FOOTNOTES:
[130] For the recommendation of Congress, on this same day, regarding setting up State governments, cf. American History and Government, § 148. (For earlier recommendations as to temporary governments, cf. ib.) This action, of course, was not known in Virginia when this Convention took action regarding independence and a permanent State constitution.
[131] The sixth article seems to have been designed by George Mason, who drew it, as an argument for extending the franchise to heads of families. Mason drew also a plan for the frame of government, which the convention in the main adopted on June 29. In this plan he proposed to "extend" the franchise to leaseholders with seven-year terms, and to any "housekeeper" who was also the father of three children (Article V of Mason's Plan; printed in full in Kate Mason Rowland's Life and Correspondence of George Mason, I, 444 ff.). The convention, however, left the franchise as "now established by law"—on a freehold basis (American History and Government, §§ 105, 107). Mason, in his plan, suggested graded landed qualifications for holding office: £500 freehold to act as a member of his proposed electoral college to choose state senators; £1000 freehold to sit in the lower House; £2000 freehold to sit in the upper House.
It is often said that Mason proposed a £1000-freehold qualification for the franchise. The language of Section III of his "plan," taken by itself, would so indicate. But the clauses III and IV are very loosely worded and punctuated; and, when they are read in conjunction with Section V, the only possible conclusion is the one stated above. In proposing so liberal a franchise, however, Mason stood alone in Virginia in his day. Even Jefferson's plan for a Virginia constitution called for "a freehold of ¼ of an acre of land in a town, or 25 acres in the country" (Works, Ford edition, II, 7 ff.).
Eleven years later at the Philadelphia convention, Mason used the same language as in the Virginia bill of rights, in opposing a real-estate qualification for the national franchise; but he still advocated a landed qualification for membership in even the lower House of Congress.
[132] Jefferson's plan was indorsed. " ... It is proposed that this bill, after correction by the Convention, shall be referred by them to the people, to be assembled in their respective counties; and that the suffrages of two-thirds the counties shall be necessary to establish it." Jefferson always contended that the Virginia constitution, since it was not so submitted to popular ratification, was not a "fundamental law," but was subject to repeal, like any other statute, by ordinary legislative action. Cf. American History and Government, § 152.
[133] The action of January 12 in (1) above belonged to the session beginning in December.
[134] Is the following word "united" then, in this place, part of a proper noun, or merely an adjective?
[135] Would that colony have felt itself "bound" before it gave them instructions, if Congress had acted on these matters? Cf. American History and Government, § 187, for a discussion of this and allied points.
[136] Lee was about to return to Virginia, and so was not placed on the committee.
[137] The student will see that Washington is here designated.
[E. CONFEDERATION AND CONSTITUTION]
[XXIV. THE ARTICLES OF CONFEDERATION]
146. Debates in the Continental Congress on the Articles of Confederation
John Adams (Works, II, 492-502) preserved fairly full notes upon part of the discussion on the Articles. The parts dealing with western lands, with basis of taxation, and with the equality of the States in Congress are reproduced here. The form is rather fragmentary; and, in some cases, allusions are made which it would take too long to explain here. But the student can at least get the general drift and the alignment of the States on the opposing sides.
In Committee of the Whole
1776. July 25. Article 14 of the confederation. Terms in this Article equivocal and indefinite.[138]
Jefferson. The limits of the Southern Colonies are fixed. Moves an amendment, that all purchases of lands, not within the boundaries of any Colony, shall be made by Congress of the Indians in a great Council.
Sherman seconds the motion.
Chase [Maryland]. The intention of this Article is very obvious and plain. The Article appears to me to be right and the amendment wrong. It is the intention of some gentlemen to limit the boundaries of particular States. No Colony has a right to go to the South Sea; they never had; they can't have. It would not be safe to the rest. It would be destructive to her sisters and to herself.
Article 15. Jefferson. What are reasonable limits? What security have we, that the Congress will not curtail the present settlements of the States? I have no doubt that the Colonies will limit themselves.
