Articles of Confederation
(Primary Reference: Alfred H. Kelly and Winfred A. Harbison's The American Constitution - It's Origins and Development, W.W. Norton & Co., Inc. c1970, pgs. 101-106.)
Emmerich de Vattel in "The Law of Nations; or Principles of the Law of Nature" had written:
"...several sovereign and independent states may united themselves together by a perpetual confederacy without each in particular ceasing to be a perfect state...The deliberations in common will offer no violence to the sovereignty of each member."
The Articles of Confederation was a compact to which the 13 States consented, by their solemn promise, to become bound. Congress, in the United States Assembled, was essentially an international league of comity ("mutual friendship and intercourse") and defense between thirteen sovereign, independent nation-states, agreeing to act as one ("federal") in certain matters. It was comprised of official respresentatives of the States, each State co-equal with one vote. Important decisions were made on the basis of a 9/13 majority and member States were obliged to comply with those decisions on the basis of their good faith.
As stated by John Jay in a letter of April 6, 1797 to the Governors of the States:
"Let it be remembered that the Thirteen Independent Sovereign States have, by express delegation of power, formed and vested in us a general though limited sovereignty, for the general and national purposes specified in the Confederation. In this sovereignty they cannot severally participate (except by their delegates) nor with it have concurrent jurisdiction; for the ninth article of the Confederation most expressly conveys to us the sole and exclusive right and power of determining on War and Peace, and of entering into Treaties and Alliances."
Ezra Stiles remarked in 1783, the confederation was not meant to be "a body in which resides authoritative sovereignty; for there is no real cession of dominion, no surrender or transfer of sovereignty to the national council, as each state in the confederacy is an independent sovereignty." (The Creation of the American Republic 1776-1787, at 355)
Thomas Burke of North Carolina rejected Article III of the draft of the proposed Confederation, which reserved to the states only the internal "police powers." His amendment became Article 2 of the final document:
"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."
The resulting document delegated limited authority to the Congress as an agent of the States to essentially exercise those aspects of sovereignty formerly exercised by the Crown and Parliament external to colonial government - to make war and peace; to send and receive ambassadors; to enter into treaties and alliances; to coin money; to regulate Indian affairs; and to establish post offices.
It is significant that two powers were intentionally withheld from Congress; the power of taxation and the power to regulate commerce. The demand for colonial "consent" in the exercise of both of these powers by Parliament had been fundamental to the separation of the colonies from Great Britain.
Also notable was the absence of delegation of executive functions in a clearly focussed and accountable entity. Although Congress might appoint one of their members to preside over Congress, this "president" could serve only one term of one year in every three.
Executive authority actually rested among a series of committees established to deal with problems as they arose, such as the Committee on Foreign Affairs, the Maritime Committee, the Committee on Finance, the Board of War. At one point there were ninety-nine committees with overlapping functions. Eventually in 1781, Congress established separate departments of Foreign Affairs, War, Marine and Treasury, each under a separate Secretary.
The independent sovereignty of each State was exhibited in several provisions that were normally a feature of international comity or treaty:
Extradition of fugitives was
established between the various States;
"Full faith and credit"
as to records, acts and judicial proceedings of each State's courts and magistrates was
extended among the States; and
A clause specified that the
inhabitants of every State were "entitled to all the privileges and immunities of
free citizens in the several states."
The Articles of Confederation allowed the central government only four narrow types of jurisdiction over causes. Upon appeal, Congress could establish "ad hoc" courts to deal with interstate disputes and to settle certain cases arising out of private land title controversies involving land grants from two or more States. Congress was authorized to establish "admiralty" courts to try cases of piracy and felony on the high seas and to establish courts to determine final appeals in "cases of captures" or "prize" cases.
The confederation had extremely limited jurisdiction and enforcement powers in regards to the States and no enforcement powers over the actions of private individuals. "Determinations of the United States in Congress assembled," were made in the form of recommendations to the States, relying on their cooperative implementation through legislation and the enforcement of such determinations as applied to private individuals through the State courts.
The Articles of Confederation and Perpetual Union were not ready to be sent to each state for ratification until November 15, 1777. As an organic document of confederation or "federal alliance" between sovereigns, the signature of representatives from all of the states was necessary before it could take effect. Because of disputes regarding jurisdiction, title and dominion over the "western wastelands" or unallocated "Crown lands" of the trans-Appalachian region east of the Mississippi, the Articles were not signed by all parties until March 1, 1781, at which time, the Confederation Congress or "United States in Congress Assembled" was established. (Note: the above link to western wastelands leads to a branch comprising a series of pages.)
