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having, by the advice of Jesuits, and other wicked persons, violated
the fundamental Laws, and withdrawn himself out of this Kingdom, has
abdicated the Government, and that the throne is hereby vacant."
These theories were developed by Jean Jacques Rousseau in his "Contrat
Social" - a book so attractively written that it eclipsed all other works
upon the subject and resulted in his being regarded as the author of the
doctrine - and through him they spread all over Europe.

Conditions in America did more than lend color to pale speculation; they
seemed to take this hypothesis out of the realm of theory and to give it
practical application. What happened when men went into the wilderness
to live? The Pilgrim Fathers on board the Mayflower entered into an
agreement which was signed by the heads of families who took part in the
enterprise: "We, whose names are underwritten... Do by these presents,
solemnly and mutually, in the Presence of God and one another, covenant
and combine ourselves together into a civil Body Politick."

Other colonies, especially in New England, with this example before
them of a social contract entered into similar compacts or "plantation
covenants," as they were called. But the colonists were also accustomed
to having written charters granted which continued for a time at least
to mark the extent of governmental powers. Through this intermingling
of theory and practice it was the most natural thing in the world, when
Americans came to form their new State Governments, that they should
provide written instruments framed by their own representatives,
which not only bound them to be governed in this way but also placed
limitations upon the governing bodies. As the first great series
of written constitutions, these frames of government attracted wide
attention. Congress printed a set for general distribution, and numerous
editions were circulated both at home and abroad.

The constitutions were brief documents, varying from one thousand to
twelve thousand words in length, which established the framework of the
governmental machinery. Most of them, before proceeding to practical
working details, enunciated a series of general principles upon the
subject of government and political morality in what were called
declarations or bills of rights. The character of these declarations may
be gathered from the following excerpts:

"That all men are by nature equally free and independent, and have
certain inherent rights,... the enjoyment of life and liberty, with the
means of acquiring and possessing property, and pursuing and obtaining
happiness and safety. That no man, or set of men, are entitled to
exclusive or separate emoluments or privileges from the community, but
in consideration of public services.

"The body politic is formed by a voluntary association of individuals;
it is a social compact by which the whole people covenants with each
citizen and each citizen with the whole people that all shall be
governed by certain laws for the common good.

"That all power of suspending laws, or the execution of laws, by any
authority, without consent of the representatives of the people, is
injurious to their rights, and ought not to be exercised.

"That general warrants,... are grievous and oppressive, and ought not to
be granted.

"All penalties ought to be proportioned to the nature of the offence.

"That sanguinary laws ought to be avoided, as far as is consistent with
the safety of the State; and no law, to inflict cruel and unusual pains
and penalties, ought to be made in any case, or at any time hereafter.

"No magistrate or court of law shall demand excessive bail or sureties,
impose excessive fines....

"Every individual has a natural and unalienable right to worship God
according to the dictates of his own conscience, and reason; ...

"That the freedom of the press is one of the great bulwarks of liberty,
and can never be restrained but by despotic governments."

It will be perceived at once that these are but variations of the
English Declaration of Rights of 1689, which indeed was consciously
followed as a model; and yet there is a world-wide difference between
the English model and these American copies. The earlier document
enunciated the rights of English subjects, the recent infringement of
which made it desirable that they should be reasserted in convincing
form. The American documents asserted rights which the colonists
generally had enjoyed and which they declared to be "governing
principles for all peoples in all future times."

But the greater significance of these State Constitutions is to be found
in their quality as working instruments of government. There was
indeed little difference between the old colonial and the new State
Governments. The inhabitants of each of the Thirteen States had been
accustomed to a large measure of self-government, and when they took
matters into their own hands they were not disposed to make any radical
changes in the forms to which they had become accustomed. Accordingly
the State Governments that were adopted simply continued a framework of
government almost identical with that of colonial times. To be sure, the
Governor and other appointed officials were now elected either by the
people or the legislature, and so were ultimately responsible to the
electors instead of to the Crown; and other changes were made which in
the long run might prove of far-reaching and even of vital significance;
and yet the machinery of government seemed the same as that to which
the people were already accustomed. The average man was conscious of no
difference at all in the working of the Government under the new order.
In fact, in Connecticut and Rhode Island, the most democratic of all
the colonies, where the people had been privileged to elect their own
governors, as well as legislatures, no change whatever was necessary and
the old charters were continued as State Constitutions down to 1818 and
1842, respectively.

