The Admission of Kentucky and Vermont to the Union
Editorial Note

A piece of doggerel in Bache’s General Advertiser at the opening of Congress voiced the politics of equilibrium underlying this first of a series of compromises for achieving sectional balance within the nation:1

But Kentucky had not been given to the union. Six years of persistent effort on the part of her people and their leaders lay back of the Virginia-Kentucky compact of 1790 which awaited only the approval of Congress to become final.2 The ill-concealed sectional conflict over the rejection of Kentucky’s petition in 1788 had aroused deep animosities and left mutual suspicion as its legacy. The memorial from the Kentucky Convention of 28 July 1790 asking the President and Congress to approve the unprecedented compact therefore took pains to point out what all other evidence seems to confirm—that the people of Kentucky in general were “as warmly attached to the American Union, and … to the perfect happy establishment of the Federal Government as any of the citizens of the United States.”3 In recommending that the necessary sanction be given, Washington also was careful to commend the spirit of loyalty that prompted the transaction between the Commonwealth of Virginia and the people of Kentucky: “The liberality and harmony, with which it has been conducted will be found to do great honor to both parties; and the sentiments of warm attachment to the Union and its present Government expressed by our fellow citizens of Kentucky cannot fail to add an affectionate concern for their particular welfare to the great national impressions under which you will decide the case submitted to you.”4

On this occasion action was prompt. The committee of the Senate to whom this portion of Washington’s address was referred reflected in its composition sectional concern as well as attention to the interests of Vermont and Kentucky. Its members were Philip Schuyler of New York, who as a great landlord and as an ardent supporter of Hamilton’s measures had ample reason to keep a watchful eye on Vermont and to be equally wary of any increase in the power of the South and its hostility to the funding system; William Samuel Johnson of Connecticut, who had been an investor in lands in Vermont since before the Revolution and had helped keep its people from being coerced into accepting the jurisdiction of New York; and James Monroe of Virginia, who had been one of the most outspoken southerners in defending the interests of Kentuckians at the time of the Jay-Gardoqui negotiations. The committee reported favorably on the Kentucky memorial, and the only debate concerned Maclay’s objection to the definition of boundaries in the bill. But, as Maclay himself admitted, the discussion on this point was conducted “entirely in the gentlemanly way.”5 The House of Representatives took even less time and on 4 February 1791 the bill admitting Kentucky to the union became law.6 The petition from Vermont had not yet been presented to the President.

But Senator Schuyler and others in Congress who voted for Kentucky’s admission were well aware that in the summer of 1790 New York had finally given up hope of sustaining the eastern limits of the grant of 1664 to the Duke of York and had come to terms with Vermont.7 This bone of contention involving the titles of farmers and the interests of land speculators, however, had not been the sole reason that kept Vermont out of the union. Like Kentucky, she was growing in population and needed a commercial outlet to the sea. She was also politically divided. But the Allens and Chittendens who led one powerful faction were not the counterparts of James Wilkinson and Benjamin Sebastian of Kentucky. They combined ambition for political power with the aggrandizement of their private interests, to be sure, but they could look back upon an era of autonomous experience that from their point of view had been as successful as Kentucky’s isolation had been frustrating. Their negotiations with General Frederick Haldimand in the last years of the war gave them reasonable grounds for hoping for a continuation of political power in an independent Vermont occupying the enviable role of a neutral state and having the advantages of being courted by both neighbors without being burdened by the necessity to support either. Ethan Allen, fresh from his abortive attempt to carve another independent state out of similarly disputed jurisdictions in New York and Pennsylvania, could not have made this dream more explicit than he did in his appeal to Lord Dorchester at the very time that Kentucky’s petition for admission to the Confederation had been rejected by the Continental Congress.8

