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A Constitutional History of the United States
Chapter XIII - The Tribulations of the Confederate Period. The Chief Problem of the Time
by McLaughlin, Andrew C.
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The vicissitudes of the years from the adoption of the Articles to the
formation of the federal Constitution deserve more attention than can be given
in these pages. Almost everything points in only one direction — toward
the need of a competent central government and the necessity of finding a
system of union which could maintain itself. Elaborate presentation of details
is therefore for our purposes not required. The whole story is one of gradually
increasing ineptitude; of a central government which could less and less
function as it was supposed to function; of a general system which was creaking
in every joint and beginning to hobble at every step. The men who came to
Philadelphia in the spring of 1787 had learned the lessons taught by the
failings of the Confederation.
One source of the difficulty was the Revolution itself. For the
Revolution involved war; it started as a revolt against authority. It had
deeply affected the old social order, and although, as we have pointed out, the
philosophy on which the movement was founded had within it elements of
stability and sobriety, the war left, as war always does, the combatants in a
state of mental disquietude; social and economic foundations had been shaken;
the full hopes of the conflict could not in the twinkling of an eye be gathered
into reality. If a war is fought for liberty, why is it necessary to forge
chains of perpetual union and obedience to government? Tom Paine's philosophy,
which was permeated by the real spirit of real revolution, had gone beyond the
limits of the older doctrines on which the social and political order was
supposed to rest; for that ardent propagandist was not fond of picturing the
state of nature as a place from which men had emerged for their own greater
comfort and security; if his most widely trumpeted sayings are to be taken at
their face value, all things which had grown up since the age of primeval bliss
and serenity could have no real sanction for their existence, not even the
sanction and support of time — "Government like dress, is the badge of
lost innocence; the palaces of kings are built on the ruins of the bowers of
paradise." Just how far this new state of nature and all the emanations of this
tragic philosophy influenced the average man of those days, no one can say; but
their presence is plain enough.
Furthermore, there was the age-old feeling that government is inevitably
the enemy of man and not his servant. We cannot neglect the effect of the long
struggle in history to curb government lest it act the tyrant. Government in
America was not as yet securely in the hands of the people-at-large (if there
be any such security anywhere at any time), but a long step forward had been
taken. "It takes time", however, as John Jay remarked, "to make sovereigns of
subjects" — a wise saying. It took time for the people to realize that the
government was their own.
Interstate jealousy did not fail to add to the complexities of the
situation.[1] The contest for local rights under the old imperial
system had strengthened the sense of state reality; men were conscious of their
states; the states were in a sense their own creation. It was difficult, after
the strain of war had gone, to feel acutely the reality of America and the
dependence of its members one upon another; and as the days went by
disorganization rather than integration seemed to be gathering headway, until
the more serious patriots and watchers of the night feared for the safety of
their country. States with commodious harbors had an advantage over their
neighbors, and they did not shrink from using it. Madison, speaking of this
condition, declared that at one time "New Jersey, placed between
Phila . & N. York, was likened to a Cask tapped at both ends:
and N. Carolina between Virga . & S. Carolina to a patient
bleeding at both Arms." [2] The experience of those years brought
clearly home to thinking men the need of some general regulation of
commerce.
The industrial and commercial conditions after the war were in
considerable confusion. Readjustments were necessary, especially for the
resuscitation of the New England shipping industry. Some improvement came
fairly quickly, and there is evidence that by 1786 the clouds of depression
were beginning to lift. But it was hard to make much headway, especially as
Britain was not ready to treat her former colonies as if they deserved
particular favors or consideration; they had made their own beds, now let them
lie there — a condition of retirement not suited to the restless spirit of
the New England skippers whose ships were soon plowing the seas, even on to the
Orient as well as to the ports of continental Europe. Commercial treaties were
desirable, and some steps were taken in that direction; but it was hard to do
anything effectively as long as the individual states could not be relied on to
fulfill their obligations. Foreign nations naturally queried whether America
was one or many, or, perhaps, one to-day and thirteen to-morrow.
