University of Virginia Library

CHAPTER VI

THE CRITICAL PERIOD, 1783-1789

Thirteen states, free and independent, had come out of
the American Revolution, being recognized as such by Great
Britain in the treaty of peace. They had worked in concert
for nine years, but their co-operation had been feeble and
halting. The divergences between these states was so great
that it is safe to say that they would never have come together
in a common union had it not been for the British oppressions.
Each state required its citizens to take an oath of allegiance,
but in every case the oath did not recognize the Continental
Congress, or any union of states. The statute of Virginia reported
by the revisers, in 1779, and adopted that year, commanded
that "every person, by law required to give an assurance
of fidelity, shall, for that purpose, take an oath in this
form: `I do declare myself a citizen of the Commonwealth of
Virginia; I relinquish and renounce the character of subject
or citizen of any Prince or other state whatsoever, and abjure
all allegiance which may be claimed by such Prince or other
state; and I do swear to be faithful and true to the said Commonwealth
of Virginia, so long as I continue a citizen thereof.
So help me God.' "

The people of the different colonies had a common speech,
it is true, but in their ways of thinking, civil institutions, habits
of life, and religious beliefs, a sufficient difference prevailed,
even during the Revolution, to distinguish the presence of what
amounted to two nations, viz.: a North and a South. There can
be little doubt that had time, without outside pressure, decided
the question, there would gradually have been formed, under
the protection of the British Crown, two confederacies with

national instincts, one a Northern Confederacy and the other
a Southern Confederacy.

During the interval that elapsed between 1783 and 1790,
the question was in fact problematic whether the union of the
thirteen colonies would continue, or whether it would break
up in its fundamental elements, which were in reality but two.
There never was any probability, as nationalists surmised, of
a subdivision of the Union into little commonwealths or principalities
engaged in incessant wars with one another, and disunited
to the end of time. There were only two centers, and
gravitation of the states to one or the other was as certain as
anything could be in the realm of reason. The time came when
the people of the South and the people of the North were as
far apart from one another in wishes and feelings as any two
nations in the whole world.

For the moment, however, the ties created by tyrannical
British taxation and the common sufferings of the Revolutionary
war held the states and sections together, and this union
was aided by the nature of the Articles of Confederation, according
to which the states entered into a "firm league of
friendship" with each other, for the securing and perpetuation
of which the freemen of each state were entitled to all the privileges
and immunities of citizens of the other states. Mutual
extradition of criminals was established, and in every state full
faith and credit were to be given to the records, acts, and
judicial proceedings of every other state. Congress had the
sole right to determine on peace and war, of sending and receiving
ambassadors, of making treaties, of adjudicating all
disputes between the states, of managing Indian affairs, and
of regulating the value of coin and fixing the standard of
weights and measures. But there could be no mistake where
"Sovereignty, Freedom, and Independence" existed, for it
was expressly stated that they were retained by the states.
The union was declared to be a confederacy only, and the position
in which they left Congress was that merely of a deliberative
head. The powers also of Congress were very limited,

but had they been tenfold greater this would not have altered
the relations of the states to the Union, when its character was
so plainly declared in the Articles themselves.

For any harmonious working of this confederacy, however,
there was the necessity of curing at least two defects. The first
consisted of lack of power on the part of Congress to raise
money to pay the debts and carry out the general purposes of
the Union; and the second in the inability experienced of presenting
a solid front to foreign countries in regard to commerce.
Under the Articles of Confederation the states
possessed all powers of laying taxes, tariffs and commercial
regulations, and, though Congress had the power to make
treaties, none could be made except with the consent of nine
of the thirteen states.

A failure of many of the states to pay their quotas and
the rapid depreciation of the paper money had forced Congress
in the winter of 1781 to request of the states as an indispensable
necessity, a grant of a power to levy an impost of
5 per cent on all imports except wool and cotton cards and wire
for making them. This was done shortly before Benjamin
Harrison arrived at Philadelphia, February 11, 1781, as commissioner
from Virginia to seek assistance from Congress
against Arnold, who had entrenched himself at Portsmouth
after marauding the state. Seeing the necessity of the impost,
Colonel Harrison had repaired to the legislature at
Charlottesville and, being re-elected speaker of the House of
Delegates, May 28, 1781, had warmly exerted his influence to
secure the passage of an act in accordance with the wishes of
Congress. In this move he had an earnest coadjutor in John
Tyler, his colleague from Charles City County. The bill was
discussed in the committee of the whole, of which Mr. Tyler
was chairman, and receiving the important support of Mr.
Henry, was reported by Mr. Tyler to the House on June 9th,
and after its passage, carried by him to the Senate with the
request for their concurrence.[71] Most of the states took similar

action, some before and some after the action of Virginia, but
as Rhode Island and Georgia failed to do so, the Virginia legislature
at its next session suspended the act until all the states
should give their consent.

After the meeting of the Assembly in October, 1782, a feeling
of general security prevailed, and the party in the Legislature
averse to Federal authority headed by Richard Henry
Lee, succeeded in securing the repeal of the impost at the end
of the session.[72] Harrison, who was now governor, wrote to
Washington that "they (the repealers) were so very quick
that the mischief had been done before I knew that the subject
was under consideration, or they would probably have missed
their aim." The only vote given against the repeal was by
Dr. Arthur Lee,[73] who, though opposed to the grant, thought its
abrogation at that time highly inexpedient.

The preamble of the repealing act based the repeal upon
the statement "that the exercise of any power other than the
legislature to levy duties or taxes upon citizens of this state is
injurious to its sovereignty and may prove destructive of the
rights and liberty of the people." This declaration was a clear
announcement that Virginia viewed with great suspicion any
plan of general revenue under the control of Congress.

