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$ 60. A recent writer describes the nature of the Confederation and the influences which led to it, in the following manner:1 “It is true, however, that this principle of one nationality thus embodied in our Declaration of Independence, was not clearly and consciously before the mind of the country at the time that declaration was made. The Union which was thus constituted was generally understood to be chiefly for mutual defence, which left the question between one or many sovereignties to be finally determined by future contingencies. Neither was it plain even to the national men of that day, either how much, or what sort of union was necessary to constitute a national government. Clear and adequate conceptions of what they were dimly striving to realize could not come in a moment, could not be other than the growth of years of effort. Also, the colonial, now the state, government were first in the field, in full organization and activity, with already more than a century of growth and consolidation, and they were intensely jealous of each other. § 61.
From these causes it resulted that the state governinents, seduced by the charms of separate independence and nationality, immediately assumed to exercise all those sovereign powers which had been reclaimed from the crown of Great Britain by an act of the people of all the states in the Union. And this assumption, although it was not so understood at the time, was, in its true character, an usurpation.
Here we see that state sovereignty on this continent had its birth in a palpable usurpation, which has never been formally sanctioned by the people of a single state, much less by the people of all the states, which would have been necessary, after the Declaration of Independence, to legitimate it in any one of them.
62. “Having in this manner possessed themselves of sovereign powers, the states proceeded to delegate a portion of them to a confederated government under the celebrated Articles of Confederation. And here again we find the logic of usurpation ruling the whole procedure. For the states
1 See the Princeton Review for October 1861, p. 615. The article is from the pen of J. H. McIlvaine, D. D., Prof. of Polit Science, Coll. of N. J.
had no right, upon any theory of popular government, to form that Confederation. Whatever sovereign powers they now possessed they claimed at least to hold from the people, whose acquiescence in what, as we have seen, was at first an usurpation, did give it an informal validity. No other claim would have been tolerated for a moment. But it is evident that no government holding from the people, can have any right to alienate its sovereign powers in order to form another government. The powers which a government holds in trust from the people, it can have no right to resign into any other hands except those of the people themselves. The states had no more right to cede away the least of their sovereign powers, in order to form another government for the United States, than they had to abdicate the whole in favor of the British crown. The adoption of the Articles of Confederation by the states was an act of irresponsible power in the same line of procedure by which that power had been at first acquired.
$ 63. “ The necessity for union, and the pressure of the national principle as embodied in the Declaration of Independence, were so strong that the Articles of Confederation could not represent simply and purely the idea of state sovereignty; and a very cursory examination of these articles in the light of contemporary discussions, reveals the fact that, they recognize both of these hostile principles limiting, and, to a certain extent, neutralizing each other. In certain provisions it seems impossible not to recognize a decided representation of the principle of one nationality, and by no means a feeble tentative toward the formation of a national government. This attempt, however, was frustrated by the number and extent of the sovereign powers claimed as reserved to themselves by the states, and by them prohibited to the Confederacy ; in which the principle of state sovereignty was represented as predominant."
$ 61. An examination of the most important features of the Articles of Confederation, will clearly show that the foregoing language is entirely correct. I shall first present a short abstract of the whole instrument, and shall then describe the general character of the government which it constitutes, and
ascertain and unfold the ideas which were emtodied in this political fabric. This review will be of great assistance in the study of the present Constitution. Nothing can better indicate the nature of the existing organic law than the sharp contrasts between it and the Articles of Confederation.
$ 65. The Articles themselves purport to be made by the “Delegates of the United States of America in Congress assembled,” and to be ratified by the delegates in virtne of power and authority for that purpose specially conferred upon them by the state legislatures, and are entitled “ Articles of Confederation and Perpetual Union between the States.” The instrument establishes the following fundamental rules and stipulations for the government of the federation :
1. That its name shail be the United States of America.
2. That each state retains its sovereignty and power which is not by this Confederation expressly delegated to the United States in Congress assembled.
3. That the states severally enter into a firm league of friendship with each other for their common defence and wel. fare.
4. That the free inhabitants of each state shall be entitled to all the privileges of free citizens in the several states; that no citizen of one state shall be subject to any restrictions upon trade and commerce in any other state which are not also imposed upon the citizens of the latter; that no duties shall be laid by any state upon the property of the United States ; that fugitives from justice shall be given up, and full faith given to the records and judicial proceedings of every state.
5. That a congress of delegates shall be established in the vallowing manner: Each year, every state shall appoint and maintain, in whatever manner it shall please, not less than two nor more than seven delegates, who shall meet yearly ; but, in the congress thus constituted, each state shall be entitled to but one vote.
6. That no state, without the consent of the United States in Congress assembled, shall send or receive any ainbassador; nor make any treaty with a foreign nation or with another state ; nor lay any duty or impost which will interfere with
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, as ertain 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 in 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.
966. 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 inay 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