stipulations contained in treaties entered into by the United States in Congress assembled; nor, in time of peace, keep up any vessels of war or bodies of troops, except its own militia; nor engage in war, unless invaded; nor fit out privateers, except after a declaration of war by the United States in Congress assembled.

7. That, when troops are raised by any state for the common defence, all officers of and under the rank of colonel shall be appointed by that state.

8. That all common expenses shall be defrayed out of a common treasury, to be supplied by the states in proportion to the amount of private lands in each; but the levying and collecting taxes to pay their proportions are to be entirely under the control of the legislatures of the states.

9. That the powers of the United States in Congress assembled shall be as follows: To declare war and make peace; to send and receive ambassadors; to make treaties, under the restriction that no treaty shall be made destroying the right of a state to lay imposts and duties; to establish rules for the disposition of captures and prizes made in war; to appoint final courts of appeal in prize causes; to decide, on appeal, all controversies between two or more states, in a manner particularly defined; to regulate the value of all coin struck by the United States or by the respective states; to regulate the standard of weights and measures; to establish and regulate post-offices; to appoint all officers of the land forces in the service of the United States, excepting regimental officers, and all officers of the naval forces; to make rules for the government of these forces; to appoint a member of Congress president of that body; to ascertain the sum of money necessary for the expenses of the United States, and appropriate the same when received; to borrow money; to build and equip a navy; to agree upon the number of land forces needed, and to make requisitions upon each state for its quota of such forces, which quotas are then to be raised and furnished by the respective states.

A concurring vote of nine states in Congress assembled was made necessary to enable that body to engage in war,

grant letters-of-marque, make treaties, coin or regulate the value of money, ascertain the sums of money necessary for the public expense, emit bills, borrow money, appropriate money, create or increase a navy, raise land forces, or appoint a commander-in-chief. All other measures, except adjourning for want of a quorum, required a concurring vote of a majority of the states in Congress assembled.

Articles 10, 11, and 12 are unimportant.

The final article was as follows: Each state shall abide by the determination of the United States in Congress assembled, on all questions which by this Confederation are submitted to them. And the articles of confederation shall be inviolably observed by the several states, and the Union shall be perpetual; nor shall any alteration, at any time hereafter, be made any of them, unless such alteration be agreed to in a Congress of the United States, and be afterwards confirmed by the legislature of every state.

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§ 66. Such, in substance, was the fundamental law of the Confederation. But I have used an incorrect term. This was in no respect a law; it had none of the essential elements of law. It was not enacted by the supreme power in the state; it was not cast in the form of a command, nor did it confer on the government which it constituted any power to utter a command; it imposed no legal duties; it contained no sanctions by which obedience could be compelled. It was rather in its nature a treaty, to be observed as long as the contracting powers saw fit to yield to its requirements, and no farther. In truth, it was disregarded from the very beginning, and at last became a mere dead letter, with capacity only to hinder and thwart all attempts at development, to destroy all national and individual prosperity.

Some salient points in this constitution and government clearly indicate its character, and reveal the ideas which were controlling in its formation. We may profitably notice these points, and pass by the minor details which were contrived to make the plan effective.

§ 67. I. The first important and distinctive feature to be noticed is the entire absence of any formal recognition of, or

reference to, the existence of a nation. The People of the United States are not once mentioned; the presence and supreme attributes of that organic aggregate are completely ignored; no power is represented as derived from them, and none as conferred upon them; for even the slender concessions made by the states are not granted to the People, nor even to the United States as a political society distinct from its government, but only to the United States as represented by its government, to the United States in Congress assembled." As a consequence, there is no status of United States citizenship created or recognized; we have free inhabitants and citizens of the respective states, but no citizen of the United States.