Thus the matter remained until the spring of 1783. Money
had to be raised in some way, and Congress renewed its
request on May 18th, submitting a carefully digested plan of
revenue prepared by Madison with the assistance of Jefferson.
The grant was to be limited to twenty-five years, and the
officers, though amendable to removal by Congress, were to be
appointed by the states. The report was enforced by Madison
in an earnest written appeal to the states. A forecast[74] by Mr.
Jefferson of the views of the members placed in favor of the
measure the Speaker (Tyler), Mr. Henry Tazewell, Gen.
Thomas Nelson, Jr., William Nelson, George Nicholas and

Archibald Stuart, and against the measure, Richard Henry
Lee, Dr. Arthur Lee, Mann Page, John Taylor of Caroline,
Charles Mynn Thruston and Alexander White. He was unable
to state the attitude of Patrick Henry, the most important
of all. However, when the legislature met, practical unanimity
must have prevailed, for on May 14, 1783, the Assembly
adopted a resolution "That an impost of 5 per cent on certain
things imported ought to be granted in order to discharge certain
obligations made by Congress under proper regulations."
As both Richard Henry Lee and Patrick Henry were on the
committee to bring in the bill to that effect, they were both
probably convinced of its necessity.

However, the measure thus approved at the beginning of
the session was defeated a little later by the very means taken
by Congress to ensure its success. Congress had requested
Alexander Hamilton to reply to the objections urged by the
Rhode Island legislature to the impost. This answer had
been drawn by him with great ability, but unfortunately he
had inserted into it the suggestion that Congress, by having
the power to contract debts binding upon the states, had the
constructive power to provide the means for their payment regardless
of the states. This claim, it is believed, not noticed at
first, was resented by most of the legislatures as destructive
of the reserved rights of the states, and they were unwilling
to invest additional powers in Congress, disposed to extend its
powers so dangerously by construction. Among those thus
affected by Hamilton's paper was Patrick Henry. Mr. Jefferson
wrote to Mr. Madison, June 17: "Mr. Henry had declared
in favor of the impost but when the question came on he was
utterly silent." The vote against it was so large that no
division was called for.[75] The Legislature at the same time
resolved to raise the duty called for by Congress with its
own officers and to apply the proceeds to the state's quota of
the continental debt, any deficiency to be made up from the
tax on land and slaves. Mr. Henry was one of the committee

to bring in a bill for this purpose and carried the measure
against Richard Henry Lee.

In the meantime, General Washington, on June 8th, from
his headquarters at Newburg, wrote his celebrated letter to the
governors of the different states on disbanding the army. In
this, which was intended as his legacy to the people whose
liberties had been saved by his sword, he pointed out the
weakness of the Confederacy and urged that Congress be
vested with the power to collect its revenue, thus endorsing
specially the plan proposed. His wonderful influence stopped
the current which was setting in towards a separation on sectional
lines. Everybody loved Washington, and when the
Legislature met in November following, it granted the coveted
power to Congress "without a dissenting voice."[76]

To get all of the states to consent to this grant of power
was another matter, and the requisitions of Congress were so
greatly neglected that it could not meet its public obligations.
Virginia was among the most prompt to respond to furnish
her quota of expenses, though she claimed that Congress was
indebted to her at least £1,000,000, which was not far from the
case. Had the original measure of responsibility in 1776 been
adhered to in 1792, the result would have turned out very differently
from what it did, as has already been noticed.

In the meantime, the question of regulating commerce with
foreign nations came up in the legislature. There were at
this time three parties in that body, one headed by Patrick
Henry, another by Richard Henry Lee, and the third by John
Tyler. Mr. Henry and Mr. Tyler were intimate friends, and
previous to the preliminary treaty of peace practically concurred
in all questions, supporting the national authority in
opposition to Richard Henry Lee and his brother, Dr. Arthur
Lee, who feared for States rights.

At the session in the spring of 1783, following the news of
the signing of the provisional articles of peace, Henry and
Lee measured swords in the contest for the speakership when

John Tyler was brought forward by Henry in opposition to
the forces of the latter and was elected by a vote of 61 to 20.
But this was followed by the immediate separation between the
two friends, Henry and Tyler, on nearly all the important
questions that engaged the attention of the Assembly. Mr.
Henry outshone even the Hamilton party in Congress in anxiety
to treat what was merely a provisional treaty as a permanent
one. He made common cause with Richard Henry Lee,
and on May 13th, the next day after the speaker's election,
introduced a bill to repeal the several acts of Assembly which
prohibited the importation of British goods and a bill almost
simultaneously to invite the Tories back to the state. This
action was opposed by Speaker Tyler, who in regard to the
first measure argued that to repeal the restraints on British
trade before the treaty was definitive would be to expel the
trade of every other nation, and drive away all competition
with the British. In this he was correct, as was afterward
proved.

In regard to the latter bill inviting the Tories back, Tyler's
reasonings savored rather of prejudice and were not so conclusive,
though the danger of introducing spies certainly
argued against hasty action. But Henry's eloquence overcame
all opposition, and of these bills the first was passed at
this session, and the second after much discussion was postponed
to the October session, then taken up and passed. A
similar policy of relaxation was pursued by Congress. They
disbanded the army, set free the British prisoners, and adopted
resolutions urging the states to fulfill the provisions of the
Provisional Treaty, especially in relation to the payment of the
British debts.

So the British government, fearing nothing from the
Americans, would consent to no alterations in the final form
of the treaty of peace, which when signed at Paris, on September
3, 1783, repeated the very terms of the Provisional Treaty
of the year before. In Philadelphia, it was freely charged
that "a British party" had come into existence, at the head of

which was Dr. Arthur Lee, John Adams and Henry Laurens.[77]

Among the alterations which had been hoped for was a
grant of free trade with the West India Islands and other
British colonies, but instead of free trade a royal proclamation
was issued July 2, 1783, interdicting the West India trade
to citizens and vessels of the United States. Arrogant in their
confidence, the English after the surrender of the British prisoners,
entirely omitted fulfilling the obligation resting upon
them by both the Provisional and Definitive Treaties, and they
would neither surrender the slaves which their armies had
carried off nor give up the posts on the frontiers of the United
States.

The Virginians were not pleased at the result, and when
the Assembly met in a joint session during the fall of 1783,
while passing the bill admitting the return of the refugees and
authorizing an impost act, in accordance with the recommendation
of Congress of April 8, 1783, resolved that Congress
should have the power, in case of all the other states consenting,
to prohibit the importation of products of the British
West India Islands into the United States in British vessels,
or "to adopt any other measure which might tend to counteract
the designs of Great Britain with regard to American
commerce."

