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Articles of Confederation served as the form of government after the year 1777.
$ 61. The Articles of Confederation.—The Articles of Confederation contained within themselves the germs of those evils which were to agitate the country for the next decade. The nature of this system of government can be shown by the second article, which provided that: "Each state retained its sovereignty, freedom and independence, and every power, jurisdiction and right that is not by this confederation expressly delegated to the United States in Congress Assembled.” The next article provided that “The states severally enter into a firm league of friendship with each other for their common defense, the security of their liberties and their general and mutual welfare." The United States was thus in its inception, not a country, but a league of sovereign states. The very word adopted as the name of their legislative body was one which had heretofore only been applied to the assemblies of diplomatic agents. If the new Congress of the United States was in some respects something more than a Congress of Ambassadors it was, nevertheless, in its powers, among the weakest of legislative bodies. The power of taxation was entirely lacking to it. Congress could indeed estimate the sum necessary for the expense of the government and make requisitions on the states for their respective quotas, but here its authority ceased. There were no means by which the collections of such quotas could be enforced and the states soon became hopelessly in arrears. The domestic relations of the governments of the United States, under the Articles of Confederation, were with the states. The people had no part in the general government and could not be acted upon by it, except indirectly. The resemblance between the Congress and a diplomatic body is further shown by the provisions allowing each state to determine the number of its representatives, between the limits of two and seven, and to recall them at pleasure. Each state paid its own members. The number of representatives from a state did not effect its voting power, as each state had one vote. The votes of nine states were required in order to pass a motion to engage in war, grant letters of marque and reprisal, enter into treaties or alliances, coin money, or regulate the value thereof, ascertain the sums and expenses necessary for the defense and welfare of the United States, or any of them, emit bills, borrow money on the credit of the United States, appropriate money, agree upon the number of vessels of war to be built or purchased, or the number of land or sea forces to be raised, or to appoint a Commander-in-Chief of the Army or Navy. As it was seldom that all the states were represented in Congress at the same time the restrictions imposed by this clause, upon free action by Congress, was even greater than appears upon its face. As if to emphasize and perpetuate the evils contained in this instrument the last article required the unanimous consent of all the thirteen states for the adoption of any amendments.”
$ 62. Judicial Powers of the United States Government Under the Articles of Confederation.--The Articles of Confederation made no provision for the creation of any executive department, and the judicial powers which it conferred upon the new federal government were of the most restricted character. The ninth article gave Congress the power of “appointing courts for the trial of piracies and felonies committed on the high seas, and establishing courts for receiving and determining finally appeals in all cases of captures, provided that no member of Congress shall be appointed a judge of any of the said courts.”
Under this authority a permanent Court of Appeal in prize cases of three judges was created in 1780. This court lacked the independence of the Federal Courts under the Constitution, and in several instances action was taken by Congress relative to pending cases. No permanent court was ever established for the trial of piracies and felonies on the high seas. By an act of Congress it was provided that the justices of the Supreme or Superior Court of judicature, and the judge of the Court of Admiralty of the several respective states, or any two or more of them, were designated as being constituted and appointed judges for hearing and trying such offenders.
Provision was also made in the Articles of Confederation for the settlement of controversies between different states or be.
