Chapter Nineteen

Continental Congress and Confederation

As if to model itself upon its people and territory, the Revolutionary
and Confederation government was fly-by-night. Before it moved to
Washington, D.C. on November 17, 1800 at the beginning of the
second session of the Sixth Congress of the United States, the
all-American government's Capital paused at eight different towns:
Philadelphia in two places, Carpenter's Hall and the State House,
1774-6; Baltimore, Henry Fite's House, 1776-7; the Philadelphia State
House again, 1777; the Lancaster (Pa.) Court House for one day in
1777; the York (Pa.) Court House, 1777-8; Philadelphia first at
College Hall and then the State House, 1778-83; Princeton (N.J.) at
Prospect House and Nassau Hall, 1783; Annapolis (Md.)at the State
House, Trenton (N.J.) at the French Arms Tavern, 1784; New York
City, at the City Hall and then Fraunces' Tavern, 1785-89; and, finally,
under the Federal Constitution, New York City 1789-90 and
Philadelphia, 1790-1800.

The USA preserved its secularity by never meeting in a church,
but found taverns compatible with the affairs of state.

The members of these first congresses may have made them the
best in American history. Processes of government between 1774
and 1789 were so varied and seemingly transient that they have been
passed over or misunderstood. Yet these fifteen years introduced
much of the subject-matter and important structures and
precedents of subsequent times. For example,
the debates over representation that followed the Declaration
of Independence addressed the issue of State representation
in the Congress, rehearsing the arguments for equality of States,
of apportioning the vote according to population numbers, or
relative to a State's riches.

The Continental government operated between 1775 and 1781 by
means of a Congress of thirteen independent States. It could be called
government by mutual State nudging. It could also be called
government by consensus, since very little could be done without the
consent of all the States. President of the Congress of the "United
States of America" was the top executive of the whole - there were
sixteen Presidents in the 15 years - with as many powers as he could
coax out of the thirteen States. To achieve specific objects such as to
feed the Army, negotiate with France, or carry the mails, Committees
were formed, which either carried on their business themselves or
appointed others to do so.

The accomplishments of government in this period were
extraordinary. Were it not for the fact that its actions so often had to
contradict its raison d'etre, it would no doubt have written more
brilliant pages of history. That is, in order to win the Revolutionary
War, the Continental Congress and its successor after 1781, the
Congress under the Articles of Confederation, were compelled to
commit some of the very "crimes" that the colonies had named as the
reasons for demanding independence.

Nor do I refer alone to the corruption rife during these years and the
glaring inequalities of all values between the high and low levels of the
people. I refer also to the legal complaints, that the rights of citizens of
the USA were practically whatever the military and the States would
allow them, and that laws and rules of the central government were
commonly observed in their breach rather than their enforcement. And
that, no sooner had the Revolutionary nation been born than it began,
because it was compelled by circumstances, to commit the kinds of
offenses that were listed as the causes of rebellion against England in
the Declaration of Independence.

All officers of the government were named by delegates named by
State legislatures who were elected by a minority of the people. They
had to get all the States together to levy compulsory charges and
taxes. They had to set prices on basic necessities. They had to devise a
number of penalties and punishments for disobedience to the laws and
rules that they set forth. They maintained an army during the War and
afterwards. Changes in manners and culture possibly accounted for
most of the perceived improvements achieved by the Revolution; the
new Americans were governed, not in the Congresses, but in their
States by their own kind. Still, the pulling and tugging of the Congress
on numerous matters kept the individual States from
"going to Hell in their own way."

When the Second Continental Congress met in 1775,
it acknowledged and provided for hostilities, and
urged the States to reconsider and rewrite
their constitutions in keeping with the objectives of the
Independence movement. The States did so.
The main results were several.

Although they paid lip-service to the separation of powers and checks
and balances among the Executive, Legislative, and Judicial branches,
the Revolutionary State governments headed straight for legislative
supremacy. The executive was weak. In Pennsylvania, it was a plural
council of thirteen members. Elsewhere it was a Governor and council
(cabinet). The Governor was elective by the qualified voters in five
Northern States including Massachusetts and New Jersey. Elsewhere,
he was elected by the State legislature. Mostly his council was also
appointed by the legislature.

He was concerned largely with "execution of the laws," commanding
the militia, and pardoning pardonable convicts. His veto of legislative
action all but disappeared. He was mostly elected for only a year, and
in the South he could not run again for the office. He might appoint
employees of the government only with the consent of his council or
the legislature. One notes the heavy trend toward constructing a direct
democracy, but there was a ways to go -- for example, in
broadening the electorate.

