Chapter 14:
The Contest for the Delaware River,
The Confederation,
September-November 1777

THE approach to Philadelphia by water was still obstructed by a double set of chevaux-de-frise, extending across the channel of the Delaware: one, seven miles from Philadelphia, just below the mouth of the Schuylkill, and protected by Fort Mercer at Red-bank on the New Jersey shore and Fort Mifflin on Mud Island; the other, five miles still nearer the bay, and overlooked by works at Billingsport.

On the second of October a detachment was put across the Delaware from Chester; the garrison at Billingsport, spiking their guns, fled, leaving the lower line of obstructions to be removed without molestation. Faint-heartedness spread along the river; from the watercraft and even from the forts there were frequent desertions both of officers and privates. Washington must act, or despondency will prevail.

The village of Germantown formed for two miles one continuous street. At its centre it was crossed at right angles by Howe’s encampment, which extended on the right to a wood, and was guarded on its extreme left by Hessian yagers at the Schuylkill. The first battalion of light infantry and the queen’s American rangers were advanced in front of the right wing; the second battalion supported the farthest pickets of the left at Mount Airy, about two miles from the camp; and at the head of the village, in an open field near a large house, built solidly of stone and known as that of Chew, the fortieth regiment under the veteran Musgrave pitched its tents. Information reached Howe of an intended attack, but he received it with incredulity.

About noon on the third, Washington, at Matouchin Hills, announced to his army his purpose to move upon Germantown. He spoke to them of the successes of the northern army, and explained "that Howe, who lay at a distance of several miles from Cornwallis, had further weakened himself by sending two battalions to Billingsport. If they would be brave and patient, he might on the next day lead them to victory." His plan was to direct the chief attack upon the right of the insulated part of the British forces, to which the approach was easy; and, for that purpose, he gave to Greene the command of his left wing, composed of the divisions of Greene and of Stephen and flanked by Macdougall’s brigade. These formed about two thirds of his force. The divisions of Sullivan and Wayne, flanked by Conway’s brigade and followed by Washington, with the brigades of Nash and Maxwell under Lord Stirling as the reserve, assumed the more difficult task of engaging the British left. To distract attention, the Maryland and New Jersey militia were to make a circuit and come upon the rear of the British right, while on the opposite side Armstrong, with the Pennsylvania militia, was to deal blows on the Hessian yagers.

The different columns received orders to conduct their march of about fourteen miles so as to arrive near the enemy in time to rest, and to begin the attack on all quarters precisely at five o’clock. Accordingly, the right wing, after marching all night, halted two miles in front of the British outpost and took refreshment. Screened by a fog and moving in silence, the advance party at the appointed hour surprised the British picket. The battalion of light infantry offered resistance; but when Wayne’s men, closely followed by Sullivan’s division, rushed on, the bugle sounded a retreat. The cannon woke Cornwallis in Philadelphia, who instantly ordered British grenadiers and Hessians to the scene of action; Howe, in like manner startled from his bed, rode up just in time to see the battalion running away. "For shame, light infantry!" he cried in anger; "I never saw you retreat before. Form! form! it is only a scouting party." But grape-shot from three of the American cannon rattling about him showed the seriousness of the attack, and he rode off at full speed to prepare his camp for battle, while Musgrave, detaching a part of his regiment to support the fugitives, threw himself with six companies into Chew’s house by the wayside and barricaded its lower windows and doors. The cannon of the Americans were too light to breach its walls.

As nothing was heard from Greene, Sullivan, as he approached Chew’s house, directed Wayne to pass to the left of it while he advanced on its right. In this manner the two divisions were separated. The advance was slow, for it was made in line; and the troops wasted their ammunition by an incessant fire. Washington, with Maxwell’s part of the reserve, summoned Musgrave to surrender; but the officer who carried the white flag was fired upon and killed. Urged forward by his own anxiety and the zeal of the young officers of his staff, Washington left a single regiment to watch the house, and with the rest of the reserve advanced to the front of the battle.

