members of the federal alliance; and to resign the jurisdiction as well as the right of pre-emption over her waste and uncultivated territory. The refusal of Maryland, so long persisted in, gave encouragement to the enemy, and injured the common. cause, and damped the hopes of the friends of America at home and abroad. These considerations at last induced that state to make a generous sacrifice of her pretensions; and on the 1st of Merch, 1781, and which was upwards of three years from their first promulgation, the articles of confederation received the unanimous approbation of the United States.

The difficulties which impeded the framing and adopting the articles of confederation, even during the pressure of a common calamity, and which nothing at last but a sense of common danger could surmount, form a striking example of the mighty force of local interests and discordant passions, and they teach a monitory lesson of moderation to political councils.

Notwithstanding the articles of confederation conferred upon Congress (though in a very imperfect manner, and under a most

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unskilful organization) the chief rights of political su*212 premacy, the jura summi imperii, by which our existence as an independent people was bound up together, and known and acknowledged by the nations of the world, yet they were, in fact, but a digest, and even a limitation, in the shape of written compact, of those undefined and discretionary sovereign powers which were delegated by the people of the colonies to Congress, in 1775, and which had been freely exercised and implicitly obeyed. (a) A remarkable instance of the exercise of

(a) The government of the Union is considered to have been revolutionary in its nature, from its first institution by the people of the colonies, in 1774, down to the final ratification of the articles of confederation, in 1781, and to have possessed powers adequate to every national emergency, and coextensive with the object to be attained. (Paterson J., Iredell J., and Blair J., in Penhallow v. Doane, 3 Dallas, 80, 91, 95, 111; Dane's Abr. ix. App. 1, 13, 16, 21, 25; Judge Wilson in his argument in support of the ordinance of Congress of December 31st, 1781, incorporating the Bank of North America, Wilson's Works, iii. 397; Story, Comm. on the Constitution, i. pp. 186-191.) Mr. Madison, who was a member of Congress at the time, says, that the members were generally of the opinion that they had no power, under the recently adopted articles of confederation, to incorporate the bank. They were, in fact, impelled to do it from the great expediency, if not absolute necessity of the institution, to sustain the war and our credit. The Madison Papers, i. 104. According to Mr. Dane, the government of the United States has passed through three forms: 1. The revolu tionary; 2. The confederate; 3. The constitutional; and the first and the third pro ceeded equally from the people in their original capacity.

this original, dormant, and vast discretion appears on the journals of Congress, the latter end of the year 1776. The progress of the British arms had, at that period, excited the most alarming apprehension for our safety, and Congress transferred to the commander-in-chief, for the term of six months, complete dictatorial power over the liberty and property of the citizens of the United States, in like manner as the Roman senate, in the critical times of the republic, was wont to have recourse to a dictator, ne quid respublica detrimenti capiat. (b) Such loose, undefined authority as the Union originally possessed was absolutely incompatible with any regular notions of liberty. Though it was exercised, in the instance we have referred to, and in other strong cases, with the best intentions, and under the impulse of an irresistible necessity, yet such an irregular sovereignty never can be durable. It will either dwindle into insignificance, or degenerate into despotism.

The powers of Congress, as enumerated in the articles of confederation, would perhaps have been competent for all the essential purposes of the Union, had they been duly distributed among the departments of a well-balanced government, and been carried down, through the medium of a national, judicial, and executive power, to the individual citizens

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of the Union. * 213 The exclusive cognizance of our foreign relations, the rights of war and peace, and the right to make unlimited requisitions of men and money, were confided to Congress, and the exercise of them was binding upon the states. But, in imitation of all the former confederacies of independent states, either in ancient Greece or modern Europe, the articles of confederation carried the decrees of the federal council to the states in their sovereign or collective capacity. This was the great fundamental defect in the confederation of 1781; it led to its eventual overthrow; and it has proved pernicious or destructive to all other federal governments which adopted the principle. Disobedience to the laws of the Union must either be submitted to by the government, to its own disgrace, or those laws must be enforced. by arms. The mild influence of the civil magistrate, however strongly it may be felt and obeyed by private individuals, will not be heeded by an organized community, conscious of its strength and swayed by its passions. The history of the federal govern(b) Journals of Congress, ii. 475.

ments of Greece, Germany, Switzerland, and Holland afford melancholy examples of destructive civil war springing from the disobedience of the separate members. I will mention only a single instance to this effect, taken from the generally uninteresting annals of the Swiss cantons. By one of the articles of the Helvetic alliance, the cantons were bound to submit any difference which might arise between them to arbitrators. In the year 1440, a dispute arose between Zurich on the one side, and the cantons of Schweitz and Glaris on the other, respecting some territorial claims. Zurich refused to submit to a decision against her, and the contending parties took to arms. All Switzerland was, of course, armed against Zurich, the refractory member. She sought protection from her ancient enemy, the house of Austria, and the controversy was not terminated in favor of the federal decree, until after six years of furious and destructive war. (a)

214 *Had there been sufficient energy in the government of the United States, under the articles of confederation, to have enforced the constitutional requisitions, it might have proved fatal to public liberty; for Congress, as then constituted, was a most unfit and unsafe depositary of political power, since all the authority of the nation, in one complicated mass of jurisdiction, was vested in a single body of men. It was, indeed, exceedingly fortunate, as the event has subsequently shown, that the state legislatures even refused to confer upon Congress the right to levy and collect a general impost, notwithstanding the refusal appeared to be extremely disastrous at the time, and was deeply regretted by the intelligent friends of the Union. Had such a power been granted, the effort to amend the confederation would probably not have been made, and the people of this country might have been languishing to this day, the miserable victims of a feeble and incompetent union.

