Commentaries on the Constitution of the United States (1833)
by Joseph L. Story
Decline and Fall of The Confederation
§ 243. Any survey, however slight, of the confederation will impress the mind with the intrinsic difficulties, which attended the formation of its principal features. It is well known, that upon three important points, touching the common rights and interests of the several states, much diversity of opinion prevailed, and many animated discussions took place. The first was, as to the mode of voting in congress, whether it should be by states, or according to wealth, or population. The second, as to the rule, by which the expenses of the Union should be apportioned among the states. And the third, as has been already seen, relative to the disposal of the vacant and unappropriated lands in the western territory.1
§ 244. But that, which strikes us with most force, is the unceasing jealousy and watchfulness everywhere betrayed in respect to the powers to be confided to the general government. For this, several causes may be assigned. The colonies had been long engaged in struggles against the superintending authority of the crown, and had practically felt the inconveniences of the restrictive legislation of the parent country. These struggles had naturally led to a general feeling of resistance of all external authority; and these inconveniences to extreme doubts, if not to dread of any legislation, not exclusively originating in their domestic assemblies. They had, as yet, not felt the importance or necessity of union among themselves, having been hitherto connected with the British sovereignty in all their foreign relations. What would be their fate, as separate and independent communities; how far their interests would coincide or vary from each other, as such; what would be the effects of the union upon their domestic peace, their territorial interests, their external commerce, their political security, or their civil liberty, were points to them wholly of a speculative character, in regard to which various opinions might be entertained, and various, and even opposite conjectures formed upon grounds, apparently of equal plausibility. They were smarting, too, under the severe sufferings of war; and hardly had time to look forward to the future events of a peace; or if they did, it would be obviously a period for more tranquil discussions, and for a better understanding of their mutual interests. They were suddenly brought together, not so much by any deliberate choice of a permanent union, as by the necessity of mutual cooperation and support in resistance of the measures of Great Britain. They found themselves, after having assembled a general congress for mutual advice and encouragement, compelled by the course of events to clothe that body with sovereign powers in the most irregular and summary manner, and to permit them to assert the general prerogatives of peace and war, without any previous compact, and sanctioned only by the silent acquiescence of the people. Under such circumstances each state felt, that it was the true path of safety to retain all sovereign powers within its own control, the surrender of which was not clearly seen, under existing circumstances, to be demanded by an imperious public necessity.2
§ 245. Notwithstanding the declaration of the articles, that the union of the states was to be perpetual, an examination of the powers confided to the general government would easily satisfy us, that they looked principally to the existing revolutionary state of things. The principal powers respected the operations of war, and would be dormant in times of peace. In short, congress in peace was possessed of but a delusive and shadowy sovereignty, with little more, than the empty pageantry of office. They were indeed clothed with the authority of sending and receiving ambassadors; of entering into treaties and alliances, of appointing courts for the trial of piracies and felonies on the high seas; of regulating the public coin; of fixing the standard of weights and measures; of regulating trade with the Indians; of establishing post-offices; of borrowing money, and emitting bills on the credit of the United States; of ascertaining and appropriating the sums necessary for defraying the public expenses, and of disposing of the western territory. and most of these powers required for their exercise the assent of nine states. But they possessed not the power to raise any revenue, to levy any tax, to enforce any law, to secure any right, to regulate any trade, or even the poor prerogative of commanding means to pay its own ministers at a foreign court. They could contract debts; but they were without means to discharge them. They could pledge the public faith; but they were incapable of redeeming it. They could enter into treaties; but every state in the union might disobey them with impunity. They could contract alliances; but could not command men or money to give them vigour. They could institute courts for piracies and felonies on the high seas; but they had no means to pay either the judges, or the jurors. In short, all powers, which did not execute themselves, were at the mercy of the states, and might be trampled upon at will with impunity.
