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The Defects of the Articles of Confederation, Part 6

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Before reviewing how the Articles of Confederation operated with respect to territorial issues, it is first necessary to recall that the states retained land claims under the ancient colonial English charters.  The charters of Massachusetts and Connecticut extended ostensibly all the way to the western end of the continent.  The colony of New York had been established during the reign of Charles II; as a result, Massachusetts and Connecticut exempted that area, but continued to claim all the lands to the west at their respective latitudes.  Massachusetts also held the territory of what is now the state of Maine.  During the period from its establishment to the Revolution, the colony of New York gradually gained influence over the Iroquois Indians and the other tribes that had accepted the nominal sovereignty of the Iroquois.  Consequently, New York claimed all the land occupied by these tribes, which extended westward nearly to what is now Michigan.  After the Spanish gained control of the southwest it was recognized that these claims now extended only to the Mississippi River.

The original charters of Virginia, North Carolina, and Georgia also extended to the western sea, although by the time of the Revolution was valid only to the Mississippi River given the Spanish occupation of the southwest.  South Carolina likewise had some claims to territory in the west, but was not clearly specified.

The claims of Virginia were further enhanced by the fact that two earlier expeditions had led to the conquest of some western territory.  In 1774, after Parliament had passed the Quebec Act, Lord Dunmore, governor of Virginia, called out a large number of settlers in western part of the colony to suppress an Indian uprising against some of the settlers along the Ohio River.  In November of that year, this force defeated the Shawnees at Point Pleasant and established peace with the Shawnees and their allies.  Virginia then exerted indirect control over the Ohio Valley even before the Revolution; this action, known in history as Lord Dunmore’s War, effectively nullified the British Quebec Act since the colonial settlers controlled it before the British could organize it directly under a government set up by Parliament.  A second action during the Revolution furthered Virginia’s claims.  An expedition led by George Rodgers Clarke began a campaign in Jun 1778 to defeat the British and their Indian allies along the Mississippi and Ohio Rivers.  By the end of July, they had taken Cahokia and Kaskaskia.  By Feb 1779, Clarke had taken Vincennes; this gave Virginia physical control of all the territory along the Ohio River as far as present-day Detroit and westward to present day St. Louis.

The powers given to Congress under the Articles of Confederation to determine territorial questions between the states was contained in the second and third paragraphs of Article IX:

The United States, in Congress assembled, shall also be the last resort on appeal, in all disputes and differences now subsisting, or that hereafter may arise between two or more States concerning boundary, jurisdiction, or any other cause whatever; which authority shall always be exercised in the manner following: Whenever the legislative or executive authority, or lawful agent of any State in controversy with another, shall present a petition to Congress, stating the matter in question, and praying for a hearing, notice thereof shall be given by order of Congress to the legislative or executive authority of the other State in controversy, and a day assigned for the appearance of the parties by their lawful agents, who shall then be directed to appoint, by joint consent, commissioners or judges to constitute a court for hearing and determining the matter in question; but if they can not agree, Congress shall name three persons out of each of the United States, and from the list of such persons each party shall alternately strike out one, the petitioners beginning, until the number shall be reduced to thirteen; and from that number not less than seven, nor more than nine names, as Congress shall direct, shall, in the presence of Congress, be drawn out by lot, and the persons whose names shall be so drawn, or any five of them, shall be commissioners or judges, to hear and finally determine the controversy, so always as a major part of the judges who shall hear the cause shall agree in the determination; and if either party shall neglect to attend at the day appointed, without showing reasons which Congress judge sufficient, or being present, shall refuse to strike, the Congress shall proceed to nominate three persons out of each State, and the secretary of Congress shall strike in behalf of such party absent or refusing; and the judgment and sentence of the court, to be appointed in the manner before prescribed, shall be final and conclusive; and if any of the parties shall refuse to submit to the authority of such court, or to appear or defend their claim or cause, the court shall, nevertheless proceed to pronounce sentence or judgment, which shall in like manner be final and decisive; the judgment or sentence and other proceedings being in either case transmitted to Congress, and lodged among the acts of Congress for the security of the parties concerned; provided, that every commissioner, before he sits in judgment, shall take an oath, to be administered by one of the judges of the supreme or superior court of the State where the cause shall be tried, “well and truly to hear and determine the matter in question, according to the best of his judgment without favour, affection, or hope of reward.”  Provided, also, that no State shall be deprived of territory for the benefit of theUnited States.

