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1981 Our First : The Articles of William F. Swindler William & Mary Law School

Repository Citation Swindler, William F., "Our First Constitution: The Articles of Confederation" (1981). Popular Media. 262. https://scholarship.law.wm.edu/popular_media/262

Copyright c 1981 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/popular_media The "united States in assembled" came into being 200 years ago with of the Articles of Confederation.

By William F. Swindler

THE period of the nation's bicentennial, right ought to be, free and independent from to the final im- States." This resolution was in fact one plementation of the federal government of three related proposals, the second under the Constitution to be observed calling for the seeking of foreign al- in 1987-89, includes several events less liances for the coming war with Great familiar in history but significant in Britain, and the third stating "That a their own place and time. In 1979 was plan of confederation be proposed and the bicentennial of legal education transmitted to the respective Colonies marked by the founding of the chair of for their consideration and approba- law at the College of William and Mary tion." on December 4, 1779 (see 64 A.B.A.J. These resolutions in themselves 1872). In 1981 will come two events- marked a transitional step in the final ratification of the Articles of constitutional thought. The famous Confederation in March and the final Declaration of Independence, which victory of the Revolution at Yorktown followed in July, was actually the third in October. in a series of declarations by the Conti- Of these' two, it is safe to say that the nental:-ongress, which, as the years Yorktown event will be more widely passed, had moved the 13 colonies recognized. But as a milestone in the slowly and reluctantly toward inde- unique experiment in government that pendence. In 1774 the First Continental became the of America, Congress had published its Declaration the quiet happening at on and Resolves, which called on the March 1, 1781, may be more significant mother country to ensure to the col- in constitutional history. For with that onists their rights as Englishmen. event- the final adoption by the 13 When Parliament ignored this repre- states of the Articles of Confederation- sentation, the Second Continental Con- the American people moved toward gress in 1775 issued its Declaration on identity as a nation. This was the vital the Reasons for Taking Up Arms -in transitional step from the ad hoc Conti- defense of the inalienable rights of Eng- nental Congress to "the united States in lishmen. Thus the Declaration of 1776 national government by the final adop- Congress assembled" to the ultimate was the final step in an inexorable proc- tion of the Articles on March 1, 1781. drafting of the Constitution and "the ess: in order to secure their rights as Eng- The use of the title, Continental Con- more perfect union" of a federal form of lishmen, the English colonists now de- gress, actually continued throughout government. clared that they had to be independent of the until the new The drafting and approval of the "Ar- England itself. Constitution went into effect in April, ticles of Confederation and Perpetual There were, literally speaking, only 1789. Union" did not come easily. A confed- two Continental . The first The idea of an intercolonial parlia- eration was first formally proposed in met from to October 26, mentary union had appeared recur- May, 1776, when of 1774. The Second, which opened May rently in American colonial history. offered his famous