For a short while between the Articles of Confederation and the ratification of the Constitution, the States of NC and RI were fully independent.
The ratification of New Hampshire had set in motion the machinery that would activate the Constitution in March 1789. The subsequent ratifications of Virginia and New York carried little impact for our purposes here, since the new government under the Constitution would not be elected until the winter of 1788-9 and would not sit until March 1789. The cases of North Carolina and Rhode Island, however, merit some attention. North Carolina’s Convention had considered the Constitution, and declined to ratify it by a margin of 183-83.13 In March 1788, the voters of Rhode Island had voted overwhelmingly against even holding a State Convention to consider the new Constitution.14
Meanwhile, the old Union ground slowly to a halt. The Continental Congress died in a manner similar to a boring dinner party. After enacting ordinances for the transition to the new government under the Constitution, the members slowly drifted away. The last official business was transacted on October 10th, 1788.15 Thereafter, a quorum was not present. November 3rd was the last date on which a North Carolina representative was present, and February 12th, 1789 was the last time a Rhode Island representative sat.16
The new Congress under the Constitution had been directed to assemble on March 4th, but it wasn’t until April 1st that a quorum was present. President Washington did not turn up for his inauguration until April 30th.17 During this time, it would seem that North Carolina and Rhode Island were on their own, as independent states. Their votes are not counted in the electoral college of 1788. They elected no representatives to the new bicameral Congress.
The correspondence from the period supports this interpretation. A letter from Edenton North Carolina to the editor of the North Carolina State Gazette dated May 4th 1789, stated “Though we are not in the union, we are not the less attentive to all the proceedings of Congress. Some of the regulations proposed in the new revenue bill might be of use to the commerce of this State if we formed part of the Union; as matters are circumstanced, they must injure us greatly.”18 On May 10th, 1789, the Governor and State Council of North Carolina sent President Washington a congratulatory letter after his inauguration. In the letter, Governor Johnston wrote, “though this State be not yet a member of the Union under the new Form of Government, we look forward with the pleasing hope of its shortly becoming such.”19
Washington responded in kind. Since the North Carolina legislature had just called for a second state convention to consider the Constitution, President Washington wrote to Gov. Johnston, “I most earnestly implore the divine benediction and guidance in the Counsels, which are shortly to be taken by their Delegates on the subject of the most momentous consequence, I mean the political relation which is to subsist hereafter between the State of North Carolina and the States now in union under the new general government.”20 Obviously, Washington and Gov. Johnston both considered that North Carolina was not in the Union prior to ratification.
As for Rhode Island, Washington’s correspondence also shows that he considered the little state to be out of the Union. In a letter to Gouvernor Morris in October 1789, Washington wrote, “it is hoped … that the non-acceding States will very soon become members of the Union. No doubt is entertained of North Carolina; nor would there be any of Rhode Island, had not the majority of those people bid adieu, long since, to every principle of honor, common sense, and honesty.”21 Obviously, Washington saw Rhode Island as being out of the Union in October 1789, although he did not care much for the conduct of the people of that state.
John Collins, the Governor of Rhode Island also wrote to Washington in September 1789 that “although they (the people of the state of Rhode Island) now stand as it were alone, they have not separated themselves or departed from the principles of that confederation, which was formed by the sister States in their struggle for freedom, and in the hour of danger.” Further, Collins wrote, “we earnestly look for the time, when they may with clearness and safety be again united with their sister States.” Rhode Island, Collins believed, may yet hold a state convention to consider the Constitution and join the Union. In the meantime, Collins hoped, “we are induced to hope, that we shall not be altogether considered as foreigners, having no particular affinity or connexion with the United States; but that trade and commerce, upon which the prosperity of this State much depends, will be preserved as free and open between this and the United States, as our different situations at present can possibly admit.”22 Thus, like North Carolina, both Washington and the governor proceeded on the assumption that Rhode Island was no longer in the Union.
The status of the North Carolina and Rhode Island is also confirmed in statutes passed in the first Congress. The Federal Judiciary Act of 1789 established Federal courts subordinate to the Supreme Court of the United States in thirteen districts, one per each of the eleven states at that time, except Virginia and Massachusetts, which had two judicial districts (one each for Maine and Kentucky).23 In other words, the Judiciary Act of 1789 did not apply to the outliers, North Carolina and Rhode Island. Once the outliers joined the Union, the Judiciary Act had to be amended to create a judicial district for them. This was done for North Carolina, and Rhode Island in June 1790.24
Ultimately, more significant, both in its effects on the states in the Union and without, and more influential in getting the outliers to join, were the series of laws regulating trade. On July 20th, 1789, Congress set the Federal tonnage duty, which charged American-made, American-owned ships at 5 cents per ton American-made but foreign owned ships a duty of 30 cents per ton, and foreign-made, foreign-owned ships 50 cents per ton.25 This tax was to take effect on September 1st, 1789, and no exception was initially made for ships owned by citizens of Rhode Island and North Carolina. If these states were somehow in the Union, this law would have been unconstitutional. On September 16th, however, Congress extended to citizens of North Carolina and Rhode Island the same privileges as American citizens, at least until January 15th, 1790.26
On July 31st, 1789, Congress passed “An Act to Regulate the Collection of Duties.” This law defined the ports of entry into the United States, established the customs duties, and the procedures for their collection. Goods imported into the United States through Rhode Island and North Carolina were taxed as if they were imported directly from overseas. “Goods, wares and merchandise” made in Rhode Island and North Carolina were exempt from duty, as if these two states were in the Union.27
Although the two outlying states were recognized as out of the Union, Congress had specifically exempted the citizens of these two states from some (but not all) of the liabilities of no longer being citizens of the United States. Congress had suspended the economic measures to maintain an extended hand of friendship to their former countrymen, and to avoid antagonizing them as they considered the political and economic benefits of joining the Union.
Read the whole thing