Congress vested the committee of the States, or any nine of them, with power to execute during the recesses of Congress such powers as the Congress might delegate to the committee, or any nine of them, but withheld from them any power which the Congress itself could exercise only with the consent of nine States, all of which were specified and enumerated in the following paragraph of the ninth article, which also stated specifically the requirement of a majority in all other matters: The United States, in Congress assembled, shall never engage in a war, nor grant letters of marque and reprisal in time of peace, nor enter into any treaties or alliances, nor coin money, nor regulate the value thereof, nor ascertain the sums and expenses necessary for the defence and welfare of the United States, or any of them: nor emit bills, nor borrow money on the credit of the United States, nor appropriate money, nor agree upon the number of vessels of war to be built or purchased, or the number of land or sea forces to be raised, nor appoint a commander in chief of the army or navy, unless nine states assent to the same; nor shall a question on any other point, except for adjourning from day to day, be determined, unless by the votes of a majority of the United States, in Congress assembled. The renunciation of the right which sovereign States possess, and unfortunately exercise, of engaging in war among themselves, and also the renunciation of the right to enter into treaties and agreements with themselves without the consent of the Congress, made it necessary to provide some method of settling disputes which might arise between the States, and which otherwise would remain unsettled because of the renunciation of war and of diplomatic negotiation. In certain cases of an international character, which might, in addition, give rise to disputes among the States, the Congress was authorized to establish "rules for deciding, in all cases, what captures on land or water shall be legal, and in what manner prizes, taken by land or naval forces in the service of the United States, shall be divided or appropriated;" to appoint "courts for the trial of piracies and felonies committed on the high seas;" and to establish "courts for receiving and determining, finally, appeals in all cases of captures; provided, that no member of Congress shall be appointed a judge of any of the said courts." For disputes that might arise between themselves, for which no tribunal existed, it was provided in the ninth article "that the United States, in Congress assembled, shall also be the last resort on appeal in all disputes and differences now subsisting, or that hereafter may arise between two or more states concerning boundary, jurisdiction or any other cause whatever," and specifically mentioning "all controversies concerning private right of soil, claimed under different grants of two or more states." The article likewise provided the method of settlement, which was, briefly: The agents of the States in controversy appeared before the Congress, stating their controversy and asking for the appointment of commissioners to form a temporary court or tribunal. If the agents agreed upon the members of the court it was organized and the case referred to it. If, however, the agents did not agree upon the members of the court, the Congress selected three persons from each of the thirteen States, and from the thirty-nine thus chosen the names were to be struck, beginning with the defendant, until thirteen names were left. From this list of thirteen not less than seven nor more than nine were to be drawn by lot, and of this number any five could form the court. In the absence of the agent of any one of the litigating States, or upon his refusal to strike as provided by the article, the Secretary of the Congress was to act in his stead. It was foreseen that changes in the Articles of Confederation might be necessary, but as the instrument was a diplomatic agreement no alteration was to be made unless agreed to in the Congress and "afterwards confirmed by the legislatures of every State." From this brief summary it will be observed that the Articles of Confederation provide a government, with limited and specifically enumerated powers, which were only to be exercised with the consent of nine or of a majority of the sovereign, free and independent States of which the Confederation was composed. It will be further observed that the legislative was likewise the executive branch of the government, in so far as either existed, because the President of the Congress was the presiding officer but possessed of no independent powers, and the committee of the States was appointed by the Congress for the exercise of certain, but not all, of the powers of the Congress of a during its recess. There is no doubt a suggestion of a judiciary, but the judiciary, such as it was, was only constituted in the case of the court of appeals for prize cases, and from time to time temporary tribunals were to be chosen by the Congress for the trial of controversies between the States; cases involving piracies and felonies were to be tried by the private courts of the States. There is here no clear and conscious recognition of the threefold division of government so conspicuous in the