§ 246. One of our leading writers addressed the following strong language to the public:3 “By this political compact the United States in congress have exclusive power for the following purposes, without being able to execute one of them. They may make and conclude treaties; but can only recommend the observance of them. They may appoint ambassadors; but cannot defray even the expenses of their tables. They may borrow money in their own name on the faith of the Union; but cannot pay a dollar. They may coin money; but they cannot purchase an ounce of bullion. They may make war, and determine what number of troops are necessary; but cannot raise a single soldier. In short, they may declare every thing, but do nothing.”4
§ 247. Strong as this language may seem, it has no colouring beyond what the naked truth would justify.5 Washington himself, that patriot without stain or reproach, speaks, in 1785, with unusual significance on the same subject. “In a word,” says he, “the confederation appears to me to be little more, than a shadow without the substance; and congress a nugatory body, their ordinances being little attended to.”6 The same sentiments may be found in many public documents.7 One of the most humiliating proofs of the utter inability of congress to enforce even the exclusive powers vested in it is to be found in the argumentative circular, addressed by it to the several states, in April 1787, entreating them in the most supplicating manner to repeal such of their laws, as interfered with the treaties with foreign nations.8 “If in theory,” says the historian of Washington, “the treaties formed by congress were obligatory; yet it had been demonstrated, that in practice that body was absolutely unable to carry them into execution.”9
§ 248. The leading defects of the confederation may be enumerated under the following heads: In the first place, there was an utter want of all coercive authority to carry into effect its own constitutional measures.10 This, of itself, was sufficient to destroy its whole efficiency, as a superintending government, if that may be called a government, which possessed no one solid attribute of power. It has been justly observed, that “a government authorized to declare war, but relying on independent states for the means of prosecuting it; capable of contracting debts, and of pledging the public faith for their payment; but depending on thirteen distinct sovereignties for the preservation of that faith; could only be rescued from ignominy and contempt by finding those sovereignties administered by men exempt from the passions incident to human nature.”11 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.12 It depended altogether upon the good will of the states, whether a measure should be carried into effect or not. And it can furnish no matter of surprise under such circumstances, that great differences of opinion as to measures should have existed in the legislatures of the different states; and that a policy, strongly supported in some, should have been denounced as ruinous in others. Honest and enlightened men might well divide on such matters; and in this perpetual conflict of opinion the state might feel itself justified in a silent, or open disregard of the act of congress.
§ 249. 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.
§ 250. A striking illustration of these remarks may be 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.13 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.14
§ 251. The Federalist speaks with unusual energy on this subject.15 “The great and radical view in the construction of the confederation is in the principle of legislation for states or governments in their corporate or collective capacities, and as contradistinguished from the individuals, of whom they consist. Though this principle does not run through all the powers delegated to the union; yet it pervades and governs those, on which the efficacy of the rest depends. Except as to the rule of apportionment, the United States have an indefinite discretion to make requisitions for men and money; but they have no authority to raise either by regulations extending to the individuals of America. The consequence of this is, that though in theory their resolutions concerning those objects are laws, constitutionally binding on the members of the Union; yet, in practice, they are mere recommendations, which the states observe or disregard at their option.” Again, “The concurrence of thirteen distinct sovereignties is requisite under the confederation to the complete execution of every important measure, that proceeds from the Union. It has happened, as was to have been foreseen. The measures of the Union have not been executed. The delinquences of the state have, step by step, matured themselves to an extreme, which has at length arrested all the wheels of the national government, and brought them to an awful stand. Congress at this time scarcely possess the means of keeping up the forms of administration till the states can have time to agree upon a more substantial substitute for the present shadow of a federal government.”
§ 252. 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.16 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.”17 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.18 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.19
§ 253. 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.20 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;21 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.22 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.23
§ 254. 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.24 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.25 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.26 An attempt was made by congress, during the war, to procure from the stales 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.27 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.
