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HISTORY
OF THE
ORIGIN, FORMATION, AND ADOPTION
OF THE
CONSTITUTION OF THE UNITED STATES;
WITH
NOTICES OF ITS PRINCIPAL FRAMERS.

BY
GEORGE TICKNOR CURTIS.

IN TWO VOLUMES.
VOLUME I.

NEW YORK:
HARPER AND BROTHERS,
Franklin Square.
1854.

Entered according to Act of Congress, in the year 1854, by
GEORGE T. CURTIS,
in the Clerk's Office of the District Court of the District of Massachusetts

TO
GEORGE TICKNOR, Esq.,
THE HISTORIAN OF SPANISH LITERATURE,
BY WHOSE ACCURATE SCHOLARSHIP AND CAREFUL CRITICISM
THESE PAGES HAVE LARGELY PROFITED,
I DEDICATE THIS WORK,
IN AFFECTIONATE ACKNOWLEDGMENT OF TIES,
WHICH HAVE BEEN TO ME CONSTANT SOURCES OF HAPPINESS
THROUGH MY WHOLE LIFE.

PREFACE.

A special history of the origin and establishment of the Constitution of the United States has not yet found a place in our national literature.

Many years ago, I formed the design of writing such a work, for the purpose of exhibiting the deep causes which at once rendered the Convention of 1787 inevitable, and controlled or directed its course and decisions; the mode in which its great work was accomplished; and the foundations on which our national liberty and prosperity were then deliberately settled by the statesmen to whom the American Revolution gave birth, and on which they have rested ever since.

In the prosecution of this purpose I had, until death terminated his earthly interests, the encouragement and countenance of that illustrious person, whose relation to the Constitution of the United States, during the last forty years, has been not inferior in importance to that of any of its founders during the preceding period.

Mr. Webster had for a long time the intention of writing a work which should display the remarkable state of affairs under whose influence the Constitution was first brought into practical application; and this design he relinquished only when all the remaining plans of his life were surrendered with the solemn and religious resignation that marked its close. It was known to him that I had begun to labor upon another branch of the same subject. In the spring of 1852 I wrote to him to explain the plan of my work, and to ask him for a copy of some remarks made by his father in the Convention of New Hampshire when the Constitution was ratified by that State. I received from him the following answer.

"Washington, March 7th, [1852].

"My Dear Sir,—

"I will try to find for you my father's speech, as it was collected from tradition and published some years ago. If I live to see warm weather in Marshfield, I shall be glad to see you beneath its shades, and to talk of your book.

"You are probably aware that I have meditated the writing of something upon the History of the Constitution and the Administration of Washington. I have the plan of such a work pretty definitely arranged, but whether I shall ever be able to execute it I cannot say:—'the wills above be done.'

"Yours most truly,

"Danl. Webster."

Regarding this kind and gracious intimation as a wish not to be anticipated in any part of the field which he had marked out for himself, I replied, that if, when I should have the pleasure of seeing him, my work should seem to involve any material part of the subject which he had comprehended within his own plan, I should of course relinquish it at once. When, however, the period of that summer's leisure arrived, and brought with it, to his watchful observation, so many tokens that "the night cometh," he seemed anxious to impress upon me the importance of the task I had undertaken, and to remove any obstacle to its fulfilment that he might have suggested. Being with him alone, on an occasion when his physician, after a long consultation, had just left him, he said to me, with an earnestness and solemnity that can never be described or forgotten: "You have a future; I have none. You are writing a History of the Constitution. You will write that work; I shall not. Go on, by all means, and you shall have every aid that I can give you."

The event of which these words were ominous was then only four weeks distant. Many times, during those short remaining weeks, I sought "the shades of Marshfield"; but now it was for the offices and duties, not for the advantages, of friendship;—and no part of my work was ever submitted to him to whose approbation, sympathy, and aid I had so long looked forward, as to its most important stimulus and its most appropriate reward.

But the solemn injunction which I had received became to me an ever-present admonition, and gave me—if I may make such a profession—the needful fidelity to my great subject. Whatever may be thought of the manner in which it has been treated, a consciousness that the impartial spirit of History has guided me will remain, after every ordeal of criticism shall have been passed.

And here, while memories of the earlier as well as of the later lost crowd upon me with my theme, I cannot but think of him, jurist and magistrate, friend of my younger as well as riper years, who was called from all human sympathies before I had conceived the undertaking which I have now completed. Fortunate shall I be, if to those in whom his blood flows united with mine I can transmit a work that may be permitted to stand near that noble Commentary, which is known and honored wherever the Constitution of the United States bears sway.

The plan of this work is easily explained. The first volume embraces the Constitutional History of the United States from the commencement of the Revolution to the assembling of the Convention of 1787, together with some notices of the principal members of that body. The second volume is devoted to the description of the process of forming the Constitution, in which I have mainly followed, of course, the ample Record of the Debates preserved by Mr. Madison, and the official Journal of the proceedings.[1]

The period of our history from the commencement of the Revolution to the beginning of Washington's administration is the period when our State and national institutions were formed. With the events of the Revolution, its causes, its progress, its military history, and its results, the people of this country have long been familiar. But the constitutional history of the United States has not been written, and few persons have made themselves accurately acquainted with its details. How the Constitution of the United States came to be formed; from what circumstances it arose; what its relations were to institutions previously existing in the country; what necessities it satisfied; and what was its adaptation to the situation of these States,—are all points of the gravest importance to the American people, and all of them require to be distinctly stated for their permanent welfare.

For the history of this Constitution is not like the history of a monarchy, in which some things are obsolete, while some are of present importance. The Constitution of the United States is a living code, for the perpetuation of a system of free government, which the people of each succeeding generation must administer for themselves. Every line of it is as operative and as binding to-day as it was when the government was first set in motion by its provisions, and no part of it can fall into neglect or decay while that government continues to exist.

The Constitution of the United States was the means by which republican liberty was saved from the consequences of impending anarchy; it secured that liberty to posterity, and it left it to depend on their fidelity to the Union. It is morally certain that the formation of some general government, stronger and more efficient than any which had existed since the independence of the States had been declared, had become necessary to the continued existence of the Confederacy. It is equally certain, that, without the preservation of the Union, a condition of things must at once have ensued, out of which wars between the various provinces of America must have grown. The alternatives, therefore, that presented themselves to the generation by whom the Constitution was established, were either to devise a system of republican government that would answer the great purposes of a lasting union, or to resort to something in the nature of monarchy. With the latter, the institutions of the States must have been sooner or later crushed;—for they must either have crumbled away in the new combinations and fearful convulsions that would have preceded the establishment of such a power, or else they must have fallen speedily after its triumph had been settled. With the former alternative, the preservation of the States, and of all the needful institutions which marked their separate existence, though a difficult, was yet a possible result.

To this preservation of the separate States we owe that power of minute local administration, which is so prominent and important a feature of our American liberty. To this we are indebted for those principles of self-government which place their own interests in the hands of the people of every distinct community, and which enable them, by means of their own laws, to defend their own particular institutions against encroachments from without.

Finally, the Constitution of the United States made the people of these several provinces one nation, and gave them a standing among the nations of the world. Let any man compare the condition of this country at the peace of 1783, and during the four years which followed that event, with its present position, and he will see that he must look to some other cause than its merely natural and material resources to account for the proud elevation which it has now reached.

He will see a people ascending, in the comparatively short period of seventy years, from an attitude in which scarcely any nation thought it worth while to treat with them, to a place among the four principal powers of the globe. He will see a nation, once of so little account and so little strength that the corsairs of the Mediterranean could prey unchecked upon its defenceless merchantmen, now opening to their commerce, by its overawing diplomacy and influence, an ancient empire, on the opposite side of the earth we inhabit, which has for countless ages been firmly closed against the whole world. He will first see a collection of thirteen feeble republics on the eastern coast of North America, inflicting upon each other the manifold injuries of rival and hostile legislation; and then again he will behold them grown to be a powerful confederacy of more than thirty States, stretching from the Atlantic to the Pacific, with all their commercial interests blended and harmonized by one superintending legislature, and protected by one central and preponderating power. He will see a people who had at first achieved nothing but independence, and had contributed nothing to the cause of free government but the example of their determination to enjoy it, founding institutions to which mankind may look for hope, for encouragement and light. He will see the arts of peace—commerce, agriculture, manufactures, jurisprudence, letters—now languishing beneath a civil polity inadequate and incompetent, and now expanding through a continent with an energy and force unexampled in the history of our race,—subduing the farthest recesses of nature, and filling the wilderness with the beneficent fruits of civilization and Christianity.

Surveying all this,—looking back to the period which is removed from him only by the span of one mortal life, and looking around and before him, he will see, that among the causes of this unequalled growth stands prominent and decisive, far over all other human agencies, the great code of civil government which the fathers of our republic wrought out from the very perils by which they were surrounded.

It is for the purpose of tracing the history of the period in which those perils were encountered and overcome, that I have written this work. But in doing it, I have sought to write as an American. For it is, I trust, impossible to study the history of the Constitution which has made us what we are, by making us one nation, without feeling how unworthy of the subject—how unworthy of the dignity of History—would be any attempt to claim more than their just share of merit and renown for names or places endeared to us by local feeling or traditionary attachment. Historical writing that is not just, that is not impartial, that is not fearless,—looking beyond the interests of neighborhood, the claims of party, or the solicitations of pride,—is worse than useless to mankind.

Boston, July, 1854.

CONTENTS
OF
VOLUME FIRST.

BOOK I.

THE CONSTITUTIONAL HISTORY OF THE UNITED STATES, FROM THE COMMENCEMENT OF THE REVOLUTION TO THE ADOPTION OF THE ARTICLES OF CONFEDERATION.

CHAPTER I.
1774-1775.

Organization of the First Continental Congress.—Origin of the Union.—Situation of the Colonies before the Revolution.

CHAPTER II.
1775-1776.

The Second Continental Congress.—Formation and Character of the Revolutionary Government.—Appointment of a Commander-in-chief.—First Army of the Revolution.

CHAPTER III.
1776-1777.

Continuance of the Revolutionary Government.—Declaration of Independence.—Preparations for a New Government.—Formation of the Continental Army.

CHAPTER IV.
July, 1776-November, 1777.

Consequences of the Declaration of Independence.—Reorganization of the Continental Army.—Flight of the Congress from Philadelphia.—Plan of the Confederation Proposed.

CHAPTER V.
November, 1777-March, 1781.

Adoption of the Articles of Confederation.—Cessions of Western Territory.—First Political Union of the States.

CHAPTER VI.

Nature and Powers of the Confederation.

BOOK II.

THE CONSTITUTIONAL HISTORY OF THE UNITED STATES, FROM THE ADOPTION OF THE ARTICLES OF CONFEDERATION, IN 1781, TO THE PEACE OF 1783.

CHAPTER I.
1781-1783.

Requisitions.—Claims of the Army.—Newburgh Addresses.—Peace proclaimed.—The Army disbanded.

CHAPTER II.
1781-1783.

Financial Difficulties of the Confederation.—Revolutionary Debt.—Revenue System of 1783.

CHAPTER III.
1781-1783.

Opinions and Efforts of Washington, and of Hamilton.—Decline of the Confederation.

BOOK III.

THE CONSTITUTIONAL HISTORY OF THE UNITED STATES, FROM THE PEACE OF 1783 TO THE FEDERAL CONVENTION OF 1787.

CHAPTER I.
January, 1784-May, 1787.

Duties and Necessities of Congress.—Requisitions on the States.—Revenue System of 1783.

CHAPTER II.
1784-1787.

Infractions of the Treaty of Peace.

CHAPTER III.
1786-1787.

No Security afforded by the Confederation to the State Governments.—Shays's Rebellion in Massachusetts, and its Kindred Disturbances.

CHAPTER IV.

Origin and Necessity of the Power to regulate Commerce.

CHAPTER V.
1783-1787.

The Public Lands.—Government of the Northwestern Territory.—Threatened Loss of the Western Settlements.

CHAPTER VI.
1783-1787.

Decay and Failure of the Confederation.—Progress of Opinion.—Steps which led to the Convention of 1787.—Influence and Exertions of Hamilton.—Meeting of the Convention.

CHAPTER VII.

The Framers of the Constitution.—Washington, President of the Convention.

CHAPTER VIII.

Hamilton.

CHAPTER IX.

Madison.

CHAPTER X.

Franklin.

CHAPTER XI.

Gouverneur Morris.

CHAPTER XII.

King.

CHAPTER XIII.

Charles Cotesworth Pinckney.

CHAPTER XIV.

Wilson.

CHAPTER XV.

Randolph.

CHAPTER XVI.

Conclusion of the Present Volume.

APPENDIX.

BOOK I.

THE CONSTITUTIONAL HISTORY OF THE UNITED STATES, FROM THE COMMENCEMENT OF THE REVOLUTION TO THE ADOPTION OF THE ARTICLES OF CONFEDERATION.

CHAPTER I.

1774-1775.

Organization of the First Continental Congress.—Origin of the Union.

The thirteen British colonies in North America, by whose inhabitants the American Revolution was achieved, were, at the commencement of that struggle, so many separate communities, having, to a considerable extent, different political organizations and different municipal laws: but their various populations spoke almost universally the English language. These colonies were Virginia, Massachusetts, New Hampshire, Connecticut, Rhode Island, Maryland, New York, New Jersey, Pennsylvania, Delaware, North Carolina, South Carolina, and Georgia. From the times when they were respectively settled, until the union formed under the necessities of a common cause at the breaking out of the Revolution, they had no political connection; but each possessed a domestic government peculiar to itself, derived directly from the crown of England, and more or less under the direct control of the mother country.

The political organizations of the colonies have been classed by jurists and historians under the three heads of Provincial, Proprietary, and Charter governments.

To the class of Provincial governments belonged the Provinces of New Hampshire, New Jersey, Virginia, the two Carolinas, and Georgia. These had no other written constitutions, or fundamental laws, than the commissions issued to the Governors appointed by the crown, explained by the instructions which accompanied them. The Governor, by his commission, was made the representative or deputy of the King, and was obliged to act in conformity with the royal instructions. He was assisted by a Council, the members of which, besides participating with him, to a certain extent, in the executive functions of the government, constituted the upper house of the provincial legislature; and he was also authorized to summon a general assembly of representatives of the freeholders of the Province. The three branches thus convened, consisting of the Governor, the Council, and the Representatives, constituted the provincial Assemblies, having the power of local legislation, subject to the ratification and disapproval of the crown. The direct control of the crown over these provincial governments may also be traced in the features, common to them all, by which the Governor had power to suspend the members of the Council from office, and, whenever vacancies occurred, to appoint to those vacancies, until the pleasure of the crown should be known; to negative all the proceedings of the assembly; and to prorogue or dissolve it at his pleasure.

The Proprietary governments, consisting of Maryland, Pennsylvania, and Delaware, were those in which the subordinate powers of legislation and government had been granted to certain individuals called the proprietaries, who appointed the Governor and authorized him to summon legislative assemblies. The authority of the proprietaries, or of the legislative bodies assembled by the Governor, was restrained by the condition, that the ends for which the grant was made to them by the crown should be substantially pursued in their legislation, and that nothing should be done, or attempted, which might derogate from the sovereignty of the mother country. In Maryland, the laws enacted by the proprietary government were not subject to the direct control of the crown; but in Pennsylvania and Delaware they were.[2]

The Charter governments, consisting, at the period of the Revolution, of Massachusetts, Rhode Island, and Connecticut, may be said, in a stricter sense, to have possessed written constitutions for their general political government. The charters, granted by the crown, established an organization of the different departments of government similar to that in the provincial governments. In Massachusetts, after the charter of William and Mary granted in 1691, the Governor was appointed by the crown; the Council were chosen annually by the General Assembly, and the House of Representatives by the people. In Connecticut and Rhode Island, the Governor, Council, and Representatives were chosen annually by the freemen of the colony. In the charter, as well as the provincial governments, the general power of legislation was restrained by the condition, that the laws enacted should be, as nearly as possible, agreeable to the laws and statutes of England.

One of the principal causes which precipitated the war of the Revolution was the blow struck by Parliament at these charter governments, commencing with that of Massachusetts, by an act intended to alter the constitution of that Province as it stood upon the charter of William and Mary; a precedent which justly alarmed the entire continent, and in its principle affected all the colonies, since it assumed that none of them possessed constitutional rights which could not be altered or taken away by an act of Parliament. The "Act for the better regulating the government of the Province of Massachusetts Bay," passed in 1774, was designed to create an executive power of a totally different character from that created by the charter, and also to remodel the judiciary, in order that the laws of the imperial government might be more certainly enforced.

The charter had reserved to the King the appointment of the Governor, Lieutenant-Governor, and Secretary of the Province. It vested in the General Assembly the choice of twenty-eight councillors, subject to rejection by the Governor; it gave to the Governor, with the advice and consent of the Council, the appointment of all military and judicial officers, and to the two houses of the legislature the appointment of all other civil officers, with a right of negative by the Governor. The new law vested the appointment of councillors, judges, and magistrates of all kinds, in the crown, and in some cases in the Governor, and made them all removable at the pleasure of the crown. A change so radical as this, in the constitution of a people long accustomed to regard their charter as a compact between themselves and the crown, could not but lead to the most serious consequences.

