Articles of Confederation, Part VIII: A Quality of Deference, contd.

Certain of the provisions contained within the text of the Articles of Confederation are less oblique than those cited previously in terms of the authority they appear to confer upon the resulting national government. In some instances, it seemed, Dickinson and his committee were more comfortable at least appearing to assert national prerogatives than was generally the case. As to the financial standing of the United States of America, for example, the framers of the Articles seemed quite confident – as per the text of Article VIII – that all expenses to be incurred by the union of states, “Allowed by the United States in Congress assembled, shall be defrayed out of a common treasury, which shall be supplied by the several States in proportion to the value of all land within each state [.]” This phrasing appears to admit of little ambiguity: there was to be a treasury, doubtless administered by Congress, to be supplied collectively by the states and to serve their common needs. Not only does this appear a fairly logical consideration – there being any number of potential projects or policies from which every state could benefit and for which no one state ought to bear the cost – but it very much accords with what is by now the expected financial relationship between the government of the United States and its many millions of constituents.

This evident sense of familiarity, however, might easily obscure a lack of any relevant mechanism of enforcement. Whereas the present government of the United States has any number of means at its disposal by which it might seek to ensure the payment of the taxes it levies upon individuals or corporations, the Articles of Confederation provided almost no method, process, or procedure through which the administration it described could seek to collect upon the requisitions it made of the states. Indeed, the United States in Congress Assembled – a phrase used more than once in the text of the Articles as the formal name of the government of the American union – seemed almost wholly incapable of enforcing its will upon the states in any context, let alone the exceptionally sensitive area of taxation. In consequence, the text of Article VIII – along with several other provisions that appear unequivocal but which in practice were relatively meaningless – seems to present something of a paradox. Congress, it appeared, was intended to administer a common treasury as a means of defraying the shared expenses of the states, and accordingly to collect such funds from the states as deemed necessary for the maintenance thereof, at the same time that it was almost wholly restrained from coercing the states to do anything at all. Bizarre though this construction may appear – and indeed, as it may be – it would not appear particularly out of step with the essential character of the Articles, the resulting national government, or the men responsible for the creation thereof.

If the framers of the Articles were nothing else – if they were not competent, if they were not insightful, if they were not up to the task of creating an effective national government – they were most definitely optimistic as to the future prospects of the United States of America. Their belief in the inevitability of the nation’s territorial expansion (see Articles IX and XI) speaks to this conviction quite clearly, as do their apparent efforts to foster the legal, commercial, and cultural integration of the various states (see Article IV). This sense of confidence might well have allowed the authors of the Articles to see beyond the admittedly strained material circumstances of the contemporary moment – i.e. a war with the most powerful empire in the history of the world that had yet to turn in favor of Congress – and provide tools and guidance by which the American people could succeed in meeting the obstacles and the opportunities their collective future yet held. This lofty and far-reaching perspective was not, however, without its drawbacks. While Dickinson and his committee possessed vision enough to foresee the need for a common purse – or more broadly for a means by which the states might seek to undertake shared endeavors in time of peace – they evidently could not bring themselves to in any way give Congress the power to collect the money they envisioned it someday disbursing. That they did nothing to address the resulting contradiction – either by removing any mention of a common treasury or providing some means by which needed funds might be collected – in turn represents perhaps their greatest failure. By leaving in place the various expressions of their optimism without also supplying the appropriate mechanisms that might have seen that optimism fulfilled, the framers of the Articles created a national government for the American union that was arguably doomed to dysfunction.

Consider, by way of evidence, several more lines of the text of Article VIII. As mentioned above, this section was particularly concerned with providing for the maintenance of a shared treasury by and for the United States of America. As to the means by which that treasury was to be sustained, all value for the purpose of taxation, it was stated, “Shall be estimated according to such mode as the United States in Congress assembled, shall from time to time direct and appoint.” While, on its surface, this would seem a fairly straightforward and easily-observed directive, the clause which immediately followed portended significant complications. “The taxes for paying that proportion,” it read, “shall be laid and levied by the authority and direction of the legislatures of the several States [.]” In consequence, while Congress was responsible for assessing the value of all property within the states for the purpose of taking receipt of the proportion each state owed to the national treasury, only the states could levy and collect the resulting taxes. Faithful though this arrangement may have been to the principle of delegating taxing authority to the body in which the taxed are directly represented – a conviction for which, among others, many Americans were lately demonstrating their willingness to fight and die – it could not have but begged a number of uncomfortable questions. What would have been the result, for example, if Congress requested a payment for which a given state(s) declined to generate revenue? Likewise, what would occur in the event that Congress and a given state(s) disagreed as to the value of a particular piece of property? The text of the Articles could provide no solutions to these kinds of difficulties, chiefly because the authors of the same were similarly bereft of any means to reconcile their vision with their principles.

