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Produced by The James J. Kelly Library of St. Gregory's
University, and Alev Akman






THE FATHERS OF THE CONSTITUTION,

A CHRONICLE OF THE ESTABLISHMENT OF THE UNION

Volume 13 in The Chronicles Of America Series

Edited by Allen Johnson

By Max Farrand


New Haven: Yale University Press

Toronto: Glasgow, Brook & Co.

London: Humphrey Milford

Oxford University Press

1921



CONTENTS

I. THE TREATY OF PEACE

II. TRADE AND INDUSTRY

III. THE CONFEDERATION

IV. THE NORTHWEST ORDINANCE

V. DARKNESS BEFORE DAWN

VI. THE FEDERAL CONVENTION

VII. FINISHING THE WORK

VIII. THE UNION ESTABLISHED

APPENDIX

BIBLIOGRAPHICAL NOTE

NOTES ON THE PORTRAITS OF THE MEMBERS OF THE FEDERAL CONVENTION
FATHERS OF THE CONSTITUTION




CHAPTER I. THE TREATY OF PEACE

"The United States of America"! It was in the Declaration of
Independence that this name was first and formally proclaimed to the
world, and to maintain its verity the war of the Revolution was fought.
Americans like to think that they were then assuming "among the Powers
of the Earth the equal and independent Station to which the Laws
of Nature and of Nature's God entitle them"; and, in view of their
subsequent marvelous development, they are inclined to add that it must
have been before an expectant world.

In these days of prosperity and national greatness it is hard to realize
that the achievement of independence did not place the United States on
a footing of equality with other countries and that, in fact, the new
state was more or less an unwelcome member of the world family. It is
nevertheless true that the latest comer into the family of nations
did not for a long time command the respect of the world. This lack
of respect was partly due to the character of the American population.
Along with the many estimable and excellent people who had come to
British North America inspired by the best of motives, there had come
others who were not regarded favorably by the governing classes of
Europe. Discontent is frequently a healthful sign and a forerunner of
progress, but it makes one an uncomfortable neighbor in a satisfied and
conservative community; and discontent was the underlying factor in
the migration from the Old World to the New. In any composite immigrant
population such as that of the United States there was bound to be a
large element of undesirables. Among those who came "for conscience's
sake" were the best type of religious protestants, but there were also
religious cranks from many countries, of almost every conceivable sect
and of no sect at all. Many of the newcomers were poor. It was common,
too, to regard colonies as inferior places of residence to which
objectionable persons might be encouraged to go and where the average
of the population was lowered by the influx of convicts and thousands of
slaves.

"The great number of emigrants from Europe" - wrote Thieriot, Saxon
Commissioner of Commerce to America, from Philadelphia in 1784 - "has
filled this place with worthless persons to such a degree that scarcely
a day passes without theft, robbery, or even assassination."* It would
perhaps be too much to say that the people of the United States were
looked upon by the rest of the world as only half civilized, but
certainly they were regarded as of lower social standing and of inferior
quality, and many of them were known to be rough, uncultured, and
ignorant. Great Britain and Germany maintained American missionary
societies, not, as might perhaps be expected, for the benefit of the
Indian or negro, but for the poor, benighted colonists themselves; and
Great Britain refused to commission a minister to her former colonies
for nearly ten years after their independence had been recognized.

* Quoted by W. E. Lingelbach, "History Teacher's Magazine,"
March, 1913.


