On July 4, 1776, the Second Continental Congress declared America’s Independence from the British Empire. Approximately five years later, on March 1, 1781, Congress recorded Maryland’s procrastinated ratification of the Articles of Confederation and concomitantly gave them legal effect. The Articles of Confederation are generally regarded as America’s first Constitution, though in many respects they were, and have often been described as, little more than an international alliance or treaty, or as they were self-styled under Article III, a “firm league of friendship.” However, between July 4, 1776, and March 1, 1781, the thirteen United States of America had no confederated or federative constitution, or at least, not as a written, single-source document expressing the fundamental law.
The powers established and conveyed by the United States Constitution are carefully enumerated, expressly granted, and deliberately distributed among the three branches of the federal government. Under Article I, section 8, Congress has the power to, among other things, impose taxes, borrow money, declare war, grant letters of marque, raise Armies, and establish (provide) a Navy. The implied powers, too, originate in an express grant pursuant to the necessary and proper clause.
Under Article II, section 2, the President is the “Commander-in-Chief of the Army and Navy,” and he is empowered, among other things, to “nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law.”
Consistent with Article III, section 2, the federal judiciary has the designated authority to adjudicate upon admiralty, treason, and all other cases “in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority.”
Additionally, under the U.S. Constitution, federal powers are limited and proscribed. Pursuant to Article I, section 9, for example, Congress is prohibited from granting titles of nobility, passing bills of attainder, taxing exports, and is strictly limited in its ability to suspend habeas corpus. The Bill of Rights provides additional protection as it explicitly restricts government authority and gives American citizens a full complement of civic rights that Congress may not violate.
The Articles of Confederation organized powers differently, but those powers were, nevertheless, specified and delineated. Article IX explicitly recognized that “The United States in Congress assembled, shall have the sole and exclusive right and power of determining on peace and war,” with exceptions particularized under Article VI. Article IX also gave Congress the power to borrow money, conduct diplomacy, raise troops (through state quotas), establish a Navy, and grant letters of marque and reprisal, all of which was to be done “by the votes of the majority of the United States in Congress assembled.”
Articles VI, VII, and VIII identified and enumerated numerous additional congressional powers. Because the authority of the Confederation Congress did not reach or govern individual citizens directly, a confederated bill of rights was unnecessary and was therefore not a feature of the Articles of Confederation.
In sharp contrast, there was no authoritative, enumerated constitutional power of any kind explicitly granted to the Continental Congress. Yet there is no doubt that in prosecuting the War of Independence and in governing the United States, Congress raised, regulated, and controlled an Army and a Navy, borrowed money, issued currency, established admiralty courts, perpetrated takings, appointed officers, ambassadors, and ministers, formed alliances, negotiated treaties, and granted letters of marque and reprisal.In sum, the Continental Congress routinely exercised broad, sweeping, encroaching, and excessive powers for which it had no explicit grant of authority from either the colonies or the states under a written constitution.
First Continental Congress: Credentials of the Delegates
Consistent with the credentials of its members and the inherent corollariesof deliberative bodies, the First Continental Congress had a general authority to resolve and recommend, though because it was an advisory and not a law-making body, it had no legislative authority to bind, obligate, or coerce the colonies or their citizens into compliance with any of its measures. Correspondingly, it had no delegated or original war power, or, famously, no power of taxation, and an abbreviated examination of the respective credentials of the delegates will immediately reveal and affirm the restricted nature of their commission.
Connecticut’s delegates, for example, were empowered by their House of Representatives to “consult and advise on proper measures for advancing the best good of the Colonies, and such conferences, from time to time, to report to this house.” Similarly, the delegates of New Hampshire arrived in Philadelphia “to devise, consult, and adopt measures, as may have the most likely tendency to extricate the Colonies from their present difficulties . . . and to restore that peace, harmony and mutual confidence which once happily subsisted between the parent country and her Colonies.” Virginia’s delegates were sent to Philadelphia supported by strong language, though with the stated purpose “to procure redress for the much injured province of Massachusetts-Bay, to secure British America from the ravage and ruin of arbitrary taxes, and speedily as possible to procure the return of that harmony and Union, so beneficial to the whole empire, and so ardently desired by all British America.” Notably, no colony credentialed its representatives to either assume the powers of a sovereign constitutional government or to separate from Great Britain.