Clauses contained in Article IX and Article XIII would appear to present similar examples of powers or characteristics being attributed to the government of the United States absent the accompanying mechanisms for their practical realization. The former, while seeking to describe the means by which Congress might occasionally be forced to request the service of military forces raised by the states, notably included the specific declaration that these selfsame requisitions, “Shall be binding, and thereupon the legislature of each State shall appoint the regimental officers, raise the men and clothe, arm and equip them in a soldier-like manner, at the expense of the United States [.]” In the context of 18^th and 19^th century American history, this would seem a fairly reasonable directive for Congress to have at its disposal. As early as 1794, during a major anti-tax protest in Western Pennsylvania commonly known as the Whiskey Rebellion, the government of the United States had reason to summon militia forces from a number of states for the purpose of enforcing federal law. A more famous – and perhaps more consequential – instance of this same prerogative being invoked occurred in May, 1861 when President Abraham Lincoln (1809-1865), confronted by a Southern rebellion, requested the service of nearly 120,000 volunteer militiamen from the states that continued to recognize the authority of the federal government. In both instances, the justification for Congress and the President issuing the relevant orders was to be found in Article I, Section 8 of the Constitution. “Congress shall have the power,” the appropriate passage declares, “To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions [.]” And while this specific provision – or indeed any of those detailed in Section 8 – was not accompanied by language detailing the means by which Congress might ensure obedience in seeing the relevant commands carried out, the Constitution as a whole provides a number of mechanisms by which the government of the United States might either punish or coerce the states in the event of noncompliance.

It should by now be taken as a given that the Articles of Confederation contained no such means of ensuring submission to its directives. Under the auspices of the resulting national government, Congress could not easily withhold or make an incentive out of grants from the common treasury – for which it had no reliable means to collect funds to begin with – assert its control over the relevant state militia – the raising and staffing of which fell to the various states legislatures – or threaten to bring suit against the state in question in a federal court of law – made impossible by the fact that there were no federal courts under the terms of the Articles. For Dickinson and his committee to inscribe into the text of the first governing charter of the American union that all military requisitions made by Congress of the states “shall be binding” was therefore in effect to say nothing at all of substance. Practically speaking, if the national government described by the Articles asked, say, the state of Virginia to supply two militia regiments for the purpose of putting down a rebellion, countering an invasion, or taking part in a punitive expedition into a neighboring territory, the choice of doing so or not would lie entirely with the state in question. In this hypothetical scenario, the government of Virginia could agree to fulfil the requisition, having recognized that the resolution desired by Congress was likely to serve its interests as well, or it could refuse to do so, having decided that its resources were best put to use elsewhere. The national government would have no practical means to either encourage one outcome or punish the other, the cited text of Article IX notwithstanding.

The first paragraph of the thirteenth and last of the Articles of Confederation contains perhaps the most ambitious of all declarations contained therein as to the ability of the resulting national government to assert itself upon the states. “Every state,” the passage in question asserts,

Shall abide by the determination of the United States in Congress assembled, on all questions which by this confederation are submitted to them. And the Articles of this Confederation shall be inviolably observed by every State, and the Union shall be perpetual [.]

Formalistic language aside, the basic premise of this provision is that the various states were to be bound by the decisions rendered by Congress, that the text of the Articles was to be similarly binding, and that no state was to reserve to itself the right or the means of withdrawing from the union. Ignoring for the moment the cited text of Article II – whereby the states were to retain their “sovereignty, freedom, and independence” – Article XIII would thereby appear to imply that Dickinson and his committee envisioned membership in the American union as having a restrictive effect upon the discretion of the states. If, for example, Congress issued a directive which the government of a given state disagreed with, a strict adherence to the text of Article XIII would seem to offer little choice but acquiescence. Likewise, if a state government determined, after a period of years, that continued membership in the American union no longer aligned with the best interests of its constituents, Article XIII would seem to wholly preclude said government ever acting upon its desire for separation. For a document that opened with an assertion of the continued autonomy of the parties it sought to effect, these would seem to be wholly contradictory limitations.  