Wilson. Every gentleman has heard much of claims to the South Sea. They are extravagant. The grants were made upon mistakes. They were ignorant of the Geography. They thought the South Sea within one hundred miles of the Atlantic Ocean. It was not conceived that they extended three thousand miles. Lord Camden considers the claims to the South Sea, as what never can be reduced to practice. Pennsylvania has no right to interfere in those claims, but she has a right to say, that she will not confederate unless those claims are cut off. I wish the Colonies themselves would cut off those claims....
July 30. Article 17. "In determining questions, each Colony shall have one vote."
Dr. Franklin. Let the smaller Colonies give equal money and men, and then have an equal vote. But if they have an equal vote without bearing equal burthens, a confederation upon such iniquitous principles will never last long.
Dr. Witherspoon. [New Jersey]. We all agree that there must and shall be a confederation for this war. ... The greatest danger we have, is of disunion among ourselves. Is it not plausible that the small States will be oppressed by the great ones? The Spartans and the Helots. The Romans and their dependents. Every Colony is a distinct person....
Clark. We must apply for pardons if we don't confederate.
Wilson. We should settle upon some plan of representation.
Wilson. If the war continues two years, each soul will have forty dollars to pay of the public debt. It will be the greatest encouragement to continue slave-keeping and to increase it, that can be, to exempt them from the numbers which are to vote and pay. Slaves are taxables in the Southern Colonies. It will be partial and unequal. Some Colonies have as many black as white; these will not pay more than half what they ought.[139] Slaves prevent freemen from cultivating a country. It is attended with many inconveniences.
Lynch [South Carolina]. If it is debated, whether their slaves are their property, there is an end of the confederation. Our slaves being our property, why should they be taxed more than the land, sheep, cattle, horses, etc.?
Freemen cannot be got to work in our Colonies; it is not in the ability or inclination of freemen to do the work that the negroes do. Carolina has taxed their negroes; so have other Colonies their lands.
Dr. Franklin. Slaves rather weaken than strengthen the State, and there is therefore some difference between them and sheep; sheep will never make any insurrections.
Rutledge. I shall be happy to get rid of the idea of slavery. The slaves do not signify property; the old and young cannot work. The property of some Colonies is to be taxed, in others, not. The Eastern Colonies will become the carriers for the Southern; they will obtain wealth for which they will not be taxed.
August 1. Hooper. North Carolina is a striking exception to the general rule that was laid down yesterday, that the riches of a country are in proportion to the numbers of inhabitants. A gentleman of three or four hundred negroes don't raise more corn than feeds them. A laborer can't be hired for less than twenty-four pounds a year in Massachusetts Bay. The net profit of a negro is not more than five or six pounds per annum. I wish to see the day that slaves are not necessary. Whites and negroes cannot work together. Negroes are goods and chattels are property. A negro works under the impulse of fear, has no care of his master's interest.[140]
The Consideration of the Seventeenth Article resumed
Article 17. Dr. Franklin moves that votes should be in proportion to numbers. Mr. Middleton moves that the vote should be according to what they pay.
Sherman thinks we ought not to vote according to numbers. We are representatives of States, not individuals. States of Holland. The consent of every one is necessary. Three Colonies would govern the whole, but would not have a majority of strength to carry those votes into execution. The vote should be taken two ways; call the Colonies, and call the individuals, and have a majority of both.[141]
Dr. Rush. Abbé Raynal has attributed the ruin of the United Provinces [Netherlands] to three causes. The principal one is, that the consent of every State is necessary; the other, that the members are obliged to consult their constituents upon all occasions. We lose an equal representation; we represent the people. It will tend to keep up colonial distinctions. We are now a new nation. ... If we vote by numbers, liberty will be always safe. Massachusetts is contiguous to two small Colonies, Rhode Island and New Hampshire; Pennsylvania is near New Jersey and Delaware; Virginia is between Maryland and North Carolina. ... Montesquieu pronounces the confederation of Lycia the best that ever was made; the cities had different weights in the scale. ... I would not have it understood that I am pleading the cause of Pennsylvania; when I entered that door, I considered myself a citizen of America.
