State Sovereigntists made their biggest stand over the Treaty of Peace. Their resistance to the Treaty played a critical role in shaping how Americans understood the role state sovereignty played in both the constitutional system and politics…
The American Revolution, State Sovereignty, and the American Constitutional Settlement, 1765-1800 by N. Coleman (294 pages, Lexington Books, 2016)
Nationalist frustrations with state sovereignty reached a crescendo in 1783. In that year, a proposed amendment to the Confederation giving Congress authority to collect an impost tax failed when New York rejected the amendment. Given that Congress had approved the amendment, and ratification of most of the states came swiftly, suggested that most states still believed Congress needed this power. The failure of the Amendment shook the Nationalists’ faith that the Union would even succeed in the post-war future. As a result, Nationalists began open criticism of the constitutional structure of the Confederation and the powers of Congress. They started to embrace what Hamilton had broached as early as 1780, a calling of special conventions designed to amend the Articles. In fact, in 1782 Hamilton, who had joined Congress that year, drew up such a proposal—although he shelved it soon thereafter—and convinced the New York legislature to advocate for such a convention.[i]
Nationalist disillusionment with the Confederation reached its greatest peak, however, when the preliminary Articles of the Treaty of Peace finally arrived in the fall of 1783. In Articles Four, Five, and Six, the proposed Treaty required all pre-war American debts to British creditors be paid in pounds-sterling, Congress would “earnestly recommend” the states open their courts for Loyalists to attempt to reacquire land confiscated during the war, and the Treaty indemnified British (and American) atrocities committed during the conflict. Not surprisingly, the Nationalists supported these provisions and argued that the states must abide by the Treaty’s clause. Initially, Nationalists held that refusing to honor the terms of the Treaty would stain the reputation of newly independent states, making “this…not a Country to live in.” They soon followed that position with the argument that the Articles of Confederation empowered Congress to make treaties, meaning that the states had to abide by any treaty agreed to by the Congress. Across the states, various nationalists pressed their state legislatures to repeal anti-loyalist legislation that contravened the Treaty’s provisions.[ii] Thomas Jefferson, although holding a life-long enmity towards centralized power, nonetheless believed the Articles gave clear authority to conduct the treaty, and as such, worried that it is “neither consistent with the faith of an honest individual nor favorable to the character of a nation.”[iii]
As with so much else regarding the Nationalist argument, it was Hamilton who made the most forceful and public push to see the Treaty of Peace followed. In his famous 1784 case of Rutgers v. Waddington as well as his two “Phocion” essays, Hamilton drew upon his earlier thoughts and argued that a dual sovereignty existed, one in Congress and the other in the separate states. The Congress had “complete sovereignty” over the implementation of the Treaty, he argued, because “our Sovereignty and Independence began by Federal Act,” the Declaration of Independence. Since the Declaration was the “fundamental constitution of every state,” and New York (and, by extension, the other states) could not “pretend to authenticate the act, but only to give their approbation to it,” Congress had the “unquestionable right” to enforce the Treaty. Because the Articles of Confederation granted Congress “among the first rights of sovereignty…the sole power of making treaties with foreign” powers, Hamilton argued that states had to obey its strictures. Hamilton then turned to the argument he first broached in 1780, that of implied powers. Since Congress had sovereign power to conduct treaties, it implied that the “power of making conditions” to see the Treaty carried out was a Congressional power. “The common interests of humanity, and the general tranquility of the world, require,” Hamilton continued, “that the power of making peace, wherever lodged, should be construed and exercised liberally; and even in cases where its extent may be doubtful, it is the policy of all wise nations to give it latitude rather than confine it.” In other words, Congress should have broadly defined power to make treaties; otherwise, “it would be extremely dangerous to prescribe narrow bounds to that power, by which it is to be restored.” If those conditions contradicted state laws or actions, then the state had to surrender. States had to obey the Treaty, Hamilton averred, because it was “impossible for Congress to do a single act which will not directly or indirectly affect the internal police of every state.” More importantly, however, the sovereign power of Congress made the Treaty. Since the states were not sovereign on external issues of war and peace, they could not violate the Treaty as only “sovereign authority may violate Treaties.”[iv]
