The life of Oliver Ellsworth

[NdEAVW BIDWELi THRALL]

LIBRARY

UNIVERSITY OF CALIFORNIA
DAVIS

LIFE OF OLIVER ELLSWORTH

THF LIFE

OLIVER i'l L8WORTH

a >iavuo

HI 3U AM YJaA3ORfI jTaiTHA HV/OKXKU HA Ycl TIAai^OI A

THE MA

OLIVER ELLSWORTH.

FROM A PORTRAIT BY AN UNKNOWN ARTIST, PROBABLY MADE IN PARIS.

THE LIFE

OF

OLIVER ELLSWORTH

BY

WILLIAM GARROTT BROWN

AUTHOR OF "THE LOWER SOUTH IN AMERICAN
HISTORY," ETC., ETC.

THE MACMILLAN COMPANY

LONDON: MACMILLAN & CO., LTD.

1905

All rights reserved

LIBRARY

TT.VT'-v, _ /- * T

COPYRIGHT, 1905,
BY THE MACMILLAN COMPANY.

Set up and electrotyped. Published November, 1905.

Nortoootf

J. S. Cashing & Co. — Berwick & Smith Co.
Norwood, Mass., U.S.A.

TO

W. P. F.

PREFATORY NOTE

I DO not think it worth while to list all the author
ities which I have used in this work. The foot
notes contain specific references for all important
statements of fact. Whatever contributions the book
may make to the knowledge of Ellsworth's life have
been drawn chiefly from certain unpublished sources
— letters of Ellsworth, and manuscripts relating to
him, of which the most valuable are two by Oliver
Ellsworth, Jr., his son, and two complete biographies,
one by Hon. Joseph Wood, his son-in-law, and the
other by Rev. Abner Jackson, sometime president
of Hobart College, who was married to his grand
daughter. Wood's work was used by Flanders and
others who have published accounts of Ellsworth.
So far as I know, Jackson's has not hitherto been
used at all.

For procuring me this material, and for help ren
dered in many other ways, my thanks are due to
various members and connections of the Ellsworth
family. To Mrs. F. C. Porter of New Haven, to Mr.
W. W. Ellsworth of New York, to Mr. and Mrs. W.
Irving Vinal of Washington, to Mrs. P. N. Nicholas
of Geneva, New York, to Mr. G. E. Taintor of Hart
ford, and to Mrs. Elisha Geer of Windsor, I wish to
make a particularly hearty acknowledgment of my
obligation. Many other persons have assisted me

vii

viii PREFATORY NOTE

with information or suggestions, — among them, Pro
fessor A. C. McLaughlin, Hon. H. C. Lodge, Professor
F. B. Dexter, and Mr. Cephas Brainerd. The officials
of the New York Public Library, and those of the
libraries of Harvard, Princeton, and the Massachusetts
and Connecticut Historical Societies, have courte
ously favored me with access to material in their
several collections.

W. G. B.

CAMBRIDGE, MASS.,
October I, 1905.

CONTENTS

CHAPTER I

PAGE

A COLONIAL BOYHOOD AND YOUNG MANHOOD . . , i

CHAPTER II
THE BAR AND THE ASSEMBLY 30

CHAPTER III
THE CONTINENTAL CONGRESS 53

CHAPTER IV
THE GREAT CONVENTION 107

CHAPTER V
THE SENATE 177

CHAPTER VI
THE SUPREME COURT . 238

CHAPTER VII
PARIS 282

CHAPTER VIII
HOME 327

APPENDIX A 347

APPENDIX B 350

INDEX 361

ix

LIST OF ILLUSTRATIONS

OLIVER ELLSWORTH Frontispiece

From a portrait by an unknown artist, probably made in Paris.

OPPOSITE PAGE

OLIVER ELLSWORTH 180

From a miniature by Trumbull, now in possession of Yale University.

OLIVER ELLSWORTH AND His WIFE 258

From a portrait by Earle.

ELMWOOD, ELLSWORTH'S HOME AT WINDSOR .... 330

From a photograph.

OLIVER ELLSWORTH
CHAPTER I

A COLONIAL BOYHOOD AND YOUNG MANHOOD

AMERICANS nowadays display but little fondness for
the earlier periods of our national history. Perhaps
one reason is that along with our astounding growth
in territory and power and wealth there has grown up
in us a pride of mere bigness that makes us irreverent
and impatient of the little things it all began with.
Another reason may be that we have wandered so far
away — and more ways than one — from those ideals
which the founders, whenever we turn back to them,
seem to be forever holding up to us, not without an
effect of warning and reproach. But I think that
many of us may also be rendered shy of Revolu
tionary history and biography by our distaste for the
kind of fervor with which they are commended to us.
The zeal displayed in celebrating the founders is too
often merely partisan, or merely academic, or merely
antiquarian, — or merely feminine. Of late, a journal
istic impulse has set some rather clever pens to work,
revamping our oldest stones, upsetting our most digni
fied traditions, and disturbing our reverence for our
greatest national characters. But this brisk icono-
clasm reflects too clearly the commercial motive which
is now so dominant in all our journalism to take strong
hold of any but a rather shallow class of readers.

2 OLIVER ELLSWORTH

In one way or another, however, by partisans or anti
quaries, by learned professors or by clever space-writers,
by pious descendants or by women's clubs, all but a
very few of the leading actors in our earlier scenes
have been from time to time sufficiently, if not always
quite fittingly, bewritten and belauded. John Mar
shall's fame is still, it is true, for want of a competent
biographer, one of the vaguest of our national posses
sions ; and even of Washington there is not yet a
written life of a preeminence comparable with 'that of
his career and character. But I think no other in the
whole list of revolutionists and founders is at present
in quite such danger of losing his right place and rank
as Oliver Ellsworth of Connecticut. Historians apart,
and a few lawyers with a historical turn of mind, the
chances are that not one in a hundred of his country
men knows to-day a single fact about him, save that
he was once, for a little while, Chief Justice of our
highest court. Two accounts of him were published
about the middle of the last century, but both belong
to series of lives of the chief justices, now but little
read.

Yet the truth is that if any one man can be called
the founder, not of that court only, but of the whole
system of federal courts, which many think the most
successful of the three departments of our government,
Ellsworth is the man. In the famous Convention which
determined the entire framework of the government,
he was one of the members whose names should always
be associated both with the general character of the
Constitution and with important specific clauses. To
scholars it is known also, though the evidence is some
what vaguer, that he had already done good service in

A COLONIAL BOYHOOD AND YOUNG MANHOOD 3

the Continental Congress. In the first half-dozen years
of Congress under the Constitution, when it was almost
constantly engaged in constructive legislation second
in importance only to the Convention's, his influence
was so great that if any man could be called the leader
of the Senate in that period, it was he. His, also, was
the leading role in one of two negotiations with foreign
powers on which, even more than on domestic contro
versies, the safety of the young republic seemed for a
long time to depend. For more than a quarter of a
century, beginning with the nation's birth, he was,
with scarce an interval, engaged with great affairs and
in high places. That he was for a few years the head
of the judiciary, before its work attained a very great
importance — this is by no means his chief title to
remembrance. It is, rather, the most factitious of his
claims. But if, on the other hand, it is not a mistake
to count the founding and the working of govern
ments among the noblest of all mundane enterprises,
other and more solid services to his country demand
for this colonial lawyer greater honor than has ever
been his portion since his life-work was finished —
now nearly a century ago.

I do not wish to anticipate the reader's judgment
of the career I purpose to relate; but a word at the
outset concerning the probable causes of the neglect
of Ellsworth — if it be indeed decided that he was
deserving of more honor than he has received — may
not be amiss. If the accidental plays a part in life
and in history, it plays at least an equal part in
biography and historiography. Students of the his
tory of literature know well enough how hard it is to
secure for the contemporaries of the greatest masters

4 OLIVER ELLSWORTH

their just award of fame. If Shakespeare had not lived
when he did, a dozen poets and dramatists would doubt
less be esteemed more highly than they are. In affairs,
the misfortune of the second bests is quite as great.
The contemporaries of Washington and Hamilton and
Jefferson, or of Lincoln and Lee and Grant, lose by
obscuration more than they gain in reflected lustre.
In nearly all his memorable activities, Ellsworth was
the associate of very famous men. In the Continental
Congress, he was often detailed for special services
with Hamilton and Madison. In the Constitutional
Convention, none of the younger members could hope
to make such a figure as Washington's and Franklin's,
while the actual lead in the debating fell most natu
rally to Madison and Randolph and Morris and Wil
son. When Ellsworth became a senator, his real
leadership was never clear to his contemporaries, for
the debates were secret, and men like Robert Morris
and Richard Henry Lee were once again his fellows.
As Chief Justice, he followed Rutledge ; but Rutledge's
service was so short that Ellsworth might as well have
had John Jay for his immediate predecessor ; and his
immediate successor, who held the place a third of a
century, was probably the greatest judge in the whole
long history of English and American jurisprudence.
Turning his hand to diplomacy, Ellsworth negotiated a
very important convention with France. But Jay's treaty
with England, negotiated but a few years earlier, had
become the target for the opposition's fiercest attacks ;
it attained, therefore, by party controversy, a celebrity
which neither Ellsworth's convention nor any later
treaty could rival. Even in his capacity of Connecti
cut leader and representative, Ellsworth was again

A COLONIAL BOYHOOD AND YOUNG MANHOOD 5

and again the colleague of Roger Sherman, an elder
if not a better statesman.

That he belonged to the little colony of Connecticut
may also not unreasonably be set down as a sort of
mishap to his fame. He himself was very far indeed
from thinking it a misfortune. " I have visited several
countries," he said, when he was growing old, "and I
like my own the best. I have been in all the states
of the Union, and Connecticut is the best state.
Windsor is the pleasantest town in the state of Con
necticut, and I have the pleasantest place in the town
of Windsor. I am content, perfectly content, to die
on the banks of the Connecticut." l But it is no
controversion of this loyalty to hold that from the
banks of the Charles or the Hudson or the Potomac
he might have found a shorter path to eminence
among his contemporaries and to the reverence of
later generations. If he had lived in any one of the
bigger colonies, leadership in continental assemblies
would doubtless have been easier to win. A New
England worthy, he would have stood a better
chance of competent literary celebration if he had
belonged to Massachusetts. Americans from all
quarters have long been content to learn their coun
try's history from a group of writers who, since their
own homes have been in eastern Massachusetts,
have taken care, with a zeal that ought to be emu
lated rather than reviled, to guard from oblivion the
great men of their own famous commonwealth.
Had Ellsworth been of these, he would doubtless
have found a competent biographer among the men

1 " An opinion handed down by Oliver Ellsworth," which hangs in a
frame beneath his bust in the drawing-room of his home at Windsor.

6 OLIVER ELLSWORTH

of letters of Boston and Cambridge. But Connecti
cut, colonized in large part from the slightly older
province, has too often been content to accept the
place which the people of the Bay Colony assigned
her, and to figure in history as a kind of hinterland
to Massachusetts. In later years, her nearness to the
still more populous and wealthy state of New York,
and to the greatest of our cities, has affected in much
the same way the popular notion of her importance.
Referring to this disadvantage of her geographical
situation, more than one Connecticut orator has com
pared the state to Issachar, " A strong ass crouching
down between two burdens." * To many of us, there
fore, Connecticut still remains, in history as in
geography, a little state between New York and
Massachusetts. Ellsworth also remains what at one
time, occupying a compromise position, he probably
seemed to his contemporaries, — an obscure figure of
a statesman, between, let us say, John Adams and
Alexander Hamilton.

But there is much in the past of Connecticut, and
particularly in her career as a colony, which is emi
nently deserving of our interest, quite apart from any
connection with either Massachusetts or New York.
No trained student of our institutions will lightly
dismiss any reflection of the late Alexander Johnston,
and it was his opinion that Connecticut had so good
a government as a colony, and had progressed so far
in the experiment both of democracy and of the
federal principle, that when the time came for our

1 Wadsworth, in Connecticut Assembly, reported in American Museum,
October, 1787; Ellsworth, in Convention to Ratify the Constitution.
Elliot's Debates, II, 186.

A COLONIAL BOYHOOD AND YOUNG MANHOOD 7

greater national experiment she presented the best of
all the object lessons which the founders had before
them. He holds, accordingly, that to the general
scheme of our government no other state contributed
so much of what was new, of what was American.1
Her constitution of 1639 he deliberately pronounces
" the most far-reaching political work of modern times."
Such a claim, from such a source, is enough to arrest
one's attention, even though the varied chronicle of
Massachusetts distract from one side, while on the
other side there bulks the central importance of the
greatest of our states and cities. Every day, hurrying
in swift railroad trains from New York to Boston, or
from Boston to New York, hundreds of people thunder
across the entire east-and-west extent of the little in
tervening commonwealth. From north to south, an
ardent pedestrian has walked across it in a single day.
Most travellers, passing over it, leave it still unvisited.
Yet if one pauses for a closer view, there is much
worth seeing in Connecticut. Though the visitor
knows already the New York Highlands and the
Hudson River about West Point, even though he also
knows the charm of Massachusetts' landscapes and the
rugged splendors of her northern shore, he will wonder
why one hears so little of the beautiful valley of the
Connecticut.

For any one who cares to look into Connecticut
history, there are equal surprises. There is in it the
very essence of those New England ideals, the full-

1 Alexander Johnston's "Connecticut," Preface, and pp. 322-325. But
in the American Historical Review (IX, 480, note), Mr. Max Farrand
has pointed out that the evidence is wanting to prove that the Constitu
tional Convention of 1787 ever did take the Connecticut system as a model
in any portion of its work.

8 OLIVER ELLSWORTH

est exhibition of those New England characteristics,
for which we oftener look, instead, to Massachusetts.
The ancient town of Windsor, a few miles north of
Hartford, is at the centre of Connecticut's most charm
ing stretch of country. It is the centre also of what
is best and strongest in the traditions of the little
commonwealth. " Ancient Windsor " now, the place
was at least old Windsor to the generation that fought
the war of independence. Along its main street, which
follows for some miles a slight ridge or " sand bank,"
parallel to the broad and straight Connecticut River,
scores of colossal elms, and an extraordinary number
of good colonial houses behind them, bear witness to
its age. It was, in fact, one of the three towns with
which Connecticut history began ; and throughout the
colonial period, the Revolution, and the early years of
independence, it contributed to the service of the col
ony and the state a long list of honorable names.
They are, with very few exceptions, names which indi
cate that the original source of the first immigration
was the great middle class of English society. The
only perceptible admixtures were Scotch, or Scotch-
Irish, and Huguenot French. On the gravestones of
the old Windsor burial-ground one finds the epitaphs
of generation after generation of Aliens and Allyns,
Bissells, Browns, Cookes, Drakes, Edwardses, Eggle-
stons, Ellsworths, Enoses, Filleys, Fitches, Gaylords
(originally Gaillard, and French), Gilletts (originally
Gillette, and also French), Grants, Griswolds, Haydens,
Loomises, Mathers, Newberrys, Phelpses, Pinneys,
Rockwells, Sills, Stileses, Stoughtons, Thralls, and
Wolcotts. The same names have appeared and reap
peared, at frequent intervals, for two centuries and a

A COLONIAL BOYHOOD AND YOUNG MANHOOD 9

half, in the public records of the town, the colony, the
state. ^Several have risen to high places in the lists
of the servants of the nation. Generals and judges
and admirals, inventors and men of letters, leaders
in great business enterprises, congressmen and sena
tors, and at least one President, have traced their
descent from men who came to Windsor when the
country all about it was a wilderness. The two Wind
sor names which emerged into the clearest light
between the settlement and the Revolution were those
of Edwards and Wolcott. In that part of the town
which lay to the eastward of " the great river," Jona
than Edwards was born ; and for a hundred and fifty
years there was scarcely a single Windsor generation
that did not look to a Wolcott as the foremost citizen.
The first of the Ellsworths came about the middle
of the seventeenth century. Whence he came is not
precisely known ; the best-derived conjecture is, from
Yorkshire, where the name is still quite common.1
Neither is it known precisely when he came, but the
town records show that in November, 1654, he was
married to Elizabeth Holcomb, and that, the same
year, he bought a home in that part of Windsor which
lay to the south of " the little river," as the Farming-
ton was called, and to the west of "the great river."
Ten years later, however, he moved across the Farm-
ington to North Windsor, and made his home on a plot
of land which for two hundred and thirty-nine years
remained in the hands of his descendants. From the

1 Henry R. Stiles's " Ancient Windsor," II, 208-210 ; Ms. notes by Mr.
W. Irving Vinal ; two Ms. Lives of Ellsworth, one by his son-in-law, Joseph
Wood, and the other by Rev. Abner Jackson, president of Hobart College,
who married a granddaughter of the Chief Justice.

10 OLIVER ELLSWORTH

town and church records we learn further that he was
made a freeman in 1657, a juror in 1664, that in 1676
he gave three shillings for the relief of the poor of
other colonies, and that when he died his estate was
valued at .£655, which was no mean sum for the times
and the country. A curious list of taxpayers,1 made
in 1675, shows that for substance he ranked with the
first of his contemporaries. There were five classes in
all, and the highest class, of which each member pos
sessed " a family, home, and four oxen," numbered but
twenty-nine. Ellsworth was of these. His gravestone
adds to these proofs of good standing a military title
somewhat more distinguished in the seventeenth
century than it is in the twentieth. The inscription
reads : —

Sargient

losiah2 Elsworth
Aged 60 years
He Dyed August ye
2oth Day; Ano. 1689.

Nine children were born to him, and the graves of
his descendants are clustered thick about his own.
Many of these are marked with gravestones, bearing
each a title or a pithy record of some good work done,
or at least some honorable place held, in the little com
munity. The sixth child and third son of the immi
grant is designated on his gravestone simply as " Mr.
Jonathan Elsworth,"3 but it is otherwise known of him

1 Stiles's "Ancient Windsor," I, 88.

2 The first name is sometimes given as " Josias." For most of these
facts see ibid., II, 210.

8 But in the family Bible of Chief Justice Ellsworth his name is given as
David. This is puzzling, for all the other records name him Jonathan.
The best conjecture I can make by way of explanation is that by a slip of
the pen the Chief Justice wrote his father's name for his grandfather's — a

A COLONIAL BOYHOOD AND YOUNG MANHOOD n

that he was born in 1669, that he died in 1749, that he
was a successful storekeeper and tavern-keeper, a man
of good sense, including a sense of humor, and that in
person he was tall and strong. His wife was a Grant.1
Their seventh child and fourth son, born in 1 709, was
christened David, and it is " Capt. David Ellsworth "
(this time with two 1's) on his gravestone. The title
was not an empty one, for he served in the War of the
Spanish Succession, known in America as the Old
French War, and in 1745 commanded a company
from Windsor at the famous siege of Louisburg.
Returning in safety from that expedition, which was
by no means a holiday affair, he lived to the eve of the
recognition of the colonies' independence, and nearly
all his life he was selectman of his native town. In
heriting a hundred pounds, he had the industry and
the shrewdness to accumulate a considerable estate,
and to win the reputation of an excellent farmer. A
grandson has recorded that he had much " cunning, or
quick-turned wit," and "sound judgment." His wife,
who was Jemima Leavitt, of the neighboring village
of Suffield, is rather formidably described as " a lady of
excellent mind, good character, and pious principles." 2
Surviving him, she was married again, at the age of
sixty-three, to a wealthy citizen of East Windsor.3

The highest and stateliest of all the monuments in
the Ellsworth family group, rising up from the rear of

strange mistake to make, it must be admitted, and a stranger still not to
have corrected. Oliver Ellsworth, Jr., a son of the Chief Justice, refers,
in a Ms. that is still preserved, to "Jonathan, my father's grandfather."

1 Stiles's "Ancient Windsor," II, 210-211; Ms. notes in the collection
of Mr. W. Irving Vinal.

2 Ms. of Oliver Ellsworth, Jr.

3 Stiles's "Ancient Windsor," II, 212.

12 OLIVER ELLSWORTH

the pleasant little burial-ground behind the old First
Church, and overlooking the little river, marks the
grave of Oliver, the second son and second child of
Captain David and his wife Jemima. He was born
on April 29, 1745, and belongs, therefore, to the
generation that came to its prime about the begin
ning of the War of Independence.

It is necessary to be brief with his childhood and
boyhood, for little or nothing is known of his life in
this early period. A farmer's boy in a provincial
country town, he was doubtless accustomed to frugal
fare, simple amusements, and hard, wholesome tasks.1
Beyond question, he was made familiar from his child
hood with the doctrine and observance of the Congre
gational Church — the established church of the colony.
Since Connecticut from a very early period had main
tained an excellent school system, supported by taxa
tion, and Windsor was an old town of considerable
wealth, it is also reasonably certain that his early
schooling was as good as could be had anywhere in
the colonies. But what sort of a pupil he was, or in
deed what sort of a boy he was, we do not know.
One fact, however, may be taken to indicate that he
was thought a boy of promise. His father early set
about to prepare him for the ministry ; and in colonial
New England the ministry ranked so high among the
professions that only a boy of promise would be brought
up to aspire to it. With that career in view, he was
sent to the Rev. Dr. Joseph Bellamy of Bethlem, a

1 He told his son that when he was a boy there was but one carriage in
Windsor, and most people ate their food from wooden trenchers ; that the
life was hard, and manners simple to coarseness. Ms. of Oliver Ells
worth, Jr.

A COLONIAL BOYHOOD AND YOUNG MANHOOD 13

friend of Jonathan Edwards, famous as a preacher
throughout New England, and known by his writings
even in England and Scotland. Dr. Bellamy pre
pared the boy for college, and in 1762, at the age of
seventeen, he entered Yale.

But it was twenty-nine years before he got a Yale
degree, and then it came to him, not as in course, but
honoris causa. He remained at New Haven only to
the end of his sophomore year ; and there is reason to
believe that either he or the authorities of the college,
and not improbably both, would have been better
pleased to close the connection even sooner. He
entered, it seems, at a time of undergraduate discon
tents, such as all colleges now and then have to weather.
The long administration of President Thomas Clap wras
drawing to a close, and his headship of the still strug
gling seminary, though admirable for vigor and devo
tion, had been growing too arbitrary to please the
student body. There was much complaint also of
the tutors ; and it is hardly necessary to add that the
students held the immemorial undergraduate convic
tion concerning the food which was served to them in
the college commons, and that they did not forbear,
when occasion offered, to make their disapproval
known. It must be confessed that even a moderate
epicure could have found a trifle to criticise, now and
then, in the college fare. According to a set of regu
lations in force about this time, breakfast for four was
one loaf of bread. Dinner was more substantial ; but
supper, also for four, was an apple pie and one quart
of beer.1 If young Ellsworth had made a request for-

1 F. B. Dexter, "Yale Biographies and Annals," 2d series, 141. Daniel
Butler on the Yale Commons, in Kingsley's " Yale College," I, 297-306.

14 OLIVER ELLSWORTH

ever associated with his Christian name, he would
doubtless have won distinction earlier than he did.

The intellectual fare was, it would seem, neither
more abundant nor more tempting. At Yale, as
indeed at all the colonial colleges, the curriculum
was a hard and fast and uniform programme. "In
the first year," so the laws read, " They Shall princi
pally study the Tongues and Logic, and Shall in
Some measure pursue the study of the Tongues the
Two next Years. In the second year they shall
Recite Rhetoric, Geometry and Geography. In the
Third year, Natural Philosophy, Astronomy and Other
Parts of the Mathematicks. In the Fourth Year
Metaphysics and Ethics. . . . But every Saturday
shall Especially be allotted to Divinity." l It was use
less to ask for more, or for any variation in the pro
gramme. The teaching force was too small to give
well even what was offered. Each of the two or three
tutors was responsible for all the instruction, in all
branches, that was given to the class or section under
his especial care.

The year before Ellsworth entered, there had been
so much disorder that a petition, prepared, no doubt,
by enemies of President Clap, had been presented to
the General Assembly of the colony, asking an investi
gation. " There has been a tumult," a trustee wrote,
" the Desk pulled down, the Bell case broken, and the
bell ringing in the night, Mr. Boardman the tutor
beaten with Clubbs"2 — which was clearly contrary to
rule, for Penal Law No. 19 expressly provided: "If
any Scholar shall make an assault upon the Person of

1 Laws of Yale College, 1745.

2 Dexter, " Yale Biographies and Annals," 2d series, 682.

A COLONIAL BOYHOOD AND YOUNG MANHOOD 15

ye President or either of the Tutors or shall wound,
Bruise or Strike any of Them, He shall forthwith be
Expelled." Similar disorders arose from time to time
until, in 1765-1766, the climax came in a practically
unanimous signed petition of the students for the
removal of President Clap. During the last term of
that year, not more than two-thirds of the student
body was in attendance. It is not surprising, when
one remembers that this was the time of the struggle
over the Stamp Act, to find the state of affairs in the
college attributed to the spirit of resistance to arbi
trary rule which was rising throughout the colonies.
General Gage, at Boston, referred to Yale in 1765 as
a " Seminary of Democracy." 1 Young Roswell Grant,
of the class of 1 765, wrote home to his father at Windsor
that he would be very glad of a cheese, but added:
" Shall not want that Cherry (Sherry) you reserved for
me before vacancy, as all the Scholars have unani
mously agreed not to drink any foreign spirituous
liquors any more."2 It is clear that undergraduate
Yale was at least as patriotic as it was rebellious.

Ellsworth's share in these activities, patriotic and
rebellious, cannot now be ascertained. He appears,
however, in at least two cases of discipline on the
records of the faculty.3 His prime offence in the first
case, in July, 1763, was the puzzling misdemeanor of
joining with ten others, in the evening, " to scrape and
clean the college yard " ; but a second count arraigned
him and his comrades for "having a treat or enter
tainment last winter," and still a third count set forth

1 Dexter, "Yale Biographies and Annals," 3d series, 170. 2 Ibid., 94.
3 Transcripts from the Faculty Records, which were kindly made for me
by Professor Dexter.

1 6 OLIVER ELLSWORTH

that he and three others "presently after evening
Prayers on Thursday last put on their Hats and run
and Hallooed in the College Yard in contempt of the
Law of College." For these offences he was fined one
shilling. The second case arose the next year, and the
charge was that Ellsworth was present "at Bulkley
2d's," at " a general treat or compotation of wine both
common and spiced in and by the sophomore class,"
and the punishment was a fine of four shillings. There
were degrees of guilt, for two ringleaders were fined
five shillings, and Ellsworth and two others four shil
lings, while the majority of the offenders were let off
at two shillings. These performances do not strike
one as very damning. They do, however, seem to
prove that Ellsworth was once a boy, and that the
boys of colonial New England were not entirely un
like their descendants — at least, when they went to
college. Perhaps we may also infer that Ellsworth
was already out of sympathy with his father's ambition
that he should be a minister.

Why he left Yale is not entirely clear. Presi
dent Clap entered in his official journal, under the date
July 27, 1764, that "Oliver Ellsworth and Waight-
still Avery, at the desire of their respective parents,
were dismissed from being members of this College." ]
But among the descendants of Ellsworth at least two
other stories are told to account for his departure from
New Haven. One is, that at midnight in midwinter
he inverted the college bell and filled it with water,
which promptly froze.2 But this explanation hardly

1 Entry copied by Professor Dexter.

2 H. C. Lodge, oration on Ellsworth, in « A Fighting Frigate and Other
Essays," 70, note.

A COLONIAL BOYHOOD AND YOUNG MANHOOD 17

consists with the date of his dismissal. Unfortunately
for the other story, it has been told of more than one
celebrity, and of other colleges than Yale. It is that
Ellsworth was caught by a college officer giving in his
room what in his day was called a " treat " but in the
college nomenclature of the present day would be
called a " spread " ; and that the officer, about to enter
and disperse the company, was stopped by hearing
Ellsworth's voice uplifted in prayer — for there was a
college law that no student should be interrupted at
his devotions.1 Of this story there is a second version
which, even if it were never told of any one but Ells
worth, sounds too modern for belief. It is that the officer
was making a round of the dormitory in search of signs
which the students had stolen from New Haven trades
men, and that the words of the prayer he heard were
the words of Matthew xii. 39.*

For Ellsworth's career at Princeton, tradition is
almost the only source ; the written records of the
immediate government of the College of New Jersey
in colonial times are not preserved.3 Younger than
either Yale or Harvard, Princeton was also smaller.
There can hardly have been a hundred students when
Ellsworth entered. Age and size apart, it differed
from the other two mainly by a stronger infusion of
Calvinism in its theology and of Scotch and Scotch-
Irish blood in its membership. John Witherspoon

1 Letter from Mrs. Alice L. Wyckoff, of Buffalo, N.Y.

2 Letter from Mrs. Geneve (Ellsworth) Stuart, a great-granddaughter
of Ellsworth.

3 For Princeton at this time see MacLean's " College of New Jersey " ; De
Witt and Williams, in " Universities and their Sons " ; De Witt and Wilson,
in " Memorial Book of the Sesquicentennial Celebration of Princeton Uni
versity " ; Gaillard Hunt's " Madison," I, Chap. II, etc.

1 8 OLIVER ELLSWORTH

had not yet consented to come over from Scotland and
head the institution, but President Samuel Finley
(1761-1766) was a Scotch- Irish Presbyterian minister,
with a great reputation in the middle colonies and
Virginia.

In respect of the curriculum and the number of
teachers, Princeton offered to young Ellsworth no
more than Yale had offered ; but it was, apparently,
rather more fortunate in its tutors, and in the spirit
that informed both the teachers and the taught. The
arts of speaking and writing, in particular, appear to
have been taught uncommonly well and studied with
extraordinary enthusiasm. It is certain that of all the
colonial colleges, Harvard and William and Mary not
excepted, no other was at this time training so many
debaters for the Continental Congress and the still un
dreamed-of Constitutional Convention.1 Waightstill
Avery, Ellsworth's companion in migration, had before
him a good career in public life in North Carolina. In
the class which they joined, numbering but thirty-one,
and a large class for Princeton, were Luther Martin
of Maryland and at least three others with parts to
play in the coming political changes. William Pater-
son, graduated the year before, was living in the village
and in constant association with his younger mates.
Benjamin Rush, John Henry, Tapping Reeve, Hugh
Henry Brackenridge, Philip Freneau, Henry Lee,
Pierpont Edwards, Gunning Bedford, James Madison,
and Aaron Burr were all in classes close before or after
Ellsworth's class of 1 766. Of those students who were
not, as the event proved, in training for statesmanship,

1 Woodrow Wilson, in "Memorial Book of Princeton Sesquicentennial
Celebration," 110-114.

A COLONIAL BOYHOOD AND YOUNG MANHOOD 19

fully half were preparing for the ministry. It is no
wonder that courses in oratory and composition were
popular, or that the Stamp Act controversy aroused at
Princeton even more discussion than at Yale.1

Tradition and reminiscence indicate that Ellsworth
entered with zest into the somewhat fervid life of his
new academic home. A respectable scholar, he was,
we are told, remarkably successful in college politics,
displaying an uncommon shrewdness, a gift of man
agement, and a talent for debate.2 The best-known
story of his Princeton days is of how he circumvented
a rule forbidding students to wear their hats in the
college yard. Arraigned for breaking the rule, he
pointed out that a hat, to be a hat, must consist of a
crown and a brim, and proved that the head-piece he
had worn in the yard was without a brim — as he had
in fact torn off that essential portion of it.3 A better-
authenticated and more important tradition indicates
clearly enough what the young fellow's tastes and
powers were. There seems to be little doubt that he
was one of the founders of the Well Meaning Club,
a debating club, which was suppressed in 1768, but
later revived and reorganized as the Cliosophic Society.
Another club, formed about the same time, first called
the Plain Speaking Club, and likewise suppressed in
1768, was reorganized by Madison, John Henry, and
Samuel Stanhope Smith, and named the American
Whig Society.4 Among the college debating clubs

1 " Twenty-two commence this fall, all of them in American Cloth."
Madison to his father, Gaillard Hunt's " Madison's Writings," I, 7.

2 Wood and Jackson Mss.

3 Ibid. ; University Magazine, November, 1891.

4 Hunt's "Madison," 15; De Witt and Williams, in "Universities and
their Sons," I, 482-484; McLean, "College of New Jersey," I, 364.

20 OLIVER ELLSWORTH

throughout the country, these two Princeton societies
hold at present the first rank for age, for celebrity, and
for the names on their rolls of membership. It seems
most likely that Paterson, who was fond of such
activities, and precisely the sort of man to lead in
them, was the moving spirit when Clio was founded ;
but with his name tradition has firmly associated
Ellsworth's, Luther Martin's, and Tapping Reeve's.1
There is scarcely to be found even in the records of
the Oxford Union a coincidence more curiously pro
phetic. We are told, also, that both these clubs were
mightily concerned about the Stamp Act and the
relations of the colonies to the mother country. It is
true that New Jersey and the other central colonies
contributed less leadership to the American movement
than New England or Virginia ; but Princeton already
drew her students from surprising distances. The
acquaintances Ellsworth made there, and the outlook
he gained, were doubtless a better introduction to the
whole field of colonial politics than he could have
got at any other college. He seems to have formed
there the habit of caution and to have developed the
instinct for compromise which were later conspicuous
characteristics. At any rate, he had got what few but
the wealthiest young colonials could have — an educa
tion a long way from home.

When he went back to Connecticut, however, his
father had not relinquished the plan of making him

*De Witt and Williams, in "Universities and their Sons"; J. A.
Porter, in Century Magazine, September, 1888. For Paterson, W. Jay Mills,
"Glimpses of Colonial Society and the Life at Princeton College" (made
up chiefly of Paterson's letters). The corresponding secretary of the
Cliosophic Society states that there is no record of Ellsworth's connection
with the society now in its possession.

A COLONIAL BOYHOOD AND YOUNG MANHOOD 21

a minister. He accordingly spent the next year in
the study of theology under Dr. John Smalley of
New Britain, a young clergyman of parts, who rose
to influence and distinction.1 But Ellsworth had by
this time a clear and strong bent towards the law.
When Dr. Smalley directed him to prepare his first
sermon, the first ten sheets of his manuscript were
given over to careful definition of his terms.2 His
teacher and his father were at length persuaded that
his mind and tastes were better suited to the bar
than to the pulpit.

It was four years, however, before he was admitted
to the bar; and for those four years, from 1767 to
1771, the record of his life is very scant. He studied
law under the first Governor Griswold and under
Jesse Root of Coventry, a young attorney with whom
he was later associated in the Continental Congress,
and whose name appears many times in the public
records of Connecticut. But Ellsworth can hardly
have given the whole of the four years to his studies.
In one account of his life, it is stated that he taught
school for a little while3 — an experience curiously
common in the lives of eminent Americans. When he
began practice as a lawyer, he was in debt, and a
rational inference is that after he abandoned theology
his father made no further expenditures for his
education.

In any case, however, his education in the law could

1 J. Hammond Trumbull, "Memorial History of Hartford County," II,
309-310.

2 " Centennial Papers of the General Conference of Connecticut " (1876),
107-108.

3 Longacre and Herring, "National Portrait Gallery" (1839), IV> article
on Ellsworth.

22 OLIVER ELLSWORTH

not have been elaborate. There were no law schools
in the colonies. The people of Connecticut were
thought to be peculiarly and perversely litigious, but
the Commentaries of Blackstone were still unknown
among them. The first American edition of the work
was printed in 1771 or 1772, and a copy with Ells
worth's name and the date 1774 on the fly-leaf is still
in existence ; 1 one conjectures that he never possessed
the book, probably never even saw it, until he had been
several years in practice. His text-books were Ba
con's " Abridgment " and Jacob's "Law Dictionary."2
In fact, there were no text-books, properly so-called.
It may be added that until very near the time when
he began to practise there was considerable opposition
to the common law in Connecticut.3 The colony
had begun its legislative history with what looks like
a complete disavowal and rejection of the system. It
was never adopted by statute, but came in gradually
by a change ofr usage on the bench and at the bar,
as professionally trained practitioners became more
numerous. Even when the decisions of the English
judges were familiarly cited in the Connecticut courts,
the means of studying them were scant and crude.
Good law libraries were extremely rare, and the labors
of the colonial lawyer were not made easy by treatises
and digests. It is altogether improbable that Ells
worth possessed, at the outset of his professional
career, any such store of facts or principles as would
now be required of him in an examination for admis-

1 William Bliss, in New York Evening Post, April 9, 1875.

2 Wood Ms.

8 Analectic Magazine, III, 382 ; "Judicial and Civil History of Connec
ticut," by Loomis and Calhoun, pp. 176-177; Preface to Kirby's Connecti
cut Reports ; Wood Ms., etc.

A COLONIAL BOYHOOD AND YOUNG MANHOOD 23

sion to the bar of any New England state. Yet the
way he did learn the law was not unlike the method
of studying and teaching it which has come of late
into a very wide acceptance. He mastered it only by
searching out and storing in his mind the principles
at the heart of particular cases. In that process is
involved the essence of the modern case-system. It
is doubtful if a better training for the reason has ever
been devised.

But even the opportunity to learn law in this way
was for a time withheld. Cases to study and to try
were not immediately forthcoming. Ellsworth had
first to undergo a discipline in patience and frugality
which seems to have been severe enough to make
his professional career in all respects representative.
Somebody has said that poverty and an early marriage
make the best beginning of a lawyer's life ; and both
were in his portion. To pay the debts incurred while
he was preparing for the bar, he had but one resource
— a tract of woodland on the Connecticut which had
come to him by inheritance or gift.1 He tried in vain
to sell the land, and then, shouldering an axe, attacked
the timber, for which there was a market at Hartford.
In this way he cleared himself of debt. But for three
years after his admission to the bar his professional
earnings, by his own account, were but three pounds,
Connecticut currency. And yet, in 1772, a year after
his admission, he was married.

His bride was Abigail, the second daughter of Mr.
William Wolcott of East Windsor, a gentleman of
substance and distinction, and a member of that same

1 Wood Ms. ; Henry Flanders, u Lives and Times of the Chief Justices
of the Supreme Court," 2d series, 59-60.

24 OLIVER ELLSWORTH

Wolcott family which had held so high a place in
the community from the very beginning. A story is
told, that when Ellsworth made his first visit to the
Wolcott house he called for an elder sister, but that
the black eyes of Abigail, who sat demurely carding
tow in the chimney corner, made him change his mind,
and the next time he went there he called for her.
She was only sixteen at her marriage.1 A portrait
that we have of her, painted when she was in middle
life, suggests rather the good and cheerful housewife
than the sort of colonial beauty whom colonial dames
are now so fond of celebrating. But the tradition is
that she was a beauty, and one or two anecdotes
present her to posterity as an uncommonly loving and
lovable woman. Unrelaxing in industry, she was
given to charity, and had an unfailing kindness for all
about her. That a briefless young lawyer should win,
apparently without objection from her family, the
daughter of so respectable a house, is evidence of the
wholesome democracy in which they lived. It is
evidence, too, of the sincerity of their affection for each
other. That, happily, was strong enough to last
through all their lives. The biographer of Ellsworth
is often tempted to complain of the scarcity of purely
personal details ; but he is happily spared the tempta
tion to stimulate the interest of his readers with any
parade of family skeletons. In all that pertained to
his family and his home, Ellsworth was both wise and
fortunate.

The two began life on a farm which belonged to
Ellsworth's father, and which the son now took over

1 Jabez H. Hayden, in "Memorial History of Hartford County," II,
565.

A COLONIAL BOYHOOD AND YOUNG MANHOOD 25

to cultivate, either, it seems, on shares, or on a lease
for rent.1 It lay in the northwest part of old Windsor,
which was then called Wintonbury, and is now called
Bloomfield. The land was unfenced, and Ellsworth
with his own hands cut and split the rails and built a
fence about it. Too poor to hire a servant, he did
himself all the heavier household chores, and twice a
day when court was in session he walked the ten miles
between his farm and his office in Hartford. Once,
when a wealthier neighbor passed him in a carriage
and told him that a man in his position ought to be
riding and not walking, Ellsworth cheerfully replied
that everybody must walk some time or other in his
life, and that he for his part preferred to do his walk
ing while he was young and strong. Of course we
are also told, for a climax to the story, that a time
came later when Ellsworth kept a carriage and his
neighbor had to walk.2

The farm, rather than the pound a year he earned
at his profession, must have been the young man's
main support during the year or two longer that he
had to wait for his first important case. He became
an intelligent and zealous farmer ; that is more than
conjecture. But neither this nor his study of the law
can be reckoned his principal achievement between
his college days and that success which was soon to
be his portion. Scanty as the record of those years is,
we know that they covered a very fine and admirable
study and development of his powers, for when Ells
worth first came fully into the light his character was
rounded and hardened into the best type of colonial
New England manhood. In later life, he himself,

1 Wood Ms.

26 OLIVER ELLSWORTH

being asked for the secret of his effectiveness, told
modestly and convincingly the story of his growth.
Early in his career, he said, he made the discouraging
discovery that he had no imagination, nor any other
brilliant quality of mind. Determined, however, to
make the most of such powers as he had, he resolved
to study but one subject at a time, and to stick to it
until he mastered it. In the practice of his profession,
his rule was to go at once to the main points of a case
and to give them his entire attention.1

In this candid self-examination, this honest accept
ance of his limitations, this manly and courageous
decision, one finds enough to command one's hearty
respect. But it is not to be supposed that by this self-
study and this plan of life alone the reasonably mis
chievous and reckless youngster of Yale and Princeton
was at once transformed into a cautious and hard-
headed but uncommonly upright lawyer and statesman.
None of Ellsworth's New England contemporaries was
more thoroughly representative of New England civili
zation at its best; and colonial New England was
already — Switzerland, perhaps, excepted — the sound
est democracy in the world. Nowhere else was liberty
restrained by such strong reverences, or safeguarded
by so practical an instinct, or fortified by a morality so

1 Flanders, 64-65, following Wood Ms. Jackson's version is perhaps
better : " To a young lawyer who asked him for the secret of his success
in life, his reply was : i Sir, after I left college I took a deliberate survey of
my understanding. I felt that it was weak — that I had no imagination and
but little knowledge or culture. I then resolved on this course of study :
to take up but a single subject at a time, and to cling to that with an atten
tion so undivided that if a cannon were fired in my ears I should still cling
to my subject. That, sir, is all my secret.' " Jackson had the story from
John Allyn, who told it on the authority of his nephew, Professor Goodrich
of Yale.

A COLONIAL BOYHOOD AND YOUNG MANHOOD 27

widespread and so thoroughgoing. New England
society, even in its unspoiled colonial state, had its
faults, and some of its faults were hateful. The bit of
talk about himself which I have just given is, for in
stance, almost the only frank and ingenuous revelation
of his nature we shall find in all that Ellsworth ever
wrote and spoke. When he became a man of sub
stance, it was said that he took the utmost pains to
conceal from his own household the extent of his
wealth. Secretiveness and unresponsiveness were
bound to be common among a people who cultivated,
almost to excess, the fine qualities of self-reliance and
forethought. We shall never be acquainted with Ells
worth or any other colonial New Englander as we are
with famous Americans from other quarters, and with
famous Englishmen as well. Wanting, as a rule, in
amiability and ready sympathy, the colonial Yankees
had also more positive faults. Pecksniffs as well as
Dombeys there were no doubt among them. Where
all were so free to live their individual lives according
to their own ideals, some were surely selfish as well as
self-contained. Where so large a number were reli
gious, some were doubtless sanctimonious and hypo
critical.

But if we judge them in the mass it is hard to match
them for competency in the management of their own
affairs, whether as individuals or in bodies politic, or
for fidelity to their difficult ideals. By Ellsworth's
time, the puritan theology was already relaxed into a
fairly livable creed. Before he died, the famous
Unitarian movement had begun in Massachusetts.
A general broadening of ideas and sympathies accom
panied the religious change. Sloughing off the worst

28 OLIVER ELLSWORTH

defects of its quality, New England society displayed
during the first half of the nineteenth century a spec
tacle of intelligence, of energy, and of general health-
fulness and soundness, which has probably never been
surpassed.

Ellsworth, whatever vagaries he had indulged in his
boyhood, took into his nature and kept throughout his
life the best characteristics of his kind. He came to
his fine opportunities a completely grown-up man, his
character hardened into permanent lines ; a quiet but
ready man, thoughtful and deeply religious, but also
ardent, industrious, practical, and shrewd. For the
rest, he had got from his ancestors and his healthful
country life a superb endowment of physical strength
and hardiness. According to the family tradition, his
height was six feet two, and he was broad-shouldered
and robust. His countenance was not positively hand
some ; if we may judge from his portraits, until age
and suffering had softened it, there was neither sweet
ness nor distinction in his face ; but he had the strong
jaws, the long chin, the firm lips, the steady eyes, which
always indicate the man of purpose and persistency.
To an unimaginative man like Ellsworth, however,
with little of the artist or the actor in his nature, such
a figure and presence was of far less advantage before
the public than it might have been had his tempera
ment been different. He used and valued his bodily
endowment for hard work rather than display. The
interest of his life is not to be found in dramatic exhi
bitions of his powers. It lies, rather, in the tasks which
his hand found to do — tasks whose value and impor
tance we cannot even yet feel sure that we have meas
ured. He brought to his work parts which cannot be

A COLONIAL BOYHOOD AND YOUNG MANHOOD 29

called extraordinary in themselves ; but he plied them
with an abundant energy, he ruled them with strong
will, he devoted them always to high purposes, and he
made them serve.

CHAPTER II

THE BAR AND THE ASSEMBLY

THE beginning of Ellsworth's rise to eminence was
professional success; and this, when it did come,
seems to have come both swiftly and abundantly.
According to his early biographers, a si'ngle case, in
volving an important legal principle; proved to be the
sort of opportunity that leads to countless others. The
young lawyer managed it so skilfully that he not only
secured a verdict for his client but won for himself
the respect of his neighbors.1 Perhaps it was on this
occasion that he heard from the lips of a stranger what
he afterward declared were the first words of encour
agement that ever heartened him in his ambition.
" Who is that young man ? " the stranger was saying ;
"he speaks well."2

At any rate, from about the third year of his mem
bership of the bar, his practice grew very fast, and he
rose quite as fast in the esteem of his fellows. At the
autumn session of the General Assembly in 1773, he
took his seat as one of the two deputies from Windsor,
and his name appears in every list of the deputies
thereafter until May of the year I775.3 That year,

1 Wood and Jackson Mss. ; George Van Santvoord, " Sketches of the
Lives and Judicial Services of the Chief Justices of the Supreme Court
of the United States," 196.

2 Mrs. Sigourney, in "National Portrait Gallery," IV, Article on
Ellsworth.

3 Roll of State Officers and General Assembly of Connecticut ; Colonial
Records of Connecticut, XIV, 159, 214, 252, 325, 388, 413. All the biogra-

3°

THE BAR AND THE ASSEMBLY 31

the year of his thirtieth birthday, was doubtless to him,
as to many another young colonial, the annus mirabilis
of his whole career. Tradition has fixed upon it as
the date of his removal to Hartford from the Winton-
bury farm. It also saw him engaged in the first of
those Revolutionary tasks which were to claim him
continually until the end of the struggle for indepen
dence should summon him to a still more conspicuous
part in the constructive work that followed. From
that year to his death, in fact, he was scarcely for
an instant free from important public responsibilities.
But he did not relinquish his profession. Throughout
the Revolution, and until the new national govern
ment was organized under the Constitution, he was
always either actively in practice or else on the bench.
It was by the law that he laid the foundations both of
his fortune and his fame. It will be best, therefore,
before we follow him into the service of his country
men, to seek some notion of the kind of man he was in
the common, daily struggle, and more particularly to
learn what we can of his character and figure at the
bar.

For this inquiry, few records are available, and those
are of little use. In the courts where Ellsworth prac
tised, the stenographer was of course unknown ; nor
did any daily paper ever spread before its readers a

phers of Ellsworth have been extremely loose in their statements concerning
the offices he held in the earlier part of his career. Where dates are given,
they are nearly always incorrect. Perhaps the official records were not
accessible when these accounts were written. It is hardly worth while to
specify their inaccuracies. Not one of them gives the impression that he
was in the Assembly as early as 1773. In May, 1774, his name first appears
in the list of Justices of the Peace for Hartford County. Ibid.,
XV, 8.

32 OLIVER ELLSWORTH

detailed narrative of a single cause in which he was
engaged. Compared with our present usage, the re
porting of that day, both official and unofficial, was
bafflingly meagre. Moreover, Ellsworth himself,
though by no means slow of speech, was curiously
averse to the pen. There can scarcely be another man
of comparable importance in our history who has left
behind him so few papers of any sort in his own hand
writing. Not one of his court speeches is preserved
to us. It is quite probable that none was ever written
out. Even his briefs are said to have been exception
ally condensed, setting forth only the principal head
ings of his arguments.

Fortunately, however, a number of his contempo
raries have left us their impressions of him as an
advocate; and several of these contemporaries were
themselves of an eminence to give their judgments
weight. One, at least, is better known to-day than
Ellsworth is ; his name indeed is quite probably famil
iar to more English-speaking people than any other
American name but Washington's. In 1779, young
Noah Webster was a student in Ellsworth's office and
an inmate of his home.1 Many years later, one of Ells
worth's sons was married to Webster's eldest daugh
ter. This personal connection may perhaps have
heightened the lexicographer's opinion of the states
man's importance, for Webster was given to dilating
on all things in any way related to his own career.
But he was also trained to state facts carefully, and to
Joseph Wood, Ellsworth's son-in-law and biographer,
he once declared that Ellsworth, even at the time when

1 H. E. Scudder's " Noah Webster," in American Men of Letters series ;
Goodrich, in "Revised Webster's Dictionary," XV, XXII.

THE BAR AND THE ASSEMBLY 33

Webster was in his office, had usually on his docket
from a thousand to fifteen hundred cases. In fact,
Webster added, there was scarcely a case tried in
which Ellsworth was not of counsel on one side or
the other, and his mind was under a constant strain
throughout the sessions. Sometimes, from sheer physi
cal weariness, he would gird his loins with a handker
chief as he rose for an argument in some new case.
Perhaps the number of his cases is partly explained by
the statement that he excelled in nisi prius trials.
Webster habitually spoke of him as one of the " three
mighties" of the Connecticut bar — the other two
being William Samuel Johnson and Titus Hosmer.1

However this testimony may need to be qualified,
it is clear that Ellsworth's professional career was
extraordinary. It is doubtful if in the entire history
of the Connecticut bar any other lawyer has ever in
so short a time accumulated so great a practice. It
probably reached its height in the years immediately
after the war, for the great change gave rise to much
litigation, and by that time his reputation was estab
lished and his powers at the full. Measured either by
the amount of his business or by his earnings, it was
unrivalled in his own day, and unexampled in the
history of the colony. Naturally shrewd, and with
nothing of the spendthrift in his nature, he quickly
earned a competence, and by good management he
increased it to a fortune which for the times and the
country was quite uncommonly large. From a few
documents still in existence, it is clear that he be
came something of a capitalist and investor. He
bought land and houses, and loaned out money at

1 Wood Ms. ; "Memorial History of Hartford County," I, 121.

34 OLIVER ELLSWORTH

interest. He was a stockholder in the Hartfo/d Bank
and one of the original subscribers to the stock of the
old Hartford Broadcloth Mill (i 788).1 But if there were
no documents to prove that he was a man of substance,
the residence in Windsor which he appears to have
either bought or built long before he reached the age
of retirement, and where he made his home in the
years of his highest public services, would be evidence
enough.

Were this substantial progress and worldly prosper
ity alone to be considered, we should still be sure that
Ellsworth was a man among men, surpassing the great
majority of his contemporaries in sense and energy, a
good representative of the strong and sturdy stock he
came of. He was not of those who, though fitted for
exceptional services or charged with uncommon tal
ents, are yet unequal to the world's incessant and
more commonplace demands. But the fact of his get
ting on so well and fast has its full value to the biogra
pher only when it is added that not one word has come
down to us to intimate that there was ever brought
against him the slightest charge of trickery or over
reaching, or any intimation that as a lawyer he was
ever accused of any practice at all out of keeping
either with his own personal dignity or the standards
of the bar. On the contrary, the praise of his con
temporaries emphasizes his integrity quite as often as
his ability.

As to the kind and quality of his excellence as a

1 Inventory of his estate, made, doubtless, very soon after his death. A
copy of this document was brought to light after the present work had been
begun. Ellsworth papers in the Public Library of the city of New York ;
"Memorial History of Hartford County," I, 331, 564.

THE BAR AND THE ASSEMBLY 35

lawyer, these attempts at portraiture agree fairly well
among themselves. They seem also to confirm his
own conclusion that he lacked imagination ; but in
other respects they by no means sustain his extremely
modest estimate of his gifts. Dr. John Trumbull, the
author of " McFingal," who was doubtless the best wit in
the colony, if not in all the colonies, and hardly there
fore the sort of man to grow enthusiastic over a dis
play of mere unillumined energy in oratory, and who
was himself a lawyer and a judge, has left a good
comparison between the two foremost advocates of the
Hartford bar. " When Dr. Johnson rose to address
a jury," he writes, " the polish and beauty of his style, his
smooth and easy flow of words, the sweet, melodious
voice, accompanied with a grace and elegance of person
and manners, delighted and charmed his hearers. But
when Judge Ellsworth rose, the Jury soon began to
drop their heads, and winking, looked up through
their eyebrows, while the thunders of his eloquence
seemed to drive every idea into their skulls in spite
of them."1 Johnson, though now but little known,
was no mean figure to be thus put forward first in
order to a climacteric contrast. The son of the first
president of King's College, and himself the holder
of degrees from Yale, Harvard, and Oxford, he had
enjoyed and profited by still another opportunity for
acquiring culture ; for he had represented Connecticut
several years at court. It is said that while he lived
in London he was admitted to that remarkable circle
which gathered round another and more famous Dr.
Samuel Johnson, and won for himself the great man's
distinguished approval. Active in the Stamp Act

1 Flanders, 67.

36 OLIVER ELLSWORTH

Congress, and throughout that phase of the colonies'
resistance, he was perhaps the foremost man in Con
necticut until his unwillingness to go the lengths of an
attempt at complete independence left him a few
years in retirement. His work in the constructive
period after the war was second only to Roger
Sherman's and Ellsworth's.1

To the less restrained of his and Ellsworth's eulo
gists, he appeared always as the Cicero to the other's
Demosthenes. It is more important to be sure of the
real sources of the strength of a public character than
to point out his limitations. Stilted, therefore, as this
praise of the two colonial lawyers may be, we need
not reject the reasonable inference that Johnson was
a remarkably pleasing and accomplished public speaker,
and that Ellsworth excelled in a style of oratory that was
unadorned, headlong, and compelling. Dr. Timothy
Dwight, sometime president of Yale, who tells us that
Ellsworth was his "particular friend," described his
oratory in these words : " His eloquence, and indeed
almost every other part of his character, was peculiar.
Always possessed of his own scheme of thought con
cerning every subject which he discussed, ardent, bold,
intense, and masterly, his conceptions were just and
great ; his reasonings invincible ; his images glowing ;
his sentiments noble ; his phraseology remarkable for
its clearness and precision ; his style concise and strong ;
and his utterance vehement and overwhelming. Uni
versally, his eloquence strongly resembled that of
Demosthenes; grave, forcible, and inclined to sever
ity." Elsewhere, the same authority describes him as

1 " William Samuel Johnson and the Making of the Constitution," by
W. G. Andrews ; E. E. Beardsley's " Life and Times of Johnson."

THE BAR AND THE ASSEMBLY 37

in his addresses to the jury "frequently pouring out
floods of eloquence which were irresistible and over
whelming."1 To this, quoted by Wood, an unknown
marginal commentator on Wood's Ms. makes answer,
" Dwight must have drawn on his imagination, for
Ellsworth was by no means an eloquent speaker."
But Wood rejoins, " Dwight was not mistaken, as
can be abundantly shown."

Fortunately, however, there is at least one charac
terization of the man and the advocate, drawn from
contemporary sources, which is convincingly discrimi
nating and restrained. A few years after the death
of Ellsworth, there was published in the Analectic
Magazine*1 an appreciation which is probably still the
best portrayal of his intellectual character and methods.

" He had not," according to this intelligent eulogist,
" laid a very deep foundation either of general or pro
fessional learning; but the native vigor of his mind
supplied every deficiency ; the rapidity of his concep
tions made up for the want of previous knowledge ;
the diligent study of the cases which arose in actual
business stored his mind with principles ; whatever
was thus acquired was firmly rooted in his memory ;
and thus, as he became eminent, he grew learned.

" The whole powers of his mind were applied with
unremitted attention to the business of his profession,
and those public duties in which he was occasionally
engaged. Capable of great application, and constitu
tionally full of ardor, he pursued every subject to

1 D wight's " Travels in New England," I, 301, 303.

2 May, 1814, Vol. Ill, pp. 382-403. The author is supposed to have
been Gulian C. Verplanck of New York, a grandson of William Samuel
Johnson.

38 OLIVER ELLSWORTH

which he applied himself with a strong and constant
interest which never suffered his mind to flag or grow
torpid with listless indolence. But his ardor was
always under the guidance of sober reason. His
cold and colorless imagination never led him astray
from the realities of life to wanton in the gay visions
of fancy ; and his attention was seldom distracted by
that general literary curiosity which so often beguiles
the man of genius away from his destined pursuit, to
waste his powers in studies of no immediate utility.
At the same time, his unblemished character, his uni
form prudence and regularity of conduct, acquired him
the general confidence and respect of his fellow-citizens
— a people in a remarkable degree attentive to all the
decorum and decencies of civilized life."

It is the old story, perhaps, of the will's supremacy.
It is useless to recur to the contrast and controversy
between the men who succeed and accomplish by
reason chiefly of what is commonly called character
and the men who, with finer instincts and keener
susceptibilities and rarer talents, too often end in
failure, leaving the world no better for their lives. To
most readers, Ellsworth's life would doubtless be a
more alluring study if, instead of exhibiting such a
steady growth in tasks and competence, he and his
career were found irregularly brilliant, appealing, with
a series of ups and downs, of faults and atonements,
to the whole wide range of our human sympathies. It
is only in a sober mood, with daylight senses, that one
can follow with interest and with understanding the
course of such a life. The guiding genius of it all
was an English constancy, quickened with a New
England keenness, an American readiness and capacity

THE BAR AND THE ASSEMBLY 39

for change. It is impossible to read those descriptions
which his contemporaries have made of him without
reflecting that nearly all they say of him would apply,
with but slight abatements, to hundreds of other New
England men, unknown or famous. His distinction
consists chiefly in the enlargement of powers and
merits which are not uncommon in themselves.

Yet I think we should be mistaken if we were led to
believe that Ellsworth was commonplace either in his
parts or his personality. Were we to search out the
one human characteristic or endowment that has
achieved the most, for good and evil, in the whole
history of mankind, we should doubtless fix on that
one central gift of ardor, energy, purpose, which was
surely his. Nothing else will so invariably, so finally,
command our homage. It stands, better than all the
other gifts and powers put together, the test of actual
results. Unlike the others, it is most impressive, not
in first encounters, but through long acquaintance and
the fullest trial. Men of many or of brilliant gifts may
quickly stir our admiration, or, if we are rivals, afflict
us with immediate discomfitures. The man with this
gift, particularly if in his case it is not advertised
or indexed by more obvious superiorities, has always,
in his conflicts and rivalries, the advantage of a strength
concealed. One does not guess the lengths of effort
he will go to, the perfect use that he will make of all
his forces. In all his engagements he will present to
his more brilliant adversaries a front like that the
sober infantry of Sparta showed so often to the varied
and imposing line of the Athenians — an opposition
more daunting than war-songs and banners. Like the
Spartans at Mantinea, such men do not need to

40 OLIVER ELLSWORTH

hearten themselves with telling over the reasons why
they ought to win their battles; they need only
remember, what all brave spirits know, that battles are
not won till they are fought, that tasks are not accom
plished by merely proving one's ability to do them.1

But Ellsworth had also a quickness of perception,
a swiftness in the use of all his mental powers, which
may well be accounted as of itself a talent — and a
talent of the highest value. Without it, for instance,
he could hardly have handled at all the great mass of
his professional work, interrupted as it was with public
demands upon his time. His rule, to go at once to
the main points of his cases, or of whatever matter he
had in hand, seems, and doubtless was, as he formed
it, a counsel of modesty ; but is it not a rule which we
should all most gladly follow if we could ? He excelled
particularly in exposition. His argument was fre
quently convincing when he had done no more than
merely state the case. More than one observer of his
life told Wood of this peculiar excellence of his oratory.
" Mr. Ellsworth's clear and vivid apprehension and
lucid statement of the facts involved in a case would
frequently," they declared, " throw out a blaze of light
that instantly dispelled all doubts and difficulties, to
the surprise and admiration of every attendant." If
he was systematic and cautious, he was no mere plod
der in his work.

Nor was he in fact wanting in the power of com
manding respect and attention for his own sake, apart
from his work.

For that effect, also, in the immediate contact
with one's fellows, the central gift is probably the

1 See Thucydides, " Peloponnesian War," V, 69.

THE BAR AND THE ASSEMBLY 41

best of all, particularly as the possessor of it advances
in achievement and in self-confidence. Aided as it
was in Ellsworth's case by an uncommon physical
endowment, it was enough to make him, according to
one perhaps too glowing eulogist, a person of extraor
dinary presence. It is Dr. Dwight who on this point
is again the loudest in his praise. " Mr. Ellsworth,"
he writes, " was formed to be a great man. His pres
ence was tall, dignified, and commanding; and his
manners, though wholly destitute of haughtiness and
arrogance, were such as irresistibly to excite in others,
wherever he was present, the sense of inferiority. His
very attitude inspired awe." Dwight adds that " in
every assembly, public and private, in which he ap
peared, after he had fairly entered public life, there
was probably no man, when Washington was not pres
ent, who would be more readily acknowledged to hold
the first character."1 Dwight, no doubt, was partial
to Ellsworth both as a Connecticut worthy, and as his
personal friend ; but the tribute is sustained by other
men's descriptions. Hollister, for instance, who in
writing his " History of Connecticut " seems to have
drawn freely on the recollections of his elders, makes
a very similar portrait.

" Ellsworth," he says, " was logical and argumenta
tive in his mode of illustration, and possessed a pecul
iar style of condensed statement, through which there
ran, like a magnetic current, the most delicate train of
analytical reasoning. His eloquence was wonderfully
persuasive, too, and his manner solemn and impres
sive. His style was decidedly of the patrician school,
and yet so simple that a child could follow without

1 Dwighfs " Travels in New England," I, 302.

42 OLIVER ELLSWORTH

difficulty the steps by which he arrived at his conclu
sions. That he also had the best judicial powers that
were known in that elder age of our republic will
not be disputed. Add to these qualities an eye that
seemed to look an adversary through, a forehead and
features so bold and marked as to promise all that his
rich, deep voice, expressive gestures and moral fear
lessness made good, add above all that reserved force
of scornful satire, so seldom employed, but so like the
destructive movements of a corps of flying artillery,
and the reader has an outline of the strength and
majesty of Ellsworth."1

All alike bear testimony that Ellsworth's impres-
siveness was never marred by haughtiness or an over
bearing way with lesser personages. His manners,
though perfectly dignified, were also perfectly simple
and democratic.

To attempt in this fashion a character of the man
while he is still at the threshold of his career is
doubtless a somewhat unusual proceeding. It is
better, as a rule, to disclose a personality with deeds and
incidents, to let the man's life make plain his quality.
But that preferred biographic method is peculiarly
hard to apply to Ellsworth, partly for reasons that
have already been suggested. In his activities, as well
as in his meagre writings and his all-too-few recorded
utterances, there is too little of self-revelation, too little
of what we can be sure was characteristic. It is nec
essary, if we would keep in mind any distinct and
personal vision of him, to use at once the help we
have at hand from men who saw him in the flesh.
Moreover, his tasks were often so momentous, those

1 G. H. Hollister, "History of Connecticut " (1855), JI> 44!-442-

THE BAR AND THE ASSEMBLY 43

which were constructive in their nature have proved so
lastingly, so increasingly important, that we are moved
to use what knowledge we can get of his character as a
means to explain his achievements and to judge how
great his part was in his collaborations with other
statesmen, instead of treating his work as material
to interpret him. There are few lives in which what
may be called the public values so outweigh the
personal.

It was doubtless his growing reputation as a lawyer
and his membership in the Assembly that caused him
to be drawn at once into the stirring activities of the
great year 1775, and determined what his part in them
should be. Of his part in the patriot movement up to
this time little is recorded. It is stated that he was for
a while a member of the militia or of some other vol
unteer force, and that he was once or twice called into
the field, though never engaged in any action.1 But
when or where he served is no better known than when
or where he was earlier engaged in school-teaching.
Wood says merely that his service was in the militia
during the Revolutionary War, when the state was
threatened with invasion. It does appear, however,
that he was from the first thoroughly in sympathy with
the popular feeling and early committed to the move
ment of resistance. When the crisis came, he would
have been cold indeed if for any reason but Tory con
victions he had stood apart from his kindred and his
neighbors.

The whole story, if one reviews it afresh from the
point of view of manhood, which is so very different
from the childish acceptance of heroism and virtue and

1 Flanders, 68.

44 OLIVER ELLSWORTH

devotion as matters of course with which one heard it
first, remains, surely, one of the most inspiring and
astounding ever told. The Revolutionary movement,
with all that has ever been unearthed of a nature to be
little its motives and its men, was singularly noble and
singularly wise. Much of what is most highly vaunted
in our more recent past seems, by comparison, in spite
of its bigness, vapid, showy, and half-hearted. Save
only in the nobler passages of the fight over slavery, we
find nowhere else in our history such wonderful sincer
ity and simplicity, such recklessness of all but high con
siderations, such courage of convictions, so childlike
and magnificent a confidence in principle. The best
virtue that has yet appeared in our national life and
character was all encompassed in the flame of that
first enthusiasm. No civic or citizenly quality we now
possess surpasses, or could surpass, the spirit of nation
ality that leaped alive in all the little towns and cities
and plantations from New Hampshire to Georgia
when the obstinate king and the vain ministry, instead
of thanking their stars that they were safely past the
trouble over the Stamp Act, blundered on to the tea
tax and the Boston Port Bill.

None of the colonies caught fire more quickly
than Connecticut. The little province proved a
veritable tinder-box. Ten years before, her govern
ment had responded to the first announcement of the
Stamp Act programme with the promptest and strong
est of remonstrances. Jared Ingersoll, who was at
once commissioned a special agent at London, prob
ably accomplished more than any other of the agents
there by way of inducing the ministry to soften the
intended blow. Yet when he himself returned as the

THE BAR AND THE ASSEMBLY 45

Stamp Master of the colony, an uprising of the people,
bigger and more determined than he or any other had
foreseen, forced him, in the most spectacular manner,
to resign this office. The Sons of Liberty, headed by
Israel Putnam, were strong in all the towns of the
colony ; it has even been claimed that the order origi
nated there. In Connecticut's earlier controversies
with the home government, her course, though reso
lute, had been singularly cautious and respectful. But
from this time not even Massachusetts was more openly
courageous. Roger Sherman, a lawyer-merchant of
New Haven, " between fifty and sixty, a solid, sensible
man," took stronger ground than even Otis or John
Adams on the right of Great Britain to control the
trade of the colonies.1 Sherman had been more or
less engaged with public affairs for twenty years ; but
now, retired from business, he gave his whole time to
the service of his colony and the cause of the colonies
in general. In all the general measures of protest
and resistance against those acts of the home govern
ment which were deemed oppressive, the government,
the towns, and the people of Connecticut were eager
and enthusiastic. Watching with intense concern the
course of events in Massachusetts, they expressed by
words and acts that were anything but uncertain their
sympathy and anger. When Townshend's act to tax
the colonies was passed, Connecticut merchants en
tered generally into the non-importation agreement,
and seem to have kept it better than their neighbors
of New York. In 1770, after many indignant town

1 John Adams's Diary, II, 343. See also Boutell's " Sherman," 63, 64.
Perhaps the best account of Connecticut in the Revolution is still the old-
fashioned but readable narrative of Hollister, in his " History of Connecticut."

