before the notion had ever entered anybody's head that things could
be regulated by contract. That notion we owe chiefly to the ancient
Romans, and it took them several centuries to comprehend the idea and
put it into practice. We owe them a debt of gratitude for it. The
custom of regulating business and politics and the affairs of life
generally by voluntary but binding agreements is something without
which we moderns would not think life worth living. It was after the
Roman world--that is to say, Christendom, for in the Middle Ages the
two terms were synonymous--had become thoroughly familiar with the
idea of contract, that the practice grew up of granting written
charters to towns, or monasteries, or other corporate bodies. The
charter of a mediaeval town was a kind of written contract by which
the town obtained certain specified immunities or privileges from the
sovereign or from a great feudal lord, in exchange for some specified
service which often took the form of a money payment. It was common
enough for a town to buy liberty for hard cash, just as a man might
buy a farm. The word _charter_ originally meant simply a paper or
written document, and it was often applied to deeds for the transfer
of real estate. In contracts of such importance papers or parchment
documents were drawn up and carefully preserved as irrefragable
evidences of the transaction. And so, in quite significant phrase the
towns zealously guarded their charters as the "title-deeds of their
liberties."

[Sidenote: The "Great Charter" (1215).]
After a while the word charter was applied in England to a particular
document which specified certain important concessions forcibly wrung by
the people from a most unwilling sovereign. This document was called
_Magna Charta_, or the "Great Charter," signed at Runnymede, June 15,
1215, by John, king of England. After the king had signed it and gone
away to his room, he rolled in a mad fury on the floor, screaming
curses, and gnawing sticks and straw in the impotence of his, wrath.[2]
Perhaps it would be straining words to call a transaction in which the
consent was so one-sided a "contract," but the idea of Magna Charta was
derived from that of the town charters with which people were already
familiar. Thus a charter came to mean "a grant made by the sovereign
either to the whole people or to a portion of them, securing to them the
enjoyment of certain rights." Now in legal usage a charter differs from
a constitution in this, that the former is granted by the sovereign,
while the latter is established by the people themselves: both are the
fundamental law of the land.[3] a The distinction is admirably
expressed, but in history it is not always easy to make it. Magna Charta
was in form a grant by the sovereign, but it was really drawn up by the
barons, who in a certain sense represented the English people; and
established by the people after a long struggle which was only in its
first stages in John's time. To some extent it partook of the nature of
a written constitution.

[Footnote 2: Green, _Hist. of the English People_, vol. i. p.
248.]

[Footnote 3: Bouvier, _Law Dictionary_, 12th ed., vol. i. p.
259.]

[Sidenote: The "Bill of Rights" (1689).]
Let us now observe what happened early in 1689, after James II had
fled from England. On January 28th parliament declared the throne
vacant. Parliament then drew up the "Declaration of Rights," a
document very similar in purport to the first eight amendments to
our Federal Constitution, and on the 13th of February the two houses
offered the crown to William and Mary on condition of their accepting
this declaration of the "true, ancient, and indubitable rights of the
people of this realm." The crown having been accepted on these terms,
parliament in the following December enacted the famous "Bill of
Rights," which simply put their previous declaration into the form of
a declaratory statute. The Bill of Rights was not--even in form--a
grant from a sovereign; it was an instrument framed by the
representatives of the people, and without promising to respect
it William and Mary could no more have mounted the throne than a
president of the United States could be inducted into office if he
were to refuse to take the prescribed oath of allegiance to the
Federal Constitution. The Bill of Rights was therefore, strictly
speaking, a piece of written constitution; it was a constitution as
far as it went.