It is usually thought that the dregs of humiliation have been reached
when the rights of foreigners are not considered safe in a particular
country, so that another state insists upon establishing therein its own
tribunal for the trial of its citizens or subjects. Yet that is what the
French insisted upon in the United States, and they were supposed to be
especially friendly. They had had their own experience in America.
First the native Indian had appealed to their imagination. Then, at
an appropriate moment, they seemed to see in the Americans a living
embodiment of the philosophical theories of the time: they thought that
they had at last found "the natural man" of Rousseau and Voltaire;
they believed that they saw the social contract theory being worked
out before their very eyes. Nevertheless, in spite of this interest in
Americans, the French looked upon them as an inferior people over whom
they would have liked to exercise a sort of protectorate. To them the
Americans seemed to lack a proper knowledge of the amenities of life.
Commissioner Thieriot, describing the administration of justice in the
new republic, noticed that: "A Frenchman, with the prejudices of his
country and accustomed to court sessions in which the officers have
imposing robes and a uniform that makes it impossible to recognize
them, smiles at seeing in the court room men dressed in street clothes,
simple, often quite common. He is astonished to see the public enter and
leave the court room freely, those who prefer even keeping their hats
on." Later he adds: "It appears that the court of France wished to set
up a jurisdiction of its own on this continent for all matters involving
French subjects." France failed in this; but at the very time that
peace was under discussion Congress authorized Franklin to negotiate a
consular convention, ratified a few years later, according to which the
citizens of the United States and the subjects of the French King in
the country of the other should be tried by their respective consuls or
vice-consuls. Though this agreement was made reciprocal in its terms and
so saved appearances for the honor of the new nation, nevertheless
in submitting it to Congress John Jay clearly pointed out that it was
reciprocal in name rather than in substance, as there were few or no
Americans in France but an increasing number of Frenchmen in the United
States.

Such was the status of the new republic in the family of nations when
the time approached for the negotiation of a treaty of peace with the
mother country. The war really ended with the surrender of Cornwallis
at Yorktown in 1781. Yet even then the British were unwilling to concede
the independence of the revolted colonies. This refusal of recognition
was not merely a matter of pride; a division and a consequent weakening
of the empire was involved; to avoid this Great Britain seems to have
been willing to make any other concessions that were necessary. The
mother country sought to avoid disruption at all costs. But the time had
passed when any such adjustment might have been possible. The Americans
now flatly refused to treat of peace upon any footing except that of
independent equality. The British, being in no position to continue the
struggle, were obliged to yield and to declare in the first article of
the treaty of peace that "His Britannic Majesty acknowledges the said
United States... to be free, sovereign, and independent states."

With France the relationship of the United States was clear and friendly
enough at the time. The American War of Independence had been brought
to a successful issue with the aid of France. In the treaty of alliance
which had been signed in 1781 had been agreed that neither France nor
the United States should, without the consent of the other, make peace
with Great Britain. More than that, in 1781, partly out of gratitude but
largely as a result of clever manipulation of factions in Congress by
the French Minister in Philadelphia, the Chevalier de la Luzerne, the
American peace commissioners had been instructed "to make the most
candid and confidential communications upon all subjects to the
ministers of our generous ally, the King of France; to undertake nothing
in the negotiations for peace or truce without their knowledge and
concurrence; and ultimately to govern yourselves by their advice and
opinion."* If France had been actuated only by unselfish motives in
supporting the colonies in their revolt against Great Britain, these
instructions might have been acceptable and even advisable. But such was
not the case. France was working not so much with philanthropic purposes
or for sentimental reasons as for the restoration to her former position
of supremacy in Europe. Revenge upon England was only a part of a larger
plan of national aggrandizement.


* "Secret Journals of Congress." June 15, 1781.


The treaty with France in 1778 had declared that war should be continued
until the independence of the United States had been established, and it
appeared as if that were the main purpose of the alliance. For her
own good reasons France had dragged Spain into the struggle. Spain,
of course, fought to cripple Great Britain and not to help the United
States. In return for this support France was pledged to assist Spain
in obtaining certain additions to her territory. In so far as these
additions related to North America, the interests of Spain and those
of the United States were far from being identical; in fact, they were
frequently in direct opposition. Spain was already in possession of
Louisiana and, by prompt action on her entry into the war in 1780, she
had succeeded in getting control of eastern Louisiana and of practically
all the Floridas except St. Augustine. To consolidate these holdings
and round out her American empire, Spain would have liked to obtain
the title to all the land between the Alleghany Mountains and the
Mississippi. Failing this, however, she seemed to prefer that the region
northwest of the Ohio River should belong to the British rather than to
the United States.

