to human nature." That is, by supposing a case, in which all human governments would become unnecessary, and all differences of opinion would become impossible. In truth, congress possessed only the power of recommendation.

§ 120. The fact corresponded with the theory. Even during the revolution, while all hearts and hands were engaged in the common cause, many of the measures of congress were defeated by the inactivity of the states; and in some instances the exercise of its powers were resisted. But after the peace of 1783, such opposition became common, and gradually extended its sphere of activity, until, in the expressive language already quoted, "the confederation became a shadow without the substance." There were no national courts having original or appellate jurisdiction over cases regarding the powers of the union; and if there had been, the relief would have been but of a very partial nature, since, without some act of state legislation, many of those powers could not be brought into life.

§ 121. A striking illustration of these remarks may he found in our juridical history. The power of appeal in prize causes, as an incident to the sovereign powers of peace and war, was asserted by congress after the most elaborate consideration, and supported by the voice of ten states, antecedent to the ratification of the articles of confederation. The exercise of that power was, however, resisted by the state courts, notwithstanding its immense importance to the preservation of the rights of independent neutral nations. The confederation gave, in express terms, this right of appeal. The decrees of the court of appeals were equally resisted; and in fact, they remained a dead letter, until

they were enforced by the courts of the United States under the present constitution.

§ 122. A farther illustration of this topic may be gathered from the palpable defect in the confederation, of any power to give a sanction to its laws. Congress had no power to exact obedience, or punish disobedience to its ordinances. They could neither impose fines, nor direct imprisonment, nor divest privileges, nor declare forfeitures, nor suspend refractory officers. There was in the confederation no express authority to exercise force; and though it might ordinarily be implied, as an incident, the right to make such implication was prohibited, for each state was to "retain every power, right, and jurisdiction, not expressly delegated to congress." The consequence naturally was, that the resolutions of congress were disregarded, not only by states but by individuals. Men followed their interests more than their duties; they cared little for persuasions, which came without force; or for recommendations, which appealed only to their consciences or their patriotism. Indeed it seems utterly preposterous to call that a government, which has no power to pass laws; or those enactments laws, which are attended with no sanction, and have no penalty or punishment annexed to the disobedience of them.

§ 123. But a still more striking defect was the total want of power to lay and levy taxes, or to raise revenue to defray the ordinary expenses of government. The whole power, confided to congress upon this head, was the power "to ascertain the sums necessary to be raised for the service of the United States;" and to apportion the quota or proportion on each state. But the power was expressly reserved to the states to lay and levy the taxes, and of course the time, as well as

the mode of payment, was extremely uncertain. The evils resulting from this source, even during the revolutionary war, were of incalculable extent; and, but for the good fortune of congress in obtaining foreign loans, it is far from being certain, that they would not have been fatal. The principle, which formed the basis of the apportionment, was sufficiently objectionable, as it took a standard extremely unequal in its operation upon the different states. The value of its lands was by no means a just representative of the proportionate contributions, which each state ought to make towards the discharge of the common burthens.

§124. But this consideration sinks into utter insignificance, in comparison with others. Requisitions were to be made upon thirteen independent states; and it depended upon the good will of the legislature of each state, whether it would comply at all; or if it did comply, at what time, and in what manner. The very tardiness of such an operation, in the ordinary course of things, was sufficient to involve the government in perpetual financial embarrassments, and to defeat many of its best measures, even when there was the utmost good faith and promptitude on the part of the states in complying with the requisitions. But many reasons concurred to produce a total want of promptitude on the part of the states, and, in numerous instances, a total disregard of the requisitions. Indeed, from the moment, that the peace of 1783 secured the country from the distressing calamities of war, a general relaxation took place; and many of the states successively found apologies for their gross neglect in evils common to all, or complaints listened to by all. Many solemn and affecting appeals were, from time to time, made by congress to the states; but they were attended with no

salutary effect. Many measures were devised to obviate the difficulties, nay, the dangers, which threatened the Union; but they failed to produce any amendments in the confederation. An attempt was made by congress, during the war, to procure from the states an authority to levy an impost of five per cent. upon imported and prize goods; but the assent of all the states could not be procured. The treasury was empty; the credit of the confederacy was sunk to a low ebb; the public burthens were increasing; and the public faith was prostrate.

§ 125. In February, 1786, congress determined to make another and last appeal to the states upon the subject. The report adopted upon that occasion contains a melancholy picture of the state of the nation. "In the course of this inquiry (said the report) it most clearly appeared, that the requisitions of congress for eight years past have been so irregular in their operation, so uncertain in their collection, and so evidently unproductive, that a reliance on them in future, as a source, from whence monies are to be drawn to discharge the engagements of the confederation, definite as they are in time and amount, would be no less dishonourable to the understandings of those, who entertained such confidence, than it would be dangerous to the welfare and peace of the Union." "It has become the duty of congress to declare most explicitly, that the crisis has arrived, when the people of these United. States, by whose will and for whose benefit the federal government was instituted, must decide, whether they will support their rank, as a nation, by maintaining the public faith at home or abroad; or whether, for want of a timely exertion in establishing a general revenue, and thereby giving strength to the confederacy, they will

hazard, not only the existence of the Union, but of those great and invaluable privileges, for which they have so arduously and so honourably contended." After the adoption of this report, three states, which had hitherto stood aloof, came into the measure. New-York alone refused to comply with it; and after a most animated debate in her legislature, she remained inflexible, and the fate of the measure was sealed forever by her solitary negative.

§ 126. Independent, however, of this inability to lay taxes, or collect revenue, the want of any power in congress to regulate foreign or domestic commerce was deemed a leading defect in the confederation. This evil was felt in a comparatively slight degree during the war. But when the return of peace restored the country to its ordinary commercial relations, the want of some uniform system to regulate them was early perceived; and the calamities, which followed our shipping and navigation, our domestic, as well as our foreign trade, convinced the reflecting, that ruin impended upon these and other vital interests, unless a national remedy could be devised. We accordingly find the public papers of that period crowded with complaints on this subject. It was, indeed, idle and visionary to suppose, that while thirteen independent states possessed the exclusive power of regulating commerce, there could be found any uniformity of system, or any harmony and cooperation for the general welfare. Measures of a commercial nature, which were adopted in one state from a sense of its own interests, would be often countervailed, or rejected by other states from similar motives. If one state should deem a navigation act favourable to its own growth, the efficacy of such a measure might be defeated by the jealousy or policy of a neighbouring