Commentaries on American Law (1826-30)
Chancellor James Kent
Of the History of the American Union
THE government of the United States was erected by the free voice and joint will of the people of America, for their common defense and general welfare. Its powers apply to those great interests which relate to this country in its national capacity, and which depend for their stability and protection on the consolidation of the Union. It is clothed with the principal attributes of political sovereignty, and it is justly deemed the guardian of our best rights, the source of our highest civil and political duties, and the sure means of national greatness. The constitution and jurisprudence of the United States deserve the most accurate examination; and an historical view of the rise and progress of the Union, and of the establishment of the present constitution, as the necessary fruit of it, will tend to show the genius and value of the government, and prepare the mind of the student for an investigation of its powers.
The association of the American people into one body politic took place while they were colonies of the British empire, and owed allegiance to the British crown. That the union of this country was essential to its safety, its prosperity, and its greatness, had been generally known, and frequently avowed, long before the late revolution, or the claims of the British parliament which produced it. The people of the New England colonies were very early in the habit of confederating together for their common defense. As their origin and their interests were the same, and their manners, their religion, their laws, and their civil institutions exceedingly similar, they were naturally led to a very intimate connection, and were governed by the same wants and wishes, the same sympathies and spirit. The colonies of Massachusetts, Plymouth, Connecticut, and New Haven, as early as 1643, under the impression of danger from the surrounding tribes of Indians, entered into a league offensive and defensive, which they declared should be firm and perpetual, and be distinguished by the name of the United Colonies of New England. By their articles of confederation, each colony was to have exclusive jurisdiction within its own territory; and in every war, offensive and defensive, each of the confederates was to furnish its quota of men and money, in a ratio to its population; and a congress of two commissioners, delegated from each colony, was to be held annually, with power to deliberate and decide on all points of common concern, and every determination, in which three-fourths in number of the assembly concurred, was to be binding upon the whole confederacy.1
This association may he considered as the foundation of a series of efforts for a more extensive and more perfect union of the colonies. It contained some provident and jealous provisions, calculated to give security and stability to the whole. It provided that no two colonies were to join in jurisdiction, without the consent of all; and it required the like unanimous consent to adroit any other colony into the confederacy; and if any one member violated any article of it, or any way injured another colony, the Commissioners of the other colonies were to take cognizance of the matter, and determine upon it. Though in this transaction the New England colonies acted in fact, as independent sovereignties, and free from the control of any superior power, yet the civil war in which England was then involved, occupied the whole attention of the mother country, and this first step towards a future independence was suffered to pass without much notice, and without any animadversion The confederacy subsisted, with some alterations, for upwards of forty years, and for part of that time with the countenance of the government in England. It was not dissolved until the year 1686, when charters of the New England colonies were in effect vacated by a commission from King James II.
The people of this country, after the dissolution of this earliest league, continued to afford other instructive precedents of association for their safety. A congress of governors and commissioners from other colonies, as well as from New England, was occasionally held, to make arrangements for the more effectual protection of our interior frontier, and we have an instance of one of these assemblies at Albany, in 1722.2 But a much more interesting congress was held there in the year 1754, and it consisted of commissioners from New Hampshire, Massachusetts, Rhode Island, Connecticut, New York, Pennsylvania, and Maryland, and it was called at the instance of the lords commissioners for trade and the plantations, to take into consideration the best means of defending America, in case of a war with France, which was then impending. The object of the English administration in calling this convention, was merely in reference to treaties of friendship with the Indian tribes; but the colonies had more enlarged views; and the commissioners which met in congress, and who enrolled among their number some of the most distinguished names in our colonial history, asserted and promulgated several invaluable truths, the proper reception of which in the minds of their countrymen, prepared the way for their future independence, and our present greatness. Two of the colonies expressly instructed their delegates to enter into articles of union and confederation with the other colonies, or their general security in peace as well as in war. The convention unanimously resolved, that a union of the colonies was absolutely necessary for their preservation. They rejected all proposals for a division of the colonies into separate confederacies, and proposed a plan of federal government, consisting of a general council of delegates, to be triennially chosen by the provincial assemblies, and a president general, to be appointed by the crown.