Constitutions of each of the thirteen States composing the Confederation and a fundamental though unexpressed principle of the Constitution which succeeded the Articles of Confederation, a conception which was reenforced from French sources, due to the alliance of France which so powerfully contributed to making the Declaration of Independence a reality. Suggestion Judiciary The defects of the Articles of Confederation have been pointed out by Defects every historian of the United States who has had occasion to deal with this period of our history. The Articles were indeed defective. They were not however so defective as the critics would have us believe, and even if they were it would seem to be wiser to consider the difficulties of the situation and to Excellences regard the Articles of Confederation as a step to a more perfect Union, and a very important one, than to deny them any claim upon our consideration. The Articles were not to blame if faulty; it was the defective vision of the statesmen who drafted them and of the States which were unwilling to grant a general government more extensive powers. It is easy for us to see the advantages of a closer union, because we have benefited by its blessings, but a union of the kind of the Constitution was hitherto unknown in the history of nations, and the necessity of a broader and more powerful general government, acting directly upon the States and not through the States, was not likely to be granted by colonies which had revolted because of the attempt of the mother country to impose its authority from above, and to impose the acts of a supreme legislature upon the colonies, overriding the local legislatures, in order to make the acts of Parliament apply to the individual without consideration of the colonies as such. ment. The purpose of the Revolutionary statesmen was to overthrow what they considered the tyranny of the mother country, claiming supremacy in all matters; it was not to create a domestic tyrant in the place of the imperial ParliaWithout compromise and concession and the safeguarding of the States and their peoples against the aggression of the general government, American statesmen would not have agreed to the provisions of the Constitution of the United States; and the different States, in agreeing to it, insisted upon certain amendments, which were proposed by the first Congress under the Constitution in 1789 and added to that instrument two years later. And even then two States, North Carolina and Rhode Island, refused to ratify the Constitution and did so only after it had gone into effect and the ten amendments to it had been proposed and, in the case of Rhode Island, ratified. While recognizing the defects of the Confederation, which were indeed obvious to those who wished union under a constitution rather than a diplomatic union, competent judges nevertheless recognized its excellences. It is noteworthy that George Washington, who had suffered from the defects of the Confederation more than any man living, nevertheless had a good word to say for the union.1 John Jay was also qualified to speak, as he had been President of the Congress and as Secretary of Foreign Affairs he felt the imperfections of the system, especially in so far as foreign relations were concerned. Yet he was not pessimistic, saying of it: "Our federal govern 1 In a letter to Benjamin Harrison dated January 18, 1784, General Washington said: "That the prospect before us is fair. none can deny; . . . I believe all things will come right at last, . The disinclination of the individual States to yield competent powers to Congress for the federal government, . . . will, if there is not a change in the system, be our downfall as a nation." An extension of federal powers, he believed, would make us one of the most wealthy, happy, respectable and powerful nations that ever inhabited the terrestrial globe." W. C. Ford, The Writings of George Washington, Vol. x, pp. 344-6. See also Sparks, Writings of George Washington, Vol. ix, p. 11. ment has imperfections, which time and more experience will, I hope, effectually remedy.' Thomas Jefferson, it will be admitted, was also qualified to speak, and he probably expressed the view of most men of his day when he said that "with all the imperfections of our present government it is without comparison the best existing, or that ever did exist." 2 John Marshall, whom many regard as the creator of our union through his opinions as Chief Justice of the Supreme Court, felt that if the Articles of Confederation preserved the idea of union until a more efficient system was adopted, which they certainly did and more, that then "this alone is certainly sufficient to entitle that instrument to the respectful recollection of the American people and its framers to their gratitude." 