And where was Greene with the two thirds of the attacking force which had been confided to his command? He reached the British outpost three quarters of an hour behind time; then, at a great distance from the force which he was to have attacked, he formed his whole wing, and in line of battle advanced two miles or more through marshes, thickets, and strong and numerous post-and-rail fences. Irretrievable disorder was the consequence; the line was broken and the divisions became mixed. Macdougall never came into the fight; Greene, with the brigades of Scott and Muhlenberg, entered the village and attacked the British right, which had had ample time for preparation. They were outflanked, and, after about fifteen minutes of heavy firing, were driven back; and the regiment which had penetrated farthest was captured. Stephen with one of his brigades came as far as the left of Wayne’s division; the commander of the other, which was on the extreme right of the wing, left the way marked out by his orders and went to Chew’s house. There the brigade halted, and with light field-pieces began to play upon its walls. For this cannonade Wayne’s division could not account, except by supposing that the British right had gained their rear; and, throwing off all control, they retreated in disorder. Sullivan’s men had expended their ammunition. The English battalions from Philadelphia, advancing on a run, were close at hand. In the fog, parties of Americans had repeatedly mistaken each other for British. At about half-past eight, Washington, who had "exposed himself to the hottest fire," seeing that the day was lost, gave the word to retreat, and sent it to every division. Care was taken for the removal of every piece of artillery. British and German officers of the first rank judged the attack to have been well planned, and that no retreat was ever conducted in better order.

In the official report of this engagement, the commander-in-chief stated with unsparing exactness the tardy arrival of Greene and the wing under his command. The renewal of an attack so soon after the defeat at the Brandywine inspirited congress and the army.

To open the Delaware river, the fleet of Lord Howe, between the fourth and eighth of the month, anchored between Newcastle and Reedy Island. By the middle of October a narrow and intricate channel through the lower obstruction in the river was opened. The upper set of chevaux-de-frise was untouched; and the forts on Red-bank and on Mud Island which protected it, were garrisoned by continental troops, the former under the command of Colonel Christopher Greene of Rhode Island, the latter of Lieutenant-Colonel Samuel Smith of Maryland. Meantime, from the necessity of concentrating his force, Howe ordered Sir Henry Clinton to abandon Fort Clinton on the Hudson and to send him a reinforcement of "full six thousand men." He removed his army from Germantown to Philadelphia, and raised a line of fortifications from the Schuylkill to the Delaware.

On the morning of the eighteenth a messenger arrived in the American camp, bringing letters from Putnam and Clinton, prematurely but positively announcing the surrender of the army of Burgoyne. Washington received them with joy unspeakable and devout gratitude "for this signal stroke of Providence." "All will be well," he said, "in His own good time."

The news quickly penetrated the British camp. The difficulty of access to the upper chevaux-de-frise in the Delaware river had delayed its reduction; under a feeling of exasperated impatience, Sir William Howe gave verbal orders to Colonel Donop, who had expressed a wish for a separate command, to carry Red-bank by assault if it could easily be done. On the twenty-second, Donop, with five Hessian regiments and their artillery, four companies of yagers, a few mounted yagers, and two English howitzers, arrived near the fort, which on three sides could be approached through thick woods within four hundred yards. It was a pentagon, with a high earthy rampart, protected in front by an abattis. The battery of eight three-pounders and two howitzers was brought up on the right wing, and directed on the embrasures. At the front of each of the four battalions selected for the assault stood a captain with the carpenters and one hundred men bearing the fascines. Donop, at half-past four, summoned the garrison in arrogant language. A defiance being returned, he addressed a few words to his troops. Each colonel placed himself at the head of his division; and at a quarter before five, under the protection of a brisk cannonade from all their artillery, they ran forward and carried the abattis. On clearing it, they were embarrassed by pitfalls, and were exposed to a terrible fire of small arms and of grape-shot from a concealed gallery, while two galleys, which the bushes had hidden, raked their flanks with chain-shot. Yet the brave Hessians formed on the glacis, filled the ditch, and pressed on toward the rampart. But Donop, the officers of his staff, and more than half the other officers, were killed or wounded; the men who climbed the parapet were beaten down with lances and bayonets; and, as the morning twilight was coming on, the assailants fell back under the protection of their reserve. Many of the wounded crawled into the forest; Donop and a few others were left behind. The survivors marched back during the night unpursued. As the British ships-of-war which had attempted to take part in the attack fell down the river, the Augusta, of sixty-four guns, and the Merlin frigate grounded. The next day the Augusta was set on fire by red-hot shot from the American galleys and floating batteries, and blew up before all her crew could escape; the Merlin was abandoned and burned. From the wrecks the Americans brought off two twenty-four pounders. "Thank God," reasoned John Adams, "the glory is not immediately due to the commander-in-chief, or idolatry and adulation would have been so excessive as to endanger our liberties."

