224 DECLINE AND FALL [BOOK II.
DECLINE AND FILL OF THE CONFEDERATION.
§ 243. Any survey, however slight, of the confederation will
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
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
1 2 Pitk. Hist. 16.
CH. IV.] OF THE CONFEDERATION. 225
reignty 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 co-operation 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
1 Dr. Rush, in apologizing for the defects of the confederation, has
observed, -- "The confederation, together with most of our state con-
226 DECLINE AND FALL [BOOK II.
§ 245. Notwithstanding the declaration of the articles, that the
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 ministersat a foreign court. They could contract
debts; but they were without means to discharge them. They could
stitutions, was formed under very unfavorable circumstances. We had just
emerged from a corrupted monarchy. Although we understood perfectly the
principles of liberty, yet most of us were ignorant of the forms and
combinations of power in republics. Add to this the British army in the
heart of our country, spreading desolation wherever it went."* The North
American Review, for Oct. 1827, contains a summary of some of the
prominent defects of the confederation. Art. I. p. 249, &c.
* 1 Amer. Museum, 8. See also, 1 Amer. Museum, 270.
CH. IV.] OF THE CONFEDERATION. 227
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
§ 246. One of our leading writers addressed the following
to the public:1 "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." 2
§ 247. Strong as this language may seem, it has no colouring
the naked truth would justify.3
1 1 Amer. Mus. 1786, p. 270.
228 DECLINE AND FALL [BOOK II.
2 Language equally strong, and almost identical in expression, will be
found in Mr. Jay's Letter, addressed to the people of New-York, 1787; 3
Amer. Museum, 554, 556.
3 Mr. Justice Patterson, in Hylton v. The United States,* after
remarking, that congress, under the confederation, had no coercive
* 3 Dall. 176; 1 Cond. Rep. 83, 88.
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."1 The same sentiments may be found in many public documents.2
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.3 "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."4
§ 248. The leading defects of the confederation may be
the following heads:
In the first place, there was an utter want of all coercive authority to
carry into effect its own constitutional measures.5 This, of itself, was
sufficient to destroy its whole efficiency, as a superintending government,
ity, said, " Requisitions were a dead letter, unless the state legislatures
could be brought into action; and when they were, the sums raised were very
CH. IV.] OF THE CONFEDERATION. 229
1 5 Marshall's Life of Washington, 64. See also 2 Pitk. Hist. 217;
North Amer. Rev. Oct. 1827, p. 249, 254, 256, 259.
2 See 1 Amer. Museum, 275, 290, 364, 430, 447, 448, 449. The Federalist,
No. 15 to 22; 2 Amer. Museum, 383; Id. 395, &c.; 3 Amer. Museum, 62 to
69; Id. 73; Id. 334 to 338; Id. 342; Id. 348, &c.; Id. 549, &c.; 1
Kent's Comm. 201.
3 1 Amer. Museum, 352.
4 5 Marshall's Life of Washington, 83.
5 1 Jefferson's Corresp. 63.
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."1 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.2 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
1 5 Marshall's Life of Washington, 31. See also 1 Kent's Comm. 199; 1
Elliot's Debates, 208, 209, 210, 211; North Amer. Rev. Oct. 1827, p.
249, 257, &c.; The Federalist, No. 15.
230 DECLINE AND FALL. [BOOK II.
2 The Federalist, No. 15.
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
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.1 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
§ 251. The Federalist speaks with unusual energy on this
great and radical view in the construction of the confederation is in the
principle of legislation for states or governments in their corporate
I Journals of Congress, 6th of March, 1779, 5th vol. p. 86 &c. to 90.
CH. IV.] OF THE CONFEDERATION. 231
2 Penhallow v. Doane,3 Dall. 54; Carson v. Jennings, 4 Cranch, 2.
3 The Federalist, No. 15. See also 1 Jefferson's Corresp. 63; President
Monroe's Message of May, 1822; 1 Tucker's Black. Comm. App. note D.