The treaty of peace was not carried out. Britain still held the western
posts from Lake Champlain to Mackinaw and thus retained control of the northern
fur trade and influence over the Indians. Spain holding the mouth of the
Mississippi was unwilling to allow free navigation through her territory.
Trouble was brewing because of American treatment of the loyalists and because
the stipulation in the treaty, that there should be no lawful impediment to the
collection of debts due British creditors, received no particular attention.
John Jay declared in 1786 that the treaty had been constantly violated by one
state or another from the time of its signing and ratification. The Barbary
powers, eager to take advantage of a helpless country, to seize American
seamen, and to hold them for ransom, entered upon the game with lusty vigor. A
nation which was not yet a nation in terms of law and political authority could
do nothing to resist scorn and humiliation.
The pivotal problem, the immediate and unrelenting problem, was how to
get revenue for the pressing needs of the Confederation. Financial affairs were
in a pitiful shape and conditions daily grew worse. At the end of active
hostilities the situation was bad enough. "Imagine", wrote Robert Morris who
had charge of the newly-created office of superintendent of finance, "the
situation of a man who is to direct the finances of a country almost without
revenue (for such you will perceive this to be) surrounded by creditors whose
distresses, while they increase their clamors, render it more difficult to
appease them; an army ready to disband or mutiny; a government whose sole
authority consists in the power of framing recommendations." [3]
Conditions did not improve; gloom deepened into darkness. The continental paper
money ere long became a joke; and the returns from requisitions upon the states
soon were lamentably inadequate. A committee of Congress reported in 1786 that
the amount received in fourteen months was not sufficient for the "bare
maintenance of the federal government on the most economical establishment, and
in time of profound peace." [4] The sums due for interest on the
domestic and foreign debts were piling up to staggering heights and even the
principal of the debts — for, strange as it may seem, Congress had
succeeded in borrowing — was increasing ominously. Morris had by this time
resigned; he did not wish to be a "minister of injustice." Congress was at its
wit's end. "... the crisis has arrived," a committee announced, "when the
people of these United States, by whose will, and for whose benefit the federal
government was instituted, must decide whether they will support their rank as
a nation, by maintaining the public faith at home and abroad; or whether, for
want of a timely exertion in establishing a general revenue, and thereby giving
strength to the confederacy, they will hazard not only the existence of the
union, but of those great and invaluable privileges for which they have so
arduously and so honourably contended."[5]
At the very beginning, indeed before the Articles had been signed by the
delegates from Maryland, Congress submitted to the states an amendment
(February 3, 1781) vesting in Congress a power to levy a duty of five per cent.
on imported goods, with a few exceptions, and a like duty on "prizes and prize
goods". The monies arising from the duties were to be used for discharging the
principal and interest of the public debts. The amendment was not adopted, one
state, Rhode Island, failing to ratify. Two years later a similar attempt to
obtain revenue was made. In an amendment proposed at this time, certain
commodities were designated with various rates of duties; on all other goods a
five per cent. duty was provided for; the proceeds were to be applied to the
discharge of the debts, but the duties were not to be continued for more than
twenty-five years. The states were also recommended to take steps for
appropriating annually for a like term of years the sum of $1,500,000, the
amount to be apportioned among the states. This amendment met the same fate as
its predecessor.
In 1784, an amendment was submitted to the states which, if it had been
ratified, would have given Congress certain powers over the regulation or
restraint of foreign commerce. "Unless the United States in Congress
assembled", it was declared, "shall be vested with powers competent to the
protection of commerce, they can never command reciprocal advantages in trade;
and without these our foreign commerce must decline & eventually be
annihilated...." The amendment was ratified by only two states.
