Читать книгу History of the Origin, Formation, and Adoption of the Constitution of the United States - George Ticknor Curtis - Страница 12

Table of Contents

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.

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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.

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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

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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

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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.

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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.

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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.