[Sidenote: Foreshadowing of the American idea by Sir Harry Vane
(1656).]
The seventeenth century, the age when the builders of American
commonwealths were coming from England, was especially notable in
England for two things. One was the rapid growth of modern commercial
occupations and habits, the other was the temporary overthrow of
monarchy, soon followed by the final subjection of the crown to
parliament. Accordingly the sphere of contract and the sphere of
popular sovereignty were enlarged in men's minds, and the notion of a
written constitution first began to find expression. The "Instrument
of Government" which in 1653 created the protectorate of Oliver
Cromwell was substantially a written constitution, but it emanated
from a questionable authority and was not ratified. It was drawn up
by a council of army officers; and "it broke down because the first
parliament summoned under it refused to acknowledge its binding
force." [4] The dissolution of this parliament accordingly left Oliver
absolute dictator. In 1656, when it seemed so necessary to decide what
sort of government the dictatorship of Cromwell was to prepare the way
for, Sir Harry Vane proposed that a _national convention_ should
be called for drawing up a written constitution.[5] The way in which
he stated his case showed that he had in him a prophetic foreshadowing
of the American idea as it was realized in 1787. But Vane's ideas were
too far in advance of his age to be realized then in England. Older
ideas, to which men were more accustomed, determined the course of
events there, and it was left for Americans to create a government by
means of a written constitution. And when American statesmen did so,
they did it without any reference to Sir Harry Vane. His relation to
the subject has been discovered only in later days, but I mention him
here in illustration of the way in which great institutions grow. They
take shape when they express the opinions and wishes of a multitude
of persons; but it often happens that one or two men of remarkable
foresight had thought of them long beforehand.

[Footnote 4: Gardiner, _Constitutional Documents of the Puritan
Revolution_, p. lx.]

[Footnote 5: See Hosmer's _Young Sir Henry Vane_, pp.
432-444,--one of the best books ever written for the reader who wishes
to understand the state of mind among the English people in the crisis
when they laid the foundations of the United States.]

[Sidenote: The Mayflower compact(1620).]
In America the first attempts at written constitutions were in the
fullest sense made by the people, and not through representatives but
directly. In the Mayflower's cabin, before the Pilgrims had landed on
Plymouth rock, they subscribed their names to a compact in which they
agreed to constitute themselves into a "body politic," and to enact such
laws as might be deemed best for the colony they were about to
establish; and they promised "all due submission and obedience" to such
laws. Such a compact is of course too vague to be called a constitution.
Properly speaking, a written constitution is a document which defines
the character and powers of the government to which its framers are
willing to entrust themselves. Almost any kind of civil government might
have been framed under the Mayflower compact, but the document is none
the less interesting as an indication of the temper of the men who
subscribed their names to it.

[Sidenote: The "Fundamental Orders of Connecticut" (1639).]
The first written constitution known to history was that by which the
republic of Connecticut was organized in 1639. At first the affairs
of the Connecticut settlements had been directed by a commission
appointed by the General Court of Massachusetts, but on the 14th of
January, 1639, all the freemen of the three river towns--Windsor,
Hartford, and Wethersfield--assembled at Hartford, and drew up a
written constitution, consisting of eleven articles, in which the
frame of government then and there adopted was distinctly described.
This document, known as the "Fundamental Orders of Connecticut",
created the government under which the people of Connecticut lived for
nearly two centuries before they deemed it necessary to amend it. The
charter granted to Connecticut by Charles II. in 1662 was simply a
royal recognition of the government actually in operation since the
adoption of the Fundamental Orders.

[Sidenote: Germinal development of the colonial charter toward the
modern state constitution.]
In those colonies which had charters these documents served, to a
certain extent, the purposes of a written constitution. They limited the
legislative powers of the colonial assemblies. The question sometimes
came up as to whether some statute made by the assembly was not in
excess of the powers conferred by the charter. This question usually
arose in connection with some particular law case, and thus came before
the courts for settlement,--first before the courts of the colony;
afterwards it might sometimes be carried on appeal before the Privy
Council in England. If the court decided that the statute was in
transgression of the charter, the statute was thereby annulled.[6] The
colonial legislature, therefore, was not a supreme body, even within the
colony; its authority was restricted by the terms of the charter. Thus
the Americans, for more than a century before the Revolution, were
familiarized with the idea of a legislature as a representative body
acting within certain limits prescribed by a written document. They had
no knowledge or experience of a supreme legislative body, such as the
House of Commons has become since the founders of American states left
England. At the time of the Revolution, when the several states framed
new governments, they simply put a written constitution into the
position of supremacy formerly occupied by the charter. Instead of a
document expressed in terms of a royal grant, they adopted a document
expressed in terms of a popular edict. To this the legislature must
conform; and people were already somewhat familiar with the method of
testing the constitutionality of a law by getting the matter brought
before the courts. The mental habit thus generated was probably more
important than any other single circumstance in enabling our Federal
Union to be formed. Without it, indeed, it would have been impossible to
form a durable union.

