Nature of the Union Powers in the fact that the States, although independent, are spoken of as colonies. Some of the amendments are far from happy, especially those indicating the amounts of revenue which each colony is to raise and to contribute to the general government. In the eleventh article of Dickinson's draft it is provided that "All Charges of Wars and all other Expences that shall be incurred for the common Defence, or general Welfare, and allowed by the United States assembled, shall be defrayed out of a common Treasury, which shall be supplied by the several Colonies in Proportion to the Number of Inhabitants of every Age, Sex and Quality, except Indians not paying Taxes, in each Colony . . . In the amended text the contributions of the States are to be "in proportion to the value of all land within each State," an amendment, it may be said in passing, which appears to have made the Articles unworkable in practice, however acceptable it may have been in theory. It is not meant, in this connection, to express a preference for a poll as distinguished from a land tax, but the shifts to which the Congress was put to increase the value of land, and thus increase the State quotas, exposed that body to ridicule and brought the government into contempt in a way which would not have been possible if the text of the original draft had been adopted. The government of the Confederacy was to be styled the United States of America, in which each State retained "its sovereignty, freedom and independence, and every power, jurisdiction and right," not "expressly delegated to the United States, in Congress assembled." The framers of this instrument were well informed as to the nature of the government which they were establishing. It was to be a Union of States, not a single State. It was to be a perpetual "league of friendship," "for their common defence, the security of their liberties and their mutual and general welfare," in which the States pledged themselves to protect one another against attack of any kind and from any quarter. For the management of the general interests of the United States there was to be a Congress, which should meet once a year and exercise the powers with which the Confederation was vested. Each of the States was to be represented by not less than two nor more than seven delegates, appointed and paid by them, who might not serve as delegates more than three years out of any six. The States had an equal voice, each retaining and casting a single vote, notwithstanding the greater or less number of deputies which they might choose to send to Congress. It was recognized that the purpose for which the Union was formed could not be effected if the States did not, in addition to the powers conferred upon the Congress, renounce the exercise of some of the powers inherent in sovereignty, freedom and independence. They therefore expressly renounced 1 Journals of the Continental Congress, Vol. v, p. 548. of Congress the right of making treaties with foreign countries or of entering into treaties or alliances between themselves without the consent of the Congress, and they pledged themselves not to lay any imposts or duties which might interfere with the treaties which the Confederation might make with foreign countries. While maintaining the right to keep up a militia, they renounced the right to create and maintain an army or navy without the consent of Congress, and they likewise renounced the right to engage in war, without the consent of Congress, except when actually attacked. They reserved to themselves the right to appoint regimental officers of the regiments raised for continental service, but vested the appointment of the general officers in Congress. They endowed the general Congress with broad powers, suggesting but Powers not actually making of the States a nation - powers with which the Congress under the Constitution has been invested and which with sundry additions have been deemed adequate, doubtless due to the fact that the government under the latter instrument acts directly upon the people of the States, thus executing the powers with which it is invested instead of relying upon the States as its agents. Among these powers were the sole right of declaring Peace and war and concluding peace, of sending and receiving embassies, of entering into treaties and alliances, of issuing currency, of fixing a standard of weights and measures, of establishing and regulating post offices throughout the United States, of appointing all officers of the army with the exception of regimental officers of contingents raised by the States, and all naval officers, and of making rules for the government of the land and naval forces and directing their operations. The Congress was also empowered to ascertain the sums of money necessary for the service of the United States and to apply it to the public service, to borrow money or emit bills of credit, to build and equip a navy, to agree upon the number of land forces and to make requisitions, binding each State to furnish its quota "in proportion to the number of white inhabitants in each State." In addition, the Congress was specifically authorized to appoint a committee of States, consisting of a delegate from each State, to sit during the recess of the Congress and to carry on the government during such recess, to appoint other committees and civil officers necessary for the management of the general forces of the United States under their direction, and to appoint from the members of Congress a president, who should not preside for more than one in any term of three years. These powers were granted because they were felt to be necessary to secure the independence of the United States and to maintain peace and harmony among the States themselves, but in granting them the States placed what they conceived to be a salutary check upon their exercise, providing that the more important of them, which they specified, should be exercised only with the consent of nine States, and in the tenth of the Articles they Congress vested the committee of the States, or any nine of them, with power to execute during the recesses of Congress such powers as the Congress might delegate to the committee, or any nine of them, but withheld from them any power which the Congress itself could exercise only with the consent of nine States, all of which were specified and enumerated in the following paragraph of the ninth article, which also stated specifically the requirement of a majority in all other matters: The United States, in Congress assembled, shall never engage in a war, nor grant letters of marque and reprisal in time of peace, nor enter into any treaties or alliances, nor coin money, nor regulate the value thereof, nor ascertain the sums and expenses necessary for the defence and welfare of the United States, or any of them: nor emit bills, nor borrow money on the credit of the United States, nor appropriate money, nor agree upon the number of vessels of war to be built or purchased, or the number of land or sea forces to be raised, nor appoint a commander in chief of the army or navy, unless nine states assent to the same; nor shall a question on any other point, except for adjourning from day to day, be determined, unless by the votes of a majority of the United States, in Congress assembled. The renunciation of the right which sovereign States possess, and unfortunately exercise, of engaging in war among themselves, and also the renunciation of the right to enter into treaties and agreements with themselves without the consent of the Congress, made it necessary to provide some method of settling disputes which might arise