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Nature and Powers of the Confederation.

The nature of the government established by the Articles of Confederation can be understood only by an analysis of their provisions. For this purpose, the instrument must here be examined with reference to three principal topics: first, the union which it established between the different members of the Confederacy; second, the form of the government which it created; and third, the powers which it conferred, or omitted to confer, upon that government.

I. The parties to this instrument were free, sovereign, and independent political communities,—each possessing within itself all the powers of legislation and government, over its own citizens, which any political society can possess. But, by this instrument, these several States became united together for certain purposes. The instrument was styled, "Articles of Confederation and Perpetual Union between the States," and the political body thus formed was entitled "The United States of America." The Articles declared—as would, indeed, be implied, in such circumstances, without any express declaration—that each State retained its sovereignty, freedom, and independence, and every power, jurisdiction, and right not expressly delegated by the instrument itself to the United States in Congress assembled. The nature and objects of this union were described as a firm league of friendship between the States, for their common defence, the security of their liberties, and their mutual and general welfare; and the parties bound themselves to assist each other against all force offered to or attacks made upon them, or any of them, on account of religion, sovereignty, trade, or under any pretence whatever.

It was also provided, that the free inhabitants of each State should be entitled to all the privileges of free citizens in the several States;152 that there should be an open intercourse and commerce between the different States; that fugitives from justice from one State to another should be delivered up; and that full faith and credit should be given in each State to the records, acts, and judicial proceedings of every other State.153

II. The government established by the Articles of Confederation consisted of a single representative body, called a General Congress. In this body were vested all the powers, executive, legislative, and judicial, granted to the United States. The members of it were to be chosen by the States, in such manner as the legislature of each State might determine; no State to be represented by more than seven delegates, or by less than two. No delegate was eligible for more than three years in a period of six; and no delegate could hold any office of emolument under the United States. Each State was to maintain its own delegates, and in the determination of questions, the voting was to be by States, each State having one vote.

III. It should be remembered, that the objects and purposes of the Confederation related chiefly to the defence of the States against external attacks; and it was, therefore, as it purported to be, a league for mutual defence and protection, through the combined powers of the whole, operating in certain forms and under certain restrictions. For the manner in which this new authority was to be exercised, we are to look at the powers conferred upon "the United States in Congress assembled." These powers related to external and to internal affairs.

With regard to the external relations of the country, Congress was invested with the sole and exclusive right of determining on peace and war, unless in case of an invasion of a State by enemies, or an imminent danger of invasion by Indians; of sending and receiving ambassadors; of entering into treaties and alliances, under the limitation that no treaty of commerce could be made, which would have the effect to restrain the legislature of any State from imposing such imposts and duties on foreigners as their own people were subjected to, or which would operate to prohibit the exportation or importation of any commodity whatever. Congress was also invested with power to deal with all captures and prizes made by the land or naval forces of the United States; to grant letters of marque and reprisal in times of peace; and to establish courts for the trial of piracies and felonies committed on the high seas, and for determining appeals in cases of capture.

With regard to internal affairs, Congress was invested with power to decide, in the last resort, on appeal, all disputes between two or more States, concerning boundary, jurisdiction, or any other cause; and also all controversies concerning land-titles, where the parties claimed under different grants of two or more States before the settlement of their jurisdiction; but no State was to be deprived of territory for the benefit of the United States. Congress was also invested with the sole and exclusive right and power of regulating the alloy and value of coin struck by their authority, or by that of any of the United States; of fixing the standard of weights and measures throughout the United States; of regulating the trade and managing all affairs with the Indians, who were not members of any State, provided that the legislative authority of any State, within its own limits, should not be infringed or violated; of establishing and regulating post-offices from one State to another, and exacting postage to defray the expenses; of appointing all officers of the land forces in the service of the United States, and of making rules for the government and regulation of the land and naval forces, and directing their operations.

Congress was also invested with power to appoint a "committee of the States," to sit in the recess of Congress, to consist of one delegate from each State, and other committees and civil officers, to manage the general affairs under their direction; to appoint one of their number to preside, but authorizing no person to serve in the office of president more than one year in a term of three years; to ascertain and appropriate the necessary sums for the public service; to borrow money and emit bills on the credit of the United States; to build and equip a navy; and to agree upon the number of land forces and make requisitions upon each State for its quota, in proportion to the numbers of white inhabitants in such State. The legislature of each State was to appoint the regimental officers, enlist the men, and clothe, arm, and equip them, at the expense of the United States.

