A memorial in behalf of the architect of our federal Constitution, Pelatiah Webster, of Philadelphia, Pa. ...

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1783, he said, "That the Congress shall consist of two Chambers, an Upper and Lower House, or Senate and Commons, with the concurrence of both necessary to every act; and that every State send one or more delegates to each House : this will subject every act to two discussions before two distinct chambers of men equally qualified for the debate, equally masters of the subject, and of equal authority in the decision." *

Prior to that utterance no Federal Assembly, ancient or modern, had ever consisted of two chambers; no one had ever suggested such an idea. If after a careful examination of all the facts the Congress shall deem the architect of our Federal Constitution unworthy of a monument, the undersigned prays in his behalf that this humble memorial may be embodied in its records so that succeeding generations may determine for themselves whether or no his work has been justly judged.

I.

FEDERAL GOVERNMENTS PRIOR TO AND INCLUDING THAT

From the days of the Greek Leagues down to the making of the second constitution of the United States, all federal governments had been constructed on a single plan at once clumsy and inefficient. The most perfect of the Greek Leagues was the Achaian, of which the framers really knew nothing, as we learn from Madison who tells us in the Federalist (xviii) that "could the interior structure and regular operation of the Achaian League be ascertained, it is probable that more light might be thrown by it on the science of federal government than by any like experiments with which we are acquainted." The coveted knowledge was not accessible because the historical scholars who have since passed beyond the Greece of Thucydides into the Greece of Polybios, who have passed beyond the period in which the independent

*The italics in all the quotations from Pelatiah Webster's paper are his own.

city-commonwealth was the dominant political idea into the later and less brilliant period of Hellenic freedom occupied by the history of Greek frederalism, had not then completed their investigations, only fully worked out in very recent years.* Such scanty knowledge as the framers did possess of Greek federalism seems to have been chiefly drawn from the little work of the Abbe Mably, Observations sur V Histoire de Grece (Federalist, xviii). The only federal governments with whose internal organizations the builders of our Federal Republic were really familiar, and whose histories had any practical effect upon their work, were those that had grown up between the Low-Dutch communities at the mouth of the Rhine, and between the High-Dutch communities in the mountains of Switzerland, and upon the plains of Germany (Federalist, xix, xx). Down to the making of the second constitution of the United States, the Confederation of Swiss Cantons, the United Provinces of the Netherlands, and the German Confederation really represented the total advance made by the modern world in the structure of federal governments.

Such advance was embodied in the idea of a federal system made up of a union of states, cities or districts, representatives from which composed a single federal assembly whose limited powers could be brought to bear, not upon individual citizens, but only upon cities or states as such. The fundamental principle upon which all such fabrics rested was the requisition system, under which the federal assembly was only endowed with the power to make requisitions for men and money upon the states or cities composing the league for federal purposes, while the states, alone, in their corporate capacity possessed the power to execute them. The initial effort of the Bnglish colonies in America along the path of federal union ended with the making of the first constitution of the United States embodied in the Articles of

*The first volume (History of Greek Federations) of Edward A. Freeman's great History of Federal Government was not published until 1863.

*3

Confederation. Up to that point nothing new had been achieved; the fruit of the first effort was simply a confederation, constructed upon a plan over two thousand years old, which could only deal through the requisition system with states as states. That confederation possessed no power (i) to operate directly upon the individual citizen; (2) it had no independent power of taxation; (3) the federal head was not divided into three departments — executive, legislative, and judicial; (4) the federal assembly consisted of one chamber instead of two.* The lack of power to levy and collect for itself federal or national taxes rendered our first Federal Government preeminently a failure as a financial system, dependent as it was upon the will of thirteen independent legislatures.

II.

PELATIAH WEBSTER'S INVENTION AND THE SECOND FEDERAL CONSTITUTION OF 1787.

The most scientific writer upon finance during the Revolutionary War was Pelatiah Webster, whose essays on that subject fill a volume.f He was born at Lebanon, Connecticut, in 1725, and graduated at Yale College in 1746. In 1755 he removed to Philadelphia, where he became a prosperous merchant, and in due time an ardent supporter of the patriot cause in the War of the Revolution, aiding with pen and purse. He was captured by the British, and, on account of his ardor was imprisoned for four months. As early as October, 1776, he began to write on the currency, and in 1779 he commenced the publication at Philadelphia of a series of " Bssays on Free Trade and Finance." He was sufficiently important as a political economist to be consulted by the Continental Congress as to the resources of the country. His financial studies soon convinced him that

