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CHAPTER IV.

DECLINE AND FALL OF THE CONFEDERATION.

§ 243. ANY survey, however slight, of the confederation will impress the mind with the intrinsic difficulties which attended the formation of its principal features. It is well known that upon three important points, touching the common rights and interests of the several States, much diversity of opinion prevailed, and many animated discussions took place. The first was, as to the mode of voting in Congress, whether it should be by States, or according to wealth or population. The second, as to the rule by which the expenses of the Union should be apportioned among the States. And the third, as has been already seen, relative to the disposal of the vacant and unappropriated lands in the western territory.1

§ 244. But that which strikes us with most force is the unceasing jealousy and watchfulness everywhere betrayed in respect to the powers to be confided to the general government. For this several causes may be assigned. The colonies had been long engaged in struggles against the superintending authority of the crown, and had practically felt the inconveniences of the restrictive legislation of the parent country. These struggles had naturally led to a general feeling of resistance to all external authority; and these inconveniences to extreme doubts, if not to dread of any legislation not exclusively originating in their domestic assemblies. They had, as yet, not felt the importance or necessity of union among themselves, having been hitherto connected with the British sovereignty in all their foreign relations. What would be their fate as separate and independent communities; how far their interests would coincide or vary from each other as such; what would be the effects of the Union upon their domestic peace, their territorial interests, their external commerce, their political security, or their civil liberty, were points to them wholly of a speculative character, in regard to which various opinions might

12 Pitk. Hist. 16. [Tucker, Hist. of U. S. I. 311; Hildreth, Hist. of U. S. III.

be entertained, and various and even opposite conjectures formed upon grounds apparently of equal plausibility. They were smarting, too, under the severe sufferings of war; and hardly had time to look forward to the future events of a peace; or if they did, it would be obviously a period for more tranquil discussions, and for a better understanding of their mutual interests. They were suddenly brought together, not so much by any deliberate choice of a permanent union, as by the necessity of mutual co-operation and support in resistance of the measures of Great Britain. They found themselves, after having assembled a general Congress for mutual advice and encouragement, compelled by the course of events to clothe that body with sovereign powers in the most irregular and summary manner, and to permit them to assert the general prerogatives of peace and war, without any previous compact, and sanctioned only by the silent acquiescence of the people. Under such circumstances each State felt that it was the true path of safety to retain all sovereign powers within its own control, the surrender of which was not clearly seen, under existing circumstances, to be demanded by an imperious public necessity.1

§ 245. Notwithstanding the declaration of the articles, that the union of the States was to be perpetual, an examination of the powers confided to the general government would easily satisfy us that they looked principally to the existing revolutionary state of things. The principal powers respected the operations of war, and would be dormant in times of peace. In short, Congress in peace was possessed of but a delusive and shadowy sovereignty, with little more than the empty pageantry of office. They were indeed clothed with the authority of sending and receiving ambassadors; of entering into treaties and alliances, of appointing courts for the trial of piracies and felonies on the high seas; of regulating the public coin; of fixing the standard of weights and measures; of regu

1 Dr. Rush, in apologizing for the defects of the confederation, has observed, "The confederation, together with most of our State constitutions, was formed under very unfavorable circumstances. We had just emerged from a corrupted monarchy. Although we understood perfectly the principles of liberty, yet most of us were ignorant of the forms and combinations of power in republics. Add to this the British army in the heart of our country, spreading desolation wherever it went." 1 Amer. Museum, 8. See also 1 Amer. Museum, 270. The North American Review, for Oct., 1827, contains a summary of some of the prominent defects of the confederation. Art. I. p. 249, &c. [And see History of the Constitution by Curtis, B. II.]

lating trade with the Indians; of establishing post-offices; of borrowing money, and emitting bills on the credit of the United States; of ascertaining and appropriating the sums necessary for defraying the public expenses, and of disposing of the western territory. And most of these powers required for their exercise the assent of nine States. But they possessed not the power to raise any revenue, to levy any tax, to enforce any law, to secure any right, to regulate any trade, or even the poor prerogative of commanding means to pay its own ministers at a foreign court. They could contract debts, but they were without means to discharge them. They could pledge the public faith, but they were incapable of redeeming it. They could enter into treaties, but every State in the Union might disobey them with impunity. They could contract alliances, but could not command men or money to give them vigor. They could institute courts for piracies and felonies on the high seas, but they had no means to pay either the judges or the jurors. In short, all powers which did not execute themselves were at the mercy of the States, and might be trampled upon at will with impunity.

