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A Constitutional History of the United States
Chapter XII - The Articles of Confederation
by McLaughlin, Andrew C.
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When Lee introduced into Congress the resolution for independence (June
7, 1776), it was accompanied by a resolution that steps be taken for the
formation of a confederation of the states. The need of organization had long
been in the minds of certain leaders, and Franklin the year before had brought
in a plan based in some degree on the Albany Plan of 1754.[1] With
his plan nothing of importance was done, though it evidently had influence on
later proceedings; but after independence was declared, Congress began debating
at length articles brought in by a committee [2] and commonly called
the Dickinson draft. Pressure upon Congress, as well as some inherent
difficulties in the problem, delayed the completion of the task, and
consequently not until November, 1777, were the Articles finally adopted by
Congress and submitted to the states.
With the announcement of independence, the problem of imperial
organization crossed the ocean; it was no longer the problem of organizing the
British empire or of ascertaining its constitutional structure, but of
organizing America. Nevertheless, in many respects the problem was the old one;
reduced to the lowest terms, it was at least the problem of arranging some
practicable scheme in which the states would work together for common ends. For
there was need of coherence in the war; and as time was soon to show, coherence
in peace was quite as necessary and possibly more difficult to maintain. What
were the elements in the task, if we take for granted that complete
unification, complete absorption of the states into a unitary system, was
impossible? The most troublesome problems were again the familiar ones; and
central among them was the pivotal question of supply, of finding means of
assurance that the states would furnish properly the men and the money for the
general needs of the union. If they were to retain a large share of
self-government, and of course that was inevitable, what authority should be
allowed to the body representing them all? Everybody cried, as he had done
twenty years before, that union was absolutely necessary; but when it came to
plans of union, there was still distraction.[3]
It is possible that, if a system of union could have been decided upon
immediately after independence was announced, the Articles of union would have
contained no announcement of state sovereignty. In neither the Dickinson draft
(July 12, 1776) nor the draft presented to Congress by the committee of the
whole (August 20) was the sovereignty of the states specified; the articles
submitted on the latter day declared: "Each State reserves to itself the sole
and exclusive regulation and government of its internal police, in all matters
that shall not interfere with the articles of this Confederation."
[4] The opening paragraphs, it is true, might be construed to
signify that nothing was contemplated but a working union of sovereign states.
Such glimpses as we can get of the work of construction in the succeeding
months, especially in 1777, appear to indicate that, when the Articles were
made distinctly to conform to the idea of a coöperative system of
sovereignties, the change was the product of a developing sense of separate
independence or of growing suspicion. The finished Articles, as submitted to
the state legislatures for adoption, announced in plain language the retention
of sovereignty by the states.[5]
There were three points on which differences of opinion especially
centered: (1) whether the states should have equal voting power in the Congress
of the Confederation or should vote in proportion to their population or wealth
or some such indication of importance and strength; (2) what should be the
basis for determining how much each state should pay into the common coffers;
(3) whether the states claiming vast stretches of western lands should continue
to hold them in their possession; and this included the subordinate question
— whether or not Congress should be given authority to limit the
dimensions of the states.[6]
The debates on the first two questions are of interest to us because
they brought out a number of the crucial problems that vexed the men who
labored to form a union a decade later; [7] the larger states wished
proportional representation; the smaller states wished equal representation.
Were the states to be unequally taxed but to have equal voting power in
Congress? The debate appears to have been earnest and searching. The outcome of
the discussion was the provision that each state should have one vote in
Congress, thus securing the complete equality of the states in voting power;
but charges of war and all other expenses were to be supplied by the states in
proportion to the value of land within each state granted to or surveyed for
any person, and the improvements on such land. In other words, equality of the
states was accepted as the basis of voting power in Congress, inequality was
accepted as the basis for contributions to the treasury. This arrangement was
sure to be distasteful to many, and in the long run it proved unsatisfactory.
Franklin said in the course of the debates, as John Adams noted them: "Let the
smaller Colonies give equal money and men, and then have an equal vote. But if
they have an equal vote without bearing equal burthens, a confederation upon
such iniquitous principles will never last long." [8]
The western land question presented special difficulty. A suitable
solution of the problem was of immense importance. The Congress was engaged in
a peculiarly difficult task; under any circumstances, the establishment of a
union of states, each cherishing its own interests, must present serious
obstacles. And if a union could be formed, what were the prospects that it
would endure? In the days when the Confederation was under debate, the critical
question was whether a union could be formed at all; and the difficulty of
finding an affirmative answer seemed to turn in considerable measure on the
dread of the landless states that the landed states would become wealthy and
powerful and would overawe and mayhap impoverish their lesser neighbors. But if
land were surrendered, it must be governed by somebody; so here again the
states, seeking to form a union, were confronted by an essential part of the
problem of imperial organization — the problem of imperial expansion. Some
of the states claimed that their sea-to-sea charters gave them territory in the
west; and New York made assertions of ownership of a considerable region. Other
states were within definite limits; Rhode Island, New Jersey, Delaware, and
Maryland were comparatively small in area. It is not strange that they should
look with jealousy upon their neighbors claiming vast territory, the source of
both wealth and power.
