Economic order to base the quotas upon population which the States should contribute to the government rather than upon the value of the realty in each of the States; Second, a proposal to authorize the Congress to levy a duty of five per cent. ad valorem upon all goods, wares, and merchandise of foreign growth and manufacture imported into the United States after the 1st day of May, 1781, and to authorize the United States to levy a like duty of five per cent. on all prizes and prize goods condemned in the court of admiralty of any of the States, in order that the revenues arising there from should be used to discharge the principal and interest of the debts contracted or which should be contracted on the faith of the United States during the "present war"; Third, a proposal to invest the United States with the power to levy duties upon certain specified goods imported into the United States from any foreign port, island or plantation during a period of twenty-five years, to raise from the States for a period of twenty-five years a revenue of $1,500,000 annually to extinguish the debt contracted on the faith of the United States according to quotas specified in the resolution; Fourth, to amend the Articles of Confederation by investing the United States in Congress assembled, for a period of fifteen years, with the power to forbid the States to import or to export goods in vessels belonging to nations with which the United States did not have treaties of commerce, and to empower Congress, for a like period of fifteen years, to forbid the subjects of foreign States residing within the United States to export goods, wares or merchandise unless authorized so to do by treaty. Finance and commerce were the rocks upon which the little ship of state well nigh foundered, but the failure of the States to respond to the recommendations, indeed we might almost say the prayers, of the Congress led to private initiative, in the hope that it might succeed where public initiative had failed. The trouble, as we see today, was one that might be remedied without affecting the rights of the States, by investing the Congress, through its own agents, with the power of collecting revenue at the source, in accordance with the consent and the authorization of the States. In this way the general government would have been able to sue and to collect the revenue from the individual, whereas the government could not, under the law of nations, sue a sovereign, free and independent State to collect the quotas fixed by the Congress for the States in accordance with the Articles of Confederation; and the States were unwilling to invest the United States in Congress assembled with the right to sue the State, and to compel by force, if necessary, compliance with its obligations. The framers of the Confederation did not see, because they lacked experience, that a provision of this kind would not only provide the revenue needed by the general government, but would obviate quarrels and ill feeling between the States and their citizens, as the State would not need, for the purpose of the Union, to thrust its hand into the pockets of its citizens. This matter has never been put more clearly than by Alexander Hamilton in his speech in the New York Convention advocating the ratification of the Constitution. "It has been observed," he said, that "to coerce the states is one of the maddest projects that was ever devised." And he asked, “can we believe that one state will ever suffer itself to be used as an instrument of coercion?" In his opinion, and Hamilton was no advocate of state rights, it could not be done, and it should not be tried. "The thing is a dream," he said, "it is impossible." On the theory of government which had been tried and found wanting, he added, "Then we are brought to this dilemma - either a federal standing army is to enforce the requisitions or the federal treasury is left without supplies, and the government without support." What was to be done, or as he expressed it in the language of debate: "What, sir, is the cure for this great evil?" This question he answered, in such a way as to show not merely the nature of the solution but the solution itself: "Nothing, but to enable the national laws to operate on individuals, in the same manner as those of the states do. This is the true reasoning upon the subject, sir.” 1 But to return to the rôle of private initiative in the creation of the more perfect Union. The situation of the States in matters of commerce was that which would arise between sovereign, free and independent States in which there was not a customs union, such as the German States were wise enough to conclude in the middle of the 19th Century. As stated by a keeneyed observer of the period: "The states," Mr. Madison said, "having no convenient ports for foreign commerce, were subject to be taxed by their neighbors, thro' whose ports, their commerce was carried on. New Jersey, placed between Phila & N. York, was likened to a cask tapped at both ends; and N. Carolina, between Virga & S. Carolina to a patient bleeding at both Arms." 2 The Congress foresaw the consequences of such a condition, and had already laid it before the States, but without avail, in the following impressive language: The situation of commerce at this time claims the attention of the several states, and few objects of greater importance can present themselves to their notice. The fortune of every citizen is interested in the success thereof; for it is the constant source of wealth and incentive to industry; and the value of our produce and our land must ever rise or fall in proportion to the prosperous or adverse state of trade.3 Coercion of States Initiative Private initiative supplied the remedy. Maryland and Virginia were in- Private terested in the navigation of Chesapeake Bay and its tributaries and they had come to a satisfactory working agreement in the matter. But Pennsylvania 1 Elliot, Debates, Vol. ii, pp. 232, 233. 2 Writings of Madison, Hunt ed., Vol. ii, p. 395. 3 Elliot, Debates, Vol. i, p. 107. Convention at Annapolis Another Convention Proposed and Delaware were likewise interested parties, either as bordering on the Bay and its tributaries or as affected by their regulation. In a less degree all the States were interested in as far as they were affected, whereas the adjoining States were primarily concerned. Hence, it occurred to Mr. Madison to have Virginia propose a meeting of delegates of the States, in order to see what could be done or what could be proposed to better conditions in that matter of trade and commerce. Therefore, on January 21, 1786, the Virginia legislature appointed certain persons, among whom may be mentioned Edmund Randolph, James Madison and George Mason, as commissioners to “meet such commissioners as may be appointed by the other states in the Union, at a time and place to be agreed on, to take into consideration the trade of the United States; to examine the relative situation and trade of the said States; to consider how far a uniform system in their commercial regulations may be necessary to their common interest and their permanent harmony; and to report to the several states such an act relative to this great object as, when unanimously ratified by them, will enable the United States in Congress assembled effectually to provide for the same; that the said commissioners shall immediately transmit to the several states copies of the preceding resolution, with a circular letter requesting their concurrence therein, and proposing a time and place for the meeting aforesaid.” 