Founding America: Documents from the Revolution to the Bill of Rights

by Jack N. Rakove (editor)

  Once this national domain existed, Congress had to ask how it would be governed. Its solution to this problem was found in the Northwest Ordinance of 1787, which Congress, then sitting in New York, adopted while the constitutional convention was simultaneously meeting in Philadelphia. Rather than treat the interior of the continent as a subordinate region to be exploited and colonized by the existing seaboard states, the Northwest Ordinance envisioned the creation of new states, to be admitted to the Union with the same rights and powers as its original thirteen members.

  REFORMING THE ARTICLES OF CONFEDERATION

  —Philip Schuyler—

  LETTER TO PIERRE VAN CORTLANDT

  AND EVERT BANCKER

  JANUARY 29, 1780

  ALBANY JANUARY 29TH 1780.

  GENTLEMEN,

  Concieying it my duty as a Servant of the State to advise the Legislature of any Occurrences in Congress which may immediately af fect either the Honor or the Weal of the State, I beg Leave to inform the honorable Houses in which you respectively preside of some Matters which I intended to have conveyed thro’ his Excellency the Governor, supposing that to be the proper Channel of Communication : but was prevented by his leaving the City, and as I humbly concieve the Subject worthy the immediate Attention of the Legislature and that Evils may possibly arise from Delay, I have taken the Liberty to address myself to you, trusting that his Excellency’s Candor and that of the Legislature will excuse the Impropriety if it should be deemed one.

  Deeply impressed with a Sense of the extensive Advantages which would probably result to the United States in general, and this in particular, from a perfect and permanent Reconciliation with an Enemy so formidable to a weak and extensive Frontier as fatal Experience has evinced the Indians to be, to whom Distance of Situation seems no great Obstacle to prevent or retard their Incursions; reflecting, with the most anxious Concern, on the Desolation and Variety of Distress incident on a Savage War; apprehensive that they would consider themselves without any Alternative but that of recommencing Hostilities; dreading the Effects of a consequent Desperation on their part; firmly believing that the greatly deranged State of the public Finances would render it exceedingly difficult to procure the necessary Supplies for that Army only which must keep the Enemy’s Force on the Sea Board in Check; doubtful whether Detachments of sufficient Force to protect the Frontiers could be spared from our Army whilst the British retained their present position ; aware of the Distresses and Expence incident on calling forth the Militia for the purpose; convinced that an Obstacle of very interesting Importance would be removed if Events should happily arise which would permit us to turn our Attention to the Reduction of Canada or the Enemies Fortresses in the interior parts of the Country ; persuaded that no farther offensive Operations could be prosecuted against the Savages with any probable prospect of adequate Advantage I embraced the earliest Opportunity to advise Congress of the Overtures made by the Cayugas, and took the Liberty strongly to point at the Necessity of an Accommodation with all the Savages: but not being honored with an Answer as early as the Importance of the Object seemed to require, and wishing to improve the Advantage which the first Impulse occasioned by the Disaster the Indians had experienced would probably afford us, I hastened to Congress to sollicit their Determination which was obtained on the __ November last, Copy whereof I have the Honor to enclose.