It seems remarkable now that the ownership of the transmontane region
should have been so hotly contested during those perilous days when the real
question was whether the British army would not beat down resistance and the
rebellion against the mother country totally fail. But discussed it was; for
this western question was a perplexing one, involving much more than merely
fixing the western limits of the states. With the question of boundaries went
the control of land purchases and the fixing of a land policy as well as
direction and control of settlements that might be made beyond the mountains.
From the beginning of colonial history, the frontier policy had been for each
colony a matter of difficulty, and it was not so easy as it might now seem to
cast aside traditions and at once transfer the whole — policy, hopes,
plans, government, and lands — into the hands of a central authority as
yet untried and indeed unformed. It was characteristic of American optimism,
probably, to begin the counting of chickens before they had emerged from the
shells.
The problem of the west was an old one, and, like so many others, was
associated with the experiences of the old empire. The Albany Plan of Union had
proposed a solution. The plan which Franklin presented to Congress in 1775
declared that purchases from the Indians should be made for the general
advantage and benefit of the united colonies. The Dickinson draft of a
confederation, presented in July, 1776, included even more definite proposals,
but they were not included in the draft of the Articles submitted by the
committee of the whole the next month. Among the states without large landed
possessions, Maryland was the most critical of a system of union which would
leave some of the states in possession of western territory. When the Congress
was discussing the Articles in the autumn of 1777 — for little had been
done during many months preceding — a proposal was offered for which
Maryland alone voted (New Jersey's vote was divided): "That the United States,
in Congress assembled, shall have the sole and exclusive right and power to
ascertain and fix the western boundary of such states as claim to the
Mississippi or South Sea, and lay out the land beyond the boundary, so
ascertained, into separate and independent states, from time to time, as the
numbers and circumstances of the people thereof may require".
The principle of the resolution is significant: the western settlements
were not to be held in permanent subordination, but were to become in the
course of time independent states, presumably members of the union with equal
rights. The proposal, however, was unacceptable, at least as far as it
contemplated giving at once to Congress the power to fix boundaries for the
large landholding states. Instead of adopting the resolution, Congress added to
that paragraph of the Articles which provided for the adjudication of
controversies between states the following brief but peremptory statement:
"provided, also, that no State shall be deprived of territory for the benefit
of the United States." [9]
The Articles were adopted by the Congress, November 15, 1777, and two
days later they went forth to the states. Some of the states accepted them
fairly promptly, and their delegates signed the Articles Under authorization of
their respective states. Various amendments were proposed, but the most
important dealt with the necessity of settling the western question and
especially securing for the use of the United States the crown lands from which
revenue could be obtained for paying the debts incurred for the common
cause.[10] Maryland renewed her request for power in Congress to
ascertain and restrict the boundaries of the large landholding states, and this
was supported by Rhode Island, New Jersey, Pennsylvania, and Delaware —
none of them having claims to territory in the west. By midsummer of 1778 most
of the states had given their assent to the Articles. New Jersey took the step
later in the year and was followed by Delaware in May, 1779. Maryland was still
obdurate.
The months went by. A union of all the states was highly desirable, not
to say imperative; delay was dangerous. Some concession or compromise was
necessary. New York, whose claims seemed rather more nebulous than those of the
states which asserted rights under sea-to-sea charters, passed a legislative
act (February 19, 1780) empowering her delegates "to limit and restrict" her
western boundaries. Congress now (September 6, 1780) declared this act was
calculated to "accelerate the federal alliance"; the states with western land
claims were asked to remove the only obstacle to a final ratification of the
Articles. October 10, 1780, Congress passed a momentous resolution: all
unappropriated lands ceded to the United States should be disposed of for the
common benefit of the United States, "and be settled and formed into distinct
republican states, which shall become members of the federal union, and have
the same rights of sovereignty, freedom and independence, as the other states".
Early in the following year Virginia consented to cede her territory northwest
of the Ohio River. She laid down certain conditions and these raised some
difficulties which do not need consideration here. Maryland could now feel
fairly certain that her chief purpose was attained, and her delegates were
authorized to sign the Articles. When this was done (March 1, 1781), the
Confederation was complete.
Of great consequence was the final organization of the union, defective
though it proved to be; and important also was the spirit of conciliation and
national sentiment on which the union rested. Of some consequence, too, was the
fact that the thirteen commonwealths, bound in "perpetual" union, jointly
possessed a large, unsettled region; such possession probably helped in the
development of a sense of common interest and common responsibilities. But of
supreme importance was the discovery of the principle of expansion, of
nation-building. The principle announced by Congress in 1780 was carried into
effect by the famous Ordinance of 1787. Passed in the last months of the dying
Confederation, the Ordinance is to-day a lasting memorial, a proof that the
Americans had learned a great lesson from their own history. In the building of
an empire — though for the time the empire was a confederation of
sovereignties — the new settlements should not be permanently treated as
dependents unfit to associate on terms of equality with the older members of
the union.
It is unnecessary to recount the steps by which the various cessions of
western lands were made by the states. In the course of time, those steps were
taken. It is significant, however, that the Articles did not contain a
provision authorizing the Congress of the Confederation to hold and manage the
common territory thus granted or to lay down laws and ordinances for the
government of the western settlements. Such powers may, perhaps, be inferred
from the general acquiescence in the fact of possession and the circumstances
under which the Articles were adopted.