"This," says Bancroft, "was the first in the series of
measures through which Virginia marshalled the United
States on the way to a better union."[78] "The British," wrote
Jefferson, "are doing us another good turn. They attempt,
without disguise, to possess themselves of the carriage of our
produce. This has raised a general indignation in America.
The states say, however, that their constitutions have provided
no means of counteracting it. They are therefore
beginning to vest Congress with the absolute power of regulating
our commerce."[79]

At this same session, the Virginia Legislature completed
its surrender of the Northwest Territory to the United States
by accepting the conditions which Congress had deemed necessary
before taking that territory over and receiving an actual
deed of conveyance.

When the General Assembly convened in May, 1784, John
Tyler was re-elected to the speaker's chair without opposition.
Mr. Henry arrived on the 14th of May and was in favor of
strenuously reinvigorating the Federal government. To enforce
the collection of unpaid balances due the Federal government,
he was on general principles in favour of a distress on
the property of delinquent states. These views he imparted
to James Madison, who, after a distinguished service in Congress,
now appeared in the Legislature, and a resolution to
that effect was offered and adopted.

The question of trade was met by a resolution which proposed
to vest Congress with power to prohibit, for any term
not exceeding fifteen years, the importation or exportation of
goods to or from Virginia, in vessels belonging to subjects of
any power with whom we had no commercial treaty; the
proviso being, that to all acts passed by Congress in pursuance
of the authority granted, the assent of nine states should be
necessary. This resolution[80] appears to have received the
unanimous concurrence of the House, and was in exact pursuance
and performance of a recommendation made by Congress
on April 30, 1784.

On the question of raising taxes, however, it appears that
Henry, notwithstanding his attitude as to employment of
arms to enforce the requisitions of Congress, shrank from the
adoption of measures which alone would have given any weight
to the recommendations of Virginia. Influenced by the distresses
of the state, Mr. Henry was in favor of postponing the
tax levies for this year, and though he was opposed by all the
influential members of the House, including Richard Henry
Lee, the Speaker, James Madison, John Page, Archibald

Stuart, and Henry Tazewell, who had secured a majority of
thirty against the bill in the committee of the whole, by sheer
force of his eloquence he reversed the vote on the floor of the
House after the bill was reported. This has been declared one
of Mr. Henry's greatest victories.

On another subject, almost as important as the revenue
and trade of the country, the men of talents in the House
divided more evenly. Messrs. Richard Henry Lee, James
Madison, Henry Tazewell, Wilson Cary Nicholas and Archibald
Stuart were in favor of the full performance of the treaty,
and that without inquiring whether or not a breach had
occurred first on the part of Great Britain. In this view
Washington and Jefferson, outside of the Assembly, were
understood as concurring. On the other hand Patrick Henry,
John Tyler, Spencer Roane, Carter Henry Harrison, Gen.
Thomas Matthews, French Strother and Edmund Ruffin, Jr.,
at the head of a majority in the Legislature, were against
carrying out its provisions until Great Britain had performed
her part of the bargain. Congress made treaties, but upon the
states devolved their execution, and it was expecting perhaps
too much to suppose that the latter would merely ratify the act
of Congress and have no will of their own. When the Legislature
met in May, 1784, the determination of the British to hold
the posts on the lakes was not known, but several citizens of
the state had visited New York to secure their captured property
and had been denied.

On a motion, therefore, in the Assembly June 7, 1784, to
repeal all the laws that prevented due compliance with the
stipulations of the treaty, the negative prevailed by a vote of
57 to 37.[81]

The treaty of peace had never been a favorite in Virginia.
It was considered that the people had been in a measure betrayed
by the negotiators, Benjamin Franklin, John Adams
and John Jay—especially, the latter two, who hated Frenchmen.
Contrary to the representations of the Virginia Assembly

and Congress too, the United States negotiators had
secretly signed a treaty with Great Britain apart from
France, and justified their action on the rather flimsy ground
that France was making secret overtures to Great Britain in
regard to the fisheries and the western boundary. It might be
answered that even supposing France was guilty of an immoral
act, that did not justify an immoral act on the part of
the Americans.[82] Such conduct was especially reprobated in
Virginia, which had seen the evidences of our ally's power on
our own soil in a manner too convincing to be easily forgotten.

The House accordingly appointed a committee to examine
into the truth of the complaints against the British, and on
June 14, 1784, the committee reported that the charge of a
breach of the treaty by them was correct, that slaves and other
property of citizens of the United States had been detained
and sent away. This report was considered in the Committee
of the Whole and resolutions were finally adopted June 23rd
by the Legislature instructing the Virginia delegates to inform
Congress "that the General Assembly had no inclination to
interfere with the power of making treaties with foreign nations,
which the Confederation hath wisely vested in Congress."
but it was conceived, "that a just regard to the
national honor and interest of the citizens of this Commonwealth,
obliges the Assembly to withhold their co-operation in
the complete fulfillment of the said treaty, until the success of
the aforesaid remonstrance is known, or Congress shall signify
their sentiments touching the premises." One of the provisions
of the treaty provided that "creditors on either side
shall meet with no lawful impediment to the recovery of the
full value, in sterling money, of all bona fide debts heretofore
contracted." It was resolved by the Legislature at this time
"that so soon as reparation is made for the aforesaid infraction,
or Congress shall adjudge it indispensably necessary,"
such acts of the Legislature passed during the late war as
prohibit the recovery of British debts, "ought to be repealed

and payment thereof made in such time and manner as is consistent
with the exhausted state of the Commonwealth."[83]

This session of the Legislature was memorable for its
affectionate address to George Washington, which thanked him
for his unremitted zeal and services in the cause of liberty, and
congratulated him on his return to his native state and to the
exalted pleasures of domestic life. A committee appointed
to consider what further measures might be necessary for perpetuating
the gratitude and veneration of his country, reported
in favor of a statue to be erected of the finest marble and best
workmanship. The report was approved and Mr. Madison
prepared the inscription which was to appear upon the
pedestal:

"The General Assembly of Virginia, having caused this
statue to be erected as a monument of affection and gratitude
to George Washington, who, uniting to the endowments of the
hero, the virtues of the patriot and exerting both in establishing
the liberties of his country, has rendered his name dear to
his fellow-citizens and given to the world an immortal example
of true glory."