The Hessians, by their own account, lost in the assault four hundred and two in killed and wounded, of whom twenty-six were officers. Two colonels gave up their lives. Donop, whose thigh was shattered, lingered for three days; to Mauduit Duplessis, who watched over his death-bed, he said: "It is finishing a noble career early; I die the victim of my ambition and of the avarice of my sovereign." This was the movement chosen by Howe to complain of Lord George Germain; to ask the king’s leave to resign his command; and to report that there was no prospect of terminating the war without another campaign, nor then, unless large reinforcements should be sent from Europe.

On Burgoyne’s surrender, Gates should instantly have detached reinforcements to Washington; but even the corps of Morgan was not returned. The commander-in-chief, therefore, near the end of October, despatched Alexander Hamilton, with authority to demand them. Putnam for a while disregarded the orders borne by Hamilton. Gates detained a very large part of his army in idleness at Albany, under the pretext of an expedition against Ticonderoga, which he did not mean to attack and which the British of themselves abandoned; he neglected to announce his victory to the commander-in-chief. Instead of chiding the insubordination, congress appointed him to regain the forts and passes on the Hudson river. Now Washington had himself recovered these forts and passes by pressing Howe so closely as to compel him to order their evacuation; yet congress forbade Washington to detach from the northern army more than twenty-five hundred men, including the corps of Morgan, without first consulting General Gates and the governor of New York. It was even moved that he should not detach any troops except after consultation with Gates and Clinton; and Samuel Adams, John Adams and Gerry of Massachusetts, with Marchant of Rhode Island, voted for that restriction. Time was wasted by this interference. Besides, while the northern army had been borne on ward to victory by the rising of the people, Washington encountered in Pennsylvania internal feuds, and a religious sect which forbade to its members the use of arms.

By the tenth of November the British had completed their batteries on the reedy morass of Province Island, five hundred yards from the American fort on Mud Island, and began an incessant fire from four batteries of heavy artillery. Smith gave the opinion that the garrison could not repel a storming party; but Major Fleury, the French engineer, reported the place to be still defensible. On the eleventh, Smith, having received a slight hurt, passed immediately to Red-bank; the next in rank desired to be recalled; and early on the thirteenth the brave garrison of but two hundred and eighty-six fresh men and twenty artillerists was confided to Major Simeon Thayer of Rhode Island, who had distinguished himself in the expedition against Quebec, and who now volunteered to take the desperate command. Directed by Thayer and Fleury, the garrison held out during an incessant bombardment and cannonade. On the fifteenth, the wind proving fair, the Vigilant carrying sixteen twenty-four pounders, and the hulk of a large Indiaman with three twenty-four pounders, aided by the tide, were warped through an inner channel which the obstructions in the river had deepened, and anchored so near the American fort that they could send into it hand-grenades, and marksmen from the mast of the Vigilant could pick off men from its platform. Five large British ships-of-war, which drew near the chevaux-de-frise, kept off the American flotilla, and sometimes fired on the unprotected side of the fort. The land batteries, now five in number, played from thirty pieces at short distances. The ramparts and block-houses on Mud Island were honeycombed, their cannon nearly silenced. A storming party was got ready; but Sir William Howe, who on the fifteenth was present with his brother, gave orders to keep up the fire all night through. In the evening Thayer sent all the garrison but forty men over to Red-bank, and after mid night followed with the rest. When, on the sixteenth, the British troops entered the fort, they found nearly every one of its cannon stained with blood. Never were orders to defend a place to the last extremity more faithfully executed. Thayer was reported to Washington as an officer of the highest merit; Fleury won well-deserved promotion from congress.