A further view of the Articles is necessary. In Congress and in the
states, there appears to have been less discussion concerning the powers
delegated to Congress than one might have supposed. Taught by experience in the
old empire, by the necessity of carrying on the war, and by earlier plans or
discussions of union, the delegates in Congress were enabled to work out the
distribution of powers between the central authority and the states with some
approach to precision. The powers granted to Congress bear a general
resemblance to those exercised by the Crown and Parliament in the old colonial
system in which the colonies had grown to maturity; and if one compares the
Articles with the Constitution adopted at Philadelphia in 1787, he will find a
considerable similarity in the scheme of distribution.[11] Time was
to show the defects of the system; but the actual merits of the system agreed
upon are noteworthy. No power to lay taxes was bestowed on Congress, and no
power to regulate commerce, the two things about which there had been so much
dispute in the preceding decade. These omissions were largely instrumental in
bringing into existence the Constitutional Convention of 1787.
Without the consent of Congress, the states were expressly forbidden to
send an embassy to a foreign state, receive an embassy, enter into any
agreement with a foreign power, form any treaty of combination among
themselves, maintain ships of war or troops in time of peace — though a
militia must be provided and sufficiently armed — , or engage in war
unless actually invaded or in immediate danger of Indian attack. All charges of
war and other expenses incurred for the common defense and general welfare were
to be defrayed out of a common treasury supplied by the several states. To
Congress was given, among other powers, the general powers of determining on
war and peace, carrying on foreign affairs, though with some restrictions,
regulating the alloy and value of coin, fixing the standard of weights and
measures, regulating the trade and managing all the affairs with the Indians
"not members of any of the States", establishing and regulating post offices
from one state to another, appointing important army officers and all naval
officers, borrowing money, building and equipping a navy, and making
requisitions upon the states for troops. For doing the most important things,
the vote of nine states in Congress was required, practically a three-fourths
vote of the thirteen, a restriction certain to make effective action difficult.
No alteration of the Articles could be made unless it be agreed to in Congress
and confirmed by the legislatures of all the states. A "committee of the
states" could, in the recess of Congress, exercise powers intrusted to it by
Congress with the consent of nine states, provided that no power for which the
voice of nine states was necessary should be delegated to the committee. One of
the delegates could be appointed "to preside" — the predecessor, in fact,
of the president of the United States, who does not preside at all.
While the Articles granted to Congress considerable authority, its
powers were qualified, in some respects carefully, for the protection of the
states' rights. Although Congress was given power to enter into treaties, the
states were not totally forbidden to lay imposts, but they were forbidden to
levy such duties as might interfere with "stipulations in treaties entered into
by the United States ... in pursuance of any treaties already proposed by
Congress to the courts of France and Spain." Congress could make no treaty of
commerce whereby the states should be restrained from imposing such imposts on
foreigners as their own people were subjected to; and apparently the states
could freely prohibit the exportation or importation of any kind of goods. The
failure to grant Congress complete power to regulate commerce rendered it
difficult or impossible to make a commercial treaty with a foreign nation and
to have assurance that the states would comply with its provisions. The years
that followed disclosed the fact that the want of authority to make treaties
which would bind the states was one of the cardinal defects of the system.
This "firm league of friendship", which was declared to be "perpetual",
contained significant provisions for mutual friendship and coöperation
among the states. While, it appears, the states were separate sovereignties, or
possibly it is more correct to say, because they were separate
sovereignties, the Articles contained explicit provisions concerning the rights
of the "free inhabitants" of one state within the limits of another state. Such
persons were declared to be "entitled to all privileges and immunities of free
citizens in the several states", to have free ingress and egress to and from
the respective states, and to enjoy privileges of trade and commerce.
Extradition was provided for, and full faith and credit were to be given in
each state to the records, acts, and judicial proceedings of every other.
The importance of these provisions for interstate relationships is this:
(1) they proposed a substantial basis for a league of friendship that might in
reality be perpetual; without such conditions of reciprocal consideration and
recognition of common rights and interests, no league could endure. (2) They
appear in similar though not identical words in the Constitution of the United
States. This latter fact makes it especially important to notice that the
provisions in the Articles, later transferred to the Constitution and made law,
are based on the supposition that the states stand in relation of one to the
other as distinct sovereignties. Extradition, for example, is in general an
international matter and based on treaty provisions; no nation is bound, by any
principle of "good neighborhood", to turn over to another nation, on demand or
request, a fugitive from justice. The Articles embrace this international
provision; it is included in the Constitution as a legal
obligation.[12] The quasi-international relationship of the states
of the union is most plainly illustrated by the fact that the writs issued in
one state do not run in another.