Under these circumstances it was fortunate for the United States that
the American Peace Commissioners were broad-minded enough to appreciate
the situation and to act on their own responsibility. Benjamin Franklin,
although he was not the first to be appointed, was generally considered
to be the chief of the Commission by reason of his age, experience, and
reputation. Over seventy-five years old, he was more universally
known and admired than probably any man of his time. This many-sided
American - printer, almanac maker, writer, scientist, and philosopher - by
the variety of his abilities as well as by the charm of his manner
seemed to have found his real mission in the diplomatic field, where he
could serve his country and at the same time, with credit to himself,
preach his own doctrines.

When Franklin was sent to Europe at the outbreak of the Revolution,
it was as if destiny had intended him for that particular task. His
achievements had already attracted attention; in his fur cap and
eccentric dress "he fulfilled admirably the Parisian ideal of the forest
philosopher"; and with his facility in conversation, as well as by the
attractiveness of his personality, he won both young and old. But, with
his undoubted zeal for liberty and his unquestioned love of country,
Franklin never departed from the Quaker principles he affected and
always tried to avoid a fight. In these efforts, owing to his shrewdness
and his willingness to compromise, he was generally successful.

John Adams, being then the American representative at The Hague, was the
first Commissioner to be appointed. Indeed, when he was first named, in
1779, he was to be sole commissioner to negotiate peace; and it was the
influential French Minister to the United States who was responsible for
others being added to the commission. Adams was a sturdy New Englander
of British stock and of a distinctly English type - medium height, a
stout figure, and a ruddy face. No one questioned his honesty, his
straightforwardness, or his lack of tact. Being a man of strong mind,
of wide reading and even great learning, and having serene confidence in
the purity of his motives as well as in the soundness of his judgment,
Adams was little inclined to surrender his own views, and was ready
to carry out his ideas against every obstacle. By nature as well as by
training he seems to have been incapable of understanding the French; he
was suspicious of them and he disapproved of Franklin's popularity even
as he did of his personality.

Five Commissioners in all were named, but Thomas Jefferson and Henry
Laurens did not take part in the negotiations, so that the only other
active member was John Jay, then thirty-seven years old and already a
man of prominence in his own country. Of French Huguenot stock and type,
he was tall and slender, with somewhat of a scholar's stoop, and was
usually dressed in black. His manners were gentle and unassuming, but
his face, with its penetrating black eyes, its aquiline nose and pointed
chin, revealed a proud and sensitive disposition. He had been sent to
the court of Spain in 1780, and there he had learned enough to arouse
his suspicious, if nothing more, of Spain's designs as well as of the
French intention to support them.

In the spring of 1782 Adams felt obliged to remain at The Hague in order
to complete the negotiations already successfully begun for a commercial
treaty with the Netherlands. Franklin, thus the only Commissioner on the
ground in Paris, began informal negotiations alone but sent an urgent
call to Jay in Spain, who was convinced of the fruitlessness of his
mission there and promptly responded. Jay's experience in Spain and his
knowledge of Spanish hopes had led him to believe that the French were
not especially concerned about American interests but were in fact
willing to sacrifice them if necessary to placate Spain. He accordingly
insisted that the American Commissioners should disregard their
instructions and, without the knowledge of France, should deal directly
with Great Britain. In this contention he was supported by Adams when
he arrived, but it was hard to persuade Franklin to accept this point
of view, for he was unwilling to believe anything so unworthy of his
admiring and admired French. Nevertheless, with his cautious shrewdness,
he finally yielded so far as to agree to see what might come out of
direct negotiations.

