Front Page Titles (by Subject) Confederations: 76: [The New England Confederation] - Colonial Origins of the American Constitution: A Documentary History
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Confederations: 76: [The New England Confederation] - Donald S. Lutz, Colonial Origins of the American Constitution: A Documentary History 
Colonial Origins of the American Constitution: A Documentary History, ed. Donald S. Lutz (Indianapolis: Liberty Fund 1998).
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[The New England Confederation]
Text taken from Thorpe, Federal and State Constitutions, 77–81.
These articles drawn up and approved by the four colonies of Massachusetts, Plymouth, Connecticut, and New Haven constitute the first attempt in America to join several colonies. The New England Confederation differed in two important respects from earlier documents of union in the colonies, such as the Government of Rhode Island, 1642 , the Fundamental Orders of Connecticut, 1639 , and the Fundamental Articles of New Haven, 1639 . First, this confederation included settlements operating under different charters. There was no provision in any of the four colonial charters that implied the authority to erect such a union, but the “distractions in England,” as these Articles term the onset of the English Civil War, combined with colonial inclinations for self-government, seemed to make the historic step seem a natural one. Second, the other agreements established federations of towns that rehearsed the federal system erected in 1787, whereas this Confederation was a rehearsal for the Articles of Confederation. It is a true confederation, properly named, and describes itself internally as “a firm and perpetual league of friendship” (Article 2) much as the Articles of Confederation describes itself internally as “a firm league of friendship” (Article 3) and “perpetual union.” The New England Confederation, a confederation of federations, lasted formally until 1684, although it effectively ceased functioning in 1664, shortly after the “distractions” of the Commonwealth era came to an end.
Articles of confederation between the plantations under the government of the Massachusetts, the plantations under the government of New Plymouth, the plantations under the government of Connecticut, and the government of New Haven with the plantations in combination therewith:
whereas we all came into these parts of America with one and the same end and aim, namely, to advance the kingdom of our Lord Jesus Christ and to enjoy the liberties of the Gospel in purity with peace; and whereas in our settling (by a wise providence of God) we are further dispersed upon the seacoasts and rivers than was at first intended, so that we cannot according to our desire with convenience communicate in one government and jurisdiction; and whereas we live encompassed with people of several nations and strange languages which hereafter may prove injurious to us or our posterity; and forasmuch as the natives have formerly committed sundry insolences and outrages upon several plantations of the English and have of late combined themselves against us; and seeing by reason of those sad distractions in England which they have heard of, and by which they know we are hindered from that humble way of seeking advice, or reaping those comfortable fruits of protection, which at other times we might well expect, we, therefore, do conceive it our bounden duty, without delay, to enter into a present consociation among ourselves, for mutual help and strength in all our future concernments.
That, as in nation and religion, so in other respects, we be and continue one according to the tenor and true meaning of the ensuing articles. Wherefore it is fully agreed and concluded by and between the parties of jurisdictions above named, and they jointly and severally do by these presents agree and conclude that they all be and henceforth be called by the name of the United Colonies of New England.
2. The said United Colonies, for themselves and their posterities, do jointly and severally hereby enter into a firm and perpetual league of friendship and amity for offense and defense, mutual advice and succor upon all just occasions, both for preserving and propogating the truth and liberties of the Gospel and for their own mutual safety and welfare.
3. It is further agreed that the plantations which at present are, or hereafter shall be, settled within the limits of the Massachusetts shall be forever under the Massachusetts, and shall have particular jurisdiction among themselves in all cases as an entire body; and that Plymouth, Connecticut, and New Haven shall each of them have like particular jurisdiction and government within their limits, and in reference to the plantations which already are settled, or shall hereafter be erected, or shall settle within their limits respectively; provided that no other jurisdiction shall hereafter be taken in as a distinct head or member of this confederation, nor shall any other plantation or jurisdiction in present being, and not already in combination or under the jurisdiction of any of these confederates, be received by any of them; nor shall any two of the confederates join in one jurisdiction without consent of the rest, which consent to be interpreted as is expresed in the 6th article ensuing.
4. It is by these confederates agreed that the charge of all just wars, whether offensive or defensive, upon what part or member of this confederation soever they fall, shall both in men and provisions and all other disbursements be borne by all the parts of this confederation in different proportions according to their different ability in manner following, namely, that the commissioners for each jurisdiction, from time to time as there shall be occasion, bring a true account and number of all the males in every plantation or any way belonging to or under their federal jurisdictions of what quality or condition soever they be from sixteen years old to threescore being inhabitants there. And that according to the different numbers which from time to time shall be found in each jurisdiction, upon a true and just account, the service of men and all charges of the war be borne by the poll; each jurisdiction or plantation being left to their own course and custom of rating themselves and people according to their different estates with due respects to their qualities and exemptions among themselves though the confederation take no notice of any such privilege; and that according to their different charge of each jurisdiction and plantation, the whole advantage of the war (if it please God to bless their endeavors), whether it be in lands, goods, or persons, shall be proportionately divided among the said confederates.
