§ 270. Whatever may be thought as to some of these enumerated defects, whether they were radical deficiencies or not, there cannot be a doubt that others of them went to the very marrow and essence of government. There had been, and in fact then were, different parties in the several States, entertaining opinions hostile or friendly to the existence of a general government.1 (a) The former would naturally cling to the State governments with a close and unabated zeal, and deem the least possible delegation of power to the Union sufficient (if any were to be permitted), with which it could creep on in a semi-animated state. The latter would as naturally desire that the powers of the general government should have a real, and not merely a suspended vitality; that it should act and move and guide, and not merely totter under its own weight, or sink into a drowsy decrepitude, powerless and palsied. But each party must have felt that the confederation had at last totally failed as an effectual instrument of government; that its glory was departed, and its days of labor done; that it stood the shadow of a mighty name; that it was seen only as a decayed monument of the past, incapable of any enduring record; that the steps of its decline were numbered and finished; and that it was now pausing at the very door of that common sepulchre of the dead whose inscription is, Nulla vestigia

retrorsum.

§ 271. If this language should be thought too figurative to suit the sobriety of historical narration, we might avail ourselves of language as strongly colored and as desponding, which was at that period wrung from the hearts of our wisest patriots and statesmen. It is, indeed, difficult to overcharge any picture of the gloom and apprehensions which then pervaded the public councils as well as the private meditations of the ablest men of the country. We are told by an historian of almost unexampled fidelity and moderation, and himself a witness of these scenes, that "the confederation was apparently expiring from mere debility. Indeed, its preservation in its actual condition, had it

15 Marsh. Life of Washington, 33.

25 Marsh. Life of Wash. 92, 93, 94, 95, 96, 104, 113, 114, 118, 120; 1 Kent's Comm. 202; 1 Tuck. Black. Comm. App. note D, 142, 156; 1 Elliot's Debates, 208 to 213; 3 Elliot's Debates, 30, 31 to 34.

8 5 Marsh. Life of Wash. 124.

(a) See Van Buren, Political Parties, 82; Hammond, Political Hist. of N. Y. I. 2.

been practicable, was scarcely to be desired. Without the ability to exercise them, it withheld from the States powers which are essential to their sovereignty. The last hope of its friends having been destroyed, the vital necessity of some measure which might prevent the separation of the integral parts of which the American empire was composed, became apparent even to those who had been unwilling to perceive it." 1

1 Mr. Jefferson uses the following language: "The alliance between the States, under the old Articles of Confederation, for the purpose of joint defence against the aggressions of Great Britain, was found insufficient, as treaties of alliance generally are, to enforce compliance with their mutual stipulations; and these once fulfilled, that bond was to expire of itself, and each State to become sovereign and independent in all things." 4 Jefferson's Corresp. 444. Thus, he seems to have held the extraordinary opinion, that the confederation was to cease with the war, or, at all events, with the fulfilment of our treaty stipulations. (a)

(a) In some instances, however, Mr. Jefferson appears to have spoken of the confederation as possessing considerable vitality, energy, and vigor.

In a letter to John Adams, of the date of February 23, 1787, referring to what Mr. Adams had said of the Congress, that it "is not a legislative but a diplomatic assembly," Mr. Jefferson says: "Separat ing into parts the whole sovereignty of our States, some of these parts are yielded to Congress. Upon these I should think them both legislative and executive, and that would have been judiciary also, had not the confederation required them for certain purposes to appoint a judiciary.

It has accordingly been the decision of our courts that the confederation is a part of the law of the land, and superior in authority to the ordinary laws, because it cannot be altered by the legislature of any one State. I doubt whether they are at all a diplomatic assembly." Jefferson's Works, II. 128; Works of John Adams, VIII. 433. Elsewhere Mr. Jefferson expressed the opinion that the confederation had the power to coerce the performance by individual States of national duties, and that it was implied in the compact. Jefferson's Works, IX. 291; Life of Madison, by Rives, I. 302.

BOOK III.

THE CONSTITUTION OF THE UNITED STATES.

CHAPTER I.

ORIGIN AND ADOPTION OF THE CONSTITUTION.

§ 272. In this state of things, commissioners were appointed by the legislatures of Virginia and Maryland, early in 1785, to form a compact relative to the navigation of the rivers Potomac and Pocomoke, and the Chesapeake Bay. The commissioners having met at Alexandria in Virginia in March, in that year, felt the want of more enlarged powers, and particularly of powers to provide for a local naval force and a tariff of duties upon imports. (a) Upon receiving their recommendation, the legislature of Virginia passed a resolution for laying the subject of a tariff before all the States composing the Union. Soon afterwards, in January, 1786, the legislature adopted another resolution appointing commissioners, "who were to meet such as might be appointed by the other States in the Union at a time and place to be agreed on, to take into consideration the trade of the United States; to examine the relative situation and trade of the States; to consider how far a uniform system in their commercial relations may be necessary to their common interest and their permanent harmony; and to report to the several States such an act, relative to this great object, as, when unanimously ratified by them, will enable the United States in Congress assembled to provide for the same." 1 (b)

§ 273.. These resolutions were communicated to the States, and a convention of commissioners from five States only, namely,

15 Marsh. Life of Wash. 90, 91; 1 Kent's Comm. 203.

(a) Rives, Life of Madison, I. 548; II. 57.