The statements which have now been made are sufficient to remind the reader of the important fact, that, at the commencement of the Revolution, there existed, and had long existed, in all the colonies, local legislatures, one branch of which was composed of representatives chosen directly by the people, accustomed to the transaction of public business, and being in fact the real organs of the popular will. These bodies, by virtue of their relation to the people, were, in many instances, the bodies which took the initiatory steps for the organization of the first national or Continental Congress, when it became necessary for the colonies to unite in the common purpose of resistance to the mother country. But it should be again stated, before we attend to the steps thus taken, that the colonies had no direct political connection with each other before the Revolution commenced, but that each was a distinct community, with its own separate political organization, and without any power of legislation for any but its own inhabitants; that, as political communities, and upon the principles of their organizations, they possessed no power of forming any union among themselves, for any purpose whatever, without the sanction of the Crown or Parliament of England.[3] But the free and independent power of forming a union among themselves, for objects and purposes common to them all, which was denied to their colonial condition by the principles of the English Constitution, was one of the chief powers asserted and developed by the Revolution; and they were enabled to effect this union, as a revolutionary right and measure, by the fortunate circumstances of their origin, which made the people of the different colonies, in several important senses, one people. They were, in the first place, chiefly the descendants of Englishmen, governed by the laws, inheriting the blood, and speaking the language of the people of England. As British subjects, they had enjoyed the right of dwelling in any of the colonies, without restraint, and of carrying on trade from one colony to another, under the regulation of the general laws of the empire, without restriction by colonial legislation. They had, moreover, common grievances to be redressed, and a common independence to establish, if redress could not be obtained: for although the precise grounds of dispute with the Crown or the Parliament of England had not always been the same in all the colonies, yet when the Revolution actually broke out, they all stood in the same attitude of resistance to the same oppressor, making common cause with each other, and resting upon certain great principles of liberty, which had been violated with regard to many of them, and with the further violation of which all were threatened.

It was while the controversies between the mother country and the colonies were drawing towards a crisis, that Dr. Franklin, then in England as the political agent of Pennsylvania, of Massachusetts, and of Georgia, in an official letter to the Massachusetts Assembly, dated July 7th, 1773, recommended the assembling of a general congress of all the colonies. "As the strength of an empire," said he, "depends not only on the union of its parts, but on their readiness for united exertion of their common force; and as the discussion of rights may seem unseasonable in the commencement of actual war, and the delay it might occasion be prejudicial to the common welfare; as likewise the refusal of one or a few colonies would not be so much regarded, if the others granted liberally, which perhaps by various artifices and motives they might be prevailed on to do; and as this want of concert would defeat the expectation of general redress, that might otherwise be justly formed; perhaps it would be best and fairest for the colonies, in a general congress now in peace to be assembled, or by means of the correspondence lately proposed, after a full and solemn assertion and declaration of their rights, to engage firmly with each other, that they will never grant aids to the crown in any general war, till those rights are recognized by the King and both houses of Parliament; communicating at the same time to the crown this their resolution. Such a step I imagine will bring the dispute to a crisis."[4]

The first actual step towards this measure was taken in Virginia. A new House of Burgesses had been summoned by the royal Governor to meet in May, 1774. Soon after the members had assembled at Williamsburg, they received the news that, by an act of Parliament, the port of Boston was to be closed on the first day of the succeeding June, and that other disabilities were to be inflicted on the town. They immediately passed an order, setting apart the first day of June as a day of fasting, humiliation, and prayer, "to implore the Divine interposition for averting the heavy calamity which threatened destruction to their civil rights, and the evils of civil war, and to give them one heart and one mind firmly to oppose, by all just and proper means, every injury to American rights." Thereupon, the Governor dissolved the House. But the members immediately assembled at another place of meeting, and, having organized themselves as a committee, drew up and subscribed an Association, in which they declared that the interests of all the colonies were equally concerned in the late doings of Parliament, and advised the local Committee of Correspondence to consult with the committees of the other colonies on the expediency of holding a general Continental Congress. Pursuant to these recommendations, a popular convention was holden at Williamsburg, on the 1st of August, which appointed seven persons as delegates to represent the people of Virginia in a general Congress to be held at Philadelphia in the September following.[5]

The Massachusetts Assembly met on the last of May, and, after negativing thirteen of the Councillors, Governor Gage adjourned the Assembly to meet at Salem on the 7th of June. When they came together at that place, the House of Representatives passed a resolve, declaring a meeting of committees from the several colonies on the continent to be highly expedient and necessary, to deliberate and determine upon proper measures to be recommended to all the colonies for the recovery and establishment of their just rights and liberties, civil and religious, and for the restoration of union and harmony with Great Britain. They then appointed five delegates[6] to meet the representatives of the other colonies in congress at Philadelphia, in the succeeding September.

These examples were at once followed by the other colonies. In some of them, the delegates to the Continental Congress were appointed by the popular branch of the legislature, acting for and in behalf of the people; in others, they were appointed by conventions of the people called for the express purpose, or by committees duly authorized to make the appointment.[7] The Congress, styling themselves "the delegates appointed by the good people of these colonies," assembled at Philadelphia on the 5th of September, 1774, and organized themselves as a deliberative body by the choice of officers and the adoption of rules of proceeding. Peyton Randolph of Virginia was elected President, and Charles Thompson of Pennsylvania Secretary of the Congress.

No precedent existed for the mode of action to be adopted by this assembly. There was, therefore, at the outset, no established principle which might determine the nature of the union; but that union was to be shaped by the new circumstances and relations in which the Congress found itself placed. There had been no general concert among the different colonies as to the numbers of delegates, or, as they were called in many of the proceedings, "committees" of the colonies, to be sent to the meeting at Philadelphia. On the first day of their assembling, Pennsylvania and Virginia had each six delegates in attendance; New York had five; Massachusetts, New Jersey, and South Carolina had four each; Connecticut had three; New Hampshire, Rhode Island, Delaware, and Maryland had two each. The delegates from North Carolina did not arrive until the 14th.[8]

As soon as the choice of officers had taken place,[9] the method of voting presented itself as the first thing to be determined; and the difficulties arising from the inequalities between the colonies in respect to actual representation, population, and wealth, had to be encountered upon the threshold. Insuperable obstacles stood in the way of the adoption of interests as the basis of votes. The weight of a colony could not be ascertained by the numbers of its inhabitants, the amount of their wealth, the extent of their trade, or by any ratio to be compounded of all these elements, for no authentic evidence existed from which data could be taken.[10] As it was apparent, however, that some colonies had a larger proportion of members present than others, relatively to their size and importance, it was thought to be equally objectionable to adopt the method of voting by polls. In these circumstances, the opinion was advanced, that the colonial governments were at an end; that all America was thrown into one mass, and was in a state of nature; and consequently, that the people ought to be considered as represented in the Congress according to their numbers, by the delegations actually present.[11] Upon this principle, the voting should have been by polls.

But neither the circumstances under which they were assembled, nor the dispositions of the members, permitted an adoption of the theory that all government was at an end, or that the boundaries of the colonies were effaced. The Congress had not assembled as the representatives of a people in a state of nature, but as the committees of different colonies, which had not yet severed themselves from the parent state. They had been clothed with no legislative or coercive authority, even of a revolutionary nature; compliance with their resolves would follow only on conviction of the utility of their measures; and all their resolves and all their measures were, by the express terms of many of their credentials, limited to the restoration of union and harmony with Great Britain, which would of course leave the colonies in their colonial state. The people of the continent, therefore, as a people in the state of nature, or even in a national existence as one people standing in a revolutionary attitude, had not then come into being.

The nature of the questions, too, which they were to discuss, and of the measures which they were to adopt, were to be considered in determining by what method of voting those questions and measures should be decided. The Congress had been called to secure the rights of the colonies. What were those rights? By what standard were they to be ascertained? By the law of nature, or by the principles of the English Constitution, or by the charters and fundamental laws of the colonies, regarded as compacts between the crown and the people, or by all of these combined? If the law of nature alone was to determine their rights, then all allegiance to the British crown was to be regarded as at an end. If the principles of the English Constitution, or the charters, were to be the standard, the law of nature must be excluded from consideration. This exclusion would of necessity narrow the ground, and deprive them of a resource to which Parliament might at last compel them to look.[12] In order, therefore, to leave the whole field open for consideration, and at the same time to avoid committing themselves to principles irreconcilable with the preservation of allegiance and their colonial relation to Great Britain, it was necessary to consider themselves as an assembly of committees from the different colonies, in which each colony should have one voice, through the delegates whom it had sent to represent and act for it. But, as if foreseeing the time when population would become of necessity the basis of congressional power, when the authority of Parliament should have given place to a system of American continental legislation, they inserted, in the resolve determining that each colony should have one vote, a caution that would prevent its being drawn into precedent. They declared, as the reason for the course which they adopted, that the Congress were not possessed of, or able to procure, the proper materials for ascertaining the importance of each colony.[13]

It appears, therefore, very clear, that an examination of the relations of the first Congress to the colonies which instituted it will not enable us to assign to it the character of a government. Its members were not elected for the express purpose of making a revolution. It was an assembly convened from separate colonies, each of which had causes of complaint against the imperial government to which it acknowledged its allegiance to be due, and each of which regarded it as essential to its own interests to make common cause with the others, for the purpose of obtaining redress of its own grievances. The idea of separating themselves from the mother country had not been generally entertained by the people of any of the colonies. All their public proceedings, from the commencement of the disputes down to the election of delegates to the first Congress, including the instructions given to those delegates, prove, as we have seen, that they looked for redress and relief to means which they regarded as entirely consistent with the principles of the British Constitution.[14]

Still, although this Congress did not take upon themselves the functions of a government, or propose revolution as a remedy for the wrongs of their constituents, they regarded and styled themselves as "the guardians of the rights and liberties of the colonies";[15] and in that capacity they proceeded to declare the causes of complaint, and to take the necessary steps to obtain redress, in what they believed to be a constitutional mode. These steps, however, although not directly revolutionary, had a revolutionary tendency.

On the 6th of September, 1774, a resolve was passed, that a committee be appointed to state the rights of the colonies in general, the several instances in which those rights had been violated or infringed, and the means most proper to be pursued for obtaining a restoration of them. Another committee was ordered on the same day, to examine and report the several statutes affecting the trade and manufactures of the colonies. On the following day, it was ordered that the first committee should consist of two members, and the second of one member, from each of the colonies.[16] Two questions presented themselves to the first of these committees, and created a good deal of embarrassment. The first was, whether, in stating the rights of the colonies, they should recur to the law of nature, as well as to the British Constitution and the American charters and grants. The second question related to the authority which they should allow to be in Parliament;—whether they should deny it wholly, or deny it only as to internal affairs, admitting it as to external trade; and if the latter, to what extent and with what restrictions. It was soon felt that this question of the authority of Parliament was the essence of the whole controversy. Some denied it altogether. Others denied it as to every species of taxation; while others admitted it to extend to the regulation of external trade, but denied it as to all internal affairs. The discussions had not proceeded far, before it was perceived that this subject of the regulation of trade might lead directly to the question of the continuance of the colonial relations with the mother country. For this they were not prepared. It was apparent that the right of regulating the trade of the whole country, from the local circumstances of the colonies and their disconnection with each other, could not be exercised by the colonies themselves: it was thought that the aid, assistance, and protection of the mother country were necessary to them; and therefore, as a proper equivalent, that the colonies must admit the right of regulating the trade, to some extent and in some mode, to be in Parliament. The alternatives were, either to set up an American legislature, that could control and regulate the trade of the whole country, or else to give the power to Parliament. The Congress determined to do the latter; supposing that they could limit the admission, by denying that the power extended to taxation, but ceding at the same time the right to regulate the external trade of the colonies for the common benefit of the whole empire.[17] They grounded this concession upon "the necessities of the case," and "the mutual interests of both countries";[18] meaning by these expressions to assert that all legislative control over the external and internal trade of the colonies belonged of right to the colonies themselves, but, as they were part of an empire for which Parliament legislated, it was necessary that the common legislature of the whole empire should retain the regulation of the external trade, excluding all power of taxation for purposes of revenue, in order to secure the benefits of the trade of the whole empire to the mother country.

The Congress, therefore, after having determined to confine their statement to such rights as had been infringed by acts of Parliament since the year 1763, unanimously adopted a Declaration of Rights, in which they summed up the grievances and asserted the rights of the colonies. This document placed the rights of the colonies upon the laws of nature, the principles of the English Constitution, and the several charters or compacts. It declared, that, as the colonies were not, and from their local situation could not be, represented in the English Parliament, they were entitled to a free and exclusive power of legislation in their several provincial legislatures, where their right of representation could alone be preserved, in all cases of taxation and internal polity, subject only to the negative of their sovereign, in such manner as had been before accustomed. At the same time, from the necessity of the case and from a regard to the mutual interests of both countries, they cheerfully consented to the operation of such acts of Parliament as were in good faith limited to the regulation of their external commerce, for the purpose of securing the commercial advantages of the whole to the mother country, and the commercial benefit of its respective members; excluding every idea of taxation, internal and external, for raising a revenue on the subjects in America, without their consent.[19]

In addition to this, they asserted, as great constitutional rights inherent in the people of all these colonies, that they were entitled to all the rights, liberties, and immunities of free and natural-born subjects within the realm of England; to the common law of England, and especially to trial by a jury of the vicinage; to the immunities and privileges granted and confirmed to them by royal charters, or secured by their several codes of provincial laws; and to the right of peaceably assembling to consider grievances and to petition the King.[20]

In order to enforce their complaints upon the attention of the government and people of Great Britain, and as the sole means which were open to them, short of actual revolution, of coercing the ministry into a change of measures, they resolved that after the 10th of September, 1775, the exportation of all merchandise, and every commodity whatsoever, to Great Britain, Ireland, and the West Indies, ought to cease, unless the grievances of America should be redressed before that time; and that after the first day of December, 1774, there should be no importation into British America, from Great Britain or Ireland, of any goods, wares, or merchandise whatever, or from any other place, of any such goods, wares, or merchandise as had been exported from Great Britain or Ireland, and that no such goods, wares, or merchandise be used or purchased.[21] They then prepared an association, or agreement, of non-importation, non-exportation, and non-consumption, in order, as far as lay in their power, to cause a general compliance with their resolves. This association was subscribed by every member of the Congress, and was by them recommended for adoption to the people of the colonies, and was very generally adopted and acted upon.[22] They resorted to this as the most speedy, effectual, and peaceable measure to obtain a redress of the grievances of which the colonies complained; and they entered into the agreement on behalf of the inhabitants of the several colonies for which they acted.

This Congress, which sat from the 5th of September to the 26th of October, 1774, had thus made the restoration of commercial intercourse between the colonies and the other parts of the British empire to depend upon the repeal by Parliament of the obnoxious measures of which they complained, and upon the recognition of the rights which they asserted; for although their acts had not the foundation of laws, the general adoption of their recommendations throughout the colonies gave them a power that laws rarely possess. Before they adjourned, they recommended that another Congress of all the colonies should be held at Philadelphia on the 10th of the following May, unless their grievances were redressed before that time, and that the deputies to such new Congress should be chosen immediately.[23]

But while the Continental Congress were engaged in the adoption of these measures of constitutional resistance, and still acknowledged their colonial relations to the imperial government, the course of events in Massachusetts had put an end to the forms of law and government in that colony, as established or upheld by imperial authority. The last Assembly held in the Province upon the principles of its charter had been dissolved by the Governor's proclamation, at Salem, on the 17th of June, 1774. The new law for the alteration of the government had taken effect; and in August the Governor received from England a list of thirty-six councillors, who were to be called into office by the King's writ of mandamus, instead of being elected, as under the charter, by the House of Representatives. Two thirds of the number accepted their appointment; but popular indignation, treating them as enemies of their country, compelled the greater part of them to renounce their offices. The new judges were prevented everywhere from proceeding with the business of the courts, which were obstructed by assemblies of the people, who would permit no judge to exercise his functions, save in accordance with the ancient laws and usages of the Colony.

Writs had been issued for a new General Assembly, which was to meet at Salem in October; but it was found, that, while the old constitution had been taken away by act of Parliament, the new one had been rejected by the people. The compulsory resignation of so many of the councillors left that body without power, and the Governor deemed it expedient to countermand the writs by proclamation, and to defer the holding of the Assembly until the popular temper should have had time to cool. But the legality of the proclamation was denied; the elections were everywhere held, and the members elect assembled at Salem, pursuant to the precepts. There they waited a day for the Governor to attend, administer the oaths, and open the session; but as he did not appear, they resolved themselves into a Provincial Congress, to be joined by others who had been or might be elected for that purpose, and adjourned to the town of Cambridge, to take into consideration the affairs of the Colony, in which the regular and established government was now at an end. Their acts were at first couched in the form of recommendations to the people, whose ready compliance gave to them the weight and efficacy of laws, and there was thus formed something like a new and independent government. Under the form of recommendation and advice, they settled the militia, regulated the public revenue, provided arms, and prepared to resist the British troops. In December, 1774, they elected five persons to represent the Colony in the Continental Congress that was to assemble at Philadelphia in the ensuing May. They were met by a proclamation, issued by the Governor, in which their assembly was declared unlawful, and the people were prohibited, in the King's name, from complying with their recommendations, requisitions, or resolves. Through the winter, the Governor held the town of Boston, with a considerable body of royal troops, but the rest of the Province generally yielded obedience to the Provincial Congress. In this posture of affairs, the encounter between a detachment of the King's forces and a body of militia, commonly called the battle of Lexington, occurred, on the 19th of April, 1775.

