College of William & Mary Law School William & Mary Law School Scholarship Repository Popular Media Faculty and Deans 1981 Our First Constitution: The Articles of Confederation 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 Congress assembled" came into being 200 years ago with ratification of the Articles of Confederation. By William F. Swindler THE period of the nation's bicentennial, right ought to be, free and independent from independence 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 American 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 United States of America, Congress had published its Declaration the quiet happening at Philadelphia 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 confederation period 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 Congresses. The first The idea of an intercolonial parlia- eration was first formally proposed in met from September 5 to October 26, mentary union had appeared recur- May, 1776, when Richard Henry Lee of 1774. The Second, which opened May rently in American colonial history. Virginia offered his famous resolution, 10, 1775, continued until it was con- The New England 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 central government, whether in London 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 John Adams of Mas- sachusetts, or Thomas Jefferson 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, Benjamin Franklin, who persuaded Pennsylvania to follow the same example. The fourth com- monwealth of the modern Union-Ken- tucky-inherited the tradition from its parent state, 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. John Dickinson, 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 Joseph Hewes 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 Charles chomson (courtesy of Nattonai rortrait Gallery, Smithsonian Institution). CENTER- John Hancock time present, the Continental Congress 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 Maryland 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- Charles Thomson of Philadelphia, was Hancock of Massachusetts, 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 sovereignty 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 John Jay, 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 federation, the only other government The opening article of the 13 finally committees, records of correspondence, office purporting to be permanent.