5. It is further agreed that, if any of these jurisdictions or any plantation under or in combination with them be invaded by any enemy whatsoever, upon notice and request of any three magistrates of that jurisdiction so invaded, the rest of the confederates, without any further meeting or expostulation, shall forthwith send aid to the confederate in danger but in different proportions; namely, the Massachusetts, 100 men sufficiently armed and provided for such a service and journey, and each of the rest, 45 so armed and provided, or any less number, if less be required according to this proportion. But in any such case of sending men for present aid, whether before or after such order or alteration, it is agreed that at the meeting of the commissioners for this confederation the cause of such war or invasion be duly considered; and if it appear that the fault lay in the parties so invaded that then that jurisdiction or plantation make just satisfaction, both to the invaders whom they have injured, and bear all the charges of the war themselves, without requiring any allowance from the rest of the confederates toward the same. And, further, that if any jurisdiction see any danger of any invasion approaching, and there be time for a meeting, that in such case three magistrates of that jurisdiction may summon a meeting at such convenient place as themselves shall think meet, to consider and provide against the threatened danger; provided when they are met they may remove to what place they please. Only while any of these four confederates have but three magistrates in their jurisdiction, their request or summons from any two of them shall be accounted of equal force with the three mentioned in both the clauses of this article, till there be an increase of magistrates there.
6. It is also agreed that for the managing and concluding of all affairs proper and concerning the whole confederation, two commissioners shall be chosen by and out of each of these four jurisdictions; namely, two for the Massachusetts, two for Plymouth, two for Connecticut, and two for New Haven, being all in church fellowship with us, which shall bring full power from their several General Courts respectively to hear, examine, weigh, and determine all affairs of our war or peace leagues, aids, charges, and numbers of men for war, division of spoils and whatsoever is gotten by conquest, receiving of more confederates for plantations into combination with any of the confederates, and all things of like nature, which are the proper concommitants or consequents of such a confederation for amity, offense, and defense, not inter-meddling with the government of any of the jurisdictions, which by the 3rd article is preserved entirely to themselves ... It is further agreed that these eight commissioners shall meet once every year, besides extraordinary meetings (according to the 5th article), to consider, treat, and conclude of all affairs belonging to this confederation ...
8. It is also agreed that the commissioners for this confederation hereafter at their meetings, whether ordinary or extraordinary, as they may have commission or opportunity, do endeavor to frame and establish agreements and orders in general cases of a civil nature, wherein all the plantations are interested, for preserving peace among themselves and preventing as much as may be all occasion of war or difference with others, as about the free and speedy passage of justice in every jurisdiction, to all the confederates equally as to their own, receiving those that remove from one plantation to another without due certificates; how all the jurisidictions may carry it toward the Indians, that they neither grow insolent nor be injured without due satisfaction, lest war break in upon the confederates through such miscarriage.
It is agreed that if any servant run away from his master into any other of these confederated jurisdictions, that in such case, upon the certificate of one magistrate in the jurisdiction out of which the said servant shall be delivered either to his master or any other that pursues and brings such certificate of proof. And that upon the escape of any prisoner whatsoever, or fugitive for any criminal cause, whether breaking prison, or getting away from the officer, or otherwise escaping, upon the certificate of two magistrates of the jurisdiction out of which the escape is made, that he was a prisoner, or such an offender at the time of the escape, the magistreates, or some of them of that jurisdiction where for the present the said prisoner or fugitive abides, shall forthwith grant such a warrant as the case will bear for the apprehending of any such person, and the delivery of him into the hands of the officer or other person who pursues him. And if there be help required for the safe returning of any such offender, then it shall be granted to him that craves the same, he paying the charges thereof.
9. And for that the justest wars may be of dangerous consequence, especially to the smaller plantations in these United Colonies, it is agreed that neither the Massachusetts, Plymouth, Connecticut, nor New Haven, nor any of the members of them, shall at any time hereafter begin, undertake, or engage themselves, or this confederation, or any part thereof in any war whatsoever (sudden exigents with the necessary consequents thereof excepted which are also to be moderated as much as the case will permit) without the consent and agreement of the forenamed eight commissioners, or at least six of them, as in the 6th article is provided; and that no charge be required of any of the confederates in case of a defensive war till the said commissioners have met and approved the justice of the war, and have agreed upon the sum of money to be levied, which sum is then to be paid by the several confederates in proportion according to the 4th article ...
11. It is further agreed that if any of the confederates shall hereafter break any of these present articles, or be any other ways injurious to any one of the other jurisdictions, that both peace and this present confederation may be entirely preserved without violation.
[The Albany Plan of Union]
The complete text is taken from Thorpe, Federal and State Constitutions, 83–86.
In 1754 the colonies sent representatives to a general congress to conclude a treaty with the Iroquois. Although Benjamin Franklin was much impressed by the Iroquois Confederation, neither this document nor the later Articles of Confederation bears any serious resemblance to the Iroquois system. For example, the Iroquois required unanimous approval by all tribes; tribal representation was not proportional to tribal population. Their confederation council was divided into three parts, each with a specific role in the overall decision making process: council members, assuming their good behavior, were not elected but appointed by “royal” (royaneh) families for life; the executive branch was internal to the council and functioned only when the council was in session; and constituent tribal government was organized along traditional tribal lines and not democratically. The Albany Plan of Union proposed that the democratically elected colonial legislatures elect confederation delegates for three-year terms; the executive was to be appointed by the king and function as a separate entity during and between sessions of the Grand Council; and the unicameral Council was to be based on proportional representation and use majority rule. The unicameral legislature created by the Articles of Confederation was really no closer to the Iroquois model; because its delegates were also elected to terms by the state legislatures, it used either simple or three-fourths majorities, and it used a thirteen-member (one from each state) Council of States between sessions as an executive branch. The Albany Plan and the Articles of Confederation were natural extensions of The New England Confederation, 1643 . The Albany Plan was much closer to Penn’s Plan of Union, 1697, and the Articles of Confederation were closer to Galloway’s Plan of Union, 1774 (see Appendix), than to any reasonable interpretation of the Iroquois system. The Albany Plan of Union failed adoption by the colonial legislatures and did not go into effect but is included here because it was adopted by a colonial body authorized to produce a mechanism for enforcing and maintaining the treaty with the Iroquois, the essential purpose of this Plan, and because it was the immediate model for the operation of the Continental Congress and the design for the Articles of Confederation.