Only in Pennsylvania and Georgia was the legislature single-chambered.
Otherwise it was bicameral. The Pennsylvania experiment
with a single chamber and a plural executive should have had
a longer experience so that its lessons might be learned,
but it was one of the victims of the democratic principle
of "reduction to the most common denominator"
that makes experiment in government practically impossible -
save by serendipity, i.e. accident. The bicameral assembly
imitated the colonial form where the Governor's council had been a
legislative body akin to the House of Lords in England, he the
Governor imitating the King.

Now this upper house became elective, but usually with a more limited
electorate than the lower house and with longer terms of office. In the
lower house, on the supposition that short terms discouraged the
onslaught of despotism and also allowed the instruction of members
frequently by the voters, annual elections were ordinary:
"where annual elections end, tyranny begins" -
how nice a slogan!

These lower houses exercised practically all the formal powers of the
State government. They alone could initiate bills to raise and spend
money; thus did the "People" finally come to control the purse strings.
They often appointed even minor officers of the State.

They were elected by a variety of means of balloting, usually not
secret, by the plurality quota (the winner is the one who gets the most
votes, not necessarily the majority, should more than two men be running).
The suffrage was confined to a fairly numerous group of White males,
making the total electorate a minor fraction of the population. Voting
was voluntary, and often participation was low.

The judiciary was hardly the imposing institution of today. Its first
instance was the justice of the peace. Then came an appeal court.
Judges were sometimes gubernatorial appointees, sometimes
legislative. They applied an Americanized version of the English
common law and such laws as the legislature of the State passed.
There was as of yet no national or confederational law. There would
not be until the federal judiciary was set up by the Constitution. This
meant that in practically all cases, a conflict between two states or
parties of different states would be handled
by a court in the state where it occurred, or
by an agreement between the two states, or
by Congress under the Articles.

The concept of "judicial review," whereby a court can fault a state
law or action for violating its own constitution, was yet unborn.
Each State, however, carried a Bill of Rights or its equivalent in its
Constitution. Due process of law was guaranteed in governmental
actions taken against persons and their property.
Complaints at abuses of rights, familiar under British rule,
were taken care of explicitly.

I have mentioned some of the achievements of the Continental
Congress. It was composed of representatives of the more prosperous
seaboard sections of the population, selected by the State legislatures.
A number of them were freethinkers, non-religious freemasons, or
their sympathizers. They feared "the people," meaning the
assemblages, ruffians, and earnest mechanics who appeared in
threatening gangs on occasion, but they were one of the most stable
and competent revolutionary assemblages of modern times.

They did not hire counter-gangs, once the Revolution was underway,
or try to centralize power by violence,
even though more central power was needed to run the War properly.
The State governments were another matter.
They were often instigators of the persecution of Loyalists by
legal and illegal means.

The Congress operated from the beginning by appointing Committees
such as drafted and came back conveying the Declaration of
Independence, and later with the Articles of Confederation.
Other Committees were executive in nature,
administering functions, such as finance.
Still others acted as negotiators with individual States.

After the British had seized Philadelphia and Congress reassembled at
York, its members felt an urgent need to go about preparing for a true
confederation. The great victory at Saratoga enthused them and they
knew that they must put up a solid front to the French to win an
alliance. It could not be thirteen sovereign states presenting themselves
for recognition; it had to be a United States of America based on the
legitimate authority of a constitution.

For fifteen months the Congress had on hand a draft
that it had authorized John Dickinson to prepare;
now, in November 1777, it adopted one change and
recommended immediate ratification by the States.
The one change was proposed by Thomas Burke of North Carolina,
newly arrived: it affirmed that the States were sovereign
and that the Confederation could exercise only
those powers that were expressly delegated to it.

The Articles were ratified by all the States except Maryland, which
insisted as a preliminary to her approval of the document that the
States should turn over control of the lands of the West to the new
Confederation. The obstacle was overcome early in 1781 when
Maryland asked for the protection of the French fleet
against British marauders and was told by Admiral De Grasse
that the State had better sign the Articles of Confederation
and come back to him later on the matter. Here
was one more French contribution to the edifice of America.

The Articles called the new government "a perpetual union,"
established by the States, not the People.
Its single and supreme organ was the Congress.
It consisted of delegations from each State,
numbering from two to seven members depending upon population.
A member served an annual term but could not be designated
by his legislature more than three years out of every six.
His salary was to be paid by his State.
In voting on Congressional issues, each State had one vote,
which was the majority of the vote of its delegation.
Were the delegation to be tied, its vote would be null.
Passage of a law required approval by nine States.