Indeed, the most celebrated initiative of the First Continental Congress, the Articles of Association, was a voluntary trade embargo. Its text explicitly acknowledged that colonial citizens remained “his majesty’s most loyal subjects” and that the Association itself operated and was administered under the penalty of social and commercial ostracism, not under penalty of law. The text concluded, in fact, by “recommending” that the several colonies establish whatever regulations would, in their judgment, render the embargo most effective. The Association, therefore, would proceed according to law only if the colonies themselves, in a separate and independent capacity, legislated in support of it. And after issuing the Articles of Association on the 20th of October 1774, Congress continued its deliberations until the 26th, when it concluded its business and adjourned.
Second Continental Congress: Credentials of the Delegates
The Second Continental Congress began its proceedings on May 10, 1775, and by this date, tensions between Great Britain and the colonies had escalated into armed hostility. Nevertheless, the delegates met with essentially the same purposes and powers, as, once again, expressed by their credentials. Massachusetts, for example, sent its delegates to “direct and order such farther measures, as shall to them appear to be best calculated for the recovery and establishment of American rights and Liberties, and for restoring harmony between Great Britain and the Colonies.” Connecticut repeated its intent to “consult and advise with the Delegates of the other Colonies in British America on proper Measures for advancing the best Good of the Colonies,” and New Jersey was even more minimalist in the powers it granted, as it simply authorized its delegates to “attend the Continental Congress of the Colonies.” Pennsylvania, too, merely authorized its delegates to “attend the General Congress.”
Maryland appointed its delegates to the Second Continental Congress with potentially more unifying language, as its representatives were given “full and ample power to consent and agree to all measures, which such Congress shall deem necessary and effective to obtain a redress of American grievances; and this Province bind themselves, to execute, to the utmost of their power, all resolutions which the said Congress may adopt.”
Nevertheless, the colonies had not yet asserted independence, were still subordinate to the British Crown and Parliament, and the credentials of their delegates did not jointly authorize, instruct, or allow them to assume the powers of a sovereign, constitutional government. It is, therefore, altogether impossible to interpret them as establishing fundamental law and the basis upon which Congress was entitled to legislate and wage war in any capacity. Yet despite the constraints which were deliberately imposed on its delegates and under which they operated, and despite the complete absence of a written instrument by which to judge and measure their lawful powers, the Second Continental Congress would soon exercise the full authority of constitutional supremacy.
By July 4, 1776, the colonies had instructed their delegates to vote for independence, which effectively rescinded their original credentials. Additionally, the essential nature of the Continental Congress was necessarily and definitively altered by independence, as it became a Congress of sovereign and independent states, not dependent colonies. The bare fact of independence, however, neither conferred increased powers on Congress nor reconstituted it as either a Parliament or National Assembly, and the states continued to protect their political autonomy tenaciously.
The renowned Halifax Resolves, for example, firmly announced that in addition to directing its delegates to vote for independence, North Carolina was “resolving to this Colony the Sole, and Exclusive right of forming a Constitution and Laws for this Colony.” Maryland, like most other colonies, explicitly asserted an identical political prerogative when, on June 28, 1776, it announced its representatives were “authorized and empowered to concur with the other United Colonies, or a Majority of them, in declaring the United Colonies free and independent States . . . Provided, the sole and exclusive rights of regulating the internal government and police of this colony be reserved to the people thereof.” And as of July 4, each state, apart from Rhode Island, either already had adopted or was in the process of adopting a separate and distinct constitution for itself.
Because the Continental Congress could assert no enumerated legislative authority either before or after independence, and because it could claim no original or delegated sovereignty after independence, each act of national governance it executed was, objectively speaking, an arrogation. When, therefore, the Second Continental Congress nominated George Washington as the “General and Commander in chief, of the army of the United Colonies” and vested him with “full power and authority to act as you shall think for the good and welfare of the service,” it asserted a constitutional authority it had never been given. And when Congress, for example, obtained a foreign loan or entered an international treaty of alliance, again, it asserted constitutional privileges it did not possess.