More important than all else is the provision, already referred to
(which became constitutional law with the adoption of the Constitution),
concerning the rights and privileges of the free citizens of each state in the
several states. This provision rests on the supposition of state sovereignty
— in the Constitution on partial or quasi-sovereignty. The rights of the
"nationals" of one state when sojourning in another state are similar to those
generally recognized by the principles of international comity. Thus, again,
because the states of the American union passed through a period in which they
were, or thought they were, separate sovereignties, interstate relations, as
far as rights of individuals are concerned, are, under the Constitution as it
stands to-day, in some important respects not unlike the relations between
separate national states of the world. Certain fundamental civil rights and
privileges which are commonly recognized by the civilized nations of the world
at large and are accorded to their own citizens are also accorded to foreigners
sojourning within their limits. A citizen of America going to Britain or France
expects to find, and he does find, the same degree of protection to his person
and property as that enjoyed by citizens of those nations; he may, for example,
make use of the courts of a foreign nation for the assertion and maintenance of
his rights. And in these respects the Constitution of the United States makes
such protection and such privileges legally obligatory upon the states of the
union in their treatment of citizens of the several states. No nation, no
national state, enforces the penal laws of another. The same principle is true
of the members of the American union. In civil matters, however, every
civilized nation does recognize in its courts the rights of an individual which
are based upon the law or spring from the law of a foreign state. The same
general principles obtain in interstate law of the American union. Some of
these principles of international comity are made legally obligatory by our
constitutional system. Full faith and credit are by constitutional provision
accorded in each state to the public acts, records, and proceedings of every
other state.[13] But in the world at large the same recognition is
commonly given (and given on the same principles) by one nation to the acts and
judicial proceedings of another nation. Furthermore, the general principles of
jurisprudence — within the field of what is called private international
law or the "conflict of laws" — are recognized and applied when questions
arise concerning the rights of a citizen of one state suing or sued in the
courts of another, or concerning the rights which are based on the law of a
state not the state of the forum. A right established under the law of Ohio,
for example, will be recognized as a right when a suit is instituted for its
protection in Great Britain.[14] The principles applied in a foreign
state are similar to those which will be applied in a court of an American
state in passing upon the rights of litigants, when the rights so claimed
spring from the law of a member of the American union. "The judiciary power of
every government", said Hamilton, "looks beyond its own local or municipal
laws, and in civil cases, lays hold of all subjects of litigation between
parties within its jurisdiction, though the causes of dispute are relative to
the laws of the most distant part of the globe." [15] In making this
statement, Hamilton was explaining the relationship between the federal and
state courts, but he was also stating a general principle of jurisprudence. The
thing to be emphasized here is the application of these principles to the
interstate law of the American union in which the members stand in a
quasi-international relationship.[16]
Among the duties assigned to Congress by the Articles of Confederation
was that of acting as the last resort on appeal in disputes between two or more
states. Under any conditions such disputes might arise, and in fact they did
arise. If, as the Articles stated, the states were sovereign, and if there were
no method for peaceful settlement, disputes might have to be settled by war,
the time-worn method of trial by battle. The supervising authority of the Privy
Council of the old empire, familiar to the men of America, may have had direct
influence on the framers of the Articles; if so, it is one more evidence of the
effects of the old colonial system. For carrying out this duty, Congress was
authorized to act when any state should apply for a hearing. The states in
disagreement might under the supervision of Congress appoint, by joint consent,
commissioners or judges for hearing and deciding the controversy; but if such a
method failed, because the states could not agree upon the tribunal, Congress
was authorized to appoint, by a formal and cumbersome method, commissioners or
judges with power to reach a "final and conclusive" decision. This provision
for peaceful settlement of controversies between sovereign states was one of
the most important provisions in the Articles; it at least proposed some method
other than war. It foreshadowed one of the signally significant provisions of
the third article of the Constitution of the United States.[17]
This fortunate and wise provision in the Articles was not allowed to lie
idle. Pennsylvania and Connecticut had long indulged in acrimonious controversy
over Connecticut's claim to territory in what is now northern Pennsylvania. On
the petition of Pennsylvania, a court was set up at Trenton which in 1782
unanimously decided that the state of Connecticut had no right to the lands in
controversy.
During the larger portion of the war and before the Articles went into
effect, appeals of prize cases were passed upon by committees of Congress. The
Articles gave Congress express authority to appoint courts for the trial of
piracies and felonies committed on the high seas and to establish courts for
determining appeals in all cases of captures. The states were making admiralty
decisions in their own courts; and an appellate tribunal, if established under
the authority granted by the Articles, was to have jurisdiction of cases
appealed from the states. In 1780 Congress resolved to establish a court "for
the trial of all appeals from the Courts of Admiralty in these United States".
Judges were appointed. This Court in its day was the highest Court in the
country, and the only appellate tribunal with jurisdiction over the whole
United States.[18] Between the middle of September, 1776, and May,
1787, there were, it would appear, 109 cases which were referred to the
Congress committee or brought directly to the Court of Appeals. Of this number
fifty-six were lodged with the Court.[19] As a basis or a precedent
for the Supreme Court of the United States and for the admiralty jurisdiction
of the federal judiciary, the old Court of Appeals was doubtless of
influence.
"Each State", said the Articles of Confederation, "retains its
sovereignty, freedom and independence...." Were, then, the states sovereign?