In practice, of course, there was nothing for the states to fear in the text of Article XIII. Lacking virtually any means by which to penalize the denial of its directives, Congress could no more ensure the inviolable observation of either its authority or the core provisions of the Articles than it could declare the Moon to be the fourteenth state in the union. Individual states could – and in practice, often did – ignore “the determination of the United States in Congress assembled” with impunity, pursue whatever course of action they felt would best serve their needs, and generally comport themselves as though no national government existed at all. As to secession, while it did not occur – or even realistically threaten to occur – during the lifetime of the United States government under the Articles, there was little in the structure of the confederation or the mechanisms at its disposal to dissuade states from pursuing such a course. In the event that, prompted by the determination of the government of a given state to separate itself from the American union, Congress called upon the remaining states to provide the military force necessary to prevent the partition from occurring, the result would surely have been yet another intractable impasse. For as functionally incapable as the national government under the Articles would have been of preventing a state from leaving the union, so too would it have been at a loss to coerce the remaining states into turning their arms upon their fellow Americans.

Granted, this kind of scenario was almost certainly the last thing that Dickinson and his committee envisioned when they crafted the text of Article XIII. No doubt they indeed desired for the union of American states to be perpetual, harmonious, and effective, but never at the cost of limiting freedom or threatening civil war. Recognizing the sovereignty of the states and of their citizens appeared always to have been foremost in their minds as they set to work on the various clauses and provisions that came to comprise the Articles of Confederation. Rather than command the obedience of the states, it seemed, as a matter of law, the United States in Congress Assembled was ostensibly intended to encourage loyalty based on its ability to offer the states a forum for collective action and its inability to infringe upon their rights as sovereign entities. Pleasing though this might have been to contemporary philosophical sensibilities, however, it represented an extremely flimsy basis on which to erect a functioning government. This becomes particularly obvious when one considers the sheer number of contradictions or loose ends embedded in the relevant text. Empowered to administer a shared treasury, make military requisitions of the states, and enjoin continued adherence to and membership in the American union, Congress wholly lacked the means by which it could achieve any of these outcomes. It could not demand of the states, or direct them, or order them. Rather, it could do no more than ask. In this, the fault seems once again to lie with the framers for failing to restrain themselves from giving the national government statutory authority in areas they were simultaneously unwilling to vest it with practical power.

In was as if, caught between erecting a government that fostered and pursued clear national priorities and one that merely facilitated reasonably harmonious relations among the states, the framers of the Articles leaned heavily towards the latter without completely abandoning their interest in the former. Doubtless it would have been simpler if they had given up any hope that the United States of America would become a nation in and of itself – that there would come to exist something like a national will in which every state and every citizen could identify their respective interests. Instead, faced with either eliminating any references to national prerogatives or providing the means that might have seen them accomplished, Dickinson and his committee seemed to have instead thrown up their hands and left things standing in some awkward middle ground as though the ability of Congress to function as the Articles described would materialize via some unknown alchemical process. The result was a truly chimerical creation whose lack of internal consistency invited dysfunction and malaise. Certainly it aligned with the ideological proclivities of the Continental Congress and the majority of their supporters in the states – unsettled as they were by the idea of giving rise to an institution powerful enough to command the states to action – to so limit the authority of the first permanent national government in Anglo-American history. But providing some degree of philosophical reassurance may have been all that it could accomplish of its own accord and on its own merits, so beholden was resulting regime to the inclinations of the states. 

Articles of Confederation, Part VII: A Quality of Deference, contd.

The discussion of the previous week notwithstanding, it is worth reiterating here that the Articles themselves did not – indeed, were not intended to – achieve the complete and irreversible integration of the various American states into a singular national whole. The degree to which the resulting national government deferred to the discretion of the individual states, thereby allowing them to maintain their particular character or impress their specific prerogatives within and upon the national sphere, makes this especially clear. Consider, to that end, certain of the provisions outlined in Article V and Article VII. The former, denoting the mechanism by which the legislatures of the various states would select delegates to represent their state in Congress, notably asserts that said delegates, “Shall be annually appointed in such manner as the legislatures of each State shall direct [.]” While this would seem in large part to mirror the procedure later established by the Constitution for the election of Senators – Article I, Section 3, superseded in 1913 by the Seventeenth Amendment – an additional clause introduces a significant wrinkle. Whereas the provisions of the cited Article V and of the aforesaid Article I, Section 3 were surely both constructed with the intention of ensuring that the several state governments would have a direct voice in the national assembly of the United States through the medium of appointing some or all of the members therein, only Article V reserved to the states the power, “To recall its delegates, or any of them, at any time within the year, and to send others in their stead for the remainder of the year.” The importance of this clause – as which so much of the text of the Articles of Confederation – lies in its symbolic implication as much as its functional effect.