Hamilton insisted that the authority to make Treaties was “of a legislative kind.” Thus, when Congress declared the treaty ratified in early 1784, “their proclamation enjoining the observance” became “a law paramount to that of any particular state.” The states had no “legal jurisdiction to alter them.”[v] Edward Shippen, the head of the Philadelphia County court, would expand Hamilton’s logic even further in the 1788 case of Camp v. Lockwood. In his opinion for the court, Shippen held that the “first body that exercised anything like a sovereign authority was the Congress of the then United Colonies.” Although the States retained their sovereignty under the Articles of Confederation, the “general power” of sovereignty remained with Congress, even if it remained “undefined.” Nor was Shippen concerned with the indeterminate nature of the Confederation’s sovereignty because the states, “though free and independent,” were nonetheless “not to be such distinct sovereignties as have no relation to each other but by treaties and alliances, but are bound together by common interest, and are jointly represented and directed to national purposes.” He believed Congressional recommendations “had generally the force of laws” and the states had to obey.[vi]
What angered Nationalists during the first half of the 1780s was their opponents’ continual reliance upon state sovereignty to frustrate Morris’ and the treaty’s provisions. Even as the Nationalists ascended in Congress in first years of the decade, they were defeated, at every turn by defenders of state sovereignty. Although these “State Sovereigntists” were even less organized than the Nationalists they were a consistent enough phalanx to thwart the Nationalists’ plans. Nor were their arguments “the most innovative development in the constitutional thinking of the early 1780s” as one historian has claimed.[vii] Rather, the State Sovereigntists reinforced and maintained arguments that had birthed the Revolution.
From 1780 to 1783, State Sovereigntists in Congress relied upon these traditional arguments in their battles against Nationalists. When Hamilton and Wilson argued for a general power of taxation as an addendum to the proposed impost Amendment, Virginia delegate, and firm State Sovereigntists, Arthur Lee, connected state sovereignty with the protection of liberty. He noted that the states would “never agree to those plans which tend to aggrandize Congress” because the history of liberty taught the “danger of surrendering the purse into the same hand which held the sword.” David Howell, the Rhode Island Congressional member who played a role in his state’s defeat of the impost by leaking false information, sought the Congressional defeat of the impost amendment on grounds that strongly reminiscent of Burke’s arguments of 1777.[viii] The impost would not only hurt the interests of Rhode Island, it would adversely affect “the moral of the community at large” because it encouraged “idleness and Luxury” and provided Congress with a large degree of corruptible patronage. Most important, however, the impost was “but an entering wedge, others will follow” all of which “derogated from the Sovereignty and Independence of the States.”[ix]
State Sovereigntists made their biggest stand, however, over the Treaty of Peace. Their resistance to the Treaty played a critical role in shaping how Americans understood the role state sovereignty played in both the constitutional system and politics. For the first time since declaring independence, Americans publically debated the meaning and nature of state sovereignty. Prior to these debates, Congressmen and others invoked the idea of state sovereignty in resisting measures and in explaining the limitations upon the Confederation’s power. Even the Burke Amendment, for all its significance in protecting state sovereignty, did not explain the application of state sovereignty in real political situations. Resistance to the Treaty also marked the first time Americans applied to a major political issue. In short, they moved state sovereignty from a constitutional idea to an actual working political phenomenon. By doing so, they not only reaffirmed their Revolutionary commitment to state sovereignty as a fundamental constitutional idea, but they empowered the concept to operate on a political level to defend their liberty.
When the terms of the Treaty first appeared in American newspapers in the spring of 1783, Americans reacted with surprise and anger. Although elated over the unexpected expansion of their boundaries and the final recognition of their independence (which, it should be noted acknowledged them by individual names and not as a unified nation), what shocked most Americans were Articles Four through Six and how they appeared to interfere with state sovereignty. At first, this surprise renewed extralegal violence against Loyalists; in fact, it was the first violent actions against them since the early years of the War. While this violence would continue sporadically over the next year, it eventually gave way to more reasoned and political responses.