(b) Rives, Life of Madison, II. 60.

New York, New Jersey, Pennsylvania, Delaware, and Virginia, met at Annapolis in September, 1786.1 (a) After discussing the subject, they deemed more ample powers necessary, and as well from this consideration, as because a small number only of the States was represented, they agreed to come to no decision, but to frame a report to be laid before the several States as well as before Congress.2 In this report they recommended the appointment of commissioners from all the States, "to meet at Philadelphia on the second Monday of May, then next, to take into consideration the situation of the United States; to devise such further provisions as shall appear to them necessary to render 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 legislature of every State, will effectually provide for the same."8 (b)

1 1 Amer. Museum, 267; 2 Pitk. Hist. 218.

25 Marsh. Life of Wash. 97; 2 Pitk. 218; 1 U. S. Laws (Bioren & Duane's edit. 1815), pp. 55, &c. to 58.

81 Amer. Muscum, 267, 268.

(a) Rives, Life of Madison, II. 98, 117, auspicious blessings prepared for them by 125.

(b) Rives, Life of Madison, II. 127. The preamble of this act is worthy of preservation as a recognition of the immediate and imperative necessity for radical changes in the bond of union. "Whereas the General Assembly of this Commonwealth, taking into view the actual situation of the confederacy, as well as reflecting on the alarming representations made, from time to time, by the United States in Congress, particularly in their act of the 15th day of February last, can no longer doubt that the crisis is arrived at which the good people of America are to decide the solemn question whether they will, by wise and magnanimous efforts, reap the just fruits of that independence which they have so gloriously acquired, and of that Union which they have cemented with so much of their common blood; or whether, by giving way to mutual jealousies and prejudicies, or to partial and tran sitory interests, they will renounce the

the Revolution, and furnish to its enemies an eventual triumph over those by whose virtue and valor it has been accomplished: and whereas the same noble and extended policy, and the same fraternal and affectionate sentiments which originally determined the citizens of this Commonwealth to unite with their brethren of the other States in establishing a federal government, cannot but be felt with equal force now, as motives to lay aside every inferior consideration and to concur in such further concessions and provisions as may be necessary to secure the great object for which that government was established, and to render the United States as happy in peace as they have been glorious in war.' The careful wording of this preamble was due to a desire, as Mr. Madison says, "to give this subject a very solemn dress, and all the weight that could be derived from a single State." Letter to Washington, Rives's Life of Madison, II. 135.

"

§ 274. On recieving this report, the legislature of Virginia passed an act for the appointment of delegates to meet such as might be appointed by other States, at Philadelphia.1 (a) The report was also received in Congress. But no step was taken until the legislature of New York instructed its delegation in Congress to move a resolution, recommending to the several States to appoint deputies to meet in convention for the purpose of revising and proposing amendments to the federal Constitution.2 On the 21st of February, 1787, a resolution was accordingly moved and carried in Congress, recommending a convention to meet in Philadelphia, on the second Monday in May ensuing, "for the 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." The alarming insurrection then existing in Massachusetts, without doubt, had no small share in producing this result. The report of Congress on that subject at once demonstrates their fears and their political weakness.*

§ 275. At the time and place appointed, the representatives of twelve States assembled. Rhode Island alone declined to appoint any on this momentous occasion.5 (b) After very protracted deliberations, the convention finally adopted the plan of the present Constitution on the 17th of September, 1787; and by a contemporaneous resolution, directed it to be "laid before the United States in Congress assembled," and declared their opinion, "that it should afterwards be submitted to a convention of delegates chosen in each State by the people thereof, under a recommendation of its legislature for their assent and ratification;" (c) and

15 Marsh. Life of Wash. 98.

2 It was carried in the senate of the State by a majority of one only. 5 Marsh. Life of Wash. 125.

82 Pitk. Hist. 219; 5 Marsh. Life of Wash. 124, 125; 12 Journ. of Congress, 12 13, 14; 2 Pitk. Hist. 219, 220, 222.

* 2 Pitk. Hist. 220, 221; Journ. of Congress, Oct. 1786; 1 Secret Journ. 268. 65 Marsh. Life of Wash. 128.

5 Marsh. Life of Washington, 128, 129; Journal of Convention, 370; 12 Journ. of Congress, 109; 2 Pitk. Hist. 224, 264.

(a) Rives, Life of Madison, II. 132.

(b) Arnold, Hist. of Rhode Island, II. 537.

(c) Rives, Life of Madison, II. 477.