G. Hopkins [Rhode Island]. A momentous question; many difficulties on each side; four larger, five lesser, four stand indifferent. Virginia, Massachusetts, Pennsylvania, Maryland, make more than half the people.
... It can't be expected that nine Colonies will give way to be governed by four. The safety of the whole depends upon the distinctions of Colonies.
Dr. Franklin. I hear many ingenious arguments to persuade us that an unequal representation is a very good thing. If we had been born and bred under an unequal representation, we might bear it; but to set out with an unequal representation is unreasonable. It is said the great Colonies will swallow up the less. Scotland said the same thing at the union.
August 2. "Limiting the bounds of States, which by charter, &c. extend to the South Sea."
Sherman thinks the bounds ought to be settled. A majority of States have no claim to the South Sea. Moves this amendment to be substituted in place of this clause, and also instead of the fifteenth article;—"No lands to be separated from any State, which are already settled, or become private property."
Chase [Maryland] denies that any Colony has a right to go to the South Sea.
Harrison [Virginia]. How came Maryland by its land, but by its charter? By its charter, Virginia owns to the South Sea. Gentlemen shall not pare away the Colony of Virginia. Rhode Island has more generosity than to wish the Massachusetts pared away. Delaware does not wish to pare away Pennsylvania.
Huntington. Admit there is danger from Virginia, does it follow that Congress has a right to limit her bounds? The consequence is, not to enter into confederation....
Stone [Maryland] ... Is it meant that Virginia shall sell these lands for their own emolument? All the Colonies have defended these lands against the King of Britain, and at the expense of all. Does Virginia intend to establish quit rents?...
Jefferson. I protest against the right of Congress to decide upon the right of Virginia. Virginia has released all claims to the land settled by Maryland, &c.
[This clause, as to limiting the western claims, was stricken out in committee. The subsequent history of the struggle is well known, terminating in the acts of cession of claims to the western territory. For details, cf. American History and Government, §§ 179-180.
Jefferson's Notes on this same debate (Journals of Congress, VI, 1104,—from a MS. of Jefferson's) contain the following additional item: "John Adams advocated voting in proportion to numbers. He said that we stand here as representatives of the people; that in some States the people are many, in others they are few ... that the individuality of the colonies is a mere sound. ... It has been said we are independent individuals making a bargain together: the question is not what we are now, but what we ought to be when our bargain shall be made. The Confederacy IS TO MAKE US ONE individual only; it is to form us, like separate parcels of metal, into one common mass. ..."[142]]
147. Articles of Confederation.
November 15, 1777
March 2, 1781
Text from Revised Statutes of 1878. For history, cf. American History and Government, §§ 179, 186-188 ff. The editor has used black-faced type to indicate a few passages especially important for study.
The Articles were adopted by Congress, and recommended to the States, November 15, 1777. The delegates from the several States signed as follows: New Hampshire, Massachusetts Bay, Rhode Island and Providence Plantations, Connecticut, New York, Pennsylvania, Virginia, and South Carolina, July 9, 1778; North Carolina, July 21, 1778; Georgia, July 24, 1778; New Jersey, Nov. 26, 1778; Delaware, May 5, 1779; Maryland, March 1, 1781. Congress met under the Articles, March 2, 1781.
To all to whom these Presents shall come, we the undersigned Delegates of the States affixed to our Names send greeting.
Whereas the Delegates of the United States of America in Congress assembled did on the fifteenth day of November in the year of our Lord One Thousand Seven Hundred and Seventy-seven, and in the Second Year of the Independence of America, agree to certain articles of Confederation and perpetual Union between the States of New-Hampshire, Massachusetts-bay, Rhode-Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North-Carolina, South-Carolina and Georgia in the Words following, viz.
Articles of Confederation and perpetual Union between the States of New-Hampshire, Massachusetts-bay, Rhode-Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia.
Article I.—The stile of this Confederacy shall be, "The United States of America."
Art. II.—Each State retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.