Cornwallis was next sent by way of Chester to Billingsport with a strong body of troops to clear the left bank of the Delaware. A division under Greene was promptly despatched across the river to give him battle. Cornwallis was joined by five British battalions from New York, while the American reinforcements from the northern army were still kept back. It therefore became necessary to evacuate Redbank. Cornwallis, having levelled its ramparts, returned to Philadelphia, and Green rejoined Washington; but not till Lafayette, who attended the expedition as a volunteer, had secured the applause of congress by routing a party of Hessians. For all the seeming success, many officers in the British camp expressed the opinion that the states could not be subjugated.

From day to day the want of a general government was more keenly felt. While the winter-quarters of the British in Philadelphia were rendered secure by the possession of the river Delaware, congress, which was scoffed at in the British house of lords as a "vagrant" horde, resumed at Yorktown the work of confederation. Of the committee who, in June 1776, had been appointed to prepare the plan, Samuel Adams alone remained a member; and even he was absent when, on the fifteenth of November 1777, "articles of confederation and perpetual union" were adopted, to be submitted for approbation to the several states.

The present is always the lineal descendant of the past. A new form of political life never appears but as a growth out of its antecedents. In civil affairs, as much as in husbandry, seed-time goes before the harvest, and the harvest may be seen in the seed, the seed in the harvest. According to the American theory, the unity of the colonies had, before the declaration of independence, resided in the British king. The congress of the United States was the king’s successor, and it inherited only the powers which the colonies themselves acknowledged to have belonged to the crown.

The instincts of local attachment shad been strengthened by time and by the excellence of the local governments. Affection could not twine itself round a continental domain of which the greater part was a wilderness, associated with no recollections. The confederacy was formed under the influence of political ideas which had been developed by a contest of centuries for individual and local liberties against an irresponsible central authority. Now that power had passed to the people, new institutions were required strong enough to protect the union, yet without impairing the liberties of the state dr the individual. But America, misled by what belonged to the past, took for her organizing force the principle of resistance to power, which in all the thirteen colonies had been hardened into stubbornness by resistance to oppression.

During the sixteen mouths that followed the introduction of the plan for confederation prepared by Dickinson, the spirit of separation, fostered by uncontrolled indulgence, and by opposing interests and institutions, visibly increased in congress; and every change in his draft, which of itself proposed only a league of states, diminished the energetic authority which is the first guarantee of liberty.

The United States of America included within their jurisdiction all the territory that had belonged to the old thirteen colonies; and, if Canada would so choose, they were ready to annex Canada.

In the republics of Greece, citizenship had in theory been confined to a body of kindred families, which formed an hereditary caste, a multitudinous aristocracy. Such a system could have no permanent vitality; and the Greek republics, as the Italian republics in after-ages, died out for want of citizens. America adopted the principle of the all-embracing unity of society. As the American territory was that of the old thirteen colonies, so the free people residing upon it formed the free people of the United States. Subject and citizen were correlative terms; subjects of the monarchy became citizens of the republic. He that had owed primary allegiance to the king of England now owed primary allegiance to united America; yet, as the republic was the sudden birth of a revolution, the moderation of congress did not name it treason for the former subjects of the king to adhere to his government; only it was held that whoever chose to remain on the soil, by residence accepted protection and owed allegiance. This is the reason why, for twelve years, free inhabitants and citizens were in American state papers convertible terms, sometimes used one for the other, and sometimes, for the sake of perspicuity, redundantly joined together.

The king of England claimed as his subjects all persons born within his dominions: in like manner, every one who first saw the light on the American soil was a natural-born American citizen; but the power of naturalization, which, under the king, each colony had claimed to regulate by its own laws, remained under the confederacy with the separate states.

The king had extended protection to every one of his lieges in every one of the thirteen colonies; now that congress was the successor of the king in America, the right to equal protection was continued to every free inhabitant in whatever state he might sojourn or dwell.

