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

            The tacit desire for peaceful expansion through the consensual admission of additional territory embedded in the ninth of the Articles of Confederation becomes clearer still upon an examination of the text of Article XI. It declared, in full, that,

Canada acceding to this confederation, and adjoining in the measures of the United States, shall be admitted into, and entitled to all the advantages of this Union; but no other colony shall be admitted to the same, unless such admission be agreed to by nine States.

Consider first the specific words here used to describe the addition of new territory to the jurisdiction of the United States of America. Canada was not to be conquered, annexed, or taken; rather, it would accede – suggesting assent and agreement – or be admitted – i.e. welcomed – into the American republic. Other colonies – itself a fairly revealing phrase – would likewise be admitted to the union, presumably also with the consent of the inhabitants therein. In light of the manner by which most contemporary expansionist nations sought to enlarge their empires – Britain being perhaps the paramount example in the 18^th century world – this again presages a strikingly passive form of territorial enlargement. Indeed, the cited text of the Articles would seem to give voice to a rather peculiar form of national ambition. The architects of the first national government of the United States seemingly desired and intended their nation to grow and expand with the addition of new territories and populations. The existence of the aforesaid Article XI would seem rather difficult to explain otherwise. This same passage indicated, however, that national expansion was to result from the consent of those peoples and governments being added to the union of states. The American republic would not – in theory, at least – seek out prospects for its own enlargement and glorification as might a European empire, but rather simply clear the way for self-governing territories to join of their own accord. Whether or not the intervening centuries have borne out the sincerity of this conviction, it nevertheless represents an assertion of popular sovereignty – i.e. the importance of the consent of the governed – otherwise unheard of in the late 18^th century.

            Consider, also, the specific subject(s) of Article XI. Canada – i.e. British Quebec – had been an object of interest and agitation for authorities in Congress since before the Battles of Lexington and Concord – circa April, 1775 – and the beginning of armed hostilities between Great Britain and the united colonies. As the centrepiece of the French Empire in North America, Quebec had been a source of distrust, rivalry, and aggression for the inhabitants of British America since at least the 1640s. Over the course of the proceeding century, proxy wars between allied native tribes – the Iroquois and the Huron chief among them – clashes over access to the lucrative fur trade, and subsidiary conflicts of larger European struggles combined and overlapped, nurturing a climate of intense animosity between the English and French speaking populations of the North American continent. Rather than alleviate further cause for suspicion, however, the transformation of Quebec into a British colony in the aftermath of the Seven Years War (1754-1763) seemed only signal a shift in the nature of the threat it presented to the residents of Britain’s other American possessions. Once a source of military and economic insecurity, Quebec became – thanks to its religious and administrative traditions – a source of existential unease for those British Americans particularly concerned by what appeared to be the increasingly arbitrary decision-making of Parliament and the Crown. As confirmed by the terms of the Quebec Act (1774), the province was to remain Roman Catholic, French-speaking, and without any form of representative government.

Supporters of the campaign then being waged in the Thirteen Colonies in favor of representative government were accordingly fearful that the willingness of the British state to support the existence of such an alien regime within its American territories – in which a foreign church cooperated with a largely unchecked executive – augured poorly for their efforts. Thus seeking to neutralize both an ideological as well as strategic threat to their efforts – possession of Quebec effectively guaranteed British military control over the St. Lawrence River and provided access to the northern frontiers of states like New York, Massachusetts, and New Hampshire – the First and Second Continental Congress each sought to foment an uprising in the territory and encouraged the people thereof to join in the campaign of resistance against British rule. The resulting Letters to the Inhabitants of Canada – published October 26, 1774, May 29^th, 1775, and January 24^th, 1776, respectively – accordingly attempted to lay out, in moral, ideological, and practical terms, the case for Quebecois participation in the efforts then being undertaken by Congress and its adherents.

Published months apart as the conflict between the united colonies and Britain progressed from socio-political struggle to a de facto state of war, each of the letters – written by John Dickinson (1732-1808), John Jay (1745-1829), and James Wilson (1742-1798) – adopted a slightly different tack. “You […] have artfully been kept from discovering the unspeakable worth of that form [of government] you are now undoubtedly entitled [,]” the first declared, whereupon it then proceeded to explain at length the significance of the rights – denied to the people of Quebec and America alike – that its authors considered to be fundamental to law and government under the British Constitution. The second letter embraced a comparatively straightforward approach rooted in the evident immorality of British rule in Quebec. By the introduction of your present form of government,” it read,

Or rather present form of tyranny, you and your wives and your children are made slaves. You have nothing that you can call your own, and all the fruits of your labour and industry may be taken from you, whenever an avaritious governor and a rapacious council may incline to demand them […] Nay, the enjoyment of your very religion, on the present system, depends on a legislature in which you have no share, and over which you have no control [.]

Having perhaps realized the folly in attempting to motivate the people of Quebec to overthrow their present government by encouraging them to embrace a set of rights for which they possessed no cultural affinity, Congress – via the pen of John Jay – instead seemed to focus on drawing attention to the ills set to befall Quebec in the absence of those rights. Thus, rather than attempt explain the value of representative government or trial by jury, the second letter spoke of concepts and ideals whose importance were presumably self-evident – i.e. liberty, private property, and freedom of religion.

The third letter, published after Lexington and Concord, the beginning of the Siege of Boston (April, 1775 – March, 1776), and the launch of the Invasion of Canada (June, 1775 – October, 1776), was yet more blunt, effectively seeking to portray the enfolding of Quebec and its people into the American cause as a practical inevitability. Case in point, after noting the size and number of the American forces then either operating in Quebec or on their way to the same, the author – Wilson, in this case – then made known to his prospective audience that,

Your assistance in the support and preservation of American liberty affords us the most sensible satisfaction; and we flatter ourselves that you will seize with zeal and eagerness the favourable moment to co-operate in the success of so glorious an enterprise. And if more considerable forces should become requisite, they shall not fail being sent.

The last phrase of this passage is perhaps the most telling. So determined were the members of the Continental Congress to at long last sway the Quebecois to the cause of their revolution that they were willing to accompany their promises of liberty, justice, and representative government with the implicit threat of military domination. “If more considerable forces should become requisite,” Wilson wrote – i.e. if the people of Quebec make them requisite – “They shall not fail being sent.”  

