The Articles of Confederation

The Library of Congress has in its collection this 1777 printing of the Articles of Confederation, the first Constitution of the United States. Printed by Francis Bailey in Lancaster, Pennsylvania, this item represents the first appearance of the Articles of Confederation in print. Francis Bailey had offices in Philadelphia and Lancaster and undertook printing jobs both for the Continental Congress and for the Commonwealth of Pennsylvania. Congress asked Bailey to print the Articles immediately after it adopted the final version of that document, on November 15, 1777. The Library’s copy of Bailey’s Articles of Confederation contains an inscription at the foot of the last printed page that reads: “By Order of Congress Henry Laurens, President.” Henry Laurens was the president of the Continental Congress from November 1, 1777 to December 9, 1778. The need for a united policy during the War of Independence led the thirteen states to draft and approve an organic document for a national government. Its creation began in 1776, when the Continental Congress appointed a committee to draft such a document. In 1777, the committee reported that Delegate John Dickinson, a well-known lawyer from Pennsylvania who had written the 1765 Resolutions of the Stamp Act Congress and an influential series of essays known as Letters from a Pennsylvania Farmer, prepared a draft. After a period of debate and considering amendments to the text, Congress approved the draft and submitted it to the states for ratification. The Articles were presented for ratification on November 15, 1777. Virginia was the first state to ratify. This and the following images are of a reprint of the Bailey Articles of the Confederation which was undertaken by John Gill, also in 1777. The text of the Articles ironed out some of the major disagreements among the states, such as how the financial burden of supporting the new government would be divided among the states and how much representation each state would receive in the new national government. Nevertheless, the process of ratification was long and uncertain. This was partly due to the fact that the Articles required that all thirteen states must unanimously ratify before it could come into effect. One of the major issues that delayed ratification arose from a conflict over western land claims. Some, though not all, of the states claimed significant territories stretching to the Mississippi river and beyond. States, such as Maryland, which had no western land claims, refused to ratify the Articles until the states that claimed land in the west ceded their western land claims to the new national government. With that issue resolved, Maryland became the last state to ratify the Articles on March 1, 1781. Under the Articles of Confederation, the power of the national government was exclusively centered in the Congress, with no independent federal executive or judicial branch. The Congress, which was called the “Congress of the Confederation” under the Articles, followed the model of the Second Continental Congress, which had been a single chambered body. As a result, it was likewise a unicameral body in which each state had one vote. The Congress of the Confederation had a number of powers. Among these were: the power to declare war; maintain an army and navy, establish a postal service and set postage rates, create courts to determine prize cases (which are cases related to the capture of enemy commercial vessels on the high seas), manage affairs with Native Americans, negotiate diplomatic agreements, such as treaties with foreign nations, coin money and determine its value, establish a uniform system of weights and measures, and serve as the final arbiter to resolve disputes among the states. While it was adjourned, a body called a Committee of States could exercise Congressional powers. The Articles contained some interesting features. Each state received only one vote regardless of its size, that is, representation in the government was not based on the population of a state. States were assessed their share of supporting the new government based on a proportion of the total value of their real property, so larger states had to pay more. Delegates to Congress were chosen by the state legislatures. The size of a delegation was between 2-7 members. There was a power of recall, and states could recall their delegates at any time and replace them. The Articles contained term limits. Delegates could not serve more than three years out of any six year period. Congress maintained the sole power to declare war, but states could engage in war without the consent of Congress to repel an invasion when Congress was not in session. Similarly, states also couldn’t grant letters of marque and reprisal, except after a declaration of war by Congress, and then only against the state with which the U.S. was at war. There was one interesting exception. If the state “be infested by pirates…vessels of war could be outfitted for that occasion.” After the ratification of the Articles in 1781, the Congress annually elected an individual who served as the President of the Congress, but they had very limited powers and were not analogous to the modern executive branch. Nine states were needed to approve a new colony for membership in the Confederation, but interestingly enough, Canada was pre-approved by Article 11 if it wanted to join. The Articles contained a speech and debate clause, so that what was said by members in Congress could not be used in court against them. Also, members were protected from arrest and imprisonment while traveling to or from Congress, except for treason, felony, or breach of the peace. There was a privileges and immunities clause in the Articles that included freedom of travel though it specifically exempted paupers, vagabonds, and fugitives. Extradition was required for a person guilty of or charged with treason, a felony, or a high misdemeanor upon demand of the Governor of the state he fled. Full faith and credit was also to be given to records, acts, and judicial proceedings conducted in other states. With the consent of nine states, Congress was also able to appoint a Committee of States to sit while Congress was adjourned. It consisted of a delegate from each state, and other committees and civil officers, to manage the general affairs of the U.S. This committee also had a term limit. No one could serve in the office of president of the Committee for more than one year within a term of three years. The Committee could ascertain how much money the U.S. needed to raise, spend money, borrow money on behalf of the U.S., build a navy, agree upon the number of land forces needed, and request troops for the army “in proportion to the number of white inhabitants of each states.” State legislatures then were expected to appoint regimental officers and raise and equip the army. Congress could meet anywhere in the United States, could not adjourn for longer than six months, and was required to publish a journal of its proceedings, except for matters concerning treaties, alliances, and military operations that required secrecy. The idea that the union created by the Articles will be perpetual is mentioned repeatedly throughout the document. The Articles had significant weaknesses. Congress could request funds from states to support that national government, but those taxes had to be enacted and collected by the state governments. In other words, Congress could not force the states to support the national government. Large and small states received one vote in Congress, but larger states were expected to contribute more funds to support the national government, an obligation that was assessed as a proportion of the total value of a state’s real property. So larger states were expected to contribute more funds to the national government, but receive the same representation as smaller states that contributed less. Congress could only exercise its fundamental powers with the consent of nine of the states. The powers restrained by this requirement included basic functions of government, such as engaging in war, entering into treaties, coining money (and regulating its value), assessing the amounts of money needed to defend the U.S. and promote its general welfare, pay expenses, borrow, agree upon the number of naval vessels needed, agree on the number of army or navy forces to be raised. This limitation also applied to the exercise of Congressional power by the Committee of States. While there was a President of the Congress, the position had no broad executive powers to execute the law. The articles did not establish a permanent judiciary. Finally, any attempt to resolve these problems by amending the Articles required the support of all the states, which was difficult to obtain. These and other shortcomings resulted in proposals to amend the Articles, which ultimately led to the Constitutional Convention of the summer of 1787. Despite these flaws, the government created by the Articles did have a lasting impact. The Congress was able to successfully resolve disputes over the division of the western lands that had been surrendered by the United Kingdom after Independence. The Land Ordinance of 1785 (laws passed by the Continental and Confederation Congresses are called ordinances) and the resulting North West Ordinance of 1787 are the most long lasting as they provided for the disposition of public lands and procedures for organizing territorial governments in the lands west of the Appalachian Mountains. In addition, Congress established a Federal Court of Appeals to resolve prize cases, and in doing so, provided a precedent for the establishment of the later Federal court system. Finally, although the Articles have not often been cited in subsequent legal opinions, the idea that the union formed by them was “perpetual,” as set forth in Article XIII, was cited in dicta by Chief Justice Salmon Chase in a 1868 case before the United States Supreme Court called Texas v. White. Despite the fact that they were flawed and short lived, the Articles were an important first step in devising a structure of government for the United States.

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