It
should be fairly clear thus far that the style of government described by the
Articles of Confederation was based on often drastically different assumptions
about power and sovereignty than those most commonly nurtured by citizens of
the United States during the better part of its history. Whereas the exercise
of federal authority – and the resulting push and pull between federal and
state authority – has at any given time effectively defined the horizons of American
political culture, the national government as described by the Articles
possessed almost no executive power to speak of and tended to bow to the will
of the states in almost all areas of domestic importance. In spite of the fact
that this would appear to set the Articles apart as something of an outlier in
the history of American constitutional thought, however, there are several provisions
therein which would seem to indicate otherwise. Specifically, clauses located
in Articles IX and XI concerning the territorial expansion of the United States
suggests that one of the prime motivating impulses behind much of the American
republic’s foreign and domestic policy in the 19th century was
present and accounted for even during the drafting of the Articles of
Confederation in the late 1770s. In consequence, though the authors of the same
placed far less faith in the propriety of a strong national government than
subsequent generations of American citizens and public servants, even they
believed that it was essential – if not, indeed, expected – for the United
States to at some point surmount its territorial boundaries.
Granted,
the first such provision appears rather to hint at the prospect of expansion
than describe it as a principle aim. An understanding of the context in which
it was written, however, strongly indicates its purpose to have been exactly
that. Located approximately halfway through the lengthy and multifaceted
Article IX, the relevant clause reads, in full:
All
controversies concerning the private right of soil claimed under different
grants of two or more States, whose jurisdictions as they may respect such
lands, and the States which possess such grants are adjusted, the said grants
or either of them being at the same time claimed to have originated antecedent
to such settlement of jurisdiction, shall on the petition of either party to
the Congress of the United States, be finally determined as near as may be in
the same manner as is before prescribed for deciding disputes respecting
territorial jurisdiction between different states.
Dense language – one might say
breathlessly legalistic – notwithstanding, the implication of this passage
would seem to be fairly straightforward. Whereas Article IX described a
procedure – discussed in a previous post in this series – by which Congress
would attempt to adjudicate disputes that happened to arise between two or more
states, “Concerning boundary, jurisdiction or any other causes whatever [,]” the
clause cited above proscribed the same remedy for disagreements, “Concerning
the private right of soil claimed under different grants of two or more States
[.]” While this would otherwise seem to fall under the heading of “any other
causes whatever,” the fact that the framers of the Articles made specific
provision for the resolution of private land disputes would appear to signify
that they had something specific in mind.
Consider,
in addition, the significance of this same provision describing the states
applying to Congress for a resolution as being those, “Whose jurisdictions as
they may respect such lands, and the States which possess such grants are
adjusted, the said grants or either of them being at the same time claimed to
have originated antecedent to such settlement of jurisdiction[.]” First, it
would seem that the relevant mechanism of adjudication applied specifically to
those states whose respective jurisdictions – or boundaries, or borders – had
already been adjusted – or harmonized, or reconciled. Second, the disputed
private claims whose settlement was desired were to be those whose origins lay
in the period preceding the aforesaid jurisdictional adjustment. Combined,
these distinctions indicate that the disputes to be addressed did not pertain
to the overlapping territorial claims made by the states themselves, but rather
to the private claims of citizens within certain states whose formal
territorial boundaries had already been settled. As this would necessarily seem
to exclude disagreements like those that persisted in the Great Lakes region –
wherein the competing claims of Connecticut, Massachusetts, Virginia, and New
York eventually gave way to the creation of the Northwest Territory – or which
existed between a number of states in the Northeast through the late 1780s, the
potential application of such a provision would appear to have been quite
narrow. Indeed, only one circumstance comes to mind whose significance to the
territorial status of the United States would have warranted the inclusion of a
specific clause within the text of the Articles of Confederation - i.e. that of
the State of Vermont.