§ 255. These general remarks may be easily verified by an appeal to the public acts and history of the times. The close of the revolution, independent of the enormous losses, occasioned by the excessive issue and circulation, and consequent depreciation of paper money, found the country burdened with a public debt of upwards of forty-two millions of dollars;28 eight millions of which was due for loans obtained in France or Holland, and the remainder to our own citizens, and principally to those, whose bravery and patriotism had saved their country.29 Congress, conscious of its inability to discharge even the interest of this debt by its existing means, on the 12th of February, 1783, resolved, that the establishment of permanent and adequate funds, or taxes, or duties throughout the United States, was indispensable to do justice to the public creditors. On the 18th of April following, after much debate, a resolution was passed, recommending to the states to vest congress with power to levy certain specified duties on spirits, wines, teas, pepper, sugar, molasses, cocoa, and coffee, and a duty of five per cent. ad valorem on all other imported goods. These duties were to continue for twenty-five years, and were to be applied solely to the payment of the principal and interest of the public debt; and were to be collected by officers chosen by the states, but removable by congress. The states were further required to establish, for the same time and object, other revenues, exclusive of the duties on imports, according, to the proportion settled by the confederation; and the system was to take effect only when the consent of all the states was obtained.30
§ 256. The measure thus adopted was strongly urgde upon the states in an address, drawn up under the authority of congress, by some of our most distinguished statesmen. Whoever reads it, even at this distance of time, will be struck with the force of its style, the loftiness of its sentiments, and the unanswerable reasoning, by which it sustained this appeal to the justice and patriotism of the nation.31 It was also recommended by Washington in a circular letter, addressed to the governors of the several states; availing himself of the approaching resignation of his public command to impart his farewell advice to his country. After having stated, that there were, in his opinion, four things essential to the well being and existence of the United States, as an independent power, viz: 1. An indissoluble union of the states under one federal head; 2. A sacred regard to public justice; 3. The adoption of a proper peace establishment; 4. The prevalence of a pacific and friendly disposition of the people of the United States towards each other; he proceeded to discuss at large the first three topics. The following passage will at once disclose the depth of his feelings, and the extent of his fears. “Unless (said he) the states will suffer congress to exercise those prerogatives, they are undoubtedly invested with by the constitution, every thing must very rapidly tend to anarchy and confusion. It is indispensable to the happiness of the individual states, that there should be lodged somewhere a supreme power to regulate and govern the general concerns of the confederated republic, without which the union cannot be of long duration. There must be a faithful and pointed compliance on the part of every state with the late proposals and demands of congress, or the most fatal consequences will ensue. Whatever measures have a tendency to dissolve the Union, or contribute to violate, or lessen the sovereign authority, ought to be considered hostile to the liberty and independence of America, and the authors of them treated accordingly. And lastly; unless we can be enabled by the concurrence of the states to participate of the fruits of the revolution, and enjoy the essential benefits of civil society under a form of government so free and uncorrupted, so happily guarded against the danger of oppression, as has been devised by the articles of confederation, it will be a subject of regret, that so much blood and treasure have been lavished for no purpose; that so many sufferings have been encountered without compensation; and that so many sacrifices have been made in vain.”32
§ 257. Notwithstanding the warmth of this appeal, and the urgency of the occasion, the measure was never ratified. A jealousy began to exist between the state and general governments; and the state interests, as might naturally be presumed, predominated. Some of the states adopted the resolution, as to the imposts, with promptitude; others gave a slow and lingering assent; and others held it under advisement.33 In the mean time, congress was obliged to rely, for the immediate supply of the treasury, upon requisitions annually made, and annually neglected. The requisitions for the payment of the interest upon the domestic debt, from 1782 to 1786, amounted to more than six millions of dollars; and of this sum up to March, 1787, about a million only was paid;34 and from November, 1784, to January, 1786, 483,000 dollars only had been received at the national treasury.35 But for a temporary loan negotiated in Holland, there would have been an utter prostration of the government. In this state of things the value of the domestic debt sunk down to about one tenth of its nominal amount.36
§ 258. 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 dishonorable 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.”37 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.38
