Articles of Confederation, Part IX: the Substance of a Nation

            Having thus far explored the many policy areas in which the national government described by the Articles of Confederation appeared to defer to the states – either explicitly or in practice – it remains to determine and discuss which, if any, prerogatives the framers of said document saw fit to vest solely and unequivocally in Congress. Given the evident determination of this group of men – assigned to the task by the Continental Congress and led by Pennsylvania delegate John Dickinson – to leave as much discretion to the states as possible to conduct their domestic affairs as they saw fit, this is bound to be a short list. Unlike the United States government described by the Constitution, the administration created by the Articles could not direct the states to do much of anything they were not already inclined to attempt of their own accord – from paying into a common treasury, to raising military forces for national service, to requiring that each of them recognize the “records, acts, and judicial proceedings” of every other. It is accordingly notable, by way of juxtaposition, that the Articles contain nothing like the Necessary and Proper Clause – Article I, Section 8 – or the Supremacy Clause – Article VI – both of which presume a degree of deference to national authority at the expense of the states. Dickinson and his committee – and indeed likely the greater share of their countrymen – were seemingly not yet prepared to accept the existence of a national authority whose power was so broad, so penetrating, and so irresistible, particularly in light of the sweeping claims recently made by Parliament to jurisdiction over British America. Most of the responsibilities afforded to the government of the United States under the Articles of Confederation were accordingly slight, carefully delineated, and located in areas not likely to be of concern to the governments of the states.

            Article VI and Article IX contain by far the majority of the exclusive grants of power made to Congress of all those described in the relevant document. The former in particular seems almost wholly concerned with affirming some of the prerogatives to be exercised by the resulting national government, specifically in the areas of war and diplomacy. “No State,” it first declared, 

Without the consent of the United States in Congress assembled, shall send any embassy to, or receive any embassy from, or enter into any conference, agreement, alliance or treaty with any King, Prince or State; not shall any person holding any office of profit or trust under the United States, or any of them, accept any present, emolument, office or title of any kind whatever from any King, Prince or foreign State [.]

Unlike most other provisions of the Articles which seek to delegate authority to Congress, this one notably omits any exceptions or caveats in favor of state autonomy. Congressional authority in this context was therefore absolute rather than conditional. Evidently, the framers of the Articles did not feel there were any circumstances within which it might be acceptable for a given state to unilaterally accede to a treaty or alliance with a foreign entity, or for persons holding public office under the auspices of the Articles to receive “any present, emolument, office or title” from the same. That being said, they evidently did not see fit to entirely foreclose upon the possibility.

Note that the restrictions cited above were only to apply to actions undertaken “without the consent of the United States in Congress assembled.” It would seem logical to infer, therefore, that the framers of the Articles did imagine that Congress might at some point conceivably agree to permit a given state to partake in a foreign alliance or treaty or allow officers of the United States to take receipt of foreign titles or gifts. Recalling how likely it was – based on the terms of Article V in particular – that the resulting national government would be dominated by the intentions and desires of the states, this is perhaps an understandable admission. In the event, say, that a group of states comprising a majority in Congress were determined to accede to a foreign treaty of which certain other states were not a party, they doubtless would have viewed it as an unacceptable restriction upon their sovereignty for the terms of the Articles to forbid from proceeding on their own behalf. That Dickinson and his committee appeared to have anticipated such a scenario, and provided for its resolution in favor of the states in question, is quite telling. The United States Constitution, while making use of exceedingly similar language in Article I, Sections 9 and Article I, Section 10, notably excludes any grant of discretion to Congress. Evidently, by 1787, it was no longer possible for the majority of the political class in the United States to imagine the states acting other than in concert without in some way harming the prospects of the union as a whole.

Nevertheless, the various provisions of Article VI still constitute a noteworthy signifier of contemporary opinion as to the sphere best occupied by a national government. Clearly, the framers of the Articles felt uncomfortable unequivocally restricting the ability of the states to undertake whatever measures their governments and their citizens determined to be in their best interest. All the same, the fact that they sought to provide Congress with a “first right of refusal,” as it were, provides no small degree of insight into the nature of the relationship they collectively envisioned between the major institutions of the American union and its constituent republics. Consider, to that end, another provision of Article VI. “No State shall lay any imposts or duties,” the text asserted,

Which may interfere with any stipulations in treaties, entered into by the United States in Congress assembled, with any King, Prince or State, in pursuance of any treaties already proposed by Congress, to the courts of France and Spain.