To one who has been accustomed to believe that the separation from a
monarchical government meant the establishment of democracy, a reading
of these first State Constitutions is likely to cause a rude shock.
A shrewd English observer, traveling a generation later in the United
States, went to the root of the whole matter in remarking of the
Americans that, "When their independence was achieved their mental
condition was not instantly changed. Their deference for rank and for
judicial and legislative authority continued nearly unimpaired."* They
might declare that "all men are created equal," and bills of rights
might assert that government rested upon the consent of the governed;
but these constitutions carefully provided that such consent should
come from property owners, and, in many of the States, from religious
believers and even followers of the Christian faith. "The man of small
means might vote, but none save well-to-do Christians could legislate,
and in many states none but a rich Christian could be a governor."** In
South Carolina, for example, a freehold of 10,000 pounds currency was
required of the Governor, Lieutenant Governor, and members of A he
Council; 2,000 pounds of the members of the Senate; and, while every
elector was eligible to the House of Representatives, he had to
acknowledge the being of a God and to believe in a future state of
rewards and punishments, as well as to hold "a freehold at least of
fifty acres of land, or a town lot."


* George Combe, "Tour of the United States," vol. I, p. 205.


** McMaster, "Acquisition of Industrial, Popular, and Political
Rights of Man in America," p. 20.


It was government by a property-owning class, but in comparison with
other countries this class represented a fairly large and increasing
proportion of the population. In America the opportunity of becoming a
property-owner was open to every one, or, as that phrase would then
have been understood, to most white men. This system of class control is
illustrated by the fact that, with the exception of Massachusetts, the
new State Constitutions were never submitted to the people for approval.

The democratic sympathizer of today is inclined to point to those
first State Governments as a continuance of the old order. But to the
conservative of that time it seemed as if radical and revolutionary
changes were taking place. The bills of rights declared, "That no men,
or set of men, are entitled to exclusive or separate emoluments or
privileges from the community, but in consideration of public services."
Property qualifications and other restrictions on officeholding and the
exercise of the suffrage were lessened. Four States declared in their
constitutions against the entailment of estates, and primogeniture
was abolished in aristocratic Virginia. There was a fairly complete
abolition of all vestiges of feudal tenure in the holding of land, so
that it may be said that in this period full ownership of property was
established. The further separation of church and state was also carried
out.

Certainly leveling influences were at work, and the people as a whole
had moved one step farther in the direction of equality and democracy,
and it was well that the Revolution was not any more radical and
revolutionary than it was. The change was gradual and therefore more
lasting. One finds readily enough contemporary statements to the effect
that, "Although there are no nobles in America, there is a class of men
denominated 'gentlemen,' who, by reason of their wealth, their talents,
their education, their families, or the offices they hold, aspire to a
preeminence," but, the same observer adds, this is something which
"the people refuse to grant them." Another contemporary contributes the
observation that there was not so much respect paid to gentlemen of rank
as there should be, and that the lower orders of people behave as if
they were on a footing of equality with them.

Whether the State Constitutions are to be regarded as
property-conserving, aristocratic instruments, or as progressive
documents, depends upon the point of view. And so it is with the spirit
of union or of nationality in the United States. One student emphasizes
the fact of there being "thirteen independent republics differing...
widely in climate, in soil, in occupation, in everything which makes
up the social and economic life of the people"; while another sees "the
United States a nation." There is something to be said for both sides,
and doubtless the truth lies between them, for there were forces making
for disintegration as well as for unification. To the student of the
present day, however, the latter seem to have been the stronger and more
important, although the possibility was never absent that the thirteen
States would go their separate ways.

There are few things so potent as a common danger to bring discordant
elements into working harmony. Several times in the century and a half
of their existence, when the colonies found themselves threatened by
their enemies, they had united, or at least made an effort to unite,
for mutual help. The New England Confederation of 1643 was organized
primarily for protection against the Indians and incidentally against
the Dutch and French. Whenever trouble threatened with any of the
European powers or with the Indians - and that was frequently - a plan
would be broached for getting the colonies to combine their efforts,
sometimes for the immediate necessity and sometimes for a broader
purpose. The best known of these plans was that presented to the Albany
Congress of 1754, which had been called to make effective preparation
for the inevitable struggle with the French and Indians. The beginning
of the troubles which culminated in the final breach with Great Britain
had quickly brought united action in the form of the Stamp Act
Congress of 1765, in the Committees of Correspondence, and then in the
Continental Congress.

It was not merely that the leaven of the Revolution was already working
to bring about the freer interchange of ideas; instinct and experience
led the colonies to united action. The very day that the Continental
Congress appointed a committee to frame a declaration of independence,
another committee was ordered to prepare articles of union. A month
later, as soon as the Declaration of Independence had been adopted, this
second committee, of which John Dickinson of Pennsylvania was chairman,
presented to Congress a report in the form of Articles of Confederation.
Although the outbreak of fighting made some sort of united action
imperative, this plan of union was subjected to debate intermittently
for over sixteen months and even after being adopted by Congress, toward
the end of 1777, it was not ratified by the States until March, 1781,
when the war was already drawing to a close. The exigencies of the hour
forced Congress, without any authorization, to act as if it had been
duly empowered and in general to proceed as if the Confederation had
been formed.