Did they have any sovereignty to be retained? Few questions in the world's
history have been so thoroughly debated; debated chiefly by public men in
practical political discussion, but discussed also by historians. The reason
for the emphasis upon this question is not attributable to historical
curiosity, but rather to the fact that it appeared to be of supreme consequence
in any endeavor to decide whether the states, after the Constitution was
established, were or were not sovereign. If the states were not sovereign in
the years before the adoption of the federal Constitution, no one could
reasonably assert their possession of sovereignty after adoption; but if
they were sovereign before such adoption, then one may find the starting-point
for an argument in behalf of state sovereignty afterwards.
A treatise on constitutional history may be expected to examine this
problem and reach conclusions, but in any presentation of the subject there are
difficulties to be met. Even if we should decide upon a definition of
"sovereignty", we might be still faced with the difficulty of deciding where
sovereignty actually resides at a given time; and this difficulty is especially
evident in the period of the Confederation. In the course of American history
men have differed, and still differ, in their opinions concerning the nature of
sovereignty; they have not always known wherein their differences lay. They
have often engaged in disputes concerning the question whether at a given time
the states were or were not sovereign; this fact is for the historian of more
real significance than is any rigid verdict which he may reach for his own
edification or for the doubtful gratification of his readers.
In any attempt to decide where at a given moment sovereignty resides in
any nation, the investigator is engaged in an historical task; he is using
historical data; but his conclusion is within the field of law. Though he be a
mere historian, he is under no obligation to withhold from his readers his own
conclusion which is a necessary product of his historical study. To give a very
simple, concrete example, he may assert or assume the obvious, viz.: that the
United States has been a sovereign state since 1865, one of the sovereign
national states of the world; the fundamental principle of its legal structure
is that it is a single, legally-competent and self-contained body politic; as
an historian, he is profoundly interested in discovering how this legal
structure came to be and in showing the difficulties encountered in creating or
maintaining it. In studying the course of American history, the historian will
find his chief task not to establish a conclusion concerning which theory of
the nature of the United States was right (legally speaking) and which was
wrong, but to present actual differences of opinion as they arose and to mark
out the presence of conflicting forces and tendencies.
The word "sovereignty" is still often used with little respect for any
rigid definition. If we should, in obedience to the definition now commonly
found in books on political theory, declare sovereignty to be the supreme and
absolute power by which a state is governed or to be the authority to do
anything and everything of a political nature, we should still be constrained
to inquire whether the men of the Revolution thus used the term and accepted
all its implications. And, indeed, as we shall see more fully later on, the
historian will find that very many, if not all of the men of those days, did
not have this conception of sovereignty. Thus, the history of the very idea of
sovereignty enters into any proper discussion. If sovereignty implies the
possibility of limited authority, if sovereignty, in other words, can be
divided and still remain sovereignty, then a definition connoting completeness
is inappropriate and inapplicable, if applied to the words of men of a century
and a half ago.
Sovereignty, whatever it may be, is often, if not always, in conflict
with actual conditions in the world. The word, certainly when used in the
domain of international relations, implies that each member of the family of
nations has complete freedom in determining its course of action; and yet, of
course, no nation is in reality completely free, but only theoretically free or
free legally speaking. One sovereign nation is supposed to be the equal of
every other; but again this is a convenient (or inconvenient) supposition or an
accepted fiction; one state can be equal with another only in legal competence,
and often the facts go far toward invalidating even this presumption of
equality. But, whether the above assertions concerning the difference between
realities and legal suppositions be accepted or not, sovereignty can most
properly be looked upon as authority, the possession of legal right, and
not as actual power; one cannot say that a sovereign acts illegally or
beyond its legal capacity, if sovereignty connotes unrestrained authority. This
is true not only of a sovereign nation but also of the possessor of sovereignty
within a given nation. In other words, actual power to do all political
acts may be beyond the capacity of the sovereign, though he has the
authority.
Though sovereignty is authority and the legal right to act, it is,
nevertheless, sometimes necessary to consider actual capacity. It is sometimes
necessary to find out from events, from real conditions, where sovereignty
rests; in the course of a revolt within a nation, for example, one may wish to
discover whether a revolution has taken place and sovereignty has changed its
dwelling; or, if a separation of a people into two states is attempted by
rebels, it is necessary to discover whether in the course of time they have
ceased to be rebels and must be held to have established a new national state.
Thus the legal theory as to where sovereignty resides may be damaged or
overthrown by consideration of what really is.
Adhering to our belief that sovereignty belongs within the field of law,
we may study the years between 1776 and 1788 with the intent to discover where,
as America was then organized, sovereignty resided. Accepting for the moment
the definition of sovereignty as complete authority, full legal right, can we
decide where it rested? The evidence is confusing: at least able and honest men
have differed in their conclusions. Even in the Constitutional Convention of
1787, there was a difference of opinion, some men holding that the states did
not become sovereign when independence was declared, others seemingly (and one
member plainly) asserting that the states did become separate
sovereigns.[20]
Now the truth appears to the writer to be just this: it was a time of
revolution and of reconstruction; and in consequence there was and is some
uncertainty about the nature of the governmental system. The states frequently
acted as if they had real authority and not merely nominal sovereignty. In the
Articles of Confederation they announced their separate sovereignty, but their
actual incapacity to act as independent sovereignties was often at variance
with their presumption. The necessities of the situation indicated plainly that
safety was in union, in coöperation; and so one may believe, if one
chooses to do so, that the reality of interdependence was sufficient to
overthrow any legal fiction of independence and separate
existence.[21] There were, furthermore, strong ties that bound the
states together, forces working through the social and economic order, forces
that were powerful and likely to become dominant; certain realities were
ignored by declarations concerning separate sovereign existence; and the real
problem of the time, a compelling problem, was to bring political forms into
accommodation with actual needs and with the dominating fact of interdependence
and identity of interests. Again, whatever may be said on this harrowing
question, another unavoidable fact is this: there had been union, a greater or
less degree of coöperation, even though all the communities had, in
contemplation of law, not been absorbed into one body politic. If anyone wishes
to assert that the years between 1775 and 1789 were a period of transition, and
that the difficulty of deciding upon the residence of sovereignty in the period
in question is insurmountable — if anyone wishes to make such an
assertion, the writer lays no indictment against him.