Granting that the Articles only allowed delegates to serve in Congress for a term of one year – and further disqualified them from serving more than three years in any term of six –additionally permitting state legislatures to replace their representatives at any point during that annual term would seem on the surface to be of little practical consequence. Even in the event that a delegate was recalled and replaced after serving for only one day in Philadelphia – in consequence, say of a last-minute favor done by the speaker of a given state legislature to an individual with which they hoped to gain influence – the longest the citizens of that state would be forced to endure the effects of such rank abuse of power was three hundred and sixty-four days. With many states themselves operating on an annual election cycle, the likelihood of partisan turnover and a resulting shift in the dynamics of state appointments within that same hypothetical span of time would have been fairly high. This mutability in the character of state governments, however, is also what makes the cited provision of Article V so significant.

Under the terms of Article I, Section 3 of the Constitution, state legislatures were responsible only for appointing Senators to six years terms rather than also possessing the power to recall them at will. In consequence, regardless of the changes that may have occurred within a state between its selection of a given individual to serve in the Senate and the moment that their term expired – be it an election, the collapse of a longstanding government amidst a corruption scandal, or the drafting and ratification of a new state constitution – nothing but the death or resignation of said individual would allow the state legislature in question to alter the effect of its prior appointment. The resulting balance of responsiveness and stability was most certainly by design. As hashed out by the Framers through intense negotiation and compromise, the United States Senate was to simultaneously serve as the most direct reflection of the states as sovereign entities within the federal government and provide a degree of solidity and unhurried reflection incapable of being sustained by either the House of Representatives – whose members enjoy only two year terms – or the Presidency – whose occupant takes comparative solace in their four years of election-free governance. Its members therefore effectively represented – again, under the now-defunct terms of Article I, Section 3 – a kind of snapshot of state government as it existed at the time of their election and which may have ceased to at any given time during their term in office. Being thus simultaneously connected to and disconnected from state politics, Senators could perform the double task of serving the interest of their state within the national legislative process as well as offering a perspective substantially detached from the often chaotic churn of electoral politics.

  As cited above, the text of Article V attempts to strike no such balance. By providing the state legislatures with a means to alter the composition of their delegations to Congress at will regardless of the nominally year-long term the relevant appointees were supposed to serve, the framers of the Articles ensured that the national assembly of the United States would represent the states both as sovereign political entities and as partisan battlegrounds. Having chosen a group of individuals to represent the needs of their state in Congress, for example, the relevant government may thereafter be replaced via election by a new government whose members understandably desire to see the delegates chosen by their opponents replaced with their own. There being no impediment within the terms of the Articles – and in fact every kind of inducement – to exactly this sort of thinking and action, Congressional delegations would thus potentially be subject to constant change and the character of the resulting national government perpetually defined by the mutability and combativeness of contemporary state politics. Doubtless this was the intention of Dickinson and his committee, to allow – to the fullest degree possible – the various states to influence and to shape the nature and direction of the United States government. Better to allow the states to dominate Congress than permit Congress to dominate the states, they evidently concluded, and in this there may well have been some well-tempered wisdom.

As experience had shown, governments that were not forced by design to consider the interests of certain of their constituents would not do so voluntarily. Indeed, they would more often than not take advantage of the inability of the relevant peoples to punish government inattention by pursuing policies that directly injured them. All that being said, it is worth make clear – if it has not been already – that the Framers of the Constitution described the Senate the way that they did in direct response to the rather extreme reaction of the Articles to exactly this problem. It may indeed have been desirable in theory to create a national government for the American republic whose composition was legally bound to the ebb and flow of state elections and state politics, thus ensuring that said government was functionally incapable of ignoring the issues or concerns that most strongly animated its constituents. But as the economic and political instability that characterized the immediate post-Revolutionary era rather effectively demonstrated, successfully governing the United States of America required something more than an ardent dedication to theory. Given more favorable conditions – an abundance of hard currency, freer access to foreign markets, and so forth – the Congress described by Article V may well have functioned as an adequate forum for debate, cooperation, and mediation among the states as they set to work paying off their debts and settling their borders. Conditions in the 1780s were not favorable, however, as dire financial straits drove many states into competition with one another and Congress essentially floundered.

