Report on the Powers of the Committee of the States
In his Autobiography Jefferson gave the following account of the steps leading to the creation of a Committee of the States: “The remissness of Congress, and their permanent session, began to be a subject of uneasiness and even some of the legislatures had recommended to them intermissions, and periodical sessions. As the Confederation had made no provision for a visible head of the government during vacations of Congress, and such a one was necessary to superintend the executive business, to receive and communicate with foreign ministers and nations, and to assemble Congress on sudden and extraordinary emergencies, I proposed early in April the appointment of a committee to be called the Committee of the states, to consist of a member from each state, who should remain in session during the recess of Congress: that the functions of Congress should be divided into Executive and Legislative, the latter to be reserved, and the former, by a general resolution to be delegated to that Committee. This proposition was agreed to; a Committee appointed, who entered on duty on the subsequent adjournment of Congress, quarrelled very soon, split into two parties, abandoned their post, and left the government without any visible head until the next meeting of Congress” (Ford, I, 75–6). This statement is erroneous as to the date and origin of the Committee of the States. It misled Ford into supposing that an amendment offered by Jefferson on 14 Apr. 1784, when an acrimonious debate on the place to which Congress should adjourn occurred, was the proposal referred to in the autobiographical account. But that amendment, which was lost with the motion which it sought to qualify, was merely a proviso that “a committee of the states shall have been … constituted” prior to adjournment of Congress (JCC description begins Worthington C. Ford and others, eds., Journals of the Continental Congress, 1774–1789, Washington, D.C., 1904–37, 34 vols. description ends , xxvi, 226). Yet the substance of the proposal as described by Jefferson in the Autobiography is doubtless correct. Further, it provides the only “text” available of the motion made by Jefferson concerning the Committee of the States. As will appear below, this motion was not made in April, but probably on 23 Jan. 1784. Even so, it was far from being the origin of the idea of a committee of the states, as the passage in the Autobiography would seem to indicate.
Actually Jefferson’s connection with such an idea began with his appointment on 13 Dec. 1775 to a committee to draft instructions for the guidance of a committee to sit during the recess of Congress. He drafted the report of that committee on 15 Dec. 1775 (see Vol. 1: 272–3). Although this report of 1775 was not acted upon as such, it was made available to the committee authorized to draft the Articles of Confederation. Thus it became in substance Article xix of the Articles of Confederation as prepared by John Dickinson and as presented to Congress on 12 July 1776 (JCC description begins Journals of the Continental Congress, 1774–1789, ed. W. C. Ford and others, Washington, 1904–1937 description ends , v, 553–4). This relationship between Jefferson’s report of 1775 and the corresponding part of Dickinson’s draft is not noted above (Vol. 1: 273), where it is also erroneously implied that no action was taken on the report because “Congress did not adjourn for the holiday.” The instructions drawn up in 1775 to guide a committee during recess of Congress were, of course, designed to apply to all interims between sessions, not merely to a particular holiday recess. It is important to make this correction and to note the relationship of Jefferson’s report of 1775 to the Articles of Confederation since it has been assumed that the rudiments of an executive agency originated with the Dickinson draft.
Indeed, Franklin’s proposed Articles of Confederation of 1775 had provided for an “executive council” to be appointed by Congress. Franklin intended this council “in the Recess of the Congress … to execute what shall have been enjoined thereby, to manage the general Continental business and interests, to receive applications from foreign countries, to prepare matters for the consideration of the Congress; to fill up pro tempore Continental offices that fall vacant; and to draw on the general Treasurer for such monies as may be necessary for general services and appropriated by the congress to such services” (see Vol. 1: 178). Franklin’s delegation of executive powers to the council was obviously employed by Jefferson in drawing up his report of 1775, though the latter report was not only greatly enlarged, but more specific and more detailed in its definition of powers to be employed by the interim body. In the same manner that he had used Franklin’s draft, so his report of 1775 was employed by Dickinson, for Article xix of the Dickinson draft was in many respects a verbatim copy of Jefferson’s 1775 report. With one exception, it did not in any important respect go beyond the limits of executive power sought for the committee by Jefferson in 1775. This exception was that which would have granted power “To superintend and controul or suspend all Officers civil and military, acting under the Authority of the United States.” In some respects—such as the provisions impowering the interim committee to raise recruits, to direct the keeping and accommodation of prisoners of war, and to take charge of all military stores and procure such others “as may probably be wanted”—the Jefferson report went much further in delegating executive power than did the Dickinson draft. Moreover, the Dickinson draft specifically prohibited the making of “any Engagements that shall be binding on the United States,” a severe limitation on the executive power that Jefferson’s report of 1775 did not propose.
