It is a long time since any serious student of history has proceeded on the assumption that whenever our forefathers wanted to shape or re-shape their governments, local or national, they sat down and drawing forward a sheet of paper said, “Lo, now we will make ourselves a constitution.” Our whole conception of history is nowadays shot through with theories of evolution, of the adoption and incorporation of the old into the new. Yet the process by which the institutions of the past have been wrought into those of the present is often neglected; a general statement, an indistinct impression is frequently allowed to stand unverified for lack of consultation of easily available records. For instance, no student of our constitutional history today lets Gladstone’s remark as to the genesis of our federal Constitution go unchallenged; it is accepted as a fact that that instrument is at once a summary and the culmination of colonial and confederate legislative experience. Moreover, the part that the ineffective Articles of Confederation played in the formation of our federal Constitution, negative as it was, has been clearly and incontrovertibly set forth.¹ Yet it has been said with truth that the history of this earlier constitution—the Articles of Confederation—has been almost neglected, so completely has it been “overshadowed” by the work of the convention of 1787.² Nevertheless, every student of the period of the American Revolution knows the

“Dickinson draft” and the “Franklin draft” of 1776 and 1775—drafts of schemes for union of the colonies, though the specific relation each bears to the final articles has not been subjected to critical examination. But where did Franklin and Dickinson get their ideas? Was constitution-making so thoroughly in the air that one made plans for confederations as one wrote letters? Nor was this paper of 1775 Franklin’s first attempt at constitution-making; he had already played a large part in the Albany congress and in preparing the Albany plan of union. Is there any connection between these two plans of his? When did he first become interested in schemes for union? These are some of the questions which occupy the mind as soon as one begins to work backward from the Constitution of 1787. It is the purpose of this paper to show as far as possible Franklin’s work as a constitution-maker, and especially the genesis of his plan of 1775 for inter-colonial union.³

     Benjamin Franklin was born in Boston in 1706, and lived in New England until 1723, when he became a resident of Philadelphia. Practical man of affairs and good organizer as he was, with public works in the city of his adoption to attest his skill as an administrator, it was natural that when necessity for concerted action among the colonies arose he should set his versatile mind to concocting some scheme for inter-colonial union. The occasion arose in 1750, over the question of fighting off the French and the Indians. Ever since the first settlements had been planted in America, the Indians had been intermittently a menace, but about 1690 to that danger was added the more concrete terror of French leadership combined with Indian aggressions. Between 1690 and 1748 various plans for colonial union against French and Indian enemies had been suggested, beginning with the scheme of Jacob Leisler and William Penn, and continuing with such projects as those of Robert Livingston and Daniel Coxe.⁴ None

of these plans ever got beyond the stage of presentation, but when in 1748 it was evident that the treaty of peace just signed was in reality but an armed truce between England and France, and that warfare was likely to begin again at any moment, the interest in a defensive alliance among the colonies, particularly to guard the long lines of frontier, was again aroused, and this time to some purpose. Among those whose interest went so far as to result in something really constructive was Benjamin Franklin. In a letter from Philadelphia, bearing date of March 20, 1750, he wrote to his friend Mr. James Parker, advocating such a union, and expressing the opinion that the initiative in such a project must come from the colonies themselves and not from the parliament in London.⁵ He thus concludes his letter: “Were there a general council form’d by all the colonies, and a general governor appointed by the crown to preside in that council, or in some manner to concur with and confirm their acts, and take care of the execution, everything relating to Indian affairs and the defence of the colonies might be properly put under their management. Each colony should be represented by as many members as it pays sums of hundred pounds in the common treasury for the common expense; which treasury would perhaps be best and most equitably supply’d by an equal excise on strong liquors in all the colonies, the produce never to be apply’d to the private use of any colony, but to the general service. Perhaps if the council were to meet successively at the capitals of the several colonies, they might thereby become better acquainted with the circumstances, interests, strength, or weakness, &c., of all, and thence be able to judge better of measures proposed from time to time; at least it might be more satisfactory to the colonies if this were proposed as a part of the scheme, for a preference might create jealousy and dislike.”

