CHAPTER II.

THE CONFEDERATION.

§ 35. The scheme or plan of Confederation of the American Colonies, under the title of "The United States of America," was first announced in a resolution of the Continental Congress which was adopted the eleventh day of June, 1776. As early as the 21st of July, 1775, Dr. Franklin presented a plan to Congress for a "perpetual union of the Colonies." The paper contained a provision, however, for the return of the Colonies to their allegiance to Great Britain. (Madison Papers, p. 688.) Mr. Josiah Bartlett, of New Hampshire, was placed at the head of the committee appointed to prepare the Articles of Confederation, and it may be assumed fairly, in the absence of any authentic statement, that he proposed the resolution and that he originated the name by which the nation has been known since the Declaration of Independence. Its earliest recognition by a foreign nation was made by France in the treaty of alliance of 1778.

§ 36. It was not until the 15th of November, 1777, that the report of the committee was adopted by the Congress, and its full and final ratification was delayed until the thirtieth day of January, 1781, when the plan was accepted by Maryland, the last of the Colonies to enter into the Confederation of States.

The first Congress under the Articles of Confederation met at Philadelphia the second day of March, 1781.

The historical value of the Articles of Confederation is to be seen in the light which they shed upon the Constitution and the evidence which they furnish of the great and salutary changes in representative and popular opinion between the year 1777 and the year 1787.

§ 37. The style or name of the Confederacy, "The United States of America," was declared in the first article, but all inferences in favor of a consolidated government were precluded by the second article, which guaranteed to each State "its sovereignty, freedom and independence, and every power, jurisdiction and right" not "expressly delegated to the United States in Congress assembled."

This limitation of authority in Congress was strengthened by the use of the word "league" as expressing the nature of the bond by which the members of the Confederacy were bound to each other.

Whenever the word "Union " is used it is so connected with the phrase "Articles of Confederation" as to make it the equivalent of the word "league."

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§ 38. The States were placed upon an equality, and each State was to be represented by not less than two nor by more than seven members who were empowered to give one vote. As a guard against the concentration and perpetuity of power it was declared that no person should act as a delegate for more than three years in any term of six years; that no delegate should act as president for more than one year in three years;" and it was further provided that the delegates were incapable of holding any office under the United States." Thus careful were the founders of the system to affirm the sovereignty of the several States, to guard against the concentration of power in individual delegates, and to avoid personal or State supremacy in the deliberations of the Congress.

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Each State was to maintain its own delegates, and Congress was not clothed with power to pass upon the rights of claimants in case of conflict; and conflicts would have arisen. probably had the Confederacy existed for a generation. To each State was reserved the power to recall its delegates at will and to send others in their stead.

§ 39. There were, however, some limitations upon the States which foreshadow the limitations imposed in the Con

stitution. The States could not enter into treaties with each other nor with foreign nations; they could not levy imports or duties which would interfere with treaty stipulations existing between the United States and any other government; they could not keep vessels of war in time of peace; they could not declare war although they might act upon their own motion for defensive purposes; they could not maintain a standing army except upon the judgment of Congress as to its force, and then only for the garrison of forts; and, finally, they could not grant commissions to ships of war nor issue letters of marque or reprisal.

§ 40. There were also grants of power to Congress which worked a limitation upon the sovereignty of the States. Congress was clothed with power to create a tribunal for the trial of controversies between the States; to decide upon peace or war; to create courts for the trial of piracies and felonies and for the disposition of captures on sea; to enter into treaties which might restrain States in their capacity to collect duties and imposts; to fix the standard of weights and measures; to fix the value of coins that might be issued by Congress or by the States; to establish a post-office system; to borrow money and emit bills on the credit of the United States; to build a navy; to limit the land forces and apportion them among the several States; to commission all officers in the land and naval service; and, finally, to appoint the officers in the naval service and the officers in the land service above the grade of regimental officers.

§ 41. The votes of nine States were required for the exercise of the more important of these powers, such as a declaration of war, the granting of letters of marque and reprisal in time of peace, the coining of money and regulating the value thereof, the creation of a public debt, the building of a navy, the organization of an army, or the appointment of a commander-in-chief.

§ 42. Authority was conferred upon Congress by the vote of nine States to appoint committees to sit during a recess;

but the powers of such committees were limited to those acts which did not in the Congress require the votes of nine States. In all essential particulars the Congress could act only by a two-thirds majority. Provision was made for the rendition of fugitives from justice, but no guarantees were given for the rendition of fugitives from slavery.

Freedom of speech in debate was secured, and the exemption of members from arrest was guaranteed in the terms which were afterwards incorporated in the Constitution.

§ 43. There was to be a common treasury that was to be supplied by requisitions upon the several States apportioned according to the value of the land with the value of the buildings and improvements added thereto. These values were to be ascertained by such mode as Congress might provide. Of necessity the States were charged with the assessment and collection of the taxes, and the performance of these duties was left to their capacity and good faith.

§ 44. The impotency of the Confederacy is apparent in the facts that it could not levy and collect a tax of a dollar, it could not command the services of a single man, nor had it control over an acre of ground, until certain of the States in 1780 and subsequently ceded to the Confederacy their undefined rights or claims to the territory west of State lines.

The Declaration of Independence, the exigency which was created by that act, and the common peril in which the Colonies were involved, saved the Confederacy from immediate dissolution.

Yet even during the war, and while the pressure was heaviest, the States often consulted their own convenience, or yielded to their apparent necessities and neglected the demands of Congress for men and money, or postponed their consideration from month to month. In some appeals and demands were wholly neglected.

cases the

$45. When the war ended the weakness of the Confederacy became more and more apparent. It had not one

attribute of sovereignty which could be exercised in its fulness. It had power to borrow money, but it had no means of payment at its command either present or prospective. It could make treaties, but it had no capacity to perform the obligations so assumed. In fine by the year 1787, the work of disintegration had gone so far as to render the continuance of the system for another decade a most improbable

event.

§ 46. From that experience of ten years two lessons were deduced. (1.) With all its imperfections the Confederacy had demonstrated the importance, the necessity, indeed, of a union of the States in one government.

(2.) That in that government there must be one central head with capacity for all the exigencies of national life.

§ 47. If it be assumed that the Articles of Confederation were the measure of the opinion of the country in 1777 upon the doctrine of State rights, it will be seen from an examination of the Constitution that signal advances were made in the succeeding ten years. The Confederacy had no continuing capacity for self-existence. It had no authority in action. The Confederacy did not create a nation, but it demonstrated the importance and the possibility of such a creation. The experience of the country under the Articles of Confederation made the Constitution possible.

§ 48. The opinion of the Supreme Court in the case of Dred Scott v. Sandford (19th How. p. 418) explains the meaning of the phrase "free inhabitant" as used in the Articles of Confederation; but since the adoption of the fourteenth and fifteenth amendments to the Constitution the interpretation is without practical value.

§ 49. A portion of the opinion in the case of Texas v. White (7th Wall. p. 725) is devoted to an examination of the nature of the Union formed by the Articles of Confederation. From that opinion and from the opinion in the case of Lane County v. Oregon (7th Wall. p. 76) this conclusion may be deduced, namely: That the Continental Congress could act