In the Dickinson draft of the Articles of Confederation the interim committee contemplated by Jefferson’s report of 1775 became a Council of State. However, there is no basis for the assumption that this “Council of State was apparently designed as the beginning of an executive organization, a permanent bureaucratic staff of the central government … to be appointed annually and … to be a permanent body functioning whether Congress was in session or not” (Jensen, The Articles of Confederation, 178). On the contrary, Article xviii of the Dickinson draft provided that “The United States assembled shall have the sole and exclusive Right and Power of … Appointing a Council of State, and such Committees and civil Officers as may be necessary for managing the general Affairs of the United States, under their Direction while assembled, and in their Recess, of the Council of State” (JCC description begins Journals of the Continental Congress, 1774–1789, ed. W. C. Ford and others, Washington, 1904–1937 description ends , v, 550–1). This, together with the nature of the powers delegated in Article xix to the Council of State, clearly meant that the Council was to function only in the interim between sessions of Congress. The corresponding passage in the Articles as finally approved made it unmistakable that this was the intent, for Congress was given 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” (JCC description begins Worthington C. Ford and others, eds., Journals of the Continental Congress, 1774–1789, Washington, D.C., 1904–37, 34 vols. description ends , ix, 919–20). But Jefferson’s detailed statement of executive powers to be delegated to the interim body, as adapted in the Dickinson draft, was deleted from the Articles. Instead, Article x merely provided in general terms that “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 the said committee, for the exercise of which, by the articles of confederation, the voice of nine states, in the Congress of the United States assembled, is requisite” (same, ix, 923–4).
With the coming of peace, the question of establishing a “visible head of the government during vacations of Congress” became a matter of some urgency. This meant that the general terms of the grant and limitation of powers of a committee of the states as set forth in Article x would have to be defined, and a committee headed by James Duane of New York was appointed “to consider and devise the Powers with which a Committee of the States shall be vested during a Recess of Congress.” This committee reported at Princeton on 17 Sep. 1783, but its report did little more than beg the question. It merely recommended that the committee to be appointed should be authorized “to perform and exercise, in the Recess of Congress, all such Powers and Duties as may be lawfully exercised by the United States in Congress assembled,” except, of course, those powers that Congress was forbidden by Article x to delegate (PCC: No. 23; the report is in the hand of James Duane and is printed in JCC description begins Worthington C. Ford and others, eds., Journals of the Continental Congress, 1774–1789, Washington, D.C., 1904–37, 34 vols. description ends , xxvi, 47). This meant that the Committee of the States would have those executive powers possessed by Congress that did not require the vote of nine states and that Duane’s committee “devised” for the Committee of the States merely those powers not prohibited by Article x. Still Congress failed to act by appointing a Committee of the States in pursuance of the authority granted in Article ix, and in the interim of five weeks between the sessions at Princeton and Annapolis there was no “visible head of government.”
This obviously disturbed Jefferson and he was determined if possible to prevent its recurrence in future. Even with respect to the constitution from which Congress derived its own authority, Jefferson thought “There should be no vague terms in an instrument of this kind. It’s objects should be precisely and determinately fixed” (Vol. 1: 181, note 5). He must therefore have viewed with some concern the rejection of his detailed recommendations of 1775 from the final text of the Articles of Confederation, and he must equally have opposed a general delegation of authority to the Committee of the States as contemplated in the Duane report. On 23 Jan. 1784 that report “and a motion of Mr. Jefferson thereon” were referred to a committee composed of Jefferson, Osgood, and Sherman (Committee Book, PCC: No. 186; also, endorsement by Thomson on report of the Duane committee, showing that it was read 17 Sep. 1783 and referred to the committee of three on 23 Jan. 1784; see also the opening paragraph of Documents ii and iii). From this it is clear that Jefferson introduced a motion to appoint a committee of the states and define its powers. This motion, very probably, was substantially what he described it to be in his Autobiography: “that the functions of Congress should be divided into Executive and Legislative, the latter to be reserved, and the former, by a general resolution to be delegated to that Committee.” Since it was customary with motions requiring reference to commit and, where necessary, to appoint the committee on the day of the motion, it is probable that Jefferson’s motion, which he erroneously fixed as “early in April,” must have been made on 23 Jan. 1784.