Such were the powers conferred upon Congress by the Articles of Confederation. But the restrictions imposed, in the same instrument, greatly qualified and weakened, and in fact almost rendered nugatory, the greater part of them. It was expressly provided, that Congress should never engage in a war; nor grant letters of marque or reprisal in time of peace; nor enter into any treaties or alliances; nor coin money or regulate its value; nor ascertain the sums of money necessary for the public purposes; nor emit bills; nor borrow money on the credit of the United States; nor appropriate money; nor agree upon the number of vessels for the navy, or the number of land or sea forces to be raised; nor appoint a commander-in-chief of the army or navy;—unless nine States should assent to the same. The Committee of the States authorized to sit during the recess of Congress could not do any of these things, for the assent of nine States could not be delegated.

The revenues of the country were left by the Articles of Confederation wholly in the control of the separate States. It was provided, that all charges of war, and all other expenses for the common defence or general welfare, should be defrayed out of a common treasury; but this treasury was to be supplied, not by taxes, duties, or imposts, levied by or under the authority of Congress, but by taxes to be laid and levied by the legislatures of the several States, within such time as might be fixed by Congress. The amount to be furnished by each State was in proportion to the value of the land within its limits granted or surveyed, and the buildings and improvements thereon, to be estimated according to the mode prescribed by Congress. The sole means, therefore, which the Confederation gave to Congress of supplying the treasury of the United States, was to vote what sum was wanted, and to call upon the legislature of each State to pay in its proportion within a given time. The commerce of the country was left entirely within the control of the State legislatures; rendering it the commerce of thirteen different States, each of which could levy what duties it saw fit upon all exports and imports, provided they did not interfere with any treaties then proposed, or touch the property of the United States, or that of any other State. The United States had no power of taxation, direct or indirect.

The Articles of Confederation were also entirely without any provision for enforcing the measures which they authorized Congress to adopt for the general welfare of the Union. It was declared in the instrument, that every State should abide by the determinations of Congress on all the questions over which the instrument gave that body control; that the Articles should be inviolably observed by every State; that the Union should be perpetual; and that no alterations should be made in any of the Articles, unless agreed to by Congress, and confirmed by the legislature of every State. But these declarations, however strong and emphatic in their terms, only made the Confederation in fact, as in name, a league or compact between sovereign States; for it gave the government of the Union no power to enforce its own measures or laws by process upon the persons of individuals, and consequently any party to the instrument could infringe any or all of its provisions, without any other consequence than a resort to arms by the general Confederacy, which would have been civil war.

These, with some restrictions upon the power of the States in regard to the making of treaties, engaging in war, sending ambassadors, and some other topics, were the main provisions of the Articles of Confederation; and under the government thus constituted, the United States, on the second day of March, 1781, entered upon a new era of civil polity, and commenced a new existence, under somewhat happier auspices than they had known before.

It will be seen, in the further development of the period which followed the establishment of this Confederation, down to the calling of the Convention which framed the Constitution, that what I have called the great office of the Confederation, in our political system, was indeed a function of vast importance to the happiness of the American people, but, at the same time, was one that was necessarily soon fulfilled, to be followed by a more perfect organization for the accomplishment of the objects and the satisfaction of the wants which it brought in its train. This office of the Confederation was, to demonstrate to the people of the American States the practicability and necessity of a more perfect union. The Confederation showed to the people of these separate communities, that there were certain great purposes of civil government, which they could not discharge by their separate means; that independence of the crown of Great Britain could not be achieved by any one of them, unassisted by all the rest; that no one of them, however respectable in population or resources, could be received and dealt with, by the governments of the world, as a nation among nations;—but that, by union among themselves, by some political tie, which should combine all their resources in the hands of one directing power, and make them, in some practical sense, one people, it was possible for them to achieve their independence, and take a place among the nations. The Confederation made it manifest, that these consequences could be secured. It did not, indeed, answer all the purposes, or accomplish all the objects, which had been designed or hoped from it: it was defective as a means; but it taught the existence of an end, and demonstrated the possibility of reaching that end, by showing that in some form, and for some purposes, a union of the States was both possible and necessary. It thus made the permanent idea of union familiar to the people of the different States. It did more than this. It created a larger field for statesmanship, by creating larger interests, to be managed by that higher order of men, who could rise above local concerns and sectional objects, and embrace within the scope of their vision the happiness and welfare of a continent. It introduced to men's minds the great ideas of national power and national sovereignty, as the agencies that were to work out the difficult results, which no local power could accomplish; and, although these ideas were at first vague and indefinite, and made but a slow and difficult progress against influences and prejudices of a narrower kind, they were planted in the thoughts of men, to ripen into maturity and strength in the progress of future years. When the eagle grasped in his talons the united shafts of power, and unfurled the scroll which taught that one people could be formed out of many communities, the destiny of America was ascertained.154