Articles of Confederation, Part X: the Substance of a Nation, contd.

            Further examination of the selfsame Article IX would appear to indicate that maritime law was not the only area in which the authors thereof were inclined to reassert a pre-Revolutionary dynamic. Consider, to that end, the passage which declared that,

The United States in Congress assembled shall also have the sole and exclusive right and power of regulating the alloy and value of coin struck by their own authority, or by that of the respective States – fixing the standards of weights and measures throughout the United States – regulating the trade and managing all affairs with the Indians, not members of any of the States, provided that the legislative right of any State within its own limits be not infringed or violated [.]

Granting that the finer points of coinage may not appear to make for the most riveting investigation into the history of American constitutionalism, the mundanity of the topic belies the significance of its implications. Throughout the majority of the colonial era – 1600 to 1776, or thereabouts – hard currency in the form of gold and silver coins were generally quite rare in America. In part, this was the result of British trade and monetary policies which sought to concentrate wealth in the seat of empire. So long as British merchants enjoyed a monopoly on trade with the colonies, and so long as they demanded to be paid in hard currency for the goods they sold in abundance in America – to a higher total value than that which they purchased in the form of American produce and raw materials – the colonists would remain perpetually at a loss.

This lopsided monetary dynamic was reinforced by longstanding laws and traditions that made the minting of coins a privilege very closely controlled by the British Crown. Granted, the physical production of coins in gold, silver, or copper had at various times been contracted out or otherwise dispersed from its customary home in London – Charles I (1600-1649) notably called for the establishment of sixteen emergency mints scattered across the British isles during his flight from the capital in 1642. But even these occasional experiments in decentralization were carried out under fairly stringent royal authority or under fairly extraordinary circumstances. The colonies were no exception to this status quo, being generally forbidden to produce specie under their own name absent the formal approval of the Crown. While attempts to circumvent this policy were not unheard of – Massachusetts, for example, struck a series of pence and shilling coins between the 1660s and 1680s using the common mint date of 1652 (in the midst of the so-called Interregnum when Britain had no monarch) as a means of avoiding accusations of fraud or counterfeit – the most common solutions were an increased reliance on Spanish and Portuguese coins obtained by colonists through illicit trade with the West Indies and the use of fiat paper currency. The latter was also regulated by British law, though to a more forgiving degree than metal coinage. While a series of Currency Acts (1751, 1764) restricted how much paper money the various colonial governments could emit and sought to dictate whether said bills were valid for public debts (i.e. the payment of taxes) or private debts (i.e. the payment of personal expenses) – largely in response to colonial attempts to use rapidly depreciated paper money to reimburse British merchants – successive governments continued to recognize the need for the various colonies to issue some form of currency in order to meet the basic needs of their citizens.

At this point it bears recalling precisely what the cited text of Article IX had to say on the subject of monetary policy. “The United States in Congress assembled,” it read, “Shall also have the sole and exclusive right and power of regulating the alloy and value of coin struck by their own authority, or by that of the respective States [.]” On one hand, the framers of the Articles allocated substantial authority over the minting of coins – either by Congress or the various states – to the national government. On the other hand, they made no mention whatsoever of the issuing of paper currency or the regulation thereof. As with the exercise of maritime law discussed above, this would seem to constitute a general – if somewhat qualified – reaffirmation of what had been the customary dynamic between the colonial governments and the appropriate British authorities. By omitting any mention of paper bills, Dickinson and his committee may well have intended to enshrine into the governing charter of the nascent United States the freedom from excessive monetary oversight that the colonies had earlier demanded from Parliament and only partially received through the passage of the aforementioned Currency Acts. At the same time, by allowing Congress to exercise unilateral authority over the value of American coinage – the minting of which was not necessarily denied to the states – some degree of coordinating power was thereby preserved. The national government described by the Articles thus both recognized the changed circumstances wrought by the separation of the Thirteen Colonies from British authority – embodied by its attitude of deference to the sovereignty of the states – while also attempting to adopt certain of the (necessary) regulatory tendencies previously exercise by the same. The second portion of the cited text of Article IX – concerning the exclusive authority of Congress in the realm of, “Regulating the trade and managing all affairs with the Indians, not members of any States” – seems to conform to this same basic pattern.

