ARTICLES OF CONFEDERATION.

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powers to bind the whole rested upon the unwritten constitution, which rested upon the implied consent of the people. Success ratified the assumption of power. The Supreme Court afterwards held that this Congress had sovereign and supreme powers for national purposes.1 In governments, as in almost every other affair, if there is a disposition to pull all together, it does not make much difference where or how one takes hold; where there is a will there is a way; a familiar maxim -not always true, but it is the fundamental one of nearly every revolutionary movement, as history abundantly teaches.

The Articles of Confederation should be examined with reference to the union which they established; the form of government created, the powers conferred, and the powers omitted.

It would be well to remember, for the sake of its bearing upon the Constitution subsequently adopted, that the parties to these "Articles 99 were, in name at least, not the people of the states, but the states themselves.

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The instrument was styled " Articles of Confederation and perpetual Union between the States," and the whole body was called "The United States of America." Each state retained its sovereignty, freedom, power, jurisdiction, and right, not expressly delegated to the United States in Congress assembled. The union was described as "a firm league of friendship" between the states, for their common defence, the security of their liberties, and their mutual and general welfare; each state bound itself to assist every other against all assaults or force, offered on account of religion, sovereignty, or under any pretence. The free inhabitants of each state were to have all the privileges of free citizens in the several states; trade and intercourse were to be free, fugitives from justice should be given up, and full faith should be given in each state to the records, acts, and judicial proceedings of every other state.

The powers of government were vested in general Congress - this was of a single house. This body exercised all the executive, legislative, and judicial powers granted to the United States. Each state chose its own delegates in its own way, and maintained them at its own expense. It might have

Penhallow v. Doane, 3 Dallas, 54.

seven, but could not have less than two, delegates. Each state had one vote. No delegate could hold any office under the United States.

This government could declare war and establish peace; send and receive ambassadors; make treaties and alliances, but could make no treaty of commerce which should prevent a state from imposing such duties on foreigners as its own people were subjected to, or which should prohibit any exportation or importation. It could deal with captures or prizes made by land or sea; grant letters of marque or reprisal in times of peace, and establish courts to try piracies and felonies committed at sea, and determine appeals in cases of capture.

It could settle disputes between states, controversies concerning land titles, where two states had granted the same land.

It could coin money and regulate the value of coin, but it is interesting to note that it never coined anything but copper cents. It could establish weights and measures, regulate Indian affairs, establish post-offices, appoint officers other than regimental in the army, and govern and regulate both army and navy; it could ascertain and appropriate the sums necessary for the public service, build and equip a navy, borrow money, and emit bills on the credit of the United States, make requisitions upon each state for its quota of troops; but each state was to enlist its own quota of troops, equip, arm, and clothe them, at the expense of the United States. took the votes of nine states to do most of these things.

It

All charges of war or for the general welfare were to be paid out of the United States treasury, but the United States could not raise a dollar by tax, impost, or duty. It could only ask the states to raise this money. The commerce of the country was left to each state, and each state could levy what duty it chose on foreign imports. There was no power in the United States to enforce its requisitions. Congress could make a treaty, but could not compel a state to observe it. It could issue bills of credit, but could not command the money to pay them.

In all governments it will be found that the power over the purse is the greatest of all powers. Given that, and almost every other efficient power conferred will follow.

1

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The confederation, lacking this power, lacked the essential requisite of efficiency-The Congress under this government had no power to act upon the people. It could only request the states to act. This would have been very well, if all the states had been always willing and prompt to act as requested. But they were not. Sometimes one state would wait for another, and sometimes a state would dispute the justice or equality of the requisition made upon it, and would not obey it at all. Of course in the time of war the general government always wanted money, and wanted more than it was easy for the states to pay. This scheme of government was based upon the proposition that Congress should request, and then the states would perform. Under our present Constitution the United States, instead of asking a state to act, acts directly upon the people itself through its own laws and officers. If it wants to raise money, it can impose the tax, and send its own collectors to gather it in. It imposes duties upon imported goods, or upon whiskey and tobacco, and collects them itself. The confederation could not do this. If the United States now wants troops, it raises them. The confederation could not do this. Congress was the only governing body. Now we have the executive, judicial, and legislative departments. The pressure of the war, however, and the common feeling among the people that Congress must be sustained, helped this government through the war. It probably could have gone on till its close without any declared form of central government. The states and the people were willing to take the advice of Congress and obey it, perhaps more readily before the Articles of Confederation than after. But when the war was over, and its great burden of debt pressed upon the states, the confederated government practically broke down. It was pretty nearly a failure from the start, so far as vigor and efficiency were concerned.