46 OLIVER ELLSWORTH

meetings, — that perfect means of popular agitation, —
delegates from all the towns met at New Haven to
concert a programme of non-importation and the build
ing up of home manufactures. The sentiment against
the use of articles imported from Great Britain rose
to violent heights and expressed itself in fairly comical
ways. In 1770 also, Jonathan Trumbull entered
upon the office of governor, which by successive
annual elections he continued to hold for fourteen
years. Men like Jefferson and Henry and Rutledge
held the same office in other colonies at different
times in the Revolutionary era, but Trumbull, for his
conduct of the office itself, doubtless outranks them
all. He was not merely in sympathy with the popular
movement; he was a bold and devoted leader of it/
Not even Putnam went beyond him in courage, and
he exhibited, moreover, a statesmanlike wisdom and
shrewdness that was equal to his enthusiasm. He
came in time to enjoy in an extraordinary degree the
confidence and affection of Washington, and felt, as
few men did, the chieftain's strong arm lean upon
him for support. It was Washington who gave him
his sobriquet of " Brother Jonathan."

Save that the actual collision came first at Boston,
there was nothing to distinguish the resistance of Con
necticut from that of Massachusetts. If possible, the
towns of Connecticut were in even greater haste than
those of Massachusetts to proclaim that Boston's fight
was their fight. When the ministry, abandoning all
the duties except those on tea, made its attempt to
force tea into the colonial ports, Connecticut people
had no opportunity for a tea party of their own ; but
when General Gage arrived at Boston to carry out the

THE BAR AND THE ASSEMBLY 47

Port Bill and the other force bills of 1774, the Con
necticut towns came to Boston's rescue with generous
contributions and the most open sympathy, and the
Connecticut Assembly, being then in session, took
the lead in calling for a continental congress. The
excitement rose to fever heat as one after another the
fateful moves were made by Gage on the one hand
and Adams and Hancock and Warren on the other.
At last came the runners with the tidings of blood
shed at Lexington and Concord, and Putnam, drop
ping his historic plough in its historically unfinished
furrow, was for a moment in consultation with Trum-
bull at Lebanon, and then away on his ride of a
hundred miles and more in eighteen hours to Con
cord, the militia following him, first in little squads,
then in companies, and then in regiments. Arnold,
the New Haven storekeeper, seizing without author
ity the powder he needed for his company, was gone,
too, on his way to Cambridge and Ticonderoga and
Quebec, and immortality and infamy. The plan of
the attack on Ticonderoga and Crown Point was
instantly conceived at Hartford. The means to fur
nish the expedition were subscribed by Connecticut
men. When it reached the Green Mountains, it was
joined there by Ethan Allen and others who were
themselves Connecticut men by birth. It was finally
paid for by the Connecticut Assembly.

That body was in session by the 26th of April,
nine days after the fighting in Massachusetts; and
the deputy from Windsor was at once engaged with
his fellows upon measures from which there could be
no retreat. They passed an embargo on food-stuffs ;
sent a committee to wait on Gage with a powerful

48 OLIVER ELLSWORTH

remonstrance from Governor Trumbull, and another
committee to look after supplies for those citizens
who were gone already to the relief of Massachusetts ;
commissioned runners to keep them informed of all
the new and startling happenings; organized one-
fourth of the militia into six full regiments, officered
them, and looked about for arms and powder to equip
them ; imposed new taxes to cover these preparations ;
and called on all the ministers, with their congrega
tions, to " cry mightily to God." l To supervise the
expenditures for all these warlike activities, they con
stituted a commission called the Committee of the
Pay Table, and one of the five members was Oliver
Ellsworth.2 It was perhaps because of this, his first
Revolutionary task, that his name does not thereafter
appear in the rolls of the Assembly until 1779. At
the May session of that year he was again a deputy,
this time for Hartford ; but at the same session he
was chosen a member of the Council of Safety, a
board of advisers which shared with the governor
the responsibility for all war measures, and at the
October session he did not attend.3

The work of the Pay Table seems to have steadily
increased from the beginning. It was then empowered
to audit and discharge all accounts incurred in the
defence of the colony, and ordered to proceed accord
ing to such directions and rules as the Assembly
should pass from time to time ; and from time to time
the Assembly did pass votes of a nature to enlarge its
duties and responsibilities. It became a sort of fiscal

1 Colonial Records of Connecticut, XIV, 413-441.

2 Ibid., 431, for resolution.

8 State Records of Connecticut, II, 249, 287.

THE BAR AND THE ASSEMBLY 49

war board, in constant correspondence with all com
missaries and other persons who had to do with paying
or supplying Connecticut troops and militia. Perhaps
the earliest letters of Ellsworth now extant are notes
to Governor Trumbull about particular claims — dry,
business communications which doubtless fairly reflect
the tedious and prosaic nature of the work.1 There is
no sign, however, that he ever complained of it ; and
there is evidence that he did it faithfully and well, for
it was he who was chosen for certain important mis
sions that were necessary parts of it. In February,
1776, the Council of Safety having voted that one of
the committee be sent to the Commander-in-Chief of
the Continental Army to request repayment of moneys
advanced by Connecticut to her contingent in his
command, it was Ellsworth who went,2 and thus, per
haps, he got his first sight of Washington, who was
still at Cambridge, laying siege to Boston. Ten days
later, according to the minutes of the Council, " Mr.
Ellsworth, having been to Genl. Washington by order
etc., to obtain the money lately paid by our commit
tee to the soldiers etc., and not able to get it, is re
turned and present and conversed with about it etc.,"
— and it is voted that he or some other apply to Con
gress.3 It does not appear that he went to Philadel
phia, but in May he was sent to General Schuyler to
seek recovery of the sums already paid by Connecticut
to troops employed in Canada.4 Again, in the follow
ing December, while the first campaign in the Jerseys

1 Sept. 18, 1776; Dec. i, Dec. 6, 1777; Trumbull Papers in Library of
Massachusetts Historical Society.

2 Colonial Records of Connecticut, XV, 235.

8 Ibid., 238. 4 Ibid., 314-315.

50 OLIVER ELLSWORTH

was in progress, he went with several others into the
Western counties to raise reinforcements for General
Lee — one of the many extraordinary exertions of
Trumbull and the people of Connecticut in the com
mon cause.1 Ten years later, when debate arose in
a very great company over the ways in which the
colonies had borne their several shares of the com
mon burden, Ellsworth's full knowledge of the facts
enabled him to point out, with quiet assurance, that
Connecticut had done more and paid more, according
to her numbers and her wealth, than any of the states
whose representatives dared to criticise her. It is
also to be remembered that this first work of his, petty
and local though it seemed, was yet of a kind that
was quite as vital to the success of the cause as any of
the stirring and heroic things Arnold and Putnam
were doing in the field. If it had only been as well
done everywhere as it was by Connecticut and her Pay
Table, the victory might have come sooner, and the
struggle would have left behind it fewer unpaid bills
and less derangement of the currency. Such devo
tion as Ellsworth showed in this employment was
rarer than the soldiers' skill and bravery. But it was
also, no doubt, a better preparation for his later tasks
in statesmanship than soldiering could possibly have
been.

In 1779, he became a member of the Council of
Safety, and there his duties were much like those
assigned to the Board of War, the chief executive arm

1 State Records of Connecticut, I, 109. See also, for his services on the
Pay Table, ibid., 183. In the Trumbull collection there is a letter from
Ellsworth and Payne to Governor Trumbull, dated at Windsor, July 10,
1 779, urgmg him to procure artillery for the militia, to resist an impending
invasion of the state.

THE BAR AND THE ASSEMBLY 51

of the Continental Congress. This may perhaps have
been a promotion; but two years earlier he had taken
another office, which probably demanded more of him
in time and energy than it paid for in either money or
distinction. In 1777, he was chosen state's attorney
for Hartford County.1 The office of king's attorney,
instituted in 1 704, had not during the colonial period
been eagerly sought after, though it does seem to have
been held by men of very good standing, and with the
change of name there came no lessening of the require
ments and no increase of pay. The fees were small,
the cases uninviting.

Yet Ellsworth continued to hold it until 1785, and
all we know of him is of a nature to make us feel sure
that he did not slight its duties on account of his own
private practice or his various other public offices. To
these, that same year, another and a higher was added.
At the October session, the Assembly resolved, "That
Roger Sherman, Eliphalet Dyer, Samuel Huntington,
Oliver Wolcott, Titus Hosmer, Oliver Ellsworth, and
Andrew Adams, Esqrs, be and they are hereby appointed
delegates to represent this State at the General Con
gress of the United States in America for the year
ensuing and until men be chosen and arrive in Con
gress if sitting ; any one or more of them who shall be
present in said Congress are hereby fully authorized and
impowered to represent this State in said Congress." 2
The next year, when Ellsworth was again in the list,
this peculiar commission was altered so as to require

1 None of his biographers gives the date correctly. Several sketches
would lead one to think that it was 1775. For the office, and Ellsworth's
incumbency, see "Judicial and Civil History of Connecticut," 157-162.

2 State Records, I, 417.

52 OLIVER ELLSWORTH

that not less than two nor more than four of the seven
delegates should be always in attendance.1 After 1 779,
the practice was for each town to nominate to the
Assembly twelve candidates. As the Assembly listed
the candidates in 1780 according to the number of
nominations each had received, the order of the names
may perhaps indicate the relative popularity of the men.
Ellsworth's was the first, and among those that followed
it were Roger Sherman's, Samuel and Benjamin Hunt-
ington's, and others scarcely less distinguished.2 He
was ree'lected every year until, in the autumn of 1783,
he declined to serve any longer.

1 State Records, II, 134-135. 2 Ibid., II, 264, 462.

CHAPTER III

THE CONTINENTAL CONGRESS

OCT. 8, 1778, " Mr. Ellsworth, a delegate from Con
necticut, attended and took his seat in Congress." l

Occupied at home with so many other duties, Ells
worth had suffered nearly a year to elapse from the
time of his first election before he took his place
among the civil rulers of the loosely joined Confeder
acy of States. It may be as well to give at once the
terms of his actual attendance. Six years a delegate,
he went to Philadelphia but five times in all. His
first service, lasting a little over four months, ended
Feb. 18,1779, when leave of absence was granted
him. Beginning again in the middle of December,
1779, his name appeared on the roll-calls until the
latter part of June, 1780; on July 3, another member
was appointed to his place on a standing committee.
Absent nearly a year, he reappeared at Philadelphia
at the beginning of June, 1 781, and sat until September.
Returning on Dec. 20, 1782, he sat until near the
close of January. His final attendance was from
April i until midsummer, I783.2

1 Journal of Continental Congress, IV, 583.

2 Roll of State Officers and General Assembly of Connecticut, pp. 459-
460; Journals of Continental Congress, V, 65, 451; VI, 103; VII, 118,
171, 177, 192-193; VIII, 45, in, 124, 170, 291. Letters of Ellsworth, in
the Trumbull collection and elsewhere, confirm certain of these dates. A
letter written from Philadelphia to his brother David is dated Jan. 9, 1778 ;
but it seems clear that this was a slip, Ellsworth forgetting that a new year

53

54 OLIVER ELLSWORTH

Unfortunately, this sort of spasmodic membership
was not exceptional. None of the states kept its full
quota in constant attendance. Even the great stand
ing committees, whose work was largely executive in
character, were subject to incessant changes in their
membership. It is no wonder that Washington,
after pointing out that short enlistments were the
cause of the worst embarrassments in the military
line, promptly added, " A great part of the embar
rassments in the civil flow from the same source."
So far as Congress alone was concerned, the practice
is partly attributable to economy; but it is also
partly attributable to the plain fact that the colonies,
though they had united in declaring and in striving
to achieve their independence, were as yet scarcely
started on the road to a real union, to nationality.
The members of Congress were delegates, hardly
representatives. They were responsible collectively
to their several states, rather than individually to
their constituents. They were held, in fact, to a
regular accounting with the governments of their
states. Ellsworth's letters from Philadelphia to Gov
ernor Trumbull might almost be despatches from an
ambassador to a secretary of state.1 Ordinarily, he and

was begun. Another letter to the same brother, written from Philadelphia
on Nov. 10, 1779, — more than a month before the Journal record of Ells
worth's second appearance in Congress, — is harder to explain. That he
was there and did not take his seat is scarcely credible. He speaks in the
letter of the ill health of his father, and the only conjecture I can offer is
that this or something else suddenly recalled him to Connecticut.

1 Most of these letters are among the Trumbull papers in the library of
the Massachusetts Historical Society, and have been printed in the Society's
"Collections," fifth series, IX, X, seventh series, II, III. By the kindness
of the Society's librarian, Dr. Samuel A. Green, I have been permitted to
use the originals.

THE CONTINENTAL CONGRESS 55

his colleagues for the time being collaborated in joint
epistles. All votes in the chamber were taken by
states, and a delegation evenly divided on any question
lost its vote altogether.

Nevertheless, Ellsworth's work in the Continental
Congress is not negligible, either from the point of
view of a biographer or in a broader study of the
times. It began before he went to Philadelphia.
Dec. n, 1777, Congress appointed a committee to
investigate the causes of the failure of an expedition
to Rhode Island, naming him one of the members,1
and Van Santvoord adds that he and two associates
took a mass of testimony and presented a report.2
But the report led to no further action. Congress
was doubtless far too busy with other expeditions to
carry out its announced purpose to account for all the
expeditions that had failed.

In the autumn of 1778, when Ellsworth went at last
to Philadelphia, the first fine ardors of the Revolution
were long since spent. Both sides had come to see
clearly the nature of the struggle, and that it was
bound to be long and difficult, whichever side might
win. For the leaders of the patriot cause there had
been many bitter disappointments : from the loss of
battles, from the falling away of the weaker-hearted in
their own party, from convincing proofs of the enemy's
superior strength in wealth and discipline and num
bers. But at least, on the other hand, the cause they
fought and worked for was now, by the Declaration of
Independence, and by many acts equally significant
and irrevocable, completely blazoned to the world.

1 Journals, III, 425-426, 444-445. There were five members.

2 Van Santvoord, 199.

56 OLIVER ELLSWORTH

They were no longer fighting for a mere redress of
grievances; they were trying to keep alive a new
member of the family of nations. France had already
recognized them, and was aiding them with money,
with ships, with soldiers. Nor had success in arms
been wholly wanting. Save the desperate counter-
strokes at Trenton and Princeton, Washington's
army, it is true, had never won a decided victory
in a pitched battle ; but Burgoyne and his army were
captives, and the grand strategy of the enemy for the
year 1777 had undeniably failed. Emerging the next
spring from his supreme ordeal at Valley Forge,
Washington had been cheered by the news of the
treaty with France, and then by Sir Henry Clinton's
evacuation of Philadelphia. In June, he had fought
at Monmouth a pitched battle which was at worst
indecisive, and which, but for the misconduct of
Charles Lee, might well have been a victory. That
he and his little armies could do no more was the
fault — so far as it was a fault at all — of the states,
which did not adequately recruit or supply them, and
of a central government which was still but little more
than a government by consent. The Articles of Con
federation, which would at least, so soon as they should
be ratified, give the authority of a written agreement
to such concessions of power as they made to Con
gress, had been laid before the legislatures of the
states ; but these were slow to ratify. Meanwhile,
through its standing committees, Congress was dis
charging as best it could the various functions of a
proper government ; and by requisitions on the states
and borrowing abroad it was doing what it could to
procure the means to keep the armies in the field.

THE CONTINENTAL CONGRESS 57

The Continental Congress, which had been, at its
first session, the ablest group of men ever gath
ered under one roof in America, had by this time
lost to the state governments and to foreign courts a
number of its most illustrious members. Franklin and
John Adams were in Europe. Jay and Jefferson and
Henry and John Rutledge were occupied with high
services to their several states. Washington, of course,
was in the field. At the first roll-call after Ellsworth
took his seat, only thirty-two delegates answered to
their names. But some of the names that were an
swered to would have shone in any list. To that
particular roll-call Samuel Adams and Gerry, Roger
Sherman, Dr. Witherspoon, Richard Henry Lee, Lau-
rens, and Drayton responded. Gouverneur Morris was
a member, though not then present, and, for a little
while longer, Robert Morris also. In a few weeks,
John Jay took his seat from New York.

It is doubtful, however, if any of these men sur
passed in wisdom, or in experience and influence, the
colleague whom Ellsworth found awaiting him, and
whose name is signed with his to several letters which
were despatched to Governor Trumbull in the next
few weeks. Roger Sherman was by this time a
veteran in the Continental politics, and we know that
Ellsworth profited to the full by the older statesman's
counsel and friendship. He once declared that he
had taken the character of Sherman for his model ;
and on this remark John Adams, it is said, made
comment that it was praise enough for both. They
worked together on many occasions for the interest
of Connecticut and the good of the whole country,
and though they frequently differed, and their names

58 OLIVER ELLSWORTH

appeared on opposite sides on various questions, no
jealousy or personal antagonism of any kind between
them ever came to light.

The dry and meagre Journals of the Congress reveal
but little of the human quality of the debates, which
were always secret. To read them seems a tiresome
and not a particularly profitable sort of historical delv
ing, until, dismissing the notion that our American
political system was "struck off at a given time by
the brain and purpose of man," l the student comes to
understand that he is groping among the roots of
institutions which are now grown to a colossal power
and reach. Ellsworth, for instance, soon received
assignments to three standing committees, which may
be regarded as the rudimentary forms of three great
departments of our present government. One was
the Marine Committee, which a little later became the
Board of Admiralty; by another change, its duties
were soon devolved upon a department of naval
affairs, headed by a secretary or manager, whose
counterpart under the Constitution is the Secretary of
the Navy. The second, already styled the Board of
Treasury, attained, through much the same succession
of changes, a like ancestral relationship to the present
Department of the Treasury. The third was the
Committee of Appeals; and that, it is now quite
clear, was the first forerunner of the present Supreme
Court of the United States; its work was the begin-

1 Gladstone, in "Kin beyond Sea." Yet Gladstone's famous sentence
is not deserving of the ridicule and the downright contradiction which it
has occasionally drawn forth. It is only by contrast with the British Con
stitution, " the most subtle organism which has proceeded from the womb
and the long gestation of progressive history," that he attributes to the
American Constitution such an instantaneous birth.

THE CONTINENTAL CONGRESS 59

ning of all our federal jurisprudence. In view of
what came after, Ellsworth's membership in it has
been singled out as the most significant fact of his
first term of service.

And the Journals, indeed, supply us with no great
mass of facts to choose from. They inform us that
he voted aye on two sets of resolutions, of a distinctly
New England flavor, and opposed mainly by delegates
from the South, proclaiming the necessity of a very
strict morality among a people fallen on such evil
times, and condemning in most pointed terms the
evil amusements of play-going, gaming, and horse-
racing.1 They also tell us how he voted on a few
other questions, none, however, of a nature to indi
cate very clearly his general views. With R. H. Lee
and Samuel Adams, he served on a special committee
to attend to a memorial from Governor Trumbull, call
ing attention to the unrewarded services and sacrifices
of his son, Colonel Joseph Trumbull, who had been
the commissary-general of the army.2 He was on
another special committee to look into certain seizures
of property at the time when Philadelphia was evacu
ated by the British ; 8 and he was also on the committee
which, after investigating fully Robert Morris's man
agement, through the firm of Morris and Willing, of
certain large purchases for the army, not merely ex
onerated Morris from all the charges against his
integrity, but praised him highly for ability and
patriotism.4 This report may very well have opened
the way for the later determination of Congress to put
Morris in control of the Continental finances. Per

1 Journals, IV, 590, 602-603. 8 Ibid., 614.

597. */*«/., V, 28, 49-51.

60 OLIVER ELLSWORTH

contra, when charges were brought against Benedict
Arnold, who was at this time in command at Phila
delphia, living beyond his means, consorting most
with an aristocratic and decidedly Tory set in the
society of the gayest of all colonial cities, and about
to be married to the beautiful daughter of a prominent
Tory family, Ellsworth voted against the motion to
postpone investigation.1 Another important assign
ment was to a committee of all the states, charged to
investigate the disputes among our agents abroad and
to consider the whole subject of our foreign relations.
When it reported, Congress voted to recall several of
our representatives at European courts and adopted
rules intended to prevent such disagreements and con
flicts of authority as that which had arisen between
Messrs. Silas Deane and Arthur Lee.2 His last
assignment was to a committee which conferred with
Washington about the office of inspector general.

Unfortunately, too, his letters do not greatly in
crease our knowledge of the clearly active and varied
part which he was already playing at Philadelphia.
The letters to Trumbull for this term of service are
all joint epistles; the first two signed by Sherman and
Ellsworth, the remainder, written after Sherman had
gone home, by Eliphalet Dyer, Ellsworth, and Jesse
Root. Like most joint letters, they are dry and matter-
of-fact; but if they had been written by Ellsworth
alone they would not, in all probability, have been
much more readable. Three or four letters which he
did write at this time to his younger brother, David,
have been preserved.8 The first of them begins with

1 Journals, V, 55. 2 Secret Journals of Congress (ed. of 1820), II, 517, 525.
3 For copies I am indebted to Mr. G. E. Taintor of Hartford.

THE CONTINENTAL CONGRESS 6 1

a " Dear Sir," and another " Sir," with a comma, pre
cedes, " your affectionate brother " at the end.

" Neither the business of Congress," it runs, '" nor
amusements of this gay City have been able to make
me forget my friends at Windsor. Among others of
them you in particular have my most constant re
membrance and continued good wishes. If in any
thing at this distance I can serve you, you will oblige
me by letting me know it. Do you want any (thing)
that I could purchase for you here ? Almost every
thing is to be bo't here tho' at exorbitant prices. A
principal object under consideration of Congress at
present is if possible to establish the credit of the
currency, and so to reduce prices. The best time to
have done this is indeed past. I do not, however,
despair of its being affected yet. My little family I
suppose are now at Windsor and doubt not they have
your particular care to make them comfortable in my
absence, and the rather as you have none of your own
yet to be concerned for. I desire a suitable remem
brance to all our family."

It is not a particularly unfavorable specimen of
Ellsworth's epistolary style during these years of ab
sorbing work. As he grew older, more signs of cul
ture began to appear in his rare letters, and also — for
in this, too, he was a New England type — a bit more
of himself and his human interests and affections, and
even, here and there, mild displays of humor. But the
Revolutionary statesmen were not, as a rule, amusing
correspondents. They strike one as an uncommonly
serious-minded and self-contained group of men.
Such high spirits as Gouverneur Morris sometimes
displayed were rare among them. Ellsworth's allusion

62 OLIVER ELLSWORTH

to his brother's lack of any family of his own may
have been meant for a sly hint of a suspicion that the
other was soon to be married. A little later, the fact
of an engagement being announced, he wrote his con
gratulations. But the nearest he came to a joke on
an occasion which might be considered somewhat
favorable for a bit of teasing was to wish that Goshen,
the town in which the young woman lived, might
prove to be flowing in milk and honey. " Everybody,"
he again breaks off from his brother's affair to say, " is
now thinking and talking about the paper currency."
No doubt, the pleasure-loving set in Philadelphia,
which Arnold preferred to his more sober Whig
acquaintance, found Ellsworth and his fellows less to
their liking than Andre and the other young English
officers whom these busy patriots had displaced.

The letters to Trumbull also are largely devoted
to the currency. That subject, and the almost equally
•discouraging delay of the states in ratifying the arti
cles, were at this time causing the greatest anxiety
among all thoughtful Whigs. The Continental issues
of paper money had depreciated to such a point that
it was seen clearly something radical must be done to
give them higher value, or else some other medium
must be contrived. Meanwhile, certain states which
had no claims to Western lands, led by Maryland, were
insisting that the states which did have such claims
ought to surrender them to the general government,
and were making that concession a condition of their
acceptance of the articles.

"The affair of finance," wrote Sherman and Ells
worth in October,1 " is yet unfinished ; the arrange-

1 Oct. 15, 1778, Trumbull Papers.

THE CONTINENTAL CONGRESS 63

ment of the Board of Treasury is determined on, but
the officers are not yet appointed — to-morrow is as
signed for their nomination. The members of Con
gress are united in the great object of securing the
liberties and independence of the states, but are some
times divided in opinion about particular measures.

" The Assembly of New Jersey in their late session
did not ratify the confederation, nor has it been done
by Maryland and Delaware States. These and some
other of the states are dissatisfied that the Western un-
granted lands should be claimed by particular states,
which they think ought to be the common interest of
the United States ; they being defended at the com
mon expense. They further say that if some provision
is not now made for securing lands for the troops who
serve during the war, they shall have to pay large
sums to the states who claim the vacant lands to sup
ply their quotas of the troops.

" Perhaps if the Assembly of Connecticut should re
solve to make grants to their own troops, and those
raised by the States of Rhode Island, New Jersey,
Delaware and Maryland, in the lands south of Lake
Erie, and west of the lands in controversy with Penn
sylvania,1 free of any purchase or quitrents to the
government of Connecticut, it might be satisfactory to
those states, and be no damage to the State of Con
necticut. A tract of thirty miles east and west across
the state would be sufficient for the purpose, and that
being settled under good regulations would enhance

1 Meaning the Susquehanna lands, claimed by both Connecticut and
Pennsylvania ; the dispute was now pending before a tribunal established
by Congress. "The lands south of Lake Erie" included, of course, the
region later known as the Connecticut Western Reserve.

64 OLIVER ELLSWORTH

the value of the rest. These could not be claimed as
crown lands, both the fee and jurisdiction having been
granted to the Governor and Company of Con
necticut."

This was doubtless one of the first suggestions
looking to that qualified cession of her Western
claims which Connecticut made a few years later. It
was also with gifts of Western lands that the state
finally made compensation to her soldiers and to
citizens who had suffered losses during the war.

In January, Trumbull having made inquiries about
the progress of confederation, Ellsworth, Dyer, and
Root replied:1 "We have only to answer that the
States of Maryland and Delaware have not yet acceded,
and we are waiting with impatience for their union,
and as the articles drawn comprehend the thirteen
states jointly, it is at least a doubt whether the assent
already obtained from eleven states is not founded on
the joint consent of the whole thirteen, and unless the
remaining two join, the whole is void, and it will make
it necessary to send back to each state for their appro
bation, if no more than eleven states unite in the con
federation, which would take up much time, besides the
inconvenience which might attend, therefore are still
waiting in hopes of the compliance of the other two."

Early in February, they wrote to the governor that
only Maryland now held out ; but the little state, as the
event proved, was courageous and resolved enough
to hold out two years longer and until, by extorting
from the claimant states the cessions she demanded,
she had accomplished for them all a long step toward
the real union they were all so sadly in need of.

1 Jan. 4, 1779, Trumbull Papers.

THE CONTINENTAL CONGRESS 65

As to the finances, the Connecticut delegates had
the pleasure to inform the governor, early in Novem
ber, that his son had been unanimously chosen to the
head of the new arrangement of the treasury ; and at
the beginning of the new year they transmitted the
measures adopted by Congress " to relieve its sinking
credit, and possibly, gradually to appreciate its value.
A portion of each day," they added, " was set apart for
that purpose, and was not closed till Saturday night
last. We thought it prudent to retain Brown 1 till he
could transmit to you the proceedings of Congress on
that subject, lest his return, without any intelligence,
might fix the impression on the minds of the people
that Congress was only amusing them with bare pre
tences, while in fact they meant to have the bills die
in the possessors' hands." Detaining the messenger
another day, they sent on the apportionment of a tax
of fifteen million dollars which Congress had voted to
request the states to raise. Connecticut's quota was
one million seven hundred thousand dollars, and her
delegates pointed out that it could be paid more easily
at once, while the Continental bills were sunk so low,
than later, when, as it was hoped, they would rise in
value. Of other not unimportant matters they also
wrote, and always both with ardent patriotism and
good common sense ; and from time to time they com
municated tidings, from various quarters, of moment
to the great cause.

But there is nothing of the Committee of Appeals.
It is quite probable that Ellsworth himself did not
at first divine that of all his duties in Congress

1 A messenger who was constantly travelling backward and forward
between Philadelphia and Hartford.

66 OLIVER ELLSWORTH

this was the most distinguished. It may well have
taken him years to perceive how truly constructive
was the work which he and his fellow-committeemen
soon had the chance to do. He does not seem to
have moved very fast in the direction of federalism
and the advocacy of a strong central government.
Perhaps the zeal of his own state, up to this time, in
all that pertained to the cause, kept him from seeing
how inadequate to the management of Continental
affairs the independent action of thirteen states must
in the long run prove.

As to the necessity for a federal court or courts to
sit upon cases which it would be obviously unfair to
submit, for final decision, to the courts of any one state,
only the actual coming up of such cases, and not the
forethought of any state or statesman, first made it
plain. One such controversy was that which arose be
tween Connecticut and Pennsylvania over the owner
ship of the Susquehanna country. But cases of the
class to which this belonged were not numerous enough
to create of themselves a clear necessity for a perma
nent tribunal. The system of privateering which Con
gress early authorized, and the beginning of a navy
which it accomplished, soon, however, led to disagree
ments that were numerous, and clearly of a nature to
demand adjudication by some Continental court.

It was Washington himself who first brought the
subject before the Congress. Writing from Cambridge
in November, 1775, he called attention to a number of
prize cases that had already been brought before him,
and to an act of the Provincial Assembly of Massa
chusetts establishing a Court of Admiralty.1 "Should

1 Sparks, "Writings of Washington," III, 154-155.

THE CONTINENTAL CONGRESS 67

not a court," he asked, " be established by authority of
Congress, to take cognizance of prizes made by the
Continental vessels ? " Congress at once referred the
suggestion to a very strong committee, and in accord
ance with its report advised all the colonies to estab
lish courts for cases of capture. It was also resolved
" That in all cases an appeal shall be allowed to the
Congress, or such person or persons as they shall
appoint for the tryal of appeals."

Here was a clear assumption of a distinctly national
judicial authority. But when the resolutions were
sent to Washington he remarked, naturally enough,
that to make them complete a court must actually be
established. Within a short time, all the colonies but
New York had followed the example of Massachusetts.
But when, in August, 1776, the first appeal came in,
Congress hesitated and postponed, and ended by
merely referring it to a special committee to decide.
Seven cases were handled in this fashion. Finally,
on Jan. 30, 1777, a standing committee of six was
appointed " to hear and determine upon appeals
against sentences passed on libels in courts of admi
ralty in the several states, agreeable to the resolutions
of Congress.", One of the six was Sherman. In May
following, this committee was discharged, and a new
committee of five appointed in its place. By the time
Ellsworth became a member, thirty-eight appeals had
been disposed of, and there had been no resistance
to the authority of Congress.1 The committee sat

1 J. Franklin Jameson, The Predecessor of the Supreme Court, in his
"Essays on the Constitutional History of the United States"; J. C. Ban
croft Davis, 131 U. S. Reports, Appendix ; Sparks, "Writings of Washing
ton," III, 197; Journals of Congress, III, 43, 174.

68 OLIVER ELLSWORTH

in the State House at Philadelphia, and appeals were
coming in regularly. But when he had been about
a month a member one was received which led very
quickly to a questioning of the authority of the com
mittee and of Congress. The cause is therefore de
servedly celebrated, and Ellsworth's sitting on the
somewhat anomalous tribunal which tried it may well
be accounted one of the accidents which help to shape
even the least haphazard of careers.

Gideon Olmstead and others, Connecticut men,
being captured by the enemy, had been put on
board the British sloop Active, bound from Jamaica
to New York. During the voyage, they rose against
the master and crew, overpowered them, confined them
in the cabin, and steered for Egg Harbor, in New Jer
sey. When they were in sight of port, the brig Con
vention, belonging to Pennsylvania, Captain Houston
commander, took possession of the Active and brought
her to Philadelphia, where Houston libelled her before
, the Pennsylvania Court of Admiralty as lawful prize
to the Convention. Olmstead, for himself and his
fellows, interposed a claim to cargo and vessel. The
cause was tried before a jury, and it was decided
that Olmstead and his party were entitled to one-
fourth of the value of the prize, and that the other
claimants were entitled to the remaining three-fourths.
The Connecticut men appealed to Congress, the case
was referred to the committee, and the appeal was
heard on December 15. After a full discussion, the
judgment of the state court was reversed. The
Active was adjudged to be the lawful prize of Olm
stead and his companions, and the case remanded
to the state court, which was directed to execute the

THE CONTINENTAL CONGRESS 69

decree. The Pennsylvania judge acknowledged the
committee's authority, but was unwilling to disregard
the jury's award. Instead, he ordered the marshal to
sell the sloop and cargo, and bring the proceeds into
court. The Connecticut claimants thereupon moved
the committee for an order to the marshal to execute
its decree. This motion was pending when the com
mittee, receiving a warning from Benedict Arnold that
it must act quickly if it would assert its authority, and
urged also by the claimants, assembled one morning
at eight o'clock and granted an injunction to restrain
the marshal from paying into the judge's hands the
sum obtained by the sale. The injunction was, how
ever, disregarded. In this way there arose the first
clear conflict between the judicial authority of a state
and of the United States.

The committee found itself as powerless to enforce
its decree as Congress was to enforce its requisitions.
Fearing to endanger the public peace by prolonging
the controversy, it merely entered in its minutes that
it would take no further action in the matter " until
the authority of the court be so settled as to give full
efficacy to their decrees and process."

But this was not the end of the case. Nearly thirty
years later it came in another form before John Mar
shall and his associate justices of the Supreme Court
of the United States, and there was another collision
with the authorities of Pennsylvania before the deci
sion which they rendered, sustaining the committee,
was finally carried into effect.1 The prize money had
been given into the keeping of Rittenhouse, the Phila
delphia banker, and at his death it passed into the

1 United States vs. Peters, 5 Cranch's Reports, 115.

70 OLIVER ELLSWORTH

keeping of his executrix. In 1802, Olmstead and
others brought suit against the executrix in the
United States Circuit Court for Pennsylvania. The
judge, Peters, decided in their favor; but the Penn
sylvania legislature ordered a counter suit to be
brought in a state court and charged the governor
to protect the executrix. The plaintiffs thereupon
applied to the Supreme Court for a mandamus, and
a United States marshal, evading the guard of militia
set about the house of the executrix, which the popu
lace had nicknamed " Castle Rittenhouse," succeeded
in enforcing it.

Nor was this the end of the committee. When it
rendered its report, Congress referred the matter first
to a special committee and then to a committee of the
whole house. It was debated for two entire days, and
a series of resolves were passed, over the opposition of
the Pennsylvania delegates, insisting that Congress
and the committee were within their powers in all
that they had done. A committee was also appointed
to confer with a committee of the Pennsylvania Assem
bly, and the resolves were later transmitted to the
legislatures of all the states, that they might "take
effectual measures for conforming therewith." 1 Sev
eral states did make formal concession of the right of
appeal to Congress in cases of capture.

Ellsworth had left before these steps were taken,
but he was back in his seat and again a member of
the committee when the next stage of this institu
tional development was reached. That was in Janu
ary, 1780, when Congress, finally taking the advice of
Washington, resolved " That a court be established

1 Journals, V, 43, 86-90, 217-222.

THE CONTINENTAL CONGRESS 71

for the trial of all appeals from the courts of admiralty
in these United States, in cases of capture, to consist
of three judges, appointed and commissioned by Con
gress." A week later, three able lawyers were named
for this first federal court, one of them Ellsworth's
colleague, Titus Hosmer.1 Their salaries were ulti
mately fixed at two thousand two hundred and
fifty dollars each, and the court was styled " The
Court of Appeals in Cases of Capture."2 Mean
while, the committee went on with its duties until the
new tribunal was organized, when all cases still pend
ing were transferred to the court. Once or twice
thereafter, Congress had occasion to defend the course
it had taken on the question of prizes, but the Articles
of Confederation conceded the authority it had al
ready exercised, and the court remained in existence
until 1 786, when it ceased to sit merely because there
were no more cases on its docket.3 By his share
in creating it, Ellsworth — no doubt unwittingly —
had been training his hand for the noblest task it
ever found to do ; and in his membership of the com
mittee which preceded it he had had an experience
which must have proved of value in the highest
office he was ever to hold. Characteristically, how
ever, he has left no record of these things in any of
his letters.

1 Journals, VI, 17. 2 Ibid., 75, 182.

3 The history of the Committee of Appeals and the Court of Appeals is
carefully given in J. F. Jameson's " The Predecessor of the Supreme Court,"
in his " Essays on the Constitutional History of the United States in the
Formative Period," and by J. C. B. Davis, in the " Centennial Appendix "
to 131 U. S. Reports. These two writers have left little to be discovered
on the subject. See also H. L. Carson, " History of the Supreme Court
of the United States," I, 33-64, 213-215.

72 OLIVER ELLSWORTH

But it is no great wonder that he neglected in his
letters even so big a question as this, when other needs
of the struggling young government were so much
more imperative than the need of a judiciary. In the
winter and spring of 1779-1780, it was again the
finances that absorbed the attention and activity of
Congress ; and Ellsworth, even before he returned to
Philadelphia, had been occupied with a scheme of
betterment — albeit a bad one. The Eastern states
were trying to unite on a plan to remedy the evil of a
depreciating currency, and they hit upon the hopeless
and vicious plan of a limitation of prices by law.
Massachusetts taking the lead, a convention for that
purpose was held at Hartford in October, 1779, and
Ellsworth was one of the four Connecticut delegates.
It was agreed that Connecticut and New York should
pass laws to limit prices similar to those already passed
by the three states to the eastward ; and resolutions
were adopted favoring the raising of more money by
taxation and the repeal of certain state embargoes,
and calling on all the states as far west as Virginia to
send representatives to a larger convention for limit
ing prices, to be held at Philadelphia in January. To
this, also, Ellsworth was a delegate. When it met,
however, four of the invited states failed to appear by
delegates. There were adjournments from day to
day, an adjournment without day, a reassembling on
the arrival of the delegates from Massachusetts and
Rhode Island, more adjournments from day to day, a
call on New York and Virginia, which had not yet
acted, and then an adjournment to April, in hope
that they would act. But they never acted, and the
convention never reassembled. Congress had been

THE CONTINENTAL CONGRESS 73

brought to favor the plan, but it could not bring the
states into agreement.1

It was as well that they never did agree. No such
expedient as this would have done any good of itself,
and it might have delayed more hopeful measures.
The Continental currency could not be saved by any
thing short of peace and the lodging of the power to
tax in the government which had issued it. It had
sunk so low by this time that those who held supplies
would hardly exchange them for the notes at any
price. In January, Ellsworth wrote to Governor
Trumbull that in the neighborhood of the army
meal was selling at eight dollars the quart, and corn
at half a dollar the ear.2 Congress had, in fact, already
decided to abandon the old method of obtaining sup
plies, to issue no more bills of credit, and to make no
more money requisitions on the states. It was trying,
instead, a plan of requisitions for specific commodities.
Washington had led the way by calling on the state
of New Jersey for food for his army, and naming the
kind and quantity of provisions which he expected from
each of the several counties. His demand was met
with an unexpected promptness, and about the same
time Connecticut also sent on to the half-starved troops
a supply of beef. To superintend the new method,
Congress — as was its wont when there was execu
tive work to do — appointed a committee ; and to this
committee Ellsworth was assigned the day after he
took his seat. The service was doubtless as laborious

1 For both conventions, Connecticut State Records, II, 474-475, 572-
579 ; letters from Ellsworth, and from Sherman and Ellsworth, to Trumbull,
in the Trumbull Papers.

2 Jan. 14, 1780, Trumbull Papers.

74 OLIVER ELLSWORTH

as it was obscure. It brought him neither fame nor
any other compensation. Indeed, the time when dis
tinction could be won in the Congress seemed to be
past. The famous names on the roll of members were
fewer than they had ever been. In March, Madison
took his seat as a delegate from Virginia, but the young
man was as yet scarcely known beyond the boundaries
of his native state. Ellsworth, it is clear, had no
desire to linger at Philadelphia. The following, from
a letter to his brother David, shows how little ambi
tion had to do writh his being there, and in what spirit
he consented to remain : a —

" When I came away I expected to have returned
home before this time, but nobody is yet arrived to
take my place, tho' I have encouragement that there
will be soon. It would be both more pleasing and
more profitable to me to return home to my own
family and business than to remain here any longer
at this time, but you know when a soldier goes forth
in publick service he must stay until he is discharged,
and though the weather be stormy and his allowance
small yet still he must stand to his post. All this you
understand well by experience. I am much less con
cerned, however, about my family than I should be if
I had not left the care of them with so faithful a hand
as Mr. Lyman and furnished him with the means of
procuring them what they may stand in need of. You
will soon know when I am got home by seeing me at
your house."

Yet this was the longest of all his attendances.
Just historians can only deplore their inability to
paint in glowing and attractive colors the sober,

1 March 24, 1780.

THE CONTINENTAL CONGRESS 75

silent, uninviting labors for great causes which de
serve, but cannot win, the highest celebrity and praise.
A single brilliant exploit in the field, a single eloquent
sentence on some dramatic occasion, would doubtless
have done more to keep alive the memory of a man
like Ellsworth or his colleague, Sherman, than all the
patience, judgment, energy, and devotion, with which,
through many weary weeks and months, they gave
themselves to the things which no one wished to do,
yet which must be done, and could only be done by
men of first-rate ability.

The new plan for supplies seemed for a while to be
working fairly well. Late in January, Sherman and
Ellsworth wrote to Trumbull, telling of the failure of
the scheme to limit prices, but ended cheerfully, " It
is with pleasure however we can add that there ap
pears to be in the states generally a good forwardness
to furnish their quotas of taxes and other supplies,
which, aided by measures now under consideration, it
is hoped may produce effects equally salutary." 1 A
few days later, Ellsworth wrote again :2 " The supplies
and prospects of the army are more comfortable.
The general was reduced to the necessity of demand
ing from the several counties in New Jersey specific
supplies, with which they complied, even beyond the
requisitions, with much spirit. Maryland is said to
have fully complied with the requisition of Congress
to that State, for 1500 barrels of flour. Delaware
has also exerted herself much in the same way."
But the business affairs of the Confederacy could
never be kept in a good train until the currency
should be reformed. About the same time, Ellsworth

1 January 26, Trumbull Papers. 2 January 30, ibid.

76 OLIVER ELLSWORTH

was writing to his brother David, " I cannot tell you
when we shall have peace or good money."

The outcome of the long and anxious debating of
Congress over the problem of the currency was a de
termination to abandon the Continental paper already
in circulation, and try to substitute another issue based
on the credit of the states, which had, what Congress
had not, the power to tax. Sherman and Ellsworth
promptly communicated the plan to Governor Trum-
bull.1 Hastily written as their letter doubtless was, dry
and matter-of-fact though it is, one might search long
without finding another contemporary document, un
less it should be some letter of Robert Morris himself,
setting forth more correctly the state of the finances at
this time and the actual working of that side of the
new government. Taken with a letter of Trumbull,
then on its way to the delegates, telling what Connect
icut had done of her own motion — that is to say, no
doubt, of Trumbull's motion — to establish the credit
of the state by " the efficacy of honest truth " in deal
ing with the public creditor, it well exhibits the kind of
patriotism in civil office that alone made possible the
final victory of the armies.2 The crisis weighed so
heavily on Ellsworth's mind that three days later he
wrote again to the governor, and in a style that was,
for him, uncommonly moved and personal.8

" Permit me," this letter runs, " as a private citizen
to express my wishes, that the late Resolution of Con
gress on the subject of finance may meet your Excel-

1 See Appendix A.

2 For a somewhat gloomier view of the situation, see a letter from Madi
son to Jefferson, written one week later. Hunt's " Madison's Writings,"

March 23, 1780, Trumbull Papers.

THE CONTINENTAL CONGRESS 77

lency's approbation and support. Your Excellency
must have long seen with alarming apprehensions the
crisis to which a continued depreciation of the paper
currency would one day reduce our affairs. It is now,
Sir, just at hand. Without more stability in the
medium and far more ample supplies in the Treasury
than for months past, it will be impossible for our
military operations to proceed, and the army must
disband.

" The present moment is indeed critical, and if let
slip, the confusion and distress will be infinite.

" This, Sir, is precisely the point of time for the
several Legislatures to act decidedly, and in a manner
that the world will forever call wise. It is now in their
power by a single operation to give a sure establish
ment for public credit, to realize the public debt at its
just value, and without adding to the burthens of the
people to supply the Treasury. To furnish one com
mon ground to unite their exertions upon, for the
accomplishment of these great purposes, your Excel
lency will perceive to be the spirit and design of the
Resolutions referred to. They speak a language too
plain to need any comment. I will only add concern
ing them that (they) have been the product of much
labor and discussion ; and tho' some states may have
reason for thinking they are not the best possible, yet
they are the best Congress would agree upon.

" And should they be rejected, I confess I do not
well see on what ground the common exertions of the
several states are to be united and continued hereafter."

Never eloquent on paper, Ellsworth here reveals,
more fully than in any earlier writing that has come
down to us, how deeply his reserved, cautious, but

78 OLIVER ELLSWORTH

constant nature was moved by whatever affected the
cause for which he was toiling in such unshowy ways.
Washington might have written very much in this
fashion ; indeed, there are letters of his to governors
and to Congress that are not dissimilar in tone.

That same day, Messenger Brown came in with
Trumbull's letter and copies of the Assembly's acts,
and Sherman and Ellsworth wrote again, together,
urging the proposals of Congress. A plan to reduce
the battalions already in the field, simply for econ
omy, was, they said, actually favored. Another plan of
economy was to leave unfilled the vacancies in the
several Continental lines. They also praised the gov
ernor and the Assembly for their efforts to sustain the
credit of the state and for taking the lead of all the
states with measures to carry out the new proposals.
Ellsworth was deeply gratified.

" I thought it my duty," he wrote to the governor a
little later,1 " to read in Congress the account I had re
ceived from Connecticut, and was kept in countenance
by their just approbation. And it is devoutly to be
wished that the well-timed and animated example of
so respectable a state may have its due influence with
the rest.

" A number of their Assemblies, as New York, New
Jersey, Pennsylvania, Maryland and Virginia are, it is
said, now convened or convening, and will be informed
through the channel of the Philadelphia papers, if not
otherwise, what Connecticut has done." 2

1 May 5, Trumbull Papers.

2 The next day, May 6, Madison wrote to Jefferson : " Congress have
the satisfaction ... to be informed that the legislature of Connecticut has
taken the most vigorous steps for supplying their quota both of money and

THE CONTINENTAL CONGRESS 79

Throughout the spring, and well into the summer,
he was still occupied with the baffling task of Congress
— to secure money without taxation. Biographers of
Washington are not wrong in praising his incessant
wrestling with Congress and the states for the means
to carry out his plans ; but they sometimes, one feels,
fail to remember that Congress could not do more
than it was doing. At last, in June, Ellsworth, as a
member of another committee, helped to carry through
a plan which proved to be the beginning of better
things. It was Robert Morris's scheme to secure sup
plies for the army by a subscription, with the guaranty
of Congress that the subscribers should be repaid;
and the machinery of the subscription took a form
which made it, if not precisely a bank itself, the prede
cessor of the first of the national banks. Ellsworth's
committee having reported in favor of the proposal, it
was hastily indorsed, the guaranty was given, and a
standing committee, with Ellsworth at its head, was
appointed to cooperate with the officers. The relief
this measure gave to Washington can scarcely be
overestimated.

Meanwhile, Ellsworth's letters, taking a wider and
wider range, had been keeping the governor informed
of many things which he might otherwise have been
slow to learn. For the enemy was now transferring
his activities to the South, and the wiser heads were
also looking, more and more hopefully, to Europe,

commodities ; and that a body of their principal merchants have associated
for supporting the new paper. ... A similar vigor throughout the Union
may perhaps produce effects as far exceeding our present hopes, as they
have hitherto fallen short of our wishes." Hunt's " Madison's Writings,"
I, 62-63.

1 Journals of Congress, VI, 95.

80 OLIVER ELLSWORTH

where diplomacy was much engaged with American
affairs. Late in January, Ellsworth wrote : l

" Congress have recent assurances that France and
Spain on the one hand as well as Great Britain on the
other are sparing no possible measures and preparation
for the ensuing season, and by taking early advantage
thereof to render it decisive on the great question of
American independence. And that these states might
not be unfurnished for the necessary exertions on
their part, his most Christian Majesty has, in addi
tion to timely communications, issued an order to
his ministers ample to supply them with arms and
ammunition."

He continued to watch the movements of our allies
and the general European situation with a clear under
standing that the outcome of our struggle did not
depend on our own exertions alone. He was also not
unmindful of the work of the Spaniards along the
coast of the Mexican Gulf, — an episode of the con
flict which historians have somewhat neglected, — but
followed, with an interest justified by the outcome,
the expedition of Galvez against the British province
of West Florida. In a letter written in May, he dis
cussed, with what was for him unusual fulness and
freedom, the state of England as it affected the pros
pect of peace:2

" No official information has been received very
lately from Europe, but from the current of publica
tions on that side of the water, and especially the
English papers, it does not appear that any power has
yet been found sufficiently uninformed to join Great
Britain in the wicked and Romantic attempts at re-

1 January 26, Trumbull Papers. 2 May 9, ibid.

THE CONTINENTAL CONGRESS 8 1

ducing to obedience what she yet styles her rebellious
Colonies. And as she cannot obtain assistance, she
seems willing to have it believed that she stands in
need of none, and accordingly goes on with a show
and pretension of being sufficient for all things of
herself; much, perhaps, as a merchant on the eve
of Bankruptcy makes an uncommon parade of wealth
and business in order to keep up the delusion until
chance may have had time to achieve something in
his favor. The comparison, however, fails in this re
spect, that it is no secret to the world that the cir
cumstances of Great Britain are bad, and that her
wisest men are filled with consternation. She is
ready to be crushed with the weight of her own debt,
which is accumulating upon her by the whole expense
of the war, and for which she is already mortgaged to
pay forever an annual interest of seven millions ster
ling. Her revenues being fully charged with the
interest, it is impossible for her ever to reduce the
principal but by a sponge or revolution, and as im
possible for her to go on much further in borrowing.
She is also embarrassed with the claims of oppressed
Ireland, which may perhaps advance upon her, and
she is less able to contest them. Scotland, also, tho'
habitually servile to the Throne (speaks ?) with deter
minate insolence, and will be heard. Add to which,
county conventions, in spite of the Ministry, are now
forming in various parts of England, under the first
characters of the nation, for reducing within due
bounds the influence of the Crown, and the public
expenditures ; or, which is the same thing, oversetting
the present venal and Utopian system of adminis
tration.

82 OLIVER ELLSWORTH

" From these marks of the weakness and dissolution,
she bears within herself, it is reasonable to expect that
Great Britain will ere long cease from troubling us ;
and unless she can speedily regain the sovereignty of
the seas, she may be reduced from her Insular situa
tion, to hold her own -existence at the mercy of her
enemies.

" The use good men in America will derive from
these considerations, will be of encouragement to
persevere in the present contest, and continue working
with the Lord until, by his good pleasure, the great
business of our political Salvation shall be fully accom
plished."

Ellsworth was here deceiving himself, as were others
also, concerning the imminence of a collapse of Eng
land's credit. Her marvellous powers of endurance
and recovery, and the soundness of her financial
system, were soon to bear the test of wars far longer
and more costly than the war in America. But he
was wise to draw encouragement, even at a time when
all the news from the southward was bad news, from
England's international isolation and from the temper
of the English people themselves. An admirable
English historian of the period1 is making it clearer
than ever that from first to last a great part of
the people of England, possibly the greater part,
opposed the policy of the king and his ministers with
the colonies, and that it did indeed fill with consterna
tion the wisest of her statesmen. Ellsworth had soon
to announce to the governor that Charleston had
fallen early in May, and before he returned to Con-

1 Sir George Otto Trevelyan, whose " American Revolution " is still
(1905) unfinished.

THE CONTINENTAL CONGRESS 83

necticut the enemy were overrunning the Carolinas.
Gates's defeat at Camden and Arnold's treason at
West Point were still to follow. Yet the chances are
that during the long period which elapsed before he
came again to Congress he remained hopeful of a final
victory.

Perhaps his entering on the duties of yet another
office was one of the reasons why he stayed so long
away from Philadelphia. He was this year chosen a
member of the governor's council, and the governor's
council in Connecticut, besides its merely advisory
function, was the upper house of the legislature ; and
the legislature was still the Supreme Court of Errors.
Membership in the council, therefore, was not a sine
cure, but imposed activities that were now executive,
now legislative, and now judicial. As Ellsworth
remained a member until 1785,* he held, from this
time until the end of the war, apart from whatever
share he still had in the work of the Pay Table, three
public offices. Few Continental Congressmen can
have had such good excuses for their absences.

When he did go back, in June, 1781, it was for the
least important, as well as the briefest, of his terms of
service. Ill health was his reason for cutting it so
short. As early as the first of August he wrote to
Trumbull that he found himself too unwell for a con
stant attendance in Congress, and that his family and
business also needed his attention. He urged, there
fore, that some other member of the delegation be
sent on by the first of September.

Meanwhile, Sherman was again his colleague, and

1 Roll of State Officers and Members of the General Assembly of
Connecticut.

84 OLIVER ELLSWORTH

they wrote somewhat more cheerfully than the year
before concerning the state of the finances and the
outlook for the cause.1 For one thing, the Articles of
Confederation were now in force. Though the new
Continental and state bills were no better than five for
one in specie, Robert Morris had lately taken the office
of superintendent of the finances and much was ex
pected of him. Hopes were entertained that the
emperor of Prussia and the empress of Russia would
soon offer to mediate. The military situation in the
South was more encouraging.

Still, there was work enough to do, and Ellsworth
had his share of it. Morris's management of the
finances had doubtless convinced Congress by this
time that all the departments ought to have single
heads, and Ellsworth served on the committee to
apply this principle to the marine.2 Other subjects
with which he dealt as a member of various commit
tees were General Greene's conduct of the Southern
campaign, the pay of delegates from several Southern
states too poor to sustain their representatives, the
traitorous commerce of New Yorkers with the enemy,
and a proposed convention with France concerning
the interchange of consuls, vice-consuls, and agents.3
On several of these committees, Madison, now by long
continuous attendance risen to much influence, was
his colleague. Van Santvoord, studying closely the
motions and the roll-calls on questions of a sectional
nature, finds that on all such issues Ellsworth stood
with his New England colleagues, sometimes clearly op-

1 July 12, 1781, Trumbull Papers.

2 Journals, VII, 141, 152.

3 Ibid., 157, 158, 165, 168, 177 ; Secret Journals, III, 20.

THE CONTINENTAL CONGRESS 85

posing the interests of South Carolina and other South
ern states, which were now championed in Congress by
John Rutledge. It is true that on a motion to send some
arms into South Carolina for the use of the militia Ells
worth moved to amend by leaving the disposition of the
arms to General Greene.1 He also wished to postpone,
perhaps to kill, a motion to relieve certain inhabitants
of South Carolina who had been recently released by
a cartel from a cruel imprisonment.2 Georgia and the
Carolinas having furnished supplies to the armies in
that quarter, it was proposed to credit them with a
proportionate allowance on their quotas of taxation,
and this, too, he opposed. Unquestionably, there was
in Congress plenty of sectional feeling and a lively
bickering among the states. But these facts are not
enough to prove that Ellsworth was governed by
merely sectional devotions and antipathies. He did
support the motion to provide for the unpaid Southern
delegates.3 Slow as he was to follow Madison and
Hamilton on the road to nationalism, he was in truth
exceptionally broad in his patriotism, keeping always
first in his desires the objects that were common to
men of the patriot party everywhere.

Before he came again to Philadelphia the greatest
of those objects was substantially secured. Peace had
not been declared, but the fighting was over. Com
missioners at Paris were negotiating with the envoys
of England and of France treaties which, whatever
else they might contain, would, it was now quite cer
tain, concede the independence of America. Strangely
enough, one of Ellsworth's tasks at home had been to
vindicate from a charge of gross disloyalty to the now

1 Journals, VII, 142. 2 Ibid., 152. 3 Ibid., 158.

86 OLIVER ELLSWORTH

victorious cause no less a patriot than Jonathan Trum-
bull. Charged with conniving at the trade with the
enemy, and even with engaging in it, the governor
had asked the Assembly to make an investigation. A
committee was promptly appointed, and Ellsworth
rendered the report.1 It completely exonerated
Trumbull, declaring that the slander had probably
been started by some unknown emissary of the
British.2 The incident may serve to indicate the
place which Ellsworth himself held at this time in
Connecticut.

In Congress, also, notwithstanding it was fifteen
months from his last appearance there, it is clear that
he took at once a place among the leaders. Madison
and Rutledge were still members, and in November,
1782, Alexander Hamilton had joined them; and the
journal, meagre as it is, affords material for the infer
ence that these three, with Ellsworth and James Wil
son of Pennsylvania, were the foremost men in the
chamber during the following winter and spring. Their
names appear again and again whenever really impor
tant subjects are dealt with. Fortunately, however,
we are no longer dependent entirely on the Journals
for our knowledge of the proceedings. In the autumn
of 1782, Madison, an admirable reporter, began to take
down the substance of the speeches. Some months
later, the house voted down a motion of Hamilton to
open its doors to the public whenever the finances
should be up ; 3 but Madison's notes went far to open
them for later generations.

1 Feb. 13, 1782, Trumbull Papers. 2 Ibid.

8 Ellsworth voted against this motion when it was renewed in April.
Journals, VIII, 252.

THE CONTINENTAL CONGRESS 87

There was at this time a distinct revival of energy
in Congress. The end of the fighting, which had
released some able men from military service to
share in the debates, had also, of course, brought new
questions to decide ; and there were other questions,
equally pressing, which had been held back until the
peace should be achieved. Foremost of them all,
however, was still the old and unsolved problem of
how the general government was going to sustain
itself and meet its obligations without the power to
raise money either by customs duties or direct taxation.
Morris had exhausted all his skill in borrowing; to
pay the loans he had contracted, to redeem the still
outstanding paper currency, to devise a sure and
steady inflow of revenue — these things were beyond
his power, unless the states as well as Congress should
hold up his hands. The Articles had left the right of
laying taxes with the states; and these, now that the
crisis was past, were sunk into a stolid inactivity worse
than that of two years earlier. Morris had to report
that on the requisition of 1782 only South Carolina had
paid her quota in full, and that was in supplies to
troops within her borders. The proportions of their
several quotas paid in by the other states ranged from
one-fourth by Rhode Island down to one-one-hundred-
and-twenty-first by New Hampshire. From three
states, nothing whatever had been received.1 " Im
agine," Morris wrote to Franklin in January, 1783,
" the situation of a man who is to direct the finances
of a country almost without means (for such you will
perceive this to be), surrounded by creditors whose

1 W. G. Sumner, " Financier and Finances of the Revolution," II,
55-

88 OLIVER ELLSWORTH

distresses, while they increase their clamor, render
it more difficult to appease them ; an army ready to
disband ; a government whose sole authority con
sists in the power of framing recommendations." It
is no wronder that a fortnight later he wrote to Con
gress, " If before the end of May effectual measures
to make permanent provision for the public debts of
every kind are not taken, Congress will be pleased
to appoint some other man to be superintendent of
their finances."1 Nor is it any wonder that Congress
did not accept his resignation. He yielded, and
kept his office, perhaps in the hope that through a
change in the system something might be done to re
lieve both him and the country from their humiliating
plight.

That was the pressing business of the hour. A
few saw also beyond the hour, and strove to turn the
situation to such account that the system might be
fitted for the permanent and constant duties of a real
government in time of peace. Of these, Hamilton
was the ardent leader. Fresh from the office of
Continental receiver for New York, he knew at first
hand the utter inefficiency of requisitions as a means
of revenue. During the summer he had drafted for
the New York legislature some resolutions which
were sent to Congress, urging a general convention
to amend the Articles. He had come himself to
Congress mainly to see if it were possible to build
up, on the basis of the Articles, a government strong
enough to live. Restless under makeshifts and im
patient with incompetence, he went at his purpose
with an energy that sometimes frightened where it

Diplomatic Correspondence of the Revolution, XII, 310, 326.

THE CONTINENTAL CONGRESS 89

did not overcome. Madison, who had long been
gravitating to the same general desire, pursued it
much more cautiously and tactfully. Wilson of
Pennsylvania made an able third. Rutledge was the
stoutest champion of the states. Ellsworth occupied
the middle ground and took, for the time, a course
that was moderate to the point of hesitation. In this
he doubtless correctly represented his section. In the
movement for a stronger government, New England
had as yet taken but little part. Moreover, the delegates
from Massachusetts had fallen below Connecticut's in
point of ability and influence, and neither Rhode Island
nor New Hampshire had a commanding voice. Un-
sustained by any clearly national impulse in the people
behind him, and without support from any New Eng
land colleague of more than ordinary force, Ellsworth,
not unnaturally, was slow to accept a leadership so
radical and fiery as Hamilton's. He and Rutledge
were soon again in controversy over plans to relieve
the state of South Carolina ; 1 but on the bigger
issues he found himself at first quite as close to the
South Carolinian as to Hamilton and Madison and
Wilson.

He had been but a few days in his seat when the
whole subject of finance was again, in a most unpleas
ant fashion, forced to the front. Another scheme of
revenue had come to failure. Nearly two years ear
lier, Congress had asked the states for authority to
lay a duty of five per cent on all imports, and with
this request all but two states had in some sort made
compliance. Georgia had failed to act at all, but only
Rhode Island, which derived a considerable revenue

1 Journals, VIII, 48 ; Hunt's "Madison's Writings,11 I, 316.

90 OLIVER ELLSWORTH

from imports intended for Connecticut, had positively
refused. A committee was appointed to visit the
little state and urge the scheme upon her governors.
But when the emissaries were about to take their
departure, word came that Virginia also, having once
consented to the impost, had now reversed her
action.

This was at the end of 1782. Before a week of the
new year had passed, a committee of officers from the
army at Newburgh, N.Y., arrived in Philadelphia with
the solemnest and sternest of appeals for payment
of the troops. Not even the constantly recurring
rumors of peace with independence could long divert
the members of Congress from what, in a letter home,
Madison described as the cloud that was lowering on
the North River. The one stubborn fact that over
hung and darkened all things was the fact of bank
ruptcy. From this time until the middle of April,
save for certain necessary interruptions to attend to
the peace treaty, Congress, now by special com
mittees, now by a general committee of the states,
now in committee of the whole, was searching for
a path to solvency and honor.

The debate took a wide range, for in the general
problem there were many specific perplexities. The
army demanded not merely present pay, but security
for arrears, compensation for deficiencies in rations
and clothing, and commutation of the half-pay for life,
which Congress had already voted, into an equivalent
in gross. There was the foreign debt, and Morris's
inability to negotiate new loans until the old were
somehow secured and interest provided. There were
the various forms of the domestic debt, with the claims

THE CONTINENTAL CONGRESS 91

of different classes of creditors and the frequently con
flicting interests of the various states. But it all came
back to the main question, How could money be
obtained? Hamilton, Madison, and Wilson at once
declared that nothing would serve but general or Con
tinental taxes, whether by impost or excise. The
states must grant this power to Congress, or the Con
federacy, now that it had won its independence, would
fail from sheer and ignominious weakness. But a
group of lesser men, led by Rutledge, and including
Madison's own colleagues from Virginia, opposed this
policy at every turn. They would adhere to the Arti
cles ; they feared and distrusted tyranny at home quite
as much as they had feared and distrusted it in the
Parliament and the King across the water; they
would never consent to give into the same hands
" the purse and the sword." This last was a favorite
catch phrase.

Ellsworth's first reported speech came on a day of
general debate,1 and Hamilton's reply, followed by
Madison's cooler and more cautious argument, marks
the high tide of the whole discussion. The question
was on Wilson's motion, modified by an amendment
of Madison, " That it is the opinion of Congress that
the establishment of permanent and adequate funds
to operate generally throughout the United States is
indispensably necessary for doing complete justice to
the creditors of the United States, for restoring public
credit, and for providing for the future exigencies of
the war." When the two opposing views were set
before the house, " Mr. Ellsworth acknowledged him
self to be undecided in his opinion ; that on one side

1 Jan. 28, 1783.

92 OLIVER ELLSWORTH

he felt the necessity of continental funds for making
good the continental engagements, but on the other
desponded of a unanimous concurrence of the States
in such an establishment. He observed that it was a
question of great importance, how far the federal Gov1.
can or ought to exert coercion against delinquent
members of the confederacy; and that without such
coercion no certainty could attend the constitu
tional mode which referred everything to the unan
imous punctuality of thirteen different councils.
Considering, therefore, a continental revenue as unat
tainable, and periodical requisitions from Congress as
inadequate, he was inclined to make trial of the middle
mode of permanent state funds, to be provided at the
recommendation of Cong8., and appropriated to the
discharge of the common debt." 1

Hamilton's quick reply disclosed the defect of his
admirable quality.2 Too strenuous in his statesman
ship to yield to merely politic considerations, and
neglecting the one ground on which Ellsworth had
criticised his policy, viz. that it was unattainable, he
dwelt at length on the sure inadequacy of the other's
proposal and then, utterly disregarding the suspicions
of the state-rights party, boldly avowed that one
reason why he wished Congress to have the power in
question was because the energy of the central govern
ment was, in general, far too slight It was not strong
enough, he said, to pervade the states and draw them
into a union. He considered, therefore, that it was
expedient " to introduce the influence of officers deriv
ing their emoluments from and consequently interested
in supporting the power of Congress."

1 Hunt's " Madison's Writings," I, 334. 2 Ibid., 335.

THE CONTINENTAL CONGRESS 93

Madison saw the blunder, and jotted down in his
notes, perhaps on the very instant : " This remark
was imprudent and injurious to the cause which it was
meant to serve. This influence was the very source
of jealousy which rendered the states averse to a reve
nue under collection as well as appropriation of Con
gress. All the members of Congress who concurred
in any degree with the states in this jealousy, smiled at
the disclosure. Mr. B(land) and still more Mr. L(ee),
who were of this number, took notice in private con
versation, that Mr. Hamilton had let out the secret."1
A moment later, when Madison himself rose to speak
for the resolution, he showed how indispensable to
such a leadership as Hamilton's was his own perfect
poise, his tact and courtesy, his patient fairness with
all points of view. These two, wittingly or not, had
already entered on the task of building for the young
confederacy a true constitution of government. They
were trying now to set in place the only corner-stone
from which that edifice could possibly arise. It is
doubtful if in the long struggle with public opinion
which was thus beginning the quick and darting genius
of Hamilton would ever have prevailed had there been
no Madison to smooth the way, to placate opposition,
to do, in fine, whatever genius leaves to talents, indus
try, and judgment, — if, indeed, these gifts in Madison
do not also deserve the name of genius. Stating first,
with masterly clearness, the problem of the hour, he
took up, one by one, the various plans suggested, and
showed conclusively that none of them would work in
practice without that great concession of the power
to tax which state-rights men revolted at.2

1 Hunt's " Madison's Writings," I, 336. 2 Ibid., 336-340.

94 OLIVER ELLSWORTH

It is hard to see how any open mind could long hold
out against his reasoning ; and Ellsworth, clearly, was
one of those whose minds were open. The next day,
when Wilson proposed an elaborate scheme of taxation,
and Rutledge responded with a plan to ask the states
to levy a duty of five per cent on imports to pay the
foreign debt, each state to be credited, on its quota of
the debt, with such amounts as might be gathered
at its ports, he criticised both proposals.

" Mr. Elseworth thought it wrong," Madison reports,1
" to couple any other objects with the impost ; that the
states would give this if anything ; and that if a land
tax or an excise were combined with it, the whole
scheme would fail. He thought, however, that some
modification of the plan recommended by Cong5,
would be necessary. He supposed when the benefits
of this Contin1. revenue should be experienced it would
incline the states to concur in making additions to it.
He abetted the opposition of Mr. Woolcot 2 to the
motion of Mr. Rutledge, which proposed that each
State should be credited for the duties collected
within its ports ; dwelt on the injustice of it, said
Connecticut, before the revolution did not import one-
fiftieth, perhaps not one-one-hundredth part of the
merchandise consumed within it, and pronounced that
such a plan wd. never be agreed to. He concurred in
the expediency of new-modelling the scheme of the
impost by defining the period of its existence;3 by
leaving to the States the nomination, and to Congress

1 Hunt's " Madison's Writings," I, 348-349.

2 Oliver Wolcott, Sr., his colleague. Madison seems to have had a hard
time with New England proper .names. Gorham of Massachusetts, e.g.,
constantly appears as Ghoram, and Ellsworth as Elseworth.