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
palpable defect in the confederation, of any power to give a sanction to
its laws.1 Congress had no power to exact obedience, or punish
disobedience to its ordinances. They could neither impose fines,
1 1 Kent's Comm. 200.
232 DECLINE AND FALL [BOOK II.
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."1 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.2 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.3
§ 253. But a still more striking defect was the total want of
lay and levy taxes, or to raise revenue to defray the ordinary expenses of
government.4 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
1 The Federalist, No. 21.
CH. I.] OF THE CONFEDERATION. 233
2 Yates's Minutes, 4 Elliot's Deb. 84.
3 The Federalist, No. 15; 1 Kent Comm. 200, 201.
4 See in 1 U. S. Laws, (Bioren & Duane's Edition, p. 37 to 54,) the
proceedings of the old congress on this subject See also The Federalist,
No. 21; 1 Tucker's Black. Comm. 235 to 238; The Federalist, No. 22, 32.
evils resulting from this source, even during the revolutionary war, were
of incalculable extent;1 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.2 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
§ 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.4
Indeed, from the moment, that the peace of 1783 secured the country from
the distressing calamities of war, a general relaxa-
1 5 Marshall's Life of Washington, 55; 1 Amer. Museum, 449.
234 DECLINE AND FALL [BOOK II.
2 2 Pitk. Hist. 158, 159, 160, 163; 1 Tucker's Black. Comm. App. 237,
243 to 246; 1 U. S. Laws, 37 54.
3 The Federalist, No. 21, 30.
4 2 Pitk. Hist. 156, 157. See also Remarks of Patterson J. in Hylton
v. United States , 3 Dall. 171; 1 Elliot's Debates, 208; The Federalist
No. 21, 31; 3 Dall. 171, 178.
tion 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.1
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.2 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.3 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
burthened with a public debt of upwards of forty-two millions of dollars;4
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.5 Congress, conscious of
its inability to dis-
1 See 1 U. S. Laws, (Bioren & Duane's ed. 1815,) from page 37 to 54.
CH. IV.] OF THE CONFEDERATION. 235
2 5 Marshall's Life of Washington, p: 35, 36, 37.
3 5 Marshall's Life of Washington, 37; Jour. of Congress, 3d Feb. 1781
,p. 26; Id. l6th Dec. 1782, p. 38; Id. 26th April, 1783, p. 194, 203.
4 The whole expense of the war was estimated at 135 millions of dollars,
including the specie value of all treasury bills of the United States,
reduced according to the scale of depreciation established by congress. 2
Pitk. Hist. 180.
5 2 Pitk. Hist. 180; 5 Marsh. Life of Wash. 33.
charge 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 publiccreditors. 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.1
§ 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
1 2 Pitk. Hist. 180, 181; Marsh Life of Wash. 35, 36; Journals of
Congress, 12th Feb. 1783, p. 126; Id. 20th March, 1783, p 154, 157, 158,
160; Id. 18th April, 1783, p. 185 to 189.--An attempt was subsequently
made in Congress to procure authority to levy the taxes for the Union
separately from other state taxes; and to make the collectors liable to an
execution by the treasurer or his deputy, under the direction of congress.
But the measure failed of receiving the vote of congress itself. 5 Marsh.
Life of Washington, 36, note.
236 DECLINE AND FALL [BOOK II.
patriotism of the nation.1 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 rev-
1 2 Pitk. Hist. 181, 182; 5 Marsh. Life of Wash. 32, 38, 39.
CH. IV.] OF THE CONFEDERATION. 237
olution, 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 somany sufferings have been encountered
without compensation; and that so many sacrifices have been made in vain."1
§ 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.2 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;3 and from November, 1784, to January,
1786, 483,000 dollars only had been received at the national treasury.4
But for a temporary loan negotiated in Holland, there would have been an
utter prostration of the government. In this state of things the
1 5 Marsh. Life of Wash. 46, 47, 48; 2 Pitk. Hist. 216, 217. See also
2 Amer. Museum, 153 to 158, Mr. Pinckney's Speech. See also 1 Kent.
Comm. Lect. 10, p. 212 to 217, (2d edition.)