That the Continental Congress went so far as to authorize an invasion of Quebec is likewise telling as to the importance Revolutionary authorities attached to the presence of such a territory along the span of their northern border. In British hands, Quebec represented a threat to the integrity of the United States of America, a staging area for an invasion of the same, and a source of encouragement to certain native tribes in American territory eager to vent their long-simmering frustrations upon vulnerable frontier communities. And while this was particularly true in the spring of 1775 – following the American capture of Fort Ticonderoga (May 10^th, 1775) and Fort Crown Point (May 12^th, 1775) at the southern tip of Lake Champlain – it would continue to be the case in any future context wherein the Thirteen Colonies – or their potential independent successors – remained at odds with Britain while Quebec remained loyal. The resulting invasion – approved in June, 1775 and launched the following September – was thus undertaken with both short-term and long-term objectives in mind. In the immediate, it was deemed necessary for Quebec to be captured as a means of alleviating the threat of a future British offensive originating in that territory. As it effectively connected Lake Champlain to Brooklyn, Queens, and Manhattan, New York’s Hudson Valley made for an especially attractive target whose defense was potentially paramount to the success of the American war effort. And if, in the fullness of time, an American occupation of Quebec brought about a revolution there was well, whereupon the territory opted to join the Continental Congress or otherwise severed ties with its colonial masters in Britain, this would certainly have proven a boon to the efforts and prospects of the united colonies in their ongoing contest with Parliament and the Crown.     

This is all to say that Quebec was of significant interest to the United States of America at the time the Articles of Confederation were created, and indeed had been for some time previously. In terms of resources, manpower, morale, and ideology – i.e. the overthrow of an unrepresentative colonial regime in favor of a revolutionary republic would have constituted a significant moral victory – Quebec offered the United States of America a great deal at a time when its prospects for still relatively uncertain. That Article XI was included in the final draft of the document in question – ratified by Congress in November, 1777 – over a year after the Invasion of Quebec concluded in a victorious British defence in October, 1776  very much speaks to the enduring nature of this perception. Though the Letters to the Inhabitants of Canada had met with hardly any response, and though a military expedition had ended in a disastrous defeat for the Continental Army and the capture of a significant number of American soldiers – notably including aforementioned Vermont founder Ethan Allen – the framers of the Articles still felt it probable enough that the people of Quebec would eventually desire to accede to the United States that they drafted a provision specifically to serve that purpose. Not only would Quebec – or Canada, as the text refers to it – be permitted to join the American confederation, becoming thereby entitled, “To all the advantages of this Union [,]” but it would be permitted to do so without the need for Congress to vote in its favor. In effect, the door was left open – Quebec could accede whenever it wanted to, without question, and with immediate effect. That the framers of the Articles believed this a likely outcome would quickly enough prove a rather naïve ambition. The implications of this belief for the future of the United States of America, however, were anything but.

            While the authors of the Articles of Confederation were likely responding in the main to the specific pressures that surrounded the Vermont controversy and to the strategic threat presented by a continued British presence in Quebec when they drafted the relevant clauses of the same, they must also have been aware that their efforts were potentially setting the tone for the kind of nation that the United States would become. Article IX was ostensibly intended to bring about a resolution to the longstanding dispute over property rights between the government of New York and the holders of the New Hampshire grants, though its logical end result would almost certainly be the admission of Vermont to the American union. Likewise, while the purpose of Article XI was essentially to secure the northern frontier of the United States from potential British invasion by providing a clear path for Quebec to take its place in Congress, the larger significance was also unspoken. By attempting to solve specific problems with specific solutions, the framers of the Articles were effectively giving rise to a general principle. The United States of America, formed via the voluntary ratification of a pact of union by a group of thirteen sovereign states, would seek to expand itself in this same spirit. New states would accede to the union as similarly sovereign entities – as Vermont most certainly was by 1777 – in accordance with the wishes of their inhabitants and – with the exception of Quebec – in accordance with the stated will of Congress.

            Not only did this rather tidy procedure represent– as mentioned previously – an exceedingly novel means by which a nation in the 18^th century was to undertake a process of territorial expansion, but its inclusion within the text of the Articles implies something rather revealing about the way that the men who crafted the first national charter of the United States of America conceived of their revolution, its results, and its future. Vermont, as aforesaid, was effectively an American state-in-waiting at the time the Articles were drafted and ratified during the late 1770s and early 1780s. Its adult inhabitants had all been born in what were by that point constituent states of the American union, its constitution was very much in keeping with those that had been drafted and ratified by these selfsame states, and its government had made repeated efforts to join the American union via petitions and requests addressed to Congress. There was, in consequence, no mystery as to the intentions of the people of Vermont as concerned the United States. They wanted their state to accede to the union, and there was doubtless little uncertainty that such an outcome would eventually come to pass. For the framers of the Articles to have crafted a provision intended to facilitate this end would therefore seem merely prudent on their part.       

        

            But Quebec was another matter. The majority of its inhabitants had been born the subjects of a foreign monarch, spoke a different language than the inhabitants of the United States, had little if any experience with representative government on the British model, and collectively showed no indication that they were either particularly displeased with their status as a British possession or particularly eager to become citizens of the nascent American union. Certainly there were a number of strategic reasons for contemporary American authorities to desire the de facto separation of Quebec from the larger British Empire – hence the authorization by Congress of an invasion of same in June, 1775. But in almost every other respect, British Canada may have been the neighboring jurisdiction least likely to fall under American control in the immediate future. Bearing this assessment in mind, one might fairly wonder why the framers of the Articles would draft a provision specifically to serve that end. Why, in short, waste the ink on something that was so unlikely to occur? The most credible answer – hopelessly idealistic though it may seem – is that the men who crafted the first governing charter of the United States of America genuinely believed that the success of their Revolution would inspire the Quebecois – among other colonial peoples – to throw off the British yoke and petition for membership in the Continental Congress.

