alloy of coin, whether struck by the United States
or the states; of fixing the standard of weights and
measures; regulating the trade and managing all af
fairs with the Indians, "not members of any of the
states, provided that the legislative right of any state
within its own limits be not infringed or violated;"
of establishing and regulating postofHces and post
routes; of appointing all officers of the land forces,
except regimental officers, all officers of the naval
forces, and of making regulations for the army
and navy; to appoint a committee to sit in the recess
of congress, and such civil officers as might be neces
sary; to ascertain and apportion the moneys needed,



THE CONFEDERATION 139

and to appropriate the same; to borrow money or
emit bills on the credit of the United States; to
build a navy; to fix the land forces and make requisi
tion for state quotas.

There were some important express limitations,
however, placed upon these general powers. The
power to negotiate commercial treaties was so
limited that except as to "treaties already pro
posed by congress, to the courts of France and
Spain," the power of each state to levy im
posts and duties upon foreign merchandise or to
prohibit the importation or exportation of any
merchandise at its pleasure was not restrained,
save by the provision that these duties should be
equal as between foreigners and its own citizens.
Nearly all of the important powers given were fur
ther limited to be exercised only by vote of nine
states; and over all was the practical and destruc
tive, though unexpressed limitation, that no act of
congress, even within the powers most clearly con
ferred could be executed in any state until the state
legislature had added its sanction. There can be
no government in any just sense without a body of
citizens upon which it can directly act citizens who
owe to it a primary allegiance and upon whose per
sons and. estates it may lay its restraints and its exac
tions. Under the confederation congress had no
power to draft a single man for military service, nor
to lay and collect a single dollar of taxes, direct or



I4O VIEWS OF AN EX-PRESIDENT

indirect. It is true that the congressional resolves
might have been mandatory in their form; "re
quired" might have been substituted for "request
ed;" for the articles bound the states to furnish
quotas of men, and allotments of money as appor
tioned by congress. Article XIII was as follows:
"Every state shall abide by the determinations of
the United States in congress assembled, on all
questions which by this confederation are submitted
to them. And the articles of this confederation
shall be inviolably observed by every state, and
the union shall be perpetual; nor shall any alter
ation at any time hereafter be made in any of them;
unless such alteration be agreed to in a congress of
the United States, and be afterward confirmed by
the legislature of every state."

But, as the use of an armed force against a de
linquent state was the only method of enforcing a
requisition, congress wisely used the politer term
"request." Notwithstanding this clear provision in
the articles,, binding the states to comply with the
resolves of congress, instances were not infrequent
where a state, not by inaction only, but by affirma
tive action and explicit declaration, refused to abide
by the determination of congress, on questions clear
ly by the articles submitted to it.

In December, 1779, the legislature of Virginia
passed a resolution declaring "that the legislature
of this commonwealth are greatly alarmed at the



THE CONFEDERATION

assumption of power lately exercised by congress.
While the right of recommending measures to each
state by congress is admitted, we contend for that of
judging of their utility and expediency, and, of
course, either to approve or reject. Making any
state answerable for not agreeing to any of its
recommendations would establish a dangerous pre
cedent against the authority of the legislature and
the sovereignty of the separate states."

And in the matter of appeals in prize cases New
Hampshire attempted by law to cut off the appeal
expressly provided for in the articles of confedera
tion.

We have had a good deal of modern talk about
the power of the nation to "coerce a state;" but the
thought is not only inaccurate but obsolete. Under
the confederation such a question might indeed,
did arise ; but *under the national constitution we lay
exactions and visit penalties upon citizens of the
United States. No commission under a state seal;
no resolve of a state legislature, can stand between
the national authority and the citizen who resists
it. No power was given to congress by the articles
of confederation to regulate commerce. Each state
made its own tariff and took the receipts from cus
toms into its own treasury. As a source of revenue
this power was essential to the union; but it was
much more than a revenue question. It was the
sine qua non of an enduring 'union. We who have so