[Footnote 6: Bryce, _American Commonwealth_, vol. i. pp. 243,
415.]

[Sidenote: Abnormal development of the state constitution, encroaching
upon the province of the legislature.]
[Sidenote: The Swiss "Referendum" 196]
Before pursuing this subject, we may observe that American state
constitutions have altered very much in character since the first part
of the present century. The earlier constitutions were confined to a
general outline of the organization of the government. They did not
undertake to make the laws, but to prescribe the conditions under
which laws might be made and executed. Recent state constitutions
enter more and more boldly upon the general work of legislation. For
example, in some states they specify what kinds of property shall be
exempt from seizure for debt, they make regulations as to railroad
freight-charges, they prescribe sundry details of practice in the
courts, or they forbid the sale of intoxicating liquors. Until
recently such subjects would have been left to the legislatures, no
one would have thought of putting them into a constitution. The motive
in so doing is a wish to put certain laws into such a shape that it
will be difficult to repeal them. What a legislature sees fit to enact
this year it may see fit to repeal next year. But amending a state
constitution is a slow and cumbrous process. An amendment may be
originated in the legislature, where it must secure more than a mere
majority--perhaps a three fifths or two thirds vote--in order to pass;
in some states it must be adopted by two successive legislatures,
perhaps by two thirds of one and three fourths of the next; in some
states not more than one amendment can be brought before the same
legislature; in some it is provided that amendments must not be
submitted to the people oftener than once in five years; and so
on. After the amendment has at length made its way through the
legislature, it must be ratified by a vote of the people at the next
general election. Another way to get a constitution amended is to call
a convention for that purpose. In order to call a convention, it is
usually necessary to obtain a two thirds vote in the legislature; but
in some states the legislature is required at stated intervals to
submit to the people the question of holding such a convention, as
in New Hampshire every seven years; in Iowa, every ten years; in
Michigan, every sixteen years; in New York, Ohio, Maryland, and
Virginia, every twenty years.[7] A convention is a representative
body elected by the people to meet at some specified time and
place for some specified purpose, and its existence ends with the
accomplishment of that purpose. It is in this occasional character
that the convention differs from an ordinary legislative assembly.
With such elaborate checks against hasty action, it is to be presumed
that if a law can be once embodied in a state constitution, it will be
likely to have some permanence. Moreover, a direct vote by the people
gives a weightier sanction to a law than a vote in the legislature.
There is also, no doubt, a disposition to distrust legislatures and in
some measure do their work for them by direct popular enactment. For
such reasons some recent state constitutions have come almost to
resemble bodies of statutes. Mr. Woodrow Wilson suggestively compares
this kind of popular legislation with the Swiss practice known as the
_Referendum_; in most of the Swiss cantons an important act of
the legislature does not acquire the force of law until it has been
_referred_ to the people and voted on by them. "The objections
to the, _referendum_,"  says Mr. Wilson, "are, of course, that it
assumes a discriminating judgment and a fullness of information on the
part of the people touching questions of public policy which they do
not often possess, and that it lowers the sense of responsibility on
the part of legislators."  [8] Another serious objection to our recent
practice is that it tends to confuse the very valuable distinction
between a constitution and a body of statutes, to necessitate a
frequent revision of constitutions, and to increase the cumbrousness
of law-making. It would, however, be premature at the present time to
pronounce confidently upon a practice of such recent origin. It is
clear that its tendency is extremely democratic, and that it implies
a high standard of general intelligence and independence among the
people. If the evils of the practice are found to outweigh its
benefits, it will doubtless fall into disfavour.