But someone may say that all this is avoidance or an apology for not
answering the question whether the states were separately sovereign. To this it
may be answered, the historian is under no obligation to answer the question.
Could he fully present his evidence, his facts, he would be entitled, should it
so please him, to leave the verdict to his readers. If, however, one
must state an opinion, the writer of these lines is compelled to say
that, if one adheres strictly to the conception of sovereignty as implying
legal authority, then the only bodies whose doings must be held to be law,
because those bodies did them, were the states; they possessed the technical
legal authority. If such a conclusion is of value to anyone, he is welcome to
it.[22] One cannot very well ignore the word "sovereignty" in the
Articles; but one cannot be absolutely sure of the meaning of the word in the
minds of men that used it; and one cannot, on the other hand, blind one's eyes
to the fact that the states announcing their sovereignty were incompetent to
act individually as completely self-reliant members of the family of
nations.
In the days of the Revolution and the Confederation, the reigning
philosophy was in conflict with the idea that complete unlimited authority
could exist anywhere or be possessed by anybody. The conception of the organic
or vital character of a body politic was not in accord with "social compact"
thinking. Only when in later years men began to think of the state —
meaning by the word "state" a body politic, or as we often now say, a nation
— as a being possessed of life and will, only when they began to think of
the vital source of authority behind all mandates, all agreements, all
governments, did they begin to conceive with any clarity and definiteness of a
complete and indivisible power. Some things were said in the Constitutional
Convention of 1787 which appear consistent with the idea of indivisible
sovereignty; but on the whole, it appears just to say, the idea in the minds of
the men of that body was that compelling legal authority was to be exercised
within given fields; one field was to belong to the national government, one to
the states.
[1] Presented to Congress July 21, 1775. For Franklin's use
of the New England Confederation and the Albany Plan of Union, see L. K.
Mathews, "Benjamin Franklin's Plans for a Colonial Union, 1750-1775," Am.
Pol. Sci. Rev., VIII, pp. 393-412.
[2] The committee was appointed June 12, 1776. It reported
July 12, and the reported articles were discussed for some time thereafter. The
committee of the whole, after discussing the report, submitted the amended
scheme to Congress on August 20.
[3] Edward Rutledge wrote to John Jay as early as June 29,
1776: "I have been much engaged lately upon a plan of a Confederation which
Dickenson has drawn; it has the Vice of all his Productions to a considerable
Degree; I mean the Vice of Refining too much. Unless it's greatly curtailed it
never can pass, as it is to be submitted to Men in the respective Provinces who
will not be led or rather driven into Measures which may lay the Foundation of
their Ruin.... The Idea of destroying all Provincial Distinctions and making
every thing of the most minute kind bend to what they call the good of the
whole, is in other Terms to say that these Colonies must be subject to the
Government of the Eastern Provinces.... I am resolved to vest the Congress with
no more Power than that is absolutely necessary...." Letters of Members of
the Continental Congress (E. C. Burnett, ed.), I, pp. 517-518 (hereafter
referred to as Burnett, Letters).
August 19 (?), 1776, Rutledge wrote to Robert Livingston: "We have done
nothing with the Confederation for some Days, and it is of little Consequence
if we never see it again; for we have made such a Devil of it already that the
Colonies can never agree to it. If my opinion was likely to be taken I would
propose that the States should appoint a special Congress to be composed of new
Members for this purpose — and that no Person should disclose any part of
the present plan. If that was done we might then stand some Chance of a
Confederation, at present we stand none at all." Ibid., II, p. 56. This
latter statement is interesting in light of what came eleven years later.
[4] The article in the Dickinson draft was slightly longer,
but to the same effect.
[5] "Each State retains its sovereignty, freedom and
independence, and every power, jurisdiction, and right, which is not by this
confederation expressly delegated to the United States, in Congress assembled."
