The revolutionary portfolio: constitution-making and the wider world in the American Revolution.

Author:Hulsebosch, Daniel J.
Position::II. The States Together, and in the World through Conclusion, with footnotes, p. 790-822

    The other documents in the revolutionary portfolio targeted foreign audiences even more directly than the state constitutions and were modeled, to one degree or another, on precedents within the law of nations. (150) David Armitage has reminded Americans that the purpose of the Declaration of Independence was to notify external audiences that the states had, collectively, decided to seek independent existence outside the British Empire and claim the rights of belligerent nations under the law of nations. (151) It says as much. (152) Historians have identified various generic precedents for the Declaration--such as a grievance petition, an indictment, a bill of particulars, or a bill in equity. (153) All of these forms no doubt contributed, but the Declaration also mapped closely onto an international form well known to eighteenth-century British Americans: a declaration of war. (154) The colonists had read many declarations of war over the eighteenth century. Declarations of war publicized a list of grievances perpetrated by the enemy (as just wars were supposed to be defensive wars), recounted the travails and patience of the declaring state, and notified the rest of the world of the change of the state's status from peaceful neutral to active belligerent. (155) As such, the Declaration of Independence was also a direct retort to the King's Proclamation of Rebellion of August 1775, which accused the colonists of "traitorous conspiracies" in violation of civil law. (156) In response to George Ill's characterization of the conflict as a domestic insurrection that activated martial law, Congress declared it to be an international conflict--thus activating the laws of war and neutrality.

    "[A] decent respect to the opinions of mankind," read the first sentence in the Declaration, "requires that they should declare the causes which impel them to the separation." (157) It ended with the claim "that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do." (158) It explained the reasons why the colonies had transformed a rebellion into a civil war and requested recognition, along with assistance, from European powers. (159) Of course it was a special kind of declaration of war, declaring that a civil war was now an international war. The Declaration thereby inaugurated, as Armitage has observed, a new genre within the law of nations and became a template for future colonial revolutionaries. (160)

    The Declaration of Independence was nonetheless supposed to function like a traditional declaration of war. A published declaration of war was necessary, Vattel counseled in the middle of the eighteenth century, for the benefit of humanity and for a belligerent's own subjects, not least because it signaled to the enemy one last chance for peace in hopes that it could be brought to reason. (161) Declarations activated the laws of war and neutrality, and they might call into play preexisting treaty guarantees. (162) In a declared war, some neutral trade (commerce in contraband or running a blockade for example) could be seized by the belligerents. Also, some forms of assistance to one side, like permitting naval or privateering ships to fit out in a neutral port, arguably amounted to imperfect neutrality and ran the risk of expanding the war. Similarly, a neutral might decide to ally with one side and become a belligerent. (163) Thus, a declaration of war presented all these options to neighboring nations, which is what the Continental Congress meant to do in the summer of 1776. (164) Congress quickly sent a copy to its secret agent in France, Silas Deane, and instructed him to present it to Louis XVI and "the other Courts of Europe," and to publish a French translation in the newspapers. (165)

    There was no constituted power, however, that could negotiate a treaty on behalf of the revolutionary states as a group. Like the revolutionary conventions, assemblies, and committees, the Continental Congress lacked a legitimate foundation or defined powers. (166) If the colonies had to institute formal governments, so did the Congress. Hence, there was a need for a formal confederacy, or what Thomas Paine called: "a CONTINENTAL CHARTER, Or Charter of the United Colonies ... (Always remembering, that our strength is continental, not provincial.)" (167) Congress established a committee to draft the Articles of Confederation on the same day that it appointed committees to draft the Declaration and the Model Treaty. It began debating the draft Articles of Confederation in the late summer of 1776 and, after more than a year of debate, sent the final version to the states in the fall of 1777 for ratification, emphasizing in its circular:

    More than any other consideration, it will confound our foreign enemies, defeat the flagitious practices of the disaffected, strengthen and confirm our friends, support our public credit, restore the value of our money, enable us to maintain our fleets and armies, and add weight and respect to our councils at home, and to our treaties abroad. (168) Because, like all confederacies, it was in the form of a multilateral treaty, it required ratification--unanimous ratification under its own terms. (169) Most states approved the Articles of Confederation during the following year; however, Maryland held out for three and a half years, until March 1781. (170) Consequently, for most of the war there was no formal confederation among the states, only the informal Continental Congress. Once again, however, practice outran formalism, as Congress functioned as the designated representative of the thirteen states.

    In early modern political thought, the theory behind a confederation was that it facilitated relations among the confederated states and conducted foreign relations, or what John Locke called the "federative power[s]," for all of them. (171) Constituent states delegated specified foreign affairs powers to the confederation government, but they remained otherwise independent and sovereign. (172) The precise delegations varied, and each arrangement contained ambiguities that often ripened into disagreements. But the basic form was familiar: "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." (173) Though the Continental Congress had some legislative powers, some executive power, and even some judicial power, it was not precisely an executive, legislative, or judicial body. (174) Rather, it was a federative body, with all the ambiguity that this entailed.

    Americans, therefore, consciously built on a European tradition of designing interstate confederations to coordinate commerce and collective security. The tradition's literature, if not every political project carried out in its name, was premised on the vision of perpetual peace. (175) Americans riffled through literature that was central to eighteenth-century European political thought and believed they were adding to it. Their self-described "league of friendship" was predominantly, though not simply, a practical tool for their own coordination; it also offered an example from which Europeans might learn, which is precisely how many Europeans read the confederation. (176) Richard Price trumpeted the American Confederation as an example for the world, especially for Europe. Americans had made progress, Price wrote as the war ended, in showing that a governmental body could arbitrate disputes between "any number of confederate States." (177) They had waged a war successfully,

    but more important to Price, they had established a structure that seemed to ensure that no war would break out among themselves. (178) The Confederation therefore offered an example of how "universal peace may be produced, and all war excluded from the world." (179) The form was crucial because the Confederation evoked the European dream of overcoming war on their own continent. (180)

    Similarly, Congress designed the Model Treaty as a template for liberal commercial relations with European nations. (181) Liberal, at the time, did not mean free trade, but rather, freer trade than was allowed by the jealous regulations of the European empires. These regulations ranged from discriminatory tariffs and tonnage rates to navigation acts restricting the right to carry goods into a nation's ports in the metropole and its colonies, as well as outright trade prohibitions. One mechanism for driving down trade restrictions was the most favored nation clause, which was increasingly included in commercial treaties. The Americans put one in the Model Treaty. (182) In addition to liberalizing peacetime trade, the Model Treaty also protected neutral shipping as much as possible during war. (183) Here, the key idea was incorporated into the Model Treaty by the free ships, free goods clause: In times of war, carriers hailing from neutral nations could ship anyone's goods anywhere, except through actual (rather than paper) blockades, and also excepting trade in contraband, which the Model Treaty defined strictly. (184) The goal was to reduce trade monopolies in peace and limit impediments to commerce during war. (185)

    These liberal treaty provisions signaled the growing belief, or at least the aspirational ideal, that reciprocal trade could be the source of national wealth and power rather than a zero-sum game that threatened to weaken the nation. In other words, there could be mutual rather than unilateral gains from trade. Free trade and the doctrine of neutrality in wartime were not just ideologies of weak states such as the Netherlands and the struggling United States, despite the fact that weaker states might gravitate more naturally to such positions...

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