By the time the Articles were drafted and then ratified, after all, the struggle between Great Britain and Congress had ceased to be a campaign of resistance intended by its instigators to reassert long-held legislative prerogatives. Rather, with the declaration of American independence in July, 1776, it had become an existential conflict between a hegemonic global empire and a nation that had emerged from within it. Accordingly, while the first and second Letters to the Inhabitants of Canada were published in an attempt to rouse a potential ally in the cause of protest and reform, the third was issued by a newly-independent nation seeking a partner in its struggle for self-determination. Congress was no longer asking the Quebecois to embrace the forms and traditions of British constitutional government, therefore, but rather to join in the American embrace of the abstract and the absolute – of the liberty, justice, and natural rights owed to every human being and memorialized by the great minds of the Enlightenment like the Baron de Montesquieu (1689-1755), John Locke (1632-1704), and Jean-Jacques Rousseau (1712-1778). With such lofty ideals firmly in mind, it doubtless seemed inconceivable to the men behind both the Letters and the Articles that a people should want to persist in living under an arbitrary, unrepresentative regime when liberty and brotherhood were theirs for the taking.

The Quebecois understandably took a different view of the situation. While the transition from being subjects of France to being subjects of Britain – circa 1763 – had doubtless been fraught with no small amount of tension and uncertainty, subsequent events did much to offer a sense of solace and security for these newfound citizens of the world’s most powerful transcontinental empire. The Quebec Act alone, by protecting the French language, the Roman Catholic Church, and French civil law while simultaneously increasing the size of the province threefold, represented a tremendous concession to the status quo at the same time it appeared to offer significant protection from Anglo-American territorial encroachment. And while the resulting provincial government was far less representative than those of Britain’s other North American dependencies – a subject of suspicion and consternation in the Thirteen Colonies – it was scarcely all that different from what the Quebecois were accustomed to as former citizens of New France. Thus appeased, comforted, and governed as they always had been, the people of what was now British Canada had hardly any reason to entertain the entreaties and protestations of their southern neighbors that true freedom yet eluded them.

That the framers of the Articles did not see this – perhaps could not see it – speaks powerfully to the depth of their convictions and the nature of their collective vision for the nascent American union. As the character of the government they created arguably attests, they were largely of a mind that principle was duty bound to triumph over pragmatism – indeed, must hold the needs of utility in check lest they become the only measure by which authority is justified. The Articles could have described a strong, king-like executive, a powerful legislature with wide-ranging responsibilities, and a judiciary with jurisdiction superior to that of every other court in the nation. This was not the case, of course. Effective though such a government might have been – and indeed proved to be – it would have been at odds with certain of the principles that had come to underpin the Revolution itself. Strong national governments were dangerous, often arbitrary, and could become easily alienated from the people they were supposed to serve. The history of the Anglo-American relationship attested to the validity of this perception, and the Articles were accordingly crafted in order to prejudice state over federal authority. Just so, while it would have doubtless presented a much easier path towards expansion if the United States under the Articles opted simply to replicate the European model of conquest and annexation, to do so would have violated the basic convictions upon which the American union had lately been founded.

The Thirteen Colonies each determined of their own accord to join and submit to the Continental Congress, and each in turn ratified the transformation of that initial union of British dependencies into a confederation of sovereign states. Theirs was accordingly a voluntary association in which the autonomy of individual members was not simply a recognized courtesy, but rather formed the philosophical cornerstone of their shared endeavor. For this federated union of states to extend anything less than the same right to the inhabitants of neighboring territories would therefore have effectively nullified the principles upon which they themselves had claimed their sovereignty. In consequence, the Articles of Confederation approached the subject of territorial expansion from the perspective that incorporation into the American union was contingent upon the voluntary accession of the relevant community. Not only did the authors thereof almost certainly believe that maintaining this policy would have little impact upon their nation’s prospects for growth – the prize to be gained being nothing less than liberty itself – but it would most definitely have aligned with their collective sense of what their Revolution was really about.

Granted, it would be hard to deny that American history subsequent to the drafting of the Articles of Confederation has been laden with examples of states acceding to the union in consequence of conquest, intrigue, or great power diplomacy. Louisiana and Florida, for example, were purchased from France and Spain without much consideration for the desires of their inhabitants, while California, New Mexico, Nevada, and Arizona were taken from Mexico essentially as spoils of war. That being said, however the land upon which various states claim their existence came into possession of the American republic, no state has every joined the union under less than voluntary circumstances. As law and precedent require it, every state must possess a constitution before it can become eligible for admission to the union, and every state must petition Congress for the receipt of that privilege, and Congress must approve every resulting application. There are, of course, very practical reasons why the residents of a United States territory would submit to this process. Statehood brings with it privileges, votes in Congress, and a voice in the affairs of the nation. But the fact remains that the initiative lies with the prospective citizens of the state in question. Congress does not write constitutions for the states, or admit them without a relevant expression of intent. In essence, rather than create something that did not previously exist, the government of the United States instead chooses to recognize the existence of a polity which its citizens have already created. Though brief, in large part specific to the context in which it was written, and long since superseded, Article XI represents the first germ of this exceedingly influential idea.  

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 19^th 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 8^th, 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 17^th 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. 

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

Likewise bearing upon the structure of the union of American states, Article IX also made known that much of the day-to-day administration of the United States would be carried out via a mechanism which almost wholly set it apart from most existing and subsequent state, provincial, and national governments. As per the text thereof, this mechanism would take the form of,

A committee, to sit in the recess of Congress, to be denominated “A Committee of the States,” and to consist of one delegate from each State; and to appoint such other committees and civil officers as me be necessary for managing the general affairs of the United States under their direction – and to appoint one of their number to preside, provided that no person be allowed to serve in the office of president more than one year in any term of three years [.]

Article IX goes on to describe the many and various powers to be exercised by the Committee of the States. As these included nearly all of the capabilities otherwise delegated to Congress itself, said body would seem to have been intended to function as an extension of the authority and jurisdiction of the same. Whenever Congress was in recess, therefore – for up to six months at a time, as per the terms of Article IX – the United States of America would function under what was essentially a directorial style of government. On one hand, in light of the fact that a committee of thirteen people is bound to form a more efficient decision-making body than a legislature of indefinite size, the use of such a system would seem to represent a degree of administrative streamlining otherwise uncommon to the Articles.  On the other, it placed the fledgling American republic at a significant distance from both contemporary state and national governments and that which would later be described by the Constitution.