142 VIEWS OF AN EX-PRESIDENT

much division over one tariff can appreciate the in
describable confusion and disaster resulting from
thirteen customs schedules. Until there was unity
here there could be none elsewhere. The competi
tions between the ports of different states begat new
and revived old jealousies and animosities, and con
fused traders by their intricacies and frequent
changes. We could have no standing among com
mercial nations until the power to regulate com
merce, by granting favors or imposing exactions,
and instituting a uniform schedule of duties was
conferred. Our commerce was destroyed during
the revolutionary war; and yet the absence of
power in congress to regulate this subject left the
enemy that had wrought its destruction at liberty
to shut out our ships from the trade of the West
India colonies, without fear of the retaliatory re
strictions which her conduct suggested and de
manded.

Story says: "While, for instance, British ships
with their commodities had every admission into
our ports, American ships and exports were loaded
with heavy exactions or prohibited from entry into
British ports: We were, therefore, the victims of our
own imbecility, and reduced to a complete subjec
tion to the commercial regulations of other coun
tries, notwithstanding our boasts of freedom and
independence."

John Adams, writing from France in May, 1785,



THE CONFEDERATION 143

to Secretary Jay, gives a graphic description of the
embarrassments and humiliation which our foreign
representatives suffered. He says:

"But you will see, by a letter from the Duke of
Dorset, which your ministers here some time since
transmitted, that the British cabinet have conceived
doubts, whether congress have power to treat of
commercial matters, and whether our states should
not separately grant their full powers to a minister.
I think it may be taken for granted, that the states
will never think of sending separate ambassadors,
or of authorizing directly those appointed by con
gress. The idea of thirteen plenipotentiaries meet
ing together in a congress at every court in Europe,
each with a full power and distinct instructions from
his state, presents to view such a picture of con
fusion, altercation, expense, and endless delay, as
must convince every man of its impracticability.
Neither is there less absurdity in supposing that all
the states should unite in the separate election of
the same man, since there is not, never was and
never will be a citizen whom each state would sepa
rately prefer for conducting the negotiation. It is
equally inconceivable that each state should sepa
rately send a full power and separate instructions
to the ministers appointed by congress. What a
heterogeneous mass of papers, full of different ob
jects, various views, and inconsistent and contra
dictory orders, must such a man pull out of his



144 VIEWS OF AN EX-PRESIDENT

portfolio, from time to time, to regulate his judg
ment and his conduct! He must be accountable, too,
to thirteen different tribunals for his conduct; a
situation in which no man would ever consent to
stand, if it is possible, which I do not believe, that
any state should ever wish for such a system. I
suppose too that the confederation has already set
tled all these points, and that congress alone have
authority to treat with foreign powers, and to ap
point ambassadors and foreign ministers, and that
the states have separately no power to do either.
Yet it is plain from the Duke of Dorset's letter, that
the British cabinet have conceived a different opin
ion. This is to be accounted for, only by conjectur
ing that they have put an erroneous construction on
the limitation, restriction, or exception in the arti
cle of our confederation, which gives to congress
the power of appointing ambassadors and making
treaties. This limitation is confined to treaties of
commerce; all others congress have full power to
make. From this limitation, however, will proba
bly arise a great deal of difficulty and delay to me.
If the British ministry wish and seek for delays this
will be their pretext. But, even if they should wish
for despatch, which is not likely, they may have
propositions to make which will fall within the lim
itation; and, in such cases, it will not be in my pow
er to agree with them. I can only transmit the
propositions to congress, who will perhaps trans-



THE CONFEDERATION 145

mit them to the states; and no man can foresee when
the answers will be received so that the business
can be brought to a conclusion.