Benjamin Franklin was an enthusiast for union. It was he who had
submitted the plan of union to the Albany Congress in 1754, which with
modifications was recommended by that congress for adoption. It provided
for a Grand Council of representatives chosen by the legislature of
each colony, the members to be proportioned to the contribution of
that colony to the American military service. In matters concerning the
colonies as a whole, especially in Indian affairs, the Grand Council was
to be given extensive powers of legislation and taxation. The executive
was to be a President or Governor-General, appointed and paid by the
Crown, with the right of nominating all military officers, and with a
veto upon all acts of the Grand Council. The project was far in advance
of the times and ultimately failed of acceptance, but in 1775, with the
beginning of the troubles with Great Britain, Franklin took his Albany
plan and, after modifying it in accordance with the experience of
twenty years, submitted it to the Continental Congress as a new plan of
government under which the colonies might unite.

Franklin's plan of 1775 seems to have attracted little attention in
America, and possibly it was not generally known; but much was made of
it abroad, where it soon became public, probably in the same way that
other Franklin papers came out. It seems to have been his practice to
make, with his own hand, several copies of such a document, which he
would send to his friends with the statement that as the document in
question was confidential they might not otherwise see a copy of it. Of
course the inevitable happened, and such documents found their war into
print to the apparent surprise and dismay of the author. Incidentally
this practice caused confusion in later years, because each possessor of
such a document would claim that he had the original. Whatever may have
been the procedure in this particular case, it is fairly evident that
Dickinson's committee took Franklin's plan of 1775 as the starting
point of its work, and after revision submitted it to Congress as their
report; for some of the most important features of the Articles of
Confederation are to be found, sometimes word for word, in Franklin's
draft.

This explanation of the origin of the Articles of Confederation is
helpful and perhaps essential in understanding the form of government
established, because that government in its main features had been
devised for an entirely different condition of affairs, when a strong,
centralized government would not have been accepted even if it had
been wanted. It provided for a "league of friendship," with the primary
purpose of considering preparation for action rather than of taking the
initiative. Furthermore, the final stages of drafting the Articles of
Confederation had occurred at the outbreak of the war, when the people
of the various States were showing a disposition to follow readily
suggestions that came from those whom they could trust and when they
seemed to be willing to submit without compulsion to orders from the
same source. These circumstances, quite as much as the inexperience of
Congress and the jealousy of the States, account for the inefficient
form of government which was devised; and inefficient the Confederation
certainly was. The only organ of government was a Congress in which
every State was entitled to one vote and was represented by a delegation
whose members were appointed annually as the legislature of the State
might direct, whose expenses were paid by the State, and who were
subject to recall. In other words, it was a council of States whose
representatives had little incentive to independence of action.

Extensive powers were granted to this Congress "of determining on peace
and war,... of entering into treaties and alliances," of maintaining an
army and a navy, of establishing post offices, of coining money, and
of making requisitions upon the States for their respective share of
expenses "incurred for the common defence or general welfare." But none
of these powers could be exercised without the consent of nine States,
which was equivalent to requiring a two-thirds vote, and even when such
a vote had been obtained and a decision had been reached, there
was nothing to compel the individual States to obey beyond the mere
declaration in the Articles of Confederation that, "Every State shall
abide by the determinations of the United States in Congress assembled."

No executive was provided for except that Congress was authorized "to
appoint such other committees and civil officers as may be necessary
for managing the general affairs of the United States under their
direction." In judicial matters, Congress was to serve as "the last
resort on appeal in all disputes and differences" between States; and
Congress might establish courts for the trial of piracy and felonies
committed on the high seas and for determining appeals in cases of prize
capture.

The plan of a government was there but it lacked any driving force.
Congress might declare war but the States might decline to participate
in it; Congress might enter into treaties but it could not make the
States live up to them; Congress might borrow money but it could not be
sure of repaying it; and Congress might decide disputes without being
able to make the parties accept the decision. The pressure of necessity
might keep the States together for a time, yet there is no disguising
the fact that the Articles of Confederation formed nothing more than a
gentlemen's agreement.