From 1775 onwards, the Congress exercised
certain powers that had been those of the British Imperial government.
These were important, if not new, powers of the central government
and the States were used to not exercising them.
They included the conduct of foreign relations -
comprising diplomacy, declarations of war, negotiations for peace,
and the exchange of ambassadors. A single unified system of
Admiralty Courts to adjudicate cases arising out of
sea-borne commerce and vessels at sea had
also to be provided.

Further, the Congress was designated to establish standards of
weights, measures, and coinage. It might borrow money. It could
create a postal service. And it managed the armed forces of the united
colonies. All of these powers were exercised.
They proved to be significant.

The performance of assigned tasks was constrained, however,
beyond the point of efficacy and efficiency.
The Congress had no power to levy taxes,
regulate commerce internally or externally, or issue money.
It could not insure promises to foreign nations about commerce,
nor guarantee any State's currency,
nor truly represent the States in many areas
where foreign nations demanded responsibility.
It could not prevent a State from organizing a navy and
taking to the Seven Seas. It carried little weight
with foreign governments therefore, and, lacking an
impressive central officer, it had no one to represent it
vigorously in a world much impressed by monarchs.

The absence of an executive branch meant that the Congress would
continue to operate by means of the committee system.
Schoolchildren hear that this was fatal to good government,
yet are told - or should be told - that the later Congress
under the Constitution came to operate through
a small oligarchy of Committees and Committee Chairman,
some of whom within their own sphere became
more powerful than the President.

So it is possible that with the passage of time,
the ConfederationCongress would have developed a
stable and efficient means of governing executive offices
by committees, and using a hierarchy of committees
to allow conflicts and problems of integration to rise to
the top hierarchy of committees for resolution, as indeed came to be
the situation in the Constitutional Congress, where an exceedingly
sophisticated system of bringing together and deciding the
parts of complicated questions evolved.

We should also note that the Revolutionary and Confederation
government was politically proto-Federalist, that is, run by a
national network of financial, media, social and political leaders.
Therefore policies might be developed and executed
with this informal government pressing upon
the reluctant formal government.

The governments did not slump fatally despite the
separatist, private, selfish and often corrupt management
of public affairs. A populist government, lacking
experience, membership, and rule by an informal
power network, would have gone berserk
under the circumstances and likely end up in
Jacobinism, purges, and Bonapartism.

For example, Roger Morris, directing the Office of Finance
(and his private business affairs, largely centered in Philadelphia),
operated cavalierly. Highly energetic in his first years,
less so before retiring a decade later,
the "Financier of the Revolution" achieved marvels of
money-scraping, mixing, plastering, laundering, and painting.
He was avant-garde in his appreciation of social statistics,
and prepared a set of proposals for obtaining by personal interviews
nationwide a detailed social and economic report
on how people lived and worked;
action on the concept waited for two centuries.
When the War ended, he wanted to fund debts of
Confederation and States through the central government,
but failed (and this would be done by Hamilton and
company later). Still, surprisingly he left office
on a balanced budget.

At one point, in 1784,
facing a Dutch bill of exchange which could not be paid
and which, if tendered, would have exposed America's
deplorable financial condition, he urged the even then disreputable
technique of "kiting." That is, with the help of John Adams and
Benjamin Franklin in Europe, he would arrange the issuance of bad
government cheques (notes) that would hopefully be made good by
other bad checks, betting on collecting the necessary cash before the
final check was submitted for payment. But before the conspirators
carried out this trick to parry the Dutch threat,
John Adams was able to obtain a straight short-term loan,
and soon enough the cash and commodities
came in to pay off the obligation.

The lack of a potent executive power was probably not the reason for
the major troubles of the two confederational governments. Most of
their actions were severely constrained by the state legislatures. And
they were born in the midst of war. But, comparing what was done on
their initiative with what was done by the first Congresses of the
United States under the Constitution, it is not at all apparent that the
country was governed badly in the first instance.

The absence of a judiciary is notable. But this, too, need not have
become a matter of great concern. Granted there would be a
confederational law developing. Still, it has been always
a principle of sophisticated as well as crude legal systems that,
"Given a case, a law can be found to apply to its adjudication."
Of both Roman and English common law systems this is so.
As for the lack of a Bill of Rights in the Articles,
certain protections were actually afforded and others were
guaranteed in the constitutions of the
State governments.

While running the war, making peace, and laying the foundations for a
new constitutional framework, the Confederation Congress collected
all the lands of the West into a territorial form of government and
made provisions for them to become States in time. It passed the
Northwest Ordinance of 1787 (following earlier partial versions of
1784 and 1785) that in one grand simple formula provided land grants
for setting up public schools and colleges throughout the Northwest.
This put the new Territories well ahead of the old States in
support of education.