The people of Vermont, Allen declared in the summer of 1788, would refuse to join the United States under the proposed new Constitution. They believed that to do so would expose them to debt, ruin their commerce, and evoke the displeasure of Great Britain. Further, the states were divided and confused: “They are spread over different climates, have different religions, prejudices, customs, and interests … [and] the licentious notions of liberty taught and imbided in the course of the late revolution, operate strenuously against their uniting in any confederate Government.” Even if the new Constitution were to be adopted, the large and influential minority opposing it would cause the government to be so weak as to make it “difficult, precarious, and probably impossible for the United States to subjugate Vermont.” Small as she was, Vermont had much influence in American politics and might tilt the scales as she wished. She could put 15,000 men in the field in an emergency and count on the sympathetic support of neighboring states, for “besides her own natural population, she has a constant immigration from the United States, and whether whig or tory it alters not the case, as they remove to Vermont to obtain a landed interest, and to rid themselves and their posterity, from exorbitant taxation, very cordially unite in the policy of the state, in rejecting every idea of a confederation with the United States. … property not liberty is their main object.” Allen spoke as if he were the ambassador of a sovereign state and, in urging a continuation of the favor and friendship of Great Britain, he pointed out the means of sustaining a delicate and mutually advantageous neutralism. He believed the policy followed by Haldimand to be the most prudent course, for “matters were so contrived between the General, and certain men of influence in Vermont, the last three years of the War that it answered all the purposes of an alliance of neutrality, and at the same time prevented the United States from taking any advantage of it.” The leading men of Vermont, he assured Dorchester, were not “sentimentally attached to a republican form of government, yet from political principles, are determined to maintain their present mode of it, till they can have a better … or till they can in principles of mutual interest and advantage, return to the British government without war or annoyance from the United States.”9

Clearly, with such assurances being given to the British government by one of the most influential leaders of Vermont at the very moment that a fully authorized representative from Kentucky was urging the Continental Congress in vain to admit his constituents to statehood, the political experiences upon which the people of Kentucky and Vermont could look back were quite dissimilar. Kentucky could count on no similarity of language, customs, and institutions in its neighboring power but upon forms of government, law, and religion that were unfamiliar if not uncongenial. A few of her inhabitants had been favored with bribes or commercial concessions, but Spanish efforts to detach the West from the union by these and other means had failed. The record of Kentucky’s long effort to achieve statehood through constitutional means exhibited no genuine or widespread movement for independence or for a manipulated neutralism.10 Vermont, on the other hand, had declared itself an independent republic in 1777, relying for justification upon legal doctrines that Jefferson found repellent.11 The party of the Allens and Chittendens not only commanded a wide following at home: their overtures were also listened to with keen interest in Quebec and London. On his journeys between Quebec and New York, the British agent, George Beckwith, was careful to pay particular attention to the leading men of Vermont, finding among them as in the United States government a group sympathetic to Great Britain. Indeed, the Allens’ efforts to obtain a naval contract and to foster closer ties of friendship and commerce between Vermont and England were still in progress when their state decided to join the union. Levi Allen had left for England early in 1789 with instructions from the “Principal Men of Governor Chittendens and Allens Party … to Assure the British Court, that Vermont was truly from local situation as well as inclination firmly attached to them, and that whenever Vermont should find it necessary to Join Great Britain or Congress, they would positively Join the former.”12 As late as the summer of 1791, Allen—long out of touch with the changing scene of Vermont politics—still believed that, so long as Thomas Chittenden was governor, it was impossible for the state to have joined the United States. But later in the year, landing in Boston as Lewis Alden, and sustained with secret service funds, he hastened to Vermont and found to his mortification that the independent republic had in fact become a state of the union. “I think I may affirm without arrogance,” he wrote to Henry Dundas, “that if I had got up the River St. Lawrence last year with the well chosen assortment of Goods; Vermont would not have Joined Congress; in fact a majority of Both houses now confess they are Very sorry, and feel themselves much hurt on hearing many advantages that would have accrue’d to Vermont had they remained Independent.”13 But during his absence Ethan Allen had died, Ira Allen had remained silent because his own lands were involved, and Chittenden had thought it imprudent to oppose the tide, “So that Poor Vermont had not a man of any considerable consequence to say a word for her real interest.” Others looked to their own political preferment. “The facts are,” Allen concluded his report, “a number wanted to go to Congress and tho’ but four can go, yet 44 at least expected to be appointed.”14

