of the highest courts of judicature in the colonies; and English statesmen contended that the royal prerogative was exercisable in his colonial dependencies in many more particulars than the colonists were willing to concede.1

THE CONTINENTAL CONGRESS AND THE ARTICLES OF CONFEDERATION.

20. The first positive step towards the Union was the formation of the Continental Congress, a revolutionary body, which inaugurated the war, declared the independence of the colonies, and drafted certain articles of confederation. Upon the ratification of these articles by the states, the United States of America came into being.

The Continental Congress.

The first national legislative assembly in the United States was the Continental Congress, which met in 1774, in pursuance of a recommendation made by Massachusetts and adopted by the other colonies. In this congress all the colonies were represented except Georgia. The delegates were in some cases chosen by the legislative assemblies in the states; in others, by the people directly. The powers of this congress were undefined. The recommendation which led to it contemplated nothing more than a deliberation upon the state of public affairs. But by the acquiescence of the states and their people, it proceeded to take measures and pass resolutions which concerned the general welfare and had regard to the inauguration and prosecution of the war for independence. The first Continental Congress was succeeded in the following year, according to its own proposal, by another body chosen and organized in the same manner, in which all the states were represented. This body provided for the raising and equipping of an army, intrusted the command in chief to General Washington, and framed, adopted, and promulgated the Decla ration of Independence. The Continental Congress was not authorized by any pre-existing law or ordinance. Its acts and determinations were entirely outside the pale of ordinary law. It was not intended to be permanent, nor was it designed to be a national or 1 See 1 Story, Const. §§ 159-197.

confederate government.

It was merely raised up, as an extraordi

nary institution, to meet the special exigencies of the situation of the colonies. It was regarded rather as an advisory body, wielding the war powers of the whole people, than as a government.'

The Articles of Confederation.

When it became apparent that a war had been entered on which must result either in the destruction of American liberties or in the introduction to the world of a new nation, it was evident to all those interested in the conduct of public affairs that the revolutionary congress was at once too weak and too indefinite a bond between the states. It was necessary to devise a scheme of association which would insure vigor and faithful co-operation in the conduct of hostilities and would also more clearly apportion the powers of government between the states and the congress. The congress, to this end, prepared a series of "Articles of Confederation and Perpetual Union," and submitted them to the states for their approval and ratification in 1777. Before the close of the following year the articles had been ratified by all the states except Delaware and Maryland. Of these, the former gave in its adherence in 1779, and the latter in 1781.

The articles of confederation provided that the style of the confederacy should be "The United States of America"; 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;" that "the said states hereby severally enter into a firm league of friendship with each other, 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 articles also provided for interstate rights of citizenship, the extradition of criminals, and the according of full faith and credit to the records and judicial proceedings of each state in all the others. They provided for an annual congress of delegates to be appointed in the several states, but re

* On the Continental Congress, see 1 Story, Const. §§ 198-217; Pom. Const. Law, §§ 45-56; Rawle, Const. pp. 19-26; 1 Von Holst, Const. Hist. pp. 1-5.

serving to each state the power to recall its delegates or any of them, at any time during the year, and to send others in their stead. Each state was required to "maintain" its own delegates. Each state was given one vote in "determining questions in the United States." Provision was made for freedom of speech and debate, and for the protection of members of the congress from arrest. The prohibitions laid upon the individual states were as follows: They could not send or receive embassies or make treaties, without the consent of congress, nor grant titles of nobility. They could not make treaties with each other, without the same consent. They could not lay imposts or duties which might interfere with treaties made by the United States. They could not, in time of peace, maintain armies or navies, except to such extent as congress should judge to be necessary for their defense. They could not engage in war, without the consent of congress, except in case of actual invasion or a threatened Indian depredation, nor commission ships of war, nor grant letters of marque or reprisal, unless after the United States had declared war, and then only against the other belligerent and under congressional regulation, "unless such state be infested by pirates." "All charges of war and all other expenses that shall be incurred for the common defense or general welfare, and allowed by the United States in congress assembled, shall be defrayed out of a common treasury, which shall be supplied by the several states, in proportion to the value of all land within each state granted to or surveyed for any person, as such land and the buildings and improvements thereon shall be estimated according to such mode as the United States in congress assembled shall from time to time direct and appoint. The taxes for paying that proportion shall be laid and levied by the authority and direction of the legislatures of the several states within the time agreed upon by the United States in congress assembled." The powers confided to "the United States in congress assembled" were principally as follows: To determine on peace and war; send and receive ambassadors; enter into treaties and alliances; establish rules for prizes and captures on land; to grant letters of marque and reprisal; establish courts for the trial of piracies and felonies committed on the high seas; to act as the last resort on appeal in all disputes and differences between the states on questions of boundary, jurisdiction, or other cause; to regulate the alloy and value of coin struck

