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CHAPTER V.

THE CONTINENTAL CONGRESS, 1775-1781.

REFERENCES.

I. GENERAL. —Bancroft, Hildreth, Winsor, Johnston, Frothingham, Hart, Curtis, Wilson, Last References ; Green, II.-IV.

II. SPECIAL.-Journals of the American Congress from 17741788; Secret Journals, ditto; Jameson, The Predecessor of the Supreme Court; and Guggenheimer, The Development of the Executive Departments. (These two essays are found in Essays in the Constitutional History of the U.S., edited by J. F. Jameson.)

Thorough study of the period 1774-1789 is impossible without constant resort to the lives and writings of the principal actors of the period. A general reference is here made to the volumes of the American Statesmen series that fall within these limits, viz.: Hamil. ton, Jefferson, Madison, John Adams, John Marshall, Samuel Adams, Patrick Henry, Gouverneur Morris, Washington, Franklin, and Jay. 142.

Source of its Powers. The Congress was not the creature of law but of revolution.) The question whether there should be such a body was never submitted directly to the people, but was rather decided by the Colonial Assemblies, conventions, and committees that appointed the delegates who formed the Congress of 1774. These bodies acted as they believed the people whom they represented wished them to act; while the people gave the Congress the most practical kind of approval by carrying on for eight years a wasting war under its leadership and direction. Accordingly, the Congress was a National assembly called into existence by a national crisis.

143. No Written Constitution. The powers and functions of Congress were not defined in a written constitution. This was impossible in the nature of the case. The public will was the measure as well as the source

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of its powers, as in the case of other revolutionary governments. “It is a maxim of political science, that, when such a government has been instituted for the accomplishment of great purposes of public safety, its powers are limited only by the necessities of the case out of which they have arisen, and of the objects for which they were to be exercised. When the acts of such a government are acquiesced in by the people, they are presumed to have been ratified by the people. To the case of our Revolution, these principles are strictly applicable throughout. The Congress assumed at once the exercise of all powers demanded by the public exigency, and their exercise of these powers was acquiesced in and confirmed by the people."'1

144. Constitution of Congress.- Previous to the American Congress, congresses had been composed of the representatives of independent states met together to transact international business. No purely national body, as a legislature, had ever been so called. As the Colonies were separate societies, and as the business to be done was to consider their common interests, they naturally adopted this name. At first, the delegates were appointed by the Colonial Assemblies, conventions, or committees of correspondence, but after the body became permanent they were appointed by the Assemblies. Every State appointed as many delegates, and for such time, as it saw fit. It also fixed and paid them their compensation. There was no uniformity in the period of service or in pay. Congress had no limitation as to time, but was a continuous body although not in continuous session. Fifty-six members signed the Declaration of Independence, and that, in the early days, was about the number commonly present. Every State had one vote, and no more, and this was determined by a majority of its delegates present.

145. The Powers Exercised. These related to the prosecution of the war and to certain other general interests. (Congress controlled the National army and navy and managed Indian affairs.) (It created a National currency and established a General postoffice. ) It resolved that it would be very dangerous to the liberties and welfare of America if any Colony should separately petition the King or either House of Parliament, and it accordingly (assumed the whole direction of foreign affairs.) Congress also frequently recommended the States to do certain things that it had not itself power to do. In times of special emergency, it assumed unusual authority. Twice it voted powers to Washington that made him a virtual dictator. As things once done became precedents, there grew up a customary or unwritten National constitution. For example, Congress adopted, September, 6, 1774, the following rule in relation to voting : "Resolved, That in determining questions in this Congress, each Colony or province shall have one vote. The Congress not being possessed of, or at present able to procure proper material for ascertaining the importance of each Colony." This rule once adopted was never changed until 1787, and then only after a struggle that nearly broke up the Union.

1 Curtis: History of the Constitution, Vol. I., p. 40.

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146. The Articles of Confederation.-It was clear to the discerning from the outset that the Union, if it was to be permanent, required some more regular and stable government than a revolutionary assembly. For example, Dr. Franklin, as early as June 12, 1775, submitted to Congress a draft of Articles of Confederation and Perpetual Union, but no action was taken. On June 12, 1776, the same day that it appointed the committee of five to prepare a declaration of independence, Congress appointed a committee of one from each Colony “to prepare and draft the form of a confederation to be entered into," and a month later this committee submitted a report in the handwriting of its chairman, John Dickinson, then a delegate from Del

This report, variously amended, became the Articles of Confederation adopted by Congress, November 15, 1777. But as Congress could not, in such a matter, bind the States, it sent the Articles to the States with an urgent recommendation that they promptly authorize their delegates in Congress to ratify them. Some of the States at once complied, others hesitated. On March 1, 1781, the Maryland delegates ratified the Articles, being the last to do so. By this act the Confederation of the States was completed. Dr. Von Holst has said : “Until the adoption of the Articles of Confederation by all the States, Congress continued a revolutionary body, which was recognized by all the Colonies as de jure and de facto the National government, and which as such came into contact with foreign powers, and entered into engagements, the binding force of which on the whole people has never been called in questiou.” 1

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1 Constitutional History of the United States, 1750-1833, p. 5.

CHAPTER VI.

THE CONFEDERATION, 1781-1789.

REFERENCES.

I. GENERAL. -Bancroft, Vol. IV., (The Formation of the American Constitution, in Five Books, 1.); Story, Book II., Chaps. II.-IV.; Hildreth, Vol. III.; Winsor, Vol. VII., Chap. III.; Wilson, The State, XI.; Frothingham, Chap. XII.; Curtis, Books 11., 111.; Johnston, The United States, V., and Confederation, Articles of, (in Lalor); Cooley, Principles of Constitutional Law, Chap. I.; Journals of Congress, same as last chapter ; Hart, Chap. V.; MacMaster, History of the People of the U. S., Vol. I., Chaps. 1.-111.; Schouler, History of the U. S., Vol. I., Chap. I., First Section,

II. SPECIAL.—The best account of the financial phase of this period, which is in some respects the most important one of all, is that given by Sumner, The Financier and the Finances of the American Revolution.

147. Source of Its Powers.-The Articles of Confederation were framed by Congress and ratified by the State Legislatures. As neither Congress nor the Legislatures had been previously empowered to do anything of the kind, these acts were revolutionary acts, and, like the declaration of independence and the war, rested at last upon the approval and support of the people of the States. The Confederation was created by their agents, and existed with their approval and support.

148. Name and Nature of the New Government. - The new constitution was entitled, « Articles of Confederation and Perpetual Union between the States." Article I. reads: "The style of this Confederacy shall be the United States of America." Article III.: “The said States [the thirteen are all enumerated in the preamble] hereby severally enter into a firm league of friendship with each other for their common defense, the security of their liberties, and their mutual and general welfare, binding

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