That the framers of the Articles did not foresee this possibility would seem to speak once more to their abiding idealism. It evidently did not occur to them that an economic crisis was looming, or that it would be accompanied by political turmoil. In consequence, they sought to create the a national government for the United States of America based almost entirely on the notion that interstate cooperation was both forthcoming and would prove a sufficient foundation for perpetual political union. The terms of Article VII provide further evidence of this rather optimistic perspective – and of the willingness of Dickinson and his committee to allow the states to dominate the national sphere – particularly when juxtaposed with a specific passage of the aforementioned Article IX. The former, speaking to the collective security aspect of the American union, declared that,

When land forces are raised by any State for the common defense, all officers of or under the rank of colonel, shall be appointed by the legislature of each State respectively, by whom such forces shall be raised, or in such manner as such State shall direct, and all vacancies shall be filled up by the State which first made the appointment.

In fairness, there would seem to be a number of fairly practical reasons why a group of Congressmen working in the late 1770s to create the first national government in the exceedingly brief history of the United States would happen upon this kind of provision. First and foremost, the arrangement described therein would have served to perpetuate an existing procedure with which all concerned and effected parties were already quite familiar. As Congress had – since 1775 – reserved to itself the right of appointing all general officers in service with the Continental Army, so it also left the selection of all other commissioned officers to the legislatures of the states under whose authority the relevant military forces had been raised. Maintaining continuity with this practice following the adoption of the Articles – particularly in the context of an ongoing war – was almost certainly viewed by the authors thereof as being both eminently sensible and accordingly desirable.

            Given both the relative novelty of a distinctly “American” military apparatus, it seems quite likely that Article VII was to some degree also intended to ensure that American soldiers would never be asked to serve in a regiment whose commander was not from the same state as his men. The use of the rank of colonel as the dividing line between state and national authority appears particularly telling as to this intention. Regiments being the primary combat unit of European-style armies in the late 18^th century, and colonel being the customary rank of a regimental commander, the allocation of general officer appointments to Congress would seem an effective guarantee that only regimental commanders would be forced to take orders from men who were not residents of their own state – and even then, only in situations wherein the use of more than one regiment was necessary. In the event that the United States was forced to react to a major military emergency, therefore, the vast majority of soldiers called to national service – including the majority of officers – would be spared the potentially uncomfortable task of obeying the orders of someone whose birth and education would still likely have marked them out as foreign.

Though this may seem a rather trifling concern in the context of the large, diverse, and highly-organized national militaries of the 20^th and 21^st centuries, it was most certainly not so at the end of the 18^th century. Regiments, at that time in the history of European-style warfare, were highly geographic in nature, drawing their manpower, traditions, and their esprit de corps in large part from the region in which they were located and after which they were often named. To be a member, say, of the 1^st Massachusetts Regiment therefore entailed something more than simply being assigned to one unit in particular out of any number then in service. Rather, it denoted an individual soldier’s relationship to a particular community, to his fellow soldiers who were also members of that community, to his commanding officers, and to the nature of his service. The morale generated and sustained by this web of geographic and communal ties was essential to the proper performance of a given regiment when called upon in battle, and could be easily disrupted – particularly given the relatively parochial temperament of the average 18^th century American – by the introduction of a figure from outside this socio-cultural framework who nonetheless claimed authority over its members. Certainly is was expected that a Virginia regiment, a Pennsylvania regiment, and a Georgia regiment under the command of the same general officer would obey their orders regardless of the origins of the officer in question. But this was almost entirely because said regiments would be under the direct control of colonels chosen by the relevant state legislatures whose men had – ideally – come to invest in them a great deal of trust and affection. That the framers of the Articles understood this – that they were familiar with the realities of contemporary warfare – and proceeded accordingly would thus seem eminently explicable.      

                  

            A somewhat more specific reason for the existence of the aforementioned Article VII would seem to stem from something less mundane than mere military logistics. Recalling the origins of the American Revolution in the tensions that had arisen in the 1760s between a distant and highly-centralized government in Britain and the various colonial governments in America – and further calling to mind the role played by British military officers like Thomas Gage (1719-1787) in hastening the beginnings of armed conflict between them – there doubtless remained a great deal of fear and suspicion in Congress and among its supporters surrounding the notion of concentrated institutional and military power. Indeed, the structure of the Articles of Confederation in large part appears to have been designed to assuage exactly this sense of disquiet, mainly by preventing the resulting national government from being able to exert anything like the coercive force at the disposal of Parliament. By declining to authorize the creation of a standing national army – a perennial source of distrust in the Anglo-American political tradition – and further prohibiting Congress from either raising regiments on its own authority or appointing the commanders of those raised by the states, Article VII in particular seemed to quite effectively confound this possibility. In the unlikely event that Congress ever became sufficiently divorced from the influence of the states to attempt the enforcement of its directives upon the same, it would find itself capable only of calling to service and appointing general officers to command regiments created and staffed by the states themselves. As it would seem equally unlikely that any state regiment – led by a colonel chosen by the relevant legislature – would answer such a call or permit itself to be put to such a use, the prospect of a national military establishment ever coming to dominate the states would appear virtually impossible.

