Friday, March 2, 2018

Articles of Confederation, Part IV: the Anomalous as Evolutionary, contd.

            It should be fairly clear thus far that the style of government described by the Articles of Confederation was based on often drastically different assumptions about power and sovereignty than those most commonly nurtured by citizens of the United States during the better part of its history. Whereas the exercise of federal authority – and the resulting push and pull between federal and state authority – has at any given time effectively defined the horizons of American political culture, the national government as described by the Articles possessed almost no executive power to speak of and tended to bow to the will of the states in almost all areas of domestic importance. In spite of the fact that this would appear to set the Articles apart as something of an outlier in the history of American constitutional thought, however, there are several provisions therein which would seem to indicate otherwise. Specifically, clauses located in Articles IX and XI concerning the territorial expansion of the United States suggests that one of the prime motivating impulses behind much of the American republic’s foreign and domestic policy in the 19th century was present and accounted for even during the drafting of the Articles of Confederation in the late 1770s. In consequence, though the authors of the same placed far less faith in the propriety of a strong national government than subsequent generations of American citizens and public servants, even they believed that it was essential – if not, indeed, expected – for the United States to at some point surmount its territorial boundaries.

            Granted, the first such provision appears rather to hint at the prospect of expansion than describe it as a principle aim. An understanding of the context in which it was written, however, strongly indicates its purpose to have been exactly that. Located approximately halfway through the lengthy and multifaceted Article IX, the relevant clause reads, in full:

All controversies concerning the private right of soil claimed under different grants of two or more States, whose jurisdictions as they may respect such lands, and the States which possess such grants are adjusted, the said grants or either of them being at the same time claimed to have originated antecedent to such settlement of jurisdiction, shall on the petition of either party to the Congress of the United States, be finally determined as near as may be in the same manner as is before prescribed for deciding disputes respecting territorial jurisdiction between different states.

Dense language – one might say breathlessly legalistic – notwithstanding, the implication of this passage would seem to be fairly straightforward. Whereas Article IX described a procedure – discussed in a previous post in this series – by which Congress would attempt to adjudicate disputes that happened to arise between two or more states, “Concerning boundary, jurisdiction or any other causes whatever [,]” the clause cited above proscribed the same remedy for disagreements, “Concerning the private right of soil claimed under different grants of two or more States [.]” While this would otherwise seem to fall under the heading of “any other causes whatever,” the fact that the framers of the Articles made specific provision for the resolution of private land disputes would appear to signify that they had something specific in mind.

            Consider, in addition, the significance of this same provision describing the states applying to Congress for a resolution as being those, “Whose jurisdictions as they may respect such lands, and the States which possess such grants are adjusted, the said grants or either of them being at the same time claimed to have originated antecedent to such settlement of jurisdiction[.]” First, it would seem that the relevant mechanism of adjudication applied specifically to those states whose respective jurisdictions – or boundaries, or borders – had already been adjusted – or harmonized, or reconciled. Second, the disputed private claims whose settlement was desired were to be those whose origins lay in the period preceding the aforesaid jurisdictional adjustment. Combined, these distinctions indicate that the disputes to be addressed did not pertain to the overlapping territorial claims made by the states themselves, but rather to the private claims of citizens within certain states whose formal territorial boundaries had already been settled. As this would necessarily seem to exclude disagreements like those that persisted in the Great Lakes region – wherein the competing claims of Connecticut, Massachusetts, Virginia, and New York eventually gave way to the creation of the Northwest Territory – or which existed between a number of states in the Northeast through the late 1780s, the potential application of such a provision would appear to have been quite narrow. Indeed, only one circumstance comes to mind whose significance to the territorial status of the United States would have warranted the inclusion of a specific clause within the text of the Articles of Confederation - i.e. that of the State of Vermont.