That Dickinson and his committee here dispensed with the conditional exception in light of Congressional consent would seem to make clearer still the role that they intended the national government to play in the affairs of the union of American states. In seeking to fulfill the terms of certain agreements provisionally contracted with France and Spain – allied to the United States in its war for independence from Great Britain – no state would be permitted by Congress to lay any taxes or duties that might harm the prospects of the same. Granting that this may seem on the surface a rather academic matter, the implications were in fact anything but.

            By the standards of the 18^th century Anglo-American world – and indeed, by those of its 21^st century equivalent – taxation constitutes one of the fundamental prerogatives of a sovereign political community. To claim sovereignty over a people or a region is to simultaneously reserve the right to draw upon the resources thereof in a manner deemed appropriate by the affected individuals and in keeping with the relevant standards of administration. Within this context, properly levied taxes cannot be refused and improperly levied taxes must be. The Anglo-American crisis in large part pivoted upon the significance of this very maxim – i.e. was it proper for Parliament, as the legislature of the British Empire, to tax the colonies of British America, or did that responsibility rest solely with the colonial legislatures in which the people being taxed were represented? Congress and its supporters emphatically believed the latter to be the case, and it accordingly stood to reason that any attempts by that body to answer similar questions while plotting the future of the American union were likely to be handled with some degree of delicacy and care. The provision of Article VI cited above concerning the ability of individual states to levy certain taxes accordingly represents something rather profound. Within the realm of foreign policy, it seemed, the framers of the Articles were willing to delegate to Congress the authority to restrict a given state(s) from exercising one of its sovereign powers.

Granted, the circumstances in which this clause would have come into effect were quite limited. Likewise, it bears remembering that one of the main reasons that Congress authorized the drafting of the Articles of Confederation – and accordingly sought to create a permanent national government – was to facilitate the foreign relations of the union of states in a manner than ensured consistency and effectiveness. It would therefore seem only reasonable that the framers of the Articles should have been more willing to assert the primacy of national prerogatives within the realm of diplomacy than in most other policy areas of strictly domestic significance. All the same, the cited text of Article VI still represents an exceptional assertion of power on the part of the nascent United States government.  Doubtless it would have been something of an open question whether or not Congress actually possessed the means to prevent any state from levying such duties or imposts as its citizens saw fit – a conundrum discussed at length in a previous entry in this series – though that would seem to be rather beside the point. For the framers of the Articles to have claimed such a power for Congress at all provides a strong suggestion as to their desired delineation of state and national authority as falling within distinct domestic and foreign spheres.

Several provisions within the text of Article IX appear to confirm this impression. The section opens, for example, by stating that,

The United States in Congress assembled, shall have the sole and exclusive right and power of determining on peace and war, except in the cases mentioned in the sixth article – of sending a receiving ambassadors – entering into treaties and alliances, provided that no treaty of commerce shall be made whereby the legislative power of the respective States shall be restrained from imposing such imposts and duties on foreigners, as their own people are subjected to, or from prohibiting the exportation or importation of any species of goods or commodities whatsoever [.]

Examining the various clauses of this opening litany one by one, the framers of the Articles evidently found it necessary to first and foremost reiterate the singular power of Congress within the realm of foreign policy. While, “The cases mentioned in the sixth article” – which permitted states to take up arms in the event of their either being invaded or demonstrably threatened by invasion – would seem to weaken this otherwise plain and unequivocal assertion of authority, a moment’s consideration serves to reinforce the strength thereof. Granting a state government the ability to mobilize its military resources in an act of self-defense does not entail allowing them to decide the course and outcome of the resulting conflict. Whatever the cause of the war in question – however it started and whatever immediate response was made necessary by contemporary communications technology – Congress, “Shall have the sole and exclusive right and power of determining on peace and war [.]” With armed conflict yet raging between Britain and the nascent United States of America, this was doubtless understood to be both a necessary and desirable assertion.

