in its simplicity. The divisions of the land upon an even-number basis, the progressive numbering of the divisions, the elasticity of the system, and the subdivisions arranged to accommodate small purchasers, have conduced by their simplicity and adaptability to speedy disposition and settlement of the national domain and have minimised later litigation and discord. Since the history of the American people has been influenced so extensively and persistently by the disposal and peopling of the public lands, the simple survey system may be counted among the valuable parts of the national machinery.
Surveys were to be made by the "geographer" of the United States, assisted by a surveyor from each of the States. One-seventh of all lands surveyed was to be reserved for the land bounties promised to those who had served in the Continental army. An old handbill, frequently reproduced, shows that among the inducements to enlistment held out during the darkest period of the war were "Ease, affluence, and a good farm." The certificates issued to the soldiers at the close of the war in lieu of money were made receivable in payment for public land. A share in all gold, silver, lead, and copper mines was retained by the National Government. Lot number sixteen in every township was reserved for the maintenance of public schools. A provision for setting aside the section adjoining it for the support of religion was struck out, nor could a motion prevail to preserve it for "charitable uses." The votes on this question seemed to be governed purely by individual opinion. The delegates from Virginia, whose Legislature had just dealt the Established Church in that State its death-blow, voted to retain the reservation of land for religious purposes, much like the old church glebe lands. But the separation of Church and State had become too complete to enter upon a scheme so suggestive of establishment.
For three years the Ordinance of 1784 awaited the migration of settlers to the territory who would be protected by it, and, at the same time, put it into effect. Thomas Hutchins, the national "geographer," and his assistants from the several States, laid off seven ranges of townships, in the eastern part of the present State of Ohio, according to the land Ordinance of 1785, before rumours of hostile Indians drove them back. The Secretary of War was instructed to draw by lot enough of the surveyed land to satisfy such bounty land certificates as might be presented and to advertise the remainder for sale. United States troops were employed to drive out the "squatters" on the public lands, to burn their cabins, and destroy their crops. But not an acre was sold in those three years, not a certificate of national indebtedness redeemed, and not a shilling received from the land sales for the needy treasury.
The Jefferson ordinance had been intended for such western lands as might from time to time be given to the National Government. But no land south of the Ohio was surrendered. Congress, therefore, determined to cast aside the old ordinance, and to form the portion yielded into a specific territory, with a new ordinance which would allow more leeway in forming the States and give Congress more control over the domain from its incipience. Accordingly, Johnson, of Maryland, offered a new ordinance in the spring of 1786, which passed to a second reading. With the exception of the reforms noted above, it closely resembled the old ordinance. But in July following, after an interregnum of no quorum, the Congress passed, by an almost unanimous vote and after a consideration of only a few days, an entirely new law governing the territory north-west of the Ohio. It was the famous Ordinance of 1787. Its sudden transformation, inexplicable to early investigators and solved only by later research, was the result of a business transaction connected with the bounty certificates given to the Revolutionary soldiers.
During the progress of the war, it had been necessary to secure enlistment by offering bounty lands. The desire to realise on these promises was shared by officers and privates alike. Doubtless around many a camp-fire, as the war drew to a close, the value of these land certificates was discussed, and plans made for "associating" to form colonies in the "back lands" to which the soldiers were winning both right and title. The danger-line in the future would be along the frontier, where the newly won empire must be guarded from invasion both from British Canada and the Spanish Floridas, and where the advancing line of pioneers must be protected from hostile Indians. Bands of these "associators" were organised to obtain their allotments in the new country and to settle upon them. They would "plant a brave, a hardy, and respectable race of people as our advanced post," wrote Washington in presenting the project to Congress. "A settlement formed by such men would give security to our frontiers; the very name of it would awe the Indians."
One body of men, styling themselves "The Ohio Company of Associators," composed of ex-Revolutionary officers and privates residing in and about Boston, sent a botanist-parson, the Reverend Manasseh Cutler, to the Congress in the summer of 1787, to urge a proposition they had advanced for the purchase of a large tract on the Ohio River. These "adventurers," as they styled themselves, were desirous of driving a good bargain in a low price for the land and also of gaining certain guarantees from Congress which would give them as much personal liberty and protection in the new home and under the National Government as they enjoyed in their present residences under their State Governments. Cutler, provided with forty-two letters of introduction to members of Congress and prominent citizens of New York city, reached the seat of government in due time. "At 11 o'clock," he wrote in his private journal, "I was introduced to a number of members on the floor of Congress Chamber, in the City Hall, by Colonel Carrington, member from Virginia. Delivered my petition for purchasing lands for the Ohio Company, and proposed terms and conditions of purchase." Fortunately there was a quorum in Congress, the first in nearly two months. A few days later, Cutler was sent a copy of the Johnson ordinance then pending. To this he proposed "several amendments." Three days afterward, the celebrated Ordinance of 1787, for the government of that portion of the territory north-west of the Ohio, was completed and adopted to Cutler's satisfaction. "It is in a degree remodelled," he wrote in his journal. "The amendments I proposed have all been made except one, and that is better qualified."