This statue of Washington, executed by the celebrated
French artist Houdon, who was selected by Mr. Jefferson, the
United States Minister in Paris, stands as an inspiration today,
with the inscription proposed, in the lobby of the House
of Delegates.

The same success did not attend the bill granting the Secretary's
Land, in Northampton County (laid out in 1619) to
Thomas Paine, the famous author of "Common Sense," which
was offered by Mr. Henry and highly approved by Washington.
News got about that Paine was the author of a pamphlet,
"Public Good," denying the right of Virginia to the Western
country, and the bill was laid aside.

The next session began October 18, 1784, but it was not till
November 1st, that a quorum attended. On the 15th of November,

shortly after the commencement of business, General
Washington visited Richmond to press his plans of internal
improvement for the state. An act was passed to encourage
the navigation of the Potomac River from tidewater to the
highest place practicable on the north branch, and subscription
books for the purpose were opened in Richmond, Alexandria
and Winchester. Similarly the James River Company
was incorporated for clearing and extending the navigation
of James River from tidewater up to the highest parts practicable
on the main branch thereof, and books were opened for
subscription in Richmond, Norfolk, Botetourt Court House,
Lewisburg and Charles Irving's Store in Albemarle. This
legislation, like most of the important work of this Assembly,
was sponsored by the able representative from Orange, James
Madison, and through his agency was the broad program laid
of that whole system of internal improvements, which became
afterwards an object of policy in the state, though not always
consistently carried out.

On November 17, 1784, Mr. Henry was elected governor of
the commonwealth, "without competition or opposition," to
succeed Benjamin Harrison, whose three years expired at this
time. This unanimity was attributed to his vote on the refugees,
which had conciliated the Lee faction. Having already
served three years, he was by the constitution rendered incapable
of re-election till an interval of three years had
passed. In these three years of disability, Mr. Jefferson, General
Nelson and Benjamin Harrison had all three been elected.

LaFayette arrived on the 18th of the month and Speaker
Tyler appointed two committees, at the head of both of which
was Patrick Henry, to assure the two distinguished visitors,
Washington and LaFayette, of the veneration felt for their
characters by the people of the Commonwealth. As further evidence
of the honor in which they were held, an act was passed
giving to Washington fifty shares in the Potomac Company
and one hundred shares in the James River Company, and on
December 1, 1784, a resolution was unanimously agreed to,

authorizing the Governor and Council to carry out the resolution
adopted December 1, 1782, for making a marble bust of the
Marquis LaFayette to be executed in Paris and presented in
the name of the Commonwealth to that great city, as well as
to have another made bearing a similar inscription and to be
erected near the statue of General Washington in such public
place at the seat of government in Virginia as the Legislature
might hereafter decide. Both Washington and LaFayette
expressed themselves as greatly pleased with these testimonials
of honor, but Washington declined to take any advantage
of the gift made to him, and informed the governor,
Patrick Henry, that he would hold the shares only in trust for
some public object, to be afterwards designated. Later the
shares in the James River Company were applied by him to
the "better endowment of Liberty Hall Academy, at Lexington,
in Rockbridge County,"—an institution which afterwards
assumed the name of Washington College, and later of Washington
and Lee University; and the Potomac shares he set
apart by his will, as well as by a previous assignment, in aid
of a national university to be established in the District of
Columbia.

Among the other important bills of this session which became
laws were one giving James Rumsey for ten years exclusive
right of constructing and navigating boats against the
current of rapid rivers in the state, the beginning of steam
navigation in the United States; another already mentioned
for incorporating the Protestant Episcopal Church of Virginia;
and another, proposed by Mr. Madison, to prevent the
offenses against the law of nations known as filibustering—this
act being the first example of American legislation directed to
this end. "This measure," says Madison, "was warmly
patronized by Mr. Henry and most of the forensic speakers,
and no less warmly opposed by the Speaker and some others.
The opponents contended that such surrenders were unknown
to the law of nations and were contrary to our Declaration of
Rights." The bill passed by a majority of one—44 to 43—and

by its fourth section, Virginia led the way to making the principle
an accepted one in the international law of the world.
By this section, the Governor was formally required to transmit
copies of the act to the Governors of the colonies of such
nations as might be the subject of injury from disorderly
citizens of Virginia.

The question of the British debts came up for action again
at this session. No answer had been received from Congress
to the resolution passed at the previous session, but a marked
change in the mood of the country had ensued from the intervening
exchange of the ratifications of the treaty of peace.
General Washington's presence in Richmond had also a prevailing
influence. Mr. Henry was out of the way and Mr.
Tyler, "the other champion at the last session against the
treaty was half a proselyte." Monroe had written that the
British would hold the Western posts until the treaty was
complied with by the Americans, and Speaker Tyler replied
that, though smarting under the injustice, he would follow the
wishes of Congress.[84]

Consequently both houses of the Legislature adopted
resolutions that the Fourth Article of the Definitive Treaty
of Peace regarding debts due British subjects should be carried
out, and to this end a bill was introduced by Madison for
paying the debts in seven instalments without interest during
the war. Unfortunately in the discussion and vote on the bill
there was a disagreement between the Senate and the House,
necessitating a conference of the two houses.

In the conference, the House produced a proposition for
settlement, to which the Senate assented with some amendments,
considered in the House January 5, 1785. All the
amendments but one were accepted at last and the action of the
House was signified to the Senate by Mr. Henry Tazewell.

But the delays attending the measure had spun it out to the
day preceding the one fixed for a final adjournment. Several
of the members went over to Manchester in the evening with

an intention of returning the next morning, but the severity
of the night rendered their passage back impossible. The
members present voted to delay the adjournment, but the next
day presented the same obstructions in the river. Then the
House adjourned till the last day of March, 1785, and the bill
failed to become a law.