Place in the new government may have been coveted by many, but the commissioners who were authorized to state the case for Vermont, Nathaniel Chipman and Lewis R. Morris, came fully prepared to advance their own claims at the same time. On Saturday, the 5th day of February—the day after the bill to admit Kentucky became law—the two commissioners had their first audience with the President. They came armed with various acts and proceedings of New York and Vermont that reflected in their meticulous choice of phraseology an old issue that had been finally settled but had left emotions still smoldering.15 The Act of the New York legislature of 6 March 1790 designated commissioners with power to declare its consent that “a certain territory within the jurisdiction thereof should be formed and erected into a new state.” But the wording of the actual declaration of consent several months later showed that Vermonters had refused to make such a tacit admission. It declared instead that New York granted its consent “that the community now actually exercising independent jurisdiction as the state of Vermont” should be admitted to the union.16 Only in the Act of the legislature of Vermont convoking a ratifying convention was there any expression of purpose or of justification for the course taken. This Act merely declared it to be the opinion of the legislature that the “future interest and welfare” of the state required the matter to be placed before a convention of the people.17 All other proceedings were only records of official action, not arguments of persuasion or protestations of attachment to the union.

Thus up to this point the Vermont proceedings were identical with the position assumed in the negotiation of the compact with New York—that is, that the issue was one to be resolved by compact, convention, or treaty negotiated between two sovereign and independent bodies, not one to be settled on the appeal of a petitioner for a grant or concession. Governor Chittenden’s letter to the President transmitting the official Acts and proceedings merely announced that Vermont had “appointed commissioners to apply to the Congress of the United States.” It made no request for action by the Chief Executive but only recommended the commissioners to his favorable notice.18 Indeed, the commission that Chittenden issued to Chipman and Morris authorized and empowered them to “proceed to the Congress of the United States … and negociate on behalf of this state,” as if their mission were only to conclude negotiations begun with New York and not, as in the case of Kentucky, simply to present a memorial for admission.19 This purpose was made explicit in a document that neither Chittenden nor the commissioners saw fit to disclose to the President—the Act of the Vermont legislature that appointed Chipman and Morris, defined their authority, and gave directions to them in the conduct of their negotiations. This Act required them, first of all, to seek to have any measures of Congress on the subject so framed as to recognize and affirm the terms of the compact with New York respecting land titles, compensation, jurisdiction, and boundaries. It was even more emphatic in declaring it to be their “duty … in such act or acts of Congress as shall recognize the sovereignty and independence of this State to endeavor that the same extend as far back as the first formation of government in this State.” It made it their duty also to try to obtain for Vermont the right to have three representatives in Congress.20 In brief, the commissioners were charged to negotiate terms of admission to the union as emissaries of a republic whose independence had been declared in 1777. Theirs was an embassy governed by instructions like those given to diplomatic envoys, not to be disclosed to those with whom the negotiations were to be conducted. In the light of this Act, Chittenden’s communication to Washington takes on the character of a letter of credence from one head of state to another—but with the confused assumption that negotiations were to be carried on not with a minister of foreign affairs but with the legislative branch of government. This was precisely what commissioners from Vermont had done with the Continental Congress a decade earlier, but the adoption of the Constitution had rendered such a posture legally anomalous.21