In this council was vested, subject to the immediate negative of the president, and the eventual negative of the king in council, the rights of wear and peace, in respect to the Indian nations; and the confederacy was to embrace all the then existing colonies, from New Hampshire to Georgia. The council were to have authority to make laws for the government of new settlements, upon territories to be purchased from the Indians, and to raise troops and build forts, and even to equip vessels of force, to guard the coast and protect trade, as well on the ocean as upon the lakes and rivers. They were likewise to make laws, and lay and levy general duties, imposts, and taxes, for those necessary purposes.3 But the times were not yet ripe; nor the minds of then sufficiently enlarged, for such a comprehensive proposition; and this bold project of a continental union had the singular fate of being rejected, not only on the part of the crown, but by every provincial assembly. It was probably supposed, on the one hand, that the operation of the union would teach the colonies the secret of their own strength, and the proper means to give it activity and direction; while, on the other part, the colonies were jealous of the preponderating influence of the royal prerogative. We were destined to remain, for some years longer, separate, and, in a considerable degree, alien commonwealths, emulous of each other in obedience to the parent state, and in devotion to her interests; but jealous of each other’s prosperity, and divided by policy, institutions, prejudice, and manners. So strong was the force of these considerations, and so exasperated were the people of the colonies in their disputes with each other, concerning boundaries and charter claims, that Doctor Franklin (who was one of the commissioners to the congress that formed the plan of union in 1754) observed, in the year 1761, that a union of the colonies was absolutely impossible, or at least without being forced by the most grievous tyranny and oppression.4
The great value of a federate union of the colonies had, however, sunk deep into the minds of men. The subject was familiar to our colonial ancestors. They had been in the habit, especially in seasons of danger and difficulty, of forming associations, more or less extensive. The necessity of union had been felt, its advantages perceived, its principles explained, the way to it pointed out, and the people of this country were led, by the force of irresistible motives, to resort to the same means of defense and security, when they considered that their liberties were in danger, not from the vexatious and irregular warfare of the Indian tribes; but from the formidable claims, and still more formidable power of the parent state. Soon after the first unfriendly attempt upon our chartered privileges, a congress of delegates from nine colonies was assembled at New York in October, 1765, at the recommendation of Massachusetts, and they digested a bill of rights, in which the sole power of taxation was declared to reside in their own colonial legislatures.5 This was preparatory to a more extensive and general association of the colonies, which took place in September, 1774, and laid the foundations of our independence and permanent glory. The more serious claims of the British parliament, and the impending oppressions of the British Crown at this last critical period, induced the twelve colonies, which were spread over this vast continent from Nova Scotia to Georgia, to an interchange of opinions and views, and to unite in sending delegates to Philadelphia, “with authority and direction to meet and consult together for the common welfare.” In pursuance of their authority, this first continental congress, whose names and proceedings are still familiar to the present age, and will live in the gratitude of a distant posterity, took into consideration the afflicted state of their country; asserted, by a number of declaratory resolutions, what they deemed to be the unalienable rights of English freemen; pointed out to their constituents the system of violence which was preparing against those rights; and bound them by the most sacred of all ties, the ties of honor and of their country, to renounce commerce with Great Britain. as being the most salutary means to avert the one, and to secure the blessings of the other. These resolutions received prompt and universal obedience; and the Union being thus auspiciously formed, it was continued by a succession of delegates in congress; and through every period of the war, and through every revolution of our government, this union has been revered and cherished as the guardian of our peace, and the only solid foundation of national independence.