  Whilst the Report of the Committee in the Business I have alluded to was under Consideration a Member moved in Substance “That the Commissioners for Indian Affairs in the Northern Department should require from the Indians of the six Nations, as a preliminary Article, a Cession of part of their Country, and that the Territory so to be ceded should be for the Benefit of the United States in general and grantable by Congress.” A Measure so evidently injurious to this State exceedingly alarmed and chagrined those whose Duty it was to attend to its Interests. They animadverted with Severity on the unjustifiable principle held up in the Motion; the pernicious Consequence of divesting a State of its undoubted property in such an extrajudicial Manner was forcibly urged: the Apprehensions with which it would fill and affect the Minds of a people who had been as firm in the present glorious Contest; who had made more strenuous and efficacious Exertions to support it; had suffered more and still suffered as much as any were strongly painted. The Improbability that the Indians would acceed to a Reconciliation when such a preliminary was insisted upon was observed by many Members and urged on a Variety of Considerations. The Gentlemen in Favor of the Motion attempted to support it on the general Ground that what was acquired or conquered at the common Expence ought to enure to the common Benefit; that the Lands in Question, altho’ they might be comprehended within the Limits of the State of New York (which however was not acknowledged) was not the property of the State; that being either in the Natives or by Right of Conquest in the United States. The Motion was nevertheless after some farther desultory Debate rejected: but from what drop’d in the Debate we had Reason to apprehend that several who were opposed to the Motion founded their Opposition on the Necessity of a Reconciliation with the Indians, against which, they imagined the Spirit of the Motion would militate. And we had a few Days after a convincing proof that an Idea prevailed that this and some other States ought to be divested of part of their Territory for the Benefit of the United States, when a Member afforded us the perusal of a Resolution for which he intended to move the House purporting “that all the Lands within the Limits of any of the United States, heretofore grantable by the King of Great Britain whilst these States (then Colonies) were in the Dominion of that prince, and which had not been granted to Individuals should be considered as the joint property of the United States and disposed of by Congress for the Benefit of the whole Confederacy.” The Necessity and propriety of such an Arrangement was strenuously insisted upon, in private Conversation, and even supported by Gentlemen who represented States in Circumstances seemingly similar to our’s with Respect to the Object of the intended Resolution. It was observed that if such States whose Bounds were either indefinite or were pretended to extend to the South Seas would consent to a reasonable Western Limitation that it would supercede the Necessity of any Intervention by Congress other than that of permanently establishing the Bounds of each State: prevent Controversy and remove the Obstacle which prevented the Completion of the Confederation. As this State would be eminently affected by such a Measure it was deemed of Importance as fully to investigate their Intentions as could be done consistent with that Delicacy and prudence to be observed on so interesting an Occasion and a Wish was accordingly expressed, as arising from mere Curiosity, to know their Idea of a reasonable Western Limitation. This they gave by exhibiting a Map of the Country, on which they drew a Line from the North west Corner of Pennsylvania (which in that Map was laid down as in Lake Erie)22 thro’ the Strait that leads to Ontario and thro’ that Lake and down the St. Lawrence to the forty fifth Degree of Latitude for the Bounds of this State in that Quarter. Virginia, the two Carolinas and Georgia they proposed to restrict by the Allighany Mountains, or at farthest by the Ohio to where that River enters the Missisippi and by the latter River to the South Bounds of Georgia. That all the Territory to the West of those Limits should become the property of the Confederacy. We found this Matter had been in Contemplation some Time; the Delegates from North Carolina having then already requested Instructions from their Constituents on the Subjects, and my Colleagues were in Sentiment with me that it should be humbly submitted to the Legislature, if it would not be proper to communicate their pleasure in the premisses by Way of Instruction to their Servants in Congress.

  I am Gentlemen with Great respect and Esteem

  YOUR MOST OBEDIENT HUMBLE SERVANT

  PH: SCHUYLER The Honorable Pierre Van Cortlandt and Evert Ban[c]ker Esqrs.

  —Alexander Hamilton—

  LETTER TO JAMES DUANE

  SEPTEMBER 3, 1780

  [LIBERTY POLE, NEW JERSEY, SEPTEMBER 3, 1780]

  DR. SIR

>   Agreeably to your request and my promise I sit down to give you my ideas of the defects of our present system, and the changes necessary to save us from ruin. They may perhaps be the reveries of a projector rather than the sober views of a politician. You will judge of them, and make what use you please of them.

  The fundamental defect is a want of power in Congress. It is hardly worth while to show in what this consists, as it seems to be universally acknowleged, or to point out how it has happened, as the only question is how to remedy it. It may however be said that it has originated from three causes—an excess of the spirit of liberty which has made the particular states show a jealousy of all power not in their own hands; and this jealousy has led them to exercise a right of judging in the last resort of the measures recommended by Congress, and of acting according to their own opinions of their propriety or necessity, a diffidence in Congress of their own powers, by which they have been timid and indecisive in their resolutions, constantly making concessions to the states, till they have scarcely left themselves the shadow of power; a want of sufficient means at their disposal to answer the public exigencies and of vigor to draw forth those means; which have occasioned them to depend on the states individually to fulfil their engagements with the army, and the consequence of which has been to ruin their influence and credit with the army, to establish its dependence on each state separately rather than on them, that is rather than on the whole collectively.

  It may be pleaded, that Congress had never any definitive powers granted them and of course could exercise none—could do nothing more than recommend. The manner in which Congress was appointed would warrant, and the public good required, that they should have considered themselves as vested with full power to preserve the republic from harm. They have done many of the highest acts of sovereignty, which were always chearfully submitted to—the declaration of independence, the declaration of war, the levying an army, creating a navy, emitting money, making alliances with foreign powers, appointing a dictator &c. &c.—all these implications of a complete sovereignty were never disputed, and ought to have been a standard for the whole conduct of Administration. Undefined powers are discretionary powers, limited only by the object for which they were given—in the present case, the independence and freedom of America. The confederation made no difference; for as it has not been generally adopted, it had no operation. But from what I recollect of it, Congress have even descended from the authority which the spirit of that act gives them, while the particular states have no further attended to it than as it suited their pretensions and convenience. It would take too much time to enter into particular instances, each of which separately might appear inconsiderable; but united are of serious import. I only mean to remark, not to censure.

  But the confederation itself is defective and requires to be altered; it is neither fit for war, nor peace. The idea of an uncontrolable sovereignty in each state, over its internal police, will defeat the other powers given to Congress, and make our union feeble and precarious. There are instances without number, where acts necessary for the general good, and which rise out of the powers given to Congress must interfere with the internal police of the states, and there are as many instances in which the particular states by arrangements of internal police can effectually though indirectly counteract the arrangements of Congress. You have already had examples of this for which I refer you to your own memory.