It had been held under the monarchy that each American colony was as independent of England as the electorate of Hanover; in the confederacy of "the United States of America," each state was to remain an independent sovereign, and the union was to be no more than an alliance. This theory decided the manner in which congress should vote. Pennsylvania and Virginia asked that, while each state might have at least one delegate, the rule should be one for every fifty thousand inhabitants; but the amendment was rejected by nine states against two, Delaware being absent and North Carolina divided. Virginia would have allowed to each state one member of congress for every thirty thousand of its inhabitants, and in this she was supported by John Adams; but his colleagues cast the vote of Massachusetts against it, and Virginia was left alone, North Carolina as before being equally divided. Virginia, again supported by John Adams, desired that the representation for each state should be in proportion to its contribution to the public treasury; but this was opposed by every other state, including North Carolina and Massachusetts. At last, with only one state divided and no negative voice but that of Virginia, an equal vote in congress was acknowledged to belong to each sovereign state. The number of delegates to give that vote might be not less than two nor more than seven for each state. The remedy for this inequality enhanced the evil and foreboded anarchy; while each state had one vote, "great and very interesting questions" could be carried only by the concurrence of nine states. If the advice of Samuel Adams had been listened to, the vote of nine states would not have prevailed, unless they represented a majority of the people of all the states. For the transaction of less important business, an affirmative vote of seven states was required. In other words, in the one case the assent of two thirds of all the states, in the other of a majority of them all, was needed, the absence of any state having the force of a negative vote.

The king’s right to levy taxes in the colonies by parliament or by his prerogative had been denied, and no more than a power to make requisitions had been conceded: in like manner it was assumed as a fundamental article that the United States in congress assembled shall never impose or levy any tax or duties, but only make requisitions for money on the several states; and this restriction, such was the force of usage, was accepted without remark. No one explained the distinction between a superior power wielded by an hereditary king in another hemisphere and a superior power which should be the chosen expression of the will and reason of the nation. The country had broken with the past in declaring independence; it went back into bondage to the past in forming its first constitution. The king might establish a general post-office, it had been held, for public convenience, not for a purpose of revenue: in like manner congress might authorize rates of postage to defray the expense of transporting the mails. The colonies under the king had severally levied import and export duties; the same power was reserved to each separate state, to be limited only by the proposed treaties with France and Spain.

The new republic was left without any independent revenue, and the charges of the government, its issues of paper money, its loans, were to be ultimately defrayed through requisitions for the quotas assessed upon the separate states. The difference between the North and the South growing out of the institution of slavery decided the rule for the distribution of these quotas. By the draft of Dickinson, taxation was to be in proportion to the census of population, in which slaves were to be enumerated. On the thirteenth of October 1777, it was moved that the sum to be paid by each state into the treasury should be ascertained by the value of all property within each state. This was promptly negatived, and was followed by a motion having for its object to exempt slaves from taxation altogether. On the following day eleven states were present. The four of New England voted in the negative; Maryland, Virginia, and the two Carolinas in the affirmative. Robert Morris of Pennsylvania against Roberdeau, and Duer of New York against Duane, voted with the South, and so the votes of their states were divided and lost. The decision rested on New Jersey, and she gave it for the complete exemption from taxation of all property in slaves. This is the first important division between slaveholding states and the states where slavery was of little account. The rule for apportioning the revenue, as finally adopted, was the respective value of land granted or surveyed, and the buildings and improvements thereon, without regard to personal property or numbers. This rendered the confederacy nugatory; for congress had not power to make the valuation.

In like manner the rules for navigation were to be established exclusively by each separate state, and the confederation did not take to itself power to countervail the restrictions of foreign governments, or to form agreements of reciprocity, or even to establish uniformity. These arrangements suited the opinions of the time; the legislature of New Jersey, vexed by the control of New York over the waters of New York bay, alone proposed as an amendment a grant of greater power over foreign commerce. Moreover, each state decided for itself what imports it would permit and what it would prohibit. As a consequence, the confederate congress was left without power to sanction or to stop the slave-trade.