To conclude the history of this once famous subject, the
Assembly of Virginia, in December, 1787, passed an act repealing
all laws placing impediments in the way of British creditors,
but suspending its operation until England should surrender
the posts on the frontiers and return the slaves they had
taken from the Commonwealth or reimburse it to the amount
of their value. In this fashion the matter rested until 1788,
when the Federal Courts were open to the British creditors
and decided the suits in their favor. And then in 1794 Jay's
Treaty agreed to indemnify the British creditors for losses
incurred since the peace through legal impediments. As an
offset the British in 1796, after holding the forts on the frontier
for thirteen years, at last gave them up, and in 1802 the United
States appropriated $2,664,000 in payment of British creditors
for losses incurred.

The Virginians have been censured by Northern writers for
this unwillingness to pay their British creditors, but they
argued that these British debts were nothing like equal in
amount to the value of the slaves which the British stole during
the Revolution and never paid for, despite the terms of the
Treaty of Peace, which promised their return. In truth, there
has been much said by historical writers of the sanctity of
private debts, and the wonder is that not more has been said
of the sanctity of treaty obligations. One certainly is as important
as the other.

In the meantime, the question of the impost and the regulation
of trade occupied much of the attention of the people
of the United States. Connecticut, incensed at Rhode Island
for restricting her trade, passed an act making the consent of
only twelve states necessary to the operation of the impost

within her limits. Not long after, Mr. Tyler moved in the
Committee of the Whole House of the Virginia House of Delegates
a resolution of the same purport as that which received
the sanction of Connecticut. The proposition was supported
by Ex-Governor Harrison and opposed by Madison, but it received
the approval of the Committee of the Whole, and was
reported favorably December 13, 1784. But when a bill was
brought in in pursuance to the resolution and put to the vote,
it failed to receive the approval of the House.

The question of trade was considered in Congress, and
in March, 1785, Monroe made a report recommending "that
the Ninth Article of the Confederation should be amended
so as to confer upon Congress the exclusive right and power of
regulating the trade of the states, the proceeds of the duties
laid to accrue to the use of the state in which the same should
be payable and provided that every such act of Congress
should have the assent of nine states." Later on, as the three
more Southern states were unwilling to trust the Navigation
Acts to the voice of nine, or even of ten states, Monroe substituted
eleven states for his first proposal of nine.

The question was considered by the House of Delegates of
Virginia in the fall of 1785. The session opened with a hot
contest between John Tyler and Benjamin Harrison for the
speakership. The latter, now out of his governorship, wanted
his old place as speaker, then occupied by Mr. Tyler, and at
the election for the May House of Delegates the contest in
Charles City was felt as one for the speaker's chair itself.
Harrison, when governor had incurred much unpopularity in
Charles City and the neighboring counties because of his orders
to the militia of the counties to level the fortifications at
Yorktown. He, therefore, lost his election in his native county,
but having another estate in Surry he hastened thither and the
election occurring some three weeks after that in Charles City,
he managed by being elected from the County of Surry to carry
the contest for the Speakership to the floor of the House itself.
There he defeated Mr. Tyler by a majority of six, but his victory

shortly afterwards was nearly frustrated by an impeachment
of his election in the County of Surry in which the charge
of non-residence was brought against him in the House, decided
against him in the Committee of Privileges and Elections
by the casting vote of the chairman, and reversed in the House
by a very small majority. Harrison thus prevailed, but the
shock of his conflict with Mr. Tyler followed him for several
years after. In the election of the following year he was defeated
in Surry and also in Charles City, where he made a
second experiment, and it was not until the second year that he
succeeded in so far regaining the popular favor as to be reinstated
a representative for his native county.

After this matter of the speakership was settled, petitions
poured in from Norfolk, Portsmouth, Suffolk and Alexandria
denouncing British restrictions on trade and praying relief.
On the simple question of vesting Congress with the grant of
power the Committee of the Whole was practically unanimous
and a special committee, consisting of Messrs. Prentiss, Tyler,
Madison, Henry, Lee, Meriwether Smith, Braxton, Ronald,
Innis and Bullitt, reported on November 14, 1785, a measure
giving Congress power to regulate trade on consent of two-thirds
of the states, for a period which was finally determined
to be thirteen years. In this form the bill passed the House of
Delegates, November 30, 1785, but as fashioned it did not give
satisfaction, and the next day it was reconsidered and repealed.[85]

In the debates which ensued in the Committee of the Whole,
Colonel Harrison, the new speaker, expressed himself as opposed
to any grant to Congress of the power to regulate trade,
and in a letter to Washington expressed his decided conviction
that such a power would in time make the states south of the
Potomac little more than appendages of those north of it.[86]
Charles Mynn Thruston and Francis Corbin agreed with him
in opinion, the former considering it problematic whether it

would not be better to encourage the British than the eastern
marine. Carter Braxton and Meriwether Smith were of the
same views, though absent at the crisis of the question. Madison,
in reporting the debate, "thought them bitter and illiberal
against Congress and the northern states beyond example,"
but it is probable that after all they exhibited only a better
knowledge of the constitutional situation, as the "two nation
idea" was receiving an emphatic illustration at this very time.

The rescission of the original commercial propositions occurred
on December 1, and the same day they were laid on the
table and an alternative proposition, which had been kept in
reserve by the friends of the grant of power to Congress, was
introduced by John Tyler.

The history of this proposition takes us back some distance.
Commissioners had been appointed by the state of Virginia,
on Madison's motion, June 28, 1784, to meet and confer with
commissioners from the state of Maryland for the purpose of
agreeing upon measures to regulate the trade of the two states
in Potomac River and Chesapeake Bay. The charter of 1632
to Lord Baltimore defined the boundary between Maryland and
Virginia as the southern shore of the Potomac. This boundary
the constitution of Virginia confirmed, but reserved the right
to Virginia of the free navigation of the river conjointly with
Maryland. Almost simultaneously with the appointment of
these commissioners, an act was passed incorporating the Potomac
Company for improving the river's navigation and
opening communication with the western country. Washington
had cherished this project ever since 1754, and his interest
in the work on the river was very strong at all times. The commissioners
met at Alexandria in the latter part of March, 1785,
and were joined by General Washington, who showed George
Mason, one of the commissioners, a copy of a resolution of the
Virginia Assembly, not known to him before, giving the Virginia
commissioners, or any two of them, authority to unite
with the Maryland commissioners in inviting the state of Pennsylvania
to cooperate with them in providing convenient regulations

for the use of the Potomac River in connection with the
Ohio.[87]