Document i in the present series is a further and explicit categorization of the powers of the committee within the limits imposed by Article x, and must have been drawn up about the time that Jefferson made his motion. Document ii represents a more precise and a more extensive delegation of executive power than Jefferson had proposed in 1775. In addition to this it contained a resolution governing the procedure to be observed by the Committee of States. But the report as finally submitted on 30 Jan. 1784 (Document iii) was just the reverse of the delegation of authority contemplated in Document ii—instead of listing in detail the things that the Committee of the States might do and stating in general terms what it could not do, Document iii listed in detail the matters prohibited and stated in general terms what the Committee was authorized to do. In this sense it was a return to the general delegation of authority contemplated in the Duane report.
There is no way to determine the exact chronological sequence of Documents i, ii, and iii or the causes that gave rise to them; indeed, Ford prints this entire sequence as if it were a single document, Document iv being included as a part of Documents i and ii and Document iii being printed separately only as a report derived from the “draft” comprising the others (Ford, iii, 388–93). Burnett, Letters of Members, vii, No. 499, note 4, follows Ford and comments: “The document is of especial interest as showing the development of Jefferson’s thought on the subject, but it does not appear to have been presented to Congress in that form.” This, except for regarding the various items as a single document, is correct, but Jefferson’s thought on this important matter of delegation by Congress of executive power cannot be adequately understood except by a proper separation of the texts and a tracing of their legislative history. Owing to the inadequacy of the Journals and to the absence of committee records, this must be done largely by inference and conjecture.
The first three documents in the present sequence were written, it is obvious, before 30 Jan. 1784 and may have been presented by Jefferson to Osgood and Sherman in the order here printed. Or Document ii may have preceded the others. Or Jefferson may have made the analysis represented by Document i and then, at the same time, have drawn up and laid before the committee both Documents ii and iii as alternative choices. But the most plausible interpretation is that the variety of documents here presented represents the result of a conflict within the committee. If this is the correct interpretation, Document ii probably represents Jefferson’s own thinking on the subject and the draft of a proposed report that he laid before his colleagues. Finding them opposed—and the evidence would indicate Sherman was particularly so—he then set forth in a detailed analysis the two approaches to the problem as indicated in Document i. The committee chose the course reflected in Document iii, and reported the resolutions it contained on 30 Jan. 1784.
This, admittedly, is conjectural, but there are weighty reasons in its support. First, Document ii is substantially a derivative of Jefferson’s report of 1775. Second, Document iii is closer to the Duane report than to the report of 1775, which in turn is close to the generalities of Article x that Jefferson objected to. Finally, when the report of 30 Jan. came up for debate on 26 Apr., an effort to amend the resolutions was made that seems to indicate Jefferson’s hand and his dissatisfaction with the report. There were minor amendments to the report (as pointed out in the textual notes to Document iii), but the following passages which appear deleted in the Journals on 26 Apr. and are not present in any form in the MS report show a further elaboration of the division of the powers of the Committee of the States into categories:
“II. That they be excluded by Congress from the powers of sending ambassadors, ministers, envoys residents or consuls, establishing rules for deciding what captures on land or water shall be legal and in what manner prizes taken by land or naval forces in the service of the United States shall be divided or appropriated; appointing courts for the trial of piracies and felonies committed on the high seas; establishing courts for receiving and determining finally appeals in cases of captures; instituting courts for deciding disputes and differences arising between two or more states; changing the rate of postage on the papers passing through the post offices established by Congress.
“III. That the said committee exercise the following powers as permitted by the Confederation: of directing the determination of controversies concerning the private right of soil in the cases and according to the mode pointed out by the 9th Article of Confederation; regulating the trade and managing all affairs with the Indians not members of any of the states; regulating the post offices from one State to another throughout all the United States; appointing officers of the land forces in the service of the United States excepting regimental officers; appointing officers of the naval forces; 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 not inconsistent with the articles of war established by Congress; directing the operations of the said land and naval forces; building, buying and equipping vessels previously agreed by Congress to be built, bought and equipped; and making requisitions from the states for their quotas of men and money proportioned on them by Congress.
