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piece of political machinery had been created, which, under the best management, could turn out only quite useless work, and finally could not have been kept in order at all, if a number of distinguished men, with extraordinary patriotic abandonment and unselfishness, had not constantly put their shoulders to the wheel, and, by their great example, drawn the rest of the people so far after them that the worst was always happily avoided, until, with the help of France, the recognition of independence had been won. The question early pressed itself upon the most far-sighted patriots where the fault lay. Experience made them more and more of the opinion that the fault was one of principle, based not only upon the selfish wish of the states to remain just as far as possible the sole masters of their own fates, but partly also upon the fact that during the colonial period no experience had been gained as to the nature and proper conditions of existence of a great and entirely independent political commonwealth. The provisions which gave all the states the same legal weight, although their actual importance was so very different — for the weightiest decisions the approval of at least nine states was necessary, were responsible for much, but the real evil evidently lay deeper. Matters were not in a bad shape because congress failed in passing the necessary resolutions and laws, but because its resolutions and laws had no result. The articles of confederation failed to recognize not only the fact that a free commonwealth may be no less endangered by a government too weak than by one too strong, but also that a grant of rights in itself confers no power. Right first becomes might when means are given it to make itself so, and these means had been denied to congress completely and on principle. It could resolve on everything necessary, but it could not
do the most necessary thing. The execution of its resolutions depended wholly upon the thirteen state governments, to whose short-sightedness, laxity, distrust and separatism it could oppose only arguments and an appeal to patriotism, which, in the nature of things, under the most favorable circumstances, could have only a partial result. Congress wished to be a government, and yet could only give advice, because it had a legal will, not in reference to individuals, but only as regards the states. This was no omission in the articles of confederation, but a logical consequence of their fundamental principle. They left no room for organs of government. The United States were a confederation with a federal authority, but without a federal government; and they had a federal law, but needed no federal courts, because the states were almost exclusively the subjects of federal law; and behind the federal courts no federal power was created to give effect to their judgments.
1 Article IX. gives congress the power to establish prize courts and “courts for the trial of piracy and felonies committed on the high seas.” Moreover, “all controversies concerning the private right of soil claimed under different grants of two or more states,” and “ all disputes and differences now subsisting, or that hereafter may arise between two or more states, concerning boundary, jurisdiction, or any other cause whatever,” were to be decided by federal courts, in case one of the parties applied to congress. But these courts were not permanent. They were created by congress ad hoc, and that in a highly complicated and cumbrous way. The view expressed in the text finds its direct proof in the provision that, “if any of the parties shall refuse to submit to the authority of such court, or to appear or defend the claim or cause, the court shall nevertheless proceed to pronounce sentence or judgment, which shall in like manner be final and decisive.” But nothing was said as to what should happen in case of a stubborn refusal to obey the judgment. Reporting the decision to congress is the only “ security” given the parties. See T. Sergeant: On the National Judiciary Powers Prior to the Adoption of the Constitution, appendix to P. S. Duponceau: Jurisdiction of United States Courts, Phila., 1824.
§ 3. EFFORTS For REFORM. During the war, and even before the articles of confederation had received the formal sanction of the last state, the knowledge of the fact that the Union could not endure under its then organization had so far progressed that complaints and sorrows bad given way to earnest attempts at reform. In November, 1780, delegates of the four New England states and of New York met at Hartford. Their immediate object was to place the finances of the Union upon a firmer basis, and especially to ensure the payment of interest on the federal debt through federal taxes or customs, but they were entirely conscious that this alone would be of no use. “All government supposes the power of coercion,” they said in their address to the states. Of course, this had no immediate result. One could scarcely have been expected. It gave, however, a strong push in the right direction, and the work of moulding public opinion never ceased thereafter until the goal had been reached. A growing necessity forced men to lay their hands to the work again and again. The uselessness of all half-way measures showed more clearly, day by day, the only road to safety. Destruction often seemed unavoidable, unless, at least, the worst evils could be removed. The failure of the attempts to accomplish even this constantly drove home the conviction that the evil must be grappled with at the roots. The necessity of obtaining the approval of nine states for the more weighty decisions of congress, and of getting the consent of all of the legislatures for any constitutional change, made the application of palliatives impossible. Since this was impossible, a radical cure had to be found. But the struggle of many years over the palliatives did this further great good, that, day by day, it became more clear upon what points attention was to be concentrated, if the people were to be made ripe by necessity for the adoption of a reorganization of the Union upon the basis. of another principle. Later, it was recognized as a piece: of good fortune that the revolutionary war had been fought out under the articles of confederation, and the reorganization of the Union first undertaken after inde. pendence had been won. Under the pressure of the needs of war single improvements might have been moreeasily carried through, but the deeper and the more important these partial improvements were, so much the more difficult would have become a reorganization of the Union, complete and based upon principle. This could not possibly have been sought with success during war, at least during one which was, to a certain extent, a civil war. Peace alone could fully show where and how far the articles of confederation failed to ensure a permanent Union. Such a government must be equal, not only to the exceptional circumstances of a war, but, before everything else, to the accomplishment of the aims of the Union in the normal condition of peace. If the demands. which congress had to meet in time of war were not only different from, but also many times greater than, those of peace, yet upon the other side patriotism and the overwhelming necessity of the attainment of the immediate end of the Revolution insured more willing and careful attention to the needs of the commonwealth than when, in the sober selfishness of times of peace, the necessity for this attention no longer forced itself, day by day, upon even the smallest understanding. As the pressure of war grew weaker, the evils of an unworkable government first fully developed. The prophetic phrase of the Hartford convention of November, 1780, that, after the acquisition of independence, peace and freedom could be won only by the legal consolidation of the Union, now
found its fulfillment in a fashion which opened a darker outlook into the future than in the blackest days of the war. Now the most far-sighted felt their courage sink, while the short-sighted were blind, and the self-seekers and ignorant recklessly sought to use for their own advantage the evils which preyed on the life-blood of the Union. The political thought, feeling and will of the people in regard to the Union threatened to fall into a process of dry rot. The best men, who had done the best in time of war, therefore drew very close together in the knowledge that danger lay in delay and that they must not relax their efforts until they had wrung from selfishness, from doctrinaire confusion, and from the narrow pride and patriotism of the separate states, the salvation of the commonwealth which had been called into life at such a terrible cost. · $ 4. HISTORY OF THE DEVELOPMENT OF THE CONSTITUTION. In January, 1786, the legislature of Virginia invited the other states to send delegates to a convention at Annapolis, in order to consider how far a uniform system was necessary for the regulation of commerce, and to make proposals on this point. At the convention, which met in September, only five states were represented. Partly on account of this scanty representation, and partly because they saw nothing to be gained from the consideration of only one of so many weighty questions, the delegates resolved to leave their task undone and to call, instead, a general convention “ to take into consideration the situation of the United States,” and to ascertain what must be done “ to render the constitution of the federal government adequate to the exigencies of the Union.” The legislature of New York adopted this proposal as its own. On the motion of its delegates, congress voted in February, 1787, to call a convention at Philadelphia, “ for the pur