1 In response to this invitation for which there was no authority in the Articles of Confederation, and indeed there had been no authorization for the action of Maryland and Virginia in regulating their interests in the Chesapeake and its tributaries — issued by the State of Virginia, nine States appointed delegates to meet at Annapolis on the first Monday in September, 1786. When the day came delegates had arrived only from the five States of New York, New Jersey, Pennsylvania, Delaware and Virginia; but among these delegates were well known names - Alexander Hamilton and Egbert Benson of New York, William Patterson of New Jersey, John Dickinson of Delaware, Edmund Randolph and James Madison of Virginia. The distinguished veteran and colonial statesman, John Dickinson, was elected chairman of the Convention, which met on September 11, 1786, but in the absence of the other States the members present wisely limited themselves to a recommendation drafted by Hamilton, stating it to be "their unanimous conviction, that it may essentially tend to advance the interests of the Union, if the states, by whom they have been respectively delegated, would themselves concur, and use their endeavors to procure the concurrence of the other states, in the appointment of commissioners, to meet at Philadelphia on the second Monday in May next [1787], to take into consideration the situation of the United States, to devise such further provisions as shall appear to them necessary to render 1 Elliot, Debates, Vol. i, pp. 115-6. the Constitution of the Federal government adequate to the exigencies of the Union, and to report such an act for that purpose to the United States in Congress assembled, as, when agreed to by them, and afterwards confirmed by the legislatures of every State, will effectually provide for the same." 1 The Convention was somewhat embarrassed in the matter of Congress, as the meeting at Annapolis was without its consent and therefore unconstitutional. As, however, Congress would have to act if the Articles of Confederation were to be amended " in order to render the Constitution of the Federal government adequate to the exigencies of the Union," it would be necessary not only to inform the Congress but to have it take appropriate action, in accordance with the thirteenth of the Articles of Confederation which provided that no "alteration at any time hereafter be made in any of them; unless such alteration be agreed to in the Congress of the United States and be afterward confirmed by the legislatures of every state." The commissioners prepared a report to their respective governments, and dealt with the delicate congressional situation in the following concluding paragraph: Though your commissioners could not with propriety address these observations and sentiments to any but the states they have the honor to represent, they have nevertheless concluded, from motives of respect, to transmit copies of this report to the United States in Congress assembled, and to the executive of the other states.2 Approval Virginia at once took action, agreeing to the convention to be held at Congressional Philadelphia for the purposes specified in the report, and appointed commissioners or delegates to meet with the delegates of the other States to consider the revision of the Articles of Confederation. New Jersey, Pennsylvania, North Carolina, Delaware, and Georgia did likewise; whereupon the Congress, seeing that the Convention was to take place, and not unwilling to make a recommendation which was likely to be followed, as well as to aid in securing for the general government powers which it had repeatedly but vainly urged, gave its approval for the call of the convention in the following resolution, adopted February 21, 1787: Whereas there is provision, in the Articles of Confederation and Perpetual Union, for making alterations therein, by the assent of a Congress of the United States, and of the legislatures of the several states; and whereas experience hath evinced that there are defects in the present Confederation; as a mean to remedy which, several of the states, and particularly the state of New York, by express instructions to their delegates in Congress, have suggested a convention for the purposes expressed in the following resolution; and such convention appearing to be the most probable mean of establishing in these states a firm national government,— Resolved, That, in the opinion of Congress, it is expedient that, on the second Monday in May next, a convention of delegates, who shall have been ap1 Ibid., p. 118. 2 Ibid. Union of pointed by the several states, be held at Philadelphia, for the sole and express purpose of revising the Articles of Confederation, and reporting to Congress and the several legislatures such alterations and provisions therein as shall, when agreed to in Congress, and confirmed by the states, render the federal Constitution adequate to the exigencies of government and the preservation of the Union." 1 Authorized by the Congress, there was no reason why the States should hesitate, and with the exception of Rhode Island all of the thirteen States then composing the Union appointed delegates. They did not reach Philadelphia on "the second Monday in May next." It was not until the 25th that the delegates of seven States arrived. New Hampshire did not appoint its delegates until the 27th of June because of a lack of funds necessary to their maintenance, and the delegates appointed and accepting the appointment made their appearance only late in July, when the work of the Convention was well along, but fortunately in time to share in some of its most important proceedings. It may be disputed whether a union of the States existed in law, although it may have existed in fact, before the 1st day of March, 1781, when the Articles of Confederation creating a perpetual Union were ratified by the last of the thirteen States upon the signature of the Articles by the delegates of Maryland, authorized and directed so to do by that State. There can be no doubt, however, that, after that date the thirteen American States formed a Confederation and remained confederated until the dissolution of the Confederation by the adoption of the Constitution and the organization of the government of the more perfect Union thereunder in 1789. The question of the relation of the States to one another and to the Confederation established by the Articles has been the subject of no little debate. Yet there seems to be no reasonable doubt on this head, if the language of the Articles means what it says and if the decisions of the Supreme Court of the United States are entitled to respect. No doubt the States could have merged their personality in the Union of their creation, but there is no doubt that they did not do so; for, after stating in the first article that "the stile of this Confederacy shall be the United States of America,'" the very next article, and the first in which the relation of the States is considered, provides that "each State retains its sovereignty, freedom, and independence, and every power, jurisdiction and right which is not by this Confederation expressly delegated to the United States in Congress assembled." As in the case of Respublica v. Sweers (1 Dallas, 41), decided in 1779, the Supreme Court of Pennsylvania considered the States to form a body corporate from the moment of their association, so in Nathan v. Commonwealth of Virginia (1 Dallas, 77, note), decided in the September term of 1781, 1 Elliot, Debates, Vol. i, p. 120. |