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might think fit, passed the narrow and some- The AMERICAN UNION is placed on the what indistinct line which distinguishes a limit which separates a confederacy from close confederacy from a loose incorpora- an incorporation. It is either the strictest tion. It would have enabled the fourteen alliance of independent states, or the loosest representative cantons, with the concur- aggregation of subordinate municipalities. rence of only one of the eight pure democracies, to abolish the democratic institutions of the remaining seven; and to drag all those who opposed them before the Federal tribunal, to be punished for treason or rebellion. But though we differ in this respect from the eminent men who were the framers of the project-though we think that, if it had been adopted, Switzerland would in theory have ceased to be a mere confederacy of independent states, we agree with them in believing that the practical result would have been beneficial. It did not alarm the fears or hurt the pride of the smaller cantons, by an inequality of votes. It gave few new powers to the Diet, and those which it gave were not likely to excite much jealousy. It left to the cantons nearly the whole management of their internal affairs, merely preventing their exercising their power to the injury of themselves and of their neighbors. As respects their relations to one another, it subjected them to no restrictions except those which are necessary to give law the predominance over force, and to repress crimes which the cantonal governments are unable to prevent or to punish. If a federal tribunal had existed, it is probable that the excesses of last spring would not have occurred. The misguided invaders of Luzern knew, that if they were beaten, their own cantons afforded them retreats. Few of them would have ventured on such an enterprise, if there had been a third party, bound by duty, and armed with power, to punish it.

Perhaps the most questionable provision was that which enabled a majority of fifteen cantons to alter the Pacte as they might think proper. Some power of alteration beyond that which necessarily belongs to all contracting parties when unanimous, is wanting; but we are inclined to think, that either the necessary majority ought to have been greater, eighteen, perhaps, or even twenty votes, instead of fifteen; or that certain matters, such as the constitutions of the cantons, ought to have been excluded from the power of alteration by a majority. There is little reason, however, to believe that this part of the project would have occasioned real inconvenience; and, as sincere friends to Switzerland, we must regret that it was abandoned. Vol. VII.-No. III.

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The decision whether it belongs to the one class or to the other, leads to important results. If the Union be an incorporation-if the people of the United States form one nation, each individual citizen owes allegiance to that nation. A combination among a portion of the citizens to withdraw from that allegiance, and either to form themselves into an independent sovereignty, or to connect themselves with any other sovereign power, would be a treasonable conspiracy— a conspiracy for which every person engaged in it would be personally responsible. On the other hand, if the Union be a mere alliance,-if the states of which it is constituted are distinct nations, each sovereign and independent, though bound to the others by treaty,-there is no national authority, beyond the authority of each state, to which allegiance can be due. If any one shall think fit to separate from the Union, it may do so. The seceding state will be guilty of a breach of treaty; the remainder of the confederacy will be entitled to exercise against it the rights of war, and, if successful, the rights of conquest, but cannot treat any of its subjects as criminals. In fact, the subjects of the seceding states would be legally criminal if they refused to obey its orders, though in opposition to those of the federal authority. Nor is this a mere speculative enquiry, like the questions as to the grounds on which every supreme governinent is entitled to obedience. The doubt here raised is, which is the supreme govern ment? In case of conflict between the federal and local authorities, to which of them is obedience due? As this is a question on which the most eminent statesmen and lawyers in America irreconcilably differ,—on which even the framers of the Union were not agreed,-it would be presumptuous in us if we were to give an opinion, without at least supporting it by the facts and arguments which have convinced us.

For this purpose, we must consider not merely the articles of Union, but the previous history of the people by whom they were adopted. We say the people, for the inhabitants of the United States have always been one people. The citizen of one state never was an alien in another. Under the British rule, all were fellow subjects, all obeyed the same sovereign, all spoke the

The Congress which met the next year, though similarly appointed, certainly adopted the Federal instead of the national principle. One of their first acts was to frame the Articles of Confederation of the 20th of May 1775. By these articles the united colonies entered into a firm league and friendship with each other, to cease on reconciliation with Great Britain, but on failure thereof, to be perpetual. Each colony to retain its own laws and constitutions, or to amend them as it might think fit: To send annually delegates to Congress in the proportion of one to every five thousand polls: Congress to meet in each colony by rotation: Each delegate to have a vote, and, if necessarily absent, by proxy: One half to be a quorum: Congress to determine on foreign relations, reconciliation with Great Britain, settling disputes between colony and colony, the planting new colonies, general commerce and currency, and military defence; The expense to be supplied by each colony, in proportion to its male polls between sixteen and sixty years, by taxes to be raised and levied according to its own laws; Congress to be at liberty to propose amendments, binding when approved of by a majority of the colonial legislatures.