On Washington's invitation the commission moved from
Alexandria to Mount Vernon, and here on March 28, 1785, they
settled the terms of a compact by which freedom of navigation
was granted by Virginia to Maryland over Virginia waters
and by Maryland to Virginia over Maryland waters. Light
houses, buoys, etc., on the Potomac and the bay were to be
maintained at the expense of both states, Virginia paying five
parts and Maryland three parts. A supplemental report to
be sent to the legislature of either state recommended the annual
appointment of commissioners who amicably meeting
should determine according to the exigencies of commerce on
common rates for both Maryland and Virginia.[88]

The compact and supplemental report came before the
Maryland legislature November 22, and that state, while ratifying
both, added a section inviting Pennsylvania and Delaware
into the same system of commercial policy. Pennsylvania
and Delaware accepted the invitation, and on February 20,
1786, Maryland named her commissioners to meet the commissioners
from the states of Pennsylvania and Delaware. But
this action came too late, for Virginia had already passed resolutions
of invitation to all the states.

Now it was not a part of the program of Madison and
Tyler that a partial uniformity of trade regulation should
be effected by agreement between groups of states, but they
wished the uniformity to prevail throughout the whole country
and to be under control of the national congress, so when
they perceived the hopelessness of expecting the Virginia Legislature
to concede to Congress more than a limited grant of
power to regulate trade they took up the proposition passed
by Maryland November 22, and formed it into a request to
all the states to appoint commissioners to meet and take into
consideration the trade of the United States. "Such a commission

it was hoped would recommend to the different state
legislatures to do what the Virginia legislature persisted in
refusing to do."

This was the purport of the resolution introduced by Mr.
Tyler on the 1st of December. On the 5th the resolutions of
the Maryland legislature was laid before the Assembly by the
governor, but leaving them and Mr. Tyler's motion suspended,
the Legislature went off into a long wrangle regarding British
restrictions on local trade. On the 27th a bill to approve and
ratify the compact agreed to at Mount Vernon was read the
second time and ordered to be committed to a committee, of
which Messrs. Madison, Tyler, Zane, Corbin, Braxton and
Sims were the members.

The close of the session approached and on January 16,
1786, the last division on that day showed only 80 members in
attendance, whereas on November 30th, 107 members had given
their names among the ayes and noes. The last day of the
session dawned on January 21, 1786, and nothing had been
done as to the commerce matter. Suddenly Mr. Tyler called
up his alternative bill for the political commercial convention,
and, glad of the opportunity, the House passed it by a large
majority, meeting, however, with the irreconcilable opposition
of Francis Corbin and Meriwether Smith. The same day it
passed the Senate, and became a law. The commissioners appointed
were the Attorney General of the State, Edmund Randolph,
James Madison, Dr. Walter Jones, St. George Tucker,
Meriwether Smith, George Mason, William Ronald and David
Ross. Mr. Tyler who moved the resolution, was not named a
commissioner, doubtless because of his election on December
20th to the Court of Admiralty in the room of Benjamin Waller,
resigned. A quorum of the Virginia deputies elected to
the proposed convention met in Richmond after adjournment
of the legislature, and proposed Annapolis as the place for
the meeting and September 14th as the date.

During this session the legislature transacted much
other business, some bad, some good. The state had gained

some reputation by paying its quota the year before, but by
postponing the collection of the taxes it made it doubtful
whether there would be a penny in the treasury to make payment
this year. On the other hand the legislature conferred
honor on itself by suppressing the "itch for paper money," as
Madison characterized it, and overwhelmingly defeated a bill
to repeal the act permitting the manumission of slaves, passed
in 1782.

Other important bills became laws—one giving permission
to Kentucky to call a convention for making it a state, another
for naturalizing the Marquis de LaFayette, another for securing
copyrights to authors of literary works, and another for
suppressing any attempt to erect and establish within the confines
of Virginia any government independent of the same.
This last bill, which is still preserved in the handwriting of
John Tyler, was directed against the efforts of Colonel Arthur
Campbell and others in Southwest Virginia to form a new
state within the limits and without the consent of Virginia.
Had the Assembly performed no other act than that of passing
the bill for religious freedom, extinguishing forever the ambitious
hope of making laws for the human mind, this session
would have stood illustrious in the annals of Virginia.

Of the delegates appointed to attend the convention at Annapolis,
Sept. 14, 1786, called by Virginia, Madison, Edmund
Randolph and Mr. Tucker of the commissioners were present.
By September 11th, Delaware, New Jersey, New York and
Pennsylvania were also represented. Maryland, North Carolina,
South Carolina, Connecticut and Georgia sent no delegates.
New Hampshire, Rhode Island and Massachusetts selected
delegates, but they did not deem it worth while to attend.
John Dickenson, of New Jersey, was elected president, but the
attendance was so slim that, under the leadership of Hamilton,
the convention decided to do nothing but merely to issue an address
calling for another delegation. In this address the extreme
expressions of Hamilton were modified by Randolph,
who was then at the height of his power in Virginia. It represented

that it was not enough to correct the constitution in its
commercial features, but that the revision should be extended
to the whole Federal system, and for this purpose the address
recommended another convention of delegates from the states
to meet in convention in the City of Philadelphia, on May 2,
1787.[89]

The convention dispersed and the initiative was once more
taken by Virginia. The Legislature met in Richmond on Monday,
October 16, 1786, but a quorum for business was not obtained
till a week later. On Monday, October 23, Joseph
Prentiss was elected Speaker, over Theodoric Bland. Mr.
Henry, not choosing to serve the full three years as governor,
let it be known that he would retire at the end of his second
year, and the Assembly on November 7, 1786, elected Edmund
Randolph, the attorney general, to take the office on November
30th following.

