History of the Origin, Formation, and Adoption of the Constitution of the United States, Vol. 1 / With Notices of Its Principle Framers

by George Ticknor Curtis

CHAPTER VI.

Nature and Powers of the Confederation.

The nature of the government established by the Articles of Confederation can be understood only by an analysis of their provisions. For this purpose, the instrument must here be examined with reference to three principal topics: first, the union which it established between the different members of the Confederacy; second, the form of the government which it created; and third, the powers which it conferred, or omitted to confer, upon that government.

I. The parties to this instrument were free, sovereign, and independent political communities,—each possessing within itself all the powers of legislation and government, over its own citizens, which any political society can possess. But, by this instrument, these several States became united together for certain purposes. The instrument was styled, "Articles of Confederation and Perpetual Union between the States," and the political body thus formed was entitled "The United States of America." The Articles declared—as would, indeed, be implied, in such circumstances, without any express declaration—that each State retained its sovereignty, freedom, and independence, and every power, jurisdiction, and right not expressly delegated by the instrument itself to the United States in Congress assembled. The nature and objects of this union were described as a firm league of friendship between the States, for their common defence, the security of their liberties, and their mutual and general welfare; and the parties bound 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 under any pretence whatever.

It was also provided, that the free inhabitants of each State should be entitled to all the privileges of free citizens in the several States;[152] that there should be an open intercourse and commerce between the different States; that fugitives from justice from one State to another should be delivered up; and that full faith and credit should be given in each State to the records, acts, and judicial proceedings of every other State.[153]

II. The government established by the Articles of Confederation consisted of a single representative body, called a General Congress. In this body were vested all the powers, executive, legislative, and judicial, granted to the United States. The members of it were to be chosen by the States, in such manner as the legislature of each State might determine; no State to be represented by more than seven delegates, or by less than two. No delegate was eligible for more than three years in a period of six; and no delegate could hold any office of emolument under the United States. Each State was to maintain its own delegates, and in the determination of questions, the voting was to be by States, each State having one vote.

III. It should be remembered, that the objects and purposes of the Confederation related chiefly to the defence of the States against external attacks; and it was, therefore, as it purported to be, a league for mutual defence and protection, through the combined powers of the whole, operating in certain forms and under certain restrictions. For the manner in which this new authority was to be exercised, we are to look at the powers conferred upon "the United States in Congress assembled." These powers related to external and to internal affairs.

With regard to the external relations of the country, Congress was invested with the sole and exclusive right of determining on peace and war, unless in case of an invasion of a State by enemies, or an imminent danger of invasion by Indians; of sending and receiving ambassadors; of entering into treaties and alliances, under the limitation that no treaty of commerce could be made, which would have the effect to restrain the legislature of any State from imposing such imposts and duties on foreigners as their own people were subjected to, or which would operate to prohibit the exportation or importation of any commodity whatever. Congress was also invested with power to deal with all captures and prizes made by the land or naval forces of the United States; to grant letters of marque and reprisal in times of peace; and to establish courts for the trial of piracies and felonies committed on the high seas, and for determining appeals in cases of capture.

With regard to internal affairs, Congress was invested with power to decide, in the last resort, on appeal, all disputes between two or more States, concerning boundary, jurisdiction, or any other cause; and also all controversies concerning land-titles, where the parties claimed under different grants of two or more States before the settlement of their jurisdiction; but no State was to be deprived of territory for the benefit of the United States. Congress was also invested with the sole and exclusive right and power of regulating the alloy and value of coin struck by their authority, or by that of any of the United States; of fixing the standard of weights and measures throughout the United States; of regulating the trade and managing all affairs with the Indians, who were not members of any State, provided that the legislative authority of any State, within its own limits, should not be infringed or violated; of establishing and regulating post-offices from one State to another, and exacting postage to defray the expenses; of appointing all officers of the land forces in the service of the United States, and of making rules for the government and regulation of the land and naval forces, and directing their operations.