When the commissioners had their first meeting with the President, they had not as yet prepared a petition or formal communication of any kind to the government of the United States. In the absence of Washington’s diary for this period, it is not possible to know with certainty what transpired at this first interview. But, considering the terms of the Act appointing the commissioners, it is a plausible inference that the consultation, opening with the delivery of Governor Chittenden’s letter to the President, took on something of the character of a presentation of diplomatic credentials. On the same basis, it is equally plausible to suppose that the question of procedure came up. Washington could scarcely have failed to observe the difference between this approach of envoys prepared to negotiate terms and that of the simple petition based on the Virginia-Kentucky compact which he had so warmly endorsed in his Annual Message. Always sensitive to the dignity of the national government and to the danger of establishing ill-founded precedents, he may possibly have pointed to the manner in which the Kentucky petition had been presented to him and laid before Congress. Such a procedure naturally would not have satisfied the categorical instructions set forth in the Act of the Vermont legislature. But the supposition that the President set his face firmly against any departure from the Kentucky precedent seems justified by two facts about this first meeting that are known with certainty—that he had agreed to see the commissioners again on the ensuing Monday at noon and that they were then to present to him an official communication stating the object of their mission.22 The commissioners must have emerged from the meeting well aware of the fact that the office of the President of the United States would not be lent to anything properly describable as a negotiation on a question so important as that of admitting a new state to the union. For, as the official communication presented at the next interview proves, the posture of the envoys had been wholly transformed. They now approached the government not as negotiators but as petitioners. One feels justified in ascribing this remarkable transformation to the effect of their confrontation with the immense dignity and firmness of the President of the United States.

But there were also other influences that undoubtedly affected the result. Neither the President nor the Secretary of State could have known the full ramifications of the key role played by the Secretary of the Treasury in the settlement of the long controversy between New York and Vermont. This had begun with a letter that Nathaniel Chipman sent by express to Alexander Hamilton in the summer of 1788 stating in urgent and cogent terms the predicament in which Vermont had been placed by the adoption of the new Constitution. The essence of Chipman’s plea was that the conflicting land grants acted as a bar to Vermont’s admission to the union, since it was generally believed that the federal judiciary would sustain the New York titles. Governor Chittenden and others deeply interested in lands under Vermont grants, he reported, had in consequence “expressed themselves somewhat bitterly against the new federal plan of government.” Chipman therefore thought that only confusion would result if Vermont were to be admitted unconditionally into the union. One of the conditions he suggested was that “the fœderal Legislature … might, on our accession, be induced on some terms to make a compensation to the New York grantees” out of their western lands.23 Hamilton, then leading the Poughkeepsie convention to a triumphant ratification of the Constitution, thought that it was not only an opportune moment for Vermont to enter the union but also a matter of great public importance for her to do so. There were also particular circumstances that would expedite a proper accommodation of existing difficulties: “One of the first subjects of deliberation with the new Congress will be the Independence of Kentucky for which the southern states will be anxious. The northern will be glad to find a counterpoise in Vermont. These mutual interests and inclinations will facilitate a proper result.” He therefore thought Vermont should ratify the Constitution as soon as possible and on condition that “Congress … provide for the extinguishment of all existing claims to land under grants of the State of New York, which may interfere with claims under … the State of Vermont.”24

This was not the course that Vermont chose to follow. But in the negotiations leading to the compact between New York and Vermont two years later Alexander Hamilton was the guiding genius. Now in 1791, Nathaniel Chipman, who had first broached the idea of a conditional adherence to the union, was in Philadelphia confronted by a dilemma. The state he represented, claiming to be sovereign and independent, had made it his duty to negotiate with Congress about the terms that had prompted his original appeal. The President, on the other hand, had certainly disclosed no inclination to advise Congress how to exercise its constitutional function of admitting new states. Although there is no recorded evidence to support the inference, it would have been remarkable indeed if, under these circumstances, Nathaniel Chipman had not again turned to the Secretary of the Treasury for advice and counsel. It would seem even more remarkable if Hamilton, the principal architect of the compact between New York and Vermont, had not had a hand in determining the tone if not the language of the official communication the commissioners were obliged to present to the President at their next interview.

