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Hostilities had begun between the mother country and the colonies. The battle of Lexington had been fought on the 19th of April preceding, and every thing announced an impending war between the two countries. Great Britain declared her intention to compel the colonies to submit by force of arms, and that determination soon brought on actual war. Congress, supported by the confidence of the people, but without any express powers, undertook to direct the storm, and were seconded by the people and by the colonial authorities. They issued paper money, raised troops by requisitions, appointed officers, settled their pay and emoluments, directed military operations, and in little more than a year after their meeting, they proclaimed independence, without making any other change in the state of things. It was not until the 15th of November 1777, that they presented to the new states for their acceptance articles of confederation and perpetual union, which were not adopted by all until the year 1781, when Maryland was the last that ratified them.


In the mean time congress went on as if they had been invested with the most explicit powers; they went

so far as to bind the nation by treaties with France, by one of which they guaranteed all the possessions of that kingdom in the West Indies. It was not, as far as we know, even thought necessary that those treaties should be ratified by the state legislatures. No one, at that time, denied the constitutionality of those powers, which congress exercised for the defence of the country, and the general welfare, though they had no other authority to show for them than the tacit consent of the people; and it is remarkable that in none of the constitutions that were made in the years 1776 and 1777, after the Declaration of Independence, and before the articles of confederation were submitted to the states, among which constitutions may be mentioned those of New York, Pennsylvania, Maryland, and North Carolina, nothing was said of the treaty-making power, or of that of declaring war and making peace, so well was it understood that those powers did not belong to the individual states, but to the United States, under whatever form their general government might thereafter be constituted. The union was deeply rooted, and had its most solid foundations in the hearts of the people, who gloried in being not a cluster of independent communities, but a great, respectable, and powerful nation.

This undefined state of things ceased on the 12th of February, 1781, when by the accession of Maryland, the articles of confederation and perpetual union became the national law of the whole thirteen states. They were very inadequate to what the critical situation of the country required; but the people's minds were not yet prepared for a more comprehensive and more efficient form of government.

Sect. 2.–Of the Articles of Confederation and Perpetual



This celebrated compact began with a declaration that each state retained its sovereignty, freedom and independence, and every power, jurisdiction and right, which the confederation did not expressly delegate to the United States in congress assembled. It proceeded to define the confederation itself to be a league of friendship between the states for their common defence, the security of their liberties, and their mutual and general welfare; and lastly the states bound themselves, in their sovereign and independent capacities, to assist each other against all external force. To promote good neighbourhood between the confederates, the free inhabitants of each state, (paupers and vagabonds only excepted,) were to be entitled to the privileges of citizens in all the others; fugitives from justice were to be mutually delivered up, and full faith and credit were to be given in each of the states, to the records, acts, and judicial proceedings of the others. It is not a little remarkable that no provision was made for the delivering up of fugitive slaves, which seems to have been left entirely to the good faith of the states.


The formation of the congress was established on the principle of the sovereignty and independence of the states. Its members were in fact no more than ambassadors, under the name of delegates, (legati,) from the states which sent them. Each state was to send a number of such delegates, not less than two, nor more than seven; to maintain them at its own expense, and to recall them at pleasure, even within the year for which they were appointed.

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To this congress was given a splendid array of powers, which in appearance placed them on a line with the most potent sovereigns of the earth; but it was in appearance only, for the substance was denied them, the states having reserved to themselves all the means of carrying those powers into execution. Thus congress might declare and carry on war, make treaties of peace, alliance and commerce, decree the raising of land forces, and the quotas of each state, build and fit out ships of war, borrow money and issue bills of credit on the faith of the nation; but none of those powers could be exercised without the co-operation of the individual states: if an army was to be raised, all that congress could do, was to make requisitions to the states for their respective quotas of men in arms; and it was the same when money was wanted,

as congress power to raise it directly or indirectly in the shape of taxes. The states, it is true, were expressly bound by the articles of confederation to furnish those quotas when required; the mode of assessment was also fixed by that instrument; it was in proportion to the value of all land within each state granted to or surveyed for any person, with the buildings and improvements thereon,

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as the same should be estimated in such manner as congress might from time to time prescribe. But congress had no power to compel the states to fulfil those engagements; the moral bond was all they had to rely upon,


one knows how weak is that tie upon states as well as upon individuals, if not strengthened by a power, which they cannot resist, and which they are forced to obey. To increase the difficulty, congress could not exercise the powers which we have enumerated without the concurrence of the delegates of more than two-thirds of the states, that is to say, of nine out of thirteen. The votes were taken by states, represented by their delegates. If the members of a delegation were equally divided in opinion on a particular point, it followed that the state that they represented, was so far deprived of a voice, which still increased the difficulty of obtaining the required majority.

The states, it is true, were prohibited from separately exercising the powers which they had conferred on the congress; they could not, without the consent of that body, send or receive embassies, or make treaties with foreign governments; neither could they, without such consent, engage in war, unless in case of actual invasion, or of imminent danger of being attacked by the Indians. They could not grant commissions to ships of war, or issue letters of marque or reprisal, except after a declaration of war by congress, or in case of their being infested by pirates, and then only until congress

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