            Essentially a collegial system of government wherein executive power is exercised by a body of elected or appointed representatives rather than a singular head of state, directorates favor deliberation over decisiveness while also tacitly acknowledging that the effective administration of a complex polity demands at least some degree of procedural consolidation. Historically, governments on this model have been implemented in an attempt either to balance the power and authority of a centralized administration against the concomitant possibilities of corruption and demagoguery or as a means to provide relatively limited – but necessary – cohesion to an otherwise loose confederation of diverse and functionally autonomous states. Perhaps the most famous example thereof arose in France at the height of the Revolution in 1795 – resulting from the excesses of the Committee of Public Safety (1793-1795) and preceding the establishment of the authoritarian Consulate (1799-1804) – though more successful implementations both predated and followed it. Switzerland represents by far the most prominent of the latter, having been governed as a directorial republic since the adoption of its current constitution in 1848. Grounded upon the Swiss Canton’s centuries-long tradition of federalism and decentralization, the national government thereof possesses a collective executive – i.e. the Federal Council – comprised of seven individuals elected by a joint sitting of the upper and lower houses of the national legislature – i.e. the Federal Assembly – for a four year term. Each Councillor takes responsibility for an executive department – as in a cabinet – and the largely ceremonial offices of President and Vice-President rotate among their number on a yearly basis. While this mode of government has proven quite durable within the context of the Swiss federal state, however – wherein a social tendency toward consensus, a reliance on referenda for even minor policy decisions, and a constitutional guarantee of neutrality have collectively contributed to the promotion of a very stable, sober political culture – it remains exceedingly exceptional both currently and historically.

            Indeed, with the exception of the aforementioned French Directory (1795-1799), the only other functioning example of a directorial government native to the era in which the Articles of Confederation were written was that of the state of Pennsylvania. Said government was established upon the adoption of the that state’s first constitution on September 28^th, 1776, with Sections 3, 9, and 20 thereof specifically outlining the form, function, and responsibilities of the Supreme Executive Council. The members of this body were to be elected to a three year term as representatives of the City of Philadelphia and the various counties of Pennsylvania – initially this brought their number to twelve, though the creation of further counties increased it to nineteen – with a President and Vice-President selected to serve a one year term by a joint sitting of the Council and the state legislature. As a whole, the Councillors, President, and Vice-President were responsible for appointing magistrates and military officers, preparing and presenting the agenda of the General Assembly, presiding over cases of impeachment, granting pardons or reprieves, and in general ensuring that the laws approved by the state assembly were faithfully carried out. If the length of its existence is any measure of success, the Council’s fourteen year tenure as the executive branch of the government of Pennsylvania – from the adoption of the state’s first constitution in 1776 until its replacement by a second in 1790 – would seem to represent a substantial endorsement. This seems particularly evident when a comparison is made between the style of government favored by Pennsylvania upon its assumption of independence from Britain and those erected by its sister states.

            With the exception of New Hampshire – whose similarly-structured executive council was superseded by a governorship when its original constitution was replaced in 1784 – every other state within the contemporary American republic functioned under some form of elected or appointed singular executive. Some, like those of Delaware or Maryland, were very weak, being selected by the relevant legislatures and quite limited in their capacity for independent decision-making. Other, like New York, were quite strong, owing to the fact that there were popularly elected, faced no limitations on their ability to be re-elected, and enjoyed significant authority over public appointments, the passage of laws, and the ability of the state assembly to carry out its assigned duties. Regardless of these kinds of procedural or structural differences, however, the frequency with which various states authorities chose, in some form or another, to translate their experiences as colonists under a singular executive into a model for their post-independence governments would seem to indicate a strong preference among the citizens of the United States of America, circa 1776/77, for political centralization. Bearing this observation in mind, the creation of a national government by delegates chosen to represent these same states which for up to six months at a time would be governed by a collegial executive would indeed appear a rather anomalous development.    

            The most likely explanation for this choice almost certainly applies to the framers of New Hampshire and Pennsylvania’s aforementioned constitutions as well as it does to the authors of the Articles of Confederation. Indeed, the same reasoning probably also explains the weakness of certain contemporary state governors as compared to their colonial predecessors. The answer, in a word, is fear. Inclined though they appeared to be towards the concept of a singular executive at the head of their respective governments – as much a cultural preference as it was a political one – most of the framers of the first state constitutions nonetheless viewed the practical implications of a powerful head of state with suspicion and distrust. Not only did the history of English/British civilization – of which they considered themselves the inheritors – abound with examples of powerful monarchs whose unchecked authority made possible any number of abuses against theirs subjects’ rights and prerogatives, but the events of the 1760s and 1770s had themselves made clear that even the much-lauded Bill of Rights (1689) was too limited in scope to prevent an aggressive Parliament from abrogating the privileges of certain peoples for whom it claimed to make law. Among the members of the Founding Generation, therefore, structural reform was the obvious answer. The resulting community-wide effort to construct more equitable, more representative, and safer forms of government took on different inflections and produced different results depending on the nature of the task at hand or the political and cultural traditions of the relevant state. Almost universal, however, was a conviction that a centralized, singular executive – on the model of the British monarch or the various colonial governors – was far too dangerous to replicate in America without certain modifications to the basis of its authority and the scope of its power. 

            New York, of course, was the glaring exception. Its first constitution, adopted on April 20^th, 1777, was written by and for the landed and merchant elite of that state, for whom the offices of Governor, Chancellor, and the Supreme Court would be in effect – thanks to steep property qualifications on voting and standing for election – their personal property. The constitutions of the twelve remaining states were, by comparison, significantly more aggressive in the ways they sought to circumscribe the power of the relevant chief executives. All of them, for instance, put in place some form of limitation upon the ability of an individual to hold the office of governor or president for a number of years in succession. Many of them also declared that the office of chief executive would be filled via an election within the legislature of the state in question, thus ensuring that the governor or president thereof would be subject to significant restraint and oversight on the part of the relevant lawmaking bodies. Both of these measures represented structural responses to the fear of unchecked executive power that culture and experience had nurtured in the political character of the contemporary American population. The framers of the constitutions of Pennsylvania and New Hampshire arguably took this response to its logical extreme by attempting to do away with the concept of a singular executive altogether – doubtless in response to their own particular experiences during the colonial era – but their efforts nonetheless sprang from the same impulse as that which motivated their counterparts in most other states.  