3 The period proposed was twenty-five years.

THE CONTINENTAL CONGRESS 95

the appointment of Collectors, or vice versa ; and by a
more determinate appropriation of the revenue. The
first object to which it ought to be applied was, he
thought, the foreign debt. This object claimed a
preference as well from the hope of facilitating further
aids from that quarter, as from the disputes into wch.
a failure may embroil the U.S. The prejudices agst
making a provision for foreign debts which sd. not
include the domestic ones was, he thought, unjust and
might be satisfied by immediately requiring a tax in
discharge of which loan-office certificates should be
receivable. State funds for the domestic debts would
be proper for subsequent consideration. He added, as
a further objection against crediting the States for the
duties on trade respectively collected by them, that a
mutual jealousy of injuring their trade by being fore
most in imposing such a duty would prevent anyone
from making a beginning."

He was still inclined to a compromise position, but
the movement of his mind was plainly toward the
policy of a stronger central government. Leaving
Philadelphia about this time, he was gone till April,
but very soon after his return it appeared that com
mon sense, and perhaps also a broadening sense of his
own duty, were fast overcoming his state-rights scruples.
During his absence, the party in favor of giving to the
government strength enough to meet its obligations
had had the better of it in debate. Events outside
had been constantly supplying them with telling argu
ments and instances. Morris's letter, for a while kept
secret, had been given to the country. France, the
leading foreign creditor, had sharply demanded that
Congress take some action on her claims and Hoi-

96 OLIVER ELLSWORTH

land's. The army's discontent had seemed for a time to
be fast turning into mutiny, and Washington, although
he quelled the disposition toward violence, plainly
declared that in his opinion his soldiers' wrath was
just. By the middle of April, Congress was brought
to favor a general scheme which included both a
federal impost of five per cent and specific duties on
certain articles of general use. Future requisitions on
the states were to be based on population, instead of
land, which was the basis fixed by the Articles ; and it
was agreed that in estimating population five negro
slaves should count as three white freemen. These
proposals passed on April 18, and Ellsworth voted for
them. He had doubtless, by this time, quite abandoned
his preference for permanent state funds. The pro
posals, however, were themselves a compromise. They
fell so far short of Hamilton's desire, and he had so
little hope in them, that he would not vote for them.
Nevertheless, he and Madison and Ellsworth were
appointed a committee to commend them to the states.
The moderate but strong address they sent out to the
legislatures was the work of Madison, but Ellsworth
gave it his approval. A fortnight later, he wrote to
Trumbull : 1

"A plan of revenue for funding the public debt
which has taken up much time in Congress will be
immediately forwarded for consideration of the State,
accompanied with the documents necessary to give in
formation on the subject. As might naturally be
expected at the close of so long a war, we find a con
siderable debt on our hands, which all will agree it
much concerns our national character and prosperity

1 May 13, Trumbull Papers.

THE CONTINENTAL CONGRESS 97

to provide for, however various may be the opinions
as to the mode of doing it."

It is significant, too, that Ellsworth should have
been set at the head of a committee of nine, now at
last appointed to consider the New York resolutions,
which had been before Congress more than a year.
It was a strong committee, names like Hamilton's and
Wilson's coming after Ellsworth's ; but there is no
record of any action taken on the subject of a conven
tion while Ellsworth remained chairman.1 This, how
ever, does not prove there was none taken : for after
the passage of the revenue measure Madison's notes
grow scanter, and he is constantly referring us to the
keyhole glimpses which are all the journals afford. We
know that in June, backed by Hamilton, Ellsworth
was urging Congress to take a step essential to a
stronger union by completing the transfer of Virginia's
Western claims to the Confederacy.2

Meanwhile, in foreign affairs also, and particularly
in the business occasioned by the peace, he had been
conspicuously employed. Early in the winter, when a
Rhode Island delegate had wished permission to send
to the governor of his state certain extracts from
letters from Europe, Ellsworth and Hamilton served
on a committee which reported against the proposal.3
A few days later, with Hamilton and Madison, he
reported in favor of a treaty of amity and commerce
with the Netherlands. In this report, one of the
longest ever made to the Congress, there was enclosed

1 Bancroft's " United States," VI, 80, 99.

a Hunt's " Madison's Writings," I, 474.

3 Journals, VIII, 88-89. He was also on the committee which reported
against a claim of certain Rhode Island officers based on the depreciation
of the money they were paid in.

98 OLIVER ELLSWORTH

the treaty itself and a series of forms and blanks for the
various interchanges of officials and of courtesies which
it called for. " Both the Committee and Congress,"
Madison remarks, " were exceedingly chagrined at the
extreme incorrectness of these national acts." The de
bate that followed led to a motion for the purchase of
a few books of reference for the use of Congress in
such cases, and that motion was, no doubt, the begin
ning of the history of the libraries of Congress
and the department of state. But it was not the
actual beginning of those libraries. Not even "a
few hundred pounds" could be spared for such a
purpose.1

The first of May, while Congress still had nothing
of the peace treaty but the preliminaries, Ellsworth,
Hamilton, and Rutledge reported, in response to a letter
from John Adams, instructions favorable to a treaty of
amity and commerce with Great Britain.2 Again with
Hamilton and Madison, and with Wilson also, Ells
worth concurred in a report directing Washington to
occupy the frontier forts so soon as the British should
give them up.8 When the provisions of the treaty
were fully known, he and Hamilton advocated a call
on the states to carry out the recommendation concern
ing the Tories,4 and they were both on a committee
which drew up an address to the states, urging them
to conform in all good faith to such provisions as had
to do with confiscations and with debts due from

1 Journals, 91, 109; Secret Journals, III, 289-318; Hunt's "Madison's
Writings," I, 318-319.

2 Secret Journals, III, 340. Madison ridicules this letter of Adams for
its palpable self-seeking and self-praise.

8 May 12, Journals, VIII, 259.

4 Hunt's "Madison's Writings," I, 463.

THE CONTINENTAL CONGRESS 99

Americans to Britons.1 Clearly, he was one of those
in whom the war had left but little rancor. He was also
one of those who felt, even at this time, that the United
States had little to gain from the lowering of England's
rank among the nations. Writing to Trumbull,2 he
argued that England's debt and the great expense of
her peace establishment, which in his judgment had
forced her to treat with America, would also probably
insure her good behavior for a long time yet to come ;
and he added :

" Neither the safety of this country or the balance
of power of Europe requires that Great Britain should
be at all more reduced than in fact she is ; and it is
(only) by avoiding that distraction of councils and
corruption of manners that have brought her down,
that America can hope to rise or long enjoy the bless
ings of a revolution, which, under the auspices of
Heaven, she has gloriously accomplished."

Here was a temper prophetic of the federalist to be ;
the revolutionist as well as the state-rights man was
moving with the current of events, open-eyed to new
conditions. No sentimentalist, he would let the dead
past bury its dead.

On the question of ratifying the provisional articles
without waiting for the definitive treaty, " Mr. Ells
worth," Madison reports,3 " was strenuous on the
obligation and policy of going into an immediate ex
ecution of the treaty. He supposed that a generous
and ready execution on our part wd. accelerate the like
on the other part." For some reason, when a treaty

1 Journals, VIII, 266-268 ; Secret Journals, III, 355.

2 May 13, Trumbull Papers.

8 April 14, Hunt's " Madison's Writings," I, 450.

100 OLIVER ELLSWORTH

of amity and commerce with Russia was up, he made
and carried, Madison opposing, a motion to limit it to
twenty-five years.1 But his views on foreign affairs
seem to have been, as a rule, sane and unprovincial,
and not without enlightenment and insight. Early
in May, he wrote to his colleague, Wolcott, who had
gone home : 2

" Nothing yet appears to induce a suspicion that the
treaty will fail of being carried into effect, on both
sides, as fast as the nature of the case will admit.
Certainly, we cannot wish to see it violated or an
nulled ; nor has Great Britain so much reason to be
dissatisfied, under all circumstances, as North, Fox,
and their partisans pretend, — for their object probably
is to hunt down the present minister, and to transfer
the popular odium from the criminal to the execu
tioner. If Great Britain, induced thereto by the folly
of a former administration, must make us independent
of herself, it is wise in her to do so with grace, and in a
manner that shall also keep us independent of France.
This principle was, no doubt, well explained and en
forced by Messrs. Adams and Jay. But it would have
been a weakness in a British minister not to have
adopted it, and in as large an extent as in the pres
ent treaty seems to have been done, even as to the
Loyalists, who are said to have been sacrificed for
nothing."

He was no such violent Anglophobe as Rutledge
and others were plainly showing themselves to be, and
had not in him the making of a partisan of France ;
but neither was he, like Hamilton, enamored of the
British system. When news came of the famous

1 Secret Journals, III, 350-354. 2 May 6, Wood Ms.

THE CONTINENTAL CONGRESS IOI

coalition of Lord North with the Whigs, he wrote to
Trumbull : l

" A packet just arrived at New York from Fal-
mouth, it is represented, brings information that the
Definitive Treaty was signed, and that the British
were to leave this coast, at farthest, by the first of
August. The packet also brings a list of the new
British ministry, established the second of April, which
I take the liberty to enclose. From the strange coali
tion of which it is formed, there is little reason to
doubt but that another change of a partial nature will
follow, as soon as the present convulsive state of that
nation shall have subsided. Lord North, who is the
fixed favorite of his Sovereign, and a man of the most
system, business, and address, will early find means to lay
aside Mr. Fox and his coadjutors when he can well do
without them, as he has already done with one set of op
ponents, whom he let come forward to perish in the odium
of exciting measures which he had rendered necessary."

He served, again with Hamilton and Madison for
colleagues, on the committee which had in charge the
general subject of neutrality agreements.2 But the
most distinguished conjunction of the three names was
on still another committee, appointed early in April,
" to provide a system for foreign affairs, for military and
naval establishments, and also to carry into execution
the regulation of weights and measures, and other
articles of the Confederation not attended to during
the war." 3 The task was nothing less than the devis
ing of a complete permanent system of administration.

He continued to be called on for such high services

1 June 4, Trumbull Papers. 2 Secret Journals, III, 366-368.

8 Hunt's " Madison's Writings," I, 441.

102 OLIVER ELLSWORTH

throughout the spring, and until the busy session
came to its humiliating close. He himself does not
seem to have foreseen or dreaded any such emeute as
that which drove the delegates away from Philadelphia.
His letters contain no such gloomy forebodings of the
conduct of the unpaid troops as Madison's are filled
with. He had written to Wolcott, early in May,1 that
three months' pay would probably be made to the army
on disbandment, one-third in cash, the rest in Mr.
Morris's notes ; and that Morris would remain in office
until all his engagements should be fulfilled. When
the question arose, whether to discharge the troops
or merely give them furloughs, he was for discharg
ing them at once.2 Even so late as June 18, 1783,
he was writing to Trumbull, apparently without un
easiness : 8

" The furloughed part of the army are on their way
home. Some have arrived here from the southward.
They receive three months' pay, but all in Mr. Morris's
notes, which run six months." Yet it was but three
days later that a band of about five hundred mutinous
soldiers of the Pennsylvania line surrounded the State
House, where Congress was sitting, and with arms in
their hands demanded a settlement of their accounts.
Sitting under the same roof was the executive council
of Pennsylvania; and to this body Congress sent at
once a committee — fiamilton, Ellsworth, and Peters
— to take order for the calling out of the state militia.
But the Council would not act. Congress finally ad
journing, the troops permitted the members to disperse.

1 May 6, Wood Ms.

2 May 20, Hunt's " Madison's Writings," I, 468.
8 Trumbull Papers.

THE CONTINENTAL CONGRESS 103

Reassembling that evening, they voted that in case
no means should be found to put down the rioting the
President should summon them to meet at Princeton
or at Trenton. Hamilton and Ellsworth, serving as a
committee of conference with the Pennsylvania author
ities, failed to bring them to any determined action,
and the President issued his summons. At the end of
June, therefore, Congress reassembled at Princeton.
Hamilton, for the committee, made a report which
seemed to reflect severely on the Pennsylvania author
ities, and when the council complained of it Ellsworth
merely moved a resolve which exonerated them from
any active part in the insult to Congress. Another com
mittee — Hamilton, Ellsworth, and Bland — reported
an order to General Howe to march on Philadelphia.1
But Washington, deeply mortified at what had hap
pened, was already taking measures to put down the
mutiny. Congress was not further molested, and Ells
worth remained at Princeton about a fortnight longer.
Late in July, Benjamin and Samuel Huntington
arrived, and Samuel Huntington took his place on
the committee to consider the proposal of a general
convention.2

This was the end of his service in Congress.
Writing to Trumbull on July io,8 he gave, in his
usual matter-of-fact way, a moderate version of what
had happened, and added :

" How long Congress will remain here is uncertain.

1 Journals, VIII, 279-287, 292 ; Hunt's " Madison's Writings," I, 482,
484 ; Bancroft's "United States," VI, 97 ; Diplomatic Correspondence, 1783-
1789, I, passim.

2 For other services of Ellsworth in Congress in this period, see Journals,
VIII, 91, 124-125, 176-177, 261.

8 Trumbull Papers.

104 OLIVER ELLSWORTH

They will hardly return to Philadelphia, without
some assurance of protection, or even then with the
intention to stay longer than till accommodations
shall be elsewhere prepared for a fixed residence.1
But, Sir, it will soon be of very little consequence
where Congress go, if they are not made respectable,
as well as responsible, which can never be done with
out giving them a power to perform engagements, as
well as to make them. It was, indeed, intended to
have given them this power in the Confederation, by
declaring their contracts and requisitions for the
common defence sacredly binding on the States ;
but in practice it amounts to nothing. Most of the
States recognize these contracts and comply with the
requisitions so far only as suits their particular opinion
and convenience. And they are the more disposed,
at present, to go on in this way, from the irregularities
it has already introduced, and a mistaken idea that
the danger is over, — not duly reflecting on the
calamities of a disunion and anarchy, or their rapid
approach to such a state. There must, Sir, be a
revenue somehow established, that can be relied on,
and applied for national purposes, as the exigencies
arise, independent of the will or views of a single
State, or it will be impossible to support national
faith or national existence. The power of Congress
must be adequate to the purposes of their constitution.
It is possible, there may be abuses and misapplica
tion, still it is better to hazard something, than to
hazard all."

1 Ellsworth had been on the committee to consider the question of per
manent residence, but the subject was postponed until autumn. Journals,
VIII, 271.

THE CONTINENTAL CONGRESS 105

It is not surprising that he was unwilling to come
back to Congress ; 1 or that, the next year, he also
declined an election to the Board of Treasury, a com
mission set up for the management of the finances
in place of Robert Morris, who had finally with
drawn, or, as he himself probably considered, escaped.2
The choice of Ellsworth to this office by his former
associates was a tribute to his capacity, but not to
his shrewdness. His severe judgment of the Con
federacy is even more convincing than Hamilton's,
who went home in complete despair of it; for Ells
worth, never given to crossing bridges until he got
to them, had come to his conclusions slowly. Always
accepting dutifully the tasks assigned him, he had
done his part well in the civil business of the struggle
for independence ; but holding, doubtless, that to
each day its own evil was sufficient, he had not
pressed forward in time of war to grapple with the
problems of the hoped-for peace. Now, however, that
peace was come, even his unhasting and conservative
intelligence saw clearly the necessity of changes the
most radical. Perhaps his gift of shrewd and prac
tical analysis enabled him to see also that the time
was not yet quite at hand ; or perhaps, on the other
hand, we must conclude that he was lacking in that
rare, militant ardor of reform which Hamilton was
so abundantly endowed with. At any rate, until the
time was fully come, and through the tireless labors

1 In May, 1783, he was elected for the year beginning Nov. 30, 1783.
He resigned, however, and another was elected in his place. Roll of State
Officers and Members of General Assembly of Connecticut, 460.

2 The Board was instituted May 28, 1784, and six days later Daniel of
St. Thomas Jenifer, Ellsworth, and William Denning were elected mem
bers. Journals, IX, 255-256, 309.

106 OLIVER ELLSWORTH

of Madison and Hamilton and Washington and a half-
dozen other kindred spirits a great occasion was pre
pared, Ellsworth had no conspicuous part in the
movements for a stronger constitution. Instead, he
passed quietly back into the labors of his profession
and the service of his state.

CHAPTER IV

THE GREAT CONVENTION

His state was by no means disposed to part with
his services. It is a question whether, in any repre
sentative government anywhere, the terms of public
servants have ever been shorter, or their actual tenure
more protracted, than in the colony of Connecticut.
Officials both of the towns and of the colony were
elected every year ; but a good man, once elected, was,
as a rule, reelected until he died or resigned or moved
up higher.1 This democracy was not fickle. The
usage continued for some time after the Revolution,
and until, by the increase of population, the coming in
of foreign elements, the growth of cities, the rise of
parties, and perhaps by other causes, the political life
of Connecticut and of all New England was gradually
altered. If Ellsworth had never again entered the
service of the United States, the chances are that
his own people would have continued to choose him
to higher and higher places in their state government
so long as he was willing to accept them.

At the time of his retirement from Congress he
held, it will be remembered, two not unimportant
offices at home. He was still a member of the gov
ernor's council and state's attorney for Hartford
County. In 1785, however, he accepted a judicial
office of such a character that he could not continue

1 See Sherman in Constitutional Convention, ft Documentary History of
the Constitution," III, 216-217.

107

108 OLIVER ELLSWORTH

to hold the other two. For a good many years, the
General Assembly had been from time to time devolv
ing some of its judicial functions upon separate tribu
nals.1 To that end, a " Particular Court " had been
set up as far back as 1638. It was succeeded in 1666
by a " Court of Assistants," made up from the council,
and this in turn gave way, in 1 71 1, to a Superior Court
Meanwhile, town and county courts had also been
established. In 1784, a law was passed which consti
tuted the council, with the lieutenant-governor, a
Supreme Court of Errors, and it was in this tribunal
that Ellsworth's first judicial services were rendered.
Soon afterward, however, he was chosen also to the
Superior Court, and then, a law being passed to prevent
the same person from sitting in both the court and
the council, he retired from the council.2 About the
same time, Jesse Root, who had taught him law, suc
ceeded him as state's attorney for Hartford County.
For the next four years, his only office, apart from one
which for a few months took him back again to Phila
delphia, was his place on the bench of the Superior
Court. The court consisted at this time of a chief
judge and four associate judges; and Roger Sherman
was one of the associates.

It is to be feared that only lawyers would find much

1 In October, 1783, as chairman of a special committee of the General
Assembly, — presumably a joint committee of both houses, — Ellsworth
reported adversely on a proposal to relieve the legislature of a part of its
business by referring various petitions and memorials to some other tri
bunal. Trumbull Papers.

2 Loomis and Calhoun, u Judicial and Civil History of Connecticut " ;
Johnston's " Connecticut," 189-190. From a letter of Ellsworth to Trum
bull, written from Philadelphia, and now in the library of the Connecticut
Historical Society at Hartford, it appears that in March, 1780, he declined
an appointment to the Superior Court on the ground of ill health.

THE GREAT CONVENTION 109

matter of interest in Ellsworth's career as a member
of his state's judiciary. A few great judges and famous
causes apart, the judicial side even of our national his
tory fails to arouse in laymen the interest it deserves.
The development of our state courts is a chapter of
our institutional life that is not yet written ; and if it
were written, it would probably be but little read. To
say that the Superior Court was a busy tribunal, with
a wide and various jurisdiction, both appellate and
original, that this was a formative period in the juris
prudence of Connecticut, and that Ellsworth's opinions,
so far as they were recorded, sustain his reputation as
a good lawyer and a just and able judge — this, per
haps, is to set down all that any but a very few readers
would care to learn. There were, however, at least two
classes of cases that came before him and his brother
judges concerning which a word more should be said ;
for they presented to the court important opportunities
to choose between the old and the new. It could
either adhere to the provincial and archaic in the law
and usage of the commonwealth, or it could by its
decisions bring Connecticut's procedure in line with
modern tendencies. There were criminal causes in
volving punishments which would now seem barbarous
and cruel ; and there were causes, both criminal and
civil, which brought out clearly the question of Con
necticut's attitude toward the common law.

Alexander Johnston contends, with an uncharac
teristic warmth, that the Blue Laws of Connecticut
ought never to have been made the standard illustra
tion of puritanic narrowness and tyranny which to
most Americans they still remain.1 Perhaps he is so

1 Johnston's "Connecticut," 105-106.

HO OLIVER ELLSWORTH

far right that they ought not to be invidiously distin
guished from the criminal and sumptuary laws of the
other New England colonies, and of other countries,
which belong to the same period of hard and fast ideas
in law, morals, and religion. But to the present age
they do seem, nevertheless, absurdly inquisitorial and
excessively severe. There were too many capital
offences ; lesser crimes were punished in ways that
strike us now as harsh, unreasonable, absurd; and
laxities now entirely disregarded were treated as
crimes. By the end of the Revolution, the code was
somewhat moderated by statute, and also, no doubt,
tempered with mercy and discretion in the courts. As
in old England, some archaic laws, reflecting past con
ditions, were probably left unenforced, or even forgotten.
Nevertheless, while Ellsworth was on the bench in
Connecticut, some severe and curious sentences were
handed down. At a session of the Supreme Court in
January, 1785, for instance, one Moses Parker, con
victed of horse-stealing, was condemned " to sit on the
wooden horse half an hour; to receive fifteen stripes,
pay a fine of £10] be confined in the gaol and the
work house three months ; and every Monday morn
ing, for the first month, to receive ten stripes, and sit
on the wooden horse as aforesaid." l The ride on the
wooden horse was probably the least severe of this
choice assortment of penalties ; for the instrument of
torture was nothing worse than a log of wood, sup
ported by four legs. The criminal took his ride in
public, booted and spurred, usually before a large crowd
of amused spectators. At the same session, Moses
Lusk, for counterfeiting, was also sentenced to be

1 Van Santvoord, 222, and note.

THE GREAT CONVENTION ill

whipped, fined, and imprisoned, and Judah Benjamin,
a polygamist, received a sentence even harsher than
Hester Prynne's in Hawthorne's " Scarlet Letter." Ten
stripes were laid upon his back ; the shameful " A "
was branded on his forehead ; and he was ordered to
wear a halter about his neck so long as he should
tarry in Connecticut, on penalty of thirty stripes if
he were ever found without it.

Save that the tendency of the times was away from
such severity, it is hardly possible to define the gen
eral attitude of Ellsworth and his fellows toward these
rigorous laws. In at least one case, however, the
court declined to be governed by the old puritanic
usage. In a civil suit brought on a promissory note,1
the defence set up was that the instrument had been
executed at two o'clock in the morning of the Sabbath
day. As no statute was clearly violated, and as it ap
peared that the note was given to release from prison
a brother of the defendant, the court held it valid.

But for such advances as Connecticut was at this
time making in the administration of justice she was
more indebted to a young lawyer struggling into prac
tice than to any of her judges. Beginning with two
or three cases tried in 1785, Ephraim Kirby was
making for the Superior Court the first fairly thor
oughgoing reports of judicial decisions ever published
in this country. His first volume,2 covering substan
tially Ellsworth's term of service, closed with 1788,
and there was no second ; but he had, of course, his
successors. He was greatly aided in his pioneer
enterprise by a law passed in 1785, which required
the judges to write out their decisions whenever they

1 Carpenter vs. Crane, i Root's Reports, 98. 2 Published 1789.

112 OLIVER ELLSWORTH

turned on a point of law. No one in the least familiar
with the use now made of many series of printed re
ports needs to be told the value of the practice which
was thus introduced ; but Kirby himself has described
in his preface a troublesome confusion, somewhat
peculiar to Connecticut, which reporting doubtless
helped the judges to be rid of. "Our courts," he
writes, "were still in a state of embarrassment, sensi
ble that the common law of England, though a highly
improved system, was not fully applicable to our situ
ation ; but no provision being made to preserve and
publish proper histories of their adjudications, every
attempt of the judges to run the line of distinction
between what was applicable and what was not,
proved abortive. For the principles of the decisions
were soon forgot or misunderstood, or erroneously
reported from memory. Hence arose confusion in the
determination of our courts, the rules of property
became uncertain, and litigation proportionately
increased."1

One doctrine was, that the law of Connecticut
was "derived from the law of nature and revelation ";2
and there were certain decisions rendered directly
contrary to common law principles. In several of
these cases, Ellsworth was the spokesman of the court.
But other decisions not only recognized the common
law but applied it " with strict and technical pre
cision."3 The best example is the case of Hart vs.
Smith,4 in which the court held that assumpsit would
not lie to recover money paid by mistake in settling
an account. In this particular case, Ellsworth dis-

1 For Kirby, see Van Santvoord, 218-219. 8 Van Santvoord, 216.

2 Root's Reports, Preface. 4 Kirby, 127.

THE GREAT CONVENTION 113

sented, and took a broader view, now generally
accepted. His opinion on the question of what
authority the common law of England had in Con
necticut does not anywhere clearly appear.

In one account of the state's judicial history, he is
eulogized as probably the ablest of all her judges.1
But for this high estimate the single volume of Kirby
and a few memoranda by Judge Root, who also es
sayed reporting, can hardly have constituted the sole
material ; it was based also, no doubt, on Ellsworth's
services in a greater tribunal, and perhaps on a sur
vey of his whole career.

Two biographers2 have chosen the same decision
to display his quality as a state-court judge. The
case3 involved the question of a married woman's
right to devise her real estate to her husband, and
Ellsworth took at the outset the ground that the right
to devise is a municipal and not a natural right. He
then proceeded:

" Admitting, however, that a right of devising
estate was a natural right, it would not follow that
a feme-covert has it, though there be no statute to
take it away. Many natural rights are controlled by
long use and custom, which may be evincive of com
mon consent, and acquire, to every purpose, the force
of law. Others are controlled by the reason of the
case, arising out of some special relation or condition.
We have no statute to divest a feme-covert of her per
sonal estate ; and yet nobody doubts but, by the act
or condition of coverture, it becomes the husband's ;

1 Loomis and Calhoun, 176-177.

2 Flanders and Van Santvoord.

8 Adams vs. Kellogg, Kirby, 195, 438.

114 OLIVER ELLSWORTH

nor have we any that she shall not contract and bind
her person and estate, as a feme-sole may ; yet she
cannot do it. It cannot, then, be inferred that a feme-
covert has power to devise an estate, from the score of
natural right. As to her supposed common law right
to devise her estate, there has not been a custom or
any adjudications to found it upon, either in this
country or that from which we emigrated." And he
went on to show, by briefly tracing the history of
devises by women, that neither the common nor the
statute law conceded to feme-coverts the right in ques
tion. The usage among the ancient Romans he
attributes to their general notions of marriage ; the tie
was lighter than in Christian countries, and the
woman freer in all her relations with her husband
and society. His ending deals very broadly with
the considerations of policy and of justice involved
in the controversy.

" With regard to the policy of extending such
a power to feme-coverts, it may be remarked, that
there is not the same reason for it as there was for
the statute empowering a husband to sell his wife's
lands with her consent. From a sale of them she
might have comfort and necessary support, but not
from a devise. Besides, the freedom of her consent
in that case is to be evinced, as fully as it may, by
examination before a magistrate ; which circumstance
also, as well as that of recording, gives immediate
notoriety to the transaction, that all concerned may
scrutinize it while it can be done to advantage. Nor
do the general reasons urged for the institution of
wills extend to a feme-covert. That of their use in
family government does not, because the government

THE GREAT CONVENTION 115

is not placed in her hands. Nor does that of their
utility in stimulating to industry and economy ; for
her exertion adds nothing to the stock she is to
dispose of. The crumbling down of overgrown
estates need not be mentioned here. The posses
sion of this power must be as inconvenient for feme-
coverts as it is unnecessary. It must subject them
to endless teasing and family discord, as well as fre
quently their heirs, and sometimes their children, to
the loss of property, which the law has been studious
to preserve for them. Add to which, exposed as they
are to coercions imperceptible to others, and danger
ous for them to disclose ; placed in the power of a
husband, whose solicitations they cannot resist, and
whose commands, in all things lawful, it is their duty
to obey. Their wills, taken in a corner, and concealed
from the world till they have left it, can afford but
very uncertain evidence of the real wishes of their
hearts. Political considerations, therefore, so far as
they can be of weight, serve to confirm the opinion,
that a feme-covert has not power to dispose of her
estate by will."

This is cogent reasoning, and the language terse
and trenchant. Ellsworth, one feels, was not only a
judge of more than ordinary wisdom but the kind of
man who pondered on human relationships to practi
cal conclusions — a man that could be trusted with the
ordering of society and the safeguarding of interests
and rights. His power of reasoning from policy was,
no doubt, well tested when he and his associates dealt
with certain unexampled cases which the war gave
rise to. In these, the court's decisions were both
wise and liberal. In one, an action brought against

Il6 OLIVER ELLSWORTH

a deputy commissary for army purchases, it found for
the defendant, holding that he was not liable, since
he was acting merely as the agent of the public. In
another, they decided that a negro slave had become
a freeman when his master permitted him to serve in
the Continental army.1

But in view of the greater things that Ellsworth
was so soon to have a share in, it is difficult to com
bat our comparative indifference to the kind of work
to which at this time he was giving himself.

The country, drifting though it seemed toward a
division into separate confederacies or a disintegra
tion into its unit states, was in reality soon to display
in constructive politics an energy and virtue more re
markable than any it had shown in war ; and with the
coming of that period in his country's history there
came also an end of the little things in Ellsworth's
public career. From the year 1787 until the close
of his active life there was scarcely anything he did
or helped to do that will not demand to be remem
bered so long as the republic shall endure and keep
its form.

Yet there does not survive a single speech or even
a letter to show that during the interval following his
retirement into the service of Connecticut he took any
part whatever in the movement for a better system
for the whole country. Neither did Connecticut have
much part in it. Of all her public men, only Ells
worth's former protege, Noah Webster, appeared con
spicuously among the advocates of a stronger Union.

1 Root's Reports, 93, 98. In this brief account of Ellsworth as a Superior
Court Judge, I have drawn freely on Van Santvoord, whose treatment of the
subject, though also brief, is careful, intelligent, and well informed.

THE GREAT CONVENTION 117

When Virginia and Maryland took the lead and
brought about a convention at Annapolis, Connecti
cut sent no delegates. The General Assembly had
accepted the scheme of revenue commended to the
states by Congress in the spring of 1783, but not
without a long delay and a protest against one feature
of it ; for in Connecticut and other parts of New Eng
land the commutation of the army's half-pay was
disrelished, and the right of Congress to grant the
half-pay itself was questioned.1 As New York would
not accede to the scheme, it failed, and from that time
Connecticut's responses to the requisitions of the help
less Congress were, like those of other states, absurdly
slight. When a call was issued for a second conven
tion of all the states, to meet at Philadelphia in May
of 1787, she was almost the last to choose her dele
gates. Yet she was suffering very seriously from one
of those glaring defects of the existing confederation
which Madison and Washington and a few other
broadly patriotic men were trying now to remedy.
Of the products of other countries which her people
consumed, only a very small proportion were brought
into her own ports. The rest came chiefly through
the ports of her neighbors, New York and Rhode
Island, to whom in this way Connecticut paid trib
ute. That was one reason why New York and Rhode

1 Oct. 24, 1783, Ellsworth wrote to Samuel Hoi ton of Massachusetts : " I
congratulate you also on another piece of intelligence that your wise and
patriotic state has granted the impost — fully — by a unanimous vote of the
Governor and Senate, and a majority of 16 in the House, — which I hope
will have a good influence on our Assembly now sitting, the lower house of
which have been too much disposed to risk everything rather than grant
a revenue which might apply to commutation." Ellsworth Papers in the
New York Public Library.

Il8 OLIVER ELLSWORTH

Island lagged behind in the movement to strengthen
the central government ;. why New York, though she
commissioned Hamilton one of her delegates to the
convention, sent along with him Yates and Lansing,
state-rights extremists, so that he should find him
self a minority of one in his own delegation, and why
Rhode Island never would elect any delegates at all.

Connecticut elected hers on May 12, — only two days
before the date on which the convention was to have
assembled. The first choice of the Assembly was
Ellsworth, William Samuel Johnson, and Erastus
Wolcott of East Windsor.1 But Wolcott declined
to serve, and Roger Sherman was chosen in his
place. Ellsworth must have set off very promptly,
for on May 28 he was in his seat in Independence
Hall in Philadelphia. That was the second sitting
of the convention, for many other members had been
late, and it was not called to order until the 25th.
Sherman appeared two days after Ellsworth, and
Johnson on the second day of June. Fortunately, a
member from a very different quarter of the Union,
Major William Pierce of Georgia, has left on record
the impression which these three Connecticut states
men made upon him at the time.2

To Dr. Johnson this contemporary conceded "a
strong and enlightened understanding,'* but could not
find in the learned gentleman's speeches anything to
warrant his reputation for oratory. His discourse
was, indeed, eloquent, clear, and highly instructive,
but something in his voice displeased the ear. His

1 Stiles's " Ancient Windsor," I, 905.

2 American Historical Review, III, 310-334; given also in the notes to
Vol. Ill of Hunt's "Madison's Writings," passim.

THE GREAT CONVENTION 119

manners, however, were distinguished, and he won the
liking of his fellows by the sweetness of his temper
and the affectionate way he had of addressing them.
This was very different from his elder colleague's
style. " Mn Sherman," Pierce wrote, " exhibits the
oddest shaped character I ever remember to have
met with. He is awkward, unmeaning, and unac
countably strange in his manner. But in his train
of thinking there is something regular, deep, and
comprehensive, yet the oddity of his address, the
vulgarisms that accompany his public speaking, and
that strange New England cant which runs through
his public as well as his private speaking make every
thing that is connected with him grotesque and laugh
able : — and yet he deserves infinite praise, — no man
has a better heart or clearer head. . . . He is an able
politician, and extremely artful in accomplishing any
particular object; — it is remarked that he seldom
fails. . . ." The youngest of the trio is described
more briefly: "Mr. Ellsworth is a Judge of the
Supreme Court in Connecticut ; — he is a gentleman
of a clear, deep, and copious understanding ; eloquent,
and connected in public debate ; and always attentive
to his duty. He is very happy in reply, and choice in
selecting such parts of his adversary's arguments as
he finds make the strongest impressions, — in order
to take off the force of them, so as to admit the power
of his own. Mr. Ellsworth is about thirty-seven years
of age,1 a man much respected for his integrity, and
venerated for his abilities."

There was scarcely another delegate whom Pierce
could praise with so little abatement Yet his char-

1 He was forty-two, in fact.

120 OLIVER ELLSWORTH

acter of Ellsworth consists with other portraits, and
Pierce can scarcely have had any partiality for a
New England man whom he probably saw now for
the first time in his life. Beyond question, Connecti
cut's delegation was one of the strongest on the floor.
Each of the three was a man of force, likely to hold
his own in any representative assembly, and they
labored together in exemplary friendliness, with an
uncommon unanimity of purpose and opinion. No
other Eastern state had chosen so happily.

Many writers have sought about for words to praise
the great convention, but none, I think, has hit upon
a better phrase than Major Pierce's; he calls it "the
wisest council in the world." Sherman, who had sat
in Congress with many of the older and more famous
of the delegates, — himself the next in age to Franklin,
— did not find himself abashed in such a presence, but
began at once to take a full share in the discussions.
Ellsworth, however, less known, and younger than
Sherman by nearly a quarter of a century, sat for a
fortnight in silence, forming, no doubt, his own delib
erate judgment of the situation and the schemes pro
posed, and his own shrewd estimate of all these strong
and independent men about him. Apart from the roll-
calls, his name does not appear in any record of the
proceedings under an earlier date than June n, when
he merely seconded a motion of Sherman's.1

Meanwhile, the convention, plunging at once into
its work, had covered much important ground. With-

1 " Documentary History of the Constitution," published by the Depart
ment of State, Washington, III, 108. This collection of documents is my
authority for all specific statements about the convention for which no other
authorities are given.

THE GREAT CONVENTION 121

out some knowledge of its general plan of procedure,
it will not be easy to see clearly what was the share of
Ellsworth or of any other single member in the final
outcome of its labors and debates.

Edmund Randolph, governor of Virginia, had led
the way into the great field of statesmanship open to
the Assembly by proposing, in an elaborate speech, a
series of resolutions agreed upon by several of the
Virginia delegates, and based on a plan of Madison's.
They set forth the general scheme of a strong central
government, to be made up of a distinctly national
legislature of two houses, the first to be elected by the
people, the second by the first, and of a national execu
tive and judiciary, to be chosen by the legislature.
The troubles which the old confederation had en
countered from its lack of authority over individuals
were squarely met by granting to the central legisla
ture the right to make laws in all cases to which the
several states were incompetent, or in which, through
their uncontrolled activity, " the harmony of the United
States " might be interrupted. There was even con
ferred a power to negative state laws which should
seem to contravene the new articles of union, and to
coerce any state that would not meet its obligations.
Here was much more than a mere improvement of the
articles. By giving to the government an immediate
operation upon individual citizens, its whole character
would be radically changed. It would be self-support
ing and supreme. In making laws, in enforcing them
by its executive, in administering justice through its
courts, it would act always of its own authority and
force, neither waiting for the states to approve its
measures nor depending on them to pay the bills.

122 OLIVER ELLSWORTH

The Virginia resolutions, introduced the day after
Ellsworth's arrival, were at once referred to a com
mittee of the whole house, where they were under
consideration until June 13, when the committee rose
and reported them back to the convention with
changes and additions. Throughout this early period
of the debates, national men and the national motive
had the ascendency. Hamilton, it is true, would have
gone much farther than even Randolph proposed.
He wished to overthrow completely the power and
sovereignty of the states, and he wished also to
abandon democracy and make the government dis
tinctly aristocratic. But Read of Delaware was
apparently the only other delegate who fully shared
these views. Gouverneur Morris, though contemptuous
of democracy and bent on anchoring all to property,
fell somewhat behind the thoroughgoing Hamilton.
Madison and his Virginian colleagues, whose prestige
was, no doubt, controlling at the outset, were not
committed either against democracy or against a
reasonable authority in the states. As the debate
proceeded, the representatives of New Jersey, Dela
ware, and Maryland gradually gained the confidence
to speak out strongly against those parts of the Vir
ginia plan which threatened the sovereignty and the
equality of the several states, and they were abetted by
Hamilton's New York colleagues. By the time the
committee rose, there was a clear confrontment of
national men and state-rights men, with the delegates
from the larger states, as a rule, on one side, and the
delegates from the smaller states on the other. The
controversy ranged over various specific questions,
but it centred about the question of how the central
legislature should be chosen and composed.

THE GREAT CONVENTION 123

The three delegates from Connecticut had come to
Philadelphia with no other design than the general
purpose to amend the old articles in those respects in
which they had proved defective. After Sherman's
death, there was found among his papers a series of
nine proposals, which exhibit his view of what was
needed in order to a better general government.1 He
desired merely to give Congress, constituted as it was,
certain additional powers, among them the control
of foreign and interstate commerce, and the power to
levy and collect duties on imposts. He would have
made its laws binding on the states and the people
in everything pertaining to the common interest, he
favored setting up a supreme central tribunal, and he
would also have denied to the states certain powers
which they had misused, like the power to emit bills
of credit. But the scheme did not contemplate any
radical change in the form or the basis of the govern
ment. Ellsworth, whether or not he helped to frame
these proposals, showed, when he began to play a
part in the convention, that they expressed substan
tially his own view also. He had, however, before
Johnson came, differed with Sherman frequently, for
on a number of questions the vote of Connecticut was
" divided " and lost. The inference to be drawn from
these early roll-calls is that of the two Sherman was
somewhat the more rigid state-rights man. But they
stood together, and Johnson with them, when the

1 Evarts's " Sherman," in Sanderson's " Biographies of the Signers,"
42-44; L. H. Boutell's "Sherman," 132-134. Bancroft ("History of
the United States," VI, 231, note) thinks that this paper was probably
written after Sherman's arrival in Philadelphia, and favors the notion that
Ellsworth had a hand in framing it. Boutell, however, assigns it to " the
latter part of Sherman's service in the Continental Congress."

124

OLIVER ELLSWORTH

issue between the small states and the large was
clearly drawn. That was the issue before the conven
tion when they made their motion of June 1 1.

The day before, William Paterson of New Jersey
had with fire and bitterness assailed the whole plan
before the house for its clear purpose and tendency to
destroy the equality of the states in their common
government by basing directly on population the
apportionment of representatives in the legislature.
Wilson, who seems from the first to have been the
special champion of proportional representation in
both houses, had answered him without making any
concessions. Paterson and his following denied the
convention's right, under the guise of amending
the old articles, to accomplish such a revolutionary
change, accused the great states of planning to reduce
their lesser associates to utter impotence and insignifi
cance, and began now to declare defiantly that the small
states never would federate on any such terms. On
the other hand, Wilson and others, pointing out that
an equality of states in Congress meant in practice the
government of an overwhelming majority of the peo
ple by a ridiculously small minority, declared that the
great states would not submit to such injustice. The
issue between the national and the federal or confeder
ate principle was made quite as plain as that between
the interests of the greater states — particularly
Massachusetts, Pennsylvania, and Virginia — and
the interests of the little states like New Jersey and
Delaware. It seems now, in fact, much plainer;
for there has never come about any such division
between the big and the little states as was so often
foreboded. Nevertheless, that apprehension was the

THE GREAT CONVENTION 125

source of the angriest of all the conflicts in the
convention.

On the nth, the whole subject of the ratio of rep
resentation in both houses was still under discussion.
Various proposals had been made, and among them
one by Sherman that contained the essence of a
plan of compromise which the convention, after
many times rejecting it, came at last to accept as
the only way out of the controversy. The motion
was that in the second branch of the legislature each
state should have one vote. Shortly afterward, a
motion for an " equitable ratio " in the first branch
being carried (Connecticut voting ay), Rutledge's
plan of a ratio based on contributions to the revenue
was set aside for Wilson's simple rule of population.
At this point, Sherman called for a question on the
second branch, and Ellsworth, rising for the first time,
seconded him.

They were voted down by Massachusetts, Pennsyl
vania, and all the states south of Maryland. Geor
gia and the Carolinas, expecting a rapid growth in
wealth and numbers, felt that their interest lay with
the great states. Of the little states, both New Hamp
shire and Rhode Island were still unrepresented.
Wilson and Hamilton, promptly seizing the opportu
nity, pushed the national principle as far as it ever was
advanced at any time in the convention. They moved
the same ratio for the second branch as for the first,
and the motion was carried by the same majority of
six states to five. For weeks, this clause was stub
bornly retained in the resolutions, which were now, to
use a favorite phrase of Madison, " on the anvil," and
gradually being hammered into the shape of a con
stitution.

126 OLIVER ELLSWORTH

The next day, Ellsworth and Sherman joined in a
motion for annual elections to the first branch of Con
gress. Whenever this subject was up, Connecticut
stood for brief terms of service. Her experience of
annual elections had been peculiarly fortunate, and
doubtless accounts in part for the strong faith in
democracy which her delegates now exhibited at every
opportunity. They stood alone against the whole
clause on the term and pay of representatives, object
ing both to the length of the term and to payment
from the national treasury instead of by the states.

In the bigger contest between the two groups of
states over the question of the national or federal
character of the system to be established, the rising
of the committee was the signal for an open show of
force by the partisans of the little states. The con
vention adjourned for two days, to give them time to
formulate their plan, and on the i5th Paterson re
ported it. There is no authentic list of those who
helped him to frame it, but Madison states that it " had
been concerted among the deputations, or members
thereof, from Con1., N.Y., N.J., Del., and perhaps Mr.
Martin of Maryland,"1 explaining, however, that they
consorted from different principles. Connecticut and
New York were opposed to a departure from the princi
ples of the old confederation ; they were willing to give
a few new powers to Congress, but not to set up
a national government. Delaware and New Jersey
were chiefly concerned for an equality of representa
tion. Madison adds that the attitude of the whole
conservative party began now to produce serious anxi-

1 " Documentary History of the Constitution," III, 124. See also Luther
Martin's account in Elliot's " Debates," I, 344-389.

THE GREAT CONVENTION 127

ety for the outcome of the convention. Howsoever
the new plan was put together, it followed in its main
lines the nine proposals which were afterward found
among Sherman's papers, and which one historian has
styled "the plan of Connecticut"1 In place of the
first resolution of the Virginia plan as it now stood,
calling for a distinctly national government of three
departments, Paterson proposed merely to amend and
extend the old articles so as to meet the actual exi
gencies of the government and preserve the Union.
His specific proposals were all in keeping with this
general definition of the object to be sought. Not
merely was Wilson's plan for electing the second
branch of the legislature rejected ; the second branch
itself was rejected, and the old Congress left as it was,
save that its powers were increased.

The consideration of the new plan, apart from gen
eral comparisons with its rival, never went beyond its
opening resolution. Referred, along with the amended
Virginia plan, to a committee of the whole house, it was
scathingly criticised by Wilson and hotly defended by
Paterson. The question being between the first reso
lutions of the two antagonistic programmes, Ellsworth
offered, as a better means to take the sense of the
committee, a resolution " that the legislative power of
the United States should remain in Congress." Madi
son agreed that Ellsworth's motion was the better form
for a division, but it was not seconded. This was
on Saturday, the i6th. On Monday, Hamilton occu
pied the entire sitting of the committee with a long
speech, condemning both plans as too weak and too
democratic, and presented in rough outline a plan of

1 Bancroft, VI, Table of Contents, and pp. 231-232.

128 OLIVER ELLSWORTH

his own. On Tuesday, the iQth, after a strong and
patient argument from Madison, the Paterson scheme
was definitely rejected, and the plan based on the Vir
ginia resolutions again reported to the convention.
Only New York, New Jersey, and Delaware voted no.
Apparently, the Connecticut men were either some
what moved by the strength of the national arguments
and the national spirit, or else they had acted with the
extreme state-rights men only to prevent the national
men from going too far, not in the wish to keep the
government entirely federal. The very next day, Sher
man let fall something which may perhaps be taken
to mean that there was already in the air the project
of a compromise between the two warring theories.
Speaking on the general form of the legislature, he
declared that he was for one chamber rather than two ;
but he added that if the difficult question of repre
sentation could not be otherwise got over he would
consent to two, provided each state were allowed an
equal voice in the second.

If, however, the idea of compromise was in the air,
this was for a while the only sign of it in the debates.
The convention was now a second time going over
the whole ground, examining in detail the report of
the committee, minutely discussing it from many points
of view, striking out, expanding, and amending. The
majority was still with the large states and the national
principle. At the outset of the second revision, how
ever, Ellsworth secured a conspicuous amendment.
For the phrase " a national government " in the open
ing resolution he moved to substitute " the govern
ment of the United States." The motion passed
without dissent, and the title was never changed

THE GREAT CONVENTION 1 29

again. Perhaps, therefore, he ought to be credited
with the naming of the government. He also began
now to speak much more frequently, though seldom
at great length ; and there are signs that when he
did speak the strongest men in the convention paid
attention.

But it is misleading to try to estimate his or any
other delegate's influence solely on the basis of what
he did and said in the convention and in the com
mittee of the whole. Robert Morris, for instance,
never made a single speech ; but it is hard to believe
that he had nothing whatever to do with the outcome.
Statesmanlike as this great body was, extraordinary as
it was for nobleness and singleness of purpose, many
of the members were veterans in politics; and they
certainly did not on this occasion forbear to seek their
ends by other methods than debate in the full assem
bly. We know from Madison and others that proceed
ings on the floor were on several important occasions
governed by agreements elsewhere and otherwise ar
rived at. And of Ellsworth in particular we know
that from his boyhood days at Princeton he had
shown an uncommon skill in this kind of work.
He was, in fact, an excellent politician, and he had
even more than his share of Yankee shrewdness and
of Yankee fondness for a bargain. The chances are
that if, as early as Sherman's speech of the iQth of
June, there was an understanding of any sort about
the final composition of the houses, his younger col
league knew of it and was a party to it. And if, in
abetting Paterson and Martin and other state-rights
extremists, the men of a somewhat less uncompro
misingly particularistic bent were merely trying to

130 OLIVER ELLSWORTH

frighten the national men into certain concessions,
Ellsworth doubtless fully understood that also.

Whether or not that was their object, they un
doubtedly did inspire the gravest apprehensions in
the leaders of the majority. When Paterson proposed
his plan, Madison recorded that the opposition to a
national government " began now to produce serious
anxiety for the result of the convention." Mixed
with the fear that the extreme state-rights men might
withdraw altogether, there was the apprehension that
New Hampshire might soon come in and bring about
a deadlock, and there was also, perhaps, some uneasi
ness about the course of Georgia, which was still the
least populous of all the states, and must look well
into the future for any reason for voting with the
great-states party. Moreover, Delaware had expressly
instructed her delegates against any change of that
provision in the articles which gave to each state one
vote in Congress. The opponents of proportional
representation were not without resources for resist
ance or for compromise.

Meanwhile, as the revision proceeded in convention,
Ellsworth sustained with speeches some of the opin
ions which he had indicated already by his votes
in committee. He spoke for annual elections to the
first branch of the legislature,1 urging that the people
were fond of frequent elections and might in one
branch safely be indulged; and when the clause
providing that representatives should be paid from the
national treasury again came up, he moved to strike
it out in order to substitute payment by the states.
He pointed out2 that under the proportional plan

1 June 20. 2 June 22, Yates, in Elliot's " Debates," I, 434.

THE GREAT CONVENTION 131

this would mean no hardship to the smaller states ;
that the standard of living differed in different states ;
and that therefore uniformity would work unequally
and might arouse opposition. Hamilton, who was one
of his opponents on this point, prophesied that the
state governments would be the rivals of the general
government, and ought not, therefore, to be its pay
masters. Ellsworth promptly retorted: " If we are
so exceedingly jealous of state legislatures, will they
not have reason to be equally jealous of us ? If I
return to my state, and tell them, ' We made such and
such regulations for a general government because
we dared not trust you with any extensive powers,'
— will they be satisfied ? Nay, will they adopt your
government ? And let it ever be remembered that,
without their approbation, your government is noth
ing more than a rope of sand."1 But on both these
points he was beaten.

By the 25th of June, the revision had come
again to the constitution of the second branch of the
legislature. As the resolution stood, the legislatures
of the states were to choose this branch. Wilson
moving to strike the clause out in order to a choice
by electors, Ellsworth replied in his first speech of
any considerable length.2 " Whoever chooses the
member," he contended,. " he will be a citizen of the

1 "Documentary History of the Constitution," III, 190.

2 Ibid., 209-210; Yates, in Elliot's "Debates," I, 446-447; King, in
"Life and Correspondence of Rufus King," by C. R. King, I, 607.
With Ellsworth's speeches in the convention I have followed Ban
croft's method, collating all the reports to be found. It is, I think,
a legitimate method to obtain a notion of what he actually said, and
particularly to make his reasoning clear. None of the reports is
perfect.

132 OLIVER ELLSWORTH

state he is to represent and will feel the same spirit
and act the same part whether he be appointed by
the people or the legislature. Every state has its
particular views and prejudices, which will find their
way into the general councils, through whatever
channel they may flow." The forecast was right, for
even to the present day the entire delegation of a
particular state, senators and representatives, will
usually stand together when its interests are in issue
or its desires need to be expressed. He was also of
opinion that if wisdom were the object in the second
branch the legislatures and not the people ought to
elect it. Turning then to the mooted question of
what part the states should have in the new system,
he said:

" We must build our general government on the
strength and vigor of the state governments. With
out their cooperation it would be impossible to sup
port a Republican government over so great an
extent of country. An army would scarcely render
it practicable. The largest states are the worst gov
erned. Virginia is obliged to acknowledge her
incapacity to extend her government to Kentucky.
Massachusetts cannot keep the peace one hundred
miles from her capital, and is now forming a standing
army for its support. How long Pennsylvania may
be free from a like situation cannot be foreseen. If
the principles and materials of our government are
not adequate to the extent of these single states,
how can it be imagined that they can support a sin
gle government throughout the United States ? We
know that the people of the states are strongly
attached to their own constitutions. If you hold up

THE GREAT CONVENTION 133

a system of general government destructive of their
constitutional rights, they will oppose it. Some are
of opinion that, if we cannot form a general govern
ment so as to destroy the state governments, we ought
at least to balance the one against the other. On the
contrary, the only chance we have to support a gen
eral government is, to graft it on the state govern
ments. I want to proceed on this ground, as the
safest, and I believe no other plan is practicable."

It really seems as if at this time Ellsworth had felt
his way nearer than any other member not merely to
a practical adjustment but to that conception of a
partly national, partly federal system which this as
sembly contributed to the art of government. It
was a new conception, and to ordinary thinking far
from easy. Neither Ellsworth nor the convention
can be said to have created or invented it, but only
to have discovered it. The delegates were gradually
led to it by the demands of the actual situation which
they had in hand.

Madison and others were for going on at once to
the question of the ratio in the Senate, but for a little
while the convention continued to consider the
method of election, the stipend, and the term of ser
vice. Wilson was defeated, and the choice of the
second branch by legislatures was not again seriously
attacked. But when Sherman spoke for a short term
of service, Hamilton took the other side, and in a brief
but very remarkable speech his intellect played upon
the happy working of democracy in Connecticut
in a way that fully explains why this young states
man of thirty was felt by his associates in the conven
tion as scarcely any other man of his time was when

134 OLIVER ELLSWORTH

strong men came together. He showed, in fact, a
clearer comprehension of Connecticut's still simple
civilization than Sherman had, who had known it all
his life. Hamilton had divined it, as, according to
Talleyrand's famous encomium, he divined Europe.
Ellsworth, for his part, moved again for payment by
the states, and encountered for his particular opponent
Madison, who pointed out that if the motion passed
the states would really have a power of recall, and
fix the term of service to suit themselves. It was
voted down, and then, adopting without debate the
resolution empowering each house to originate meas
ures of all kinds, the convention took up, out of their
order, the two resolutions that dealt with the ratio of
representation. When Luther Martin had finished
a speech, delivered " with great diffuseness and con
siderable vehemence," and so long that it ran over
well into the second day, Lansing of New York
brought forward the extreme state-rights proposal to
leave the suffrage in the new legislature precisely as
it was in the old Congress, and the controversy was
soon as warm as it had ever been. Franklin, whose
greatest services in the convention were rendered less
by statesmanship than by knowledge of human nature,
and particularly by the tact and wisdom he displayed
in dealing with the men about him, rose and moved,
with a short and serious speech, that thenceforth,
every day, the help of Heaven be implored. The
sitting ended without a formal adjournment.

It was clear to all that the convention had come
to the turning point in its history; its success or
failure would depend on its course with the question
of the suffrage in the two houses. It is true that

THE GREAT CONVENTION 135

the antagonism of interest between the large states
and the small was fanciful ; the apprehension of it is
a striking instance of the fallibility of the strongest
minds. But the issue between the national and fed
eral principles was both real and vital. If the new
system was to be, in any respect whatever, truly fed
eral, then the states, as states, must continue to be
somehow represented in the government. Apparently,
while many saw that this was so, the delegates from
Connecticut saw somewhat sooner and more clearly
than the others that the two principles could be
harmonized and correlated, and they also saw a way
to do it. Perhaps they were impelled by an imme
diate desire to win from the convention as much of
what they had originally demanded as it could pos
sibly be brought to concede ; but for being, in that
respect, no more than human, they ought not to be
greatly blamed. With the best and wisest of their
fellows, they were also, no doubt, quickened in their
contriving by an earnest wish to bring about such an
agreement as would keep the convention from break
ing up in anger and despair.

The next day, the 29th, Johnson opened the de
bate, speaking for a compromise, the people to be
represented in the first branch, the states in the
second. It should have been plain to the state-
rights extremists that their fight for the old ar
rangement — a single house, with an equal vote
for every state — was lost. Hamilton and Madison
assailed them with powerful reasoning and moving
appeals. Gorham spoke so despairingly of the pros
pect if they should remain obdurate, that Ellsworth
remarked, "He did not despair; he still trusted

136 OLIVER ELLSWORTH

that some good plan of government would be de
vised and adopted." Lansing's motion was then
voted down, and proportional representation in the
first branch was adopted. Johnson and Ellsworth
immediately moved to take up the resolution on the
suffrage in the second branch. That motion carrying,
Ellsworth moved to substitute the rule of the old Con
gress for the second branch, and spoke at greater length
than ever before. l

" He was not sorry, on the whole, that the vote just
passed had determined against this rule in the first
branch.2 He hoped it would become a ground of com
promise. He confessed that the effect of his motion
was to make the general government partly federal
and partly national. This would secure tranquillity,
and still make it efficient ; and it would meet the objec
tions of the larger states. The proportional represen
tation in the first branch was conformable to the national
principle and would secure the large states against the
small. In taxes they would have a proportional weight.
An equality of voices was conformable to the federal
principle, and was necessary to secure the small states
against the large. He trusted that on this middle
ground a compromise would take place. He did not
see that it could on any other. And if no compromise
should take place, our meeting would be in vain, and
worse than in vain. If the large states refused this
plan, we should be forever separated. If the Southern
states agreed to a popular instead of a state representa
tion, we should produce a separation. To the East
ward, he was sure that Massachusetts was the only

1 Madison, Yatcs, and King, as above.

3 Connecticut had voted for Lansing's motion.

THE GREAT CONVENTION 137

State that would listen to a proposition for excluding
the states, as equal political societies, from an equal
voice in both branches.1 The others would risk every
consequence rather than part with so dear a right. An
attempt to deprive them of it was at once cutting the
body of America in two, and, as he supposed would
be the case, somewhere about this part of it. The
Union must be cut in two at the Delaware. The large
States, he conceived, would, notwithstanding the equal
ity of votes, have an influence that would maintain
their superiority. Even in the executive, the larger
states had ever had influence. Holland, as had been
admitted (by Mr. Madison), had, notwithstanding a
like equality in the Dutch Confederacy, a prevailing
influence in the public measures. Small communities,
when associating with greater, could only be supported
by an equality of votes. The power of self-defence was
essential to the small States. Nature had given it to
the smallest insect of creation. He could never admit
that there was no danger of combinations among the
large states. They will, like individuals, find out and
avail themselves of the advantage to be gained by it.
It was true the danger would be greater if they
were contiguous and had a more immediate common
interest. Yet they might be partially attached to each
other for mutual support and advancement. They
would be able to combine, and therefore there was no
danger. A defensive combination of the small states
was rendered more difficult by their greater number.
Three or four could more easily enter into combina
tion than nine or ten.

1 No doubt he meant (and probably said) " excluding the states, etc.,
in both branches, from an equal voice."

138 OLIVER ELLSWORTH

" He would mention another consideration of great
weight. The existing confederation was founded on
the equality of the states in the article of suffrage ; was
it meant to pay no regard to this antecedent plighted
faith ? It was not yet obvious to him that the states
would depart from this ground. When in the hour of
our common danger we united as equals, should it now
be urged by some that we must depart from this prin
ciple when the danger is over ? Would the world say
that this is just? We then associated as free and in
dependent states, and were well satisfied. Let a strong
executive, judiciary, and legislative power be created ;
but let not too much be attempted, by which all may
be lost. Nor would he be surprised (though we made
the general government the most perfect, in our opin
ion,) that it should hereafter require amendment. But
at present this was as far as he could possibly go. If
this convention only chalked out lines of good govern
ment, we should do well. He was not in general a
half-way man; yet he preferred doing half the good
he could, rather than do nothing at all. The other
half might be added when the necessity should be
more fully experienced."

Time has dispelled the fear of the larger states'
combining, and the event has justified the conven
tion in departing from the letter of its commission and
supplanting with a better the system it was authorized
only to amend ; but this was, nevertheless, a remark
able speech. None that preceded it had grasped the
entire problem of an adjustment so fully and so firmly.
Of all Ellsworth's speeches that have been preserved
in any form, only two or three can be compared with
it. For two days the leaders of the national group

THE GREAT CONVENTION 139

were trying in vain to break the force of it ; and until
the vote was taken on his motion — probably the most
momentous of all the divisions, for the fate of the con
vention seemed to depend on it — he was the leader of
his side. Up to this time, whenever the second branch
was under discussion, Sherman had seemed to take the
lead ; but now Ellsworth's figure was much the more
distinct. The state-rights extremists had been thrust
aside, and he, with the plan of a compromise, stepped
into the forefront of the opposition.

Before the next day's debate began, Brearly of New
Jersey moved that a message be sent to New Hamp
shire to urge the immediate attendance of her dele
gates; it was presumed, of course, that they would
side with the smaller states. The motion was voted
down as of a nature to reveal to the country the con
vention's peril ; but it had doubtless served its real
purpose as a warning and reminder. Wilson, in a
long speech, then assailed the reasoning of Ellsworth.
With skill and force he rang the changes on the great
injustice and unwisdom of a federal arrangement.
Should the men in the convention who represented
three-fourths of the people yield to those who served
but one-fourth ? In the government to be established,
should two-thirds submit themselves to one-third ?
For whom were gentlemen forming a government?
Was it for men, or for imaginary beings called
states ? No one had yet offered any explanation of
the danger of the large states' combining. It was all
illusive and imaginary. On the other hand, it was
true that the false majority in the second branch
could not carry measures over the majority in the
first ; but they could prevent measures. And was it

140 OLIVER ELLSWORTH

*'

not to remedy that very weakness the convention had
been called?

Ellsworth, rejoining immediately, was true to
Pierce's account of him ; he struck at once at what
was strongest in his adversary's speech.

" The capital objection of Mr. Wilson, that the
minority will rule the majority, is not true. The
power is given to the few to save them from the many.
If an equality of votes had been given to them in both
branches, the objection might have had weight. Is it
a novel thing that the few should have a check on the
many ? Is it not the case in the British Constitution,
the wisdom of which so many gentlemen have united
in applauding ? Have not the House of Lords, who
form so small a proportion of the nation, a negative on
the laws, as a necessary defence of their peculiar rights
against the encroachments of the Commons ? No in
stance of a confederacy has existed in which an equal
ity of voices has not been exercised by the members
of it. We are running from one extreme to another.
We are razing the foundations of the building, when
we need only repair the roof. No salutary measure
has been lost for want of a majority of the states to
favor it. If security be all that the great states wish
for, the first branch secures them."

Even on the danger of a combination of the large
states, the weakest part of his contention, this rejoinder
was not entirely ineffective. It proves, at any rate,
that Ellsworth was ready and resourceful.

" The danger of combinations among them is not
imaginary," he declared. " Although no particular
abuses could be foreseen by him, the possibility of them
was sufficient to alarm him. But he could easily con-

THE GREAT CONVENTION 141

ceive cases in which they might result from such
combinations. Suppose that in pursuance of some
commercial treaty or arrangement three or four free
ports, and no more, were to be established : would not
combinations be formed in favor of Boston, Philadel
phia, and some port in Chesapeake ? A like concert
might be formed in the appointment of the great
officers."

He appealed again to the obligations of the federal
pact, which was still in force, and which had been
entered into with so much solemnity, persuading him
self that some regard should still be paid to the
plighted faith under which each state, small as well as
great, held an equal suffrage in the general councils.
And he doubtless gave a greater moral force to his
contention by adding : " His remarks were not the
result of particular or local views. The state he repre
sented held a middle rank."1

Madison, rising immediately, "did justice to the able
and close reasoning of Mr. E.," and strove to weaken
its effect. Catching at Ellsworth's assertion that in
all confederate governments there was equality of
suffrage, he cited instances to the contrary. But in
replying to the plea for " antecedent plighted faith " he
fell into a worse blunder himself : he attacked Connect
icut as of all the states the last that should have made
the plea. Turning to the real issue, he argued, wisely
enough, that the antagonism truly to be feared was not
between the great states and the little, but between
the Southern and the Northern. Yet he had no plan
to propose by which the two sections could be
balanced.

1 Madison and Yates, collated.

142 OLIVER ELLSWORTH

Ellsworth's quick rejoinder must have been effective
both as debating and as oratory. For once, his old
labors at the Pay Table brought him a reward.

" My state," he said,1 " has always been federal, and "
— turning to Washington — "I can with confidence
appeal to your excellency for the truth of it during the
war. The muster rolls will show that she had more
troops in the field than even the state of Virginia. We
strained every nerve to raise them ; and we spared
neither money nor exertions to complete our quotas.
This extraordinary exertion has greatly distressed and
impoverished us, and it has accumulated our state debts.
We feel the effects of it even to this day. But we defy
any gentleman to show that we ever refused a federal
requisition. We are constantly exerting ourselves to
draw money from the pockets of our citizens as fast as
it comes in ; and it is the ardent wish of the state to
strengthen the federal government. If she has proved
delinquent through inability, it is no more than others
have been, without the same excuse."

Sherman clinched the refutation by again pointing
out that Madison's object required him to prove the
constitution of Congress at fault : he had only proved
the states at fault What was really needed was to
give more power to the government. As others came
into the discussion, it grew every moment keener and
more anxious. Davie of North Carolina was much
moved by Ellsworth's speeches, and showed plainly
enough his discontent with the replies to them. Be
yond question, the Connecticut idea was gaining favor.
For the first time, Wilson offered a slight concession,
agreeing that the smallest state, Delaware, ought under

1 Yates, in Elliot's " Debates," I, 469, 470.

THE GREAT CONVENTION 143

any ratio to have at least one representative in the
second branch. He and Rufus King of Massachu
setts displayed, however, a strong resentment at the
half-threat of the small states that without equality in
one branch they would not confederate at all. Wilson
firmly declared that if this were so he was for letting
them withdraw. King was of the same temper, and
seemed to warn the opposition that this was their last
chance to come into the Union. Gunning Bedford of
New Jersey, angered by this language, went still far
ther in retorting. If, he said, the plan of the majority
should go forth to the people, this would prove, truly
enough, the last moment for a fair trial in favor of
good government. But he was under no apprehen
sions. " The large states dare not dissolve the con
federation," he declared. " If they do, the small ones
will find some ally of more honor and good faith, who
will take them by the hand and do them justice."
Before he took his seat, however, he tried to soften this
threat ; and before he could be answered, Ellsworth,
rising for the third time, spoke again, replying to a
question King had put to him.

" I am asked," he said,1 " by my honorable friend
from Massachusetts, whether, by entering into a national
government, I will not equally participate in the national
security. I confess I should ; but I want domestic hap
piness as well as general security. A general gov
ernment will never grant me this, as it will not know
my wants or relieve my distress. My state is only one
out of thirteen. Can they — the general government
— gratify my wishes ? My happiness depends as
much on the existence of my state government as a

1 Yates, in Elliot's " Debates," I, 473.

144 OLIVER ELLSWORTH

new-born infant depends upon its mother for nourish
ment. If this is not an answer, I have no other to
give."

But Bedford did not escape. King, an eloquent
speaker, scored him severely; and with this exchange
the sitting ended. At the next, July 2, without any
more debate, Ellsworth's motion was put. The vote
was a tie. For the first time, the national, large-
states majority was broken.

It was Georgia that had changed. Her vote, hitherto
regularly given to the majority, was this time divided.1
It was, in fact, one man only that had changed, and
that man was Abraham Baldwin, a native of Con
necticut, a graduate and sometime tutor of Yale, and
but recently become a citizen of the state which he
now sat for. The facts countenance a conjecture that
the personal influence of the three leading men of his
native state may have helped to turn him ; 2 but he
may also have felt, as Georgia was the last state to
vote, and had but two representatives, that he and his
colleague had to decide whether the convention should
continue in existence. He had said that he thought
the second branch ought to be an aristocratic body,
and his votes, both before and after this particular
division, show that he was favorable to the national
view. The chances are that to save the convention
he had for the time being sacrificed his own opinions.3

The question now was, Would the majority yield ?
The two Pinckneys at once brought forward an

1 Maryland also was divided, on account of Mr. McHenry's absence.
Luther Martin, in Elliot's " Debates," I, 349.

2 A close student of the literature of the convention declares, " It is
ten to one Ellsworth managed him."

8 See Martin, in Elliot's " Debates," I, 356.

THE GREAT CONVENTION 145

impossible plan for the proportional representation,
not of states, but of sections. A committee was pro
posed. Sherman said : " We are now at a full stop.
Nobody, I suppose, meant that we should break up
without doing anything." He favored a committee.
Gouverneur Morris, still for making the second branch
the stronghold of property, also favored it. Wilson,
disappointed and unreconciled, and Madison, still dis
trustful, both opposed it. A grand committee of one
from each state was, however, chosen by ballot. From
Connecticut, Ellsworth was taken, and the convention
had the good sense to put on Dr. Franklin from Penn
sylvania. Everything was so plainly in suspense
until the great point should be decided that the con
vention adjourned over from Monday to Thursday,
July 5, to wait for the report.