It is proposed, that humble application be made for an act of Parliament of Great Britain, by virtue of which one general government may be formed in America, including all the said colonies, within and under which government each colony may retain its present constitution, except in the particulars wherein a change may be directed by the said act, as hereafter follows.
president-general and grand council
That the said general government be administered by a President-General, to be appointed and supported by the crown; and a Grand Council, to be chosen by the representatives of the people of the several colonies met in their respective Assemblies.
election of members
That within [ ] months after the passing of such act, the House of Representatives that happens to be sitting within that time, or that shall be especially for that purpose convened, may and shall choose members for the Grand Council in the following proportion—that is to say:
place of first meeting
[ ] who shall meet for the first time at the city of Philadelphia in Pennsylvania, being called by the President-General as soon as conveniently may be after his appointment.
That there shall be a new election of the members of the Grand Council every three years; and on the death or resignation of any member, his place should be supplied by a new choice at the next sitting of the Assembly of the colony he represented.
proportion of members after the first three years
That after the first three years, when the proportion of money arising out of each colony to the general treasury can be known, the number of members to be chosen for each colony shall from time to time, in all ensuing elections, be regulated by that proportion, yet so as that the number to be chosen by any one province be not more than seven, nor less than two.
meetings of the grand council, and call
That the Grand Council shall meet once in every year, and oftener if occasion require, at such time and place as they shall adjourn to at the last preceding meeting, or as they shall be called to meet by the President-General on any emergency, he having first obtained in writing the consent of seven of the members to such call, and sent due and timely notice to the whole.
That the Grand Council have power to choose their speaker and shall neither be dissolved, prorogued, nor continued sitting longer than six weeks at one time, without their own consent or the special command of the crown.
That the members of the Grand Council shall be allowed for their service ten shillings sterling per diem during their session and journey to and from the place of meeting; twenty miles to be reckoned a day’s journey.
assent of president-general and his duty
That the assent of the President-General be requisite to all acts of the Grand Council, and that it be his office and duty to cause them to be carried into execution.
power of president-general and grand council; treaties of peace and war
That the President-General, with the advice of the Grand Council, hold or direct all Indian treaties in which the general interest of the colonies may be concerned; and make peace or declare war with Indian nations.
That they make such laws as they judge necessary for regulating all Indian trade.
That they make all purchases, from Indians for the crown, of lands not now within the bounds of particular colonies, or that shall not be within their bounds when some of them are reduced to more convenient dimensions.
That they make new settlements on such purchases, by granting lands in the King’s name, reserving a quit-rent to the crown for the use of the general treasury.
laws to govern them
That they make laws for regulating and governing such new settlements till the crown shall think fit to form them into particular governments.
raise soldiers and equip vessels, &c
That they raise and pay soldiers and build forts for the defence of any of the colonies, and equip vessels of force to guard the coasts and protect the trade on the ocean, lakes, or great rivers; but they shall not impress men in any colony without the consent of the legislature.
power to make laws, lay duties, &c
That for these purposes they have power to make laws, and lay and levy such general duties, imposts, or taxes as to them shall appear most equal and just (considering the ability and other circumstances of the inhabitants in the several colonies), and such as may be collected with the least inconvenience to the people; rather discouraging luxury than loading industry with unnecessary burthens.
general treasurer and particular treasurer
That they may appoint a General Treasurer and Particular Treasurer in each government, when necessary; and from time to time may order the sums in the treasuries of each government into the general treasury, or draw on them for special payments, as they find most convenient.
money, how to issue
Yet no money to issue but by joint orders of the President-General and Grand Council; except where sums have been appropriated to particular purposes, and the President-General is previously empowered by an act to draw such sums.
That the general accounts shall be yearly settled and reported to the several Assemblies.
That a quorum of the Grand Council, empowered to act with the President-General, do consist of twenty-five members, among whom there shall be one or more from a majority of the colonies.
laws to be transmitted
That the laws made by them for the purposes aforesaid shall not be repugnant, but, as near as may be, agreeable to the laws of England, and shall be transmitted to the King in Council for approbation as soon as may be after their passing; and if not disappoved within three years after presentation, to remain in force.
death of the president-general
That in case of the death of the President-General, the Speaker of the Grand Council for the time being shall succeed, and be vested with the same powers and authorities, to continue till the King’s pleasure be known.
officers, how appointed
That all military commission officers, whether for land or sea service, to act under this general constitution, shall be nominated by the President-General; but the approbation of the Grand Council is to be obtained before they receive their commissions. And all civil officers are to be nominated by the Grand Council, and to receive the President-General’s approbation before they officiate.
vacancies, how supplied
But in case of vacancy by death or removal of any officer, civil or military, under this constitution, the Governor of the province in which such vacancy happens may appoint, till the pleasure of the President-General and Grand Council can be known.