Local communities, where the terms of the Treaty would be felt most, issued instructions to their representatives requesting that the states ignore those particular articles of Treaty that violated the state sovereignty. A Dutchess County, New York, gathering noted that the Treaty’s provisions were “the worst of policy and greatest injustice to the interest of zealous supporters of our liberty.” Also in New York, “Brutus” warned his fellow New Yorkers, that Articles Four and Five of the Treaty contained “seeds of inexhaustive feuds and animosities” between Patriot and Tory. Since “these states are sovereign and independent,” however, New York and other states could ignore those provisions. Lexington, Massachusetts’ meeting resolved in even more explicit terms; “while we sincerely wish, that the Faith of the Nation might be realized…we also wish that the Freedom, Independence, and Sovereignty of these states, respectfully considered, might not be forgotten.” The use of the phrase of the Burke Amendment is telling and is a clear demonstration that Americans considered Articles Four, Five, and Six as contradicting state sovereignty. Perhaps the most forceful example of this argument came in Essex County, New Jersey. In May 1783, a town meeting stated that “we know not on which principles it can be expected that the recommendations made [regarding Article Five] will be complied with by a single state in the Union.” The petition noted that “altho’ Congress must ‘earnestly recommend'” that Loyalists be offered the chance to reclaim confiscated land, “the Legislatures are not obliged to comply.”[x]
States responded to this popular pressure by engaging in a new round of anti-Loyalist legislation. New Jersey and Maryland enacted measures that banned former Loyalists from holding political office or practicing law. Both Virginia and North Carolina denied citizenship to former Loyalists attempting to establish residence. Massachusetts and South Carolina began a new round of selling off confiscated Loyalist property, even after they knew the terms of the provisional Treaty. The New York legislature responded to the Treaty’s terms by passing the Trespass Act that empowered the citizens of New York to sue Loyalists for damages caused by the occupation of that city by British soldier and refugees. Even after Congress ratified the Treaty in January 1784, states continued to enact legislation that contradicted the Treaty’s terms. Massachusetts enacted legislation to continue the sale of confiscated Loyalist property and declared “[a]n Act for Asserting the Right of this Free and Sovereign Commonwealth to expel such Aliens as may be Dangerous,” and also stated that Loyalists who fled the state between October 1774 and 1780 forfeited their citizenship. The state then declared that the loss of this citizenship meant a loss of their estates, which were turned over permanently to the state, a clear violation of Article Five of the Treaty. Pennsylvania violated this portion of the Treaty when it empowered its Supreme Executive Council to sell the property of its most notorious Tory, Joseph Galloway. New Jersey and North Carolina followed suit by passing new measures to sell off remaining confiscated Tory land.[xi]
It is easy to dismiss the petitions and instructions of local communities and the post-war anti-Loyalist legislation as little more than efforts to keep confiscated lands and not pay pre-war debts. After all, that was the hope of the local committee and outcome and purpose of the various legislative measures. But, to reject them as polemical or cynical political ploys misses the underlying constitutional argument. By invoking the sovereignty of the states, sometimes using the exact language of Article Two of the Articles of Confederation, these various instructions, and the state laws were rejections of the idea that they would be the administrative agencies of Congress, existing to carry out the wishes of the Confederation Congress. Rather, the states, because they were sovereign, would determine for themselves what was both constitutional and an intrusion into their internal affairs as well as threats to the liberty of its citizens.[xii] The states were thus giving working definition behind the constitutional principle of state sovereignty.
