The Rights of the British Colonies Asserted and Proved, Part II: Hail Britannia

            As compared to the later Stamp Act (1765), whose widespread application led to a widespread response among the residents of British America – up to and including public protests, riots, vandalism, vigilante activity, and the first collective political action campaign in the history of the Thirteen Colonies – the Sugar Act (1764) was something of a trifle in its day. Its direct effects were felt by few in America – i.e. merchants and distillers – and the public response was accordingly somewhat slight. Granted, the legal implication that so aroused the anger of many Americans in 1765 – that Parliament reserved the right to lay direct taxes upon the people of British America – was fundamentally present in the text of the earlier legislation. The narrow scope of the Sugar Act, however, seemed to limit the degree to which this became a major cause for public concern. The few instances in which substantial protest was offered, while often thorough, earnest, and even forceful in tone, were accordingly less outraged than concerned, less accusatory than consultative. The Rights of the British Colonies Asserted and Proved, by one James Otis, was very much of this character.

Whereas, following repeated assertions by Parliament as to the legitimacy of its claim to tax the colonies of British America “in all cases whatsoever,” American opposition responses were as likely to decry the existence of a conspiracy within the British government aimed at subjugating the people of America as they were to assert the deference all American continued to owe to Parliament and the Crown, Asserted and Proved was exceedingly respectful in its treatment of the institutions and officers of the British state. Indeed, one of this selfsame document’s most striking aspects is the degree to which its author sought to frame his various assertions within a context of affection, reverence, and even adoration for British history, law, customs, and culture. It was not merely that he was eager to stress the pride he felt in being a subject of the British Crown or that he believed the British Constitution to be the best in the world as a means of dispelling any suspicions of disloyalty. Rather, it seemed that the essence of the argument embodied by Asserted and Proved – that Parliament lacked the authority to lay taxes directly upon the people of British America – was so completely lodged in British history, and statute, and case law as to make the assertion of one essentially impossible without resort to the other. In this sense, Asserted and Proved ought not to be understood as a fiery denunciation of contemporary British tax policy. It would instead be more accurate to characterize its approach and its tone as one of dutiful remonstrance. Otis was not interested in delegitimizing either the British state in general or even the sitting government of the day, but rather sought to correct behavior which he felt threatened to unravel the very essence of British – and, by extension, American – liberty. 

To be clear, it was to the form and logic of the British state as it existed at the end of the 18^th century that Otis professed his allegiance and affection. This would normally go without saying – save in the instance that the subject in question was an ardent Jacobite – but for the fact that Otis made a point of declaring so in the opening paragraphs of Asserted and Proved. The Magna Carta and the Bill of Rights were the great symbols of his faith in British law and government, he asserted, and the monarchs and pretenders of the House of Stuart the ogres whose wickedness stood in stark opposition to the justice upon which the modern British state was founded. “The present happy and most righteous establishment,” he further enthused,

Is justly built on the ruin, which those Princes bro’t on their Family; and two of them on their own heads – The last of the name sacrificed three of the finest kingdoms in Europe, to the councils of bigoted old women, priests and more weak and wicked ministers of state: He afterword went a grazing in the fields of St. Germains, and there died in disgrace and poverty, a terrible example of God’s vengeance on arbitrary princes!

In point of fact, the “last of the name” was a reference to James II (1633-1701), who, though he did indeed die and was buried in exile at the Château de Saint-Germain-en-Laye in 1701, was neither the last of his name – his daughters Mary II (1662-1694) and Anne (1665-1714) reigned after him – nor lived his final years in “disgrace and poverty.” The effect of these misstatements, however, has little to do with the argument that Otis was attempting to make. In so repudiating the Stuart monarchs and describing their downfall as self-inflicted and richly deserved, he accomplished the dual purpose of affirming his fealty to the current – i.e. post-Glorious Revolution – constitutional order and providing insight into his own moral cosmology. To his thinking, it would seem, iniquity always met with punishment and justice always met with reward. Otis elaborated upon the mechanism by which this was accomplished in the paragraphs that followed.

            Of the momentous events that resulted from the deposition of James II in 1688, Otis declared that, “The deliverance under God wrought by the prince of Orange, afterward deservedly made King Wm. 3rd. was as joyful an event to the colonies as to Great-Britain: In some of them steps were taken in his favor as soon as in England.” In addition to expanding his personal affirmation of the post-1688 British state on behalf of the American colonies at large, this passage gave evidence of a belief on the part of Otis that the British/American people were the means by which the relevant change was made possible. “Steps were taken in his favor,” he wrote, referring to William III (1650-1702), in the colonies, “as soon as in England.” That the prospective king would need steps to be taken in his favor – indeed, that his ascension to the throne was as much the product of an internal revolution as a foreign invasion – would seem to indicate that popular affirmation was an essential element of his rise to power. Otis appeared to verify this conviction when, in the following paragraph, he said of the aforementioned colonies that, in 1688, “They all immediately acknowledged King William and Queen Mary as their lawful Sovereign.” The fact that he felt this worth stating – that he thought it mattered within the context of the Anglo-American relationship from where the Crown derived its authority – further indicates that Otis drew a distinct connection between the validity of a change in the political order of the British state and the response of the people to the same. It was not merely a question of loyalty to Otis – though he certainly made clear the degree to which he believed the colonists had been loyal to Britain, its governments, and its monarch – but of responsibility, vigilance, and honor.

            The passage that would seem to make this clearest – that speaks most strongly to its author’s belief that the surpassing quality of the British nation to a significant degree hinged upon the virtue of its people – is ironically grounded upon a somewhat arcane legal doctrine. After first declaring – as he often did throughout the text of Asserted and Proved – that he and his countrymen were wholly pleased and prepared to yield, “To the power of that august body the parliament of Great Britain,” Otis proceeded to assert that a statute dating from the reign of Queen Anne further encapsulated his personal understanding of the relationship between the Crown, Parliament, and the people. The act in question, he explained,

Which makes it high treason to deny “that the King with and by the authority of parliament, is able to male laws and statutes of sufficient force and validity to limit and bind the crown, and the descent, limitation, inheritance and government thereof” is founded on the principles of liberty and the British constitution [.]