Each Colony May Defend Itself On Emergency, &c. That the particular military as well as civil establishments in each colony remain in their present state, the general constitution notwithstanding; and that on sudden emergencies any colony may defend itself, and lay the accounts of expense thence arising before the President-General and General Council, who may allow and order payment of the same, as far as they judge such accounts just and reasonable.
The Articles of Confederation
The text reproduced here was adopted by the Continental Congress on July 9, 1778, after nine of the thirteen state legislatures had ratified the document sent to them the previous November. Except for the last paragraph and the signatures, the text is from Merrill Jensen, The Articles of Confederation (Madison: University of Wisconsin Press, 1966), 263–70. The final paragraph and signatures of an otherwise identical text is included because it shows who had ratified by July 9, 1778, and the dates of later state ratifications. The text is taken from Thorpe, Federal and State Constitutions, 9–17.
November 15, 1777
The Articles of Confederation is a straightforward extension, and the natural culmination, of colonial theoretical and institutional development. Until its adoption, even though they had declared independence, Americans were not constitutionally postcolonial. Put another way, the Declaration of Independence and Articles of Confederation together composed the American founding compact, and as of 1781, the United States was for the first time a formal constitutional entity. The Declaration and Articles, however, overlapped in the attention of the Continental Congress, as its members fashioned our initial national compact. The version of the Declaration of Independence we read today, the one with “Unanimous” in its title, was engrossed in August of 1776, and the last signature was added in January of 1777. It then replaced the earlier version from July of 1776 that did not have “unanimous” in its title. The Articles of Confederation, finally approved by the last state legislature in 1781, was adopted by the Continental Congress November 15, 1777, after a long debate that began with the introduction of the first draft on July 12, 1776. The two parts of the first national compact were thus not separated in time but pursued simultaneously. As a substitution for only the Articles, the 1789 Constitution implicitly retained the Declaration of Independence as the first half of our second national compact, a fact that has been ratified by more than two hundred years of our celebrating the Fourth of July as our national founding. This is, then, the last piece in the colonial documentary history leading to the U.S. Constitution. Its status as a compact is revealed and underscored not only by earlier American confederations but also by a content that is in keeping with that found in the many other colonial compacts reproduced in this volume. Viewed together as a national compact, the Declaration and Articles create a people, lay out their common values and goals, create a government, and lay out the institutions for collective decision making—all of the compactual elements present from earliest colonial times. A careful reading of the text indicates that, like the Declaration, the Articles of Confederation assumes both a national people and a collection of state peoples, including the statement of dual citizenship in Article iv that was carried over, as with most of the document, into the U.S. Constitution. Federalism, a fundamental principle of American politics derived from the early colonial documents and inspired by the federal theology these colonists brought with them, is thus a consistent theme in both our national compacts.
Articles of Confederation and Perpetual Union between the states of Newhampshire, Massachusetts-bay, Rhodeisland and Providence Plantations, Connecticut, New-York, New-Jersey, Pennsylvania, Delaware, Maryland, Virginia, North-Carolina, South-Carolina and Georgia.
Article i. The Stile of this confederacy shall be “The United States of America.”
Article ii. Each state retains its sovereignty, freedom, and independence, and every Power, Jurisdiction and right, which is not by this confederation expressly delegated to the United States, in Congress assembled.
Article iii. The said states hereby severally enter into a firm league of friendship with each other, for their common defence, the security of their Liberties, and their mutual and general welfare, binding themselves to assist each other, against all force offered to, or attacks made upon them, or any of them, on account of religion, sovereignty, trade, or any other pretence whatever.
Article iv. The better to secure and perpetuate mutual friendship and intercourse among the people of the different states in this union, the free inhabitants of each of these states, paupers, vagabonds and fugitives from justice excepted, shall be entitled to all privileges and immunities of free citizens in the several states; and the people of each state shall have free ingress and regress to and from any other state, and shall enjoy therein all the privileges of trade and commerce, subject to the same duties, impositions and restrictions as the inhabitants thereof respectively, provided that such restriction shall not extend so far as to prevent the removal of property into any state, to any other state, of which the Owner is an inhabitant; provided also that no imposition, duties or restriction shall be laid by any state, on the property of the united states, or either of them.
If any person guilty of, or charged with treason, felony, or other high misdemeanor in any state, shall flee from Justice, and be found in any of the united states, he shall, upon demand of the Governor or executive power, of the state from which he fled, be delivered up and removed to the state having jurisdiction of his offence.
Full faith and credit shall be given in each of these states to the records, acts and judicial proceedings of the courts and magistrates of every other state.
Article v. For the more convenient management of the general interests of the united states, delegates shall be annually appointed in such manner as the legislature of each state shall direct, to meet in Congress on the first Monday in November, in every year, with a power reserved to each state, to recall its delegates, or any of them, at any time within the year, and to send others in their stead, for the remainder of the Year.