The rest was relatively easy. Of course there were difficulties and such
sharp differences of opinion that, even after long negotiation, some
matters had to be compromised. Some problems, too, were found insoluble
and were finally left without a settlement. But such difficulties as
did exist were slight in comparison with the previous hopelessness of
reconciling American and Spanish ambitions, especially when the latter
were supported by France. On the one hand, the Americans were the
proteges of the French and were expected to give way before the claims
of their patron's friends to an extent which threatened to limit
seriously their growth and development. On the other hand, they were
the younger sons of England, uncivilized by their wilderness life,
ungrateful and rebellious, but still to be treated by England as
children of the blood. In the all-important question of extent of
territory, where Spain and France would have limited the United States
to the east of the Alleghany Mountains, Great Britain was persuaded
without great difficulty, having once conceded independence to the
United States, to yield the boundaries which she herself had formerly
claimed - from the Atlantic Ocean on the east to the Mississippi River
on the west, and from Canada on the north to the southern boundary
of Georgia. Unfortunately the northern line, through ignorance and
carelessness rather than through malice, was left uncertain at various
points and became the subject of almost continuous controversy until the
last bit of it was settled in 1911.*


* See Lord Bryce's Introduction (p. xxiv) to W. A. Dunning.
"The British Empire and the United States" (1914).


The fisheries of the North Atlantic, for which Newfoundland served as
the chief entrepot, had been one of the great assets of North America
from the time of its discovery. They had been one of the chief prizes
at stake in the struggle between the French and the British for the
possession of the continent, and they had been of so much value that
a British statute of 1775 which cut off the New England fisheries was
regarded, even after the "intolerable acts" of the previous year, as the
height of punishment for New England. Many Englishmen would have been
glad to see the Americans excluded from these fisheries, but John Adams,
when he arrived from The Hague, displayed an appreciation of New England
interests and the quality of his temper as well by flatly refusing to
agree to any treaty which did not allow full fishing privileges. The
British accordingly yielded and the Americans were granted fishing
rights as "heretofore" enjoyed. The right of navigation of the
Mississippi River, it was declared in the treaty, should "forever
remain free and open" to both parties; but here Great Britain was simply
passing on to the United States a formal right which she had received
from France and was retaining for herself a similar right which might
sometime prove of use, for as long as Spain held both banks at the mouth
of the Mississippi River, the right was of little practical value.

Two subjects involving the greatest difficulty of arrangement were
the compensation of the Loyalists and the settlement of commercial
indebtedness. The latter was really a question of the payment of British
creditors by American debtors, for there was little on the other side
of the balance sheet, and it seems as if the frugal Franklin would have
preferred to make no concessions and would have allowed creditors to
take their own chances of getting paid. But the matter appeared to
Adams in a different light - perhaps his New England conscience was
aroused - and in this point of view he was supported by Jay. It was
therefore finally agreed "that creditors on either side shall meet
with no lawful impediment to the recovery of the full value in sterling
money, of all bona fide debts heretofore contracted." However just this
provision may have been, its incorporation in the terms of the treaty
was a mistake on the part of the Commissioners, because the Government
of the United States had no power to give effect to such an arrangement,
so that the provision had no more value than an emphatic expression of
opinion. Accordingly, when some of the States later disregarded this
part of the treaty, the British had an excuse for refusing to carry out
certain of their own obligations.

The historian of the Virginia Federal Convention of 1788, H. B. Grigsby,
relates an amusing incident growing out of the controversy over the
payment of debts to creditors in England:

"A Scotchman, John Warden, a prominent lawyer and good classical
scholar, but suspected rightly of Tory leanings during the Revolution,
learning of the large minority against the repeal of laws in conflict
with the treaty of 1783 (i. e., especially the laws as to the collection
of debts by foreigners) caustically remarked that some of the members
of the House had voted against paying for the coats on their backs. The
story goes that he was summoned before the House in full session,
and was compelled to beg their pardon on his knees; but as he rose,
pretending to brush the dust from his knees, he pointed to the House and
said audibly, with evident double meaning, 'Upon my word, a dommed dirty
house it is indeed.' The Journal of the House, however, shows that the
honor of the delegates was satisfied by a written assurance from Mr.
Warden that he meant in no way to affront the dignity of the House or to
insult any of its members."