     Where did Franklin get his ideas for this rough outline? The English government had more than once suggested a governor

general for all the colonies, and Penn and Coxe had contemplated the inclusion in their plans (already alluded to) of such an official.⁶ Penn and Coxe had also suggested a council made up of representatives from all the colonies; but that council, with its duties and its rotation in the place of meeting are found together in quite another place—the New England confederation of 1643. To this confederation, which furnishes the only real achievement in union during almost the whole of our colonial history, one must look for the genesis of many of Franklin’s ideas. In 1643 the four colonies of Massachusetts Bay, Plymouth, Connecticut and New Haven had adopted articles of confederation “for mutual help and strength in all our future concernments. . . .;” entering “into a firm and perpetual league of friendship and unity for offense and defense, . . . and for their mutual safety and welfare.” After what earlier confederation this plan of 1643 was patterned is not known; but it has been suggested that the union of Utrecht afforded the prototype. It would not be unreasonable to suppose that the residence of the Pilgrims in Holland had rendered them especially familiar with the Dutch confederation, and that when the occasion arose for union, they would turn to that alliance for their example.⁷ The New England confederation had a varied existence; yet scarcely a year passed without at least one meeting of representatives under its aegis, until with a new imperial dispensation it went down in 1685 into its grave. But the memory of this first intercolonial union persisted throughout the colonial period.

     To this document one must look to find the combination of a plan for a representative council, its duties, and the rotation of its place of meeting, all of which Franklin listed in his letter to Parker

as points to be considered in forming an intercolonial union. What was new in this tentative scheme of Franklin’s was the idea of representation proportional to the amount of contributed funds, and the idea of a liquor tax. But the plan is evidently only a basis for discussion, and one must not lay stress on its resemblance to any earlier schemes. What makes it important is that Franklin used it, somewhat enlarged, as the basis of the “Short Hints” which he carried to the Albany congress in 1754.

     Stirred by the insistent and far-reaching plans of France for controlling the heart of the continent, the crown in 1753 through a circular sent by the secretary of state, the Earl of Holdernesse, to all the colonial governors; and through a letter sent to several colonial governors by the lords of trade, proposed an intercolonial convention. This convention was asked to consider the situation, and to cement the friendly relations existing with the Five Nations; and also “to enter into articles of union and confederation with each other for the mutual defence of His Majesty’s subjects and interests in North America, as well in time of peace as war.”⁸ Thus the initiative for union in 1753 may be said to have come from the British government, and was transmitted to the various assemblies by the colonial governors. There does not seem to have been any general enthusiasm for the proposal; but seven colonies—Pennsylvania, New Hampshire, Maryland, Connecticut, Rhode Island, New York, and Massachusetts, chose commissioners. Those for Pennsylvania were Benjamin Franklin, Rev. Richard Peters, John Penn, and Isaac Norris. Franklin in his paper, the Pennsylvania Gazette, on May 9, 1754, printed a woodcut representing a snake cut into ten pieces, each having the initials of a colony or a section (like New England), with the words, “Join or die,” the whole device being followed by an article

urging some intercolonial defensive association.⁹ In a letter dated June 8, 1754, Franklin sent to James Alexander the sketch of such an association under the heading “Short Hints,” asking his friend to look them over, pass them on to Dr. Cadwalader Colden for his inspection, and then “forward the whole to Albany.”¹⁰ These “Short Hints” are simply an amplification of what he had offered in his letter to Mr. Parker in 1750. He contemplated merely a union of “the Northern Colonies,” which was natural, since Georgia and the Carolinas were not bidden to the congress, and Virginia refused to send delegates. That union was to be presided over by a governor-general appointed and paid by the crown, who was to be the executive officer of the union, and to have a negative on all acts of the grand council. The grand council was to consist of one member from each of the smaller colonies and two or more from each of the larger, “in proportion to the sums they pay yearly into the general treasury;” and the pay of the councillors was to be so many shillings per diem during sessions, and mileage. This council was to meet “ . . . times in every year, at the capital of each colony, in course,” at the call of the governor-general. The general treasury was to be applied by “an excise on strong liquors or duty on liquor imported, or——shillings on each license of a public house, or excise on superfluities, etc.” Each colony was to collect its quota ready to be paid out on orders issued by the governor-general and grand council acting together. The duties and powers of the executive and council were concerned with Indian treaties and purchases, the maintenance and encourag[e]ment of new settlements, the protection of the coasts and trade, and “everything that shall be found necessary for the defence and support of the colonies in general, and increasing and extending their settlements.” Finally, an act of parliament was to be obtained for the establishment of this union. It will be readily perceived that this rough draft was quite in harmony with the plan outlined in the letter of 1750.