*See Pelatiah Webster's masterful analysis of the first Constitution contained in his Notes published in 1791, infra, p. 48.

|The second edition of 1791 was "Printed and sold by Joseph Crukshank, No. 91, High Street," Philadelphia.

no stable fiscal system could be established until the then existing federal government was wiped out and superseded by one endowed with independent taxing power. Therefore, as early as 1 781, in one of his financial essays, he made the first public call for the " Continental Convention," referred to by Madison, to be armed with power to devise an adequate system of federal government. Having thus taken the first step, he set himself to work to formulate in advance such an adequate system as the Convention should adopt, whenever it might meet. In the great tract published at Philadelphia, February 16, 1783, we have photographed for us the workings of his mind as he moved along paths never trod before. He sounded the keynote when he declared: "They (the supreme power) must therefore of necessity be vested with a power of taxation. I know this is a most important and weighty truth, a dreadful engine of oppression, tyranny, and injury, when ill used; yet, from the necessity of the case, it must be admitted.

"For to give a supreme authority a power of making contracts, without any power of payment; of appointing officers, civil and military, without money to pay them; power to build ships, without any money to do it with; a power of emitting money, without any power to redeem it; or of borrowing money, without any power to make payment, etc. — such solecisms in government are so nugatory and absurd that I really think to offer further argument on the subject would be to insult the understanding of my readers. To make all these payments dependent on the votes of thirteen popular assemblies, who will undertake to judge of the propriety of every contract and every occasion of money, and grant or withhold supplies according to their opinion, whilst at the same time the operation of the whole may be stopped by the vote of a single one of them, is absurd." Thus Pelatiah Webster proposed the existing system of federal taxation, then entirely new, to the world; thus he proposed that the ancient system of requisitions, resting on the taxing power i5

of the states, should be superseded by a system of federal or national taxation extending to every citizen, directly or indirectly. Instead of the lifeless system of absurdity embodied in the Articles of Confederation, lie proposed to substitute a self-executing and self-sustaining national system, based on the following propositions, stated in his own language : " The supreme authority of any State must have power enough to affect the ends of its appointment, otherwise these ends cannot be answered and effectually secured. * * * I begin with my first and great principle, viz, That the Constitution must vest powers in every department sufficient to secure aud make effectual the ends of it. The supreme authority must have the power of making war and peace — of appointing armies and navies — of appointing officers both civil and military — of making contracts — of emitting, coining, and borrowing money — of regulating trade — of making treaties with foreign poivers — of establishing post-offices — and, in short, of doing everything which the well-being of the Commonwealth may require, and which is not compatable to any particular State, all of which require money, and cannot possibly be made effectual without it. * * * This tax can be laid by the supreme authority much more conveniently than by the particular Assemblies, and would in no case be subject to their repeals or modifications ; and of course the public credit would never be dependent on, or liable to bankruptcy by the humors of, any particular assembly. * * * The delegates which are to form that august body, which are to hold and exercise the supreme authority, ought to be appointed by the States in any manner they please." In formulating his conclusions as to the supremacy of federal law acting directly on all citizens, he said: "(i) No laws of any State whatever which do not carry in them a force which extends to their effectual and final execution can afford a .certain or sufficient security to the subject — this is too plain to need proof; (2) Laws or ordinances of any kind (especially of august bodies of high dignity and consequence), which fail i6

of execution, are much worse than none ; they weaken the government; expose it to contempt. * * * A government which is but half executed, or whose operations may all be stopped by a single vote, is the most dangerous of all institutions. * * *

" Further, I propose that if the execution of any act or order of the supreme authority shall be opposed by force in any of the States (which God forbid!) it shall be lawful for Congress to send into such State a sufficient force to suppress it. On the whole, I take it that the very existence and use of our union effectually depends on the full energy and final effect of the laws made to support it ; and therefore I sacrifice all other considerations to this energy and effect ; and if our Union is not worth this purchase we must give it up — the natwe of the thing does not admit any other alternative." In these ringing terms was announced the path-breaking invention of a supreme and self-executing federal government operating directly upon the citizen ; an invention for which the world had been waiting for two thousand years ; an invention of which no trace or hint is to be found in the constitutions of any of the Teutonic Leagues, in the Articles of Confederation, or in the prior utterance of any other man.

Having thus defined his fundamental concept of a federal government operating directly on the citizen, the great one boldly accepted the inevitable corollary that such a government must be strictly organized and equipped with machinery adequate to its ends — with the usual branches, executive, legislative, and judicial; with its army, its navy, its civil service, and all the usual apparatus of a government, all bearing directly upon every citizen of the Union without any reference to the government of the several States. No such federal government, ancient or modern, had ever existed. As Montesquieu was the first to point out, the division of state powers into executive, legislative, and judicial, originated in that single state in Britain we call England.*

* Spirit of Laws, bk. xi, ch. 6.

