EARLY INCONSISTENCIES.

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The articles of confederation start out with the assumption that from the date of the Declaration of Independence each state became de facto and de jure an independent state, competent henceforth to form a confederacy with the other states whenever it saw fit, and to the extent that it saw fit. How this assumption was to be reconciled with the fact that the congress had been in existence for years, and had actually exercised sovereign power from the first, while the individual states had assumed no sovereign attitude, theoretically or practically, towards England or other foreign countries, does not appear. The contradiction is, however, easily explained.

The place that congress occupied was determined entirely by the relations of the colonies to England. On the other hand, the principle underlying the articles of confederation was borrowed exclusively from the relations of the colonies to one another. Until the resolution was taken to change the dependency of colonial existence for the independence of a political organization, the consideration of the former dictated all measures; now the latter occupied the foreground because the war with England created only a temporary want, while the regulation of internal relations was destined to be lasting.

Apparently and formally, the unity which this want and the presumptive future relations of the United States to foreign powers caused to seem desirable, was preserved. The individual states had attributed to themselves, in the articles of confederation, no powers which could place them in relation to foreign nations in the light of sovereign states. They felt that all such claims would be considered ridiculous, because back of these claims there was no real corresponding power. Congress therefore remained, as heretofore, the sole outward representative of sovereignty. rights of sovereignty." Yates's Minutes, Elliott, Deb., I., p. 461. Compare with this the view advocated by him in 1798 and 1799, of which I shall treat more fully hereafter.

But the power to exercise the prerogatives was taken from it, and this without placing it in any other hands.

The changes effected by the articles of confederation were rather of a negative than of a positive nature. They did not give the state which was just coming into being a definite form, but they began the work of its dissolution. The essential prerogatives which necessarily belong to a political community in its relations with other powers, they confided by law to confederate authorities, from whom, in practice, they withheld all power. On the other hand, they confided all actual power to the component parts of the whole, but did not and could not for themselves, still less for the whole, give them the right to assume the responsibilities or enforce the rights which regulate the relations of sovereign states.

The practical result of this was that the United States tended more and more to split up into thirteen independent republics, and in the same measure, they virtually ceased to be a member of the family of nations bound together by the jus gentium. The European powers rightly saw in the Union only a shadow without substance,' and besides they had no occasion and no desire to have any relations with the individual states as sovereign bodies.2

Washington wrote in October, 1785: "In a word, the confederation seems to me to be little more than a shadow without the substance; and congress a nugatory body." Marshall's Life of Wash., II., p. 92. See also the Federalist, Nos. 15-22.

"The states were not sovereigns' in the sense contended for by some. They did not possess the peculiar features of sovereignty-they could not make war, nor alliances nor treaties. Considering them as political beings, they were dumb, for they could not speak to any foreign sov. ereign whatever. They were deaf, for they could not hear any proposi tions from such sovereign. They had not even the organs of defense or offense, for they could not of themselves raise troops, or equip vessels, for war." King, on the 19th of June, in the Philadelphia convention, Madison Papers; Elliott, Deb., V., p. 212. Ruffin called attention in the debates of the peace convention at Washington, February, 1861, to the fact that during the revolutionary war North Carolina had laid the foundation of

CHARACTER OF THE UNION.

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Every existing circumstance, and in some respects even the war with England, tended to give affairs this peculiar development.

A new government not founded on force will never immediately obtain strength and stability, for, on the one hand, it generally itself originates in a violent revolution which is always to a certain extent attended by a tendency to anarchy, and on the other hand, is wanting in the pow erful aids of custom and inherited respect. The new government of the United States had much to suffer from the absence of both these elements. The sovereignty of the Union was an abstraction, an artificial idea which could be made a reality, only inasmuch as the circumstances which had made this idea a necessity should imperatively demand it. The sovereignty of the states, on the other hand, was, in the minds of the whole people, the first and most natural of all circumstances. Each colony had had from its beginning a government of its own, which in great part was the production of the colonists themselves. The Revolution had now put into their hands that portion of power which previously had been exercised by English officials. The further alterations made in the machinery of government were not of so essential a nature that the people would be apt to feel themselves complete strangers to its operation. The entire transformation was rapidly accomplished, without any of the violent commotions which might have produced prolonged reaction. Eight states 1 had already completed their new constitutions in 1776. In the relations of individuals to the government, there was nothing to show how wide a breach divided the past from

a fleet, to which Orth of Indiana replied: "There, then, we have a single instance of one of the states taking a step towards sovereignty." None of the delegates from the southern states could adduce another instance. Chittenden, Debates of the Peace Convention, p. 262.

'New Jersey, Delaware, Maryland, North Carolina, New Hampshire, South Carolina, Virginia, and Pennsylvania.

the present. The courts administered justice in accordance with the same legal principles and precedents, and the legislatures, elected by the vote of the people, made laws and levied taxes as they had done before, but without being subjected to the control or caprice of a royal governor. In a word, long before the close of the war, it was difficult to realize from the whole mode of civil life and action that a violent revolution was being accomplished.

It was not an easy task for the colonists to resort to the sword. But stanch and sincere as was their loyalty, their love and veneration for the mother country had by no means been rooted as firmly in the real condition of things as they themselves supposed. The greater number were acquainted with England only through the accounts of their fathers and grandfathers. But with their own colonial government, so far as it had sprung from themselves and been established by themselves, their affections were intimately entwined, for they had grown up with it. It was flesh of their flesh and bone of their bone, and it was always considered by them as their only real representative. There was no need of prior reflection to convince the citizens of the significance and importance of colonial government. Having grown up in constant and immediate dependence upon it, they were permeated by the feeling of its necessity and legality. Love and interest conspired to attach them to it, for they knew full well that their votes had a share in its formation. They looked upon it as the natural bulwark of their rights and liberties.

If that was the case in the past, it must be much more so now, for all these bonds could only be strengthened by the amplification of the power of the colonial governments produced by the Revolution.

To counterbalance all this, the federal government had only the war with England to place in the scales. The love and respect generally accorded by a people to their government it could certainly not have, for it was a child of

THE STATUS OF CONGRESS.

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yesterday and no one had as yet cast its horoscope. It was a product of the Revolution, and as such the practical good sense of the American people did not permit them to refuse it the completest recognition. But what should become of it later was an open question, which was by degrees submitted to serious and sober consideration. No umbrage was taken that the federal government had existed already nearly five years, with the revolutionary character it had assumed after the Declaration of Independence, and all attempts authentically to establish its legitimacy were vain. Respect for it was neither increased nor diminished by this means.

Congress, up to the 1st of March, 1781, did not look upon the articles of confederation as the rule by which it was to be guided, any more than it did afterwards, and the states gave no more consideration to the wishes, requests, and commands of congress after the 1st of March, 1781, than they had before. The people, during these five years, took to looking upon congress more and more as a creation of the Revolution, which had its raison d'être and was necessary only on account of the war with England. Hence they thought every good citizen bound to yield it just so much obedience as the legitimate power, the state government, commanded him to give it.

The state governments had, in five years, completely lost' the little revolutionary savor which at first might have been observable in civil life. The government of the Union, on the other hand, suggested no immediate idea whatever to the people. It was a means which the states employed to secure a definite object; it was not, like the state governments, the incorporation of a moral idea possessed of independent life in the minds of the people.

1 Webster says: "The Revolution of 1776 did not subvert government in all its forms. It did not subvert local laws and local administrations." Webster's Works, III., p. 460.