238 DECLINE AND FALL [BOOK II.
2 Journal of Congress, 1786, p. 34. See also 2 American Museum,
153.--The Report of a committee of congress of the 15th of February, 1786,
contains a detailed statement of the acts of the states relative to the
measure. Jour. of Congress, 1786, p. 34; 1 Amer. Museum, 282; 2 Amer.
Museum, 153 to 160.
3 2 Pitk. Hist. 184.5 Marsh. Life of Washington, 60.
value of the domestic debt sunk down to about one tenth Or its nominal amount.1
§ 258. February, 1786, congress determined to make another
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."2
After the adoption of this report, three states, which had hitherto stood
aloof, came into the measure. New-York alone
1 2 Pitk. Hist. 185.
CH. IV.] OF THE CONFEDERATION. 239
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.1
2 Journals of Congress, 1786, P. 34 to 36; 1 Amer. Museum, 282, &c.--The
Committee, who made the Report, were Mr. King, Mr. Pinckney, Mr. Kean,
Mr. Monroe, and Mr. Pettit.
§ 259. Independent, however, of this inability to lay taxes,
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
1 2 Pitk. Hist. 184, 222; 5 Marsh Life of Washington, 62, 63, 124; 1
Tuck. Black. App. 158.--The speech of Col. Hamilton, the in legislature
of New-York, in February, 1787, contains a very powerful argument in favor
of the impost; and a statement of the extent, to which each of the states
had complied with, or refused the requisitions of congress. During the
past five years, he says, New-Hampshire, North Carolina, South Carolina,
and Georgia had paid nothing; Connecticut and Delaware, about one third;
Massachusetts, Rhode Island, and Maryland, about one half; Virginia, three
fifths; Pennsylvania, near the whole; and New-York, more than her quota. I
Amer. Museum, 445, 418.
240 DECLINE AND FALL [BOOK II.
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.1
§ 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.2
1 New Jersey early felt the want of a power in congress, to regulate
foreign commerce, and made it one of her objections to adopting the
articles of confederation, in her representation to congress.--2 Pitk.
Hist. 23, 24; I Secret Journ. 375; The Federalist, No. 38.
CH. IV.] OF THE CONFEDERATION. 241
2 2 Pitk. Hist. 192, 214, 215; 1 Amer. Museum, 272, 273, 281, 282, 288;
The Federalist, No. 22.--1 Amer. Mus. 13 to 16; 2 Amer. Mus. 395 to
399; The Federalist, No. 7; 1 Elliot's Debates, 75; 1 Tucker's Black.
Comm. App. 159, 248, 249.--Mons. Turgot, the Comptroller General of
§ 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.1 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.2 We were,
therefore, the victims of our own imbecility, and reduced to a complete
subjection to the commercial regula-
the Finances of France, among other errors in our national policy,
observed, that in the several states, " one fixed principle is established
in regard to imposts. Each state is supposed to be at liberty to tax
itself at pleasure, and to lay its taxes upon persons, consumptions, or
importations; that is to say, to erect an interest contrary to that of
other states." 1 Amer. Museum, 16.
1 5 Marsh Life of Washington, 69, 72, 75, 79, 80.
242 DECLINE AND FALL. [BOOK II.
2 1 Tuck. Black. App. 157, 159; 5 Marsh. Life of Wash. 77, 78; 2
Pitk. Hist. 186 to 192; 1 Amer. Museum, 282, 288; 2 Amer. Museum, 263
to 276; Id. 371 to 373; 3 Amer. Museum, 551 to 557,562; North American
Review, Oct. 1827, p. 249, 257, 258.
tions 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.1 "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 to-day, and thirteen to-morrow. Who will treat
with us on such terms?"2
§ 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
1 5 Marsh. Life of Wash. 71, 72, 73; 2 Pitk. Hist. 189, 190; 3 Amer.
Museum, 62, 64, 65.
CH. IV.] OF THE CONFEDERATION. 243
2 5 Marsh. Life of Wash. 73; North American Review, Oct. 1827, p. 257,
258; Atcheson's Coll. of Reports, p. 55.