(a) Hist. de la Confed. Helv. par Watteville, liv. v.; Planta, Hist. of Switzerland, i. last chapter. The Swiss Confederation was remodelled by the federal act of 1815, and consists, at the present time, of twenty-five cantons. The federal Diet consists of one deputy from each of the twenty-two cantons, with one vote each, and with a half vote only to the three additional cantons, created on a subdivision. The powers of war and peace, alliance and commerce, reside exclusively in the general Diet, with a common army and treasury; but each canton may conclude separate capitulations and treaties relative to local and municipal matters, and retain its original sovereignty unimpaired for all domestic purposes. Wheaton, Elements of International Law, 8d ed. 93. [8th ed. 83, § 57 et seq. and Dana's note 33.]

There was no provision in the articles of confederation enabling Congress to add a sanction to its laws. In this respect, they were more defective than some of the other federal governments which are to be met with in history. The Amphictyonic council, in Greece, had authority to fine and punish their refractory states. Lacedæmon and Phocis were both prosecuted before the council of the Amphictyons (which was a council of the representatives of twelve nations of Greece), and all the Greek states were required by proclamation to enforce the decree. The Germanic diet, as it formerly existed, could put its members under the ban of the empire, by which their property was confiscated; and it was aided in enforcing obedience to its laws by a federal judiciary and an executive head. (a) Congress, under the old confed

(a) The imperial chamber had appellate jurisdiction only. Its sentences were carried into execution against refractory states by the military force of the circles. Pfeffel, Abr. Chro. de l'Hist. d'Allemagne, ii. 100; Potter, Const. Hist. 355. The new Germanic Confederacy, established under the acts of the Congress of Vienna in 1814 and 1815, and modified afterwards in 1832 and 1834, consists of the sovereign princes and free cities of Germany. It includes the great powers of Austria and Prussia, in respect to their possessions, which formerly belonged to the Germanic Empire, Denmark, in respect to the Duchy of Holstein, the Netherlands, Bavaria, Saxony, Hanover, Wurtemberg, and many other lesser principalities and states, together with the free cities of Lubeck, Frankfort, Bremen, and Hamburg. The federative Diet or Congress meets at Frankfort-on-the-Main, and is represented by the respective powers by their ministers, and their votes in the General Assembly or Diet are, in point of numbers, in some degree in a ratio to their relative power. While a few of the great powers have each four votes, others of a lesser degree have respectively three or two votes, and many of the states, and, among others, the free cities, have each only one vote. It is a singular and complicated union of mixed powers, partly national and partly separate and individual. It is declared, in the solemn acts of union, to be a federal league of the sovereign princes and free cities of Germany, formed for the exterior and interior safety of Germany, and the independence and inviolability of the confederated states. In their internal relations, the states are independent between themselves, and bound to each other by reciprocal rights and duties; and in respect to their external relations, they are a consolidated sovereign power, established on the principle of political union. The General Assembly has a great mass of sovereign powers confided to it, but its federal laws do not operate distinctly on the private individual subjects of the states of the union, but only through the agency of their separate governments. Though there are very great restraints upon the internal sovereignty of the states, yet the Germanic Confederacy is essentially an alliance between independent states, though, in many important particulars, they are subject to the confederate power. The sovereign powers are so intermixed and distributed among the members of the union, between the federal head and the separate state, as to render the system exceedingly complex, but it does not fall within the province of this work to enter into detail. A more general and precise sketch is given in Wheaton's Elements of International Law, 3d ed. 79-92.

eration, like the states general under the Dutch confed* 215 eracy,* were restricted from any constructive assumption of power, however essential it might have been deemed to the complete enjoyment and exercise of that which was given. No express grant conveyed any implied power; and it is easy to perceive, that a strict and rigorous adherence to the letter of the grant, without permission to give it a liberal and equitable interpretation, in furtherance of the beneficent ends of the government, must, in many cases, frustrate entirely the purposes of the power. A government too restricted for the due performance of its high trust, will either become insignificant, or be driven to usurpation. We have examples of this in the government of the United Netherlands, before it was swept away by the violence of the French revolution. While that government moved within its constitutional limits, it was more absolutely nerveless than any other government which ever existed. The states general could neither make war or peace, or contract alliances, or raise money, without the consent of every province; nor the provincial states conclude those points, without the consent of every city having a voice in their assemblies. The consequence was, that the federal head was frequently induced, by imperious necessity, to assume power unwarranted by the fundamental charter of the union, and to dispense with the requisite unanimity. This was done in the years 1648, 1657, and 1661, as well as in another strong instance in 1668, given by Sir William Temple, and of which he was the author. (a)

The former confederation of this country was defective in not giving complete authority to Congress to interfere in contests between the several states, and to protect each state from inter

(a) Temple's Works, i. 115, 128, 337. In 1781, a report was made by a committee of Congress, for submitting to the states an amendment to the 13th article of the confederation then recently subscribed by all the states, in which amendment it was to be provided, that in case of refusal or neglect of any one or more of the confederated states to abide by and obey the determinations of Congress, in respect to requisitions of men and money, agreeably to the apportioned quotas, Congress might employ the land and naval forces of the United States to compel compliance by the delinquent states, and to make distress of the property of such state and its citizens, and also prohibit and prevent their trade and commerce with other states and with foreign powers. Mr. Madison, and even General Washington, perceived the necessity of such a coercive federal power. The Madison Papers, i. 81, 86, 88. But the power was never formally proposed to the states, or granted; and if it had been, it never would or could have been executed, without leading to the destruction of the Union.