§ 68. The formative elements which were combined in this political structure were not individuals, but were the sovereign, independent states, united in a friendly league for their mutual defense and welfare; and all powers not expressly delegated to the Congress were declared to be reserved by the several states to themselves. Here we perceive that the national idea had been tacitly abandoned, or, at least, totally lost sight of. The People who revolted, and who, through their delegates, had announced to the world their own independence and sovereignty, had no part nor voice in this new creation. They never adopted it by any formal act. It was not even the work of their delegates. Nay, the people of the respective states were not its direct authors; but the legislatures of these commonwealths assumed the power thus to restrain the sovereignty of their own constituents.

It is plain that, upon the extreme States'-Right theory even, this assumption was a palpable usurpation. No legislature is so supreme that it can, without direct authority, cede away the inherent political attributes and organic social existence of the body-politic it represents. But the jealousies of the state politicians, and the local rivalries fostered by them, had temporarily blinded the people and their public servants to their true interests, and to the rightful claims of the nation. If some pure patriots perceived the real position of affairs, and attempted to impress upon their countrymen the national

ideas, their voices were drowned in the clamors of state partisans, and their arguments and warnings were powerless against state pride and prejudice.

§ 69. II. The second feature to be noticed is, that the few powers possessed by the United States were not directed against individuals, but against communities, against the respective states. Congress could not take money from the people by means of taxation; it could only direct the states to act. Congress could not enlist a soldier; it could only determine the number of troops needed for the common defence, and request the states to furnish their respective amounts. And, if we go through the whole range of its legislative and executive functions, we shall find the same principle at work,

a government acting upon independent states considered as separate, organized, political societies, and not upon the single individuals whose aggregates compose those societies.

There is no more important and distinctive element than this in the whole scheme of the confederated government,nothing in which it contrasts more strongly with the present Constitution. For herein lies the very essence of the States'Right theory; herein was distinctly embodied the claim of the states to paramount sovereignty. This was the crowning feature of the old Confederation, the perfected result of those notions which had then obtained the supremacy, and the conceded cause of all the disastrous and miserable consequences which followed from ill-considered and self-destructive organization. And, finally, this feature was entirely abandoned, and the government restored to its true basis, by the convention which framed, and the people who adopted, the present Constitution.

§ 70. III. The third point to be noticed is, that the United States government possessed, absolutely, no authority to enforce any of its enactments, to compel obedience to any of its laws. In fact, it could only recommend, it could not command. It was left entirely to the option of the respective states, whether or not any of the congressional requisitions upon them should be observed. The government was without any coercive means of raising even the smallest amount

of money. If it was fortunate enough to borrow, it could offer no assurance of an ability to pay. It could lay no duties on imports or exports, levy and collect no taxes, command none of the resources for maintaining the common defence or promoting the common welfare. This inability to raise money by any authoritative measures, was the essential element of weakness, which made it a government in name only, a mere solemn sham, and exposed it to the ridicule of its own people and of foreign nations.

§ 71. Again, the Congress was the sole organ of the government. No independent executive was constituted to direct the national affairs; no independent judiciary was authorized to expound the provisions of the compact and determine the functions of the central and the state legislatures. Congress might, indeed, prescribe regulations for the disposition of prizes and captures taken in war, but could give these rules no sanction. It could create final courts of appeal in prize causes, but the decisions of these tribunals were mere nullities, for there was no executive arm to enforce them. The legislatures and courts of the respective states retained the substantial power, and this they constantly used with hardly a thought or notice of the shadowy attributes conferred upon the general govern

ment.

§ 72. IV. The last general feature to be noticed is, the limited extent of the nominal powers granted to the United States Congress. Most of these had reference to the prosecution of war. The Articles of Confederation, in a very great measure, relate to a state of hostilities. The condition of peace, and the ordinary operations of government in seasons of tranquillity, are barely alluded to; all this was left to the local commonwealths. Congress might regulate the value of coin; might, together with the states, coin money; might fix the standard of weights and measures; might establish postoffices; and this brief enumeration exhausts the list of those powers which have reference to internal affairs, unconnected with war. In the foreign relations its functions were nominally unlimited, for it might declare war, make treaties, send and receive ambassadors. But these concessions were prac