The specific legislation to which Otis referred was the Succession of the Crown Act (1707). Essentially a companion piece to the Act of Settlement (1701), it laid out certain of the logistical details by which a Protestant succession to the throne was to be secured, the procedures that would be undertaken in the event of a vacancy of the throne between the death of the previous monarch and the ascension of their successor, and the means by which interference in any of these processes would be punished. The section cited by Otis fell under third heading, declaring, as it did, the denial of the right of Parliament and the Crown to make laws that affected the succession of the latter to be a form of treason.

            What this has to do with Otis’ understanding of the constitutional order of the British state is not directly stated, though the line that follows would seem to make his intention clear enough. Having declared, as cited above, that the statute in question was “founded on the principles of liberty and the British constitution,” Otis thereafter stated,

He that would palm the doctrine of unlimited passive obedience and non-resistance upon mankind, and thereby or by any other means serve the cause of the Pretender, in not only a fool and a knave, but a rebel against common sense, as well as the laws of God, of Nature, and his Country.

Provided with this declaration, it becomes possible to surmise the meaning that Otis likely hoped to impart. Parliament, as guaranteed by documents like the Bill of Rights (1689) and the Magna Carta (1215), was the repository, protector, and instrument of the will of the British people. The Crown, while possessed of certain essential prerogatives, was likewise bound to respect and obey the sovereignty of the same. The outcome of the English Civil War (1642-1651) and the Glorious Revolution (1688) served to ratify these principles to the greatest effect possible. It therefore stood to reason that Parliament – on behalf of the British people – must have also possessed the authority to limit or alter the mechanism by which the Crown descended from one holder to another. To deny this assertion – by, for example, claiming the right of “the Pretender” James Francis Edward Stuart (1688-1766), son of James II, to inherit the throne – was to effectively deny the right of the people to alter the composition of their government as they say fit and in keeping with “the laws of God, of Nature, and [their] Country.”

            By the reasoning of James Otis, therefore, while the people of Britain and America indeed owed their loyalty and their obedience to the Crown and to Parliament, they owed an even greater fealty to the laws upon which both of these institutions were grounded. Note, by way of confirmation, the exact phasing utilized in one of the passages cited above. The colonies of British America, upon receiving news of the overthrow of James II in 1688, “immediately acknowledged King William and Queen Mary as their lawful Sovereign.” The use of the word “lawful” here would seem to be essential to the message that Otis was trying to communicate. From his perspective, the colonists did not simply opt to replace one monarch with another as their believed it served their common interests. Rather, they determined to forsake a king whose behavior had invalidated his claim to the throne and acknowledge the superior – i.e. lawful, just, right, correct – prerogative of his declared successor. William and Mary were accordingly owed obedience, not because they claimed a right to it but because the British people had affirmed that the laws of the nation – and perhaps of even higher things than that – were on their side. While it would accordingly seem fair to characterize the people – as guided by law, justice, and precedent – as the prime mover within Otis’ conception of the constitutional order of the British state, the exact nature of his understanding of the power dynamics therein was yet more complicated.

    Indeed, Asserted and Proved evinced a somewhat more nuanced and holistic view of what its author believed to be the signal virtues of the British system of government than the citations noted above might indicate. It was not only the degree to which British institutions recognized the inviolable sovereignty of the individual, for instance, but the quality of British law and the firmness of its civil guarantees. Of the former, Otis asserted that the British subject was particularly blessed for the style of title – “Common soccage,” by which the holder of a property customarily owed their landlord only a fixed payment rather than some form of military service – that secured their landed possessions. It was, he declared, “The freest feudal tenure, by which any hold their lands in England, or any where else.” In point of fact, compared at least to contemporary Europe, this statement was not at all far from the truth. Whereas serfdom wasn’t formally abolished in the extensive territories of the Hapsburg dynasty – i.e. Austria, Hungary, and central Europe – until 1781, and feudalism persisted in France until 1789 and in Poland and the major German states until the early 19^th century, Parliament legally ended almost all feudal title in England in 1660 via the Tenures Abolition Act. Thereafter, the majority of existing feudal obligations were converted into “free and common socage,” under the terms of which not even rent was to be any longer collected from the property holders in question. For Otis, this state of affairs – whereby the elected legislature of the British people made a point of limiting the means by which the Crown and its landed dependents could call upon their tenants for military service – was doubtless both a source of pride and confidence. Not only did the relevant legislation exemplify precisely the type of restraint upon arbitrary prerogatives that he was wont to celebrate, but it also served to affirm what he knew to be the unique and precious freedom to which every British subject was entitled.

The Rights of the British Colonies Asserted and Proved, Part I: Context

            Over the course of this series, much has been said about the role played by the Continental Congress in shaping the course of the American Revolution. Documents written by several of its members and published in its name have been explored at length, resolutions passed under its authority have been examined in detail, and the actions of certain of its officers – from Foreign Minister John Jay (1745-1829) to Commander-in-Chief George Washington (1732-1799) to committee chair John Dickinson (1732-1808) – have been discussed in the context of that selfsame body’s agenda and priorities. This is a proper and fitting state of affairs – in light of the influence Congress collectively exercised during the first crucial years of the United States of America – though not one which should be thought to represent the totality of the Revolutionary experience. Congress did not summon the Revolution into existence, after all, nor did it represent the first instance by which those citizens of British America who were dissatisfied with the evolving character of the relationship between their local governments and that of Britain proper make known the nature and quality of their grievances.

The aforementioned John Dickinson, for example, published a series of anonymous missives between 1767 and 1768 – the so-called Letters from a Farmer in Pennsylvania – giving voice to his considered opinion that the acts lately passed by Parliament for the raising of a revenue in America were invalid because they violated the internal sovereignty of the relevant colonies. Similar private efforts at spurring public debate were also made by the likes of Samuel Adams (1722-1803) with his Journal of Occurrences – chronicling the events of Boston’s occupation by British troops beginning in 1768 – Richard Bland (1710-1776), author of An Inquiry into the Rights of the British Colonies, and the Boston Committee of Correspondence, whose Boston Pamphlet (1772) strongly asserted the rights possessed by the citizens of British America and outlined the various ways in which those same rights have been repeatedly and unjustly subverted. Additional condemnations of British policy was rendered by, among others official bodies, the colonial legislatures of Massachusetts – with its Circular Letter (1768) – and Virginia – with its Virginia Association (1769) and Virginia Resolves (1765) – as well as by the combined representatives of nine colonies assembled in New York City as the Stamp Act Congress (October 7^th-25^th, 1765). Clearly, then, years before even the 1^st Continental Congress assembled in Philadelphia in September of 1774, public debate in the Thirteen Colonies over the nature of their relationship with Great Britain had been articulated, guided, and influenced by a number of individual and collective actors. Congress should therefore rightly be thought of as an inheritor rather than the originator of the Revolutionary discourse.