More important than even defining what state sovereignty meant in the American constitutional order, the local instructions and petitions and the actions of the state legislatures against the Treaty also explained how most Americans believed state sovereignty was to operate as a political and constitutional reality. In short, they did so by advocating state interposition. The states, as sovereign entities, had to intercede and protect its citizens against actions considered unconstitutional and threats to liberty. To be sure, neither the arguments of the imperial crisis nor the Burke Amendment specified interpositions as a power of the states; those arguments, and even the Burke Amendment, were statements of a long-held idea that the colonies/states were sovereign. Nor did these arguments ever detail the practice of state sovereignty in a practical political sense. It is important to note, however, that in the years immediately following the adoption of the Burke Amendment, the need to explain exactly how state sovereignty was to operate did not arise. The states had few out-right constitutional conflicts with the Confederation where the Confederation took action without the states’ consent and where the states could argue that Congress acted outside of its bounds of power. The Treaty was the first real instance. “The Treaty,” wrote “Mentor” in his reply to Hamilton’s “Phocion” essay, did not “even upon so liberal construction, as I believe Phocion himself would give it, debar the state from making law that may be salutary to the government, and advantageous to the people.”[xiii] In other words, the Burke Amendment embraced and protected the traditional notions of state sovereignty by breathing life into the power of interposition. If the state was to protect its sovereignty, independence, and freedom and the liberty of its citizens against measures it considered unconstitutional, the only recourse short of rebellion was for the state to interpose.
The most important defense of state interposition came from Meriweather Smith of Virginia. His 1783 pamphlet, “Observations on the Fourth and Fifth Articles of the Preliminaries for a Peace,” while lacking the elegance and nuisance of extended constitutional analysis that Madison and Jefferson would employ fifteen years later, or that of John C. Calhoun half a century more, was the first open defense and explanation of interposition in American history. That virtually all historians have ignored it should be surprising. Smith asked whether Article Four was “consistent with the sovereignty and right of legislation of an individual state is worthy of consideration.” He argued that the Articles of Confederation were not intended to operate directly upon the citizens of the state. In this, Smith maintained the nomocratic position of Congress’ powers since this is the very issue that compelled Thomas Burke to seek his amendment. Because the Confederation lacked this authority, it could not compel any individual to perform any action. Yet, Article Four of the Treaty was “subjecting the citizens within the states” to pay debts owed to British subjects. This violation was particularly odious to Smith since Virginia had enacted wartime legislation that allowed its resident to pay their debts to British subjects with the Commonwealth’s money. Article Four, however, attempted to strip Virginian citizens of “those rights derived from the Revolution and the position law of the state.” The same held true for Article Five which threatened to allow Loyalists to recover land Virginia had confiscated and its citizens had bought, thereby threatening their property rights. In summation, Congress’ stipulation to those provisions threatened the liberty of Virginians.[xiv]
By agreeing to these provisions, Smith maintained that Congress “depriv[ed] the state of its sovereignty and independence reserved by the confederation” through the Burke Amendment. What the “ministers of Congress” were attempting, Smith argued, was no less than “subjecting the citizens with the state to their authority, and directing a repeal of such laws as they disapprove.” Yet, since Congress “had no right to stipulate in the manner they have agreed as to the 4th article, and consequently that there is no authority to carry it into execution but that which arises from the consent of the legislature of the state of the individual interested therein.”[xv] Smith once again followed the traditional argument of state sovereignty that Adams and others had established a decade earlier that held that states had to consent to any measure that affected them. In this case, Smith was more than clear that Virginia would not consent, nor force its citizens to obey, the unconstitutional actions of Congress. To insure that these measures would not be forced upon Virginians (and citizen of other states), its citizens needed to rely upon the “wisdom and firmness” of the state governments to act as the “sure safeguard to the people” and exercise their sovereignty and intervene on the behalf of their people to block implementation of the Treaty.[xvi]
State Sovereigntists, led by Smith’s argument and the actions of the states in 1783 and 1784, established the firmament of state sovereignty by moving beyond theoretical statements and into actual political and constitutional argument. The thrust of their argument was plain enough, as sovereign entities the states would decide for themselves what was constitutional, and, if found to threaten the liberties of their citizens, they reserved the right to interpose and ignore the odious provisions. At the same time, this use of interposition was not a rejection of Articles or of Congressional authority over treaties; no one questioned that authority. Rather, what moved the states to action were the provisions that circumvented the states and acted directly upon individuals. This is an important distinction to make. Too often, scholars treat the idea of state sovereignty, and interposition, especially, as rejections of the entire constitutional structure. This is not what State Sovereigntists argued. No serious American in 1783 rejected the idea or necessity of union or of Confederation possessing power. Rather, State Sovereigntists believed that if state sovereignty was to have any real meaning in the constitutional order they were forging, it had to possess the ability to provide protection against unwarranted and centralizing threats. Interposition, then, was state sovereignty put into practice. Although it operated in the manner as another measure passed under the authority of the states, it was to be used sparingly and only in the defense of liberty, and not simply because states had a policy disagreements.