CHAPTER II

1775-1776.

The Second Continental Congress.—Formation and Character of the Revolutionary Government.—Appointment of a Commander-in-Chief.—First Army of the Revolution.

A new Continental Congress assembled at Philadelphia on the 10th of May, 1775; and in order to observe the growth of the Union, it is necessary to trace the organization of this body, and to describe briefly the kind of sovereignty which it exercised, from the time of its assembling until the adoption and promulgation of the Declaration of Independence.[24]

The delegates to this Congress were chosen partly by the popular branch of such of the colonial legislatures as were in session at the time, the choice being afterwards ratified by conventions of the people; but they were principally appointed by conventions of the people held in the various colonies. All these appointments, except those made in New York, took place before the battle of Lexington, and most of them had been made in the course of the previous winter.[25] The credentials of the delegates, therefore, while they conferred authority to adopt measures to recover and establish American rights, still expressed, in many instances, a desire for the restoration of harmony between Great Britain and her colonies. In some cases, however, this desire was not expressed, but a naked authority was granted, to consent and agree to all such measures as the Congress should deem necessary and effectual to obtain a redress of American grievances.

When this Congress assembled, it seems to have been tacitly assumed that each colony should continue to have one vote through its delegation actually present. All the thirteen colonies were represented at the opening of the session, except Georgia and Rhode Island. Three days after the session commenced, a delegate appeared from the Parish of St. Johns in Georgia, who was admitted to a seat, but did not claim the right of voting for the colony. On the 15th of May, a delegation from Rhode Island appeared and took their seats.

The credentials of the delegates contained no limitation of their powers with respect to time, with the exception of those from Massachusetts and South Carolina, whose authority was not to extend beyond the end of the year. The Congress continued in session until the 1st of August, and then adjourned for a recess to the 5th of September. When they were again assembled, the delegations of several of the colonies were renewed, with different limitations as to their time of service. Georgia sent a full delegation, who took their seats on the 13th of September. Still later, the delegations of several other colonies were renewed from time to time, and this practice was pursued both before and after the Declaration of Independence, thus rendering the Congress a permanent body.[26]

Notwithstanding the absence of any express authority in their instructions to enter upon revolutionary measures, the circumstances under which the Congress assembled placed it in the position and cast upon it the powers of a revolutionary government. Civil war had actually commenced, and blood had been shed. Whether this war was to be carried on for independence, or was only to be waged until the British ministry could be compelled to acknowledge the rights which the colonies had asserted, the Congress necessarily became, at once, the organ of the common resistance of the colonies against the parent state. The first thing which evinces its new relation to the country was the application made to it by the Provincial Congress of Massachusetts, immediately after the battle of Lexington, for direction and assistance. While they informed the Continental Congress that they had proceeded, at once, to raise a force of thirteen thousand six hundred men, and had made proposals to the other New England colonies to furnish men in the same proportions, stating that the sudden exigency of their affairs precluded the possibility of waiting for direction, they suggested that an American army ought forthwith to be raised for the common cause.[27] In the same manner, the city and county of New York applied for the advice of Congress, how to conduct themselves with regard to the British troops expected in that quarter. These applications caused the Congress at once to resolve itself into a committee of the whole, to take into consideration the state of America.[28]

These proceedings were soon followed by another application on the part of the Provincial Convention of Massachusetts, setting forth the difficulties under which they were laboring for want of a regular form of government; requesting explicit advice respecting the formation of a new government; and offering to submit to such a general plan as the Congress might direct for the colonies, or to endeavor to form such a government for themselves as should not only promote their own advantage, but the union and interest of the whole country.[29]

Placed in this manner at the head of American affairs, the Continental Congress proceeded, at once, to put the country into a state of defence, and virtually assumed a control over the military operations of all the colonies. They appointed committees to prepare reports on military measures: first, to recommend what posts should be occupied in the city of New York; secondly, to devise ways and means for procuring ammunition and military stores; thirdly, to make an estimate of the moneys necessary to be raised; and fourthly, to prepare rules and regulations for the government of the army.

They then proceeded to create a continental, or national army. To the battle of Lexington had succeeded the investment of Boston, by an army composed of regiments raised by the New England provinces, under the command of General Ward of Massachusetts. This army was adopted by the Congress; and, with other forces raised for the common defence, became known and designated as the American Continental Army.[30] Six companies of riflemen were ordered to be immediately raised in Pennsylvania, two in Maryland, and two in Virginia, and directed to join the army near Boston, and to be paid by the continent.[31]

On the 15th of June, 1775, Colonel George Washington, one of the delegates in Congress from Virginia, was unanimously chosen to be commander-in-chief of the continental forces.[32] Having accepted the appointment, he received from the Congress a commission, together with a resolution by which they pledged their lives and fortunes to maintain, assist, and adhere to him in his great office, and a letter of instructions, in which they charged him to make it his special care, "that the liberties of America receive no detriment."[33] In the commission given to the general, the style of "the United Colonies" was for the first time adopted, and the defence of American Liberty was assumed as the great object of their union.[34] On the 21st of June, Washington left Philadelphia to take command of the army, and arrived at Cambridge in Massachusetts on the 2d of July. Four major-generals and eight brigadier-generals were also appointed by the Congress for the continental army; rules and regulations for its government were adopted and proclaimed, and the pay of the officers and privates was fixed.[35]

The Congress also proceeded, as the legislative authority of the United Colonies, to create a continental currency, in order to defray the expenses of the war. This was done by issuing two millions of dollars, in bills of credit, for the redemption of which the faith of the confederated colonies was pledged. A quota of this sum was apportioned to each colony, and each colony was made liable to discharge its proportion of the whole, but the United Colonies were obligated to pay any part which either of the colonies should fail to discharge.[36] The first of these quotas was made payable in four, the second in five, the third in six, and the fourth in seven years from the last day of November, 1775, and the provincial assemblies or conventions were required, by the resolves of the Congress, to provide taxes in their respective provinces or colonies, to discharge their several quotas.[37] The Congress also directed reprisals to be made, both by public and private armed vessels, against the ships and goods of the inhabitants of Great Britain found on the high seas, or between high and low water-mark; this being a measure of retaliation against an act of Parliament, which had authorized the capture and condemnation of American vessels, and which was considered equivalent to a declaration of war. They also threw open the ports of the United Colonies to all the world, except the dominions and dependencies of Great Britain.

Further, they established a general Treasury Department, by the appointment of two joint Treasurers of the United Colonies, who were required to give bonds for the faithful performance of the duties of their office,[38] and they organized a general Post-Office, by the appointment of a Postmaster-General for the United Colonies, to hold his office at Philadelphia, to appoint deputies, and to establish a line of posts from Falmouth in Massachusetts to Savannah in Georgia, with such cross posts as he should judge proper.[39]

The proceedings of the Congress on the subject of the Militia were, of course, in the nature of recommendations only. They advised the arming and training of the militia of New York, in May, 1775,[40] and in July they recommended to all the colonies to enroll all the able-bodied, effective men among their inhabitants, between sixteen and fifty years of age, and to form them into proper regiments.[41] The powers of the Congress to call into the field the militia thus embodied were considered to be subject to the consent of those exercising the executive powers of government in the colony, for the time being.[42]

The relations of the country with the Indian tribes and nations were deemed to be properly within the exclusive jurisdiction of the Congress. Three departments of Indian Affairs, Northern, Southern, and Middle, with separate commissioners for each, were therefore established in July, having power to treat with the Indians in the name and on behalf of the United Colonies.[43] Negotiations and treaties were entered into by these departments, and all affairs with the Indians were conducted by them, under the direction and authority of the Congress.[44]

With regard to those inhabitants of the country who adhered to the royalist side of the controversy, the Congress of 1775-6 did not assume and exercise directly the powers of arrest or restraint, but left the exercise of such powers to the provincial assemblies, or conventions, and committees of safety, in the respective colonies, with recommendations from time to time as to the mode in which such powers ought to be exercised.[45]

Besides all this, the different applications made to the Congress by the people of Massachusetts,[46] of New Hampshire,[47] of Virginia,[48] and of South Carolina, concerning the proper exercise of the powers of government in those colonies, and the answers to those applications, furnish very important illustrations of the position in which the Congress were placed. To the people of Massachusetts, they declared that no obedience was due to the act of Parliament for altering their charter, and that, as the Governor and Lieutenant-Governor would not observe the directions of that instrument, but had endeavored to subvert it, their offices ought to be considered vacant; and, as the Council was actually vacant, in order to conform as near as might be to the spirit and substance of the charter, they recommended to the Provincial Convention to write letters to the inhabitants of the several towns entitled to representation in the Assembly, requesting them to choose representatives, and requesting the Assembly when chosen to elect councillors; adding their wish, that these bodies should exercise the powers of government until a Governor of the King's appointment would consent to govern the colony according to its charter.[49] The Provincial Conventions of New Hampshire, Virginia, and South Carolina were advised to call a full and free representation of the people, in order to establish such a form of government as, in their judgment, would best promote the happiness of the people and most effectually secure peace and good order in their Provinces, during the continuance of the dispute with Great Britain.[50] This advice manifestly contemplated the establishment of provisional governments only.

But between the date of these last proceedings and the following spring a marked change took place, both in the expectations and wishes of the people of most of the colonies, with regard to an accommodation of the great controversy. The last petition of the Congress to the King was refused a hearing in Parliament, as emanating from an unlawful assembly, in arms against their sovereign. In November, the town of Falmouth in Massachusetts was bombarded and destroyed by the King's cruisers. In the latter part of December, an act was passed in Parliament, prohibiting all trade and commerce with the colonies; warranting the capture and condemnation of all American vessels, with their cargoes, and authorizing the commanders of the King's ships to compel the masters, crews, and other persons found in such vessels, to enter the King's service. The act also empowered the King to appoint commissioners, with authority to grant pardon, on submission, to individuals and to colonies, and after such submission to exempt them from its operation.[51] Great preparations were made to reduce the colonies to the submission required by this act, and a part of the troops that were to be employed were foreign mercenaries.

The necessity of a complete separation from the mother country, and the establishment of independent governments, had, therefore, in the winter of 1775-6, become apparent to the people of America. Accordingly, the Congress, asserting it to be irreconcilable to reason and good conscience for the people of the colonies any longer to take the oaths and affirmations necessary for the support of any government under the crown of Great Britain, and declaring that the exercise of every kind of authority under that crown ought to be suppressed, and a government of the people of the colonies substituted in its place, recommended to the respective assemblies and conventions of the colonies, where no government sufficient for the exigencies of their affairs had been already established, to adopt such a government as in the opinion of the representatives of the people would best conduce to the happiness and safety of their constituents and of America in general.[52]

It is apparent, therefore, that, previously to the Declaration of Independence, the people of the several colonies had established a national government of a revolutionary character, which undertook to act, and did act, in the name and with the general consent of the inhabitants of the country. This government was established by the union, in one body, of delegates representing the people of each colony; who, after they had thus united for national purposes, proceeded, in their respective jurisdictions, by means of conventions and other temporary arrangements, to provide for their domestic concerns by the establishment of local governments, which should be the successors of that authority of the British crown which they had "everywhere suppressed." The fact that these local or state governments were not formed until a union of the people of the different colonies for national purposes had already taken place, and until the national power had authorized and recommended their establishment, is of great importance in the constitutional history of this country; for it shows that no colony, acting separately for itself, dissolved its own allegiance to the British crown, but that this allegiance was dissolved by the supreme authority of the people of all the colonies, acting through their general agent, the Congress, and not only declaring that the authority of Great Britain ought to be suppressed, but recommending that each colony should supplant that authority by a local government, to be framed by and for the people of the colony itself.

The powers exercised by the Congress, before the Declaration of Independence, show, therefore, that its functions were those of a revolutionary government. It is a maxim of political science, that, when such a government has been instituted for the accomplishment of great purposes of public safety, its powers are limited only by the necessities of the case out of which they have arisen, and of the objects for which they were to be exercised. When the acts of such a government are acquiesced in by the people, they are presumed to have been ratified by the people. To the case of our Revolution, these principles are strictly applicable, throughout. The Congress assumed, at once, the exercise of all the powers demanded by the public exigency, and their exercise of those powers was fully acquiesced in and confirmed by the people. It does not at all detract from the authoritative character of their acts, nor diminish the real powers of the Revolutionary Congress, that it was obliged to rely on local bodies for the execution of most of its orders, or that it couched many of those orders in the form of recommendations. They were complied with and executed, in point of fact, by the provincial congresses, conventions, and local committees, to such an extent as fully to confirm the revolutionary powers of the Congress, as the guardians of the rights and liberties of the country. But we shall see, in the further progress of the history of the Congress, that while its powers remained entirely revolutionary, and were consequently coextensive with the great national objects to be accomplished, the want of the proper machinery of civil government and of independent agents of its own rendered it wholly incapable of wielding those powers successfully.

NOTE TO PAGE 33.

ON WASHINGTON'S APPOINTMENT AS COMMANDER-IN-CHIEF.

The circumstances which attended the appointment of Washington to this great command are now quite well known. He had been a member of the Congress of 1774, and his military experience and accomplishments, and the great resources of his character, had caused his appointment on all the committees charged with making preparations for the defence of the colonies. Returned as a delegate from Virginia to the Congress of 1775, his personal qualifications pointed him out as the fittest person in the whole country to be invested with the command of any army which the United Colonies might see fit to raise; and it is quite certain that there would have been no hesitation about the appointment, if some political considerations had not been suggested as obstacles. At the moment when the choice was to be made, the scene of actual operations was in Massachusetts, where an army composed of troops wholly raised by the New England colonies, and under the command of General Ward, of that Province, was besieging the enemy in Boston. This army was to be adopted by the Congress into the service of the continent, and serious doubts were entertained by some of the members of the Congress as to the policy of appointing a Southern general to the command of it, and a good deal of delicacy was felt on account of General Ward, who, it was thought, might consider himself injured by such an appointment. On the other hand, there were strong reasons for selecting a general-in-chief from Virginia. That colony had taken the lead, among the Southern provinces, in the cause of the continent, and the appointment seemed to be due to her, if it was to be made upon political considerations. The motives for this policy were deemed sufficient to outweigh the objections arising from the character and situation of the army which the general would, in the first instance, have to command. But after all, it cannot be doubted, that the preëminent qualifications of Washington had far more weight with the majority of the Congress, than any dictates of mere policy, between one part of the Union and another, or any local jealousies or sectional ambition.

Mr. John Adams, whose recently published autobiography contains some statements on this subject, speaks of the existence of a Southern party against a Northern, and a jealousy against a New England army under the command of a New England general, which, he says, he discovered after the Congress had been some time in session, and after the necessity of having an army and a general had become a topic of conversation. (Works, II. 415.) In a letter, also, written by Mr. Adams in 1822 to Timothy Pickering, he states that, on the journey to Philadelphia, he and a party of his colleagues, the delegates from Massachusetts to this Congress, were met at Frankfort by Dr. Rush, Mr. Mifflin, Mr. Bayard, and others of the Philadelphia patriots, who desired a conference with them; that, in this conference, the Philadelphia gentlemen strongly advised the Massachusetts delegates not to come forward with bold measures, or to endeavor to take the lead; and represented that Virginia was the most populous State in the Union, proud of its ancient dominions, and that "they [the Virginians] think they have a right to take the lead, and the Southern States, and the Middle States, too, are too much disposed to yield it to them."

"I must confess," says Mr. Adams, "that there appeared so much wisdom and good sense in this, that it made a deep impression on my mind, and it had an equal effect on all my colleagues." "This conversation," he continues, "and the principles, facts, and motives suggested in it, have given a color, complexion, and character to the whole policy of the United States from that day to this. Without it, Mr. Washington would never have commanded our armies; nor Mr. Jefferson have been the author of the Declaration of Independence; nor Mr. Richard Henry Lee the mover of it; nor Mr. Chase the mover of foreign connections. If I have ever had cause to repent of any part of this policy, that repentance ever has been and ever will be unavailing. I had forgot to say, nor had Mr. Johnson ever have been the nominator of Washington for general." (Works, II. 512, 513.)