Even these early expressions of political discontent, however, had their antecedents. And while one may fairly venture far, far back into the mists of colonial history in search of precedent for either civil confrontation or armed rebellion between citizens of British America and representatives of Parliament and the Crown, one document in particular presents a fascinating example of political and philosophical dissent that predates all of those pamphlets, missives, articles, and circulars named above while still addressing the same historical context. The Rights of the British Colonies Asserted and Proved by James Otis, Jr. (1725-1783) was in fact written and published before the passage of the Intolerable Acts (1774), the Tea Act (1773), the Townshend Duties (1766), and even the Stamp Act (1765). Indeed, it was the promulgation of the Sugar Act (1764) which prompted Otis to make known his frustrations and his desires as to the present and future of the Anglo-American relationship. In consequence, whereas the abovementioned documents were all written and published within an atmosphere of increasing tension – as American petitions for relief were met with British ministerial retrenchment – Asserted and Proved was one of the first attempts by a resident of the colonies to address what was theretofore an unexpected – and to the thinking of Otis, quite possibly mistaken – shift in Britain’s policy towards its American possessions.

The tone of the piece is accordingly very calm, measured, and even humorous at times as its author seeks to illuminate and rectify what he evidently believed to be an error in judgement rather than a deliberate attack on his and his countrymen’s sovereign rights. Otis correspondingly presents himself as a loyal, affectionate, and respectful subject of the Crown, speaks with awe of the British Constitution and the empire grounded upon it, and makes clear that his fondest desire is only to see the bond between Britain and America strengthened and renewed. For all the praise it lavishes upon all things British, however, Asserted and Proved is far from an unqualified panegyric. Otis was dismayed by the passage of the Sugar Act, and particularly by what it seemed to augur for the Anglo-American relationship. By exploring and elaborating upon this sense of dissatisfaction, Otis revealed a personal understanding of law and political philosophy – within the particular context of British citizenship – very much in keeping with what would soon become the orthodoxy of the Patriot opposition. It was not mere precedent itself which ought to hold sway, he concluded – not only the Common Law tradition upon which the British Constitution was grounded – but the moral principles that the law was supposed to serve.  Asserted and Proved thus constitutes a subtle, moderate, and yet principled consideration of the issues which would soon give rise to an intractable crisis, a political standoff, and an armed revolution.  

Before attending to these heady topics, however, it would seem wise to first say a few words about the man who sought to address them. James Otis, Jr., it should come as no surprise, was the son of James Otis, Sr. (1702-1778), lawyer, one-time Attorney General of Massachusetts, and outspoken political opponent of Governor Thomas Hutchinson (1711-1780). From his father, the younger Otis appeared to inherit a taste for the law, strong political convictions, and a willingness to defy authority at the cost of personal advancement. Indeed, most of his immediate family seemed to possess some or all of these traits – from brother Samuel Allyne Otis (1740-1814), Massachusetts delegate to the Continental Congress, to sister Mercy Otis (1728-1814), Revolutionary playwright and historian, to nephew Harrison Gray Otis (1765-1848), Congressman, Senator, and later Mayor of Boston – doubtless owing both to the influence of patriarch James Sr. as well as the oft-fractious nature of contemporary Massachusetts politics. Of the latter, it bears mentioning that the Otis children – Mercy included – were encouraged by their father from an early age to prize education and public service above the pursuit of wealth or fame. James Jr. was accordingly sent to Harvard College in 1743, attained the provincial bar, and began a successful public legal career. Of the former – the impact of political events upon the early life and character of James Otis the younger – one incident in particular appears to stand out. When, in 1761, the elder Otis was passed up by Governor Francis Bernard (1712-1779) for the office of Chief Justice of the Massachusetts Supreme Judicial Court in favor of the aforementioned Hutchinson – then the sitting Lieutenant Governor – his son and namesake determined to resign his prestigious position as Advocate-General of the Admiralty Court in a gesture of protest. Shortly thereafter – as if to drive the point home – the younger Otis took on a series of pro bono cases on behalf of colonial merchants who sought to challenge the legality of the so-called “writs of assistance” that had been issued to British customs officials then operating in Massachusetts.

These writs essentially functioned as general search warrants that possessed no fixed expiry date, no limitations as to which premises could be searched, and no specifications as to whom they delegated authority. In consequence, a single writ could be used to justify a search of any dwelling at any time, could be transferred from one holder to another, and were valid for as long as their formal issuer – i.e. the British monarch – remained alive. Eager to ferret out smugglers guilty of violating the provisions of the Navigation Acts, the government of the Duke of Newcastle (1693-1768) began issuing these orders in significant quantities beginning in 1760 to the consternation of those merchants whose property became subject to virtually limitless search and seizure. When, upon the death of George II (1683-1760), all the writs in circulation faced a sudden expiry date of April 25^th, 1761, the merchants of Massachusetts seized the unexpected opportunity to challenge the validity of the practice itself. Otis, on behalf of a group of sixty-three clients, filed suit three weeks after news of the pending expiration reached British America, and went on to argue the case in Boston in February and November of 1761. His oration during the former hearing was nearly five hours long and reportedly quite passionate. No less than John Adams (1735-1826), then a young lawyer at the beginning of his career, was in fact present for this occasion, and recorded in his diary for the day’s entry that, "Otis was a flame of fire; with a promptitude of classical allusions, a depth of research, a rapid summary of historical events and dates, a profusion of legal authorities." While the merchants ultimately lost their case and new writs were promptly issued, Otis had succeeded both in making a name for himself within the emerging opposition to contemporary British rule in America and in inspiring others – like Adams – to become more involved in the same.