When it came, it had the form of a compromise ; but a
compromise in which, obtaining all that they themselves
had fought for, the federal men offered to the national
men something they had not demanded. The com
mittee recommended that in the second branch each
state should have an equal vote, and that bills to raise
and appropriate money and to pay official salaries
should originate in the first branch and should not be
altered or amended in the second. The specific plan
was Franklin's. Ellsworth had not served on the com
mittee ; a note of Madison's tells us that he was kept
away by indisposition and that Sherman took his
place. Madison also reports that in the committee
Sherman proposed another plan. He moved, " That
each state should have an equal vote in the second
branch, provided that no decision therein should prevail
unless the majority of states concurring should also

146 OLIVER ELLSWORTH

comprise a majority of the inhabitants of the United
States ; " but the motion was not seriously entertained.
This was substantially the same plan that Sherman had
proposed more than ten years earlier for the Articles
of Confederation.

The national men had suffered a defeat; but the
federal men had not yet won their victory. Wilson
said the committee had exceeded their powers. Madi
son argued that the concession in the matter of money
bills was valueless, and that it would lead to conflicts
between the houses. Others attacked the proposal on
other grounds. Ellsworth merely remarked that he
had not attended the meetings of the committee, but
was ready to accede to the report. " Some compromise
was necessary, and he saw none more convenient or
reasonable." George Mason of Virginia thought it
at least preferable to an appeal to the world by the
different sides. His deep anxiety was obvious. A
country gentleman, and far from home, he vowed that
he would bury his bones in Philadelphia rather than
leave his country to the fate that awaited it if the
convention failed. Gerry of Massachusetts spoke in
the same tone ; while on the other side there was not a
sign of yielding. For ten days longer, the fate of the
compromise was still in doubt. On July 10, Washing
ton wrote to Hamilton : l " When I refer you to the
state of the counsels which prevailed when you left the
city, and add that they are now, if possible, in a worse
train than ever, you will find but little ground on
which the hope of a good establishment can be formed.
In a word, I almost despair of seeing a favorable issue
in the proceedings of our convention, and do therefore

1 Sparks, " Writings of Washington," IX, 260.

THE GREAT CONVENTION 147

repent having had any agency in the business." ] It
seemed as if, the longer the whole subject of the con
stitution of the legislature was up, the more the
members differed about it. One new question after
another continued to be raised. Should the ratio of
representation in the first house be based on popula
tion, or property, or both ? At what intervals should
censuses be taken ? Until the first was taken, what
should be the ratio ? Should new states be admitted
to an equality with the old ? In estimating population,
should negro slaves be counted ? Once this last
inquiry came before the convention, it found itself
engaged, at the same time, with two most difficult
antagonisms. Morris increased the confusion with a
motion that taxation should be apportioned according
to representation. Several of these questions were
referred to committees. In dealing with them all,
Ellsworth seems to have been governed chiefly by a
steady purpose to carry through the programme of
adjustment. On July 7, by a vote of six to three, the
clause conceding equality in the second branch was
kept in the report. But that was not the end. At
every opportunity, Wilson and Madison and Morris
and others were battling with the drift toward Con
necticut's position. Saturday, July 14, when Martin
called for the question on the whole report, they tried
to substitute another plan of Pinckney's, which gave to
each state a fixed number of representatives in the
second branch. When they had again recounted all
the old objections to the federal convention, Ellsworth
merely rose and asked two questions. He asked

1 " We were on the verge of a dissolution, scarce held together by the
strength of a hair." Luther Martin, in Elliot's " Debates," I, 358.

148 OLIVER ELLSWORTH

Wilson whether, in the old Congress, he had ever
seen a good measure fail for want of a majority of
states ; and he asked Madison whether a negative
lodged with a majority of the states, even the smallest,
could be more dangerous than a qualified negative
lodged in a single executive magistrate, who must
be taken from some one state.

Pinckney's motion was defeated, and on Monday,
the 1 6th, without any more debating, the division was
taken. This time, Georgia was against the plan of
compromise ; but Caleb Strong and Elbridge Gerry
voted " ay," dividing Massachusetts, and North Caro
lina passed over to the ays. New York was absent
The vote was five to four in favor of the compromise,
and the decision proved to be final. One week later,
Morris and King moved that the voting in the sec
ond branch should be per capita, and only Delaware
objected. Ellsworth remarked that he had always
been in favor of voting in that mode. The same day,
the number of senators from each state was fixed at
two. The constitution of the Senate was determined.

However, the vote of the i6th was no sooner
taken than Randolph, deeply vexed, spoke of an ad
journment. Paterson, taking him to mean adjourn
ment sine die, challenged him to move it. But the
men from the big states were not ready to go that far.
They did indeed show, plainly enough, that they were
bitterly disappointed. The next day, before the hour
of meeting, they held a conference, and some of them
at that time talked of forming a union of their own,
without the smaller states. But others were frankly
for giving up the fight. The conference merely con
vinced the victors that they need not be afraid.

THE GREAT CONVENTION 149

And this, no doubt, was what the men who made
the compromise had counted on. They had judged
rightly of the lengths to which each side would go.
It was the state-rights extremists who were really dan
gerous. Some of these, even now, were far from satis
fied. Yates and Lansing of New York had already
left the convention. Before the end, Luther Martin
of Maryland also withdrew. Neither, as the event
proved, had the state-rights sentiment among the peo
ple been overestimated. As it was, the extraordinary
advocacy of Hamilton hardly succeeded in overcoming
the state-rights party in New York. In other states,
the fight for ratification was nearly as close. Rhode
Island and North Carolina held out several years.
Ellsworth and his party had been remarkably near
the truth in all their calculations.

If, now that a hundred years and more have passed,
we try to form a judgment of their course in all its
bearings, with all its consequences, we shall, I think,
conclude that it was wise. Ellsworth was right when
he declared both that a compromise was necessary and
that no other compromise was possible. To perpetu
ate the union, a nation must be formed ; but it had to
be a federal nation. Nor is necessity the only ground
on which we can defend the convention for leaving
the federal principle in the government. It has, no
doubt, cost us heavily to keep it there. For many of
our tasks and opportunities, a government completely
national might have been much better. It may be
argued, even, that but for this concession to the states
we never should have had the Civil War. That, how
ever, is extremely questionable. The true causes of
the Civil War were institutional ; and constitutions

150 OLIVER ELLSWORTH

do not, as a rule, alter institutions — they are more
often made and altered by them. At any rate, nine
out of ten of us would probably now decide that the
federal principle is worth far more than it has ever
cost. And as for the union of the two principles in
one government, it is hard to overestimate the value,
to us and to mankind, of that invention or discovery.
To those who made it, the world owes such a debt as
that it owes to the illustrious men who from time to
time have revealed to their fellows some new law or
some new energy of nature. Their place in the history
of government is much like Newton's in the history of
science, or Darwin's, or Galileo's. And if, in nature,
we seek for a harmony of warring principles to match
with this of theirs in government, we find it nowhere
short of that immense and noble equilibrium which
throughout the entire solar system holds each satellite
loyal to its star, and keeps the stars, in all their mighty
circling, obedient to the suns.

Of Ellsworth's part, or any other one man's part,
in this most epochal achievement, it is not possible
to speak with perfect confidence. The material is not
sufficient. By a sort of consensus of historians, how
ever, the chief part in it was either his or Sherman's.
It is quite probable that from first to last these two
were acting together to the same general end ; and
others may have shared their counsels. By those who
feel that Sherman was the leader, it is pointed out
that ten years earlier he had taken much the same
position. It was he, too, who offered the first motion
looking to a compromise. He made more speeches
for it, perhaps, than any other. And later on, after Ells
worth left, it was he who first proposed to guarantee to

TJ1E GREAT CONVENTION 151

each state forever, even against amendments properly
proposed and ratified, an equal representation in the
Senate.1 Yet to one who with an open mind follows all
the motions and the speeches it will appear, I think,
that Ellsworth's speeches were the stronger. His
position was also closer than Sherman's to the final
stand of the convention, and he spoke, almost from the
beginning, with a kind of authority, as one who not
only knew his own mind, and felt that he was right,
but saw his way to victory. When, after many re
verses, victory came, the fight was on his motion, the
debate centred about his speeches, the leaders of the
other side behaved toward him as if he were the leader.
In Sherman's first reference to the particular plan
which finally prevailed, he did not speak of it as if he
were himself the author of it ; on the contrary, almost
to the end, he said that he preferred an appreciably
different plan. When a committee was appointed,
Ellsworth was chosen for Connecticut. Although he
was indisposed, and Sherman served in his place, it
was not Sherman who suggested the form of the
report.

But these two long-dead statesmen were always,
while they lived, the best of friends. After Sherman
died, Ellsworth never failed, when he went to New
Haven, to pay a visit to the other's grave. Perhaps
we do them both a wrong to drag them into a post
humous rivalry for glory they were both content to
share.

From this achievement of the two Connecticut
leaders we must turn to another chapter of the con-

1 See letter of George Frisbie Hoar — a grandson of Sherman — printed
as an appendix to H. C. Lodge's " A Fighting Frigate, and Other Essays."

152 OLIVER ELLSWORTH

vention's history in which they are seen by no means
at their best. The differences over the ratio of repre
sentation had led, almost at once, to a controversy over
slavery, and on that issue they took a stand which it
is now hardly possible to approve.

On the question of how negro slaves should be
treated, whether as men or as property, Sherman and
Ellsworth had both adhered to the arrangement first
proposed in April, 1783, when Ellsworth was in Con
gress. Utterly illogical as it was, the plan of treating
five slaves as equivalent to three free white men had got
already a wide acceptance. It had, therefore, a certain
advantage over every other plan proposed. Advanc
ing from it as from a concession already made to her
interests, South Carolina now demanded representa
tion for all the slaves. Gouverneur Morris and one or
two other members protested bitterly against recogniz
ing slavery in any way, but from the first it seems to
have been felt that their uncompromising view could
not prevail. The practical question being merely how
much should be conceded in order to keep Georgia
and the Carolinas in the Union, Ellsworth, who
stood committed to the three-fifths ratio as a basis for
taxation, was for making it the basis of representa
tion also. After Morris had carried through his reso
lution " that direct taxation ought to be proportioned
to representation," and after Morris and Davie of
North Carolina had exchanged strong language over
slavery, Ellsworth moved the three-fifths rule, to hold
until a census should be taken. Randolph wished to
make the rule perpetual, and this substitute Ellsworth
readily accepted. July 12, Pinckney's motion, that all
the slaves be counted, was voted down, Randolph's

THE GREAT CONVENTION 153

proposal was adopted, and from that time the three-
fifths rule never seems to have been in any real
danger. It was accepted as a part of the great com
promise.

It was late in August before Ellsworth spoke again
on slavery. The resolutions, shaped now into a for
mal constitution, were passing the third time in review.
The powers of Congress were under discussion, and
two proposals, not apparently related, were, neverthe
less, quickly associated by the spirit of compromise
and bargain. The New England states were for giv
ing Congress complete control of foreign commerce,
with power to pass a navigation act ; and the oppo
nents of slavery were for giving it power to prohibit
the foreign slave trade. In this second proposal
Virginia heartily concurred ; she had already pro
hibited the traffic. But Georgia and the Carolinas
stood out against the plan. These two states, having
little or no shipping interest of their own, were also
opposed to a navigation act. Fearing that the East
ern ship-owners might acquire a monopoly of the carry
ing trade, they were quite willing to continue to make
use of foreign bottoms. The draft of the Constitution
then before the convention denied to Congress the
power to prohibit the slave trade and gave it the power
to pass a navigation act by a two-thirds vote of both
houses. Luther Martin had moved to grant Congress
control over the slave trade also, and Rutledge had
answered him, when Ellsworth rose.1 The true ques
tion, Rutledge had bluntly declared, was whether the
Southern states should or should not be parties to the
union. He put the matter wholly on the ground of

1 August 21, "Documentary History of the Constitution," III, 584.

154 OLIVER ELLSWORTH

interest; religion and humanity, he declared, had
nothing to do with it.

Ellsworth seems to have agreed with this contention.
He was for leaving the clause as it stood. " Let every
state import what it pleases," he said. " The morality
or wisdom of slavery are considerations belonging to
the states themselves. What enriches a part, enriches
the whole, and the states are the best judges of their
particular interest. The old confederation had not
meddled with this point, and he did not see any greater
necessity for bringing it within the policy of the new

one."

The next day, the debate grew general and heated.
Sherman indorsed Ellsworth's position, and a noble
speech of George Mason of Virginia contrasted
strangely with the language of these two New Eng
land representatives. Mason bitterly bewailed the fact
of slavery, and upbraided sternly all who still engaged
in the "nefarious traffic," sparing neither the ship
owners of the East nor the planters of the lower
South. No better arraignment of the whole system
was ever made.

It is impossible to read Ellsworth's reply with any
satisfaction. As he had never owned a slave, he said,
he could not judge of the effect of slavery on char
acter. If, however, it was to be considered in a moral
light, the convention ought to go farther and free those
already in the country. " As slaves also multiply so
fast in Virginia and Maryland that it is cheaper to
raise than import them, whilst in the sickly rice swamps
foreign supplies are necessary, if we go no farther than
is urged, we shall be unjust toward South Carolina and
Georgia. Let us not intermeddle. As population

THE GREAT CONVENTION 155

increases, poor laborers will be so plenty as to render
slaves useless. Slavery in time will not be a speck in
our country. Provision is already made in Connecti
cut for abolishing it. And the abolition has already
taken place in Massachusetts. As to the danger of
insurrection from foreign influence, that will become
a motive to kind treatment of slaves."

The sarcasm, if that was what he meant his open
ing for, was wasted on a character like Mason's.
The intimation that Virginia was merely seeking her
own interest as a breeder of slaves was also unjust;
Washington and Madison, as well as Mason, have left
on record too many proofs that they were, from convic
tion and from conscience, antislavery men. The ap
peal for "justice" to the "sickly rice swamps" is even
less defensible. Nowadays, in fact, it is the disposition
of moralists to condemn any statesman who at any
period, on any grounds, declined to consider slavery as
a moral question. A biographer of Gouverneur Mor
ris, pointing out the striking contrast between the
sentiments of Mason and those of the New England
members, impetuously attacks the entire New Eng
land delegation, and singles out Ellsworth's speech
for particularly severe dispraise.1

Much, of course, can be said, and has been said, for
Ellsworth and those who saw the question as he did.
Quite probably, General Pinckney was right when he
declared that if he and his colleagues were to go home
and use all their influence, they could not persuade
their people to accept the Constitution without some
protection for the slave trade. Ellsworth was by this

1 Roosevelfs "Gouverneur Morris" (American Statesmen series), 138-
139-

156 OLIVER ELLSWORTH

time fully committed to the general scheme of the
Constitution and anxious to see it adopted and ratified.
That same day he declared that he was for the plan
as a whole. The widening of opinion, he said, had a
threatening aspect. If members would not agree on
this middle and moderate ground, he was afraid they
would lose two states, with such others as might
be disposed to stand aloof, and fly into a variety of
shapes, most probably into several confederations,
and that not without bloodshed. Concerning another
disagreement, he had remarked : 1 " We grow more and
more sceptical as we proceed. If we do not decide
soon, we shall be unable to come to any decision."

There were also, it must be granted, many signs to
justify his hope that slavery might, before many years,
shrink into unimportance. Economic laws were work
ing to that end; the antislavery feeling, North and
South, was strong and growing. No one, of course,
foresaw the invention of the cotton-gin and the rise of
the cotton kingdom. Of course, too, on any moral
question, something must be pardoned to the stand
ards of another age. But if, to prove the wisdom of
the first great compromise, we consulted the outcome,
we are driven by the same reasoning to grant that it
was neither wise nor righteous to spare the slave trade ;
that the convention lost a precious opportunity to
promote the cause of human freedom. The chances
were that if Georgia and South Carolina withdrew
North Carolina as well as Virginia would refuse to
follow them. The line between slavery and freedom
might thus in a few years have been pushed a thou
sand miles southward. An independent Southern

1 August 15, when the President's veto power was under discussion.

THE GREAT CONVENTION 157

confederacy of two states would not have been dan
gerous, and would probably have been short-lived.
The Civil War might have been averted. The
darkest and bloodiest pages in all our history might
never have been written.

But neither the moral scruple nor a forecast of the
long future determined the convention's course. The
matter was disposed of by another compromise. It is
possible that even while Ellsworth was replying to
Mason the terms of a bargain between New England
and the lower South were already substantially agreed
upon. The clauses on the slave trade and on naviga
tion acts were both referred to the same committee of
one from each state. They reported in favor of giving
Congress the power to pass navigation acts and for
bidding it to impose any restriction on the slave trade,
other than a duty at the average rate, before the year
1800. When the report came up for consideration,
General Pinckney of South Carolina moved to strike
out 1800 and insert 1808, and Gorham of Massachu
setts seconded him. The motion was passed by the
votes of all the New England states and all the
Southern states except Virginia and Delaware. By
the same vote, the amended part of the report was
then accepted. It is no wonder that Charles Pinck
ney took occasion later to praise the New England
delegates for " their liberal conduct toward the views
of South Carolina." That there was an understand
ing on the subjects of navigation and slavery, Madison
tells us in so many words. Johnson was the Connecti
cut member of the committee, but it is idle to suppose
that Ellsworth or any other New England member
was ignorant of the bargain.

158 OLIVER ELLSWORTH

Indeed, there were probably few important things
done in the convention, after the great compromise,
that Ellsworth did not have a hand in. By his part
in that arrangement he had, as an individual member,
proved his case with his fellows; and when it was
adopted he and others who had seemed to be in oppo
sition became at once keenly desirous that the con
vention should succeed. When the resolutions had
passed through the second revision, they were given
over to a committee of five, chosen by ballot, with
instructions to report a constitution ; and of these
five Ellsworth was one. This was a great honor
and a great responsibility. The other four were Rut-
ledge, Randolph, Gorham, and Wilson. For ten days
these men had in their hands the entire scheme of the
proposed government. Of what they said and did in
committee we have no record, but they did not con
fine themselves to questions of mere form; in many
important respects, the instrument which they re
ported differed from the resolutions it was based
on. This was particularly true of those provisions
which related to the judiciary. The resolutions had
been vaguer concerning that department than on any
other subject. The shaping of it was left to the com
mittee; and in this work, no doubt, Ellsworth took
much interest. Curiously enough, however, hardly
any of his speeches in the convention dealt with the
judiciary. When the method of appointing judges
was up, he urged that instead of giving the Senate
a negative on appointments by the executive the
convention should give the initiative to the Senate
and the negative to the executive ; but to both these
arrangements he preferred an absolute appointment by

THE GREAT CONVENTION 159

the Senate.1 His only other reference to the depart
ment was made incidentally, when he favored Wilson's
motion to associate the Supreme Court judges with the
executive in the revision of laws.2 He himself later
moved for an executive council of which the Chief
Justice should be a member.3

But his contributions to the discussion of other
subjects, particularly after his service on the com
mittee, were numerous. He often spoke three or
four times in a single sitting, usually in defence of
some clause as it stood, and somewhat in the manner
of a congressman in charge of a bill on its passage.
Yet there were some amendments which he warmly
favored.

Though for a long time strongly opposed to paying
members of the legislature out of the national Treas
ury, on this point he finally changed his mind.4 But
he never would consent to give Congress a negative
on state laws. That concession, he observed, would
mean either that all state laws, before taking effect,
should be submitted to Congress, or that Congress
should have the right to repeal them, or else that
the general government should appoint the state
executives and these should have the veto power.5
He was against Mason's proposal of national sumptu
ary laws ; 6 and he remained firm also against the
plan of taking away from the states the right to fix
the qualifications for the suffrage in all cases. It was
a tender point, he said, and each state was the best
judge of the temper and the circumstances of its own

1 " Documentary History of the Constitution," III, 401 .

2 Ibid., 391 . 4 Ibid., 531, 534. 6 Ibid., 567.
9 Ibid., 559. 8 Ibid., 602-603.

160 OLIVER ELLSWORTH

people.1 If property or other qualifications were to be
imposed, uniform rules would prove unequal in their
application ; each state ought to fix its own qualifica
tions.2 To other clauses dealing with the legislature
he applied observations drawn from his own experience.
He did not, for instance, overvalue the concession to
the first branch of the right to originate money bills.3
He was against the proposal to fix minimum quorums
for both the houses, preferring the majority rule ; 4 and
when it was moved to give every member a right to
call for the yeas and nays, he agreed with Sherman
that yeas and nays never did any good.5 He pre
ferred winter sessions.6 He was willing to give up
a clause requiring each house to keep and publish a
journal, feeling that public opinion would secure pub
licity.7 He wished the disqualification of congress
men for all other offices extended a year beyond their
terms of service.8 This, he thought, would not deter
ambitious men from serving, and there was a danger
that too many honors would go to members. But on
the other hand he was for requiring only a short term
of residence in any particular state to qualify a man
for representing it.9 This principle he applied also
to foreign-born citizens.10 He was against the sweep
ing disqualification of all public debtors,11 and he was
for permitting governors to fill vacancies in the Senate
when these should occur between sessions of the legis
latures in the states concerned.12 On most of these
questions, but not on all, time has confirmed his
judgment.

1 "Documentary History of the Constitution," III, 464, 565.

2 Ibid., 494-495, 496. 6 Ibid., 460, 462. 10 Ibid., 485.

8 Ibid., 480, 482. 7 Ibid., 503. n Ibid., 441-442

4 Ibid., 499. 8 Ibid., 529. 12 Ibid., 476.

5 Ibid., 501. 9 Ibid., 464, 465.

THE GREAT CONVENTION 161

When it came to fixing the powers of Congress, and
particularly when there arose proposals to enlarge them
at the cost of the state governments, his opinions were
decided, and on several of these issues he stood out
stoutly for state-rights. In view of Connecticut's be
havior during the War of 1812, it is particularly inter
esting to find that he and Sherman fought harder than
any of the delegates except, perhaps, Gerry of Massa
chusetts, to retain for the states the control of the
militia. When it was first moved to give the control
mainly to the general government, Ellsworth would
have amended the motion with such provisos as to
take away its force. He thought that if this authority
should pass from the state governments they would pine
away to nothing, and that the general government, on
the other hand, "could not sufficiently pervade the
Union for such a purpose, nor could it accommodate
itself to the local genius of the people." 1 The states,
besides, would never submit to uniform militia laws.
" Three or four shillings as a penalty would enforce
obedience better in New England than forty lashes in
some other places."2 The subject was referred, along
with the question of state debts, to another grand
committee, which reported back the provision finally
adopted.3 Ellsworth carried a motion to table the re
port, and when it was again taken up he and Sherman
tried to emasculate the clause; they proposed to give
Congress the power merely to make rules which the
states should execute.4 Fortunately, Connecticut was
the only state that voted for their substitute. The
second war with Great Britain has not been the only

1 " Documentary History of the Constitution," III, 562.

2 Ibid,, 563. 8 Ibid., 575. * Ibid., 594-598.
M

1 62 OLIVER ELLSWORTH

occasion when there has been good cause for regret
that even fuller control was not given to the national
authorities. When the power of Congress to suppress
rebellion in any state was under consideration, Ells
worth had also favored a proviso that this should be
done only on the call of the state legislature* if it could
meet.1 On the troublesome question of state debts,
however, he seems to have favored assumption by the
general government.2 For reasons which he himself
called " solid," as they were, he was against the tax
ing of exports by Congress, but he seemed to think
that there was no necessity to forbid the states to do
it.8 " The attempts of one," he argued, " to tax the
exports of another passing through its hands will force
a direct exportation and defeat themselves." He was
also — as who, with his experience, would not have
been? — for withholding from Congress the power to
emit bills of credit.4 He wished to improve the good
opportunity to " shut and bar the door against paper
money. The mischiefs of the various experiments
which had been made were," he said, "fresh in
the public mind and had excited the disgust of all
the respectable part of America. By withholding the
power from the new government more friends of influ
ence would be gained by it than by anything else.
Paper money can in no case be necessary. Give the
government credit, and other resources will follow.
The power may do harm, never good."

Nor did he oppose the denial of this power to the
states. His general notion of the proper relation
between the Union and the states is perhaps best re-

1 "Documentary History of the Constitution," III, 551-552.

a Ibid., 557, 576. 8 Ibid., 543, 578-579- 4 Ibid-> 547-

THE GREAT CONVENTION 163

vealed in two or three short speeches on the treason
clause and on the question of how the Constitution
should be ratified.1 When Madison pointed out that
the same act might be treason against the United
States and also be punishable as treason under the
laws of a particular state, Ellsworth thought the na
tional government was in no danger, since its laws
were paramount. But a discussion at once arose over
sovereignty, and Johnson was one of those who thought
that sovereignty was lodged in the Union. Ellsworth,
however, declared : " The United States are sovereign
on one side of the line dividing their jurisdictions —
the states on the other. Each ought to have power to
defend their respective sovereignties." These were
words, one fancies, from which comfort might have been
drawn by the planners of a New England Confederacy
twoscore years later, and by the builders of the South
ern Confederacy. It is not surprising to find also that
Ellsworth apparently never did conceive of the people
of the whole country either as the true constituency of
the convention or as the source of authority for the
new government. At one stage in the gradual develop
ment of the Constitution he moved to refer it for final
ratification to the legislatures of the several states, in
stead of conventions. Mason objected that the legis
latures had no authority, and that their successors
might rescind their acts. " As to the second point,"
Ellsworth answered, " he could not admit it to be well
founded. An Act to which the States by their legisla
tures make themselves parties becomes a compact from
which no one of the parties recedes of itself. As to
the first point, he observed that a new set of ideas

1 " Documentary History of the Constitution," III, 569, 570, 572.

1 64 OLIVER ELLSWORTH

seemed to have crept in since the Articles of Confedera
tion were established. Conventions of the people, or
with power derived expressly from the people, were not
then thought of. The legislatures were considered as
competent. Their ratification has been acquiesced in
without complaint. To whom have Congress applied
on subsequent occasions for further powers ? To the
Legislatures ; not to the people. The fact is that we
exist at present, and we need not inquire how, as a
federal Society, united by a charter, one article of
which is that alterations therein may be made by the
Legislative authority of the States. It has been said
that if the confederation is to be observed, the States
must unanimously concur in the proposed innovations.
He would answer that if such were the urgency and
necessity of our situation as to warrant a new compact
among a part of the States, founded on the consent of
the people, the same plea would be equally valid in
favor of a partial compact, founded on the consent of
the Legislatures." To this keen dialectics Gouverneur
Morris made an even keener reply, and Ellsworth's mo
tion was voted down. But it is not improbable that
the majority of his fellows were as slow as he was
to understand how far they were actually moving away
from the theory and practice of the confederation.

In more than one eulogy of Ellsworth, John C.
Calhoun is quoted in his praise. Calhoun's words
are worth quoting, and his praise worth having; but
it is quite probable that Ellsworth himself, a little
farther on in his career, would have relished an
emphasis on what he did in the convention to turn
the confederation into a real Union better than re
minders of what he did to keep the Union from

THE GREAT CONVENTION 165

acquiring too great strength. Calhoun's tribute is
in a speech delivered in the Senate in I847.1 " It
is owing," he said, " mainly to the states of Connect
icut and New Jersey that we have a federal instead
of a national government — the best government in
stead of the worst and most intolerable on the earth.
Who are the men of these states to whom we are
indebted for this excellent form of government? I
will name them. Their names ought to be written on
brass, and live forever. They were Chief Justice Ells
worth and Roger Sherman of Connecticut, and Judge
Paterson of New Jersey. The other states further
south were blind ; they did not see the future. But
to the coolness and sagacity of these three men, aided
by others not so prominent, do we owe our present
constitution."2

Ellsworth had taken a lively interest in the clauses
relating to the executive ; and he seems to have had
clearer notions about it than most of the delegates.
This was the subject on which the convention was,
from first to last, most at sea. In discussing it, the
members did not, it is true, divide by states and sec
tions quite as they did over the legislature ; but
there was the widest diversity of opinion, particu
larly over the method of election. In the course
of the first two months, as Mason pointed out, no
less than seven different plans were suggested.8

1 Congressional Globe, 2d Session, 2Qth Congress, 466.

2 It is worth recalling that Calhoun, after being graduated at Yale,
remained a year or two longer in Connecticut studying law. It is not
likely that he failed to learn what he could of the little state's more famous
representatives in public life, and it is said that he was well acquainted
with members of Ellsworth's and Sherman's families. See G. F.
Hoar's "Autobiography," I, 8.

3 " Documentary History of the Constitution," III, 432-433.

1 66 OLIVER ELLSWORTH

One of them actually included the expedient of a
lottery. Ellsworth was one of the first to commit
himself to the plan of a choice by electors.1 July 19,
he moved to strike out the original provision, for ap
pointment by the national legislature, and substitute
the words, " to be chosen by electors appointed by
the legislatures of the States in the following ratio:
to wit — one for each state not exceeding 200,000
inhabitants, two for each above that number and not
exceeding 300,000, and three for each state exceeding
300,000." 2 After a little discussion, the convention
voted by good majorities in favor of the plan, but
without the ratio. It was very much closer to the
plan finally adopted than any other that had been
proposed. The same day, Ellsworth favored a six
years' term. He argued that if the term were made
too short, the executive would not be firm enough.
There must be duties which would render him un
popular for the moment, and every administration
would be attacked and misrepresented. Six years
was agreed to. But the convention changed its mind
more than once before it reached the final decision
of these questions. Five days later, the subject was
reconsidered, and by a vote of seven to four8 the
method of appointment by the national legislature
was again preferred. It was also proposed to reinstate
a provision that the executive should not be eligible
for a second term, and this Ellsworth briefly opposed.4
To many minds, he admitted, it seemed a necessary

1 June 2, in committee of the whole house, Wilson had proposed an
electoral college, to be chosen by districts, without reference to state lines.
It was voted down with very little discussion. " Documentary History of
the Constitution," III, 41-42.

2 Ibid., 379-380. 8 Ibid., 414-417. * Ibid., 417.

THE GREAT CONVENTION 167

corollary to the choice by the national legislature ;
but he felt that a good executive ought in any case
to be reelected. The hope of an indorsement would
lead him to deserve it. Eminent characters might
be unwilling to assume the trust if they must always
expect a degradation after a fixed period of service.
The next day, he opened the discussion with a new
motion, offering a compromise between the two
methods of choice.1 It would have permitted the
national legislature to elect, but not to reelect, the
choice passing to electors whenever the question of a
second term should arise. The special object of it
was to avert what many dreaded — too great depend
ence of the executive on the legislature. Madison, in
an elaborate speech, favoring an election by the
whole body of the people, Ellsworth firmly objected.2
Like so many of his fellows, he was still obsessed
with the idea of an opposition between the two classes
of states, and nobody seems to have foreseen the part
which political parties were to play. But it cannot be
said that his objection was entirely mistaken. Parties
do as a rule prefer candidates from states which are
at once doubtful and populous. Ellsworth's compro
mise proposal failed,8 and on Mason's motion the reso
lution went to the committee of detail as it had been
reported from the committee of the whole. Incorpo
rated that way in the first draft of the Constitution, it
was retained until very near the end. When Ells
worth's plan of a choice by electors was, with some
changes, finally accepted, he himself was gone.

The last appearance of his name in Madison's jour-

1 "Documentary History of the Constitution," III, 423.

2 Ibid,, 427. s Ibid.

1 68 OLIVER ELLSWORTH

nal is under the date August 23. That day he made
two speeches. Four days later, on his way home,
he paid a visit to President Stiles of Yale at New
Haven.1 One suggested explanation of his departure
is that he and Sherman could not both neglect any
longer their duties on the bench.2 He had no part in
the closing scenes of the convention, and lost also the
chance to sign the Constitution. That circumstance
may perhaps have helped to obscure his share in fram
ing it. According to his unvarying habit of reticence
and modesty, he himself seems never to have claimed
that it was a great share. But when due allowance is
made for his entirely unrecorded labors on the com
mittee of five,3 not more than two or three men can
well be ranked above him for true effectiveness in the
convention ; and nearly all of those who had played
parts comparable to his were men who, when the work
began, were better known than he was. By sheer force
of will and of sagacity, he had risen in that remark
able assembly to influence and to leadership. He had
stamped forever with the imprint of his mind and pur
pose his country's fundamental law. He had helped to
shape the life of a great republic for centuries to come.
The convention's rule of secrecy was, no doubt, wise ;
but we would gladly know more of these men's thoughts
and feelings while they were about their epoch-making
business. When it was all finished, Washington, as

1 Stiles's "Literary Diary," III, 279. See also J. F. Jameson, in
Annual Report of American Historical Association, 1902, I, 160.

2 Jeremiah Evarts's " Sherman," in Sanderson's " Lives of the Signers,"

11,44-

8 It is a reasonable inference from the only utterance that we have of
Ellsworth about his work in the convention that he thought this com
mittee service the most important part of it. See post, pp. 169-170.

THE GREAT CONVENTION 169

he tells us in his diary, "retired to meditate upon the
momentous work which had been executed." Only
George Mason ever put into words what it meant to
be a member of that illustrious company. " For my
own part," he wrote to his son, " I never before felt
myself in such a situation, and declare I would not,
upon pecuniary motives, serve in this convention for
a thousand pounds per day. The revolt from Great
Britain and the formation of our new government at
that time were nothing compared with the great busi
ness now before us. There was then a certain degree
of enthusiasm which inspired and supported the mind ;
but to view through the calm, sedate medium of reason
the influence which the establishment now proposed
may have upon the happiness or misery of millions yet
unborn is an object of such magnitude as absorbs, and
in a measure suspends, the operations of the human
understanding."1 Ellsworth, as silent in statesman
ship as ever any captain was in war, has left not a
single self-revealing word about his own share in this
immense experience. Even of his impressions of his
fellow-delegates we know nothing. The only exception
is a remark he once made to his son, Oliver Ellsworth,
Jr., in a manuscript from whose hand this entry occurs :
" One day, upon my reading a paper to him (in his
illness), containing an eulogium upon the late Gen.
Washington, which among other things ascribed to
him the founding of the American Government, . . .
he (Judge E.) objected, saying that President Wash
ington's influence while in the convention was not
very great; at least not much as to the forming of
the present Constitution of the United States in 1787.

1 Miss Rowland's "Mason," II, 128.

170 OLIVER ELLSWORTH

Judge E. said that he himself was one of the five who
drew up that Constitution."

It remained to get the instrument ratified. Whether
the necessary nine states could be brought into line
for it was very doubtful, and nowhere was the outlook
darker than in New York, Massachusetts, and Rhode
Island, the three next-door neighbors of Connecticut.
But in Connecticut, though there was serious opposition,
the friends of the new government did not, it appears,
need to make a very strenuous exertion. The work of
Ellsworth and Sherman at Philadelphia had paved the
way for victory with the people. When Sherman came
home, they two sent from New London to Governor
Huntington a copy of the Constitution and in a brief
and matter-of-fact letter l enumerated the chief differ
ences between the proposed new system and fhe gov
ernment under the Articles. Calling attention to the
ways in which state-rights were guarded, they pointed
out, what the tenth amendment afterward formally de
clared, that the new government, like the old, was to be
a government of strictly defined powers. " The particu
lar States," they phrased it, " retain their sovereignty
in all other matters." 2 They summarized the whole
proposal thus : " The convention endeavored to pro
vide for the energy of government on the one hand
and suitable checks on the other hand, to secure the
rights of the particular states, and the liberties and

1 Elliot's "Debates," I, 491-492 ; BoutelPs " Sherman," 168-170.

2 It is interesting to compare the ways in which different state-rights
men estimated the extent of the concessions that had been made to the
national principle. See, for instance, Luther Martin's speech before the
Maryland legislature, denouncing the Constitution, and Patrick Henry's
speeches before the Virginia convention, and also in 1798, when, the Con
stitution being the law of the land, he could find no basis in reason or in

THE GREAT CONVENTION 171

properties of the citizens. We wish it may meet
the approbation of the several states, and be a means
of securing their rights, and lengthening out their
tranquillity."

The convention to reject or ratify met at Hartford
in January, 1788. In the meantime, Sherman had
been more conspicuous than Ellsworth in advocating
the Constitution ; but it was Ellsworth who now, at
the opening of the convention, rose first to explain
and defend it. In this particular assembly the leader
ship was clearly his.1 An eye-witness wrote : " Mr.
Ellsworth was a complete master of the subject. He
was armed at all points. He took a very active part in
defending the Constitution. Scarcely a single objec
tion was made but what he answered. His energetic
reasoning bore down all before it." : But once again
incomplete and imperfect reporting denies us the
privilege of observing for ourselves Ellsworth's powers
in debate. Even the most expert stenographer might
have been occasionally baffled by his extraordinarily
vehement and rapid elocution. Only two of his
speeches are preserved at all, and when the first was
printed in the Connecticut Courant he himself wrote

honor for the claim of sovereignty for the states. On the other hand, Wil
son, in the Pennsylvania convention, emphasized the national character of
the instrument in a way that contrasts strongly with his own bitter speeches
against the federal plan in the convention. Sherman and Ellsworth
appear once more to have found the right and reasonable middle ground.

1 Jackson Ms. For this particular part of Ellsworth's career, Jackson's
narrative is excellent, though Wood's is somewhat fuller.

2 Letter of Perkins to Simeon Baldwin. In a contemporary published
account, "his energetic reasoning" appears, by contrast with "the learn
ing and eloquence of a Johnson " and " the genuine good sense and dis
cernment of a Sherman," as "the Demosthenian energy of an Ellsworth."
Wood Ms.; Flanders, 156.

172 OLIVER ELLSWORTH

to the editor that the report was incorrect.1 Yet these
two speeches are the best material we have for an
estimate of his oratory.2

The first, his opening speech, is mainly given to a
plain and forcible arrayal of the reasons for a stronger
union. It was necessary, he argued, for safety; di
vided, the American states would be, like any other
loose collection of small powers, the easy prey of for
eign intrigue and of foreign arms. It was necessary
for economy ; a competent central government could
serve the common interests at far less cost than many
separate establishments. It was necessary for peace
among the states themselves. It was necessary for
" commutative justice." Was not Connecticut, under
the existing system, already a tributary to her rapa
cious neighbors ? Would she not thus be " like Issachar
of old, a strong ass crouching down between two
burdens " ? It was necessary because there must be
greater energy in government ; with merely advisory
powers, Congress could not do the work that was
expected of it. Did Connecticut need to be told that

1 MESSRS. HUDSON AND GOODWIN : The few cursory observations
made by me at the opening of the convention were not designed for a
newspaper ; and what you have published as the substance of them, from
some person's minutes, I suppose, is less proper for me than the observa
tions themselves were. It is particularly erroneous with regard to some of
the historic facts alluded to, which are stated in a manner which neither
the observations nor history will justify : the deviations do not go to cir
cumstances very material to the argument itself.

I am, Gentlemen, yours, &c.

OLIVER ELLSWORTH.
Jan. 10, 1788.

Connecticut Courant, Jan. 16, 1788.

2 Both are given in Frank Moore's " American Eloquence," I, 404-409,
and in Elliot's "Debates," II, 185-197. Flanders, 144-156, gives the
bulk of both, but not the whole of either.

THE GREAT CONVENTION 173

the states could not be trusted to fulfil their mutual
obligations without compulsion or restraint? Was
there not, in a little state close by, " injustice too bare
faced for Eastern despotism " — "a spirit that would
make a Tophet of the universe " ? True, we had once
done well without any union. But that was under
different conditions. The British government dis
charged for us then functions that now could only be
discharged by a strong central government of our own.
Other confederacies had found it wise to use coercion.
But why talk in such a general way, when all men
knew that from want of energy in Congress we had
fallen into injustice toward each other, into deceit and
bankruptcy, into a shameful inability to perform our
treaties with foreign nations? Recurring once again
to the tribute Connecticut was paying to New York
and Massachusetts, he asked, " If this is done when
we have the shadow of a National Government, what
shall we not suffer when even the shadow is gone ? "
And with question after question he laid barer and
barer the utter hopelessness of the old system. " If
we go on as we have done, what is to become of the
foreign debt? Will foreign nations forgive us this
debt because we neglect to pay ? or will they levy by
reprisals, as the law of nations authorizes them ? Will
our weakness induce Spain to relinquish the exclusive
navigation of the Mississippi, or the territory which
she claims on the East side of that river? Will our
weakness induce the British to give up the Northern
posts ? If a war breaks out, and our situation invites
our enemies to make war, how are we to defend
ourselves ? Has Government the means to enlist a
man, or buy an ox ? Or shall we rally the remainder

i;4 OLIVER ELLSWORTH

of our old army ? The European nations, I believe to be
not friendly to us. They were pleased to see us dis
connected from Great Britain ; they are pleased to see
us disunited among ourselves. If we continue so, how
easy it is for them to portion us out among them,
as they did the Kingdom of Poland ! But, supposing
this is not done, if we suffer the Union to expire, the
least that may be expected is, that the European
powers will form alliances, some with one State and
some with another, and play the States off one against
another, and that we shall be involved in all the
labyrinths of European politics. But I do not wish
to continue the painful recital ; enough has been said
to show that a power in the General Government to
enforce the decrees of the Union is absolutely nec
essary."

There was, however, a quite respectable opposition
in the convention, led by Colonel Wadsworth. It
represented mainly the most decidedly democratic
elements of the population of the state, and it quickly
fastened on the clause conveying and defining the
power of the new Congress to levy taxes. Of all the
strictures on the Constitution, the objections to that
clause seemed, both to its opponents and to its sup
porters in Connecticut, much the most formidable.
In the second of his reported speeches, Ellsworth
undertook to answer them. This speech, given as it
was in the course of a general debate, is perhaps the
best of all his utterances to represent him in his rela
tion to the founding of the government.1 Pierpont
Edwards, a member of the convention, probably had it
especially in mind when he afterward tried to describe

1 See Appendix B.

THE GREAT CONVENTION 175

the effect of Ellsworth's oratory. He himself, it ap
pears, had made a speech before Ellsworth rose, and
put his best into it ; but when Ellsworth had finished
he felt "like a lightning bug in broad daylight."1
And it is hard in fact to overpraise Ellsworth's
luminous exposition of the new relation between the
states and the Union, between the Union and the
individual citizen, between the national and the state
judiciaries. In the most famous of the countless later
discussions of these topics, his words were quoted by
the greatest of all forensic defenders and expounders
of the Constitution. In the course of the long debate
of 1833 over nullification, Daniel Webster, replying to
Calhoun, praised Connecticut as " that State so small
in territory, but so distinguished for learning and
talent," and read to the Senate extracts from the
speeches made in her convention by Johnson and
Ellsworth — "a gentleman, sir, who has left behind
him, on the records of the government of his country,
proofs of the clearest intelligence, and of the utmost
purity and integrity of character." 2 Webster is said,
indeed, to have paid an even higher tribute to the
Connecticut statesman. One day, about the time of
the reply to Hayne or the later battle with Calhoun,
Ellsworth's son, then a member of Congress, went to
him and thanked him for defending the Constitution
against the nullifiers. "Where do you think," an
swered Webster, " I got my ideas on the subject ?
Among the most important sources of my knowledge
have been the two speeches of your father before the
Connecticut Convention. I value them so highly that
when I met with them several years ago in a book

* Wood Ms. 2 Webster's Works, III, 485-486.

176 OLIVER ELLSWORTH

which I could not purchase I had them copied out in
manuscript and keep them to this day among my
papers." l No one has claimed for Ellsworth the first
place among the founders of the government ; but he
enjoys among them one unique distinction. Calhoun
and Webster, though they were the champions of en
tirely contrary views of the Constitution, agreed upon
the soundness of his. Alone of all that famous com
pany, he seems to have won the equal homage of
those opposed intellects.

1 Jackson Ms. Jackson was the son-in-law of Hon. W. W. Ellsworth
(M.C., 1827-1834), and tells us in his diary that he got many of his facts
and incidents from the lips of his father-in-law.

CHAPTER V

THE SENATE

ELLSWORTH'S quality was by this time known to the
foremost men in the country ; and to them as to us it
must have been evident chiefly from what he had done
and helped to do. We may feel, therefore, reasonably
sure of the kind of esteem in which they held him. A
phrase which is often employed nowadays, in business,
war, politics, athletics, conveys very well the judgment
of him which his work compels from any careful student
of his career, and must have compelled also from those
who knew him in the flesh. He was " a good man,"
— "a good man " at the bar and at the pay table, " a
good man " in Congress, "a good man " on the bench,
" a good man " when it came to blocking out and
rounding into shape a constitution of government.
He should serve even better than if he were a man of
genius for an encouraging example of how much, with
will and conscience, the citizen of a free country can
do with his life.

When it was known that the new system would cer
tainly be tried, Connecticut chose him and Johnson to
be her first two senators, and he thus became a mem
ber of the assembly whose form and character he had
done so much to determine. Sherman was at first
sent to the House of Representatives, but in two years
Johnson retired to become the president of King's
College, whose name had been changed to Columbia,
N 177

178 OLIVER ELLSWORTH

and then for a single session Sherman was once again
Ellsworth's colleague. But in the recess of 1793 the
old patriot died.1 It is conjecturable that his lack of a
collegiate training may have been one of the reasons
why he was not in the first instance elected to the
Senate.

Ellsworth and Johnson were two of the eight senators
who were present in New York on March 4, 1789,
the place and date appointed for the opening of the
new Congress.2 Neither house, however, had a quo
rum. Fisher Ames, the young Massachusetts orator,
the successful rival of Samuel Adams in the Boston
Congress district, had come to New York eager for
acquaintance with the famous leaders of other states,
and in his impatience he wrote back home that the
new government was like to be forgotten before it was
born. After waiting a week, the senators who had
arrived sent a circular letter to their tardy fellows;
but at the end of a fortnight there was still no quo
rum, and another more urgent call was despatched.
It was not till April 6 that Richard Henry Lee of
Virginia, the twelfth senator, appeared, and a messen
ger informed the House of Representatives, which
had organized on April i, that the Senate was ready
to proceed to business. The first business was to
count the ballots for President and Vice-President,
and inform Washington and Adams of their election.

1 At the opening of Congress in December, 1793, Stephen Mix Mitchell
took Sherman's place. Ellsworth's last colleague (1795-1796) was Jona
than Trumbull, a son of the Revolutionary governor.

2 Senate Journals, 1st Sess., p. i. For Senate proceedings I have com
pared the official journals in the original published form with Gales and
Seaton's "Annals of Congress" and Benton's "Abridgment of the
Debates of Congress."

THE SENATE 179

It was the end of April before Washington was inau
gurated ; but meanwhile the two houses had gone
ahead with legislation necessary to set the wheels of
government in motion. The House of Representa
tives took up first the question of revenue, and pro
ceeded to devise a tariff and a bill for tonnage duties.
The Senate led the way in framing rules for the legis
lature and making plans for the other departments.
In this, no other senator was more active than Ells
worth.

He was doubtless more at home and at ease with
his fellows in the Senate than he had ever been at his
entrance into any other legislative body. The number
was so small that on a chilly day they all left their
seats and gathered near the fire.1 When he looked
about him, there were few strange faces. Of the
twenty-two members and members-elect, a majoritywere
men whom he had already encountered in the old Con
gress or the Constitutional Convention, and there was no
one among them of whom he needed to stand in awe.
Certainly no one from New England outclassed him
or his colleague. Of the men from the Middle states
and the South, Morris and Lee were probably the
most influential. Madison, defeated by the state-
rights party in the Virginia legislature, had with diffi
culty secured a seat in the House of Representatives.
Hamilton was not in Congress at all. New York, in
fact, had not yet chosen her senators. When she did
choose, one of them was Rufus King, who had recently
moved from Massachusetts to New York City. Nor
did any of the new men reveal a commanding fitness
for leadership. To one of these, however, William

1 The Journal of William Maclay (ed. by Edgar S. Maclay, 1890), 21.

l8o OLIVER ELLSWORTH

Maclay, Morris's colleague from Pennsylvania, we are
indebted for our most intimate view of the Senate and
of Ellsworth during the first two sessions.1 It is not
a very charitable view, nor is it unbiassed, for Maclay
was a democrat of the suspicious kind, distrusting every
thing that savored either of authority or intrigue. He
judged men's motives severely, for the most part, and
he seems to have had a strong dislike for Yankees —
stronger even than was common in the Middle and
Southern states. Many of his criticisms of men and
measures are decidedly carping, and nearly all his
comments and characterizations must be taken with a
grain of salt. But one feels, nevertheless, in reading
his diary, that though narrow he was honest; and
sometimes his accounts of actual happenings yield
peculiarly vivid and photographic glimpses of the way
men looked and acted, and the way things were done,
while the first Congress was making precedents for its
successors, and the first President was setting a stand
ard to which none of his successors has ever quite
come up. At times, Maclay was deeply grieved even
at Washington's behavior, and there was scarcely one
of his fellow-senators whose course did not sooner or
later plunge him into the gloomiest reflections concern
ing human depravity. What he tells us of their frail
ties and perversities ought not, however, to be entirely
disregarded. Much of it is doubtless true, and there
is a certain comfort in knowing that these founders
and first administrators of the government, so far from
being faultless, were perhaps reasonably like the public
men of our own time ; for we see now that their work

1 Maclay's Journal, as above. The edition of 1890 is much fuller than
the first edition, published ten years earlier.

OLIVER ELLSWORTH.
From a miniature by Trumbull, in the possession of Yale University.

THE SENATE l8l

was on the whole good. Maclay 's diary is priceless,
for during these early sessions the Senate's doors were
closed and the debates unreported, and the journals
are as meagre as those of the old Congress of the
Confederation. Ellsworth was one of the last to favor
public sessions. The motion to open the doors, often
proposed, was not finally passed until February, 1 794.*
It took effect at the next session, but the debates did
not actually begin to be reported and published until
Ellsworth's service was ended. Maclay, though he
spared the Connecticut statesman no more than any
other of the leaders, has rendered, nevertheless, a valu
able service to his memory, for the diary makes it
plain that from the first he was a very real leader
indeed.

So much, perhaps, might be inferred even from the
journals. It was Ellsworth who, the day a quorum
appeared, went to inform the House of Representa
tives that the Senate was ready to count the votes
for President and Vice-President. The next day, the
7th, the first vote was, " That Mr. Ellsworth, Mr.
Paterson, Mr. Maclay, Mr. Strong, Mr. Lee, Mr. Bas-
sett, Mr. Few, Mr. Wingate, be a committee to bring
in a bill for organizing the Judiciary of the United
States " ; and immediately afterward Ellsworth was
set at the head of another committee to prepare rules
for the Senate and for conferences between the two
houses, and to take thought also on the subject of
chaplains.2 During the next few weeks he was much
engaged with questions of form and procedure. He
helped prepare the certificates of election which were
sent to Washington and Adams, and waited on Adams

1 Senate Journals, 3d Cong., ist Sess., 55-56. * Ibid., 10.

1 82 OLIVER ELLSWORTH

to consult about his inauguration. He reported the
first set of Senate rules, and considered a plan for
printing the journals. He headed the committee
which divided the senators into classes with different
terms of service. He served on the committee on titles
for the President and Vice-President, and frequently
discussed that much-vexed subject1 Historians of the
period have not failed to exhibit the comical aspect of
the Senate's troubled concern over matters of etiquette,
and the House of Representatives won much favor
with the populace by its democratic stand against all
titles. John Adams was so keen about them that he
disgusted Maclay and other of the senators, and Mac-
lay set down Ellsworth as one of those who humored
and supported him.2 But it is only just to remember
that these men felt that they were making at every
turn precedents which might hold for many years.
The new government was a very bold and radical
departure, and they wished to neglect nothing that
might help to link it with the past and to give it dig-

1 Journals, 5, 10, 13, 19, 26, 31, 32, 34, 35 ; Maclay, 3, 22-24, 29, 33, 35,

37, 39-

2 One day, shortly before the inauguration of Washington, Adams made
a fairly piteous appeal to the Senate to tell him how he ought to behave on
that occasion — whether as Vice-President, as President of the Senate, or
as President of the United States in posse. " I wish gentlemen to think
what I shall be," he ended, in much distress. Maclay says that in the
solemn silence which followed the profane muscles of his own face were in
tune for laughter.

" Ellsworth, however, thumbed over the sheet constitution and turned it
for some time. At length he rose and addressed the chair with the utmost
gravity : —

" * Mr. President, I have looked over the Constitution (pause), and I
find, sir, it is evident and clear, sir, that wherever the Senate is to be,
there, sir, you must be at the head of them. But further, sir (here he
looked aghast, as if some tremendous gulf had yawned before him), I shall
not pretend to say.' " Maclay's Journal, 2-3.

THE SENATE 183

nity. In this regard, Washington was as gravely cau
tious as any one. Ellsworth's committee would have
called the President " his Highness, the President of
the United States, and Protector of their Liberties,"
and the House of Representatives threw out the
proposal with successful ridicule. But at this time
most Englishmen still looked back with something
like horror to the years when England had been so
radically republican as to substitute a Lord Protec
tor for a King ; and America had broken away from
England to be independent, not to set up a democ
racy. Neither had the constitutional movement that
was now being consummated aimed at democracy, but
rather at strength, stability, efficiency. There were
plenty of men, and some of them important characters
in the government, — as Jefferson, on his return from
France, soon remarked, — who augured nothing but ill
from the democracy already worked into the system.
Hamilton and Adams, in different ways and different
degrees, were both exponents of that view.1 But
Maclay was probably wrong in supposing Ellsworth
to be of their party in the sense that he leaned toward
monarchy, as Hamilton certainly did.2 Ellsworth was,
beyond question, zealous and resolute in all things
that tended to make the new government strong and
respectable. He did not share at all the apparent
reaction from the national impulse which soon carried
over Madison, the house leader, from Hamilton's side

1 See a curious note by Adams to his own Davila essays, concerning
a resolution in praise of the Constitution offered by Ellsworth. " I was
obliged to put the question and it stands upon record. . . . John Adams
alone detested it (i.e. the Constitution)." Adams's Works, VI, 323.

2 See Maclay's Journal, 23, 112, 114, for speeches of Ellsworth that
Maclay particularly disrelished on this account.

1 84 OLIVER ELLSWORTH

to Jefferson's. On the contrary, from this time to the
end of his career, he remained a consistent Federalist.
When the French Revolution broke out, he soon
showed that he was not thrilled by any sympathy with
its radical ideas and methods. But in these conserva
tive opinions he was never violent or extreme, and
there is nothing to indicate that he ever lost faith
in the kind of democracy he had always known in
Connecticut. In this moderation his career contrasts
very favorably indeed with that of his more partisan
Federalist friends, particularly when they went out of
power. There were doubtless more brilliant minds
than his in the government in its early days, but
scarcely one better balanced or more steadfast and
judicious.

These broad questions were not, however, immedi
ately broached, save as the disputes about forms and
titles may have involved them. There were too many
tasks of a constructive nature that must at once be
undertaken, and one of these, as fundamentally impor
tant as any, was peculiarly Ellsworth's. Hamilton
is not more clearly responsible for committing the
government to permanent policies in finance than Ells
worth is for setting the judiciary in the course of
development which it has followed ever since.

The fact that he was chairman of the Senate com
mittee to bring in a bill to organize the courts is by
no means the only evidence that he was the respon
sible author of the measure. Maclay's testimony on
that point is abundant; and Maclay was himself a
member of the committee. "This vile bill," he one
day observes, " is a child of his (Ellsworth's), and he
defends it with the care of a parent, even with wrath

THE SENATE 185

and anger."1 Nearly fifty years later, Madison wrote
to Wood, " It may be taken for certain that the bill
organizing the judicial department originated in his
(Ellsworth's) draft, and that it was not materially
changed in its passage into law."2 Madison had al
ready, several years earlier, written to Edward Everett,
to correct an impression that he himself was the au
thor of the law, " The bill originated in the Senate,
of which I was not a member, and the task of prepar
ing it was understood, justly I believe, to have been
performed by Mr. Ellsworth in consultation probably
with some of his learned colleagues." 3 A few letters
that passed between Ellsworth and certain of his friends
show that for all his modesty he felt himself charged
with the main responsibility for the bill. One of them
shows also that as early as the end of April — that is
to say, by the time Washington was inaugurated —
he had worked out the general scheme of courts
which the committee afterward adopted. Yet it was
not till twelve days later that the committee named a
subcommittee to draft a bill.4 His substantial author-

1 Maclay's Journal, 91-92. " Ellsworth hath led in this business,
backed with Strong, Patterson (sic). Read often, Bassett seldom."
Ibid., 101.

One afternoon, Morris, Rufus King, and Pierce Butler called on
Maclay. "The talk was all about the judiciary. Mr. Morris said that
he had followed Ellsworth in everything ; if it was wrong he would blame
Ellsworth." Ibid., 152.

2 "Letters and Other Writings of Madison" (ed. 1865), IV, 428. The
letter is dated Feb. 27, 1836.

8 Ibid., 220-221, letter dated May 30, 1832. See also Madison to
Doddridge (June 6, 1832), ibid., 221-222. Madison was peculiarly care
ful and accurate on all such questions as this about past events.

4 July 9, 1789, Fisher Ames wrote to a Massachusetts correspondent:
"The Judiciary is before the Senate, who make progress. Their com
mittee labored upon it with vast perseverance, and have taken as full a
view of their subject as I ever knew a committee take. Mr. Strong, Mr.

1 86 OLIVER ELLSWORTH

ship of it, asserted by his biographers, is conceded by
historians of the period, and indeed does not seem to
be questioned by any one.1 He had, of course, a great
interest in the subject, and his experience on the old com
mittee of appeals, in the great convention, and on the
bench, gave him an exceptional equipment for the work.

No complete history of the bill can now be written,
but there is enough in the journals of the two houses
and in the debates of the House of Representatives
to sustain Madison's impression that it went through
without any radical changes. It was introduced on
June 12 by Lee;2 but Lee can hardly have had much
share in framing it, for he soon tried to amend it radi
cally, and he was one of the six who voted against it
when it passed the Senate.3 His amendment expressed
the strongest opposition which the measure encoun
tered, for it would have prevented the setting up of
any inferior federal tribunals whatever, except for
admiralty and maritime cases.

Whether to set up a complete system of federal
courts or to assume for the federal establishment, in

Ellsworth, and Mr. Paterson, in particular, have their full share of this
merit." Works, I, 64.

1 Flanders stated (1857) that the original draft of the bill, in Ells
worth's handwriting, was " still preserved in the archives of the Govern
ment," and that "it passed with but little alteration from the original
draft." But he gives no reference and does not state that he himself had
seen the document. Van Santvoord (1854) supposes that Paterson, an
able lawyer, had a share in the work, and adds : " It is said that he (Ells
worth) was assisted also by the valuable aid of his colleague, Mr. Johnson.
To Ellsworth, however, was assigned the chief share of the labor, and the
draft of the bill was undoubtedly from his pen." Flanders, 159; Van
Santvoord, 238. See also Schouler's " History of the United States," I,
96 ; Carson, " History of the Supreme Court," I, 129, 186 ; Mr. Justice Field,
in Ex parte Virginia, 100 United States Reports, 313.

2 Senate Journals, ist Sess., 50. 3 Ibid., 64.

THE SENATE 187

all but a few categories of cases, a merely appellate
jurisdiction, was probably the first question the com
mittee had had to consider. To understand the pre
cise nature of their task, little is necessary beyond a
careful reading of the brief third article of the Consti
tution.1 For models and object lessons they had of
course the judicial establishments of England and the

1 ARTICLE III

Section i. The judicial power of the United States shall be vested in
one Supreme Court, and in such inferior courts as the Congress may from
time to time ordain and establish. The judges, both of the Supreme and
inferior courts, shall hold their offices during good behavior, and shall, at
stated times, receive for their services a compensation which shall not be
diminished during their continuance in office.

Section 2. The judicial power shall extend to all cases, in law and
equity, arising under this Constitution, the laws of the United States,
and treaties made, or which shall be made, under their authority ; — to all
cases affecting ambassadors, other public ministers, and consuls; — to all
cases of admiralty and maritime jurisdiction ; — to all controversies to which
the United States shall be a party ; — to controversies between two or more
States ; — between a State and citizens of another State ; — between citizens
of different States ; — between citizens of the same State claiming lands
under grants of different States, and between a State, or the citizens thereof,
and foreign states, citizens or subjects.

In all cases affecting ambassadors, other public ministers and consuls,
and those in which a State shall be party, the Supreme Court shall have
original jurisdiction. In all other cases before mentioned, the Supreme
Court shall have appellate jurisdiction, both as to law and fact, with such
exceptions and under such regulations as the Congress shall make.

The trial of all crimes, except in case of impeachment, shall be by jury ;
and such trial shall be held in the State where the said crimes shall have
been committed; but when not committed within any State, the trial shall
be at such place or places as the Congress may by law have directed.

Section 3. Treason against the United States shall consist only in levy
ing war against them, or in adhering to their enemies, giving them aid and
comfort.

No person shall be convicted of treason unless on the testimony of two
witnesses to the same overt act, or on confession in open court.

The Congress shall have power to declare the punishment of treason,
but no attainder of treason shall work corruption of blood, or forfeiture,
except during the life of the person attained.

1 88 OLIVER ELLSWORTH

several colonies, and possibly some of them were ac
quainted also with the systems of continental Europe.
They can scarcely have failed to foresee from the be
ginning that there would be jealousy of the new estab
lishment, since it would bring the fresh power of the
central government home to the people more intimately,
perhaps, than any other department. But on the other
hand there was the history of the committee of appeals
to show that unless the central government had effi
cient courts of its own it could not be sure of success
fully asserting its judicial authority. Ellsworth, in par
ticular, can hardly have forgotten the case of the sloop
Active and the still unsatisfied claim of Olmstead and
his fellows. To the establishment of inferior courts
with original jurisdiction of maritime causes there
seems in fact to have been no serious objection from
any quarter. But the committee decided also that
there must be inferior federal courts for all causes
to which, according to the Constitution, the judicial
power of the central government extended. There
could scarcely be a briefer statement of the scheme
of courts which was then adopted than the following,
from a letter written by Ellsworth on April 30 to
Judge Richard Law of the Connecticut Superior

Court:1

" NEW YORK, April 30, 1789.

" DEAR SIR : The following are outlines of a judi
ciary system contemplating before a committee of the
Senate.

" That the Supreme Court consist of six judges, and
hold two stated sessions annually at or near the seat
of government.

1 Wharton's State Trials, 37-38.

THE SENATE 189

" That there be a District Court with one judge
resident in each State, with jurisdiction in admiralty
cases, smaller offences and some other special cases.

" That the United States be divided into three cir
cuits. That a court be holden twice annually in each
State, to consist of two judges of the Supreme Court
and the District Judge. This court to receive ap
peals in some cases from the District Court, to try
high crimes, and have original jurisdiction in law and
equity, in controversies between foreigners and citi
zens and between citizens of different states, &c., where
the matter in dispute exceeds two thousand dollars. I
wish to be favored with your thoughts on this impor
tant subject, as particularly as you please. Mr. Larned
will be able to gratify your curiosity as to what has been
done and is doing here."

Nor could there be a much briefer statement of the
reasons for the decision to set up inferior tribunals
than the following,1 written early in August to the

same correspondent:

" NEW YORK, Aug. 4, 1789.

" DEAR SIR : I thank you for two letters received
since my late return from Connecticut, and am glad
to find your opinion favorable toward the Judiciary
Bill, which has been the result of much deliberation in
the Senate. To annex to State Courts jurisdictions
which they had not before, as of admiralty cases, and,
perhaps, of offences against the United States, would
be constituting the judges of them, pro tanto, federal
judges, and of course they would continue such during
good behavior, and on fixed salaries, which in many

1 Wharton's State Trials, 38.

1 90 OLIVER ELLSWORTH

cases would illy comport with their present tenure of
office. Besides, if the State Courts, as such, could
take cognizance of these offences, it might not be
safe for the General Government to put the trial and
punishment of them entirely out of its own hands.
One federal judge, at least, resident in each State,
appears unavoidable ; and without creating any more,
or much enhancing the expense, there may be Cir
cuit Courts, which would give system to the depart
ment, uniformity to the proceedings, settle many
cases in the States that would otherwise go to the
Supreme Court, and provide for the higher grade of
offences. Without this arrangement there must be
many appeals or writs of error from the Supreme
Courts of the States, which by placing them in a sub
ordinate situation, and subjecting their decisions to
frequent reversals, would probably more hurt their
feelings and their influence, than to divide the
ground with them at first, and leave it optional with
the parties entitled to federal jurisdiction, where the
causes are of considerable magnitude, to take their
remedy in which line of courts they pleased. I con
sider a proper arrangement of the Judiciary, however
difficult to establish, among the best securities the
Government will have, and question much if any will
be found at once more economical, systematic, and
efficient, than the one under consideration. Its fate
in the House of Representatives or in the opinion
of the public, I cannot determine. But being after a
long investigation satisfied in my own mind of its
expediency, I have not hesitated, nor shall I, to give
it the little support in my power. As to the District
Court in Connecticut, I should be well satisfied with

THE SENATE 191

its sitting alternately at New Haven and New Lon
don."1

But apart from the decision to have inferior courts,
and the scheme of districts and circuits, it was no
simple business to carry out in a practical fashion the
general directions of the Constitution. The longer
one examines the third article of that potent instru
ment, the more one admires its condensation, its com
prehensiveness, its wise elasticity. It is perhaps the
very best specific instance of the founders' wisdom
and foresight. The definition of the limits of fed
eral jurisdiction is perfectly clear and perfectly logical,
and the two or three rules concerning the way it shall
be exercised leave to the legislature a discretion ample
for all conceivable changes of conditions. But the bill
cannot have been an easy one to draft. Provision
must be made for ten classes of cases, the jurisdictions
of the Supreme, Circuit, and District courts must be
carefully delimited, and the judicial authority of the
several states no further invaded than was neces
sary to assert fully the judicial authority of the
Union. The device of concurrent jurisdiction and
the expedient of transferring cases from one court to
another had to be freely employed — perhaps more
freely than ever before in the history of jurisprudence.
But it would again be difficult to detail the way in
which the various problems were solved in fewer or
simpler words than those of Ellsworth in the bill itself.2

Had Lee's amendment carried, the bill would have

1 Among some Ellsworth papers in the Public Library of the city of
New York there is a brief letter written the same day to Pierpont Edwards,
telling him that Judge Law thought well of the proposed judiciary system.

2 For the text, without amendments, see " Statutes at Large " (edited by
R. Peters), I, 73-93.

1 92 OLIVER ELLSWORTH

lost its character as a complete fulfilment of the con
stitutional mandate, and the new government would
have surrendered at the outset a great part of its
authority. To leave unexercised the power to create
inferior tribunals would have been conceding too much
to a destructive anti-Federalist sentiment. While the
Constitution was before the people, its adversaries had
with much success inveighed against it as threaten
ing to overthrow the state judiciaries. Lee himself,
in his " Letters of a Federalist Farmer," had skilfully
taken that line of attack. In this, although he prob
ably did not know it at the time, he was merely
following the lead of Rutledge, Butler, and others in
the Constitutional Convention. Four of the delegates
who would not sign the Constitution — Randolph,
Mason, Gerry, and Martin — had mentioned among
their objections the extensive jurisdiction given to the
federal courts. Senators who had served in the con
vention were probably not surprised, the day the bill
was introduced, to hear Pierce Butler of South Caro
lina set upon it forthwith in such a " flaming " speech
that he had to be called to order by the chair.1 But
it now seems perfectly clear that Ellsworth and the
majority of the committee were wise to yield not at
all to these natural but illogical fears. They were
sustained by the Senate, for Lee's motion was voted
down. In the debate over it, as in all the debates
while the bill was on its passage, Ellsworth acted as
its manager and principal defender : so much at least
we learn from Maclay. And it appears that he was a
jealous defender, tenax propositi, and none too gentle
in his handling of objections and adversaries.

