the Constitution of the Federal government adequate to the exigencies of the Union, and to report such an act for that purpose to the United States in Congress assembled, as, when agreed to by them, and afterwards confirmed by the legislatures of every State, will effectually provide for the same." 1 The Convention was somewhat embarrassed in the matter of Congress, as the meeting at Annapolis was without its consent and therefore unconstitutional. As, however, Congress would have to act if the Articles of Confederation were to be amended" in order to render the Constitution of the Federal government adequate to the exigencies of the Union," it would be necessary not only to inform the Congress but to have it take appropriate action, in accordance with the thirteenth of the Articles of Confederation which provided that no "alteration at any time hereafter be made in any of them; unless such alteration be agreed to in the Congress of the United States and be afterward confirmed by the legislatures of every state." The commissioners prepared a report to their respective governments, and dealt with the delicate congressional situation in the following concluding paragraph: Though your commissioners could not with propriety address these observations and sentiments to any but the states they have the honor to represent, they have nevertheless concluded, from motives of respect, to transmit copies of this report to the United States in Congress assembled, and to the executive of the other states.2 Approval Virginia at once took action, agreeing to the convention to be held at Congressional Philadelphia for the purposes specified in the report, and appointed commissioners or delegates to meet with the delegates of the other States to consider the revision of the Articles of Confederation. New Jersey, Pennsylvania, North Carolina, Delaware, and Georgia did likewise; whereupon the Congress, seeing that the Convention was to take place, and not unwilling to make a recommendation which was likely to be followed, as well as to aid in securing for the general government powers which it had repeatedly but vainly urged, gave its approval for the call of the convention in the following resolution, adopted February 21, 1787: Whereas there is provision, in the Articles of Confederation and Perpetual Union, for making alterations therein, by the assent of a Congress of the United States, and of the legislatures of the several states; and whereas experience hath evinced that there are defects in the present Confederation; as a mean to remedy which, several of the states, and particularly the state of New York, by express instructions to their delegates in Congress, have suggested a convention for the purposes expressed in the following resolution; and such convention appearing to be the most probable mean of establishing in these states a firm national government, Resolved, That, in the opinion of Congress, it is expedient that, on the second Monday in May next, a convention of delegates, who shall have been ap Union of pointed by the several states, be held at Philadelphia, for the sole and express purpose of revising the Articles of Confederation, and reporting to Congress and the several legislatures such alterations and provisions therein as shall, when agreed to in Congress, and confirmed by the states, render the federal Constitution adequate to the exigencies of government and the preservation of the Union." 1 Authorized by the Congress, there was no reason why the States should hesitate, and with the exception of Rhode Island all of the thirteen States then composing the Union appointed delegates. They did not reach Philadelphia on "the second Monday in May next." It was not until the 25th that the delegates of seven States arrived. New Hampshire did not appoint its delegates until the 27th of June because of a lack of funds necessary to their maintenance, and the delegates appointed and accepting the appointment made their appearance only late in July, when the work of the Convention was well along, but fortunately in time to share in some of its most important proceedings. It may be disputed whether a union of the States existed in law, although it may have existed in fact, before the 1st day of March, 1781, when the Articles of Confederation creating a perpetual Union were ratified by the last of the thirteen States upon the signature of the Articles by the delegates of Maryland, authorized and directed so to do by that State. There can be no doubt, however, that, after that date the thirteen American States formed a Confederation and remained confederated until the dissolution of the Confederation by the adoption of the Constitution and the organization of the government of the more perfect Union thereunder in 1789. The question of the relation of the States to one another and to the Confederation established by the Articles has been the subject of no little debate. Yet there seems to be no reasonable doubt on this head, if the language of the Articles means what it says and if the decisions of the Supreme Court of the United States are entitled to respect. No doubt the States could have merged their personality in the Union of their creation, but there is no doubt that they did not do so; for, after stating in the first article that "the stile of this Confederacy shall be the United States of America,'" the very next article, and the first in which the relation of the States is considered, provides that "each State retains its sovereignty, freedom, and independence, and every power, jurisdiction and right which is not by this Confederation expressly delegated to the United States in Congress assembled." As in the case of Respublica v. Sweers (1 Dallas, 41), decided in 1779, the Supreme Court of Pennsylvania considered the States to form a body corporate from the moment of their association, so in Nathan v. Commonwealth of Virginia (1 Dallas, 77, note), decided in the September term of 1781, 1 Elliot, Debates, Vol. i, p. 120. within a few months of the final ratification of the Articles of Confederation on March 1, 1781, the Supreme Court of Pennsylvania determined that the States under the Articles of Confederation were sovereign, free and independent States in the sense of international law. In the official report of this case it is stated that A foreign attachment was issued against the Commonwealth of Virginia, at the suit of Simon Nathan; and a quantity of cloathing, imported from France, belonging to that state, was attached in Philadelphia. The delegates in Congress from Virginia, conceiving this a violation of the laws of nations, applied to the supreme executive council of Pennsylvania, by whom the sheriff was ordered to give up the goods. The counsel for the plaintiff, finding that the sheriff suppressed the writ, and made no return of his proceedings, obtained, September 20, 1781, a rule that the sheriff should return the writ, unless cause was shewn. They contended, that the sheriff was a ministerial officer; that he could not dispute the authority of the court out of which the writ issues, but was bound to execute and return it at his own peril. 