The next ministerial policy to raise the ire of Otis and his contemporaries was the aforementioned Sugar Act (1764), proposed by the government of Prime Minister George Grenville (1712-1770) as a permanent extension of the earlier Molasses Act (1733). The latter, set to expire in 1763, had sought to promote the purchase by North American merchants of molasses produced in the British West Indies by imposing a tax of six pence per gallon on all examples of the same commodity originating in non-British overseas possessions. While the validity of this excise was generally accepted by the citizens of Britain’s American colonies – its intent being to regulate trade rather than generate revenue – smuggling nonetheless became a very common means by which New England rum distillers in particular skirted its enforcement. Incapable of offering stronger execution in the face of such a widespread trafficking regime – as well as the bribery and intimidation of customs officials – the British government effectively ceased to enforce the terms of the Molasses Act by the end of the 1740s. The conclusion of the Seven Years War (1754-1763), however, along with the changes it wrought upon the empire, ultimately prompted a reexamination of this admittedly failed program, both in terms of the opportunities that appeared to present themselves and the issues that seemed to warrant a definitive resolution.        

In an attempt to provide stable employment to thousands of British Army officers set to be demobilized following the end of hostilities in 1763 – many of whose families possessed significant influence among the ministerial elite – the short-lived government of the Earl of Bute (1713-1792) proposed to establish a garrison of ten thousand men on permanent station in Britain’s North American colonies. Bute’s successor, the aforementioned Grenville, seconded this scheme – a decision much aided by the outbreak of an uprising of Native American tribes in May of 1763 – while also seeking to locate a source of funding. In addition to the cost involved in paying and supplying such a large military force indefinitely, Grenville was eager to begin servicing the greatly-expanded national debt, which had grown from seventy-five million pounds before the war to almost one hundred and thirty million at the beginning of 1764. Looking to North America itself – the defense of which during the late war had contributed significantly to this same increase in spending – the government alighted upon a potential solution in the form of the aforementioned – and functionally obsolete – Molasses Act. If the tax was halved, and if the necessary measures were put in place to see it collected, it was felt that the sudden opening of trade brought about by the end of hostilities and the influx of consumers into the British imperial market facilitated by the annexation of Quebec would serve to generate a sizable revenue while generating a minimum of domestic resentment.

Signed into law as of April, 1764, the response that the Sugar Act received in British America was decidedly mixed. There were most certainly calls of protest, particularly among those whose livelihood was directly affected. Merchants suffering the consequences of a sluggish economy – brought on in large part by the sudden loss the British military as a principle customer – were quick to lay the blame for their newfound financial woes upon the excise its accompanying enforcement campaign. Rum distillers were louder yet in their complaints, declaring the increase in the price of their core raw material a knife in the back on an industry whose profit margins were already distressingly thin. And in a more general sense, the trade imbalance created by the shift in purchasing habits from the cheap smuggled molasses of the French or Spanish West Indies to the more expensive British West Indian product – at a time when these same British Caribbean colonies had far less need for American produce – threatened to drain hard currency out of the various colonial economies and weaken their respective currencies. The potentially significant consequences of this trend notwithstanding, however, the general level of discontent among the colonial populations regarding the Sugar Act and its effects was fairly low. Most colonists not directly involved in the Atlantic economy were likely not in a position to notice the difference if local traders and artisans began to pay slightly more for molasses than had previously been the case. Likewise, the other commodities enumerated by the Sugar Act as being due for taxation – of which there were several, in fact – were luxury goods like spices, fabrics, wine, and coffee imported from France, Portugal, Spain, or the East Indies, the great majority of which would have been beyond the ability of most colonists to afford even without the added duty.

There were, of course, those among the colonial populations not only concerned by the passage of the Sugar Act, but whose anxieties as to what it seemed to represent rose to the level of philosophical distress. The aforementioned Samuel Adams was among this small but vocal group, the principle apprehension of which lay in the manner that offending legislation described its central purpose. Three times in its introduction, the Sugar Act declared that it was “expedient,” “just and necessary,” or “desirous” for the government of Great Britain to endeavor to raise a revenue in America for the purpose of, “Defraying the expences of defending, protecting, and securing the same [.]” To this blatant statement of Britain’s changed intentions towards its American colonies – from merely regulating the trade thereof to profiting upon it – Adams replied in a report to the Massachusetts colonial legislature that the assertion of authority involved, “Annihilates our Charter Right to govern & tax ourselves – It strikes our British Privileges, which as we have never forfeited them, we hold in common with our Fellow Subjects who are Natives of Britain [.]” Frothy though his discontent may have been, however, Adams succeeded in swaying few to his banner. Granted, a number of Boston merchants agreed to stop importing British luxury goods, and movements also emerged in that city and in New York for the promotion of American manufacturing. But these efforts may have been in response to the aforementioned economic impacts of the relevant legislation, and in any case did little to sway the general public to a more active resistance. The situation, to put it simply, was not yet dire enough to arouse the interest of the average colonial American.

James Otis, Jr., however, was far from average by almost any measure of the term. Having already made something of a name for himself as a critic of contemporary British trade policy, the passage of the Sugar Act – and what he, like Adams, perceived to be its long-term implications – could not go unremarked by one whose career was increasingly centered upon the public defense of American liberties. More to the point, he was precisely the man to offer a substantial commentary upon the issues presented by the act in question. In 1762, amidst the death throes of the Seven Years War, Otis had written a fifty page pamphlet under his own name entitled A Vindication of the Conduct of the House of Representatives of Massachusetts Bay, the purpose of which was to offer a rebuke to Governor Bernard and validation to the membership of the lower house of the colonial assembly. Bernard, it seemed, had requested that the assembled legislature appropriate the funds necessary to pay for the construction of ships to serve as protection for the British fishing fleet operating off Newfoundland against the depredations of French privateers. The construction of these ships had already begun, at the behest of the Governor and on the advice of the Legislative Council, and all that was required of the House of Representatives was that they approve the associated expenses.

When that same body, after some consideration, chose to reject the request, claiming that to do so meant, “Annihilating one branch of the legislature [,]” its membership was met with a written rebuke by Bernard, followed by a train of assertions on the part of his office that the Governor and the Council possessed the right and the authority to allocate monies in furtherance of exclusively executive prerogatives. Otis, being himself a member of the legislative body whose authority was being thus impugned, asserted accordingly – at length and with substantial reference to the laws and history of England and Massachusetts – that allowing such a justification to go unchallenged would place effectively unchecked power over the treasury of the province and the property of its citizens in the hands of the Governor, to the point of rendering him a tyrant in all but name. There was nothing, he further declared, in the law of Great Britain, the law of Massachusetts, the law of “nature and nations” and the law of God that could ever account for so gross a usurpation.