1 Maclay's Journal, 74.

THE SENATE 193

Taken up in committee of the whole on June 22,
the bill was before the Senate much of the time until
July 17, when it passed. In the debate by clauses,
Ellsworth successfully resisted the attempt to reduce
the number of judges of the Supreme Court. " He
enlarged on the importance of the causes that would
come before them, of the dignity it was necessary to
support, and the twelve judges of England in the
Exchequer chamber were held up to view during the
whole harangue, and he seemed to draw conclusions
that twelve were few enough." 1 But Maclay's amend
ment to permit affirmations instead of oaths carried,2
and so did another to change a clause, not specified,
"where Ellsworth in his diction had varied from
the Constitution," — notwithstanding that Ellsworth
" kindled, as he always does when it (the bill) is med
dled with."3 On the motion to strike out a clause
requiring a defendant, on oath, to disclose his knowl
edge of the cause, there was much feeling displayed.
" Up now rose Ellsworth, and in a most elaborate ha
rangue supported the clause ; now in chancery, now
in common law, and now common law again, with a
chancery side." But the amendment was passed, and
a rage of speaking caught the Senate. Instead of
consenting to strike out the clause, Ellsworth would
have met the objections to it by applying the rule to
the plaintiff also. But this did not satisfy the opposi
tion, and they continued to press him the next day.
So again " up rose Ellsworth and threw the common

1 Maclay's Journal, 87.

2 " Ran Ellsworth so hard, and the other anti-affirmants, on the anti-
constitutionalism of the clause that they at last consented to have a ques
tion taken whether the clause should not be expunged, and expunged it
was." Ibid., 89. 8 Ibid.) 91-92.

o

194 OLIVER ELLSWORTH

law back all the way to the wager of law, which he
asserted was still in force." Strong of Massachusetts
taking the other side, " Ellsworth's temper forsook him.
He contradicted Strong with rudeness; said what the
gentleman asserted was not fact ; that defendants were
admitted as witnesses ; that all might be witnesses
against themselves. Got Blackstone; but nothing
could be inferred from Blackstone but such a thing by
consent." According to Maclay, Ellsworth lost his
own amendment, and lost the clause.1 There was
another stiff contest over the section — the sixteenth
— which prohibited suits in equity in cases where a
remedy could be had at law,2 and another over the
judges' powers to apprehend, bail, and commit,3 Ells
worth each time leading for the bill as it stood. Mac-
lay himself was somewhat daunted in his opposition
when he learned that the foremost lawyers of Pennsyl
vania — the Chief Justice, James Wilson, Judge Peters,
and Tench Coxe among them — had indorsed the
plan of it.4 Ellsworth growing somewhat more ac
commodating, and standing firm against enlarging the
scope of chancery, — Maclay's pet aversion, — the sus
picious old democrat began to think a trifle better of
him also. They two stood together, in a contest with
nearly all the lawyers of the chamber, against admit
ting any more equity proceedings than the first draft
allowed ; and it seems that they won their fight.5

1 Maclay's Journal, 92-94. 8 Ibid., 98-99.

2 Ibid., 94-95. 4 Ibid., 102-103.

6 Maclay says that on the I3th Ellsworth made a motion, practically
identical with a clause lost on the nth, which, from the context, was evi
dently the anti-equity clause ; and the Senate Journal (p. 63) shows that
a clause stricken out on the nth was restored on the I3th. For the whole
discussion, ibid., 103-109.

THE SENATE 195

" Ellsworth has credit with me," Maclay concedes ;
and again, " Ellsworth . . . has credit with me on the
whole of this business. The part he has acted in it I
consider as candid (bating his caballing with John
son) and disinterested." But on the final vote Maclay
was against the bill as a whole, and when it passed he
was again visited by the gloomiest misgivings, fearing
that all the state judiciaries were going to be swallowed
up.1

A kindred spirit in the House of Representatives
was Livermore of New Hampshire. " For my part,"
he said, " I contemplate with horror the effect of the
plan ; I think I see a foundation laid for discord, civil
war, and all its concomitants." 2 This was on August
24, for it was more than a month before the bill was
taken up in the House. Up again on August 29 and
31, it slumbered the next week while the House en
gaged in what Fisher Ames describes as "this despi
cable grog-shop contest, whether the taverns of New
York or Philadelphia shall get the custom of Con
gress."3 Debated from September 8 to 15 in com
mittee of the whole, it was many times amended,
though probably in unimportant ways, then reported
back to the House, which promptly passed it, with the
amendments. But what the amendments were does
not appear, for the proceedings in committee are
given only for the first three days, when none were
adopted.4

The discussion during those three days was over
Livermore 's motion, substantially identical with Lee's

1 Maclay's Journal, 117-118. 2 Annals of Congress, I, 784-785.

8 Ames's Works, I, 80.

4 Annals of Congress, 782-894; House Journals, I, 120-131.

196 OLIVER ELLSWORTH

in the Senate, to give up all the inferior tribunals ex
cept the courts of admiralty. The fight against the
bill was vehemently waged by Livermore, by Tucker,
Burke, and Sumter, of South Carolina, by Jackson of
Georgia, and by Stone of Maryland. Stone's criticisms
were the strongest and best tempered. He made a fair
retort to the contention that Congress had no author
ity to invest state courts with a jurisdiction which
the Constitution expressly conferred on federal courts,
pointing out that this was actually done in the bill for
causes involving small amounts ; and he argued well
from mere policy against going at once the full length
of the constitutional grant of authority.1 Jackson, the
enfant terrible of the first House, clamored against the
inconvenience, expense, and tyranny of the plan.2
People would not submit, he thought, to be dragged
great distances from their homes to be tried by
strangers. The principal defenders of the bill were
the foremost men in the chamber, — Madison, Sher
man, Ames and Sedgwick, of Massachusetts, Benson
and Lawrence, of New York, and William Smith of
South Carolina. Smith put particularly well an argu
ment which Maclay had made in the Senate, viz. that
the Constitution was really mandatory in respect of the
setting up of inferior courts, since it directed that the
judicial power be vested only in them and the Supreme
Court. But it was felt all along that the bill would
pass, substantially as it was.3

1 Annals of Congress, 809-812, 822-827.

2 Ibid., 801-804, 813-815.

3 Ames wrote, September 6, " The Judicial slumbers, and, when it shall
be resumed, will probably pass as an experimental law without much
debate or amendment, in the confidence that a short experience will make
manifest the proper alterations." Works, I, 71.

THE SENATE 197

Ellsworth, who headed the Senate committee on
the House amendments, reported in favor of disagree
ing to four, amending one, and agreeing to the rest,1
and in this compromise the House concurred.2 The
bill was signed by John Adams on September 22.
Two days later, Washington signed it, and immedi
ately sent to the Senate the nominations of John Jay
to be Chief Justice, and of Rutledge, Wilson, William
Gushing, and John Blair to be associate justices of
the Supreme Court. February 2, 1790, at New York
City, in a room provided at the Exchange, the court
was organized, and the Judiciary Department of the
government went into full operation. It is hard to
see how any one could have disputed with Ellsworth
the distinction of having had the chief part in creat
ing it. Apart from his authorship of the law, his
appointment to the first place on the committee
strengthens the conjecture that it was he who, on
the committee of five in the Constitutional Conven
tion, had drafted the article on the judiciary.

Three other laws were passed by the first Congress
to supplement the judiciary act, and two of these
also were apparently from Ellsworth's hand; for he
headed the committees which severally reported an
act additional to the judiciary act and an act to
define crimes and offences cognizable under the
authority of the United States.3 He also helped to
frame the third supplementary law, which regulated

1 There were at least fifty-two, as one of those agreed to was the fifty-
second.

2 Senate Journals, 137-140, 143. Carson ("History of the Supreme
Court," Ch. 2) gives a history of the bill, drawn from authorities already
mentioned.

8 Journals, 2d Sess., 12, 16, 17, 63.

198 OLIVER ELLSWORTH *

processes in the courts.1 There were no standing
committees during these early years of the Senate ;
but so long as he remained a senator he continued
to serve, usually as chairman, on all special com
mittees charged with business relating to the judi
ciary. He had, therefore, a part, and doubtless still
the chief part, in such changes and extensions of his
handiwork as in actual operation it seemed to need.
These, however, were neither many nor radical. His
scheme stood the test under which the vast majority
of laws made, as this was, out of the whole cloth, usu
ally come to grief. It worked. One of his commit
tees was appointed to consider certain improvements
recommended by the members of the Supreme Court
in a joint letter to the President, but these, too, were
comparatively unimportant. It was ten years before
the first really radical change in the judiciary was
made, and that was made, partly at least and proba
bly mainly, from partisan motives. Beaten in the
elections of 1800, and about to go out of power, the
Federalists passed an act which largely increased
the number both of districts and circuits, relieved
the Supreme Court justices of all circuit duties, and
provided, instead, for three circuit judges for every
circuit. The act created twenty-three new judge-
ships in all, and this at a time when the business of
the courts was actually decreasing. President Adams,
on the very eve of his retirement, filled all these new
places with Federalists. But one of the first acts of
the Republicans on coming into power was to repeal
this law entirely, throwing the new judges out of
office, and leaving the Ellsworth law again in force.

1 Senate Journals, ist Sess., 153.

THE SENATE 199

It proved sufficiently elastic to serve, with exten
sions to keep pace with the growth of the country,
but with no real changes, until 1869, when the great
increase of business led again to a provision for cir
cuit judges, which finally relieved the Supreme Court
justices of all circuit duties. This modification of the
system was followed in 1891 by an act still farther
to relieve the Supreme Court by setting up a Circuit
Court of Appeals, to have final jurisdiction in certain
classes of cases formerly appealable to the Supreme
Court.

But even these changes can hardly be considered
a departure from Ellsworth's general scheme of the
courts. Most of the great judicial structure he de
vised still remains intact He has, therefore, to this
day, a hold on the life of his countrymen such as
few even of the most illustrious minds of his own
time have kept. Makers of mere laws are sometimes
belittled by comparison with poets and artists and
founders of creeds. But there are laws, particularly
those which plant institutions capable of growth, that
go very deep into the life of civilized societies and
exert for ages true compulsions and restraints ; and
such a law is the act of 1789 "to establish the Judicial
Courts of the United States."

It will always remain the most conspicuous
monument of Ellsworth's legislative career. But
his labors in the Senate, entirely apart from the ju
diciary, were nothing less than prodigious. To give
the mere list of the committees he served on and the
measures he framed or helped to frame would require
several pages. The reader would be little enlight
ened, and certainly wearied, with the lifeless journal

200 OLIVER ELLSWORTH ,

entries that constitute, in many instances, the sole
record and evidence of the share he had in legislation
which, by reason of its fundamental, semi-constitu
tional character, stands apart from all that later Con
gresses have done, save when they have either adopted
amendments to the Constitution, or set up new de
partments, or in other ways struck out entirely new
policies. It was he who reported back from a
conference committee the first twelve Constitutional
amendments which Congress submitted to the states,1
ten of which were ratified. When North Carolina
came into the Union, ceding her Western lands to the
new government, he helped to frame the measure
that welcomed her and accepted the cession ; 2 and a
little later he reported the act to provide a govern
ment for all unorganized territory south of the Ohio.3
When Rhode Island, at the end of a year, still de
clined to come in, it was he, apparently, who found
the means to force her in. The means was a non-
intercourse act; and a few weeks later Ellsworth
wrote of it : 4 " Rhode Island is at length brought
into the Union, and by a pretty bold measure in Con
gress, which would have exposed me to some censure
had it not produced the effect which I expected it
would, and which, in fact, it has done. But * all's
well that ends well.' The Constitution is now
adopted by all the States, and I have much satisfac-

1 Senate Journals, ist Sess., 142, 145.

2 Ibid., 2d Sess., 18-20, 29, 33 ; Maclay, 202-203, 226? 236-

3 Journals, 2d Sess., 55, 56-59.

4 June 7, 1790, — "to a friend," Flanders, 163; Journals, 2d Sess.,
63, 75-76 ; Maclay, 259, 264, 266. " Ellsworth spoke with great delibera
tion, often and long," says Maclay ; and again, "... Ellsworth spouted
out for it."

THE SENATE 2OI

tion, and perhaps some vanity, in seeing, at length, a
great work finished, for which I have long labored
incessantly." He dealt with the question of salaries
for the President and Vice-President and other offi
cials, and he reported at the end of the year the sums
due to himself and his brother senators for mileage
and attendance — a fairly strong proof in itself that
he was trusted by his fellows.1 He fought for and
carried a joint rule that at the beginning of a new
session of Congress all business should be taken up
de novo? He wrote the first act concerning the con
sular service.8 He helped to make the first plans for
the military establishment,4 the postal service,5 and
a census.6 While the departments were being or
ganized, he took a firm stand on an important ques
tion over which the President and the Senate have
more than once fallen into violent contention. In
July, 1789, there was a heated debate over the power

1 Journals, ist Sess., 87 ; 3d Sess., 122 ; 4th Sess., 49 ; Maclay, 140, 144,
147. Ellsworth seems to have crossed Adams by favoring low pay for

senators.

2 Journals, 2d Sess., 13-15; Maclay, 179, 181-183, 185. Maclay implies
that the rule was adopted to get rid of some action already taken on the
question of residence.

3 ". . . And, of course, he hung like a bat to every particle of it."
Ibid., 368.

4 Journals, 2d Sess., 98 ; Maclay, 239, 241-245, 250-251.

5 Journals, ist Sess., 132 ; 2d Cong., ist Sess., 96, etc. ; 2d Sess., 150.

6 Ibid., ist Sess., 26. Johnston (of North Carolina) " had said something
against the bill as it stood, but when Ellsworth made his motion, he got up
to tell how convincing the gentleman's arguments were, and that they had
fully convinced him. ... I got a hard hit at Ellsworth. He felt it and did
not reply. The bill was immediately afterward committed and the Senate
adjourned. Ellsworth came laughing to me ; said he would have distin
guished with respect to the point I brought forward. I said, ' Ellsworth,
the man must knit his net close that can catch you ; but you trip some
times.1 So we had a laugh and parted." Maclay, 195-197.

202 OLIVER ELLSWORTH

of removal from appointive offices, and John Adams,
seeing the importance of the subject, entered in his
diary some notes of the speeches. This is his report
of Ellsworth's : 1

" Ellsworth. We are sworn to support the Con
stitution. There is an explicit grant of power to the
President, which contains the power of removal. The
executive power is granted ; not the executive powers
hereinafter enumerated and explained. The Presi
dent, not the Senate appoints : they only consent and
advise. The Senate is not an executive council ; has
no executive power. The grant to the President is
express, not by implication." 2

And yet he found the time and energy to enter into
the discussion of the four subjects over which the first
Congress divided with the greatest heat. These were,
the revenue, the seat of government, the debt, and the
bank.

The first tariff bill that came up from the House
of Representatives had originated with Madison, and
Ellsworth must have recognized it as the consumma
tion of the plan for a permanent revenue which he
and Madison and Hamilton had commended to the
states in April, 1783. The duties were not high, but
many articles had been added to Madison's original
list, and some of the duties were specific. The prin
ciple of protection had been introduced, and the in
terests of different states and sections had been drawn

1 Adams's Works, 409.

2 See also Maclay, 144, for the same speech, and 112-114, 116, for
Ellsworth's part in the controversy. He seems to have felt very strongly,
indeed, on the whole question of the power and independence of the
President, fearing that the system would fail because the executive arm
was not made strong enough.

THE SENATE 203

at once into controversy. New England representa
tives had fought for high duties on rum and low
duties on molasses, that they might continue to im
port the one in order to manufacture and export the
other ; and they had also, in the interest of the fish
eries, opposed the duty on salt. On this last item,
Ellsworth, unlike most New England men, did not
follow the lead of eastern Massachusetts. At first,
he was also against any discrimination in favor of our
own merchant vessels engaged in the tea trade with
the East ; and by changing his mind on that subject
he convinced Maclay that he, like others, was " gov
erned by convenience or cabal." In the end, he
headed the committee which reported the Senate's
decision on the question,2 and he rendered a like
service on the question of trade relations with the
West Indies and other parts of America.3 He stood
out against the proposal to discriminate, both in the
tariff bill and in the tonnage bill which followed it,
in favor of France and other nations with which we
were in treaty;4 and he served on the committee
of conference which gave to both these essential
measures their final character. So concerned was the
Senate over this particular conference that while it
lasted no other business was taken up. 5 Throughout
the discussion, Ellsworth appears as one of those whose
chief anxiety was for the actual success of the revenue
measures, not for the special interests which they might
endanger or advance. At the second session, when
Hamilton, who was now at the head of the Treasury

1 Maclay, 57, 60, 61, 68. 4 Maclay, 89.

2 Ibid., 71 ; Journal, 1st Sess., 46. 6 Journals, ist Sess., 55.
8 Ibid., 87; 2d Sess., 26.

204 OLIVER ELLSWORTH

Department, recommended an increase of the revenue,
Ellsworth seems to have championed even more zeal
ously the bill which carried out the secretary's desire.1
At the third session, when an excise bill, aimed par
ticularly at whiskey, was sent up from the House, he
had the courage to be the Senate manager of that
unpopular measure, which eventually caused the so-
called " Whiskey Rebellion." 2

On the question of the seat of government, he took
in the first session a decidedly Eastern stand. For the
permanent seat he favored the Susquehanna as against
any point farther southward ; and for a temporary seat
he stood out for New York as against Philadelphia.
Later, he did once vote for Baltimore for the perma
nent seat ; but probably only in preference to a site on
the Potomac, for he was against the bill that finally
passed. This would seem to indicate that his was
not one of the votes that were changed to carry out
the famous bargain by which Hamilton secured the
assumption of the debts of the states in return for the
concession of the capital to the South.3 But from this
it must not be inferred that Ellsworth was lacking in
ardor either for assumption or for a firm and national
policy with all the different schedules of the debt.
Holding that they were all parts of the price of inde
pendence, he was for acknowledging the entire obli-

1 Journals, 2d Sess., 190, 194-196.

2 Ibid., 3d Sess., 43, 47, 88; Maclay, 381. "Ellsworth could not
rest a moment all this day (Jan. 27, 1791). He was out and in, in and
out, all on the fidgets. Twice or thrice was an adjournment hinted at,
and as often did he request that it might be withdrawn, expecting the
excise bill to be taken up."

3 Journals, ist Sess., 147-149; 2d Sess., 97-99, 127-128, 131, 134, 141,
144; Maclay, 158, 275, 293, 308, 313, 395.

THE SENATE 205

gation and taking measures to fund it, principal and
interest, and for providing the means to carry it and
eventually discharge it. It seems, in fact, that he was
again peculiarly responsible for the way in which the
subject was finally disposed of ; for the funding bill as
it passed, including the provision for assumption, origi
nated in a resolution which he offered in the Senate
early in July, 1790. At that time, the seat of gov
ernment was not yet chosen, assumption had been
defeated in the House, and a House funding bill, with
no provision for the debts of the states, was in the
hands of a Senate committee of which Ellsworth was
a member. It is entirely probable that he knew of the
agreement by which, in return for Jefferson's help in
passing the assumption bill, Hamilton was to pro
cure enough votes to fix the capital on the Potomac.1
Ellsworth's resolution was, " That provision be made
the next session of Congress for loaning to the U.S.
a sum not exceeding twenty-two millions of dollars,
in the certificates issued by the respective states for
service or supplies for the prosecution of the late war,
the certificates which shall be loaned to stand charged
to the respective states by whom they were issued
until a liquidation of their accounts with the United
States can be completed." 2 Laid on the table until
the residence bill, which passed the House two days
later, had also passed the Senate, this resolution was
then referred to a committee which soon reported it

1 For a good account of the status of the two measures, showing the
relation of Ellsworth's motion to the compromise, see Hunt's " Life of
Madison," 197-200.

2 Journals, 2d Sess., 104, 108. He had given notice the day the House
funding bill came up. See also Maclay, 288. Maclay's record indicates
that Ellsworth was the first to propose assumption in the Senate.

206 OLIVER ELLSWORTH

back lengthened into a set of resolutions. These
being in turn committed along with the funding bill,
both were finally reported in the form of a bill dealing
with the entire debt. Ellsworth was a member of both
committees, as he was also of the committee and the
conference committee which handled the old accounts
with the states.1 He spoke repeatedly on the funding
bill, both before and after the assumption was incor
porated in it. According to Maclay, he was trying
uto reconcile the secretary's (Hamilton's) system to
the public opinion and welfare."2 But from another
source we learn that on at least two not unimportant
details he differed with Hamilton. July 20, Oliver
Wolcott, Jr., a son of Ellsworth's old friend and col
league in the Continental Congress, and now, proba
bly by Ellsworth's influence, auditor of the Treasury,
wrote to his brother Frederic : 8

" The great question is now respecting interest.
Our friend, Mr. Ellsworth, in the Senate, has been of
opinion that it was not expedient to fund the public
debt at a higher rate of interest than four per cent.
That this sum, punctually paid, would answer the
expectations of the creditors, the requirements of
justice, and would better secure the public honor
than a promise of a higher provision, which would,
under the circumstances of this country, be attended
with great risk of failure.

" He has also been dissatisfied with the secretary's

1 Journals, 2d Sess., 147, 154.

2 Maclay, 290. For Ellsworth's connection with funding and assump
tion, see also ibid., 287-291, 298, 300-301, 314, 325-328 ; Journals, 2d Sess.,
142, 145, 147, H9> 173-

8 Gibbs, I, 49. In the same volume (20, 22) are two letters from Ells
worth concerning the appointment of Wolcott to the auditors hip.

THE SENATE 207

proposal of leaving one-third of the debt unfunded for
ten years, as this measure would tend to encourage
speculations, and would leave, after ten years, a great
burden upon the country, with little advantage to
foreigners, who would purchase that part of the debt
at a low rate.

" These opinions have been supported by him with
all that boldness and reason which give him a pre
dominant influence in the Senate. He has, however,
been warmly opposed, and a compromise, it is said, has
been made to fund the principal of the domestic debt
in the following manner: For every $100 principal,
66f to be funded presently at 6 per cent, and 26^8Q-
after ten years at the same rate. The indents and
all arrearages of interest, which amount to about
one-third of the debt, to be funded at 3 per cent.
This, it is said, will give about 45 3 per cent interest
for the entire debt.

"A resolution has passed the Senate for funding
the state debts at the same rate as the continental
debt; but all these things may, and probably will
assume a different modification before the session is
completed."

But Wolcott's information concerning the compro
mise arrangement proved correct. Within a month,
the funding bill, including assumption, was carried
through both houses substantially as he described it.
All that was then needed to complete Hamilton's
general scheme of finance was a bank; and in this
step also Ellsworth, from his experience in the old
Congress, could render valuable aid. When the
secretary's report on the bank was received, the first
Congress being then in its third session, he served on

208 OLIVER ELLSWORTH

the committee which considered it and prepared a bill,
and he spoke and voted for the bill itself,1 which passed
with no radical amendments.

By these bold, firm measures the new government
accomplished at the outset an immense gain of pres
tige, won the propertied class to its support, raised
its credit, and by the quick success of its policies
soon stimulated industry to a great revival all over
the country. For all this Hamilton is chiefly to
be praised; but he could never have achieved his
designs without skilful and courageous management
in Congress ; and all the evidence we have goes to
indicate that in the Senate no man did more to carry
through the programme than the junior senator from
Connecticut. It is doubtful if any other senator did
so much.

Ellsworth's first term ended with the life of the first
Congress, but he was reflected to serve until 1797.
After 1791, however, there is no Maclay's diary to
give meaning and life to the journal record, and it is
impossible to follow with any assurance of a right
comprehension the votes and other officially recorded
acts of any senator. Save as Ellsworth is revealed to
us in contemporary letters and the recollections of his
associates, we must rest content with the salient facts
of his undiminished energy and ceaseless activity, his
maintenance of the leadership already established, and
the stands he took on the greater questions of the time.
Besides his watchful interest in all that pertained to
the judiciary, there were certain routine duties of the
Senate, nowadays the province of standing committees,
with which, at each successive session, his name is

1 Journals, 3d Sess., 21, 33, 35 ; Maclay, 370-371-

THE SENATE 209

regularly associated. He was one of the senators who
revised the annual appropriations as they came from
the House.1 He concerned himself particularly with
the regulation of the consular service.2 Again and
again he considered the cases of persons applying for
pensions.8 When the right of Albert Gallatin to sit
for Pennsylvania was challenged, he served on the first
Senate elections committee and helped to prepare a
report against the claim of the brilliant young Swiss.4
On one occasion, near the end of a session, as chair
man of a special committee, he took charge of four not
unimportant subjects, and the next day reported three
bills to dispose of them.5

But his time and energy were more and more
absorbed by questions which owed their interest to
party controversy quite as much as to their own intrin
sic importance. For the second Congress was but a
few months old when Fisher Ames could write, truth
fully enough, that the opposition to the policies of the
administration had become " a regular, well disciplined
party."6 So much, at least, Jefferson had accomplished
within a year to offset the brilliant achievements of
Hamilton in the actual working of the government.
In 1791, George Cabot of Massachusetts came to join
Ellsworth, King, and Strong, leaders of the adminis
tration party in the Senate ; but at the same time
Aaron Burr's name was entered on the roll. It was
not long before Langdon of New Hampshire went

1 Journals, 2d Cong., ist Sess., 269 ; 3d Cong., ist Sess., 191 ; 4th Cong.,
ist Sess., 58.

2 Ibid., 2d Cong., ist Sess., 31.

8 Ibid., 109, 149; 2d Sess., 32, 68, etc.

4 Ibid., 3d Cong., ist Sess., 16, 29, 61, 62.

5 Ibid., 147, 149. 6 Works, I, 118.

210 OLIVER ELLSWORTH

over to Jefferson's following, which in the third Con
gress controlled the House of Representatives, and on
several occasions, but for the casting vote of Adams,
would have deadlocked the Senate. The true sources
of the strength of this opposition cannot here be ana
lyzed. It is enough to say that its attacks were made
first on the financial policy of the administration, then
on its foreign policy. But the outcry against the
assumption and the bank gradually lessened with the
coming of prosperity, and the discontent with the reve
nue measures was speedily put out of countenance
by the low character, the trifling proportions, and the
swift and easy suppression of the Whiskey Rebellion
in Pennsylvania. In this episode, the readiness of
Hamilton and the firmness of Washington turned what
might have been a fatal revelation of the government's
weakness into a proof of its strength and a means of
discomfiting its opponents.

Readiness and firmness in the legislature also were
needed, and these qualities the Federalist senators and
congressmen at once displayed. They took measures
promptly to strengthen the military establishment,
passing acts to build magazines and arsenals, and to
encourage recruiting,1 and they upheld Washington's
hands with their addresses to the President and with
speeches in the chambers. In the summer of 1794,
while the so-called insurrection was in progress, Ells
worth wrote from Windsor to the younger Wolcott,
whose office kept him in Philadelphia, that he thought
the use of the militia indispensable ; and that Wash
ington — "who seldom mistakes, and as we believe

1 See, for Ellsworth's part in these activities, Senate Journals, 3d Cong.,
ist Sess., 43, 92, 117, 153, 157, etc.

THE SENATE 21 1

never " — could count on the steadfast support of Con
necticut, and indeed of all New England. But at the
end he added : " Pray keep me well informed of this
rebellion, which I hope to see brought to a good issue.
And tell me as much as you may of what Mr. Jay
writes — I think the two subjects are related." *

The remark is a good index to Ellsworth's view of
the political situation, and indeed of the entire state
of our affairs. That summer, Jay was in England,
and to follow the train of causes which had sent him
thither would be to write the political and diplomatic
history of the five years that went before.

The mission was the immediate outcome of a plan
which had originated with Ellsworth and his Senate
confreres rather than with Washington. The warlike
measures they had prepared in accordance with the
President's recommendations had not been aimed
chiefly at the malcontents at home. Washington
had been deeply concerned over our relation to the
contest between England and France. Notwithstand
ing that his whole desire was for peace and an honor
able neutrality, he had urged Congress to prepare for a
possible foreign war. The opposition, siding openly
with France, had seemed bent on forcing the admin
istration into a complete break with England; while
the extreme Federalists had been brought into a mood
of intense hatred for France and of too marked par
tiality for Great Britain. Genet, the light-headed
minister of the new French republic, had done all that
could be done by tactlessness, and by an utter disre
gard of our neutral rights, to drive us either to a sub
servient alliance or to a rupture with his government.

1 Gibbs, I, 158-159.

212 OLIVER ELLSWORTH

But England, on the other hand, by a course hardly
less contemptuous and even more damaging to our
interests, seemed to be doing her best to offset the
folly of Genet and the intemperate behavior of his
American admirers. The discontent of the South
west, and the threatening attitude of Americans in
that quarter toward the Spanish in New Orleans,
increased the tension. There was a widespread con
viction that we should soon have a war, the only un
certainty being, with which of the powers we should
fight. In this predicament, the whole course of poli
tics turned on our foreign relations, to an extent that
now passes belief. Even Ellsworth became for a time
completely absorbed in international questions.

As usual, however, he kept his head. He was one
of the few who in their anger with opponents at home
and their indignation at foreign outrages never forgot
their patriotism, and who in their patriotism never
once lost sight of the main chance — the real and per
manent interests of the country. Zealously supporting
the administration in making ready for war, he was
yet firm for peace ; and he never despaired of it. Quite
out of sympathy with the enthusiasm for the French
notion of liberty, he made, as early as 1 790, a speech
in which he ridiculed France's claim to our gratitude.1
He voted later to soften some over-ardent resolutions
congratulating France on the adoption of a republican
form of government, he supported the bill denying her
the use of our ports for prizes, and he seconded Cabot's
motion to strike out the phrase, "that magnanimous
nation," from another set of resolutions thanking her

1 Maclay, 405, calls the speech " a burst of abuse . . . against the
French in the most vituperative language that fancy could invent."

THE SENATE 213

for a gift of colors.1 He was also against a temporary
embargo which passed, and against a bill to prohibit
all importations from Great Britain, which was beaten
only by Adams's vote.2 But he went into no excess of
partisanship for the British. The governing considera
tion with him seems to have been that friendship and
trade with England were worth more to us than any
thing France could offer. In January, 1794, when the
Republicans were clamoring for war with England,
and many who opposed it thought it unavoidable, he
wrote to his friend, Judge Law:3 "As to the war
between this country and England, so much dreaded
by some and wished for by others, / think it will not
take place. Complaint of Mr. Genet has been made
to his Court, with a request of his recall. The answer
is, that they disapprove of his conduct, and will im
mediately recall him. The fact however is, that he
has not done but part of the mischief he has been sent
to do." And early in March he wrote to his brother
David:4 "As to war, sir, I still think that we shall
avoid it, notwithstanding all the difficulty and danger
attending our condition. Should I at any time think
it advisable for you to sell the whole or part of your
stock I shall certainly tell you of it." A few weeks
later, writing to the elder Wolcott about Madison's
resolutions for discriminating against all nations not
in trade with us, he agreed with his correspondent that
they could, if passed, produce nothing but mischief.
The debts of the South were, he thought, a principal
factor in creating the situation " by opposing compul-

1 Journals, 2d Cong., ist Sess., 155; 3d Cong., ist Sess., 118-119;
4th Cong., ist Sess., 44.

2 Ibid., 3d Cong., ist Sess., 118-119, J65-

8 Jan. 20, 1794, Wood Ms. ; Flanders, 168-169. 4 March 4, 1794.

214 OLIVER ELLSWORTH

sive energy of the government, generating mist and
irritation between this country and Great Britain, and,
of course, giving a baleful ascendancy to French influ
ence." But he added : " I hope in a few days we shall
see the business turned into a channel of negociation,
and a respectable envoy sent to London, on the sub
ject of commercial spoliations. A negociation of this
kind, with proper interior arrangements to give weight,
would, I presume, save us from war. " *

When Ellsworth expressed such a definite hope as
this, the chances were that it was already by way of
being realized. From the letters of two or three other
Federalist leaders, as well as from his own cautious
outgivings and the recollections of the members
of his family, we know that he did not speak of the
mission to England until he and a small group of his
friends had taken steps to bring it about ; he may even
have had it in mind as early as his letter to his brother.2
At any rate, the mission was first considered about the
beginning of March, when Madison's anti-British reso
lutions and other proposals in the House put an end
to all friendly relations between the two countries. The
son and biographer of Hamilton has asserted that the
first suggestion of it came from him, and this may very
well be true ; but the proof is wanting.3 What seems
fairly certain is that the plan was first proposed to Wash
ington by Ellsworth.

1 April 5, 1794, Gibbs, I, 134-135-

2 It is interesting to compare his correspondence at this time with
his speeches in the Constitutional Convention before the so-called Con
necticut compromise was accepted. Both illustrate his coolness and
balance.

3J. C. Hamilton's "History of the Republic," V, 532-535 ? H- c-
Lodge's " Life of George Cabot," 67, and note.

THE SENATE 215

On March 10, Ellsworth, King, Strong, and Cabot
had held a conference and considered the whole situa
tion. It was plain that the House of Representatives
was partial to France and hostile to England, and there
were many signs that the country was with the House.
England, by her disregard of our rights as a neutral,
— her orders in council, her seizures of our ships and
impressments of our sailors, — was daily feeding the
popular wrath against her. France, though guilty of
equal outrages, had the sympathy of the populace, and
the skilful advocacy of Jefferson and other Republi
can leaders. Even in the Senate, the slight Federalist
majority could not be depended on ; l and the Genet
episode had showed that the great prestige of Wash
ington might not long suffice to uphold a policy the
masses detested. There could be no doubt that we
were really in danger of drifting into war, and that
England, rather than France, would be the enemy.
The outcome of the conference was a unanimous
decision that an envoy extraordinary ought to be sent
to England to negotiate a treaty of commerce, and
Ellsworth was chosen to go at once and lay the mat
ter before the President.

He accordingly sought an interview. When he had
gone over the situation, dwelling on the crisis in our
foreign relations, and pointing out that it was sure to
aggravate our domestic difficulties, Washington asked
him what was to be done. Ellsworth replied by pro
posing to send an envoy or envoys to England, and
mentioned Hamilton and Jay as men whom he and
his friends had agreed to recommend. The President,
it seemed, was taken completely by surprise. Although

1 H. C. Lodge's " Life of George Cabot," 95.

216 OLIVER ELLSWORTH

the two discussed the project at length, he would not
at once commit himself. At the end of the interview,
he said merely, " Well, sir, I will take the subject into
consideration." *

But it did not take him many weeks to make up his
mind ; and somehow a rumor soon got about that he
was going to make Hamilton the envoy. James Mon
roe heard it, and at once wrote to remonstrate, for to
the Republicans there was no other name quite so ob
noxious as Hamilton's. Washington, in reply, asked
for a statement of the objections to Hamilton, and this
Monroe failed to give. But it was decided, and no
doubt wisely, that to appoint Hamilton would provoke
an unavoidable opposition to the mission. Washing
ton turned, accordingly, to John Jay, who had not yet
been drawn into the more violent party controversies ;
and this choice Hamilton heartily approved.2 To Jay
himself, however, the call was most unwelcome, for he
foresaw that the service would make him unpopular.8
The following, from a letter to Wolcott, written
April 1 6, 1794, may indicate that Ellsworth was one
of those who helped Jay to see that it was his duty to
accept : 4

" In a late letter I suggested to you the idea of
turning our grievances into a channel of negotiation.
I now venture to assure you that Mr. Jay will be
sent as special envoy to the Court of London, with

1 Wood Ms. ; O . E. Wood, in New York Evening Post ; Lodge's « Cabot,"
67; Lodge's Address on Ellsworth, in "A Fighting Frigate and Other
Essays," 86-87 1 " Life and Correspondence of Rufus King " (ed. by C. R.
King), 1,517-518.

2 Hamilton's Works, IV, 536.

8 " The Correspondence and Public Papers of John Jay," IV, 2-4.
4 Gibbs, I, 135.

THE SENATE 217

such powers and instructions as probably will produce
the desired effect. His nomination will come forward
this day or to-morrow. He is now here, and has this
moment informed me of his determination to accept
the appointment if it shall be made. This, sir, will be
a mortifying movement to those who have endeavoured
by every possible means to prevent a reconciliation be
tween this country and Great Britain. The British
instructions of the eighth January, which I sent you,
begin to operate favourably in the West Indies. The
embargo, I trust, will not be continued beyond the
thirty days for which it was laid. It ought not to
have been laid at all."

The day this letter was written, Washington sent
to the Senate the nomination of Jay. After a violent
debate of three days,1 the Senate confirmed it. Early
in May, the envoy sailed for England. It is no won
der that throughout the trying summer that followed,
and late into the autumn, Ellsworth showed the deepest
anxiety for news of his success. It is significant that
on November 19, the day the treaty was signed, be
sides letters to Washington and to Edmund Randolph,
Secretary of State, Jay wrote to Hamilton, King, and
Ellsworth. To each of these three in turn, recogniz
ing their common interest in the mission, he made a
kind of brief report.2 The results of the mission were
in truth by no means brilliant, but they were all, per
haps, that could reasonably have been expected. Jay
had failed to obtain compensation for the negro slaves
carried off by British troops after the Revolution, or
any agreement to stop the impressment of our seamen.

1 " Life and Correspondence of Rufus King," I, 521-522.

2 Jay's "Correspondence and Public Papers," IV, 132-144.

2l8 OLIVER ELLSWORTH

To obtain a slight measure of freedom of trade with
the British West Indies he had consented to humiliat
ing and damaging conditions. But a date was fixed
for the surrender of the Western posts, which the British
had held ever since the Revolution ; boundary disputes
were referred to commissioners; another commission
was to sit on claims for damages to individuals ; rules
were framed to govern all questions of the right of
seizure at sea ; and we gained something in the mat
ter of the restrictions on our commerce with India.
The claims commission was doubtless the most impor
tant concession Jay had obtained, for it enabled him and
his friends to feel that they had accomplished their prin
cipal object, — to avoid war without positive dishonor.
But the hardest part of the fight for peace was still
ahead. Ellsworth had been right in his prophecy that
the mission would prove " a mortifying movement "
to the opposition. The treaty did not reach Philadel
phia until the day after the short session of Congress
came to an end. In June, the Senate was convened
in special session to consider it. The opposition
senators fought it bitterly. They succeeded in strik
ing out the twelfth article relating to trade with the
West Indies. But on June 24, by a bare two-thirds
majority, the rest was approved. A few days later,
the substance of the whole was revealed to the pub
lic; and at once, while the President was consider
ing it, there broke upon the administration quite the
most furious storm of crimination, slander, and abuse
that ever arose even in those early years of the party
system, when men still treated political opponents as
enemies and traitors to the country. One of those
who made themselves conspicuous by their violent op-

THE SENATE 219

position was John Rutledge, Ellsworth's associate in
many earlier labors, whom Washington had recently
chosen to be Jay's successor on the bench — a circum
stance that had an important bearing on the future
of Ellsworth himself.

There were reasons enough why Washington should
hesitate before he signed the treaty, and he held it
seven weeks — a period which gave the opposition
an ample opportunity for protest. The opportunity
was not neglected. Hamilton, rising to address a
public meeting in New York, was driven from the
rostrum with stones and curses. Jay was burned
and hanged in effigy, lampooned in the public
prints, denounced in public meetings, damned and
double-damned in public and in private. Washing
ton declared, " I have never since I have been in the
administration of the government seen such a crisis."
The worst of the business was not known to him, how
ever, until one day when Wolcott, now promoted to be
Secretary of the Treasury in place of Hamilton, who
had resigned, put in his hands a document which
seemed to show that Edmund Randolph, Jefferson's
successor in the State Department, had been conspiring
secretly with the minister of France, perhaps for pay,
to compass the defeat of the treaty. This shameful
episode, which is not even yet completely understood,
may possibly have induced Washington to decide at
once; and a few days later, on August 15, he signed
the treaty.

Meanwhile, at his home in Windsor, Ellsworth had
been pacing the hall in the most intense anxiety. For
several nights he scarcely slept at all. For once, it
seems, he had misdoubted Washington's firmness and

220 OLIVER ELLSWORTH

courage. Himself thoroughly convinced of the wis
dom of accepting the treaty, he feared lest Washington
should bend before the tempest of popular disapproval.
The very day the treaty was signed, he wrote to Wol-
cott : " If the President decides wrong, or does not
decide soon, his good fortune will forsake him. N. E.
I think is tolerably quiet, and will be more so, as the
subject becomes more understood. But I am to be
responsible only for Connecticut. That E. R.1 should
not act at all is less surprising than that J. R.2 should

act like the D . I wait for the unravelling, when

more is to be known. . . ." Even when he got Wol-
cott's letter, telling him the treaty was signed, he was
not content. August 20, he wrote again : " I am glad
the President has done at last, what I am unwilling to
believe he ever hesitated about, and the delay of which
has not been without hazard and some mischief. The
crisis admits not of the appearance of indecision, and
much less of steering any course but one.

" There is less reason to be anxious for the Eastern
quarter than there was some weeks since. The at
tempt of a few Lawyers, taking their tone from New
Haven, to agitate the state, has been unsuccessful,
and must be abandoned. Rhode Island and Vermont
I apprehend to be out of danger, though my informa
tion is not so full as might be wished. The current, I
believe, is turning in Massachusetts, though you may
perhaps hear of some more obscure Town Meetings.
The declarations of the Boston Merchants and the
President's letter to the Selectmen are good dampers,
and together with able defences now circulating, will

1 Probably Edmund Randolph, possibly Edward Rutledge.

2 John Rutledge.

THE SENATE 221

produce an effect. As I hear nothing from New
Hampshire except of the first impression at Ports
mouth, I infer that Brother Langdon's argument and
explanation, that ' 'tis a damned thing made to plague
the French,' has by repetition lost its force. This is
all I can tell you about New England. And I very
much wish you, when you have leisure, to tell me how
general and how violent the opposition is in all the
States south of this, and what effects are to be ex
pected from it.

" It is not certainly owing to laziness, that nothing
more formal has been here written on the side of the
Treaty. We thought it best to stand prepared for
defence if an attack should be here made, which has
not yet been the case, and in the meantime perhaps
to scrap and squib a little, just to keep the humour the
right way, and to see to the publishing of what is well
written elsewhere."

Evidently, his whole heart was in the business, and
he felt deeply his own share of the responsibility for
it. He was right to fear that the danger from the
opposition was not yet over. The House of Repre
sentatives was still to be reckoned with, for money
must be appropriated to carry the treaty into effect.
Throughout the whole of the following winter at Phil
adelphia, interest centred in the opposition's efforts to
defeat the appropriation and the virtual claim of the
House to a revisionary control over the exercise by
the Senate and the President of their right to conclude
treaties. The tide of national feeling and opinion was
near its ebb, and for one reason or another the strong
est men of the strong government party were passing
from the scene. On his return from Europe, Jay

222 OLIVER ELLSWORTH

resigned his place on the bench to become again the
governor of New York. The cabinet places were al
ready given over to second-rate characters. At this
session of Congress, King, Cabot, Strong, and Ells
worth sat together for the last time in the Senate.
From the other house, Fisher Ames, the most brilliant
orator in Congress, was also about to retire, for a wast
ing disease had checked almost at the outset a career
which otherwise would surely have been long and
brilliant. His strength hardly enabled him to stand
while he poured out in defence of the treaty a speech
of extraordinary eloquence — the one really great ora
tion of the Federalist period. Before the House finally
voted the appropriation, Ellsworth also got an oppor
tunity to render one more service to the cause of peace
with England. The House had asked the President
to lay before it the instructions to Jay, and the corre
spondence and other documents relating to the treaty.
While Washington and his cabinet were considering
the demand, Ellsworth was requested to give his
opinion, and he drew up an argument to show that
the House had no constitutional right to the docu
ments.

This opinion was not rendered by Ellsworth the
senator, but by the Chief Justice of the United States.
His work as a lawgiver had come to an end. March 8,
in a letter on another subject to the elder Wolcott, who
was now governor of Connecticut, he wrote : " It is, sir,
my duty to acquaint you that I have with some hesita
tion accepted an appointment in the judiciary of the
United States, which of course vacates my seat in the
Senate. This step I hope will not be regarded as
disrespectful to a state which I have so long had

THE SENATE 223

the honor to serve, and whose interests must forever
remain precious to my heart." 1

But before we turn to Ellsworth the Chief Justice
we should like, if it were possible, a better acquaint
ance with Ellsworth the Senator. According to one
competent and intimate observer, the years of his sena
torial service — notwithstanding that one of them was
his fiftieth — were a period of remarkable growth. He
met the many demands of his new place with a fresh
access of energy and a display of gifts and powers
which surprised even his intimates. It was doubtless
his first colleague, Johnson, who to the best of Ells
worth's early biographers made this statement.2 It is
of a piece with the report of other of his associates
within and without the closed doors of the Senate. It
accords also with the reasonable inference from the
multitudinous activities recorded in the journals and
with a tradition which may linger in the Senate even
to the present day3 — a tradition that Ellsworth's in
fluence with his fellows was, as Wolcott said, "pre
dominant." Such an estimate of his rank is not
inconsistent with his failure to attain a wide celebrity ;
for it frequently happens that the leaders in this pecul
iar chamber, even nowadays, when its debates are pub
lished, are less well known to the public than men
whose actual weight in legislation is but slight.
Neither is it inconsistent with the testimony of
Maclay. In spite of all Maclay's carping at Ellsworth,
he conveys a distinct impression of a powerful intellect
and will, of a quite extraordinary energy and effective-

1 Gibbs, I, 306.

2 Analectic Magazine, III, 392.

3 See G. F. Hoar's "Autobiography of Seventy Years," II, 45.

224 OLIVER ELLSWORTH

ness. Unlike the unknown commentator on Wood's
manuscript, he considered Ellsworth eloquent. " Els-
worth, who is a vastly better speaker than I am " ; " he
explained everything with a clearness and perspicuity
which I seem quite incapable of " ; " Mr. Elsworth did
the subject justice " ; " Elsworth is really a man of
ability " ; " this man has abilities " ; " all powerful and
eloquent in debate " ; and again, " Elsworth, a man of
great faculties and eloquent in debate " — such tributes
to a man he was almost constantly opposing more than
outweigh the strictures. There is also an involuntary
tribute in the confession that once, under a fierce
attack from Ellsworth, Maclay himself fairly fled the
chamber. The strictures, however, are certainly
severe. Bored by an excessively long and tedious
argument, he proposes " endless Ellsworth " for a nick
name. Of Ellsworth's obstinacy there is constant
complaint, and he is also set down as " the most con
ceited man in the world." Worse still, Maclay could
not believe in his integrity. " It is really surprising to
me the pains he will display to varnish over villainy
and to give roguery effect without avowed license."
" He will absolutely say anything, nor can I believe he
has a particle of principle in his composition." He is
able, " but abilities without candor and integrity are
the characteristics of the devil." " I can in truth pro
nounce him one of the most uncandid men I ever
knew possessing such abilities. I am often led to
doubt whether he has a particle of integrity : perhaps
such a quality is useless in Connecticut." But fortu
nately these severe animadversions are usually accom
panied with a recital of the incidents which provoked
them ; and these are such passages as not infrequently

THE SENATE 225

occur between opponents heated in debate. On the
particular occasion when Maclay was driven before
the blast of Ellsworth's invective, he returned to
the charge, with fresh ammunition gathered from the
other's record in the old Congress, and cited one of
the many reports signed by Ellsworth, Madison, and
Hamilton. There follows an amusing and very human
picture of the effect of his retort : " Elsworth took a
great deal of snuff about this time. He mumped,
and seemed to chew the cud of vexation. But he
affected not to hear me, and indeed, they were all in
knots, talking and whispering. Mr. Adams talked
with Otis (the secretary) according to custom. ... I
am too sparing ; I should have read that part of the
report with their names."

Aaron Burr was another senator who must have
seen much of Ellsworth, for they served together on
many committees. They were, apparently, leaders of
the opposing sides in the Senate on party questions,
as in the bitter fight, sectional as well as partisan, that
arose over the act to fix the ratio of representation in
the House after the first census had been taken.1 In
all probability, therefore, Burr was an unfriendly critic,
and we know how he could hate an adversary. Yet
he, too, paid tribute to the other's formidable strength.
" If," he said once, " Ellsworth had happened to spell
the name of the Deity with two d's, it would have taken
the Senate three weeks to expunge the superfluous
letter." 2 Another political opponent who, though not

1 Senate Journals, 2d Cong., ist Sess., 42, 51, 60-61, 145, 152, 159, 162.

2 "Old Time Notables," by John Blair Linn. This writer remarks:
"The ablest advocate of the administration, Oliver Ellsworth of Conn.,
on account of his great ability and efficiency in the conduct of business,
was yielded precedence in the Federal ranks in the Senate."

Q

226 OLIVER ELLSWORTH

a senator, might be supposed to have known Ellsworth
well, was Madison. But in the letter which he
wrote to Wood, long after the death of Ellsworth, he
said that he had but a limited acquaintance with the
Connecticut senator, and that no epistolary correspond
ence ever passed between them. The letter goes on :
" As we happened to be thrown but little into the
familiar situations which develop the features of per
sonal and social character, I can say nothing particular
as to either — certainly nothing that would be unfavor
able. Of his public character I may say, that I always
regarded his talents as of a high order and that they
were generally so regarded. As a speaker his reason
ing was clear and close, and delivered in a style and
tone which rendered it emphatic and impressive. In
the convention which framed the Constitution of the
United States, he bore an interesting part, and signed
the instrument in its final shape,1 with the cordiality
verified by the support he gave to its ratification.
Whilst we were contemporaries in the early sessions
of Congress, he in the Senate and I in the House of
Representatives, it was well understood that he was an
able and operative member."2

It is not a very warm tribute; but Madison was
always discriminating in his encomiums. Had he and
Ellsworth remained of the same party, it is likely that
he would have had more than hearsay to tell concern
ing the other's work in the Senate. It is not unreason
able to suppose that some sectional feeling may also
have contributed to keep them apart. For we know

1 A singular mistake for Madison to make ; but at this time (1836) he
was a very old man, close to his end.

2 « Letters and Other Writings of Madison," IV, 428.

THE SENATE 227

that in this period sectional feeling ran very high.
Madison was consorting more and more exclusively
with men of his own party and of the Southern states ;
and the only picture we have of Ellsworth in any
particular social circle at Philadelphia while he was a
senator associates him only with other New England
characters.1 There is no record of his taking part in
the fierce debate that arose over the Quaker anti-
slavery petition to the first Congress, nor can any
thing of a general nature be positively said about his
relations with Southerners. But he felt, as we have
seen, that the debts of the South were a main source
of friction with England. There is also a story that
once, in his vehement advocacy of some measure in
the Senate, he much offended that well-named senator,
Gunn of Georgia, who threatened to call him out;
but that certain other Georgians in Congress, sympa
thizing with Ellsworth, and knowing that he could not
conscientiously fight a duel, offered to take his place,
and Senator Gunn desisted. These facts are not enough
to show that Ellsworth felt as some other Federalists
did — his friend, Cabot, for instance — concerning the
South.

But on this point a curious bit of testimony has
lately come to light. In the spring of 1794, a time,
as we have seen, of much perturbation over malice
domestic and much apprehension of foreign levies,
John Taylor of Virginia, better known as John
Taylor of Caroline, was perhaps the most extreme

1 " When I mention such names as Ellsworth, Ames, Griswold, Goodrich,
Tracy, £c., you may imagine what a rich and intellectual society it was."
From a letter of Judge Joseph Hopkinson of Philadelphia, quoted in Gibbs,
I, 162-163. Hopkinson indicates that this circle met oftenest at his own
house and Wolcott's.

228 OLIVER ELLSWORTH

representative in the Senate of the Southern, the
state-rights, the anti-Federalist, the anti-English sen
timent A paper in his handwriting, dated May
1 1, prepared for James Madison, preserved among
the Madison papers, and now, after more than a
century, given to the public,1 records an interesting
interview which occurred on May 8 or 9 between
Taylor on the one hand and King and Ellsworth,
Federalist leaders, on the other. Taylor, it seems,
had been violent in his opposition to the measures of
the Federalists, particularly to their course with the
debt, to the setting up of the bank, and to the proposal
to send an envoy to England. A few days before, he
had moved with a bitter speech to sequester all British
debts. Defeated, he had declared that he meant to
resign. Matters were in this train when King invited
him into a committee room and there began to talk to
him about a dissolution of the Union. According to
Taylor's memorandum, King said that the Union simply
could not continue. The East and the South could
not agree, and the South was clogging every movement
of the government. When the two Federalist senators
from South Carolina should give way to anti-Federal
ists, Southern interests would prevail, and the East
would not submit. Better, then, peaceably dissolve at
once. Ellsworth coming in about this time, apparently
by accident, — though Taylor thought from concert, —
King, protesting that he had not mentioned the matter
to him before, repeated what he had said, and Ellsworth
concurred. " K. was throughout the chief spokesman,

1 " Disunion Sentiment in Congress in 1794. A Confidential Memoran
dum hitherto unpublished, written by John Taylor of Caroline for James
Madison." Edited by Gaillard Hunt, Washington, 1905.

THE SENATE 229

tho' E. occasionally joined him, and appeared entirely
to concur with him." Taylor, taken aback, argued for
a plan to pay the debt by reducing army expenses and
selling Western lands, as in his judgment the debt
was the main source of the sectional divisions. But
to this King would not agree. There were, he
thought, other essential subjects of difference. South
and North would never think alike. He was par
ticularly concerned about the course of Madison,
believing him to harbor some " deep and mischievous
design." He ended as he began. Taylor, after reflec
tion, was quite convinced that here was a fully matured
plot to break up the Union. The words and the
countenances of King and Ellsworth forbade him to
doubt it. More still : he feared that at the bottom of
the business some British interest lurked. Perhaps
the full plan was, to dissolve first, then bring the East
and England together, and finally, by this union, force
the South to terms.

But on the memorandum of these facts and opinions
which Taylor had written out for Madison's benefit,
Madison himself merely wrote, " The language of K.
and E. probably in terrorem" \ and everything we
know of Ellsworth is in keeping with this interpre
tation of the incident. He was a bold as well as a
shrewd politician, not easily frightened, never inclined
to overrate the strength of his opponents. So much
is amply shown by his course in the Constitutional
Convention, as well as in the Senate. Quite likely, he
and his associates felt that it was time to give the
violent anti-Federalists a bit of tit-for-tat. It all
looks very like the present-day game of politics as
it is played behind the scenes — and not unlike a

230 OLIVER ELLSWORTH

certain thoroughly American game at cards. It does
not convince one that Ellsworth and King, who were
working night and day to strengthen the Union, had
any real design to break it in two, — and leave George
Washington in the other half ! l

The estimates of Ellsworth by the members of his
own group of Federalist leaders are naturally higher
than those of even the more magnanimous Republi
cans. The letters of King and Cabot reflect the
intimacy of the ruling coterie in the Senate. Jay also
wrote of him in terms of complete respect and of strong-
friendship. Allusions to his character in the letters
of other Federalists are nearly always commendatory.
" He is a good man, and a very able one," wrote Con
gressman Jeremiah Smith of New Hampshire, on
hearing of his appointment to the bench ; " a man
with whom I am well acquainted, and greatly esteem." 2
About the time of his retirement from the Senate,
Fisher Ames praised him in signal fashion. Christo
pher Gore, writing from London, had inquired earnestly
about the leadership of Congress when Ames himself
should be gone ; and Ames replied : 3 " As to my ab
sence from the House, the loss will be nothing as to

1 Mr. Gaillard Hunt, editor of the document, and biographer of Madi
son, thinks that " Madison was right." But he also thinks that King and
Ellsworth were seriously contemplating disunion, and points to their inti
macy with Cabot and Strong, who took later, during the War of 1812, a
course that caused them to be charged with disaffection to the government.

2 Elsewhere, Smith tells a story of a Philadelphia bookseller who had
beguiled him and others into making purchases by flattery. The man would
watch a possible customer turning over the leaves of a book and approach
ing with the remark, " Sir, I perceive you are a man of letters," proceed to
recommend his wares. Smith saw him try this trick on Ellsworth, but it
failed. "Life of Jeremiah Smith," by John H. Morrison, 91, 393.

8 Oct. 5, 1796, Works, I, 203.

THE SENATE 231

leading. I never had any talent in that way, and I
have not been the dupe of such a belief. Few men
are fit for it. Ellsworth, Hamilton, King, and per
haps John Marshall, would lead well, especially Ells
worth, —

. . . quo non praestantior alter
Aere ciere viros, martemque accendere cantu.

" His want of a certain fire that H. and K. have
would make him the fitter as a dux gregis. The
House will be like sheep without a shepherd. I
never was more than a shepherd's dog." Rather curi
ously, John Adams takes much the same line in prais
ing this senator translated to the bench. They two
had not always escaped friction in their intercourse
in the Senate chamber; but Adams, who from his
President's chair had for seven years beheld Ellsworth
dealing with all manner of public questions, was almost
bitter with Washington for depriving him of such a
supporter. He wrote in 1813 that at the time of the
appointment the opposition had long been making
plans to explode Washington, sacrifice Adams, and
bring in Jefferson, and that Washington understood
this. " But what had he done before he left the chair ?
Ellsworth, the firmest pillar of his whole administra
tion in the Senate, he had promoted to the high office
of Chief Justice of the United States; King he had
sent ambassador to London ; Strong was pleased to
resign, as well as Cabot ; Hamilton had fled from his
unpopularity to the bar in New York ; Ames to that
in Boston ; and Murry was ordered by Washington to
Holland. The utmost efforts of Ellsworth, King, and
Strong in the Senate had scarcely been sufficient to

232 OLIVER ELLSWORTH

hold the head of Washington's administration above
water during the whole of his eight years." And
after men of this stamp, Adams asks in wrath, " What
was my support in the Senate? Mr. Goodhue of
Massachusetts. . . . Had Ellsworth, Strong, and King
been there, the world would never have heard of the
disgraceful cabals and unconstitutional proceedings of
that body."

Here were indeed egregious calls for Hector. That
in such a state of parties Washington decided to take
Ellsworth for the bench may show that he was himself
less of a partisan than some of his biographers would
have us believe ; but it also shows that he, too, had
noted Ellsworth for "a good man." There is no
evidence that Ellsworth was one of the very few who
ever were on terms of anything like intimacy with
Washington, who was himself hardly the sort of South
erner to thaw the ice of a New Englander's reserve.
But Ellsworth did have Washington's friendship and
esteem. They had known each other for ten years at
least, probably for twenty, and Washington had had
good opportunities to judge the other for himself. At
least once, he had been Ellsworth's guest at Windsor.
October 21, 1789, being then on his tour of New Eng
land, he wrote in his diary: " By promise was to have
breakfasted at Mr. Ellsworth's at Windsor on the way
to Springfield, but the morning proving very wet and
the rain not ceasing until ten o'clock, I did not set out 1
till half after that hour. I called however on Mr. E.
and stayed there near an hour."2 That, we may be

1 From Hartford.

2 The Diary of George Washington from 1789 to 1791 (ed. by Benson
J. Lossing), 27.

THE SENATE 233

sure, was quite the greatest hour in the history of
Windsor and of the Ellsworth household. Had the
New England tour served no political object whatso
ever, many an old New England house would still be
richer by a priceless association. The homes Wash
ington visited were thenceforth forever distinguished,
and with a distinction not less than that the visitations
of a monarch confer upon the seats of his subjects.
It were no mean superstition to hold that a child
born in a house across whose threshold that great
figure had once passed could never be false to his
country or heedless of a call of patriotism.

Tradition has generously lengthened out, and em
bellished with incidents of an old-fashioned, patriotic
flavor, the single hour of Washington at Elmwood.
There is the story of the errand of one of Ellsworth's
young sons to the Wadsworth Mansion at Hartford,
to present the invitation; of his trepidation at the
thought of facing the greatest man in the world ; and
of his surprise, relief, and disappointment to find only
a quiet old gentleman, dressed very much like his
father. Hardly reconcilable with this is the story of an
aide-de-camp of Washington who came to Elmwood
to announce the visit, mistook Mistress Ellsworth, who
answered his knock herself, for a servant, and never
recognized her when he came again and saw her
dressed for company.1 And there is the story of
Washington's taking on his knees the youngest twain
of the Ellsworth children and singing them the ancient

1 Both stories seem inconsistent with an entry in Washington's diary
for the day before the visit. " Tuesday, 2oth. After breakfast, accom
panied by Col°. Wadsworth, Mr. Ellsworth and Col°. Jesse Root, I
viewed the woollen manufactory at this place (Hartford), which seems to
be going on with spirit." Diary of George Washington.

234 OLIVER ELLSWORTH

ballad of the Derby Ram. If Ellsworth's hard-work
ing statesmanship had been compensated with more
such pleasant interludes, his biographer would will
ingly turn antiquary to learn the details of them.

There is Washington's own hand to prove that he
felt a real affection for this strong New England prop
of his administration. The day before he left the
seat of government to go into his final retirement, he

wrote :

"PHILADELPHIA, 8th Mar. 1797.

" DEAR SIR : Before I leave this City, which will be
within less than twenty-four hours, permit me, in
acknowledging the receipt of your kind and affec
tionate note of the 6th, to offer you the thanks of a
grateful heart for the sentiments you have expressed
in my favour, and for those attentions with which you
have always honored me. In return, I pray you to
accept all my good wishes for the perfect restoration of
your health, and for all the happiness this life can afford.

" As your official duty will necessarily call you to
the Southward, I will take the liberty of adding, that
it will always give me pleasure to see you at Mount
Vernon as you pass and repass. With unfeigned
esteem and regard in whc Mrs. Washington joins me
" I am always — and affectionately yours,

" G°. WASHINGTON.

"OLivR ELLSWORTH, ESQR., Chief Justice"

But the intervals of work in Ellsworth's life were
not all filled with such intercourse or such exchanges.
In this letter to his wife, one sees another side of his
high public employments : 1

1 Dated Philadelphia, Feb. 26, 1796. Original in the possession of Mrs.
Henry E. Taintor of Hartford.

THE SENATE 235

" As to amusements this winter, the city is full
of them, but I participate in none. My pleasure
consists in doing the business of the day, and, when
I sit alone in my chamber in the evening, in think
ing of my family, to all of whom I always say
something.

" Olle I suppose is gone back to College, and Martin
I suppose is getting ready to go as fast as he can.
Daddy wants to see all his little children very much,
and he wishes mamma to let them have one plate of
plums now every week until he comes home, and pay
for them with Daddy's money."

Something like commiseration mingles with our re
spect for this New England nature, for this tireless
public servant, pursuing so steadfastly, and with so
little relief, his hard, masculine tasks. Not, however,
that Ellsworth was of an unsocial disposition, or
habitually denied himself social recreations, or that
Philadelphia lacked good society. It was a lively and
pleasant little capital ; the men from the frontiers and
the backwoods districts probably thought it a veri
table Paris. But Ellsworth could never enjoy social
or other pleasures until he had mastered whatever
problem he had on his mind. His standard of thor
oughness was unusual, his absorption in his work
phenomenal. In his brief intervals of leisure he found
children the best resource for amusement and refresh
ment — certainly a happy preference. His oldest
daughter, " Nabby," accompanied him to New York
for the winter session of 1 790, and perhaps also to the
first session in Philadelphia ; but sometimes he was
hard put to it for the companionship he liked best.
One session, he wrote to his wife :

236 OLIVER ELLSWORTH

" The family in which I live have no white children.
But I often amuse myself with a colored one about the
size of our little daughter, who peeks into my door
every now and then, with a long story, which I can
not more than half understand.1 Our two sons I
sometimes fancy that I pick out among the little
boys playing at marbles in the street. Our eldest
daughter is, I trust, alternately employed between
her book and her wheel. You must teach her what
is useful, the world will teach her enough of what is
not. The nameless little one I am hardly enough
acquainted with to have much idea of; yet I think
she occupies a corner of my heart. . . . " 2 Of
another child, which died in infancy, he also speaks.
" He who bore your countenance and my name —
the world has never been the same to me since his
death." 8

His personal and family relations were all appar
ently of this American quality — a trifle stiff and
formal, for the age was formal, but simple, genuine,
sincere. He writes from Philadelphia to " Nabby " :

" Miss Wadsworth enjoys high health, which she
takes much pains to preserve, walking frequently
three or four miles before breakfast. The rest of
the time she spends much as you spend yours — in
seeing and being seen. She has some advantages —
a richer and more fashionable father, and perhaps a

1 " On one of his visits at New Haven the Judge (Ellsworth) met a
little colored girl and patted it on its head and said, « Just as happy as any
child in the neighborhood now, but by and bye' — then shook his head
and passed on." From a letter of Samuel Hoar, son-in-law of Roger Sher
man, quoted in Jackson Ms.

2 Quoted, without date, in "National Portrait Gallery" (1839), Vol. IV>
sketch of Ellsworth. 8 Ibid.

THE SENATE 237

fonder one, tho' that is more than I admit, notwith
standing she gets a kiss or two from him every time
he comes in and goes out."

He lived at a time when people were given to
writing letters, and extremely long letters at that.
Postal charges were too high for sending mere notes
by mail. Ellsworth's friend, Cabot, for instance, was in
cessantly favoring his correspondents with reams of po
litical comment and prophecy and lamentations. Fisher
Ames wrote even more letters than Cabot, though he
cut them shorter, and made them much more read
able. But not only were Ellsworth's political epistles
marvels of condensation ; if in private correspondence
brevity were a model quality, his letters to his friends
and his family would be models also. The palm be
longs to a missive that came to his wife at Windsor
when she had grown anxious over a silence longer
than was usual even with him. She adjusted her
spectacles, opened the packet, and read :
" One week and then

"OLIVER ELLSWORTH." 2

1 Copied by Mr. W. Irving Vinal from original in possession of Mrs.
Waldo Hutchins.

2 Jackson Ms.

CHAPTER VI

THE SUPREME COURT

ELLSWORTH'S commission as chief justice bore date
March 4, 1 796. Four days later he took his seat on
the bench of the Supreme Court, and within a month,
the court adjourning, he sailed for Savannah to go
upon the southern circuit. He held his commission
until November, iSoo;1 but his actual service lasted
only until the autumn of 1799 — about three years
and a half.

The appointment came as a surprise to many of his
contemporaries, and perhaps also to him. In the sum
mer of 1795, when Washington appointed Rutledge
to succeed Jay, Congress was not in session ; but
the leading Federalists soon showed that they were
highly vexed at the President's choice. Rutledge
himself had been accounted a Federalist, and they
could not condone his onslaught on the Jay treaty.
Ellsworth's reference to the matter in his letter to
Wolcott 2 was exceedingly mild in comparison with
most of the Federalist comment. Some felt that
Washington, when he read Rutledge 's speech on the
treaty, ought to have withheld the promised commis
sion. The President rose easily above that low level
of partisanship, and Rutledge received his commission
and presided over the Supreme Court at the August
term. But the Senate, when it met in December,

1 Carson's "History of the Supreme Court," 1, 191. 2 Ante, p. 220.

238

THE SUPREME COURT 239

would not ignore partisan considerations. It refused
to confirm the nomination, and solely for political rea
sons. However, there very soon came to light a quite
sufficient reason why Rutledge should not have the
place. Letters from South Carolina brought the
painful news that his mind had failed him. He was,
in fact, little better than a maniac. Once, a year or
two later, the cloud seemed for a little while to have
lifted ; 1 but the great Southern patriot was never again
fit for any public service.

Before Washington decided to take Ellsworth from
the Senate, a number of other names were canvassed.
Among the men considered for the place were at least
three of the associate justices, and one of them was
actually appointed. One day, at a state dinner, as
the guests were being seated, Washington bowed to
Mr. Justice Gushing of Massachusetts, and said, " The
Chief Justice of the United States will take the seat
at my right " ; and the nomination of Cushing, sent
the next day to the Senate, was readily confirmed.
But the modest justice declined the promotion.2 His
associate, Iredell, regretted his refusal, feeling that it
would now be necessary to pass over Justices Wilson
and Chase in order to obtain a proper character.8 On
March 4, Iredell wrote to his wife, " I have this mo
ment read in the newspaper, that Mr. Ellsworth is
nominated our Chief Justice, in consequence of which
I think it not unlikely that Wilson will resign." Ire-

1 Griffith J. McRee, "Life and Correspondence of James Iredell," II,
527-528.

2 Perhaps he felt that his health forbade him to accept. Justice Iredell
had written to his wife two years before that Cushing had a cancer on his
lip. Ibid., 441.