§ 246. One of our leading writers addressed the following strong language to the public: 1 "By this political compact the United States in Congress have exclusive power for the following purposes, without being able to execute one of them. They may make and conclude treaties, but can only recommend the observance of them. They may appoint ambassadors, but cannot defray even the expenses of their tables. They may borrow money in their own name on the faith of the Union, but cannot pay a dollar. They may coin money, but they cannot purchase an ounce of bullion. They may make war, and determine what number of troops are necessary, but cannot raise a single soldier. In short, they may declare everything, but do nothing."

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§ 247. Strong as this language may seem, it has no coloring beyond what the naked truth would justify.8 Washington himself,

1 1 Amer. Mus. 1786, p. 270.

2 Language equally strong, and almost identical in expression, will be found in Mr. Jay's Letter, addressed to the people of New York, 1787; 3 Amer. Museum, 554, 556. 3 Mr. Justice Patterson, in Hylton v. The United States, 3 Dall. 176, after remarking that Congress, under the confederation, had no coercive authority, said, “Requisitions were a dead letter, unless the State legislatures could be brought into action; and when they were, the sums raised were very disproportional."

[Mr. Jefferson was of opinion that the confederation possessed powers of coercion by

that patriot without stain or reproach, speaks in 1785 with unusual significancy on the same subject. "In a word," says he, "the confederation appears to me to be little more than a shadow without the substance; and Congress a nugatory body, their ordinances being little attended to."1 The same sentiments may be found in many public documents.2 One of the most humiliating proofs of the utter inability of Congress to enforce even the exclusive powers vested in it is to be found in the argumentative circular, addressed by it to the several States, in April, 1787, entreating them in the most supplicating manner to repeal such of their laws as interfered with the treaties with foreign nations. "If in theory," says the historian of Washington, "the treaties formed by Congress were obligatory, yet it had been demonstrated that in practice that body was absolutely unable to carry them into execution." 4

§ 248. The leading defects of the confederation may be enumerated under the following heads:

In the first place, there was an utter want of all coercive authority to carry into effect its own constitutional measures.5 This, of itself, was sufficient to destroy its whole efficiency, as a superintending government, if that may be called a government which possessed no one solid attribute of power. It has been justly observed that, "a government authorized to declare war, but relying on independent States for the means of prosecuting it; capable of contracting debts, and of pledging the public faith for their payment, but depending on thirteen distinct sovereignties for the preservation of that faith, could only be rescued from ignominy and contempt by finding those sovereignties administered by men means of which the obligations of the several States might be enforced. Jefferson's Works, IX. 291. But as such powers, if possessed, could only be exercised against the States as States, the process of coercion must necessarily be such as independent nations resort to under similar circumstances, that is to say, the display or exercise of military or naval force, the seizure and confiscation of property, the laying of embargoes upon commerce or intercourse, &c.; and the very exercise of such coercive authority, with a view to enforce the objects of the Union, would almost of necessity result in its overthrow. See Life and Correspondence of James Iredell, II. 193.]

15 Marshall's Life of Washington, 64. See also 2 Pitk. Hist. 217; North Amer. Rev. Oct. 1827, p. 249, 254, 256, 259.

2 See 1 Amer. Museum, 275, 290, 364, 430, 447, 448, 449. The Federalist, No. 15 to 22; 2 Amer. Museum, 383; Id. 395, &c.; Amer. Museum, 62 to 69; Id. 73; Id.

334 to 338; Id. 342; Id. 348, &c.; Id. 549, &c.; 1 Kent's Comm. 201.

31 Amer. Museum, 352.

+5 Marshall's Life of Washington, 83.

51 Jefferson's Corresp. 63.

That is,

exempt from the passions incident to human nature.” 1 by supposing a case in which all human governments would become unnecessary, and all differences of opinion would become impossible. In truth, Congress possessed only the power of recommendation. It depended altogether upon the good-will of the States, whether a measure should be carried into effect or not. And it can furnish no matter of surprise, under such circumstances, that great differences of opinion as to measures should have existed in the legislatures of the different States; and that a policy, strongly supported in some, should have been denounced as ruinous in others. Honest and enlightened men might well divide on such matters; and in this perpetual conflict of opinion the State might feel itself justified in a silent or open disregard of the act of Congress.

§ 249. The fact corresponded with the theory. Even during the Revolution, while all hearts and hands were engaged in the common cause, many of the measures of Congress were defeated by the inactivity of the States; and in some instances the exercise of its powers was 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. 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

15 Marshall's Life of Washington, 31. See also 1 Kent's Comm. 199; 1 Elliot's Debates, 208, 209, 210, 211; North Amer. Rev. Oct. 1827, p. 249, 257, &c.; The Federalist, No. 15.

2 The Federalist, No. 15.

3 Journals of Congress, 6th of March, 1779, 5th vol. p. 86, &c. to 90.

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