Bernard’s reputation suffered greatly in the aftermath of this incident, and that of Otis fairly surged. It therefore bears considering the extent to which the response offered by Otis to the passage of the Sugar Act was inspired by personal conviction and how much was drawn from his personal enmity towards Bernard and the popularity he gained among his fellow countrymen for attacking policies supported by the same. Bernard was yet still the Governor of Massachusetts in 1764, and supported the implementation of the Sugar Act as ardently as would most anyone whose office was owed to Parliament and the Crown. Otis was doubtless aware, then, that whatever effort he made to discredit the offending legislation would in turn serve to further blacken the name of Bernard and his government. Just so, while the public response to the passage of the Sugar Act had been generally somewhat muted, he was surely likewise aware that his reputation was likelier to gain traction than lose it by offering a reproof to Parliament and its supporters. This is certainly not meant to imply that Otis cared only for the effect that his public pronunciations would have on his fame. The energy with which he criticized the use of writs of assistance by British customs officials in 1761 and Governor Bernard’s aforementioned claim to financial authority in 1762 gives strong indication of the sincerity of his efforts and the depth of his conviction. All the same, however, it would be difficult to deny that any man was better placed in 1764 to offer a substantial critique of the Sugar Act, or that anyone stood to benefit more from the attempt, than James Otis, Jr.

Articles of Confederation, Part XI: Forgotten Legacies

            Without delving too deeply into the realm of the political, it would seem appropriate to conclude this current series with a momentary meditation on the legacy of the Articles of Confederation. Or, rather, it would seem appropriate to discuss at least one of its legacies, for indeed it may be said to have many. For the moment, however, let us concentrate our attention on what the existence of this document says about the relationship between the American people and their government(s). The Articles were written in the midst of a war, by a group of people who between them possessed not one jot of practical experience creating codified constitutions, within a cultural context that placed great emphasis upon the sanctity of a particular unwritten constitution, and under the auspices of an assembly dominated by newly independent states whose governments were loath to see their nascent autonomy threatened. These were far from ideal circumstances, to say the least, and the outcome was a predictably imperfect document. The national government described by the Articles was weak, deferential to the states, largely incapable of asserting a will of its own, and prone to indecisiveness. In some ways, this was doubtless precisely what its creators intended. The memory of Parliamentary overreach was yet too fresh to allow for anything but the smallest possible degree of authority and discretion to be exercised by anything claiming to be a national government for the union of American states. This fact – and the particulars of how its authors allocated specific powers and responsibilities – is most definitely worth remembering about the Articles of Confederation. But it is also terribly important not to forget that the Articles do not represent the end all and be all of American constitutionalism in a national context. Rather, they constitute a necessary first draft.

            Because of course the Founding Generation tried again. Seven years after their formal adoption in 1781 – through what was perhaps a somewhat less than forthright process – the Articles of Confederation were replaced as the governing charter of the American union by the aptly-named Constitution of the United States. Said document – two of whose signatories, John Dickinson (1732-1808) and Roger Sherman (1721-1793), had earlier signed the Articles – described a far more robust and activist government than as yet existed, with a powerful executive, a national judiciary, and exclusive authority over a number of major policy areas. That a significant number of prominent statesmen believed it necessary to craft such a thing – that they were in agreement as to the necessity of doing away with the Articles of Confederation – was truly remarkable. As discussed at length in the series, the essential character of the first national government in the history of the United States – i.e. weak, non-interventionist, deferential to the states, etc. – was very much a reflection of the contemporary attitudes, fears, and convictions of its architects. So thoroughly was the membership of the Continental Congress willing to repudiate the examples of Parliament and the Crown that they gave sanction to an administrative framework for the American union that reserved only the slightest possible sliver of the prerogatives that had traditionally been delegated to the British government and gave otherwise free reign to the states to manage their own affairs. This was not surprising, all things considered. What was – indeed, what arguably continues to be – is that this same class of public servants, merchants, lawyers, doctors, and scholars determined less than a decade later that the United States of America was in need of a government that far more closely resembled Parliament and the Crown than they had earlier been willing to admit.

            This was neither an easy decision nor a unanimous one. Disagreements within the Constitutional Convention (May 25^th – September 17^th, 1787) were many, varied, and often intense – indeed, more than one delegate chose either to depart the gathering before its work was completed or abstained from signing their names to the completed document – and several of the state ratifying conventions voted to approve by distressingly narrow margins – Virginia, for example, voted 89-79 in favor, while New York cut it even closer with a final tally of 30-27. But the fact that the effort itself ultimately proved successful would seem to say something rather significant about the character of the American people. However much the contemporary membership of the Continental Congress, their supporters in the state governments, and the many millions of constituents thereof truly believed in the late 1770s that the Articles of Confederation represented the ideal form of a national administration for the American union, they evidently did not believe it so firmly or so fervently that they were incapable of imagining – and indeed, of adopting – a better way of doing things. They were not, in short, so precious about something they had worked hard to create that they were incapable of recognizing the need for change when it arose. The adoption of the United States Constitution in light of the manifest shortcomings of the Articles of Confederation is certainly the most dramatic example of this attitude in action, though it is hardly the only one worth considering.

            The fact that both the Articles and the Constitution contain provisions explicitly intended to allow for the amendment of the relevant texts would likewise seem to stand in evidence of the pragmatic sensibilities of America’s Founding Generation. While the framers of both of these documents doubtless intended to create governing charters for the United States that would stand the test of time, neither were so sure of the quality of their efforts or of what the future held for their countrymen that they believed it unnecessary to supply the means of modification. The resulting requirements they set for proposed amendments to become law were steep, certainly, but their very inclusion bespeaks a desire for flexibility. And while the Articles of Confederation were not in force long enough for any amendments to be adopted, the Constitution has thus far given rise to twenty-seven amendments across eighteen separate efforts. In consequence, while the wholesale replacement of the Articles still represents the high water mark of a trend in American political culture towards constitutional regeneration, the passage of twenty-seven amendments over the course of two centuries – averaging out to around one amendment every seven years – nonetheless indicates a fairly consistent understanding and application of the underlying principle. And this speaks only to the national level of government. When one also considers the attitudes that generations of Americans have shown towards the notion of modifying – or even replacing – their various state governments, the degree to which they appear culturally amendable to the concept is made clearer still.

