by which among other articles it was agreed, that neither of the two parties should conclude either truce or peace with Great Britain without the formal consent of the other first obtained; and whereby they mutually engaged not to lay down their arms until the independence of the United States should be formally or tacitly assured by the treaty or treaties which should terminate the war. Whereas in these confederacies of which we are now speaking, the contrary is observable; they being established with this design, that the several states shall forever link their safety one with another, and, in order to this mutual defense, shall engage themselves not to exercise certain parts of their sovereign power, otherwise than by a common agreement, and approbation. Such were the stipulations, among others, contained in the articles of confederation and perpetual union between the American states, by which it was agreed, that no state should without the consent of the United States in congress assembled send any embassy to, or receive any embassy from, or enter into any conference, agreement, alliance, or treaty with, any king, prince, or state: nor keep up any vessels of war, or body of forces, in time of peace; nor engage in any war, without the consent of the United States in congress assembled, unless actually invaded; nor grant commissions to any ships of war, or letters of marque and reprisal, except after a declaration of war, by the United States in congress assembled, with several others: yet each state respectively retains its sovereignty, freedom, and independence, and every power, jurisdiction and right which is not expressly delegated to the United States in congress assembled. The promises made in these two cases here compared run very differently: in the former thus: “I will join you in this particular war, as was a confederate and the manner of our attacking the enemy shall be concerted by our common advice; nor will we desist from the war, till the particular end thereof, the establishment of the independence of the United States be obtained.” In the latter thus: “none of us who have entered into this alliance will make use of our right, as to the affairs of war and peace, except by the general consent of the whole confederacy.” We observed before, that these unions submit only some certain parts of the sovereignty to mutual direction. For it seems hardly possible that the affairs of different states should have so close a connection, as that all and each of them should look on it as their interest to have no part of the chief government exercised without the general concurrence. The most convenient method, therefore, seems to be that the particular states reserve to themselves all those branches of the supreme authority, the management of which can have little or no influence, on the affairs of the rest.
27 Thus the American states, have reserved to themselves the uncontrolled right of framing, establishing, and revoking their civil laws, and the administration of justice according to them, in all cases whatsoever, in which they have not specifically consented to the jurisdiction of the United States. But as to all affairs, on which the safety, peace, and happiness of the federal union, hath a joint dependence, these say Puffendorf, ought in reason to be adjusted by a common constitution. This does not, however, says Barbeyrac, hinder but each confederated state may provide for its particular safety, by repressing its rebellious subjects. And herewith the present constitution of the United States fully agrees. For although congress are bound to guarantee to every state in the union a republican form of government, and to protect each of them against invasion; and also against domestic violence; yet this last is only to be done where the legislature, or executive of the state (where the legislature cannot be convened) shall make the application. Nor does any thing in the constitution prohibit any state from keeping troops, or ships of war, except in time of peace; nor from engaging in war, if it be either actually invaded, or in such imminent danger as not to admit of delay. Yet where no such invasion, or imminent danger exists, the engaging in war, whether offensive or defensive; and after the peace, as the result and issue of war, are among those things, which cannot be undertaken, or adjusted, but by the common consent of the confederacy. To which we may add, with Puffendorf, taxes and subsidies as they contribute, and are necessary, to the mutual support; and alliances with foreign states, as they may promote the common safety. It falls under the same head of duties, that in case any dispute arise among the confederates themselves, the other members who are unconcerned shall immediately interpose their mediation, and not suffer the controversy to come to blows. Or the confederates may establish some common tribunal by which their differences may be decided, such as the Amphictyonic council among the Grecian states; or as the supreme court of the United States, which hath original jurisdiction by the federal constitution, in all cases of controversy between two or more states. As for those other matters, which seem not so necessary to be transacted in common, (among which Puffendorf reckons negotiations of traffic, such as taxes, for the particular use of any single state, the constituting of magistrates, the enacting laws, the power of life and death over their respective citizens, or subjects, the ecclesiastical authority, where such an authority is permitted, and the like; there is no reason, but that they may be left to the pleasure of each distinct government: though at the same time particular states ought to manage their privileges as that they shall cause no disturbance in the general union. … Whence it is evident, that one or more of the allies cannot be hindered by the rest, from exercising, according to their own judgment, such parts of the civil administration, as are not in the compact of union, referred to the common direction.
28 And this, with the exception of commercial treaties (which, for very cogent reason, were by the common consent surrendered by the respective states, to the general confederacy,) may be considered as sketching the general outline of the American union.
Since, in these systems, it is necessary that there should be a communication of certain affairs expressed in the compact of union; and since this cannot be conveniently done by letters; and since, even where this could be done, delays might be attended with great prejudice, or inconvenience to the confederacy, a determinate time and place ought to be settled for the holding assemblies and one or more persons appointed, who shall have power to call the states together, in case of any extraordinary business, which will admit of no delay. Though it seems a much more compendious method to fix a standing council, made up of persons deputed by the several confederates, who shall dispatch business according to the tenor of their commission; and, to whom the ministers of the confederacy in foreign parts, shall give an immediate account of their proceedings, and who shall treat with the ambassadors of other nations, and conclude business in the general name of the confederates; but shall determine nothing that exceeds the bounds of their commission. How far the power of this council of delegates extends, is to be gathered from the words of the compact itself, or from the warrant and under which they act. This is certain; that the power whatever it be, is not their own, but derived to them from those whom they represent; and although the decrees, which they publish, pass solely under their own name, yet the whole force and authority of them flows from the states, themselves, by whose consent such a council hath been erected: so that the deputies are no more than ministers of the confederate states, and are altogether as unable to enjoin any thing by their own proper authority, as an ambassador is to command and govern his master.29
SECTION XIII.
The dissolution of these systems happens, when all the confederates by mutual consent, or some of them, voluntarily abandon the confederacy, and govern their own states apart; or a part of them form a different league and confederacy among each other, and withdraw themselves from the confederacy with the rest. Such was the proceeding on the part of those of the American states which first adopted the present constitution of the United States, and established a form of federal government, essentially different from that which was first established by the articles of confederation, leaving the states of Rhode Island and North Carolina, both of which, at first, rejected the new constitution, to themselves. This was an evident breach of that article of the confederation, which stipulated that those “articles should be inviolably observed by every state, and that the union should be perpetual; nor should any alteration at any time thereafter be made in any of them, unless such alteration be agreed to in the congress of the United States, and be afterwards confirmed by the legislatures of every state.” Yet the seceding states, as they may be not improperly termed, did not hesitate, as soon as nine states had ratified the new constitution, to supersede the former federal government and establish a new form, more consonant to their opinion of what was necessary to the preservation and prosperity of the federal union. But although by this act the seceding states subverted the former federal government, yet the obligations of the articles of confederacy as a treaty of perpetual alliance, offensive and defensive, between all the parties thereto, no doubt remained; and if North Carolina and