[Footnote 7: See Henry Hitchcock's admirable monograph, _American
State Constitutions_, p. 19.]

[Footnote 8: Wilson. The State, p. 490.]

QUESTIONS ON THE TEXT. What is to be said with regard to the following
topics?

I. A power above the legislature:--

a. The constitution.
b. The relation of the courts to laws that violate the constitution.
c. The importance of this relation.
d. The American origin of the written constitution.

2. The germs of the idea of a written constitution:--

a. The theory of a "social contract."
b. The objection to this theory.
c. Roman origin of the idea of contract.

3. Mediaeval charters:--

a. The charter of a town.
b. The word _charter_.
c. Magna Charta.
d. The difference between a charter and a constitution.
e. The form of Magna Charta as contrasted with its essential nature.

4. Documents somewhat resembling written constitutions:--

a. The Declaration of Rights.
b. The Bill of Rights.

5. The foreshadowing of the American idea of written constitutions:--

a. Two conditions especially notable in England in the seventeenth
century.
b. The influence of these conditions on popular views of government.
c. The "Instrument of Government."
d. Sir Harry Vane's proposition.
e. Why allude to Vane's scheme when nothing came of it?

6. Early suggestions of written constitutions in America:--

a. The compact on the Mayflower.
b. Wherein the compact fell short of a written constitution.
c. The "Fundamental Orders of Connecticut."

7. The development of the colonial charter into a written constitution:--

a. The limitation of the powers of colonial assemblies.
b. The decision of questions relating to the transgression of a charter
by a colonial legislature.
c. The colonial assembly as contrasted with the House of
Commons.
d. The difference between the written constitution and the
charter for which it was substituted.
e. The readiness of the people to adopt written constitutions.

8. The extensive development of the written constitution in
some states:--

a. The simplicity of the earlier constitutions.
b. Illustrations of the legislative tendencies of later constitutions.
c. The motive for such extension of a constitution.
d. The difficulty of amending a constitution.
e. The legislative method of amendment.
f. The convention method of amendment.
g. The presumed advantage of embodying laws in the constitution.
h. A comparison with the Swiss Referendum.
i. Objections to the Swiss Referendum.
j. Other objections to the practice of putting laws into the
constitution.


SUGGESTIVE QUESTIONS AND DIRECTIONS.

1. Do you belong to any society that has a constitution? Has the society
rules apart from the constitution? Which may be changed the more
readily? Why not put all the rules into the constitution?

2. Read the constitution of your state in part or in full. Give some
account of its principal divisions, of the topics it deals with, and its
magnitude or fullness. Are there any amendments? If so, mention two or
three, and give the reasons for their adoption. Is there any declaration
of rights in it? If so, what are some of the rights declared, and whose
are they said to be?

3. Where is the original of your state constitution kept? What sort of
looking document do you suppose it to be? Where would you look for a
copy of it? If a question arises in any court about the interpretation
of the constitution, must the original be produced to settle the wording
of the document?

4. Has any effort been made in your state to put into the constitution
matters that have previously been subjects of legislative action? If so,
give an account of the effort, and the public attitude towards it.

5. Which is preferable,--a constitution that commands the approval of
the people as a whole or that which has the support of a dominant
political party only?

6. Suppose it is your personal conviction that a law is
unconstitutional, may you disregard it? What consequences might ensue
from such disregard?

7. May people honestly and amicably differ about the interpretation of
the constitution or of a law, in a particular case? If important
interests are dependent on the interpretation, how can the true one be
found out? Does a lawyer's opinion settle the interpretation? What value
has such an opinion? Where must people go for authoritative and final
interpretations of the laws? Can they get such interpretations by simply
asking for them?