8 Iredell to Johnston, ibid.) 462.

240 OLIVER ELLSWORTH

dell himself had been mentioned, but a few weeks
later he wrote: "Whatever other chance I might
have had, there could have been no propriety in pass
ing by Judge Wilson to come at me. The gentleman
appointed I believe will fill the office extremely well.
He is a man of an excellent understanding, and a
man of business."1 Here, perhaps, is a hint of the
true reason why the President, to the disappointment
of Adams and other Federalists, turned to the Senate
for the new Chief Justice. To Wilson, notwithstand
ing his acknowledged eminence for learning and abil
ity, there were, probably, insuperable objections. He
was already involved in those speculations which in
a few months ruined him completely. In 1798, a
bankrupt, and in imminent danger of the debtor's
prison, he took refuge at Iredell's home in North
Carolina, and there, utterly broken by his shame and
his misfortunes, he died.

Of Ellsworth's associates on the bench, Wilson was
probably, on the whole, the most highly endowed ; but
they were all men of force. Cushing, who had been
Chief Justice of Massachusetts, who in fact had spent
nearly all his life in different judicial stations, was
entirely worthy of the honor Washington had offered
him. James Iredell, English by birth, Irish by de
scent, had done good service in winning over North
Carolina to the Union. He was an excellent lawyer,
and a man of fine and amiable character. His pub
lished letters, which are the chief source of our knowl
edge of what it meant to be a member of the Supreme
Court in its early days, strongly commend him to one's
liking and respect. The fourth justice in the order

1 " Life and Correspondence of James Iredell," II, 463, 465.

THE SUPREME COURT 241

of seniority was William Paterson, Ellsworth's old
associate of the Cliosophic Society and the Constitu
tional Convention. The fifth was Samuel Chase of
Maryland, able and eloquent, but self-assertive and
often overbearing. Only two changes occurred while
Ellsworth presided over the court. Bushrod Wash
ington succeeded Wilson; and Iredell died in Octo
ber, 1799. But before Iredell's successor appeared
on the bench Ellsworth was elsewhere and otherwise
employed.

There is an impression — chiefly due, perhaps, to
Jay's resignation, and to his discontented utterances
about the judiciary — that at this early period it was
not thought a very high distinction to be a member of
the Supreme Court, or even to be the head of it. It
is true that certain eminent public men did prefer the
highest places in the state governments to any but the
highest in the federal establishment. It is true, also,
that in all the earlier appointments of chief justices
the office sought the man, and at least twice failed to
win him. But Cushing, who declined it in 1796,
remained an associate justice; and Jay, who in 1800
refused a reappointment, seems to have stood almost
alone in his opinion that the judiciary needed a com
plete reorganization to give it dignity and strength.
Rutledge, who accepted in 1795, was one of the very
foremost characters in the whole country ; and we have
seen what a career in the Senate Ellsworth abandoned
in order to take the place.

Yet he found it in many ways less attractive than
his seat in the Senate. His new duties left him even
less time to devote to his home and his family than
he had hitherto enjoyed. Iredell's letters are full of

242 OLIVER ELLSWORTH

regrets at the long separation from his wife and chil
dren, and of complaints — though never bitter or queru
lous — at the length of the circuits, the badness of the
roads, and the other hardships of the life. There are
indications that even Ellsworth's strong constitution
was by this time showing some effects of his long and
intense application to public business. At least twice
he was prevented by illness from attending the Supreme
Court at Philadelphia.1 But there is, as usual, noth
ing from his pen that sounds like a complaint ; indeed,
there is hardly a word of any kind of comment on his
new duties and experiences.2 His starting so promptly
on the southern circuit was entirely characteristic. He
also at once set himself to repair any deficiencies in
legal knowledge under which, from his long absorp
tion in other subjects, he might be laboring. As Con
necticut was still an agricultural state, his experience
there as judge and as practitioner had given him no
great familiarity with commercial law, and he had
probably never studied international law at all. He
accordingly undertook a severe course of study and
reading.

The day John Adams was inaugurated President,
he wrote to his wife, " Chief Justice Ellsworth ad
ministered the oath and with great energy." Con
temporary sources yield us few similar glimpses of
Ellsworth as Chief Justice. But his tall figure, his
strong features, his clear, penetrating blue eyes,
his resonant voice, and his simple manners made him

1 "Life and Correspondence of James Iredell," III, 492, 519.

2 I have found but one letter written by the Chief Justice to an associate
on the bench — a brief and unimportant note to Iredell, from Raleigh.
Ibid., 576.

THE SUPREME COURT 243

an impressive figure of a republican judge. By all
accounts, he presided over the Supreme Court with
perfect self-possession, and he knew how to assert
the dignity of his office if any one, even one of his
brethren of the bench, offended against it. Mr.
Justice Chase, it appears, was sometimes wanting
in the proper respect for his associates, and given
to brow-beating counsel ; and on one occasion Ells
worth, deeply provoked, took a severe method to show
him his place. The incident occurred when they two
were sitting together in a circuit court at Philadelphia.
Jared Ingersoll of Philadelphia, who was of counsel in
the cause on trial, had hardly entered on his argument
when Judge Chase impatiently interrupted and told
him that the point he was engaged on was well
settled and he need not argue it. Vexed and discon
certed, Ingersoll proceeded to a second head of his
contention, only to be again interrupted and told that
he was wasting time. Mastering his anger, he began
a third argument ; and a third time Chase interrupted
him. The indignant attorney folded up his notes and
took his seat. Ellsworth took out his snuff-box,
tapped it with his finger, and with plenty of emphasis
said to Mr. Ingersoll : " The Court has expressed no
opinion, sir, upon these points, and when it does you
will hear it from the proper organ of the court. You
will proceed, Sir, and I pledge you my word you shall
not be interrupted again." And he turned upon his
overbearing associate a look that made him fairly
quail in his seat.1 Yet when no sense of duty
prompted the new Chief Justice to self-assertion he

1 Wood, on authority of Uriah Tracy, senator from Connecticut, who
witnessed the incident. Flanders, 187-188.

244 OLIVER ELLSWORTH

could be as entirely democratic and unpretentious as
his successor. On the passage to Savannah, the Due
de Liancourt, who was travelling by the same ship,
marvelled much that the other passengers showed
so little deference to so great an official, and the
chances are that Ellsworth really preferred to be
treated with no particular consideration.1 One other
glimpse of him displays not merely his democratic
spirit but the Yankee readiness and fertility in prac
tical contrivances which he had got from his New
England life and training. Somewhere on the south
ern circuit, a coach breaks down, and one of the pas
sengers, a tall and energetic man, promptly offers his
services and in a little while succeeds in mending it.
An observer, much impressed with his mechanical
skill, inquires, " Who is that gentleman who under
stands everything, and is eloquent about a coach
wheel?" The reply is, "The Chief Justice of the
United States."2

The greater part of the duties of the justices, as
well, no doubt, as the harder part, — certainly, the
least agreeable part, — were those they rendered in
the circuit courts. At this period, neither of the two
sessions of the Supreme Court, which were held in
February and in August, lasted, as a rule, more than
two or three weeks. But to reach and then to travel
the southern district was a matter of months. Ells
worth uncomplainingly took his full share of these
duties, and as he began with the southern circuit he
had to travel it again before he left the bench. Some
times, it is said, he took with him on his longer jour-

1 Liancourt's "Travels," I, 553.

2 " National Portrait Gallery," IV, article on Ellsworth.

THE SUPREME COURT 245

neys some young boy of his neighborhood, who not
infrequently rode behind him on horseback. From
his training and temper, he found the duties of a nisi
prius judge particularly congenial, and discharged them
with distinguished success. It appears, too, from the
letters of Jay and of Iredell, that these expeditions,
trying as in many ways they were, offered some com
pensations. Perhaps no other officials of the new gov
ernment had so good an opportunity as the justices to
see the whole country and to become acquainted with
the leading characters of all the sections. Wherever
they went, the people treated them with much respect,
and many hospitalities were offered them. The open
ing of a circuit court was always something of an occa
sion. The judge's opening charge to the grand jury
was a formal address, written with care, and usually in
the nature of a philosophical discourse on American
institutions in general, and particularly on the place of
the courts in the civil order. Frequently, it took a
political turn, and it had sometimes a distinctly partisan
character. All the early judges of the highest court
seem to have been Federalists, and they naturally
dilated on the duty of loyalty to the general govern
ment and the Constitution's virtues and beneficence.
Ellsworth followed the custom, and his charges won
much praise for their uncommon clearness and force.
Several have been preserved, and among them the first,
given at Savannah in April, 1796. The principal
paragraph may serve to show that if Ellsworth hated
and feared the pen it was not because he could not
give to weighty thought a stately utterance. It reads i1

1 Wood and Jackson Mss. All but a few sentences at the opening and
the close are given here.

246 OLIVER ELLSWORTH

" Your duty may be deemed unpleasant, but it is
too important not to be faithfully performed. To pro
vide in the organization that reason shall prescribe
laws, is of little avail, if passions are left to control
them. Institutions without respect, laws violated
with impunity, are, to a Republic, the symptoms and
the seed of death. No transgression is too small, no
transgressor too great, for animadversion. Happily
for our laws, they are not written in blood, that we
should blush to read them, or hesitate to execute them.
They breathe the spirit of a parent, and expect the
benefits of correction, not from severity but from
certainty. Reformation is never lost sight of, till
depravity becomes, or is presumed to be, incorrigible.
Imposed as restraints here are, not by the jealousy of
usurpation, nor the capriciousness of insensibility, but
as aids to virtue, and guards to rights, they have a high
claim to be rendered efficient. Nor is this claim more
heightened by the purity of their source, and the mild
ness of their genius, than by the magnitude of the
interests they embrace. The national laws are the
national ligatures and vehicles of life. Though they
pervade a country as diversified in its habits as it is
vast in extent, yet they give to the whole harmony of
interest and unity of design. They are the means by
which it pleases Heaven to make, of weak and dis
cordant parts, one great people, and to bestow upon
them unexampled prosperity, and so long as America
shall continue to have one will, organically expressed
and enforced, must she continue to rise in opulence
and respect. Let the man or combination of men
who, from whatever motive, oppose partial to general
will, and would disjoint their country to the sport of

THE SUPREME COURT 247

fortune, feel their impotence and error. Admonished
by the fate of Republics which have gone before us,
we should profit by their mistakes. Impetuosity in
legislation, and instability in execution, are the rocks
on which they perished. Against the former, indeed,
we hold a security, which they were ignorant of, by
a representative instead of the aggregate, and by a
distribution of the legislative power to maturing and
balancing bodies, instead of the subjection of it to
momentary impulse, and the predominance of faction.
Yet from the danger of inexecution we are not exempt.
Strength of virtue is not alone sufficient, there must
be strength of arm, or the experiment is hopeless.
Numerous are the vices, and as obstinate the preju
dices, and as daring as restless is the ambition,
which perpetualjy hazard the national peace, and they
certainly require that to the authority vested in the
executive department, there be added liberal confi
dence, and the increasing cooperation of all good
citizens for its support. Let there be vigilance, con
stant diligence, and fidelity for the execution of laws
— of laws made by all and having for their object the
good of all. So let us rear an empire sacred to the
rights of man and commend a government of reason
to the nations of the earth."

While Ellsworth presided over the Supreme Court,
no great number of cases came before it. His own
decisions are so few, and so extraordinarily brief, that
they fill less space in the reports than many a single
more elaborate opinion. But several of them deal
with questions which were at once new and fundamen
tal. Marshall certainly deserves the distinction he
enjoys as the foremost judicial exponent of the Consti-

248 OLIVER ELLSWORTH

tution and as the great constructive statesman who
completed on the bench the work of nation-building
begun on the Revolutionary battle-fields and continued
in the great convention and the early Congresses.
But when Marshall came to the bench, Jay and Ells
worth and their associates had already done much
that was of a piece with his achievement. It is
true that they had not yet exercised the utmost
authority of the judiciary; they had not yet pro
nounced any law of Congress to be null and void.
But the very day Ellsworth took his seat in the
Supreme Court, a case was on trial which could
hardly have been tried at all without a clear assump
tion by the court of the right to make such a decision.
It was the case of Hylton vs. the United States,1 in
volving the constitutionality of a carriage tax imposed
by an act of 1794, and Alexander Hamilton appeared
before the court in favor of sustaining the law. As
Ellsworth had not heard all the arguments, he took no
part in the decision. In the case of Ware vs. Hylton
also, which was tried within a day or two, he delivered
no opinion ; but apparently he did concur in the deci
sion, and it was a decision to set aside a perfectly
plain provision of a state law.2

This famous and hard-fought cause, appealed from
a circuit court at Richmond, turned on the effect of a
clause in the treaty of peace with England which pro
vided that British creditors should " meet with no law
ful impediment in the collection of their just dues from
their American debtors." During the war, Virginia
had sequestered all debts due from her citizens to
Britons, and in the lower court a great array of counsel,

1 3 Dallas, 171. 2 Ibid., 199 ; McRee's " Iredell," II, 395.

THE SUPREME COURT 249

headed by the venerable Patrick Henry, had argued for
the validity of the law, the treaty to the contrary not
withstanding. John Marshall, who had been one of
Henry's fellow-counsel in the trial at Richmond, made
now before the Supreme Court an argument that con
vinced every one of his extraordinary powers. But
fortunately he failed to convince the court that the
treaty did not abrogate the law. Iredell, in his elabo
rate dissenting opinion, sustained Virginia's position ;
but Chase, Paterson, Wilson, and Cushing, all in long
written opinions, took the other side. If Ellsworth
did not actually pass on the case, he certainly agreed
with the majority, for he had soon to pass on another
case involving substantially the same question, and
he then firmly sustained the principle established in
Ware vs. Hylton. Sitting in a circuit court in North
Carolina, he delivered an opinion, perhaps the most
elaborate of his that is now preserved, in which he fully
discussed the bearing of the treaty on the rights of
British creditors. The case on trial differed from
Ware vs. Hylton only in the circumstance that North
Carolina, instead of merely sequestering, had actually
confiscated debts due to Britons. In that part of his
opinion which dealt with the conflicting provisions of
the treaty and the law, the Chief Justice reasoned in
this broad fashion :

" As to the opinion that a treaty does not annul a
statute, so far as there is an interference, it is unsound.
A statute is a declaration of the public will, and of high
authority ; but it is controllable by the public will sub
sequently declared ; hence the maxim, that, when two
statutes are opposed to each other, the latter abrogates
the former. Nor is it material, as to the effect of the

250 OLIVER ELLSWORTH

public will, what organ it is declared by, provided it be
an organ constitutionally authorized to make the decla
ration. A treaty, when it is in fact made, is, with re
gard to each nation that is a party to it, a national
act ; an expression of the national will, as much as a
statute can be : and does, therefore, of necessity annul
any prior statute, so far as there is an interference.
The supposition that the public can have two wills,
at the same time, repugnant to each other — one ex
pressed by a statute and another by a treaty — is
absurd."1

None of his learned and more experienced associates
had put quite so clearly the truth that in sustaining
the supreme law of the land against other laws of less
authority the courts of the United States were doing,
after all, only what all courts everywhere must do : that
is to say, they were merely deciding and declaring what
was the law. The British-debts cases were an impor
tant category of the business before the courts, as they
were also an important factor in politics, but by their
final effect in making plain the supremacy of the Con-
^stitution and of the national authority they no doubt
amply repaid all the time and trouble they had cost.

It seems best, instead of following any chronological
order, to group in two or three categories the other
cases that Ellsworth helped to decide. One category —
those cases, namely, that turned on purely legal issues,
and which appeal, therefore, almost solely to a profes
sional interest — we may quickly dismiss. Brown vs.
Barry,2 in which the arguments of counsel dealt mainly
with a fine question of special pleading, and Clark vs.

1 Flanders, 197-203, quotes the whole opinion "from a manuscript."

2 3 Dallas, 365.

THE SUPREME COURT 251

Russell,1 in which the issue was again abstruse and
technical, are good examples of the class. It is worthy
of remark, however, that in dealing with such cases
Ellsworth showed the same disposition Marshall after
ward displayed; his opinions, brief as always, strove
to base themselves on reasoning that was broad and
practical, to divest the controversy of its merely tech
nical quality and set it in the plain light of justice
and common sense. This characteristic of his judicial
method appears very strikingly in the case of Irvine vs.
Sim's Lessee,2 in which counsel had discussed at great
length the effect on certain Pennsylvania land titles of
a treaty or agreement between that state and Virginia.
In a single page the Chief Justice stated the facts of
the case, and summarized broadly the reasons for the
court's decision. Iredell, in a concurrent opinion,
required nine pages to give his reasons.

Of those decisions which had both a permanent
force or significance and an interest other than profes
sional, most were jurisdictional. The courts had not
yet fully defined their place in the federal system or
fully asserted their entire authority. This, in fact,
they could only accomplish gradually, as from time to
time specific controversies led to an assertion or a
disputation of their jurisdiction. Neither had they
thoroughly adjusted their relations among themselves.

In three leading cases, Ellsworth and his associates
of the Supreme Court considered its relations with the
Circuit and District courts, and laid down rules of
a far-reaching potency concerning writs of error and
appeals.

1 3 Dallas, 415 ; McRee's « Iredell," II, 549.

2 3 Dallas, 425 ; McRee's "Iredell," II, 543-544.

252 OLIVER ELLSWORTH

In Wiscart vs. Dauchy,1 an action in equity brought
up by writ of appeal from a circuit court, the main
question was, Could the Supreme Court go behind the
record of facts sent up by the Circuit Court, examine
for itself the testimony, — which in this particular in
stance had also been sent up, — and perhaps readjudi-
cate the facts ? Ellsworth, speaking for the majority,
disposed of the issue in two short, oral paragraphs :

" If causes of equity or admiralty jurisdiction are
removed hither, accompanied with a statement of
facts, but without the evidence, it is well, and the
statement is conclusive as to all the facts which it
contains. This is unanimously the opinion of the
court.

" If such causes are removed with a statement of
the facts, and also with the evidence, still the state
ment is conclusive, as to all the facts contained in it.
This is the opinion of the court, but not unanimously."

But Wilson, who dissented from the second ruling,
argued first that it was not a correct interpretation of
the judiciary act, and then that the Constitution of its
own force granted to the Supreme Court appellate ju
risdiction, always including the right to ree'xamine evi
dence, in all maritime and admiralty causes. Ellsworth,
in reply, denied that an appeal could be sustained with
out reference to a rule provided by Congress, and then
went on to analyze closely the pertinent provisions of
the law he had written, and to distinguish, in language
that has many times been quoted, writs of error from
appeals. " An appeal," he said, " is a process of civil
law origin, and removes a cause entirely, subjecting the
facts as well as the law to review and retrial ; but a writ

1 3 Dallas, 240.

THE SUPREME COURT 253

of error is a process of common law origin, and it re
moves nothing for reexamination but the law." To
Wilson's practical objections to the ruling, he opposed
other considerations quite as practical ; but he also sen-
tentiously observed that " it is of more importance, for
a judicial determination, to ascertain what the law is,
than to speculate what it ought to be."

In Jennings vs. the Brig Perseverance,1 an admi
ralty case, in which the record sent up from the lower
court contained the evidence, but left out the statement
of fact, it was held, nevertheless, that the principle
of Wiscart vs. Dauchy applied. " If," said Paterson,
" there is no statement of facts, the consequence seems
naturally to follow, that there can be no error." The
rule stood until 1803, when Congress, by an amend
ment to the judiciary act, provided for appeals in
equity and admiralty causes.

In Wilson vs. Daniel, 2 the court with equal clear
ness disposed of another question concerning its ap
pellate jurisdiction. In a civil action in a circuit court
for a very large sum of money, the jury had found for
the plaintiff, but only in the sum of eighteen hundred
dollars. The case being brought up on a writ of error,
it was argued that the Supreme Court had no jurisdic
tion, since a civil action could not be removed from a
circuit court unless the sum in dispute exceeded two
thousand dollars. When the case was first argued,
Ellsworth was absent ; the justices divided, and no de
cision was rendered. But at a second hearing Ells
worth, speaking for the majority, held that to ascertain
the matter in dispute it was necessary to go to the
beginning of the action. He pointed out that if the

1 3 Dallas, 336. 2 Ibid., 401 ; McRee's « Iredell," 532-533.

254 OLIVER ELLSWORTH

first judgment should be the criterion, and this for any
given case should be for less than two thousand dol
lars, the defendant would have no relief, but the plain
tiff would have a right to a removal. From this ruling,
based on common law usage, Iredell and Wilson dis
sented ; and Iredell's opinion came in time to be ac
cepted as the right construction of the law.

In Turner vs. the President, Directors, and Com
pany of the Bank of North America,1 Ellsworth, in the
last opinion he ever rendered for the Supreme Court,
dealt with still another question of jurisdiction. The
decision turned on the residence of the parties to the
action. Unless they were of different states, the case
did not come within any provision of the Constitution
or the law ; and on this point the record was defective.
One of the parties was described merely as " using trade
or merchandise in partnership " at certain places. The
court accordingly held that there was error, and on
this ground reversed the judgment of the Circuit Court,
which it would otherwise have affirmed, and thereby
established the rule that in all such cases the record
must state clearly the evidence of all the parties. "It
is exceedingly to be regretted," Ellsworth remarked,
" that exceptions which might be taken in abatement,
and often cured in a moment, should be reserved to
the last stage of a suit, to destroy its fruits."

In view of the origin of the federal judiciary, it is
interesting to find that the courts were at this time
frequently considering, along with these questions of
jurisdiction inter se, questions of the extent of their
maritime authority. With maritime cases, in fact, the
new Chief Justice was occupied oftener than with any

1 4 Dallas, 8.

THE SUPREME COURT 255

other kind. France and England were at war, pri
vateers of both nations were scouring the seas, and
neither showed much respect for America's rights as
a neutral. During Ellsworth's first term, a case was
argued that displays curiously enough the compli
cated character of the questions to which this inter
national situation was giving rise.1 The Mary Ford,
an English ship, had been captured by the French,
who relieved her of her crew and cargo, attempted to
destroy her, and left her a derelict. In this state an
American vessel found her, and she was brought into
port at Boston and there libelled for salvage. But the
British consul intervened for her original owners, and
the French consul for her captors. The District Court
awarded to the original owners two-thirds of the pro
ceeds of the sale, and to the salvors the other third.
The captors appealed, and the Circuit Court awarded
the larger share to them. From this decree the
original owners appealed, and the jurisdiction of the
District Court was questioned. The Supreme Court
now affirmed the District Court's original jurisdiction,
but sustained the Circuit Court's decree.

Before Ellsworth came to the bench, the decision
in the case of Glass vs. the Sloop Betsy2 had estab
lished the jurisdiction of our admiralty courts in all
cases of prizes and captures on the high seas. The
case of La Vengeance? argued on a writ of error at
his second term, brought up the question of seizures
within a port and also the novel question whether the
admiralty court's jurisdiction extended over navigable
waters within a county. La Vengeance, a French
privateer, had been libelled for exporting arms from

1 McDonough vs. Delancey, 3 Dallas, 188. 2 Ibid., 6. 8 Ibid., 297.

256 OLIVER ELLSWORTH

Sandy Hook, N.J., to a foreign country, contrary to
the neutrality law of 1794; and it was contended
that the cause, to be cognizable by federal tribunals,
must have arisen wholly on the high seas. This
objection, however, the Chief Justice brushed aside,
holding broadly that " transportation is entirely a
water transaction " ; and the court sustained the for
feiture by the lower court. But in Moodie vs. the
Ship Phcebe Ann,1 argued at the same term, Ellsworth
and his fellows — all, probably, anti-French in their
sympathies — showed that they would follow the law,
even when it worked favorably to France. A French
privateer having taken a British merchantman and
sent her into port at Charleston, the British con
sul, charging that the privateer had been illegally
fitted out in the United States, demanded restitution
of the prize. But the evidence showed that, though
the privateer had entered Charleston for repairs, she
had not there received any augmentation of her force ;
and the court held that this did not constitute an
illegal fitting out. Counsel had argued against the
policy of suffering foreign privateers to equip in
American ports, and the Chief Justice replied : " Sug
gestions of policy and conveniency cannot be consid
ered in the judicial determination of a question of
right ; the treaty with France, whatever that is, must
have its effect."

The criminal causes Ellsworth had to pass on
may be treated together as a third category. Most
of them came before him in circuit courts, and several,
having an obvious bearing on the politics of the time,
excited much partisan feeling. Mr. Justice Chase's

1 3 Dallas, 319.

THE SUPREME COURT 257

conduct of similar trials so enraged the Republicans
that a few years later, when they had come into
power, they attempted to remove him by impeach
ment. Ellsworth's course was never so severely cen
sured. It did not inflame his opponents into such
a heat of anger that their criticism ever turned into
attacks upon his personal integrity. On the contrary,
scarcely another public character of the period stood
so well the ordeal of politically hostile criticism. Yet
his handling of legal questions that had a political side
was by no means timid, nor was he himself lukewarm
in his party loyalty. In what is probably the best
known of all his judicial utterances, he took a very
decided stand on a question over which opinions
were then much divided, and which has caused heated
controversies at later periods of our history.

The case itself was of a nature to stir up party sym
pathies and antagonisms. One Isaac Williams had
been indicted for accepting a commission in the French
navy, contrary to the treaty of amity and commerce
between Great Britain and the United States. He
was tried in a circuit court at Hartford, in which Ells
worth sat with his friend Law, who was now judge of
the Hartford district. The defence offered to prove
that Williams was a naturalized citizen of France, and
Law thought that the evidence of this fact ought to
go to the jury. But Ellsworth ruled it out, and he
based his ruling on the common law doctrine of per
petual allegiance, holding the common law to be part
of the law of the land.

Whatever may be thought of the justice, the wis
dom, or the legal correctness of this stand, the bold
ness of it cannot be questioned. The federal courts,

258 OLIVER ELLSWORTH

it is true, had already asserted a common law jurisdic
tion in criminal cases. Jay had asserted it in a much
discussed trial.1 On this point, Ellsworth merely sus
tained a position clearly assumed by his predecessor.
But in the very case in which the first Chief Justice
had first taken this position, the jury had, nevertheless,
acquitted a defendant charged with the same offence
Williams was now charged with, and without Will-
iams's defence of naturalization ; and the verdict had
been manifestly popular. As to the specific common
law maxim, that "no man can throw off his allegiance,"
the Supreme Court had once, in Rutledge's day, avoided
a pronouncement, in a case which certainly permitted
the court to consider whether the rule had force in the
United States. Ellsworth met the issue without the
least attempt at quibbling, or the least sign of hesita
tion. He told the jury, in substance, that no American
had the right to become a citizen of any other country.
But though he drew the rule from the common law,
he justified it by a theory quite unknown to the com
mon law. For the common law doctrine of citizen
ship is clearly feudal, and had its origin in a distinctly
feudal usage ; and the American Chief Justice now
derived it from the social compact — a curious in
stance of an occurrence not uncommon in history:
one age taking the creed of another, but supporting
it with entirely fresh reasoning, based on different cus
toms. No member of the compact, Ellsworth argued,
can dissolve his connection with the community unless
he first obtain the community's consent. Counsel had
pointed out that our own government naturalized

1 The case of United States vs. Henfield, Van Santvoord, 55-56;
Wharton's State Trials, 49.

g
< 5-

SI

O! o

THE SUPREME COURT 259

foreigners, and asked if that were not a sign of con
sent ; but on this point he observed :

" Consent has been argued from the acts of our gov
ernment permitting the naturalization of foreigners.
When a foreigner presents himself here, and proves
himself to be of good moral character, well affected to
the Constitution and Government of the United States,
and a friend to the good order and happiness of civil
society; if he has resided here the time prescribed
by law, we grant him the privilege of a citizen. We
do not inquire what his relation is to his own coun
try; we have not the means of knowing, and the in
quiry would be indelicate ; we leave him to judge of
that. If he embarrasses himself by contracting con
tradictory obligations, the fault and the folly are his
own. But this implies no consent of the government,
that our own citizens should expatriate themselves.
Therefore it is my opinion that these facts which the
prisoner offers to prove in his defence are totally
irrelevant; they can have no operation in law; and
the jury ought not to be embarrassed or troubled with
them ; but by the constitution of the court the evi
dence must go to the jury." *

In accordance with this ruling, the jury convicted
Williams. But the doctrine of the ruling began at
once to be questioned. In a newspaper of the day,
a writer who signed himself Aristogiton, and who was
thought to be George Nicholas of Virginia, assailed
it with much turgid but sincere rhetoric. The Chief
Justice, he argued, " must either admit that according
to the principles of our naturalization laws our citizens
have a right to expatriate themselves, or that the

1 Van Santvoord, 267-272, — the best account of this trial ; Flanders,
194-197.

260 OLIVER ELLSWORTH

legislature of the United States, that body whose laws
(when they are constituted) he is bound to expound
and enforce, have been guilty of the most horrible of
all crimes, and have given a sufficient cause of war to
all the nations of the world." And already, a month
before the trial of Williams, Jefferson had attacked
the entire claim of the courts to a common law crim
inal jurisdiction as the most formidable of all the
Federalist pretensions — "the audacious, barefaced, and
sweeping pretension to a system of law for the United
States, without the adoption of their legislature, and
so infinitely beyond their power to adopt." 1 It was
not many years before the Supreme Court abandoned
the claim in the form and sense in which it was orig
inally advanced; but after more than a century the
chosen leader of Jefferson's own party, in the heat of
a campaign for the presidency, commits himself to this
so dangerous doctrine — and his successful opponent
denies it ! 2 This reversal of the attitude of the parties
throws a curious light upon the charge of partisanship
against Ellsworth, which one of his biographers prac
tically admits — and tries to extenuate by citing the
example of Lord Mansfield. It is a charge that can
not be either proved or disproved.

1 Writings, III, 425.

2 See the speeches and letters of Parker and Roosevelt, accepting their
respective nominations for the presidency in 1904. It seems curious that
in this renewal of an old controversy more use was not made of Ellsworth's
charge in the case of Williams, or of the contrary view set forth in United
States vs. Hudson (7 Cranch, 32) and still more clearly in Wheaton vs.
Peters (8 Peters, 591). The court's opinion in the latter case contains
this language — doubtless a correct statement of the law : " It is clear that
there can be no common law of the United States. . . . When, therefore,
a common law right is asserted, one must look to the state in which the
controversy originated."

THE SUPREME COURT 261

Whatever the truth of it, and whatever the correct
doctrine concerning the force of the common law in our
federal courts, the ruling of Ellsworth concerning per
petual allegiance, though it stood for many years, was
in the end completely overthrown. The considerations
that finally prevailed against it were rather practical than
legal. The government found itself again and again
convicted of the inconsistency which Aristogiton had
pointed out. It is remarkable, indeed, that this country
should so long have succeeded in maintaining a claim
upon its own citizens so utterly inconsistent with its
practice in freely naturalizing the citizens and subjects
of other countries. After countless controversies in
which it firmly asserted its right to protect naturalized
immigrants against the laws of their native lands, it
still hesitated to admit that any American could throw
off his allegiance. The courts were quite as slow as the
other departments of the government to abandon our
contention. In 1804, when the doctrine was again
discussed before the Supreme Court, Marshall, fol
lowing the example of Rutledge, avoided a decision.1
Gushing, in i8o8,2and Story, in i822,3 took the same
course. A few years later, Story did, however, recog
nize the general principle contained in the common
law maxim, though without attempting " to ascertain
its precise nature and limits." 4 It is not unnatural to
suppose that in this the courts were influenced by the
stand of the executive and the legislature. The final
abandonment of the whole contention did not come

1 In Murray vs. Charming Betsey, 2 Cranch, 64.

2 In Mcllvaine vs. Coxe's Lessees, 4 Cranch, 209.

3 In the case of the Santissima Trinidad, 7 Wheaton, 268.

4 In Inglis vs. Sailor's Snug Harbor, 3 Peters, 156, and in Shanks vs.
Dupont, ibid., 242.

262 OLIVER ELLSWORTH

until some years after the Civil War. In 1868, the
United States made with the North German Confed
eration the first of a series of treaties which now
regulate our practice in all cases of naturalization.
Two years later, England also, by a treaty with the
United States, and by changes in her laws, accepted
the modern doctrine.

This brief list comprises all the opinions of Chief
Justice Ellsworth that are likely to be of much interest
to a later generation. They are too few to warrant
us in any positive estimate of his judicial career, or
in assigning him a distinct rank and station among
American judges. To competent critics, however,
they have seemed to indicate, taken with the other
proofs of his ability and integrity and of his extraor
dinary industry, that if he had been left to devote
the rest of his life to the bench he would have built
himself a great monument of juristic achievement and
of fame as a judge. Beyond question, his intellect
and his temperament were both eminently judicial.
There is no reason to doubt that he found his duties
congenial, that they stimulated his ambition, that he
meant to give himself to his great office with the
same singleness of purpose he had displayed in all the
others he had held. At the time of Adams's election,
eleven electoral votes had been cast for Ellsworth for
President, but this hardly indicates that he himself
aspired to the presidency, or that those who voted for
him had the least expectation of ever seeing him at
the head of the nation. Below that highest station of
all there was none of greater dignity than the head
ship of the judiciary, offering, as it did, security of ten
ure and immunity from the countless hateful demands

THE SUPREME COURT 263

of politics which no President escapes. It is, therefore,
safe to say that Ellsworth, who had discharged so well
so many other public responsibilities, would not, had
he remained Chief Justice, have fallen short of his own
high standard of public service. It is also safe to say
that if he, rather than John Marshall, had had the
task of upholding the national theory against the
separative tendencies in many of the states, against
state-rights Congresses and Presidents and a dominant
state-rights party, he would have been as firm as
Marshall was. This is not saying that the republic
could well have spared Marshall. One may well count
it an extremely fortunate thing that a Southerner, and
not a New England man, gave to the national theory
its authoritative form and expression. Nor is it saying
that Ellsworth equalled Marshall either as a states
man or a jurist. In certain qualities of mind Marshall
doubtless surpassed every other American of his time ;
no one could possibly have filled his place. Yet the
two men had much in common. They held the same
general views on all the greater public questions.
In temper, in habits of life, in ideals, they were very
like. The likeness goes even farther. Few and
brief as are Ellsworth's judicial opinions, they have a
tone and style which strongly suggest the tone and
style of his successor. The literary form of Ellsworth's
is, however, additionally distinguished by a quite un
equalled inclination and ability to pack his meaning
into the fewest possible words. His extraordinary
terseness of phrase would of itself make his style note
worthy. But it had also the always interesting quality
that belongs to language stamped with a personality.
The impression it invariably leaves is of energy and

264 OLIVER ELLSWORTH

power, of intellectual integrity, of a grave intensity of
purpose. It reminds one of still another American
statesman's fashion with the pen. There are turns
that set one thinking, not of Marshall only, but of
Lincoln. We cannot, of course, regret that Ellsworth
left the bench. We know how the vacancy was filled ;
we know, too, what the work was that he left the
bench to do. But the judiciary was indeed fortunate
if it gained by such a loss.

The charge in the case of Williams — granting that
it reflected a conviction that was political as well as
legal — does not stand alone to indicate the interest
with which the Chief Justice continued to follow the
political movements in which as senator he had been
so deeply concerned. Party feeling under Adams had
not relaxed from the intensity it reached during the
second term of Washington ; and to the antagonism
of parties there was now added the still more bitter
rancor of faction. Many Federalists had from the first
regarded Hamilton, and not Adams, as their real
leader. Adams, with all his claims to the gratitude
of the country and the loyalty of his party, never had
inspired the enthusiasm or won the affection of his
following. He had some foibles that displease men
more than graver faults. He had neither the tact of
such a man as Madison, nor the compelling genius
of Hamilton, nor the subtler gift of Jefferson. Nega
tively, he was to blame for the division among the
Federalists. Positively, however, the men about him,
and particularly the members of his own cabinet, were
still more at fault. Apparently, every one of them pre
ferred Hamilton to him, and Hamilton they followed.
The letters of Wolcott and Timothy Pickering, Secre-

THE SUPREME COURT 265

tary of State, reveal an attitude toward the President
which makes one feel that it was hardly honorable for
them to remain members of his official family. For
this state of affairs Hamilton himself must also be held
partly responsible. Nothing else in his career does
him so little credit as his behavior toward Adams.
Nor can this judgment be averted either by pointing
out that he had done his utmost — resorting even to
questionable methods — to prevent the party from mak
ing Adams President, or by arguing that he was right
and Adams wrong in their differences over questions
of policy. The- history of this old factional division
does not inspire one with any profound admiration for
Adams ; but it leaves the reader's sympathy with him,
rather than writh his assailants and detractors.

Among these were several of Ellsworth's closest
friends, but there is nothing to show that he himself
ever had a part in their merely factional activities.
The charge of partisanship is the strongest that can
be brought against him ; and his was a decidedly mild
kind of partisanship for the times when New England
ministers preached at Jefferson as a sort of anti-Christ,
and when even that comparison would hardly have
conveyed a Southern Democrat's hostility to either
Hamilton or Adams. The worst that can be said of
Ellsworth is, that he defended the Sedition Act of 1 798,
and perhaps also the Alien Act, passed at the same
session, — two laws which, with a new law of naturaliza
tion, constituted the Federalist party's greatest blun
der and the chief cause of its overthrow. An undated
charge to a jury, which has been taken for evidence
that he approved this legislation,1 will hardly bear that

1 Flanders, 191, after Wood Ms.

266 OLIVER ELLSWORTH

construction. He does not in this utterance refer
especially to either of the acts, but merely insists upon
the government's right to the loyalty and affection of
all classes of its citizens, gravely deprecates the rest
less desire for novelty and change, and protests with
a fully justified severity against the foreign influences
which were operating to divorce the people from the
government. The charge contains, moreover, positive
evidence that the Alien and Sedition acts did not
suggest it; for it refers to our "eight years' experi
ment " of the federal system and must, therefore, have
been delivered before the summer of 1798, when the
acts were passed. The only real proof that Ellsworth
approved of either of them is a private letter to Timo
thy Pickering, written in December, 1798, when the
Republicans in Congress were urging a repeal of the
Sedition Act.1 Two or three letters of earlier dates
show also his opinion and his feeling concerning a
course of events which soon drew him from his judi
cial labors to render, in the strange field of diplomacy,
his last great service to his country.

Besides the factional division of the Federalists and
the constant strife between the Federalists and the
Republicans, the Adams administration was occupied
mainly with foreign affairs. The contests of parties
and of factions, and the rivalries of individuals, them
selves turned chiefly on our relations with France and
with England ; but from the final acceptance of the
Jay treaty the menace to our neutrality came from
France rather than from England.

To succeed Monroe, who was thought much too
French in his sympathies to be a proper representa-

1 Post, p. 270.

THE SUPREME COURT 267

tive of our interests at Paris, Washington had ap
pointed Charles Cotesworth Pinckney, a Federalist.
Adams had been but a few weeks President, and was
planning to join with Pinckney some leading Republi
can like Madison and some important character from
the East, and hoping thus to reach a better under
standing with our old ally, when the news came that
the French government had rejected Pinckney, and
with very scant courtesy. The Directory, which now
governed France, was enraged at the Jay treaty, it was
strengthened in its entire foreign policy by the victo
ries of French arms under Napoleon Bonaparte, and
it was encouraged by the intemperate sympathy of the
Democrats in America into a persistent hope of some
how coercing the American government out of its new
friendship with England and perhaps out of its neu
trality. Behind this hope and policy there may have
been a sincere feeling that America owed to France
more than the equal consideration which a friendly
neutral owes to a belligerent, and for that sentimental
view of the situation something might perhaps be said ;
but there is no defending the method which the Direc
tory now took to assert it. A claim of sentiment
soon loses its quality and its force when it is asserted
by insults and blackmail ; and these ugly terms are
none too strong to apply to the conduct of Talleyrand,
who undoubtedly had the Directory behind him.

Angry as Adams was at the treatment of Pinckney,
and though the members of the English faction about
him were angrier still, he clung to his plan of a joint
embassy, and in October, 1797, John Marshall, Pinck
ney, and Elbridge Gerry arrived in Paris, with full
powers to negotiate a treaty of amity and commerce

268 OLIVER ELLSWORTH

not unlike the Jay treaty with England. They re
mained there more than half a year; but they never
got beyond the first preliminary moves of a formal
negotiation. The details of their experience, which are
given at length in various books, and need not here
be recounted, make up the most exasperating episode
in all our diplomatic history. It is safe to say that if
to-day similar indignities were offered American envoys
in any capital in Europe, we should instantly go to
war to avenge them. Talleyrand, delaying on various
pretexts the proper reception of the embassy, tried by
three several go-betweens to browbeat and cajole the
three Americans into bribing the Directory and into
pledging their government to grant a money loan to
France. As the envoys firmly rejected his insulting
proposals, he went about to detach Gerry, who was a
Republican and seemed more pliable than the other
two, from his Federalist associates. When Marshall
and Pinckney at length withdrew from the embassy,
Gerry remained at Paris, and through him alone Tal
leyrand again sought his object.

When these extraordinary proceedings were reported
in America, hardly the most extreme Gallomaniacs
would have had the government keep Gerry at Paris
or in any way continue or reconstitute the embassy.
The cabinet was for declaring war at once — all unpre
pared as we were. Adams did not recommend that
course, but in a special message to Congress he did
recommend putting the country in readiness for fight
ing. Some months later, having in the meantime
sent to Congress the cipher despatches in which our
envoys told the story of their mission, he indignantly
declared, "I will never send another minister to France

THE SUPREME COURT 269

without assurances that he will be received, respected,
and honored as the representative of a great, free,
powerful, and independent nation."1

There followed an inspiring outburst of national
feeling which for some months gave Adams a popu
larity he had never known before, and which seemed
to assure his party of a new lease of power. Congress
responded with a series of acts which broke off all
commercial intercourse with France, declared the old
treaties between the two republics no longer binding,
permitted American vessels, both of the navy and the
merchant marine, to make reprisals for French depre
dations, provided for increasing the military and naval
forces, established a department of the navy, and in
fact looked straight toward war with France. Wash
ington came from his retirement to take command of
the new army. But the strife of parties and factions
did not cease. The Republicans, though they took
for the most part no decided stand against measures
of defence, advocated caution, and would not concede
that the last chance for an understanding with France
was gone. The Hamilton faction among the Federal
ists, still discontent with Adams, forced him to give
Hamilton a military rank second only to the aged
Washington's — planning, perhaps, as Adams sus
pected, to make their leader the actual head of the
army, in order to his succeeding Adams three years
later. Hamilton himself, playing at this time both
the politician and the soldier, seems to have lost his
head. He counselled centralizing policies as radical
as those he had advocated in the Constitutional Con
vention ; he gave his ear to a wild scheme of expan-

1 " Messages and Papers of the Presidents," I, 266.

270 OLIVER ELLSWORTH

sion by the forcible seizure of Spanish territory to the
southward ; and he failed completely in his attempt to
manage the President. On the contrary, he and his
following drove Adams into a fury of jealousy and
wounded self-esteem.

As if this division in the party were not enough to
work its ruin, the Federalist majority in Congress
chose this particular time for an unwise assault upon
the liberty of speech and of the press, and for taking
a narrow policy with the foreign-born. By a new
naturalization law, they extended to fourteen years the
term of residence required of foreigners who desired to
become citizens. By the Alien Act, they empowered
the President to deport foreigners whose presence here
he might deem dangerous to our institutions. By
the Sedition Act, they threatened with severe punish
ments any who should combine to oppose government
measures, or should print any matter with intent to
bring into disrepute the government or its officials.

A final section of this act permitted the truth of any
such matter to be offered as a valid defence, and pro
vided that in all trials for seditious writings the jury
should pass on the law as well as the facts; it was this
section that Ellsworth had particularly in mind when
he wrote to Secretary Pickering, the following Decem
ber, concerning the attacks on the law : l

" I thank you for sending me the charge of that
painstaking Judge Addison, who seems to be a light
shining in darkness, though the darkness compre
hends him not. He is doubtless correct in supposing
that the Sedition Act does not create an offence, but
rather, by permitting the truth of a libel to be given

1 Jackson Ms. ; Flanders, 193-194.

THE SUPREME COURT 271

in justification, causes that, in some cases, not to be
an offence which was one before. Nor does, it devise
a new mode of punishment, but restricts the power
which previously existed to fine and imprison. But
as to the constitutional difficulty, who will say, negat
ing the right to publish slander and sedition is abridg
ing the freedom of speech or of the press, of a right
which ever belonged to it ? or will show us how Con
gress, if prohibited to authorize punishment for speak
ing in any case, could authorize it for perjury ? of
which nobody has yet doubted. If a repeal of the
act is to take place this season, I think the preambles,
in order to prevent misapprehensions, and withal to
make a little saving for our friend Marshall's address,
should read thus : — ' Whereas, the increasing danger
and depravity of the present time require that the law
against seditious practices should be restored to its
former rigor, therefore, &c.' I congratulate you on
the late success of the British ; not that they had not
power enough before, but because the French had too
much; and, besides, if the latter had obtained the
victory, they would not have thanked God for it."

With this defence of the law, as good, perhaps, as
any ever offered, Ellsworth takes, of course, his share
of his party's responsibility for it. On the question of
the right course with France, his position up to this
time had been decidedly cautious. He had merely
communicated to Wolcott his impression that the
government should not behave timidly from any fear
that the people, particularly the people of New Eng
land, would not sustain vigorous measures.1 We have

1 In two letters written in May, 1797, after the news came that Pinckney
had been rejected. Gibbs, I, 532, 540.

272 OLIVER ELLSWORTH

no further expression of his opinions until it became
necessary for him to accept or to decline the foremost
role in our diplomatic dealings with France.

It is hardly necessary to trace minutely the course
of events which finally led Adams to call for Ells
worth's services. The President had never ceased
entirely to hope for peace, and it soon began to ap
pear that the French government, impressed by the
warlike tone of the American, had come to see its
mistake. Talleyrand detained Gerry at Paris as long
as he could, and endeavored, through him and others,
to efface the impression made by the treatment of our
envoys. From Americans in France, and from other
sources, there came to Adams many evidences of the
change of heart of the Directory. Finally, through
M. Pichon, charge d'affaires at the Hague, Talley
rand sent to the American minister there, William
vans Murray, the assurance without which Adams
had declared that he would never appoint another
minister to France.

When Murray's letter containing Talleyrand's mes
sage arrived, Adams, thoroughly enraged with Ham
ilton, and distrustful of his own political household,
heartily welcomed it. How far personal ambition
and personal resentments governed him, and how far
purely patriotic motives, cannot, of course, ever be
determined. But on February 18, 1799, without a
word to his cabinet, and to the utter dismay of the
war party, he sent to the Senate the nomination
of Murray to be minister to France, promising, how
ever, that the minister should not proceed to Paris
until the French government should agree to receive
him in character and appoint a minister of equal rank

THE SUPREME COURT 273

to negotiate with him a treaty covering all the contro
versies between the two republics.

To Hamilton, who was really at the head of the
army, and still more to such consistent partisans of
England as Pickering, Wolcott, and Cabot, this sud
den turn meant political and personal discomfiture.
It meant that the President had resolved to be the
real head of his administration ; and it also vetoed the
wide-reaching schemes of national aggrandizement
which had for some time filled Hamilton's mind.
The Senate, which these men really controlled, de
layed action on the nomination, and the party leaders
convinced Adams that he must strengthen his pro
posal. Again without consulting the cabinet, he on
February withdrew the nomination of Murray to be
minister and sent, instead, the nomination of Oliver
Ellsworth, Patrick Henry, and William vans Murray
to be envoys extraordinary and ministers plenipoten
tiary. This nomination the Senate confirmed, but
until the day the envoys sailed Pickering, Wolcott,
Cabot, and their faction, including as it did a majority
of the cabinet, were continually striving to delay and
to defeat the mission. Murray accepted his appoint
ment promptly, and with evident pleasure ; Ellsworth
reluctantly, and solely from a sense of duty — accord
ing to Pickering, " from the necessity of preventing a
greater evil." l Henry declined, pleading his advanced
age, and Adams named in his place William R. Davie
of North Carolina, who was, like his colleagues in the
embassy, a Federalist.

Adams kept his word. While his Federalist oppo
nents sought about for means to defeat his purpose,

1 Pickering to Cabot, Feb. 26, 1799, Lodge's "Cabot," 233-234.

274 OLIVER ELLSWORTH

he was studying the course of events in Europe
to make sure that his envoys would be properly re
ceived. Ellsworth, meanwhile, was attending to his
judicial duties. His friends of the English faction
brought pressure to bear on him, but it was not strong
enough to make him reconsider his acceptance. During
the spring and summer, and well into the autumn, Pick
ering, Cabot, Wolcott, and perhaps other anti-French
extremists, were in constant correspondence about the
embassy. They, too, were constantly looking to Europe,
hoping that the instability of the French government or
the defeat of the French armies, perhaps the restoration
of the Bourbons, might deter Adams from resuming
negotiations with the Directory. But when it came to
reading the signs of European politics Adams had an
advantage over his opponents. From his long residence
in Europe he understood better than they the forces
playing in that field. He showed, therefore, as always,
plenty of confidence in his own judgment. At the end
of July, a letter from Talleyrand brought the assurances
he had required. But the news of the revolution of
Third Prairial, which reconstituted the Directory,
coming about the same time, caused the President
more hesitation. Meanwhile, however, he and Picker
ing were at work on the letter of instructions to
the envoys ; and a draft of this document reached
Ellsworth in September, while he was on the eastern
circuit.

Ellsworth's position was extremely delicate. Be
tween the President, on the one hand, and his friends
of the English faction — Wolcott, Pickering, Cabot,
King, Hamilton — on the other, he felt the strain of
two contending loyalties. His friends were urging

THE SUPREME COURT 275

him to advise the President to give up the mission.
He himself inclined to agree with them, and he looked
forward with anything but pleasure to the voyage to
France. Yet he would not shirk his duty. u This
excellent man," Pickering wrote of him to Cabot,
" when he was here in August, saw no alternative but
he must go. The subsequent changes in Europe, and
especially in France, I think, must change his ideas.
I wish you would write him upon it, and propose his
attempting to dissuade the President from the pursuit.
I also will write him. There is nothing in politics he
more dreads than the mission, and nothing in nature
he more dreads than the voyage across the wide
Atlantic."1

A few days later, Cabot wrote to Pickering : 2

" If anything could be done at this hour, it would be
by an able display of the subject in a private letter to
Ellsworth, which might engage him to expostulate
strongly with the President, and refuse to go."

And the next day, having received Pickering's
letter, Cabot wrote again:3

" I had written to Mr. Ellsworth through the me
dium of Governor Trumbull, and received his answer
before your suggestion. I rejoice to find he thinks
practically as we do on the general merits."

Ellsworth's own letters show that he favored a post
ponement ; but they show also that he was already, in
his usual businesslike way, studying the requirements

1 September 13, Lodge's " Cabot," 237. " I am told the Chief Justice goes
sorely against his will. The whole measure is very nauseous to the friends
of the government? Rufus King to Troup, " Life and Correspondence
of Rufus King," III, 92.

2 September 22, Lodge's " Cabot," 238.
8 Ibid., 242.

276 OLIVER ELLSWORTH

of his new role. On September 17, he writes to
Pickering : 1

" I have this day written a letter to the President
from which he will easily collect my opinion concern
ing a temporary suspension of the mission to France,
tho' I have endeavored to write in a manner that
would not give offense." The letter to the President
ran as follows : 2

"SiR: If the present convulsion in France, and
symptoms of a greater change at hand, should induce
you, as many seem to expect, to postpone for a short
time the mission to that country, I wish for the earliest
notice of it. The Circuit Court in this state and Ver
mont fell through last spring from the indisposition of
Judge Chase, and must now fall through from the in
disposition of Judge Cushing, unless I attend them. I
am beginning the Court here, and should proceed to
Vermont, if I was sure of not being called on, in the
meantime, to embark. It is, Sir, my duty to obey, not
advise, and I have only to hope that you will not
disapprove of the method I take to learn the speediest
intimation of yours."

Rather to Ellsworth's surprise, the President's reply
indicated that he also felt it best to wait.3 The
recent change in France, and the prognostics of a still
greater change, would certainly, he said, induce him to
postpone the mission for a longer or shorter time ; and
he indicated that the envoys would probably sail on
October 20 or November i. The substance of this
letter of the President Ellsworth sent at once to
Pickering4 — a procedure which shows clearly enough

1 Flanders, 226-227. 3 Adams wrote on September 20. Gibbs, II, 265.

2 Ibid., 226. * Flanders, 228.

THE SUPREME COURT 277

the peculiar relation between Adams and his own
cabinet members. October i, Ellsworth wrote to
Wolcott 1 that as Judge Gushing had relieved him
from the Vermont circuit, and the President had post
poned the mission for a month, he had time to sit
down and think ; and he thought the distracted pros
pects of Europe, and of America also, had begun to
brighten — a view which he commended to his gloomy
correspondent. The cabinet, encouraged, perhaps, for
much the same reasons, urged the President to come
on from his home in Massachusetts for a conference at
Trenton, N.J., whither the government departments
had been moved, Philadelphia being threatened with
yellow fever. Pickering, who wrote for his fellows,
told Adams that Davie had already come to Tren
ton, and that Ellsworth would also doubtless soon be
coming, and would certainly be gratified to accom
pany the President. But when Adams, on his way to
Trenton, stopped at Windsor and called on Ellsworth
at Elmwood, neither guest nor host spoke of this
suggestion. Some years later, Adams wrote of the
interview:2 "On my way I called upon Chief Justice
Ellsworth, at his seat in Windsor, and had a conversa
tion of perhaps two hours with him. He was perfectly
candid. Whatever should be the determination, he
was ready at an hour's warning to comply. If it was
thought best to embark immediately he was ready. If
it was judged more expedient to postpone it for a
little time, though that might subject him to a winter
voyage, that danger had no weight with him. If it
was concluded to defer it to the spring, he was willing
to wait. In this disposition I took leave of him. He

1 Gibbs, II, 266-267. 2 Works, IX, 252.

278 OLIVER ELLSWORTH

gave me no intimation that he had any thought of a
journey to Trenton." Yet two days later Ellsworth
wrote to Pickering : l " I was, the evening before last,
honored with a call from the President of half an hour ;
but nothing passed respecting my going to Trenton.
I have, notwithstanding, presumed to write him by this
day's mail, as follows: Since you passed on, I have
concluded to meet Governor Davie at Trenton, which
he probably will expect, and which, besides putting it
in our power to pay you our joint respects, and to re
ceive as fully any communication of your views as you
may wish to make, may enable me to accompany him
eastward, should you continue inclined to such suspen
sion of our mission as, under present aspect, universal
opinion, I believe, and certainly my own would justify.
It is a matter of some regret, Sir, that I did not con
sult you on the proposition of this visit ; but if I err,
experience has taught me that you can excuse. Gov
ernor Davie will doubtless arrive before me, and I hope
will be made comfortable and easy. It will be Thurs
day evening or Friday morning next before I shall
have the pleasure of seeing you and him."

One may feel that Ellsworth's conduct at this point
was a trifle disingenuous ; but he committed no dis
loyal act, he broke faith with no one. Adams does
not condemn him. On the contrary, he twice declares
that Ellsworth's conduct throughout all this business
was perfectly proper. His precautions were no more
than so great a matter required.

At Trenton, Ellsworth found not only Adams,
Davie, and the cabinet, but Alexander Hamilton,
and the whole episode came at once to its crisis.

1 Flanders, 229 ; Adams's Works, IX, 37.

THE SUPREME COURT 279

The opponents of the mission drew strength from the
news from Europe — that the British had landed in
Holland, that the Dutch fleet had been captured,
that the Russian general, Suwarrow, had won a victory
over the French in Switzerland. From these portents
they again augured the fall of the Directory and the
restoration of the Bourbons. At any rate, they urged,
we ought again to postpone action. It was the old
Directory, not the new, that had given us the assur
ances we asked for. Talleyrand himself was out of
power. This reasoning Adams heard from nearly all
about him. Even Hamilton called to press it upon
him. But he saw the European situation more
clearly than any of his advisers, and he did not for
bear to take account of considerations closer to his
own dignity. " I transiently asked one of the heads
of departments," he says,1 " whether Ellsworth and
Hamilton had come all the way from Windsor and
New York to persuade me to countermand the mis
sion." He accordingly held to his purpose. He
invited Ellsworth and Davie to dinner, and they
discussed the embassy with perfect freedom. "At
table," he relates,2 " Mr. Ellsworth expressed an opin
ion somewhat similar to that of the Heads of Depart
ments, and the public opinion at Trenton. * Is it
possible, Chief Justice/ said I, ' that you can seri
ously believe that the Bourbons are, or will be soon,
restored to the throne of France ? ' ' Why/ said Mr.
Ellsworth, smiling, ' it looks a good deal so.' * I should
not be afraid to stake my life upon it, that they will
not be restored in seven years, if they ever are/ was
my reply. And then I entered into a long detail

1 Adams's Works, IX, 299. 2 Ibid., 254.

280 OLIVER ELLSWORTH

of my reasons for this opinion. They would be too
tedious to enumerate here, and time has superseded
the necessity of them. The result of the conversa
tion was, that Mr. Davie was for embarking imme
diately, as he always had been from his first arrival,
and Mr. Ellsworth declared himself satisfied, and will
ing to embark so soon as I pleased." 1

At a cabinet meeting on October 15, the instructions
took their final shape, and early the next morning
the President gave order that the envoys should set
sail not later than November i. November 3, Ells
worth and Davie embarked at Newport in the frig
ate United States, whose captain was ordered to
land them at any French port they might prefer,
and to touch previously at any port which they might
designate. They chose to touch first at Lisbon, and
on the 27th of November the frigate sailed into the
Tagus. Learning that Napoleon had overthrown the
Directory and made himself practically supreme in
France, they lingered a fortnight at the Portuguese
capital, and then set sail again, this time for L'Orient
in France. But a great storm drove the vessel far out
of her course, and after days and nights of terror and
suffering for all on board she finally put in at Arras,
on the coast of Spain, near Corunna. Sending for
ward the news of their arrival, and again requesting

1 Works, IX, 254. One would infer that this was before Adams ordered the
departure of the envoys ; but Gibbs (II, 273) states that the dinner occurred
after the order had been given. October 24, Pickering wrote to Cabot :
" Some communication took place Thursday with the envoys, who dined
with the President (after the point had been decided), when many strange
ideas were broached. I heard Judge Ellsworth recite a part, but had no
patience to hear the remainder and went away. It was at Wolcott's the
same evening." Lodge's " Cabot," 249.

THE SUPREME COURT 281

assurances concerning their reception, the envoys set
off from Corunna overland to Paris.

Ellsworth emerged from the battered frigate a
physically broken man. Seasickness and the other
hardships of the two passages had permanently
deranged his constitution. The land journey over
a poverty-stricken region of Spain proved almost
equally trying. He was never again to know his old
strength and energy of body. But his intellect was
still undimmed, his will unshaken. Fisher Ames
was reckoning rightly when he wrote to Pickering,
" I rely on Mr. E., as much as any man can, to watch
the foe, and to parry the stroke of her dagger." l

1 Nov. 15, 1799, Ames's Works, I, 261.

CHAPTER VII

PARIS

AT Burgos, Ellsworth and Davie met their return
ing messenger. He brought them their passports ;
and from Talleyrand, who was again at the head of
the French department of foreign affairs, he brought
a letter which assured them of a proper reception at
Paris. Bonaparte, on coming into power, had at once
decided in favor of seeking the friendship of America.
Apparently, he was already planning to draw the
United States into a commercial union with the north
ern states of Europe against Great Britain. Talley
rand accordingly wrote to the envoys that they were
"expected with impatience, and would be received
with warmth." Pushing on, therefore, with confidence,
they reached Paris on the evening of March the second.

Oliver Ellsworth, Jr., a young graduate of Yale,
who had come with the embassy as private secretary
to his father, recorded in his diary some of the inci
dents of the mission and some of the impressions
which the Paris of the consulate made upon these
American visitors. The morning after their arrival,
it seems, they had to endure the first ceremonial of
their mission. According to the established custom
in Paris, the young diarist relates, a deputation of the
market women waited upon them. Warned by the
maltre d'hbtel that the women would make trouble if
they did not receive a money present, Ellsworth and
Davie consented to see them; and two of the sister-

282

PARIS 283

hood were accordingly conducted to a hall where the
envoys, dressed in black, sat solemnly awaiting them.
One of the women presented a large nosegay, they
both offered congratulations, and for a climax of their
welcome they gave Ellsworth and Davie " the double
embrace on each cheek." This honor the two envoys
reciprocated with a gift of two guineas to each of
their visitors. As the women were middle-aged,
stout, and red-faced, the younger Ellsworth was quite
content that his private station permitted him to be
a mere spectator of the exercises.

Pages of his diary are given to accounts of the
places he visited and the entertainments he attended
— all set down in the most matter-of-fact manner, and
accompanied with observations that reflect a serious,
sensible, but quite unimaginative and unpoetical mind.
At the opera, the young man thought that only a
corrupted taste could relish what he saw and heard.
Attending a masquerade, he concluded that in such a
gathering " many intrigues are probably carried on."
With similar common-sense remarks he records the
celebration of the decade at Notre Dame, — an affair
of " music, marriages, and the covering of the heads
of boys and girls with garlands," — the annual April
parade of the Parisians to Longchamp, and the exer
cises on the anniversary of the fall of the Bastille. A
fortnight after his arrival, he got his first glimpse of
Napoleon. There was a grand review of seventeen
thousand troops on the Champs de Mars. After de
scribing it, the diary proceeds :

" Bonaparte himself reviewed them, attended by a
number of his generals; as well as I could judge from
a view of him riding on horseback, he is a middle-

284 OLIVER ELLSWORTH

sized man, thin, spare body, and pale face, dark eyes
and short hair of black color ; his dress and appear
ance were plain; two gentlemen (the American Am
bassadors, who had seen him at an audience in the
palace) thought he resembled Mr. Jay in appearance,
one of them likewise observing he had much gravity
in his face as well as covered cunning or sagacity."

The audience of the envoys with the young con
queror was on March 8, in the hall of the ambassadors
in the Tuileries. Only tradition informs us of what
occurred. Napoleon, it is said, fairly dazzled Ellsworth,
who afterward declared that no other man ever had
given him so vivid an impression of mental power.
The first consul, as his wont was, discharged at the
envoy a rapid fire of questions, which were so search
ing and intelligent, and showed such a clear compre
hension of all the issues between the two countries,
that Ellsworth, though himself a rapid thinker and
talker, was hard put to it to frame suitable replies.
Tradition also has it that Napoleon, on first catching
sight of Ellsworth's grave, firm face, had said to some
one, " We must make a treaty with this man." l But
according to the secretary of Governor Davie, it was
he — a man of fine appearance and courtly manners —
with whom Napoleon was most favorably impressed ;
so favorably, indeed, that he treated Davie as if he, and
not Ellsworth, were the real head of the embassy.2

Ill and worn as he was, Ellsworth took little pleas
ure in his sojourn in France. His life there was quite
unlike the highly entertaining experiences of Franklin

1 Wood and Jackson Mss.

2 Fordyce M. Hubbard, " Life of Davie," in Sparks's Library of Ameri
can Biography, XV, 124-125.

PARIS 285

and of Gouverneur Morris. He had neither the incli
nation nor the strength for social distractions. There
are no glimpses of him at fine parties or engaged in
bouts of repartee with sprightly ladies. Doubtless,
however, he did enjoy the opportunity to discuss with
eminent Frenchmen those great problems of the right
ordering of political societies with which the peoples
of France and of the United States had both been
wrestling. With Talleyrand, who had been in Amer
ica, he had one day a long conversation on the sub
ject of free government and the French experiment in
democracy. In the course of it, Talleyrand asked the
broad question, How France should proceed in order
to develop stable republican institutions like those
of the United States ? Ellsworth's reply was what a
chief justice might be expected to give. For a first
step, he said, establish a supreme judicial tribunal,
made up of the best and oldest judges to be found,
and pay them salaries that will free them from all
temptations to accept bribes and from all dependence
on the government. Once it is known and felt that
in that court all have equal rights, lower courts of a
like character will be easily established, and other
institutions will follow. Talleyrand agreed, but
declared that his countrymen, always in a hurry,
would never wait upon so slow a process.1 To Vol-
ney, the philosopher, with whom also he had some talks
about government, and who had worked out an elabo
rate system for France, Ellsworth presented the old
objection to all Utopian schemes. " There is one
thing," he said, " for which you have made no provi
sion, — the selfishness of man."2

1 Wood Ms. 2 Ibid.

286 OLIVER ELLSWORTH

Apart from such serious interchanges with the fa
mous men whom he encountered, Ellsworth seems to
have given his time and strength wholly to his duties.
As he and Davie had found Murray awaiting them
at Paris, the American envoys saw no reason why the
negotiations should not begin at once ; and Napoleon,
far from following the tactics of the Directory, waived
all objections to their letters of credence and promptly
named three ministers on the part of France: his
brother Joseph, Roederer, who was counsellor of state,
and Fleurieu, who had been minister of marine. These
appointments were regarded as decidedly compliment
ary to the United States. Joseph Bonaparte falling
ill, the first meeting of the commission was not held
until April 2, when powers were exchanged ; but at
this point Napoleon again showed a conciliatory dispo
sition. As the powers of the French ministers seem
ingly extended only to a negotiation on the subjects
of controversy, not to the conclusion of a treaty, the
Americans thought them insufficient ; and the First
Consul at once issued a new instrument at which there
could be no cavil. As he departed soon afterward for
the second campaign in Italy, he can scarcely have
found time for any further attention to America until,
by a new series of victories in battle, he had won for
France another interval of security from her European
enemies. But his victories against Europe had also a
potent bearing on the whole question of the relations
between France and America. After Marengo, Ells
worth and his colleagues could no longer entertain the
notion that they might soon see the consulate share
the fate of the Directory, and perhaps the Bourbons
restored. Deeply impressed, on the contrary, by the

PARIS 287

genius of Napoleon and the ever rising prestige of
France, they became convinced that any arrangement
not inconsistent with the honor of their country would
be preferable to war. Perhaps it would be more
accurate to say that they grew more than ever anx
ious to secure peace ; for the relations between the
United States and France had been for nearly two
years little better than a state of undeclared war.

For this the United States could be held responsible
only on the broad ground that they had no right to
remain neutral while France was at war with England,
nor to conclude the Jay treaty. Up to the summer of
1798, these two policies of the American government
had constituted substantially the entire grievance of
France. Congress and the President had then added
the various measures of retaliation naturally provoked
by the continued depredations of France upon our com
merce and her contemptuous responses to our efforts
for an understanding.

