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fund to defray the expenses of the war. These lands were claimed by the states within whose asserted limits and jurisdiction they were situated, and several of them, from a deep sense of the importance of the Union, agreed to an unconditional ratification of the articles, or, in other words, to a separate confederacy between the states so ratifying the same, though Maryland, or other states, should withhold their approbation and sanction. The legislature of New-York, by their acts of 23d of October, 1779, and 19th of February, 1780, even consented to a release of the unsettled lands in the western part of the state, for the use and benefit of such of the United States as should become members of the federal alliance ; and to resign the jurisdiction, as well as the right of pre-emption, over her waste and uncultivated territory. The refusal of Maryland, so long persisted in, gave encouragement to the enemy,
and injured the common cause, and damped the hopes of the friends of America at home and abroad. These considerations at last induced that state to make a generous sacrifice of her pretensions; and on the 1st of March, 1781, and which was upwards of three years from their first promulgation, the articles of confederation received the unanimous approbation of the United States.
The difficulties which impeded the framing and adopting the articles of confederation, even during the pressure of a common calamity, and which nothing at last but a sense of common danger could surmount, form a striking example of the mighty force of local interests and discordant passions, and they teach a monitory lesson of moderation to political councils.
Notwithstanding the articles of confederation conferred upon Congress (though in a very imperfect manner, and under a most unskilful organization) the chief rights of political supremacy, the jura summi imperii, by which our existence as an independent people was bound up together, and known and acknowledged by the nations of the world ; yet they were, in fact, but a digest, and even a limitation, in the shape of a written compact, of those undefined and discretionary sovereign powers, which were delegated by the colonies to Congress in 1775, and which had been freely exercised, and implicitly obeyed. A remarkable instance of the exercise of this original, dormant, and vast discretion, appears on the Journals of Congress the latter end of the year 1776. The progress of the British arms had, at that period, excited the most alarming apprehensions for our safety, and Congress transferred to the commander in chief, for the term of six months, complete dictatorial power over the liberty and property of the citizens of the United States, in like manner
a Journals of Cong, vol. 5. p. 208.
6 lbid. vol. 5
as the Roman senate, in the critical times of the Republic, was wont to have recourse to a dictator, ne quid respublica detrimenti capiat. Such loose, undetermined authority as the Union originally possessed, was absolutely incompatible with any regular notions of liberty. Though it was exercised, in the instance we have referred to, and in other strong cases, with the best intentions, and under the impulse of an irresistible necessity, yet such an irregular sovereignty never can be durable. It will either dwindle
into insignificance, or degenerate into despotism. Imbecility of The powers of Congress, as enumerated in the articles of zens of the union. The exclusive cognizance of our foreign relations, the rights of war and peace, and the right to make unlimited requisitions of men and money, were confided to Congress, and the exercise of them was binding upon the states. But, in imitation of all the former confederacies of independent states, either in ancient Greece or in modern Europe, the articles of confederation carried the decrees of the federal council to the states in their sovereign or collective capacity. This was the great fundamental defect in the confederation of 1781 ; it led to its eventual overthrow; and it has proved pernicious or destructive to all other federal governments which adopted the principle. Disobedience to the laws of the union must either be submitted to by the government to its own disgrace, or those laws must be enforced by arms.
confederation, would perhaps have been competent for all the essential purposes of the Union, bad they been duly distributed among the departments of a well-balanced government, and been carried down, through the medium of a federal judicial and executive power, to the individual citi
a Congress, by ordinance, 31st December, 1781, incorporated the Bank of North America; and Judge Wilson, in an able argument, in 1785, showed their competency to do it. Journals of Congress, vol. 7 197. Wilson's Works, vol. 3. 397.
b Journals of Congress, vol. 2. p. 475.
