Toward 1987 – Two Milestones in 1781

William F Swindler

(Note: Each year up to the bicentennial of the Constitutional Convention the Potpourri section will feature a review of the corresponding year of two centuries before, by way of tracing the issues which led to the 1787 gathering in Philadelphia. The seven years beginning in 1781 cover a period in which, as seen after the event, the developments making the Convention virtually inevitable may be traced in their human contemporary terms. –Ed.)

The year 1781 was an epochal date in the five-year-old history of the "united States of America," as the term itself was devised to indicate. The adjective "united," with a small "u", indicated the general turn of mind–it was with the States that sovereignty lay; the capital 'S" might have been applied synonymously to both words. The "perpetual union" which the Articles of Confederation claimed to establish was voluntary, on sufferance, if this was not a contradiction in terms. Certainly there were few to take literally the exuberant expression of the Continental Congress in 1776, when Christopher Gadsden had exclaimed that "henceforth there are no Massachusetts men, nor Pennsylvanians nor South Carolinians, but Americans all."

Most of the time since the Declaration of Independence had been taken up with prolonged debate on the Articles themselves, and their final unanimous ratification in the winter of 1781 was to be one of the two major achievements of the new nation in this year. The other would be the victory at Yorktown in October, the significance of which was recognized by Lord North's exclamation on hearing the news: "Oh, God! It's all over!"

Not quite, as it turned out. There would be two more years before the definitive treaty of peace, while the coming six years would find the shortcomings in the Articles nudging the sovereign states closer to the time when a new start had to be made. George Washington, with keen prescience, saw the first constitutional instrument as beneficial primarily for committing the states to a union, whether "perpetual" or not. "The present temper of the states is friendly to the establishment of a lasting union," he observed, adding that "the moment should be improved; if suffered to pass away, it may never return; and after gloriously and successfully contending against the usurpations of Britain, we may fall a prey to our own follies and disputes."

Perhaps the Articles were unavoidably necessary as a first step; the erstwhile colonies had seldom worked in cooperation with each other, the Albany Congress and the First Continental Congress notwithstanding. With independence, eleven of the thirteen new states had drafted constitutions for their own forms of government (Connecticut and Rhode Island continued into the nineteenth century under the original charters). The Continental Congress, both before and after Confederation, never functioned as anything much more than an interparliamentary union; but experience with this cumbersome machinery would have to educate the people of the individual states to the need for something better.

It had taken enough of a struggle to get the Articles adopted. A major dispute had been between the states with large western landholdings and those without; and since unanimous adoption of the Articles was necessary to commit the individual states to the Confederation, the cession of these lands to the Congress had been a sticking point for a prolonged period. Virginia, with its huge claims to Kentucky and most of what later became the Northwest Territory, was bitterly challenged by Maryland, which had no lands to cede and would not ratify until Virginia did cede. Georgia, the next largest holder of lands (from the western shore of the Atlantic to the South seas," as the early English charters, with their imperfect geographic knowledge, said), would also hold out for the best bargain it could make; it did not finally cede its lands to the national government – by then the government created by the Constitution –until it had wrung a good price from Congress in satisfaction of its claims, and then left the nation with the inherited problem of the Yazoo land scandals.

Connecticut was one of the New England states with western claims which had to be defeated before the Articles could become a reality For a long time it claimed a tract of land in Pennsylvania (the Wyoming valley) on the ground that its earlier colonial charter gave it superior title. When that dispute was settled in favor of Pennsylvania by a special court set up by the Continental Congress, Connecticut then sought to keep a "western reserve" to the area beyond Pennsylvania, for resettlement of its citizens from the "firelands" – coastal areas bombarded and destroyed by British ships in the course of the Revolution.

Thus the struggle for even such a jerrybuilt structure as the Confederation was a hard one. It could not be expected that, in the circumstances, anything more workable could have persuaded the states to accept it.

This first national constitution for the "United States, in Congress assembled," was hedged with assurances that the states not only retained complete independence in their own spheres, but also retained a firm grip on the national government as well. The first three Articles of Confederation stated:

Article I. The Stile of this confederacy shall be "The United States of America."

Article II. 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.

Article III. The said states hereby severally enter into a firm league of friendship with each other, for their common defence, the security of their Liberties, and their mutual and general welfare, binding themselves to assist each other, against all force offered to, or attacks made upon them, or any of them, on account of religion, sovereignty trade, or any other pretence whatever.