Without impeaching the accuracy of Mr. Adams's recollection, on the score of his age when this letter was written, and without considering here how or why Mr. Jefferson came to be the author of the Declaration of Independence, it is believed that Mr. Adams states other facts, in his autobiography, sufficient to show that motives of policy towards Virginia were not the sole or the principal reasons why Washington was elected general. Mr. Adams states in his autobiography, that at the time when he observed the professed jealousy of the South against a New England army under the command of a Northern general, it was very visible to him "that Colonel Washington was their object"; "and," he adds, "so many of our stanchest men were in the plan, that we could carry nothing without conceding it." (Works, II. 415.) When Mr. Adams came, as he afterwards did, to put himself at the head of this movement, and to propose in Congress that the army at Cambridge should be adopted, and that a general should be appointed, he referred directly to Washington as the person whom he had in his mind, and spoke of him as "a gentleman from Virginia who was among us and very well known to all of us, a gentleman whose skill and experience as an officer, whose independent fortune, great talents, and excellent universal character, would command the approbation of all America, and unite the cordial exertions of all the colonies better than any other person in the Union. Mr. Washington, who happened to sit near the door, as soon as he heard me allude to him, from his usual modesty, darted into the library-room." (Works, II. 417.) It is quite clear, therefore, that Mr. Adams put the appointment of Washington, in public, upon his qualifications and character, known all over the Union. He further states, that the subject came under debate, and that nobody opposed the appointment of Washington on account of any personal objection to him; and the only objection which he mentions as having been raised, was on the ground that the army near Boston was all from New England, and that they had a general of their own, with whom they were entirely satisfied. He mentions one of the Virginia delegates, Mr. Pendleton, as concurring in this objection; that Mr. Sherman of Connecticut and Mr. Cushing of Massachusetts also concurred in it, and that Mr. Paine of Massachusetts expressed strong personal friendship for General Ward, but gave no opinion upon the question. Afterwards, he says, the subject being postponed to a future day, "pains were taken out of doors to obtain a unanimity, and the voices were generally so clearly in favor of Washington, that the dissentient members were persuaded to withdraw their opposition, and Mr. Washington was nominated, I believe, by Mr. Thomas Johnson of Maryland, unanimously elected, and the army adopted." (Ibid.)

It is worth while to inquire, therefore, what were the controlling reasons, which so easily and so soon produced this striking unanimity. If it was brought about mainly by the exertions of a Southern against a Northern party, and by the yielding of Northern men to the Virginians from motives of policy, it would not have been accomplished with so much facility, although even a Washington were the candidate of Virginia. Sectional jealousies and sectional parties inflame each other; the struggles which they cause are protracted; and the real merits of men and things are lost sight of in the passions which they arouse. If policy, as a leading or a principal motive, gave to General Washington the great body of the Northern votes, there would have been more dissentients from that policy than any of the accounts authorize us to suppose there were, at any moment, while the subject was under consideration. Nor does the previous conduct of Virginia warrant the belief, that her subsequent exertions in the cause of American liberty were mainly purchased by the honors bestowed upon her great men, or by so much of precedence as was yielded in the public councils to the unquestionable abilities of her statesmen. Some of them had undoubtedly been in favor of measures of conciliation to a late period; and some of them, as Washington, Patrick Henry, and Richard Henry Lee, had been, from an early period, convinced that the sword must decide the controversy. They were perhaps as much divided upon this point, until the army at Boston was adopted, as the leading men of other colonies. But when the necessity of that measure became apparent, it was the peculiar happiness of Virginia to be able to present to the country, as a general, a man whose character and qualifications threw all local and political objects at once into the shade. In order to form a correct judgment, at the present day, of the motives which must have produced a unanimity so remarkable and so prompt, we have only to recollect the previous history of Washington, as it was known to the Congress, at the moment when he shrank from the mention of his name in that assembly.

He was forty-three years of age. From early youth, he had had a training that eminently fitted him for the great part which he was afterwards to play, and which unfolded the singular capacities of his character to meet the extraordinary emergencies of the post to which he was subsequently called. That training had been both in military and in civil life. His military career had been one of much activity and responsibility, and had embraced several brilliant achievements. In 1751, it became necessary to put the militia of Virginia in a condition to defend the frontiers against the French and the Indians. The province was divided into military districts, in each of which an adjutant-general, with the rank of major, was commissioned to drill and inspect the militia. Washington, at the age of nineteen, received the appointment to one of these districts; and in the following year, the province was again divided into four grand military divisions, of which the northern was assigned to him as adjutant-general. In 1753, the French crossed the lakes, to establish posts on the Ohio, and were joined by the Indians. Major Washington was sent by the Governor of Virginia to warn them to retire. This expedition was one of difficulty and of delicacy. He crossed the Alleghany Mountains, reached the Ohio, had interviews with the French commander and the Indians, and returned to Williamsburg to make report to the Governor. Of this journey, full of perilous adventures and narrow escapes, he kept a journal, which was published by the Governor; was copied into most of the newspapers of the other colonies; and was reprinted in London, as a document of much importance, exhibiting the views and designs of the French. In 1754, he was appointed, with the rank of lieutenant-colonel, second in command of the provincial troops raised by the Legislature to repel the French invasion. On the first encounter with a party of the enemy under Jumonville, on the 28th of May, 1754, the chief command devolved on Washington, in the absence of his superior. The French leader was killed, and most of his party were taken prisoners. Washington commanded also at the battle of the Great Meadows, and received a vote of thanks for his services from the House of Burgesses. This was in 1754, when he was at the age of twenty-two. During the next year, in consequence of the effect of some new arrangement of the provincial troops, he was reduced from the rank of colonel to that of captain, and thereupon retired from the army, with the consolation that he had received the thanks of his country for the services he had rendered. In 1755, he consented to serve as aide-de-camp to General Braddock, who had arrived from England with two regiments of regular troops. In this capacity he served in the battle of the Monongahela with much distinction. The two other aids were wounded and disabled early in the action, and the duty of distributing the General's orders devolved wholly upon Washington. It was in this battle that he acquired with the Indians the reputation of being under the special protection of the Great Spirit, because he escaped the aim of many of their rifles, although two horses were shot under him, and his dress was perforated by four bullets. His conduct on this occasion became known and celebrated throughout the country; and when he retired to Mount Vernon, as he did soon after, at the age of three-and-twenty, he not only carried with him a decisive reputation for personal bravery, but he was known to have given advice to Braddock, before the action, which all men saw, after it, would, if it had been duly heeded, have prevented his defeat. But he was not allowed to remain long in retirement. In August, 1755, he was appointed commander-in-chief of all the provincial forces of Virginia, and immediately entered upon the duties of reorganizing the old and raising new troops, in the course of which he visited all the outposts along the frontier. Soon afterwards, a dispute about rank having arisen with a person who claimed to take precedence of provincial officers because he had formerly held the King's commission, it became necessary for Colonel Washington to make a visit to Boston, in order to have the point decided by General Shirley, the commander-in-chief of his Majesty's armies in America. He commenced his journey on the 4th of February, 1756, and passed through Philadelphia, New York, New London, Newport, and Providence, and visited the Governors of Pennsylvania and New York. In all the principal cities his character, and his remarkable escape at Braddock's defeat, made him the object of a strong public interest. At Boston, he was received with marked distinction by General Shirley and by the whole society of the town, and the question of rank was decided according to his wishes. General Shirley explained to him the intended operations of the next campaign; and, after an absence from Virginia of seven weeks, he returned to resume his command. The next three years were spent in the duties of this laborious and responsible position, the difficulties and embarrassments of which bore a strong resemblance to those which he afterwards had to encounter in the war of the Revolution. In 1758, he commanded the Virginia troops in the expedition against Fort Duquesne, under General Forbes. Great deference was paid by that officer to his opinions and judgment, in arranging the line of march and order of battle, on this important expedition; for the fate of Braddock was before him. The command of the advanced division, consisting of one thousand men, was assigned to him, with the temporary rank of brigadier. When the army had approached within fifty miles of Fort Duquesne, the French deserted it; its surrender to the English closed the campaign; and in December Washington resigned his commission, and retired to Mount Vernon. What he had been, and what he then was, to the Colony of Virginia, is shown by the Address presented to him by the officers of the provincial troops, on his retirement. "In our earliest infancy," said they, "you took us under your tuition, trained us up in the practice of that discipline which alone can constitute good troops, from the punctual observance of which you never suffered the least deviation. Your steady adherence to impartial justice, your quick discernment, and invariable regard to merit, wisely intended to inculcate those genuine sentiments of true honor and passion for glory, from which the greatest military achievements have been derived, first heightened our natural emulation and our desire to excel. How much we improved by those regulations and your own example, with what alacrity we have hitherto discharged our duty, with what cheerfulness we have encountered the severest toils, especially while under your particular directions, we submit to yourself, and flatter ourselves that we have in a great measure answered your expectations.... It gives us additional sorrow, when we reflect, to find our unhappy country will receive a loss no less irreparable than our own. Where will it meet a man so experienced in military affairs, one so renowned for patriotism, conduct, and courage? Who has so great a knowledge of the enemy we have to deal with? Who so well acquainted with their situation and strength? Who so much respected by the soldiery? Who, in short, so able to support the military character of Virginia? Your approved love to your King and country, and your uncommon perseverance in promoting the honor and true interest of the service, convince us that the most cogent reasons only could induce you to quit it; yet we, with the greatest deference, presume to entreat you to suspend those thoughts for another year, and to lead us on to assist in the glorious work of extirpating our enemies, towards which so considerable advances have already been made. In you we place the most implicit confidence. Your presence only will cause a steady firmness and vigor to actuate every breast, despising the greatest dangers, and thinking light of toils and hardships, while led on by the man we know and love. But if we must be so unhappy as to part, if the exigencies of your affairs force you to abandon us, we beg it as our last request, that you will recommend some person most capable to command, whose military knowledge, whose honor, whose conduct, and whose disinterested principles we may depend on. Frankness, sincerity, and a certain openness of soul, are the true characteristics of an officer, and we flatter ourselves that you do not think us capable of saying any thing contrary to the purest dictates of our minds. Fully persuaded of this, we beg leave to assure you, that, as you have hitherto been the actuating soul of our whole corps, we shall at all times pay the most invariable regard to your will and pleasure, and shall be always happy to demonstrate by our actions with how much respect and esteem we are," &c.

Washington's marriage took place soon after his resignation (January 6th, 1759), and his civil life now commenced. He had been elected a member of the House of Burgesses, before the close of the campaign, and in the course of the winter he took his seat. Upon this occasion, his inability, from confusion and modesty, to reply to a highly eulogistic address made to him by the Speaker, Mr. Robinson, drew from that gentleman the celebrated compliment, "Sit down, Mr. Washington, your modesty equals your valor, and that surpasses the power of any language that I possess." He continued a member of the House of Burgesses until the commencement of the Revolution, a period of fifteen years. He was not a frequent speaker; but his sound judgment, quick perception, and firmness and sincerity of character, gave him an influence which the habit of much speaking does not give, and which is often denied to eloquence. As the time drew near, when the controversies between the colonies and England began to assume a threatening aspect, he was naturally found with Henry, Randolph, Lee, Wythe, and Mason, and the other patriotic leaders of the colonies. His views concerning the policy of the non-importation agreements were early formed and made known. In 1769, he took charge of the Articles of Association, drawn by Mr. Mason, which were intended to bring about a concert of action between all the colonies, for the purpose of presenting them to the Assembly, of which Mr. Mason was not a member. In 1774, he was chosen a member of the first Virginia Convention, and was by that body elected a delegate to the first Continental Congress, where he was undoubtedly the most conspicuous person present. The second Virginia Convention met in March, 1775, and reflected the former delegates to the second Continental Congress, from which Washington was removed by his appointment as Commander-in-chief.

There can be no doubt, therefore, that Washington was chosen Commander-in-chief for his unquestionable merits, and not as a compromise between sectional interests and local jealousies.

(The authorities for the statements in this note concerning Washington's history are the biographies by Marshall and Sparks, and the Writings of Washington, edited by the latter.)

CHAPTER III.

1776-1777.

Continuance of the Revolutionary Government.—Declaration of Independence.—Preparations for a New Government.—Formation of the Continental Army.

On the 7th of June, 1776, after the Congress had in fact assumed and exercised sovereign powers with the assent of the people of America, a resolution was moved by Richard Henry Lee of Virginia, and seconded by John Adams of Massachusetts, "That these United Colonies are, and of right ought to be, free and independent states; and that all political connection between them and the state of Great Britain is and ought to be totally suppressed."[53] This resolution was referred to a committee of the whole, and was debated until the 10th, when it was adopted in committee. On the same day, a committee, consisting of five members,[54] was instructed to prepare a declaration "that these United Colonies are, and of right ought to be, free and independent states; that they are absolved from all allegiance to the British crown; and that all political connection between them and the state of Great Britain is, and ought to be, dissolved." The resolution introduced by Mr. Lee on the 7th was postponed until the 1st of July, to give time for greater unanimity among the members, and to enable the people of the colonies to instruct and influence their delegates.

The postponement was immediately followed by proceedings in the colonies, in most of which the delegates in Congress were either instructed or authorized to vote for the resolution of Independence; and on the 2d of July that resolution received the assent in Congress of all the colonies, excepting Pennsylvania and Delaware. The Declaration of Independence was reported by the committee, who had been instructed to prepare it, on the 28th of June, and on the 4th of July it received the vote of every colony, and was published to the world.[55]

This celebrated instrument, regarded as a legislative proceeding, was the solemn enactment, by the representatives of all the colonies, of a complete dissolution of their allegiance to the British crown. It severed the political connection between the people of this country and the people of England, and at once erected the different colonies into free and independent states. The body by which this step was taken constituted the actual government of the nation, at the time, and its members had been directly invested with competent legislative power to take it, and had also been specially instructed to do so. The consequences flowing from its adoption were, that the local allegiance of the inhabitants of each colony became transferred and due to the colony itself, or, as it was expressed by the Congress, became due to the laws of the colony, from which they derived protection;[56] that the people of the country became thenceforth the rightful sovereign of the country; that they became united in a national corporate capacity, as one people; that they could thereafter enter into treaties and contract alliances with foreign nations, could levy war and conclude peace, and do all other acts pertaining to the exercise of a national sovereignty; and finally, that, in their national corporate capacity, they became known and designated as the United States of America. This Declaration was the first national state paper in which these words were used as the style and title of the nation. In the enacting part of the instrument, the Congress styled themselves "the representatives of the United States of America in general Congress assembled"; and from that period, the previously "United Colonies" have been known as a political community, both within their own borders and by the other nations of the world, by the title which they then assumed.[57]

On the same day on which the committee for preparing the Declaration of Independence was appointed, another committee, consisting of one member from each colony, was directed "to prepare and digest the form of a confederation to be entered into between these colonies." This committee reported a draft of Articles of Confederation, on the 12th of July, which were debated in Congress on several occasions between that day and the 20th of August of the same year, at which time a new draft was reported, and ordered to be printed. The subject was not again resumed, until the 8th of April, 1777; but, between that date and the 15th of the following November, sundry amendments were discussed and adopted, and the whole of the articles, as amended, were printed for the use of the Congress and the State Legislatures. On the 17th of November, a circular letter was reported and adopted, to be addressed to the Legislatures of the thirteen States, recommending to them "to invest the delegates of the State with competent powers, ultimately, in the name and behalf of the State, to subscribe Articles of Confederation and Perpetual Union of the United States, and to attend Congress for that purpose on or before the 10th day of March next."[58]

A year and five months had thus elapsed, between the agitation of the subject of a new form of national government, and the adoption and recommendation of a form, by the Congress, for the consideration of the States.[59] During this interval, the affairs of the country were administered by the Revolutionary Congress, which had been instituted, originally, for the purpose of obtaining redress peaceably from the British ministry, but which afterwards became de facto the government of the country, for all the purposes of revolution and independence. In order to appreciate the objects of the Confederation, the obstacles which it had to encounter, and the mode in which those obstacles were finally overcome, it is necessary here to take a brief survey of the national affairs during the period beginning with the commencement of the war and the Declaration of Independence, and extending to the date of the submission of the Articles of Confederation to the State Legislatures. From no point of view can so much instruction be derived, as from the position in which Washington stood, during this period. By following the fortunes and appreciating the exertions of him who had been charged with the great military duty of achieving the liberties of the country, and especially by observing his relations with the government that had undertaken the war, we can best understand the fitness of that government for the great task to which it had been called.