            This same fear and suspicion of power was almost certainly what moved the framers of the Articles to structure the resulting national government as they did – i.e. without a singular executive, substituting a collegial body in its place. Granted, it was certainly possible that John Dickinson – himself a Pennsylvanian – or certain members of his drafting committee consciously attempted to emulate the examples of their own states in adopting such an unusual model for the national government of the United States, though that needn’t have been the case. The common sense of distrust that surrounded the notion of a strong chief executive was what conditioned the structure of the various state governments to begin with, and doubtless represented a more durable point of consensus than any specific framework or model. While it might perhaps appear rather strange that the resulting discussion amongst the representatives of eleven states with singular executives and two without resulted in a national administration that more closely resembled the latter than the former, the nature of the task would seem to substantially account for its outcome. Just as the framers of most of the state constitutions had been at least somewhat afraid of executive power, and the cohorts from Pennsylvania and New Hampshire appeared to be particularly so due to their respective experiences with unusually strong or arbitrary governors, so the framers of the Articles were doubtless collectively sensitive to both the inherent danger of a powerful chief magistrate and the ease with which national governments could become distant from and unresponsive to their nominal constituents.           

            Revulsion towards what they perceived to be the manifest abuses of successive British governments were, after all, some of the strongest motivating and uniting factors behind the Anglo-American crisis and the resulting political revolution. Certainly the Crown-appointed governors of a number of colonies had also incurred the displeasure of their subjects by seeming to abuse the civil and political rights to which the latter believed they were entitled, but contemporary colonial legislatures often represented bastions of opposition and resistance to exactly this kind of behavior. In consequence, while fear of executive authority was effectively nurtured, loyalty to and trust in specific colonial governments remained generally uninjured. The nearest national government, however – the Crown, Parliament, and the British courts – possessed no such saving grace. British history and culture certainly remained a source of pride for many Americans throughout the era of the Revolution, but the contemporary institutions of British government were almost wholly sources of antagonism towards the petitions and remonstrances of the American people. Evidently far more concerned with successfully regulating an increasingly complex fiscal-military empire than respecting the rights and liberties of a handful of far flung colonists, executive, legislative, and judicial authorities of Great Britain seemed inadvertently to demonstrate that national governments – owing to the sheer number of interests they must find a way to balance – must necessarily deal in abstractions. Unavoidable though this may have been, it likely soured many members of the Founding Generation on the very concept of national political authority. The end result would seem to have been the conviction on their part – largely borne out by the structure of the governments they went on to create – that the most powerful mechanisms of government ought to be those in closest proximity to those they governed. Combined with the aforementioned fear nurtured by many contemporary Americans of a strong chief executive, state legislatures would seem to have been the most trusted institutions, followed by state executives, followed by a national legislature, followed by a national executive.

            The Articles of Confederation – and the structures described in Article IX in particular – certainly appears to reflect this hierarchy of popular confidence. It frames a legislature largely beholden to the states, provides for a collegial executive on only a semi-permanent basis, and makes no provision for a national judiciary of any kind. Indeed, it was something like the logical antithesis of the contemporary British government – with no Crown, no courts, and a weak Parliament incapable of asserting itself in most domestic policy areas. However quickly or emphatically the majority of Americans turned against this form of national administration – aided in large part by the inability of the Articles to respond to the economic and diplomatic hardships that beset the nascent United States in the latter half of the 1780s – even its momentary existence is exceedingly noteworthy. Notwithstanding the length of time it has been in force or the prestige it has accrued as a result, the adoption of the United States Constitution was not the inevitable end result of the American Revolution. Rather, it was the result of a lengthy and complex process whereby experience, assumption, and theory were tested and re-tested under various conditions over the course of a little less than twenty years. Models of state government were tried and modified, which provided lessons for later efforts, which simultaneously informed and were informed by an attempt to create a national government that met both the practical needs and the moral and ethical expectations of a people who had only begun to think of themselves as a nation. The procedures laid out in the aforementioned text of Article IX whereby disputes between states were heard by Congress, or which described and empowered the Committee of the States, are in effect signposts along this path. While they have since been passed by as essential components of an effective national government, they nevertheless illustrate that American constitutional thinking once approached some of the most basic questions about the nature of power and the meaning of sovereignty from a very different perspective than which most present-day Americans are likely familiar.

Articles of Confederation, Part II: the Anomalous as Evolutionary

            Obviously, the thing to discuss when examining the Articles of Confederation – the topic which most closely bears upon the nature of that document and the government it created – is the manner by which it sought to balance the power and priorities of the state governments and the national government of the United States of America. Rest assured there is much to say on that subject, and much that will be said in time. For the moment, however, because historical minutiae is rarely as trivial as it appears, this series will instead begin its exploration of the first constitution of the American republic by drawing attention to some of the clauses and provisions within the text of the Articles that appear especially odd or irregular when viewed through the lens of what Americans shortly came to understand about the nature of federal power and the best means by which to define it. Choices were made by the authors of the Articles that were substantially at odds with what the United States later became under the Constitution, and thus seemed to exert little impact upon the evolution of national power in the American republic. Anomalous though these developments may appear, however, they were surely none of them the product of thoughtlessness or random chance. The authors of the Articles of Confederation may have been naïve, short-sighted, and ill-prepared for the task at hand, but it cannot be doubted that they regarded their work seriously and thoughtfully. They would not have inserted clauses at random, therefore, or attempted to apply a structure to the resulting national government without – to the best of their abilities – reflecting upon the implications of the choices they were making. In consequence, it would seem fair to characterize these aforesaid anomalous elements of the Articles of Confederation as collectively representing a kind of window into contemporary American political thought. Specifically, by attempting to understand them in light of the circumstances under which the Articles themselves were drafted, it would seem possible to tease out some of the base assumptions and prejudices of the framers thereof.

            Consider, for example, what certain of their structural decisions communicate as to what the framers of the Articles believed was possible and/or preferable in the realm of national administrative authority. Whereas the Constitution of the United States grants to the Supreme Court the exclusive right to hear all cases, “In which a State shall be Party” – pursuant to Article III, Section 2 – the ninth of the Articles of Confederation declared that, “The United States in Congress assembled shall also be the last resort on appeal in all disputes and differences now subsisting or that hereafter may arise between two or more States concerning boundary, jurisdiction, or any other causes whatever [.]” On the surface, the difference between these mechanisms of interstate adjudication would seem to be mainly procedural. That is to say, while the Framers of the Constitution chose to rely upon both the primacy already enjoyed by the Supreme Court as the authority of last appeal in the American republic and its inherent status as an arbitrator of disputes in assigning to it the task of settling quarrels between states, the framers of the Articles determined to allow Congress to mediate any such differences via the selection and empanelling of commissioners for that purpose. One method is not necessarily better than the other, though that which was established by the Constitution is ostensibly more efficient. Rather, the respective authors of the first and second governing documents of the United States of America would simply seem to have come to different conclusions as to whether a conflict between states was a judicial matter or an administrative one.