Much of the language in the Articles would be repeated in the Constitution in 1787. Both the Confederation Congress and the Federal Congress were authorized to conduct interstate and Foreign commerce, maintain postal services, establish uniform weights and measures, fix the content and value of coinage and currency, and provide for the maintenance and training of the armed forces (saving to the states the power of appointed general officers). Article IX, however, took away virtually everything that other language conferred upon the Confederation Congress by the proviso:

The united states in congress assembled shall never engage in a war, nor grant letters of marque and reprisal in time of peace, nor enter into any treaties or alliances, nor coin money, nor regulate the value thereof, nor ascertain the sums and expences necessary for the defence and welfare of the united states, or any of them, nor emit bills, nor borrow money on the credit of the united states, nor appropriate money, nor agree upon the number of vessels of war, to be built or purchased, or the number of land or sea forces to be raised, nor appoint a commander in chief of the army or navy, unless nine states assent to the same: nor shall a question on any other point, except for adjourning from day to day be determined, unless by the votes of a majority of the united states in congress assembled.

Whatever vitality was left to the new government after this substantial impediment, was further limited by the opening paragraph of Article XIII, which declared:

Every state shall abide by the determinations of the united states in congress assembled, on all questions which by this confederation are submitted to them. And the Articles of this confederation shall be inviolably observed by every state, and the union shall be perpetual; nor shall any alteration at any time hereafter be made in any of them; unless such alteration be agreed to in a congress of the united states, and be afterwards confirmed by the legislatures of every state.

Satisfied with these safeguards in the final draft as approved by the early summer of 1778, ten of the thirteen state delegations signed the Articles between July 21 and August 8 of that year. The New Jersey delegation signed in November 1778 and the delegates from Delaware during the winter and spring of 1779– all after having received authorization from their respective states to do so. This left Maryland as the holdout for another two years, until Virginia gave in on the "western lands" issue and the Articles were proclaimed to be unanimously adopted and in effect as of March 1, 1781.

Of these first "founding fathers" –forty-eight in all – only four (indicated by an asterisk) also signed the Constitution of 1787. Yet, they set a new national government in motion, tentative though it was, and they deserve to be remembered for their role in the beginning of American affairs, viz.:

For New Hampshire: Josiah Barlett, John Wentworth, Jr.

For Massachusetts: John Hancock, Samuel Adams, Elbridge Gerry, Francis Dana, James Lovell, Samuel Holton

For Rhode Island Elleryand Providence Plantations: William Henry Marchant, John Collins

For Connecticut: Roger Sherman*, Samuel Huntington, Oliver Wolcott, Titus Hosmer, Andrew Adams

For New York: James Duane, Francis Lewis, William Duer, Gouverneur Morris

For New Jersey: Jonathon Witherspoon, Nathaniel Scudder

For Pennsylvania: Robert Morris*, Daniel Roberdeau, Jonathon Bayard Smith, William Clingar, Joseph Reed

For Delaware: Thomas McKean, John Dickinson*, Nicholas Van Dyke

For Maryland: John Hanson, Daniel Carroll

For Virginia: Richard Henry Lee, John Banister, Thomas Adams, John Harvey, Francis Lightfoot Lee

For North Carolina: John Penn, Cornelius Harnett, John Williams

For South Carolina: Henry Laurens, William Henry Drayton, John Matthews, Richard Hutson, Thomas Heyard, Jr.

For Georgia: John Walton, Edward Telfair, Edward Langworthy

 

The first officers of the national government also deserve better in historical memory – particularly, Charles Thomson of Philadelphia, the "perpetual secretary," who attended every session of the Continental Congress from its opening to its closing, and whose meticulous documentation has preserved for posterity most of the records of this first government of the United States. The Presidents of the Congress were the only executives in name, but in fact they were merely presiding officers over the gathering of the delegates from the various states. The only other formal office established under the Articles was Secretary of Foreign Affairs, a chair occupied by John Jay from 1785 to the termination of the Confederation government in the spring of 1789. (For the ad hoc judicial function and the first "federal" judges, see the article, "Of Revolution, Law and Order," in Yearbook 1976.)

What might have happened to the "United States in Congress assembled," had not a formal structure of government been finally agreed to in March 1781 is difficult to conjecture in terms of the other event of that year, the surrender at Yorktown in October. The record of the government under the Articles is one of steady loss of energy, but at least the instrument had been entered in the rolls of political history as the beginning of a "perpetual union" which became a "more perfect union" at the Convention of 1787.