            Of the thirteen original state constitutions, only one – Massachusetts, adopted in 1780 – is still in force as of the early 21^st century. Of the twelve remaining states, Delaware is on its fourth constitution – adopted in 1897 – Pennsylvania is on its fifth – adopted in 1968 – New Jersey its third – adopted in 1947 – Georgia its tenth – adopted in 1976 – Connecticut its second – adopted in 1965 – Maryland its fourth – adopted in 1867 – South Carolina its seventh – adopted in 1895 – New Hampshire its second – adopted 1784 – Virginia its seventh – adopted in 1971 – New York its fourth – adopted in 1894 – North Carolina its third – adopted in 1971 – and Rhode Island its second – adopted in 1987. As a whole it would seem that Americans have historically not been squeamish about the prospect of questioning the usefulness of the governing charters of their states, creating entirely new ones, and adopting them into law. When one further examines the number of times certain of the state constitution now in force have been amended, this evident tendency towards change and adaptability in the context of constitutional thought appears to be something more like a fundamental maxim of American political culture than either a theory or aberration. The aforementioned Constitution of Massachusetts, for example, has been amended one hundred and twenty times since 1780, most recently in 2000. In consequence, most of the articles of the original document have been modified at least once, with a substantial number bearing two or more such alterations. The Constitution of South Carolina is even more of a patchwork, with its original 1895 text having been amended over three hundred times. The resulting document is some seventy-nine pages long and includes a veritable swarm of annotations, in large part owing to the propensity of the Palmetto State’s residents to write what in other states would be ordinary statute law into the text of their supreme governing charter.

Granting the existence of certain differences in local political culture serving to explain why the Constitution of New York has only been amended six times since 1894 while the Constitution of Maryland has been altered almost two hundred times since 1867, it nonetheless seems reasonable to conclude that the American people are, on average, perfectly able to understand the need for periodic reflection upon the nature of their paramount law. The median number of times the constitution of an American state has been amended is one hundred fifteen, while the United States Constitution itself has sustained twenty-seven such additions. Putting aside the most recent of the former – the Twenty-Seventh Amendment, ratified in 1992, having been originally proposed in 1789 – the most recent alteration to the fundamental frame of government of the United States of America – lowing the voting age to eighteen – was proposed in March, 1971 and ratified the following July. It therefore also seems a perfectly fair characterization to declare that there are millions of Americans alive today who can personally recall their nation’s constitution being changed. Bearing all of this in mind – the frequency with which state constitutions have been amended or replaced, the relatively recent vintage of the last major amendment to the federal constitution, and the fact that the first governing charter of the United States was tossed out almost completely after being in force for less than a decade – any and all declarations by pundits, politicians, or private citizens as to the indelible nature of their nation’s chief governing document would appear exceedingly flimsy.

The events of the last two hundred years have demonstrated plainly enough that the American people fully understand that their constitutions – be they state or federal – can indeed be amended, and that from time to time they should be amended. This conviction has not in fact lessened the degree to which they regard their governing charters with fealty and respect, as certain of the Framers feared excessive modifications would do. On the contrary, the citizens of the United States have come to pride themselves on their adherence to the rule of law and tend to regard their federal constitution in particular with surpassing satisfaction. Their collective amenability to the concept of constitutional modification is arguably a cornerstone these very attitudes. Rather than understand the texts that describe how and why they are governed as having been handed down from on high by some wise and unknowable presence, the American people have been aware since the moment of their nation’s independence that constitutions are written by people to serve people. They have accordingly changed the governing charters of their states – via amendment or wholesale replacement – over and over again as events and changing attitudes made necessary, tossed out their first federal charter once its various deficiencies became overwhelming, and enacted several major alterations to the frame of government that followed. That such efforts were felt to be needed by their instigators and supporters – that they were willing to question the continued validity of the constitution of their state/nation – testifies once again to the pragmatic turn of mind at the heart of American political culture.

Rather than lessen their respect for the very concept of paramount law, however, this propensity for change has quite probably helped to foster a much stronger bond between the citizens of the United States and their fundamental charters. Whereas Americans have, do, and will express their understanding of constitutionalism as embodying a legacy passed on from one generation to the next – with all the attendant emotional attachments – the practice and history of constitutional amendments has rendered the relationship between citizens and governing documents something more than a type of bequest. Because Americans know – have always known, should always know – that their governments were created to serve their needs and are accordingly changeable by their hands, they are accordingly free to understand, say, the Constitution of New York, or of Massachusetts, or of the United States of America as belonging wholly to them and as being as much their own creation as of their long-departed forefathers. While at times this conviction might be momentarily forgotten – as when people speak of the Constitution as though it were carved in stone, or discuss the authors of the same as if the label applied less to the framers of the Twenty-Sixth Amendment than to the original cohort of 1787 – it is and has always remained valid and true. Americans know how to fix something when it is clear that it needs fixing, try as they might to convince themselves otherwise.       

         

The rather misbegotten history of the Articles of Confederation is wholly emblematic of this notion. Fascinating though it may be as an object of study in its own right – as an exemplar, for instance, of the political and philosophical leanings of its authors and their era – the capstone of its legacy is arguably that it was replaced as the paramount law of the United States less than ten years after being adopted. In so doing, however – in proving itself almost completely unworkable as a frame of government – it served to demonstrate something exceedingly significant about the citizens of the nascent American union. Not only were they sufficiently invested in the concept of an “American nation” that they deemed it worthwhile to attempt to form a second national government – rather than, say, let the various states go their separate ways – but they were confident enough in their collective abilities, their knowledge, and their right to do so to fundamentally alter the form and style of the government under which they had won their independence. The Articles of Confederation may have been sufficient to hold the states together during the tumult of the Revolutionary War, but something more was needed to successfully confront the forces unleashed by the peace that followed. By recognizing this fact and by acting on it, the Founding Generation set a precedent that has – perhaps more than any other – shaped the history of the nation they helped create. That this has been occasionally forgotten is unfortunate, but not dire. That it should ever pass from memory entirely, however, would be a tragedy of the highest order.

         

    So that’s my spiel. By all means, take a look for yourself.

Articles of Confederation, Part X: the Substance of a Nation, contd.