"It is very possible that the cabinet of St. James
may decline even entering into any conference at
all upon the subject of a treaty of commerce, until
the powers of congress are enlarged.'*

And Washington wrote of this matter as follows:
"America -must appear in a very contemptible point
of view to those with whom she was endeavoring to
form commercial treaties without possessing the
means of carrying them into effect. They must see
and feel that the union, or the states individu
ally, are sovereign as best suits their purposes.
In a word, that we are a nation to-day and
thirteen to-morrow. Who will treat with us on
such terms ?"

The English statesmen saw our fatal inability.
Lord Sheffield said: "There should be no treaty
with the American states because they will not place
England on a better footing than France and Hol
land, and equal rights will be enjoyed, of course,
without a treaty. * * * It will not be an easy
matter to bring the American states to act as a na
tion ; they are not. to be feared as such by us. The
confederation does not enable congress to form more
than general treaties; when treaties become neces
sary, they must be made with the states separately.
Each state has reserved every power relative to im-



146 VIEWS OF AN EX-PRESIDENT

posts, prohibitions, duties, etc., to itself. If the
American states choose to send consuls, receive them
and send a consul to each state. Each state will soon
enter into all necessary regulations with the consul,
and this is the whole that is necessary."

So apparent was the necessity of a single control
of these matters that the congress had, as we have
seen in the resolves of 1774, declared that "from the
necessity of the case" they cheerfully consented to
the regulation by parliament of their "external com
merce." But when the confederacy was formed this
necessary power was withheld from a congress com
posed of delegates from each state and in which each
state had an equal voice. The representation of
New Jersey to the congress, in June, 1777, of the
objections of that colony to the articles of confed
eration, contained this paragraph, which is an early
and forcible presentation of this matter: "By the
sixth and ninth articles, the regulation of trade
seems to be committed to the several states within
their separate jurisdiction, in such a degree as may
involve many difficulties and embarrassments, and
be attended with injustice to some states in the union.
We are of opinion that the sole and exclusive pow
er of regulating the trade of the United States with
foreign nations ought to be clearly vested in the con
gress, and that the revenue arising from all duties
and customs imposed thereon ought to be ap
propriated to the building, equipping and manning



THE CONFEDERATION 147

a navy, for the protection of the trade and defense
of the coasts, and to such other public and general
purposes as to the congress shall seem proper, and
for the common benefit of the states."

This suggestion was rejected, but the "necessity
of the case" remained, and its voice became more
imperious as the years went on, until it was recog
nized and fully provided for in Article I, section 8,
of the constitution. The obstinacy with which some
of the states held on to the power over commerce, of
which they could make no really beneficial use, even
in the most selfish sense, is inexplicable to us who
have seen the happy influence of a national use of
that power. Strenuous efforts were made, before
and after the adoption of the articles of confedera
tion, to get the consent of the states to the levying
of an impost duty by congress. In February, 1781,
congress asked the states for power to lay a duty
upon imposts to pay the public debt and to continue
only until it should be paid. Rhode Island selfishly
blocked the way, though the cause of independence
was in extremis from a lack of revenue. The rea
sons given were that the impost would bear unduly
upon the commercial states; that officers unknown
to the constitution would be introduced; and that a
revenue not directly derived from a grant of the
states would render congress independent and be
dangerous to the liberties of the United States.
While congress, by a committee, was trying to re-



148 VIEWS OF AN EX-PRESIDENT

move these unpatriotic objections, Virginia which
had assented under the leadership of Richard Hen
ry Lee, withdrew its assent, placing this action
upon the declaration that such a tax would be in
jurious to its sovereignty and might prove destruc
tive of the rights and liberties of the people. Only
the compelling and scourging intervention of provi
dence opened the way to union and safety, and
brought to naught these freaks of pride and selfish
ness.

In April, 1783, congress asked the states for au
thority, for a period of twenty-five years, to lay cer
tain duties on specific articles, and a general duty
of five per cent, ad valorem on all others. The
emergency was stated by congress in the following
terms: "It has become the duty of congress to de
clare most explicitly that the crisis has arrived
when the people of these United States, by whose
will and for whose benefit the federal government
was instituted, must decide whether they will sup
port their rank as a nation by maintaining the pub
lic faith at home or abroad; or whether, for want
of a timely exertion in establishing a general reve
nue, and thereby giving strength to the confed
eracy, they will hazard not only the existence of
the union, but of those great and invaluable privi
leges for which they have so arduously and so hon
orably contended."