same language, all looked back to the same! ancestors, nearly all professed the same religion; and, what is perhaps the most important link, all were governed by the same common law. The ruling power in all was a house of representatives elected by a very wide suffrage, a council, and a governor. Besides this general resemblance between colony and colony, the different classes in each colony were little distinguished by manners, wealth, or habits. In the British Islands, the English, Scotch, Welsh, and Irish, have each a distinct national character, which is again modified by the accidents of rank, wealth, trade, and profession. In the colonies, nobody was poor, and nobody was very rich; nobody was grossly ignorant, and very few were highly educated. The only rank was official, and therefore temporary; and it is probable that, throughout that vast territory, there was a nearer approach to equality, a flatter level, both material and personal, than has ever existed before, or will exist again in a numerous people; and even now, when many causes of inequality have been at work for seventy years, M. de Tocqueville remarks, that there is more difference in civilization between Normandy and Brittany, which are united by a bridge, than there is between Maine and Georgia, which are separated by fifteen degrees of latitude. When the weakness of the British Parliament, yielding to the folly and obstinacy of the British King, drove these prosperous and loyal colonies to resistance, it was not the states but the people who took The Congress of 1776 was equally Fedthe lead. The delegates who met in Con-eral. It declared the United Colonies to gress in 1774, were appointed not by the be free and independent states, and as such legislature but by the people. In nearly to have full power to levy war, conclude their first act, their petition to the Crown peace, contract alliances, establish comof November 1774, they describe them-merce, and do all other acts which indeselves as his Majesty's faithful subjects of pendent states may of right do.' It is rethe colonies of New Hampshire, &c., on markable that not one of the sovereign behalf of themselves and of the inhabit- powers thus enumerated had, at that time, ants of those colonies; and they ask redress been exercised; or has since been exer' in the name of the faithful people of Ame-cised by any one of the states which here rica.' They immediately assumed pow-declared themselves to be independent. ers which the State legislatures were inca- On the 4th of October 1776, the Conpable of granting to them, and which could gress signed new Articles of confederacy. have proceeded only from a people restored They differed from those of 1775 principalby revolution to its original right of self-ly in the following points. First, the sevegovernment. Some of their enactments, ral states are prohibited from entertaining indeed, could not have been executed even any relations with foreign powers, or conby a revolutionary despotism. They forbade tracting any alliances between one another the importation of British commodities, and except by consent of Congress. Congress then enacted that all manufactures should to meet always at Philadelphia, to consist be sold at a reasonable price, so that no of delegates sent by the different states, undue advantage shall be taken of a scarci- and revocable at will; the delegates of ty of goods.

This rude sketch of a Confederacy was not ratified by the people or by the provincial legislatures, and does not appear to have been acted on. Many writers on the history of the American constitution, among whom are Kent and Story, scarcely allude to it.

each state to have only a single vote. No let in destructive elements, which kept it delegate to be appointed for more than always on the verge of dissolution. As a three years out of six, or to hold any paid general rule, Congress acted not on indioffice, federal or provincial. For all im-viduals but on States. It could require portant questions the concurrence of nine supplies of men and of money from the out of the thirteen states to be necessary; members of the Union, but it was forced and for all others, except a mere adjourn- to leave to the local legislatures the task of ment from day to day, the concurrence of raising them. If they chose to enlist their seven. Lastly, the Articles of confederacy men only for a year, or even for a less peare to be altered only by the unanimous riod; if they neglected to pay, or to clothe, vote of Congress, ratified by the legislature or to arm them; if they raised their supof each of the states.

The Congress having, in the Declaration of Independence, admitted the sovereignty of the states, its members acted in the preparation of this treaty merely as ambassadors, and not even as plenipotentiaries. As soon as it was completed it was sent to the states for ratification; and it was not until 1781, nearly at the close of the revolutionary war, that the final ratification was obtained.

On the whole, we are inclined to think the confederation of 1775 rather less objectionable than that of 1776. A smaller quorum was required, and a bare majority of that quorum was sufficient. Under the confederation of 1776 the mere absence of the delegates from six states often paralysed the whole Union; and even when those of nine were assembled, not merely the opposition of a single state, but its refusal to vote, or the neutralization of its vote by a difference of opinion amongst its delegates, prevented the requisite concurrence. The exclusion from Congress of persons holding office, and the refusal of re-eligibility, mark the progress of democratic jealousy; and the declaration, that the terms of confederation should not be altered except by unanimous consent, made them in fact, as far as words could make them so, unalterable; since every compact whatever is alterable by the unanimous consent of all the parties to it.

