When this Congress is compared with that of the year 1776, and it is remembered that the Declaration of Independence bears the names of John Adams and Robert Treat Paine of Massachusetts, Francis Hopkinson of New Jersey, Benjamin Rush and Dr. Franklin of Pennsylvania, Cæsar Rodney of Delaware, Samuel Chase of Maryland, George Wythe, Thomas Jefferson, and Benjamin Harrison of Virginia, William Hooper of North Carolina, and Edward Rutledge and Arthur Middleton of South Carolina,—none of whom were now present,—we perceive at once a striking difference in the two bodies. This difference was not unobserved by those who were then deeply interested in watching the course of public affairs. More than once it filled Washington with dark forebodings;[140] and in the early part of the year 1778, it had attracted the notice of Hamilton, whose vigilant comprehension surveyed the whole field of public affairs, and detected the causes of every danger that threatened the health of the body politic.[141]
The objections made by the legislatures of several of the States to the Articles of Confederation were found, when examined, to consist almost entirely of propositions for mere verbal amendments, chiefly for the purpose of rendering the instrument more clear. All of these amendments were rejected. Some of the States objected to the rule for apportioning the taxes and forces to be raised by the States for the service of the Union; but Congress rejected every proposition to alter it, as it was believed to be impossible that any other rule should be agreed upon.
But there was an objection made by the State of New Jersey, which should be particularly noticed here, because it foreshadowed the great idea which the Constitution of the United States afterwards embodied. This objection was, that the Articles of Confederation contained no provision by which the foreign trade of the country would be placed under the regulation of Congress. The sixth of the Articles of Confederation declared, that no State should levy any imposts or duties, which might interfere with any stipulations entered into by the United States with any foreign power pursuant to the treaties already proposed to the courts of France and Spain; while the ninth article declared that no treaty of commerce should be made by the United States, whereby the legislative power of the respective States should be restrained from imposing such imposts and duties on foreigners as their own people were subjected to, or from prohibiting the exportation or importation of any species of goods or commodities whatsoever. The effect of these provisions was simply to restrain the States from laying imposts which would interfere with the then proposed treaties; in all other respects, the foreign trade of each State was left to be regulated by State legislation.
The legislature of New Jersey, in a very able memorial, laid before Congress on the 25th of June, 1778, declared that the sole and exclusive power of regulating the trade of the United States with foreign nations ought to be clearly vested in the Congress, and that the revenue arising from duties and customs ought to be appropriated to the building and support of a navy for the protection of trade and the defence of the coasts, and to other public and general purposes, for the common benefit of the States. They suggested that a great security would be derived to the Union, from such an establishment of a common and mutual interest.[142] But this suggestion was both premature and tardy. It was premature, because the States had not yet learned that their control over foreign commerce must be surrendered, if they would avoid the evils of perpetual conflict with each other; and it came too late, because the Articles of Confederation were practically incapable of amendment, at the period when the suggestion was made.[143]
The great obstacle, however, to the adoption of the Confederation, which delayed the assent of several of the smaller States for so long a period, was the claim of some of the larger States to the vacant lands lying within what they considered their rightful boundaries. The boundaries of the great States, as fixed by their charters derived from the crown of England, extended, in terms, "to the South Sea," and each of these States, as successor, by the Revolution, to the crown, with regard to territorial sovereignty, claimed to own both the jurisdiction and the property of all the crown lands within its limits. This claim was strenuously resisted by Rhode Island, Delaware, New Jersey, and Maryland. They insisted that Congress ought to have the right to fix the boundaries of the States whose charters stretched to such an indefinite extent into the Western wilderness, and that the unoccupied lands ought to be the property of the whole Union; since, if the independence of the country should be finally established, those lands would have been conquered from the crown of England by the common blood and treasure of all the States. The effect of a tacit recognition of the claims of the great States upon the welfare of such a State as Maryland, through the absence from the Articles of Confederation of any provision on the subject, was strikingly exhibited, by its legislature, in