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From that single state the principle passed into the single States of the American Union.* Pelatiah Webster was the first to conceive of the application of the principle of the division of powers to a federal state ; he was the first to propose that the federal head should be divided and then organized, as the particular ones are, into legislative, executive, and judicial. More than three years later Jefferson endorsed that idea by commending it to Madison.f Having thus made his second great invention, Webster proceeded to explain how the three departments, executive, legislative, and judicial, should be organized. His idea was that the executive power should be vested in a council of ministers to be grouped around a President elected by Congress. On that subject he said: "These ministers will of course have the best information, and most perfect knowledge, of the state of the Nation, as far as it relates to their several departments, and will of course be able to give the best information to Congress, in what manner any bill proposed will affect the public interest in their several departments, which will nearly comprehend the whole. The Financier manages the whole subject of the revenues and expenditures ; the Secretary of State takes knowledge of the general policy and internal government; the Minister of War presides in the whole business of war and defence; and the Minister of Foreign Afjairs regards the whole state of the Nation, as it stands related to, or connected with, all foreign powers. * * * I would further propose, that the aforesaid great ministers of state shall compose a Council of State, to whose number Congress may add three others, m'yl : one from New England, one from the Middle States and one from the Southern States, one of which to be appointed President by Congress" To the organization of the legislative department Webster gave elaborate consideration. Just as no prior federal government had ever been divided into three departments, so

* Federalist, xlvi.

■f In the letter written from Paris, December 16, 1786, heretofore cited.

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no prior federal legislature had ever been divided into two houses.

The one-chamber body represented by the Continental Congress was the type of every other federal assembly that had ever preceded it. As stated heretofore the path-breaker, looking to the English bicameral system as it had appeared in the several States, proposed "That the Congress shall consist of two chambers, an upper and lower house, or senate and commons , with the concurrence of both necessary to every act; and that every State send one or more delegates to each house : this will subject every act to two discussions before two distinct chambers of men equally qualified for the debate, equally masters of the subject, and of equal authority in the decision." Citizens of the United States, to whom such a division now seems a matter of course, should remember that when Webster proposed it, it was an unprecedented novelty in the history of the world, so far as federal legislatures are concerned. After an elaborate discussion of the qualifications of members of Congress, in which he sharply assailed the then existing rule forbidding their reelection, he proceeded to define a part of the original jurisdiction of the Supreme Court of the United States by saying "that the supreme authority should be vested with powers to terminate and finally decide controversies arising between different States." He also said "To these I would add judges of law and chancery" Thus the entire federal judicial system was distinctly outlined. Above all he was careful to define the reserved powers of the States.

On that subject he said: " I propose further, that the powers of Congress, and all the other departments acting under them, shall all be restricted to such matters only of general necessity and utility to all the States, as cannot come within the jurisdiction of any particular State, or to which the authority of any particular State is not competent: so that each particular State shall enjoy all sovereignty and supreme authority to all intents and purposes, excepting only those high authorities and powers by them delegated to Congress, for the purposes of the general union." In that passage we have the first draft, and a very complete one, of the Tenth Amendment.* So it is a matter of documentary evidence that every element that entered into the " wholly novel theory, which may be considered a great discovery in modern political science," and which differentiaties our second federal constitution of 1789 from every other that preceded it, was the deliberate invention of Pelatiah Webster, who announced to the world that theory, as an entirety, in his epoch-making paper of February 16, 1783. Prior to that date no federal government had ever existed (1) that operated directly on the individual citizen; (2) no federal government had ever been divided into three departments, executive, legislative, and judicial; (3) no federal legislature had ever been divided into an upper and lower house. There is no record, there is not even a claim that, prior to that date, any human being had ever propounded anyone of those principles in connection with a federal government. The great inventor was so conscious at the time of the magnitude of his undertaking that he exclaimed as he wrote:

"May Almighty wisdom direct my pen in this arduous discussion." In conclusion he said: "This vast subject lies with mighty weight on my mind, and I have bestowed on it my utmost attention, and here offer the public the best thoughts and sentiments I am master of. * * * I have not the vanity to imagine that my sentiments may be adopted; I shall have all the reward I wish or expect if my Dissertation shall throw any light on the great subject, shall excite an emulation of inquiry, and animate some abler genius to form a plan of greater perfection, less objectionable, and more useful." In his republication of 1791 he described perfectly the circumstances under which the great invention of February 16, 1783, was made, when he said that, "the public