            The degree to which the framers of the Articles felt confident they had taken the necessary steps to foreclose upon the likelihood of a military confrontation between the states and the national government is made clearer yet by certain unaddressed ambiguities of Article VII and Article IX. Whereas the former – cited in full above – reaffirmed the authority of the states to appoint “All officers of or under the rank of colonel” attached to the regiments raised under their auspices, the latter contained a clause which stated that,

The United States in Congress assembled shall have the sole and exclusive right and power of […] commissioning all officers whatever in the service of the United States – making rules for the government and regulation of the said land and naval forces, and directing their operations.

Consider, for a moment, how these two provisions might interact in practice. By the terms of Article VII, the state legislatures were solely responsible for appointing all officers in their service below the rank of colonel. By the cited terms of Article IX, Congress was solely responsible for commissioning all officers whatsoever in the service of the national government. Because a military officer who has been duly appointed cannot formally assume their command until they have first received their commission from the appropriate authority, it would seem as though – under the authority of the Articles – Congress might have conceivably possessed the ability to decline to recognize the relevant state appointments in the event that the regiments in question were called into national service. The further assertion that Congress was also exclusively responsible for “making rules for the government and regulation” of the forces in question would appear to affirm this state of affairs by effectively allowing the national government to set the terms under which national military service was to be performed.

            In fairness, the notion that this apparent ambiguity would have led to conflict between the state governments and the national government – or that the evident interaction of Articles VII and IX even represents an ambiguity – represents little more than supposition. The cited provisions are somewhat unclear as to the precise objects they intend to regulate, particularly in terms of the authority granted to Congress in either commanding or regulating military formations. It is not immediately obvious, for example, to whom the phrase “all officers whatever in the service of the United States” was intended to refer. It may have been reasonable to interpret the intended party as being comprised of all military officers intended to serve under the authority of Congress at a time of national emergency regardless of which body originally appointed them. At the same time, it may also have represented a sensible reading of this clause to regard its subjects as being only those general officers appointed by Congress to positions of command during the appropriate period of national need. Likewise, the affirmation of Congressional authority to govern and regulate all land forces under national command in no way indicates precisely what form the relevant oversight was intended to take. Would Congress be permitted to restructure the state-raised regiments that it called to service? Could Congressmen conceivably begin to dictate how the relevant military units administered discipline or organized their command staff? As with the purported national authority over commissions, the meaning of this clause simply isn’t clear.

            In light of the otherwise weak and inactive nature of the national government described by the Articles, however, this evident lack of clarity likely presented little cause for concern. If Dickinson and his committee even perceived the implications of the provisions cited above – the clauses which appeared to place an unusual degree of power in the hands of Congress – whatever fleeting concerns they might have felt were doubtless swept aside by a shared recollection that the government they had created was so completely bound to the will of the states as to effectively nullify the possibility of an intractable confrontation between them.  Under the terms of the Articles, in short, Congress would be essentially incapable of exerting its will upon the states because it would possess no will that was substantially separate from theirs. By ensuring that delegates to Congress – the only officers of the United States government as described by the Articles – were to be appointed, recalled, or replaced by the various state legislatures at any time of their choosing, the aforementioned Article V effectively made this a foregone conclusion. Even in a time of emergency during which Congress might reasonably choose to exercise its authority to summon state military formations to national service, the men responsible for commissioning the relevant officers and governing and regulating the relevant formations would be exceedingly unlikely to act in opposition to the interests of the states to whose governments they owed their authority. Thus, by its very nature, the national government described by the Articles was seemingly prevented from ever exercising the kind of military coercion most feared and detested by the people it was intended to serve.