            All controversies concerning the private right of soil claimed under different grants of two or more States, whose jurisdictions, as they may respect such lands, and the States which passed such grants, are adjusted, the said grants or either of them being at the same time claimed to have originated antecedent to such settlement of jurisdiction, shall, on the petition of either party to the Congress of the United States, be finally determined, as near as may be, in the same manner as is before prescribed for deciding disputes respecting territorial jurisdiction between the different States.

As seen by this provision, the method of resolution was to be a determination by a special court appointed under the supervision of Congress.  These judges, or commissioners, would then be tasked with formulating a decision on any territorial disputes between states.  This presented three problems.  First, it was not particularly efficient, as each case was to be handled in isolation from every other.  It was probably not a feasible system for resolving large-scale competing territorial claims.  Secondly, there was no provision for conflicts within a state in which one part wished to separate from the other.  Third, there was no provision by which additional states could be added to the Confederation out of any western lands.

The legislature and delegates to Congress from the state of Maryland performed a very useful service to the eventual union by helping to resolve the first of these defects.  The Articles were agreed to and recommended to the states on 15 Nov 1777, and were ratified by eight states on 9 Jul 1778.  But, unlike our Constitution, which could be activated through ratification by any nine of the thirteen states, the Articles required all the states to ratify it before it could go into effect.  The legislature in Maryland, recognizing the difficulties that would ensue over the colonial charters, passed a resolution on 15 Dec 1778 stating their refusal to consider ratification of the Articles until all the states had conveyed their land claims to Congress.  Maryland thus wisely made the activation of the Confederation dependent upon cession of all the competing claims to the western lands.

The states responded to Maryland’s challenge in a most commendable way.  On 19 Apr 1779, New York conceded that Congress should have power to determine its western boundary.  In Oct 1780, Connecticut ceded its western claims except for a small slice of territory just east of what is now Cleveland.  Virginia, who had not only strong claims to western lands, but was actually in control of a great deal of it, magnanimously ceded its claims to Congress on 2 Jan 1781.  Since the claim of Massachusetts was weak, and the territories claimed by North Carolina and Georgia were mostly still wilderness, Maryland authorized its delegation to ratify the Articles on 30 Jan 1781.  Maryland, the final state to ratify, did so on 1 Mar 1781, and Congress officially assumed authority under the Articles on 2 Mar 1781.

The provision contained in the Articles was used once, in the long-standing feud between Pennsylvania and Connecticut regarding the Wyoming Valley, situated in Pennsylvania just north of what is now Scranton.  Although contained entirely within Pennsylvania, the area had been settled by settlers from Connecticut, and was claimed by that state.  A special court convened under the Articles settled this dispute in a ruling on 30 Dec 1782, which was accepted by both sides.

But the power conveyed under the Articles proved insufficient to deal with disputes within the states.  The Maine district of Massachusetts desired to break away and form an independent state.  There had been a long-running feud between New Hampshire and New York regarding the territory now known as Vermont.  This district, although belonging in strictness to New York, desired independence before the Revolution.  It declared itself independent on 15 Jan 1777, calling itself “New Connecticut”, and petitioned for entry into Congress as a fourteenth state.  The name was changed on 8 Jul 1777 to “Vermont”.  The delegation from New York successfully prevented this request from coming before Congress, and it remained unresolved until Vermont formally seceded from New York on 4 Jul 1786.

The case of North Carolina is unique.  In Jun 1784, North Carolina ceded its western claims to Congress on the condition that Congress would have two years to decide how to allocate it.  But the settlers in that area, beset by problems with Indians, were refused help from both Congress and North Carolina, and accordingly set up their own state, named Franklin in 1786.  This led to a low-level civil war in this region, now the state of Tennessee, until 1788, when it was rejoined to North Carolina.  The important pint here is that Congress was too weak to resolve the conflict either way.