certain instructions to their delegates in Congress, which were laid before that body on the 21st of May, 1779. They pointed out two consequences likely to result from a confirmation of the claim which Virginia had set up to an extensive and fertile country; the one would be, they said, directly injurious to Maryland, while the other would be inconsistent with the letter and spirit of the proposed Confederation. They supposed, on the one hand, that a sale by Virginia of only a small proportion of these lands would draw into her treasury vast sums of money, enabling her to lessen her taxes, and thereby to drain the less wealthy neighboring State of its most useful inhabitants, which would cause it to sink, in wealth and consequence, in the scale of the confederated States. On the other hand, they suggested that Virginia might, and probably would, be obliged to divide its territory, and to erect a new State, under the auspices and direction of the elder, from whom it would receive its form of government, to whom it would be bound by some alliance, and by whose counsels it would be influenced. They declared that, if this were to take place, it would be inconsistent with the letter and spirit of the Confederation already proposed; that, if it were to result in the establishment of a sub-confederacy, an imperium in imperio, the State possessed of this extensive dominion must then either submit to all the inconveniences of an overgrown and unwieldy government, or suffer the authority of Congress to interpose at a future time, and lop off a part of its territory to be erected into a new and free state, and admitted into a confederation on such conditions as should be settled by nine States. If, they asked, it should be necessary for the happiness and tranquillity of a State thus overgrown, that Congress should, at some future time, interfere and divide its territory, why should the claim to that territory be now made and insisted upon? Policy and justice, they urged, alike required, that a country,—unsettled at the commencement of the war, claimed by the British crown and ceded to it by the treaty of Paris,—if wrested from the common enemy by the blood and treasure of the thirteen States, should be considered as a common property, subject to be parcelled out by Congress into free, convenient, and independent governments, in such manner and at such times as their wisdom might thereafter direct. Coolly and dispassionately considering the subject, weighing probable inconveniences and hardships against the sacrifice of just and essential rights, they then instructed their delegates to withhold the assent of Maryland to the Confederation, until an article or articles could be obtained in conformity with these views.[144]
Against this proposition, the State of Virginia, which had already ratified the Articles of Confederation, so remonstrated, that there appeared to be no prospect of reconciling the difficulty. At this juncture the State of New York came forward, and by an act of its legislature, passed on the 19th of February, 1780, authorized its delegates in Congress to limit the western boundaries of the State, and ceded a portion of its public lands for the use and benefit of such of the United States as should become members of the federal alliance. The motives upon which this concession was expressly made had reference to the formation of the Union, by removing, as far as depended upon the State of New York, the impediment which had so long prevented it.[145]
After they had received official notice of this act, by a report made on the 6th of September, 1780, Congress pressed upon the other States, similarly situated, the policy of a liberal surrender of a portion of their territorial claims, as they could not be preserved entire without endangering the stability of the general confederacy;—reminding them how indispensably necessary it was to establish the Federal Union on a fixed and permanent basis, and on principles acceptable to all its respective members,—how essential it was to public credit and confidence, to the support of the army, to the vigor of the national councils, to tranquillity at home, to reputation abroad, and to the very existence of the people of America as a free, sovereign, and independent people. At the same time, they earnestly requested the legislature of the State of Maryland to accede to the Confederation.[146]
That State was not without examples of patriotic confidence among her smaller sister States. As early as the 20th of November, 1778, New Jersey had led the way to a generous trust on the part of the States which still remained out of the Union. She declared that the Articles of Confederation were in divers respects unequal and disadvantageous to her, and that her objections were of essential moment to the welfare and happiness of her people; yet, convinced of the present necessity of acceding to the confederacy proposed, feeling that every separate and detached interest ought to be postponed to the general good of the Union, and firmly believing that the candor and justice of the several States would, in due time, remove the inequality of which she complained, she authorized her delegates to accede to the Confederation.[147]