The other question, that of compensating the Loyalists for the loss of
their property, was not so simple a matter, for the whole story of the
Revolution was involved. There is a tendency among many scholars of
the present day to regard the policy of the British toward their
North American colonies as possibly unwise and blundering but as being
entirely in accordance with the legal and constitutional rights of the
mother country, and to believe that the Americans, while they may have
been practically and therefore morally justified in asserting their
independence, were still technically and legally in the wrong. It is
immaterial whether or not that point of view is accepted, for its mere
recognition is sufficient to explain the existence of a large number of
Americans who were steadfast in their support of the British side of the
controversy. Indeed, it has been estimated that as large a proportion
as one-third of the population remained loyal to the Crown. Numbers must
remain more or less uncertain, but probably the majority of the people
in the United States, whatever their feelings may have been, tried to
remain neutral or at least to appear so; and it is undoubtedly true
that the Revolution was accomplished by an aggressive minority and that
perhaps as great a number were actively loyal to Great Britain.

These Loyalists comprised at least two groups. One of these was a
wealthy, property-owning class, representing the best social element in
the colonies, extremely conservative, believing in privilege and
fearing the rise of democracy. The other was composed of the royal
officeholders, which included some of the better families, but was more
largely made up of the lower class of political and social hangers-on,
who had been rewarded with these positions for political debts incurred
in England. The opposition of both groups to the Revolution was
inevitable and easily to be understood, but it was also natural that
the Revolutionists should incline to hold the Loyalists, without
distinction, largely responsible for British pre-Revolutionary policy,
asserting that they misinformed the Government as to conditions and
sentiment in America, partly through stupidity and partly through
selfish interest. It was therefore perfectly comprehensible that the
feeling should be bitter against them in the United States, especially
as they had given efficient aid to the British during the war. In
various States they were subjected to personal violence at the hands of
indignant "patriots," many being forced to flee from their homes, while
their property was destroyed or confiscated, and frequently these acts
were legalized by statute.

The historian of the Loyalists of Massachusetts, James H. Stark, must
not be expected to understate the case, but when he is describing,
especially in New England, the reign of terror which was established to
suppress these people, he writes:

"Loyalists were tarred and feathered and carried on rails, gagged and
bound for days at a time; stoned, fastened in a room with a fire and the
chimney stopped on top; advertised as public enemies, so that they would
be cut off from all dealings with their neighbors; they had bullets
shot into their bedrooms, their horses poisoned or mutilated; money or
valuable plate extorted from them to save them from violence, and on
pretence of taking security for their good behavior; their houses and
ships burned; they were compelled to pay the guards who watched them in
their houses, and when carted about for the mob to stare at and abuse,
they were compelled to pay something at every town."

There is little doubt also that the confiscation of property and the
expulsion of the owners from the community were helped on by people who
were debtors to the Loyalists and in this way saw a chance of
escaping from the payment of their rightful obligations. The "Act for
confiscating the estates of certain persons commonly called absentees"
may have been a measure of self-defense for the State but it was passed
by the votes of those who undoubtedly profited by its provisions.

Those who had stood loyally by the Crown must in turn be looked out for
by the British Government, especially when the claims of justice were
reinforced by the important consideration that many of those with
property and financial interests in America were relatives of
influential persons in England. The immediate necessity during the war
had been partially met by assisting thousands to go to Canada - where
their descendants today form an important element in the population and
are proud of being United Empire Loyalists - while pensions and gifts
were supplied to others. Now that the war was over the British were
determined that Americans should make good to the Loyalists for all that


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