COLLOQUY III.

HISTORY OF THE UNION TRACED-ANALYSIS OF THE ARTICLES OF CONVEDERATION—THE DEFECTS IN THEM TREATED OF-THE CALL OF THE FEDERAL CONVENTION TO REMODEL THEM-THE SOLE OBJECT OF THIS CONVENTION WAS TO REVISE THE ARTICLES OF CONFEDERATION AND NOT TO CHANGE THE BASIS OR CHARACTER OF THE UNION-THIS APPEARS FROM THE CALL ITSELF AS WELL AS THE RESPONSES OF THE STATES TO ITTHERE WAS NO INTENTION TO CHANGE THE FEDERAL CHARACTER OF THE UNION.

IT, then, being historically and judicially established that the thirteen States, as separate and distinct Sovereign Powers, declared their Independence, and as such entered into their first Union under the Articles of Confederation of 1777 or 1781, according as we may consider the date of the agreement to the terms of the Union by their deputies in Congress, or the time when these terms were acceded to and ratified by all the States; it being further established that citizenship and allegiance were within and under the control of each State under that Confederation as with all other nations; and that each of the States severally, at this period in our history, had full power to confiscate and do what all other Sovereign States by the laws of nations may of right do; and that the right of Eminent Domain which ever accompanies and distinguishes Sovereignty in its fullest extent, was possessed by them severally as separate, distinct States, it now devolves upon us to trace the history of this Union, so formed, from that time to this. If Sovereignty, beyond question, resided with the

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States severally at that time, has it ever been changed or parted with by them since? If it has, it must be shown, and shown by evidence and authority of a conclusive character. Sovereignty cannot pass by implication. If the States were Sovereign when they entered into the Articles of Confederation, they must still remain so, unless they parted with that Sovereignty in those articles, or in the new articles-the new Constitution, as it was calledof 1787, which are the basis of the present Union. Now, in this instrument, the new Constitution of 1787, did the States surrender the Sovereignty which they undeniably and beyond all question possessed in 1783? In this instrument have they parted with their control over the citizenship and allegiance of their citizens respectively? This is the great question. In investigating it, as I have said, we must look not only into the instrument itself, but into the old Constitution, to understand correctly the evils arising under its operation and the remedies applied.

Here, again, I premise by assuming an unquestionable position, and that is, that all grants by Sovereignty are to be strictly construed. Nothing can pass by inference or implication against Sovereignty. It is a fundamental maxim of public law that in construing grants from the Sovereign power, nothing is to be taken by implication against the power granting; nothing will pass to the grantee but by clear and express words. This is true of all grants, even of private rights, from the Sovereign power, and much more stringently is the rule to be adhered to in grants, purporting to surrender Sovereign powers themselves.* It is likewise a universal principle and maxim of political law, that Sovereign States cannot

* Broom's Legal Maxims, p. 260. Vattel, 2d Book, Chap. xvii, Sec. 305–308.

be deprived of any of their rights by implication; nor in any manner whatever but by their own voluntary consent or by submission to a conqueror. *

Now let us examine the Articles of Confederation, as they were styled, and see the nature and extent of the powers delegated by them. The stipulations entered into by these Articles, as appear from their face, may be divided into two classes :

First, mutual Covenants between the parties, which, at that time, we have seen, were beyond question separate, distinct, Sovereign States.

Secondly, delegations of power by the several Parties to the Compact to all the States, to be exercised by them jointly, in a general Congress of the States.

The mutual Covenants between the States, upon analy sis, may be stated as follows:

1st. The style of the Confederacy was to be "The United States of America."

2d. Each State retained its Sovereignty, freedom and Independence, and every power and right which is not expressly delegated to the United States.

3d. The object of the Confederation was for their mutual defence, the security of their liberties and their mutual and general welfare, binding themselves to assist each other against all force offered to or attacks made upon them, or any of them, on account of religion, Sovereignty, trade, or any other pretence whatever.

4th. In determining all questions in Congress each State was to have one vote.

5th. Each State was to maintain its own Delegates. 6th. The free inhabitants of each State, Paupers, Vaga

* Tucker's Blackstone, vol. i, Appendix, p. 143.

† See Appendix B.

bonds and Fugitives from Justice excepted, were to be entitled to all privileges and immunities of free citizens in the several States.

7th. All Fugitives from Justice from one State into another were to be delivered up on demand.

8th. Full faith and credit were to be given to the records of each State in all the others.

9th. Congress was to grant no title of nobility.

10th. No person holding any office was to receive a present from a foreign power.

11th. No State was to form any agreement or alliance with a foreign power without the consent of the States in Congress assembled.

12th. No two or more States were to form any alliance between themselves, without the like consent of the States in Congress assembled.

13th. No State, without the like consent of Congress, was to keep war ships or an army in time of peace, but each was to keep a well organized and disciplined militia with munitions of war.

14th. No State was to lay any duty upon foreign imports which would interfere with any treaty made by Congress.

15th. No State was to issue letters of marque or to engage in war without the consent of the Congress, unless actually invaded or menaced with invasion.

16th. When land forces were raised, each State was to raise the quota required by Congress, arm and equip them, at the expense of all the States, and to appoint all officers of and under the rank of colonel.

17th. Each State was to levy and raise the quota of tax required by Congress.

18th. The faith of all the States was pledged to pay all the bills of credit emitted, or money borrowed, on their joint account, by the Congress.

19th. It was agreed and covenanted that Canada might accede to the Union, so formed, if she chose to do so.

20th (and lastly). Each State was to abide by the determination of all the States, in Congress assembled, on all questions which, by the Confederation, were submitted to them. The Articles of Confederation were to be inviolably observed by every State, and the Union was to be perpetual. No article of the Confederation was to be altered without the consent of every State. So much for the mutual covenants.

Secondly. The Delegations of power by each of the States to all the States, in general Congress assembled, upon a like analysis, may be stated as follows:

1st. The sole and exclusive power to determine on war and peace, except in case a State should be invaded or menaced with invasion.

2d. To send and receive Ambassadors.

3d. To make Treaties, with a Proviso, etc.

4th. To establish rules for Captures.

5th. To grant Letters of Marque and Reprisal.

6th. To appoint Courts for Trial of Piracies and other crimes, specified.

7th. To decide Questions of Dispute, between two or more States, in a prescribed manner.

8th. The sole and exclusive power to coin Money, and regulate the value.

9th. To fix the standard of Weights and Measures. 10th. To regulate trade with the Indian Tribes.

11th. To establish Post-Offices.

12th. To appoint all officers of land forces, except Regimental.

13th. To appoint all officers of the Naval Forces.

14th. To make rules and regulations for the Govern ment of Land and Naval Forces.