6 Co. 54. That those cases in England, where the sheriff was not compelled to return writs issued against ambassadors or their retinue, depended upon the stat. 7 Ann., c. 12, which did not extend to this state. The Attorney-General, on the part of the sheriff, and by direction of the supreme executive council, shewed cause, and prayed that the rule might be discharged. He premised, that though the several states which form our federal republic, had, by the confederation, ceded many of the prerogatives of Sovereignty to the United States, yet these voluntary engagements did not injure their independence on each other; but that each was a sovereign, "with every power, jurisdiction, and right, not expressly given up." He then laid down two positions. First: that every kind of process, issued against a sovereign, is a violation of the laws of nations; and is in itself null and void. Second: that a sheriff can not be compelled to serve or return a void writ. After elaborate argument by the Attorney General and counsel for plaintiff in support of their respective contentions, "the Court," to quote the official report, "held the matter some days under advisement and at their next meeting the President delivered it as the judgment of the court. "That the rule made upon the sheriff, to return the writ issued against the commonwealth of Virginia, at the suit of Simon Nathan, should be discharged.'" To the same effect are the opinions of Chief Justice Marshall in the leading case of Sturges v. Crowninshield (4 Wheaton, 192), decided in 1819, in which that eminent jurist said: It must be recollected, that previous to the formation of the new constitution, we were divided into independent states, united for some purposes, but in most respects, sovereign. And in the leading case of Gibbons v. Ogden (9 Wheaton, 1, 187), decided in 1824, Chief Justice Marshall again said: As preliminary to the very able discussions of the constitution, which we have heard from the bar, and as having some influence on its construction, reference has been made to the political situation of these states anterior to its formation. It has been said, that they were sovereign, were completely independent, and were connected with each other only by a league. This is true. As far, therefore, as the United States were concerned, they were independent from July 4, 1776; and from March 1, 1781, they formed a Confederation under the Articles of Confederation and Perpetual Union. As far as the outer world was concerned, their independence of Great Britain and membership in the society of nations was recognized by treaties with France of February 6, 1778, with the Netherlands of October 8, 1782, with Sweden of April 3, 1783, and with Great Britain itself of September 3, 1783. The Declaration of Independence had ceased to be a hope or a promise; it had become a fact, and it was alike the task and the test of the Statesmen of the day to secure that form of government which to them and their successors should seem most likely to effect their safety and happiness. IV EARLY BACKGROUNDS OF THE AMERICAN CONSTITUTION-TRADING COMPANIES I do confess I did ever think that trading in companies is most agreeable to the English nature, which wanteth that same general vein of a republic which runneth in the Dutch and serveth to them instead of a company. (Sir Francis Bacon, 1616, Letters and Life of Francis Bacon, James Spedding, Editor, Vol. v, 1869, p. 259.) Their story [The Merchants of the Staple] is the story of the beginning of English exports on any considerable scale, and of a system which was devised for the purpose. The main interest of the system lies in the fact that the Government worked through private merchants, and used them as machinery for State purposes. (Sir C. P. Lucas, The Beginnings of English Overseas Enterprise, 1917, p. 55.) Henry by the grace of God King of England and France and Lord of Ireland, to all to whom these present letters shall come, greeting. Know ye that, We, .. ... Do will and grant, by the tenor of these presents, to the said merchants, that they may freely and lawfully assemble and meet together as often and whensoever they please, in some convenient and fitting place, where they shall think good, and that they may choose and elect among themselves certain sufficient and fit persons for their governors in those parts at their good liking; And furthermore we give and grant to the said Governors which are in such sort to be chosen by the aforesaid merchants, as much as in us lieth, special power and authority to rule and govern all and singular the merchants our subjects remaining in those parts and which hereafter shall come and repair to those parts, either by themselves or by their sufficient deputies, and to do unto them and every one of them in their causes and quarrels whatsoever, which are sprung up or shall hereafter spring up among them in the parts aforesaid, full and speedy justice, . And, by the common consent of the aforesaid merchants our subjects, to make and establish statutes, ordinances and customs as shall seem expedient in that behalf for the better government of the state of the said merchants our subjects, And to punish reasonably according to the quantity of their offence in that behalf all and singular the merchants our subjects which shall withstand, resist or disobey the aforesaid governors so to be chosen, or their deputies, or any of them, or any of the aforesaid statutes, ordinances and customs, Moreover we do ratify, confirm and approve, and as ratified, confirmed and approved we command firmly and inviolably then to be observed all just and reasonable statutes, ordinances and customs which shall be made and established by the said governors, so to be chosen in the form aforesaid, . (Charter Granted by Henry IV to the English_Merchants in Holland, Zeeland, Brabant, and Flanders, February 5th, 1406/7, Sir C. P. Lucas, The Beginnings of English Overseas Enterprise, 1917, pp. 184–186.) The Adventurers were given authority to meet at Calais and elect a governor, and "four and twenty of the most sad discreet and honest persons of divers fellowships of the said Merchants Adventurers to be his assistants, thirteen to form a quorum. To the governor and his deputies, with the twenty-four assistants, was entrusted the power of making laws for the fellowship. (Charter of 1505, Sir C. P. Lucas, The Beginnings of English Overseas Enterprise, 1917, p. 71.) The first embryo of the chartered company is no less important and no less interesting, in its bearing upon the Empire that was to be, than the growth and evolution of the system. We have seen of what sort was the earliest charter to the Merchant Adventurers. It was not a charter to give a trade monopoly, it was a charter to grant a constitution, a charter to enable Englishmen sojourning in foreign parts to govern themselves. The preamble sets forth the mischief that has occurred and is likely to grow, "through want of good and discreet rule and government," unless the king intervenes "for the procuring |