§ 259. 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 state. If one should levy duties to maintain its own government and resources, there were many temptations for its neighbours to adopt the system of free trade, to draw to itself a larger share of foreign and domestic commerce. The agricultural states might easily suppose, that they had not an equal interest in a restrictive system with the navigating states. And, at all events, each state would legislate according to its estimate of its own interests, the importance of its own products, and the local advantages or disadvantages of its position in a political or commercial view. To do otherwise would be to sacrifice its immediate interests, without any adequate or enduring consideration; to legislate for others, and not for itself; to dispense blessings abroad, without regarding the security of those at home.39
§ 260. Such a state of things necessarily gave rise to serious dissensions among the states themselves. The difference of regulations was a perpetual source of irritation and jealousy. Real or imaginary grievances were multiplied in every direction; and thus state animosities and local prejudices were fostered to a high degree, so as to threaten at once the peace and safety of the Union.40
§ 261. These evils were aggravated by the situation of our foreign commerce. During the war, our commerce was nearly annihilated by the superior naval power of the enemy; and the return of peace enabled foreign nations, and especially Great Britain, in a great measure to monopolize all the benefits of our home trade. In the first place, our navigation, having no protection, was unable to engage in competition with foreign ships. In the next place, our supplies were almost altogether furnished by foreign importers or on foreign account. We were almost flooded with foreign manufactures, while our own produce bore but a reduced price.41 It was easy to foresee, that such a state of things must soon absorb all our means; and as our industry had but a narrow scope, would soon reduce us to absolute poverty. Our trade in our own ships with foreign nations was depressed in an equal degree; for it was loaded with heavy restrictions in their ports. While, for instance, British ships with their commodities had free admission into our ports, American ships and exports were loaded with heavy exactions, or prohibited from entry into British ports.42 We were, therefore, the victims of our own imbecility, and reduced to a complete subjection to the commercial regulations of other countries, notwithstanding our boasts of freedom and independence. Congress had been long sensible of the fatal effects flowing from this source; but their efforts to ward off the mischiefs had been unsuccessful. Being invested by the articles of confederation with a limited power to form commercial treaties, they endeavoured to enter into treaties with foreign powers upon principles of reciprocity. But these negotiations were, as might be anticipated, unsuccessful, for the parties met upon very unequal terms. Foreign nations, and especially Great Britain, felt secure in the possession of their present command of our trade, and had not the least inducement to part with a single advantage. It was further pressed upon us, with a truth equally humiliating and undeniable, that congress possessed no effectual power to guaranty the faithful observance of and commercial regulations; and there must in such cases be reciprocal obligations.43 “America (said Washington) must appear in a very contemptible point of view to those, with whom she was endeavouring to form commercial treaties, without possessing the means of carrying them into effect. They must see and feel, that the Union, or the states individually, are sovereign, as best suits their purposes. In a word, that we are a nation today, and thirteen tomorrow. Who will treat with us on such terms?”44
§ 262. The difficulty of enforcing even the obligations of the treaty of peace of 1783 was a most serious national evil. Great Britain made loud complaints of infractions thereof on the part of the several states, and demanded redress. She refused on account of these alleged infractions to surrender up the western ports according to the stipulations of that treaty; and the whole confederacy was consequently threatened with the calamities of Indian depredations on the whole of our western borders, and was in danger of having its public peace subverted through its mere inability to enforce the treaty stipulations. The celebrated address of congress, in 1787, to the several states on this subject, is replete with admirable reasoning, and contains melancholy proofs of the utter inefficiency of the confederation, and of the disregard by the states in their legislation of the provisions of that treaty.45
§ 263. In April, 1784, congress passed a resolution, requesting the states to vest the general government with power, for fifteen years only, to prohibit the importation and exportation of goods in the ships of nations, with which we had no commercial treaties; and also to prohibit the subjects of foreign nations, unless authorized by treaty, to import any goods into the United States, not the produce or manufacture of the dominions of their own sovereign. Although congress expressly stated, that without such a power no reciprocal advantages could be acquired, the proposition was never assented to by the states; and their own countervailing laws were either rendered nugatory by the laws of other states, or were repealed by a regard to their own interests.46 At a still later period a resolution was moved in congress, recommending it to the states to vest in the general government full authority to regulate external and internal commerce, and to impose such duties, as might be necessary for the purpose, which shared even a more mortifying fate; for it was rejected in that body, although all the duties were to be collected by, and paid over to the states.47