  The confederation gives the states individually too much influence in the affairs of the army; they should have nothing to do with it. The entire formation and disposal of our military forces ought to belong to Congress. It is an essential cement of the union; and it ought to be the policy of Congress to destroy all ideas of state attachments in the army and make it look up wholly to them. For this purpose all appointments promotions and provisions whatsoever ought to be made by them. It may be apprehended that this may be dangerous to liberty. But nothing appears more evident to me, than that we run much greater risk of having a weak and disunited federal government, than one which will be able to usurp upon the rights of the people. Already some of the lines of the army would obey their states in opposition to Congress notwithstanding the pains we have taken to preserve the unity of the army—if any thing would hinder this it would be the personal influence of the General, a melancholy and mortifying consideration.

  The forms of our state constitutions must always give them great weight in our affairs and will make it too difficult to bend them to the persuit of a common interest, too easy to oppose whatever they do not like and to form partial combinations subversive of the general one. There is a wide difference between our situation and that of an empire under one simple form of government, distributed into counties provinces or districts, which have no legislatures but merely magistratical bodies to execute the laws of a common sovereign. Here the danger is that the sove[re]ign will have too much power to oppress the parts of which it is composed. In our case, that of an empire composed of confederated states each with a government completely organised within itself, having all the means to draw its subjects to a close dependence on itself—the danger is directly the reverse. It is that the common sovereign will not have power sufficient to unite the different members together, and direct the common forces to the interest and happiness of the whole.

  The leagues among the old Grecian republics are a proof of this. They were continually at war with each other, and for want of union fell a prey to their neighbours. They frequently held general councils, but their resolutions were no further observed than as they suited the interests and inclinations of all the parties and at length, they sunk intirely into contempt.

  The Swiss-cantons are another proof of the doctrine. They have had wars with each other which would have been fatal to them, had not the different powers in their neighbourhood been too jealous of one-another and too equally matched to suffer either to take advantage of their quarrels. That they have remained so long united at all is to be attributed to their weakness, to their poverty, and to the cause just mentioned. These ties will not exist in America; a little time hence, some of the states will be powerful empires, and we are so remote from other nations that we shall have all the leisure and opportunity we can wish to cut each others throats.

  The Germanic corps might also be cited as an example in favour of the position.

  The United provinces may be thought to be one against it. But the family of the stadtholders23 whose authority is interwoven with the whole government has been a strong link of union between them. Their physical necessities and the habits founded upon them have contributed to it. Each province is too inconsiderable by itself to undertake any thing. An analysis of their present constitutions would show that they have many ties which would not exist in ours; and that they are by no means a proper mode for us.

  Our own experience should satisfy us. We have felt the difficulty of drawing out the resources of the country and inducing the states to combine in equal exertions for the common cause. The ill success of our last attempt is striking. Some have done a great deal, others little or scarcely any thing. The disputes about boundaries &c. testify how flattering a prospect we have of future tranquillity, if we do not frame in time a confederacy capable of deciding the differences and compelling the obedience of the respective members.

  The confederation too gives the power of the purse too intirely to the state legislatures. It should provide perpetual funds in the disposal of Congress—by a land tax, poll tax, or the like. All imposts upon commerce ought to be laid by Congress and appropriated to their use, for without certain revenues, a government can have no power; that power, which holds the purse strings absolutely, must rule. This seems to be a medium, which without making Congress altogether independent will tend to give reality to its authority.

  Another defect in our system is want of method and energy in the administration. This has partly resulted from the other defect, but in a great degree from prejudice and the want of a proper executive. Congress have k
ept the power too much into their own hands and have meddled too much with details of every sort. Congress is properly a deliberative corps and it forgets itself when it attempts to play the executive. It is impossible such a body, numerous as it is, constantly fluctuating, can ever act with sufficient decision, or with system. Two thirds of the members, one half the time, cannot know what has gone before them or what connection the subject in hand has to what has been transacted on former occasions. The members, who have been more permanent, will only give information, that promotes the side they espouse, in the present case, and will as often mislead as enlighten. The variety of business must distract, and the proneness of every assembly to debate must at all times delay

  Lately Congress, convinced of these inconveniences, have gone into the measure of appointing boards. But this is in my opinion a bad plan. A single man, in each department of the administration, would be greatly preferable. It would give us a chance of more knowlege, more activity, more responsibility and of course more zeal and attention. Boards partake of a part of the inconveniencies of larger assemblies. Their decisions are slower their energy less their responsibility more diffused. They will not have the same abilities and knowlege as an administration by single men. Men of the first pretensions will not so readily engage them, because they will be less conspicuous, of less importance, have less opportunity of distinguishing themselves. The members of boards will take less pains to inform themselves and arrive to eminence, because they have fewer motives to do it. All these reasons conspire to give a preference to the plan of vesting the great executive departments of the state in the hands of individuals. As these men will be of course at all times under the direction of Congress, we shall blend the advantages of a monarchy and republic in our constitution.