In spite of the many and various instances in which colonial relations with the indigenous peoples of North America seemed to proceed according to the intentions and desires of the colonists themselves, the British Crown always formally regarded itself as the only legitimate authority in the realm of aboriginal affairs. In consequence, the Crown reserved the exclusive right to conduct treaty negotiations, purchase land, erect reservations, or collect tribute. While this arrangement didn’t necessarily stop individual colonies from waging war upon neighboring tribes or attempting to acquire large tracts of land from the same, the authority of the reigning monarch was always represented by and flowed through their appointed colonial executive. Colonial legislatures thus lacked the statutory power to meaningfully interact with native peoples of their own accord, relying instead on the relevant governor to provide the necessary official sanction. The creation of the Indian Department in 1755 – falling under the authority of the British Army – and the release of a royal proclamation in 1763 – issued in the name of George III (1738-1820) – each served to reinforce this state of affairs by further divesting colonial authorities of discretion in treating with local indigenous peoples. Under the auspices of the Indian Department, a corps of Indian Agents responsible exclusively to the British government assumed authority over all diplomatic relations with the relevant tribes – to the now total exclusion of the various colonial governments – while the aforementioned declaration formally affirmed – among other guarantees – that the selfsame peoples, “Who live under our Protection, should not be molested or disturbed in the Possession of such Parts of Our Dominions and Territories as, not having been ceded to or purchased by Us, are reserved to them, or any of them, as their Hunting Grounds [.]” The colonial reaction to these developments was understandably mixed.

Under the terms of the aforesaid proclamation, colonial settlement west of the Appalachian Mountains was forbidden, colonial purchase of native lands was severely restricted, and colonial trade with native peoples was permitted only under license from the appropriate representative of the Crown in America. Particularly as it impacted upon existing claims possessed by inhabitants of the colonies, residents or property owners in settlements lying within the designated “Indian Reserve,” and colonial speculators ever eager for cheap land they could turn for a profit, discontent was both common and vehement. Having ostensibly witnessed their future prospects being traded away by the Crown without their consent, many of the inhabitants of British America were given to petitioning for redress while also lamenting the inability of their respective governments to see to a vital area of domestic concern without ministerial approval. As the resulting tensions were further amplified by the passage of particularly noxious revenue legislation – i.e. the Sugar Act (1764), Stamp Act (1765), the Townshend Duties (1766), and the Tea Act (1773) – bitterness turned to suspicion which in part came to focus on the aforementioned Indian Department, its agents, and their monopoly on indigenous affairs. Faced with an increasingly belligerent government in London whose ministers showed no qualms about directing British military resources in America towards the quashing of public dissent, the existence of a network of Crown proxies possessed of sole responsibility for carrying on diplomatic relations with the various tribes residing in and around the Thirteen Colonies appeared to the political opposition therein an increasingly dangerous prospect.

The declaration of American independence and the creation of a union of states out of what had once been a loose association of British colonies naturally presented to the nascent authorities therein an ideal opportunity to redefine the responsibilities formally allocated to local, regional, and national government. Owing to the tensions outlined above which had formerly flowed out of the monopoly claimed by the British Crown over all diplomatic and economic relations with the indigenous peoples of North America, this particular policy area was understandably among those in particular need of reassessment. The framers of the Articles of Confederation, tasked with creating the first national government in the as yet brief history of the United States of America, accordingly sought to rebalance responsibility for “Indian Affairs” in favor of the various states. Those native peoples residing within the boundaries of a given state, for instance, were specifically exempt from any claim by the United States government to exclusive jurisdiction. Likewise, Congressional regulation of diplomatic and economic affairs with otherwise un-exempted native tribes was to be valid only under the condition that, “The legislative right of any State within its own limits be not infringed or violated [.]” Doubtless, these provisions were crafted by Dickinson and his committee with the specific intent of both recognizing the sovereignty of the individual states and providing their governments with the discretion they had previously been denied to manage their relations with the relevant indigenous peoples. Whereas treaties touching upon relations with tribes residing within the claimed territory of a given colony had previously been negotiated and signed by British Indian Agents acting on behalf of the Crown – wholly absent colonial input – the elected governments of the various states would now evidently possess free reign to treat with the native peoples falling within their jurisdiction as and when they saw fit to do so.