The most important measure adopted at this session was
an act pursuant to the recommendation of the convention at
Annapolis, which, after reciting the necessity of laying aside
every inferior consideration and concurring in such further
concessions and provisions as might be necessary to secure
the great objects for which the Union had been originally instituted,
authorized the appointment of seven commissioners by
a joint ballot of both houses, to assemble in convention at
Philadelphia, as recommended, and join with the delegates
from the other states in devising and discussing all such alterations
and further provisions as might be necessary to render
the Federal constitution adequate to the exigencies of
the Union. Under this provision, on December 4th, the following
delegates were selected: George Washington, Patrick
Henry, Edmund Randolph, John Blair, James Madison,
George Mason and George Wythe. Washington received the
unanimous vote. Thomas Nelson, Jr., Isaac Zane, Meriwether
Smith, Benjamin Harrison and John Page were put in nomination
and defeated. Mr. Henry declined the election for

various reasons, some of them of a private nature, but doubtless
chiefly to hold himself more free in his action on the work
at Philadelphia when submitted to the people of Virginia.
The vacancy decreed by Henry's declining to act was first
offered to General Nelson, and next to Richard Henry Lee,
and upon both of them declining, it was filled by Dr. James
McClurg, who till his removal to Richmond about this time
held the chair of medicine at William and Mary College.

The convention assembled at Philadelphia at the time specified
and the Virginians were easily the most important and
powerful men present. As a starting point for the debates our
delegates considered a plan of government, and they spent
three weeks while waiting for a quorum of delegates to reach
Philadelphia, in drawing one up. It contained the features
of Madison's ideas of government as outlined in his letters
to Randolph and Washington, but it was Randolph's hand that
actually drew up the resolutions, and as governor of the state
and a fluent and persuasive speaker, the distinction of presenting
them to the convention fell to him. This he did on May
29, 1787, when eight states had assembled. The work of the
convention was concluded on September 17, 1787. After the convention
got well on in its work the fact became generally recognized
that the first man in all the Assembly was James Madison.
William Pierce, a delegate from Georgia, described
him in the notes he took in the convention as "blending the
profound politician with the scholar" and as "evidently taking
the lead in the convention on every great question." "Mr.
Madison was about thirty-seven years of age, a gentleman of
great modesty—with a remarkably sweet temper—he is easy
and unreserved among his acquaintances and has a most
agreeable style of conversation."[90]

As representing ideals of a union of homogeneous elements,
Madison attained nearest a perfect vision. He looked beyond
state borders and saw a great future for the new American
Nation, but he never did understand the irreconcilable character

of the work which he had undertaken, and which only
extraordinary circumstances coming in aid of a sectional power
permitted to be realized. More conscious of the real conditions
were Madison's distinguished colleagues, Mason and Randolph,
who were so strongly opposed to some of the articles
of the constitution that they both refused to sign it. These articles
undoubtedly put authority in the hands of a sectional
majority and emphasized those distinctions between the North
and the South which could not be removed except by separation
or the conquest of one section by the other.

When submitted to the states the action of the convention
at Philadelphia gave rise to great agitation. The convention
that assembled in Richmond on June 2, 1788, to take the proposed
constitution into consideration easily surpassed in character
and talents any other of the ratifying bodies in any other
state whatsoever. Taken individually or collectively, its membership
bore favorable comparison with the picked delegates
of the Federal convention in Philadelphia the year before.
Randolph, Madison, Pendleton, Wythe, Nicholas, Corbin,
Henry Lee, Marshall and Innis represented the advocates
of the constitution, and Henry, Mason, Grayson, Harrison,
Tyler, Meriwether Smith and Monroe threw their immense
weight against it. Chancellor Pendleton was chosen president
of the Convention and Judge Tyler vice-president, and Chancellor
Wythe acted generally as chairman of the Committee of
the Whole. In this distribution of the membership in favor of
ratification and against it, there had been in a short interval
many changes. Edmund Randolph, in spite of his refusal to
sign the constitution, was in the State convention one of its
champions, and so was Francis Corbin, who in the State legislature
had been violent in opposing any grant of trade to Congress.

Henry, Mason, Grayson, Harrison, Tyler and Monroe, who
had been strong in favor of strengthening the Federal government,
were now opposed to the constitution without previous
amendments of a fundamental character. The cause of

this opposition lay in an incident which revealed in a most
striking manner the fundamental sectional differences of which
we have spoken, arousing in the minds of these gentlemen
a strong apprehension that in advocating a strong government
they would be only consenting to subjecting the South
to the tyranny of a Northern majority, who would use the
Union as an instrument merely for its own aggrandizement.

The history of this affair was as follows: During the
American Revolution, Spain had been anxious to secure both
sides of the Mississippi River so as to control its navigation.
On declaring war against Great Britain she had seized some
of the British posts, which enabled her to claim that she
owned both sides of the mouth of that great stream. The United
States opposed this claim and Madison wrote a great state
paper in October, 1780, in which he made clear that Spain's
possession of both banks of the mouth was neither an actual
nor an equitable bar to prevent the use of the river. Stress
was laid upon the authority of Vattell to show that an innocent
passage was due to all nations at peace, even for troops,
through a friendly state, and this applied equally to a water
passage. Later the South was so overrun by British military
successes that the armed neutrality of Europe under Catherine
II of Russia began to make itself feared, and serious beliefs
were entertained that the allied neutrals would force a
peace between the United States and Great Britain, upon the
basis of which each belligerent would keep such territory as
each actually held, the uti possidetis. This produced a change
in the views of the Virginia delegation, and the Assembly sent
them instructions passed January 2, 1781, to yield to Spain
"every further or other demand of the said navigation" which
was "necessary in the interest of a treaty" designed to aid in
securing the independence of the United States. Spain did
not accept the overture made by Congress pursuant to the
views of Virginia. No alliance was formed and the Mississippi
remained an open question.[91]

The treaty of peace with Great Britain in 1783 rendered the
Treaty of Alliance with Spain unnecessary, and Virginia returned
to her old position in favor of the free navigation of the
Mississippi, from which she had departed for profoundly patriotic
reasons. So when Don Diego Gardoqui presented his
credentials as minister from Spain July 2, 1785, the Virginia
delegation was no longer willing that a treaty should be negotiated
with any surrender of such vital nature. On August
25, 1785, Congress instructed Jay to adhere to the position
originally taken by the United States and on this point as set
forth in the instructions written by Madison in October, 1780,
but John Jay, the Secretary of Foreign Affairs, interested in
securing for the Eastern States an advantage to the fisheries
conducted negotiations with the Spanish minister upon a basis
of closing the river for tyenty-five or thirty years, and on
August 3, 1786, Jay laid his plan before Congress. He asked
Congress to change his instructions and permit Spain to use
the exclusive right to navigate the Mississippi for the time
mentioned.

