Note 71 — Chapter X

The secret journals of congress, published under the resolutions of March 27th, 1818, and April 21st, 1820, contain "A History of the Confederation." The course of public opinion on a most important point—the nature of the connexion which ought to be maintained between these United States—may be in some degree perceived in the progress of this instrument, and may not be entirely uninteresting to the American reader.

So early as July, 1775, Doctor Franklin submitted "Articles of Confederation and perpetual union" to the consideration of congress, which were to continue in force until a reconciliation with Great Britain should take place on the terms demanded by the colonies. Into this confederation, not only all the British colonies on the continent, but Ireland and the West India islands were to be admitted.

Congress was to consist of members chosen by each colony in proportion to its numbers, and was to sit in each successively. Its powers were to embrace the external relations of the country, the settling of all disputes between the colonies, the planting of new colonies; and were to extend to ordinances on such general subjects as, though necessary to the general welfare, particular assemblies can not be competent to, viz. "Those that may relate to our general commerce, or general currency; the establishment of ports; and the regulation of our common forces."

The executive was to consist of a council of twelve, selected by congress from its own body, one-third of whom were to be changed annually.

Amendments were to be proposed by congress; and, when approved by a majority of the colonial assemblies, were to become a part of the constitution.

In June, 1776, a committee was appointed to prepare and digest the form of a confederation to be entered into between the United Colonies, which brought in a draft (in the hand writing of Mr. John Dickinson) on the 12th of the succeeding month.

This report was under debate until the 14th of November, 1777, on which day congress agreed on the articles afterwards adopted by the states.

In the scheme supposed to be prepared by Mr. Dickinson, the confederation is considered as an alliance of sovereign states, who meet as equals by their deputies assembled to deliberate on their common concerns, each sovereign having a voice. This principle was retained; but several modifications in the language and principle of the original scheme were made, which indicate a watchful and growing jealousy of the powers of congress.

In each, an article is introduced reserving the rights of the states. That which is found in the report, "reserves to each state the sole and exclusive regulation and government of its internal police, in all matters that shall not interfere with the articles of this confederation."

This article was so modified as to declare that "each state retains its sovereignty," "and every power, jurisdiction and right, which is not by this confederation expressly delegated to the United States in congress assembled."

This denial of all incidental powers had vast influence on the affairs of the United States. It defeated, in many instances, the granted powers, by rendering their exercise impracticable.

The report permits the states to impose duties on imports and exports; provided they "do not interfere with any stipulations in treaties hereafter entered into by the United States."

The confederation confines this restriction on the power of the state to such duties as interfere with the stipulations in treaties entered into "in pursuance of any treaties already proposed by congress to the courts of France and Spain."

Each plan assigns to the state in which troops shall be raised for the common defence, the power of appointing the field and inferior officers. The confederation adds the power of filling up such vacancies as may occur.

The report inhibits a state from endeavouring by force to obtain compensation for advances made or injuries suffered during the war, which shall not be allowed by congress.

The confederation omits this inhibition.

The report gives to congress the power of making treaties.

The confederation adds a proviso, "that no treaty of commerce shall be made whereby the legislative power of the respective states shall be restrained from imposing such imports and duties on foreigners as their own people are subjected to, or from prohibiting the exportation or importation of any species of goods or commodities whatever."

The report authorizes congress to appoint "courts for the trial of all crimes, frauds, and piracies committed on the high seas, or on any navigable river not within a county or parish."

The confederation limits the jurisdiction to "piracies and felonies committed on the high seas."

Both empower congress to appoint courts for the trial of appeals in cases of capture; but the confederation provides that no member of congress shall be appointed a judge of any such court.

Both empower congress to settle differences between the states. The confederation prescribes minutely the manner in which this power shall be exercised.

Both empower congress "to regulate the trade and manage all affairs with the Indians." The confederation provides "that the legislative right of any state within its own limits be not infringed or violated."

The report gives the power of "establishing and regulating post offices throughout all the United Colonies (states) on the lines of communication from one colony (state) to another."

The confederation varies the phraseology and adds, "and exacting such postage on the papers passing through the same as may be requisite to defray the expenses of the said office."

The report places many important portions of the executive power in a council of state, to consist of one delegate from each state to be named annually by the delegates of that state.

The confederation empowers congress to appoint a committee to sit in the recess of congress, to be denominated "a committee of the states," and to consist of one delegate from each state, to exercise such powers as congress might from time to time vest them with.

A few of the states agreed to ratify the confederation unconditionally. By many, amendments were proposed which were steadily rejected by congress. It was obvious that the delays would be almost interminable should congress relax this determination, because every change would make it necessary again to submit the instrument as amended to the several states. It is remarkable that Jersey alone proposed an enlargement of the powers of congress. That state was desirous of investing the representatives of the state with the power of regulating commerce.

The states possessing no vacant lands, or an inconsiderable quantity within their chartered limits, pressed earnestly and perseveringly their claim to participate in the advantages of territory, which was, they said, acquired by the united arms of the whole; and Maryland refused, on this account, to accede to the confederation. At length, several of the states empowered their members in congress to ratify that instrument as forming a union between the twelve states who had assented to it. Maryland, alarmed at the prospect of being excluded from the union, gave her reluctant consent to the confederation, accompanied by a protest, in which she still asserted her claim to her interest in the vacant territory which should be acknowledged at the treaty of peace, to be within the United States.

It required the repeated lessons of a severe and instructive experience to persuade the American people that their greatness, their prosperity, their happiness, and even their safety, imperiously demanded the substitution of a government for their favourite league.