From Joseph Jones
Spring Hill 16th. April 1781
The Alliance of the American States being now compleated by the assent of the State of Maryland to the Articles of Confederation the future proceedings of Congress must be governed by those Rules and every deviation from them become matter of complaint or jealousy to the States. It would be wise therefore where defects appear to have them supplied in time and while the Temper of the States from recent experience of the want of competent Powers in Congress for the purposes of War disposes them to do so. It appears to me indispensably necessary for the general welfare in time of war that the Congress should be vested with a controuling power over the States sufficient to compel obedience to requisitions for Men and Money apportioned agreeable to the Rules laid down. Without a coercive power for these purposes clearly vested in that Body all future wars as the present has done must languish for want of proper authority to call forth the resources of the States. These aids should be as regularly and fully furnished by those States at ease and removed from danger as by those attacked and immediately exposed to it, yet we have found those only where necessity and self preservation impelled them to exertions rendering those supplies the interest and safety of the whole required—and while some have strained every nerve and exhausted almost their whole strength in the struggle, others have been negligent and remiss in furnishing the proportions assigned. These delinquencies occasion discontents, prolong the war, and expose the willing and obedient States to hardships, when Justice requires that all contribute their property. How this can be effected without a controuling power in Congress for the purpose I know not. Yet I know that without it we shall be a rope of sand and the Union be dissolved. It was made a question in Congress before I came away. I expect it will not be determined before I return whether the united States in Congress assembled had such a power; if not whether it was not necessary they should have it. As the States have yeilded to that Body the right of making requisitions, does it follow that Congress have the power by implication of enforcing obedience? If they now have this Power, or not having it, the States should Grant it them, how should the disobedient Be punished? By shuting the Ports—by a Body of armed Men—By deprivation of privileges or by what other method. These are nice and tender points to handle, but are unavoidable in the discussion of this question. How far it would be prudent to open them to the States I know not. Could the business be effected without coming from Congress by a voluntary declaration of the respective States of their sentiments upon the Right of Congress to exercise such a power it would I think be better; for I suspect such a recommendation coming from Congress would excite fears in the States, that there was a disposition in Congress to grasp dangerous Powers. It is certainly a transendent power, never to be used but in cases of absolute necessity and extremity. The acknowlegement however of such a power in Congress might possibly supercede the use of it as it would prove a weight impeling the States to action. If the States are ever to possess a formidable Navy which may be serviceable to them in time of War, the Power of laying Embargoes during war at least, should be vested in Congress. This appears necessary on many other accounts which cannot be unknown to you and I confess myself at a loss to conjecture the reason of its omission in the Articles. If we are to have our great departments under the superintendence of Ministers accountable for their conduct (and which was agreed upon and some of them chosen when I left Congress but which from a late Letter from Madison will at length I fear be lost) it may be necessary if any offences they may commit in the execution of their offices shall be punished capitally, to institute a Court and appoint Judges for their trial, as I question whether they could be tried and punished in any of the Courts now in being. As these officers will act throughout the States and can be resident in one only there will be a difficulty in bringing them to trial and condign punishment without some special mode prescribed for the purpose. In this business however a great question arises—can Congress in other than military and Maritime Laws subject any Citizen to Death or other punishment than the Laws of the State he belongs to inflict for such offences? I have given your Excellency much trouble in this letter. My appology is that I desire the sentiments of Gentlemen of respectable abilities belonging to the State I represent in all very interesting questions to assist my own Judgment and opinion and unless you forbid it I shall take the same liberty on future occasions when they present themselves. With great respect I am Dr. Sr. Yr. most obed Sert.,
P.S. I set out this day week for Philadelphia.
RC (DLC). In DLC: Madison Papers, 1:106, there is an unsigned, undated letter in Joseph Jones’ hand quite similar in substance to the above and endorsed: “Copy letter to Pendleton Wythe Jefferson.” From this endorsement it is obvious that “the sentiments of Gentlemen of respectable abilities” that Jones desired were those of TJ and his two distinguished collaborators on the Revisal of the Laws. From the presence of this copy among the Madison Papers as well as from the allusion to “a late Letter from Madison,” it would appear that, as Mr. Irving Brant supposes (letter to the editors, 26 Dec. 1950), Jones and Madison were collaborating in an effort to obtain TJ’s support for the doctrine of implied powers. The fact that Madison wrote TJ on the same day about the same subject need not be regarded as anything more than an interesting coincidence. From the vigor of Jones’ language as well as from the marked difference of expression between the letter sent TJ and the (probably later) draft sent Wythe and Pendleton, it is evident that he fully shared Madison’s views as to the need of coercive power in the Confederation. The two men were probably agreed in viewpoint on this fundamental issue before Jones left Philadelphia, but this does not necessarily mean that they had agreed to assault TJ’s strict constructionism on the same day. TJ in 1775 had remarked upon Franklin’s Plan of Union that such vague phrases as “the general welfare” had no place in such documents; at that date Jones’ assertion that it was “indispensably necessary for the general welfare in time of war that the Congress should be vested with a controuling power over the states sufficient to compel obedience to requisitions for Men and Money” would no doubt have met with instant objection from him. But six years’ experience in Congress, in the House of Delegates, and in the Governor’s chair had no doubt prepared him to modify that position. The chief difference between the letter to TJ and the copy of that to Wythe and Pendleton which Jones sent to Madison lies in the suggestion in the former that “a voluntary declaration of the respective States of their sentiments upon the Right of Congress to exercise such a power” would be preferable to a recommendation coming from Congress; both forms of the letter insisted that coercive power should be used only for purposes of conducting war. The “letter to Pendleton Wythe Jefferson” also contains an interesting observation not in the above form of the letter as sent to TJ: “by a resolution of our Legislature of the 24th. December 1779 the point of enforcing obedience to requisitions seems to have been agitated and censured.”
The copy in the Madison Papers contains an addition to the endorsement written by Madison himself: “in the handwriting of Mr. Jos. Jones probably from Genl. Washington.” In the communication from Mr. Brant referred to above, the opinion is advanced that this addition to the endorsement dates from about 1828 and that Madison’s error in supposing Washington might have been the writer was owing to the fact that Washington wrote many letters, after Maryland ratified the Articles of Confederation, urging that action as the basis of an appeal for enlargement of the powers of Congress; one such letter was sent to Jones under date of 24 Mch. 1781 and Jones, indeed, sent a copy of it to Madison (see Washington, Writings, ed. Fitzpatrick, xxi, 374). Jones may well have sent Madison also at about this time a copy of his letter to a few “Gentlemen of respectable abilities”—a circumstance which would make Madison’s error as an old man perfectly understandable. Jones’ letter to TJ as printed above is the only one of the several he wrote that has been found; the copy in the Madison Papers is printed in Madison Papers, ed. Gilpin, i, 81–4.