*It provides that ' ' The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively or to the people."

ideas were not at all concentrated, much less arranged into any new system or form of government, which would obviate these evils. Under these circumstances I offered this Dissertation to the public." In that Dissertation, Pelatiah Webster presented, as a free gift to the great country that has neglected and forgotten him, the "new system or form of government" which passed, through the four "plans"* offered in the Federal Convention of 1787, into the existing Constitution of the United States. Certainly no more "wonderful work was ever struck off at a given time by the brain and purpose of man." The outcome of that work was a novel and unique creation operating directly on the people, and not upon the States as corporations. The State governments are not subject to the central government. The people are subject to both governments. The new creation is in no respect federal in its operation, although it is in some respects federal in its organization. No one of the three basic principles constituting the great invention was seriously questioned in the Convention. Its mighty and immortal task involved only their adaptation to very difficult and complex political conditions. The inventor of the plan stands to the members of the Convention as an architect stands to master builders.

As an evidence of the highly practical temper of Pelatiah Webster the fact should be mentioned in conclusion that, having been a successful merchant, his pet hobby seems to have been to create a Department of Commerce in close touch with Congress. He said: "I therefore humbly propose, if the merchants in the several States are disposed to send delegates from their body, to meet and attend the sitting of Congress, that they shall be permitted to form a chamber

*At a later time a grave controversy arose as to "the singularly minute coincidences between the draft of a Federal government communicated by Mr. Charles Pinckney of South Carolina, to Mr. Adams, Secretary of State," the Virginia plan, and the Constitution as finally adopted. Every explanation was given of "the singularly minute coincidences," except the plain and obvious one — the four plans out of which the Constitution arose were taken from a common soicrce. For a statement of the controversy in question see Rives' Life and Times of Madison, vol. ii, pp. 353-357- of commerce, and their advice to Congress be demanded and admitted concerning all bills before Congress, as far as the same may affect the trade of the States." In his criticisms made in 1791 of the work of the Federal Convention he said that its failure to accept that suggestion was a great mistake. The very recent creation of a Department of Commerce and Labor has at last effectuated his idea. Only through the vista of receding years can such an epoch-making mind be viewed in all its grandeur. What signifies a century of neglect passed in the midst of the "momentous consequences" his mighty work has wrought! His time is at hand; his fame is as safe and as certain as the immortality of thought and the unerring justice of the tribunal of history. His abiding faith in the justice of that tribunal he clearly expressed when he said: "But if any of these questions should in future time become objects of discussion, neither the vast dignity of the Convention, nor the low unnoticed state of myself , will be at all considered in the debates; the merits of the matter, and the interests connected with or arising out of it will alone dictate the decision."

The humanly impossible and miraculous theory which has heretofore serenely assumed that the greatest and most unique of all political inventions had no inventor, can not survive a method of historical investigations that undertakes to demonstrate that beneath every shell there is an animal, behind every document there is a man. The eminent French critic and historian Ch. V. Langlais has said : "History is studied from documents. Documents are the traces which have been left by the thoughts and actions of men of former times. There is no substitute for documents: no documents, no history." Strange indeed it is that the most important document connected with our Constitutional history should now be presented to the jurists and statesmen of the United States as if it were a papyrus from Kgypt or Herculaneum.

Humbly presented by

Hannis Taylor.

III

THE EPOCH-MAKING DOCUMENT OF FEBRUARY 16, 1783, IN WHICH IS EMBODIED THE FIRST DRAFT OF THE EXIST- ING CONSTITUTION OF THE UNITED STATES:

DISSERTATION

ON THE

POLI TICAL UNION

AND

CONSTITUTION

OF THE

THIRTEEN UNITED STATES

OF

which is necessary to their Preservation and Happiness; humbly offered to the Public.

{First published in Philadelphia, 1783.)

I. The supreme authority of any State must have power enough to effect the ends of its appointment, otherwise these ends cannot be answered, and effectually secured; at best they are precarious. — But at the same time,

II. The supreme authority ought to be so limited and checked, if possible, as to prevent the abuse of power, or the exercise of powers that are not necessary to the ends of its appointment, but hurtful and oppressive to the subject; but to limit a supreme authority so far as to diminish its dignity, or lessen its power of doing good, would be to destroy or at least to corrupt it, and render it ineffectual to its ends.