Still the Articles of Confederation had many good features, some of which are preserved in our present Constitution.

The Articles were the intermediate step connecting the Declaration of Independence with the Constitution. We are i apt to disparage them because of their many imperfections.

This is a piece of historical injustice. Because it took two steps instead of one to reach success, the first step should not be disparaged. The Articles of Confederation certainly have the merit of being the first elaboration of the details by which the functions of the separate powers of the several states were consolidated into one national power.

Conceive the difficulty of doing this. I have spoken of the facilities which existed to promote the easy formation of the state constitutions; but to take from each state just that measure of its power which it might safely yield, and add to it the like measure from every other state, and therefrom construct the system of central power, which should always be helpful to all the states, and never injurious to any, and which should act for all when such action is needful, and trespass upon none, and which, withal, should be strong, dignified, and able, as it presents its unity to the world, and be respecting, respected, and just with regard to every state at home, is a problem more easily proposed than solved. It is easy enough to state broad, general principles of justice and liberty, and formulate them into glittering sentences. But to elaborate the details by which such generalities shall be made to do their perfect work is an intellectual and constructive labor, bearing about the same relation to the former as the invention of a steam-engine bears to the description of it.

It is easy enough to declare that every man is the equal in right of every other man; that governments are for the benefit of the governed; that the consent of the people is the foundation of authority. Such declarations had become threadbare before our Declaration of Independence was written. Liberty has been the aspiration of the human race always. But authority has crushed it out. All through the ages the hand of the governor has been heavy upon the governed.

The people of modern times are working out this system of representation of the people. They hope to make it the regulator of authority and the preserver of liberty. The American people have carried it further than any other. By it they seek to establish and maintain government for the benefit of

WEAKNESS OF THE CONFEDERACY.

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the governed. Now by the Articles of Confederation a long step was taken in the direction of success. The end sought was known to be good; the methods adopted were found to be bad; but the tests of experience were fertile in suggestions of remedies.

The Articles of Confederation brought the states into close relations, opened up trade and intercourse with each other, and forbade the passage of hostile trade laws. The citizen of one state was not an alien and stranger when he went into a neighboring state. The general Congress could negotiate peace with Great Britain, free from the vexations which must have existed, if every state had been obliged to do it separately. Consider the difficulty, if Great Britain had made. peace with Massachusetts and Pennsylvania, and not with New York. The war that had been waged against the common enemy might have been changed to a war among the states, with Great Britain as the ally of some and the enemy of others.

The treaty of peace was at last signed on the 3d day of September, 1783, and the independence of the United States was established. The new government had now before it the perils of a peace establishment. The United States government had contracted a debt of about $42,000,000, which it was in honor bound to pay. The several states had contracted state debts amounting in the aggregate to about $26,000,000. The country came out of the war very poor, so poor, indeed, that the revolutionary soldier was discharged practically unpaid. He had nominal pay for only three months, and this was in scrip worth two and sixpence for twenty shillings.

With the accession of peace the weakness of the confederacy was painfully exhibited. The first duty of Congress was to provide some pay for its discharged soldiers. The states would not all respond in full. It was necessary to provide for the payment of the public debt, or to apportion it among the states, to make such uniform regulations of commerce as would be just to all the states, and to discriminate among foreign states by extending or denying to them the privileges they extended or denied to us. It was desirable to