Episodes such as these, and innumerable additional instances of the Continental Congress exercising unenumerated constitutional powers, are amply recorded in the Journals of the Continental Congress. The political cause for which Congress acted is typically understood to be just, and the urgent necessity of its conduct logically assumed, but on what constitutionalbasis the Congress acted is a separate question, and it came before the Supreme Court in 1795 in the case of Penhallow v. Doan’s Administrator’s.
Penhallow v. Doane’s Administrators
The Second Continental Congress directed a war and governed thirteen sovereign states for five years without a written constitution. And if the acts and behavior of the Continental Congress were to be constitutionally redeemed as something more meaningful, idealized, and consequential than a series of preemptions and usurpations, Penhallow presented the Court with an opportunity to accomplish the purpose.
The case was decided directly upon the jurisdictional point of whether the state courts or the Admiralty Courts of Appeal established by the Continental Congress had final jurisdiction in prize cases. By implication, the attendant and equally substantive constitutional issue concerned the full powers of the Continental Congress. Justice Paterson wrote:
The question first in order, is, whether the Commissioners of Appeals had jurisdiction, or, in other words, whether Congress, before the ratification of the articles of confederation had authority to institute such a tribunal, with appellate jurisdiction in cases of prize?
Much has been said respecting the powers of Congress . . . The powers of Congress were revolutionary in their nature, arising out of events, adequate to every national emergency, and co-extensive with the object to be attained. Congress was the general, supreme, and controlling council of the nation, the center of union, the, center of force, and the sun of the political system. To determine what their powers were, we must enquire what powers they exercised. Congress raised armies, fitted out a navy, and prescribed rules for their government: Congress conducted all military operations both by land and sea: Congress emitted bills of credit, received and sent ambassadors, and made treaties: Congress commissioned privateers to cruise against the enemy, directed what vessels should be liable to capture, and prescribed rules for the distribution of prizes. These high acts of sovereignty were submitted to, acquiesced in, and approved of, by the people of America. In Congress were vested, because by Congress were exercised with the approbation of the people, the rights and powers of war and peace. In every government whether it consists of many states, or of a few, or whether it be of a federal or consolidated nature, there must be a supreme power or will . . . If it be asked, in whom, during our revolution war, was lodged, and by whom was exercised this supreme authority? No one will hesitate for an answer. It was lodged in, and exercised by, Congress; it was there, or nowhere.
Justice Paterson, then, effectively and emphatically constitutionalized the conduct of the Continental Congress, and Justice Iredell joined him in a separate opinion:
The powers of Congress at first were indeed little more than advisory; but, in proportion as the danger increased, their powers were gradually enlarged, either by express grant, or by implication arising from a kind of indefinite authority, suited to the unknown exigencies that might arise. That an undefined authority is dangerous, and ought to be entrusted as cautiously as possible, every man must admit, and none could take more pains, than Congress for a long time did, to get their authority regularly defined by a ratification of the articles of confederation. But that previously thereto they did exercise, with the acquiescence of the States, high powers of what I may, perhaps, with propriety for distinction, call external sovereignty, is unquestionable. Among numerous instances that might be given of this, (and which were recited very minutely at the bar) were the treaties of Francein 1778, which no friend to his country at the time questioned in point of authority, nor has been capable of reflecting upon since without gratitude and satisfaction.
The Congress, and the Revolution, were, therefore, fully corroborated and confirmed on constitutional as well as political grounds. This is not to say that Penhallow didn’t reveal logical inconsistencies and practical contradictions because the decision did, in fact, do just that. Nevertheless, that was subordinated to the essential and more critical point that the conduct of America’s revolutionary statesmen rested on a firm constitutional foundation.
Penhallow,however, does indeed leave a curious jurisprudential legacy. By constitutionalizing the acts of the Continental Congress according to the powers it exercised, it acknowledged that the American Revolutionary Government was, between 1776 and 1781, operating under an unwritten constitution, vested with undefined, unlimited powers and legislative sovereignty coincident to the British Constitution against which they were revolting. Accordingly, under the constitutional doctrine advanced by Penhallow,America’s First Constitution was not the Articles of Confederation but the unwritten Constitution which governed the union and was the source of sovereign authority the Continental Congress acted upon until the Articles were adopted.