The king had possessed all land not alienated by royal grants. On the declaration of independence, the royal quitrents ceased to be paid; and each state assumed the ownership of the royal domain within its limits. The validity of the act of parliament which transferred the region north-west of the Ohio to the province of Quebec was denied by all; but the states which by their charters extended indefinitely west, or west and north-west, refused to accept the United States as the umpire to settle their boundaries, except with regard to each other.

Jealousy of a standing army and the superiority of the civil over the military power were among the dearest traditions of English liberty. It was borne in mind that victorious legions revolutionized Rome; that Charles I. sought to overturn the institutions of England by an army; that by an army Charles II. was brought back without conditions; that by a standing army, which Americans themselves were to have been taxed to maintain, it had been proposed to abridge American liberties. In congress this distrust of military power existed all the more for the confidence and undivided affection which the people bore to the American commander-in-chief, and has for its excuse that human nature was hardly supposed able to furnish an example of a military liberator of his country, desirous after finishing his work to go into private life. We have seen how earnestly Washington endeavored to establish an army of the United States. His plan, which, at the time it was proposed, congress did not venture to reject, was now deliberately demolished. To prevent a homogeneous organization, it not only left to each of them the exclusive power over its militia, but the exclusive appointment of the regimental officers in its quota of land forces for the general service.

As in England, so in America, this jealousy did not extend to maritime affairs; the separate states had no share in the appointment of officers in the navy.

As the king in England, so the United States determined on peace and war, sent ambassadors to foreign powers, and entered into treaties and alliances; but, beside their general want of executive power, the grant to make treaties of commerce was limited by the power reserved to the states over imports and exports, over shipping and revenue.

The right of coining money, the right of keeping up ships-of-war, land forces, forts, and garrisons, were shared by congress with the respective states. No state, Massachusetts not more than South Carolina, would subordinate its law of treason to the will of congress. The formation of a class of national statesmen was impeded by the clause which forbade any man to sit in congress more than three years out of six; nor could the same member of congress be appointed its president more than one year in any term of three years. No executive distinct from the general congress could be detected in the system. Judicial power over questions arising between the states was provided for; and courts might be established to exercise primary jurisdiction over crimes committed on the high seas, with appellate jurisdiction over captures, but there was scarcely the rudiment of a judiciary from which a court for executing the ordinances of congress could be developed. Congress was incapable of effectual supervision over officers of its own appointment and in its own service. The report of Dickinson provided for a council; but this was narrowed down to "a committee of states," to be composed of one delegate from each state, with no power whatever respecting important business, and no power of any kind except that with which congress, "by the consent of nine states," might invest them from time to time.

Each state retained its sovereignty, and all power not expressly delegated. Under the king of England, the use of the veto in colonial legislation had been complained of. There was not even a thought of vesting congress with a veto on the legislation of states, or subjecting such legislation to the revision of a judicial tribunal. Each state, being esteemed independent and sovereign, had exclusive, full, and final powers in every matter relating to domestic police and government, to slavery and manumission, to the conditions of the elective franchise; and the restraints required to secure loyalty to the central government were left to be self-imposed. Incidental powers to carry into effect the powers granted to the United States were withheld.

To complete the security against central authority, the articles of confederation were not to be adopted except by the assent of every one of the legislatures of the thirteen separate states; and no amendment might be made without an equal unanimity. A government which had not power to levy a tax, or raise a soldier, or deal directly with an individual, or keep its engagements with foreign powers, or amend its constitution without the unanimous consent of its members, had not enough of vital force to keep itself alive. But a higher spirit moved over the darkness of that formless void. Notwithstanding the defects of the confederation, the congress of the United States, inspired by the highest wisdom of the eighteenth century, and seemingly without debate, imbodied in their work four capital results, which Providence in its love for the human race could not let die.

The republics of Greece and Rome had been essentially no more than governments of cities. When Rome exchanged the narrowness of the ancient municipality for cosmopolitan expansion, the republic, from the false principle on which it was organized, became an empire. The middle ages had free towns and cantons, but no national republic. Congress had faith that one republican government could comprehend a continental territory, even though it should extend from the Gulf of Mexico to the uttermost limit of Canada and the eastern limit of Newfoundland.

