In May, 1775, a Congress again assembled at Philadelphia, and was clothed with ample discretionary powers. The delegates were chosen, as those of the preceding Congress had been, partly by the popular branch of the colonial legislatures when in session, but principally by conventions of the people in the several colonies. (a) They were instructed to "concert, agree upon, direct, order, and prosecute such measures as they should deem most fit and proper, to obtain redress of American grievances, or, in more general terms, they were to take care of the liberties of the country. (b)

Soon after this meeting, Georgia acceded to and completed the confederacy of the thirteen colonies. Hostilities had already commenced in the province of Massachusetts, and the claim of the British parliament to an unconditional and unlimited sovereignty over the colonies was to be asserted by an appeal to arms. The Continental Congress, charged with the protection of the rights and interests of the people of the united colonies, and instructed with the power, and sustained by the zeal and confidence of their constituents, prepared for resistance. They published a declaration of the causes and necessity of taking up arms, and proceeded immediately to levy and organize an army, to prescribe rules for the government of their land and naval forces, to contract debts, and emit a paper currency upon the faith of the Union; and gradually assuming all the powers of national sovereignty, they at last, on the 4th day of July, 1776, took a separate and equal station among the nations of the earth, by declaring the united colonies to be free and independent states.

Declaration of

This memorable declaration, in imitation of that pubIndependence. lished by the United Netherlands on a similar occasion, *209 recapitulated the oppressions of the British king, asserted it to be the natural right of every people to withdraw from tyranny, and with the dignity and the fortitude of conscious rectitude, it contained a solemn appeal to mankind in vindication of the necessity of the measure. By this declaration, made "in the name, and by the authority of the people," the colonies were absolved from all allegiance to the British crown,

idea of taxation, internal or external, for raising a revenue on the subjects in America, without their consent." Journals of Congress, vol. i.

(a) Journals of Congress, of May, 1775, pp. 69-74. (b) Journals of Congress, of May, 1775, vol. i. p. 74.

and all political connection between them and Great Britain was totally dissolved. The principle of self-preservation, and the right of every community to freedom and happiness, gave a sanction to this separation. When the government established over any people becomes incompetent to fulfil its purpose, or destructive to the essential ends for which it was instituted, it is the right of that people, founded on the law of nature and the reason of mankind, and supported by the soundest authority, and some very illustrious precedents, to throw off such government, and provide new guards for their future security. This right is the more apparent, and the duty of exercising it becomes the more clear and unequivocal, in the case of colonies which are situated at a great distance from the mother country, and which cannot be governed by it without vexatious and continually increasing inconvenience; and when they have arrived at maturity in strength and resources, or, in the language of Montesquieu, which he applied to our very case," when they have grown great nations in the forest they were sent to inhabit." If, in addition to these intrinsic causes, gradually and powerfully tending to a separation, the parent state should think fit, in the arrogance of power and superiority, to deny to her colonies the equal blessings of her own free government, and should put forth a claim to an unlimited control, in her own discretion, over all their rights, and the whole administration of their affairs, the consequence would then be almost inevitable, that the colonists would rise and repel the claim; and more certainly would this be the case, if they were a spirited and intelligent race of men, true to *210 themselves, and just to their posterity.

The general opinion in favor of the importance and value of the union appears evident in all the proceedings of Articles of Congress; and as early as the declaration of indepen- confederation, dence, it was thought expedient, for its security and duration, to define with precision, and by a formal instrument, the nature of our compact, the powers of Congress, and the residuary sovereignty of the states. On the 11th of June, 1776, Congress undertook to digest and prepare articles of confederation. But the business was attended with much embarrassment and delay, and, notwithstanding these states were then surrounded by the same imminent dangers, and were contending for the same illustrious prize, it was not until the 15th of November, 1777, that Congress

could so far unite the discordant interests and prejudices of thirteen distinct communities as to agree to the articles of confed eration. And when those articles were submitted to the state legislatures for their perusal and ratification, they were declared to be the result of impending necessity, and of a disposition for conciliation, and that they were agreed to, not for their intrinsic excellence, but as the best system which could be adapted to the circumstances of all, and, at the same time, afford any tolerable prospect of general assent. (a)

These celebrated articles met with still greater obstacles in their progress through the states. Most of the legislatures ratified them with a promptitude which showed their sense of the necessity of the confederacy, and of the indulgence of a liberal spirit of accommodation. But Delaware did not accede to them until the year 1779, and Maryland explicitly rejected them. (b) She instructed her delegates to withhold their assent to the articles, until there was an amendment, or additional agreement,

to appropriate the uncultivated and unpatented lands *211 in the western part of the Union, as a common

* fund

to defray the expenses of the war. (a) These lands were claimed by the states within whose asserted limits and jurisdiction they were situated, and several of them, from a deep sense of the importance of the union, agreed to an unconditional ratification of the articles, or, in other words, to a separate confederacy between the states so ratifying the same, though Maryland, or other states, should withhold their approbation and sanction. (b) The legislature of New York, by their acts of 23d of October, 1779, and 19th of February, 1780, even consented to a release of the unsettled lands in the western part of the state, for the use and benefit of such of the United States as should become members of the federal alliance; and to resign the jurisdiction as well as the right of pre-emption over her waste and uncultivated territory. The refusal of Maryland, so long persisted in,

(a) Journals of Congress, vol. iii. The instructions given to the delegates to the Continental Congress by the several colonial congresses, conventions, and assemblies, in 1776, and prior to the declaration of independence, contained an express reservation, to each colony of the sole and exclusive regulation of its own internal government, police, and concerns.

