states; and in some instances the exercise of its powers were resisted. But after the peace of 1783, such opposition became common, and gradually extended its sphere of activity, until, in the expressive language already quoted, "the confederation became a shadow without the substance." There were no national courts having original or appellate jurisdiction over cases regarding the powers of the union; and if there had been, the relief would have been but of a very partial nature, since, without some act of state legislation, many of those powers could not be brought into life.

§ 250. A striking illustration of these remarks may be found in our juridical history. The power of appeal in prize causes, as an incident to the sovereign powers of peace and war, was asserted by congress after the most elaborate consideration, and supported by the voice of ten states, antecedent to the ratification of the articles of confederation.1 The exercise of that power was, however, resisted by the state courts, notwithstanding its immense importance to the preservation of the rights of independent neutral nations. The confederation gave, in express terms, this right of appeal. The decrees of the court of appeals were equally resisted; and in fact, they remained a dead letter, until they were enforced by the courts of the United States under the present constitution.2

§ 251. The Federalist speaks with unusual energy on this subject. "The great and radical view in the construction of the confederation is in the principle of legislation for states or governments in their corporate

1 Journals of Congress, 6th of March, 1779, 5th vol. p. 86 &c. to 90. 2 Penhallow v. Doane, 3 Dall. 54; Carson v. Jennings, 4 Cranch, 2. 3 The Federalist, No. 15. See also 1 Jefferson's Corresp. 63; President Monroe's Message of May, 1822; 1 Tucker's Black. Comm. App. note D. passim.

or collective capacities, and as contradistinguished from the individuals, of whom they consist. Though this principle does not run through all the powers delegated to the union; yet it pervades and governs those, on which the efficacy of the rest depends. Except as to the rule of apportionment, the United States have an indefinite discretion to make requisitions for men and money; but they have no authority to raise either by regulations extending to the individuals of America. The consequence of this is, that though in theory their resolutions concerning those objects are laws, constitutionally binding on the members of the Union; yet, in practice, they are mere recommendations, which the states observe or disregard at their option." Again. "The concurrence of thirteen distinct sovereignties is requisite under the confederation to the complete execution of every important measure, that proceeds from the Union. It has happened, as was to have been foreThe measures of the Union have not been executed. The delinquences of the state have, step by step, matured themselves to an extreme, which has at length arrested all the wheels of the national government, and brought them to an awful stand. Congress at this time scarcely possess the means of keeping up the forms of administration till the states can have time to agree upon a more substantial substitute for the present shadow of a federal government."

seen.

§ 452. A farther illustration of this topic may be gathered from the palpable defect in the confederation, of any power to give a sanction to its laws.1 Congress had no power to exact obedience, or punish disobedience to its ordinances. They could neither impose fines,

11 Kent's Comm. 200.

1

nor direct imprisonment, nor divest privileges, nor declare forfeitures, nor suspend refractory officers. There was in the confederation no express authority to exercise force; and though it might ordinarily be implied, as an incident, the right to make such implication was prohibited, for each state was to "retain every power, right, and jurisdiction, not expressly delegated to congress." The consequence naturally was, that the resolutions of congress were disregarded, not only by states, but by individuals. Men followed their interests more than their duties; they cared little for persuasions, which came without force; or for recommendations, which appealed only to their consciences or their patriotism. Indeed, it seems utterly préposterous to call that a government, which has no power to pass laws; or those enactments laws, which are attended with no sanction, and have no penalty or punishment annexed to the disobedience of them.3

3

§ 253. But a still more striking defect was the total want of power to lay and levy taxes, or to raise revenue to defray the ordinary expenses of government.* The whole power, confided to congress upon this head, was the power "to ascertain the sums necessary to be raised for the service of the United States;" and to apportion the quota or proportion on each state. But the power was expressly reserved to the states to lay and levy the taxes, and of course the time, as well as the mode of payment, was extremely uncertain. The

1 The Federalist, No. 21.

2 Yates's Minutes, 4 Elliot's Deb. 84.

3 The Federalist, No. 15; 1 Kent Comm. 200, 201.

4 See in 1 U. S. Laws, (Bioren & Duane's Edition, p. 37 to 54,) the proceedings of the old congress on this subject. See also The Federalist, No. 21; 1 Tucker's Black. Comm. 235 to 238; The Federalist, No. 22, 32.

evils resulting from this source, even during the revolutionary war, were of incalculable extent; and, but for the good fortune of congress in obtaining foreign loans, it is far from being certain, that they would not have been fatal. The principle, which formed the basis of the apportionment, was sufficiently objectionable, as it took a standard extremely unequal in its operation upon the different states. The value of its lands was by no means a just representative of the proportionate contributions, which each state ought to make towards the discharge of the common burthens.3

§ 254. But this consideration sinks into utter insignificance, in comparison with others. Requisitions were to be made upon thirteen independent states; and it depended upon the good will of the legislature of each state, whether it would comply at all; or if it did comply, at what time, and in what manner. The very tardiness of such an operation, in the ordinary course of things, was sufficient to involve the government in perpetual financial embarrassments, and to defeat many of its best measures, even when there was the utmost good faith and promptitude on the part of the states in complying with the requisitions. But many reasons concurred to produce a total want of promptitude on the part of the states, and, in numerous instances, a total disregard of the requisitions. Indeed, from the moment, that the peace of 1783 secured the country from the distressing calamities of war, a general relaxa

15 Marshall's Life of Washington, 55; 1 Amer. Museum, 449. 22 Pitk. Hist. 158, 159, 160, 163; 1 Tucker's Black. Comm. App. 237, 243 to 246; 1 U. S. Laws, 37, 54.

3 The Federalist, No. 21, 30.

4 2 Pitk. Hist. 156, 157. See also Remarks of Patterson J. in Hylton v. United States, 3 Dall. 171; 1 Elliot's Debates, 208; The Federalist, No. 21, 31; 3 Dall. 171, 178.

tion took place; and many of the states successively found apologies for their gross neglect in evils common to all, or complaints listened to by all. Many solemn and affecting appeals were, from time to time, made by congress to the states; but they were attended with no salutary effect.1 Many measures were devised to obviate the difficulties, nay, the dangers, which threatened the Union; but they failed to produce any amendments in the confederation. An attempt was made by congress, during the war, to procure from the states an authority to levy an impost of five per cent. upon imported and prize goods; but the assent of all the states could not be procured. The treasury was empty; the credit of the confederacy was sunk to a low ebb; the public burthens were increasing; and the public faith was prostrate.

§ 255. These general remarks may be easily verified by an appeal to the public acts and history of the times. The close of the revolution, independent of the enormous losses, occasioned by the excessive issue and circulation, and consequent depreciation of paper money, found the country burthened with a public debt of upwards of forty-two millions of dollars; eight millions of which was due for loans obtained in France or Holland, and the remainder to our own citizens, and principally to those, whose bravery and patriotism had saved their country. Congress, conscious of its inability to dis

4

1 See 1 U. S. Laws, (Bioren & Duane's ed. 1815,) from page 37 to 54. 2 5 Marshall's Life of Washington, p. 35, 36, 37.

35 Marshall's Life of Washington, 37; Jour. of Congress, 3d Feb. 1781, p. 26; Id. 16th Dec. 1782, p. 38; Id. 26th April, 1783, p. 194, 203.

4 The whole expense of the war was estimated at 135 millions of dollars, including the specie value of all treasury bills of the United States, reduced according to the scale of depreciation established by congress. 2 Pitk. Hist. 180.

5 2 Pitk. Hist. 180; 5 Marsh. Life of Wash. 33.