The continental government, which commissioned and sent General Washington to take the command of the army which it had adopted, consisted solely of a body of delegates, chosen to represent the people of the several colonies or states, for certain purposes of national defence, safety, redress, and revolution. When the war had actually commenced, and the United Colonies were engaged in waging it, the Congress possessed, theoretically and rightfully, large political powers, of a vague revolutionary nature; but practically, they had little direct civil power, either legislative or executive. They were obliged to rely almost wholly on the legislatures, provincial congresses and committees, or other local bodies of the several colonies or states, to carry out their plans. When Washington arrived at Cambridge and found the army then encamped around Boston in a state requiring it to be entirely remodelled, he came as the general of a government which could do little more for him than recommend him to the Provincial Congress, to the Committee of Safety, and to the prominent citizens of Massachusetts Bay. The people of the United States, at the present day, surrounded by the apparatus of national power, can form some idea of Washington's position, and of that of the government which he served, from the fact that, when he left Philadelphia to take the command of the army, he requested the Massachusetts delegates to recommend to him bodies of men and respectable individuals, to whom he might apply, to get done, through voluntary coöperation, what was absolutely essential to the existence of that army.[60] In truth, the whole of his residence in Massachusetts during the summer of 1775, and the winter of 1775-6, until he saw the British fleet go down the harbor of Boston, was filled with complicated difficulties, which sprang from the nature of the revolutionary government and the defects in its civil machinery, far more than from any and all other causes. These difficulties required the exertion of great intellectual and physical energy, the application of consummate prudence and forecast, and the patience and fortitude which in him were so happily combined with power. They would have broken down many of the greatest generals whom the world has seen; but it is our good fortune to be able to look back upon his efforts to encounter them as among the more prominent and striking manifestations of the strength of Washington's mind and character, and as among the most valuable proofs of what we owe to him.

On the one side of him was the body of delegates, sitting at Philadelphia, by whom he had been commissioned, who constituted the government of America, and from whom every direction, order, or requisition, concerning national affairs, necessarily proceeded. On the other side were the Provincial Congresses, and other public bodies of the New England colonies, on whom he and the Congress were obliged to rely for the execution of their plans. He was compelled to become the director of this complicated machinery. There were committees of the Congress, charged with the different branches of the public service; but General Washington was obliged to attend personally to every detail, and to suggest, to urge, and to entreat action upon all the subjects that concerned the army and the campaign. His letters, addressed to the President of Congress, were read in that body, and votes or resolutions were passed to give effect to his requests or recommendations. But this was not enough. Having obtained the proper order or requisition, he was next obliged to see that it was executed by the local bodies or magistrates, with whom he not infrequently was forced to discuss the whole subject anew. He met with great readiness of attention, and every disposition to make things personally convenient and agreeable to him; but he found, as he has recorded, a vital and inherent principle of delay, incompatible with military service, in the necessity he was under to transact business through such numerous and different channels.[61] His applications to the Governor of Connecticut for hunting-shirts for the army;[62] to the Governor of Rhode Island for powder;[63] to the Massachusetts Provincial Congress to apprehend deserters and to furnish supplies;[64] and to the New York Provincial Congress to prevent their citizens from trading with the enemy in Boston,[65]—together with the earnest appeals which he was obliged to make on these and many other subjects, which should never have been permitted to embarrass him,—show how feeble were the powers and how defective was the machinery of the government which he served.

But there are two or three topics which it will be necessary to examine more particularly, in order fully to understand the character and working of the revolutionary government. The first of these is the formation of the army.

In order to carry on a war of any duration, it is the settled result of all experience, that the soldier should be bound to serve for a period long enough to insure discipline and skill, and should be under the influence of motives which look to substantial pecuniary rewards, as well as those founded on patriotism. According to Washington's experience, this is as true of officers as it is of common soldiers; and undoubtedly no army can be formed, and kept long enough in the field to be relied upon for the accomplishment of great purposes, if these maxims are neglected in its organization.

Unfortunately, the Revolutionary Congress, at the very commencement of the war, committed the serious error of enlisting soldiers for short periods. When Washington arrived at Cambridge, the army which the Congress had just adopted as the continental establishment consisted of certain regiments, raised on the spur of the moment by the provinces of Massachusetts, New Hampshire, Rhode Island, and Connecticut; acting under their respective officers; regulated by their own militia laws; and, with the exception of those from Massachusetts, under no legal obligation to obey the general then in command. The terms of service of most of these men would expire in the autumn; and as they had enlisted under their local governments for a special object, and had not been in service long enough to have merged their habits of thinking and feeling, as New England citizens, in the character of soldiers, they denied the power of their own governments or of the Congress to transfer them into another service, or to retain them after their enlistments had expired.[66] The army was therefore to be entirely remodelled; or, to speak more correctly, an army was to be formed, by making enlistments under the Articles of War which had been adopted by the Congress, and by organizing new regiments and brigades under officers holding continental commissions. But the greatest difficulties had to be encountered in this undertaking. The continental Articles of War required a longer term of service than any of these troops had originally engaged for, and the rules and regulations were far more stringent than the discipline to which they had hitherto been subjected. There was, moreover, great reluctance, on the part of both officers and men, to serve in regiments consisting of the inhabitants of different colonies. A Connecticut captain would not serve under a Massachusetts colonel; a Massachusetts colonel was unwilling to command Rhode Island men; and the men were equally indisposed to serve under officers from another colony, or under any officers, in fact, but those of their own choosing.[67]

In this state of things, a committee, consisting of Dr. Franklin, Mr. Lynch, and Colonel Harrison, was sent by the Congress to confer with General Washington and with the local governments of the New England colonies, on the most effectual method of continuing, supporting, and regulating a continental army.[68] This committee arrived at Cambridge on the 18th of October, and sat until the 24th.[69] They rendered very important services to the commander-in-chief, in the organization of the army; but in forming this first military establishment of the Union, the strange error was committed by the Congress, of enlisting the men for the term of one year only, if not sooner discharged;—a capital mistake, the consequences of which were severely felt throughout the whole war.

There is no reason to suppose that General Washington concurred in the expediency of such short enlistments, then or at any other time; but he was obliged to yield to the pressure of the causes to which the mistake is fairly to be attributed. In fact, we find him, in a short time after the new system had been put into operation, pointing it out as a fatal error, in a letter to the President of Congress.[70] The error may have been owing to the character of the government, to the opinions and prejudices prevailing in Congress, and to the delusive idea, which still lingered in the minds of many of the members, that, although the sword had been drawn, the scabbard was not wholly thrown aside, and that they should be able to coerce the British ministry into a redress of grievances, which might be followed by a restoration of the relations between the colonies and the mother country, upon a constitutional basis. No such idea was entertained by Washington, from the beginning. He entertained no thought of accommodation, after the measures adopted in consequence of the battle of Bunker's Hill.

But at the time of which we are treating, the issue had not been made, as Washington would have made it; and, when we consider the state of things before the Declaration of Independence was adopted, and look attentively at the objects for which the Congress had been assembled, and at the nature of their powers, we may perceive how they came to make the mistake of not organizing a military establishment on a more permanent footing.

The delegates to the first Congress were, as we have seen, sent with instructions, which were substantially the same in all the colonies. These instructions, in some instances, looked to "a redress of grievances," and in others, to "the recovery and establishment of the just rights and liberties of the colonies"; and the delegates were directed "to deliberate upon wise and proper measures, to be by them recommended to all the colonies," for the attainment of these objects. But with this was coupled the declared object of a "restoration of union and harmony" upon "constitutional principles." We have seen how far this body proceeded towards a revolution. The second, or Revolutionary Congress, was composed of delegates who were originally assembled under similar instructions; but the conflict of arms that had already taken place, between the times of their respective appointments and the date of their meeting, had materially changed the posture of affairs. Powers of a revolutionary nature had been cast upon them, by the force of circumstances; and when they finally resolved to take the field, the character of those powers, as understood and acted upon by themselves, is illustrated by the commission which they issued to their General-in-chief, which embraced in its scope the whole vast object of "the defence of American liberty, and the repelling every hostile invasion thereof," by force of arms, and "by the rules and discipline of war, as herewith given."

It is obvious, therefore, that, at the time when the first continental army was to be formed, the powers of the national government were very broad, although vague and uncertain. There seems to have been no reason, upon principle, why they should not have adopted decrees, to be executed by their own immediate agents, and by their own direct force. But a practical difficulty embarrassed and almost annulled this theoretical and rightful power. The government of the Congress rested on no definite, legislative faculty. When they came to a resolution, or vote, it constituted only a voluntary compact, to which the people of each colony pledged themselves, by their delegates, as to a treaty, but which depended for its observance entirely on the patriotism and good faith of the colony itself. No means existed of compelling obedience from a delinquent colony, and the government was not one which could operate directly upon individuals, unless it assumed the full exercise of powers derived from the revolutionary objects at which it aimed. These powers were not assumed and exercised to their full extent, for reasons peculiar to the situation of the country, and to the character, habits, and feelings of the people.

The people of the colonies had indeed sent their delegates to a Congress, to consult and determine upon the measures necessary to be adopted, in order to assert and maintain their rights. But they had never been accustomed to any machinery of government, or legislation, other than that existing in their own separate jurisdictions. They had imparted to the Congress no proper legislative authority, and no civil powers, except those of a revolutionary character. This revolutionary government was therefore entirely without civil executive officers, fundamental laws, or control over individuals; and the union of the colonies, so far as a union had taken place, was one from which any colony could withdraw at any time, without violating any legal obligation.

In addition to this, the popular feeling on the subject of the grievances existing, and of the measures that ought to be taken for redress, was quite different in the different colonies, before the Declaration of Independence was adopted. The leading patriotic or Whig colonies made common cause with each other, with great spirit and energy, and the more lukewarm followed, but with unequal steps.[71] Virginia had, upon the whole, less to complain of than Massachusetts; but she adopted the whole quarrel of her Northern sister, with the firmness of her Washington and the ardor of her Henry. New York, on the other hand, for a considerable period, and down to the month of January, 1775, stood nearly divided between the Whigs and the Tories, and did not choose its delegates to the second Congress until the 20th of April,—twenty days only before that body assembled.[72]

One of the most striking illustrations, both of the character of the revolutionary government and of the state of the country, is presented by the proceedings respecting the Loyalists, or, as they were called, the Tories. This is not the place to consider whether the American Loyalists were right or wrong in adhering to the crown. Ample justice is likely to be done, in American history, to the characters and motives of those among them whose characters and motives were pure. From a sense of duty, or from cupidity, or from some motive, good or bad, they made their election to adhere to the public enemy; and they were, therefore, rightfully classed, according to their personal activity and importance, among the enemies of the country, by those whose business it was to conduct its affairs and to fight its battles. General Washington was, at a very early period, of opinion, that the most decisive steps ought to be taken with these persons; and he seems at first to have acted as if it belonged, as in fact it did properly belong, to the commander of the continental forces to determine when and how they should be arrested. He first had occasion to act upon the subject in November, 1775, when he sent Colonel Palfrey, one of his aids, into New Hampshire, with orders to seize every officer of the royal government, who had given proofs of an unfriendly disposition to the American cause, and when he had secured them, to take the opinion of the Provincial Congress, or Committee of Safety, in what manner to dispose of them in that Province.[73]

Early in the month of January, 1776, General Washington was led to suppose that the enemy were about to send from Boston a secret expedition by water, for the purpose of taking possession of the city of New York; and it was believed that a body of Tories on Long Island, where they were numerous, were about rising, to join the enemy's forces on their arrival. While Washington was deliberating whether he should be warranted in sending an expedition to check this movement and to prevent the city from falling into the hands of the enemy, without first applying to Congress for a special authority, he received a letter from Major-General Charles Lee, offering to go into Connecticut, to raise volunteers, and to march to the neighborhood of New York, for the purpose of securing the city and suppressing the anticipated insurrection of the Tories.[74] He was inclined to adopt Lee's suggestion, but doubted whether he had power to disarm the people of an entire district, as a military measure, without the action of the civil authority of the Province. Upon this point, he consulted Mr. John Adams, who was then attending the Provincial Congress of Massachusetts. Mr. Adams gave it, unhesitatingly, as his clear opinion, that the commission of the Commander-in-chief extended to the objects proposed in General Lee's letter; and he reminded General Washington, that it vested in him full power and authority to act as he should think for the good and welfare of the service.[75] Lee was thereupon authorized to raise volunteers and to proceed to the city of New York, which he was instructed to prevent from falling into the hands of the enemy, by putting it into the best posture of defence and by disarming all persons upon Long Island and elsewhere, (and, if necessary, by otherwise securing them,) whose conduct and declarations had rendered them justly suspected of designs unfriendly to the views of the Congress.[76] At the same time, General Washington wrote to the Committee of Safety of New York, informing them of the instructions which he had given to General Lee, and requesting their assistance; but without placing Lee under their authority.[77]

It happened, that at this time, while Washington was considering the expediency of sending this expedition, the Congress had under consideration the subject of disarming the Tories in Queen's County, Long Island, where the people had refused to elect members to the Provincial Convention.[78] Two battalions of minute-men had been ordered to enter that county, at its opposite sides, on the same day, and to disarm every inhabitant who had voted against choosing members to the Convention.[79] A part of these orders were suddenly countermanded, and in place of the minute-men from Connecticut, three companies were ordered to be detailed for this service from the command of Lord Stirling. This change in the original plan was made on the 10th of January; and when Washington received notice of it from Lee, he seems to have understood it as an abandonment of the whole scheme of the expedition,—a course which he deeply regretted.[80] He thought, that the period had arrived when nothing less than the most decisive measures ought to be pursued; that the enemies of the country were sufficiently numerous on the other side of the Atlantic, and that it was highly important to have as few internal ones as possible. But supposing that Congress had changed their determination, he directed Lee to disband his troops so soon as circumstances would in his judgment admit of it.[81] Lee was at this time at Stamford in Connecticut, with a body of about twelve hundred men, whom he had raised in that colony, preparing to march to New York to execute the different purposes for which he had been detached. On the 22d of January,—the day before the date of General Washington's letter to him directing him to disband his forces,—he had written to the President of Congress, urging in the strongest terms the expediency of seizing and disarming the Tories;[82] and he immediately communicated to Washington the fact of his having done so. Washington wrote again on the 30th, informing Lee that General Clinton had gone from Boston on some expedition with four or five hundred men; that there was reason to believe that this expedition had been sent on the application of Tryon, the royal Governor of New York, who, with a large body of the inhabitants, would probably join it; and that the Tories ought, therefore, to be disarmed at once, and the principal persons among them seized. He also expressed the hope that Congress would empower General Lee to act conformably to both their wishes; but that, if they should order differently, their directions must be obeyed.[83]

General Washington was mistaken in supposing that Congress had resolved to abandon the expedition against the Tories of Queen's County. That expedition had actually penetrated the county, under Colonel Heard, who had arrested nineteen of the principal inhabitants and conducted them to Philadelphia. Congress directed them to be sent to New York, and delivered to the order of the Convention of that Colony, until an inquiry could be instituted by the Convention into their conduct, and a report thereon made to Congress.[84]

This destination of the prisoners had become necessary, in consequence of the local fears and jealousies excited by the approach of General Lee to the city of New York, at the head of a force designed to prevent it from falling into the possession of the enemy. The inhabitants of the city were not a little alarmed at the idea of its becoming a post to be contended for; and the Committee of Safety wrote to General Lee earnestly deprecating his approach.[85] Lee replied to them, and continued his march, inclosing their letter to Congress. It was received in that body on the 26th, and a committee of three members was immediately appointed to repair to New York, to consult and advise with the Council of Safety of the Colony, and with General Lee, respecting the defence of the city.[86] The Provincial Congress of New York were in session at the time of the arrival of this committee,[87] and, in consequence of the temper existing in that body and in the local committees, the Continental Congress found themselves obliged to recede from the course which they had taken of disarming the Tories of Queen's County by their own action, and to submit the whole subject again to the colonial authorities everywhere, by a mere recommendation to them to disarm all persons, within their respective limits, notoriously disaffected to the American cause.[88]

Thus, after having resolved on the performance of a high act of sovereignty, which was entirely within the true scope of their own powers, and eminently necessary, the Congress was obliged to content itself with a recommendation on the subject to the colonial authorities; not only because it felt itself, as a government, far from secure of the popular coöperation in many parts of the country, but because it had not finally severed the political tie which had bound the country to the crown of Great Britain, and because it had no civil machinery of its own, through which its operations could be conducted.

Another topic, which illustrates the character of the early revolutionary government, is the entire absence, at the period now under consideration, of a proper national tribunal for the determination of questions of Prize;—a want which gave General Washington great trouble and embarrassment, during his residence at Cambridge and for some time afterwards. As this subject is connected with the origin of the American Navy, a brief account may here be given of the commencement of naval operations by the United Colonies.

When General Washington arrived at Cambridge, no steps had been taken by the Continental Congress towards the employment of any naval force whatever. In June, 1775, two small schooners had been fitted out by Rhode Island, to protect the waters of that Colony from the depredations of the enemy; and in the same month, the Provincial Congress of Massachusetts resolved to provide six armed vessels; but none of them were ready in the month of October.[89] In the early part of that month, the first movement was made by the Continental Congress towards the employment of any naval force. General Washington was then directed to fit out two armed vessels, with all possible despatch, to sail for the mouth of the St. Lawrence, in order to intercept certain ships from England bound to Quebec with powder and stores. He was to procure these vessels from the government of Massachusetts.[90] The authorities of Massachusetts had then made no such provision; but in the latter part of August, General Washington had, on the broad authority of his commission, proceeded to fit out six armed schooners, to cruise in the waters of Massachusetts Bay, so as to intercept the enemy's supplies coming into the port of Boston. One of them sailed in September, and in the course of a few weeks they were all cruising between Cape Ann and Cape Cod.[91]

On the 17th of September, 1775, the town of Falmouth in Massachusetts (now Portland in Maine) was burnt by the enemy. This act stimulated the Continental Congress to order the fitting out of two armed vessels on the 26th of October, and of two others, on the 30th. It also stimulated the Massachusetts Assembly to issue letters of marque and reprisal, and to pass an act establishing a court to try and condemn all captures made from the enemy, by the privateers and armed vessels of that Colony.