In May, 1775, a congress again assembled at Philadelphia, and was clothed with ample discretionary powers. The delegates were instructed to “concert, agree upon, direct, order, and prosecute,” such measures as they should deem most fit and proper, to obtain redress of American grievances, or, in more general terms, they were to take care of the liberties of the country. Soon after their meeting, Georgia acceded to, and completed the confederacy of the thirteen colonies. Hostilities had already commenced in the province of Massachusetts, and the claim of the British parliament to an unconditional and unlimited sovereignty over the colonies, was to be asserted by an appeal to arms. The continental congress, charged with the protection of the rights and interests of the United Colonies, and entrusted with the power, and sustained by the zeal and confidence of their constituents, prepared for resistance. They published a declaration of the causes and necessity of taking up arms, and proceeded immediately to levy and organize an army, to prescribe rules for the government of their land and naval forces, to contract debts, and emit a paper currency upon the faith of the Union, and gradually assuming all the powers of sovereignty, they at last, on the 4th day of July, 1776, took a separate and equal station among the nations of the earth, by declaring the United Colonies to be free and independent states.6
This memorable declaration, in imitation of that published by the United Netherlands on a similar occasion, recapitulated the oppressions of the British king, asserted it to be the natural right of every people to withdraw from tyranny, and with the dignity and the fortitude of conscious rectitude, it contained a solemn appeal to mankind in vindication of the necessity of the measure. By this declaration, made in the name, and by the authority of the people, the colonies were absolved from all allegiance to the British crown, and all political connection between them and Great Britain was totally dissolved. The principle of self-preservation, and the right of every community to freedom and happiness, gave a sanction to this separation. When the government established over any people becomes incompetent to fulfill its purpose, or destructive to the essential ends for which it was instituted, it is the right of that people, founded on the law of nature, and the reason of mankind, and supported by the soundest authority, and some very illustrious precedents, to throw off such government, and provide new guards for their future security. This right is the more apparent, and the duty of exercising it becomes the more clear and unequivocal, in the case of colonies which are situated at a great distance from the mother country, and which cannot be governed by it without vexatious and continually increasing inconvenience; and, when they have arrived at maturity in strength and resources, or, in the language of Montesquieu, which he applied to, our very case, “when they have grown great nations in the forests they were sent to inhabit.” If, in addition to these intrinsic causes, gradually and powerfully tending to a separation, the parent state should think fit, in the arrogance of power and superiority, to deny to her colonies the equal blessings of her own free government, and should put forth a claim to an unlimited control, in her own discretion, over all their rights, and the whole administration of their affairs, the consequence would then be almost inevitable, that the colonists would rise, and repel, the claim; and more certainly would this be the case, if they were a spirited and intelligent race of men, true to themselves, and just to their posterity.
The general opinion in favor of the importance and value of the Union, appears evident in all the proceedings of congress; and as early as the declaration of independence, it was thought expedient, for its security and duration, to define with precision, and by a formal instrument, the nature of our compact, the powers of Congress, and the residuary sovereignty of the states. On the 11th of June, 1776, Congress undertook to digest and prepare articles of confederation. But the business was attended with much embarrassment and delay, and notwithstanding these states were then surrounded by the same imminent dangers, and were contending for the same illustrious prize, it was not until the 15th of November, 1777, that Congress could so far unite the discordant interests and prejudices of thirteen distinct communities, as to agree to the articles of confederation. And when those articles were submitted to the state legislatures for their perusal and ratification, they were declared to be the result of impending necessity, and of a disposition for conciliation, and that they were agreed to, not for their intrinsic excellence, but as the best system which could be adopted to the circumstances of all, and, at the same time, afford any tolerable prospect of general assent.7
These celebrated articles met with still greater obstacles in their progress through the states. Most of the legislatures ratified them with a promptitude which showed their sense of the necessity of the confederacy, and of the indulgence of a liberal spirit of accommodation. But Delaware did not accede to them until the year 1779, and Maryland explicitly rejected them.8 She instructed her delegates to withhold their assent to the articles, until there was an amendment, or additional agreement, to appropriate the news ands in the western parts of the Union, as a common fund to defray the expenses of the war.9 These sands 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.10 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 sands 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 preemption, over her waste and uncultivated territory. The refusal of Maryland, so song 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 first 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 unskillful organization,) the chief rights of political supremacy, the jura summi imperii, 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.11 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 as the Roman Senate, in the critical times of the republic, was wont to have recourse to a dictator, ne quid respublica detrimenti capiat.12 Such loose indeterminate 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.