Art. III.—The said States hereby severally enter into a firm league of friendship with each other, for their common defence, the security of their liberties, and their mutual and general welfare, binding themselves to assist each other against all force offered to, or attacks made upon them, or any of them, on account of religion, sovereignty, trade, or any other pretence whatever.
Art. IV.—The better to secure and perpetuate mutual friendship and intercourse among the people of the States in this Union, the free inhabitants of each of these states, paupers, vagabonds, and fugitives from justice excepted, shall be entitled to all privileges and immunities of free citizens in the several States; and the people of each State shall have free ingress and egress to and from any other State, and shall enjoy therein all the privileges of trade and commerce subject to the same duties, impositions, and restrictions as the inhabitants thereof respectively; provided that such restrictions shall not extend so far as to prevent the removal of property imported into any State to any other State of which the owner is an inhabitant: provided also that no imposition, duties, or restriction shall be laid by any State on the property of the United States, or either of them.
If any person guilty of, or charged with treason, felony, or other high misdemeanor in any State, shall flee from justice, and be found in any of the United States, he shall upon demand of the Governor or Executive power of the State from which he fled, be delivered up and removed to the State having jurisdiction of his offence.
Full faith and credit shall be given in each of these States to the records, acts, and judicial proceedings of the courts and magistrates of every other State.
Article V.—For the more convenient management of the general interest of the United States, delegates shall be annually appointed in such manner as the legislature of each State shall direct, to meet in Congress on the first Monday in November, in every year, with a power reserved to each State, to recall its delegates, or any of them, at any time within the year, and to send others in their stead, for the remainder of the year.
No State shall be represented in Congress by less than two, nor by more than seven members; and no person shall be capable of being a delegate for more than three years in any term of six years; nor shall any person, being a delegate, be capable of holding any office under the United States, for which he, or another for his benefit, receives any salary, fees or emolument of any kind.
Each State shall maintain its own delegates in a meeting of the States, and while they act as members of the committee of the States.
In determining questions in the United States, in Congress assembled, each State shall have one vote.
Freedom of speech and debate in Congress shall not be impeached or questioned in any court, or place out of Congress, and the members of Congress shall be protected in their persons from arrests and imprisonments, during the time of their going to and from, and attendance on Congress, except for treason, felony, or breach of the peace.
Article VI. No State without the consent of the United States in Congress assembled, shall send any embassy to, or receive any embassy from, or enter into any conference, agreement, alliance or treaty with any king, prince or state; nor shall any person holding any office of profit or trust under the United States, or any of them, accept of any present, emolument, office or title of any kind whatever from any king, prince or foreign state; nor shall the United States in Congress assembled, or any of them, grant any title of nobility.
No two or more States shall enter into any treaty, confederation or alliance whatever between them, without the consent of the United States in Congress assembled, specifying accurately the purposes for which the same is to be entered into, and how long it shall continue.
No state shall lay any imposts or duties, which may interfere with any stipulations in treaties entered into by the United States, in Congress assembled, with any king, prince, or state, in pursuance of any treaties already proposed by Congress to the courts of France and Spain.
No vessel of war shall be kept up in time of peace by any State, except such number only as shall be deemed necessary by the United States, in Congress assembled, for the defence of such State or its trade, nor shall any body of forces be kept up by any State in time of peace, except such number only as, in the judgment of the United States, in Congress assembled, shall be deemed requisite to garrison the forts necessary for the defence of such State; but every State shall always keep up a well-regulated and disciplined militia, sufficiently armed and accoutred, and shall provide and constantly have ready for use in public stores a due number of field-pieces and tents, and a proper quantity of arms, ammunition, and camp equipage.
No State shall engage in any war without the consent of the United States, in Congress assembled, unless such State be actually invaded by enemies, or shall have received certain advice of a resolution being formed by some nation of Indians to invade such State, and the danger is so imminent as not to admit of a delay till the United States, in Congress assembled, can be consulted; nor shall any State grant commissions to any ships or vessels of war, nor letters of marque or reprisal, except it be after a declaration of war by the United States, in Congress assembled, and then only against the kingdom or state, and the subjects thereof, against which war has been so declared, and under such regulations as shall be established by the United States, in Congress assembled, unless such State be infested by pirates, in which case vessels of war may be fitted out for that occasion, and kept so long as the danger shall continue, or until the United States, in Congress assembled, shall determine otherwise.