(b) Ibid. vii.

(a) Journals of Congress, vol. v. p. 208.

(b) Ibid. vol. v.

gave encouragement to the enemy, and injured the common cause, and damped the hopes of the friends of America at home and abroad. These considerations at last induced that state to make a generous sacrifice of her pretensions; and on the 1st of March, 1781, and which was upwards of three years from their first promulgation, the articles of confederation received the unanimous approbation of the United States.

The difficulties which impeded the framing and adopting the articles of confederation, even during the pressure of a common calamity, and which nothing at last but a sense of common danger could surmount, form a striking example of the mighty force of local interests and discordant passions, and they teach a monitory lesson of moderation to political councils.

*

Notwithstanding the articles of confederation conferred upon Congress (though in a very imperfect manner, and under a most unskilful organization) the chief rights of political supremacy, the jura summi imperii, by which our existence * 212 as an independent people was bound up together, and known and acknowledged by the nations of the world, yet they were, in fact, but a digest, and even a limitation, in the shape of written compact, of those undefined and discretionary sovereign powers which were delegated by the people of the colonies to Congress, in 1775, and which had been freely exercised and implicitly obeyed. (a) A remarkable instance of the exercise of this original, dormant, and vast discretion appears on the journals of Congress, the latter end of the year 1776. The progress

(a) The government of the Union is considered to have been revolutionary in its nature, from its first institution by the people of the colonies, in 1774, down to the final ratification of the articles of confederation, in 1781, and to have possessed powers adequate to every national emergency, and coextensive with the object to be obtained. (Paterson J., Iredell J., and Blair J., in Penhallow v. Doane, 3 Dallas, 80, 91, 95, 111; Dane's Abr. vol. ix. App. pp. 1, 13, 16, 21, 25. Judge Wilson in his argument in support of the ordinance of Congress of December 31st, 1781, incorporating the Bank of North America. Wilson's Works, vol. iii. 397; Story's Comm. on the Constitution, vol. i. pp. 186-191.) Mr. Madison, who was a member of Congress at the time, says, that the members were generally of the opinion that they had no power, under the recently adopted articles of confederation, to incorporate the bank. They were, in fact, impelled to do it from the great expediency, if not absolute necessity of the institution, to sustain the war and our credit. The Madison Papers, vol. i. 104. According to Mr. Dane, the government of the United States has passed through three forms: 1. The revolutionary; 2. The confederate; 3. The constitutional; and the first and the third proceeded equally from the people in their original capacity.

of the British arms had, at that period, excited the most alarming apprehension for our safety, and Congress transferred to the commander-in-chief, for the term of six months, complete dictatorial power over the liberty and property of the citizens of the United States, in like manner as the Roman senate, in the critical times of the republic, was wont to have recourse to a dictator, ne quid respublica detrimenti capiat. (b) Such loose, undefined authority as the Union originally possessed was absolutely incompatible with any regular notions of liberty. Though it was exercised, in the instance we have referred to, and in other strong cases, with the best intentions, and under the impulse of an irresistible necessity, yet such an irregular sovereignty never can be durable. It will either dwindle into insignificance, or degenerate into despotism.

The powers of Congress, as enumerated in the articles of confederation, would perhaps have been competent for all Imbecility of the confedera- the essential purposes of the Union, had they been duly tion. distributed among the departments of a well-balanced government, and been carried down, through the medium of

*

a national, judicial, and executive power, to the indi*213 vidual citizens of the Union. The exclusive cognizance of our foreign relations, the rights of war and peace, and the right to make unlimited requisitions of men and money, were confided to Congress, and the exercise of them was binding upon the states. But, in imitation of all the former confederacies of independent states, either in ancient Greece or modern Europe, the articles of confederation carried the decrees of the federal council to the states in their sovereign or collective capacity. This was the great fundamental defect in the confederation of 1781; it led to its eventual overthrow; and it has proved pernicious or destructive to all other federal governments which adopted the principle. Disobedience to the laws of the Union must either be submitted to by the government, to its own disgrace, or those laws must be enforced by arms. The mild influence of the civil magistrate, however strongly it may be felt and obeyed by private individuals, will not be heeded by an organized community, conscious of its strength and swayed by its passions. The history of the federal governments of Greece, Germany, Switzerland, and

(b) Journals of Congress, vol. ii. p. 475.