In the autumn of this year, therefore, there were two classes of armed vessels cruising in the waters of Massachusetts: one consisting of those sailing under the continental authority, and the other consisting of those sailing under the authority of the Massachusetts Assembly. Captures were made by each, and some of those sailing under the continental authority were quite successful. Captain Manly, commanding the Lee, took, in the latter part of November, a valuable prize, with a large cargo of arms, ammunition, and military tools; and several other captures followed before any provision had been made for their condemnation,—a business which was thus thrown entirely upon the hands of General Washington.

The court established by the Legislature of Massachusetts, at its session in the autumn of 1775, for the trial and condemnation of all captures from the enemy, was enabled to take cognizance only of captures made by vessels fitted out by the Province, or by citizens of the Province. As the cruisers fitted out at the continental expense did not come under this law, General Washington early in November called the attention of Congress to the necessity of establishing a court for the trial of prizes made by continental authority.[92] On the 25th of November, the Congress passed resolves ordering all trials of prizes to be held in the court of the colony into which they should be brought, with a right of appeal to Congress.[93] But these resolves do not seem to have been, for a considerable period of time, communicated to General Washington; for, during the months of November, December, and January, he supposed it to be necessary for him to attend personally to the adjudication of prizes made by continental vessels,[94] and it was not until the early part of February that the receipt of the resolves of Congress led to a resort to the jurisdiction of the admiralty court of Massachusetts. When, however, this was done, an irreconcilable difference was found to exist between the resolves of Congress and the law of the Colony respecting the proceedings; the trials were stopped for a long time, to enable the General Court of Massachusetts to alter their law, so as to make it conform to the resolves; and in the mean while, many of the captors, weary of the law's delay, applied, without waiting for the decisions, for leave to go away, which General Washington granted.[95] As late as the 25th of April, 1776, there had been no trials of any of the prizes brought into Massachusetts Bay. At that date, General Washington wrote to the President of Congress, from New York, that some of the vessels which he had fitted out were laid up, the crews being dissatisfied because they could not obtain their prize-money; that he had appealed to the Congress on the subject; and that, if a summary way of proceeding were not resolved on, it would be impossible to have the continental vessels manned. At this time Captain Manly and his crew had not received their share of the valuable prize taken by them in the autumn previous.[96]

Another remarkable defect in the revolutionary government was found in the mode in which it undertook to supply the means of defraying the public expenses. It was a government entirely without revenues of any kind; for, in constituting the Congress, the colonies had not clothed their delegates with power to lay taxes, or to establish imposts. At the time when hostilities were actually commenced, the commerce of the country was almost totally annihilated; so that if the Congress had possessed power to derive a revenue from commerce, little could have been obtained for a long period after the commencement of the war. But the power did not exist; money in any considerable quantity could not be borrowed at home; the expedient of foreign loans had not been suggested; and consequently the only remaining expedient to which the Congress could resort was, like other governments similarly situated, to issue paper money. The mode in which this was undertaken to be done was, in the first instance, to issue two millions of Spanish milled dollars, in the form of bills, of various denominations, from one dollar to eight dollars each, and a few of twenty dollars, designed for circulation as currency. The whole number of bills which made up the sum of $2,000,000 was 403,800.[97] The next emission amounted to $1,000,000, in bills of thirty dollars each, and was ordered on the 25th of July.[98] When the bills of the first emission were prepared, it would seem to have been the practice to have them signed by a committee of the members; but this was found so inconvenient, from the length of time during which it withdrew the members from the other business of Congress, that, when the second emission was ordered, a committee of twenty-eight citizens of Philadelphia was appointed for the purpose, and the bills were ordered to be signed by any two of them.[99] At this time, no continental Treasurers had been appointed.[100]

Such a clumsy machinery was poorly adapted to the supply of a currency demanded by the pressing wants of the army and of the other branches of the public service. The signers of the bills were extremely dilatory in their work. In September, 1775, the paymaster and commissary, at Cambridge, had not a single dollar in hand, and they had strained their credit, for the subsistence of the army, to the utmost; the greater part of the troops were in a state not far from mutiny, in consequence of the deduction which had been made from their stated allowance; and there was imminent danger, if the evil were not soon remedied, and greater punctuality observed, that the army would absolutely break up. In November, General Washington deemed it highly desirable to adopt a system of advanced pay, but the unfortunate state of the military chest rendered it impossible. There was not cash sufficient to pay the troops for the months of October and November. Through the months of December and January, the signing of the bills did not keep pace with the demands of the army, notwithstanding General Washington's urgent remonstrances; and in February his wants became so pressing, that he was obliged to borrow twenty-five thousand pounds of the Province of Massachusetts Bay, in order that the recruiting service might not totally cease.[101]

These facts show significantly, that, before the Declaration of Independence, scarcely any progress had been made towards the formation of a national government with definite powers and appropriate departments. In matters of judicature, and in measures requiring executive functions and authority, the Congress were obliged to rely almost entirely upon the local institutions and the local civil machinery of the different colonies; while, in all military affairs, the very form of the revolutionary government was unfavorable to vigor, despatch, and consistent method. There were also causes existing in the temper and feelings of many of the members of that government, both before and after the Declaration of Independence, which, at times, prevented the majority from acting with the decision and energy demanded by the state of their affairs. Many excellent and patriotic men in the Congress of 1775-6, while they concurred fully in the necessity for resistance to the measures of the British ministry, and had decided, or were fast deciding, that a separation must take place, still entertained a great jealousy of standing armies. This jealousy began to exhibit itself very soon after the appointment of the Commander-in-chief, and was never wholly without influence in the proceedings of Congress during the entire period of the war. It led to a degree of reliance upon militia, which, in the situation of the colonies, was too often demonstrated to be a weak and fatal policy.[102]

NOTE TO PAGE 51.

ON THE DECLARATION OF INDEPENDENCE.

The Declaration of Independence was drawn by Thomas Jefferson; and the circumstances under which he was selected for this honorable and important task have been for more than a quarter of a century somewhat in doubt, and that doubt has been increased by the recent publication of a part of the Works of Mr. John Adams. The evidence on the subject is to be derived chiefly from statements made by both of these eminent persons in their memoirs, and in a letter written by each of them. We have seen, in a former note, that in 1822 Mr. Adams declared, that had it not been for a conversation which occurred in 1775, before the meeting of the Congress of that year, between himself and his Massachusetts colleagues and certain of the Philadelphia "sons of liberty," in which the Massachusetts members were advised to concede precedence to Virginia, from motives of policy, and but for the principles, facts, and motives suggested in that conversation, many things would not have happened which did occur, and among them, that Mr. Jefferson never would have been the author of the Declaration of Independence. In regard to the same speculation, concerning the election of Washington as Commander-in-chief, I have ventured, on Mr. Adams's own authority, to suggest doubts whether that election ought now to be considered to have turned upon motives which Mr. Adams made so prominent in 1822. In regard to the authorship of the Declaration of Independence, I shall only endeavor to state fairly and fully the conflicting evidence, in order that the reader may judge what degree of weight ought to be assigned to the cause, without which Mr. Adams supposed Mr. Jefferson would not have been selected to draft it.

Mr. Jefferson, as it appeared when his writings came to be published in 1829, wrote in 1821, when at the age of seventy-seven, a memoir of some of the public transactions in which he had been engaged. At this time, he had in his possession a few notes of the debates which took place in Congress on the subject of Independence, and which he made at the time. These notes he inserted bodily, as they stood, in his memoir, and they are so printed. (Jefferson's Works, I. 10-14.) They are easily distinguishable from the text of the memoir, but they do not appear to throw any especial light upon the fact now in controversy; although, as Mr. Jefferson, in 1823, when writing on this subject, supported his recollection by "written notes, taken at the moment and on the spot," it is proper to allow that those notes may in some way have aided his memory, although we cannot now see in what way they did so. He made this latter reference in a letter which he wrote to Mr. Madison, in reply to the statements in Mr. Adams's letter to Timothy Pickering, under date of August 6, 1822. (Jefferson's Works, IV. 375, 376.)

At or near the beginning of the present century, Mr. Adams, then about sixty-six, wrote an autobiography, which has recently been published [1850], and in which he gave an account of the authorship of the Declaration. In 1822, when about eighty-six, Mr. Adams wrote the letter to Mr. Pickering, which called forth Mr. Jefferson's contradiction in his letter to Mr. Madison, under date of August 30, 1823. (Adams's Works, II. 510-515.) Mr. Jefferson, in his memoir written in 1821, states simply that the committee for drawing the Declaration desired him to do it; that he accordingly wrote it, and that, being approved by the committee, he reported it to the Congress on Friday, the 28th of June, when it was read and ordered to lie on the table; and that on Monday, the 1st of July, the Congress, in committee of the whole, proceeded to consider it. "The pusillanimous idea," he continues, "that we had friends in England worth keeping terms with, still haunted the minds of many. For this reason, those passages which conveyed censures on the people of England were struck out, lest they should give them offence. The clause, too, reprobating the enslaving the inhabitants of Africa, was struck out in complaisance to South Carolina and Georgia, who had never attempted to restrain the importation of slaves, and who, on the contrary, wished to continue it. Our Northern brethren, also, I believe, felt a little tender under those censures; for though their people had very few slaves themselves, yet they had been pretty considerable carriers of them to others. The debates having taken up the greater parts of the 2d, 3d, and 4th days of July, were, on the evening of the last, closed." (Jefferson's Works, I. 14, 15.)

In Mr. Adams's autobiography, the following account is given:—"The Committee of Independence were Thomas Jefferson, John Adams, Benjamin Franklin, Roger Sherman, and Robert R. Livingston. Mr. Jefferson had been now about a year a member of Congress, but had attended his duty in the house a very small part of the time, and, when there, had never spoken in public. During the whole time I sat with him in Congress, I never heard him utter three sentences together. It will naturally be inquired how it happened that he was appointed on a committee of such importance. There were more reasons than one. Mr. Jefferson had the reputation of a masterly pen; he had been chosen a delegate in Virginia, in consequence of a very handsome public paper which he had written for the House of Burgesses, which had given him the character of a fine writer. Another reason was, that Mr. Richard Henry Lee was not beloved by the most of his colleagues from Virginia, and Mr. Jefferson was set up to rival and supplant him. This could be done only by the pen, for Mr. Jefferson could stand no competition with him or any one else in elocution and public debate.... The committee had several meetings, in which were proposed the articles of which the Declaration was to consist, and minutes made of them. The committee then appointed Mr. Jefferson and me to draw them up in form, and clothe them in a proper dress. The sub-committee met, and considered the minutes, making such observations on them as then occurred, when Mr. Jefferson desired me to take them to my lodgings, and make the draft. This I declined, and gave several reasons for declining: 1. That he was a Virginian, and I a Massachusettensian. 2. That he was a Southern man, and I a Northern one. 3. That I had been so obnoxious for my early and constant zeal in promoting the measure, that any draft of mine would undergo a more severe scrutiny and criticism in Congress than one of his composition. 4. And lastly, and that would be reason enough if there were no other, I had a great opinion of the elegance of his pen, and none at all of my own. I therefore insisted that no hesitation should be made on his part. He accordingly took the minutes, and in a day or two produced to me his draft. Whether I made or suggested any corrections I remember not. The report was made to the committee of five, by them examined, but whether altered or corrected in any thing, I cannot recollect. But, in substance, at least, it was reported to Congress, where, after a severe criticism, and striking out several of the most oratorical paragraphs, it was adopted on the 4th of July, 1776, and published to the world." (Adams's Works, II. 511-515.)

The account in Mr. Adams's letter to Mr. Pickering is as follows:—"You inquire why so young a man as Mr. Jefferson was placed at the head of the committee for preparing a Declaration of Independence? I answer, it was the Frankfort advice to place Virginia at the head of every thing. Mr. Richard Henry Lee might be gone to Virginia, to his sick family, for aught I know; but that was not the reason of Mr. Jefferson's appointment. There were three committees appointed at the same time. One for the Declaration of Independence, another for preparing Articles of Confederation, and another for preparing a treaty to be proposed to France. Mr. Lee was chosen for the Committee of Confederation, and it was not thought convenient that the same person should be upon both. Mr. Jefferson came into Congress in June, 1775, and brought with him a reputation for literature, science, and a happy talent of composition. Writings of his were handed about, remarkable for their peculiar felicity of expression. Though a silent member in Congress, he was so prompt, frank, explicit, and decisive upon committees and in conversation,—not even Samuel Adams was more so,—that he soon seized upon my heart; and upon this occasion I gave him my vote, and did all in my power to procure the votes of others. I think he had one more vote than any other, and that placed him at the head of the committee. I had the next highest number, and that placed me second. The committee met, discussed the subject, and then appointed Mr. Jefferson and me to make the draft, I suppose because we were the two first on the list. The sub-committee met. Jefferson proposed to me to make the draft. I said, 'I will not.' 'You should do it.' 'O, no.' 'Why will you not? You ought to do it.' 'I will not.' 'Why?' 'Reasons enough.' 'What can be your reasons?' 'Reason first,—You are a Virginian, and a Virginian ought to appear at the head of this business. Reason second,—I am obnoxious, suspected, and unpopular. You are very much otherwise. Reason third,—You can write ten times better than I can.' 'Well,' said Jefferson, 'if you are decided, I will do as well as I can.' 'Very well. When you have drawn it up, we will have a meeting.'

"A meeting we accordingly had, and conned the paper over. I was delighted with its high tone and the flights of oratory with which it abounded, especially that concerning negro slavery, which, though I knew his Southern brethren would never suffer to pass in Congress, I certainly never would oppose. There were other expressions which I would not have inserted, if I had drawn it up, particularly that which called the King tyrant. I thought this too personal; for I never believed George to be a tyrant in disposition and in nature; I always believed him to be deceived by his courtiers on both sides of the Atlantic, and in his official capacity only, cruel. I thought the expression too passionate, and too much like scolding, for so grave and solemn a document; but as Franklin and Sherman were to inspect it afterwards, I thought it would not become me to strike it out. I consented to report it, and do not now remember that I made or suggested a single alteration.

"We reported it to the committee of five. It was read, and I do not remember that Franklin or Sherman criticized any thing. We were all in haste. Congress was impatient, and the instrument was reported, as I believe, in Jefferson's handwriting, as he first drew it. Congress cut off about a quarter of it, as I expected they would; but they obliterated some of the best of it, and left all that was exceptionable, if any thing in it was. I have long wondered that the original draft has not been published. I suppose the reason is, the vehement philippic against negro slavery.

"As you justly observe, there is not an idea in it but what had been hackneyed in Congress for two years before. The substance of it is contained in the declaration of rights and the violation of those rights, in the Journals of Congress, in 1774. Indeed, the essence of it is contained in a pamphlet, voted and printed by the town of Boston, before the first Congress met, composed by James Otis, as I suppose, in one of his lucid intervals, and pruned and polished by Samuel Adams."

Mr. Jefferson, on the contrary, in his letter to Mr. Madison, says:—"These details are quite incorrect. The committee of five met; no such thing as a sub-committee was proposed, but they unanimously pressed on myself alone to undertake the draft. I consented; I drew it; but, before I reported it to the committee, I communicated it separately to Doctor Franklin and Mr. Adams, requesting their correction, because they were the two members of whose judgments and amendments I wished most to have the benefit, before presenting it to the committee; and you have seen the original paper now in my hands, with the corrections of Doctor Franklin and Mr. Adams interlined in their own handwritings. Their alterations were two or three only, and merely verbal. I then wrote a fair copy, reported it to the committee, and from them, unaltered, to Congress. This personal communication and consultation with Mr. Adams he has misremembered into the actings of a sub-committee. Pickering's observations, and Mr. Adams's in addition, 'that it contained no new idea, that it is a commonplace compilation, its sentiments hackneyed in Congress for two years before, and its essence contained in Otis's pamphlet,' may all be true. Of that I am not to be the judge. Richard Henry Lee charged it as copied from Locke's Treatise on Government. Otis's pamphlet I never saw, and whether I had gathered my ideas from reading or reflection I do not know. I know only that I turned to neither book nor pamphlet while writing it. I did not consider it as any part of my charge to invent new ideas altogether, and to offer no sentiment which had ever been expressed before. Had Mr. Adams been so restrained, Congress would have lost the benefit of his bold and impressive advocations of the rights of revolution. For no man's confident and fervid addresses, more than Mr. Adams's, encouraged and supported us through the difficulties surrounding us, which, like the ceaseless action of gravity, weighed on us by night and by day. Yet, on the same ground, we may ask what of these elevated thoughts was new, or can be affirmed never before to have entered the conceptions of man?

