Washington himself, that patriot without stain or reproach, speaks, in 1785, with unusual significancy on the same subject. "In a word," says he, "the confederation appears to me to be little more, than a shadow without the substance; and congress a nugatory body, their ordinances being little attended to."1 The same sentiments may be found in many public documents. One of the most humiliating proofs of the utter inability of congress to enforce even the exclusive powers vested in it is to be found in the argumentative circular, addressed by it to the several states, in April, 1787, entreating them in the most supplicating manner to repeal such of their laws, as interfered with the treaties with foreign nations.3 "If in theory," says the historian of Washington, "the treaties formed by congress were obligatory; yet it had been demonstrated, that in practice that body was absolutely unable to carry them into execution.” 4

248. The leading defects of the confederation may be enumerated under the following heads:

In the first place, there was an utter want of all coercive authority to carry into effect its own constitutional measures. This, of itself, was sufficient to destroy its whole efficiency, as a superintending government, if

5

ity, said, "Requisitions were a dead letter, unless the state legislatures could be brought into action; and when they were, the sums raised were very disproportional."

15 Marshall's Life of Washington, 64. See also 2 Pitk. Hist. 217; North Amer. Rev. Oct. 1827, p. 249, 254, 256, 259.

2 See 1 Amer. Museum, 275, 290, 364, 430, 447, 448, 449. The Federalist, No. 15 to 22; 2 Amer. Museum, 383; Id. 395, &c.; 3 Amer. Museum, 62 to 69; Id. 73; Id. 334 to 338; Id. 342; Id. 348, &c. ; Id. 549, &c.; 1 Kent's Comm. 201.

3 1 Amer. Museum, 352.

4 5 Marshall's Life of Washington, 83.

5 1 Jefferson's Corresp. 63.

1

that may be called a government, which possessed no one solid attribute of power. It has been justly observed, that "a government authorized to declare war, but relying on independent states for the means of prosecuting it; capable of contracting debts, and of pledging the public faith for their payment; but depending on thirteen distinct sovereignties for the preservation of that faith; could only be rescued from ignominy and contempt by finding those sovereignties administered by men exempt from the passions incident to human nature." That is, by supposing a case, in which all human governments would become unnecessary, and all differences of opinion would become impossible. In truth, congress possessed only the power of recommendation.2 It depended altogether upon the good will of the states, whether a measure should be carried into effect or not. And it can furnish no matter of surprise under such circumstances, that great differences of opinion as to measures should have existed in the legislatures of the different states; and that a policy, strongly supported in some, should have been denounced as ruinous in others. Honest and enlightened men might well divide on such matters; and in this perpetual conflict of opinion the state might feel itself justified in a silent, or open disregard of the act of congress.

§ 249. The fact corresponded with the theory. Even during the revolution, while all hearts and hands were engaged in the common cause, many of the measures of congress were defeated by the inactivity of the

1 5 Marshall's Life of Washington, 31. See also 1 Kent's Comm. 199 ; 1 Elliot's Debates, 208, 209, 210, 211; North Amer. Rev. Oct. 1827, p. 249, 257, &c.; The Federalist, No. 15.

2 The Federalist, No. 15.

states; and in some instances the exercise of its

pow

ers were resisted. But after the peace of 1783, such opposition became common, and gradually extended its sphere of activity, until, in the expressive language already quoted, "the confederation became a shadow without the substance." There were no national courts having original or appellate jurisdiction over cases regarding the powers of the union; and if there had been, the relief would have been but of a very partial nature, since, without some act of state legislation, many of those powers could not be brought into life.

§ 250. A striking illustration of these remarks may be found in our juridical history. The power of appeal in prize causes, as an incident to the sovereign powers of peace and war, was asserted by congress after the most elaborate consideration, and supported by the voice of ten states, antecedent to the ratification of the articles of confederation.1 The exercise of that power was, however, resisted by the state courts, notwithstanding its immense importance to the preservation of the rights of independent neutral 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.2

§ 251. The Federalist speaks with unusual energy on this subject. "The great and radical view in the construction of the confederation is in the principle of legislation for states or governments in their corporate

1 Journals of Congress, 6th of March, 1779, 5th vol. p. 86 &c. to 90. 2 Penhallow v. Doane, 3 Dall. 54; Carson v. Jennings, 4 Cranch, 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.

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 foreThe measures of the Union have not been executed. The delinquences of the state 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.”

seen.

§ 452. A farther illustration of this topic may be gathered from the palpable defect in the confederation, of any power to give a sanction to its laws.1 Congress had no power to exact obedience, or punish disobedience to its ordinances. They could neither impose fines,

1 1 Kent's Comm. 200.

1

nor direct imprisonment, nor divest privileges, nor declare forfeitures, nor suspend refractory officers. There was in 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." 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. 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

2

§ 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.4 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

1 The Federalist, No. 21.

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

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

4 See in 1 U. S. Laws, (Bioren & Duane's Edition, 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, No. 22, 32.