For that remarkable document disposed of the dilemma by an abrupt departure in language, in procedure, and in substance from all other official proceedings of Vermont on the subject up to the interview on the 7th of February. It set forth no conditional terms of admission. It contained no expression of a desire to negotiate. Its tenor was that of deference and respect, leaving the decision to the wisdom of Congress and accompanied by hitherto unvoiced expressions of attachment to the union. It was exactly in the nature of the Kentucky petition and was addressed to “The President and Congress of the United States of America”:25

Nathaniel Chipman and Lewis R. Morris, commissioners, authorised and appointed by the state of Vermont, most respectfully represent, that the citizens of that state, having shared in common with those of the other states, in the hazards and burthens of establishing the American revolution, have long anxiously desired to be united with them, under the same general government. They have seen, with great satisfaction, a new and more perfect union of the people of America, and the unanimity with which they have recently approved the national constitution manifests their attachment to it, and the zeal with which they desire to participate its benefits.

Questions of interfering jurisdiction between them and the state of New York have heretofore delayed this application. These points being now happily adjusted, the memorialists, on behalf of their constituents, most respectfully petition, that the Congress will consent to the admission of the state of Vermont, by that name and style, as a new and entire member of the United States.

They have the honor to accompany the memorial with such papers and documents as have relation to the same, and, with the highest deference for the wisdom of Congress, the memorialists repeat their solicitations that, during their present session, they would be pleased to adopt such measures as will include within the national government a people zealous to support and defend it.

It is difficult not to believe that the character of this document which voiced such respect for the dignity of the national government and which so greatly transformed the role of the emissaries from Vermont was shaped in its essential features by the man who in 1788 had so accurately predicted an equipoise of mutual interests on the part of North and South leading to the admission of Kentucky and Vermont and who was now unquestionably in a position to assure the commissioners that adopting the manner and style of petitioners instead of negotiators would “facilitate a proper result.”26

Even so, this petition and the Acts and proceedings accompanying it presented Washington with a troublesome problem, one that touched the exercise of constitutional powers. The petition was that of the authorized commissioners of “the state of Vermont,” an insistence on terminology clearly apparent in the documents relating to the compact with New York and therefore different from the petition that had been presented by a convention of the people of “the District of Kentucky.” Vermont had refused to be considered as being, in the terms of the Act of the New York legislature, “a certain territory within the jurisdiction” of that state. For the past fourteen years, as every informed person knew, all of Vermont’s executive, legislative, and judicial proceedings had run in the name of a sovereign and independent community. If she was not a community emerging into statehood from territorial status and not one created out of another state with its consent, as in the case of Kentucky, was she then a truly independent republic, a foreign “state”? If so, of what relevance were the documents pertaining to the compact with New York? If not admitted by the consent of that state, should she come into the union by treaty arranged with the President and ratified by the Senate? Every issue that came before Washington in this critical month seemed to turn on constitutional points. In the face of such questions as these the President laid the documents before the Secretary of State and asked for his advice. The commissioners would have to wait another day for an answer to the question of procedure.

Jefferson’s solution to the problem was such as to place all of the known proceedings before Congress, to accommodate the pretensions of both New York and Vermont, and to assume for the latter a territorial status that had no foundation in federal law. If his advice was set forth in a written report, it is not known to exist and is not recorded in Jefferson’s register of public papers. But on the 8th, Tobias Lear informed the Vermont commissioners that it was the opinion of the President “as well as that of the Secretary of State that copies of all the papers … should be laid before Congress,” that this would require copies for both the Senate and the House, and that these could not be prepared and submitted until the next day.27 On the 9th the President, using phraseology that adroitly evaded all constitutional problems implicit in the idea of treating with an independent republic, sent the following communication to the Senate and House:28

I have received, from the Governor of Vermont, authentic documents, expressing the consent of the Legislatures of New York and of the territory of Vermont, that the said territory shall be admitted to be a distinct member of our Union: and a memorial of Nathaniel Chipman and Lewis R. Morris, commissioners from the said territory, praying the consent of Congress to that admission, by the name and style of the State of Vermont; copies of which I now lay before Congress, with whom the constitution has vested the object of these proceedings.