In 1784 congress requested the states to vest the



THE CONFEDERATION 149

general government with power, for fifteen years, to
prescribe some general regulations of commerce, not
involving revenue, but intended solely to give effect
to our commercial treaties and to protect our peo
ple against the hostile provisions of the navigation
acts of Great Britain.

Neither of these requests was granted. The
appeal of 1783 was defeated by the refusal of New
York to concur with the other states. That of 1784
had no response.

The inadequacy of the confederation, and the re
fusal of the states to grant powers that would have
given some force and dignity to the national gov
ernment, drove out of congress many of the ablest
public men. The members could not but feel as a
personal humiliation the powerlessness of the body
to respond to the urgent and even pathetic appeals
of the national creditors. Washington, in one of
his letters, notices the absence of these men from
the national councils; but it was quite natural that
they should prefer to serve in the assemblies of their
own states and to participate in decrees that could
be put into execution. It is said that, at no time
between October, 1783, and June, 1784, were nine
states present by their representatives in congress.
Nothing could more strongly emphasize the decay
of the confederacy. Mr. Winsor says: "Congress
had not the inherent dignity to allure statesmen,
nor did it offer temptations even to politicians."



150 VIEWS OF AN EX-PRESIDENT

The appeals of congress and of Washington, of
the impoverished veterans, driven almost to frenzy
by want; of the friendly states of France and Hol
land, that had so generously supplied our need by
loans were all unavailing. The refusal of New
York to accede to the measures proposed for a na
tional revenue, it has been said, virtually decreed
the dissolution of the existing government. The
states had now finally not only refused to give to
congress a general power to regulate commerce,
but even to concede the power when limited to a
term of years and to particular subjects.

The story of the discreditable and cruel treatment
of our creditors, home and foreign, and especially
of the veterans of the war, can not be read with
out shame; but perhaps it was well that the arti
cles of confederation were not patched up, and that
humiliation, disaster and decay should go on un
til the people were driven to the adoption of an ade
quate plan of government.

The want of any power in congress to regulate
commerce between the states was not so disastrously
and immediately felt, because it did not have any
relation to revenue; but this subject, like that of
foreign commerce, was left by the articles of con
federation, in the anomalous condition that there
was no power of regulation anywhere. The states
were forbidden to make treaties with each other,
and congress was given no power to legislate on



THE CONFEDERATION 151

the subject. Some questions of internal commerce
presented themselves and added to the general con
fusion and distress.

The articles contain some general provisions that
are worthy of note. The free inhabitants of each
state were secured in all the privileges and immu
nities of free citizens in the several states; and in
free ingress and regress and all the privileges of
trade and commerce, subject to the same duties and
restrictions as the inhabitants of the particular
state. The reclamation of fugitives from justice
was provided for. Full faith and credit were to be
given in each of the states to the records, acts and
judicial proceedings of the courts and magistrates
of every other state. The subordination of the sev
eral states was established by the provision that no
.state, without the consent of the United States,
should send an embassy to, or enter into any confer
ence, or alliance, or treaty, with any foreign nation;
nor should any two states enter into any such
treaty or alliance between themselves; nor engage
in any war; nor maintain any ships of war, or
armed forces in time of peace, except as authorized
by congress.

In view of these limitations, it was wholly in
congruous to describe the states as sovereign, either
in their relations to each other or to the nations of
the world.

It is an interesting fact that article n provided



152 VIEWS OF AN EX-PRESIDENT

for the admission of Canada to the union. It was
as follows: "Article XI. Canada acceding to this
confederation, and joining in the measures of the
United States, shall be admitted into, and entitled
to all the advantages of this union; but no other
colony shall be admitted into the same, unless such
admission be agreed to by nine states."