Within the individual states, paper money added to the confusion and
made recovery of economic stability difficult. Some of the states refused to be
drawn down into the whirlpool; but seven of the thirteen had entered upon the
scheme. The wise and proper way to get out of debt was to resort to the
printing-press; for what forsooth did free government exist? "Choose such men",
said one voice crying from the wilderness of poverty and debt, "as will make a
bank of paper money, big enough to pay all our debts, which will sink itself
(that will be so much clear gain to the state)".[6] Without
question, the debtor was in a bad way; but associated with this sort of appeal
for relief were all the uneasy spirits whose attitudes of mind, when minds they
used, were inimical to steady economic well-being and to stable and competent
government. Whether one approves or disapproves the content and the agitation
of the whole controversy, the fact remains that conditions were fraught with
peril, a peril enhanced by the poverty of debtors and by the mental and
spiritual disquietude which, as we all know, are the fruits of war and the
companions of the ensuing peace.
Social unrest passed beyond the grumbling stage in Massachusetts where
Shays's rebellion broke out and aroused the anxieties of the conservatives from
one end of the continent to the other. Its chiefest interest to us lies in the
fact that it unquestionably had the effect of prompting men of mind as well as
men of property to strengthen the union and to create self-respecting
government. "There are combustibles in every State," Washington wrote in 1786,
"which a spark might set fire to." "Good God!" he exclaimed, lamenting the
disorder, "Who, besides a Tory, could have foreseen, or a Briton predicted
them?" John Marshall, writing to James Wilkinson early in 1787, said, "I fear,
and there is no opinion more degrading to the dignity of man, that these have
truth on their side who say that man is incapable of governing himself. I fear
we may live to see another revolution." [7]
After this hurried view of the conditions during the so-called "critical
period", we may now turn to a consideration of the political system to discover
what the leaders of the time believed to be the trouble and especially to see
what remedies they proposed. We have already seen that Congress had proposed
amendments to the Articles authorizing the collection of customs duties to be
used by Congress for defraying the debts of the union, and we have seen that in
each case the amendment failed of ratification. These proposals showed the
necessity of congressional income, not dependent on state caprice; a
conspicuous defect in the Articles was the absence of congressional authority
to obtain necessary funds; the old trouble of the taxing power in an imperial
system remained. At sundry times the rights and authority of Congress and the
character of the Confederation were discussed in Congress and beyond its doors.
The proposals and announcements disclose the compelling nature of a serious
problem and they bring before us the question of national existence as that
question appeared to leading statesmen of the time.[8]
Almost immediately after Maryland's delegates had signed the Articles, a
committee of Congress reported that by article thirteen a general and implied
power was vested in Congress to carry all the Articles into effect against any
state refusing or neglecting to abide by them; that no particular provision had
been made for that purpose, and that therefore an amendment should be added
fully authorizing Congress to use "the force of the United States" to compel a
"State or States to fulfil their federal engagements...." At that early date
the need of compulsion was seen by a congressional committee including James
Madison who presented the report. This report, sent to a grand committee,
resulted in a full presentation (August 22, 1781) of what were believed to be
requisites for "execution" of the Confederation; it was also recommended that
certain additional powers should be given to Congress, notably the authority
"To distrain the property of a state delinquent in its assigned proportion of
men and money." Thus again, the central problem of imperial organization —
how to secure supplies for the maintenance of the system — came up for
solution, and the proposed solution was the use of force, or at least the
seizure of property. These proposed amendments were not presented to the states
for ratification.
Men interested in public affairs were actively discussing the nature and
the defects of the union. Pelatiah Webster, an able publicist, issued A
Dissertation on the Political Union and Constitution of the Thirteen United
States in which he pointed out the necessity of vesting the power of
taxation in what he called "The supreme authority"; this authority should have
sufficient power to enforce obedience to treaties and alliances. "No laws of
any State whatever," he declared, "which do not carry in them a force which
extends to their effectual and final execution, can afford a certain or
sufficient security to the subject". With this in mind, he proposed naively
that every person, "whether in public or private character, who shall, by
public vote or other overt act, disobey the supreme authority, shall be
amendable [sic] to Congress," and shall be haled before that body to be
fined or imprisoned, "on due conviction".[9] Hamilton in 1783
drafted resolutions "Intended to be submitted to Congress, but abandoned for
want of support." He enumerated at length the defects of the Confederation, and
made a severe arraignment of the system. The first defect consisted in
"confining the power of the Federal Government within too narrow limits". The
whole discussion or criticism is extremely interesting to anyone wishing to
study the nature of Hamilton's political thinking as well as the critical
problem of the time. He plainly objected not only to the inconsistencies of the
Articles, but to the impracticability of their effective operation. In 1785,
Noah Webster, in his Sketches of American Policy, announced a doctrine
which by that time must have been fairly familiar, at least to those willing to
think: "... in all the affairs that respect the whole, Congress must have the
same power to enact laws and compel obedience throughout the continent, as the
legislatures of the several states have in their respective jurisdictions."