Of the article regarding sovereignty of the states, Thomas Burke of
North Carolina wrote, "It stood originally the third article; and expressed
only a reservation of the power of regulating the internal police, and
consequently resigned every other power. It appeared to me that this was not
what the States expected, and, I thought, it left it in the power of the future
Congress or General Council to explain away every right belonging to the States
and to make their own power as unlimited as they please. I proposed, therefore,
an amendment, which held up the principle, that all sovereign power was in the
States separately, and that particular acts of it, which should be expressly
enumerated, would be exercised in conjunction, and not otherwise; but that in
all things else each State would exercise all the rights and power of
sovereignty, uncontrolled. This was at first so little understood that it was
some time before it was seconded, and South Carolina first took it up. The
opposition was made by Mr. Wilson of Pennsylvania, and Mr. R. H. Lee of
Virginia; in the end however the question was carried for my proposition,
eleven ayes, one no, and one divided. The no was Virginia; the divided New
Hampshire.... In a word, Sir, I am of opinion, the Congress should have power
enough to call out and apply the common strength for the common defence: but
not for the partial purposes of ambition.... The inequality of the States, and
yet the necessity of maintaining their separate independence, will occasion
dilemmas almost inextricable." Thomas Burke to the Governor of North Carolina,
April 29, 1777, in Burnett, Letters, II, pp. 345-346. Thus Burke clearly
stated the gist of the problem of imperial organization.
"Since my last we have made no progress in the business of
Confederation. A difficulty occurs, which, I fear, will be insuperable: that is
how to secure to each State its separate independence, and give each its proper
weight in the public Councils. So unequaled as the States are, it will be
nearly impossible to effect this; and after all it is far from improbable that
the only Confederation will be a defensive Alliance." Thomas Burke to the
Governor of North Carolina, May 23, 1777, in Ibid., II, pp. 370-371.
[6] Burnett, Letters, II, p. xvi.
[7] As showing the interstate and intersectional jealousies,
a letter of Richard Henry Lee (May 26, 1777) is especially illustrative: "Our
enemies, and our friends too, know that America can only be conquered by
disunion. The former, by unremitting art had endeavored to create jealousy and
discord between the Southern and Eastern Colonies, and in truth Sir, they had
so far prevailed, that it required Constant attention, and a firmness not to be
shaken, to prevent the malicious act [art?] of our enemies from succeeding."
Richard Henry Lee to the Governor of Virginia, in Ibid., II, p. 374. See
also Burke's letter of February 10 (or 16), 1777, to the Governor of North
Carolina, in Ibid., II, p. 257; Benjamin Harrison to Robert Morris,
January 8, 1777, in Ibid., II, p. 208; Carter Braxton to Landon Carter,
April 14, 1776, in Ibid., I, p. 421, a letter of an earlier date but not
without significance for later times. From the notes of discussion in Congress
taken by Jefferson, and from reports of certain speeches, we find Samuel Chase
of Maryland distinctly asserting the cleavage between the larger and the
smaller states on the subject of representation. See especially,
Journals, VI, p. 1102. John Witherspoon of New Jersey said, "if an equal
vote be refused, the smaller states will become vassals to the larger...."
Ibid., VI, p. 1103. The problem of taxation and representation was
rendered more difficult by the fact that the southern states had large numbers
of slaves. One article in the earlier drafts of the Articles (July 12, 1776 and
August 20, 1776) provided that all charges of war and other expenses should be
defrayed out of a common treasury supplied by the several colonies in
proportion to the number of inhabitants, except Indians not paying taxes.
[8] July 30, 1776. Journals, VI, p. 1079.
[9] For Maryland's position, see H. B. Adams, Maryland's
Influence Upon Land Cessions to the United States (Johns Hopkins University
Studies in Hist. and Pol. Science, third series, III, no. 1). The whole
western question and the land cessions are ably discussed by B. A. Hinsdale,
The Old Northwest. Burnett, Letters, II, contains valuable
material.
[10] Rhode Island asked that all lands which before the war
were the property of the Crown should be considered as the property of the
United States, reserving to the states, however, within whose limits such crown
lands might be, the jurisdiction thereof. New Jersey's wish was similar to that
of Rhode Island. Journals, XI, pp. 639, 650.
[11] Reference has already been made to the Albany Plan of
1754, to Franklin's evident study of the New England Confederation of 1643,
which did not expire until 1684, as well as to the actual practice of the old
empire.
[12] The courts have not held that the federal authorities
are under obligation to compel or to seek to compel rendition of a fugitive by
one state to another at the latter's request.
[13] See Constitution, Art. IV, sec. I.
[14] A somewhat unique relationship in such matters exists
between France and America, but it serves as an exception to prove the
rule.
[15] The Federalist (1818 ed.), no. LXXXII, p. 446.
See also John Marshall's speech in the Virginia convention, June 20, 1788.
The Debates in the Several State Conventions, on the Adoption of the Federal
Constitution (Jonathan Elliot, ed.), 1866 ed., III, p. 556. Hereafter
referred to as Elliot, Debates.
[16] An illustration of the quasi-international relationship
follows. In 1829, Justice Washington, giving the opinion and decision of the
federal Supreme Court, said: "For all national purposes embraced by the Federal
Constitution, the States and the citizens thereof are one, united under the
same sovereign authority, and governed by the same laws. In all other respects
the States are necessarily foreign to and independent of each other. Their
constitutions and forms of government being, although republican, altogether
different, as are their laws and institutions. This sentiment was expressed
with great force by the President of the Court of Appeals of Virginia, in the
case of Warder v. Arrell (2 Wash., 298); where he states that in
cases of contracts, the laws of a foreign country where the contract was made
must govern; and then adds as follows: 'The same principle applies, though with
no greater force, to the different States of America; for though they form a
confederated government, yet the several States retain their individual
sovereignties, and, with respect to their municipal regulations, are to each
other foreign.'" Buckner v. Finley, 2 Peters 586, 590-591. In this case
the question was whether a bill of exchange drawn in Maryland upon a drawee in
Louisiana was a "foreign bill". The Supreme Court decided that it was.