8. The constitution of New Hampshire provides that when the governor
cannot discharge the duties of his office, the president of the senate
shall assume them. During the severe sickness of a governor recently,
the president of the senate hesitated to act in his stead; it was not
clear that the situation was grave enough to warrant such a course.
Accordingly the attorney-general of the state brought an action against
the president of the senate for not doing his duty; the court considered
the situation, decided against the president of the senate, and ordered
him to become acting governor. Why was this suit necessary? Was it
conducted in a hostile spirit? Wherein did the decision help the state?
Wherein did it help the defendant? Wherein may it possibly prove helpful
in the future history of the state?

9. Mention particular things that the governor, the legislature, and the
judiciary of your state have done or may do. Then find the section or
clause or wording in your state constitution that gives authority for
each of these things. For example, read the particular part that
authorizes your legislature:--

a. To incorporate a city.
b. To compel children to attend school.
c. To buy uniforms for a regiment of soldiers.
d. To establish a death penalty.
e. To send a committee abroad to study a system of waterworks.

10. Trace the authority of a school-teacher, a policeman, a selectman, a
mayor, or of any public officer, back to some part of your constitution.

11. Mention any parts of your constitution that seem general and
somewhat indefinite, and that admit, therefore, of much freedom in
interpretation.

12. Show how the people are, in one aspect, subordinate to the
constitution; in another, superior to it.



BIBLIOGRAPHICAL NOTE.

Written Constitutions.--Very little has been written or published with
reference to the history of the development of the idea of a written
constitution. The student will find some suggestive hints in Hannis
Taylor's _Origin and Growth of the English Constitution_, vol. i,
Boston, 1889. See Henry Hitchcock's _American State Constitutions; a
Study of their Growth_, N.Y., 1887, a learned and valuable essay. See
also _J.H.U. Studies_, I., xi., Alexander Johnston, _The Genesis of a
New England State (Connecticut)_; III., ix.-x., Horace Davis, _American
Constitutions_; also Preston's _Documents Illustrative of American
History_, 1606-1863, N.Y., 1886; Stubbs, _Select Charters and other
Illustrations of English Constitutional History_, Oxford, 1870;
Gardiner's _Constitutional Documents of the Puritan Revolution_, Oxford,
1888.




CHAPTER VIII.

THE FEDERAL UNION.


Section 1. _Origin of the Federal Union._

Having now sketched the origin and nature of written constitutions, we
are prepared to understand how by means of such a document the
government of our Federal Union was called into existence. We have
already described so much of the civil government in operation in the
United States that this account can be made much more concise than if we
had started at the top instead of the bottom and begun to portray our
national government before saying a word about states and counties and
towns. Bit by bit the general theory of American self-government has
already been set before the reader. We have now to observe, in
conclusion, what a magnificent piece of constructive work has been
performed in accordance with that general theory. We have to observe the
building up of a vast empire out of strictly self-governing elements.

[Sidenote: English institutions in all the colonies.]
There was always one important circumstance in favour of the union of
the thirteen American colonies into a federal nation. The inhabitants
were all substantially one people. It is true that in some of the
colonies there were a good many persons not of English ancestry, but
the English type absorbed and assimilated everything else.

All spoke the English language, all had English institutions. Except
the development of the written constitution, every bit of civil
government described in the preceding pages came to America directly
from England, and not a bit of it from any other country, unless by
being first filtered through England. Our institutions were as English
as our speech. It was therefore comparatively easy for people in one
colony to understand people in another, not only as to their words but
as to their political ideas. Moreover, during the first half of the
eighteenth century, the common danger from the aggressive French
enemy on the north and west went far toward awakening in the thirteen
colonies a common interest. And after the French enemy had been
removed, the assertion by parliament of its alleged right to tax the
Americans threatened all the thirteen legislatures at once, and thus
in fact drove the colonies into a kind of federal union.