Nevertheless it took a week more of haggling and lobbying before acceptable terms of sale could be agreed upon. Another company composed of "principal characters" in the city had to be taken into the deal in a "profound secret." Arthur St. Clair, the president of the Congress, had to be accepted by the Associators as the governor of the territory, in order to gain his support. Cutler had to finesse by threatening to buy from some of the States which had land for sale within their borders. It is unfortunate for those who believe that our fathers were actuated entirely by disinterested motives and utterly devoid of political guile that the parson lobbyist kept such a candid diary. Day by day the business proceeded, Cutler even making a side visit to Philadelphia while his leaven was working. At last even "that stubborn mule of a Kearney," as the disgusted agent called him, was "left alone," a sufficient number of votes was secured, and Cutler was receiving congratulations on the prospects of the Ohio Company.
"By this Ordinance," he wrote, "we obtained the grant of near 5,000,000 of acres of land, amounting to three millions and a half of dollars; one million and a half of acres for the Ohio Company and the remainder for a private speculation in which many of the principal characters in America are concerned."
The importance of this transaction lies not only in the fact that it was the first sale of public lands in the United States, but that the government established for the territory formed many precedents for later Territories and States. Some of its provisions deserve a close examination. The changes made in the Johnson ordinance to satisfy the Ohio Company are found chiefly in the appended six articles of the Ordinance of 1787. These formed a guarantee that citizens in the territory deprived of the protection of their States would have the same personal rights which they enjoyed before leaving the States. The United States, later destined to become a protector, was feared lest it might be an oppressor. Such individual rights ashabeas corpus, trial by jury, freedom of conscience, possession of property, and similar birthrights of Englishmen, had been secured in the States by incorporating them in the various State Constitutions under the general name of "declaration of rights" or "bill of rights." Without such specific title, they were placed in the Ordinance of 1787. The sixth article, no doubt also demanded by Cutler, incorporated the very wording of Jefferson's rejected anti-slavery clause of three years before, except making it immediate instead of after 1800. The New England Associators were unwilling to offer their free labour in competition with slave labour in their new home. The idea was general. "The total exclusion of slavery from the State" had been a prominent provision in a transitory association in Connecticut four years before.
[Illustration: NATHAN DANE'S DRAFT OF THE ANTI-SLAVERY CLAUSE IN THE ORDINANCE OF 1787. The authorship of this article of the Ordinance has been in much dispute. Benton attributed it to a similar provision, drafted by Jefferson, which was struck out of the Ordinance of 1784. Northern men gave the credit to Nathan Dane, a Massachusetts jurist, who was in Congress in 1787. During the sectional feeling aroused over the admission of Missouri in 1820, a dispute arose in Congress over the respective claims of Jefferson and of Dane. Of this, Dane himself said: "In April, 1820, search was made for the original manuscript of the Ordinance of 1787. Daniel Bent's answer was 'that no written draft could be found'; but there was found attached to the printed Ordinance in my handwriting the sixth article, as it now is, that is, the slave article." The original is now in the Library of Congress, Manuscript Division. The signature of Chas. Thomson, Jr., calls attention to the faithful secretary of the Continental Congress during its entire existence.]
The century contest over slavery in the United States made that factor so prominent in national history that it overshadows matters of equal importance in many transactions. The anti-slavery provision of the Ordinance of 1787 has been extravagantly praised ever since the oratory of Daniel Webster first called general attention to it. Sectional partisans have exhausted logic in trying to trace the authorship to Jefferson, a Southern man, or to Dane, a Northern man. The North has credited it to the persistence of New England; the South, pointing to the five Southern affirmative votes out of the eight, has attributed it to the indulgence of their section. In recognising this first anti-slavery action of the National Government, Northern orators have overlooked an attendant clause, the first national fugitive slave law. It paved the way for a similar provision in the Constitution and led to the obnoxious slave rendition laws of later years. In praising the indulgence of the South, the eulogists of that section have failed to consider the price the New England Associators paid in this first slavery compromise of the nation.
When the blinding passion of the slavery question is eliminated from a consideration of this ordinance some other beneficent provisions, added through the desire to satisfy the New England purchasers, begin to appear. They are taken largely from the "bill of rights" placed in the first constitution of the State of Virginia by George Mason, and copied in many of the later constitutions, including that of the United States. They seek to guarantee the rights of the individual against the encroachments of the Government; to embody the principles which the English barons secured at Runnymede; to secure the inheritances left to the English-speaking people by Hampden and Pym. Although many of the early State Constitutions contained a guarantee of religious freedom,habeas corpus, trial by jury, rights to property, and regard for contracts, as has just been stated, these principles had not been expressed in the Articles of Confederation and the General Government was not bound in any manner to grant them in the western territory. But their incorporation in the ordinance gave assurance that their benefits were not to be confined to the original States.
