entitled to rank as the father of the American system of governments, considering as well their peculiar adjustments of power, as the modes and processes by which they are built up. From the first essay, made by New Hampshire, in January, 1776, it is evident a great advance had been made in all respects during the four years ending with the adoption of the first Constitution of Massachusetts. At first, the people had very inadequate notiens of the true methods of fundamental legislation. Having only the examples of their forefathers in England, in 1660 and 1688, with a few contemporaneous imitations in the colonies, they were convinced the work, in their then revolutionary condition, must be initiated by Conventions, but under what conditions and limitations, they seem to have been wholly ignorant. By degrees, however, they came to realize what John Adams had taught them in May, 1775, that it was necessary "that the people should erect the whole building with their own hands," and to that end, that the Conventions called by them should be limited to the single function of proposing constitutional enactments, leaving it to the electors by their fiat, pronounced through the ballot-box, to give to them the force and vigor of law. It is hardly necessary to observe, that the proceedings by which the Massachusetts Convention of 1779 was called, and by which its work was matured and confirmed by the final vote of the people, were strictly regular, and that, therefore, the body was legitimate as a Constitutional Convention.1

§ 159. There remain now to be considered those conventions of the revolutionary period, by which were framed and ratified the two Constitutions of the United States.

We have seen that, upon the breaking out of hostilities with Great Britain, the several colonies, except Connecticut and Rhode Island, established temporary governments, by means of Provincial Conventions or Congresses, operating in the main through committees, and exercising unlimited powers. In taking this step, they imitated the example set them by United America, in establishing a government for the continent by the Congress at Philadelphia. The contest with Great Britain had been opened, and, so long as the body existed, was conducted

1 For a full and most excellent account of the proceedings resulting in the framing of the first Massachusetts Constitution, see Works of John Adams, Vol. IV. pp. 213–218.

by the Revolutionary Congress, which met at Philadelphia on the 5th of September, 1774. When that body expired, there succeeded to its place and office the Congress which met at the same city on the 10th of May, 1775. To the revolutionary government administered by these two bodies, belonged all the powers needed for the successful prosecution of the war. As those powers, however, grew out of necessity, and not out of an express grant, it was found difficult to secure acquiescence in their exercise, except when the separate colonies were made tractable by imminent public dangers. To remedy this evil, it was early proposed to frame articles which should not only make the union of the colonies perpetual, but so ascertain the powers intrusted to the central government by written memorials, that cavil and disobedience should be prevented. According to Mr. Madison, there remains on the files of Congress, in the handwriting of Dr. Franklin, a sketch of such articles, submitted by him to that body, as early as the 21st of August, 1775, entitled, " "Articles of Confederation and Perpetual Union of the Colonies." But this attempt was premature, and nothing came of it. When Congress, in 1776, appointed a committee to draft a Declaration of Independence, it appointed at the same time another to prepare a plan of a confederation for the Colonies. The committee reported a plan, on the 12th of July, 1776, based on that sketched by Dr. Franklin, which was debated and amended from time to time until the 15th of November, 1777, when the Congress passed it and agreed to propose it to the States. This plan, entitled "Articles of Confederation and Perpetual Union between the States of New Hampshire," &c., &c., was finally ratified by the legislatures of the several States, but only after long delay, the date of the earliest ratification being the 9th of July, 1778, and that of the latest, the 1st of March, 1781.

§ 160. Thus was effected, for the United States, the transition from a revolutionary condition, under a provisional government, to one that was, in idea, at least, fixed and permanent, under a written Constitution. The body by which this Constitution was framed, the Continental Congress, I have classed with Constitutional Conventions, but in strictness that classification is incorrect. That Congress was a revolutionary government, charged by the patriotic majority in the several colonies to see

it.

to it that the interests of United America received no detriment. For that purpose its powers were undoubtedly ample, but they did not extend to the framing of a fundamental law; at least, the credentials of its members contemplated— and, considering the time when they were drawn up, could have contemplated-no such special function for that body, unless the framing of a Constitution should be thought to be among the proper means of discharging adequately the trust committed to Whatever force or validity those articles derived from the Congress, sprang solely from their excellence as propositions to be acted on by the several States, or from the force wielded by their proposers as a revolutionary government. They were oblig atory upon no one, and, in fact, it was less the weight of the Congress than the urgent perils of the times that led to their final adoption by the States. Their real validity, as a Constitution for America, depended solely upon the ratification so tardily given by the constituent commonwealths.

