History of the Origin, Formation, and Adoption of the Constitution of the United States, Vol. 1 / With Notices of Its Principle Framers

by George Ticknor Curtis

The fifth provided, that there should be formed in the territory not less than three, nor more than five States, with certain boundaries; and that whenever any of the States should contain sixty thousand free inhabitants, such State should be (and might be before) admitted by its delegates into Congress, on an equal footing with the original States in all respects whatever, and should be at liberty to form a permanent constitution and State government, provided it should be republican, and in conformity with these articles of compact.

The sixth provided, that there should be neither slavery nor involuntary servitude in the territory, otherwise than in the punishment of crimes; but that fugitives owing service in other States might be reclaimed.

American legislation has never achieved any thing more admirable, as an internal government, than this comprehensive scheme. Its provisions concerning the distribution of property, the principles of civil and religious liberty which it laid at the foundation of the communities since established under its sway, and the efficient and simple organization by which it created the first machinery of civil society, are worthy of all the praise that has ever attended it. It was not a plan devised in the closet, upon theoretical principles of abstract fitness. It was a constitution of government drawn by men who understood, from experience, the practical working of the principles which they undertook to embody. Those principles were, it is true, to be applied to a state of society not then formed; but they were taken from states of society in which they had been tried with success. The equal division of property; general, not universal suffrage, but a suffrage guarded by some degree of interest in society; representative government; the division of the three grand departments of political power; freedom of religious opinion and worship; the habeas corpus, trial by jury, and the course of the common law; the right to be bailed for offences not capital, and the prohibition of immoderate fines and cruel or unusual punishments; the great principle of compensation for property or service demanded by the public, and the legislative inviolability of contracts; the encouragement of schools and the means of education,—were all taken from the ancient or recent constitutions of States, from which the greater part of the inhabitants of the new territory would necessarily come. A community founded on these principles was predestined to prosperity and happiness.

But it was in the provisions of the Ordinance relative to the admission into the Union of the new States to be formed upon this territory, that the relation between the existing government of the United States and its great dependency was afterwards found to involve serious difficulties. The Union was at that time a confederacy of thirteen States, originally formed mainly with reference to the exigencies of the war; and, although the Articles of Confederation had been ratified under circumstances which gave to the United States the authority to acquire this property, they had vested in Congress no power to enlarge the Confederacy by the admission of new States. Yet the Ordinance undertook to declare that new States should be admitted into the Congress of the United States on an equal footing with the existing States in all respects whatever, without proposing to submit that question to the original parties to the Confederacy.

It does not appear from contemporary evidence that this difficulty attracted public attention, at the time of the passage of the Ordinance. In the year 1787, the Confederation was laboring under far more pressing and alarming defects than the want of strict constitutional power to create new States. Public attention was consequently more engaged with the consideration of evils which affected the prosperity of the original States themselves, than with the destiny of the new communities, or the method by which they were to be brought into the Union. It was not immediately perceived, also, that a property, capable at no distant day of becoming a vast mine of wealth to the United States, as a great and independent revenue, had come under the management of a single body of men, constituted originally without reference to such a trust, and with no declared constitutional provisions for its administration. When, however, the Constitution was in the process of formation, the necessity for provisions under which Congress could dispose of the public lands, and by which new States could be admitted into the Union, was at once felt and conceded on all sides.[322]

Far more serious difficulties, however, attended the management by the Confederation of the interests of the Western country;—difficulties which commenced immediately after the Peace, and continued to increase, until the course taken by Congress had nearly lost to the Union the whole of that immense region which now pours its commerce down the Mississippi and its great tributary waters. These difficulties sprang from the inherent weakness of the federal government,—from the absolute incapacity of Congress, constituted as it was, to deal wisely, safely, and efficiently with the foreign relations of the country and its internal affairs, under the delicate and critical circumstances in which it was then placed. After the Treaty of Peace, the Western settlements, flanked by the dependencies of Great Britain at the north and of Spain at the south, and rapidly filling with a bold, adventurous, and somewhat lawless population, whose ties of connection with the Eastern States were almost sundered by the remoteness of their position and the difficulties of communication, stood upon a pivot, where accident might have thrown them out of the Union. This population found themselves seated in a luxuriant and fertile country, capable of a threefold greater production than the States eastward of the Alleghany and Appalachian Mountains, and intersected by natural water communications of the most ample character, all tending to the great highway of the Mississippi. A soil richer than any over which the Anglo-Saxon race had hitherto spread itself upon this continent, in any of its temperate climes; large plains and meadows, capable, without labor, of supporting millions of cattle; and fields destined to vie with the most favored lands on the globe in the production of wheat, were already accumulating upon the banks of their great rivers a weight of produce far beyond the necessities of subsistence, and loudly demanding the means of reaching the markets of the world. The people of the Atlantic States knew little of the resources or situation of this country. They valued it chiefly as a means of paying the public debts by the sale of its lands; but until they were in imminent danger of losing it, from the inefficiency of the national government, they had little idea of the supreme necessity of securing for it an outlet to the sea, if they would preserve it to the Union.