The United States may be said to have been bound by this treaty for twelve years, the Articles of Confederation having been proposed by Congress in 1776, and from that time acted on, though not adopted, by a majority of the States, until the summer of 1778; and the present constitution, which superseded them, having obtained a similar ratification in the summer of 1788. Of these, six were war, terminated by the peace of 1782. While the contest was raging, the confederacy was pressed together by England on one side and France on the other. But the looseness of the bond

plies of money by issuing paper without providing for its convertibility, or limiting its amount; or if, as was frequently the case, they neglected altogether to comply with the requisitions of the central authority, that authority was powerless. The defaulting state was sovereign. It had committed a breach of treaty, for which the only remedy was war; and the attempt to apply that remedy would have produced immediate ruin to the whole Confederacy.

On looking through Washington's correspondence it will be seen, that not a single year passed in which he did not fully expect, that unless the conduct of the States was totally altered, or France would supply the money and the troops which they neglected to furnish, the resistance to Great Britain must cease. In a letter to Congress, dated the 20th of August 1780, he thus condenses the history of the first five years of the war :-'If we had formed a permanent army, we never should have had to retreat, with a handful of men, across the Delaware, in 1776, trembling for the fate of America, which nothing but the infatuation of the enemy could have saved; we should not have remained all the succeeding winter at their mercy, with sometimes scarcely a sufficient number of men to mount the ordinary guards, liable at any moment to be dissipated if they had only thought proper to march against us, (1777;) we should not have been under the necessity of fightingat Brandywine with an unequal number of raw troops, and afterwards of seeing Philadelphia fall a prey to a victorious enemy; we should not have been at Valley Forge with less than half the force of the enemy, destitute of every thing, in a situation neither to resist nor to retire (1778;) we should not have seen New-York left with a handful of men, yet an overmatch for the main army of these States (1779;) we should not have found ourselves this spring (1780) so weak as to be insulted by 5000 men, unable to protect our baggage and

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magazines our security depending on a want of enterprise in the enemy; we should not have been, during a greater part of the war, indebted for our safety to their inactivity. This was no ebullition of temporary disappointment. Washington's contemporary letters paint, in still darker colors, the danger to which he was exposed through the weakness of Congress, and misconduct of the States.

In the latter part of 1776, for instance when nothing but the Delaware was between him and the superior army of General Howe, every letter contains anticipations of immediate defeat. Thus, on the 12th of December, he writes-'There can be no doubt that they (the enemy) will pass the Delaware as soon as possible. Happy should I be if I could see the means of preventing them. At present I confess I do not.'t A week after, on the 20th, he says 'I think the design of General Howe is to possess himself of Philadelphia, and I do not see what is to prevent him, as ten days more will put an end to the existence of our army.'‡

As I cannot expect our situation to be long a secret to the enemy, there is no doubt that they will take advantage of our weakness." And to Congress he writes, "the fluctuating state of an army composed chiefly of militia, bids fair to reduce us to the situation in which we were some time ago, that is, of having scarcely any army at all. One of the Philadelphia battalions goes home today, the other two remain a few days longer by courtesy. The time for which Miflin's brigade came out is expired, and they stay from day to day by solicitation, their number much reduced by desertions.'t A week after, on the 26th, he says, 'the enemy must be ignorant of our numbers, or have not horses for their artillery, or they would not leave us undisturbed.' Soon after, on the 2d of March, he estimates General Howe's force at 10,000 men, well disciplined and well appointed; his own at 4000, all raw, badly officered, and under no government; infers an attack to be imminent, and fears that, if it take place while the relative condition of the two armies is unaltered, 'the game is up.' On the 12th of April, he It was in these desperate circumstances, writes to his brother, 'To my great surprise on the 25th of December, when his army we are still in a calm, how long it will, how was within four days of disbanding, that long it can remain, is beyond my skill to Washington ventured on the almost des- determine. That it has continued much perate expedient of crossing the river at beyond my expectation, is certain. But to Trenton, with his handful of ill-disciplined expect that General Howe will not avail troops, and attacking that army before himself of our weak state, is to say that he which he had been for three months retreat- is unfit for the trust reposed in him-the ing. In his confidential orders to the offi- campaign will be opened, and without men cers who were to take part in the move on our side. The ridiculous and inconment, he does not palliate its danger: but sistent orders given by the executive pownecessity,' he adds, 'dire necessity, willers in some of the states, and even by the nay, must-justify an attack.' The Brit- officers therein, are scarcely to be thought ish general was found as unfit for defen- of with patience. It would seem as if to sive as he had been for offensive war. harrass the troops and delay their juncture, The apparently hopeless enterprise suc- were the ends in view.' The calm, howceeded; the British army retreated almost ever, continued till the end of June, when in panic to Brunswick and New-York, and General Howe, having now allowed WashWashington intrenched himself in Morris-ington to collect the appearance of an army, town, at about thirty miles' distance. He marched a few miles towards him, and then did not feel himself, however, much re- returned to Staten Island and New-York. lieved by his victory.