§ 161. The mode in which the ratification of the Articles of Confederation was effected, is deserving of notice, as bearing on the question of the legitimacy of that Constitution. It was ratified by the States, and not by the citizens of the several States or of the Union. It was by the States, speaking through their respective legislative assemblies. In one aspect of the case, this mode of ratifying those articles was the proper one, for the Confederation was a league of distinct commonwealths, struck by their ambassadors, and, therefore, to derive its force only from those whom the ambassadors represented. These being States, it was they alone that could dictate the terms upon which their union should subsist. The Constitution of the Confederation, therefore, when ratified in the manner explained, was an entirely legitimate one; that is, it was proposed to the constituent bodies to be governed by it, and by the latter ratified and confirmed by an express vote; but it was legitimate only for what it purported to be a league between States, and not a national Constitution, in the proper sense of the term. Tested by the principles that should preside over the formation of a Constitution, it was, in its inception, not legitimate, for it wanted the sanction of the people, who, as distinct from their governments, are alone the constituents, or have power to ratify a Constitution.

The Congress, on the other hand, considered as a Constitu

tional Convention, possessed not a single one of the elements necessary to give it legitimacy. The people had no direct agency in calling it, no voice in prescribing its duties or ascertaining its powers, and were not directly consulted in the act of putting the fruit of its deliberations in force.

§ 162. Such was the first essay of our fathers in framing a government for United America. The system resulting from it, the joint product of inexperience and State jealousy, came soon to merit the general contempt from its weakness. The government of the Confederation, from its peculiar character as a league between States, needed, more than one which should deal immediately with individuals, to be strong enough to make itself either respected or feared. But it failed to secure either fear or respect. With considerable legislative power, it had no distinctively judicial, and next to no executive, power. It presented the anomaly of a government for an immense expanse of country, empowered to enact laws, but invested with scarcely any power of enforcing them. The disordered state of the finances, which it was utterly unable to remedy, was the proximate cause of its collapse. The requisitions for the support of the government were first paid by a few of the States, the rest contributing nothing, and then disregarded by all alike.1 But, had it been the destiny of the United States to tide over the financial difficulties growing out of the war, a state of peace and prosperity would have demonstrated, more strikingly than one of financial distress, the utter inadequacy of its Constitution of government. There is scarcely a function of a good gov ernment in which it would not have proved itself altogether wanting.

§ 163. The immediate occasion of the steps which finally led to the supersession of this worthless fabric by a real Constitution, grew out of the absolute necessity of filling the national coffers. In 1781, and on several subsequent occasions, serious efforts had been made to induce the States to vest in Congress power to levy imposts on imported goods, for the purpose of raising the necessary public revenue. But they had all been vain. At

1 Attorney-General Randolph, in arguing before the Supreme Court of the United States the case of Chisholm's Executors vs. The State of Georgia, wittily characterized the Confederation, in view of the facts stated in the text, as "a government of supplication." 2 Dall. R. 419.

length, on the 21st of January, 1786, the House of Delegates of Virginia appointed eight commissioners, to meet such others as might be appointed by the other States, at a time and place to be agreed upon, with instructions "to take into consideration the trade of the United States. . . . to consider how far a uniform system in their commercial regulations may be necessary; and to report to the several States such an Act relative to this great subject, as, when unanimously ratified by them, will enable the United States in Congress assembled effectually to provide for the same; that the said commissioners shall immediately transmit to the several States copies of the preceding resolution, with a circular letter requesting their concurrence therein, and proposing a time and place for the meeting aforesaid." 1

This resolution was the origin of what is known as the Annapolis Convention; the instructions to the Virginia commissioners being carried out by them and delegates, according to their invitation, assembling from several of the States at Annapolis, the place named for the purpose by the commissioners. Toward the object for which it was assembled, the Annapolis Convention did nothing directly, only five of the States responding to the call; but it gave expression to its "unanimous wish, that speedy measures may be taken to effect a general meeting of the States in a future Convention, for the same and such other purposes as the situation of public affairs may be found to require." The delegates then stated that, in their opinion, " the idea of extending the powers of their deputies to other objects than those of commerce, which has been adopted by the State of New Jersey,2 was an improvement on the original plan, and will deserve to be incorporated into that of a future Convention." They further recommended "a Convention of deputies from the different States, for the special and sole purpose of entering into this inquiry, and digesting a plan for supplying such defects as may be discovered to exist;" and that the Convention meet on the 2d Monday in May, 1787, at Philadelphia, "to take into consideration the situation of the United States, to devise such further provisions as shall appear to them necessary to render the Con

1 Ell. Deb., Vol. I. pp. 93-100.

2 New Jersey had instructed her delegates to the Annapolis Convention "to consider how far a uniform system in their commercial regulations and other important matters might be necessary.”