            That the decision reached by one group in 1777 was evidently rejected by a second group a decade later, however, almost certainly owed more to an evolving conception of state power than a mere matter of preference. Along with the Presidency, the Supreme Court represents perhaps the most powerful example within the Government of the United States of a truly national institution. The scope of its jurisdiction and the authority granted its rulings ensures that while it may often hear cases of somewhat parochial significance, the decisions it renders will always bear upon every subsequent exercise of public power at every level of government anywhere in America. Delegating to this body the task of settling disagreements between the states seems therefore an eminently sensible choice. Not only are they already bound to observe and implement the rulings thereof, but the Court is designed to function without any consideration for the particular interests of specific parties, communities, or states. No such institution existed under the auspices of the Articles, of course. Congress was really the only permanent mechanism of national government recognized by said document, and its authority over the states, counties, and municipalities of which the American republic was/is comprised nowhere approached the power later to be enjoyed by the United States Supreme Court. Congress could not interpret state laws or declare them invalid, enjoyed sole jurisdiction in a very limited range of policy areas, and was in no way capable of functioning as an impartial guardian of the national well-being.

Quite the opposite, in fact – Congress was supposed to represent the states as states, allow them to exercise their priorities and make their voices heard, and in the process (somehow) distill a national consensus from among their intersecting concerns. The implication thereof – as it bears upon the need for an American government to hear and render decisions upon disagreements between individual states – would seem to be twofold. First, the fact that there was no national judiciary to whom such a responsibility might have more sensibly been assigned appeared to ensure that Congress would of necessity be the only possible forum for the airing of such disputes. Second, and more fundamentally, the fact that the framers of the Articles were reconciled to this arrangement – that their conception of a national government failed to include any institution better able to render decisions of national significance than Congress – speaks volumes about their ability or their willingness to conceive of the United States of America as much more than a relatively loose alliance of independent republics. Certainly, history would demonstrate soon enough that more expansive thinking was both possible and necessary. Indeed, much of what the Framers of the Constitution sought to correct was the inability of the national government under the Articles to behave in a way that prejudiced that national interest over those of the states. The Supreme Court was one of several mechanisms they accordingly designed to both seek out and promote uniformity and harmony in law and government across the whole of the American republic. In addition to being a wholly necessary task for a national government to perform, the settlement of disputes between states was one such means by which this harmonization could be accomplished. While the framers of the Articles appeared to agree with the former assertion, the fact that they assigned the responsibility to Congress – as per the aforementioned Article IX – speaks to their unwillingness to yet bow to the importance of the latter. America, in their minds, was not yet a nation – with needs and interests separate and distinct from those of the states themselves – and they set about creating a framework for its administration accordingly.

Articles of Confederation, Part I: Context

            I should hope that by this point the regular audience of this program has developed some understanding of what the Articles of Confederation and Perpetual Union were and why they are significant to a discussion of the American Founding. For those who may have forgotten, however, or who are just joining us now, they were in effect the first constitution of the American republic, forged in wartime and rendered obsolete by the drafting and ratification of the Constitution of the United States in 1787-88. Compared to that later document – still in force after over two hundred years – the Articles formed a fairly meagre national government whereby the individual states retained nearly all of their accustomed autonomy and Congress acted more as a chamber of debate than a sovereign legislature on the level of the contemporary British Parliament. Much has been written in these pages of the weakness of the Articles, the inability of the resulting government to maintain the cooperation of the various states, and consequently of the issues that arose among America’s ambassadors abroad in securing much-needed trade agreements without any guarantee that they would be honored at home. Indeed, the chief importance of the Articles of Confederation in most histories of the American Founding is that their failings made it necessary to create another, more activist national government whose balance of authority, restraint, energy, and reflection has since – and most emphatically – stood the test of time.

            There is, of course, far more to the Articles than just their shortcomings. While they may not have possessed the proper elements in the proper ratio to effectively bind together the various states during the economically tumultuous post-war era – when debt was rampant, hard currency was scarce, and runaway populism often held sway – they undeniably succeeded in seeing the United States through the bloodshed and privation of the Revolutionary War. Granted, the presence of a common enemy in Britain doubtless did much to engender a sense of solidarity among the often fractious and unruly states. In consequence, while the Articles may indeed have possessed some quality which enabled them to hold what were in effect thirteen independent republics together amidst an extensive military conflict with one of the most powerful empires in the 18^th century world, their true significance almost certainly lies elsewhere. Indeed, it may have much more to do with what they represent than what they ever managed to accomplish. Consider, to that end, how and why the Articles came to be. The men who drafted, debated, approved, and ratified them were attempting to erect a national government for what had theretofore been thirteen separate British colonies, each with their own political customs and administrative norms. Furthermore, they were undertaking this task while confronting an empire whose centralizing tendencies formed the very seed of American independence. The results of their efforts, therefore, were surely the product of any number of compromises, ambitions, anxieties, and hopes whereby one might arguably be able to chart the ideological ideal of the Founding Generation as it existed at the height of the American Revolution. A more intriguing prospect would seem difficult to conceive.

            Before delving into any of that, of course, a few words ought to be said about the specific context from which the Articles emerged. First, unlike the Constitution, the Articles were not the product of a convention called to order outside the auspices of the Continental Congress for the express purpose of crafting a frame of government for the United States of America. Rather, they were drafted by a committee formed and delegated by Congress on June 12^th, 1776 to prepare a plan of union of the soon-to-be independent states. John Dickinson (1732-1808), delegate from Pennsylvania, was made chairman of this body, which presented its first completed draft to Congress proper on July 12^th. A fairly lengthy debate followed, resulting in any number of revisions and which concluded with a final draft in the summer of 1777. Congress subsequently debated this version further, voted to approve it on November 15^th, and submitted it to the states for ratification. This process, for the most part, proceeded swiftly. Virginia was the first, on December 16^th, 1777, followed by South Carolina, New York, Connecticut, Rhode Island, and Georgia the following February, New Hampshire, Pennsylvania, and Massachusetts in March, North Carolina in April, New Jersey in November, and Delaware in February, 1779. In spite of this fairly rapid progress, however – particularly impressive in light of the fact that these same states were actively fighting off a military invasion – the Articles did not officially take effect until February 2^nd, 1781.