§ 264. Various reasons concurred to produce these extraordinary results. But the leading cause was a growing jealousy of the general government; and a more devoted attachment to the local interests of the states; – a jealousy, which soon found its way even into the councils of congress, and enervated the little power, which it was yet suffered to exert. One memorable instance occurred, when it was expected, that the British garrisons would surrender the western posts, and it was thought necessary to provide some regular troops to take possession of them on the part of America The power of congress to make a requisition on the states for this purpose was gravely contested; and, as connected with the right to borrow money and emit bills of credit, was asserted to be dangerous to liberty, and alarming to the states. The measure was rejected, and militia were ordered in their stead.48
§ 265. There were other defects seriously urged against the confederation, which, although not of such a fatal tendency, as those already enumerated, were deemed of sufficient importance to justify doubts, as to its efficacy as a bond of union, or an enduring scheme of government. It is not necessary to go at large into a consideration of them. It will suffice for the present purpose to enumerate the principal heads. (1.) The principle of regulating the contributions of the states into the common treasury by quotas, apportioned according to the value of lands, which (as has been already suggested) was objected to, as unjust, unequal, and inconvenient in its operation.49 (2.) The want of a mutual guaranty of the state governments, so as to protect them against domestic insurrections, and usurpations destructive of their liberty.50 (3.) The want of a direct power to raise armies, which was objected to as unfriendly to vigour and promptitude of action, as well as to economy and a just distribution of the public burthens.51 (4.) The right of equal suffrage among all the states, so that the least in point of wealth, population, and means stood equal in the scale of representation with those, which were the largest. From this circumstance it might, nay it must happen, that a majority of the states, constituting a third only of the people of America, could control the rights and interests of the other two thirds.52 Nay, it was constitutionally, not only possible, but true in fact, that even the votes of nine states might not comprehend a majority of the people in the Union. The minority, therefore, possessed a negative upon the majority. (5.) The organization of the whole powers of the general government in a single assembly, without any separate or distinct distribution of the executive, judicial, and legislative functions.53 It was objected, that either the whole superstructure would thus fall, from its own intrinsic feebleness; or, engrossing all the attributes of sovereignty, entail upon the country a most execrable form of government in the shape of an irresponsible aristocracy. (6.) The want of an exclusive power in the general government to issue paper money; and thus to prevent the inundation of the country with a base currency, calculated to destroy public faith, as well as private morals.54 (7.) The too frequent rotation required by the confederation in the office of members of congress, by which the advantages, resulting from long experience and knowledge in the public affairs, were lost to the public councils.55 (8.) The want of judiciary power coextensive with the powers of the general government.
§ 266. In respect to this last defect, the language of the Federalist56 contains so full an exposition, that no farther comment is required. “Laws are a dead letter without courts to expound and define their true meaning and operation. The treaties of the United States, to have any force at all, must be considered as part of the law of the land. Their true import, as far as respects individuals, must, like all other laws, be ascertained by judicial determinations. To produce uniformity in these determinations, they ought to be submitted, in the last resort, to one supreme tribunal. And this tribunal ought to be instituted under the same authority, which forms the treaties themselves. These ingredients are both indispensable. If there is in each state a court of final jurisdiction, there may be as many different final determinations on the same point, as there are courts. There are endless diversities in the opinions of men. We often see not only different courts, but the judges of the same court differing from each other. To avoid the confusion, which would unavoidably result from the contradictory decisions of a number of independent judicatories, all nations have found it necessary to establish one tribunal paramount to the rest, possessing a general superintendence, and authorized to settle and declare, in the last resort, an uniform rule of justice.”
