Drafting The Articles of Confederation    

In June 1776, constitution making was in the air.  The American colonies were preparing to declare independence from Great Britain, and as part of the process, their legislatures were scrapping their colonial charters and replacing them with state constitutions.  Virginia completed a new constitution on June 29, 1776, and New Jersey followed just three days later.

What of the Continental Congress, then sitting as an embryonic national government in Philadelphia?  The Congress, consisting of delegates appointed by the legislatures of the 13 colonies, had been meeting since April 1775.  It had created an army and navy, waged war against the British, sent ambassadors to foreign countries, created a post office, and printed money to pay for it all.  But, it had done so without any written authority, as a matter of necessity.

With Congress poised to declare national independence, this would no longer suffice.  "A confederation permanent and lasting", wrote Delegate William Whipple of New Hampshire, "ought in my opinion to be the next thing and I hope is not far off".  As the states were drafting state constitutions, Congress would draft a national charter.  On June 12, 1776, Congress appointed a committee, consisting of one delegate from each colony, "to prepare and digest the form of a confederation".  On July 4, 1776, Congress declared independence, and the colonies became states.  Eight days later, the committee reported a first draft of the Articles of Confederation.

Then matters slowed down.  Confederation was complicated and contentious.  Congress had many, many responsibilities, and could work on the Articles only intermittently, as other business permitted.  Congress debated the Articles through July and August 1776, and then from April to June 1777, and finally finished in October and November 1777.  Four main issues agitated Congress: 
  • Should the powers of the national government be broadly or narrowly defined? 
  • How should the expenses of the national government be apportioned among the states?
  • Should large states have more representation in Congress than small states?
  • Should the national government assume ownership and control of land west of the Appalachians? 
With respect to the first issue, the original committee draft of the Articles provided that “Each (state) shall retain and enjoy as much of its present Laws, Rights, and Customs, as it may think fit, and 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”.

Opponents saw at once that one could drive a coach and six through the exception of “all matters that shall not interfere with the Articles”.  Delegate Thomas Burke (NC) objected that this clause “left it in the power of the future Congress . . .  to explain away every right belonging to the States, and to make their own power as unlimited as they please.”  In April 1777, Burke moved instead that “Each state retains its sovereignty, freedom, and independence; and every power, jurisdiction, and right, which is not by this confederation delegated expressly to the United States, in Congress assembled.”  Burke’s amendment passed 11-1 with one state divided.

By the time Congress took up the remaining issues, it had been driven from Philadelphia by the British, and settled in the county courthouse of York, Pennsylvania (below).  In October, 1777, Congress considered the matter of expenses.

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No one in 1777 wanted the national government to have the power to impose taxes.  The delegates had had enough bad experience with the British government imposing taxes from afar.  So, national expenses would need to be apportioned among the states.  The states would impose their own taxes, as they thought best, and forward money to Congress.

But, how should expenses be apportioned?  One obvious answer was population, but this forced the question of whether to count the enslaved.   However one felt about slavery, it was hard to deny that enslaved persons generated less wealth than free persons.  And in any case, there had been no census, so no one knew how many people lived in each state.

Another possibility was wealth, either land wealth or total wealth.  States already assessed land to collect property taxes.  But, each state did it differently (the states didn't even use the same currency), and there was nobody to administer a uniform national assessment.  Nevertheless, Congress voted on October 14, 1777, by as narrow a margin as possible (5 states in favor, 4 against, 2 divided, and 2 unrepresented) to assess expenses “in proportion to the value of all land within each State”.

The matter of representation was equally and obviously contentious.  But each state had one vote in the Continental Congress, and this ensured that the smaller states had enough power to retain that rule in the Confederation.  Congress voted down a proportional representation scheme (9-2 with one state divided) on October 7, 1777.  They also voted down (11-1), on the same day, a motion to make representation proportional to taxation.  In the final Articles, on all questions to come before Congress, “each State shall have one vote”.

Argument then moved to control over the West.  Only a handful of white settlers and traders lived between the Appalachians and the Mississippi River in 1777; the British had forbidden such settlement.  Most of the land was under the firm control of various native American nations (see From Conquest to Purchase), reenforced by a few British garrisons.  But, the members of Congress took the long view.  They were confident that the British would eventually lose the Revolutionary War and evacuate, and that the natives, somehow, some day, would yield to white America just as they already had along the seaboard.  When that day came, who would have the power to govern, and more importantly sell, the millions of acres of land?

Virginia had a claim, under its colonial charter, to a huge sweep of territory in what is now Kentucky and the upper Midwest.  Massachusetts, Connecticut, and New York had claims to wide bands of land which overlapped that of Virginia.  North Carolina and Georgia had extensive claims in the Southwest.  These states wanted to maintain their claims so that they could eventually either sell the land, or award it to veterans in lieu of cash bounties.