Last, we must take notice of the Northwest Ordinance of 13 Jul 1787, passed by Congress to determine the conditions of settlement and eventual statehood for all the lands in the west that had been ceded to Congress.  It was an admirable law, providing an excellent method of settlement, governance as a territory, a prohibition of slavery, and guarantees of certain civil rights.  It superseded an earlier one of 28 Jun 1786, which contained the great defect of permitting slavery in the west.  While the Northwest Ordinance proved to be an excellent expedient, it was done without outside any specific authority in the Articles.  As a result, Congress simply treated this vast territory as a traditional English folk land, in which it is divided and administered ad-hoc as the population increases.  Congress passed it of necessity, as the population was growing.  But the fact that it had no authority to exercise any sovereign authority of this nature only proved the general deficiency of the Articles, for the powers granted would have to be violated as circumstances arose; that could only lead to quarrels and instability among the states.

The requisite power over territory, lacking in the Articles, was granted to Congress under the federal Constitution in Article IV, Section 3:

 [Article IV]

Section 3.  New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.

            The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.

 

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The Defects of the Articles of Confederation, Part 5

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Every successful nation that intends to remain independent requires the ability to regulate commercial activities with foreign nations.  Historically, national governments have used the management of foreign trade for several purposes, including: a) generation of domestic revenue through imposition of duties and tariffs; b) restrictions or prohibitions on the exportation of certain items which would give competing nations an equal or superior military advantage (such as the U. S. Munitions List); c) regulation on the quality of articles that can be imported (such as consumer safety); d) as a means of promoting trade and closer relations with certain “favored nations”; e) outright prohibition on the importation of articles deemed dangerous (such as “illegal drugs”); f) restrictions on imports to protect domestic industry or stimulate domestic investment and production; g) management of boycotts of certain enemy nations; and h) indirect means to influence domestic policies in a foreign nation (such as restrictions on goods imported from nations that allow child labor).  Nearly all of these have been tried in different times and to different degrees by every nation.  While the first four are eminently practical and wise, the last two are useful only for making symbolic political statements.  The remaining two are generally well-meaning but ineffective, and may sometimes be dangerous.  Regardless of their wisdom or lack thereof, the main point is that every nation has a legitimate power to pass laws regulating foreign commerce as a means to advance or protect its interests.  The consequences of an inability to do so can be illustrated by a review of the events in this area while the Articles of Confederation were in effect.

The states were prohibited by Article VI of the Articles of Confederation from contradicting any provision in any subsequent treaty then in negotiations with France and Spain.  Also, they retained powers over the most important aspects of commercial treaties.

Article VI.  No State, 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; nor shall any person holding any office of profit or trust under the United States, or any of them, accept of any present, emolument, office, or title of any kind whatever, from any king, prince or foreign state; nor shall the United States, in Congress assembled, or any of them, grant any title of nobility.

            No two or more States shall enter into any treaty, confederation, or alliance whatever between them, without the consent of the United States, in Congress assembled, specifying accurately the purposes for which the same is to be entered into, and how long it shall continue.

            No State shall lay any impost or duties, 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 ofFrance andSpain.

Article IX.  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 and 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; of 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 the 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 capture; provided that no member of Congress shall be appointed a judge of any of said courts.

By the ninth Article, the states had the power to regulate commerce by imposts and duties, so long as foreigners were treated equally with Americans, and also retained the power to prohibit exports or imports as they saw fit.  During the war, the ability to make meaningful trade regulations in the states was limited.  After the war, the states naturally proceeded to enact laws that they believed best advanced their interests.  One of the main issues, as detailed in the third essay in this series, was how to respond to Great Britain’s Navigation Acts.  Recall that these were designed to limit America’s ability to conduct trade with British territories; in fact was designed to prevent the Americans from gaining a significant share of the carrying trade in the western Mediterranean.  Britain was able to capitalize on the weakness of each state, and the inability of Congress to form a united front in its alleged capacity to negotiate treaties for all thirteen states.

On 26 Apr 1784, Congress passed a resolution stipulating that all treaties were to be represented as an agreement with all thirteen states.  But since the Articles of Confederation allowed the states to determine import and export rules as well as the setting of duties, which constituted important provisions in commercial treaties, Congress in effect was not able to force the states to abide by any treaties that were negotiated by the ambassadors.  There was therefore little incentive for foreign nations to enter into treaties with the United States. Great Britain chose to adopt a policy of negotiating with each of the states separately; but any state that did so would be in violation of the Articles prohibiting separate treaties by states.