            Further examination of the selfsame Article IX would appear to indicate that maritime law was not the only area in which the authors thereof were inclined to reassert a pre-Revolutionary dynamic. Consider, to that end, the passage which declared that,

The United States in Congress assembled shall also have the sole and exclusive right and power of regulating the alloy and value of coin struck by their own authority, or by that of the respective States – fixing the standards of weights and measures throughout the United States – regulating the trade and managing all affairs with the Indians, not members of any of the States, provided that the legislative right of any State within its own limits be not infringed or violated [.]

Granting that the finer points of coinage may not appear to make for the most riveting investigation into the history of American constitutionalism, the mundanity of the topic belies the significance of its implications. Throughout the majority of the colonial era – 1600 to 1776, or thereabouts – hard currency in the form of gold and silver coins were generally quite rare in America. In part, this was the result of British trade and monetary policies which sought to concentrate wealth in the seat of empire. So long as British merchants enjoyed a monopoly on trade with the colonies, and so long as they demanded to be paid in hard currency for the goods they sold in abundance in America – to a higher total value than that which they purchased in the form of American produce and raw materials – the colonists would remain perpetually at a loss.

This lopsided monetary dynamic was reinforced by longstanding laws and traditions that made the minting of coins a privilege very closely controlled by the British Crown. Granted, the physical production of coins in gold, silver, or copper had at various times been contracted out or otherwise dispersed from its customary home in London – Charles I (1600-1649) notably called for the establishment of sixteen emergency mints scattered across the British isles during his flight from the capital in 1642. But even these occasional experiments in decentralization were carried out under fairly stringent royal authority or under fairly extraordinary circumstances. The colonies were no exception to this status quo, being generally forbidden to produce specie under their own name absent the formal approval of the Crown. While attempts to circumvent this policy were not unheard of – Massachusetts, for example, struck a series of pence and shilling coins between the 1660s and 1680s using the common mint date of 1652 (in the midst of the so-called Interregnum when Britain had no monarch) as a means of avoiding accusations of fraud or counterfeit – the most common solutions were an increased reliance on Spanish and Portuguese coins obtained by colonists through illicit trade with the West Indies and the use of fiat paper currency. The latter was also regulated by British law, though to a more forgiving degree than metal coinage. While a series of Currency Acts (1751, 1764) restricted how much paper money the various colonial governments could emit and sought to dictate whether said bills were valid for public debts (i.e. the payment of taxes) or private debts (i.e. the payment of personal expenses) – largely in response to colonial attempts to use rapidly depreciated paper money to reimburse British merchants – successive governments continued to recognize the need for the various colonies to issue some form of currency in order to meet the basic needs of their citizens.

At this point it bears recalling precisely what the cited text of Article IX had to say on the subject of monetary policy. “The United States in Congress assembled,” it read, “Shall also have the sole and exclusive right and power of regulating the alloy and value of coin struck by their own authority, or by that of the respective States [.]” On one hand, the framers of the Articles allocated substantial authority over the minting of coins – either by Congress or the various states – to the national government. On the other hand, they made no mention whatsoever of the issuing of paper currency or the regulation thereof. As with the exercise of maritime law discussed above, this would seem to constitute a general – if somewhat qualified – reaffirmation of what had been the customary dynamic between the colonial governments and the appropriate British authorities. By omitting any mention of paper bills, Dickinson and his committee may well have intended to enshrine into the governing charter of the nascent United States the freedom from excessive monetary oversight that the colonies had earlier demanded from Parliament and only partially received through the passage of the aforementioned Currency Acts. At the same time, by allowing Congress to exercise unilateral authority over the value of American coinage – the minting of which was not necessarily denied to the states – some degree of coordinating power was thereby preserved. The national government described by the Articles thus both recognized the changed circumstances wrought by the separation of the Thirteen Colonies from British authority – embodied by its attitude of deference to the sovereignty of the states – while also attempting to adopt certain of the (necessary) regulatory tendencies previously exercise by the same. The second portion of the cited text of Article IX – concerning the exclusive authority of Congress in the realm of, “Regulating the trade and managing all affairs with the Indians, not members of any States” – seems to conform to this same basic pattern.

In spite of the many and various instances in which colonial relations with the indigenous peoples of North America seemed to proceed according to the intentions and desires of the colonists themselves, the British Crown always formally regarded itself as the only legitimate authority in the realm of aboriginal affairs. In consequence, the Crown reserved the exclusive right to conduct treaty negotiations, purchase land, erect reservations, or collect tribute. While this arrangement didn’t necessarily stop individual colonies from waging war upon neighboring tribes or attempting to acquire large tracts of land from the same, the authority of the reigning monarch was always represented by and flowed through their appointed colonial executive. Colonial legislatures thus lacked the statutory power to meaningfully interact with native peoples of their own accord, relying instead on the relevant governor to provide the necessary official sanction. The creation of the Indian Department in 1755 – falling under the authority of the British Army – and the release of a royal proclamation in 1763 – issued in the name of George III (1738-1820) – each served to reinforce this state of affairs by further divesting colonial authorities of discretion in treating with local indigenous peoples. Under the auspices of the Indian Department, a corps of Indian Agents responsible exclusively to the British government assumed authority over all diplomatic relations with the relevant tribes – to the now total exclusion of the various colonial governments – while the aforementioned declaration formally affirmed – among other guarantees – that the selfsame peoples, “Who live under our Protection, should not be molested or disturbed in the Possession of such Parts of Our Dominions and Territories as, not having been ceded to or purchased by Us, are reserved to them, or any of them, as their Hunting Grounds [.]” The colonial reaction to these developments was understandably mixed.

Under the terms of the aforesaid proclamation, colonial settlement west of the Appalachian Mountains was forbidden, colonial purchase of native lands was severely restricted, and colonial trade with native peoples was permitted only under license from the appropriate representative of the Crown in America. Particularly as it impacted upon existing claims possessed by inhabitants of the colonies, residents or property owners in settlements lying within the designated “Indian Reserve,” and colonial speculators ever eager for cheap land they could turn for a profit, discontent was both common and vehement. Having ostensibly witnessed their future prospects being traded away by the Crown without their consent, many of the inhabitants of British America were given to petitioning for redress while also lamenting the inability of their respective governments to see to a vital area of domestic concern without ministerial approval. As the resulting tensions were further amplified by the passage of particularly noxious revenue legislation – i.e. the Sugar Act (1764), Stamp Act (1765), the Townshend Duties (1766), and the Tea Act (1773) – bitterness turned to suspicion which in part came to focus on the aforementioned Indian Department, its agents, and their monopoly on indigenous affairs. Faced with an increasingly belligerent government in London whose ministers showed no qualms about directing British military resources in America towards the quashing of public dissent, the existence of a network of Crown proxies possessed of sole responsibility for carrying on diplomatic relations with the various tribes residing in and around the Thirteen Colonies appeared to the political opposition therein an increasingly dangerous prospect.