Equally important is the clause providing for equal division of the property of people dying intestate. This first legislation of the National Government on the subject of real property dealt a death-blow to primogeniture, and to the last of the inherited feudal customs of the Middle Ages. It prevented the accumulation of large estates, and insured the individual ownership of thousands of homes. No system of foreign landlordism was possible under it. The people were to become their own lords paramount of all socage lands. Quit-rents were to be converted into bank accounts. The individual title derived from the National Government involves all the elements necessary for a transfer of the soil. Indeed, this principle of the Ordinance of 1787 not only became a pattern for future State Constitutions, but reacted in similar provisions for those already created.
Another clause of the ordinance has often been the subject of eulogy. "Religion, morality, and knowledge being necessary to good government and the happiness of mankind, schools and the means of education shall for ever be encouraged." Yet this is simply the statement of a principle and precisely such a principle as would be held by the New England Associators where learning had been almost a fetich and where education at the public expense had its inception in the guise of charity schools. The principle only is expressed here, since the land ordinance of two years before promised an endowment for public education as long as enough land remained to lay out a county. The Associators carried out this principle in their own tract by donating lands for a university and for the support of the gospel.
Immediately following the bargain of Dr. Cutler with Congress, the Associators prepared to migrateen masseto their purchase. What the hardy spirits among the country people of the South Atlantic States had been able to accomplish by individual initiative and sheer endurance, the town-dwellers of the North Atlantic States did more systematically and rapidly by concerted action. Organisation and government protection saved the Ohio Associators from such experiments of colonisation as had frequently led to Indian captivities and abandoned settlements in Tennessee and Kentucky. The project of a line of forts along the frontier settlements, conceived during the Indian and Revolutionary wars, assumed shape after the first sale of public lands had really been consummated. Forts McIntosh, Steuben, Washington, Harmar, Vincennes and Massac, were speedily erected or garrisoned, thus guarding the length of the Ohio River, the pathway to the North-west. By subsequent Indian treaties, additional reservations were secured and forts scattered throughout the territory at portages and along the river highways. Under this protection, the Ohio Company sent out its band of artificers to erect dwellings and a stockade for the first settlement. Scarcely a year was allowed to elapse after the purchase until Marietta was founded on the Ohio at the mouth of the Muskingum by the veterans of the Revolutionary War and their friends. It was 170 miles down the Ohio beyond the outpost of civilisation at Pittsburg. Similar settlements were speedily founded on other purchases and on the military lands.
[Illustration: DR. CUTLER'S CHURCH AND PARSONAGE AT IPSWICH HAMLET, 1787. The rendezvous from which the first company started for the Ohio, December 3, 1787.]
The national governor and judges for the Northwest territory in due time created a set of laws, established courts, and erected local governments. The latter was effected by applying the county system, familiar to the people of the Central and Southern States, to the land survey county, and by giving to the township, a unit in the survey system, some of the functions of the New England town. By this happy combination, settlers from any part of the old States would find a local government with whose forms they were to some extent familiar. The Symmes purchase on the Ohio below the Ohio Company's grant was opened to settlement, as was the Virginia Military tract lying between the two. Through Pittsburg, "the gateway of the west," came a throng of pioneers to float down the Ohio to the land of promise. The United States forts protected them on the northern or "Indian side" of the river. In 1786, no less than 117 boats were counted passing Fort Harmar.
So rapidly did the people take possession of this heritage of the Revolutionary struggle that within fifteen years the eastern part was ready to claim the promise of statehood. Eight years later, this new State, Ohio, had passed in rank of population the older trans-Alleghanian States of Kentucky and Tennessee. Blessed with contiguous waterways lying in the line of travel, forming the gateway into the West by the down-thrusting arm of Canada, the first State to be created out of the public domain, with definite land surveys instead of tomahawk marks, with an endowed system of public schools, Ohio gained a political pre-eminence among the newer States and a national prestige which has scarcely yet been rivalled.
The solution of the problem of the frontier was thus so easily and permanently solved by the Central Government in its home-making policy that one scarcely appreciates the fear of Washington and others interested in the back country lest it become a refuge for outlaws and banditti. Mingling with the savages, it was feared that these outcasts would create a constant menace to the advance of civilisation. Colonial governors had much difficulty in controlling the "lawless banditti of the borders." The first settlers across the mountains were considered in England as "uncultivated banditti" and as "fanatical and hungry republicans" and the "overplus of Ireland's population." So late as 1835, De Tocqueville, the French commentator on America, declared that Americans who quit the posts of the Atlantic to plunge into the western wilderness were adventurers, impatient of restraint, greedy of wealth, and frequently men expelled from the State in which they were born. But he had no doubt that in time society would assume as much stability and regularity in the remote West as it had done upon the coast of the Atlantic ocean.