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Other states had defined western limits.  They had no wish to see the claimant states aggrandize and enrich themselves in such a manner.  The original draft of the Articles gave Congress power to set state boundaries and administer and sell the leftovers.  The land claimant states determined not to abide this.  On October 27, 1777 Congress voted 6-1 with two states divided that “no State shall be deprived of territory for the benefit of the United States”.  The states would retain their charter claims.  The last word on this issue had not been heard, however; see Ratification.

On most issues, Congress went with the status quo.  The Articles did not so much craft a new plan of government, as to codify what Congress was already doing.  A single-house Congress, with each state having one vote, would manage war, foreign affairs, and the post office, and ask the states for money.

With the major issues settled, Congress appointed another committee to arrange the Articles in their final form.  Congress unanimously approved the final Articles of Confederation on November 15, 1777, and sent them to the states for ratification.

Sources: Merrill Jensen, The Articles of Confederation, 1940; Journals of the Continental Congress, Volumes 7 and 9; Letters of Delegates to Congress, Volume  6.

John Dickinson

xIf James Madison is “the father of the Constitution”, John Dickinson could lay claim to being “the father of the Confederation”.   He almost single-handedly produced the first draft of the Articles in June 1776, and much of his language survived into the final document.

There was one hitch—John Dickinson opposed independence for the United States!

Dickinson was born in Maryland in 1732.  As a young man, he studied law in Philadelphia and London.  He won renown throughout the colonies, in the 1760’s, for his Letters From a Farmer which laid out colonial objections to British taxation and misrule.

The Pennsylvania legislature elected Dickinson to the Continental Congress in 1775.  When Congress needed a stylist to draft a plan of confederation, Dickinson’s legal skills and prose facility made him a natural for the job.  He completed his draft in a few days in June 1776.

But, however he might complain about British misrule, Dickinson could not abide a break with the Mother Country.  His draft Articles referred to the States as Colonies, and Dickinson wished that they would remain so.  He walked out of Congress on July 2, 1776, as that body prepared to vote for independence.  Pennsylvania stripped him of his seat on July 20.  He was not around to defend his draft in debate, and Congress overrode him on several important points (see left).  Nonetheless, thirteen of Dickinson’s 20 draft Articles survived into the final Articles virtually verbatim.

Dickinson wouldn’t vote for independence, but once others had done so, he would fight for it.  He served as an officer in the Pennsylvania militia after leaving Congress.  Nor did his walkout mark the end of his political career.  Dickinson owned a plantation in Delaware as well as his city house in Philadelphia, and the legislature of Delaware returned him to the Continental Congress in 1779.  He became the only member to sit for more than one state.

Later on Dickinson served as President (in modern terms, Governor) of both Pennsylvania and Delaware, and for a brief period, held both offices at the same time.  His tenure as President of Pennsylvania (1782-85) was not a happy one.  In 1783 the army threatened a march on Philadelphia, where both Congress and Dickinson’s state government sat.  (See The Wandering Congress.)  Congress demanded that Dickinson call out the state militia to block the rebellious federal troops.

Dickinson refused, fearing the militia would be as likely to back the soldiers as to fight them.  Congress left Philadelphia, and Alexander Hamilton sneered that Dickinson’s conduct was “to the last degree weak and disgusting”

As before, Dickinson revived his fortunes in Delaware.  He served as a Delaware delegate in the Convention which drafted the COTUS of 1787, and also presided over a convention to rewrite the Delaware constitution.  He died in 1808.  Perhaps Dickinson’s colleague Charles Pettit put it best when he described Dickinson as “a man of education and polished manners, but . . . better adapted to a time of peace than of war”.

Sources: Milton Flower, John Dickinson: Conservative Revolutionary, 1983; Thomas Fleming, The Perils of Peace: America’s Struggle for Survival After Yorktown, 2007

Ratification

The final sentence of the Articles of Confederation laid down the procedure for ratification.  "These articles shall be proposed to the legislatures of all the United States, to be considered, and if approved of by them, they are advised to authorize their delegates to ratify the same in the Congress of the United States; which being done, the same shall become conclusive."  In other words, ratification by all 13 states would be required to bring the Articles into effect.

Ten states ratified with relatively little controversy between December 1777 and April 1778.  Even so, the legislatures of those states could not resist proposing amendments.  Some authorized their delegates to sign the Articles only after their amendments were considered.  The Maryland legislature refused to ratify, but proposed three amendments anyway—one of which reopened the issue of the Western lands by authorizing Congress to “ascertain and restrict” the western boundaries of the states.