There were, in essence, two reasons for this. On one hand, the Articles themselves dictated that ratification would not be deemed successful unless or until all thirteen states voted in the affirmative. Doubtless intended as a concession to the sovereignty of said states – thus preventing those that had not yet approved or had disapproved from being either carried along by the majority or left out of the resulting federation – this decision on the part of the framers of the Articles had the unfortunate effect of allowing a single state to indefinitely postpone the formal establishment of a national government until all of its demands were met. Maryland, as it happened, was that state. Dissatisfied with the claims made by certain of its counterparts – Virginia and New York chief among them – to large swaths of territory in what is now the Midwest, the contemporary government of Maryland maintained that it would not approve a closer union of the states until all parties agreed to cede any lands they held west of the Ohio River to the proposed national government. After holding out for over three years from the time of the approval of the Articles by Congress, and exacting a number of promises from its brethren, Annapolis finally permitted its delegates to affix their names to the document in question in the second month of 1781, thus finally and firmly confirming the legitimacy of the first national government of the United States of America.

While, in practice, this made little effective difference to the manner in which Congress functioned – in spite of Maryland’s stubbornness, the United States operated from 1777-78 as though the Articles had been ratified – that this kind of situation was allowed to arise at all was quite telling. Whereas the Constitution was deemed by its framers to take effect once nine of thirteen states had submitted their approval, and while the national government that resulted likewise pivoted upon the primacy of the majority – be it simple or super – the Articles were conversely structured around the notion that consensus was the only means by which the most important decisions could claim legitimacy. While this was certainly a noble sentiment, the fact that it was fairly quickly cast aside speaks powerfully to both the optimism and the inexperience with which the Articles were crafted. Not only was unanimity required for the new government to be formed, but it was also a necessary ingredient for almost any major policy or initiative that Congress would care to pursue. While the Articles did permit the national government to make financial or military requisitions of the states, for example, these were effectively only requests that the states could freely refuse to honor. As such consensus of opinion was rarely in evidence during the life of the Articles (1777-1789), Congress most often found itself cash-strapped and manifestly unable to provide the Continental Army with the manpower it so desperately needed.

Unfortunately, any attempt to alter this state of affairs by modifying the Articles – so that, for example, the states were bound by law to respect Congressional levies – would have run up against this same basic issue. Just as the approval of all thirteen states was necessary for the Articles themselves to come into force, so was the unanimous approval of every state legislature required for any amendment to achieve the same. By thus exalting consensus to the point of enshrining it as the core value of the government they aimed to create, the framers of the Articles thus crafted a cage around said government, built of their own best intentions and permitting only the most limited movement for its unfortunate inhabitants. Granted, this state of affairs was very much in keeping with the circumstances from which the Articles emerged. Not only were the individuals responsible for drafting, debating, and approving the relevant plan of government almost wholly lacking any practical experience in the realm of law, statecraft, and public affairs that they were about to enter, but the object to which they were ostensibly dedicating their efforts – the United States of America – was as yet something of an abstract and untested concept.

Certainly, the various colonies which preceded the states were possessed of written charters that provided detailed descriptions of the administration thereof, though nearly all of them had been drafted and approved long before the lifetimes of any delegate to Congress circa 1776-77. In consequence, while the authors of the Articles were better equipped than, say, the average inhabitant of Great Britain to understand the form and function of a written constitution, they almost certainly lacked any applied knowledge as to how such things were constructed. Just so, while the fact that the various colonies had successfully coordinated a series of responses to one piece of British legislation after another – the Stamp Act (1765), the Townshend Duties (1767), the Tea Act (1773), the Coercive Acts (1774) – and subsequently cooperated in overseeing Patriot efforts during the opening phase of the Revolutionary War, the notion of binding the thirteen states together in any substantial, permanent way remained something of a novel prospect. Benjamin Franklin (1706-1790), at a meeting of delegates from the various colonies convened in Albany in 1754 at the outset of the Seven Years War (1754-1763), had notably proposed a “Plan of Union” that would have created a kind of American federation within the larger British Empire, though the proposition met with little success. A similar bid submitted to the first Continental Congress in October, 1774 by Pennsylvania delegate Joseph Galloway (1731-1803) was likewise rejected, and along similar lines. Cooperation among the various colonies became increasingly common beginning in the 1750s, and there was certainly something to the notion that being “American” somehow set one apart from being “British.” But the traditions, priorities, resentments, and ambitions of said colonies remained powerful impediments to the success of any proposal that even appeared to threaten their sovereignty.

This state of affairs understandably left the delegates to Congress responsible for crafting a frame of government for the United States of America over the course of 1776-77 in a somewhat awkward position. Not only had they taken on a task for which none of them were particularly well-equipped, but their central objective required a feat of imagination for which few practical examples then existed. Of course the inhabitants of British America were familiar with the concept and characteristics of a national legislature, Parliament serving as a venerable and well-established model. But their aim was not – could not have been – to simply replicate Parliament in an American context. Great Britain was – and continues to be, in large part – a unitary state. The legislature thereof has accordingly functioned without much, if any, concern for the existence of strong sub-national entities like states or provinces. Parliament represents the people of Great Britain, via the mechanism of free and frequent elections, and it accordingly makes law for Great Britain. America, however, could never admit so simple an arrangement. The very crux of the Anglo-American crisis had been the failure of Parliament and the Crown to recognize the sovereignty of both the American people and the colonies to which they identified as citizens. Any American equivalent of Parliament, therefore, by necessity must have pursued the opposite tack. The colonies-cum-states formed an integral part of the contemporary American cultural and political identity, and it was accordingly imperative that they correspondingly occupy a central role in whatever government was formed to administer a prospective union of the same. This was easier said than done, of course, and the potential solutions that Dickinson and his fellow delegates hit upon were understandably somewhat…wobbly.