By the old treaty of alliance, we had promised
France succor in war ; and by the treaty of commerce,
besides other favors and privileges, we had guaranteed
all her possessions in America and bound ourselves,
whenever she should be at war, to open our ports to
her privateers and prizes, and close them to those of
her enemies. These were the principal compensations,
apart from the discomfiture of England, that France
had received for the aid which she gave to America
during the Revolution ; and France held both Wash
ington's proclamation of neutrality and the Jay treaty
with England to be plain breaches of faith. If the
agreements with her still held, then certainly we had
no right to grant to England exclusively, as we did in

288 OLIVER ELLSWORTH

the Jay treaty, the freedom of our ports for her priva
teers and prizes. It was, in fact, impossible to justify
our course if we conceded that our promises of 1778
were still fully binding in 1 793 and in 1 796, and that
they applied to the war between France and England.
But the friends of England in America had argued
from the first that in this particular war France was the
aggressor, and that the old alliance bound us only in
case she were on the defensive. They might have
cited also a declaration made by Genet, immediately
after his arrival in America, and afterward confirmed
by Talleyrand, that France did not expect the United
States, in this instance, to execute the defensive clauses
of the treaty of alliance. To these excuses for Amer
ica's neutrality, France herself had soon contributed
another. Even before the Jay treaty, and before the
Directory came into power, the Revolutionary govern
ment had entered on a policy quite inconsistent not
merely with the actual treaties between the two re
publics but with the ordinary obligations of belliger
ents to neutrals. By a succession of decrees, it had
endeavored to injure England, and to supply its own
needs, at the expense of neutral commerce. It had
treated as contraband all provisions and all enemy's
goods found on neutral vessels. It had authorized the
impressment and forced sale of such cargoes of neutral
vessels visiting French ports as the committee of pub
lic safety might desire. By declaring an embargo at
Bordeaux, it had detained there for a year a large
number of American merchantmen. It had caused
the seizure and imprisonment of many American sea
men on the pretext that they were British subjects.
Moreover, its official agents had failed to pay for great

PARIS 289

quantities of supplies purchased in America. In 1 794,
when Monroe went to Paris, he found pending a
multitude of claims for damages to Americans inflicted
in these various ways.

After the Jay treaty, the Directory had taken still
more high-handed measures. One of these was to
revive certain old Revolutionary ordinances treating as
a pirate every neutral vessel not supplied with a role
d' equipage — a ship's register of a form not known
in America and countersigned by a public official
who had no counterpart in our system — and requir
ing also a sea letter, which no American vessel
carried. A thoroughgoing enforcement of these
rules would have subjected to seizure the crew of
every American merchant vessel afloat. The climax
came with a decree that subjected to capture and
confiscation all neutral vessels in whose cargoes
there should be found anything whatever of British
production. A declaration of war would hardly have
given to the navy and privateers of France any
greater freedom with the property of Americans on
the ocean. And the practice of the navy and the
courts of France had been even worse than the letter
of the decrees.

The instructions to the American envoys bade them
insist on some provision for reparation for these out
rages as an absolutely indispensable condition of a
peaceable agreement. Ellsworth, who had been con
sulted freely both by Adams and Pickering while they
were preparing the instructions,1 had approved this de
cision ; but he had successfully opposed Pickering's

1 "I am glad you have sent a copy to the Chief Justice. I had several
conversations with him last winter on the whole subject. He appears to

290 OLIVER ELLSWORTH

apparent desire to put into the American contention
so severe a reflection on the course of France that the
French government could not with self-respect have
entertained our proposals. What Pickering had de
signed may be inferred from this note of Ellsworth,
written in September, ijgg:1

" Having given your draught of instructions such
perusal as the hurry and pressure of a court, crowding
two terms into one, admits of, I remark, with all the
freedom you invite, that to insist that the French gov
ernment acknowledge its orders to be piratical, or, which
is the same, absolutely engage to pay for the depreda
tions committed under them, is, I believe, unusually
degrading, and which would probably defeat the nego
tiation and place us in the wrong. The alternative of
insisting that the fifth commissioner shall be a foreigner,
is more than was insisted with Great Britain, and a
ground, as I apprehend, hardly sufficient to risk failure
upon, though an eligible arrangement to attempt. The
style of the instructions is certainly nowhere heightened
beyond the provocation received ; yet in some few in
stances, which will readily occur to you on revision, is
more spirited, as it seems to me, than can be necessary
to impress the envoys, or than, in the event of publica
tion, would be evidential of that sincerity and concilia-

me to agree most perfectly with me on every point of our policy towards
France and England ; and this policy was founded only in perfect purity of
moral sentiment, natural equity, and Christian faith towards both nations.
I am, therefore, under no hesitation in sending the draught to him. . . .
Indeed, Mr. Ellsworth is so great a master of business, and his colleagues
are so intelligent, that I should not be afraid to allow them a greater latitude
of discretion, if it were not unfair to lay upon them alone the burden of the
dangerous responsibility that may accompany this business." Adams to
Pickering, Sept. 19, 1799. Adams's Works, IX, 31.
1 Flanders, 236-237.

PARIS 291

tory temper with which the business should appear to
be conducted."

Two weeks later, he wrote again in favor of modify
ing the conditions in respect of the French decrees
and the fifth commissioner.1 In their final form, the
instructions defined clearly those cases of captures and
condemnations of American property which were held
to be illegal and for which compensation was demanded,
and set forth in some detail the American view of the
conduct of France. At the end were seven ultimata.
There must be a board of claims to determine damages,
and France must bind herself to pay ; there must be
no guaranty to France of any part of her dominions ;
there must be no promise of a loan or of aid in any
other form ; prior treaties with other countries, includ
ing the Jay treaty, must be fully respected ; there must
be no grant of power to French consuls of a nature to
permit them to set up in America tribunals incom
patible with the complete sovereignty of the United
States; the new treaty must not run for more than
twelve years.2

It required less than Ellsworth's ordinary shrewd
ness to perceive quickly that there was no hope of
securing a treaty which should meet all these re
quirements of his government. He and his col
leagues, in their opening note, named two main
objects of the negotiation: to provide for the
claims of each party for damages inflicted by the
other, and to frame a new commercial agreement.
But the ministers of France, in their reply, held that
the first step should be to agree upon the principles

1 Flanders, 237-238.

2 For the instructions, see American State Papers, II, 301-306.

292 OLIVER ELLSWORTH

to govern the awards of damages, and the second,
to secure the enforcement of the treaties already in
existence. They also expressed surprise that France
had received no assurance of the repeal of the retalia
tory acts which Congress had passed in 1 798. This
first interchange disclosed clearly enough the true de
sires of both parties. Many other points were after
ward taken up, but the Americans were always trying
to secure damages without renewing the treaties ; and
the Frenchmen were trying to renew the treaties with
out any binding agreement concerning damages.

It has always been supposed that Ellsworth directed
the negotiation for his side, and the style of the cor
respondence, grave, weighty, and condensed, with now
and then a passage of dry humor or sarcasm, bears
out the tradition.1 A clear contrast has been noted
between the diplomatic methods of the Americans and
that of the ministers of France. The Americans took
much pains to sustain all their specific contentions,
and in general to prove their country in the right.
They seemed at times to suppose that the justice of a
claim sufficiently commended it. One finds repeatedly
in their communications a note of entire sincerity.
They have been criticised, in fact, for trying to inject
moral ideas into a discussion in which the other party
kept in mind nothing but the main chance. The
French commissioners did not by any means neglect
to argue their case or fail to dilate on the good faith
and magnanimity of their country ; they several times

1 The entire correspondence is given in the journal of the embassy, in
American State Papers, III, 307-345. This is my authority for the present
account of the negotiation, except as other sources are mentioned. It
seems hardly worth while to give page references to the journal for specific
statements.

PARIS 293

succeeded in this way in putting the Americans rather
absurdly on the defensive. But they plainly regarded
the whole correspondence as a dicker. The object of
it, they considered, was not to e&taMfe&Mjustice, but to
adjust interests; in a word, to strike a bargain. It
would be absurd to suppose that the Americans, expe
rienced men of the world, childishly ignored that point
of view. The difference was only of degree. But
they did endeavor to harmonize interests with morality
and law. The Frenchmen, not, apparently, distracted
by any such desire, were superior in finesse, and in
turning to advantage every favorable factor in the
situation. One of their devices was delay, for they
could not fail to note the eagerness and the growing
uneasiness of the other side. About the middle of
April, Talleyrand fell ill, and for a month they made
this an excuse for dilatory tactics.

On April 9, the American commissioners, to expe
dite the business, had submitted various specific
articles which they desired to incorporate in a new
treaty of commerce. These included a provision for
aboard of claims, all claims that had arisen before July
8, 1798, to be adjudicated according to the old treaties,
and all later claims to be adjudicated according to the
law of nations. After a fortnight the Frenchmen
replied, again insisting that the old treaty of commerce
was still in force, and objecting to the distinction
between the two classes of claims. The Americans
had already written home that they would be hard-
pressed to revive that treaty, at least so far as to con
cede its anteriority to the Jay treaty; but in their
next communication to the French ministers they
incorporated, nevertheless, the remaining heads of

294 OLIVER ELLSWORTH

their proposals. They waited in vain for any further
answer until near the end of May. On May 23, they
were informed at a conference that the negotiation on
the part of France had come to a standstill. The
First Consul's instructions having made the revival of
the old treaties a sine qua non, nothing more could
be done until he had passed on the American pro
posals. Fearful of his decision, Ellsworth and his
colleagues quickly resolved to modify one of their
articles. They proposed that in the future neither
country should open its ports to the privateers and
prizes of a third power unless they should first have
guaranteed the same favor to each other. A month
of silence followed. Early in June, Joseph Bonaparte
slipped away to Italy to submit everything to Na
poleon. On June 14 came the battle of Marengo.1
July 3, Napoleon himself returned to Paris. There
after, the American envoys felt, behind every move of
the other side, his controlling mind and purpose.

On July n, Joseph Bonaparte, at a dinner at his
own house, announced that the First Consul would
never consent to pay indemnities on any other basis
than the old treaties, nor make any new treaty that
should not at least place France on a footing of equal
ity with Great Britain. Four days later, the Ameri
cans proposed that indemnities be ascertained as in
their project of a treaty, but that payments be withheld

1 " A gentleman, who saw Mr. Ellsworth the end of June, informs me
that he expressed an opinion that it was best he and his colleagues should
be where they were ; that Austria probably would make peace and England
perhaps would not continue the war after the summer campaign ends ;
that if all others should adjust their differences, and our own remain
unsettled, we might find it difficult to obtain terms that were just and rea
sonable." Cabot to Wolcott, Lodge's " Cabot," 290.

PARIS 295

until the United States should offer France an agree
ment concerning privateers and prizes similar to that
of 1778 — a move which they saw plainly did not
produce a pleasant impression. The response to it,
delayed until August n, on the ground that the other
side was still waiting for instructions, took the form of
two alternative offers. France would renew the old
treaties and provide for indemnities; or she would
consent to abrogate the old treaties, and make a new
one unattended with indemnities, insisting only that it
should place her on an equal footing with England.
Ellsworth and his colleagues, having pondered the
entire situation, now wrote to Pickering that they
must either abandon the negotiation or depart from
their instructions.

Believing, however, that if they failed to secure an
agreement for indemnities the failure would be final,
they tried their ingenuity on a series of proposals
looking to a modified renewal of the treaties. They
were met in every instance by counter proposals which,
however worded, always either left open a way for
France to escape from paying indemnities or else
coupled the payment with concessions which the
United States would find it impossible, or at any rate
extremely distasteful, to make. Seeing that the nego
tiation was again coming to a deadlock, the Ameri
cans then made up their minds to test the sincerity
of the original French offer to pay indemnities on
the renewal of the treaties. They considered care
fully the extent to which their country was bound by
her engagements with England, and indulged them
selves in what seems a bit of rather sharp casuistry.
Their reasoning, as set forth in their final report,

296 OLIVER ELLSWORTH

turned chiefly on the rule of priority in respect of
conflicting international agreements, and moved in a
kind of circle to the conclusion which they wished
to establish. The rule being always understood, they
argued, it could be no breach of faith to make with
one power a treaty inconsistent with an existing treaty
with another. The Jay treaty expressly bound both
the contracting parties to forbear from making with any
other country any engagement inconsistent with the
mutual guarantee concerning privateers and prizes in
time of war. If, therefore, the United States should
now make such an engagement with France, it would
be understood with the limitation that it did not extend
to a case in which Great Britain should be the enemy.
The instructions to the American envoys bade them
make, if they should consent to renew that clause of
the treaty of commerce of 1778 which bore on priva
teers and prizes, a special saving of Great Britain's
rights ; but the rule of construction would save those
rights without any stipulation. Besides, it was a
question of renewing old treaties with France, not
of making new ones. Since such renewals constitute
the usual method of terminating hostilities, no com
mitment with another nation could conceivably forbid
them. The uniform usage in such cases implied that
hostilities did not destroy preexisting treaties, but only
suspended their operation. The acts of Congress in
1798 had really brought about a state of war with
France. The present negotiation ought, therefore, to
be regarded as making peace by restoring the sus
pended agreements. Moreover, there should be no
difficulty about Great Britain, for in 1792 Lord Malmes-
bury had offered France, in a project of a peace

PARIS 297

treaty, the same exclusive rights in British ports that
France now demanded in the ports of the United
States. " The foregoing considerations," the envoys
wrote in their report, " induced the undersigned to be
unanimously of the opinion that any part of the
former treaties might be renewed consistently with
good faith."

On September 6, they accordingly made their most
advanced overture. They offered to renew the old
treaties in full, on three conditions. For the mutual
guarantee of succor in the treaty of alliance there
should be substituted an agreement to furnish aid
in a certain amount of money or provisions ; indem
nities should be provided for, and all captured prop
erty not yet condemned should be at once restored ; at
the exchange of ratifications, the United States should
have the option, by giving up the provision for indem
nities, to get rid of all the obligations of the treaties,
save that each of the parties should continue to have,
for its men of war, privateers, and prizes, such rights
in the ports of the other as the most-favored nation
might enjoy. At a conference on September 12,
when the commission went over these proposals with
the closest scrutiny, the ministers of France made an
avowal which Ellsworth and his colleagues afterward
dryly pronounced " quite unnecessary." They avowed
that their real object from the beginning had been
to avoid by every means the payment of indemnities.
France, they confessed, was in fact unable to pay.
Joseph Bonaparte went farther still, and declared that
if his government should order him and his colleagues
to make a treaty on the basis of indemnities and modi
fied renewal of the old treaties, he would resign sooner

298 OLIVER ELLSWORTH

than obey. The Americans, retiring for a few minutes,
agreed that it was useless to make any more proposals.

Their original mission had plainly ended in failure.
They might at once have asked for their passports,
gone home, and received an honorable discharge.
But if they could not compass their errand, they
could, they believed, serve their country in another
way. If they could not secure reparation for past
injuries, they could perhaps prevent a recurrence of
like molestations in the future. Abandoning the
project of a treaty, they decided to propose a tempo
rary arrangement which should at least make an end
of a state of affairs that could otherwise end only in
war. The next day, accordingly, they wrote to the
French commissioners :

" The discussion of former treaties and of indemni
ties being for the present closed, it must, of course, be
postponed until it can be resumed with fewer embar
rassments. It remains only to consider the expediency
of a temporary arrangement. Should such an arrange
ment comport with the views of France, the following
principles are offered as the basis of it:

" i. The ministers plenipotentiary of the respective
parties, not being able at present to agree respecting
the former treaties and indemnities, the parties will in
due and convenient time further treat on these sub
jects ; and, until they have agreed respecting the same,
the said treaties shall have no operation. In the mean
time,

" 2. The parties shall abstain from all unfriendly
acts; their commercial intercourse shall be free, and
debts shall be recoverable in the same manner as if
no misunderstanding had intervened.

PARIS 299

" 3. Property captured and not yet definitely con
demned, or which may be captured before the ex
change of ratifications, shall be mutually restored.
Proofs of ownership to be specified in the conven
tion.

"4. Some provisional regulations shall be made to
prevent abuses and disputes that may arise out of
future cases of capture."

The ministers of France responded with reason
able promptness. On September 19, there was a
conference ; and at conferences held from day to day
the new proposals were carefully explored. Joined
with certain articles of the treaty originally offered,
they gradually took shape in a convention covering
all fresh difficulties likely to arise.1 Having for the
time being escaped indemnities, the French minis
ters consented to leave the old treaties in abeyance,
it being agreed that the two countries would again
negotiate concerning indemnities and treaties " at a
convenient time." They likewise accepted the Ameri
can contention on various other important points that
had been in controversy. The convention in fact
secured for America much more than England had
conceded in the Jay treaty. It rescued all the ships
and other property that had been taken but not yet defi
nitely condemned. It ended the old difficulty about
the role (Tequipage by providing for a uniform pass
port, to be used by both countries. It guaranteed all
debts owed by the government or by individuals of
either republic to the government or individuals of

1 Napoleon himself insisted on calling it a convention instead of a
"provisional treaty," telling Roederer that there were times to disregard
forms but that this was a time to pay strict attention to them. " CEuvres
de Roederer" (Paris, 1854, printed by his son, A. M. Roederer), III, 336.

300 OLIVER ELLSWORTH

the other. It secured freedom of trade between the
contracting parties, and it freed the trade of America
with Great Britain from all those irregular restraints
with which France had hampered and harassed it.
So far from assenting to the French contention
about provisions and enemy's goods, it declared that
only arms, ammunition, and implements fit for the
use of troops should be treated as contraband, and
that in the case of all other cargoes free ships
should mean free goods. It carefully regulated the
procedure of captures, so as to prevent wanton de
struction of property. In a word, it accomplished
the entire design of Ellsworth and his colleagues
when they decided to stay in Paris and propose a
temporary arrangement.

On October 3, this instrument was completed, and
Ellsworth had finished his last great service to the
United States. It had proved, doubtless, the most
trying of them all. Apart from the tax on his
waning strength, the long absence from his home,
and the sojourn in a strange country which he did
not like, he had the melancholy experience of Jay to
warn him that he need not expect the gratitude of his
countrymen. He also knew well enough that he was
likely to disappoint and anger his closest party friends.

His letters home have a certain effect of resignation.
The tone of them is that of a strong man, fearfully
exhausted, but resolute and faithful. From Burgos,
he had written to his son Martin : l

" Distant as you are from me, my dear boy, you are
not a day out of my mind, nor can I ever think of you

1 Feb. 10, 1800. For a copy I am indebted to Mr. G. E. Taintor of
Hartford.

PARIS 301

without the most ardent wishes for your welfare. I
hope and trust, that you make the best improvement
of your time, and that while you are preparing to live
and act your part well in this world, you will not for
get that there is another to prepare for."

Two letters from Paris to his twin children, Billy
and Harry, aged eight, are, it is true, playfully affec
tionate. The first runs :

" Daddy is a great way off, but he thinks about his
little boys every day ; and he hopes they are very good
boys, and learn their books well, and say their prayers
every night, and then God will love them as much as
Daddy does.

" There are a good many fine things here, and a great
many strange things. Oliver writes them down, and
he will have enough to tell the boys twenty nights.

" The Robbers came round the house where Daddy
lives the other night and the Gardener shot off his two
barrel gun and killed two of them. And Daddy be
lieves, if the Robbers come into his room, they will get
killed, for he keeps a gun and two pistols charged all
the time. And when he comes home he intends to
give his gun to Martin, and his pistols to Billy and
Harry."

And in the second he actually drops into rhyme:

" The men in France are lazy creatures,

And work the women and great dogs,
The Ladies are enormous eaters,

And like the best, toadstools and frogs.

" The little boys are pretty spry

And bow when Daddy's paid them,
But don't think they shall ever die,
Nor can they tell who made them.

302 OLIVER ELLSWORTH

" But Daddy's boys are not such fools,

And are not learned so bad,
For they have Mamma and good schools,
And that makes Daddy glad.

" Daddy won't forget them pistols." 1

But the only letter to his wife is as solemn as it is
brief. " I shall leave France next month," he wrote, " let
our business, which is still unfinished, terminate as it
may. If it please God that I see my family and friends
once more, I shall certainly love them better than ever."2

After the convention was signed, he wrote to his
brother David : 3

" Altho' our best and long continued efforts have
not obtained all that justice required, yet enough is
finally done, if our government should approve of and
ratify it, to restore peace to our country, — to make
some saving of the property which has been wrong
fully taken from us, — to guard against further in
juries, as well as they can be guarded against by
engagements, and to disentangle our country from
its former alliance and connections with France.

" I know you will be much disappointed at my not
returning this fall ; but the gravel and the gout in my
kidneys, which constantly afflict me, forbid my under
taking a voyage in a cold and boisterous season of the
year. I hope that by going to a mild climate in the
South of France to spend the winter, and by being
freed from the anxiety and perplexity of business,

1 Neither of these two letters is dated. Both copied by Mr. W.
Irving Vinal from originals in the possession of Mrs. Waldo Hutchins.

2 Jackson Ms. Copied from the collection of Mr. Teft of Savannah. As
the collector added the signature from another source, there may have
been more in the original.

3 From Havre, Oct. 10, 1800. Copy furnished by Mr. G. E.
Taintor.

PARIS 303

which has much increased my complaint, that I shall
be able by the opening of the Spring to return with
out hazard. . . .

" I pray God to preserve your health, and that of
your family, and to grant that in due time we may
again meet and rejoice together."

And to Wolcott:

" You will see our proceedings and their result. Be
assured more could not be done without too great a
sacrifice, and as the reign of Jacobinism is over in
France, and appearances are strong in favor of a
general peace, I hope you will think it was better to
sign a convention than to do nothing. Sufferings at
sea, and a winter's journey through Spain, gave me an
obstinate gravel, which, by wounding the kidneys, has
drawn and fixed my wandering gout to those parts.
My pains are constant, and at times excrilciating ; they
do not permit me to embark for America at this late
season of the year, nor, if there, would they permit me
to discharge my official duties. I have, therefore, sent
my resignation of the office of chief justice, and shall,
after spending a few weeks in England, retire for
winter quarters to the South of France.

" I pray Mrs. Wolcott to accept of my best respects,
and shall ever remain, dear sir, your affectionate
friend." 1

1 From Havre, October 16. Gibbs, " Administrations of Washington
and John Adams," II, 434. To Pickering, probably at the same time, he
wrote : " My best efforts and those of my colleagues have not obtained
all that which justice required, or which the policy of France should have
given. Enough is however done, if ratified, to extricate the United States
from a contest which it might be as difficult to relinquish with honour, as
to pursue with a prospect of advantage. A partial saving is also made for
captured property, goods are provided against future abuses as well
perhaps as they can be by stipulations, and our country is disentangled

304 OLIVER ELLSWORTH

Having heard, apparently, that Adams had dismissed
Pickering, and that Wolcott had contemplated resign
ing, Ellsworth added a pbstscript, than which he never
wrote or said anything more expressive of his own high
standard of patriotism. ;;

"You certainly did well not to resign, and you must
not think of resigning let what changes may take place,
at least till I see you. Tho' our country pays badly,
it is the only one in the world worth working for. The
happiness it enjoys, and which it may increase, is so
much superior to what the nations of Europe do or
ever can enjoy, that no one who is able to preserve and
increase that happiness ought to quit her service while
he can remain in it with bread and honour. Of the
first, a little suffices you, and of the latter, it is not in
the power of rapine or malevolence to deprive you.
They cannot do without you and dare not put you
out. Remember, my dear friend, my charge — keep
on till I see you."

To resign his own great judicial office must have
cost Ellsworth a struggle. He took the step solely
because of his broken health. The opposition at
home criticised him for holding the place while en
gaged with other duties in a foreign land, but his
predecessor, Jay, had done the same thing, and his
successor, John Marshall, after accepting the appoint
ment to the bench, continued to act as Secretary of
State down to the very last moment of the Adams
administration.1

from its former connexions. ... I hope you will think it better to do
this, than to have done nothing." Quoted in a letter of Pickering to
Wolcott. Ibid., 463.

1 In the Pyne-Henry Collection in the Princeton University Library
there is a letter from Ellsworth, dated March 17, 1802, which seems to

PARIS 305

Ellsworth would doubtless have preferred to leave
Paris as quietly and as quickly as possible. But the
French government had no mind to let the long nego
tiation come to an end without making some senti
mental use of the occasion. Napoleon was still bent on
conciliating America; and it need not be doubted that
the restoration of friendly relations appealed to a genu
ine sentiment in the hearts of many Frenchmen. The
First Consul had remained uniformly gracious to the
envoys. Besides other attentions, he made Ellsworth a
gift of a costly piece of Gobelin tapestry, and with a truly
French cognizance of his one vice presented him also
with a gold snuff-box. Prompted, perhaps, by the
government, Joseph Bonaparte now tendered the three
Americans an elaborate entertainment. The occasion
is thus described in the diary of Oliver Ellsworth, Jr. : 1

" October 3d the American commissioners left Paris
for Mortfontane, a village perhaps 18 miles north
of Paris; to which village they with their suite had
been pressingly invited by Joseph Bonaparte (one of
the French ministers) to assist at a fete, before going
to embark at Havre de Grace. To this village we

indicate that he was required to refund his salary as Chief Justice from the
time of his appointment as envoy, and that he was allowed only three
months to return home after signing the convention. He points out in
this letter that after he accepted the appointment as envoy he travelled the
southern circuit and performed other judicial duties out of his turn, that by
arrangement certain of his associates performed his circuit duties in his
absence, that the Supreme Court had a quorum without him, and that, as
the signing of the convention was a preliminary step, unauthorized by his
commission, it left the commission still unexecuted, and he might have been
justified in waiting in Europe to see if his government would acquiesce.

For a copy of this letter I am indebted to Mr. W. W. Bishop of the
Princeton Library.

1 Flanders, 254-256, gives the extract, but not so nearly verbatim as in
the text. See Thiers, "Consulate and Empire," II, 247-248.

306 OLIVER ELLSWORTH

arrived about two o'clock P.M., where we found a
large number of the magistrates of the French gov
ernment collected in Joseph Bonaparte's chateau. The
First Consul Bonaparte arrived here about 4 o'clock
P.M., cannon firing and music playing upon his
entrance into the chateau. During the afternoon, the
company amused itself in the gardens or pare attached
to the chateau, which are in English style, affording
picturesque views. Behind the chateau a canal, etc.,
etc. ; in the front at a small distance a pare with rocky
and barren hills topped by an ancient tower on one
side, a large natural pond interspersed with islands in
the bottom of the plot, and fine cultivated sides of hills
in other parts.

"In the evening, after the final signature of the
treaty by the French and American ministers, it was
presented for ratification to the First Consul, upon
which occasion, about 8 in the evening, cannon were
fired to announce the ratification. About nine the
company of perhaps 150 were conducted to a supper
prepared in three salles or halls. The principal, called
Union Hall, was superbly illuminated, hung with ver
dant wreaths and many inscriptions to the memory of the
4th of July, 1776, and other periods and places cele
brated by important actions in America during the
struggle for independence.1 Among these inscriptions,

1 " In the Hall of the Union shields placed over crossed swords were
arranged at intervals. On one shield one read : Lexington ; on another,
4 July, 1776, American Independence; on a flag folded under this last, one
read : Hancock ; on another shield one saw two fasces united and the
initials of France and of America, F and A ; on one of the flags, Warcen
(Warren?). One shield bore On the 9 Vendemiaire year IX (date of the
signing of the convention). A little farther on was written : Putnam. . . .
One shield was consecrated to 9 October, 1781, York Town" Journal de
Paris, quoted in Roederer, VI, 419.

PARIS 307

besides frequently the letters F, A, i.e. France and
America, were the views of the federal city of Phila
delphia and Havre de Grace, the port from which the
American ministers were to embark, and what is
curious the representation of an angel flying with
the olive branch from Havre de Grace to Philadel
phia. The second hall, called Salle de Washington,
was adorned with Washington's bust, the French and
American flag side by side, etc. The third, i.e. Salle
de Franklin, had Franklin's bust, etc. The intention
of these decorations seemed to be the commemoration
principally of the American independence, and, from
the toasts given at the table, etc., at the same time the
commemoration of the French liberty; for instance,
the First Consul's toast, viz., to the memory of those
who have fallen in the defence of French and Ameri
can liberties, or something to this purpose. The toast
of the second consul, Cambaceres, was ' The Successor
of Washington.'1

" After the supper, about ten, were splendid and
very ingenious fireworks in the garden, the chateau
being illuminated during the evening. Next followed
a fine concert. About twelve or midnight two short
but interesting comedies were performed in the private
theatre in the chateau, the actors being the best from
Paris. At the conclusion of one of these pieces some-

1 Lebrun, third consul, proposed " The Union of America with the
Northern powers to enforce respect for the liberty of the seas," and he
probably came nearer than the others to a correct expression of the true
object of Napoleon's policy with the United States. Thiers (" Consulate and
Empire," II, 247) remarks of the convention, " Cdtait donner sur les mers
un allie de plus a la France, et un ennemi de plus a Tangleterre ; c^tait un
noveau ferment ajoute' a la querelle maritime, qui relevait dans le Nord,
et qui de jour en jour devenait plus grave."

308 OLIVER ELLSWORTH

thing in verse was sung respecting the United States.1
The plays ending about two o'clock in the morning, (of)
the company some took soon to their beds, some taking
a second supper, and some starting for Paris at three
o'clock. In the forenoon of the fourth, I had leisure
for walking again in the garden, and being in company
with Mr. Roederer's son he informed me that Joseph
Bonaparte proposed the raising of a marble monument
in the garden to the commemoration of the signing of
the treaty of F. and U.S.A."

The memoirs of Roederer add another incident.2
The First Consul, it seems, had directed the minister
of foreign affairs to present to each of the American
ministers a costly gift. Moreover, the prefect of
L'Oise having brought to the fete, as a present to the
First Consul himself, a basketful of gold medals of
different periods of the Roman republic, which had
been found in his department, Napoleon remarked that
the best possible disposition of these relics of a great
republic was to present them to the citizens of the
American republic. He accordingly gave a handful
to each of the three. A few minutes later, the com
pany observed the Americans retire into the recess of
a window, and there engage in an animated contro
versy with their secretary, who, as it afterwards appeared,
had reminded them that Americans employed in diplo
matic offices were forbidden to accept gifts from for
eign governments. Roederer was of opinion that the
secretary, having been overlooked in the distribution

1 The Journal de Paris of October 6 contains the verses, which are
hardly worth quoting. Roederer, III, 420.

2 Ibid., 337-338. The passage in which Roederer gives his own rec
ollections of the convention and the fete was translated and printed in the
National Intelligencer of Aug. 22, 1855. Jackson Ms.

PARIS 309

of the medals, mixed some personal pique with his con
stitutional scruples. The envoys, however, accepted
his view, explained their position to the First Consul
through the French ministers, and gave back the
medals. Napoleon, explaining that he had not meant
to make them an ordinary diplomatic compliment, and
that he had offered the medals, not as so much gold,
but as mementoes, persuaded them to retain this gift ; *
but Talleyrand did not venture to offer them the other.
Roederer tells the story with an air of discontent, which
the sequel explains. Napoleon soon afterward said to
him : " I am vexed on your account. You lose a pres
ent of equal value which they would have made in
return." And by way of compensation the First
Consul himself presented to Roederer and Fleurieu
fifteen thousand francs apiece.

According to the Journal de Paris, the American
ministers had heard with much emotion the toasts of
the three consuls, and had expressed their appreciation
as well as their imperfect French permitted ; and when,
the next day at noon, Talleyrand presented them to
the First Consul to take their leave, Ellsworth said :
" The convention which we have had the honor to
sign will indissolubly reunite the two nations. We
make no doubt but that it will produce that happy
effect." Murray added, " And the three American
ministers engage themselves to give all their atten
tion to the attainment of that object." Whereupon
Napoleon declared that the misunderstanding between
the two nations would leave no more traces than a

1 But this story of Roederer's is not confirmed by any mention of the
medals in any other account of the mission, nor by any tradition in the
Ellsworth family.

310 OLIVER ELLSWORTH

family quarrel, and predicted that the American people
would soon learn, " from what was coming to pass in
the North," the value of a union founded on liberal
principles.1

Taking their departure in the afternoon, the Ameri
cans proceeded straight to Havre, and a fortnight
later, having been detained only by the tides, Ells
worth and Davie passed over to England. After a
farewell dinner at Weymouth on October 22, Governor
Davie and Oliver Ellsworth, Jr., sailed for America,
bearing with them the convention and Ellsworth's
resignation of his judicial office. He himself remained
in England, still designing to go to southern France
for the winter. Meanwhile, though he awaited with a
natural concern the judgment of his government, of
his party, and of his countrymen in general, on the
outcome of the mission, he could only leave the
case as he and his colleagues had put it in their
final letter to the Secretary of State : " If, with
the simple plea of right, unaccompanied with the
menaces of power, and unaided by events either
in Europe or America, less is at present obtained
than justice requires, or than the policy of France
should have granted, the undersigned trust that the
sincerity and patience of their efforts to obtain all
that their country had a right to demand will not be
drawn in question."

It is perhaps the strongest of all the evidences of
Ellsworth's standing with his contemporaries that his
sincerity and his integrity were not drawn in question,
as Jay's had been. Long before the outcome was
known, his political friends at home had been busy

1 Roederer, VI, 420.

PARIS 311

conjecturing what was going on at Paris. Pickering,
Wolcott, Ames, and Cabot, in particular, had expressed
in their correspondence an anxiety hardly less than
that of Adams himself, who regarded the mission as
the crucial episode of his administration. There is
also reason to believe that in the autumn of 1800 a
number of Federalists entertained a hope that the out
come might bring Ellsworth's figure into such distinct
relief before the whole country that the party would
turn to him as a fit man for the presidency or vice-
presidency. It is said that a caucus of moderate
Federalists actually resolved to bring him forward in
case Adams should show a disposition to retire.1 But
if Adams had any disposition to retire, the opposition
within his own party was enough to make him change
his mind. The convention, though it was published
in France in October, and soon afterward in Eng
land, did not reach America until December — too
late to have any perceptible effect on the political
situation — and when the anti- Adams Federalists
learned its provisions they were inclined to con
sider it as a triumph for Adams, rather than for
Ellsworth or themselves. It is possible to under
stand, but hardly possible to justify, the temper in
which these men received the news that the envoys
had made peace with France. Apparently, nothing
that could have happened in our foreign relations
would have displeased them more — except, perhaps,
a disagreement with England. Their partisanship of

1 Van Santvoord, 284. " It has been thought by some, that if your
policy had been pursued, and Mr. Adams renounced absolutely by the
Federalists, it would have been in our power to have carried Pickering and
Ellsworth or Jay." Cabot to Wolcott, Nov. 28, 1800, Lodge's "Life of
Cabot," 288. See also Wharton's State Trials, 39.

3I2

OLIVER ELLSWORTH

Great Britain had come to equal the Gallomania of
the Democrats a few years earlier; and their hatred
and distrust of France almost equalled the feel
ing of the French Jacobins toward "perfidious
Albion."

Their grief over Ellsworth's share in the business
was comical. Unable to suspect him of treachery,
they mournfully concluded that his illness had im
paired his intelligence. Early in October, Cabot had
communicated to Wolcott his fears " that the high
and well-tempered mind of our excellent friend Ells
worth has been shaken perhaps by sickness in part,
but in part also by the events he has witnessed, and
by others which he apprehended, and all aggravated
by the acts and management of a set of people at
Paris employed for the purpose, as the Kosciuskos,
Barlows, etc." l And when the first reports of the
convention reached America, Cabot wrote,2 " If what
the newspapers represent with great appearance of
truth be correct, I should think the affairs of our
country are in the worst possible situation in regard
to foreign nations." When the convention arrived,
Wolcott wrote to Hamilton : 3 " You will be afflicted
on reading the treaty with France. Mr. Ellsworth's
health is, I fear, destroyed." And to Pickering : 4

" You will read the treaty which was signed with
France with astonishment. I can account for it only
on the supposition that the vigour of Mr. Ellsworth's
mind has been enfeebled by sickness. The Senate
are, I understand, much embarrassed, though they will
advise a conditional ratification. It is now certain

1 Lodge's " Cabot," 204. * December 25, Gibbs, 460.

2 Ibid. * December 28, Ibid., 461.

PARIS 313

that the mission has proved as unfortunate as we
considered it at the time it was instituted."

And Pickering replied : 1

" The treaty with France as you suppose has
excited my utter astonishment. Davie and Murray
always appeared to me fond of the mission, and I
supposed that they had made the treaty, but when
informed that our friend, our highly respected and

respectable friend Mr. E , was most urgent for its

adoption, my regret equalled my astonishment. The
fact can be solved only on the ground which you
have suggested."

The former Secretary of State then went on to criti
cise the convention more specifically. The envoys,
he thought, never should have countenanced the
notion that the old treaties could ever be revived,
or consented to the coupling of indemnities in any
fashion with the revival. The sixth article, granting
the privateers and prizes of France the privileges of
the most favored nation in our ports, he pronounced
a plain violation of the Jay treaty. By engaging to
give up captured ships, we admitted that we were
wrong in taking hostile measures at all. Commerce
with the colonies of France was silently denied us.
A stipulation that the word of the commander of a
convoy should exempt a merchant fleet from search
also struck him as exceptionable. Why not simply
leave to each of the parties entire freedom of trade
with the enemies of the other? If, as Wolcott had
predicted, the Senate should ratify only conditionally,
we should not be " extricated from our contest " —
the great object that Mr. Ellsworth had had in view

1 Jan. 3, 1801, Gibbs, 463.

314 OLIVER ELLSWORTH

when he decided to remain in Paris after the failure
to conclude a treaty.

Sedgwick of Massachusetts also concluded that
" the mind as well as body of Mr. Ellsworth are ren
dered feeble by disease." 1 Otis pronounced the
whole business "another chapter in the book of hu
miliation." 2 Gunn of Georgia called the convention
"detestable."3 "We are, by treaty, to embrace
France," wrote Fisher Ames, "and Frenchmen will
swarm in our porridge-pots."4

Hamilton himself, the feud with Adams being now
at its height, took in private a tone hardly less severe.
Arguing against the proposal of certain Federalists
to support Burr as against Jefferson when the con
tested election of the President should come into the
House of Representatives, and describing Burr as a
very Catiline, he cited in evidence toasts given at
Burr's table to the French republic, to the commis
sioners on both sides, to Bonaparte, and to Lafayette.5
The convention, he wrote to Sedgwick, played into
the hands of France by conceding those principles
of navigation on which she wished to build up a
league of the northern powers against England.6 He
also regretted the free ships, free goods provision, be
cause he thought England would object to it. But
in public he defended the convention. Even in that
unwise pamphlet on the public conduct and charac
ter of Adams which he published about this time,
fiercely as he assailed the policy of the mission, he

1 Hamilton's Works, VI, 491. 8 Ibid., 492.

2 Ibid., 490. * Ames's Works, II, 289.

5 Hamilton to Wolcott, Dec. 17, 1800, Gibbs, II, 459.

6 Hamilton's Works, VI, 495.

PARIS 315

pronounced the final issue of it " an honorable accom
modation," and he advised his friends in the Senate
to ratify the convention.1

President Adams, on the other hand, found no
fault whatever with it. He wished it ratified uncondi
tionally. " Had it betrayed a single point of essential
honor or interest," he afterward wrote, " I would have
sent it back, as Mr. Jefferson did the treaty with
England, without laying it before the Senate." 2 The
majority of the Senate, and perhaps the majority of the
Federalist senators, although they probably could not
agree entirely with the President, refused to follow
his enemies. The southern wing of the party, more
moderate in general than the northern wing, had been
for some time out of sympathy with what Adams called,
not without reason, the " British faction." They had
never joined in the attack on Adams and the mission ; *
and if John Marshall, after his humiliating experience
at the French capital, could accept peace with France
on the proposed terms, other fair-minded men within
the party can hardly have had much difficulty with
the question. As Secretary of State and as the fore
most southern Federalist, Marshall had at this time
a potent voice in his party's councils. He admitted
that he was very far indeed from approving the con
vention, but he advised that it be ratified.4 Gouver-

1 From a letter of Ellsworth to Rufus King it appears that he had
written Hamilton "a few observations respecting it (the convention),
intended to guard against surprise." Flanders, 264.

2 Adams's Works, IX, 281.

3 " Unhappily the Federalists of the North do not agree with those of
the South. The former have pretty generally expressed a disapprobation,
while the latter have as openly vindicated the mission to France." Cabot
to Gore, Jan. 21, 1800, Lodge's "Cabot," 268.

4 Hamilton^ Works, VI, 502.

316 OLIVER ELLSWORTH

neur Morris, who knew his France better perhaps
than any other American, and who was, moreover, an
excellent man of business, thought that with one or
two changes it would be " no bad bargain." 1 As the
Senate held it from the middle of December until
the beginning of February, it doubtless encountered
serious opposition. But at this session the House of
Representatives had to choose between Jefferson and
Burr, who had received the same number of electoral
votes for the presidency, and the contest absorbed
much of the passion that had so long embittered the
controversies over foreign affairs. Federalists as well
as Republicans were intriguing to influence the
choice of the House. Two letters from Rufus King,
minister to England, to the Secretary of State, must
have gone far to silence one contention of those
who opposed ratification. The convention had no
sooner been published in the English newspapers
than King set himself to learn how the English govern
ment regarded it. He sounded several of the minis
ters, and even found occasion to bring up the subject
with the king. So far from encountering protest and
remonstrance, he gathered from his inquiries an im
pression of complaisance bordering on indifference.
When he could report that England's minister of
foreign affairs, with whom he had had a long conver
sation, showed no signs of disappointment or discon
tent, it was absurd for Americans to argue, — as some,
however, did, — that good faith with England required
us to reject the convention.2 In his second letter,

1 Hamilton's Works, VI, 503.

2 See Ellsworth's letter to King, post, p. 318. Hamilton did not at all
agree with this view. " In my opinion," he wrote to Gouverneur Morris,

PARIS 317

King declared that England now desired to make
peace with Bonaparte. Ellsworth's reception at court
proved, he thought, that the government was without
animosity or unusual prejudice against America.

On February 3, the convention was ratified with
only one condition ; but that condition was unwise.
Striking out the entire second article, which contained
the agreement to negotiate at some future time on the
subject of indemnities and the renewal of the old
treaties, the Senate substituted the words : " It is
agreed that the present convention shall be in force
for a term of eight years from the exchange of the
ratifications." In this amendment, Adams reluctantly
acquiesced. When Napoleon came to consider it, he
at once discerned in it an unexpected opportunity to
erect another barrier against the claim of indemnities.
He gave his consent both to the time-limit and to
the elimination of the second article, but with the
proviso " that by this retrenchment the two states
renounce the respective pretensions which are the
object of said article." As this made another change,
Adams felt bound to take the advice of the Senate a
second time before proclaiming the convention. But
the Senate resolved to consider it fully ratified, and it
became the law of the land.

When Ellsworth learned of the Senate amendment,
he wrote to his friend King at London : 1

" The exception of the 2d article makes the instru
ment rather worse for us, as it leaves room for France

" there is nothing in it (the convention) contrary to our treaty with Great
Britain." Works, VI, 496. It is rather curious that Jefferson, on the
other hand, perhaps because he was soon to be the responsible head of
the government, felt uneasy lest we cornpromit ourselves with England.
1 March 17, 1801, Flanders, 264; Wood Ms.

31 8 OLIVER ELLSWORTH

to claim anteriority in the point of interference. And
I think it most likely she will accede to the alteration."

Apropos of what was said in the United States
about the convention and about himself, he had al
ready written to the same correspondent : l

" I am very sorry to hear that his Majesty has been
deranged, and still more so to learn that I am supposed
to be in the same predicament. I devoutly hope that
a similar imputation will not extend to our govern
ment ; but that it will continue to have respect, though
mine is lost in its service. What more is at present
to be done with France will, at least, fall to the lot of
some one not prejudged distracted for undertaking it.

" It is strange that after your letter to the Secretary
of State (of which, if you see no impropriety, I hope
you will favor me with a copy, or an extract) it could
have been supposed that G. B. (Great Britain) had a
right to complain; and even without that letter it
ought to have been sufficient, that by an uncontested
rule of construction there is implied and understood a
saving for the operation of prior treaties.

" The 3d article, including a restoration of the
frigate, had, as you know, its real reciprocity in that
part of the 4th which secured the restoration of about
forty valuable merchantmen, chiefly letters of marque,
on such proofs of ownership as they were known to
be furnished with. If the rights of war had attached,
restoring the latter was a much greater sacrifice than
that of the former ; and if there had not been war there
was nothing humiliating nor unusual in the restora
tions on either side.

" The 2d article was harmless ; and by admitting

1 Feb. 26, 1 80 1, Flanders, 262-263.

PARIS 319

the inoperation of the former treaties, silenced a claim
which would have been continued, and might have
become embarrassing.

"As to provisions respecting future captures and
commerce, we might have been satisfied with them
quite as long as France, by observing, would avoid an
occasion to revise them. To have expressed a limita
tion of years to the convention was truly compatible
with the idea of a further and definitive treaty, em
bracing the claims of indemnity which we were not at
liberty to abandon. But I will not trouble you with
remarks as obvious as they are now become useless."

An excellent temper, surely, in which to meet criti
cism. The poise and self-control, the modesty and
good nature of " our excellent friend Ellsworth " make
here a good contrast with the shrill carping of such a
man as Pickering. And the " obvious remarks " are a
really convincing answer to the principal strictures on
the convention. On the whole, Ellsworth had done
better with France than Jay had done with England.
He had made the best of a difficult situation, and that
best proved to be better than most observers thought.
He and his colleagues had not merely extricated their
country from an unequal contest; they had secured
for her positive benefits and still more valuable im
munities. They had also materially promoted a cause
in which their country was not alone interested. The
provisions of the convention concerning neutral com
merce — that the flag covers the goods, that only
material and instruments of war are contraband, that
neutral vessels may pass from any port to any other
port not actually blockaded, that searches and seizures
shall be governed by rules — carried out the most ad-

320 OLIVER ELLSWORTH

vanced and enlightened views of the relations between
neutrals and belligerents. They embodied, as Thiers
remarks, the law of neutrals.1 Ellsworth may have
worked for these agreements only because his own
country desired them. His merit may not have gone
beyond patriotism. But of that virtue he had given a
superb example. He had risen above personal ambi
tion, above party, above the mere combativeness and
truculence into which patriotism itself sometimes turns.
He had sought nothing but the interest and the honor
of his country. It would be hard to find in the politi
cal history of the time another public service that com
mands an approval so unreserved. Compared with
any one of the party leaders at home, not even Hamil
ton or Jefferson excepted, the figure of Ellsworth dur
ing the interval of his exile in England rises into a
superior dignity. It were well if we could steadily
prefer such integrity, such singleness of purpose, such
absorption in service, even to the surpassing genius
and the monstrous self-assertion of that extraordinary
creature whom this old-fashioned American statesman
had recently fronted at Paris and at Mortefontaine.

Ellsworth enjoyed his stay in England, for he found
there men and things that interested him deeply.
To visit England at this period, when the passage of
the Atlantic was still a matter of weeks and perhaps
months, when memories of the Revolution still com
bated and heightened older loyalties and reverences,
must have been a great experience to any thoughtful
American. Ellsworth, moreover, was of pure English
blood ; he had been all his life a student of English

1 " Constituent veritablement le droit des neutres." Thiers, " Consu
late and Empire," II, 219.

PARIS 321

institutions and English law; he was himself lawyer,
lawgiver, and judge, and one of the framers of a free
constitution of government. In his own character,
and his ideals of life and conduct, he had followed,
perhaps unconsciously, English models. He had left
France with relief, so soon as his work there was done.
Once in England, he found himself disposed to linger
there longer than he had intended.

In London, he made a visit to Westminster Hall,
where his reception probably gratified him even more
than that he got at court. It does not appear that
Jay had ever invaded the precincts of the King's
Bench ; and the judges and the bar of that ancient
and famous court manifested much curiosity and in
terest at the appearance there of an American Chief
Justice. Invited to a seat beside Lord Kenyon, the
English Chief Justice, who was sitting with Judges
Grose and Le Blanc, Ellsworth heard several of the
most distinguished lawyers in England plead in a
still famous cause. The case on trial was Rex vs.
Waddington, and of counsel on one side or the
other were such famous advocates as Law, Erskine,
Garrow, and Scott. Such had been the keenness of
the contending parties to retain Garrow that there had
been a scuffle between rival emissaries before the door
of his chambers. Lord Kenyon was an uncommonly
awkward man, and Ellsworth's simple but dignified
carriage shone by contrast. In spite of his broken
health, he made an excellent impression on the Eng
lish lawyers who saw him, and indeed greatly sur
prised them ; for these learned gentlemen were not, it
appears, superior to the mass of their countrymen in
the knowledge of things American. When he came

322 OLIVER ELLSWORTH

down from the bench, a knot of them surrounded him,
" curious to know how the Common Law stood trans
planting," and some of them asked questions that
threw a comical light on the notions of America which
prevailed in the mother country. Thinking, doubtless,
that Americans were for the most part a kind of creol-
ish hybrids, a mixture of English and Indians, Judge
Grose inquired, with an air of great delicacy, " whether
the obstruction of the course of descent had not turned
fee simples into life estates." Garrow's question was,
" Pray, Chief Justice, in what cases do the half blood
in America take by descent ? " l

Finding himself strong enough to travel, Ellsworth
made several brief excursions. On one of them, he
visited a hamlet called Ellsworth, near Cambridge,
and learned also that a number of people living near
by, in Yorkshire, bore the same name. Originally, he
was told, the hamlet had been called Eelsworth, from
the circumstance that it was situated on a small stream
famous for eels — the Anglo-Saxon terminal " worth "
signifying " place." The explanation was doubtless
correct ; and as the American Ellsworths had a tradi
tion that their common ancestor came from that part
of England, and as a Mr. John Ellsworth of London,
a rich cheesemonger, told the Chief Justice of a great-
grand-uncle who had gone from Yorkshire " to foreign
parts," it is quite possible that the American Ellsworth
had discovered the original seat of his family as well
as the origin of his name.

The circumstance can hardly have failed to
strengthen his growing attachment for England.
Even the climate had had an unexpectedly favorable

1 Wharton's American State Trials, 40.

PARIS 323

effect on his health. Abandoning his plan of going
to southern France, he proceeded, instead, to Bath,
whence he wrote occasionally to King at London.
These letters are nearly all about English and
American politics, and for a man suffering from so
cruel a disease he made them surprisingly cheerful.
One of them refers, with a mild jocularity, to his own
illness:

" As you have lived long and well enough to begin
to die, you should welcome the gout in your joints, as
the best means to protract the process, and give lucid
intervals. The Bath waters, I believe, seldom cure
this disease, though they mitigate and shorten its
paroxysms ; and are also of great use when needed
to fix it to the extremities. This effect, however, is
more than they are likely to produce for me, while my
kidneys are weakened by the constant laceration of
sand. . . ."

Having learned that in the elections in the United
States the Federalists were defeated, he added :

" So the anti-Feds are now to support their own
administration, and take a turn at rolling stones up
hill. Good men will get a breathing spell, and the
credulous will learn the game of out and in."

All his allusions to the great political change of
1800 show the same good sense, and the same
balance and magnanimity, that he had displayed
under the criticisms of his course at Paris. He proved
a far better loser than some others of the group of
Federalists who for twelve years had held the chief
places in the government. Even as far back as 1796,
when most of his friends had contemplated the pos
sibility of the election of Jefferson with the utmost

324 OLIVER ELLSWORTH

horror and dismay, he had taken a somewhat more
charitable, if not more cheerful, view. A gentleman
who was at that time a member of Congress after
ward wrote : *

" I was one evening sitting alone with Mr. Ellsworth,
when I asked him the question, why the apprehensions
of Mr. Jefferson's being President should occasion so
much alarm ? at the same time observing that it could
not be supposed he was an enemy to his country, or
would designedly do anything to injure the Govern
ment as constitutionally established. Mr. Ellsworth,
after a short pause, replied : ' No, it is not apprehended
that Jefferson is an enemy to his country, or that he
would designedly do anything wrong. But it is
known he is a visionary man, an enthusiastic disciple
of the French Revolution, and an enemy to whatever
would encourage commercial enterprise, or give energy
to the government. It is apprehended that, if he
were President, he would take little or no responsi
bility on himself. The nation would be, as it were,
without a head. Everything would be referred to
Congress. A lax, intriguing kind of policy would
be adopted; and while arts were practiced to give
direction to public sentiment, Mr. Jefferson would
affect to be directed by the will of the nation. There
would be no national energy. Our character would
sink, and our weakness invite contempt and insult.
Though Mr. Jefferson would have no thoughts of war,
his zeal in the French cause, and enmity to Great
Britain, would render him liable to secret influence,
that would tend to the adoption of measures calcu
lated to produce war with England, though it was not

1 Flanders, 177-178.

PARIS 325

intended, and the nation might be plunged into a war
wholly unprepared.' "

This was a severe judgment ; but it was a judgment,
not a mere outbreak of partisan malice and fear, and
it set forth correctly, though it may have exaggerated,
the weakness of Jefferson's character. " A lax, intrigu
ing kind of policy " is not an entirely unfair descrip
tion of his ways in the presidency; and the more
specific predictions of the results of his administration
proved measurably accurate.

And yet, now that the great Republican theorist
had triumphed, Ellsworth, disposed to make the best
of it, could write to King :

" You do not surely mistake the fear of Jefferson
for the gout ; because you think as I do, that he dare
not run the ship aground, nor essentially deviate from
that course which has hitherto rendered her voyage
so prosperous. His party also must support the gov
ernment while he administers it ; and if others are
consistent and do the same, the government may even
be consolidated, and acquire new confidence. It may
be well however for your letters to guard against that
despondency of some who, always believing that the
government must soon die, will be apt to say, it can
never die in better hands."

Unfortunately, the mass of his fellow-Federalists
did not see their duty as he did. But for the patri
otic stand by which Hamilton atoned for his recent far
from admirable course in the quarrel with Adams, and
which eventually cost him his life, the Federalists in
Congress would have made Burr President — the first
of the many spiteful acts of disappointment and cha
grin that soon completed the party's ruin. " So then,

326 OLIVER ELLSWORTH

my dear sir," Ellsworth wrote to King, when he knew
that the scheme had failed,1 " after thirty trials, for
tune has given us the best of a bad bargain. I think
the Feds have acquired less reputation by the contest
than the public would have lost had they succeeded."
In the same letter, he announced that he had
engaged passage from Bristol and would sail the
27th or 28th of March. The Bath waters had merely
given him some relief from suffering; they had not
cured his malady or restored his strength. The
return passage again taxed him sorely. Landing at
last in Boston, he rested a little time with Cabot, and
then journeyed painfully on to Windsor. The day set
for his home-coming, the members of his family were
gathefed at Elm wood awaiting him; and when at
last they caught sight of his carriage, they all rushed
forth to greet him. But instead of the robust, strong
figure of two years earlier, they saw a feeble, pale, fear
fully emaciated old man step from the carriage. Pro
foundly affected, Ellsworth silently waved back the
eager greetings of his wife and children, tottered to
the gate, leaned over it, covered his face with his
hands, and bowed his head in a prayer of gratitude
that he had lived to see again his country, his home,
his family.2

1 March 22, Flanders, 264-265.

2 Mrs. Sigourney, in " National Portrait Gallery," IV, article on Ells
worth.

CHAPTER VIII

HOME

IT was from no unusual impulse that Ellsworth
paused to offer thanks to God before he tasted the
happiness of his home-coming. If in this account of
his career any force that helped to shape his character
has been hitherto neglected, it is religion. In the list
of the principles that controlled his life, the religious
ought perhaps to be put highest : above patriotism ;
even above that instinct and habit of complete devo
tion to the task in hand which he displayed in all his
activities. When he turned away from the ministry
in his youth, he did not abandon his interest in reli
gious subjects, nor did he reject the particular creed
in which he had been bred. He accepted it fully, and
he took it as his fathers had taken it, — gravely and
practically, for a rule of conduct as well as a creed.

The present generation, not perhaps less open to
religious moods than any that has gone before, but in
a strong revulsion against the forms and usages of
piety, and inclining more and more to sublimate doc
trine, can hardly appreciate the literal force of Chris
tianity in the lives of educated men and women a
century or more ago. But to understand a life like
Ellsworth's we must take account of a well-nigh con
stant reference, in his own mind, of all his actions and
decisions to a hard-and-fast moral standard, and of
a steadfast acquiescence in all the main Christian

327

328 OLIVER ELLSWORTH

tenets. He prayed to a personal God. He held to
the hope of a future life, for which this earthly life
should be but a preparation. On all questions in
theology and church government, he was an orthodox
Congregationalist.1

Human nature does not justify confident reasoning
from men's beliefs to their conduct, but Ellsworth was
a man who lived up to his professions beyond the ordi
nary standards of consistency. He kept the Sabbath
holy, and went unfailingly to church. In the absences
of the minister, he himself frequently served as a lay
reader. He held prayers every morning in his own
household, with lessons from Doddridge's " Expositor " ;
often read Tillotson's sermons aloud to his family;
studied the Bible daily. When he came back from
Europe, he brought several boxes of books, and most
of them were religious. In the catalogue of his library
which was made at the time of his death, more than
half the titles are of works on religion. During his
later years, he gave himself more and more to the
study of theology. Now that, as he wrote to King, he
had " begun to die," he turned with his old resolute
concentration to a closer grappling with the great
problem.

He took his full share of the work of his church
and of other organized religious activities in his own
community. In the middle of the eighteenth century,

1 But quite probably called himself a Presbyterian. " The (Congrega
tionalist) churches of Connecticut were often designated by their own pas
tors and members as i Presbyterian.' " Williston Walker, " History of the
Congregational Churches in the United States," 315. "They freely used
the name Presbyterian as the briefest description of their ecclesiastical
position." R. E. Thompson, "History of the Presbyterian Churches of
the United States," 15.

HOME 329

the old " First Society " of Windsor had divided, the
seceders forming the Fourth Society. In 1792, joining
with several other men of influence, he worked for and
accomplished a reunion. The reunion made it possible
to build a new meeting-house, and he served on the
building committee, chose the plans of the new edifice,
and when it was finished helped to raise for the society
a money endowment.1 Altered somewhat in 1745,
but not radically, the building still stands, a good
example of the dignified architecture of the period, on
the pleasant knoll on the north bank of the Farming-
ton, where once stood the "palisades," built by the
first settlers for a defence against the Indians, and
where so many Windsor generations lie buried.

A few years later, he rendered what at the time
probably seemed a good service to his denomination
throughout the state. At the beginning of the nine
teenth century, the Congregationalists of Connecticut
found themselves under fire. Their creed and their
organization kept still a strong hold on New England
society. The Unitarian revolt was not yet under way,
even in Massachusetts. But the other denominations
were growing restive under the long dominance of
Calvinism, and in the Connecticut laws concerning
religious societies they found much to complain of.
These statutes, they charged, violated the principles
of religious freedom. The Baptists were most ardent
in the agitation for reform, and in 1801 and 1802, in
a vigorous petition to the General Assembly, they set
forth at length the grievances of all the other Chris
tians of Connecticut against the dominant church.
The act for the support of ministers, they declared,

1 Ms. notes of Mr. W. Irving Vinal ; Jackson Ms.

330 OLIVER ELLSWORTH

inured unfairly to the advantage of that church, since
it empowered the majority in any community — usu
ally a Presbyterian majority 1 — to choose the minister,
arid appropriated to his support all property devoted
in general terms to the maintenance of religion. Vari
ous other acts and parts of acts were cited as operat
ing in similar fashion to take money from Christians
of other denominations to support Presbyterian minis
ters and build Presbyterian churches.

In May, 1802, the General Assembly set Ellsworth
at the head of a committee to report on this " Baptist
Petition," and the report, which he signed alone, reveals
him a decided conservative. He adopts the principle
that every member of society may be required to help
support religious institutions, and on that broad ground
justifies the laws attacked in the petition. One appreci
ates the great advance in religious freedom which the
then dawning century witnessed when one reads, over
the name of a man who on other lines had served the
cause of free government so well as Ellsworth had,
such reasoning as this :

" This opinion, however, is founded on the principle
recognized, that every member of society should, in
some way, contribute to the support of religious insti
tutions. In illustration of this principle, it may be
observed, that the primary objects of government are
the peace, order, and prosperity of society. By their
preservation, individuals are secured in all their valu
able interests. To the promotion of these objects,
particularly in a republican government, good morals
are essential. Institutions for the promotion of good

1 In the petition, Congregationalists are uniformly styled Presbyterians.
See ante, p. 328, note.

s

E

o a

HOME 331

morals are therefore objects of legislative provision
and support; and among these, in the opinion of the
committee, religious institutions are eminently useful
and important. . . .

" The right of the legislature to oblige each indi
vidual of the community to contribute towards the
support of schools for the instruction of children, or of
courts of justice for the protection of rights, is not
questioned ; nor is any individual allowed to refuse
his contribution, because he has no children to be
instructed, no injuries to be redressed, or because he
conscientiously believes those institutions useless. On
the same principle of general utility, in the opinion of
the committee, the legislature may aid the mainte
nance of that religion whose benign influence on morals
is universally acknowledged. It may be added that
the principle has been long recognized, and is too
intimately connected with the peace, order, and happi
ness of the state to be abandoned." l

Ellsworth served on this committee as a member of
the council ; for he had yielded to the wish of his
neighbors that he should again represent them in the
upper house of the legislature. He kept his seat as
long as he lived, and never neglected to attend the
sessions when his health permitted. The council was
still the judicial court of final resort, and its business
as a court was usually important. His own reputation
gave an additional distinction to his appearances as a
member of it. In Thomas Day's reports of its deci
sions, the only clew to those that are his is the style
and reasoning. One merely conjectures, for instance,

1 Both the petition and the report are in the Connecticut Courant of June
7, 1802.

332 OLIVER ELLSWORTH

that it was he who, in Brainerd vs. Fitch,1 again argued,
as in Adams vs. Kellogg, that a feme-covert cannot
devise real estate. But he is presented to us in this,
his last public character, in the admiring tributes of
several younger men who doubtless studied him keenly
as an example of conspicuous success in the law and
in statesmanship. Day, the reporter, was one of those
who left their impressions of the figure Ellsworth made
in the council. His manner in rendering opinions
Day thought greater and more majestic than any other
man's he ever saw. According to another observer,
a young lawyer who himself rose to judicial eminence,
when Judge Ellsworth spoke in the council, he always
held his listeners perfectly silent and attentive, not by
his reputation, but by manner, voice, presence, and
particularly by the extraordinary terseness and lucid
ity of his expositions. These were compared by
another distinguished lawyer to the husking of an
ear of corn, — layer after layer of misconception peeled
off, until the true issue shone forth clear to every in
telligence.2 His opinions had an extraordinary weight
with his fellows in the council. One day, after a
brief discussion of an apparently simple case, the
second Governor Trumbull, who presided, put the
question to each member in turn, beginning, as usual,
on the right; and when a majority had voted, all on
the same side, he was about to stop and announce the
decision. But Ellsworth, who as the senior member
sat on the governor's left, advised him to keep on
around the board. Again no one dissented until
Ellsworth's own turn came. Calling attention, in a

1 Day's Reports, 163-194; Van Santvoord, 288.

2 John Allyn, quoted in Jackson Ms.

HOME 333

few brief sentences, to a principle in the case which
no one else had discerned, he voted alone on the
other side. Without a word more of discussion, the
others all changed their votes.1

There is another story that exhibits a very amiable
trait of his character. The senior counsel on one
side in an important cause, disregarding the courte
ous usage of the bar, addressed the court without first
consulting his associate, a young man just begin
ning practice, as to the line of argument they should
follow. The junior counsel showed plainly that he
felt the slight; and when his turn came, disregard
ing the lead of his senior, he coolly proceeded to
argue the case on an entirely different line. The
court took the unusual course of ordering the argu
ments repeated, and in the end based its decision
solely on the younger man's. A few days later, Ells
worth called at the latter's room, had a look at his
slim collection of law books, told him he ought to
have more, and offered to lend him the money to buy
them. The story has a proper sequel ; for the young
lawyer became Ellsworth's son-in-law, and rose in time
to be Chief Justice of the state.2

Ellsworth, it appears, though he had sons of his
own, was given to befriending young men of his ac
quaintance, particularly young lawyers. During the
winter after his return from Europe, he invited five
youths of his neighborhood into his office and library,
and himself guided their studies. He took much
interest in the whole subject of education. As a
member of the council he had, ex officio, a seat among
the governors of Yale, and he served his old college

1 Ms. notes of Mr. W. Irving Vinal. 2 Jackson Ms.

334 OLIVER ELLSWORTH

with a loyalty quite unaffected by any memories of
the strained relations of earlier days. All his sons
who lived to manhood were graduated there. The
college for its part had in 1790 bestowed upon him
the degree of LL.D., a rarer honor for laymen than at
present. Princeton, his other alma mater, gave him
the same decoration the same year, and Dartmouth in
1797. Had he desired any honor in the gift of his
state, Connecticut would gladly have given it. He
was but fifty-six when he left the service of the nation,
and though he once remarked, while in retirement,
that he saw nothing to envy, or anything to seek for,1
he would probably have preferred to remain many
years in harness. But his malady never left him, and
it granted him but few intervals of ease from pain. In
1807, the last year of his life, he yielded to the urgent
solicitation of the governor and the people of the
state, and consented to be its first chief justice, — the
legislature having reconstructed the judiciary, taken
away the judicial functions of the council, and set up
a new supreme court of appeals. But before the time
came to enter on his duties a savage seizure convinced
him that he ought not to take the office, and he with
drew his acceptance.

He kept an intense interest in national politics, and
sometimes, it is said, grew warmer in discussing them
than became his years or accorded with the dignity
of his retirement. But he was not, like some of his
fellows in political exile, continually writing bitter
and intriguing letters about them. For that matter,
he never lost his old dislike of the pen. " Litera
scripta manet" he was fond of repeating. He did not

1 Ms. of Oliver Ellsworth, Jr.

HOME 335

spare ridicule of Fisher Ames, who could find no
other outlet but letter-writing for the wit and humor
and the keen interest in life that ill health forbade
him to exercise in affairs. " Always writing, writing,
writing," Ellsworth complained of him.1 It would
have been well, however, for the good fame of the
defeated party, if none of its leaders had put into their
talk and their letters anything worse than the not very
rancorous satire that Fisher Ames put into his. The
latter end of Federalism makes an unpleasant and
an unpardonable chapter of our political history. By
having no part in it, Ellsworth avoided a damning
error, kept safe his fame as a patriot, and rendered a
real though negative service to his country.

There exists no evidence whatever that connects
him with any of the blameworthy doctrines or policies
of the Federalists in these years ; and we can hardly
doubt that men like Pickering and Hillhouse, if they
could have drawn him into their intrigues, would gladly
have made use of his name. Beginning with a narrow
sectional opposition to the annexation of Louisiana,
an irreconcilable group of fallen leaders, chiefly from
New England, nursed their discontent into disaffection,
and came finally to designs and propaganda which we
should now certainly call treasonable. When even so
honorable a man as Gouverneur Morris — once so
strong a Unionist — could inveigh bitterly against the
Union as a failure and a positive evil, Ellsworth, who
had once stood for state-rights against the national
principle, might have been expected to share the
reaction. It was particularly strong in his own Con
necticut. But he left behind him not one word in the

1 Wood Ms.

336 OLIVER ELLSWORTH

slightest degree disloyal to the Union or the govern
ment. Only a student familiar with the history, and
particularly with the political correspondence, of the
period of his retirement can understand how, by reason
of this mere innocence of disaffection, he again rose
distinctly above the level of the wisdom and the patri
otism of contemporaries otherwise quite as eminent
as he.

Nothing in his life in retirement showed any lapsing
from the good intention and performance of his active
years. To the measure of his remaining strength, he
still addressed himself to the service of the public. Cer
tain books he had bought in England having aroused
anew his interest in agriculture, he resolved to try to
introduce better methods among his farmer neighbors,
and to that end he began in August, 1804, and con
tinued for two years, to publish in the Connecticut Cou-
rant brief essays and notes on agricultural topics.
Many of his ideas he drew from the excellent agricul
tural writings of Arthur Young, better known for an
unrivalled picture of French civilization under the old
regime. The series appeared in a column headed
" The Farmer's Repository," and under the title was
a motto from Dean Swift, — " Whoever can make two
ears of corn or two blades of grass grow on a spot of
ground where only one grew before, deserves better of
mankind and does a more essential service to his coun
try than the whole tribe of politicians put together."
Noah Webster, and perhaps others, made occasional
contributions. Ellsworth's own papers are not signed,
but he wrote many more than any one else, and it prob
ably would not be impossible to distinguish all that are
his by their style, which he made even more direct and

HOME 337

unadorned than in his other writings. For the most
part, he stuck close to his practical object. He dis
cussed old and new ways of growing the crops that
throve best in Connecticut, old and new styles of
implements, the treatment of cattle, and the various
means to restore worn-out soils. He dwelt longest on
fertilizers, and may have been the first New England
writer to explain the value of gypsum and to treat
somewhat scientifically of the food of plants. Prob
ably to enliven his subject, however, he also gave two
or three papers to brief accounts of agriculture in early
ages and in strange lands. Now and then, but not
often, he enforced his contentions with illustrations
drawn from his own keen observations in other parts
of the country or in Europe. " The lowlands of Vir
ginia," he thus finds occasion to remark, "fixed as
it seemed in the garden of Eden, except that there
is no account of the Lord ever walking there, after
cultivating Indian corn and tobacco only, till a hun
dred slaves can scarcely support one master, are now
beginning to cow-pen their fields for white clover."
Still less frequently, he indulges in some terse reflec
tion about politics ; as when he moralizes : " Happy
would it be if other good qualities could be as easily
renewed as those of land. Would to God there were
some kind of tillage also by which a republic that once
loses its virtue might be restored to virtue again " — a
sentence that is far from characteristic, and probably
conveys, with its gloom and its note of passion, the
severest view of politics and of life that he ever
entertained.