     When the commissioners from the several colonies met, it appeared that others had brought plans for union also, and a motion was made on June 24 that the commissioners express their opinion on the wisdom of forming a union of all the colonies. This was passed in the affirmative.¹¹

     A committee was then appointed “to prepare and receive plans or schemes for the union of the colonies, and to digest them into one general plan for the inspection of the Board: Resolved, that each government choose one of their own number to be of that committee.” The following committee was then appointed: Thomas Hutchinson for Massachusetts, Theodore Atkinson for New Hampshire, William Pitkin for Connecticut, Stephen Hopkins for Rhode Island, William Smith for New York, Benjamin Franklin for Pennsylvania, Benjamin Tasker for Maryland.¹²

     Among those who presented plans were Franklin and Richard Peters. With Franklin’s rough plan we are familiar, for it was

one he had already shown Mr. Alexander and Dr. Colden. Mr. Peters’ plan was not apparently used at all, nor was that of Thomas Pownall.¹³ On June 28, the committee reported to the congress “Short Hints of a Scheme,” of which “copies were taken by the commissioners of the respective provinces.” It was doubtless through this incident that certain men have had the credit for presenting plans closely resembling the Albany plan.¹⁴ From June 28 to July 9 the rough draft was debated. Finally, on July 9, Franklin was authorized to make a draft of the plan “as now concluded upon.”¹⁵ On the 10th he submitted his draft, which after some debate was adopted and ordered to be transmitted to the several colonies for action.¹⁶ This draft is the so-called “Albany Plan of Union.” The plan is altered in some ways from the “Short Hints,” which Franklin had brought with him, and it is, of course, greatly extended, yet all the essentials of the rough draft are found incorporated in the final plan, save the scheme for raising money for the common treasury by a tax on liquors.¹⁷ In the “Albany plan” as finally amended, the president-general and the grand council “have power to make laws and lay and levy such general duties, imposts or taxes, as to them shall appear

most equal and just, . . . . and such as may be collected with the least inconvenience to the people, rather discouraging luxury than loading industry with unnecessary burthens.” Further than that the commissioners were not prepared to go. Franklin himself says, in a letter of December 29, 1754, “ . . . . tho I projected the Plan and drew it, I was oblig’d to alter some Things, contrary to my Judgment or should never have been able to carry it through.”¹⁸

     In conclusion as to Franklin’s share in the Albany plan one may say: he took to the congress a rough draft of a plan for union of the northern colonies; he was a member of that committee which received all plans offered, debated and probably combined them; he made a final draft of the result of their deliberations; and almost every item in his rough sketch was incorporated into the final plan. But this final plan was a composite of the ideas of men from various colonies, and no man can be called its exclusive author. Nor do we know where Franklin got his ideas. His rough sketch resembles the New England confederation of 1643 in the three points noted above: a representative council, its duties, and the rotation in place of meeting. But there is nothing to show certainly where the ideas arose. As we know, the plan pleased nobody, it was not accepted by the colonies and inter-colonial union was as far off as ever. To be sure, other plans were

later offered, such as Shirley’s,¹⁹ Hutchinson’s²⁰(which is a variation of the Albany plan), and Halifax’s;²¹ and the subject was also debated.²² But no formal union was attempted for many years. After the rejection of the Albany plan by the colonies Franklin maintained for a number of years silence on the subject of a union of the colonies. He was in England from 1757 until 1762, and from 1764 until 1775. It was not until 1774 that he again returned with vigor to the subject of inter-colonial union. He was still at that time in London, and under date of February 18, 1774, he wrote to Joseph Galloway:²³ “I wish most sincerely with you that a Constitution was form’d and settled for America that we might know what we are and what we have, what our Rights and what our Duties in the Judgment of this Country as well as in our own. Till such a Constitution is settled, different Sentiments will ever occasion Misunderstandings.” Later in that year Galloway drew up a plan which he sent to Franklin. He here provided for a union “between Great Britain and [the thirteen colonies],” in which there was to be “a British and American legislature.” From this point, Galloway follows closely the text

of the Albany plan for several paragraphs²⁴ —so closely that it is evident that Galloway merely adapted the Albany plan to his scheme. Franklin showed the plan to Lords Chatham and Camden, and then wrote to Galloway his apprehensions regarding

such a union. Said he:²⁵ “. . . . When I consider the extreme corruption prevalent among all Orders of Men in this old rotten State, and the glorious publick Virtue so predominant in our rising Country, I cannot but apprehend more mischief than Benefit from a closer Union. I fear they will drag us after them in all their plundering Waist, their desperate Circumstances, Injustice and Rapacity, may prompt them to undertake, and their