            As to the diplomatic affairs of the United States of America, the cited text of Article IX evinces a similar attempt to balance the needs and the authority of the national government with those of the state governments. In addition to determining upon matters of war and peace, Congress was to possess sole authority in the realm of, “Sending and receiving ambassadors [and] entering into treaties and alliances [,]” provided that the relevant agreements did not place restrictions upon certain legislative prerogatives possessed by the states. Combined with the previously-discussed provisions of Article VI concerning the ability of Congress to restrict the diplomatic activities of the states, the balance of power would seem to be distinctly tilted in favor of the national government. While the states could accede to foreign treaties or alliances, expect foreign persons within their jurisdiction to pay the same taxes required of their citizens, and prohibit the import or export of whatever “goods or commodities” they pleased, Congress reserved the right to deny their diplomatic aspirations and restrict their ability to levy duties or excises that directly conflicted with its own aims and intentions. As with the war powers described by Article IX, discretion here seemed to lay chiefly with Congress, and exceptions in favor of the states were both few and very specific. Dickinson and his committee were evidently of the opinion that – save for in certain relatively uncommon cases – it was more important that the government of the United States be permitted to speak to the rest of the world with confidence and consistency than for the constituent republics thereof to at all times enjoy the exercise of every prerogative to which their sovereignty ostensibly entitled them.

            Likely more arcane to the average 21^st century observer – but no less important to the discussion at hand – are the clauses of Article IX which sought to assert Congressional authority over prize courts and privateers. By way of explanation, prize courts are a type of tribunal – once quite common but now virtually obsolete – wherein cases having to do with the capture and disposal of property seized in time of war are heard and decided. Most often applied to vessels taken at sea, these tribunals were responsible for deciding whether the relevant capture was legitimate under the rules of war, how or whether the vessel was to be liquidated, and to whom the resulting funds were to be disbursed.  Bearing all of this in mind, the United States government was to be possess – on the authority of the aforesaid Article IX – sole responsibility for,

Establishing rules for deciding in all cases, what captures on land or water shall be legal, and in what manner prizes taken by land or naval forces in service of the United States shall be divided or appropriated – of granting letters of marque and reprisal in times of peace – appointing courts for the trial of piracies and felonies committed on the high seas and establishing courts for receiving and determining finally appeals in all cases of captures, provided that no member of Congress shall be appointed a judge of any of the said courts.

With all due respect to the rich history of prize courts in the Anglo-American world – and in particular to those noble few who have made a career of studying the same – the minutiae of this passage are relatively unimportant. The states had already established their own prize courts and issued commissions to privateers by the time the Articles of Confederation were being drafted and debated in the late 1770s, and the cited text would seem to betray no hint of any intention to change this arrangement in practice. Rather, the framers of the Articles appeared only to desire the application of a degree of Congressional oversight.

    It perhaps also bears noting at this point that the creation and administration of prize courts in America had, previous to the declaration of independence in 1776, fallen under the jurisdiction of the British Admiralty – led by the Crown-appointed Lord High Admiral. The commissioning of prize courts by the states upon the outbreak of the Revolutionary War accordingly represented a (unilateral) transfer of power from a national authority to a series of local ones. The relevant text of Article IX, while not necessarily seeking to reverse this exercise in decentralization, nevertheless constituted a reaffirmation of national responsibility over some of the basic practices of maritime warfare within the jurisdiction of the United States of America. The framers of the Articles did not intend for Congress to claim sole authority over the creation and direction of prize courts, as the cited text makes clear. Rather, they merely asserted that Congress would be solely responsible for setting the rules by which prize cases were decided and for establishing courts to hear the appeals thereof. Just so, rather than forbid the states from issuing letters of marque – by which privateers could claim the right to prey upon the vessels of an enemy nation – in all cases whatsoever, Article IX instead reserves to Congress the sole responsibility for granting such commissions only in times of peace. Along with the accompanying assertions of Congressional authority over the trial of piracy and other crimes committed on the high seas, these careful delineations of power appear to have been constructed around a fairly straightforward objective. With all due deference to present circumstances, Dickinson and his committee seemed to have desired the restoration of a familiar dynamic whereby matters pertaining to maritime law were to ultimately be decided at a national rather than local level.