Art. VII.—When land forces are raised by any State for the common defence, all officers of or under the rank of Colonel shall be appointed by the Legislature of each State respectively by whom such forces shall be raised, or in such manner as such State shall direct, and all vacancies shall be filled up by the States which first made the appointment.
Art. VIII.—All charges of war, and all other expenses that shall be incurred for the common defence or federal welfare, and allowed by the United States in Congress assembled, shall be defrayed out of a common treasury, which shall be supplied by the several States, in proportion to the value of all land within each State, granted to or surveyed for any person, as such land and the buildings and improvements thereon shall be estimated according to such mode as the United States in Congress assembled, shall from time to time direct and appoint.
The taxes for paying that proportion shall be laid and levied by the authority and direction of the Legislatures of the several States within the time agreed upon by the United States in Congress assembled.
Article IX.[143]—The United States in Congress assembled, shall have the sole and exclusive right and power of determining on peace and war, except in the cases mentioned in the sixth article—of sending and receiving ambassadors—entering into treaties and alliances, provided that no treaty of commerce shall be made whereby the legislative power of the respective States shall be restrained from imposing such imposts and duties on foreigners, as their own people are subjected to, or from prohibiting the exportation or importation of any species of goods or commodities whatsoever—of establishing rules for deciding in all cases, what captures on land or water shall be legal, and in what manner prizes taken by land or naval forces in the service of the United States shall be divided or appropriated—of granting letters of marque and reprisal in times of peace—appointing courts for the trial of piracies and felonies committed on the high seas and establishing courts for receiving and determining finally appeals in all cases of captures, provided that no member of Congress shall be appointed a judge of any of the said courts.
The United States in Congress assembled shall also be the last resort on appeal in all disputes and differences now subsisting or that hereafter may arise between two or more States concerning boundary, jurisdiction or any other cause whatever; which authority shall always be exercised in the manner following. [A long passage as to method of constituting commissioners to decide such contests.]
The United States in Congress assembled shall also have the sole and exclusive right and power of regulating the alloy and value of coin struck by their own authority, or by that of the respective States—fixing the standard of weights and measures throughout the United States—regulating the trade and managing all affairs with the Indians, not members of any of the States, provided that the legislative right of any State within its own limits be not infringed or violated—establishing and regulating post-offices from one State to another, throughout all the United States, and exacting such postage on the papers passing thro' the same as may be requisite to defray the expenses of the said office—appointing all officers of the land forces, in the service of the United States, excepting regimental officers—appointing all the officers of the naval forces, and commissioning all officers whatever in the service of the United States—making rules for the government and regulation of the said land and naval forces, and directing their operations.
The United States in Congress assembled shall have authority to appoint a committee, to sit in the recess of Congress, to be denominated "a Committee of the States," and to consist of one delegate from each State; and to appoint such other committees and civil officers as may be necessary for manageing the general affairs of the United States under their direction—to appoint one of their number to preside, provided that no person be allowed to serve in the office of president more than one year in any term of three years; to ascertain the necessary sums of money to be raised for the service of the United States, and to appropriate and apply the same for defraying the public expenses—to borrow money, or emit bills on the credit of the United States, transmitting every half year to the respective States an account of the sums of money so borrowed or emitted,—to build and equip a navy—to agree upon the number of land forces, and to make requisitions from each State for its quota, in proportion to the number of white inhabitants in such State; which requisition shall be binding; and thereupon the Legislature of each State shall appoint the regimental officers, raise the men, and clothe, arm, and equip them in a soldier-like manner, at the expense of the United States; and the officers and men so clothed, armed, and equipped shall march to the place appointed, and within the time agreed on by the United States, in Congress assembled; but if the United States, in Congress assembled, shall, on consideration of circumstances, judge proper that any State should not raise men, or should raise a smaller number than its quota, and that any other State should raise a greater number of men than the quota thereof, such extra number shall be raised, officered, clothed, armed, and equipped in the same manner as the quota of such State, unless the Legislature of such State shall judge that such extra number cannot be safely spared out of the same, in which case they shall raise, officer, clothe, arm, and equip as many of such extra number as they judge can be safely spared, and the officers and men so clothed, armed, and equipped shall march to the place appointed, and within the time agreed on by the United States, in Congress assembled.