These papers, much in advance of the ideas and
the knowledge of even the more progressive farmers

338 OLIVER ELLSWORTH

of New England, do not seem to have had much im
mediate effect. " The Farmer's Repository " may in
time have earned for Ellsworth the dubious praise in
Swift's famous apothegm ; but the farmers of the
Connecticut valley probably rated his statecraft
above his efforts to teach them other ways in their
own business than the good old ways they had learned
from their fathers.

But his neighbors at Windsor could never complain
of him for putting on airs of superiority. With his fel
low-townsmen and old acquaintance, he was quite as un
pretentious as John Marshall was with his. Tradition
whispered of him that in his youth he might of ten have
been seen eating apple-pie and cracking jokes with
other young fellows at Sergeant Sam Hayden's tavern
in North Windsor ; and now that he was both rich
and famous, he passed along the streets of his native
town clad like a respectable farmer and greeting all
he met quite as his equals.1 He preferred to walk the
mile or more from his house to his church, lest he give
rise to envy in the poor. When some one told him
that he ought, since he could afford it, to buy a new
sleigh, of a better kind than the old " pung " sleigh he
used, his answer was, " Well, well, Mr. H , I sup
pose I might ; but if I should get a new sleigh per
haps Mr. H 's family would think they needed a

better one than they have ; and if you get one, some
other neighbor will want one ; everybody in town will
want a new sleigh." 2 Having bought a store and set

1 " We ought not/' he once said to his son, " to talk to people about
anything they do not understand, and if we feel our superiority to others,
not to display it in society." Ms. of Oliver Ellsworth, Jr.

2 Jackson Ms.

HOME 339

up two of his sons as merchants, he was not ashamed
to superintend the business down to its minutest
details, and he went about it with as much energy and
system as if he himself had never had any other
ambition than to be a merchant.1 Happily, there are
towns and villages in New England where equally
democratic social standards still prevail. In such a
community, the first citizen of the entire republic, if
he should happen to have been born there, would
stand, and doubtless prefer to stand, on a footing
of perfect equality with all his neighbors.

Ellsworth was quite probably the wealthiest man in
Windsor, as well as the most distinguished. Unlike
many successful public financiers, he had managed his
own affairs extremely well. One of his ventures in
business had been to build houses in Hartford to let

— a kind of investment not at all common in his day

— and it proved very successful. All his investments,
in fact, seem to have proved fortunate. Half a century
after his death, a competent authority declared that
his holdings were still excellent properties.

He had made Elmwood an attractive home.
Whether or not he himself built the entire house is
not certainly known. But he enlarged it, he filled it
with books and with the excellent furnishings affected
by the well-to-do of his times in New England, and he
planted about it thirteen elms, in honor of the thirteen
states that formed the original Union.2 For many
years, however, he had spent there but a small part of
every year, and these intervals were not vacations.

1 Jackson Ms.

2 A family tradition has it that the day South Carolina seceded lightning
blasted one of them.

340

OLIVER ELLSWORTH

His winter in England was probably the first real
vacation he had ever taken. He can hardly be said
to have lived at his own home until his national career
was finished. He and his wife were then elderly
people, and several of their children were grown.

Four sons and three daughters had survived infancy
and childhood. The eldest of the surviving sons, the
second to bear the name of his father, and who had
been his father's intimate companion on the mission
to France, died in the summer of 1805. The loss of
him greatly afflicted Ellsworth, deepened the gravity
which had become his habitual mood, and probably
weakened him in his own struggle with disease. He
lived, however, to see his other sons and daughters
well on the way to excellent lives. They all seem to
have inherited strong family traits of body and of
mind. One son, in particular, exhibited in very high
stations — as congressman, governor, and judge —
some of his father's best characteristics.1 Another
became the first commissioner of patents.

Ellsworth's domestic life, thoroughly New England
in all its standards and ideals, probably differed little
from that of his neighbors, or from that of his fathers
before him. He took his duties to his family quite as
he took his duties to the state. Provident and far-
sighted, he taught all his children to work, and insisted
that they should earn what they had for their pleasures.
But he was never stern or forbidding with them, for he
kept all his life the habit of playing with children for
his own relaxation, and he had the happy gift of mak
ing them companions. While attending the council

1Ms. notes ofW. Irving Vinal; Stiles's " Ancient Windsor," II, 219-
225.

HOME 341

at Hartford, he would spend hours in intense thought,
pondering out some decision, then suddenly, on
making up his mind, dismiss the subject completely,
and look about for some child to romp with. His own
children did not stand in awe of him. He drew them
pictures, talked with them, taught them, but left their
mother to correct them.

His habit of complete absorption in whatever matter
he might be engaged with had the effect of extreme
absent-mindedness. He would stand for hours at the
window of his study, his eyes fixed on a certain tree,
or he would pace the room or the hall, taking innu
merable pinches of snuff, utterly oblivious of every
thing but the subject of his thoughts. If at such
times a meal were announced, he would sit through
it in a silence which no one ventured to interrupt ; for
experience had taught his family that it was useless to
try to break the current of his thought. If, on the
other hand, he became much interested in conversa
tion while at table, he would go on talking, consuming
at the same time astounding quantities of food and
countless cups of tea, until, perhaps, his wife remon
strated.1 A young man who called one evening at
his request, finding him seated in deep meditation by
the fire, greeted the other members of the family, and
had spent half an hour conversing with them when
Ellsworth, suddenly awaking to the presence of a
visitor, welcomed him cordially and proceeded to pre
sent him to the rest of the circle as if he had just
arrived.2 Taking snuff was the inevitable accompani-

1 Ms. notes of Mr. W. Irving Vinal ; Jackson Ms. ; articles in New York
Evening Post, March-August, 1875, and July, 1876, by O. E. Wood;
article in Hartford Courant, April 5, 1880, by Rev. G. I. Wood. 2 Ibid.

342 OLIVER ELLSWORTH

ment of these long intellectual wrestlings, and with all
his will and prudence Ellsworth never overcame the
habit. Once, thinking to diminish the number of his
pinches, he deposited his snuff-box at the top of the
garret stairs, so that he would have to climb two flights
every time he used it. Victims of similar habits will
hardly need to be told that he very soon abandoned
this device and put his snuff-box back in his pocket.

Odd as his fits of abstraction sometimes made him,
he was an agreeable companion, fond of conversation,
and himself a good talker, with a great fund of obser
vation and anecdote. Roger Minott Sherman, who
studied law in his office, declared that when a subject
thoroughly aroused him he talked with extraordinary
brilliancy, pouring forth a perfect stream of terse,
aphoristic wisdom. Dr. Dwight put him in the first
rank as a conversationalist, and Dwight had a very
wide acquaintance among men of parts. He him
self, moreover, was one of the greatest talkers of his
time : a daughter of Roger Sherman used to say that
Dr. Dwight led the talk in every company in which
she ever saw him, — and she saw him often, — unless
Judge Ellsworth were present, but that then he be
came a listener. Democratic as he was, Ellsworth
also knew how to suit dress and manner to the com
pany and the occasion. He was by no means careless
of his appearance, and he wore well the stately dress
of his age, — always with a white ruffled shirt and silk
stockings and silver knee-buckles. He was neither
plebeian nor aristocrat. He had a social quality and
a code of manners not known in countries where any
kind of class system prevails, and doubtless commoner
in New England than in any other part of America.

HOME 343

After disease had seized him, softening his perhaps
too energetic manner, and age had wrought the mellow
ing effect it nearly always has with men of his strong
type, he would have commended, to any company in
the world, that new American standard of manners
and of manhood.

He died in his own home at Windsor, close to the
spot where he was born, on Nov. 26, 1807. The final
ravages of his disease had caused him excruciating
suffering, and at times deprived him of his reason.
But he held fast to his religious convictions, and bore
his agony with fortitude. A formal discourse, after
the fashion of the time, was pronounced at his funeral
in the church he had helped to build, and a crowd of
mourners followed him to his grave in the old burial
ground. It was universally considered that at the
time of his death he was the first citizen of Connecti
cut. Had not John Adams been alive, he would have
been the most distinguished survivor of the group of
statesmen whom New England had contributed to
the Revolution and the founding of the national
government.

His entire character seems now to belong to a past
phase of American life. His career has an effect of
iterating lessons that most Americans have learned in
their childhood. They are lessons which our national
experience has never falsified, but which, unhappily,
we sometimes find merely irksome, with their insist
ence on the elementary obligations of citizenship in
a republic. Because his character was so free from
intricacy, because the sources of his strength are so
plain, his life is a particularly good instance of the
truth that for the highest and most difficult tasks in

344 OLIVER ELLSWORTH

the service of a free people the really essential qualities
are such not uncommon qualities as energy, industry,
good sense, steadfastness, sagacity. These, rightly
devoted, he proved to be enough. Of them all, sa
gacity alone — practical wisdom, the judicial quality
in action — may perhaps be considered a special gift, a
natural endowment. He had always a quick sense of
the controlling factors in situations and problems, and
a keen instinct for the main chance. He knew when to
be cautious and when to be bold. He judged shrewdly
men, parties, causes, occasions. But the basis of this
accomplishment, and indeed of all his competence, was
that common sense which the people of his own New
England hold indispensable even to genius. The
furnishing of his mind was neither profuse nor rich,
but like the furnishing of the better New England
houses of his time. Many intellectual and emotional
experiences, now not uncommon among educated
Americans, he never knew. Many aspects of human
life he probably never contemplated. He had but
a slight sense of the beautiful in art and nature.
The formality of the age straitened him, as it did
Washington. The range of his tastes and sympa
thies, like that of most colonials, would to-day seem
narrow. But he lived a good life, and he did a man's
part in a very noble business.

He gave his whole strength to the hardest, most
prosaic work of an enterprise that has proved pro
digiously successful : to the details of the task of
building up, out of a few struggling, loosely joined
English colonies, a free federal nation, which within
a century has many times doubled its area and its
numbers and its wealth, and is now fast swelling into

HOME 345

a mighty empire. His handiwork passed integrally
into the structure of a political organism that endured,
and took on life, and grew, so that it is become, to
millions of human beings of all creeds and races, a
bond of union, a shelter from oppression, an oppor
tunity, an inspiration. Throwing himself in his
utterly absorbed way into the responsibilities which
confronted his generation, he helped to organize
security and prosperity for multitudes of future gen
erations. Having only the wisdom of his age, he
shared in one great error, in that he consented to
prolong the worst of our national offences. But in
the avoidance of errors he was, on the whole, singu
larly fortunate. Our debt to him — to this old-fash
ioned patriot, to this exemplar of hard-working states
manship — is real and enduring ; for we owe to him
essential parts of the political system under which we
live. His was not a career, nor were his the gifts or
the personality, to bring his name often to men's lips,
or keep his image in their eyes. But his hard-earned
reputation is secure. It rests on the same foundations
that uphold the strength and greatness of his country.

APPENDIX A

LETTER OF SHERMAN AND ELLSWORTH, MEMBERS
OF THE CONTINENTAL CONGRESS, TO THE GOV
ERNOR OF CONNECTICUT

" PHILADELPHIA March 20, 1 780.

" SIR : The President will transmit to your Excel
lency the resolutions of Congress for sinking the Con
tinental bills of credit and issuing new bills on the
credit of the several states, which we hope will be
approved by your Excellency and the Honorable
General Assembly.

" It was judged impracticable to carry on the war
with the present currency, and no other plan has been
proposed which appeared so likely to relieve us from
the embarrassments of a fluctuating currency, as that
which has been adopted by Congress. The deprecia
tion here has been at the rate of sixty for one, and in
the Southern states from forty to fifty. Neither the
scarcity, nor collection of taxes has had any effect to
appreciate or fix its value.

" 'Tis apprehended that the new bills will be effectu
ally secured against depreciation, from the smallness
of the quantity to be in circulation, the funds provided
for their redemption, the shortness of the period, and
the payments of an annual interest.

" The preparing them under the direction of the
Board of the Treasury, and the insurance of payment
by the United States in case any state shall by the
event of the war be rendered incapable of redeeming
them, will give them a currency throughout the United
States, and 'be a security against counterfeits.

347

348 APPENDIX A

"The emission of bills will not only introduce a
staple medium of trade, but will increase the Revenue
the amount of Five millions of Dollars equal to specie.
The sixth tenths of the bills to be emitted will enable
the states to purchase the specific supplies called for
by the Resolution of the 25th of February last, and
the remaining four tenths will supply the Continental
Treasury for paying the army, etc., while the states
are collecting the old bills by taxes, and although it is
recommended to collect in the old Continental bills
by monthly assessments, it may be expedient for the
States to allow new bills to be exchanged for old, that
the old may be drawn out of circulation as soon as
possible, to prevent further counterfeits ; and if there
should be scarcity of money people might be allowed
to pay their taxes in provisions delivered at the maga
zines, at the prices fixed by Congress.

" The new bills will be prepared and forwarded to
the States as soon as possible.

" We hear that the honorable Assembly have
ordered a new emission of Bills. We beg leave to
submit to your Excellency whether it will not be
expedient to stop the issue of them and adopt the
plan recommended by Congress.

" We should be sorry to have that fail of the good
effects expected from it, by any act, or omission on the
part of the States.

" The same proportions are kept up in the present
requisitions as in the Resolution of the yth of October
last, wherein Connecticut is rated much too high ; but
hope that won't prevent her compliance, at least to the
amount of her quota. Perhaps her quota in present
circumstances would be more than one eleventh part of
the whole.

APPENDIX A 349

" Repeated assurances have been given by Congress
that those States which do more than their proportion
shall be equitably compensated.

" There is a Report before Congress for fixing the
rate in specie, at which the loan office certificate will
be paid.

" It is reported that a new regulation of the Quarter-
Master's and other staff departments, will soon be
established on the most economical plan, whereby
much expense will be saved. They will be accommo
dated to the late regulation of making purchases by
the States. The prices of the specific articles to be
furnished by the States were estimated at about fifty
per cent, above the prices of 1774. They include all
expenses of purchasing and delivering them into the
magazines. The motives for adopting the measure
were, the rendering the supplies more certain and
equable among the States, and to prevent fraud and
abuses. And the aid of the States in procuring the
supplies was (thought ?) to be absolutely necessary.

" By the letter from General Lincoln of the 22d
ultimo we are informed that part of the British forces
that left New York, landed at St. John's and St. James'
Islands near Charleston, the numbers not ascertained ;
but he thinks there is a good prospect of making a
successful opposition to them.

" Mr. Laurens expected to sail for Europe the 26th
of February.

" With the greatest Respect your Excellency's
humble servants,

" ROGER SHERMAN,
"OLIVER ELLSWORTH.
" His Excellency Gov. Trumbull?

APPENDIX B

SPEECH OF ELLSWORTH IN THE CONNECTICUT
CONVENTION OF 1788

MR. PRESIDENT : This is a most important clause in
the Constitution ; and the gentlemen do well to offer
all the objections which they have against it. Through
the whole of this debate, I have attended to the ob
jections which have been made against this clause ;
and I think them all to be unfounded. The clause is
general ; it gives the general legislature " power to
lay and collect taxes, duties, imposts, and excises, to
pay the debts and provide for the common defence
and general welfare of the United States." There
are three objections against this clause — first, that
it is too extensive, as it extends to all the objects of
taxation ; secondly, that it is partial ; thirdly, that
Congress ought not to have power to lay taxes at
all.

The first objection is, that this clause extends to all
the objects of taxation. But though it does extend to
all, it does not extend to them exclusively. It does
not say that Congress shall have all these sources of
revenue, and the states none. All excepting the im
post shall lie open to the states. This state owes a
debt ; it must provide for the payment of it. So do
all the other states. This will not escape the atten
tion of Congress. When making calculations to raise
a revenue, they will bear this in mind. They will not

35°

APPENDIX B 351

take away that which is necessary for the states.
They are the head, and will take care that the mem
bers do not perish. The state debt, which now lies
heavy upon us, arose from the want of powers in the
federal system. Give the necessary powers to the
national government, and the state will not be again
necessitated to involve itself in debt for its defence in
war. It will lie upon the national government to
defend all the states, to defend all its members, from
hostile attacks. The United States will bear the
whole burden of war. It is necessary that the power
of the general legislature should extend to all the
objects of taxation, that government should be able to
command all the resources of the country ; because
no man can tell what our exigencies may be. Wars
have now become rather wars of the purse than of the
sword. Government must, therefore, be able to com
mand the whole power of the purse ; otherwise a
hostile nation may look into our Constitution, see
what resources are in the power of government, and
calculate to go a little beyond us ; thus they may
obtain a decided superiority over us, and reduce us to
the utmost distress. A government which can com
mand but half its resources is like a man with but one
arm to defend himself.

The second objection is, that the impost is not a
proper mode of taxation; that it is partial to the
Southern states. I confess I am mortified when I
find gentlemen supposing that their delegates in Con
vention were inattentive to their duty, and made a
sacrifice of the interests of their constituents. If,
however, the impost be a partial mode, this circum
stance, high as my opinion of it is, would weaken my

352 APPENDIX B

attachment to it ; for I abhor partiality. But I think
there are three special reasons why an impost is the
best way of raising a national revenue.

The first is, it is the most fruitful and easy way.
All nations have found it to be so. Direct taxation
can go but little way towards raising a revenue. To
raise money in this way, people must be provident ;
they must constantly be laying up money to answer
the demands of the collector. But you cannot make
people thus provident. If you do anything to the
purpose, you must come in when they are spending,
and take a part with them. This does not take away
the tools of a man's business, or the necessary utensils
of his family : it only comes in when he is taking his
pleasure, and feels generous ; when he is laying out a
shilling for superfluities, it takes twopence of it for
public use, and the remainder will do him as much
good as the whole. I will instance two facts which
show how easily and insensibly a revenue is raised by
indirect taxation. I suppose people in general are
not sensible that we pay a tax to the State of New
York. Yet it is an incontrovertible fact, that we, the
people of Connecticut, pay annually into the treasury
of New York more than fifty thousand dollars.
Another instance I will mention ; one of our common
river sloops pays in the West Indies a portage bill of
£60. This is a tax which foreigners lay upon us, and
we pay it ; for a duty laid upon our shipping, which
transports our produce to foreign markets, sinks the
price of our produce, and operates as an effectual tax
upon those who till the ground and bring the fruits of
it to market. All nations have seen the necessity and
propriety of raising a revenue by indirect taxation,

APPENDIX B 353

by duties upon articles of consumption. France
raises a revenue of twenty-four millions sterling per
annum ; and it is chiefly in this way. Fifty millions of
livres they raise upon the single article of salt. The
Swiss Cantons raise almost the whole of their revenue
upon salt. Those states purchase all the salt which
is to be used in the country : they sell it out to the
people at an advanced price ; the advance is the
revenue of the country. In England, the whole
public revenue is about twelve millions sterling per
annum. The land tax amounts to about two millions ;
the window, and some other taxes, to about two
millions more. The other eight millions are raised
upon articles of consumption. The whole standing
army of Great Britain could not enforce the collection
of this vast sum by direct taxation. In Holland, their
prodigious taxes, amounting to forty shillings for each
inhabitant, are levied chiefly upon articles of consump
tion. They excise everything, not even excepting
their houses of infamy.

The experiments, which have been made in our own
country, show the productive nature of indirect taxes.
The imports into the United States amount to a very
large sum. They will never be less, but will continue
to increase for centuries to come. As the population
of our country increases, the imports will necessarily
increase. They will increase because our citizens will
choose to be farmers, living independently on their
freeholds, rather than to be manufacturers, and work
for a groat a day. I find by calculation, that a general
impost of 5 per cent, would raise the sum of ,£245,000
per annum, deducting 8 per cent, for the charges of
collecting. A further sum might be deducted for

2A

354

APPENDIX B

smuggling — a business which is too well understood
among us, and which is looked upon in too favorable
a light. But this loss in the public revenue will be
overbalanced by an increase of importations. And a
further sum may be reckoned upon some articles which
will bear a higher duty than the one recommended by
Congress. Rum, instead of 4^. per gallon, may be set
higher without detriment to our health or morals. In
England, it pays a duty of 45-. 6d. the gallon. Now,
let us compare this source of revenue with our national
wants. The interest of the foreign debt is ,£130,000
lawful money, per annum. The expenses of the civil
list are ,£37,000. There are likewise further expenses
for maintaining the frontier posts, for the support of
those who have been disabled in the service of the
continent, and some other contingencies, amounting,
together with the civil list, to £ 130,000. This sum,
added to the interest of the foreign debt, will be
,£260,000. The consequence follows, that the avails
of the impost will pay the interest of the whole for
eign debt, and nearly satisfy those current national
expenses. But perhaps it will be said that these
paper calculations are overdone, and that the real
avails will fall far short. Let me point out, then,
what has actually been done. In only three of the
states, in Massachusetts, New York and Pennsyl
vania, .£160,000 or ,£180,000 per annum have been
raised by impost. From this fact, we may certainly
conclude that, if a general impost should be laid, it
would raise a greater sum than I have calculated. It
is a strong argument in favor of an impost, that the
collection of it will interfere less with the internal
police of the state than any other species of taxation.

APPENDIX B 355

It does not fill the country with revenue officers, but
is confined to the sea-coast, and is chiefly a water
operation. Another weighty reason in favor of this
branch of the revenue is, if we do not give it to Con
gress, the individual states will have it. It will give
some states an opportunity for oppressing others, and
destroy all harmony between them. If we would have
the states friendly to each other, let us take away this
bone of contention, and place it, as it ought in justice
to be placed, in the hands of the general government.
" But," says an honorable gentleman near me, " the
impost will be a partial tax ; the Southern states will
pay but little in comparison with the Northern." I
ask, What reason is there for this assertion ? Why,
says he, we live in a cold climate, and want warming-
Do not they live in a hot climate, and want quench
ing? Until you get as far south as the Carolinas,
there is no material difference in the quantity of
clothing which is worn. In Virginia, they have the
same coarse clothing that we have ; in Carolina, they
have a great deal of cold, raw, chilly weather ; even in
Georgia, the river Savannah has been crossed upon
the ice. And if they do not wear quite so great a
quantity of clothing, in those states as with us, yet
people of rank wear that which is of a much more
expensive kind. In these states, we manufacture one-
half of our clothing, and all our tools of husbandry ;
in those, they manufacture none, nor ever will. They
will not manufacture, because they find it much more
profitable to cultivate their lands, which are exceed
ingly fertile. Hence, they imporlt almost everything,
not excepting the carriages in which they ride, the
hoes with which they till the ground, and the boots

356 APPENDIX B

which they wear. If we doubt of the extent of their
importations, let us look at their exports. So exceed
ingly fertile and profitable are their lands, that a hun
dred large ships are every year loaded with rice and
indigo from the single port of Charleston. The rich
return of these cargoes of immense value will be all
subject to the impost Nothing is omitted ; a duty is
to be paid upon the blacks which they import. From
Virginia, their exports are valued at a million sterling
per annum ; the single article of tobacco amounts to
seven or eight hundred thousand. How does this
come back? Not in money; for the Virginians are
poor, to a proverb, in money. They anticipate their
crops ; they spend faster than they earn ; they are ever
in debt. Their rich exports return in eatables, in
drinkables, and in wearables. All these are subject
to the impost. In Maryland, their exports are as
great in proportion as those of Virginia. The im
ports and exports of the Southern states are quite
as great in proportion as those of the Northern.
Where, then, exists this partiality, which has been
objected? It exists nowhere but in the uninformed
mind.

But there is one objection, Mr. President, which is
broad enough to cover the whole subject. Says the
objector, Congress ought not to have power to raise
any money at all. Why ? Because they have the
power of the sword ; and if we give them the power
of the purse, they are despotic. But I ask, sir, if ever
there were a government without the power of the
sword and the purse ? This is not a new coined
phrase ; but it is misapplied ; it belongs to quite
another subject. It was brought into use in Great

APPENDIX B 357

Britain, where they have a king vested with heredi
tary power. Here, say they, it is dangerous to place
the power of the sword and the purse in the hands of
one man, who claims an authority independent of the
people; therefore we will have a Parliament. But
the king and Parliament together, the supreme power
of the nation, — they have the sword and the purse.
And they must have both ; else how could the country
be defended ? For the sword without the purse is of
no effect ; it is a sword in the scabbard. But does it
follow, because it is dangerous to give the power of
the sword and purse to an hereditary prince, who is
independent of the people, that therefore it is danger
ous to give it to the Parliament — to Congress, which
is your Parliament, to men appointed by yourselves,
and dependent upon yourselves ? This argument
amounts to this : you must cut a man in two in the
middle, to prevent his hurting himself.

But, says the honorable objector, if Congress levies
money, they must legislate. I admit it. Two legis
lative powers, says he, cannot legislate in the same
place. I ask, why can they not ? It is not enough
to say they cannot. I wish for some reason. I grant
that both cannot legislate upon the same object at
the same time, and carry into effect laws which are
contrary to each other. But the constitution excludes
everything of this kind. Each legislature has its
province ; their limits may be distinguished. If they
will run foul of each other ; if they will be trying who
has the hardest head, it cannot be helped. The road
is broad enough ; but if two men will jostle each other,
the fault is not in the road. Two several legislatures
have in fact existed and acted at the same time in the

358 APPENDIX B

same territory. It is in vain to say they cannot exist,
when they have actually done it. In the time of war,
we have an army. Who made the laws for the army ?
By whose authority were offenders tried and executed ?
Congress. By their authority a man was taken, tried,
condemned, and hanged, in this very city. He
belonged to the army ; he was a proper subject of
military law ; he deserted to the enemy, he deserved
his fate. Wherever the army was, in whatever state,
there Congress had complete legislative, judicial, and
executive powers. This very spot where we now are
is a city. It has complete legislative, judicial, and
executive powers ; it is a complete state in miniature.
Yet it breeds no confusion, it makes no schism.
The city has not eaten up the state, nor the state the
city. But if there be a new city, if it have not had
time to unfold its principles — I will instance the city
of New York, which is and long has been, an impor
tant part of the state — it has been found beneficial ;
its powers and privileges have not clashed with the
state. The city of London contains three or four
times as many inhabitants as the whole state of
Connecticut. It has extensive powers of government,
and yet it makes no interference with the general
government of the kingdom. This constitution
defines the extent of the powers of the general gov
ernment. If the general legislature should at any
time overleap their limits, the judicial department is
a constitutional check. If the United States go be
yond their powers, if they make a law which the con
stitution does not authorize, it is void, and the judicial
power, the national judges, who, to secure their im
partiality, are to be made independent, will declare it

APPENDIX B 359

to be void. On the other hand, if the states go
beyond their limits, if they make a law which is an
usurpation upon the general government, the law is
void, and upright, independent judges will declare it
to be so. Still, however, if the United States and the
individual states will quarrel, if they want to fight,
they may do it, and no frame of government can
possibly prevent it. It is sufficient for this constitu
tion, that, so far from laying them under a necessity
of contending, it provided every reasonable check
against it. But perhaps, at some time or other, there
will be a contest ; the states may rise against the
general government. If this do take place, if all the
states combine, if all oppose, the whole will not eat
up the members, but the measure which is opposed to
the sense of the people will prove abortive. In re
publics, it is a fundamental principle that the majority
govern, and that the minority comply with the general
voice. How contrary, then, to republican principles,
how humiliating, is our present situation ! A single
state can rise up, and put a veto upon the most im
portant public measures. We have seen this actually
take place. A single state has controlled the general
voice of the Union ; a minority, a very small minority,
has governed us. So far is this from being con
sistent with republican principles, that it is, in effect,
the worst species of monarchy.

Hence we see how necessary for the Union is a
coercive principle. No man pretends the contrary;
we all see and feel this necessity. The only question
is, Shall it be a coercion of law, or a coercion of arms?
There is no other possible alternative. Where will
those who oppose a coercion of law come out?

360 APPENDIX B

Where will they end? A necessary consequence
of their principles is a war of the states one against
the other. I am for coercion by law — that coercion
which acts only upon delinquent individuals. This
constitution does not attempt to coerce sovereign
bodies, states, in their political capacity. No coer
cion is applicable to such bodies, but that of an
armed force. If we should attempt to execute the
laws of the Union by sending an armed force against
a delinquent state, it would involve the good and
bad, the innocent and guilty, in the same calamity.

But this legal coercion singles out the guilty indi
vidual and punishes him for breaking the laws of the
Union. All men will see the reasonableness of this ;
they will acquiesce, and say, Let the guilty suffer.

How have the morals of the people been depraved
for the want of an efficient government, which might
establish justice and righteousness. For the want of
this, iniquity has come in upon us like an overflowing
flood. If we wish to prevent this alarming evil, if we
wish to protect the good citizen in his right, we must
lift up the standard of justice; we must establish a
national government, to be enforced by the equal
decisions of law, and the peaceable arm of the
magistrate.

INDEX

Active, case of the, 68-70, 188.

Adams, Andrew, 51.

Adams, John, 57, 210, 343 ; and matters
of state etiquette, 182 ; signs judi
ciary bill, 197 ; notes of Ellsworth's
speeches, 202 ; praise of Ellsworth
by, 231-232 ; Ellsworth administers
oath to, at inauguration as President,
242 ; weak points of, 264 ; lukewarm
loyalty of Federalists to, 264-265 ;
foreign affairs during presidency of,
266 ; sends Marshall, Pinckney, and
Gerry to France, 267-268 ; gains tem
porary popularity by stand regarding
French treatment of American en
voys, 268-269 ; growing feud of,
with Hamilton, 269-270, 272-273;
appoints Ellsworth, Davie, and Mur
ray envoys to France, 273 ; calls on
Ellsworth at Elmwood, 277-278 ;
Ellsworth visits, at Trenton, 278-
280 ; effect of Ellsworth's conven
tion on interests of, 311-312; feud
of, with Hamilton reaches its height,
314-315 ; acceptance of convention

by, 3i5»3r7-

Adams's Works cited, 202, 277, 278, 279,
290, 315.

Adams, Samuel, 57, 59.

Adams vs. Kellogg, case of, 332.

Addison, Judge, 270.

Agriculture, Ellsworth's efforts to pro
mote, 336-338.

Alien and Sedition acts, Ellsworth's
defence of, 265-266; provisions of,
270.

Allegiance, Ellsworth's ruling concern
ing perpetual, 257-262.

Allen, Ethan, 47.

Allyn, John, 26 n., 332.

" American Revolution," Trevelyan's,
82 n.

American Whig Society, debating club
at Princeton, 19.

Ames, Fisher, 209, 311; member of first
Congress (1789), 178; quoted, 195,
196 n., 281 ; oration by, defending
Jay treaty, 222 ; opinion of, of
Ellsworth, 230-231 ; letters of, 237,
335 ; on result of Ellsworth's mission
to France, 314.

Ames's Works cited, 195, 196, 209, 230,
281, 314.

"Ancient Windsor," Stiles's, cited, 9, 10,
n, 118.

Andrews, W. G., cited, 36 n.

Annapolis Convention, the, 117.

Appeals, Committee of, and Court of,
appointed by Continental Congress,
58-59, 65-66, 70-71.

Aristogiton, nom de plume, 259.

Army, question of payment of Continen
tal, 56, 63, 90, 102-103.

Arnold, Benedict, 47, 50, 60, 69, 83.

Articles of Confederation, before the
states, 56, 62, 64 ; put in force, 84 ;
matter of revenue under, 87 ff.

Assumption of state debts, question of,
204-207.

Avery, Waightstill, 1 6, 18.

Baldwin, Abraham, in Constitutional
Convention, 144.

Baldwin, Simeon, 171 n.

Bancroft, cited, 97, 103, 123, 127.

Bank, national, 207-208.

"Baptist Petition," 329-330; Ells
worth's report on, 330-331.

Bassett, Richard, 181.

Beardsley, E. E., cited, 36 n.

Bedford, Gunning, 1 8, 143, 144.

Bellamy, Rev. Dr. Joseph, 12-13.

Benjamin, Judah, III.

Benson, Egbert, 196.

362

INDEX

Bishop, W. W., 305 n.

Blair, John, 197.

Bland, Theodoric, 103.

Bliss, William, cited, 22.

Blue Laws of Connecticut, 109-111.

Bonaparte, Joseph, 286, 294, 297-298,
305, 308.

Bonaparte, Napoleon, American envoys
and, 283-284, 294 ff., 305-310.

Boutell, L. H., cited, 45, 123, 170.

Brackenridge, Hugh H., 18.

Brainerd vs. Fitch, case of, 332.

Brearly, delegate to Constitutional Con
vention, 139.

British-debts cases, 248-250.

Brother Jonathan, origin of sobriquet
of, 46.

Brown, messenger, 65, 78.

Brown vs. Barry, case of, 250-251.

Burke, ^Edanus, 196.

Burr, Aaron, student at Princeton, 18;
in second Congress (1791), 209;
opinion of Ellsworth, 225 ; Hamil
ton's opposition to, 314, 325 ; ties
Jefferson for presidency, 316.

Butler, Daniel, cited, 13.

Butler, Pierce, 185, 192.

Cabot, George, fellow-senator of Ells
worth, 209, 212, 215, 222, 227, 231 ;
letters of, 237; attitude of, during
Anglo-French complications, 273,
274, 275, 311 ; quoted on result of
Ellsworth's mission to France, 312 ;
Ellsworth visits, on return from
abroad, 326.

"Cabot," Lodge's, cited, 280, 294, 311,

3'5-
Calhoun, John C., praise of Ellsworth

by, 164-165, 176.
Capital, location of, 204-205.
Carson, H. L., cited, 71 n.
" Castle Rittenhouse," 70.
Censuses, question of, in Constitutional

Convention, 147.
Chase, Samuel, 239, 240, 241, 249, 257 ;

Jared Ingersoll incident, 243.
Church at Windsor, 328-329.
Clap, President Thomas, 13, 14, 15, 16.
Clark vs. Russell, case of, 250-251.

Cliosophic Society, the, 19-20.

College of New Jersey, in Ellsworth's
youth, 17-20; degree conferred on
Ellsworth by, 334.

"College of New Jersey," MacLean's,
cited, 17 n., 19.

Committee of Appeals, Continental Con
gress, 58-59, 65-66, 70-71.

Committee of the Pay Table, 48-50.

Committee to report a constitution,
chosen by Constitutional Conven
tion, 158.

Committees of Continental Congress,
55> 58, 59, 60, 67-71, 73-74, 79, 96,
97, 101, 102, 103.

Committees of first Senate (1789),
181-182.

Connecticut, effect of position of, on
historical importance, 5-6 ; in the
Revolution, 44-50 ; Western claims
of, 63-64 ; quota of, in establishment
of Continental treasury, 65 ; agree
ment of, concerning laws limiting
prices, 72 ; courts of, 108-109 ; at
titude of, toward common law,
109-111; Blue Laws of, 109-111;
delegates of, to Constitutional Con
vention, 118; the so-called "plan"
of, in Constitutional Convention,
123, 127; ratification of Constitu
tion by, discussed, 171-175.

Connecticut convention of 1788, 171-
175 ; Ellsworth's speech in, 350-360.

Connecticut Courant, speech of Ells
worth incorrectly reported in, 171-
172; Ellsworth's agricultural contri
butions to, 336-338.

Constitutional Convention, call for,
117 ; meeting of, 118 ; various plans
for improved mode of government,
121 ff.; politics in, 129; discussions
and debates, 130 ff. ; compromise ef
fected, 148-150; development of the
Constitution, 158 ff. ; return home of
Connecticut delegates, 168-170.

Consular service, acts bearing on, 201,
209.

Continental Congress, delegates to, from
Connecticut, 5 1 ; Ellsworth's irreg
ularity in attendance at, 53; char-

INDEX

363

acter of membership of, 54-55;
committees of, 55, 58, 59, 60, 67-71,
73-74, 79»96, 97, ioi» !02, 103; mat
ter of army supplies in, 56, 69, 73,
75, 85; notable members of, 57;
question of finances in, 62-63, 65,
72, 75-79, 84, 85, 87, 88, 89-97,
102-105; hesitation of, to establish
a federal court, 66-67; case °f the
Active before, 68-69; Court of Ap
peals in Cases of Capture appointed,
71; Hamilton and Madison potent
forces in, 86, 91-93; peace treaty
before, 98-102; mutinous troops
menace, 102; removal of, to Prince
ton, 103; end of Ellsworth's service
in, 103.

Court of Appeals in Cases of Capture,
appointment of, 71.

" Court of Assistants " in Connecticut, 108.

Courts, of Connecticut, 108-109; estab
lishment of federal, 184-199; mari
time authority of, 254-256. See
Superior Court.

Currency, question of, in Continental
Congress, 62,65, 72, 73» 75~77» 79, 84.

Cushing, William, 197, 249, 261 ; offered
Chief Justiceship, 239.

Dartmouth College, degree conferred on
Ellsworth by, 334.

Davie, William R., in Constitutional
Convention, 142, 152; member of
embassy to France, 273, 277, 278,
279, 280, 310, 313; Napoleon's im
pression of, 282.

Davis, J. C. Bancroft, cited, 67, 71 n.

Day, Thomas, court reporter, 331-332.

Deane, Silas, 60.

Debating clubs at Princeton, 19-20.

Debt, national, in first Congress, 204-
207.

Debts, suits dealing with, owed to
Britons, 248-250.

Degrees conferred on Ellsworth, 334.

Denning, William, 105 n.

Dexter, F. B., cited, 13, 14, 15.

Drayton, William Henry, 57.

Duties, question of, in first Congress,
202-204.

Dwight, Dr. Timothy, quoted, 36-37,

41, 342.
Dyer, Eliphalet, 51, 60, 64.

Edwards, Jonathan, 9, 13.

Edwards, Pierpont, 18, 191 n.; on Ells
worth's eloquence, 174-175.

Ellsworth, English hamlet, 322.

Ellsworth, Abigail (daughter of Oliver
Ellsworth), 235, 236.

Ellsworth, Abigail Wolcott( wife), 23-24.

Ellsworth, David (father), u, 12.

Ellsworth, David (brother), Oliver Ells
worth's letters to, 53 n., 54 n., 60-62,
74, 76, 213-214, 302-303.

Ellsworth, Henry, 301.

Ellsworth, John, of London, 322.

Ellsworth, Jonathan, 10-11.

Ellsworth, Josiah, 9-11.

Ellsworth, Martin, 235, 300, 301.

Ellsworth, Oliver, causes of neglect of,
3-5; family of, 9- 1 1, 322 ; boyhood
of, 12; at Yale, 13-17; at Prince
ton, 17-20 ; theological and legal
studies of, 20-23 '•> farming and law
practice of, 24—29 ; personal appear
ance of, 28 ; attains first successes,
30; member of General Assembly,
30-31 ; acquires reputation and
means, 32-34 ; oratory of, 35-37,
40, 142, 174-175* 33*-332; mem
ber of Committee of Pay Table, 48-
50 ; letters to Governor Trumbull,
49, 54 ; member of Council of
Safety, 50-51 ; chosen state's attor
ney, 51 ; elected to Continental Con
gress, 51 ; in Continental Congress,
53-106; member of committees of
Continental Congress, 58-59, 60, 67-
68, 70-71, 73, 97, 101, 102-103 5
style of letters of, 60-62, 237 ; dele
gate to Hartford convention (1779),
72 ; member of governor's council,
83 ; first reported speech of, in
Continental Congress, 91-92 ; mem
ber of Connecticut Superior Court,
108-116; in Constitutional Con
vention, 118-168; Major William
Pierce's impression of, 119-120;
"the government of the United

INDEX

States" named by, 128-129;
speeches of, in Constitutional Con
vention, 130-133, 136-143* 15 *» J54-
155, 159-164, 166-168; work of,
compared with Roger Sherman's,
150-151 ; opinions of, on slavery
and representation, 152-157 ; mem
ber of committee to report a consti
tution, 158 ; Calhoun's eulogy of,
164-165 ; work of, in Hartford con
vention to ratify Constitution, 171-
174 ; Webster's tribute to, 175-176 ;
elected to first Senate, 177 ; services
of, in Senate, 181-222 ; monumental
work of, on judiciary bill, 184-199;
letters of, to Judge Law, 188-191,
213 ; Rhode Island forced into the
Union by, 200-201 ; speech of, on
President's power of removal of
officers, 202 ; attitude of, on French
question, 212-214; interview of,
with Washington concerning mis
sion to England, 215-216 ; anxiety
over Jay treaty, 219-221 ; appointed
Chief Justice, 222, 238-240 ; John
Taylor's interview with, 228-230; de
cisions of, on Supreme Bench, 248-
265 ; ruling of, bearing on natural
ization, 257-265 ; attitude toward
Alien and Sedition acts, 265-266,
270-272 ; named member of em
bassy to France, 273 ; stay abroad,
282-326 ; effect of Napoleon on,
284 ; Napoleon's impression of,
284 ; talks with Talleyrand and
Volney, 285 ; visit of, to England,
310, 320-326 ; last years of, at
Windsor, 327-343 ; religious life
of, 327-329 ; report of, on so-called
Baptist Petition, 330-331 ; member
of state legislature, 331 ; edits agri
cultural column in Connecticut Cou-
rant, 336-338 ; children of, 340 ;
death of, 343.

Ellsworth, Oliver, Jr., n n., 12, 169,
235 ; secretary to embassy to France,
282, 308, 309, 310 ; French notes
by, 282-284, 301, 305-308 ; Ms. of,
cited, 334, 338 ; death of, 340.

Ellsworth, W. W., 175, 176 n., 301, 340.

Ellsworth family, origin of, 9, 322.

Elmwood, Washington visits Ellsworth's
home at, 232-234 ; John Adams at,
277-278; Ellsworth's last years at,
339-340.

England, relation of United States to
contest between France and, 21 1-
214 ; Jay's mission to, 215-222 ;
Ellsworth visits, 310, 321-326.

Erskine, Thomas, 321.

Evarts, Jeremiah, cited, 168.

Everett, Edward, 185.

" Farmer's Repository " column in Con
necticut Courant, 336—338.

Farrand, Max, cited, 7 n.

Few, Congressman, 181.

Finances, matter of, in Continental Con
gress, 62-63, 65, 72, 75-79, 84, 85,
87, 88, 89-97, 102-105.

Finley, President Samuel, 18.

Flanders, Henry, cited, 23, 26, 35, 43,
113, 171, 172, 186, 200, 213, 243,
250, 265, 270, 276, 279, 291, 305, 317,
318, 324, 326.

Fleurieu, M., 286, 309.

France, complications of United States
with, over Anglo-French contest,
211-212 ; popular sympathy with,
215 ; trouble with, caused by Jay
treaty, 267 ; Pinckney rejected as am
bassador by, 267; Marshall, Pinck
ney, and Gerry sent to, 276-268 ;
Adams's firm stand with, 268-269 ;
Ellsworth, Davie, and Murray ap
pointed envoys to, 273 ; arrival of
envoys in, 280-283 ; various attempts
at an understanding with, 284-298 ;
contrast between methods of Ameri
can ministers and those of, 292-293 ;
convention with, completed, 298-300;
Ellsworth's letters home from, 300-
304 ; festivitities in, on conclusion
of convention, 305-310; departure
of envoys from, 310 ; ratification of
convention with, by the United States,

317.

Franklin, Benjamin, 57 ; in Constitu
tional Convention, 134, 145.

Freneau, Philip, 18.

INDEX

365

Gallatin, Albert, 209.

Galvez, expedition of, against West

Florida, 80.

Garrow, English barrister, 321-322.
Genet, "Citizen," 211, 213, 288.
Gerry, Elbridge, 57, 146, 148, 161, 192;

member of embassy to France, 267-

268.
Gibbs, cited, 206, 211, 214, 216, 223,

227, 271, 277, 280, 303, 312, 313.
Gladstone, W. E., comments on remark

of, 58 n.

Glass vs. the Sloop Betsy, case of, 255.
Goodrich, Professor, cited, 26, 32 n.
Gore, Christopher, 230.
Gorham, delegate to Constitutional

Convention, 135, 157, 158.
Grant, Roswell, 15.
Green, Dr. Samuel A., 54 n.
Griswold, Governor Roger, 21.
Grose, Judge, 321, 322.
Gunn, Senator, 227, 314.

Hamilton, Alexander, in Continental
Congress, 86, 88-89, 9'f 92, 93, 96,
97, 98, 101, 102, 103, 105 ; Madison
complementary to, 93 ; in Constitu
tional Convention, 1 1 8, 122,125, 127-
128, 131, 133-134, 135 J contempt
of democracy of, 122, 183 ; Secre
tary of Treasury, 203-204 ; counsel
in Hylton vs. United States, 248 ;
many Federalists regard, as leader
rather than President Adams, 264-
265 ; feud of, with Adams, 269-270,
272, 278-279, 314 ; supports Ells
worth's convention with France, 314-
315 ; attitude of, after Republican
triumph (1800), 325.

Hamilton's Works cited, 314, 315, 316.

Hamilton, J. C, cited, 214, 216.

Hartford, convention held at, in 1779,
72 ; convention at, for ratification of
Constitution, 171—175.

Hart vs. Smith, case of, 112-115.

Hayden, Jabez H., cited, 24 n.

Hayden, Sergeant " Sam," 338.

Henry, John, 18, 19.

Henry, Patrick, 57, 170 n., 249, 273.

Hillhouse, James, 335.

Hoar, George Frisbie, cited, 151, 165,

223.

Hoar, Samuel, letter of, quoted, 236.
Holcomb, Elizabeth, 9.
Hollister, G. H., 41-42, 45 n.
Holton, Samuel, Ellsworth's letter to,

117 n.

Hopkinson, Judge Joseph, 227 n.
Hosmer, Titus, 33, 51, 71.
Hubbard, Fordyce M., cited, 284.
Hunt, Gaillard, 228, 230 n.; citations of,

see " Madison's Writings."
Huntington, Benjamin, 52, 103.
Huntington, Samuel, 51, 52, 103, 170.
Hutchins, Mrs. Waldo, 237 n., 302 n.
Hylton vs. United States, case of, 248.

Ingersoll, Charles Jared, 243.
Ingersoll, Jared, 44-45.
Iredell, James, 239-240, 249, 251, 254.
Irvine vs. Sim's Lessee, case of, 251.

Jackson, Representative, 196.

Jackson, Rev. Abner, cited, 9, 19, 30,
171, 237, 245, 284, 302, 308, 329,
338, 339, 34i ; quoted, 26 n.

Jameson, J. Franklin, cited, 67, 71 n., 168.

Jay, John, 57 ; named first Chief Justice,
197 ; mission of, to England, 211-
212, 215-222; governor of New
York, 222; opinion of, concerning
Ellsworth, 230 ; utterances about
Supreme Court, 241.

Jay treaty, 217-222, 296, 299, 300, 319;
difficulties with France over, 267,
287-289, 293, 296 ; Ellsworth's con
vention with France compared with,
319-320.

Jefferson, Thomas, 57, 183 ; Ellsworth's
severe judgment of, 324-325.

Jennings vs. the Brig Perseverance,
case of, 253.

Johnson, William Samuel, 33, 35-36,
1 1 8, 135, 157 ; elected senator from
Connecticut, 177 ; becomes presi
dent of Columbia College, 177; on
Ellsworth as a senator, 223.

Johnston, Alexander, opinion of, con
cerning Connecticut, 6-7 ; on Con
necticut Blue Laws, 109.

366

INDEX

Journal de Paris, quoted, 306 n. ; cited,
308 n., 309.

Journals of Continental Congress, com
ments on, 58; Madison's notes sup
plement, 86.

Judiciary bill, Ellsworth's, 181, 184-
199.

Kenyon, Lord, Ellsworth and, 321.

King, C. R., cited, 131, 136, 141, 217,
275.

King, Rufus, in Constitutional Conven
tion, 143, 144, 148; senator from
New York, 179, 185 n., 209, 215,
217, 222, 274; John Taylor's inter
view with, 228-230; minister to
England, 231, 316-317; Ellsworth's
letters to, quoted, 317-319, 323,
325-326, 328.

Kirby, Ephraim, 111-112, 113.

Langdon, Senator, 209-210.

Lansing, delegate to Constitutional Con
vention, 118, 134, 136, 149.

Laurens, Henry, 57.

La Vengeance, case of, 255-256.

Law, English jurist, 321.

Law, Judge Richard, 257; Ellsworth's
letters to, 188-191, 213.

Lawrence, Representative, 196.

Laws for limiting prices, 72.

Leavitt, Jemima, II, 12.

Lee, Arthur, 60.

Lee, Charles, 56.

Lee, Henry, 18.

Lee, Richard Henry, in Constitutional
Convention, 57, 59 ; in first Con
gress, 178; and judiciary bill, 186,
192.

" Letters of a Federalist Farmer," R.
H. Lee's, 192.

Liancourt, Due de, 244.

Libraries, beginning of history of Con
gressional and State Department, 97.

Lincoln, Abraham, Ellsworth's style
compared with that of, 264.

Linn, John Blair, quoted, 225 n.

Livermore, Representative, 195, 196.

" Lives and Times of the Chief Jus
tices," etc., cited, 23 n.

Lodge, H. C., cited, 16, 151, 214, 216,

273, 275, 280, 294,311.
London, Ellsworth in, 321.
Lusk, Moses, IIO-IH.

McDonough vs. Delancey, case of,

255-
Maclay, character of, 179-180; diary of,

180-181; quoted on judiciary bill,

I93~I95J °n Ellsworth, 224, 225.
Maclay's Journal cited, 179, 180, 182,

183, 185, 192, 193, 194, 195, 200,

2OI, 2O3, 205, 2O8, 212.

McRee, Griffith J., cited, 239, 248, 251,

253.

Madison, James, at Princeton, 18, 19 ;
in Continental Congress, 74, 84, 86,
89, 90, 101 ; notes of, in Continental
Congress, 86 ; talents of, comple
mentary to Hamilton's genius, 93 ;
misspelling of New England proper
names by, 94 n. ; in Constitutional
Convention, 122, 128, 133, 134, 135,
141, 145, 147, 167 ; notes on Consti
tutional Convention cited, 126, 129,
167-168; in first House of Repre
sentatives, 179, 183-184, 196; quoted
concerning judiciary bill, 185 ; first
tariff bill originates with, 202 ; quoted
concerning Ellsworth, 226 ; John
Taylor's report to, on King and
Ellsworth interview, 228-230.

"Madison's Writings" cited, 17, 19, 76,
78, 89, 92, 93, 94, 97, 98, 99, 101,.
102, 103, 118, 136, 141, 226; quoted,

93. 94, 98, 99-

Marshall, John, 2, 69, 247-248, 261, 304 ;
argument of, in British-debts case,
249 ; comparison of Ellsworth and,
263-264 ; member of embassy to
France, 267-268 ; advises ratifica
tion of Ellsworth's convention with
France, 315.

Martin, Luther, 18, 20, 129, 134, 147,
149, 153, 192; cited, 126, 144, 147.

Mary Ford decision, 255.

Maryland, importance of delay of, in
subscribing to Articles of Confedera
tion, 64.

Mason, George, 146, 154, 155, 159, 163,

INDEX

367

165, 167, 192; quoted regarding
Constitutional Convention, 169.

Military establishment, the, 201, 210.

Mills, W. Jay, cited, 20.

Mitchell, Stephen Mix, 178 n.

Monmouth, battle of, 56.

Monroe, James, 216, 266-267, 289.

Moodie vs. the Ship Phoebe Ann, case
of, 256.

Morris, Gouverneur, in Continental Con
gress, 57, 6 1 ; in Constitutional Con
vention, 122, 145, 147, 148, 152, 164;
on result of Ellsworth's mission to
France, 315-316; inveighs against
the Union, 335.

Morris, Robert, member of Continental
Congress, 57 ; investigation of army
purchases of, 59 ; Continental finan
ces and, 76, 79, 84, 87, 102, 105 ;
letter from, to Franklin, 87-88 ; no
speech credited to, in Constitutional
Convention, 129; in first Congress
(1789), 179, 185 n.

Morrison, John H., cited, 230 n.

Murray, William vans, 272, 273, 286,
3°9» 3!3-

Napoleon. See Bonaparte.
Naturalization, question of, in United

States courts, 257-262.
Navigation acts, discussion concerning,

in Constitutional Convention, 153-

157.

Negro slaves and estimation of popula
tion, 147, 152-153.

New Jersey, Washington's requisitions
on, 73, 75.

New York, Congress meets at (1789),
178.

New York resolutions, the, 88, 97.

Nicholas, George, 259-260.

Offices, President's power of removal

from, 20 1 -202.
Olmstead, Gideon, 68, 188.
Otis, H. G., 45 ; on result of Ellsworth's

mission to France, 314.

Parker, Alton B., 260 n.
Parker, Moses, no.

" Particular Court " in Connecticut,
1 08.

Paterson, William, 18, 20, 126, 148;
plan of, in Constitutional Conven
tion, 123-124, 127-128, 130; in first
Senate (1789), 181 ; associate jus
tice of Supreme Court, 241, 249,

253.

Pay Table, Committee of the, 48-50.

Pickering, Timothy, 264, 273, 274, 275,
278, 281, 289, 304, 31!, 319, 335;
letters from Ellsworth to, 266, 270-
271, 276, 278, 290, 303 n. ; on result
of Ellsworth's mission to France, 313.

Pierce, Major William, quoted, 118-120.

Pinckney, Charles, 144-145, 157.

Pinckney, Charles Cotesworth, 144-145,
147, 155, 157, 266-267.

Plain Speaking Club, the, 19.

"Plan of Connecticut," the so-called,
123, 127-128.

Porter, J. A., cited, 20.

Prices, limitation of, by law, 72.

Princeton, American victory at, 56 ;
Continental Congress temporarily at,
103 ; Ellsworth's relations with the
college at, see College of New
Jersey.

Privateering, matter of, in Continental
Congress, 66-69, 7°~7l '•> jurisdiction
of courts in cases concerning, 254-
256 ; treated by Ellsworth embassy
to France, 287-289, 291, 293-297,
297» 299-300, 317.

Putnam, Israel, 45, 46, 47, 50.

Randolph, Edmund, in Constitutional
Convention, 121, 148, 158, 192;
Secretary of State, 217; dealings
with French minister, 219.

Read, George, 122.

Reeve, Tapping, 18, 20.

Rex vs. Waddington, case of, 321.

Rhode Island forced to join the Union,

200.

Rittenhouse, David, 69.
Roederer, M., 286, 306 n., 308-310.
Roosevelt, Theodore, 155, 260 n.
Root, Jesse, 21, 60, 64, 108, 113.
Rowland, Miss, cited, 169.

368

INDEX

Rush, Benjamin, 18.

Rutledge, John, 57, 85, 86, 89, 91, 94,
98, 125, 153, 158, 192; becomes
associate justice of Supreme Court,
197; attacks Jay Treaty, 218-219,
238 ; named Chief Justice but not
confirmed by Senate, 238-239.

Salaries of government officials, 2OI.

Scott, English jurist, 321.

Sedgwick, Theodore, 196, 314.

Sherman, Roger, 5,45; appointed dele
gate to Continental Congress, 51;
Ellsworth claims, as his model, 57;
reports of, with Ellsworth, to Gov
ernor Trumbull, 60, 67, 75, 76,
78, 83-84; member of Connecti
cut Superior Court, 108; elected
to Constitutional Convention, 118;
William Pierce's description of, 119;
services in the Convention, 120, 123,
125, 126, 127, 128, 139, 150-151,

152, 161; work of, in the Conven
tion, compared with Ellsworth's,
150-151; represents Connecticut in
the House and in Senate, 177-178,
196; death of, 178.

"Sherman," Boutell's, 45, 123, 170.
Sherman, Roger Minott, 342.
Sigourney, Mrs., cited, 30, 326.
Slavery, discussions regarding, in Con
stitutional Convention, 147, 152-

153, 153-157.
Smalley, Dr. John, 21.
Smith, Jeremiah, 230.
Smith, Samuel Stanhope, 19.
Smith, William, 196.

Snuff-box presented to Ellsworth by Na
poleon Bonaparte, 225.

Snuff-taking, Ellsworth's habit of, 225,
305, 340-341.

Spaniards on Gulf Coast during Revo
lution, 80.

Stiles, Henry R., cited, 9, 10, n, 118.

Stiles, President Ezra, 168.

Stone, Congressman, 196.

Story, Judge, 261.

Strong, Caleb, 148, 181, 194, 209, 215,
222, 231.

Stuart, Mrs. Geneve, cited, 17.

Sumner, W. G., cited, 87.

Sumter, Thomas, 196.

Superior Court of Connecticut, 108.

Supplies, matter of, in Continental
Congress, 56, 69, 73, 75, 85.

Supreme Court of United States, Com
mittee of Appeals a forerunner of,
58-59; Ellsworth's appointment to
Chief Justiceship of, 222, 238-240;
early character of, 241 ; work-- of,
244-245; noteworthy cases before,
247-267. See also Judiciary bill.

Susquehanna lands, the, 63, 66.

Taintor, G. E., 60 n., 300 n., 302 n.

Taintor, Mrs. Henry E., 234 n.

Talleyrand, American envoys and, 267,
268, 272, 282, 285, 309.

Tariff, first bill on, 202-204.

Taylor, John, 227-230.

Teft, Mr., of Savannah, 302 n.

Thiers, cited, 305, 307, 320.

Thompson, R. E., 328.

Titles, Congressional committee on,
182.

Tracy, Uriah, 243 n.

Trenton, American victory at, 56; seat
of national government temporarily
at, 277; meeting of statesmen at,
278-280.

Trevelyan, Sir George Otto, cited, 82 n.

Trumbull, Dr. John, quoted, 35.

Trumbull, Jonathan, governor of Con
necticut, 46, 47, 48, 50, 59; Ells
worth's letters to, 49, 54 ; letters to,
from delegates to Continental Con
gress, 54-55, 57, 60, 62, 64, 73, 75,
76-77, 78, 79-82, 83, 96, 99, 101,
102, 103-104, 347-349; charge of
disloyalty against, 85-86.

Trumbull, Jonathan (second), 178 n.,
332.

Trumbull, Colonel Joseph, 59, 65.

Trumbull, J. Hammond, cited, 21.

Trumbull Papers cited, 62, 64, 73, 75,
76, 78, 80, 84, 96, 99, 101, 103, 108.

Tucker, Congressman, 196.

Turner vs. the President, Directors, and
Company of the Bank of North
America, case of, 254.

INDEX

369

United States vs. Henfield, 258.
United States vs. Hudson, 260 n.
United States vs. Peters, 69.
"Universities and their Sons" cited, 17,
19, 20.

Van Santvoord, George, cited, 30, 55,
84, no, 112, 113, 116, 258,311,332.

Verplanck, Gulian C, 37 n.

Vinal, W. Irving, 9, 1 1, 237 n., 302 n.,
328, 333> 341.

Virginia, debts owed to Britons in, 248-
250.

Virginia plan, the, 121 ff.

Volney, Ellsworth and, 285.

Wadsworth, Colonel, 6, 174.

Walker, Williston, cited, 328.

Ware vs. Hylton, case of, 248-250.

Washington, Bushrod, 241.

Washington, George, 2, 4, 32, 41, 56,
57 ; letter to Continental Congress
regarding establishment of a prize
court, 66-67 > letter to Hamilton on
Constitutional Convention, 146-147 ;
opinion of work of Constitutional
Convention, 169 ; Ellsworth's re
mark on small part taken by, in
Constitutional Convention, 169—170;
inauguration of, 1 79 ; and matters of
state etiquette, 183; signs judiciary
bill, 197 ; and the Jay mission to Eng
land, 215-219 ; Ellsworth's rela
tions with, 232-233 ; New England
homes distinguished by visit of, 233.

Washington's Diary cited, 232.

Washington's Writings cited, 66,67, 146.

W7ebster, Daniel, on Ellsworth, 175-176.

Webster, Noah, 32-33, 116, 336.

" Webster (Noah)," Scudder's, cited, 32.

Well Meaning Club, the, 19.

Western Reserve lands, 63-64, 97.

Wheaton vs. Peters, case of, 260 n.

Whiskey Rebellion, 204, 210.

Williams, Isaac, ruling in case of, 257-

259-

Wilson, James, delegate to Continental
Congress, 89, 91, 94, 97 ; figures in
Constitutional Convention, 124, 125,
127, 133, 139, 145, 147, 158, 166 n.;

26

associate justice of Supreme Court,
197, 239, 249, 252, 254 ; bankruptcy
and death of, 240.

Wilson, Woodrow, cited, 17, 18.

Wilson vs. Daniel, case of, 253-254.

Windsor, Conn., description of, 8;
family names in, 8-9 ; Washington's
visit to, 232-234 ; President Adams
at, 277-278; Ellsworth's arrival at,
from abroad, 326 ; church society
and meeting-house in, 328-329.

Wingate, Congressman, 181.

Wiscart vs. Dauchy, case of, 252-253.

Witherspoon, John, 17-18, 57.

Wolcott, Abigail (Mrs. Oliver Ells
worth), 23-24.

Wolcott, Erastus, 118.

Wolcott, Frederic, 206.

Wolcott, Oliver, delegate to Continental
Congress, 5 1 , 94 ; Ellsworth's letters

to, IOO, IO2, 213-214, 2I6-2I7, 222-

223 ; governor of Connecticut, 222.

Wolcott, Oliver, Jr., auditor of Treasury,
206 ; quoted, 206-267 > Ellsworth's
letters to, 210-211, 220-221, 303-
304 ; Secretary of Treasury, 219 ;
attitude of, in Anglo-French compli
cations, 264-265, 273, 274, 31 1 ;
on result of Ellsworth's mission to
France, 312-313.

Wolcott, William, 23-24.

Wolcott family, 8, 9, 23-24.

Wood, Rev. G. I., cited, 341.

Wood, Joseph, 9 n., 32, 333.

Wood, O. E., cited, 216, 341.

Wood Ms. cited, 19, 22, 23, 25, 26, 30,
33, loo, 171, 175, 213, 243, 245, 265,
270, 284, 285, 317, 335.

Wyckoff, Mrs. Alice L., cited, 17.

Yale, Ellsworth's student career at, 13-
17 ; Ellsworth a governor of, 333-
334 ; degree conferred on Ellsworth

by, 334-

"Yale Biographies and Annals," Dex-
ter's, cited, 13, 14, 15.

Yates, delegate to Constitutional Con
vention, 118, 149; cited, 130, 131,
136, 142, 143.

Young, Arthur, 336.

BISMARCK: Some Secret Pages of his
History

Being a Diary kept by DR. MORITZ BUSCH during twenty-five
years' official and private intercourse with the great chancellor.
With portraits.

Two volumes Cloth 8vo $10.00 net

" Whether the great German Chancellor left memoirs is uncertain ; he began
them, but whether he completed them is unknown; even if such documents exist
in manuscript, it is extremely doubtful whether they will see the light, at least
for some years to come. Meanwhile we have a substitute for them in the two
capacious volumes published by The Macmillan Company. . . . The Prince,
indeed, may be said to have been a collaborateur with Dr. Busch in the prepara
tion of the earliest manuscript for the press." — New York Sun.

THE LIFE OF WILLIAM EWART
GLADSTONE

By the RT. HON. JOHN MORLEY, M.P., D.C.L., LL.D, author
of "Edmund Burke," "On Compromise," etc., etc. With
numerous photogravure portraits and other illustrations.

Three volumes 8vo $10.50 net per set

" Gladstone has certainly found his real biographer in Mr. Morley, his sup
porter in English politics and public affairs from first to last. All available
sources of information, private and public, have been drawn upon in the making
of these three volumes, which form the ' official ' life of the statesman, never to be
superseded, however opinions may hereafter diverge from facts."

— New York Mail and Express.

" That, as a whole, the work is extremely interesting goes without saying.
It is written with sympathy, insight, and knowledge." — New York Herald,

THE LIFE OF NAPOLEON L Including

New Materials from the British Official Records

By J. H. ROSE, M.A., author of "The Revolutionary and
Napoleonic Era, 1789-1815," etc. With many illustrations.
Two volumes Cloth 8vo $4.00 net per set

" Mr. Rose's book shows the traditional English feeling toward Napoleon.
Indeed, this traditional feeling is analyzed by him, and he arrives at very much
the same conclusion as did Wellington, who is said to have declared that ' Napo
leon was not a gentleman.' Mr. Rose thinks that English interest in him will
always be pathological in its nature; that he was morally and intellectually, too,
a monster, such as probably the world will never see again, and never ought to
see." — New York Commercial Advertiser.

THE MACMILLAN COMPANY

64-^6 FIFTH AVENUE, NEW YORK

THOMAS NAST: His Period and his
Pictures

By ALBERT BIGELOW PAINE, author of "The Great White
Way," etc. Illustrated from hundreds of Nast's celebrated
cartoons. Cloth 8vo $5.00 net

" Nast's age was my age — how I realize it as I view the long pageant of his
successive pictorial campaigns! But although I watched each series in its time
and turn, it is only now — when you have brought their records together — that
I or any one else can measure their importance, can realize how Nast's double
gift of art and epigram made history and was history itself. Your copious
memorial is not only a richer book than I supposed you had in hand, but it is
indispensable to the story of this Republic from the Civil War to the end of the
nineteenth century." — EDMUND CLARENCE STEDMAN.

THEODORE ROOSEVELT: The Citizen

By JACOB A. Rus, author of " The Making of an American,"
etc., etc. With many illustrations.

Cloth 8vo $2.00 net

" It is written from the heart. It breathes sincerity and conviction in every
line. It emphasizes not so much the forces and influences which lifted Theodore
Roosevelt to the presidency, as the qualities that make his personality and
underlie his character. It gives a vivid impression of his mental and moral self
— his point of view, and the ideals on which his public career has been based. . . .
It is a refreshing and stimulating picture —one that will carry encouragement to
every reader whose heart is enlisted in the struggle to exorcise corruption and
oppression from our body politic." — New York Tribune.

ROBERT MORRIS: Patriot and Financier

By ELLIS PAXSON OBERHOLTZER, Ph.D. With portraits, fac
similes, and other illustrations. Cloth 8vo $3.00 net

" Ellis Paxson Oberholtzer's ' Robert Morris, Patriot and Financier,' is a
fascinating history of this great life, so rich in its contributions to the cause of
independence, so pathetic in its inglorious end. Without Robert Morris, Wash
ington could not have saved the desperate cause of the colonies. His courage,
boundless resources, and firmness in times of public vacillation, were the salva
tion of the revolutionary army. A vivid picture of the difficulties under which
he labored is presented by Mr. Oberholtzer by selections from Morris's diaries and
letters showing the incessant calls for money from creditors of the government
and from the army. . . . The historian has done his work well, and new light
is thrown on this chapter in revolutionary annals by his researches."

— The World To-day.

THE MACMILLAN COMPANY

64-66 FIFTH AVENUE, NEW YORK

THIS BOOK IS DUE ON THE LAST DATE
STAMPED BELOW

AN INITIAL FINE OF 25 CENTS

WILL BE ASSESSED FOR FAILURE TO RETURN THIS BOOK
ON THE DATE DUE. THE PENALTY WILL INCREASE TO
50 CENTS ON THE FOURTH DAY AND TO $1.00 ON THE
SEVENTH DAY OVERDUE.

>

Book Slip-20m-9,'60(B3010s4)458

[

12S6S7

Call Number:

E302.6
EU
B7

Brown, W.O.
Life of Oliver

in 1 ~™,_4-V.

B

E4

B7

198657