[10]
Of most significance, however, is the report (August, 1786) of a grand
committee of Congress of which Charles Pinckney of South Carolina was
chairman.[11] It is important because Pinckney was an influential
member of the Convention which met a few months later and drew up the
Constitution of the United States. Early in 1786 Congress, in the manifesto
mentioned on a previous page, had in a most solemn manner exposed the
deplorable and perilous condition of the union. "Oh! my country!" said Jeremy
Belknap, "To what an alarming situation are we reduced, that Congress must say
to us, as Joshua did to Israel, 'Behold, I set before you life and death.' "
[12]
The report of the committee is a sad commentary on the moribund
Confederation, for if the proposed remedies had been administered, the result
might well have been sudden demise in the place of lingering death. Congress
was to be given the power to regulate interstate and foreign trade, with the
consent of nine states, and the power of levying additional requisitions in the
way of punishment upon any state not promptly complying with requisitions for
men or money. If the delinquent and disobedient state should persist in its
conduct, while the majority had lived up to their obligations, then Congress
should have power to levy and collect taxes and in the last extremity compel
the local officers in the delinquent state to do their duty; should such a step
prove ineffective, then Congress might itself appoint assessors and collectors.
If there were further opposition to congressional authority, the conduct on the
part of the state should be considered "an open violation of the federal
compact." All this is an exposition of a desperate condition, for the ultimate
remedy must be no remedy at all, but only a solemn declaration that a
disobedient state had broken its promises; and yet the amendments contained
provisions for compulsion upon the states by using every conceivable means of
coercion short of sending troops into the state — if perchance the troops
could be found ready to seize the property of citizens. The committee also
proposed as amendments to the Articles that Congress be granted the power to
institute a federal judiciary and to provide for securing the attendance of
delegates in Congress; if such delegates did not attend, or if they withdrew,
they should under certain circumstances be "proceeded against", provided
punishment should extend no further than disqualifications to be delegates or
to hold any office under the United States or any state.
Nothing could more amply demonstrate the feebleness and distraction of
Congress and the necessity for energetic reform, if the union was to last many
days. The cumbersome methods proposed for getting money, the practical
admission of a continuing and probably inescapable refusal of the states to
comply with reasonable requests to defray the absolutely necessary common
expenses, and above all, the more pitiful suggestion of measures which might
induce members from the states to come to Congress and attend to business, were
a confession of masterly incapacity.
Another source of anxiety was the light-hearted way in which treaties
were regarded by the states. John Jay, the Secretary for Foreign Affairs, on
whose shoulders rested much of the wearying responsibility of the time,
persuaded himself, or tried to, that treaties, when once made, were binding on
the states and were part of the "laws of the land" — a significant
expression. "Your secretary considers the thirteen independent sovereign states
as having, by express delegation of power, formed and vested in Congress a
perfect though limited sovereignty for the general and national purposes
specified in the confederation. In this sovereignty they cannot severally
participate (except by their delegates) or have concurrent jurisdiction....
When therefore a treaty is constitutionally made, ratified and published by
Congress, it immediately becomes binding on the whole nation, and superadded to
the laws of the land, without the intervention, consent or fiat of state
legislatures." [13] In March, 1787, resolutions were passed by
Congress declaring treaties "constitutionally made" were "part of the law of
the land"; the states were called upon to repeal acts violating the treaty with
Britain and to direct the state courts to adjudge cases in accord with the
treaty, "any thing in the ... acts to the contrary ... notwithstanding."
