VON HOLST (1875)

On the fourth of July, the Declaration of Independence was adopted, the import of which, as has been already remarked, was in accordance with the resolution of the 10th of June. Eight days later, on the 12th of July, the last-named committee submitted to congress the draft of the articles of confederation. On the 15th of November, 1777, the articles, after they had undergone several amendments, were accepted by congress, and it was resolved to recommend them to the legislatures of the states for adoption.

. . The articles of confederation start out with the assumption that from the date of the Declaration of Independence each state became de facto and de jure an independent state, competent henceforth to form a confederacy with the other states whenever it saw fit, and to the extent that it saw fit. How this assumption was to be reconciled with the fact that the congress had been in existence for years, and had actually exercised sovereign power from the first, while the individual states had assumed no sovereign attitude, theoretically or practically, toward England or other foreign countries, does not

appear.

... The changes effected by the articles of confederation were rather of a negative than of a positive nature. They did not give the state which was just coming into being a definite form, but they began the work of its dissolution. The essential prerogatives which necessarily belong to a political community in its relations with other powers, they confided by law to confederate authorities, from whom, in practice, they withheld all power. On the other hand, they confided all actual power to the component parts of the whole, but did not and could not for themselves, still less for the whole, give them the right to assume the responsibilities or enforce the rights which regulate the relations of sovereign states.

The practical result of this was that the United States tended more and more to split up into thirteen independent republics, and in the same measure, they virtually ceased to be a member of the family of nations bound together by the jus gentium. The European powers rightly saw in the Union only a shadow

without substance, and besides they had no occasion and no desire to have any relations with the individual states as sovereign bodies.

Dr. H. VON HOLST, Constitutional History of the United States. I. 20-24.

HART (1891)

The Continental Congress took upon itself the management of the military, financial, and foreign affairs of the thirteen colonies which united in the movement. A year later it took the logical step of proclaiming to the world the fact which had for months been existent the independence of the colonies from Great Britain. In all these acts the colonies and the people acquiesced. An informal but effective confederation was thus formed.

During the five years following acquiescence was not always obtained, and the Congress went through the humiliations of a body unknown to constitutional law, and inadequately supplied with strength. But practically it was a true, though temporary government: it made treaties, issued legal tender notes, borrowed money, commissioned generals, directed campaigns. The practical and the legal inception of the Union is to be found in the acceptance by the people of the work of a body without a legal warrant, but nevertheless actually the government of all the thirteen States.

. . . The government thus established was a Staatenbund: to us it seems weak; when founded it was bound by the strongest federal ties then known. The Congress was a weak organ with all the functions of government; but it was in every way superior to the Swiss Diet, and, except in financial powers, to the States General of the Netherlands. The powers of government were few and feebly sustained; but they were larger than those of the Holy Roman Empire. The nation found a Congress in existence, and as a Congress it was continued. The powers committed to it were, in the main, such as had previously been exercised by the Continental Congress, and such as the colonies had been accustomed to see carried on for them by the British Home Government. Even in its defects, the Confederation closely resembled its predecessor, the Continental Congress; it was a clumsy contrivance, so far as ex

ecutive and judicial matters were concerned; and it had no direct relations with individuals.

ALBERT BUSHNELL HART, Federal Government, 54–56.

HENRY JONES FORD (1898)

The period of the Confederation was one in which the functions of general government were in abeyance. . . . People cared nothing about the principles on which the government of the Confederation was based, because they cared nothing for that government. The Congress of the Confederation, although it remained in existence fourteen years, never took root in the affection or respect of the people. Its sittings were private, and its proceedings made no appeal to public opinion.

HENRY JONES FORD, Rise and Growth of American Politics, 36, 37.

STEVENS (1894)

On the very day that saw the Declaration put forth, steps were taken which led to the adoption, in the following year, of "Articles of Confederation and Perpetual Union," binding all the States in a "firm league of friendship with each other." This earliest attempt at the construction of a national government established what, as the sequel proved, was neither national nor a government. . . . Not to trace its disastrous history in detail, enough to say, that its incompetency for all purposes for which it was established, brought about, after ten years of failure, its utter breakdown.

C. E. STEVENS, Sources of the Constitution of the United States. 40.

FISKE (1894)

John Dickinson is supposed to have been the principal author of the articles of confederation: but as the work of the committee was done in secret and has never been reported, the point cannot be determined. . . . According to the language of the articles, the states entered into a firm league of friendship with each other; and in order to secure and perpetuate such friendship, the freemen of each state were entitled to all the privileges and immunities of freemen in all the other states. Mutual extradition of criminals was established, and in each state full faith and credit was to be given to the records, acts,

and judicial proceedings of every other state. This universal intercitizenship was what gave reality to the nascent and feeble union. In all common business relations of life, the man of New Hampshire could deal with the man of Georgia on an equal footing before the law. But this was almost the only effectively cohesive provision in the whole instrument.

JOHN FISKE, Critical Period of American History. 94.

FISHER (1897)

a mere

It was unquestionably a very weak government, league with so few of the attributes of federalism, and those few so restricted, that it was not a federal or a national government in any true sense of the word. The fashion has prevailed for a long time of attacking it in very severe terms, and even of questioning the patriotism of the men who framed it. But we must remember that it was simply a link in a long chain of evolution which had been progressing for over a hundred years, and continued, as we shall see, in the same steady course. It was a great advance on all the plans that had preceded it, and, for purposes of development that was all that was required.

The criticisms on its lack of federal power began almost as soon as it appeared. When signed by the members of Congress and sent to the States for ratification in 1778, most of those States had finished their new constitutions, on which they had been engaged for several years. Constitution-making was the order of the day; everybody was prepared for discussion, and no previous plan of union received such serious and trained consideration.

Though the prevailing sentiment seems to have been that not enough power was given, there were many who saw in the Articles of Confederation a menace to the sovereignty of the States. But even this state rights party, while they wished greater safeguards for local liberty, wanted at the same time more power and efficiency in the general government.

Sidney George FISHER, The Evolution of the Constitution of the United States. 249, 250.

CHAPTER XVI

THE NORTHWEST ORDINANCE (1787)

SUGGESTIONS

THE Ordinance of 1787 contained the essence of all later constitutional government for national domain. It was by far the most important piece of general legislation of the epoch preceding the Constitutional Convention.

The document was the conception of Dr. Manasseh Cutler of Massachusetts; it was reported to Congress by Nathan Dane, as chairman of a committee to whom the subject had been referred, and it was passed with almost no alteration. The question of the competence of Congress to pass this frame of government has given occasion to much argument; but it is of little moment, as the first Congress under the Constitution re-enacted it.

ment.

The picturesque side of history comes out in the study of this docuWith the exception of the Puritan emigration, perhaps no one episode in the growth of America sets forth more distinctly the conditions, hopes, and aspirations of the people than this movement on the part of a body of New Englanders, to open up the Northwest Territory. The fact that the territory itself was ceded to the mothergovernment by the different child-states gave a personal interest to the frame of laws whereby this territory was to be governed. In the perusal of this document it is well to trace the special quality of civil rights, Habeas Corpus, trial by jury, bail, fines and punishments, treatment of Indians, education, freedom of religion, and emancipation of the negro. These enlightened provisions of this Ordinance should be examined carefully as in a measure foreshadowing the doctrines of the last three amendments of the Constitution.

The Northwest Ordinance is in reality a colonial charter, and the foundation of the government of our later colonies-usually called territories. Hence this document has an important relation to the problems of colonial government which of late press upon the United States.

For Outlines and Material, see Appendix A.