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Not three weeks after, on the 19th of January 1777, he tells the Pennsylvanian authorities, that the army is so much reduced since we left Trenton, and the many that will be discharged in a few weeks will so weaken our forces, that it will be impossible to oppose the enemy with success.

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Washington considered this retreat as a
peculiar mark of Providence.' At length,
on the 23d of July, he embarked his troops,
according to Washington's expectations and
fears, to proceed up the North River, and
join General Burgoyne in his advance from
Canada-but really to go to the south and
invade Pennsylvania by the Chesapeak.

Sparks' Washington, Vol. iv. p. 282.
+ Ibid., 283.
|| Ibid., 387.
Ibid., 301.
¶ Ibid., 482.
§ Ibid., 314.

Washington proceeded by land to meet him, marched through Philadelphia on the 24th of August, was beaten at Brandywine on the 11th of September, and again at Germantown on the 4th of October; and in the beginning of December, intrenched himself at Valley Forge, on the Schuylkill, about twenty miles from the British headquarters at Philadelphia.

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never,' he says, 'has been a stage in the war in which the dissatisfaction has been so general or so alarming. Some States furnish their troops pretty amply, others provide them with some necessaries, others do little or nothing at all. The officers and men compare circumstances. The officers resign, and we have now scarcely a sufficient number left to take care even of the In these positions the two armies remain- fragments of corps which remain. The ed till the middle of the following July. So men have not this resource; they murmur similar was the sequence of events, that and brood over their discontent." On the Washington's letters from Valley Forge, are 28th of May he says, 'Unless a system often almost copies of those written in the very different from that which has long prepreceding year from Morristown. Thus, on vailed be immediately adopted throughout the 23d of December, he tells Congress, the States, our affairs must soon become that unless some great and capital change desperate, beyond the possibility of recovsuddenly takes place, his army must inev-ery. Indeed, I have almost ceased to itably be reduced to one or other of these three things,-starve, dissolve, or disperse; that three or four days of bad weather would prove their destruction; that out of his whole force of 11,000 men, 2898 are in camp unfit for duty, because they are barefoot and otherwise naked, besides a number confined in the hospitals for want of shoes, and others in the farmhouses on the same account, and that for want of blankets many are obliged to sit up all night by fires. In the following February, one of his officers, General Varnum, says, the situation of the camp is such, that, in all human probability, the army must shortly dissolve.'t Washington himself, writing at the same time, anticipates a general mutiny and desertion. In the March following, he desires the Congress to estimate the temper of the army from the circumstance, that within the last six months between two and three hundred officers had resigned their commissions; and that the supplies of men, said to have been forwarded to him from Virginia and North Carolina, from desertion and other causes, had dwindled to nothing. On the 10th of April he complains to Congress, that, from want of proper provisions, the officers are mouldering away; that scarce a day passes without a resignation of two or three commissions; that those who go on furlough do not return; and that no order, regularity, or care of the men, or of the public property, prevails.||

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No such change, however, took place; and a few months after we find him resting solely on the hope of assistance from France. One of two things,' he writes to Franklin on the 11th of October, 1780, is essential to us,-peace, or the most vigorous aid of our allies.' On the 20th of November he says, 'Congress will deceive themselves if they imagine that the army can rub through a second campaign as the last.' On the 7th of January, 1781, he informs the States, that under the existing system it will be vain to expect from the troops another campaign. On the 15th of January, he states to Colonel Laurens his belief, that without an immediate and ample succor in money, though the States may make a feeble and expiring effort, the next campaign will in all probability be their last.¶ On the 9th of April he tells Laurens that the predictions of his last letter are becoming verified. We cannot,' he says, 'transport provisions to the army, because we cannot pay the teamsters. Our troops are approaching fast to nakedness, our hospitals are without medicines, our sick without nutriment, our works at a stand, and the artificers disbanding; in a word, we are at the end of our tether. Without foreign aid our present force, which is but the remnant of an army, cannot be kept together this campaign, much less will it be in readiness for another.'**

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The money thus earnestly implored was obtained, but the next year the distress had returned. On the 4th of May

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