convention for the said counties and districts, and the town of Baltimore aforesaid; and that all freemen above twenty-one years of age, owning a whole lot of land in the said city of Annapolis, or having a visible estate of £20 sterling at the least, within this province, or having served five years to any trade within the said city and being a house-keeper, and no others, he admitted to vote for representatives to serve in the said convention for the said city, provided such person shall have rc.ided in the county, district, city or town where he shall offer to vote, one whole year next preceding the election.

That all elections of the said representatives be free, and that the same be made viva voce in the manner heretofore used in this colony, without any regard to any act of parliament or other qualifications than before mentioned. And to prevent any violence or force being used at the said elections, no person shall come armed to any of them. . . .

That any person qualified as aforesaid to vote, may be elected a member of the intended convention, provided he be above twenty-one years of age, and shall have resided in the colony one whole year preceding the election.

excluded

That no person who has been published by any committee of Royalists observation, or the council of safety of this colony, as an enemy from to the liberties of America, and has not been restored to the favour voting. of his country, shall be permitted to vote at the election of members for the said convention.

CHAPTER III

The

under the

Articles of Confederation

practically tested.

ESTABLISHMENT OF THE FEDERAL CONSTITUTION

THE Articles of Confederation had not been in force very long government before it was abundantly demonstrated that the new government was inadequate to maintain the public credit of the nation, advance its economic and commercial interests, and guarantee domestic concord within and among the states. It was after a practical trial of the system that the political leaders of America came to see the necessity for reconstructing the federal union and were led to meditate seriously upon certain definite remedies for the abuses which had sprung up. The existence of a large number of clauses in the present Constitution, such as the one forbidding any state to pass a law impairing the obligation of contract, can be explained solely by reference to the conduct of states during the years 1781-1787. The reasons for the failure of the Articles of Confederation are ably summed up in the following document by Madison:

States

do not pay
their
taxes.

14. Madison's Criticism of the Articles of Confederation*

1. Failure of the States to Comply with the Constitutional Requisitions. This evil has been so fully experienced both during the war and since the peace, results so naturally from the number and independent authority of the States, and has been so uniformly exemplified in every similar Confederacy, that it may be considered as not less radically and permanently inherent in, than it is fatal to the object of, the present system.

2. Encroachments by the States on the Federal Authority. Examples of this are numerous, and repetitions may be foreseen in almost every case where any favorite object of a State shall present a temptation. Among these examples are the wars and

with

treaties of Georgia with the Indians, the unlicensed compacts between Virginia and Maryland, and between Pennsylvania and New Jersey, the troops raised and to be kept up by Massachusetts. 3. Violations of the Law of Nations and of Treaties. From Obligations the number of Legislatures, the sphere of life from which most of foreign their members are taken, and the circumstances under which their powers legislative business is carried on, irregularities of this kind must not kept. frequently happen. Accordingly, not a year has passed without instances of them ir. some one or other of the States. The Treaty of Peace, the treaty with France, the treaty with Holland, have each been violated. The causes of these irregularities must necessarily produce frequent violations of the law of nations in other respects.

As yet, foreign powers have not been rigorous in animadverting on us. This moderation, however, cannot be mistaken for a permanent partiality to our faults, or a permanent security against those disputes with other nations, which, being among the greatest of public calamities, it ought to be least in the power of any part of the community to bring on the whole.

discriminate

against

one

4. Trespasses of the States on the Rights of Each Other. These The states are alarming symptoms, and may be daily apprehended, as we are admonished by daily experience. See the law of Virginia restricting foreign vessels to certain ports; of Maryland in favor of vessels belonging to her own citizens; of New York in favor of the same.

another.

insecure.

Paper money, instalments of debts, occlusion of courts, making Creditors. property a legal tender, may likewise be deemed aggressions on the rights of other States. As the citizens of every State, aggregately taken, stand more or less in the relation of creditors or debtors to the citizens of every other State, acts of the debtor State in favor of debtors affect the creditor State in the same manner as they do its own citizens, who are, relatively, creditors towards other citizens. This remark may be extended to foreign nations. If the exclusive regulation of the value and alloy of coin was properly delegated to the federal authority, the policy of

Commercial discrimina

tions.

Wholesome national

measures

defeated by
perversity
of states.

States are
in danger of
domestic
violence.

it equally requires a control on the States in the cases above mentioned. It must have been meant: (a) To preserve uniformity in the circulating medium throughout the nation. (b) To prevent those frauds on the citizens of other States, and the subjects of foreign powers, which might disturb the tranquillity at home, or involve the union in foreign contests.

The practice of many States in restricting the commercial intercourse with other States, and putting their productions and manufactures on the same footing with those of foreign nations, though not contrary to the federal articles, is certainly adverse to the spirit of the Union, and tends to beget retaliating regulations, not less expensive and vexatious in themselves than they are destructive of the general harmony.

5. Want of Concert in Matters Where Common Interest Requires It. This defect is strongly illustrated in the state of our commercial affairs. How much has the national dignity, interest, and revenue suffered from this cause? Instances of inferior moment are the want of uniformity in the laws concerning naturalization and literary property; of provision for national seminaries; for grants of incorporation for national purposes, for canals, and other works of general utility; which may at present be defeated by the perverseness of particular States whose concurrence is necessary.

6. Want of Guaranty to the States of their Constitutions and Laws against Internal Violence. The Confederation is silent on this point, and therefore by the second article the hands of the federal authority are tied. According to Republican Theory, Right and power, being both vested in the majority, are held to be synonymous. According to fact and experience, a minority may, in an appeal to force, be an overmatch for the majority: (a) If the minority happen to include all such as possess the skill and habits of military life, and such as possess the great pecuniary resources, one-third only may conquer the remaining two-thirds. (b) One-third of those who participate in the choice of rulers may be rendered a majority by the accession of those whose poverty

excludes them from a right of suffrage, and who, for obvious reasons, will be more likely to join the standard of sedition than that of the established Government. (c) Where slavery exists, the Republican Theory becomes still more fallacious.

federate

government

means of

enforcing

its laws.

7. Want of Sanction to the Laws and of Coercion in the Gov- The Conernment of the Confederacy. A sanction is essential to the idea of law, as coercion is to that of Government. The federal system has no being destitute of both, wants the great vital principles of a Political Constitution. Under the form of such a Constitution, it is in fact nothing more than a treaty of amity, of commerce, and of alliance, between independent and Sovereign States. From what cause could so fatal an omission have happened in the Articles of Confederation? From a mistaken confidence that the justice, the good faith, the honor, the sound policy of the several legislative assemblies would render superfluous any appeal to the ordinary motives by which the laws secure the obedience of individuals; a confidence which does honor to the enthusiastic virtue of the compilers, as much as the inexperience of the crisis apologizes for their errors. The time which has since elapsed has had the double effect of increasing the light and tempering the warmth with which the arduous work may be revised.

It is no longer doubted that a unanimous and punctual obedience of 13 independent bodies to the acts of the federal Government ought not to be calculated on. Even during the war, when external danger supplied in some degree the defect of legal and coercive sanctions, how imperfectly did the States fulfil their obligations to the Union? In time of peace we see already what is to be expected. How, indeed, could it be otherwise? In the first place, every general act of the Union must necessarily bear urequally hard on some particular member or members of it; secondly, the partiality of the members to their own interests and rights, a partiality which will be fostered by the courtiers of popularity, will naturally exaggerate the inequality where it exists, and even suspect it where it has no existence; thirdly, a distrust of the voluntary compliance of each other may prevent the com

The

obedience

of the states cannot be relied upon.