[14]
But what was the very center of the difficulty? What was the chief
problem of the time? The trouble and confusion were manifestly caused by the
failure of the states to abide by their obligations. The problem was to find a
method, if union was to subsist at all, for overcoming the difficulty, to find
therefore some arrangement, some scheme or plan of organization wherein there
would be reasonable assurance that the states would fulfill their obligations
and play their part under established articles of union and not make mockery of
union by willful disregard or negligent delay. That was the chief problem
of the day. The need of granting certain powers to Congress was plain; in
other words, the distribution of powers between the center and the parts was
imperfectly provided for in the Confederation. The distribution of powers,
however, did not constitute the radical difficulty. If additional "powers" were
granted Congress, could there be any assurance that the old trouble would not
immediately arise? To the men of 1786 — such men as were anxious for
national stability — the real remedy appeared to be some application of
force, the coercion of recalcitrant states, something more than the grant of
naked authority to the central organ of union. The problem of imperial order
had been reduced in some respects to fairly simple terms; if the task of
distinguishing between powers was no longer especially troublesome, the
question remaining was perplexing: could the states be held together in a firm
and effective union and what arrangement could be made for securing or assuring
obedience to their obligations as members of the union? Plainly enough the men
of the time — the men of course who really thought — were troubled
and perplexed; but few of them could even then see much further than the need
of compulsion — the use of force against disobedient
states.[15]
But the year of gloom was not allowed to pass utterly without hope or
light. Virginia and Maryland had been discussing troublesome questions
concerning the navigation of the Potomac. But if two states could consult upon
matters of mutual interest, why not more than two? Out of these conferences,
therefore, came the Annapolis convention in the autumn of 1786. Five states
were represented, and a report was drawn up proposing a convention "to meet at
Philadelphia on the second Monday in May next, to take into consideration the
situation of the United States, to devise such further provisions as shall
appear to them necessary to render the constitution of the federal government
adequate to the exigencies of the Union...." The proposal, submitted to the
states, was sent to Congress which (February 21, 1787) passed a resolution in
substantial accord with the recommendation from the Annapolis gathering. A
method was thus found for stabilizing the union and for saving it from complete
disintegration, saving the new-born United States from becoming "one of the
most contemptible nations on the face of the earth." [16] Eager
nationalists were anxiously at work during the months that followed; and when
May came, the prospect of effective results appeared bright; at least there was
ground for hope.
[1] "Il règne dans la formation de ces Etats un vice
radical qui s'opposera toujours à une union parfaite, c'est que les
Etats n'ont ré-ellement aucun intérêt pressant d'etre sous
un seul chef." Otto, French charge d'affaires, to comte de Montmorin, April 10,
1787. See The Records of the Federal Convention of 1787 (Max Farrand,
ed.), III, p. 16.
[2] See Madison's preface to the debates in the Federal
Convention, Documentary History of the Constitution, III, p. 7. The
preface was written at a later time but Madison's general description of
conditions is valuable. See also a letter from Madison to Jefferson, March 18,
1786, in Charles Warren, The Making of the Constitution, p. 16.
[3] Letter from Morris to Franklin, January 11, 1783, in
The Revolutionary Diplomatic Correspondence of the United States
(Francis Wharton, ed.), VI, p. 203.
[4] February 15, 1786. Journals of Congress (1823
ed.), IV, pp. 619-620.
[5] February 15, 1786. Ibid., IV, p. 620.
[6] New Haven Gazette, March 22, 1787. Quoted in O. G.
Libby, Geographical Distribution of the Vote of the Thirteen States on the
Federal Constitution, 1787-8 (Bulletin of the University of
Wisconsin, Economics, Political Science, and History Series, I, no. 1), p.
58.
[7] Letter from Marshall to Wilkinson, January 5, 1787, in
Am. Hist. Rev., XII, p. 348. This coincidence of Washington's and
Marshall's sentiments is instructive, if one would understand the later career
of each. Marshall seems never to have forgotten the privations of Valley Forge
or the menace of Shays's rebellion.