[Sidenote: The New England confederacy (1643-84).]
[Sidenote: Albany Congress(1754).]
[Sidenote: Stamp Act Congress (1765).]
Confederations among states have generally owed their origin, in
the first instance, to military necessities. The earliest league in
America, among white people at least, was the confederacy of New
England colonies formed in 1643, chiefly for defence against the
Indians. It was finally dissolved amid the troubles of 1684, when the
first government of Massachusetts was overthrown. Along the Atlantic
coast the northern and the southern colonies were for some time
distinct groups, separated by the unsettled portion of the central
zone. The settlement of Pennsylvania, beginning in 1681, filled this
gap and made the colonies continuous from the French frontier of
Canada to the Spanish frontier of Florida. The danger from France
began to be clearly apprehended after 1689, and in 1698 one of the
earliest plans of union was proposed by William Penn. In 1754, just
as the final struggle with France was about to begin, there came
Franklin's famous plan for a permanent federal union; and this plan
was laid before a congress assembled at Albany for renewing the
alliances with the Six Nations.[1] Only seven colonies were
represented in this congress. Observe the word "congress." If it
had been a legislative body it would more likely have been called
a "parliament." But of course it was nothing of the sort. It was a
diplomatic body, composed of delegates representing state governments,
like European congresses,--like the Congress of Berlin, for example,
which tried to adjust the Eastern Question in 1878. Eleven years after
the Albany Congress, upon the news that parliament had passed the
Stamp Act, a congress of nine colonies assembled at New York in
October, 1765, to take action thereon.

[Footnote 1: Franklin's plan was afterward submitted to the several
legislatures of the colonies, and was everywhere rejected because the
need for union was nowhere strongly felt by the people.]

[Sidenote: Committees of Correspondence (1772-75).]
Nine years elapsed without another congress. Meanwhile the political
excitement, with occasional lulls, went on increasing, and some sort
of cooperation between the colonial governments became habitual. In
1768, after parliament had passed the Townshend revenue acts, there
was no congress, but Massachusetts sent a circular letter to the other
colonies, inviting them to cooperate in measures of resistance, and
the other colonies responded favourably. In 1772, as we have seen,
committees of correspondence between the towns of Massachusetts acted
as a sort of provisional government for the commonwealth. In 1773
Dabney Carr, of Virginia, enlarged upon this idea, and committees of
correspondence were forthwith instituted between the several colonies.
Thus the habit of acting in concert began to be formed. In 1774,
after parliament had passed an act overthrowing the government of
Massachusetts, along with other offensive measures, a congress
assembled in September at Philadelphia, the city most centrally
situated as well as the largest. If the remonstrances adopted at this
congress had been heeded by the British government, and peace had
followed, this congress would probably have been as temporary an
affair as its predecessors; people would probably have waited until
overtaken by some other emergency. But inasmuch as war followed,
the congress assembled again in May, 1775, and thereafter became
practically a permanent institution until it died of old age with the
year 1788.


[Sidenote: Continental Congress (1774-1789).]
This congress was called "continental" to distinguish it from the
"provincial congresses" held in several of the colonies at about the
same time. The thirteen colonies were indeed but a narrow strip on the
edge of a vast and in large part unexplored continent, but the word
"continental" was convenient for distinguishing between the whole
confederacy and its several members.

[Sidenote: The several states were never at any time sovereign
states.]
[Sidenote: The Articles of Confederation]
The Continental Congress began to exercise a certain amount of
directive authority from the time of its first meeting in 1774. Such
authority as it had arose simply from the fact that it represented an
agreement on the part of the several governments to pursue a certain
line of policy. It was a diplomatic and executive, but scarcely yet a
legislative body. Nevertheless it was the visible symbol of a kind of
union between the states. There never was a time when any one of the
original states exercised singly the full powers of sovereignty. Not
one of them was ever a small sovereign state like Denmark or Portugal.
As they acted together under the common direction of the British
government in 1759, the year of Quebec, so they acted together under
the common direction of that revolutionary body, the Continental
Congress, in 1775, the year of Bunker Hill. In that year a
"continental army" was organized in the name of the "United Colonies."
In the following year, when independence was declared, it was done
by the concerted action of all the colonies; and at the same time a
committee was appointed by Congress to draw up a written constitution.
This constitution, known as the "Articles or Confederation," was
submitted to Congress in the autumn of 1777, and was sent to the
several states to be ratified. A unanimous ratification was necessary,
and it was not until March 1781, that unanimity was secured and the
articles adopted.