By 1783, state sovereignty had transformed from a constitutional idea to working element of American constitutionalism and politics. Of singular importance in this transformation was the Burke Amendment. It constitutionalized the Americans’ arguments on the sovereignty of the colonies (now states) made during the Imperial Crisis, and quickly became the standard upon which Americans judged the Confederation’s actions. At the same time, however, the Nationalists began asserting that the Confederation Congress needed greater degrees of sovereign power, and that state sovereignty actually hindered the success of the Revolution. These opposing views came to a head with the Treaty of Peace. In these debates, Americans asserted that the Burke Amendment’s protection of state sovereignty meant that the states possessed the power of interposition. It was the only legitimate and peaceful method of protecting their citizens’ liberty against threats from centralized power. Although State Sovereigntists won these initial clashes, the Nationalists would continue their calls for constitutional reform.
This essay is the third part of Chapter 2, “Establishing and Debating the Nature of State Sovereignty: Articles of Confederation and the Politics of Early 1780s,” of The American Revolution, State Sovereignty, and the American Constitutional Settlement, 1765-1800 (Lanham, MD: Lexington Books, 2016) and is republished with gracious permission from the author. You may read the first part here and the second part here.
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[ii] North Carolina House of Representatives, June 3, 1784, in Clark, State Records of North Carolina, 19:716; “Resolutions on Private Debts Owed to British Merchants,” June 7–23, 1784, in Madison, Papers, 8:58–63.
[iii] James Iredell to Hannah Iredell, May 31, 1783, in Don Higginbotham, ed. The Papers of James Iredell, 2 vols (Raleigh: Division of Archives and History Department of Cultural Resources, 1976), 2: 415; Thomas Jefferson to Philip Turpin, July 29, 1783 in Julian P. Boyd, ed., The Papers of Thomas Jefferson, 38 vols. (Princeton: University of Princeton University Press, 1951-2011), 6: 324-333.
[iv] Brief no. 3 in Julius Goebel, ed., The Law Practice of Alexander Hamilton: Documents and Commentary 3 vols. (New York: Columbia University Press, 1964), 1: 349-350, 356, 374 and “A Letter of Phocion to the Considerate Citizens of New York,” January 1-27, in Hamilton, Papers, 3: 483-497.
[v] Hamilton, Brief no. 3, in Goebel, ed., Law Practice of Alexander Hamilton, 378-379.
[vi] Camp v. Lockwood can be found in James Alexander Dallas, ed. Reports of the Cases Ruled and Adjudged in the Courts of Pennsylvania before and since the Revolution, 4 vols. (Philadelphia: T. Bradford, 1790), 1: 393-404, quote on 403.
[viii] Congress would formally censure Howell for his actions. See Hamilton, Papers, 3: 224-225.
[ix] For Arthur Lee’s remarks see Madison, “Note on Debates,” Madison, Papers 6: 141-149, 158-165, 270-274; David Howell to William Greene, July 30, 1782 and Theodore Foster, October 9, 1782 see Smith, Letters of Delegates 18: 681 and 19: 244-245.