At the time, the action of Congress called fresh attention to the attractiveness of the back country and the possibilities there when population should warrant the erection of States. Stanzas of Philip Freneau represent the feeling of the day:
"What wonders there shall Freedom show,What mightyStatessuccessive grow.What charming scenes attract the eyeOn wild Ohio's savage stream.Here Nature reigns, whose works outvieThe boldest pattern art can frame.TheEastis half to slaves consigned,And half to slavery more refined."
Scarcely a failure of the Confederation Government can be found which does not lead in the last analysis to the financial situation both during and following the war. Suddenly plunged into the Revolutionary War, drained of ready money by the colonial system, possessed of no mines, mints, nor any resource for securing a medium of exchange except an undependable paper promise to pay, the people of the United States emerged from the war broken in purse and overwhelmed with debt. According to Jefferson's estimate made at the time, they owed at least sixty-eight millions of dollars. To this fruit of the war he added the four hundred millions of paper money issued by the Federal and State Governments, estimated, in its depreciated condition, at about seventy-two millions more of debt. The ragged Continental soldiers, frequently reduced to seven-tenths of a pound rations, their arrearages of wages paid in Continental currency worth four pence on the dollar, were now about to be discharged to return to their needy families carrying only paper promises of the United States to pay. These certificates could be disposed of only to brokers and that at ruinous rates. What was to become of a veteran who was disabled? Congress had already authorised the several States to look up needy soldiers of the Continental service and pay them five dollars a month, such sums to be deducted from the quotas assessed on the several States to meet the general expenses. Seven States only had complied, and in these the lists of needy ex-soldiers had been incompletely compiled.
Some soldiers held certificates entitling them to bounty lands in the back country under the acts of 1776 and 1780, but had no means of journeying thither. Small wonder that mutiny threatened.
"Can you consent to be the only sufferers by this revolution," asked the insurrectionary Newburg addresses, the work of those unwilling to see the army disbanded before being assured of receiving justice, "and, retiring from the field, grow old in poverty, wretchedness, and contempt? If you can—go—and carry with you the jest of Tories and the scorn of Whigs—the ridicule and, what is worse, the pity of the world. Go—starve —and be forgotten."
Eulogy has exhausted itself in praise of these Revolutionary veterans, who eventually permitted their ranks to be disbanded, instead of joining themselves together illegally to obtain justice, or subsisting themselves upon the country at large. Praise has not been withheld from their general, the Virginia soldier-farmer, who, instead of taking advantage of the dissatisfaction to put himself at the head of an insurrectionary force, chose rather to quiet rebellion and to inspire confidence by his hopefulness.
No sooner had the war ceased and the army melted away, than it was found that peace had its dangers no less than war. Released from the menace of war, the States felt no necessity for paying their respective quotas of expenses to the Central Government, as they had done in varying degrees since the beginning of hostilities. The year following the peace, they paid less than a million and a half of the eleven million asked in previous assessments. Three States, it was claimed, had paid comparatively nothing. Rhode Island and New Jersey, as if to add insult to injury, attempted to pay their quotas in their paper money, which was not received at par outside the States. Congress had no power of coercion. According to the second of the Articles, each State in the Confederation retained its sovereignty, freedom, and independence. Congress could only make impotent appeals. Governor Randolph, of Virginia, pictured the Congress as saying to his State: "May it please your high mightinesses of Virginia to pay your just proportionate quota of the national debt; we humbly supplicate that it may please you to comply with your federal duties. We implore, we beg your obedience."
[Illustration: A PETITION FROM CONGRESS TO THE STATES. Many such appeals were issued at different times, begging the States in the Confederation to give more power to the Central Government.]
The financial confusion was increased because of the lack of a circulating medium. A mongrel collection of coins could be found, passing at varying rates in the different States—English pounds, shillings and pence, Spanish dollars, joes, half-joes, pistoles and moidores, French guineas, carolins and chequins—but no United States coins. Even this money was soon drawn off to Europe, because British exporters demanded cash until the Revolutionary debts had been settled. That this cash would return to the States was unlikely if one judged from the first year of the peace, during which the United States purchased 1,700,000 pounds worth of goods in England and sent in return only 700,000 worth. In order to secure some kind of money to conduct business, seven of the States began to issue paper money. The troubles arising from a depreciated paper during the Revolution were neither ignored nor forgotten; but no other method presented itself. Congress had power to issue only "bills on the credit of the United States," which were not likely to be more acceptable than other kinds of paper.