As if having to account for the existence of strong, assertive states wasn’t problem enough, the framers of the Articles also faced the unusual problem of having to decide which responsibilities could reasonably be considered to fall under the heading of “national interest” at a time when the inhabitants of British America had rarely had cause to think of themselves as belonging to a community that spanned the Atlantic seaboard yet was untethered from Parliament or the Crown. It was true that projects like the aforementioned Albany Congress (1754), the Stamp Act Congress (1765), and the Continental Congress (1774) had encouraged the citizens and governments of the various colonies to begin to think in terms of the sensibilities and objectives that united all Americans, but none of these cooperative ventures embodied quite the same degree of substance as a national government. It was one thing for colonial delegates to assemble and discuss various non-binding proposals in which they identified the interests of their respective communities and quite another for a body intended to represent thirteen different states to make requisitions, conduct military affairs, pursue treaties of alliance or commerce, and administer land donated by those states in a way that spoke to the needs of the nation as a whole. Which powers could be delegated to the national government without violating the sovereignty of the states? Should the states possess a veto on national legislation or would the reverse be permissible? How much authority – and in what ratio – was enough for the national government to enjoy the respect of the American people without arousing their suspicion? Despite all that has occurred in nearly two hundred and fifty years to strengthen the sense of nationality and community nurtured by the citizens of the American republic, these kinds of questions continue to accompany nearly any exercise of federal power by the United States government. It should therefore come as no surprise – and it should to some degree excuse the generally mixed results – that the framers of the Articles were not always certain how to successfully balance and separate state and national priorities.

That the Articles were also crafted under the auspices of the Continental Congress doubtless added further impediments to its authors creating a viable final product, though the impulse behind the project itself was eminently sound. As mentioned above, the committee assigned to draft a plan of union was comprised of sitting delegates to Congress, to whom responsibility was also delegated to debate and approve the end result. In consequence, unlike the later Constitution, the Articles were crafted via a fairly slow and highly deliberative process. Over a year went by between the time that Dickinson submitted the first draft to Congress in July, 1777 and the final draft was approved by the same in November, 1778. Over the course of those many months, any number of articles, provisions, and clauses were doubtless weighed, modified, inserted, or excised as waves of delegates newly appointed to Congress by their respective states made known the concerns held by themselves and their constituents. Compared to the Philadelphia Convention of 1787, whose members drafted, debated, and approved the Constitution in a little less than five months, the process that birthed the Articles of Confederation represents nothing short of a marathon.

It likewise bears noting that the curtain of secrecy under which the Constitution was drafted was necessarily absent during the creation of the Articles. In the midst of a war, with delegates coming and going and the whole of Congress forced to relocate between December, 1776 and February, 1777 from Philadelphia to Baltimore, any such effort at confidentiality would surely have been doomed to failure. The Articles, therefore, were debated in public, in sometimes unsettled circumstances, by a rotating body of delegates, and over the course some sixteen months. The end result of these all these factors would seem to be a working environment in which a whole host of views, perspectives, and priorities were required to at least be considered if not accommodated, some form of external scrutiny was almost always present, and final approval would only result from an affirmative majority vote on the part of a supervising body whose membership and physical conditions were subject to fairly frequent change. Surely this qualifies as a less than ideal context in which to craft the first national government of the newly-minted American union, and may perhaps be said to account for some amount of the shortcomings of the resulting document.

In spite of the manifest impracticality which seemed to attend every circumstance under which the Articles of Confederation were crafted, however, the very fact of their existence was the result of a highly pragmatic observation on the part of Congress. Well and truly at war with Great Britain as of April, 1775, and struggling for independence rather than reconciliation as of July, 1776, the Thirteen Colonies were in desperate need of both international recognition and military and financial aid as the year 1777 dawned and the American victories at Lexington and Concord, Ticonderoga, and Boston gave way to a series of defeats and reversals in and around New York City. The obvious solution – and that which Congress hit upon – was the enlisting of foreign allies. France, for one, appeared a natural choice, owing mainly to its longstanding rivalry with Great Britain and its desire for unrestricted access to American markets and raw materials. The Dutch Republic, whose trade wars with Britain had spanned the better part of fifty years from the middle of the 17^th century, likewise seemed a probable supporter of American independence in the event that a suitable offer was made. In addition to sizable loans, direct military assistance, and diversionary attacks on British trade, these venerable European powers could be encouraged to exert the necessary diplomatic pressure to both bring Great Britain to the negotiating table and ensure that the newly-minted United States of America was afforded the respect it was owed as an independent nation and an ally in good standing. Promising though these prospects were, however, there were as yet certain logistical issues that wanted resolving before agreements between the United States of America and Britain’s various continental rivals could be signed and sealed. 

While the formal declaration of American independence effectively rendered moot any concerns that prospective allies might have nurtured as to the propriety of intervening in what was otherwise an internal conflict of the British Empire – as per the parameters of the Peace of Westphalia (1648) and its influential recognition of national sovereignty – there remained the question of whom precisely the nations in question would be negotiating with. The Continental Congress served reasonably well as a mechanism of interstate coordination and debate, but it lacked most of the characteristics that contemporary European sensibilities had come to associate with national governments. Absent the President of Congress – whose authority and duties resembled those of the contemporary Speaker of the House of Commons – there was no chief executive, nor any executive departments, nor an accompanying order of precedence. Responsibility for specific policy areas was exercised through a series of committees – some temporary, others permanent – with every major decision put to a vote by the larger body of delegates. And while Congress, in this state, managed to commission military officers and ambassadors, issue paper currency, and allocate requisitions of men and resources, it remained something of an ad-hoc institution bound together only by the voluntary participation of its constituent states. For the European empires to whom the United States wished to present its case, such a precarious state of affairs would have done little to inspire either confidence or trust.

A more substantial union of the states was called for – one which possessed the authority to create administrative departments, delegate authority on a permanent basis, and ratify treaties on behalf of its constituent states. Accordingly, Congress responded to the June 7^th, 1776 resolution of Virginia delegate Richard Henry Lee (1732-1794) that the united colonies ought to declare their liberation from British rule by commissioning three committees to draft three separate but linked documents. The first, the so-called “Committee of Five” set to work on a formal, written affirmation of the logic and reasoning behind the independence of the American states. The second committee was instructed to create a model treaty by which the United States might begin to seal the foreign military and economic agreements it so sorely required. And the third, led by the aforementioned John Dickinson, was given the task of creating a frame of government by which the effects of first committee’s declaration would be consolidated and made manifest and the product of the second committee’s efforts would be given substance and strength. The resulting Articles of Confederation were most certainly flawed, owing in large part to the circumstances of their creation. Nonetheless, their very existence was the product of a fairly insightful reading of contemporary European diplomatic norms on the part of authorities in Congress.