[x] Proceedings of the Freeholders and Inhabitants of Amenia precinct, in Dutchess County, in The Pennsylvania Packet, July 19, 1783; A Meeting of the Freeholders and other Inhabitants of the Town of Worchester (Massachusetts), May 22, 1783, in The Pennsylvania Packet, June 19, 1783. Also see the “Petition of Inhabitants and Freeholders of Amerhest County, Virginia” and “Petition of the Inhabitants of Essex County, Virginia” June 6, 1783, in Virginia Legislative Assembly, Petitions, 1782–1789; Brutus,” “To the Friends of Freedom and Independence in the State of New York,” April 12, 1783, in The Independent Gazetteer; or The Chronicle of Freedom, May 10, 1783; “At a Meeting of the Freeholders and other Inhabitants of the Town of Lexington, Legally Assembled,” May 22, 1783, in The Boston Gazette, June 9, 1783; “To the Respectable inhabitants of the County of —–, in the State of New Jersey,” May 19, 1783, in The New Jersey Gazette, June 4, 1783.
[xi] Massachusetts General Assembly, March 24, 1784; A Collection of the Acts or Laws passed in the State of Massachusetts Bay, relative to the American Loyalists and Their Property, n.e. (London: John Stockdale, 1785), 26-35. Pennsylvania General Assembly, February 4, 1784, and September 9, 15, 16, 22, 23, (Philadelphia: Hall and Sellers, 1784), 114, 164-165, 324-325, 334-336, 345, 349-350. Also see Robert L. Brunhouse, The Counter-Revolution in Pennsylvania, 1776-1790 (Harrisburg: Pennsylvania Historical Commission, 1942), 15-16, 161-164. For the action against Galloway, see Pennsylvania General Assembly, September 15, 1784, 335. For New Jersey, see New Jersey General Assembly (Trenton: Isaac Collins, 1784), December 23, 1784, 96 and Henry Brockholst Livingston to William Livingston, June 22, 1784 in Carl E. Prince, ed. Papers of William Livingston. 5 vols. (Trenton: New Jersey Historical Commission, 1979-1987), 5: 143; Clark, State Records of North Carolina, 24:661-664.
[xii] This is the one of the main arguments of Coleman, “Debating the Nature of State Sovereignty.”
[xiii] Isaac Ledyard, “Mentor’s Reply to Phocion’s Letter” (New York: Kollock, 1784), 13.
[xiv] Meriwether Smith, “Observations on the Fourth and Fifth Articles of the Preliminaries for a Peace with Great Britain designed for the Information and Consideration of the People of Virginia” (Richmond: Dixon and Holt, 1783), 1–28, quote on 4.
[xvi] Ibid. Several years later, Luther Martin, the devout State Sovereigntists from Maryland, would make a similar argument in the case of Dulany v. Wells. In his defense of Wells, Martin asked the court if “the treaty operate to destroy the acts which were done before its existence; to take away the right of individuals acquired under our laws, and which vested in them during the continuance of the laws? Had Congress such power? I think, if necessary, it might be questioned. How is the treaty to operate for this purpose? It is said, either in its own nature, or in consequence of the law of our state, declaring it to be the supreme law of the land, it operates as a repeal of the former act. Admit it to be so; the repeal of a law cannot destroy acts done and rights acquired under the law during its existence, and before its repeal; and thought it is declared to be the supreme law, still, as far as that declaration goes, it is but a law; nor doth that declaration cause it to be the supreme law, or any law, before it existed as a treaty. The repeal of a law prevents rights being afterward acquired under the law repealed, but doth not annul those acquired previously. The contrary construction would be replete with iniquity and injustice. Congress had no rightful power to infringe or annul any law of any state in the union, or to interfere with the right of any individual acquired under these laws.” Thomas Harris, Jr. and John McHenry, eds., Maryland Reports being a Series of the Most Important Laws Cases, 4 vols. (New York and Annapolis: Wiley, 1809-1818), 3: 20-84, quote on 65-66.