Meanwhile the Revolutionary War had advanced into its last stages,
having been carried on from the outset under the general direction
of the Continental Congress. When reading about this period of our
history, the student must be careful not to be misled by the name
"congress" into reasoning as if there were any resemblance whatever
between that body and the congress which was created by our Federal
Constitution. The Continental Congress was not the parent of our
Federal Congress; the former died without offspring, and the latter
had a very different origin, as we shall soon see. The former simply
bequeathed to the latter a name, that was all.

[Sidenote: Nature and powers of the Continental Congress]
The Continental Congress was an assembly of delegates from the thirteen
states, which from 1774 to 1783 held its sessions at Philadelphia.[2] It
owned no federal property, not even the house in which it assembled, and
after it had been turned out of doors by a mob of drunken soldiers in
June, 1783, it flitted about from place to place, sitting now at
Trenton, now at Annapolis, and finally at New York.[3] Each state sent
to it as many delegates as it chose, though after the adoption of the
articles no state could send less than two or more than seven. Each
state had one vote, and it took nine votes, or two thirds of the whole,
to carry any measure of importance. One of the delegates was chosen
president or chairman of the congress, and this position was one of
great dignity and considerable influence, but it was not essentially
different from the position, of any of the other delegates. There were
no distinct executive officers. Important executive matters were at
first assigned to committees, such as the Finance Committee and the
Board of War, though at the most trying time the finance committee was a
committee of one, in the person of Robert Morris, who was commonly
called the Financier. The work of the finance committee was chiefly
trying to solve the problem of paying bills without spending money, for
there was seldom any money to spend. Congress could not tax the people
or recruit the army. When it wanted money or troops, it could only ask
the state governments for them; and generally it got from a fifth to a
fourth part of the troops needed, but of money a far smaller proportion.
Sometimes it borrowed money from Holland or France, but often its only
resource was to issue paper promises to pay, or the so-called
Continental paper money. There were no federal courts,[4] nor marshals
to execute federal decrees. Congress might issue orders, but it had no
means of compelling obedience.

[Footnote 2: Except for a few days in December, 1776, when it fled
to Baltimore; and again from September, 1777, to June, 1778, when
Philadelphia was in possession of the British; during that interval
Congress held its meetings at York in Pennsylvania.]

[Footnote 3: See my _Critical Period of American History_, pp.
112, 271, 306]

[Footnote 5: Except the "Court of Appeals in Cases of Capture," for
an admirable account of which see Jameson's _Essays in the
Constitutional History of the United States_, pp. 1-45.]

[Sidenote: It was not fully endowed with sovereignty.]
The Continental Congress was therefore not in the full sense a
sovereign body. A government is not really a government until it can
impose taxes and thus command the money needful for keeping it in
existence. Nevertheless the Congress exercised some of the most
indisputable functions of sovereignty. "It declared the independence
of the United States; it contracted an offensive and defensive
alliance with France; it raised and organized a Continental army; it
borrowed large sums of money, and pledged what the lenders understood
to be the national credit for their repayment; it issued an
inconvertible paper currency, granted letters of marque, and built a
navy." [6] Finally it ratified a treaty of peace with Great Britain. So
that the Congress was really, in many respects, and in the eyes of the
world at large, a sovereign body. Time soon showed that the continued
exercise of such powers was not compatible with the absence of the
power to tax the people. In truth the situation of the Continental
Congress was an illogical situation. In the effort of throwing off
the sovereignty of Great Britain, the people of these states were
constructing a federal union faster than they realized. Their theory
of the situation did not keep pace with the facts, and their first
attempt to embody their theory, in the Articles of Confederation, was
not unnaturally a failure.


[Footnote 6: _Critical Period_, p. 93.]