resolution, 10, 1775, continued until it was con- The Confederation of "That these United Colonies are, and of verted into the permanent organ of a 1643 was a regional version of the con- Our First Constitution: The Articles of Confederation 166 American Bar Association Journal War of Independence. The postwar question obviously was: assuming that there should be some continuing forum for the exchange of information and for co-ordinating activities of the sovereign states, how should it be organized? A , whether in or Philadelphia, was seen as a restraint on the freedom of local legisla- tures and hence to be resisted by radi- cals like Sam and of Mas- sachusetts, or or Pat- rick Henry of Virginia. Somewhat self- consciously, men like these in these two most militant of the erstwhile col- onies came to call their new govern- ments commonwealths, after the form of government during the English Rev- olution. It was perhaps that equally zealous radical, , who persuaded to follow the same example. The fourth com- monwealth of the modern Union-Ken- tucky-inherited the tradition from its parent , Virginia. In the debate over Lee's threefold resolutions of May, 1776, in fact, there was some argument that confederation should precede independence. How, it waTs asked, could 13 separate colonies legally declare their joint or simulta- neous independence and make the dec- laration recognized as valid by the so- ciety of nations? On the other hand, some of the erstwhile colonies, like Virginia, were making their own decla- rations part of their new state constitu- tions. , from the "three lower counties" of Pennsylvania (Del- aware), was the first draftsman of a plan ep. I,, rgel in reiic:tion to lie c:ivil war for confederation, prepared by a com- Ilii rciging in Ice, eolhior country. In mittee made up of a delegate from each 169T \illhun Peeila lod icroposed afed- of the colonies, with the draft being re- (ration for all the Ien exislilig col- ported back to Congress a week after (cciis. and icl 1754 tie .. all iv Con- the formal proclamation of the Declara- gross. CoIXivel\( at tile ecouiragement tion of Independence. When debate on of Ihle iolher colntrN io mobilize colo- the details of the draft began, the di- ial iell'oits for ie Fricrli mcid Indian visions among the states immediately \\'lir. hc dcblcd a forilI "'plan of manifested themselves and became so 11ii1on." :\I ol these assumed the ulti- sharp that from North olto stirecct.mc. of Ihic I'itisi govern- Carolina gloomily predicted that "we ciocol. and il Ilc I'irst two sessions of shall never modell it so as to be agreed liceCCcciinciil[ Congrss a similar pro- to by all the Colonies." posal for a col'eccralim ol licciolonies A month later the debate was broken %%cIs oifticci, a n alter'natix e to [he rad- off, primarily because of the overriding ical proiiposil for i:occiiclO' inclepend- concerns of the developing military ac- (011( e. tion of the Revolution. It would be the \Villi tlce)olaritioc il' 177(i. how- following April before the subject was e'\cr'.Ihcc issi' h fil indainentally put back on the calendar, at which time changed. For the immediate and war- it was agreed that two days a week Li- I chomson (courtesy of Nattonai rortrait Gallery, Smithsonian Institution). CENTER- time present, the should be spent in debate on the arti- (courtesy of Bettman Archive, Inc.). RIGHT: William Pace existed of necessity to co-ordinate- cles until final agreement on an in- (courtesy of Historical Society) poor though the co-ordination was - strument could be reached. That came colonial or state efforts to carry on the in November, when the final form was

