authority" acted in this case from prejudice and not from sound judgment. We think we have reached a correcter conclusion, to wit: that in many things they were more logical in their federalism than their successors, but in others less so. And we think we commit no injustice to them to assert, that they were more versed in British jurisprudence than they were in federal law. Had they been more expert comparative jurists and historic reasoners, and with their deep love of country, they would have made a much better work.

Then they would have avoided the "Liberum Veto" on all amendments to the articles by any one state: that was the rock on which poor Poland split; its "nie potzwalam." The power of levying duties on imports would have been granted in 1783, if even a majority of three-fourths had been required for passing an amendment. As it was, Rhode Island, the little marplot of the American family, defeated the provision. Fortunately that state claimed no lands in the west, or else it would have prevented also the settlement of the land question in 1787. Had there been, in the articles, a power to amend by a majority of two-thirds of the states; and by 1800 the articles would have been as perfect a constitution as the world ever saw. They would have had all the rigidity which a fundamental regulating rule should have, and at the same time the flexibility, that is, the glory, of the British Constitution. We are not sure, but what, similar to the Constitution of 1787, one or more points may be reserved for an absolute single state veto-such, for instance, as representation; but we incline to the belief that even for such vital points a majority of three-fourths is a sufficient safeguard. Such a three-fourth vote can only be obtained after long and patient discussion, and for overweening reasons. And when such a collective public will is formed, obedience to it is always safer and wiser than resistance. A society like that of America may eventually require some absolute rules; but at the time of the revolution, and for a long period following it, yea, even to-day, considerable freedom to grow and to develop, is its most wholesome mode of progression.

True then, is, as we think, the remark of a modern federal jurist, C. Frantz, of Berlin, that "federal constitutions are the highest form of human organizatory intelligence, when states, ethically inclined, construct them; but that it takes master workmen to frame them." Hamilton must have felt something like this when he wrote: "A nation without a national government is an awful spectacle. The establishment of a constitution. in time of profound peace, by the voluntary consent of a whole

people, is a prodigy to the completion of which I look forward with trembling anxiety."

Mr. Hamilton co-operated with the Union, when it was a mere league for warlike offensive and defensive purposes. He saw the slow development of the higher ethical germs, and these again fructified by events; but the growth was too slow for him. As aide-de-camp of Washington he knew the pains his commander had to undergo, because the confederation was not up to the situation. He multiplied his political wishes with his military desires, and lost the patience which is the first virtue in a leader in federal affairs. He wrote, therefore, with faint hopes the lines quoted, when about to meet with the convention called for the formation of the Constitution of 1787. We respect his feelings, but must deprecate his temper. made him disposed to take often two steps at once in politics, and not always strictly correct ones. He panted for a nation and for national forms of government before the people were habituated to ethical reasoning and acting. And this made him the long-stepped brother among a body of short-stepped brethren, so that he was almost always alone. It would have been better for him and them if he had had more equanimity.

It

CHAPTER VI.

THE ORDINANCE OF 1787.

"Too much liberty ends in great servitudes."-Old Gallic Proverb.

LIBERTY, eternal liberty, was sincerely the object of those who framed this ordinance, and they initiated a government which they thought would secure this; but the river of time has flowed over it, and rendered most of its provisions obsolete. Whether Jefferson or Dean wrote it? is now almost immaterial to us; it is now but a historic link in the public life of America.

Why a state paper, that was to be a constitution, was called an ordinance? we have never seen explained. The kings of France used this word for their decrees, our municipal councils. employ it for their regulations, but it is otherwise out of use. The paper speaks of itself as an "unalterable compact except by common consent." The people for whom it was intended have given that consent, not indeed for alteration, but for oblivion; and have passed under their second constitution. to the orders of the day; and that means, that society has seized the helm, and is directing as well as misdirecting its politics. The general point of a retrospect, to the origin of the ordinance, is the queer fact, that the Congress that passed it exercised for the territories, and eventually the new states, powers which it could not and would not have claimed over the old states. No authority whatever was conferred on Congress in the Articles. of Confederation for any of the objects treated of in the ordinance. Indeed, the states could not give it and be consistent with their theory of state sovereignty. And thus entered, a government intended to be purely federal or inter-state, processes and methods for exercising jurisdictions that belong only to full states in and of themselves, from general philosophic reasoning, or the necessary relations of persons and things. And, queerer still, this remained unquestioned for sixty years!