[Sidenote: Decline of the Continental Congress.]
At first the powers of the Congress were vague. They were what are
called "implied war powers;" that is to say, the Congress had a war
with Great Britain on its hands, and must be supposed to have power to
do whatever was necessary to bring the war to a successful conclusion.
At first, too, when it had only begun to issue paper money, there
was a momentary feeling of prosperity. Military success added to its
appearance of strength, and the reputation of the Congress reached its
high water mark early in 1778, after the capture of Burgoyne's army
and the making of the alliance with France. After that time, with the
weary prolonging of the war, the increase of the public debt, and the
collapse of the paper currency, its reputation steadily declined.
There was also much work to be done in reorganizing the state
governments, and this kept at home in the state legislatures many of
the ablest men who would otherwise have been sent to the Congress.
Thus in point of intellectual capacity the latter body was distinctly
inferior in 1783 to what it had been when first assembled nine years
earlier.

[Sidenote: Anarchical tendencies.]
The arrival of peace did not help the Congress, but made matters worse.
When the absolute necessity of presenting a united front to the common
enemy was removed, the weakness of the union was shown in many
ways that were alarming. The _sentiment_ of union was weak. In spite of
the community in language and institutions, which was so favourable to
union, the people of the several states had many local prejudices which
tended to destroy the union in its infancy. A man was quicker to
remember that he was a New Yorker or a Massachusetts man than that he
was an American and a citizen of the United States. Neighbouring states
levied custom-house duties against one another, or refused to admit into
their markets each other's produce, or had quarrels about boundaries
which went to the verge of war. Things grew worse every year until by
the autumn of 1786, when the Congress was quite bankrupt and most of the
states nearly so, when threats of secession were heard both in New
England and in the South, when there were riots in several states and
Massachusetts was engaged in suppressing armed rebellion, when people in
Europe were beginning to ask whether we were more likely to be seized
upon by France or reconquered piecemeal by Great Britain, it came to be
thought necessary to make some kind of a change.

[Sidenote: The Federal Convention (1787).]

Men were most unwillingly brought to this conclusion, because they were
used to their state assemblies and not afraid of them, but they were
afraid of increasing the powers of any government superior to the states,
lest they should thus create an unmanageable tyranny. They believed that
even anarchy, though a dreadful evil, is not so dreadful as despotism,
and for this view there is much to be said. After no end of trouble a
convention was at length got together at Philadelphia in May, 1787, and
after four months of work with closed doors, it was able to offer to the
country the new Federal Constitution. Both in its character and in
the work which It did, this Federal Convention, over which Washington
presided, and of which Franklin, Madison, and Hamilton were members,
was one of the most remarkable deliberative bodies known to history.

We have seen that the fundamental weakness of the Continental Congress
lay in the fact that it could not tax the people. Hence although it
could for a time exert other high functions of sovereignty, it could
only do so while money was supplied to it from other sources than
taxation; from contributions made by the states in answer to its
"requisitions," from foreign loans, and from a paper currency. But such
resources could not last long. It was like a man's trying to live upon
his own promissory notes and upon gifts and unsecured loans from his
friends. When the supply of money was exhausted, the Congress soon found
that it could no longer comport itself as a sovereign power; it could
not preserve order at home, and the situation abroad may be illustrated
by the fact that George III. kept garrisons in several of our
northwestern frontier towns and would not send a minister to the United
States. This example shows that, among the sovereign powers of a
government, the power of taxation is the fundamental one upon which all
the others depend. Nothing can go on without money.

But the people of the several states would never consent to grant the
power of taxation, to such a body as the Continental Congress, in
which they were not represented. The Congress was not a legislature,
but a diplomatic body; it did not represent the people, but the state
governments; and a large state like Pennsylvania had no more weight in
it than a little state like Delaware. If there was to be any central
assembly for the whole union, endowed with the power of taxation,
it must be an assembly representing the American people just as the
assembly of a single state represented the people of the state.

As soon as this point became clear, it was seen to be necessary to