The powers of Congress, as enumerated in the articles of confederation, would perhaps have been competent for all the essential purposes of the union, had 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 citizens 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 he submitted to by the government to its own disgrace, or those laws must be enforced by arms. 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 Zurich on the one side, and the cantons of Schweitz and Glaris on the other, respecting some territorial claims. Zurich refused to submit to a decision against her, and the contending parties took to arms. All Switzerland was of course armed against Zurich, the refractory member. She sought protection from her ancient enemy, the House of Austria, and the controversy was not terminated in favor of the federal decree, until after six years of furious and destructive war.13
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; fur 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 men. 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 Amphyetionic Council in Greece had authority to fine and punish their refractory states. Lacedemon and Phocis were both prosecuted before the Council of the Amphictions, (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 exited, 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.14 Congress, under the old confederation, like the States General under the Dutch confederacy, were restricted flow 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 unwarranted 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.15
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 concern in foreign or domestic alliances, or from the maintenance of land or naval forces in time of peace. But in the leading features which I have suggested, and in others of inferior importance, it was a most unskillful fabric, and totally incompetent to fulfill the ends for which it was erected. Almost as soon as it was ratified, the states began to fail in a prompt and faithful obedience to its laws. As danger receded, instances of neglect became more frequent, and by the time of the peace of 1783, the disease of the government had displayed itself with alarming rapidity. The delinquencies of one state became a pretext or apology for those of another. The idea of supplying the pecuniary exigencies of the nation, from requisitions on the states, was soon found to be altogether delusive. The national engagements seemed to have been entirely abandoned. Even the contributions for the ordinary expenses of the government fell almost entirely upon the two states which had the, most domestic resources. Attempts were very early made by congress, and in remonstrances the most manly and persuasive, to obtain from the several states the right of levying, for a limited time, a general impost, for the exclusive purpose of providing for the discharge of the national debt. It was found impracticable to unite the states in any provision for the national safety and honor. Interfering regulations of trade, and interfering claims of territory, were dissolving the friendly attachments, and the sense of common interest, which had cemented and sustained the Union during the arduous struggles of the revolution. Symptoms of distress and marks of humiliation were rapidly accumulating. It was with difficulty that the attention of the states could be sufficiently exerted to induce them to keep up a sufficient representation in congress to form a quorum for business. The finances of the nation were annihilated. The whole army of the United States was reduced, in 1784, to 80 persons, and the states were urged to provide some of the militia to garrison the western posts. In short, to use the language of the authors of the Federalist, “each state, yielding to the voice of immediate interest or convenience, successively withdrew its support from the confederation, till the frail and tottering edifice was ready to fall upon our heads, and to crush us beneath its ruins.”
Most of the federal constitutions in the world have degenerated or perished in the same way, and by the same means. They are to be classed among the most defective political institutions which have been erected by mankind for their security. The great and incurable defect of all former federal governments, such as the Amphictyonic, the Achaean, and Lycian confederacies in ancient Greece; and the Germanic, the Helvetic, the Hanseatic, and the Dutch republics, in modern history, is, that they were sovereignties over sovereigns, and legislations, not for private individuals, but for communities in their political capacity. The only coercion for disobedience was physical force, instead of the decree and the pacific arm of the civil magistrate. The inevitable consequence, in every case in which a member chooses to be disobedient, is either a civil war, or an annihilation of national authority.