No state shall be represented in Congress by less than two, nor by more than seven Members; and no person shall be capable of being a delegate for more than three years in any term of six years; nor shall any person, being a delegate, be capable of holding any office under the united states, for which he, or another for his benefit receives any salary, fees, or emolument of any kind.
Each state shall maintain its own delegates in a meeting of the states, and while they act as members of the committee of the states.
In determining questions in the united states in Congress assembled, each state shall have one vote.
Freedom of speech and debate in Congress shall not be impeached or questioned in any Court, or place out of Congress, and the members of congress shall be protected in their persons from arrests and imprisonments, during the time of their going to and from, and attendance on congress, except for treason, felony, or breach of the peace.
Article vi. No state, without the Consent of the united states in congress assembled, shall send any embassy to, or receive any embassy from, or enter into any conference, agreement, alliance or treaty with any King prince or state; nor shall any person holding any office of profit or trust under the united states, or any of them, accept any present, emolument, office or title of any kind whatsoever from any king, prince or foreign state; nor shall the united states in congress assembled, or any of them, grant any title of nobility.
No two or more states shall enter into any treaty, confederation or alliance whatever between them, without the consent of the united states in congress assembled, specifying accurately the purposes for which the same is to be entered into, and how long it shall continue.
No state shall lay any imposts or duties, which may interfere with any stipulations in treaties, entered into by the united states in congress assembled, with any king, prince or state, in pursuance of any treaties already proposed by congress, to the courts of France and Spain.
No vessels of war shall be kept up in time of peace by any state, except such number only, as shall be deemed necessary by the united states in congress assembled, for the defence of such state, or its trade; nor shall any body of forces be kept up by any state, in time of peace, except such number only, as in the judgment of the united states, in congress assembled, shall be deemed requisite to garrison the forts necessary for the defense of such state; but every state shall always keep up a well regulated and disciplined militia, sufficiently armed and accoutred, and shall provide and constantly have ready for use, in public stores, a due number of field pieces and tents, and a proper quantity of arms, ammunition and camp equipage.
No state shall engage in any war without the consent of the united states in congress assembled, unless each state be actually invaded by enemies, or shall have received certain advice of a resolution being formed by some nation of Indians to invade such state, and the danger is so imminent as not to admit of a delay till the united states in congress assembled can be consulted; nor shall any state grant commissions to any ships or vessels of war, or letters of marque or reprisal, except it be after a declaration of war by the united states in congress assembled, and then only against the kingdom or state and the subjects thereof, against which war has been declared, and under such regulations as shall be established by the united states in congress assembled, unless such state be infested by pirates, in which case vessels of war may be fitted out for that occasion, and kept so long as the danger shall continue, or until the united states in congress assembled, shall determine otherwise.
Article vii. When land-forces are raised by any state for the common defense, all officers of or under the rank of colonel, shall be appointed by the legislature of each state respectively, by whom such forces shall be raised, or in such manner as such state shall direct, and all vacancies shall be filled up by the State which first made the appointment.
Article viii. All charges of war, and all other expences that shall be incurred for the common defence or general welfare, and allowed by the united states in congress assembled, shall be defrayed out of a common treasury, which shall be supplied by the several states in proportion to the value of all land within each state, granted to or surveyed for any person, as such land and the buildings and improvements thereon shall be estimated according to such mode as the united states in congress assembled, shall from time to time direct and appoint.
The taxes for paying that proportion shall be laid and levied by the authority and direction of the legislatures of the several states within the time agreed upon by the united states in congress assembled.
Article ix. The united states in congress assembled, shall have the sole and exclusive right and power of determining on peace and war, except in the cases mentioned in the sixth article—of sending and receiving ambassadors—entering into treaties and alliances, provided that no treaty of commerce shall be made whereby the legislative power of the respective states shall be restrained from imposing such imposts and duties on foreigners as their own people are subjected to, or from prohibiting the exportation or importation of any species of goods or commodities, whatsoever—of establishing rules for deciding in all cases, what captures on land or water shall be legal, and in what manner prizes taken by land or sea forces in the service of the united states shall be divided or appropriated—of granting letters of marque and reprisal in times of peace—appointing courts for the trial of piracies and felonies committed on the high seas and establishing courts for receiving and determining finally appeals in all cases of captures, provided that no members of congress shall be appointed a judge in any of the said courts.
The united states in congress assembled shall also be the last resort on appeal in all disputes and differences now subsisting or that hereafter may arise between two or more states concerning boundary, jurisdiction or any other cause whatever; which authority shall always be exercised in the manner following. Whenever the legislative or executive authority or lawful agent of any state in controversy with another shall present a petition to congress stating the matter in question and praying for a hearing, notice thereof shall be given by order of congress to the legislative or executive authority of the other state in controversy, and a day assigned for the appearance of the parties by their lawful agents, who shall then be directed to appoint by joint consent, commissioners or judges to constitute a court for hearing and determining the matter in question: but if they cannot agree, congress shall name three persons out of each of the united states, and from the list of such persons each party shall alternately strike out one, the petitioners beginning, until the number shall be reduced to thirteen; and from that number not less than seven, nor more than nine names as congress shall direct, shall in the presence of congress be drawn out by lot, and the persons whose names shall be so drawn or any five of them, shall be commissioners or judges, to hear and finally determine the controversy, so always as a major part of the judges who shall hear the cause shall agree in the determination: and if either party shall neglect to attend at the day appointed, without showing reasons, which congress shall judge sufficient, or being present refuse to strike, the congress shall proceed to nominate three persons out of each state, and the secretary of congress shall strike in behalf of such party absent or refusing; and the judgment and sentence of the court to be appointed, in the manner before prescribed, shall be final and conclusive; and if any of the parties shall refuse to submit to the authority of such court, or to appear or defend their claim or cause, the court shall nevertheless proceed to pronounce sentence, or judgment, which shall in like manner be final and decisive, the judgment or sentence and other proceedings being in either case transmitted to congress, and lodged among the acts of congress for the security of the parties concerned: provided that every commissioner, before he sits in judgment, shall take an oath to be administered by one of the judges of the supreme or superior court of the state, where the case will be tried, “well and truly to hear and determine the matter in question, according to the best of his judgment, without favour, affection or hope of reward”: provided also, that no state shall be deprived of territory for the benefit of the united states.