[8] A very useful collection of proposals of this kind is
Proposals to Amend the Articles of Confederation, 1781-1789 (American
History Leaflets, A. B. Hart and Edward Channing, eds., no. 28).
[9] This plan of Webster contained much more than is
indicated in the text above; but the declaration concerning the necessity of
force is the thing I wish to stand out clearly. Some other statements, however,
are interesting as indications of his idea of sovereignty: "A number of
sovereign States uniting into one Commonwealth, and appointing a supreme power
to manage the affairs of the union, do necessarily and unavoidably part with
and transfer over to such supreme power, so much of their own sovereignity
[sic], as is necessary to render the ends of the union effectual.... In
like manner, every member of civil society parts with many of his natural
rights, that he may enjoy the rest in greater security under the protection of
society." Italics of the original omitted. Thus Webster thinks a commonwealth
can be made by the uniting of sovereign states; but these sovereign states may
give up only a portion of their sovereignty (in other words, sovereignty is
divisible); and the "supreme power" is evidently only supreme in the powers
thus granted.
[10] A sentiment of almost exactly the same character came
from Washington — one of those indications of the clearness with which he
could sum up a situation without mincing phrases: "I do not conceive we can
exist long as a nation without having lodged some where a power, which will
pervade the whole Union in as energetic a manner as the authority of the State
governments extends over the several States." George Washington,
Writings (W. C. Ford, ed.), XI, pp. 53-54. The emphasis of Webster's
document was on the need of effective power. To each state, in his opinion,
might be left its "sovereign right of directing its own internal affairs; but
give to Congress the sole right of conducting the general affairs of the
continent." He thus advocated by the division of sovereignty an organization
with effective force at the center.
[11] George Bancroft, History of the Formation of the
Constitution, II, pp. 373-377.
[12] Letter of March 9, 1786, in Mass. Hist. Society
Collections, fifth series, II, part 1, p. 431.
[13] Secret Journals of the Acts and Proceedings of
Congress, IV, pp. 203-204. Cf. Constitution, Art. VI, para. 2. A committee
report to the Congress of the Confederation, discussed March 26, 1784,
contained the following provision: " 'That these United States be considered in
all such treaties, and in every case arising under them, as one nation, upon
the principles of the federal constitution' ". A motion was made to strike out
this instruction. On the question, shall it stand, the vote stood: New
Hampshire, Massachusetts, New York, New Jersey, Pennsylvania, Maryland,
Virginia, North Carolina, South Carolina, aye; Rhode Island, Connecticut, no.
Secret Journals of the Acts and Proceedings of Congress, III, pp.
452-454.
[14] Journals of Congress (1823 ed.), IV, pp. 730,
737.
[15] Perhaps some of them did. Washington's statement quoted
in note 10 (ante) may possibly be so interpreted. Noah Webster appears
to me to have been nearest a grasp of a solution of the problem. But the way in
which that solution was finally found is a most interesting study; and the
study awaits us on the succeeding pages of this work. If the rule of
apportioning requisitions were made "plain and easy," and if "refusal were then
to follow demand," Richard Henry Lee declared, "I see clearly, that no form of
government whatever, short of force, will answer...." "Do you not think, sir,
that it ought to be declared, by the new system, that any State act of
legislation that shall contravene, or oppose, the authorized acts of Congress,
or interfere with the expressed rights of that body, shall be ipso facto
void, and of no force whatsoever?" Letter from Lee to George Mason, May 15,
1787, in K. M. Rowland, The Life of George Mason, II, pp. 105, 107.
Jefferson wrote to Madison from Paris, June 20, 1787, suggesting appeals from
state courts to a federal court. Jefferson, Works (federal ed.), V, p.
285. See also a letter from Richard Henry Lee to Madison, November 26, 1784, in
The Letters of Richard Henry Lee (J. C. Ballagh, ed.), II, p. 307.
[16] Letter from William Grayson to Madison, March 22, 1786.
Quoted in George Bancroft, History of the Formation of the Constitution,
I, p. 258.
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