The first effort to relieve the people of this country from a state of national degradation and ruin, came from Virginia, in a proposition for a convention of delegates to regulate our commerce with foreign nations. The proposal was well received by the other states, and several of them sent delegates to a convention which met at Annapolis, in September, 1786. This small assembly, being only a partial representation of the states, and being deeply sensible of the radical defects of the system of the existing federal government, thought it inexpedient to attempt a partial, and probably only a temporary and delusive alleviation of our national calamities. They concurred, therefore, in a strong application to congress for a general convention, to take into consideration the situation of the United States, and to devise such further provisions as should be proper to render the federal government clot a mere phantom, as heretofore, but a real government, adequate to the exigencies of the union. Congress perceived the wisdom, and felt the patriotism of the suggestion, and recommended a convention of delegates from t he several states, to revise, annelid, and alter the articles. of confederation. All the states, except Rhode Island, acceded to the proposal, and appointed delegates, who assembled in a general convention at Philadelphia in May, 1787.
This was a crisis most solemn and eventful, in respect to our future fortune and prosperity. All the fruits of the revolution, and perhaps the final destiny of republican government, were staked on the experiment which was then to be made to reform the system of our national compact. Happily for this country, and probably as auspiciously for the general liberties of mankind, the convention combined a very rare union of the best talents, experience, information, Patriotism, probity, and character, which the country afforded; and it commanded that universal public confidence which such qualifications were. calculated to. inspire, After several months of tranquil deliberation, the convention agreed with unprecedented unanimity o» the plan, of government which now forms the constitution of the United States, This plan was directed to. be submitted to a convention of delegates, to be chosen by the people at large in each state, for their assent and ratification. This was laying the foundations of the fabric of our national polity, where alone they ought to be laid, on the broad, consent of the people. The constitution underwent a severe scrutiny and long discussion, not only in public prints and private circles, but solemnly and publicly, by the many illustrious statesmen who composed these local conventions. Near a year elapsed before it received the ratification of a requisite number of the states to give it a political existence. New Hampshire was the ninth state which adopted the constitution, and thereby, according to one of its articles, it was to become the government of the states so ratifying the same. Her example was immediately followed by the powerful states of Virginia and New York, and on the 4th of March, 1789, the government was duly organized and put in operation. North Carolina and Rhode Island withheld some time longer their assent. Their scruples were, however, gradually overcome, and in June, 1790, the constitution had received the unanimous ratification of all the members of the original confederacy.
The peaceable adoption of this government, under all the circumstances which attended it, presented the case of an effort of deliberation, combined with a spirit of amity and of mutual concession, which was without example. It must be a source of just pride, and of the most grateful recollection to every American, who reflects seriously on the difficulty of the experiment, the manner in which it was conducted, the felicity of its issue, and the fate of similar trials in other nations of the earth.
1. Hazard’s State Papers, 496, 583, 590. Hutchinson’s History of Massachusetts, vol. 1. 124,. 126. Robertson’s Posthumous History of America, b. 10. p. 191,192.
2. Smith’s History of New York, vol. i. p. 171.
3. Minot’s History of Massachusetts, vol. 1, ch. 9. Franklin’s Works, p. 85, London ed. 1779. Belknap’s New Hampshire, Vol. 2, 285. Smith’s History of New York, vol. 2, 180.
4. Franklin’s Works, p. 152, 182.
5. 2 Belknap’s N. H. 326. Journals of the Assembly of the Colony of N.Y. October, 1765.
6. Journals of Congress, vol. l, p. 74.
7. Journals of Cong. vol. 3.
8. Ibid. vol. 7.
9. Journals of Cong. vol. 5, p. 208.
10. Ibid. vol. 5.
11. 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.
12. Journals of Congress, vol. 2, p. 475.
13. Hist, de la Con fed. Helv. par Watteville, liv. 5. Planta’s Hist. of Switzerland, vol. I. last ch.
14. 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 Hist. d’Allemagne, tom. 2. p. 400. Putter’s Const. Hist. p. 365.
15. Temple’s Works, vol. 1, 115, 128, 337.