The hopelessness of managing a bankrupt nation, no doubt, was largely responsible for the deterioration which the membership of Congress suffered. Names prominent at the inception of the rebellion had disappeared from the rolls, and mediocrity ruled. The members personally experienced the financial stringency in the failure of their State Legislatures to pay their salaries. Many were dependent upon the patriotic purse of Haym Salomon, "a Jew broker of Philadelphia," as Madison termed him. There should have been a higher standard of membership in the Confederation Congress than in later times, because it comprised not only the usual legislative functions of the nation, but the executive and judicial as well. The machinery itself was largely to blame. Like many of the devices, that governing the Congress was too strongly set against centralisation to allow free play of the parts. No delegate, for instance, was allowed to serve more than three years out of any six lest his influence grow too great or he become unduly attached to the central power. It frequently happened that good men were thus cast out of service just when their experience made them valuable. Certain States forbade a man to serve two consecutive terms in Congress. Madison was debarred by such a provision in 1784.
Delegates were appointed by the State Legislatures usually for a term of one year to begin with the session on the first Monday of the following November. The term would frequently expire when the State Legislature was not in session, and the State would thus go unrepresented for some time. If a delegate pleaded the emergency of the case and asked that the rule be waived, as those from Rhode Island did at one time, Congress refused to sanction such a palpable infraction of the Articles. Cases actually occurred where delegates elect did not arrive at the seat of Government until after the expiration of their term of appointment.
Absenteeism was the drag paramount upon Congressional action. No State could be represented by less than two members and retain its power of voting. If only one representative were present, he had no vote. If only two were present, they might differ, in which case the State was counted as "divided," and the vote was lost. Congress once sent a plea to the States urging the necessity of having more than two delegates present. It showed that if each State had only two representatives in Congress, five out of the twenty-six delegates, being only one-fifth, could negative any vote requiring the consent of nine States. Eleven States were represented at the time, nine by two delegates only, and thus it was possible, continued the report, for three men out of the twenty-five, being only one-eighth, to block all action. If three attended from each State, it would require ten, or one-third of the whole, to have as much power.
The derelictness in attendance on some occasions was humiliating and even alarming. When Washington appeared at Annapolis to resign his commission as commander-in-chief, only seven States were represented by the least required number. He faced twenty-one delegates instead of the ninety-one from the thirteen States, who should have graced this memorable occasion. The definitive treaty of peace lay on the table at the time. Nine States were required by the Articles to be present when a treaty was ratified. Unless ratified within six months after it had been signed in Paris, it would be null and void. More than half the precious time had already elapsed. With the greatest difficulty, the required number was secured. Four years later, there was no quorum for a period of three months, the representation at times falling to two States. During the first eleven months of the year 1788, a quorum was present only 129 days. Much of this delinquency was due to the expense of maintaining the delegates which fell upon the individual States. To make the burden as light as possible, two delegates only were commonly sent. They were likely to disagree. Manifestly the State in which the Congress sat avoided this difficulty, because it could maintain a larger number of delegates at less expense. To avoid this draft upon the needy treasuries, some of the States adopted the expedient of choosing as representative a resident of the city wherein was located for the moment the seat of government, or some man who had the means and the willingness to serve without pay. During quite a long period, Delaware was represented by three delegates, only one of whom was a resident of the State. This was in accord with the custom of British representation. It is interesting to imagine the results if it had ever become fixed in the United States.
It may be truly said that the framers of the Articles could not have expected a successful continuous sitting of so large a body of men. They had not so planned it. The Articles provided that a Committee of States could be appointed at any time, whenever the Congress as a whole might wish to adjourn, by the delegates from each State naming one of their number to serve in this capacity. This was the method of forming a "grand committee" on any important business in Congress. The attempt to give over national affairs to a Committee of States was made in the spring of 1784, after the peace. One trial of the expedient was sufficient. Only eleven States were represented at the time. From these, eleven delegates were selected. According to Monroe, "their powers are confined so that no injury can be effected." He referred to the manner in which the Articles restricted the Committee. The eleven celebrated the beginning of their administration by adjourning for three weeks, "for the benefit of the health of the members." At the end of this vacation, nearly two weeks were consumed in getting nine of the Committee together. A month of regular sessions followed, when suddenly the ever-present dissension concerning the place of meeting broke out. The Southern members of the committee wished to remain at Annapolis. The Northern members wished to adjourn to the cooler climate of New Jersey.
The strife increased until, at the end of two months, the members from New Hampshire, Massachusetts, and New Jersey withdrew. Being left without a quorum, the remaining members signed a manifesto, placing the blame on the seceders and departed for their several homes. Franklin compared the action of the Committee to two lighthouse keepers who quarrelled about the task of filling the lamp until the light went out. "There will be an entire interregnum of the federal government for some time against the intention of Congress, I apprehend, as well as against every rule of decorum," wrote the indignant Madison. During this interregnum, a chief clerk was acting as Secretary of Foreign Affairs and General Knox was serving as Secretary of War. They were the only visible parts of the National Government. Madison at first thought that the Committee of States should be censured when Congress reassembled, but, recognising discretion as the better part, suggested that "we had also better keep this affair out of sight." It was so done. The complete failure of this Committee of States scheme as an executive makeshift was in the end fortunate since it demonstrated clearly the need of a trustworthy and permanent head to the General Government. If it had been even a partial success, it might have been tried again and correction thereby delayed.