by their own authority or that of the respective states; to fix the standard of weights and measures; to regulate trade and manage affairs with the Indians; to establish and regulate post-offices from one state to another; to appoint superior officers of the army and navy, and make rules for the government and regulation of the land and naval forces, and direct their operations; to appoint a committee, to sit in the recess of congress, to be denominated a "committee of the states," and consisting of one delegate from each state; to appropriate and apply money for defraying the public expenses; to borrow money and emit bills on the credit of the United States; and to raise and maintain an army and navy. But in regard to nearly all these powers (and certainly all the most important of them), it was provided that they should never be exercised by the congress "unless nine states assent to the same."

Defects of the Articles of Confederation.

The articles of confederation were designed to bind the states together in a "firm league," but they proved to be no better than a rope of sand. Washington spoke of the confederation as "a shadow without the substance" and described congress as a "nugatory body." The Union, as thus constituted, was dependent on the states. was a central government, but it was not intrusted with the means of its own preservation. It had no executive; it had no courts; it "Congress had hardly more than

There

had no power to raise supplies. an advisory power at the best. It had no power to prevent or punish offenses against its own laws, or even to perform effectively the duties enjoined upon it by the articles of confederation. It alone could declare war, but it had no power to compel the enlistment, arming, or support of an army. It alone could fix the needed amount of revenue, but the taxes could only be collected by the states at their own pleasure. It alone could make treaties with foreign nations, but it had no power to prevent individual states from violating them. Even commerce, foreign and domestic, was to be regulated entirely by the states, and it was not long before state selfishness began to show itself in the regulation of duties on imports. In everything the states were to be sovereign, and their creature, the federal government, was to have only strength enough to bind the states into nominal unity, and only life enough to assure

it of its own practical impotence." "

Congress had the power to

coin money, but had no bullion. It could emit bills of credit, but had no funds to redeem them. Even the expenses of its own members were to be defrayed by the states which sent them and which could recall them. In effect, all the powers granted to the general government by this constitution, if they were not self-executing, were entirely at the mercy of the individual states. It therefore became

necessary to "form a more perfect Union" by establishing a constitution which should provide the central authority with adequate powers and adequate means for securing their enforcement.

ESTABLISHMENT OF THE FEDERAL CONSTITUTION.

21. The constitution of the United States was framed by a constitutional convention called for the purpose of revising the articles of confederation. Being submitted to the people, it was duly ratified by them, acting within their respective states, and became the fundamental law of the nation.

The constitutional convention met in 1787, in pursuance of a resolution of congress, whereby it was recommended that a convention of delegates, who should be appointed by the several states, be held at Philadelphia, for the sole and express purpose of revising the articles of confederation, and reporting to congress and the several legislatures such alterations and provisions therein as should, when agreed to in congress and confirmed by the states, render the federal constitution adequate to the exigencies of government and the preservation of the Union. The convention was composed of delegates from all the states except Rhode Island. The resolution from which they derived their authority contemplated nothing more than a revision of the articles of confederation. But the convention was not long in determining that the whole scheme of government therein contained was so defective that it was beyond hope that the evils and inconveniences complained of by the people could be remedied

8 Johns. Am. Pol. 7.

• On the articles of confederation, see 1 Story, Const. §§ 218-271; Pom. Const. Law, §§ 57-75; Rawle, Const. pp. 26-28; Federalist, Nos. 15-22.