§ 268. The last defect, which seems worthy of enumeration, is, that the confederation never had a ratification of the People. Upon this objection, it will be sufficient to quote a single passage from the same celebrated work, as it affords a very striking commentary upon some extraordinary doctrines recently promulgated.1 "Resting on no better foundation than the consent of the state legislatures, it (the confederation] has been exposed to frequent and intricate questions concerning the validity of its powers; and has, in some instances, given birth to the enormous doctrine of a right of legislative repeal. Owing its ratification to a law of a state, it has been contended, that the same authority might repeal the law, by which it was ratified. However gross a heresy it may be to maintain, that a party to a compact has a right to revoke that compact, the doctrine itself has had respectable advocates. The possibility of a question of this nature proves the necessity of laying the foundations of our national government deeper, than in the mere sanction of delegated authority. The fabric of American empire ought to rest on the solid basis of the Consent Of The People. The streams of national power ought to flow immediately from that pure, original fountain of all legitimate authority." 2

§ 269. The very defects of the confederation seem also to have led congress, from the pressure of public necessity, into some usurpations of authority; and the states into many gross infractions of its legitimate sovereignty. "A list of the cases, (says the Federalist,) in which congress have been betrayed or forced by the

1 The Federalist, No. 22.

2 The Federalist, No. 43.

3 The Federalist, No. 43; 1 Kent's Comm. Lect. 10, p. 201. [2d edit. p. 214, 215.]

defects of the confederation, into violations of their chartered authorities, would not a little surprise those, who have paid no attention to the subject." Again, speaking of the western territory, and referring to the ordinance of 1787, for the government thereof, it is observed: "Congress have assumed the administration of this stock. They have begun to render it productive. Congress have undertaken to do more; they have proceeded to form new states, to erect temporary governments, to appoint officers for them, and to prescribe the conditions, on which such states shall be admitted. into the confederacy. All this has been done, and done without the least colour of constitutional authority. Yet no blame has been whispered; no alarm has been sounded." 2

§ 270. Whatever may be thought as to some of these enumerated defects, whether they were radical deficiences 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. 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

1 The Federalist, No. 42.

2 The Federalist, No. 38. 3 5 Marsh. Life of Washington, 33. 32

VOL. I.

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 labour 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 coloured, and as desponding, which was at that period wrung from the hearts of our wisest patriots and statesmen.1 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 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."3

15 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. 2 5 Marsh. Life of Wash. 124.

3 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.

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 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. 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