Granting
that the history Vermont through the 1780s has already been discussed at length
in a previous entry in this series (link), it would nonetheless seem prudent
here to reiterate a few key points. The most important of which must surely be
that Vermont was not a member of the United States of America during the
Revolution, did not send delegates to the Continental Congress, and
participated in the Revolutionary War against Great Britain as voluntary allies
of the American states. Indeed, it was not until March, 1791 – after the
Constitution had been adopted but before the ratification of the Bill of Rights
– that the Green Mountain State was formally admitted to the union as the
fourteenth state. Prior to that, Vermont functioned as an independent – though
largely unrecognized – republic. The reason for this had everything to do with
geography, colonial rivalries, and the kinds of popular discontents awakened
and nurtured by the events of the 1760s and 1770s.
Beginning in the 1740s, New
Hampshire Governor Benning Wentworth (1696-1770) began selling land grants in
what is now southern Vermont at a time when it was not yet clear whether the
region fell under his jurisdiction or that of the neighboring Province of New
York. As these selfsame grants were being offered on relatively favorable terms
for the era – only nominal rents were required, for example, with land being
owned in full by the purchaser – settlers flocked to the region from several of
the surrounding colonies. As New England-style townships were being accordingly
erected, however – under names like Rutland, Bennington, and Burlington – authorities
in New York were issuing their own grants, chiefly to already wealthy
landowners eager to expand their rented holdings. Matters came to a head in the
1760s when, upon encountering New Hampshire surveyors in territory they
believed to fall within their jurisdiction, the government of New York
petitioned the Board of Trade – a committee of the Privy Council then
responsible for overseeing the various colonies of British North America – for
formal adjudication. The verdict, rendered in July, 1764, found for New York,
declaring that the boundaries of the colony encompassed all of the land on the
Western bank of the Connecticut River, “From where it enters the province of
Massachusetts Bay as far north as the 45th degree of northern latitude [.]”
While Governor Wentworth agreed to relent, the residents of the disputed
territory who had already purchased land under his authority could not afford
to be so sanguine. Since the relevant authorities in New York interpreted the
Board of Trade’s decision as effectively nullifying the New Hampshire grants,
holders of the same were faced with the prospect of either purchasing their
property a second time – often at a drastically increased price – or having it
seized and resold.
When a New York Supreme Court decision
confirmed this eventuality in 1770, a number of the effected inhabitants
determined to form a local militia force – thereafter known as the Green
Mountain Boys – for the purpose of resisting the campaign of confiscation,
harassing the holders of New York grants, and putting a stop to all further
attempts to survey and sell property in the disputed area. Led by charismatic
local residents like Ethan Allen (1738-1789) and Seth Warner (1743-1784), the
Green Mountain Boys spent the next several years attacking survey parties,
destroying property, issues public threats, and generally endeavoring to make
it as hard as possible for New York to assert its authority in the region. And
while the beginning of the armed phase of the American Revolution effectively put
a stop to this campaign of agitation – even prompting the Green Mountain Boys
to submit themselves to the authority of New York military officers like Philip
Schuyler (1733-1804) for the purpose of joining the American war effort – the
core dispute between holders of the New Hampshire grants and the government of
New York remained fundamentally unresolved. Indeed, it was for this exact
reason that Vermont was not permitted to send delegates to the Continental
Congress; having formulated a petition to that effect in 1776, the members of
the New York delegation prevailed upon their colleagues to reject Vermont’s
request outright. Seemingly undaunted, a committee of residents drafted and
ratified a state constitution on July 8th, 1777 at the town of
Windsor, elected a Governor in the person of Thomas Chittenden (1730-1797), and
began the process of acquiring diplomatic recognition from key European powers.
At the time the Articles of
Confederation were drafted, therefore, Vermont occupied a rather unusual position
within the evolving power dynamic of contemporary North America. It was neither
a member of the United States of America, nor a completely independent nation.
There were, of course, no formal ties between the government of Vermont and the
Continental Congress, or between Vermont and any of the individual American
states. Indeed, there could not be, so long as New York had any say in the
matter. Nevertheless, the Green Mountain Boys were granted recognition as a
regiment of the Continental Army, with their expenses to be paid out of the
treasury of the State of New York. Furthermore, there seemed to be every
intention on the part of the government of Vermont that the state would
eventually and rightfully take its place in Congress. Repeated, unsuccessful
petitions were made to this effect over the course of the 1770s and 1780s, and
much of the symbolism adopted by the founders of Vermont – from the design of
coins to the state seal itself – attached a special significance to the notion
that theirs was destined to be the fourteen state of the American union.