One of the most pointed public documents of the period,

because initial to and explanatory of the public reasoning then going on, is the letter of instructions (1779) given by Maryland to its delegates in Congress as to the western territory. says: "No policy except that founded on principles of justice is sound . . . all interests founded on local attachments and prejudices, and the avarice and ambition of individuals, are not real but supposed interests." It admits "that fear of immediate calamities has induced the weaker states to enter the Union," and it predicts "that when these causes cease to operate, they will embrace the first opportunity to assert their just rights." It accuses certain states "to have grasped the western lands from ambitious motives, and that they have not a shadow of right to the territories." It announces the often overlooked fact, that "cheaper western lands means depopulation and impoverishment to the eastern states, unless made up by foreign immigration;" . . . that "the consequence of a state in the scale of the confederate states would sink in pursuance of its losing its inhabitants." It foretells that "sub-confederacies-imperium in imperio-would grow out of states having the back country with which to organize infant states as allies to themselves, being based on identical institutions." And it lays down the rule that "the country, unsettled at the commencement of the revolutionary war, claimed by the British Crown, and ceded to it by the treaty of Paris, and wrested from the common enemy by the blood and treasure of the thirteen states, should be considered common property, subject to be parcelled out by Congress into free, convenient, and independent governments." The letter ends by instructing the delegates "not to agree to the articles without an ownership of the western lands for the Union."

It took until 1802, fifteen years after the passage of the ordinance, in which the subject was believed to be finally settled, before all the states had given their legal sanction to the right of the federal government to be the owners and sellers of the public lands surrendered by Great Britain. The power, to give these lands to the Union, as well as that, to accept and manage them, on trust or otherwise, was then and is now entirely constructive. At no time was there an agreement or confirmation, such as Article XIII. of the Articles of Confederation requires for a valid alteration of that instrument; and, as stated, there was never in it any clause authorizing the then Congress to act as proprietor or landlord of the territories. Neither did Congress possess any general legislative powers, unless having passed through a war, and claiming title to lands in pursuance of the treaty of peace, gave them. The states did no more than

relinquish title; they certainly could confer no power singly on the confederation, and we saw, that they did not do it jointly. Where, then, did Congress get authority to prescribe laws and institutions for an unborn people? There can be no answer, except, that it took it from precisely the same source where the king of Great Britain took his, to wit: a long-existing legal fiction. The fact is simply, that the English-educated lawyer got the upper hand of the federal jurist, and an inchoate civil government was constructed, that was based upon certain favorite ideas of the age, as to the best way of organizing human society. And we admit that, as far as it went, the work was well done; and this is the verdict of the society that was then and there initiated and has since been formed into states.

Franklin, who took up the subject (of the kind of primary government proper for the western settlements) in 1754, being a socialistic rather than a political thinker, never questioned the right of the British Crown to inaugurate new governments, and he accepted a royal charter or grant as the right form. His experience with the Quaker proprietors of Pennsylvania suggested to him, however, that there should be some general superior authority in America itself that could overrule special selfishness or desires based on local interests. That authority he sought to create in proposing (1754) the general union. According to it there were to be two western sub-colonies, because, as he said, " one colony is not strong enough by itself, it could extend its settlements only inch by inch; but two, and they united under a general government, with a military president and a council of state, might by joint strength form new colonies, as common interests might appear to make necessary and proper." The heads of the colonies were to be "persons out of the nobility and gentry of England," but "every actual settler should receive gratis a right to acres of land, and an equal number for each head in his family; but every one paying into the colonial treasury-guineas was to be entitled to a number of acres equal to that given to the actual settler." The settlers' (per capita land) quota was to be the measure of the buying capacity of the guinea, which is a unique balancing of the rights of labor and capital. Evidently Franklin's idea was, that settlers, who are under an overwhelming necessity to create wealth and to found homes, would work themselves, of themselves, into an organic society; and he said as much, when he justified the free selfgovernment which his plan contained, by suggesting that "young societies might be allowed a degree of freedom which might prove incompatible with greater populousness and power." This conception of society growing into government from social