As a frame of government for peace, the ab
sence of any adequate provision for a federal ju
diciary was another glaring defect in the articles of
confederation. The power to judge, interpret and
enforce the constitution, treaties and laws made by
the national government, is essential to the very ex
istence of the government.

Judge Story thus summarizes the defects of the
confederation: "But they [the congress] possessed
not the power to raise any revenue, to levy any tax,
to enforce any law, to secure any rights, to regulate
any trade, or even the poor prerogative of command
ing means to pay their own ministers at a foreign
court. They could contract debts, but they were
without means to discharge them. They could
pledge the public faith, but they were inca
pable of redeeming it. They could enter into trea
ties; but every state in the union might dispute
them with impunity. They could contract alliances,
but could not command men or money to give them
vigor. They could institute courts for piracies and
felonies on the high seas; but they had no means



THE CONFEDERATION 153

to pay either the judges or the jurors. In short, all
powers which did not execute themselves were at
the mercy of the states, and might be trampled
upon at will with impunity."

These defects, as I have said, had been disclosed
before Maryland ratified the confederation; and we
wonder why the accession of that state should
have produced so much rejoicing in the army and
throughout the colonies; but our glance is a back
ward one. We contrast the articles of confedera
tion with the perfected constitution the tree with
the germ and we rightly give the tree the glory;
but wrongly despise the germ. The masses are not
much taught by philosophy; it does not reach them;
experience is their faithful teacher. The national
^constitution, like the constitutions of the states, could
only come by development. It was not, as a whole,
in the brain of the wisest of our statesmen. Jefferson,
Hamilton, Franklin, Adams, either would have made
bad work of the business if it had been left to
either. They were wise to contribute, but not wise
enough to complete.

The chief use and glory of the articles of confed
eration were that, by and through them, "a perpet
ual union" was declared and subscribed by each of
the thirteen colonies; and that the use of the scheme
of government provided, by disclosing its fatal de
fects, infallibly pointed out the essentials of a per
fect union. They organized a general representa-



154 VIEWS OF AN EX-PRESIDENT

tive government a shadowy outline; but an outline
that, when these suggestions were defined and
rounded, should be the most free and perfect sys
tem of government that men have ever enjoyed.

Bancroft says of it: "A better one could not
then have been accepted; but, with all its faults, it
contained the elements for the evolution of a more
perfect union."



THE INSTITUTION OF STATE GOVERN
MENTS

SIXTH LECTURE
Delivered at Stanford University, April 18, 1894

The institution of state governments was a most
important and necessary step in the development of
the republic. The king had denounced the penal
ties of treason against the colonists; his armies and
fleets had inaugurated war; and the old forms of
oath and writ had become incongruous. Independ
ence had not yet been declared, but local affairs
were in disorder. The assemblies had been pro
rogued, and the royal governors had abandoned
their duties, or sought to exercise them from gar
risoned towns or from the decks of royal cruisers.
Committees of safety and defense had by popular
acquiescence assumed some measure of public direc
tion and control; but the necessity for a more for
mal organization of the powers of government was
pressing hard upon many of the colonies, especially
upon Massachusetts. It was, however, well under-

ISS



v



156 VIEWS OF AN EX-PRESIDENT

stood by the people of Massachusetts that this for
ward step to which their necessities so strongly
pressed them was only to be ventured in unison
with the other colonies.

On June 2, 1775, John Hancock, the president,
laid before the congress a letter from the provincial
convention of Massachusetts, dated May 16. This
letter set forth the difficulties they suffered for want
of a regular form of government, and requested
"explicit advice respecting the taking up and exer
cising the powers of civil government," and declar
ing their readiness to "submit to such a general
plan as the congress may direct for the colonies."

In response to this communication, the congress
resolved, on the ninth of June, as follows:

"That no obedience being due to the act of par