The same Northwest Ordinance showed that the Congress was
perfectly willing and eager to have new States join the Union. It
divided the new frontier lands into Territories, and declared that they
would be governed by an elective legislature and a governor appointed
by the Congress. When any one of them had achieved a population of
60,000 it could apply for admission to the Union as a State, presenting
a Constitution that it had drafted for the
approval of Congress.

The Confederation government wasn't all benevolence.
The Articles, so stingy on powers for the government,
harshly commanded that any runaway servants be returned
to their owners in their home State.
There was to be no refuge for the White slaves.
And, of course, not for the Black.

A post-war depression occurred, and in 1785-86, farmers were
generally in bad straits. In Massachusetts many thousands of debtor
suits were filed in the courts. Conventions of debtors were held,
petitions were sent to the legislature, to no avail.
The courts groundon, crushing one family after another.

Now Daniel Shays came to the fore, a war veteran. He and his
comrades mobilized thousands of farmers and closed the courts of
Western Massachusetts. Alarm bells rang all over America. The
Confederation government was appealed to but, without troops
to send, was helpless. As it turned out, the Massachusetts militia
was more than adequate for the job of breaking up the
insurrectionary force, killing several rebels, sending
Shays fleeing across the State line.

But the episode was turned into a conservative's horror story, and
those who wanted a stronger national government replayed the story
incessantly, to indicate what would happen everywhere unless there
were a strong government to keep debtors going through the courts
like sheep through the slaughter pen. Thus Shay's Rebellion.

The main problem of the Confederation did not lay with the
requirement of a top-heavy majority to pass legislation. Given the
diversity of states and their interests and the prevalence of a potent
regionalism, it was inevitable that the government could move slowly
or not at all in certain areas. And, in fact, it moved as slowly in the
decades to come, with only majorities of a bicameral legislature to
satisfy. The single-organ, neatly trimmed-down government could
have gone on indefinitely and competently. The problem was not one
of structure. It was already inventing forms of policy deliberation and
administration to take care of its needs.

What was lacking were the several powers which, as mentioned
above, were deliberately withheld from it --
power to levy and collect and spend tax monies,
power to regulate interstate and foreign commerce, and
exclusive power to issue paper money as legal tender -
these and other powers that could
not be dreamed of at the time.

But even these could have been provided,
if amendments to Constitution could have been by a majority,
or a two-thirds vote of the State legislatures. For instance,
all States but Rhode Island at one point favored an amendment
to allow the Congress to levy a tariff, and it therefore failed.
Then, when Rhode Island acceded to the idea,
New York State vetoed it.
Too, we shall see that precisely these powers were not
so clearly stipulated in the Constitution to come.
Whereupon it did require a dubious reach-out for power
by the Supreme Court, Congress, and the President
at different times to add
new powers to the federal government.

In the end, we begin to wonder whether the principle
of amendment by unanimity was not the problem -
but only because so many kinds of "ordinary" legislation
were needed and these would require unanimity.
It isn't as if the Constitution-to-be was easy to amend.
Indeed, the huge powers of the federal government
today in regard to taxes, commerce, and currency
were not obtained by constitutional amendment,
but through a stretching of the Constitution and by
ignoring the very language that was interposed to restrict it,
and before it the Congress of the Confederation,
insisting that only the powers expressly delegated be employed -
for this was the same language to be used in the
Tenth Amendment to the Federal Constitution as part of
the Bill of Rights, an amendment like the others whose immediate
passage was a condition of acceptance of the
main body of the Constitution.

We also wonder whether the real change
from Confederation to Federation would not occur
because of something quite apart from all issues
of this or that power and right.
Perhaps the real power that made the country
into a federal republic under the Constitution. and
later into a centralized federal republic was
the creation of the Presidency.
People and state governments under the Confederation
could not feel that they were dealing with
a "True Central Government,"
for, where was the king? where was the head?
the commander-in-chief?

Both in this period and in the next,
the glamor of the President,
especially of General George Washington,
was effective in making nationalists of the American people
and in paving the way for the acceptance of powers
residing in and exercised by the central government.
In a way, then, there was too much of the Enlightenment
and the Radical in the Confederation structure,
not enough of the Primitive and Monarchical.
The marriage of the Father of His Country
with the Constitutional institution breathed life into the structure.
One need only look at the French Revolutionary process
to see that the stage of radical Jacobin collective leadership
descended into Bonapartism, Emperor Napoleon I.
The more modest, but in the end just as pompous,
American solution allowed a fairly smooth transition of
constitutional forms in the critical period under discussion here.