"Whether, also, the sentiment of Independence, and the reasons for declaring it, which make so great a portion of the instrument, had been hackneyed in Congress for two years before the 4th of July, 1776, or this dictum of Mr. Adams be another slip of memory, let history say. This, however, I will say for Mr. Adams, that he supported the Declaration with zeal and ability, fighting fearlessly for every word of it. As to myself, I thought it a duty to be, on that occasion, a passive auditor of the opinions of others, more impartial judges than I could be of its merits or demerits. During the debate I was sitting by Doctor Franklin, and he observed that I was writhing a little under the acrimonious criticisms on some of its parts; and it was on that occasion, that, by way of comfort, he told me the story of John Thomson, the hatter, and his new sign." (Jefferson's Works, IV. 376.)

The substantial point of difference in these two accounts of the same transaction, relates to the action of the committee in designating the person or persons who were to prepare the draft of a Declaration. Mr. Adams states that Mr. Jefferson and himself were appointed a sub-committee to prepare it; Mr. Jefferson states that he alone was directed by the committee to write the Declaration. This question is not important, since Mr. Adams's version does not in the least impair Mr. Jefferson's claim to the authorship of the instrument. The latter, it must be allowed, gracefully parries the criticisms of Mr. Adams, by a noble allusion to the eloquence which sustained his compatriots in the difficulties and embarrassments that surrounded them, and which they did not think of analyzing, for the purpose of tracing the exact originality of its sentiments.

It is proper to add, that Mr. Jefferson's account is confirmed by the original manuscript draft of the Declaration, a fac-simile of which was published in 1829, in the fourth volume of his Works, exhibiting the corrections and interlineations made by Dr. Franklin and Mr. Adams in their respective handwritings. These emendations were not important.

The reasons assigned by Mr. Adams for the selection of Mr. Jefferson as the writer of the Declaration are so numerous, that it is difficult to determine which of them he intended should be regarded as the principal or decisive one. In the autobiography, he states that there were more reasons than one why Mr. Jefferson was appointed on a committee of such importance. He assigns two reasons: one, Mr. Jefferson's reputation as a writer, and the other, the desire of his Virginia colleagues to have Mr. Jefferson supplant Mr. Richard Henry Lee. In his letter to Mr. Pickering, Mr. Adams gives as the reason why Mr. Jefferson was placed at the head of the committee, that it was "the Frankfort advice to place Virginia at the head of every thing"; but he also adds, that Mr. Jefferson brought with him to Congress "a reputation for literature, science, and a happy talent of composition," and that this reputation had then been sustained by writings "remarkable for their peculiar felicity of expression." As in the case of Washington, therefore, it would seem that there were reasons of eminent fitness and qualification for the duty assigned; and certainly the Declaration of Independence itself fully justifies the selection. Few state papers have ever been written with more skill, or greater adaptation to the purposes in view. Whether its sentiments were purely original with its author, or were gathered from the political philosophy which had become familiar to the American mind, through the great discussions of the time, it must for ever remain an imperishable monument of his power of expression, and his ability to touch the passions, as well as to address the reason, of mankind. It would be inappropriate to apply to its style the canons of modern criticism. Its statements of political truth, taken in the sense in which they were manifestly intended, can never be successfully assailed. With regard to the passage concerning slavery, we may well conceive that both Northern and Southern men might have felt the injustice of the terrible denunciation with which he charged upon the King all the horrors, crimes, and consequences of the African slave-trade, and in which he accused him of exciting the slaves to insurrection, and "to purchase the liberty of which he had deprived them by murdering the people upon whom he had obtruded them." Mr. Jefferson, in drawing up the list of our national accusations against the King, obviously intended to refer to him as the representative of the public policy and acts of the mother country; and it is true that the imperial government was, and must always remain, responsible for the existence of slavery in the colonies. But this was not one of the grievances to be redressed by the Revolution; it did not constitute one of the reasons for aiming at independence; and there was no sufficient ground for the accusation that the government of Great Britain had knowingly sought to excite general insurrections among the slaves. The rejection of this passage from the Declaration shows that the Congress did not consider this charge to be as tenable as all their other complaints certainly were.

CHAPTER IV.

July, 1776—November, 1777.

Consequences of the Declaration of Independence.—Reorganization of the Continental Army.—Flight of the Congress from Philadelphia.—Plan of the Confederation proposed.

When the Declaration of Independence at length came, it did not in any way change the form of the revolutionary government. It created no institution, and erected no civil machinery. Its political effect has already been described. Its moral effect, both upon the members of the Congress and upon the country, was very great, inasmuch as it put an end alike to the hope and the possibility of a settlement of the controversy upon the principles of the English Constitution, for it made the colonies free, sovereign, and independent states. Men who had voted for such a measure, and who had put their signatures to an instrument which the British Parliament or the Court of King's Bench could have had no difficulty in punishing as treasonable, could no longer continue to feed themselves on "the dainty food of reconciliation."[103] Thenceforward, there was no retreat. The colonies might be conquered, overrun, and enslaved; but this, or the full and final establishment of their own sovereignty, were the sole alternatives. The consequence was, that the Declaration was followed by a greater alacrity on the part of the whole body of the Congress to adopt vigorous and decisive measures, than had before prevailed among them.

But there was one feeling which the Declaration did not dispel, and another to which it immediately gave rise, both of which were unfavorable to concentrated, vigorous, and effective action on the part of the revolutionary government. The Declaration of Independence did not dissipate the unreasonable and ill-timed jealousy of standing armies, which gave way, at last, only when the country was in such imminent peril that Washington felt it to be his duty to ask for extraordinary powers, to be conferred upon himself. It was followed, too, as an immediate consequence, by that jealousy with regard to State rights, and that adhesion to State interests, which have existed in our system from that day to the present, and are not entirely separable from it. As the Declaration made the colonies sovereign and independent, and was followed by the formation of State governments, before the creation of any well-defined national system, State sovereignty became at once an ever-present cause of embarrassment to the Congress, in whose proceedings entire delegations sometimes made the interests of the country bend to the interests of their own State, to a mischievous extent.

To explain these observations, we must recur again to the history of the army, and to the efforts of Washington to have the military establishment put into a safe and efficient condition.

After the evacuation of Boston by the British forces, General Washington proceeded, at once, with the continental army to the city of New York, where he arrived on the 13th of April, 1776. The loss of the battle of Long Island on the 27th of August, and the extreme improbability of his being able to hold the city against the superior forces by which it had been invested through the entire summer, made it necessary for him to appeal once more to the Congress for the organization of a permanent army, capable of offering effectual resistance to the enemy. The establishment formed at Cambridge in the autumn previous was to continue for one year only; it was about to be dissolved; and in the month of September General Washington was compelled to abandon the city of New York to the enemy. Before he withdrew from it, he addressed a letter to the President of Congress, on the 2d of September, in which he told that body explicitly that the liberties of the country must of necessity be greatly hazarded, if not entirely lost, should their defence be left to any but a permanent standing army; and that, with the army then under his command, it was impossible to defend and retain the city.[104] On the 20th of the same month, he again wrote, expressing the opinion that it would be entirely impracticable to raise a proper army, without the allowance of a large and extraordinary bounty.[105]

At length, when he had retreated to the Heights of Haerlem, and found himself surrounded by a body of troops impatient of restraint, because soon to be entitled to their discharge, and turbulent and licentious, because they had never felt the proper inducements which create good conduct in the soldier, he made one more appeal to the patriotism and good sense of the Congress. Few documents ever proceeded from his pen more wise, or evincing greater knowledge of mankind, or a more profound apprehension of the great subject before him, than the letter which he then wrote concerning the reorganization of the army.[106]

Before this letter was written, however, urged by his repeated requests and admonished by defeat, the Congress had adopted a plan, reported by the Board of War, for the organization of a new army, to serve during the war. A long debate preceded its adoption, but the resolves were at length passed on the 16th of September, 1776.[107] They authorized the enlistment of a body of troops, to be divided into eighty-eight battalions, and to be enlisted as soon as possible. These battalions were to be raised by the States; a certain number being assigned to each State as its quota. The highest quota, which was 15, was assigned to the States of Virginia and Massachusetts, respectively. Pennsylvania had 12; North Carolina, 9; Maryland and Connecticut, 8 each; South Carolina, 6; New York and New Jersey, 4 each; New Hampshire, 3; Rhode Island, 2; and Delaware and Georgia, 1 each. The inducements to enlist were a bounty of twenty dollars and one hundred acres of land to each non-commissioned officer or soldier; and to the commissioned officers, the same bounty in money, with larger portions of land.[108] The States were to provide arms and clothing for their respective quotas, and the expense of clothing was to be deducted from the pay.[109] Although the officers were to be commissioned by the Continental Congress, each State was to appoint the officers of its own battalions, from the colonel to those of the lowest grade, inclusive. A circular letter was addressed by Congress to each State, urging its immediate attention to the raising of these troops; and a committee of three members of the Congress was sent to the head-quarters of General Washington, to confer with him on the subject.[110]

Two serious defects in this plan struck the Commander-in-chief, as soon as it was laid before him; but the resolves had been passed, and passed with difficulty, before he had an opportunity specifically to point out the mistakes. In the first place, by giving the appointment of the officers to the States, any central system of promoting or placing the officers then serving on the continental establishment according to their characters and deserts was rendered impossible. The resolutions of Congress did not even recommend these officers to the consideration of their respective States. They were left to solicit their appointments at a distance, or to go home and make personal application. Those who chose to do the latter were more likely to get good places than those who remained at their posts; but they were also less likely to be deserving of important commissions than those who stayed with the army. To expect that a proper attention would be paid to the claims of men of real merit, under such a system,—whether they had or had not been in service before,—or that the army when brought together would be found to be officered on a uniform principle, exhibiting an adaptation of character to station, was, in Washington's view, to expect that local authorities would not be influenced by local attachments, and that merit would make its way, in silence and absence, against personal importunity and bold presumption.

But Washington saw no remedy for these evils, except by opening a direct communication with the States, through which he might exert some influence over their appointments. He immediately suggested to the Congress, that each State should send a commission to the army, with authority to appoint all the officers of the new regiments. Congress passed a resolve recommending this step to the States, and advising that the Commander-in-chief should be consulted in making the appointments; that those officers should be promoted who had distinguished themselves for bravery and attention to their duties; that no officer should be appointed who had left his station without leave; and that all the officers to be appointed should be men of honor and known abilities, without particular regard to their having been in service before.[111] This was but a partial remedy for the defects of the system. Several of the States sent such a commission to act with the Commander-in-chief; but many of them were tardy in making their appointments, and finally the Congress authorized General Washington to fill the vacancies.

Another and a dangerous defect in this plan was, that the continental pay and bounty on enlistment were fixed so low, that some of the States, in order to fill up their quotas, deemed it expedient to offer a further pay and bounty to their own men. This was done immediately by the States of Connecticut and Massachusetts. The consequence was likely to be, that, if the quotas of some States were raised before the fact became known that other States had increased the pay and the bounty, some regiments would, when the army came together, be on higher pay than others, and jealousy, impatience, and mutiny must inevitably follow. Knowing that a different pay could not exist in the same army without these consequences, General Washington remonstrated with the Governor of Connecticut, arrested the proceedings of the commissioners of that State and of Massachusetts, and prevented them from publishing their terms, until the sense of the Congress could be obtained.[112] That body, on receiving from him another strong representation on the subject, passed a resolve augmenting the pay.

Still, the system, notwithstanding these efforts to amend it, worked ill. The appointment of the officers by the States was incapable of being well managed; the pay and bounty, even after they were increased, were insufficient; and the whole scheme of raising a permanent army was entered upon at too late a period to be effectually accomplished. As late as the middle of November, so little had been done, that the whole force on one side of the Hudson, opposed to Howe's whole army, did not exceed two thousand men of the established regiments; while, on the other side, there was a force not much larger to secure the passes into the Highlands.[113] "I am wearied almost to death," said the Commander-in-chief, in a private letter, "with the retrograde motion of things, and I solemnly protest that a pecuniary reward of twenty thousand pounds a year would not induce me to undergo what I do; and after all, perhaps, to lose my character, as it is impossible, under such a variety of distressing circumstances, to conduct matters agreeably to public expectation, or even to the expectations of those who employ me, as they will not make proper allowances for the difficulties their own errors have occasioned."[114]

There are few pages in our history so painful as those on which are recorded the complaints extorted from Washington, at this period, by the trials of his situation. That he, an accomplished soldier, who had retired with honor from the late war with France to his serene Mount Vernon; who had left it again, to stake life, and all that makes life valuable, on the new issue of his country's independence; who asked no recompense and sought no object but her welfare, should have been compelled to pass into the dark valley of the retreat through New Jersey, with all its perplexities, dangers, and discouragements,—its cruel exertions and its humiliating reverses,—without a powerful and energetic government to lean upon, and with scarcely more than Divine assistance to which to turn, presents, indeed, to our separate contemplation, a disheartening and discreditable fact. But no trials are appointed to nations, or to men, without their fruits. The perplexities and difficulties which surrounded Washington in the early part of the Revolution contributed, undoubtedly, to give him that profound civil wisdom, that knowledge of our civil wants, and that influence over the moral sense of the country, which were afterwards so beneficently felt in the establishment of the Constitution. The very weakness of the government which he served became in this manner his and our strength. Without the trials to which it subjected him, it may well be doubted whether we should now possess that tower of strength,—that security against distracted counsels and clashing interests,—which exist for us in the character and services of that extraordinary man.

It is not necessary to sketch the scene or to follow the route of General Washington's retreat through New Jersey, except as they illustrate the subject of this work,—the constitutional history of the country. Its remarkable military story is well known. On the 23d of November, four days after the date of the letter to his brother above quoted, he was at Newark, with a body of troops whose departure was near at hand, and for supplying whose places no provision had been made. The enemy were pressing on his rear, and in order to impress upon Congress the danger of his situation, he sent General Mifflin to lay an exact account of it before them.[115] On the 28th, he marched out of Newark in the morning, and Lord Cornwallis entered it on the afternoon of the same day. On the 30th, he was at Brunswick, endeavoring, but with little success, to raise the militia;—the terms of service of the Jersey and Maryland brigades expiring on that day. On the 1st of December, his army numbered only four thousand men, and the enemy were pushing forward with the greatest energy.[116] On the 5th, he resolved to march back to Princeton; but neither militia nor regulars had come in, and it was too late to prevent an evil, which he had both foreseen and foretold.[117] On the 8th, he crossed the Delaware.[118] On the 12th, he saw his little handful of men still further decrease, and now, without succors from the government, or spirited exertions on the part of the people, the loss of Philadelphia—"an event," said he, "which will wound the heart of every virtuous American"—rose as a spectre in his path.[119] On the 16th, as he moved on, gathering all the great energies of his character to parry this deep disgrace, concentrating every force that remained to him towards the defence of the city, and animating and directing public bodies, in a tone of authority and command, he once more urged the Congress to discard all reliance upon the militia, to augment the number of the regular troops, and to strain every nerve to recruit them.[120] Finally,—being still in doubt whether Howe did not intend an attack on Philadelphia, before going into winter quarters,—with less than three thousand men fit for duty, to oppose a well-appointed army of ten or twelve thousand, and surrounded by a population rapidly submitting to the enemy,—he felt that the time had come, when to his single hands must be given all the military authority and power which the Continental Union of America held in trust for the liberties of the country. On the 20th of December, therefore, he wrote to the President of Congress a memorable letter, asking for extraordinary powers, but displaying at the same time all the modesty and high principle of his character.[121]

To this appeal Congress at once responded, in a manner suited to the exigency. On the 27th of December, 1776, they passed a resolution, vesting in General Washington ample and complete power to raise and collect together, in the most speedy and effectual manner from all or any of the United States, sixteen battalions of infantry, in addition to those already voted; to appoint the officers of these battalions; to raise, officer, and equip three regiments of artillery and a corps of engineers, and to establish their pay; to apply to any of the States for such aid of their militia as he might judge necessary; to form such magazines of provisions, and in such places, as he should think proper; to displace and appoint all officers under the rank of brigadier-general; to fill up all vacancies in every other department of the American army; to take, wherever he might be, whatever he might want for the use of the army, if the inhabitants would not sell it, allowing a reasonable price for the same; to arrest and confine persons who should refuse to receive the continental currency, or were otherwise disaffected to the American cause; and to return to the States of which such persons were citizens their names and the nature of their offences, together with the witnesses to prove them. These powers were vested in the Commander-in-chief for the space of six months from the date of the resolve, unless sooner revoked by the Congress.[122]

The powers thus conferred upon General Washington were in reality those of a military dictatorship; and in conferring them, the Congress acted upon the maxim that the public safety is the supreme law. They acted, too, as if they were the proper judges of the exigency, and as if the powers they granted were then rightfully in their hands. But it is a singular proof of the unsettled and anomalous condition of the political system of the country, and of the want of practical authority in the continental government, that, in three days after the adoption of the resolves conferring these powers, the Congress felt it necessary to address a letter to the Governors of the States, apologizing for this step. Nor was their letter a mere apology. It implied a doubt whether the continental government possessed a proper authority to take the steps which the crisis demanded, and whether the execution of all measures did not really belong to the States, the Congress having only a recommendatory power. "Ever attentive," their letter declared, "to the security of civil liberty, Congress would not have consented to the vesting of such powers in the military department as those which the inclosed resolves convey to the continental Commander-in-chief, if the situation of public affairs did not require, at this crisis, a decision and vigor which distance and numbers deny to assemblies far removed from each other and from the seat of war." The letter closed, by requesting the States to use their utmost exertions to further such levies as the general might direct, in consequence of the new powers given him, and to make up and complete their quotas as formerly settled.[123]

Strictly examined, therefore, the position taken by the Congress was, that a crisis existed demanding the utmost decision and vigor; that the measures necessary to meet it, such as the raising of troops and the compulsory levying of supplies, belonged to the States; but that, the State governments being removed from each other and from the seat of war, the Congress confers upon the continental general power to do things which in reality it belongs to the States to do. In this there was a great inaccuracy, according to all our present ideas of constitutional power. But still the action of the Congress expresses and exhibits their real situation. It contains a contradiction between the true theory of their revolutionary powers and the powers which they could in fact practically exercise. Upon principle, it was just as competent to the Congress to take the steps required by the exigency, as it was to adjudge them to the States; and it was just as competent to the Congress to do any thing directly, as to confer a power to do it on their general. But the jealousies of the States, the habits of the country, and the practical working of the existing institutions, had never permitted the full exercise of the revolutionary powers which properly resided in the hands of the Congress. The true theory of their situation was limited by practical impossibilities; and an escape from contradictions became impossible. It was perceived that the States would neither pass laws or resolves for the summary raising of forces and levying of supplies, nor allow this to be done by committees or commissioners of Congress; but it was believed that they would acquiesce in its being done by General Washington, out of respect for his character, for his abilities and his motives, and from conviction that he alone could save the country.

