History of the Origin, Formation, and Adoption of the Const.i.tution of the United States.

Vol. 1.

by George Ticknor Curtis.

PREFACE.

A special history of the origin and establishment of the Const.i.tution 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 ill.u.s.trious person, whose relation to the Const.i.tution 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 Const.i.tution 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 Const.i.tution 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 Const.i.tution 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 antic.i.p.ated 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 Const.i.tution. _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 pa.s.sed.

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 n.o.ble Commentary, which is known and honored wherever the Const.i.tution of the United States bears sway.

The plan of this work is easily explained. The first volume embraces the Const.i.tutional History of the United States from the commencement of the Revolution to the a.s.sembling of the Convention of 1787, together with some notices of the princ.i.p.al members of that body. The second volume is devoted to the description of the process of forming the Const.i.tution, 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 inst.i.tutions 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 const.i.tutional history of the United States has not been written, and few persons have made themselves accurately acquainted with its details.

How the Const.i.tution of the United States came to be formed; from what circ.u.mstances it arose; what its relations were to inst.i.tutions 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 Const.i.tution is not like the history of a monarchy, in which some things are obsolete, while some are of present importance. The Const.i.tution 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 Const.i.tution 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 Const.i.tution 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 inst.i.tutions 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 inst.i.tutions 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 inst.i.tutions against encroachments from without.

Finally, the Const.i.tution 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 att.i.tude in which scarcely any nation thought it worth while to treat with them, to a place among the four princ.i.p.al 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 inst.i.tutions 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 Const.i.tution 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.

FOOTNOTE:

[1] In citing the "Madison Papers," I have constantly referred to the edition contained in the fifth (supplementary) volume of Mr. Jonathan Elliot's "Debates," &c., because it is more accessible to general readers. The accuracy of that publication, and its full and admirable Index, make it a very important volume to be consulted in connection with the subject of this work. In this relation, I may suggest the desirableness of a new and carefully revised edition of the Journals of the old Congress;--an enterprise that should be the care of the national government. A great magazine of materials for our national history, from the first Continental Congress to the adoption of the Const.i.tution, exists in those Journals.

BOOK I.

THE CONSt.i.tUTIONAL 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 munic.i.p.al laws: but their various populations spoke almost universally the English language. These colonies were Virginia, Ma.s.sachusetts, 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 cla.s.sed by jurists and historians under the three heads of Provincial, Proprietary, and Charter governments.

To the cla.s.s of Provincial governments belonged the Provinces of New Hampshire, New Jersey, Virginia, the two Carolinas, and Georgia. These had no other written const.i.tutions, 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 a.s.sisted by a Council, the members of which, besides partic.i.p.ating with him, to a certain extent, in the executive functions of the government, const.i.tuted the upper house of the provincial legislature; and he was also authorized to summon a general a.s.sembly of representatives of the freeholders of the Province. The three branches thus convened, consisting of the Governor, the Council, and the Representatives, const.i.tuted the provincial a.s.semblies, 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 a.s.sembly; 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 a.s.semblies. The authority of the proprietaries, or of the legislative bodies a.s.sembled 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 Ma.s.sachusetts, Rhode Island, and Connecticut, may be said, in a stricter sense, to have possessed written const.i.tutions 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 Ma.s.sachusetts, 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 a.s.sembly, 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 princ.i.p.al causes which precipitated the war of the Revolution was the blow struck by Parliament at these charter governments, commencing with that of Ma.s.sachusetts, by an act intended to alter the const.i.tution 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 a.s.sumed that none of them possessed const.i.tutional 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 Ma.s.sachusetts Bay," pa.s.sed 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 a.s.sembly 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 const.i.tution 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 Const.i.tution, was one of the chief powers a.s.serted and developed by the Revolution; and they were enabled to effect this union, as a revolutionary right and measure, by the fortunate circ.u.mstances 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 att.i.tude 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.