The mild influence of the civil magistrate, however strongly it may be felt and obeyed by private individuals, will not be heeded by an organized community, conscious of its strength, and swayed by its passions. The history of the federal governments of Greece, Germany, Switzerland, and Holland, afford melancholy examples of destructive civil war springing from the disobedience of the separate members. I will mention only a single instance to this effect, taken from the generally uninteresting annals of the Swiss cantons. By one of the articles of the Helvetic alliance, the cantons were bound to submit any difference which might arise between them to arbitrators. In the year 1440, a dispute arose between Zuric on the one side, and the cantons of Schweitz and Glaris on the other, respecting some territorial claims. Zuric refused to submit to a decision against her, and the contending parties took to arms. All Switzerland was of course armed against Zuric, the refractory member. She sought protection from her ancient enemy, the House of Austria, and the controversy was not terminated in favour of the federal decree, until after six years of furious and destructive war.
a Hist. de la Confed. Helv. par Walteville, liv, 5. Planta's Nisl. of Switzerland, vol, 1. last ch.
Had there been sufficient energy in the government of the United States, under the articles of confederation, to have enforced the constitutional requisitions, it might have proved fatal to public liberty; for Congress, as then constituted, was a most unfit and unsafe depository of political power, since all the authority of the nation, in one complicated mass of jurisdiction, was vested in a single body of
It was, indeed, exceedingly fortunate, as the event has subsequently shown, that the state legislatures even refused to confer upon Congress the right to levy and collect a general impost, notwithstanding the refusal appeared to be extremely disastrous at the time, and was deeply regretted by the intelligent friends of the union. Had such a power been granted, the effort to amend the confederation would probably not have been made, and the people of this country might have been languishing, to this day, the miserable victims of a feeble and incompetent union.
There was no provision in the articles of confederation, enabling Congress to add a sanction to its laws. In this respect, they were more defective than some of the other federal governments which are to be met with in history. The Amphictyonic Council, in Greece, had authority to fine and punish their refractory states.
Lacedemon and Phocis were both prosecuted before the Council of the Amphictyons, (which was a council of the representatives of twelve nations of Greece, and all the Greek states were required by proclamation to enforce the decree. The Germanic Diet, as it formerly existed, could put its members under the ban of the empire, by which their property was confiscated; and it was aided in enforcing obedience to its laws by a federal judiciary, and an executive head. Congress, under the old confederation, like the States General under the Dutch confederacy,
a The Imperial Chamber had appellate jurisdiction only. Its sentences were carried into execution against refractory states, by the military force of the circles. Pfeffel, Abr. Chro. de l'Hist. d'Allemagne, tom. 2. p. 100. Putter's Const. Hist. p. 355.
were restricted from any constructive assumption of power, however essential it might have been deemed to the complete enjoyment and exercise of that which was given. No express grant conveyed any implied power ; and it is easy to perceive, that a strict and rigorous adherence to the letter of the grant, without permission to give it a liberal and equitable interpretation, in furtherance of the beneficent ends of the government, must, in many cases, frustrate entirely the purposes of the power. A government too restricted for the due performance of its high trusts, will either become insignificant, or be driven to usurpation. We have examples of this in the government of the United Netherlands, before it was swept away by the violence of the French revolution.
While that government moved within its constitutional limits, it was more absolutely nerveless than any other government which ever existed. The States General could neither make war or peace, or contract alliances, or raise money, without the consent of every province ; nor the provincial states conclude those points, without the consent of every city having a voice in their assemblies. The consequence was, that the federal head was frequently induced, by imperious necessity, to assume power anwarranted by the fundamental charter of the union, and to dispense with the requisite unanimity. This was done in the years 1648, 1657, and 1661, as well as in another strong instance, given by Sir William Temple, and of which he was the author. a
The former confederation of this country was defective, also, in not giving complete authority to Congress to interfere in contests between the several states, and to protect each state from internal violence and rebellion. In many respects our confederation was superior to those of Germany, Holland, or Switzerland, and particularly in the absolute prohibition to the several states, from any interference or
a Temple's Works, vol. 1. 115. 128. 337.