The provincialism of the day was well illustrated in the strife of the Committee over the place of sitting. A similar controversy characterised well-nigh the entire life of the Congress. Never a session could close or an adjournment be had without this Banquo's ghost appearing. It was feared that the State in which Congress met would in some way get an undue influence and ascendency. At one time, to satisfy sectional jealousy, it was compelled to provide two places of meeting, Annapolis and Philadelphia, by turns. Cities were even projected in the country far removed from State capital influence. In this unsettled condition, the Congress wandered from place to place with insufficient accommodation. Van Berckel, arriving as minister from Holland, could find no house for rent at Princeton and was obliged to live at a tavern in Philadelphia. He contrasted his reception with that given by his Government to John Adams a few years previously. He reported that he hoped in time to locate the new Government and present his credentials. "Vagabondising from one paltry village to another," as Reed, one of their number, put it, the members became a legitimate prey of boarding-house keepers and stablemen. Small wonder that service in the State Governments was considered not only more dignified, but more agreeable in these days of paramount State rights.
[Illustration: SIGNATURES TO AN ADDRESS OF THE INHABITANTS OF PRINCETON,NEW JERSEY.]
That the capital of the United States to-day occupies a territory independent of a State is the result of sad experience in these early days. When Congress, in 1783, was driven from Philadelphia by some rebellious State troops, who threatened force unless they received their back pay, the village of Princeton was the refuge to which the members fled. Some faithful Continental troops stationed there would protect them. The citizens of the village, grateful for this gift of the gods, prepared a list of families and the number of guests each could accommodate. They also adopted a long set of resolutions, deprecating the "gross indignities" offered to the Congress at Philadelphia, and pledging with the utmost cheerfulness their lives and fortunes to the Government of the United States. They promised to protect Congress "in whatever way our services may be required, whether in resisting Foreign Invasion or in quelling intestine Tumults." That the National Government of the United States of America should be offered protection by a small New Jersey village is indicative of the progress which nationality had thus far made. Sentiment would in time demand a permanent, independent home. Notwithstanding the prevalent financial depression, small tendency toward economy was manifest among the people or its officials. As long as credit held out, extravagance would prevail. The war had been successfully closed, political freedom had been won, and individual ease and affluence presumably secured. Short-sighted fashion viewed her immediate gratification as the concomitant of independence. Even the members of Congress were not exempt from temptation. A Rhode Island delegate reported from Congress sitting at Annapolis to the governor of his State:
"The horse races were attended here the week before last, and are all over, as are also the balls, routs, fandangoes, and plays. I assure you there has been a merry Winter in this place, according, at least, to accounts for I have seen but little of their diversions. I did not even look upon the horse races, although they were to be seen from the windows in the back room of the State House: nor have I attended a single play, although the theatre has been open twice a week the chief part of the Winter, and the playhouse adjoins the house where I lodge."
Despite this virtuous conduct he did not escape a challenge sent by a fellow-delegate from North Carolina and another from a Virginia delegate. He promptly laid both communications before Congress and was further ostracised.
The Congress was a close corporation. The public was not admitted to its sessions, the debates were never published, and the proceedings rarely appeared in the public prints. Its adjournment of both time and place was so frequent and the beginning of new sessions so delayed that news concerning it rarely found a place in the newspapers. This was in marked contrast with its early history, when the assembling of delegates at Philadelphia was described in great detail for those days. Internal dissensions marked the sessions, as indicated by the experience of Howell, of Rhode Island, described by himself above. Members bore their obligations lightly. It was said that at one time when a delegation of Indians arrived at Princeton to make a treaty, a member left for Philadelphia to be married, thus breaking the quorum, and almost precipitating an Indian war.
It is worthy of note that this experience with an executive-legislative- judicial combination of National Government was sufficient to last for all time. Amidst the many changes suggested for the Constitution of the United States since it has been in effect, none has ever been proposed which would hand over the powers of the president to a Congress. Even Jefferson, alarmed by the growth of the executive authority before 1800, never suggested a return to the method whereby the whole administration was at the mercy of a quorum of Congress. The Confederate States in 1861, exasperated into secession by the abuse of the central power, retained the tripartite form in the Government which they planned. Posterity learns by reading the lessons of history.