This message exists only in a text recorded by a clerk, but its authorship and the useful legal fiction of regarding Vermont as possessing territorial status may with confidence be ascribed to the Secretary of State.29

But this practical mode of avoiding embarrassing constitutional questions did nothing more than pass the problem to the Congress, where Vermont’s claim to statehood triumphed after all. The President’s message and accompanying documents were referred in the Senate to a committee composed of Rufus King of New York, Oliver Ellsworth of Connecticut, John Langdon of New Hampshire, and Benjamin Hawkins of North Carolina, carefully chosen with regard to sectional balance. The committee reported a bill the next day which omitted all reference to the compact between New York and Vermont and provided that “The state of Vermont” by virtue of its petition should on the 4th of March and in “the name and style of ‘the state of Vermont’ … be admitted into this Union, as a new and entire member of the United States of America.” The House concurred without amendment. Washington signed the bill into law on the 18th of February.30 Senator Maclay, bitter over the excise bill, did not even deign to notice the undebated and ambiguous admission of Vermont to the union. The ambiguity was emphasized in the fact that federal law had not run in Vermont as it had in Kentucky. A special Act was therefore necessary to cause the laws, except in cases locally inapplicable, “to have … the same force and effect within the state of Vermont, as elsewhere within the United States.”31 Both branches of government had chosen ambiguity and evasion in preference to a confrontation of the troublesome question. Vermont had been admitted to the union neither as a territory nor as an independent republic but as an undefined community already possessing de facto but incomplete statehood.

On the 18th of February—the same day the President signed the bill admitting Vermont—the commissioners presented another trouble some question to him, one affecting their personal as well as public concern. Since Vermont would not be a member of the Union until the 4th of March, could the President nominate officers before that date? If not, could he do so after the Senate had recessed? These were questions for which ambiguous answers would not suffice and the commissioners discussed them with the President’s secretary. Washington instructed Lear to request the commissioners to lay the matter before the Attorney General and the Secretary of State for their opinions.32 This they did by letter and Jefferson submitted his opinion to the President the next day advising a special convening of the Senate.33 On the 22d both commissioners applied for office. Nathaniel Chipman, who had been “repeatedly elected chief Justice of the Supreme Court of Judicature” of Vermont, sought the post of district judge and presented to Washington a testimonial from Governor Chittenden describing him as “the first Law character in this state” and as “an honest upright candid man.”34 Morris asked Washington to consider him for any office in Vermont for which he might be thought qualified, but bore a letter from Governor Clinton of New York stating that he was “desirous … to be Marshall of the District” and that, besides being respectably connected in a family known to the President, he was “a young Gentleman of good character and … well qualified to fill that office.”35 Washington asked the Secretary of State to sound out members of Congress and others about proper candidates and Jefferson, who included the commissioners in his canvassing, reported the results the next day.36 On the 4th of March, in a message drafted by the Secretary of State in which the President set forth the reasons for the special session of the Senate, Washington gratified the desires of both commissioners and sealed the success of their mission both public and private.37 Under suspended rules the Senate immediately confirmed the nominations and Jefferson dispatched their commissions the same day.38

Thus, yoked together in a silent sectional compromise that had its origins in the critical summer of 1788, Vermont and Kentucky came into the union as equals, each being allowed two representatives.39 Jefferson could scarcely have looked upon the past or the promise of these two border states with equally balanced detachment. He was well acquainted with the leaders of Kentucky, with the people who had settled there, with their desperate need for access to the sea, with their fundamental loyalty to the nation, and with their long struggle for admission to the union. Vermont was unknown to him except as a region of tangled and separatist politics, of disruptive jurisdictional disputes with neighboring states, of land speculations and intrigues with the British.40 But he could not have been unaware of the signs of independence and liberalism in her unicameral legislature, in her abolition of slavery, in her free manhood suffrage, and in her provision for religious tolerance. Such aspects of the character of the newest border state were, in all probability, not absent from his calculations when he and James Madison decided a few weeks later to undertake their northward journey. The search for the answer as to which of these elements was dominant among the people of Vermont may well have been one of the chief objects of that journey.