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.1
§ 263. In April, 1784, congress passed a resolution,
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 inter-
1 Journals of congress, April 13,1787, p. 32; Rawle on Constitution, App.
2, p. 316.--It was drawn up by Mr. Jay, then Secretary of Foreign
Affairs, and was unanimously adopted by congress. It however failed of is
object. And the treaty of 1783, so far as it respected British debts, was
never faithfully executed until after the adoption of the constitution of
the United States. See Ware v. Hylton, 3 Dall. R. 199; Hopkins v.
Bell, 3 Cranch, 454.
244 DECLINE AND FALL [BOOK II.
ests.1 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.2
§ 264. Various reasons concurred to produce these
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.3
§ 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
1 2 Pitk. Hist. 192; 5 Marsh. Life of Wash. 70.
CH. IV.] OF THE CONFEDERATION. 245
2 5 Marsh. Life of Washington, 80, 81.
3 5 Marsh. Life of Washington, App. note 1.
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.1 (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.2 (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.3 (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.4 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
1 The Federalist, No. 21; 3 Amer. Museum, 62, 63, 64.
246 DECLINE AND FALL [BOOK II.
2 The Federalist, No. 21; 3 Amer. Museum, 62, 65.
3 The Federalist, No. 22.
4 The Federalist, No. 22; 1 Amer. Museum, 275; 3 Amer. Museum, 62, 66.
functions.1 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.2 (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.3 (8.)
The want of judiciary power co-extensive with the powers of the general
§ 266. In respect to this last defect, the language of the
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 ingredi-
1 The Federalist, No. 22; 1 Amer. Museum, 8, 9; Id. 272; 3 Amer.
CH. IV.] OF THE CONFEDERATION. 247
Museum, 62, 66; 1 Kent's Comm. Lect. 10, p. 200. [2d edit. p. 212.]
2 1 Amer. Museum, 8, 9; Id. 363.
3 1 Amer. Museum, 8, 9; 3 Amer. Museum, 62, 66.
4 The Federalist, No. 22.
ents 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
§ 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, &c. 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
1 See Chisholm v. Georgia, 2 Dall. R. 419, 447.
248 DECLINE AND FALL [BOOK II.
§ 268. The last defect, which seems worthy of enumeration, is,
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.1 "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."2
§ 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.3 "A list of the cases, (says the Federalist,) in which
congress have been betrayed or forced by the
1 The Federalist, No. 22
CH. IV.] OF THE CONFEDERATION. 249
2 The Federalist, No. 43.
3 The Federalist, No. 43; 1 Kent's Comm. Lect. 10, p. 201. [2d edit.
p. 214, 215.]
defects of the confederation, into violations of their chartered
authorities, would not a little surprise those, who have paid no attention
to the subject."1 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."2
§ 270. Whatever may be thought as to some of these enumerated
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.3 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
1 The Federalist, No. 42.
250 DECLINE AND FALL [BOOK II.
2 The Federalist, No. 38.
3 5 Marsh. Life of Washington, 33.
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
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.1 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,2
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."3
1 5 Marsh. Life of Wash. 92, 93, 94, 95, 96, 104, 113, 114, 118, 120; 1
CH. VI.] OF THE CONFEDERATION. 251
Kent's Comm. 202; 1 Tuck. Black. Comm. App. note D, 142, 156; 1
Elliot's Debates, 208 to 213; 3 Elliot's Debates, 30, 31 to 34.
2 5 Marsh. Life of Wash. 124.
3 Mr. Jefferson uses the following language: " The alliance between
the states, under the old articles of confederation, for the purpose of
joint defence against the aggressions of Great Britain, was found
insufficient, as treaties of alliance generally are, to enforce compliance
with their mutual stipulations; and these once fulfilled, that bond was to
expire of itself, and each state to become sovereign and independent in all
things." 4 Jefferson's Corresp. 444. Thus, he seems to have held the
extraordinary opinion, that the confederation was to cease with the war,
or, at all events, with the fulfillment of our treaty stipulations.