3 Significance James Madison's Summary From a national point of view the Articles were defective; from an inter- International national point of view they offered an example of a union of sovereign, free and independent States much closer than that of the society of nations, and, in spite of their imperfections, indeed because of their imperfections, they show, it is believed, how the society of nations can be organized as a Confederation without involving the sacrifice of sovereignty, should the members of that society be inclined to consider a conscious and closer union than exists today. While the defects of the Confederation were the subject of debate in the Congress, of discussion in the press, the talk alike of men of affairs and of private citizens, and the topic of correspondence if not its cause, among leaders of thought of the period, James Madison, to whose untiring efforts the world is principally indebted for the American Constitution, has, as was to be expected, stated more elaborately than any one of his contemporaries the weakness and the inadequacy of the Articles of Confederation in a memorandum prepared on the eve of the Convention, called for the sole and express purpose of recommending "a Federal constitution adequate to the exigencies of government and the preservation of the Union." In a paper written well nigh fifty years after the event, intended, apparently, as a preface to the Debates of the Convention, which he himself attended and reported with his own hand, he gives in the following passage the reasons why his testimony on this point should be accepted. Having served as a member of Cong. through the period between Mar. 1780 & the arrival of peace in 1783, I had become intimately acquainted with the public distresses and the causes of them. I had observed the successful opposition to every attempt to procure a remedy by new grants of power to 1 Letter to Lord Lansdown, April 16, 1786. William Jay, The Life of John Jay, 1833, Vol. ii, p. 183. 2 Letter to E. Carrington, Paris, August 4, 1787. Writings of Thomas Jefferson, Ford ed., Vol iv, p. 424. In a letter to M. de Meusnier, Jan. 24, 1786, Mr. Jefferson said: "The Confederation is a wonderfully perfect instrument considering the circumstances under which it was formed." (Ford ed., iv, 141.) The Life of George Washington, by John Marshall, Philadelphia, 1805, v. 4, p. 416. of the Weakness Congs. I had found moreover that despair of success hung over the compromising provision of April 1783, for the Public necessities, which had been so elaborately planned and so impressively recommended to the States. Sympathizing, under this aspect of affairs, in the alarm of the friends of free Govt. at the threatened danger of an abortive result to the great & perhaps last experiment in its favour, I could not be insensible to the obligation to co-operate as far as I could in averting the calamity. With this view I acceded to the desire of my fellow Citizens of the County that I should be one of its representatives in the Legislature, hoping that I might there best contribute to inculcate the critical posture to which the Revolutionary cause was reduced, and the merit of a leading agency of the State in bringing about a rescue of the Union, and the blessings of liberty staked on it, from an impending catastrophe. It required but little time after taking my seat in the House of Delegates in May 1784, to discover that however favorable the general disposition of the State might be towards the Confederacy the Legislature retained the aversion of its predecessors to transfers of power from the State to the Govt. of the Union; notwithstanding the urgent demands of the Federal Treasury; the glaring inadequacy of the authorized mode of supplying it, the rapid growth of anarchy in the Fed'. System, and the animosity kindled among the States by their conflicting regulations.1 It is evident to us of the present day, from an inspection of his writings and from his leadership in the Constitutional Convention, that James Madison was the fittest by study and experience to propose the basis of a Constitution for the more perfect union, and his contemporaries, without the means of knowledge at our disposal, so considered him. One of his colleagues in the Federal Convention, writing of him, says: Mr. Maddison is a character who has long been in public life; and what is very remarkable every Person seems to acknowledge his greatness. He blends together the profound politician, with the Scholar. In the management of every great question he evidently took the lead in the Convention, and tho' he cannot be called an Orator, he is a most agreeable, eloquent, and convincing Speaker. From a spirit of industry and application which he possesses in a most eminent degree, he always comes forward the best informed Man of any point in debate. The affairs of the United States, he perhaps, has the most correct knowledge of, of any Man in the Union. He has been twice a Member of Congress, and was always thought one of the ablest Members that ever sat in that Council.2 It was not by chance that Mr. Madison made this impression upon his fellow delegate, who in this matter spoke for his contemporaries. He had represented his State in the Continental Congress and was aware of the defects of the Confederation from actual experience in that body. He was familiar with every detail of the Articles of Confederation, and as a preparation for his work in the Convention he had set forth in connected form the defects of the Confederation in a memorandum, and he had likewise 1 The Writings of James Madison, Gaillard Hunt ed., Vol. ii, pp. 396–7. 2 Notes of Major William Pierce on the Federal Convention of 1787, American Historical Review, Vol. iii, p. 331. |