All controversies concerning the private right of soil claimed under different grants of two or more states, whose jurisdictions as they may respect such lands, and the states which passed such settlement of jurisdiction, shall on the petition of either party to the congress of the united states, be finally determined as near as may be in the same manner as is before prescribed for deciding disputes respecting territorial jurisdiction between different states.
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 standard 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—establishing or regulating post-offices from one state to another, throughout all the united states, and exacting such postage on the papers passing through the same as may be requisite to defray the expenses of the said office—appointing all the officers of the land forces, in the service of the united states, excepting regimental officers—appointing all the officers of the naval forces, and commissioning all officers whatever in the service of the united states—making rules for the government and regulation of the said land and naval forces, and directing their operations.
The united states in congress assembled shall have authority to appoint a committee, to sit in the recess of congress, to be denominated “A Committee of the States,” and to consist of one delegate from each state; and to appoint such other committees and civil officers as may be necessary for managing the general affairs of the united states under their direction—to appoint one of their number to preside, provided that no person be allowed to serve in the office of president more than one year in any term of three years; to ascertain the necessary sums of money to be raised for the service of the united states, and to appropriate and apply the same for defraying the public expences—to borrow money, or emit bills on the credit of the united states, transmitting every half year to the respective states an account of the sums of money so borrowed or emitted,—to build and equip a navy—to agree upon the number of land forces, and to make requisitions from each state for its quota, in proportion to the number of white inhabitants in such state; which requisition shall be binding, and thereupon the legislature of each state shall appoint the regimental officers, raise the men and cloath, arm and equip them in a soldier like manner, at the expence of the united states; and the officers and men so cloathed, armed and equipped shall march to the place appointed, and within the time agreed on by the united states in congress assembled: But if the united states in congress assembled shall, on consideration of circumstances judge proper that any state should not raise men, or should raise a smaller number than its quota, and that any other state should raise a greater number of men than the quota thereof, such extra men shall be raised, officered, cloathed, armed and equipped in the same manner as the quota of such state, unless the legislature of such state shall judge that such extra number cannot be safely spared out of the same, in which case they shall raise officer, cloath, arm and equip as many of such extra number as they judge can be safely spared. And the officers and men so cloathed, armed and equipped, shall march to the place appointed, and within the time agreed on by the united states in congress assembled.
The united states in congress assembled shall never engage in a war, nor grant letters of marque and reprisal in time of peace, nor enter into any treaties or alliances, nor coin money, nor regulate the value thereof, nor ascertain the sums and expences necessary for the defense and welfare of the united states, or any of them, nor emit bills, nor borrow money on the credit of the united states, nor appropriate money, nor agree upon the number of vessels of war, to be built or purchased, or the number of land or sea forces to be raised, nor appoint a commander in chief of the army or navy, unless nine states assent to the same: nor shall a question on any other point, except for adjourning from day to day be determined, unless by a majority of the united states in congress assembled.
The congress of the united states shall have power to adjourn at any time within the year, and to any place within the united states, so that no period of adjustment be for a longer duration than the space of six Months, and shall publish the Journal of their proceedings monthly, except such parts thereof relating to treaties, alliances or military operations, as in their judgment require secrecy; and the yeas and nays of the delegates of each state on any question shall be entered on the Journal, when it is desired by any delegate; and the delegates of a state, or any of them, at his or their request shall be furnished with a transcript of the said Journal, except such parts as are above excepted, to lay before the legislatures of the several states.
Article x. The Committee of the states, or any nine of them, shall be authorized to execute, in the recess of Congress, such of the powers of Congress as the united states in Congress assembled, by the consent of nine states, shall from time to time think expedient to vest them with; provided that no power be delegated to said committee, for the exercise of which, by the Articles of Confederation, the voices of nine states in the Congress of the united states assembled is requisite.
Article xi. Canada acceding to this confederation, and joining in the measures of the united states, shall be admitted into, and entitled to all the advantages of this union: but no other colony shall be admitted into the same, unless such admission be agreed to by nine states.
Article xii. All bills of credit emitted, monies borrowed and debts contracted by, or under the authority of congress, before the assembling of the united states, in pursuance of the present confederation, shall be deemed and considered as a charge against the united states, for payment and satisfaction whereof the said united states, and the public faith are hereby solemnly pledged.