wide-wasting Prodigality and Profusion a Gulph that will swallow up every aid we may distress ourselves to afford them. Here numberless and needless Places, enormous Salaries, Pensions, Perquisites, Bribes, groundless Quarrels, foolish Expeditions; false accounts or no accounts, Contracts and Jobbs devour all Revenue, and produce continual Necessity in the midst of natural Plenty. I apprehend therefore that to unite us intimately will only be to corrupt and poison us also.” . . . . “However, I would try anything, and bear anything that can be borne with Safety to our just Liberties, rather than engage in a War with such near Relations, unless compelled to it by dire necessity in our own Defence” . . . . His words are significant: he was evidently already contemplating independence as a probability, and intended to be prepared for any emergency. In his letter to Galloway he makes no mention of the resemblance of the Galloway plan to the old plan of 1754—a curious omission if Franklin had been the sole author of that early scheme.²⁶

     On May 5, 1775, Franklin arrived in Philadelphia from England.²⁷ He was shortly made a member of the second continental congress, and presented on July 21, 1775, a draft of articles of confederation for the consideration of that body. This plan follows in so many particulars, especially in whole phrases and clauses, the articles

of the New England confederation of 1643, that one cannot doubt that Franklin used the latter as the basis for the former. It is impossible to say where Franklin became familiar with the articles of confederation of 1643; there is no copy anywhere among his papers, and he was apparently not in the slightest degree aware of the history of the New England alliance. But his friendship with Thomas Hutchinson was continuous for many years after 1748, during the time when Hutchinson was writing his History of Massachusetts Bay, in which he so admirably summarized the confederation, article by article, that it is certain he had access to a copy.²⁸ That the old union of the New England colonies was still cited is evident from the newspapers of the day,²⁹ and in some manner Franklin appears to have familiarized himself with it. He takes in Article I, the name “The United Colonies of North America,” where the old constitution had “The United Colonies of New England.”

     In Article II, the relation can be best seen by placing the two side by side:

     In Article III of Franklin’s draft provision is made for the retention by each colony of “as much as it may think fit of its own present Laws, Customs, Rights, Privileges, and peculiar jurisdictions within its own limits.” In the New England confederation (paragraph 3) it is “further agreed” that each colony in the association shall retain their own “peculiar jurisdiction” within their own limits. In the Albany plan, each colony is to “retain its present constitution.”

     Franklin’s Article IV provides for the annual election of delegates in each colony, and that “each succeeding Congress be held in a different Colony till the whole number be gone through, and so in perpetual Rotation.” This was in accordance with paragraph 6 of the New England confederation, which provides “that for the managing and concluding of all affairs proper, and concerning the whole confederation,” two commissioners were to be chosen by each of the four colonies composing the union; and these commissioners were to meet in each colony in rotation. In the “Short Hints” the same plan of rotation was to be followed; but in the Albany plan, only the place of the first meeting is designated. Franklin’s Article V laps over paragraph 6 of the New England confederation, since it deals with the powers of the congress; but since the union of 1643 is largely for mutual aid in Indian wars the powers of that union would naturally be much more limited than those planned in 1775. Both plans give to the central body the power of determining upon war and peace, entering into alliances, regulating “our common forces” and inter-colonial affairs; but the plan of 1775 provided besides for the planting of new colonies, and for the appointment of civil and military officers “appertaining to the general Confederacy”—both of which clauses are found in the Albany plan.³⁰

     In Franklin’s Articles VI and VII are to be found very close resemblances to paragraph 4 of the New England confederation. Franklin provides that:

     In the Albany plan there was to be a new election of the members of the grand council every three years. Both the plan of 1754 and that of 1775 differed from the one of 1643 in making representation proportional—the number of members from each colony to be determined by the contribution made in each case to the general treasury. But in 1643 and 1775 this treasury was to be supplied by a poll-tax levied on male inhabitants between the ages of 16 and 60—a striking resemblance.

     Franklin’s Article VIII provides that one-half of the members returned, exclusive of proxies, be a quorum; in 1643, half the commissioners might constitute an emergency quorum, but not less than three-fourths could transact the more important business.²¹ In the Albany plan 25 out of the 48 were to be empowered to act, but there must be “one or more from a majority of the colonies.”