between the States, and which otherwise would remain unsettled because of the renunciation of war and of diplomatic negotiation. In certain cases of an international character, which might, in addition, give rise to disputes among the States, the Congress was authorized to establish "rules for deciding, in all cases, what captures on land or water shall be legal, and in what manner prizes, taken by land or naval forces in the service of the United States, shall be divided or appropriated;" to appoint "courts for the trial of piracies and felonies committed on the high seas;" and to establish "courts for receiving and determining, finally, appeals in all cases of captures; provided, that no member of Congress shall be appointed a judge of any of the said courts." For disputes that might arise between themselves, for which no tribunal existed, it was provided in the ninth article" that the United States, in Congress assembled, shall also be the last resort on appeal in all disputes and differences now subsisting, or that hereafter may arise between two or more states concerning boundary, jurisdiction or any other cause whatever," and specifically mentioning "all controversies concerning private right of soil, claimed under different grants of two or more states." The article likewise provided the method of settlement, which was, briefly: The agents of the States in controversy appeared before the Congress, stating their controversy and asking for the appointment of commissioners to form a temporary court or tribunal. If the agents agreed upon the members of the court it was organized and the case referred to it. If, however, the agents did not agree upon the members of the court, the Congress selected three persons from each of the thirteen States, and from the thirty-nine thus chosen the names were to be struck, beginning with the defendant, until thirteen names were left. From this list of thirteen not less than seven nor more than nine were to be drawn by lot, and of this number any five could form the court. In the absence of the agent of any one of the litigating States, or upon his refusal to strike as provided by the article, the Secretary of the Congress was to act in his stead. It was foreseen that changes in the Articles of Confederation might be necessary, but as the instrument was a diplomatic agreement no alteration was to be made unless agreed to in the Congress and "afterwards confirmed by the legislatures of every State." From this brief summary it will be observed that the Articles of Confederation provide a government, with limited and specifically enumerated powers, which were only to be exercised with the consent of nine or of a majority of the sovereign, free and independent States of which the Confederation was composed. It will be further observed that the legislative was likewise the executive branch of the government, in so far as either existed, because the President of the Congress was the presiding officer but possessed of no independent powers, and the committee of the States was appointed by the Congress for the exercise of certain, but not all, of the powers of the Congress of during its recess. There is no doubt a suggestion of a judiciary, but the judiciary, such as it was, was only constituted in the case of the court of appeals for prize cases, and from time to time temporary tribunals were to be chosen by the Congress for the trial of controversies between the States; cases involving piracies and felonies were to be tried by the private courts of the States. There is here no clear and conscious recognition of the threefold division of government so conspicuous in the Constitutions of each of the thirteen States composing the Confederation and a fundamental though unexpressed principle of the Constitution which succeeded the Articles of Confederation, a conception which was reenforced from French sources, due to the alliance of France which so powerfully contributed to making the Declaration of Independence a reality. Suggestion Judiciary The defects of the Articles of Confederation have been pointed out by Defects every historian of the United States who has had occasion to deal with this period of our history. The Articles were indeed defective. They were not however so defective as the critics would have us believe, and even if they were it would seem to be wiser to consider the difficulties of the situation and to Excellences regard the Articles of Confederation as a step to a more perfect Union, and a very important one, than to deny them any claim upon our consideration. The Articles were not to blame if faulty; it was the defective vision of the statesmen who drafted them and of the States which were unwilling to grant a general government more extensive powers. It is easy for us to see the advantages of a closer union, because we have benefited by its blessings, but a union of the kind of the Constitution was hitherto unknown in the history of nations, and the necessity of a broader and more powerful general government, acting directly upon the States and not through the States, was not likely to be granted by colonies which had revolted because of the attempt of the mother country to impose its authority from above, and to impose the acts of a supreme legislature upon the colonies, overriding the local legislatures, in order to make the acts of Parliament apply to the individual without consideration of the colonies as such. The purpose of the Revolutionary statesmen was to overthrow what they considered the tyranny of the mother country, claiming supremacy in all matters; it was not to create a domestic tyrant in the place of the imperial Parliament. Without compromise and concession and the safeguarding of the States and their peoples against the aggression of the general government, American statesmen would not have agreed to the provisions of the Constitution of the United States; and the different States, in agreeing to it, insisted upon certain amendments, which were proposed by the first Congress under the Constitution in 1789 and added to that instrument two years later. And even then two States, North Carolina and Rhode Island, refused to ratify the Constitution and did so only after it had gone into effect and the ten amendments to it had been proposed and, in the case of Rhode Island, ratified. While recognizing the defects of the Confederation, which were indeed obvious to those who wished union under a constitution rather than a diplomatic union, competent judges nevertheless recognized its excellences. It is noteworthy that George Washington, who had suffered from the defects of the Confederation more than any man living, nevertheless had a good word to say for the union.1 John Jay was also qualified to speak, as he had been President of the Congress and as Secretary of Foreign Affairs he felt the imperfections of the system, especially in so far as foreign relations were concerned. Yet he was not pessimistic, saying of it: "Our federal govern 1 In a letter to Benjamin Harrison dated January 18, 1784, General Washington said: That the prospect before us is fair none can deny; . . . I believe all things will come right at last, . . . The disinclination of the individual States to yield competent powers to Congress for the federal government, . . . will, if there is not a change in the system, be our downfall as a nation." An extension of federal powers, he believed, would make us one of the most wealthy, happy, respectable and powerful nations that ever inhabited the terrestrial_globe." W. C. Ford, The Writings of George Washington, Vol. x, pp. 344-6. See also Sparks, Writings of George Washington, Vol. ix, p. 11. |