Article xiii. Every state shall abide by the determinations of the united states in congress assembled, on all questions which by this confederation are submitted to them. And the Articles of this confederation shall be inviolably observed by every state, and the union shall be perpetual; nor shall any alteration at any time hereafter be made in any of them; unless such alteration be agreed to in a congress of the united states, and be afterwards confirmed by the legislature of every state.
And Whereas it hath pleased the Great Governor of the World to incline the hearts of the legislatures we respectively represent in congress, to approve of, and to authorize us to ratify the said articles of confederation and perpetual union. Know Ye that we the undersigned delegates, by virtue of the power and authority to us given for that purpose, do by these presents, in the name and in behalf of our respective constituents, fully and entirely ratify and confirm each and every of the said articles of confederation and perpetual union, and all and singular the matters and things therein contained: And we do further solemnly plight and engage the faith of our respective constituents, that they shall abide by the determinations of the united states in congress assembled, on all questions, which by the said confederation are submitted to them. And that the articles thereof shall be inviolably observed by the states we respectively represent, and that the union shall be perpetual. In Witness wherof we have hereunto set our hands in Congress. Done at Philadelphia in the state of Pennsylvania the ninth day of July, in the Year of our Lord one Thousand seven Hundred and Seventy-eight, and in the third year of the independence of America.
Appendix: Unadopted Colonial Plans of Union
Even though there were no successful plans for uniting the colonies prior to the Revolution, there was no shortage of proposals. Even a partial listing of proposals would have to include the Royal Commission to Governor Andros to unite all of New England, New York, and the Jerseys, 1688; William Penn’s Plan of Union, 1697; D’Avenant Plan, 1698; A Viginian’s Plan, in “An Essay on the Government of the English Plantations on the Continent of America,” 1701; Livingston Plan, 1701; Earl of Stair’s Proposal, 1721; Plan of the Lords of Trade, 1721; Daniel Cox’s Plan, in “A Description of the English province of Carolina,” 1722; Kennedy Plan, 1751; Albany Plan of Union, 1754; Richard Peter’s Plan, 1754; Hutchinson’s Plan, 1754; Plan of the Lords of Trade, 1754; Dr. Samuel Johnson’s Plan, 1760; and the Galloway Plan, 1774. Two of these proposals are of particular interest and are reproduced here.
William Penn’s Plan, sent unsolicited to the Board of Trade in London, was the first comprehensive proposal for unifying all the colonies. Although quite simple, and too general, Penn’s Plan is surprisingly similar in intent, structure, and powers to the 1754 Albany Plan of Union.
Joseph Galloway was a Loyalist who tried to resolve the “no taxation without representation” problem by proposing a union of the colonies under a confederation parliament. If his plan had been accepted in Britain, the Revolution might well have been averted, and America would have started down a road very similar to the one used by Canada to achieve gradual independence as a federal parliamentary system. Ironically, if one ignores the crown-appointed executive, Galloway’s Plan would have created a system quite similar to that made by the Articles of Confederation, which is an indication of the extent to which the Articles reflected general American preferences for a national government as well as the extent to which even most Tories agreed with this general American perspective.
Although neither proposal was adopted, and therefore neither meets the criteria for formal inclusion in this collection, William Penn’s Plan of Union and Joseph Galloway’s Plan of Union are reproduced to illustrate the long-standing consistency in the thinking about how to design a national government and thus place the Albany Plan of Union and Articles of Confederation in a more meaningful documentary context. All of our major political documents—from the Declaration of Independence and Articles of Confederation to the U.S. Constitution and the Bill of Rights—were rehearsed in colonial precursors with which they share form, content, and underlying political principles.
[William Penn’s Plan of Union]
The calendar in use during the seventeenth century designated February as the twelfth month of the year, so this document is often reproduced with the date as “1696.” The text is reproduced from Marianne S. Wokeck et al., eds., The Papers of William Penn: Volume Three, 1685–1700 (Philadelphia: University of Pennsylvania Press, 1986), 482–83.
February 8, 1697
Penn’s Plan lists only nine colonies, but these nine encompass the existing settled seaboard. As of 1697 New Hampshire is claimed by Massachusetts, (here identified idiosyncratically as “Boston”); Delaware is included as one of “the Jerseys” (so implicitly there are ten colonies); Carolina has not yet been differentiated into north and south, and Georgia is not yet chartered. The emphasis in this proposal is on resolving intercolonial disputes.
a briefe and plaine scheam
How the English Colonies in the North parts of America Viz: Boston, Connecticut, Road Island, New York, New Jerseys, Pensilvania, Maryland, Virginia and Carolina may be made more usefull to the Crowne, and one anothers peace and safty with an universall concurrence.
1st. That the severall Collonies before mentioned, do meet once a year, and oftener if need be, dureing the Warr, and at least once in two yeares in times of Peace, by their Stated and Appointed Deputies, to Debate and Resolve if such Measures, as are most adviseable for their better understanding, and their Public Tranquility and Safety.
2dly That in Order to [effect] it two persons, well Qualified, for Sence Sobriety and Substance, be appointed by each Province, as their Representatives or Deputies; which in the whole make the Congresse to Consist of Twenty persons.
3dly That the Kings Commander, for that purpose specially appointed, shall have the Chaire, and Preside in the said Congresse.
