2

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 Constitution.1 § 251. The Federalist speaks with unusual energy on this subject: "The great and radical vice in the construction of the confederation is in the principle of legislation for States or governments in their corporate 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 delinquencies of the States 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 further illustration of this topic may be gathered from the palpable defect in the confederation of any power to give a sanction to its laws.3 Congress had no power to exact obedience, or punish disobedience to its ordinances. They could neither impose fines, nor direct imprisonment, nor divest privileges, nor declare forfeitures, nor suspend refractory officers. There was in 1 Penhallow v. Doane, 3 Dall. 54; Carson v. Jennings, 4 Cranch, 2. [See note to § 217, ante.]

2 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. passim.

3 1 Kent's Comm. 200.

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

4

§ 253. But a still more striking defect was the total want of power to lay and levy taxes, or to raise revenue to defray the ordinary expenses of government. 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 evils resulting from this source, even during the Revolutionary War, were of incalculable extent; 5 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.® 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 common burdens.7

§ 254. But this consideration sinks into utter insignificance in 1 The Federalist, No. 21.

2 Yates's Minutes, 4 Elliot's Deb. 84.

8 The Federalist, No. 15; 1 Kent, Comm. 200, 201.

4 See in 1 U. S. Laws, (Bioren & Duane's ed.,) 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, Nos. 22, 32.

5 5 Marshall's Life of Washington, 55; 1 Amer. Museum, 449.

62 Pitk. Hist. 158, 159, 160, 163; 1 Tucker's Black. Comm. App. 237, 243 to 246; 1 U. S. Laws, 37, 54.

7 The Federalist, Nos. 21, 30.

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.1 Indeed, from the moment that the peace of 1783 secured the country from the distressing calamities of war, a general relaxation 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.2 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. An attempt was made by Congress, during the war, to procure from the States 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. The treasury was empty, the credit of the confederacy was sunk to a low ebb, the public burdens 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; 5 eight millions of 1 2 Pitk. Hist. 156, 157. See also Remarks of Patterson, J. in Hylton v. Uniteu States, 3 Dall. 171; 1 Elliot's Debates, 208; The Federalist, Nos. 21, 31.

Б

2 See 1 U. S. Laws, (Bioren & Duane's ed. 1815,) from page 37 to 54.

8 5 Marshall's Life of Washington, p. 35, 36, 37.

4 5 Marshall's Life of Washington, 37; Jour. of Congress, 3d Feb. 1781, p. 26; Id. 16th Dec. 1782, p. 38; Id. 26th April, 1783, p. 194, 203.

5 [Rives, Life of Madison, III. 73.] 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.

which were 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.1 Congress, conscious of its inability to discharge 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 public creditors. 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.2

§ 256. The measure thus adopted was strongly urged 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 patriotism of the nation.3 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

1 2 Pitk. Hist. 180; 5 Marsh. Life of Wash. 33.

2 2 Pitk. Hist. 180, 181; 5 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.

8 2 Pitk. Hist. 181, 182; 5 Marsh. Life of Wash. 32, 38, 39.

power, namely, 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, everything must very rapidly tend to anarchy and confusion. It is intlispensable 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 Revolution, 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 so many 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

1 5 Marsh. Life of Wash. 46, 47, 48; 2 Pitk. Hist. 216, 217. See also 2 American Museum, 153 to 158, Mr. Pinckney's Speech. See also 1 Kent, Comm. Lect. 10, p. 212 to 247 (2d edition).

2 Journals of Congress, 1786, p. 34. See also 2 American Museum, 153. The