Having thus proclaimed that a republic may equal the widest empire in its bounds, the relation of the United States to the natural rights of their inhabitants was settled with superior wisdom. Some of the states had, each according to its prevailing superstition or prejudice, narrowed the rights of classes of men. One state disfranchised Jews, another Catholics, another deniers of the Trinity, another men of a complexion different from white. The United States in congress assembled, suffering the errors in one state to eliminate the errors in another, rejected every disfranchisement and superadded none. The declaration of independence said, all men are created equal; by the articles of confederation and perpetual union, free inhabitants were free citizens.

That which gave reality to the union was the article which secured to "the free inhabitants" of each of the states "all privileges and immunities of free citizens in the several states." Congress appeared to shun the term "people of the United States." It is nowhere found in their articles of confederation, and rarely and only accidentally in their votes; yet by this act they constituted the free inhabitants of the different states one people. When the articles of confederation reached South Carolina for confirmation, it was perceived that they secured equal rights of inter-citizenship in the several states to the free black inhabitant of any state. This concession was opposed in the legislature of South Carolina, and, after an elaborate speech by William Henry Drayton, the articles were returned to congress with a recommendation that inter-citizenship should be confined to the white man; but congress, by a vote of eight states against South Carolina and Georgia, one state being divided, refused to recede from the universal system on which American institutions were to be founded. The decision was not due to impassioned philanthropy: slavery at that day existed in every one of the thirteen states; and, notwithstanding many men South as well as North revolted at the thought of continuing the institution, custom scarcely recognised the black man as an equal; yet congress, with a fixedness of purpose resting on a principle, would not swerve from its position. For, when it resolved upon independence and had to decide on whom a demand could be made to maintain that independence, it defined as members of a colony all persons abiding within it and deriving protection from its laws. Now, therefore, when inter-state rights were to be confided to the members of each state, it looked upon every freeman who owed primary allegiance to the state as a citizen of the state. The free black inhabitant owed allegiance, and was entitled to equal civil rights, and so was a citizen. Congress, while it left the regulation of the elective franchise to the judgment of each state, in the articles of confederation, in its votes and its treaties with other powers, reckoned all the free inhabitants, without distinction of ancestry, creed, or color, as subjects or citizens. But America, though the best representative of the social and political acquisitions of the eighteenth century, was not the parent of the idea in modern civilization that man is a constituent member of the state of his birth, irrespective of his ancestry. It was already the public law of Christendom. Had America done less, she would have been a laggard among the nations.

One other life-giving excellence distinguished the articles of confederation. The instrument was suffused with the idea of securing the largest liberty to individual man. In the ancient Greek republic, the state existed before the individual and absorbed the individual. Thought, religious Opinion, worship, conscience, amusements, joys, sorrows, all activities were regulated by the state; the individual lived only as an integral part of the state. A declaration of rights is a declaration of those liberties of the individual which the state cannot justly control. The Greek system of law knew nothing of such liberties; the Greek citizen never spoke of the rights of man; the individual was merged in the body politic. At last a government founded on consent could be perfected; for the acknowledgment that conscience has its rights had broken up the unity of despotic power, and confirmed the freedom of the individual. Because there was life in all the parts, there was the sure promise of a well-organized life in the whole.

Yet the young republic failed in its first effort at forming a general union. The smoke in the flame overpowered the light. "The articles of confederation endeavored to reconcile a partial sovereignty in the union with complete sovereignty in the states, to subvert a mathematical axiom by taking away a part and letting the whole remain." The polity then formed could hardly be called an organization, so little did the parts mutually correspond and concur to the same final actions. The system was imperfect, and was acknowledged to be imperfect. A better one could not then have been accepted; but with all its faults it contained the elements for the evolution of a more perfect union. The sentiment of nationality was forming. The framers of the confederacy would not admit into that instrument the name of the people of the United States, and described the states as so many sovereign and independent communities; yet already in the circular letter of November 1777 to the states, asking their several subscriptions to the plan of confederacy, they avowed the purpose to secure to the inhabitants of all the states an "existence as a free people." The child that was then born was cradled between opposing powers of evil; if it will live, its infant strength must strangle the twin serpents of separatism and central despotism.