In the light of a later survey, one may discover many additional defects in the ill-devised Articles of Confederation. Madison once summed up their vices in the failure of the States to comply with the constitutional requirements, in State encroachments of Federal authority, in State violations of national law and treaties, in States trespassing on the rights of each other, in want of concerted action, in a lack of national guarantee against internal violence, in a want of coercive power in the National Government and the omission of the ratification of the Articles by the people. To these he added the multiplicity, the mutability, and the injustice of many of the State laws. Jefferson, separated by his residence at the court of France from actual contact with the worst days of the Confederation, thought the remaining States had a right to coerce a recalcitrant member "by a naval force, as being easy, less dangerous to liberty, and less likely to produce bloodshed." Yet a suggestion in 1781 for an amendment, giving power to Congress to employ force in compelling States to obey the Articles, met with no favour.
Monroe thought that the Articles were practicable and, with a few alterations, the best plan that could be devised. Hamilton, on the contrary, regarded them as hopeless. Even before they were adopted, he predicted a speedy failure. They were "neither fit for war nor peace," he declared. "They show chiefly a want of power in Congress." Washington attributed the defects made in framing the Government to too good an opinion of human nature. "Experience has taught us," he said, "that men will not adopt and carry into execution measures the best calculated for their own good, without the intervention of a coercive power." He declared that requisitions made upon the States by the central power became a perfect nullity when thirteen sovereign, independent, disunited States were in the habit of discussing and refusing compliance with them at their option.
"To vest legislative, judicial and executive powers in one and the same body of men and that, too, in a body daily changing its members can never three great departments of sovereignty should be for ever separated and so distributed as to serve as checks on each other."
He would even go farther in giving power to the Central Government. "As to the separate Legislatures, I would have them considered with relation to the Confederacy in the same light in which counties stand to the State of which they are parts, viz., merely as districts to facilitate the purposes of domestic order and good government." Hamilton shared with Jay a willingness to take such liberties with local rights to secure a more effective National Government.
Such sentiment among public men should have brought about a speedy amendment of the defective parts of the Articles. But, as Washington once said, the people were not yet sufficiently misled. Attempt after attempt was made to secure the necessary unanimous consent to an amendment. Congress begged the States to give over to it the collection of an impost or duty for a limited number of years or for a limited per cent.; to give to it authority to regulate foreign vessels in American ports; and to refrain from levying discriminating duties among themselves. The unanimous consent required by the Articles to make any amendment blocked these and all other proposed reforms. Sometimes twelve States would agree, but before the thirteenth could be won over, another would withdraw its consent. On one occasion, when Rhode Island alone held out, her delegates in Congress wrote to the governor of the State that their "reasonable and firm stand against the all-grasping hand of power in the case of duties had saved the United States!" Connecticut protested that such an addition to the functions of Congress as the collection of an impost would at one stroke vest that body with the power of the sword and the purse, and leave nothing of the individual States but an empty name. Others argued that with 320 million acres of land, which would bring an average of at least one dollar an acre, the General Government needed no other source of revenue. Unanimous consent to an amendment could never be secured. This was the lesson taught by the attempts.
Aside from the difficulties arising from the defects of the Confederation experiment, the disorders in the national body were simply reflections of the turbulent spirit prevalent at the time. Suddenly emerged from the restraining hand of a mother country, misinterpreting the meaning of independence, confounding liberty with license, having lost the law-abiding sense in the treatment of the Tories, grown only too accustomed to the pleasures of mob law, the people were passing through the reassembling period which always follows a civil war. Peace is the normal condition of a people; war is the abnormal. Restraint, taxation, and obedience, it was supposed, had passed away with royalty and kingly prerogative. "Taxes and relaxed government agree but ill," observed the laconic Jay. From South Carolina, Edward Rutledge wrote to him, "It is really very curious to observe how the people of this world are made the dupes of a word. 'Liberty' is the motto; every attempt to restrain licentiousness or give efficacy to government is charged audaciously on the real advocates of freedom as an attack on liberty."
Visionists indulged their hopes of universal happiness. The rebellion which Captain Daniel Shays, officer in the late Revolutionary army, headed in Massachusetts was aimed directly at closing the courts and preventing the issuing of writs to sell mortgaged farms. But Knox wrote Washington that the creed of the insurgents was that the property of the United States had been saved from Britain by the exertions of all the people and therefore ought to be the common property of all; and that they were determined to annihilate all debts, public and private, and to have agrarian laws, which could be easily effected by the means of unfunded paper money; and that this money should be a legal tender in all cases whatever. The madness had spread to New Hampshire, Connecticut, and Rhode Island, according to Knox, embracing a total of twelve or fifteen thousand "desperate and unprincipled men." Wild-eyed enthusiasts in Rhode Island secured the passage of an "iron-clad oath" to the effect that paper money was as good as gold or silver coin—"compelling people to embrace the doctrine of political transubstantiation of paper into gold and silver," as Jay put it. The militia had to be called out in New Hampshire to disperse a mob besieging the State Legislature at Exeter. "The mob clamoured," said a contemporary, "some for paper money, some equal distribution of property, some annihilation of debts, some rebate of all taxes, and all clamoured against law and government." The disorder spread to Virginia. "In several counties the prisons and court houses and clerks' offices have been wilfully burnt. In Green Briar, the course of justice has been mutinously stopped and associations are entered into against the payment of taxes," wrote Madison to Jefferson in France.