Articles of Confederation, Part VI: A Quality of Deference

            Significant though many of the lesser-known provisions of the Articles of Confederation may be to understanding how and why the United States looks and acts the way that it does, the defining characteristic of that document and the government it framed arguably has to do with what it lacks rather that what they possesses. That is to say, it isn’t what the Articles claimed that the national government of the United States of America could specifically do that defined said government during its lifetime and in the centuries since its replacement. Rather, it was the many and various things that the Articles either chose not to assign to the resulting national administration or which it specifically delegated to the states. Compared particularly to that which was described by the later Constitution, the United States government under the Articles was exceptionally small, non-interventionist, and deferential. Indeed, in almost every case in which the Constitution declare the primacy of federal power, the Articles bow to the sovereignty and the discretion of the individual states. The result, upon reflection, is both a study in contrasts and an object lesson. For every question as to the nature of federal power, every reflection upon the necessity of a given national prerogative, the Articles effectively stand as both answer and caution. There was a time, they clearly show, when the government of the United States was much smaller, much weaker, and much less active. And likewise there is a reason – a host of them, even – that this is no longer the case.

            Among perhaps the strangest aspects of the manner in which the Articles define the intended relationship between the resulting national government and the various states has to do with the basic terminology that the relevant text often use to describe said states. Whereas the Constitution proper only really contains a single instance in which the federal view of the individual states is made explicit – i.e. the declaration of Article IV, Section 4, that, “The United States shall guarantee to every State in this Union a Republican Form of Government,” as well as offer protection against invasion and domestic violence – the Articles go to significant lengths to make clear that the national government recognizes and respects the sovereignty and autonomy of the same. Article II, for example, asserts that, “Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.” While the general spirit of this affirmation would seem to be substantially similar to Tenth Amendment’s pledge that, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people [,]” the difference in vocabulary is both striking and substantial.

Nowhere does the Constitution explicitly assert that the states are sovereign, autonomous, free, or independent. While this may appear to be simply a matter of form – there being no belief at the time the Constitution was drafted in 1787 that the states were otherwise than sovereign entities – it nonetheless speaks volumes. What the Constitution seems to take for granted – being more concerned with erecting a stable and effective national government – the Articles make a point of acknowledging first and foremost. The states are independent, capable of autonomous action, and secure in their powers, rights, and jurisdiction, the framers of the latter declared, in effect setting the tone for all that would follow. Article III subsequently builds on this primary condition, asserting that,

The said States hereby severally enter into a firm league of friendship with each other, for their common defense, the security of their liberties, and their mutual and general welfare, binding themselves to assist each other, against all force offered to, or attacks made upon them, or any of them, on account of religion, sovereignty, trade, or any other pretense whatever.

Consider the major difference between this explanation of the purpose of the union of states and that which is offered by the introduction to the Constitution. While the latter firmly establishes the primary beneficiaries of the American union as being, “We the People of the United States,” whose intention is to, “Secure the Blessings of Liberty to ourselves and our Posterity,” the former makes it exceptionally clear that it was the states that were assenting to their newfound association. While this might likewise be described as an aesthetic choice rather than a philosophical one – the states being the embodiment and representation of the American people – this once again fails to lessen its significance.

            In its phrasing, structure, and even the manner of its ratification, the Constitution was intended to establish a firm connection between the citizens of the United States and the national government thereof. The Articles of Confederation are conversely very state-focused, characterizing the American union as a function of the will of the states and an extension of their needs and desires. The description offered by Article III is accordingly somewhat utilitarian. Rather than seek to protect and promote abstract concepts like justice, tranquility, or liberty, it declares the purpose of the United States in terms more akin to a 20^th century mutual-defence pact or economic union than a national constitution. The terms of Article IV seem to further this resemblance by specifically stating that,

The free inhabitants of each of these States […] shall be entitled to all privileges and immunities of free citizens in the several States; and the people of each State shall have free ingress and regress to and from any other State, and shall enjoy therein all the privileges of trade and commerce [.]

Not only could this description be fairly applied to the customs and border control agreement that currently exists within the European Union, but it also implicitly begs a rather important question. Had the framers of the Articles not seen fit to include this clause within the text of Article IV, would the individual states have been disinclined to allow freedom of movement, commerce, and residence to each other’s citizens? Taking it for granted that Dickinson, his committee, and their fellow Congressmen would not have wasted the requisite time and effort required to draft this provision were it otherwise, the answer would seem to be in the affirmative. That being the case, then – the states being so inclined to see themselves as sovereign and autonomous as to require a specific provision of their “league of friendship” mandating that they recognize the rights and privileges of their counterparts’ inhabitants – the cited descriptions of the American union as being between sovereign states rather than a sovereign people would appear to have been both appropriate and expected.    