tween persons claiming land under grants from different states. The second and third clauses of the ninth article were as follows:
“The United States, in Congress assembled, shall also be the last resort on appeal in all disputes and differences now subsisting or that hereafter may arise between two or more states concerning boundary, jurisdiction, or any other cause whatever; which authority shall always be exercised in the manner following: When the legislative or executive authority or lawful agent of any state in controversy with another shall present a petition to Congress, stating the matter in question and praying for a hearing, notice thereof shall be given on order of Congress to the legislative or executive authority of the other state in controversy, and a day assigned for the appearance of the parties by their lawful agents, who shall then be directed to appoint, by joint consent, commissioners or judges to constitute a court of hearing and determining the matter in question; but if they cannot agree Congress shall name three persons out of each of the United States, and from the list of such persons each party shall alternately strike out one, the petitioners beginning, until the number shall be reduced to thirteen; and from that number not less than seven or more than nine names, as Congress shall direct, shall, in the presence of Congress, be drawn out by lot, and the persons whose names shall be so drawn, or any five of them, shall be commissioners, or judges, to hear and finally determine the controversy, so always as a major part of the judges who shall hear the cause shall agree in the determination; and if either party shall neglect to attend at the day appointed, without showing reasons, which Congress shall judge sufficient, or, being present, shall refuse to strike, the Congress shall proceed to nominate three persons out of each state and the Secretary of Congress shall strike in behalf of such party absent or refusing; and the judgment and sentence of the court to be appointed, in the manner before prescribed, shall be final and conclusive; and if any of the parties shall refuse to submit to the authority of such court, or to appear or defend their claim or cause, the court shall, nevertheless, proceed to pronounce sentence or judgment, which shall in like manner be final and decisive, the judgment or sentence and other proceedings being in either case transmitted to Congress and lodged among the acts of Congress for the security of the parties concerned; provided that every commissioner, before he sits in judgment, shall take an oath, to be administered by one of the judges of the Supreme or Superior Court of the state where the cause shall be tried, 'well and truly to hear and determine tire matter in question according to the best of his judgment, without favor, affection or hope of reward,' provided also that no state shall be deprived of territory for the benefit of the United States.
"All controversies concerning the private right to soil, claimed under different grants of two or more states, whose jurisdictions as they may respect such lands and the states which passed such grants are adjusted, the said grants or either of them being at the same time claimed to have originated antecedent to such settlement of jurisdiction, shall, on the petition of either party to the Congress of the United States, be finally determined as near as may be in the same manner as is before prescribed for deciding disputes respecting territorial jurisdiction between different states."
There was but one instance of a trial and judgment under the auspices of Congress of a controversy between states. The case in question was the famous dispute between Pennsylvania and Connecticut over the Wyoming valley. This controversy, which arose out of the overlapping of the early grants to Pennsylvania and Connecticut, was decided in 1782 in favor of Pennsylvania. Several other disputes between different states were referred to Congress and reached various stages of development, but were all finally settled by agreement between the contending states.
*For an account of the case see
as follows: (a) Between Pennsylvania and Virginia over the Mason and Dixon's line, in
1779. (b) Between Virginia and New Jersey over a tract of land in Ohio, in 1784. (c) Between Massachusetts and New York, in 1784, over a land dispute. (d) Between South Carolina and Georgia, in 1786, over the jurisdiction over the upper waters of the Sa
$ 63. Causes Leading Up to Constitutional Convention.A discussion of the general history and condition of the country, while under the Articles of Confederation, does not fall within the scope of this work. These articles proved to be entirely inadequate and inefficient. A government without the power of taxation or the power to enforce its laws against any individual citizen, a government which could only treat conditionally with foreign powers and whose foreign policy could be thwarted by that of a single state, could command neither obedience at home nor respect abroad. Attempts to remedy the lack of power by Congress to raise revenue by an amendment to the Articles of Confederation allowing Congress, under strict limitations, the power to pay import duties, was twice defeated by the action of a single state.
The chain of events which culminated in the Constitutional Convention of 1787 began with a conference between the Commissioners of the States of Virginia and Maryland to discuss the navigation of the Potomac, held at Washington's house, at Mount Vernon, early in 1785.
During this meeting Washington took occasion to suggest that Pennsylvania should be invited to meet at a future time with the two states there represented, and that also while these states were together it might be well to discuss other matters of common interest to the states, such as a uniform system of duties and other commercial relations. These suggestions were acted upon by the Maryland legislature, which state, in sending its ratification of the compact as to the jurisdiction over the Potomac to Virginia, accompanied it with the suggestion that if Pennsylvania was to be consulted on this matter then Delaware should also be consulted, and that while these states were together they might as well also consult together regarding a uniform system of duties, and then, going still further, the Maryland legislature suggested that instead of having a conference of three or four states they have one of thirteen and in
vannah River. (e) Several disputes relative to the sovereignty over the territory of Vermont.
. For the general history of this period see Fiske's “The Critical Period of American History."