§ 267. “This is the more necessary, where the frame of government is so compounded, that the laws of the whole are in danger of being contravened by the laws of the parts, etc. The treaties of the United States, under the present confederation, are liable to the infractions of thirteen different legislatures, and as many different courts of final jurisdiction, acting under the authority of these legislatures. The faith, the reputation, the peace of the whole Union, are thus continually at the mercy of the prejudices, the passions, and the interests of every member, of which these are composed. Is it possible, under such circumstances, that foreign nations can either respect, or confide in such a government? Is it possible, that the people of America will longer consent to trust their honour, their happiness, their safety, on so precarious a foundation?” It might have been added, that the rights of individuals, so far as they depended upon acts or authorities derived from the confederation, were liable to the same difficulties, as the rights of other nations dependent upon treaties.57
§ 268. The last defect, which seems worthy of enumeration, is, that the confederation never had a ratification of the PEOPLE. Upon this objection, it will be sufficient to quote a single passage from the same celebrated work, as it affords a very striking commentary upon some extraordinary doctrines recently promulgated.58 “Resting on no better foundation than the consent of the state legislatures, it [the confederation] has been exposed to frequent and intricate questions concerning the validity of its powers; and has, in some instances, given birth to the enormous doctrine of a right of legislative repeal. Owing its ratification to a law of a state, it has been contended, that the same authority might repeal the law, by which it was ratified. However gross a heresy it may be to maintain, that a party to a compact has a right to revoke that compact, the doctrine itself has had respectable advocates. The possibility of a question of this nature proves the necessity of laying the foundations of our national government deeper, than in the mere sanction of delegated authority. The fabric of American empire ought to rest on the solid basis of the CONSENT OF THE PEOPLE. The streams of national power ought to flow immediately from that pure, original fountain of all legitimate authority.”59
§ 269. The very defects of the confederation seem also to have led congress, from the pressure of public necessity, into some usurpations of authority; and the states into many gross infractions of its legitimate sovereignty.60 “A list of the cases, (says the Federalist,) in which congress have been betrayed or forced by the defects of the confederation, into violations of their chartered authorities, would not a little surprise those, who have paid no attention to the subject.”61 Again, speaking of the western territory, and referring to the ordinance of 1787, for the government thereof, it is observed: “Congress have assumed the administration of this stock. They have begun to render it productive. Congress have undertaken to do more; they have proceeded to form new states, to erect temporary governments, to appoint officers for them, and to prescribe the conditions, on which such states shall be admitted into the confederacy. All this has been done, and done without the least colour of constitutional authority. Yet no blame has been whispered; no alarm has been sounded.”62
§ 270. Whatever may be thought as to some of these enumerated defects, whether they were radical deficiences or not, there cannot be a doubt, that others of them went to the very marrow and essence of government. There had been, and in fact then were, different parties in the several states, entertaining opinions hostile, or friendly to the existence of a general government.63 The former would naturally cling to the state governments with a close and unabated zeal, and deem the least possible delegation of power to the Union sufficient, (if any were to be permitted,) with which it could creep on in a semi-animated state. The latter would as naturally desire, that the powers of the general government should have a real, and not merely a suspended vitality; that it should act, and move, and guide, and not merely totter under its own weight, or sink into a drowsy decrepitude, powerless and palsied. But each party must have felt, that the confederation had at last totally failed, as an effectual instrument of government; that its glory was departed, and its days of labour done; that it stood the shadow of a mighty name; that it was seen only, as a decayed monument of the past, incapable of any enduring record; that the steps of its decline were numbered and finished; and that it was now pausing at the very door of that common sepulchre of the dead, whose inscription is, Nulla vestigia retrorsum.
§ 271. If this language should be thought too figurative to suit the sobriety of historical narration, we might avail ourselves of language as strongly coloured, and as desponding, which was at that period wrung from the hearts of our wisest patriots and statesmen.64 It is, indeed, difficult to overcharge any picture of the gloom and apprehensions, which then pervaded the public councils, as well as the private meditations of the ablest men of the country. We are told by an historian of almost unexampled fidelity and moderation, and himself a witness of these scenes,65 that “the confederation was apparently expiring from mere debility. Indeed, its preservation in its actual condition, had it been practicable, was scarcely to be desired. Without the ability to exercise them, it withheld from the states powers, which are essential to their sovereignty. The last hope of its friends having been destroyed, the vital necessity of some measure, which might prevent the separation of the integral parts, of which the American empire was composed, became apparent even to those, who had been unwilling to perceive it.”66