Washington, in the autumn of 1784, after his retirement to Mount Vernon, made a tour into the Western country, for the express purpose of ascertaining by what means it could be most effectually bound to the Union. The policy of opening communications eastward, by means of the rivers flowing through Virginia to the Atlantic Ocean struck him at once. On his return, he addressed a letter to the Governor of the State, in which he recommended the appointment of a commission, to make a survey of the whole means of natural water communication between Lake Erie and the tide-waters of Virginia. He does not seem at this time to have considered the navigation of the Mississippi as of great importance; but he thought rather that the opening of that river would have a tendency to separate the Western from the Eastern States.[323] A year later, he held a clear opinion, that its navigation ought not at present to be made an object by the United States, but that their true policy was to open all the possible avenues between the Atlantic States and the Western territory, and that, until this had been done, the obstructions to the use of the Mississippi had better not be removed.[324] Those obstructions, however, involved the hazard of a loss of the territory to which the navigation of that river had already become extremely important. Their nature is, therefore, now to be explained.

The Treaty of Peace with Great Britain recognized, as the southern boundary of the United States, a line drawn from a point where the thirty-first degree of north latitude intersected the river Mississippi, along that parallel due east to the middle of the river Appalachicola; thence along the middle of that river to its junction with the Flint River; thence in a straight line to the head of St. Mary's River; and thence down the middle of that river to the Atlantic Ocean.[325] At the time of the negotiation of this treaty West Florida was in the possession of Spain; and a secret article was executed by the British and American plenipotentiaries, which stipulated that in case Great Britain, at the conclusion of a peace with Spain, should recover or be put in possession of West Florida, the north boundary between that province and the United States should be a line drawn from the mouth of the river Yassous, where it unites with the river Mississippi, due east to the river Appalachicola.[326] The treaty also stipulated, that the navigation of the Mississippi, from its source to the ocean, should for ever remain free and open to the subjects of Great Britain and the citizens of the United States.[327]

When the treaty came to be ratified and published, in 1784, the Spanish government was already acquainted with this secret article. Justly assuming that no treaty between Great Britain and the United States could settle the boundaries between the territories of the latter power and those of Spain, or give of itself a right to navigate a river passing wholly through their dominions, they immediately caused it to be signified to Congress, that, until the limits of Louisiana and the two Floridas should be settled and determined, by an admission on the part of Spain that they had been rightfully described in the Treaty with England, they must assert their territorial claims to the exclusive control of the river; and also, that the navigation would under no circumstances be conceded, while Spain held the right to its control.[328] To accommodate these difficulties, Congress resolved to send Mr. Jay, their Secretary of Foreign Affairs, to Spain; but his departure was prevented by the arrival in the United States of Don Diego Guardoqui, as Minister from Spain, charged with the negotiation of a treaty.[329]

Preparatory to this negotiation, the first instruction which Mr. Jay received from Congress was, to insist upon the right of the United States to the territorial boundaries and the free navigation of the Mississippi, as settled by their treaty with Great Britain.[330] Upon this point, however, the Spanish Minister was immovable. A long negotiation ensued, in which he evinced entire readiness to make a liberal commercial treaty with the United States, conceding to their trade very important advantages; but at the same time refusing the right to use the Mississippi. Such a treaty was regarded as extremely important to the United States. There was scarcely a single production of this country that could not be advantageously exchanged in the Spanish European ports for gold and silver. The influence of Spain in the Mediterranean, with Portugal, with France, with the States of Barbary, and the trade with her Canaries and the adjacent islands, rendered a commercial alliance with her of the utmost importance. That importance was especially felt by the Eastern and Middle States, whose influence in Congress thus became opposed to the agitation of the subject of opening the Mississippi.[331] Indeed, the prevailing opinion in Congress, at this time, was for not insisting on the right of navigation as a necessary requisite in the treaty with Spain; and there were some important and influential persons in that body ready to agree to the abandonment of the right, rather than defer longer a free and liberal system of trade with a power able to give conditions so advantageous to the United States.[332] The Eastern States considered a commercial treaty with Spain as the best remedy for their distresses, which flowed, as they believed, from the decay of their commerce. Two of the Middle States joined in this opinion. Virginia, on the other hand, opposed all surrender of the right.[333]