Neither those who caused these troubles, nor those who wept over them, as did Mrs. John Adams in France when news of Shays's Rebellion reached her, could foresee the blessings which would follow; that these eight years of individualism were to form an argument for nationalism to be handed down by intuition to future generations. At the time it seemed that nothing but a miracle could save the Union. "Our affairs seem to lead to some crisis, some revolution—something I cannot foresee or conjecture—I am uneasy and apprehensive; more so than during the war." Jay was never given to exaggeration of thought or expression; he must have been deeply impressed to write those words to Washington. "What a triumph for the advocates of despotism to find that we are incapable of governing ourselves," replied the equally conservative farmer of Mt. Vernon, "and that systems founded on the basis of equal liberty are merely ideal and fallacious." To Jefferson in France, Washington confessed that the General Government, if it could be called a government, was shaken to its foundation, and that unless a remedy were soon applied anarchy would inevitably ensue. "The question whether it be possible and worth while to preserve the union of the States must be speedily decided some way or other." said Madison. "If some strong props are not applied, it will quickly tumble to the ground." He thought he detected a propensity to return to monarchy in some leading minds; but he thought that "the bulk of the people would probably prefer the lesser evil of a partition of the union into three more practicable and energetic governments." Monroe, always inclined to be suspicious of the Northern section, was "certain" that conferences were held in New York between New Englanders and New Yorkers upon the subject of the separation of the States east of the Hudson and their erection into a separate government.
Franklin, appearing in the midst of these disorders from his nine years' residence in France, felt the necessity of counteracting the despairing feeling among the friends of America in Europe and of checking the rejoicing among her enemies. He, therefore, filled his letters with descriptions of American prosperity, crops, prices, and happiness. "In short," he wrote, "all among us may be happy, who have happy dispositions, such being necessary to happiness even in Paradise." At the same time, acting in his new station as president of the State of Pennsylvania, he was endeavouring to arrest "a number of disorderly people" who had collected near the line separating Pennsylvania and New York. "They are impatient of regular government," he wrote in seeking the co-operation of the governor of New York, "and seize upon and presume to dispose of lands contrary to and in defiance of the laws. Their number is recruited daily by vagabonds from all quarters." The disorder arose from the long-standing controversy between Pennsylvania and Connecticut over possession of the Wyoming valley—a dispute which the Federal Government had been unable to settle.
The general public had long since lost respect for the National Government and its Congress. Even Washington referred to it as the half-starved, limping Government, that appears always moving upon crutches and tottering at every step. The chief difficulty was not to ascertain the remedies needed, but how to apply them. As early as 1780, Hamilton had thought Congress had the right to reassume the powers of sovereignty it had appropriated with the silent consent of the States during the pressing times of the war; or, if the application must be external, that the people might meet in a convention of delegates empowered and instructed to conclude a new and effective federation. Few were ready to go as far as the impetuous Hamilton in thus virtually overthrowing the "Articles of perpetual union" which were legally binding although inefficient. To amend them according to their own provisions would be legitimate if it could be accomplished.
[Illustration: SIGNATURES OF DELEGATES TO ANNAPOLIS CONVENTION.Hamilton, Reed, Dickinson, Randolph, and Madison were the most prominentmembers of this abortive meeting, which led eventually to thePhiladelphia Convention.]
This was considered by the majority of people the proper method; but when the experiment was tried at Annapolis in 1786 of a meeting of commissioners to devise a uniform regulation of trade and to report such an amendment to their States for ratification, only twelve delegates could be gotten together representing five States. Even the State of Maryland, in which the meeting was held, failed to send a representation. Each of the delinquent States had an excuse. The commissioners who did go to Annapolis, headed by Hamilton, Dickinson, and Madison, could only issue an appeal for another meeting of delegates from the several States the following year in the more central city of Philadelphia, empowered to consider not only the commercial troubles but 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."
It can scarcely be said that the failure at Annapolis was either a surprise or a disappointment, because few had expected success. "The expedient is no doubt liable to objections," said Madison, one of the Virginia delegates, "and will probably miscarry. I think, however, it is better than nothing." The object was unfortunately limited to considering the commercial friction between the States and to regulating their foreign relations. The conviction had become general that only an extended amendment of the frame of National Government could correct the difficulties in the commercial functions and in many other needed particulars. The thought that the proposed convention, if the proposition should be generally taken up, would include such a revision of the Articles of Confederation, served also to soften the blow of the Annapolis failure.