This Congress considered in secret session, and on August
25, 1786, by a vote of seven Northern states against five Southern
states they changed Jay's instructions and revoked at the
same time the order to conclude no treaty until it was communicated
to Congress. Jay then proceeded to frame an article
in the proposed treaty in accordance with the instructions
of seven Northern states. There is strong evidence that the
Northern states had resolved amongst themselves to form a
separate confederacy unless they could force the project of
surrendering the Mississippi, the object being not only to
promote the fisheries but to stop the growth of the Southern
states towards the west. It is said that in all this intrigue
the plan of separation was more talked of in Massachusetts,
and is supposed to have originated there.

Monroe, who communicated the information to Governor
Henry in a letter[92] dated August 12, 1786, made a just comment

upon John Jay in the following words: "This is one of the
most extraordinary transactions I have ever known, a minister
negotiating expressly for the purpose of defeating the
object of his instructions and by a long train of intrigue seducing
the representatives of the states to concur in it." But
this kind of diplomacy was not new to Jay, as shown by the
scandalous way he acted in making the Treaty of Peace,
contrary to his instructions from Congress and the faith we
owed to France.

To the South the whole affair was a tremendous awakening.
That the Northern states for whom Virginia had done so
much should from a purely selfish purpose attempt to give
away the navigation of the Mississippi so valuable to her and
to the South, at the risk of losing the all important Western
country and dividing the Union, was a shock to her most patriotic
sensibilities. Even at this day, when the introduction
of railroads has brought the east and west together in a manner
never anticipated, the great river is still an invaluable
source of commerce for the states along its banks. Madison
reported to Washington, December 7, 1786, that "many of
our most Federal leading men are extremely silent after what
has already passed" and that "Mr. Henry, who has been
hitherto the champion of the Federal cause has become a cold
advocate and in the event of an actual sacrifice of the Mississippi
by Congress will unquestionably go over to the opposite
side."

Indeed the wonder is that the State convention met at all,
instead of meeting and dividing up merely upon the extent
of the powers to be vested in the Federal agent. It put the
majority of the people of Virginia undoubtedly against the
constitution, and it was only owing to the undue proportion
of delegates which the State constitution gave to the smaller
counties in favor of ratification over the populous counties that
were opposed to it that the constitution was approved. In the
midland and western counties where the radical spirit of the
Revolution had most prevailed, the strength of the opposition

was great, but in the small counties, where the conservative
influence had prevailed, the vote was generally in favor of the
constitution. In the State convention itself, where Madison
led the Federalists, Theodoric Bland reported the two parties
after a twelve days session almost equally divided, each side
boasting by turns of a majority. It was probably only through
the tact of Madison in explaining away the danger in reference
to the Mississippi that the ratification by 89 to 79 was
carried. He made the important disclosure to the Convention
of the actual state of affairs in Congress existing at the moment.
Seven states were not now disposed to surrender the
river. New Jersey had instructed her delegates not to surrender
it and Pennsylvania was of the same view. A few
days later he brought the matter to a close by saying: "Were
I at liberty, I would develop some circumstances that would
convince this house that this project will never be
revived in Congress and that therefore no danger is to be
apprehended."[93]

In asking for a modification of the Constitution, Henry
"made the fight of his life," and future events justified his
prognostications that the increase of power, though it might
build up a strong nation, would redound to the benefit of the
Northern majority. He first made a call for a convention to
adopt amendments. Defeated in that he proposed subsequent
amendments, in which Mr. Madison and the opposition acquiesced.
Moreover, the adoption of the constitution itself was
guarded by a preamble which it was argued operated as a
condition precedent. This ratification presented a saving to
the people of Virginia in favor of a rescission of the Constitution
"whenever the powers granted unto it should be perverted
to their injury or oppression." The guardians of states
rights were assured by Wilson Cary Nicholas that "no danger
could ever arise, for the constitution cannot be binding on
Virginia but with these conditions. They can exercise no
power that is not expressly granted them."

This was mere talk. To acquire more slaves and promote
a present advantage, the Southern states in the Convention
at Philadelphia had sacrificed one of the best guarantees of
power which they had. We have noted the terms of Monroe's
report in 1785, which required the consent of eleven states to
the passage of a commercial law. In the convention at Philadelphia
the committee of detail reported in favor of consent
of nine states. The Eastern states wanted a simple majority
and the Southern states of Georgia and South Carolina bargained
away their best guarantee in return for the votes of
New England in favor of the slave trade for twenty years.

The indignation of the Virginia representatives was intense
at this shameless combination. "Twenty years," cried
Madison, "will do all the mischief that can be apprehended
from the liberty to import slaves." Colonel George Mason
lamented that "some of our Eastern brethren have from a lust
of gain engaged in this nefarious traffic." And he said furthermore:
"The effect of a provision to pass commercial
laws by a simple majority would be to deliver the South bound
hand and foot to the Eastern states and enable them to exclaim
in the words of Cromwell on a certain occasion: `The Lord
hath delivered them into our hands.' " He went away, as we
have seen, without signing the constitution.

In the Virginia convention which followed, Madison was
compelled to defend the sections of the constitution in which
this bargain was expressed and showed to poor advantage.
Tyler expressed the desires of all the opponents of the constitution
in the convention when he said that "his earnest desire
was that it should be handed down to posterity that he opposed
this wicked clause." This action of the Federal convention
drew the line of demarcation between the sections more deeply
than ever. According to Dr. Dabney,[94] more than 125,000 negroes
were introduced, chiefly through northern vessels, into
the country between 1788 and 1808, whose descendants in 1860
must have verged on 1,000,000, and it was only a temporizing

policy that lay at the basis of another compromise, which increased
the representation of the South by permitting three-fifths
of the slaves to be counted in the electorate. This effected
no real security and a new principle was later introduced
in Congress of keeping up a balance of power by the admission
of a slave state pari passu with a free state. One wonders now
at the shortsightedness of the Southern people in supposing
that such protection could be made permanent.