            Granting that the history Vermont through the 1780s has already been discussed at length in a previous entry in this series (link), it would nonetheless seem prudent here to reiterate a few key points. The most important of which must surely be that Vermont was not a member of the United States of America during the Revolution, did not send delegates to the Continental Congress, and participated in the Revolutionary War against Great Britain as voluntary allies of the American states. Indeed, it was not until March, 1791 – after the Constitution had been adopted but before the ratification of the Bill of Rights – that the Green Mountain State was formally admitted to the union as the fourteenth state. Prior to that, Vermont functioned as an independent – though largely unrecognized – republic. The reason for this had everything to do with geography, colonial rivalries, and the kinds of popular discontents awakened and nurtured by the events of the 1760s and 1770s.

Beginning in the 1740s, New Hampshire Governor Benning Wentworth (1696-1770) began selling land grants in what is now southern Vermont at a time when it was not yet clear whether the region fell under his jurisdiction or that of the neighboring Province of New York. As these selfsame grants were being offered on relatively favorable terms for the era – only nominal rents were required, for example, with land being owned in full by the purchaser – settlers flocked to the region from several of the surrounding colonies. As New England-style townships were being accordingly erected, however – under names like Rutland, Bennington, and Burlington – authorities in New York were issuing their own grants, chiefly to already wealthy landowners eager to expand their rented holdings. Matters came to a head in the 1760s when, upon encountering New Hampshire surveyors in territory they believed to fall within their jurisdiction, the government of New York petitioned the Board of Trade – a committee of the Privy Council then responsible for overseeing the various colonies of British North America – for formal adjudication. The verdict, rendered in July, 1764, found for New York, declaring that the boundaries of the colony encompassed all of the land on the Western bank of the Connecticut River, “From where it enters the province of Massachusetts Bay as far north as the 45th degree of northern latitude [.]” While Governor Wentworth agreed to relent, the residents of the disputed territory who had already purchased land under his authority could not afford to be so sanguine. Since the relevant authorities in New York interpreted the Board of Trade’s decision as effectively nullifying the New Hampshire grants, holders of the same were faced with the prospect of either purchasing their property a second time – often at a drastically increased price – or having it seized and resold.

When a New York Supreme Court decision confirmed this eventuality in 1770, a number of the effected inhabitants determined to form a local militia force – thereafter known as the Green Mountain Boys – for the purpose of resisting the campaign of confiscation, harassing the holders of New York grants, and putting a stop to all further attempts to survey and sell property in the disputed area. Led by charismatic local residents like Ethan Allen (1738-1789) and Seth Warner (1743-1784), the Green Mountain Boys spent the next several years attacking survey parties, destroying property, issues public threats, and generally endeavoring to make it as hard as possible for New York to assert its authority in the region. And while the beginning of the armed phase of the American Revolution effectively put a stop to this campaign of agitation – even prompting the Green Mountain Boys to submit themselves to the authority of New York military officers like Philip Schuyler (1733-1804) for the purpose of joining the American war effort – the core dispute between holders of the New Hampshire grants and the government of New York remained fundamentally unresolved. Indeed, it was for this exact reason that Vermont was not permitted to send delegates to the Continental Congress; having formulated a petition to that effect in 1776, the members of the New York delegation prevailed upon their colleagues to reject Vermont’s request outright. Seemingly undaunted, a committee of residents drafted and ratified a state constitution on July 8th, 1777 at the town of Windsor, elected a Governor in the person of Thomas Chittenden (1730-1797), and began the process of acquiring diplomatic recognition from key European powers.

At the time the Articles of Confederation were drafted, therefore, Vermont occupied a rather unusual position within the evolving power dynamic of contemporary North America. It was neither a member of the United States of America, nor a completely independent nation. There were, of course, no formal ties between the government of Vermont and the Continental Congress, or between Vermont and any of the individual American states. Indeed, there could not be, so long as New York had any say in the matter. Nevertheless, the Green Mountain Boys were granted recognition as a regiment of the Continental Army, with their expenses to be paid out of the treasury of the State of New York. Furthermore, there seemed to be every intention on the part of the government of Vermont that the state would eventually and rightfully take its place in Congress. Repeated, unsuccessful petitions were made to this effect over the course of the 1770s and 1780s, and much of the symbolism adopted by the founders of Vermont – from the design of coins to the state seal itself – attached a special significance to the notion that theirs was destined to be the fourteen state of the American union. Standing in the way of this outcome, however, was the persistent unwillingness of authorities in New York to recognize the validity of the New Hampshire grants.   
                 