February, 1981 * Volume 67 167 approved and the articles submitted to continuing offices, a secretary and a accident of the fact that he held the of- the states for action. president. The secretary, who was fice in the summer of 1776, was John The major concerns that had to be re- of Philadelphia, was Hancock of , who signed solved in this quasi-convention of elected at the opening session in 1774 his name first on the final Declaration April-November, 1777, involved the and served until all the affairs of the old of Independence in a hand large preservation of all but complete inde- government were wound up and its pa-, enough, he said, that King George pendence or for the indi- pers delivered to the new government could read it without his spectacles. vidual states, equality of representation under the Constitution in 1789. It is to Fourteen men held the office for vary- or voting power among the delegations Thomson that we owe most of our ing lengths of time, including , of the several states to the Continental knowledge and all of our surviving who was to become the first chief jus- Congress, apportionment of costs of documentation of this first national tice under the Constitution. Jay's presi- supporting the national government, government. Often working without dency was short, since he was needed and - knottiest of all - disposition of any clerical assistance, and never hav- for more important diplomatic assign- the great tracts of land held by some ing but a token staff, Thomson man- ments abroad. In 1784 Jay became sec- states as against the "landlessness" of aged to keep a journal of every session retary of foreign affairs under the con- the others. of Congress, copies of reports of all , the only other government The opening article of the 13 finally , records of correspondence, office purporting to be permanent. agreed on simply stated: "The stile of expenses, official papers of military Many of the proposed powers of gov- this confederacy shall be 'The United and diplomatic activity, and bits and ernment set out in the articles were to States of America." The official des- pieces of everything else. be repeated, some in haec verba, in the ignation of the new government, how- He deserved better of his country. later Constitution. Full faith and credit, ever, was always expressed as "the The emerging nation he served paid jurisdiction over interstate commerce, united States, in Congress assembled." him only the dubious honor of continu- power of coinage, operation of a postal The small "u" told the story: this gov- ing him in office throughout these for- service, authority to set standards of ernment only took on valid character mative 15 years: When he finally weights and measures, even training when the independent states came to- turned over to the new federal govern- and disciplining of military forces (sav- gether to act in concert on those matters ment the complete papers of the con- ing various state prerogatives). The the other articles empowered them to federation, he was given neither special Achilles heel was the provision in Arti- address. The matter of state status recognition nor the offer of a place in cle VIII that all expenses of government within this "confederacy" was firmly the national agencies then being organ- were to be paid from a "common trea- declared by the second article: "Each ized. sury, which shall be supplied by the State retains its sovereignty, freedom, several states," the of and independence, and every power, which would levy special taxes to meet jurisdiction, and right, which is not by Charles Thomson their proportionate share of the costs. If this confederation expressly delegated is the forgotten man this were not enough to lay a fatal im- to the united States, in Congress as- of history pediment on the national government, sembled." the sixth clause of Article IX took away Herein, of course, lay two seeds of fu- Thomson bore all of this with most of what appeared to be granted by ture constitutional dispute, which have equanimity. An Irish orphan of ten the first five clauses, by stipulating that continued to the present day. The re- when he was put ashore with five with respect to conducting or financing tention of ultimate sovereignty always brothers and sisters at New Castle, Del- national defense (the supposed primary has been the crux of the argument of the aware, in 1739, he gained enough edu- concern of an interparliamentary "states' rights" school of constitutional cation to support himself as a school- union) Congress was not to act without theory. And the words "expressly dele- master until he was able to turn to the consent of at least nine of the 13 gated" always have been strenuously trade, where he quickly proved his abil- states. argued by this school to have been im- ities in business. By 1757 he was so There was also, interestingly enough, plied in the creation of the new gov- well known for his fairness and integ- an ad hoc judicial process provided by ernment under the Constitution of rity that the Indian tribes named him Article IX, to hear two types of inter- 1787. "the man who speaks truth" and made state disputes - boundaries or land As for representation in Congress, it him their representative at the of claims, on the one hand, and maritime was understood almost from the outset Easton. By the time of the First Conti- cases appealed from the state ad- that the unit rule of one vote per state, nental Congress he was known as "the miralty courts, on the other. In an which had been practiced from the Sam Adams of Philadelphia, the life of elaborate legislative formula, this arti- First Continental Congress, would ob- the cause of liberty." In July, 1789, cle provided for a commission to be tain. Each state was entitled, under Ar- when he retired from public service, he drawn from Congress's membership to ticle V, to not less than two nor more took up a scholarly life on his estate hear the land dispute whenever the than seven delegates, who would have near Philadelphia, producing a well- states that were parties to the action to agree among themselves as to how endorsed four-volume study of the should submit to adjudication. This their state's vote was to be cast. Dele- Bible. He died at the age of 95 in 1824, procedure had a rather poor track rec- gates served a three-year term and were still little recognized or honored. ord. Of half a dozen potential cases not eligible for re-election until after a As for the presidents of the Congress, noted in the journals of Congress, only term's interval. Each state bore the ex- they came and went, and are little more one was pursued to final judgment, an- penses of its own delegation. remembered than is Thomson, being other never reached a point where the Throughout the history of the Conti- merely chairmen of the general ses- congressional commission could take nental Congress, there were only two sions of the body. The most notable, by jurisdiction, and the others were either