The United States, in Congress assembled, shall never engage in a war, nor grant letters of marque and reprisal in time of peace, nor enter into any treaties or alliances, nor coin money, nor regulate the value thereof, nor ascertain the sums and expenses necessary for the defence and welfare of the United States, or any of them, nor emit bills, nor borrow money on the credit of the United States, nor appropriate money, nor agree upon the number of vessels of war to be built or purchased, or the number of land or sea forces to be raised, nor appoint a commander-in-chief of the army or navy, unless nine States assent to the same; nor shall a question on any other point, except for adjourning from day to day, be determined, unless by the votes of a majority of the United States, in Congress assembled.
The Congress of the United States shall have power to adjourn to any time within the year, and to any place within the United States, so that no period of adjournment be for a longer duration than the space of six months, and shall publish the journal of their proceedings monthly, except such parts thereof relating to treaties, alliances, or military operations as in their judgment require secrecy; and the yeas and nays of the delegates of each State, on any question shall be entered on the journal, when it is desired by any delegate; and the delegates of a State, or any of them, at his or their request shall be furnished with a transcript of the said journal, except such parts as are above excepted, to lay before the Legislatures of several States.
Article X.—The committee of the States, or any nine of them, shall be authorized to execute, in the recess of Congress, such of the powers of Congress as the United States in Congress assembled, by the consent of nine States, shall from time to time think expedient to vest them with; provided that no power be delegated to the said committee, for the exercise of which, by the articles of confederation, the voice of nine States in the Congress of the United States assembled is requisite.
Article XI.—Canada acceding to this confederation, and joining in the measures of the United States, shall be admitted into, and entitled to all the advantages of this Union: but no other colony shall be admitted into the same, unless such admission be agreed to by nine States.
Article XII.—All bills of credit emitted, monies borrowed and debts contracted by, or under the authority of Congress, before the assembling of the United States, in pursuance of the present confederation, shall be deemed and considered as a charge against the United States, for payment and satisfaction whereof the said United States, and the public faith are hereby solemnly pledged.
Article XIII.—Every State shall abide by the determinations of the United States in Congress assembled, on all questions which by this confederation are submitted to them. And the articles of this confederation shall be inviolably observed by every State, and the Union shall be perpetual; nor shall any alteration at any time hereafter be made in any of them; unless such alteration be agreed to in a Congress of the United States, and be afterwards confirmed by the Legislatures of every State.
And whereas it hath pleased the Great Governor of the World to incline the hearts of the Legislatures we respectively represent in Congress, to approve of, and to authorize us to ratify the said articles of confederation and perpetual union. Know ye that we the undersigned delegates, by virtue of the power and authority to us given for that purpose, do by these presents, in the name and in behalf of our respective constituents, fully and entirely ratify and confirm each and every of the said articles of confederation and perpetual union, and all and singular the matters and things therein contained. And we do further solemnly plight and engage the faith of our respective constituents, that they shall abide by the determinations of the United States, in Congress assembled, on all questions which by the said Confederation are submitted to them; and that the Articles thereof shall be inviolably observed by the States we respectively represent, and that the Union shall be perpetual.
In witness whereof we have hereunto set our hands in Congress. Done at Philadelphia in the State of Pennsylvania the ninth day of July in the year of our Lord one thousand seven hundred and seventy-eight, and in the third year of the independence of America.
[The signatures follow. Cf. introduction, on p. 475, for the dates.]