CHAPTER IV. THE NORTHWEST ORDINANCE

The population of the United States was like a body of water that was
being steadily enlarged by internal springs and external tributaries. It
was augmented both from within and from without, from natural increase
and from immigration. It had spread over the whole coast from Maine to
Georgia and slowly back into the interior, at first along the lines of
river communication and then gradually filling up the spaces between
until the larger part of the available land east of the Alleghany
Mountains was settled. There the stream was checked as if dammed by the
mountain barrier, but the population was trickling through wherever it
could find an opening, slowly wearing channels, until finally, when the
obstacles were overcome, it broke through with a rush.

Twenty years before the Revolution the expanding population had reached
the mountains and was ready to go beyond. The difficulty of crossing the
mountains was not insuperable, but the French and Indian War, followed
by Pontiac's Conspiracy, made outlying frontier settlement dangerous if
not impossible. The arbitrary restriction of western settlement by the
Proclamation of 1763 did not stop the more adventurous but did hold back
the mass of the population until near the time of the Revolution, when
a few bands of settlers moved into Kentucky and Tennessee and rendered
important but inconspicuous service in the fighting. But so long as
the title to that territory was in doubt no considerable body of people
would move into it, and it was not until the Treaty of Peace in 1783
determined that the western country as far as the Mississippi River was
to belong to the United States that the dammed-up population broke over
the mountains in a veritable flood.

The western country and its people presented no easy problem to the
United States: how to hold those people when the pull was strong to draw
them from the Union; how to govern citizens so widely separated from the
older communities; and, of most immediate importance, how to hold the
land itself. It was, indeed, the question of the ownership of the land
beyond the mountains which delayed the ratification of the Articles of
Confederation. Some of the States, by right of their colonial charter
grants "from sea to sea," were claiming large parts of the western
region. Other States, whose boundaries were fixed, could put forward
no such claims; and, as they were therefore limited in their area
of expansion, they were fearful lest in the future they should be
overbalanced by those States which might obtain extensive property in
the West. It was maintained that the Proclamation of 1763 had changed
this western territory into "Crown lands," and as, by the Treaty of
Peace, the title had passed to the United States, the non-claimant
States had demanded in self-defense that the western land should belong
to the country as a whole and not to the individual States. Rhode
Island, Maryland, and Delaware were most seriously affected, and they
were insistent upon this point. Rhode Island and at length Delaware gave
in, so that by February, 1779, Maryland alone held out. In May of
that year the instructions of Maryland to her delegates were read in
Congress, positively forbidding them to ratify the plan of union unless
they should receive definite assurances that the western country would
become the common property of the United States. As the consent of
all of the Thirteen States was necessary to the establishment of the
Confederation, this refusal of Maryland brought matters to a crisis.
The question was eagerly discussed, and early in 1780 the deadlock was
broken by the action of New York in authorizing her representatives to
cede her entire claim in western lands to the United States.

It matters little that the claim of New York was not as good as that
of some of the other States, especially that of Virginia. The whole
situation was changed. It was no longer necessary for Maryland to
defend her position; but the claimant States were compelled to justify
themselves before the country for not following New York's example.
Congress wisely refrained from any assertion of jurisdiction, and only
urgently recommended that States having claims to western lands should
cede them in order that the one obstacle to the final ratification of
the Articles of Confederation might be removed.

Without much question Virginia's claim was the strongest; but the
pressure was too great even for her, and she finally yielded, ceding to
the United States, upon certain conditions, all her lands northwest of
the Ohio River. Then the Maryland delegates were empowered to ratify the
Articles of Confederation. This was early in 1781, and in a very short
time the other States had followed the example of New York and Virginia.
Certain of the conditions imposed by Virginia were not acceptable to
Congress, and three years later, upon specific request, that State
withdrew the objectionable conditions and made the cession absolute.

The territory thus ceded, north and west of the Ohio River, constituted
the public domain. Its boundaries were somewhat indefinite, but
subsequent surveys confirmed the rough estimate that it contained from
one to two hundred millions of acres. It was supposed to be worth, on
the average, about a dollar an acre, which would make this property an
asset sufficient to meet the debts of the war and to leave a balance
for the running expenses of the Government. It thereby became one of the
strong bonds holding the Union together.

"Land!" was the first cry of the storm-tossed mariners of Columbus. For
three centuries the leading fact of American history has been that soon
after 1600 a body of Europeans, mostly Englishmen, settled on the edge
of the greatest piece of unoccupied agricultural land in the temperate
zone, and proceeded to subdue it to the uses of man. For three centuries
the chief task of American mankind has been to go up westward against
the land and to possess it. Our wars, our independence, our state
building, our political democracy, our plasticity with respect to


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Online LibraryMax FarrandThe Fathers of the Constitution; a chronicle of the establishment of the Union → online text (page 3 of 13)