4thly That they shall meet as neer as Conveniently may be, to the most Centrall Colony for ease of the Deputies.
5thly Since that may, in all Probability, be New Yorke, both because it is neer the Center of the Collonys, and for that it is a Fronteir, and in the Kings Nomination, the Governour of that Colony may therefore also be the Kings high Commander during the Session, after the manner of Scotland.
6thly That their businesse shall be [to] hear and Adjust all matters of Complaint or difference Between Province and Province; as 1st where Persons quit their own province and go to another, that they may avoid their Just debts. Tho’ able to Pay them. 2dly where Offenders fly Justice, or Justice cannot well be had upon such offenders in the Provinces that entertaine them. 3dly to prevent or cure Injuries in point of Commerce. 4thly To consider of wayes and meanes to support the Union and safety of these Provinces against the Publick Enemies; In which Congress the Quota’s of Men and Charges will be much easier, and more equally sett, then it is Possible for any Establishment made here to do: for the Provinces knowing their own Condition and one anothers, can debate that matter with more freedome and satisfaction, and better adjust and ballance their affaires in all respects for their Common safety.
7thly That in times of War the Kings high Commander shall be Genll or Cheife Commander of the severall Quota’s upon service against the Common Enemy, as he shall be advised, for the good and benefitt of the whole.
[Joseph Galloway’s Plan of Union]
The abbreviated text is taken from W. C. Ford et al., eds., Journals of the Continental Congress, 1774–1789, vol. 1 (Washington, D.C., 1904), 49–51.
Even though it was never ratified by the colonial legislatures, the Albany Plan of Union, adopted by the Albany Congress in 1754, continued to influence the thinking of American nationalists. In Galloway’s Plan, as in the Albany Plan of Union, the appointed executive is termed a “President General” and the legislature is termed a “Grand Council.” The Grand Council is to meet at least once a year, and its members serve three-year terms. Indeed, if one excludes the provisions dealing with the President General, Galloway’s Plan is more or less adopted as the core of the Articles of Confederation—often word for word. The Galloway Plan lists the colonies in the same order as do the Albany Plan of Union and the Articles of Confederation but leaves blank the number of representatives allocated to each. The Articles, however, will use the same range of representation as the Albany Plan, between two and seven representatives, and comprise the same total number of representatives—forty-eight. The pedigree of the Articles of Confederation in Galloway’s Plan and Galloway’s Plan in the Albany Plan of Union will be clear to any careful reader. Most interesting is that even though Tories like Galloway did not want to break with Britain, they still supported the right of Americans to their own representative bodies. Galloway’s Plan would have created what he calls “a British and American legislature” by construing the American legislature as “an inferior and distinct branch of the British legislature” that would nevertheless “hold and exercise all the like rights, liberties, and privileges, as are held and exercised by and in the House of Commons of Great-Britain.” This exceedingly clever structure would have thus made the American Grand Council a part of the British Parliament, inferior to the British part of Parliament in theory but in fact fully capable of making policy for the colonies. The legislature of each colony, in turn, would be free to make policy on matters not delegated to the Grand Council. The differences between Galloway’s Plan and the Articles of Confederation served to make the latter too weak and ineffective. In sum, Galloway’s federal structure might well have been the precise formulation that would have kept America in the British Empire, at least for a while longer, and created a national government strong enough to preclude the need for the Constitution of 1787. The Continental Congress chose to largely adopt, but weaken, Galloway’s proposal. Still, his Plan stands as an important document in the colonial background to the U.S. Constitution.
A Plan of a proposed Union between Great Britain and the Colonies
That a British and American legislature, for regulating the administration of the general affairs of America, be proposed and established in America, including all the said colonies; within, and under which government, each colony shall retain its present constitution, and powers of regulating and governing its own internal police, in all cases what[so]ever.
That the said government be administered by a President General, to be appointed by the King, and a grand Council, to be chosen by the Representatives of the people of the several colonies, in their respective assemblies, once in every three years.
That the several assemblies shall choose members for the grand council in the following proportions, viz.
Who shall meet at the city of [ ] for the first time, being called by the President-General, as soon as conveniently may be after his appointment.
That there shall be a new election of members for the Grand Council every three years; and on death, removal or resignation of any member, his place shall be supplied by a new choice, at the next sitting of the Assembly of the Colony he represented.
That the Grand Council shall meet once in every year, if they shall think it necessary, and oftener, if occasions shall require, at such time and place as they shall adjourn to, at the last preceding meeting, or as they shall be called to meet at, by the President-General, on any emergency.
That the Grand Council shall have power to choose their Speaker, and shall hold and exercise all the rights, liberties and privileges, as are held and exercised by and in the House of Commons of Great-Britain.
That the President-General shall hold his office during the pleasure of the King, and his assent shall be requisite to all acts of the Grand Council, and it shall be his office and duty to cause them to be carried into execution.
That the President-General, by and with the advice and consent of the Grand-Council, hold and exercise all the legislative rights, powers, and authorities, necessary for regulating and administering all the general police and affairs of the colonies, in which Great-Britain and the colonies, or any of them, the colonies in general, or more than one colony, are in any manner concerned, as well civil and criminal as commercial.
That the said President-General and the Grand Council, be an inferior and distinct branch of the British legislature, united and incorporated with it, for the aforesaid general purposes ...
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