            To reiterate, the nature of this disagreement concerned the refusal of one state – New York – to recognize the private land grants issued under the authority of a second state – New Hampshire – following the formal adjustment of a boundary dispute between the relevant parties – circa 1764. As this would seem to fall rather exactly within the parameters of the cited clause of Article IX, there would appear to be little reason to doubt that the authors thereof were working under the assumption that the settlement of the Vermont question was a desirable outcome. Indeed, they evidently went out of their way to provide the government established by the Articles with a formal assurance that the mechanism they had created for the settlement of disputes between states was directly and specifically applicable to the ongoing controversy concerning the status of Vermont. On one hand, this would seem a rather obvious thing for the framers of the Articles to have planned for. Vermont represented exactly the kind of loose end – having its origins in a colonial-era dispute over jurisdiction and property rights – that the creation of a national government was intended to resolve. To that end, the 1780s witnessed any number of border adjustments between states at the behest of Congress as the often vague terms laid down in 17th century colonial charters were reconciled with the need to promote harmonious and efficient relations between the constituent states of the nascent American republic. While the Vermont issue was very much of a piece with these readily settled disagreements, however, its potential resolution possessed much greater significance for the future of the United States as a whole.

            If, upon taking up the matter in Congress, the relevant authorities found in favor of the state of New York, it would have presumably brought to an end any ongoing attempt by the government of Vermont to petition the United States for membership in the same. Perhaps emboldened by the backing of Congress, New York would doubtless have then determined to firmly and finally assert its jurisdiction in the disputed territory. Without a war to distract the attention of its adversary – and seemingly without allies among neighboring states loathe to question the authority of an adjudication process that many of them had themselves invoked or would seek to invoke – it is an open question how long the Green Mountain Boys could have succeeded in asserting the legitimacy of their widely unrecognized republic. While this, in itself, represents a potentially troubling prospect, the alternative was likelier still to re-define the nature of the United States and point the way towards its future on the continent. Because if, upon taking up the matter in Congress, the relevant authorities found in favor of the state of New Hampshire – or rather, in favor of the holders of land grants sold under the authority of New Hampshire – it would have presumably secured the recognition of Vermont by the government of the United States and made its admission to the union a fait accompli. The government of New York may well have grumbled at this, lodged complaints, or perhaps even refused to recognize the outcome, but it would seem doubtful they’d garner much support in Congress. Again, arbitrating among the states was one of the few responsibilities that the Articles delegated to the national government described therein, and it was to the benefit of every state to abide by the resulting judgements lest they do harm to their prospects upon some future appeal to the same.

            In consequence, while the authors of the cited passage of Article IX were ostensibly trying to ensure that one of the most significant lingering territorial disputes among the American states could and would be resolved via an appeal to Congress, they were also tacitly laying the groundwork for the first admission of a new state to the union. Not only did this imply their understanding of the United States of America as being flexible enough to encompass more than just the thirteen founding states, it also potentially indicated a preference on their part as to the manner by which subsequent states were admitted. If, after all, the first state to join the union after the founding of the American republic did so voluntarily, as a de-facto independent nation with a constitution and civil government all its own, this would set a precedent. Rather than allow existing states to expand, or grow via the annexation and occupation of neighboring territories, the United States would instead be inclined to admit those duly-constituted entities whose governments petitioned to join. By the standards of the era – during which territorial conflicts between imperial powers was, and had been for centuries, very much the norm – this represented something of a revelation. None of this, of course, was spelled out in the text of the Articles themselves. But the implication – of Congress deciding in favor of the New Hampshire grant holders, recognizing Vermont, and admitting it to the union – was absolutely present. 

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