168 American Bar Association Journal dropped or settled by direct negotia- the American Philosophical Society in for great tracts on which it proposed to tions between the states affected. 1977.) promote settlements in what were to The two cases in which issues were Ratification of the Articles of Confed- become the states of , , or could have been joined involved the eration began fairly expeditiously, and , , and part of Min- Wyoming Valley lands in Pennsyl- by July 9, 1778, enough states had fa- nesota. With the capture of Vincennes vania, claimed by under a vorably instructed their delegates in by its own troops under George Rogers prior charter, and the "Hampshire Congress to encourage that body to Clark early in the Revolution, Virginia grants" disputed by draft a form of ratification and open it further asserted claim to the entire area and , an issue that finally be- to signature. Eight states thereupon af- by right of conquest. came moot when the area was admitted fixed their names-Connecticut, Massa- In lieu of a tax power, the Continental to the Union as the state of . chusetts, New Hampshire, New York, Congress could anticipate a significant The Wyoming case involved conflict- Pennsylvania, , South asset, convertible into bounties for ing claims by Pennsylvania under its Carolina, and Virginia. By February, veterans, in the form of charter of 1681 and the Connecticut 1779, four more had signified their ap- the land cessions. The national interest charter of 1662. It came to a head fol- proval: , , , also pointed to a progressive expansion lowing the massacre of settlers by a and . But one state, of new states to be created from these joint force of Tories-and Indians in the Maryland, was holding out, and with- lands and added to the Union. And it is summer and fall of 1778. When the sur- out unanimous approval, the articles worth noting that the one major legisla- vivors began to make plans for reset- could not go into effect. tive accomplishment of the Confedera- tling, Pennsylvania sought to forestall a Maryland's opposition went to the tion was the enactment, in its declining renewal of Connecticut's allegation of most fundamental of the issues ham- months, of the famous Northwest Ordi- jurisdiction by petitioning Congress to pering the birth of the nation- the nance of 1787, which offered a kind of create a special commission to hear the Western lands. constitutional bridge between the inef- arguments of both sides. When Connec- Early colonial charters had been fective Articles of Confederation and ticut agreed to the jurisdiction, a five- vague as to geography; several of them the Constitution that the Philadelphia man court was sworn in at Trenton made grants, between specified lines of Convention at that same time was where, after 42 days of hearing tes- latitude, from the "western shores of bringing to final form. The ordinance timony, a unanimous judgment was the Atlantic" to the "South Seas." was to be incorporated into the statutes rendered in favor of Pennsylvania. Eventually the be- of the First Federal Congress and would came tacitly accepted as the major body serve as the model for territorial organ- First national court of water marking the western bound- ization throughout most of the national aries for the colonies of Georgia, North history. was established Carolina, and Virginia. Massachusetts When Virginia finally gave in to in 1780 and Connecticut had claims to smaller Maryland's insistence, early in 1781, strips to the west, but both saw these the last obstacle to ratification of the As for the prize appeals, the problem claims gradually extinguished until Articles of Confederation was removed. of interstate judicial review was recog- Connecticut retained only a "Western By February the unanimous adoption of nized by as early as Reserve" on the shores of for the new frame of government was cer- November, 1775, nearly eight months the resettlement of the victims of the tified, and one month later the new before independence and on his rec- "firelands" - coastal regions ravaged government formally came into being. ommendation Congress later that year by British naval bombardment. New There were no stirring speeches, or set up a special to formulate York and Pennsylvania had such vast anything to mark the event at the time. a procedure to deal with the matter. territories that they made little effort to The Congress continued as it had be- When' 12 of the states had created add to them until others, principally fore, although the community celebra- their own admiralty courts (New York, the of Virginia, pre- tion outside the legislative halls made with its only seaport occupied by the empted the area that became the "old up for the prosaic course of business British throughout the war, never had Northwest." Rhode Island and Dela- within. 's warship, the occasion to do so), a standing commit- ware, for various historical reasons, had Ariel, fired off in the harbor, tee of Congress was established to hear no basis for claiming territories beyond and these were answered by fireworks appeals from them. The volume of busi- the seaboard. New Jersey and South from the city. The evening was filled ness was such that in May, 1780, the Carolina were geographically hemmed with receptions, dinners, and "colla- first statute creating a national court in, so their demands that Western lands tions" in celebration. was passed by Congress, setting up the be ceded to the new nation were mat- It had taken three years of effort to special Court of Appeals in Cases of ters of principle or at least pro forma. achieve the adoption of the Articles of Capture. This court, with the first "fed- New Hampshire's interest had been in Confederation. They would last for eral" judges ( of Mary- the "Hampshire grants." eight more. land, of Virginia, George Maryland was left as the sole holdout Read of Delaware, and John of against the three major "landed" states (William F. Swindler is John Mar- Massachusetts), heard 118 appeals from to the south, and particularly against its shall Professor of Law, Emeritus, at the the various states, affirming 39 and re- old rival and neighbor, Virginia. In- College of William and Mary. He is versing 45. The records for the remain- deed, Virginia did present a monolithic completing a study of the confedera- der are too fragmentary for one to de- threat. In addition to the huge jurisdic- tion government of the United States, to termine their disposition. (For a defini- tions represented in its District of Ken- be entitled The Course of Human tive study, see Henry J. Bourgignon's tucky and its "" of , its Events: The Continental Congress, The First Federal Court, published by Ohio Company had taken out patents 1774-1 789.)

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