For all that this represented a significant change in the indigenous policy of the former Thirteen Colonies – and it did – some degree of authority nevertheless remained beyond the ability of the states to wield. As cited above, the Articles of Confederation reserved to Congress the, “Sole and exclusive right and power of […] regulating the trade and managing all affairs with the Indians, not members of any of the States [.]” While this was admittedly a qualified assertion of power, it was still an exceedingly significant one. While permitting individual states to engage with their own native inhabitants as they so desired, and affirming the primacy of state law over whatever policy Congress chose to pursue in the realm of indigenous affairs, the relevant provision of Article IX otherwise delegated the same authority previously claimed by the British Crown to the Congress of the United States. Only Congress, for example, could claim the right to purchase land from native tribes not residing within the jurisdiction of a given state(s), or negotiate treaties with the same, or carry on or authorize trade with the same. In this way, the national government of the United States would effectively and exclusively regulate what would shortly prove to be one of the principle means by which the nation pursued a policy of territorial expansion. Likewise, in the event that the various states possessing territorial claims in what was then the northwest corner of British North America – now the Midwest of the United States – transferred those claims to the government of the American union, formal responsibility for treating with the native inhabitants of the resulting federalized region would accordingly fall to Congress. In consequence, the accommodation of the affected tribes to the inevitable reality of further American settlement, political consolidation, and the eventual admission of new states to the union would firmly fall within this selfsame national prerogative.

  Combined with the aforementioned authority over maritime law and monetary policy, the delegation of indigenous affairs – and in turn the means by which the United States would seek to expand through the addition of new states – would seem to constitute an attempt on the part of the framers of the Articles of Confederation to create in the resulting national government something more like the British Parliament than the current federal administration. Specifically, it would appear as though they were keen to recreate in the government of the United States the version of Parliament they had become familiar with as citizens of the various colonies of British America – i.e. Parliament as viewed from three thousand miles distant. According to the accustomed dynamics of this relationship – honed over the course of a century and a half – the various colonies enjoyed responsibility for most of their domestic affairs while the British government proper laid claim principally to foreign relations – i.e. diplomacy and war – monetary policy, and indigenous affairs. While this dynamic was almost entirely born out of necessity – the domestic needs of the various colonial populations being nearly impossible to attend to in a timely fashion from across thousands of miles of turbulent ocean – time and custom ensured that the affected populations came to see it simply as the natural order of things. Though the resulting national government deferred to the colonies-cum-states in certain aspects of these formerly national prerogatives – by granting them the right to establish prize courts of their own, for example, or recognizing their jurisdiction over their native inhabitants – the Articles of Confederation largely recognized and sought to perpetuate this same understanding.

In consequence, rather than constituting something wholly new, radical, or innovative, the Articles of Confederation in the main appeared to represent an attempt by the contemporary membership of the Continental Congress to reconstruct the status quo they’d become accustomed to – indeed, come to depend on – prior to the tensions wrought by the Anglo-American crisis of the 1760s and 1770s. Certainly the resulting committee was willing – if not eager – to reconsider some of the basic assumptions upon which the Anglo-American relationship had previously pivoted. The number of instances in which the Articles of Confederation deferred to the states in areas of policy previously the exclusive bailiwick of Parliament speaks to this assertion well enough. But the degree to which the resulting national government claimed exclusive jurisdiction – and the specific areas in which it made these claims – gives strong evidence as to the framers’ intentions. Rather than give rise to a national authority specifically equipped to cultivate and pursue a set of distinctly national prerogatives – with all the allocations of power that would have entailed – Dickinson and his committee instead effectively sought to transpose the relationship that had previously existed between the colonies of British America and the various institutions of the British government onto the newfound context of a union of sovereign American states.

The few areas in which the resulting government claimed exclusive authority fell safely within the realm of those prerogatives customarily claimed by Parliament and the Crown. In this way, the various state governments would only be forced to contend with – and theoretically bend to – national power within the context of responsibilities they not used to exercising themselves. The colonies of British America didn’t conduct their own foreign relations, after all, or coin their own money, or negotiate treaties with neighboring native tribes – much though their inability to do so became occasional cause for frustration. Creating an administrative framework upon which these responsibilities could be grafted accordingly represented perhaps the easiest and most logical next step in the political evolution of the union of American states. The result, the framers of the Articles evidently hoped, would be a government that behaved as though it was many thousands of miles away while in reality remaining close enough to be restrained from behaving otherwise.