tional sovereignty, this Congress at length declared the United Colonies free and independent states.*

Preparatory to this momentous and uncompromising measure, by which our Revolution may be said to have been consummated, an important preliminary step had been taken by Congress, which in itself was considered decisive of the question of independence. It had previously recommended to particular colonies to establish temporary institutions for conducting their affairs during the contest with the mothercountry; but when independence was perceived to be the inevitable result, it was proposed by Congress, to the respective assemblies and conventions of the provinces where no government adapted to the exi, gencies of the crisis had already been formed, to adopt such constitutions as should be most conducive to the happiness and safety of their immediate constituents, as well as of the nation at large. The provincial assemblies acted on this recommendation; and the several colonies, already contemplating themselves as independent states, adopted the principle, then considered visionary in Europe, of limiting the constituted authorities by a written fundamental instrument; and thus the doctrine of the "Social Contract," hitherto advanced merely as an ingenious theory, or regarded as a bold and fanciful speculation, was first actually exemplified, and successfully reduced to practice.

To secure and perpetuate these state institutions, it was deemed expedient, while these measures were maturing, to explain more fully, and by a formal instrument, the nature of the federative compact, and to define both the powers vested in the General Government, and the residuary sovereignty of the

* Vide Appendix A.

states. But the measure was attended with so much embarrassment and delay, that notwithstanding they were surrounded by the same common danger, and were together contending for the same inestimable principles and objects, it was not until late in the following autumn that the discordant interests and prejudices of these thirteen distinct commonwealths could be so far blended and compromised as to induce their agreement to the terms of the proposed Federal Union; and when submitted to the state legislatures for ratification, the system was declared by Congress to have been the result of impending necessity, consented to, not for its intrinsic excellence, but as the best that could be adapted to the circumstances of the states respectively, and, at the same time, afford any reasonable hope of general

assent.

The "Articles of Confederation" met with still greater obstacles in their progress through the states. Most of the state legislatures, indeed, ratified them with a promptitude which evinced a due sense on their part of the necessity of preserving the confederacy, and, to that end, of the duty of exercising a liberal spirit of accommodation. But some of the states withheld their assent for several years after the declaration of independence; and one, in particular, persisted so long in its refusal, as to injure the common cause, afford encouragement to the enemies, and depress the hopes of every friend of America. The perception of these consequences at length induced the state in question to abandon its objections; and on the first of March, 1781, these articles of Union received, upon the accession of Maryland, the unanimous approbation of the states.*

* Vide Appendix B.

By the terms of this compact, cognizance and jurisdiction of foreign affairs; the power of declaring war and concluding peace; and authority to make unlimited requisitions of men and money, were exclusively vested in Congress; and a compliance with these powers, when exercised by that body, was rendered obligatory upon the several states. But these rights of political supremacy, extensive as they were, had been conferred in a very imperfect manner, and under a most imperfect organization. The articles, indeed, were but a written digest, and even a limitation of the discretionary powers which had been delegated to Congress in 1775, and which had always been freely exercised, and implicitly obeyed. The powers themselves, now formally enumerated and defined, might, nevertheless, have proved competent for all the essential purposes of union, had they been duly distributed among the several departments of a well-balanced government, and brought to bear upon the individual citizens of the United States by means of a federal executive and judicial, as well as legislative authority. Congress, as then constituted, was, in fact, an improper and unsafe depository of political power, since the whole national authority, in one consolidated mass of complicated jurisdiction, was vested in a single body of men; while, in imitation of all former confederacies of independent sovereignties, the decrees of the federal council affected the states only in their corporate capacity, as contradistinguished from the individuals of whom they are composed. This was considered by the ablest statesmen of that day as the radical defect of the first confederation; "and although this vicious principle did not," as one of them has justly remarked, "run through all the powers delegated to the Union, yet it pervaded and governed those on which the efficacy

of the rest depended." Except as to the rule of apportionment, Congress had an indefinite discretion to make requisitions for men and money; but they had no authority to raise either the one or the other by regulations extending to the individual citizens of the American Republic. Like the warrior-magician of the great dramatic poet, they could "call up spirits from the yeasty deep," but none would " come when they did call." The consequence was, that though in theory the resolutions of Congress were equivalent to laws, yet in practice they were found to be mere recommendations, which the states, like other irresponsible sovereigns, observed or disregarded, according to their own good will and gracious pleas

ure.

The next most palpable defect, therefore, in the system was the absence of all power in Congress to compel obedience to their decrees; or, in legal parlance, the total want of a sanction to their laws. There was no express delegation of authority to use force against delinquent members of the confederacy, and no such right could be ascribed to the federal head, as resulting from construction, or derived by inference from the nature of the compact, inasmuch as Congress was actually restricted from any assumption of implied powers, however essential to the complete exercise of those which were expressly given. Fortunately for the country, there was then too much public virtue in that body to assume a power not warranted by the Constitution. Had its members possessed less wisdom and integrity, and stretched their authority under the plea of an imperious necessity, which might often have been alleged on stronger and more plausible grounds than at any subsequent period, it would have been usurpation; and had they been clothed with the power of enfor.

cing their constitutional requisitions, it might, from the accumulated jurisdiction vested in them, have proved fatal to public liberty. The only remedy, therefore, for a violation of the compact was war upon the refractory party, by such others of the confederates as might think proper to resort to it. But the application of this remedy would probably have produced dismemberment, and thus have proved worse even than the disease itself.

The want of a mutual guarantee of the state governments to protect them from internal violence and rebellion; the principle by which the contributions of the states were made to the common treasury; the want of a power in Congress to regulate commerce; the right of equal suffrage possessed by the states in Congress, as well as the omission of distinct and independent executive and judicial departments, were also regarded as fundamental errors in the confederation. In these leading particulars, and in some others of inferior importance, it had proved totally incompetent to fulfil the ends for which it had been devised. Almost as soon as it was finally ratified, the states began to fail in prompt and faithful observance of its provisions. As the dangers incident to revolution and war receded, instances of neglect and disobedience became more gross and frequent; and, "by the time peace was concluded," it was observed by one of our constitutional jurists that "the disease of the government had displayed itself with alarming rapidity." The inequality in the application of the principle of contributions produced delinquencies in many of the states; and the delinquencies of one state became the pretext or apology for those of another, until the project of supplying the pecuniary exigencies of the

*

* Chancellor Kent.