III. A number of sovereign States uniting into one Commonwealth, and appointing a supreme power to manage the affairs of the Union, do necessarily and unavoidably part with and transfer over to such supreme power, so much of their own sovereignty as is necessary to render the ends of the union effectual, otherwise their confederation will be an union without bands of union, like a cask without hoops, that may and probably will fall to pieces, as soon as it is put to any exercise which requires strength.

In like manner, every member of civil society parts with many of his natural rights, that he may enjoy the rest in greater security under the protection of society.

The Union of the Thirteen States of America is of mighty consequence to the security, sovereignty, and even liberty of each of them, and of all the individuals who compose them ; united under a natural, well adjusted, and effectual Constitution, they are a strong, rich, growing power, with great resources and means of defence, which no foreign power will easily attempt to invade or insult; they may easily command respect.

As their exports are mostly either raw materials or provisions, and their imports mostly finished goods, their trade becomes a capital object with every manufacturing nation of Europe, and all the southern colonies of America; their friendship and trade will of course be courted, and each power in amity with them will contribute to their security.

Their union is of great moment in another respect; they thereby form a superintending power among themselves, that can moderate and terminate disputes that may arise between different States, restrain intestine violence, and prevent any recourse to the dreadful decision of the sword.

I do not mean here to go into a detail of all the advantages of our union; they offer themselves on every view, and are important enough to engage every honest, prudent mind, to secure and establish that union by every possible method, that we may enjoy the full benefit of it, and be rendered happy and safe under the protection it affords.

This union, however important, cannot be supported without a Constitution founded on principles of natural truth, fitness, and utility. If there is one article wrong in such Constitution, it will discover itself in practice, by its baleful operation, and destroy or at least injure the union.

Many nations have been ruined by the errors of their political constitutions. Such errors first introduce wrongs and injuries, which soon breed discontents, which gradually work up into mortal hatred and resentments ; hence inveterate parties are formed, which of course make the whole community a house divided against itself, which soon falls either a prey to some enemies without, who watch to devour them, or else crumble into their original constituent parts, and lose all respectability, strength, and security.

It is as physically impossible to secure to civil society, good cement of union, duration, and security without a Constitution founded on principles of natural fitness and right, as to raise timbers into a strong, compact building, which have not been framed upon true geometric principles ; for if you cut one beam a foot too long or too short, not all the authority and all the force of all the carpenters can ever get it into its place, and make it fit with proper symmetry there.

As the fate then of all governments depends much upon their political constitutions, they become an object of mighty moment to the happiness and well-being of society ; and as the framing of such a Constitution requires great knowledge of the rights of men and societies, as well as of the interests, circumstances, and even prejudices of the several parts of the community or commonwealth, for which it is intended; it becomes a very complex subject, and of course requires great steadiness and comprehension of thought, as well as great knowledge of men and things, to do it properly. I shall, however, attempt it with my best abilities, and hope from the candor of the public to escape censure, if I cannot merit praise.

I begin with my first and great principle, viz : That the Constitution must vest powers in every department sufficient to secure and make effectual the ends of it. The supreme authority must have the power of making war and peace — of appointing armies and navies — of appointing officers both civil and military — of making contracts — of emitting, coining, and borrowing money — of regulating trade — of making treaties with foreign powers — of establishing post-offices — and in short of doing everything which the well-being of the Commonwealth may require, and which is not compatible to any particular State, all of which require money, and cannot possibly be made effectual without it.

The}^ must therefore of necessity be vested with power of taxation. I know this is a .most important and weighty truth, a dreadful engine of oppression, tyranny, and injury, when ill used; yet, from the necessity of the case, it must be admitted.

For to give a supreme authority a power of making contracts, without any power of payment — of appointing officers civil and military, without money to pay them — a power to build ships, without any money to do it with — a power of emitting money, without any power to redeem it — or of borrowing money, without any power to make payment, etc., etc. — such solecisms in government are so nugatory and absurd, that I really think to offer further argument on the subject, would be to insult the understanding of my readers.

To make all these payments dependent on the votes of thirteen popular assemblies, who will undertake to judge of the propriety of every contract and every occasion of money, and grant or withhold supplies, according to their opinion, whilst at the same time the operations of the whole may be stopped by the vote of a single one of them, is absurd; for this renders all supplies so precarious and the public credit so extremely uncertain, as must in its nature render all efforts in war, and all regular administration in peace, utterly impracticable, as well as most pointedly ridiculous. Is there a man to be found who would lend money, or render personal services, or make contracts on such precarious security? Of this we have a proof of fact, the strongest of all proofs, a fatal experience, the surest tho' severest of all demonstration, which renders all other proof or argument on this subject quite unnecessary.