     Franklin’s Article IX, providing for an executive council of the congress, to consist of twelve persons, of whom one-third retired each year, is like the provincial council of the Pennsylvania legislative body, and is undoubtedly taken with but slight changes from the Pennsylvania “frame of government.”²²

     Franklin’s Article X, providing that “no colony shall engage in an offensive War with any Nation of Indians without the Consent of the Congress or Grand Council . . . .” is like paragraph 9 of 1643.

     Franklin’s Article XI, providing for a perpetual alliance as soon as possible with the Six Nations and with other Indians, and for purchase of Indian lands exclusively by the congress, “for the General Advantage and Benefit of the United Colonies,” is like Article XI of the Albany plan, but bears no resemblance to anything in the 1643 confederation.

     Franklin’s Article XII provides for amendment of the Confederation as follows:

     “As all new Institutions may have Imperfections which only Time and Experience can discover, it is agreed that the General Congress from time to time shall propose such Amendments of this Constitution as maybe found necessary; which being approv’d by a Majority of the Colony Assemblies shall be equally binding with the rest of the Articles of this Confederation.” Neither the New England confederation nor the Albany plan contemplated amendment.

     Franklin’s Article XIII provided for inclusion upon application of “Ireland, the West India Islands, Quebec, St. Johns, Nova Scotia, Bermudas, & the East and West Floridas: and shall thereupon be entitled to all the Advantages of our Union, mutua[l] Assistance and Commerce.” Here, again, there is nothing in either earlier plan corresponding to this arrangement.

     Franklin’s last paragraph reads as follows:

     “These Articles shall be propos’d to the several Provincial Conventions or Assemblies, to be by them consider’d, and if approv’d they are advis’d to impower their Delegates to agree to and ratify the same in the ensuing Congress. After which the UNION thereby establish’d shall continue firm till the Terms of Reconciliation proposed in the Petition of the last Congress to the King are agreed to; till the Acts since made restraining the American Commerce & Fisheries a[re] repeal’d; till Reparation is made for the Injury done to Boston by shutting up its Port; for the Burning of Charlestown; and for the expense of this unjust War; and till all the British Troops are withdrawn from America. On the Arrival of these Events, the Co[lonies shall] return to their former Connection and Friendship with Britain: But on Failure thereof this Confederation is to be perpetual.” Here is reiterated what he had expressed in his letter of February 25 to his friend, Joseph Galloway and on March 13 to Charles Thomson.

     The resemblance between the Articles of the New England Confederation of 1643 and Franklin’s draft of articles of confederation of 1775 is apparently neither accidental nor slight. It consists in the following points:

     1. The name of the confederation.

     2. The nature of the union so formed.
     3. The reservation to each colony of its own jurisdiction and laws within its own limits.
     4. The formation of a common treasury, to be applied by taxes.
     a. Levied by each colony according to its own laws.
     b. Levied upon polls between 16 and 60 years of age.
     5. The general management of the affairs of the confederacy entrusted to commissioners or delegates chosen by each colony.
     6. The requirement that the meetings of commissioners or delegates be held in each colony in succession.
     7. The prohibition on any colony to engage in war without the consent of the others (or in 1775 the consent of the congress of delegates).
     8. The intention of having the confederation perpetual—in 1643 without reservation, in 1775 under certain conditions.

     Of course, there are differences between the two plans, as for instance the provision for proportional representation in the congress in 1775, whereas the representation was a fixed one in the earlier project. But when one has added Article IX, providing for the executive council; Article XI, on Indian relations, which is closely allied to the Albany plan of 1754; and Article XIII, for a possible extension of the union to all English colonies on the North American continent or the adjacent islands;—then all of the plan of 1775 is accounted for. It is evident that in the formation of this plan, the New England confederation of 1643 played no mean part. The part which Franklin’s plan of 1775 played in the formation of the articles of confederation of 1778 is another story. But enough has been given to show Franklin’s power of adapting and incorporating old ideas into new and to leave little doubt as to the genesis of his schemes for intercolonial union. He was apparently as early as 1750 familiar with the New England confederation, and his belief in its feasibility continued long. He made use, practical man as he was, of the form of government of his own colony, and also of the composite Albany plan. It is no wonder that in 1787 he should be named by Pennsylvania as one of her delegates to the convention which was to amend the

well-nigh useless constitution under which the United States had been living for six years. But the work of that body soon went far beyond him, and feeble and aged as he was, his contribution to its deliberations was but slight. Yet, in studying all the elements which went into the making of our Constitution, Franklin’s part—no mean one—deserves study and consideration.