March 1, 1781. The Union thus formed was defined by the Articles as "a firm league of friendship" between the States "for their common defense, the security of their liberties, and their mutual and general welfare, binding 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 any other pretense whatever." The second Article declared that "Each State retains its sovereignty, freedom and independence, and every power, jurisdiction and right, which is not, by this Confederation expressly delegated to the United States in Congress assembled." The privileges and immunities of the free inhabitants of each State were secured to the free inhabitants of the several States and provision was made for the mutual extradition of fugitives from justice. The States paid their delegates in Congress, each State having not less than two nor more than seven. The States could not make alliances or treaties with foreign States nor with one another without the consent of Congress; nor lay imposts or duties which should interfere with treaties pending with France or Spain; or keep vessels of war or soldiers, except militia, or engage in war without the consent of Congress. The money necessary to meet national expenses, as agreed upon by Congress, was derived from quotas upon the States. Congress had sole power of making peace or war; of making treaties and contracting alliances; of granting letters of marque; of establishing admiralty courts; of regulating weights and measures; controlling the postal service; borrowing money; but these high powers granted to Congress could be exercised only with the consent of nine States, and that of seven was necessary to do ordinary business. The States agreed to observe the Articles inviolably and the Articles could not be amended or altered without the consent of Congress and of all the State Legislatures.

Hardly were these Articles of Union proposed before opposition to their adoption developed. The character of that opposition is well indicated in the discussions of the

South Carolina Legislature, in 1778, when the Articles were before it for amendment and ratification. The chief justice of the State, William Henry Drayton, opposed their ratification because they imperilled, in his judgment, the sovereignty of the States-"which," he said, "should be restricted only in cases of necessity." The powers of Congress "should be clearly defined in their operation." Thus early in the history of the Union did State sovereignty ideas find utter

ance.

But while the Articles of Confederation had been passing through Congress and going the round of the States for ratification, the States had been adopting constitutions, that of Massachusetts, 1780, plainly asserting that the State was "free, sovereign and independent." This conception of the nature of the States prevailed in America at the time and was a cause of anxiety to men like Hamilton, who was among the first to point out the peril involved in the doctrine of State sovereignty. He declared as early as September, 1780, that the fault of recognizing this sovereignty was undermining the powers of Congress under the Articles of Confederation and demanded that Congress should be clothed with powers "competent to the public exigencies." It was owing to the development and acceptance of such an idea as Hamilton advocated that attempts were made to amend the Articles. The Fathers were convinced that the Articles were only an experiment, a temporary device agreed upon in war time and destined to fall into disuse under the trying tests of peace. The essential weaknesses of the Confederation were twofold: the nature of the Union itself under the Articles, and the impossibility of administering a national government under the Articles. Thus in theory and in administration the Articles were breaking down. Congress must have power to raise taxes without the intervention of the States: this need was imperative, but to grant the requisite power to Congress implied the unanimous consent of all the State Legislatures, which was not likely to be obtained, as was indicated in South Carolina; for to grant

to Congress supreme power over the sources of revenue was construed by the disciples of State sovereignty as a dangerous invasion of the rights of the States. Then, too, there was the problem of transportation and inter-state commerce-over which Congress had no control and over which the States indicated very little willingness to come to an agreement. The public debt to foreign powers and to domestic creditors, growing out of the Revolution, was pressing for settlement, and hardly was the Treaty of 1783 signed and proclaimed before a disposition was evident in many quarters of the Union to repudiate the debt. nation, was thus imperilled. of bills of credit reached the the first of December, 1779. The States had issued quite as much. Public credit was vanishing.

Public credit, the life of a The total issue by Congress vast sum of $233,000,000, by

It was at this time that Congress appealed to the States to amend the Articles so as to empower it to levy the requisite tax, that is, to impose a tariff: but the States, alarmed for their sovereignty, refused. Rhode Island was the only State which at last stood out firmly against granting Congress the authority asked for, on the ground that the power would make Congress, that is, the General government, independent of the States. At last, after an ineffective appeal to the States to make the needed reforms, Congress frankly confessed its helplessness; public interest in the Confederation had sunk so low at the opening of 1787, that Congress with difficulty secured a quorum to do business. At this critical moment New Jersey refused to pay its quota toward the national expenses. Virginia, interested in the navigation of the Potomac, had, by the influence of Madison, then a member of its Legislature, invited the States watered by that river, to assemble in Convention at Annapolis to take under consideration some plan of common benefit to control its navigation. On September 11, 1786, New York, New Jersey, Pennsylvania and Delaware met Virginia at Annapolis, and a few days later, Hamilton, one of the New York delegates, drew up the report of the Convention, to the effect

that a Convention of all the States should assemble at Philadelphia, in May, following, to take into consideration the wants of the Union. Out of this suggestion grew the Federal Convention which assembled May 10, 1787, and framed the Constitution of the United States, behind closed doors, during the summer following, completing its work on the 17th of September.

To whatsoever extent the States claimed that they were sovereign down to the time of the formation of the Constitution of the United States, none of them had presumed to exercise it to the full. Yet there can be no doubt that the doctrine of State sovereignty was held by the majority of the men who at this time gave the subject any thought. The Declaration of Causes for Secession issued by South Carolina in 1860, quoted in full in the preceding chapter, cites the Treaty with Great Britain of 1783, in proof of this doctrine. While the statement in the treaty declared the thirteen States to be each "free, sovereign and independent," yet that statement did not make them so. One cannot avoid the thought that Great Britain may not have been wholly free from ulterior motives in inserting the declaration. The British government knew only too well how feeble was the American Confederation-and it was likely to be much more feeble in peace than in war. There was not wanting hope that under the trying tests of peace some of the American Commonwealths might secede from the Confederacy, and either attempt to exist as a separate power, or to unite with other States, or, perhaps of greater importance, to make alliance with the mother country and at last come under its protection if they did not become a component part of it. The evidence cited by the authors of the South Carolina Declaration of 1860 must not be taken too seriously, therefore; but construed together with other evidence of the strength of the idea of State sovereignty at the time it becomes cumulative. One must turn to the State constitutions of the period, 1776-1789, for further evidence, and here it is also cumulative and of the same

kind. The Confederation of 1777 was a League created by the States, and the power that creates is always greater than the power that is created. Yet all the while that this rather indefinite notion of State sovereignty was abroad in the land, the United States as an organic power was steadily developing. Events, stronger than State constitutions or arguments of men, were shaping national affairs, and the nation as an organic body was in being. That it was feeble, that its purposes were obscure, that its wants were denied are matters of history: but of the fact that a nation, an organism embodying the will of the whole people was in being, there can be no doubt. It was national feeling that won the Revolution, not State feeling; national feeling that sustained Congress under the Confederation, not State feeling; national feeling that forced unwilling State governments to respond and make appearance in the Federal Convention of 1787 that framed the Constitution. The seventyfour delegates who were elected, the fifty-five who attended the Federal Convention, and the thirty-nine who finally signed the Constitution were not embassadors from sovereign States, for no State had authority to send such embassadors.

The Convention itself took this view of the situation by ignoring the Articles of Confederation and the State constitutions save as precedents-and proceeding to consider a new Constitution. Had the States been sovereign, the delegates would have been under obligation merely to suggest amendments to the Articles.

The very first proposition which the Convention took up was that "a national government ought to be established." The Virginia plan of government conceded this, though Governor Randolph, in presenting it, spoke of the "jealousy of the States regarding their sovereignty" as an obstacle in the way of forming a national government. Throughout the long and profound discussion of the plan which grew at last into the Constitution much was said of sovereignty, but the word was not introduced into the Constitution.