[17] For an interesting discussion of this subject, see R. G.
Caldwell, "The Settlement of Inter-state Disputes," Am. Jour, of Int.
Law, XIV, p. 38 ff.; A. H. Snow, The Development of the American
Doctrine of Jurisdiction of Courts Over States, Publications of the
American Society for Judicial Settlement of International Disputes no. 4 (May,
1911); also other pamphlets issued by the same society. Concerning the
authority of the Privy Council, Caldwell has this to say: "It is safe to say
that from the authority of this administrative body is derived the
quasi-international authority of every federal court in the world, except the
German Bundesrath whose power to settle the disputes of the members of the
German Empire has a wholly distinct origin in the Diets of the Confederation
and of the Holy Roman Empire." Op. cit., p. 39. He also mentions nine
chief cases coming somewhat formally before the Privy Council in colonial days.
Ibid. Only one of these, Penn v. Lord Baltimore, "came before an
ordinary court in a fashion at all comparable to a modern case between two
States in the Supreme Court of the United States." Ibid., p. 41. "These
early settlements were evidently not in any sense international arbitrations,
but had all the paternal character of administrative determinations both in
their nature and results." But this "habit of looking to this common
administrative court ... became a real though reluctant habit until almost the
moment of war." Ibid., p. 41. Six disputes came before Congress before
the Constitution was adopted. See Ibid., pp. 53-54 and J. C. B. Davis,
"Federal Courts Prior to the Adoption of the Constitution," in an appendix to
131 U. S. Supreme Court Reports. In two of these controversies a court
was agreed upon but it did not sit and render a decision in either case. But in
the Pennsylvania-Connecticut case the court did sit and it rendered a decision.
Since the adoption of the Constitution forty-five interstate controversies have
come before the federal Supreme Court (to 1932). This statement is based upon
data afforded by Professor Caldwell, in a personal letter, March 18, 1932.
[18] Davis, op. cit., pp. XXV-XXVI. The difficulty
arising from the fact that the duty or the power to carry out the Court's
decisions rested with state authorities is commented on by Davis. Ibid.,
p. XXIX. Cf. also, J. F. Jameson, "The Predecessor of the Supreme Court,"
Essays in the Constitutional History of the United States (J. F.
Jameson, ed.), p. 1 ff.
[19] Davis, op. cit., p. XXXIV.
[20] See the statements of Luther Martin, James Wilson,
Alexander Hamilton, and Rufus King, June 19; of Martin, June 20. Charles C.
Pinckney, who had been a member of the Federal Convention, speaking to the
South Carolina legislature, January 18, 1788, declared that the "separate
independence and individual sovereignty of the several states were never
thought of by the enlightened band of patriots who framed this Declaration [of
Independence].... Let us, then, consider all attempts to weaken this Union, by
maintaining that each state is separately and individually independent, as a
species of political heresy...." Elliot, Debates (1863 ed.), IV, p.
301.
Among the many discussions of this subject the following may be
especially useful: A. W. Small, The Beginnings of American Nationality
(Johns Hopkins University Studies in Hist, and Pol. Science, eighth
series, VIII, nos. 1-2); C. H. Van Tyne, "Sovereignty in the American
Revolution," Am. Hist. Rev., XII, p. 529 ff.; A. H. Stephens, A
Constitutional View of the Late War Between the States, I (the classic
argument for continued state sovereignty, written by the Vice-President of the
southern Confederacy); J. C. Calhoun, Works (R. K. Crallé, ed.),
I; J. I. C. Hare, American Constitutional Law, I (opening discussion);
Alexander Johnston, "Declaration of Independence," Cyclopaedia of Political
Science (J. J. Lalor, ed.), I, p. 743 ff.; Alexander Johnston, "State
Sovereignty," in Ibid., III, p. 788 ff.; and E. S. Corwin, National
Supremacy.
[21] This is what Alexander Johnston means when he says, "...
calling themselves sovereign did not make them so." "State Sovereignty,"
loc. cit., p. 791. If this sentence is at all reconcilable with the idea
that sovereignty is legal authority, not full power to exercise it, we shall
have to construe it as meaning that the states were so far incapable of acting
as separate full-governing bodies that the assumption that they possessed
sovereignty was invalidated.
[22] What will one do with a statement like this, which
plainly declares that by the Confederation the people became one people? "AGAIN, the formation and completion of that social compact
among these States, which is usually stiled the Confederation, is
another instance of the great things our God has done for us. This is that
which gives us a national existance and character.... By this event, the
Thirteen United States ... became ONE PEOPLE." More than
once the states together are spoken of by this author as constituting a
"nation". John Rodgers, The Divine Goodness displayed, in the American
Revolution (New York, 1784), p. 28 ff.
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