The expectations of the Congress were not disappointed. It was felt throughout the country, that such powers could be lodged in the hands of Washington without danger. The States in general acquiesced in the necessity and propriety of this measure, and there was little disposition to encroach upon or to complain of the authority conferred. To this acquiescence, however, there were exceptions.[124]

The period which now followed was a part of the interval during which the Articles of Confederation were pending in Congress. We have seen that the plan of a confederation was reported to that body in July, 1776, and finally adopted for recommendation to the States in November, 1777. But soon after the extraordinary powers had been conferred upon General Washington, the attendance of the members began to diminish, and several of the most eminent and able men, who had hitherto served, retired from Congress. In January, 1777, there were no delegations present from the States of Delaware and New York;[125] and in February, the absence of many distinguished men, whose counsels had been of vast importance, made a striking deficiency. The formation of the State governments, and the local affairs of the States, absorbed for a time, with a few important exceptions, the best civil talent in the country.[126]

While the personal efficiency and wisdom of the Congress thus sensibly declined, no change took place in the nature of their powers, or in their relations to the States, that would impart greater vigor to their proceedings. The delegations of many of the States were renewed in the winter of 1776-7; but there was a great diversity, and in some cases a great vagueness, in their instructions.[127] In such a state of things,—with no uniform rule prescribing the powers of the Congress, and with some uncertainty in that body itself with regard to its authority to confer upon the Commander-in-chief the powers with which he was now invested,—however general might be the readiness of the country to acquiesce in their necessity, it is not surprising that State jealousy was sometimes aroused, or that it should have been unreasonable in some of its manifestations.

A striking instance of this jealousy occurred upon the occasion of a proclamation issued by General Washington at Morristown, on the 25th of January, 1777. Sir William Howe had published a proclamation in New Jersey, offering protection to such of the inhabitants as would take an oath of allegiance to the King. Many of the substantial farmers of the country had availed themselves of this offer, and had received protections from the British general. The English and Hessian troops, however, made no distinction between friends and foes, but frequently committed great outrages both upon person and property. The resentment of the population would have restored them to the patriot side; but many who had taken the oath of allegiance felt, or affected, in consequence, scruples of conscience.

General Washington therefore issued a counter-proclamation, commanding all persons who had received the enemy's protection to repair to head-quarters, or to some general officer of the army, and to surrender their protections and take an oath of allegiance to the United States;—allowing thirty days for those who preferred to remain under the protection of Great Britain to withdraw within the enemy's lines. This was considered in some quarters as an undue exercise of power. The idea of an oath of allegiance to the United States, before the Confederation was formed, was regarded by many as an absurdity. Allegiance, it was said, was due exclusively to the State of which a man was an inhabitant; the States alone were sovereign; and it was for each State, not for the United States, which possessed no sovereignty, to exact this obligation. The Legislature of New Jersey were disposed to treat General Washington's proclamation as an encroachment on their prerogatives: and one of the delegates of that State in Congress denounced it as improper.[128]

This feeling was shared by other members; but it is not to be doubted, that the proceeding was a legitimate exercise of the authority vested in the Commander-in-chief. He had been expressly empowered to arrest and confine persons disaffected to the American cause; and the requiring them to attend at his head-quarters was clearly within the scope of this authority. Moreover, although no confederation or political union of the States had been formed under a written compact, yet the United States were waging war, as a government regularly constituted by its representatives in a congress, for the very purpose of carrying on such war. They had an army in the field, whose officers held continental commissions, and were paid by a continental currency. They were exercising certain of the attributes of sovereignty as a belligerent power; and in that capacity they had a complete right to exact such an obligation not to aid the enemy, as would separate their friends from their foes. It was a military measure; and the tenor of the proclamation shows that General Washington exacted the oath in that relation. To pause at such a moment, and to consider nicely how much sovereignty resided in each of the States, and how much or how little belonged to the United States, was certainly a great refinement. But it marks the temper of the times, and the extreme jealousy with which all continental power and authority were watched at that period.[129]

We have seen that the powers conferred upon General Washington authorized him to raise, in the most speedy and effectual manner, sixteen battalions of infantry, in addition to those before voted by Congress, three regiments of artillery, and a corps of engineers; and also to apply to any of the States for the aid of their militia when wanted.[130] At the period when he addressed himself to this great undertaking of forming a new army, for the third time, the existing force which he had with him in and around New Jersey was about to be dissolved. The additional regiments of the regular line were to be raised by the States, and upon them alone could he depend for the supply of a new army, with which to commence the campaign in the spring of 1777. He had labored, he said, ever since he had been in the service, to discourage all kinds of local attachments and distinctions of country, denominating the whole by the greater name of American; but he had found it impossible to overcome prejudices.

Two causes especially embarrassed his efforts in the formation of the new army; and both of them show how powerful were the centrifugal forces of our system at that period, and how little hold that great central name had taken upon the people of the different States. One of these causes was the persistence of some of the States in giving extra bounties to encourage enlistments into their quotas of the original eighty-eight battalions not yet raised. The bounty allowed by Congress was twenty dollars to every soldier enlisting into the new establishment for three years or during the war. The additional bounty offered by Massachusetts was sixty-six dollars and two thirds. There was thus an inducement of eighty-six dollars and two thirds offered to the men then in the service of the United States, not to reënlist in their old regiments, as fast as their time of service expired, but to go to Massachusetts and enlist in the fresh quotas which were forming in that State, and which were to be afterwards mustered into the continental service. The same inconsiderate and unpatriotic policy was pursued in all the Eastern States, and before the spring opened, the consequences began to be felt in the state of the new continental battalions which General Washington was endeavoring to procure from some of the Middle States, and in which he would not sanction the allowance of an extra bounty, regarding it as an indirect breach of the union, and of the agreement entered into by the delegates of the States in Congress to give a bounty of twenty dollars only for service in the continental army.[131] The month of April arrived, and he had not received a man of the new levies, except a few hundreds from Jersey, Pennsylvania, and Virginia, while the few old regiments which remained, after the dissolution of the army in January, were reduced to a handful of men, the enemy being in great force, and making every preparation to seize upon Philadelphia.

Nor did the allowance of these irregular bounties help the States, in raising the old levies, as had been anticipated. They rather caused the soldiers to set a high price upon themselves, and to hold back from enlisting; while the second cause, to which I have alluded, as embarrassing the Commander-in-chief, was a great hinderance to his efforts to plan and carry out a campaign, having for its object the general benefit of the whole Union.

This cause was the inability of many local authorities to comprehend the necessity of such a campaign. General Washington was, at this period, harassed by numerous applications to allow the troops, which had been raised in the States for the service of the continent, to remain for the defence of particular neighborhoods against incursions of the enemy. Nothing, he said on one of these occasions, could exceed the pleasure which he should feel, if he were able to protect every town and every individual on the continent. But as this was a pleasure which he never should realize, and as the continental forces were wanted to meet and counteract the main designs of the enemy on the principal theatre of the war, he could not consent to divide them and detach them to every point where the enemy might possibly attempt an impression; "for that," he added, "would be in the end to destroy ourselves and subjugate our country."[132]

From the operation of these and other causes connected with the political system of the country, the army with which Washington was obliged to take the field, in the spring of 1777, did not exceed five thousand seven hundred and thirty-eight effective men, exclusive of a small body of cavalry and artillery.[133] The consequence was, a necessary reliance upon militia, to a great extent, throughout that summer. The battle of the Brandywine, fought with an effective force of only eleven thousand men, including militia, against a thoroughly disciplined army of fifteen thousand British and Hessian troops, and fought for the city of Philadelphia as a stake, was lost on the 11th of September.[134] The Congress broke up on the 18th. Sir William Howe took possession of the city on the 26th; and on the 27th, the Congress reassembled at Lancaster. In a few days, they removed to Yorktown, where their sessions continued to be held for several months.

The position in which they found themselves, amid the dark clouds which lowered around their cause, seems to have recalled to their recollection the Articles of Confederation, which had lain slumbering upon their table since the 8th of April. On that day, they had resolved that the report should be taken into consideration on the following Monday, and that two days in each week should be employed on the subject, until it had been wholly discussed. When the Monday came, it was postponed; and it was only after they had been driven from Philadelphia by the approach of the enemy, that they seem to have fully realized the fact, that, without a more perfect union and a more efficient government, the country could not be saved. As soon as they had reassembled at Yorktown, after the urgent business of the moment had been attended to, they passed a resolve, on the 2d of October, that the Articles of Confederation be taken into consideration the next day, at eleven o'clock. The discussion did not actually commence, however, until the 7th of October; but from that day it was continued until the 17th of November, when the Articles, as they afterwards went into operation, were adopted for recommendation to the States, and a circular letter was addressed to the several legislatures, submitting the plan of a confederacy, and urging its adoption.

We are now approaching the period when the American people began to perceive that something more was necessary to their safety and happiness than the formation of State governments;—when they found, or were about to find, that some digested system of national government was essential to the great objects for which they were contending; and that, for the formation of such a government, other arrangements than the varying instructions of different colonies or states to a body of delegates were indispensable. The previous illustrations, drawn from the civil and military history of the country, have been employed to show the character and operation of the revolutionary government, the end of which is drawing near. For we have seen that the great purpose of that government was to secure the independence of each of these separate communities or states from the crown of Great Britain; that it was instituted by political societies having no direct connection with each other except the bond of a common danger and a common object; and that it was formed by no other instrumentality, and possessed no other agency, than a single body of delegates assembled in a congress. For certain great purposes, and in order to accomplish certain objects of common interest, a union of the people of the different States had indeed taken place, bringing them together to act through their representatives; but this union was now failing, from the want of definite powers; from the unwillingness of the people of the country to acquiesce in the exercise of the general revolutionary powers with which it was impliedly clothed; and from the want of suitable civil machinery. In truth, the revolutionary government was breaking down, through its inherent defects, and the peculiar infelicity of its situation. Above all, it was breaking down from the want of a civil executive to take the lead in assuming and exercising the powers implied from the great objects for which it was contending. Its legislative authority, although defined in no written instruments or public charters, was sufficient, under its implied general powers, to have enabled it to issue decrees, directing the execution, by its own agents, of all measures essential to the national safety. But this authority was never exercised, partly because the States were unwilling to execute it, but chiefly because no executive agency existed to represent the continental power, and to enforce its decrees.

It is a singular circumstance, that, while the revolutionary government was left to conduct the great affairs of the continent through the mere instrumentality of a congress of delegates, and was thus failing for the want of departments and powers, the States were engaged in applying those great principles in the organization and construction of popular governments, under which they may be formed with rapidity and ease, and which are capable of the most varied adaptation to the circumstances and wants of a free people.

The suppression of the royal authority throughout the colonies, by virtue of the resolve of the Continental Congress passed on the 10th of May, 1776, rendered necessary the formation of local governments, capable at once of answering the ends of political society, and of continuing without interruption the protection of law over property, life, and public order. Fortunately, as we have seen, the previous constitutions of all the colonies had accustomed the people, to a great extent, to the business of government; and, when the recommendation of the Continental Congress to the several colonies to adopt such governments as would best conduce to their happiness and safety was made immediately after the first effusion of blood, it was addressed to civil societies, in which the people had, in different modes, been long accustomed to witness and to exercise the functions of legislation, and in all of which there were established forms of law, of judicature, and of executive power.

The new political situation in which they now found themselves required, in many of the colonies, but little departure from these ancient institutions. The chief innovation necessary was, to bring into practical working the authority of the people, in place of that of the crown of England, as the source of all political power. The changes requisite to effect this were of course to be made at once; the materials for these changes existed everywhere, in the representative institutions which had been long a part of the system of every colony since the first settlement of the country. Thus, as we have seen, in all the provincial, the proprietary, and the charter governments, the freemen of the colony had been accustomed to be represented in the government, in some form; and although those governments, with a few exceptions, were under the direct or indirect restraint of the crown, and could all be reached and controlled by the exercise of arbitrary power, the practice of representation, through popular elections, was everywhere known and familiar. The old constitutions of some of the colonies had also been highly democratic, admitting an election of the executive, as well as of the legislature, directly by the people;[135] while, in others, where the executive was appointed by the crown, the second or less numerous branch of the legislature had been elected by the people, either directly, or indirectly through the popular assembly. The foundations, therefore, for popular governments existed in all the colonies, and furnished the means for substituting the new source of political power, the will of the people, in the place of that of an external sovereign.

But there were other materials, also, for the formation of regular and balanced governments, with nearer approaches to perfection and with far greater completeness than a mere democracy can afford to any people, however familiar they may be with the exercise and the practice of government. The people of these colonies had been so trained as to be able to apply those principles in the construction and operation of government which enable it to work freely, successfully, and wisely, while resting on a popular basis. They were able to see, that the whole of what is meant and understood by government is comprehended in the existence and due operation of legislative, executive, and judicial powers.[136] They had lived under political arrangements, in which these powers had been distributed so as to keep them for the most part distinct from each other, and so as to mark the proper limitations of each. If, in some instances, the same individuals had exercised more than one of these powers, the distinctions between the departments, and the principles which ought to regulate such distinctions, had become known. The people of the colonies, in general, therefore, saw that nothing was so important, in constructing a government with popular institutions, as to balance each of these departments against the others, so as to leave to neither of them uncontrolled and irresponsible power. In general, too, they understood, and had always been accustomed to the application of that other fundamental principle, essential to a well-regulated liberty, the division of the legislative power between two separate chambers, having distinct origins and of distinct constructions.[137]

But none of these ideas were applied, or were yet thought of being applied, to the construction of a government for the United States; and it is therefore at this period that we are to observe the slow progress making, through disaster and trial, to those great discoveries which led the way to the Constitution, and that we are to mark the first of those failures by which the people of America learnt the bitter wisdom of experience. For the fate of the revolutionary government presents the first illustration in our history of the complete futility of a federative union, whose operation as a government should consist merely in agreeing upon measures in a general council, leaving the execution of those measures to the separate members of the confederacy. But this first illustration, we shall soon see, was not sufficient to establish this truth in the convictions of the American people.

Another and a severer trial awaited them. They were not only to be taught once more that a mere federative union was a rope of sand, but they were also to be taught, that a government instituted upon this principle for the purposes of a war, in which the separate members of the confederacy had a common interest, would not answer the exigencies of a country like this, in time of peace. They were to learn, by a trying experience, that the vast concerns of peace are far more complex than the concerns of war; that there were important functions of government to be discharged upon this continent, which only national power and national authority can accomplish, and that those functions are essential, not only to the prosperity and happiness of this nation, but to the continued existence of republican liberty within the States themselves. They were to learn this through a state of things verging upon anarchy; amidst the decay of public virtue; the conflict of sectional interests; and the almost total dissolution of the bands by which society is held together. In this state of things was to be at last developed the fundamental idea on which the Constitution of the United States now rests,—the political union of the people of the United States, as distinguished from a union of the States of which they are citizens.

We have, therefore, now reached the first stage in the constitutional history of the country. What has thus far been stated comes to a single point, the earliest great illustration of the radical defects in a purely federative union. The next stage which succeeds presents the second illustration of this important truth.