CHAPTER VIII.

FAILURE OF THE CONFEDERATION; NECESSITY OF CONSTITUTIONAL REFORMS.

After five years' quaking, the federal mountain had brought forth the Articles, which were duly named a government under signs and seals, and baptized with ceremony; but the new-born was a weakling whose origin gave little hope of vigor or long life. Happily the success of the cause was assured before Maryland signed the Articles and events now moved swiftly towards peace, twenty weary months away. Congress assembled under the Confederation on the second of March, 1781, with abundant evidence of the imperfection of the new government, which, as the day of peace approached, became weaker and developed signs of dissolution. No better test can be applied to the Articles than Madison applied, later, to the Constitution.1 We have seen that they were founded on the assent of the legislatures, acting in the name of the people, and not on a direct vote of the people themselves; the act establishing them, therefore, was federal not national. They derived their powers from the legislatures not directly from the people; a federal not a national source. They operated not on the people directly, affecting individuals, but on legislatures representing the States as political corporations. The extent of their powers was limited by whatever administration the legislatures might give them. They did not consolidate the people into a Nation. The extent of their authority, therefore, was fed1 Federalist, XXXIX.

244

HAMILTON SUGGESTS A CONVENTION.

eral not national.1 They made provision for amendments, and Canada might come into the Union.

While the Articles were on their way through the assemblies, the State constitutions had been made, and, with the exception of that of Massachusetts, these had not been submitted to the people for ratification, but had been promulgated. These constitutions affected the people directly; they were made by their representatives either in convention or assembly, but the Articles did not have such a popular origin. They originated with the committee and were submitted by Congress, itself a political body removed two degrees from the people. While they were before the States, Hamilton had suggested, that a General Convention ought to be called for the purpose of strengthening the Federal Constitution. He had first proposed this in 1780, while aide-de-camp to General Washington, in a letter to Duane, a member of Congress, in which he made a searching and most remarkable analysis of the political system attempted in the Articles, contrasting it to the system adapted to the needs of a national government. He pointed out the incurable fault of recognizing the uncontrollable sovereignty of each State; showed clearly that the Confederation would not have powers sufficient to unite its different members and direct the common forces to the interest and happiness of the whole, and urged that powers should be conferred upon Congress "competent to the public exigencies." It should be clothed "with a complete sovereignty." Many reforms which he urged were afterwards embodied in the Constitution.2 Largely owing to his influence the New York

1 Compare the Federalist, XV (Hamilton).

2 Hamilton to James Duane, September 9 (?), 1780. J. C. Hamilton's Hamilton, I, 284-305. Most of Hamilton's specific suggestions for "the general good" were afterward embodied in the Constitution, Article I, Section 8. He also advised the establishment of a bank.

THE ARTICLES AN EXPERIMENT.

245

legislature, two years later, passed concurrent resolutions recommending a general convention of the States, which should be authorized to amend the Confederation.1 His discernment was not shared, however, by the public.

The State constitutions had closely followed precedents in colonial experience. Each in large measure was a transcript of the government as it stood at the time when the transition was made from colony to State. The distribution of the functions of government, as legislative, executive and judicial agreed with colonial practice. Not so the Articles. It is safe to say that they were the nearest approach to an experiment in government which the American people have ever made. The committees which prepared them and the assemblies which discussed them in their journey of five years from State to State, missed the plain path of American civil experience. Their defects were emphasized even more by what they omitted than by what they contained. The confusion incident to merging civil functions, in Congress, was a serious defect. The general executive power of the country was the State legislatures, and the impotence of Congress was soon realized in its attempt to deal with three great problems; that of revenue, that of representation and that of the public lands. Over neither of these had Congress authority. It could not regulate the revenue, nor apportion representation, nor control the public lands. Unless the States sent their quotas, the Confederation could have no revenue. Unless they elected representatives, the United States as a government ceased to exist. Unless they ceded their western lands, the Confederation could have no public domain, nor a foot of soil to call its own. There

1 New York journals of Senate and Assembly, July 20-21, 1782. 2 The Constitution of Maryland, 1776, and Pennsylvania, 1776, are illustrations.

246

CONGRESS BEFORE AND AFTER 1781.

remained also another potent cause of civil discord certain to break up the Confederation. Even before Maryland ratified the Articles, the attendance in Congress began to waver and fall off, and it soon became increasingly difficult to secure a quorum. After the first of March, 1781, so irregular were the States in attendance, and so swiftly grew the spirit of apathy towards the Confederation, it was practically impossible to obtain the consent of nine States to any proposition. Often there were not more than ten delegates present, representing only five or six States. Frequently a few members assembled and adjourned for lack of a quorum. The most eminent men of the country were serving it outside of Congress.

As long as public excitement and extraordinary zeal for the American cause had profoundly stirred the masses, the assemblies had responded with respectable promptness in forwarding the quotas, but as the burdens of war weighed more heavily, as the cause dragged along in uncertainty, defeats following successes, the quotas were sent less regularly. No government can exist on the voluntary offerings of its inhabitants. The power to collect a revenue must be lodged in a responsible agency. The history of the old Congress discloses the paradox of its having greater authority before than after the Articles were signed.

Before that time Congress boldly pledged the credit of the country in its emission of bills of credit; after that time, any financial scheme which it might suggest, in order to go into effect, must receive the consent of nine States; and a like consent must be given to other important questions. It is not strange that the assemblies considered themselves superior to Congress in authority, a fact which the Articles practically acknowledged and affirmed. The Confederation, though depending upon the States, assumed to act on behalf of the whole country.

Occasionally Congress was named in an assembly debate as a foreign government; which is not strange when we consider that scarcely a man in America, save the officers of the army and navy and the Financier of the Revolution, and no man abroad, save the American ministers, was responsible to it; therefore, when the evidence of its weakness could no longer be concealed, it speedily fell into contempt.

A system of government which ignored population, and gave as much authority in Congress to Rhode Island as to Virginia, could not long be conducted with general satisfaction. It was easy, in those days of discontent, and discontent then characterized America, to attribute all political ailments to Congress, and the necessities of the hour fostered this distrust. Yet, before the Articles were ratified, Congress had attempted to escape dependence upon the States for a revenue, and had begun to utilize the credit of the country by issuing paper money. Gold and silver had quite disappeared from circulation, the legislatures were issuing bills of credit,' and State issues were soon competing with continental for acceptance. By the inexorable law, in the operation of which bad money drives out good, the country was flooded with a depreciating paper currency. The outlook for stability seemed hopeless. The American people were not justified in expecting that Franklin and Adams would be able to borrow sufficient money in Europe to meet the civil and military expenses of the United States. Continental bankruptcy seemed impending. After the preliminary treaty peace, and the recognition of independence seemed near at hand, the trade of the country rapidly improved, and

of

1 See pages 247, 249, 250, 264, 268, 271.