By the end of 1783, Britain’s Navigation Acts had ruined much of the commercial activity in the states.  The Virginia state legislature had passed a resolution in which they urged all the other states to grant Congress a power to respond to them.  On 30 Apr 1784, Congress passed a resolution recommending to the states that it be given power for 15 years to develop and enforce regulations in response to the Navigation Acts.  But the states never did agree to grant Congress this power, as there was considerable suspicion among the states that Congress would be unable or unwilling to develop rules that were equally fair to all the states.  By Mar 1786, several states had granted some powers to Congress to either regulate trade or impose a revenue duty, but they were inconsistent and could not be used to justify a modification to the Articles.  All Congress could do was to issue another request for consideration of the initial resolution.

Meanwhile, a general authority lacking in Congress, the states did as they believed best for themselves.  In Jan 1785, New York imposed a two-fold duty on goods arriving in British ships, as retaliation for the Navigation Acts.  These were passed onto the residents of New Jersey, since they imported their goods from New York.  The residents of New Jersey were thus forced to pay a duty to New York, without any corresponding advantage to their treasury.  By the spring of 1785, merchants in Massachusetts organized a boycott of all British-owned businesses in the state.  In Jul 1785, Massachusetts prohibited exports carried on British ships, levied a tonnage duty, and imposed high duties on certain foreign goods in order to protect domestic manufacturers.  New Hampshire and Rhode Island passed nearly identical laws a week or two later.  Connecticut then opened its ports to British ships, and imposed a tax on imports from Massachusetts.  In Sep 1785, Pennsylvania passed a law imposing duties on 70 items, especially iron manufactures, and imposed a tonnage duty on the ships of any nation that did not have a commercial treaty with Congress.  Pennsylvania also passed laws against trade with Delaware and New Jersey.  As states levied duties on imports, the trade was simply carried to ports in other states, negating the alleged benefits of a revenue duty.  New York imposed heavy duties on imports from Connecticut and New Jersey, including a requirement that every shipment, no matter how small, be obliged to clear customs upon entering any port in New York.  Connecticut responded with a boycott on commerce with New York.  New Jersey retaliated by imposing a large tax on a lighthouse owned by New York, but sitting on an island off the coast of New Jersey.  Most of the states violated the most-favored-nation provisions of the treaties with Holland and France.  In other words, America was in the midst of a trade war among the states, and in violation of agreements with other nations.  Fortunately, the Convention of 1787 occurred before any shooting wars between the states, and the Constitution that resulted resolved the commercial trade issues.

The lack of requisite powers over trade in the Articles of Confederation was so obvious to the delegates at the Convention, that there was little argument over giving them generally to the federal government.  Ultimately, the U. S. Constitution as devised at the Convention addressed all these difficulties by four methods.  First, in regard to treaties in general, the Executive was given power to negotiate them, but they require ratification by the Senate, as detailed in part 3 of this series (Article 1, Section 10; Article 2).  Second, Congress was given general legislative power over foreign trade not covered by treaty (Article 1, Section 8).  Third, Congress was given legislative power to regulate trade between the states and the Indian tribes (Article 1, Section 8 with the caveats per Article 1, Section 9).  Fourth, the states are prohibited from imposing import and export levies except for the costs of inspection, and any excess revenue is to be devoted to the United States (Article 1, Section 10).  The relevant texts are:

Article 1, Section 8, First and Third Clauses:

            The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

            To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

Article 1, Section 9, Fifth and Sixth Clauses:

            No Tax or Duty shall be laid on Articles exported from any State.

            No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another: nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another.

Article 1, Section 10:

No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.

            No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing its inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Control of the Congress.

            No State shall, without the Consent of Congress, lay any duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.

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The Defects of the Articles of Confederation, Part 3

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Dear readers:

This paper is available only in .pdf format.  It is the third in a series on the defects of the Articles of Confederation and how they were remedied by the Constitution.  This particular paper discusses the power to make treaties.

Thanks,

EDD

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The Defects of the Articles of Confederation, Part 2

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Dear readers:

This paper is available only in .pdf form owing to its length (6 pages).  It discusses the miltary difficulties encountered by George Washington at the beginning of the Revolution, when he had only temporary militia under his command.  Even when the Articles of Confederation were adopted, the military institutions were dependent upon the states, which were not reliable in providing the necessary men and money.  It closes with a description of how these problems were mitigated in the U. S. Constitution, with explanations using excerpts from the Federalist Papers.

Thanks,

EDD

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