Standing in the way of this outcome, however, was the persistent unwillingness
of authorities in New York to recognize the validity of the New Hampshire
grants.
To
reiterate, the nature of this disagreement concerned the refusal of one state –
New York – to recognize the private land grants issued under the authority of a
second state – New Hampshire – following the formal adjustment of a boundary
dispute between the relevant parties – circa 1764. As this would seem to fall
rather exactly within the parameters of the cited clause of Article IX, there
would appear to be little reason to doubt that the authors thereof were working
under the assumption that the settlement of the Vermont question was a
desirable outcome. Indeed, they evidently went out of their way to provide the
government established by the Articles with a formal assurance that the
mechanism they had created for the settlement of disputes between states was
directly and specifically applicable to the ongoing controversy concerning the
status of Vermont. On one hand, this would seem a rather obvious thing for the
framers of the Articles to have planned for. Vermont represented exactly the
kind of loose end – having its origins in a colonial-era dispute over
jurisdiction and property rights – that the creation of a national government
was intended to resolve. To that end, the 1780s witnessed any number of border
adjustments between states at the behest of Congress as the often vague terms
laid down in 17th century colonial charters were reconciled with the
need to promote harmonious and efficient relations between the constituent
states of the nascent American republic. While the Vermont issue was very much
of a piece with these readily settled disagreements, however, its potential
resolution possessed much greater significance for the future of the United
States as a whole.
If,
upon taking up the matter in Congress, the relevant authorities found in favor
of the state of New York, it would have presumably brought to an end any
ongoing attempt by the government of Vermont to petition the United States for
membership in the same. Perhaps emboldened by the backing of Congress, New York
would doubtless have then determined to firmly and finally assert its
jurisdiction in the disputed territory. Without a war to distract the attention
of its adversary – and seemingly without allies among neighboring states loathe
to question the authority of an adjudication process that many of them had
themselves invoked or would seek to invoke – it is an open question how long
the Green Mountain Boys could have succeeded in asserting the legitimacy of
their widely unrecognized republic. While this, in itself, represents a potentially
troubling prospect, the alternative was likelier still to re-define the nature
of the United States and point the way towards its future on the continent.
Because if, upon taking up the matter in Congress, the relevant authorities
found in favor of the state of New Hampshire – or rather, in favor of the
holders of land grants sold under the authority of New Hampshire – it would
have presumably secured the recognition of Vermont by the government of the
United States and made its admission to the union a fait accompli. The
government of New York may well have grumbled at this, lodged complaints, or
perhaps even refused to recognize the outcome, but it would seem doubtful
they’d garner much support in Congress. Again, arbitrating among the states was
one of the few responsibilities that the Articles delegated to the national
government described therein, and it was to the benefit of every state to abide
by the resulting judgements lest they do harm to their prospects upon some
future appeal to the same.
In
consequence, while the authors of the cited passage of Article IX were
ostensibly trying to ensure that one of the most significant lingering
territorial disputes among the American states could and would be resolved via
an appeal to Congress, they were also tacitly laying the groundwork for the
first admission of a new state to the union. Not only did this imply their
understanding of the United States of America as being flexible enough to
encompass more than just the thirteen founding states, it also potentially
indicated a preference on their part as to the manner by which subsequent
states were admitted. If, after all, the first state to join the union after
the founding of the American republic did so voluntarily, as a de-facto
independent nation with a constitution and civil government all its own, this
would set a precedent. Rather than allow existing states to expand, or grow via
the annexation and occupation of neighboring territories, the United States
would instead be inclined to admit those duly-constituted entities whose
governments petitioned to join. By the standards of the era – during which
territorial conflicts between imperial powers was, and had been for centuries,
very much the norm – this represented something of a revelation. None of this,
of course, was spelled out in the text of the Articles themselves. But the
implication – of Congress deciding in favor of the New Hampshire grant holders,
recognizing Vermont, and admitting it to the union – was absolutely present.
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