Congress took up the proposed amendments between June 22 and 25, 1778.  In machine-gun fashion the delegates shot down the three Maryland amendments, as well as 33 others proposed by 5 states.  The Maryland amendment on western lands came closest to passing, drawing 5 yes, 6 no, and one state divided.

The delegates from eight states thereafter signed the Articles, as written, on July 9, 1778.  Georgia and North Carolina, delayed by absences, added their signatures later in the month.

There matters stood.   Maryland refused to ratify without satisfaction on the western lands, and for a time Delaware and New Jersey backed her.  New Jersey gave up and ratified in November 1778 and Delaware in February 1779, and still Maryland held out.

Wealthy individuals in Maryland (and other states) had invested in land companies, which had either purchased land in the Northwest directly from American Indians, or been granted land by the British Crown.  If Virginia (or another state) controlled the Northwest, these grants would be worthless.  If Congress controlled the Northwest, Maryland might persuade Congress to honor the grants.  So Maryland held out.

Eventually, in January 1781, Virginia ceded its claim to the Northwest—but on condition that Congress not honor prior purchases or grants.  New York and Connecticut indicated their willingness to cede their claims as well.  Even the French ambassador weighed in, hinting that France would be more likely to honor endless American requests for money and military assistance if France were dealing with one government instead of 13.

Finally, on January 27 and 30, the two houses of the Maryland legislature ratified.  Her delegates signed the Articles of Confederation on March 1, 1781, completing ratification.  The land issue was left in the hands of Congress.

State Ratified by Legislature Amendments Proposed Signed by Delegates
Virginia Dec. 15, 1777 0 July 9, 1778
South Carolina Feb. 5, 1778 21 July 9, 1778
New York Feb. 6, 1778 0 July 9, 1778
Rhode Island Feb. 9, 1778 3 July 9, 1778
Connecticut Feb. 12, 1778 2 July 9, 1778
Georgia Feb. 26, 1778 3 July 24, 1778
New Hampshire March 4, 1778 0 July 9, 1778
Pennsylvania March 5, 1778 4 July 9, 1778
Massachusetts March 10, 1778 3 July 9, 1778
North Carolina April 5, 1778 0 July 21, 1778
New Jersey Nov. 19, 1778 0 Nov. 25, 1778
Delaware Feb. 1, 1779 0 Feb. 21, 1779
Maryland Jan. 30, 1781 3 March 1, 1781


Sources: Merrill Jensen, The Articles of Confederation, 1940; Journals of the Continental Congress, Volume 11; St. George L. Sioussat,  The Chevalier de la Luzerne and the Ratification of the Articles of Confederation by Maryland, 1780-81, Pennsylvania Magazine of History and Biography, October 1936; Franklin Benjamin Haugh, American Constitutions, 1872 (for dates of ratification).

Putting the Articles into Effect

independence hall

By the time ratification was complete, Congress had long since moved from York back to Philadelphia.  Thomas Rodney, delegate from Delaware, wrote an oft-quoted summary of the ceremonies (March 1, 1781) marking the completion of the Confederation in his diary:

By a Signal given at the State House The Completion of this grand Union & Confederation was announced by Firing thirteen Cannon on the Hill.  And the same number on board Captain Paul Jones Frigate in the Harbor. At Two o’Clock the members of Congress, The members of the General Assembly of Pennsylvania, the President and Council of that State, the officers of the Army in Town, the officers of State and a great number of Gentlemen waited on the President of Congress To Congratulate him on this occasion; And partook of a Collation prepared at his House for that purpose.  In the evening there was a grand exhibition of fireworks at the State House, & also on board Paul Jones Frigate in the Harbor--And all the Vessels in the Harbor were Decorated and illuminated on this Occasion and great joy appeared in every Countenance but those of the Disaffected.

The Articles of Confederation took effect at once.  Congress did not adjourn, did not order the states to elect new delegates, did not synchronize the terms of its delegates, and did not even elect a new presiding officer.  The sitting delegates of the Continental Congress simply continued in office as the United States, in Congress Assembled.

This worked an immediate hardship on New Hampshire and Rhode Island, which had single delegates in Congress as of March 1.  Single delegates could vote under the prior rules of the Congress, but the Articles required a minimum of two delegates per state.  Until New Hampshire and Rhode Island could send additional delegates, they had no voting representation.

The Articles specified that Congress should begin a new session every year on the first Monday in November, and most states eventually scheduled their elections so that newly elected members would have time to travel to the capital for the beginning of the session.  But some did not.  Confusion about delegate terms, and arrival and departure of members throughout the year, would bedevil Congress until the end of its days.

 Sources: Letters of Delegates, Volume 17; Journals of the Continental Congress, Volume 19

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