            Article IV contains two further provisions which likewise speak to this somewhat fragmented perspective on the United States of America, though to a more lasting degree than those cited above. The first reads something like a general extradition treaty. “If any person guilty of, or charged with, treason, felony, or other high misdemeanor in any State shall flee from justice” it asserts,

And be found in any of the United States, he shall, upon demand of the Governor or executive power of the State from which he fled, be delivered up and removed to the State having jurisdiction of his offense.

Article IV, Section 2 of the Constitution contains a slightly more succinct version of this same clause. Evidently, whether governed under the Articles or its comparatively centralized and forceful replacement, specific provisions are required for the constituent states of the American union to assent to the rendering up of violators of each other’s laws. That the former provided this mechanism first, however, remains noteworthy. Whereas the cooperation of the states is in other respects implicit in the text of the Constitution, the Articles nowhere seems to take for granted the fact that the entities it was attempting to bind together were in many respects disinclined to think of themselves as integral elements of the same sovereign nation. A criminal in New Hampshire would not have been considered a criminal in Delaware, in short, absent formal language to that effect.  

The other significant clause of Article IV, which declares that, “Full faith and credit shall be given in each of these States to the records, acts, and judicial proceedings of the courts and magistrates of every other State [,]” was also replicated in the Constitution – Article IV, Section 1 – and likewise gives evidence of the primordial sense of nationhood that the Articles very cautiously sought to encourage. Upon reflection, its necessity is rather obvious. Prior to the creation of the Second Continental Congress in 1775, the First Continental Congress in 1774, the Stamp Act Congress in 1765, or the Albany Congress in 1754 – that is to say, before the Revolution or any of the events that immediately preceded it – the Thirteen Colonies were united only by their language, their culture, and their common connection to the British Crown. There existed no formal mechanism of cooperation between them, and indeed – as the controversy which precipitated the founding of Vermont clearly demonstrates – rivalry and competition were as common as harmony among their number. In consequence, while the events of the 1760s and 1770s most certainly drew the colonies closer together then had previously been the case – to the point that they participated in and recognized the authority of a common government in the form of Congress – there remained no tradition or precedent for any given state to recognize the laws or judgments of any other. New York, for example, would have had no ground to stand on if it suddenly insisted that the findings of its courts were valid in Connecticut or New Hampshire. The colonies-cum-states were born of different origins, recognized different legislative forms and traditions, and possessed individual bodies of law. However much the Anglo-American crisis forced their interests to converge around a set of common objectives, there was no reason to assume that this would cease to be the case.

That the Articles aimed to change this – as made clear by the cited text of Article IV – carries several significant implications. On one hand, it seems fairly obvious that the framers of the Articles – and Congress more generally – intended to more closely integrate the various states which comprised the American union. By breaking down existing legal barriers – thus enabling a New Yorker lawyer to live in Connecticut, get married in Virginia, and work in Pennsylvania without suffering any ill effect – the cited clauses would seem to have no other purpose than to achieve exactly that. Presumably the long term objective of such an endeavor was envisioned as a gradual intermixing of the various American peoples, to the point that residents, say, of the Carolina backwoods would have no reason to think of Massachusetts merchants as anything other than countrymen, each as bound to recognize the rights and liberties of the other as they were to respect the authority of the states in which they each lived and worked. A stronger nation would surely be the result, wherein differences in form and practise in no way impeded the protection of individual rights or the promotion of the general welfare. That the framers of the Articles appeared to seek this outcome would seem to denote their common vision for what the United States could and should become – not just a “league of friendship” among sovereign states, as they themselves were given to describe it, but a nation in which every state formed a fundamental element of a tightly-woven whole.

The fact that specific provisions were required to achieve this end, however, would also seem to indicate that the forging of a united American nation, circa 1777, was hardly a foregone conclusion. Absent declarations to that effect – and the willingness of the various states to recognize them – the thirteen former colonies represented in Congress may well have remained exactly that. They were, after all, sovereign, free, and independent entities whose tendency towards cooperation was both fairly novel – in terms of their shared history – and directed more towards mutual defense than the realization of cultural, legal, or political unity. Evidently, the framers of the Articles saw this – saw precisely which conditions stood in the way of achieving their desired goal – and went about their designated task accordingly. Present conditions would not have allowed them to nullify or ignore the existence or the effect of the states, nor would they have wanted to do so. But by balancing clauses that recognized the autonomy and authority of the states with those that attempted to ameliorate their differences, Dickinson and the members of his committee arguably set in motion the process by which an alliance predicated mainly upon security and trade would evolve into a nation of shared laws, customs, and culture. 

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.