The declaration of American independence and the creation of a union of states out of what had once been a loose association of British colonies naturally presented to the nascent authorities therein an ideal opportunity to redefine the responsibilities formally allocated to local, regional, and national government. Owing to the tensions outlined above which had formerly flowed out of the monopoly claimed by the British Crown over all diplomatic and economic relations with the indigenous peoples of North America, this particular policy area was understandably among those in particular need of reassessment. The framers of the Articles of Confederation, tasked with creating the first national government in the as yet brief history of the United States of America, accordingly sought to rebalance responsibility for “Indian Affairs” in favor of the various states. Those native peoples residing within the boundaries of a given state, for instance, were specifically exempt from any claim by the United States government to exclusive jurisdiction. Likewise, Congressional regulation of diplomatic and economic affairs with otherwise un-exempted native tribes was to be valid only under the condition that, “The legislative right of any State within its own limits be not infringed or violated [.]” Doubtless, these provisions were crafted by Dickinson and his committee with the specific intent of both recognizing the sovereignty of the individual states and providing their governments with the discretion they had previously been denied to manage their relations with the relevant indigenous peoples. Whereas treaties touching upon relations with tribes residing within the claimed territory of a given colony had previously been negotiated and signed by British Indian Agents acting on behalf of the Crown – wholly absent colonial input – the elected governments of the various states would now evidently possess free reign to treat with the native peoples falling within their jurisdiction as and when they saw fit to do so.

For all that this represented a significant change in the indigenous policy of the former Thirteen Colonies – and it did – some degree of authority nevertheless remained beyond the ability of the states to wield. As cited above, the Articles of Confederation reserved to Congress the, “Sole and exclusive right and power of […] regulating the trade and managing all affairs with the Indians, not members of any of the States [.]” While this was admittedly a qualified assertion of power, it was still an exceedingly significant one. While permitting individual states to engage with their own native inhabitants as they so desired, and affirming the primacy of state law over whatever policy Congress chose to pursue in the realm of indigenous affairs, the relevant provision of Article IX otherwise delegated the same authority previously claimed by the British Crown to the Congress of the United States. Only Congress, for example, could claim the right to purchase land from native tribes not residing within the jurisdiction of a given state(s), or negotiate treaties with the same, or carry on or authorize trade with the same. In this way, the national government of the United States would effectively and exclusively regulate what would shortly prove to be one of the principle means by which the nation pursued a policy of territorial expansion. Likewise, in the event that the various states possessing territorial claims in what was then the northwest corner of British North America – now the Midwest of the United States – transferred those claims to the government of the American union, formal responsibility for treating with the native inhabitants of the resulting federalized region would accordingly fall to Congress. In consequence, the accommodation of the affected tribes to the inevitable reality of further American settlement, political consolidation, and the eventual admission of new states to the union would firmly fall within this selfsame national prerogative.

  Combined with the aforementioned authority over maritime law and monetary policy, the delegation of indigenous affairs – and in turn the means by which the United States would seek to expand through the addition of new states – would seem to constitute an attempt on the part of the framers of the Articles of Confederation to create in the resulting national government something more like the British Parliament than the current federal administration. Specifically, it would appear as though they were keen to recreate in the government of the United States the version of Parliament they had become familiar with as citizens of the various colonies of British America – i.e. Parliament as viewed from three thousand miles distant. According to the accustomed dynamics of this relationship – honed over the course of a century and a half – the various colonies enjoyed responsibility for most of their domestic affairs while the British government proper laid claim principally to foreign relations – i.e. diplomacy and war – monetary policy, and indigenous affairs. While this dynamic was almost entirely born out of necessity – the domestic needs of the various colonial populations being nearly impossible to attend to in a timely fashion from across thousands of miles of turbulent ocean – time and custom ensured that the affected populations came to see it simply as the natural order of things. Though the resulting national government deferred to the colonies-cum-states in certain aspects of these formerly national prerogatives – by granting them the right to establish prize courts of their own, for example, or recognizing their jurisdiction over their native inhabitants – the Articles of Confederation largely recognized and sought to perpetuate this same understanding.

In consequence, rather than constituting something wholly new, radical, or innovative, the Articles of Confederation in the main appeared to represent an attempt by the contemporary membership of the Continental Congress to reconstruct the status quo they’d become accustomed to – indeed, come to depend on – prior to the tensions wrought by the Anglo-American crisis of the 1760s and 1770s. Certainly the resulting committee was willing – if not eager – to reconsider some of the basic assumptions upon which the Anglo-American relationship had previously pivoted. The number of instances in which the Articles of Confederation deferred to the states in areas of policy previously the exclusive bailiwick of Parliament speaks to this assertion well enough. But the degree to which the resulting national government claimed exclusive jurisdiction – and the specific areas in which it made these claims – gives strong evidence as to the framers’ intentions. Rather than give rise to a national authority specifically equipped to cultivate and pursue a set of distinctly national prerogatives – with all the allocations of power that would have entailed – Dickinson and his committee instead effectively sought to transpose the relationship that had previously existed between the colonies of British America and the various institutions of the British government onto the newfound context of a union of sovereign American states.

The few areas in which the resulting government claimed exclusive authority fell safely within the realm of those prerogatives customarily claimed by Parliament and the Crown. In this way, the various state governments would only be forced to contend with – and theoretically bend to – national power within the context of responsibilities they not used to exercising themselves. The colonies of British America didn’t conduct their own foreign relations, after all, or coin their own money, or negotiate treaties with neighboring native tribes – much though their inability to do so became occasional cause for frustration. Creating an administrative framework upon which these responsibilities could be grafted accordingly represented perhaps the easiest and most logical next step in the political evolution of the union of American states. The result, the framers of the Articles evidently hoped, would be a government that behaved as though it was many thousands of miles away while in reality remaining close enough to be restrained from behaving otherwise. 

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.