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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.

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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