CHAPTER III

THE CONFEDERATION

IF additional proof were necessary that the Colonies became severally independent States by the Declaration of Independence, the history of the subsequent Confederation, its provisions, and the form and terms of its ratification show that they entered it as such; and therefore that, unless by some proceeding undiscovered by history, they had acquired their several independence between the Declaration and the Confederacy, they must have done so by the former act."

Congress resolved, June 11, 1776, that a committee should be appointed to prepare the form of a confederation to be entered into between the Colonies; it was determined that the committee should consist of a member from each colony. Upon the report of the Committee, the subject was debated until November 15, 1777, when a form was agreed upon. Congress directed that these articles should be proposed to the legislatures of all the United States, and if by them approved, they were advised to authorize their delegates to ratify the same in the Congress of the United States; which being done, they should become valid. On June 16, 1778, the form of ratification of the Articles was adopted, and was signed on July 9 in behalf of their respective States by the delegates of New Hampshire, Massachusetts Bay, Rhode Island, Connecticut, New York, Pennsylvania, Virginia, and South Carolina. The delegates of North Carolina signed on the 21st of July, those of Georgia on the 24th, and those of New Jersey on November 26th. May 5, 1779, Delaware completed her signatures. Maryland did not ratify until 1781.

The manner of this establishment in itself necessarily implies the voluntary action of sovereign and independent communities. The language used alike by Congress, the States,

and in the Articles, establishes the same conclusion. The circular letter sent by Congress to the various States in company with the proposed Articles reads:

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"Congress having agreed upon a plan of confederacy for securing the freedom, sovereignty and independence of the United States, authentic copies are now transmitted for the consideration of the respective legislatures. .. Permit us then earnestly to recommend these articles to the immediate and dispassionate attention of the legislatures of the respective states. Let them be candidly reviewed under a sense of the difficulty of combining in one general system the various sentiments and interests of a continent divided into so many sovereign and independent communities," etc.

The form of the Confederation runs as follows: viz.:

"Articles of Confederation and Perpetual Union between the States of Newhampshire [the others named]. 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." 8

Equally what the Articles provide for and wherein they restrict the several States display the prior autonomy and independence of those States. They "enter into a firm league of friendship with each other for their common defence." They grant to the free inhabitants of each State the freedom of the other States. Finally Article XII provides:

"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.

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"And, whereas it has pleased the Great Governor of the

world to incline the hearts of the Legislatures we respectively represent in Congress to approve of, and to authorize us to ratify the said articles of confederation and perpetual union, Know ye that we the undersigned delegates, by virtue of the power and authority to us given for that purpose, do by these presents, in the name and in behalf of our respective constituents, fully and entirely ratify and confirm each and every of the said articles of confederation and perpetual union, and all and singular the matters and things therein contained: and we do further solemnly plight and engage the faith of our respective constituents, that they shall abide by the determinations of the United States in Congress assembled, on all questions, which by the said confederation are submitted to them. And that the articles thereof shall be inviolably observed by the States we respectively represent, and that the Union shall be perpetual . . . On the part and behalf of the State of New Hampshire, John Bartlett," etc. [Other States signed

in similar manner.]

Do these gentlemen mean nothing by stating that the authority for their act is "the Legislatures we respectively represent," that they "plight the faith of our respective constituents," that "the articles shall be inviolably observed by the States we respectively represent?" And is each delegation indeed, in spite of this language, acting for a hodgepodge of all the States in one?

The argument of those who would claim that the States became united as one State or Nation by the Declaration, or Confederation, must be either false, or, if true, is a proof that those States viewed "secession" as a natural concomitant of such an organization. Either they entered the Confederation. as "sovereign and independent States"; or, if they regarded themselves as parts of a unified government, then they dissolved it, in spite of its having been made "perpetual," by a partial and peaceful act; the agreement of nine only, of thirteen States, being necessary to the validity of the new agreement; and no provision whatever being made against adverse action by the remaining four. Two of these, Rhode Island

and North Carolina, did not become parties to the new government for two years after its formation. During that time these were not a part of the old Confederation, which was nonexistent; they were not a part of the new United States. If they were not "sovereign and independent states" in the fullest sense, what constitutes such sovereignty? 10 Yet these two commonwealths had no other claims to sovereignty than those that existed in their sister States; therefore, if these two were sovereign, so were the others. Some citations may serve to show that the States conducted themselves during the Confederation as sovereign communities.11

The process of adoption, briefly described by Marshall as follows, is verified by the various ratifications of the States:

"Various amendments, in some instances contradictory to each other, were proposed by the states respectively, but they successively yielded to the opinion that a federal compact would be of vast importance in the prosecution of the war."

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Now it is most strange that when we compare these proceedings with those which commenced in the colonies, in 1774, from the first assembling of congress till they made 'a declaration' of rights and wrongs, and entered into ‘an association,' preparatory to a revolution; and from that time to July, 1776, when the revolution being effected, and the colonies had in fact become states, and made 'the unanimous declaration of the thirteen United States of America,' announcing that fact to the world; that both declarations patterned from the declaration of 1688, throughout, and in many parts copied, should be taken to be the declarations of one people, in a congress, representing one nation, instituting a national government thereof; and not as thirteen colonies or states una anima, declaring each to be a free and independent state, when the name of each was affixed, signed by their separate agents, calling themselves their representatives. It is equally strange, when in 1781, the same states by 'articles of confederation and perpetual union' between them, naming * Marshall's "Washington," Vol. IV, p. 473.

each, entered into a confederacy or league of alliance, the style of which was 'the United States of America,' the second article whereof declared, 'each state retains its freedom, sovereignty and independence, and every power, jurisdiction and right which is not by this confederation expressly delegated to the United States in congress assembled'; and by the third article, 'the said states hereby severally enter into a firm league of friendship with each other,' etc.; that there then existed an unity of political power, in the people and government of one state or nation, compounding the people, and power of all the states, into one, from 1776; so that no particular state had any power, right, or jurisdiction to retain to itself, or delegate to the United States. It is stranger still that it should be asserted, that congress acted as the representatives of one people, state or nation; when it is an admitted fact, that the first rule adopted by the congress of 1774, was, 'Resolved, That, in determining questions in this congress, each colony or province shall have one vote.' I Journ. 11. So it continued till the confederation which declared, 'each state shall have one vote'; I Laws U. S. 14; and so it remained till the old congress was dissolved, in 1788, by the adoption of the constitution by nine states, each having one vote in a convention of the people thereof.

"If there can be a political truth, it would seem to be this, that where, in a body composed of sixty-five members, there could be only thirteen votes, if all the states were present, and there must be one vote less for each state that was absent; that the body did not, and could not represent, and act for all the states and the whole people, as a national legislature, 'serving for the whole realm,' nation or state. They were a mere congress of states, colonies, or provinces; the legislature of each of which was the separate constituent of its own deputies, or 'ambassadors,' who gave the vote of their 'sovereign,' and not their own; and, therefore, could by no political possibility, be a legislature in any political sense, as the representatives of a people in their aggregate collective capacity." 18 *

*Henry Baldwin, "View of the Constitution," pp. 59-60; Philadelphia,