“IV. That the said committee exercise also the following powers which are neither expressly given nor refused them by the Confederation, viz: of convoking Congress at an earlier day than that to which they shall stand adjourned, if the public exigencies shall in their opinion require it; superintending all offices appertaining to the United States; supplying all vacancies by new appointments to continue in force only until Congress shall make final appointments; directing and controuling the application of money in the detail according to the general zz previously made by Congress; and executing in general the resolutions, orders and ordinances of Congress” (JCC description begins Worthington C. Ford and others, eds., Journals of the Continental Congress, 1774–1789, Washington, D.C., 1904–37, 34 vols. description ends , xxvi, 289–90; see also note 4 to Document iii).
These deleted passages were no doubt offered from the floor as an amendment to the committee’s reported resolution (see note to Document iii). That they represent Jefferson’s motion is a conjecture made extremely plausible by the fact that the powers represented in paragraph “IV” as “neither expressly given nor refused … by the Confederation” are drawn principally from Jefferson’s report of 1775, the first being copied almost verbatim (see Vol. 1: 273). That they were rejected by Congress as they had been by the committee is plainly indicated by their deletion in the Journals.
The debate on the report on 26 Apr. was complicated by Howell’s motion of that day to adjourn on 3 June to meet again at Trenton on 30 Oct. and “that a committee of the states shall be appointed to sit in the recess of Congress” (JCC description begins Worthington C. Ford and others, eds., Journals of the Continental Congress, 1774–1789, Washington, D.C., 1904–37, 34 vols. description ends , xxvi, 287–8). McHenry moved to postpone the consideration of Howell’s motion in order to take up the report of 30 Jan. This was defeated by a strictly sectional vote, the seven northern states voting solidly against McHenry’s motion and the four southern states voting solidly in favor of it (JCC description begins Worthington C. Ford and others, eds., Journals of the Continental Congress, 1774–1789, Washington, D.C., 1904–37, 34 vols. description ends , xxvi, 291). Williamson then moved to amend Howell’s motion by adding to it the following: “provided a committee of the states shall first have been appointed to sit in the recess of Congress, and the powers defined with which the said committee shall be vested, according to the tenth of the Articles of Confederation.” Again the motion was defeated by a solid sectional vote, Jefferson voting in favor both times. Another motion offered Annapolis as a compromise federal town, but the previous question being called for, Howell’s motion prevailed; Jefferson’s affirmative vote was one of the two that were cast by delegates from states south of Pennsylvania (JCC description begins Worthington C. Ford and others, eds., Journals of the Continental Congress, 1774–1789, Washington, D.C., 1904–37, 34 vols. description ends , xxvi, 291; Lord, Atlas of Congressional Roll Call, 1943, I, C1134, C1135, C1138).
It was probably about this time that Jefferson endeavored to add to the powers and responsibilities of the Committee of the States by drawing up Document iv of this series. This additional instruction was certainly drawn up after the committee report of 30 Jan. 1784 and before the debates of 26 Apr., for on that same day Jefferson sent a MS of his notes on the establishment of a money unit and a system of coinage for the United States to Robert Morris (TJ to Morris, 26 Apr. 1784 and notes there). But there is no evidence to indicate that this proposed instruction was formally brought before Congress. It probably was not; certainly it was not adopted. The report of 30 Jan. was called for on 27 May and debated fruitlessly; it was again brought up on 29 May and amended in several particulars (see notes to Document iii). These alterations restored most of the additions embraced in what was apparently Jefferson’s amendment of 26 Apr. Thus amended, the report was finally adopted and a Committee of the States appointed on 29 May 1784 (JCC description begins Worthington C. Ford and others, eds., Journals of the Continental Congress, 1774–1789, Washington, D.C., 1904–37, 34 vols. description ends , xxvii, 474–7).
“The powers of the committee,” wrote James Monroe, “are confind so that no injury can be effected. Sherman and Dana will necessarily govern it” (Monroe to TJ, 1 June 1784). The remark possibly gives a clue to the difficulties that Jefferson experienced in his efforts to enlarge the executive powers of the Committee of the States, for Roger Sherman was more distrustful of executive power than most. Even in 1787 in the framing of a federal constitution based squarely upon the doctrine of the separation of powers, he looked upon the “Executive Magistracy as nothing more than an institution for carrying the will of the legislature into effect, and that the person or persons ought to be appointed by and accountable to the legislature only, which was the supreme will of the Society” (Farrand, Records of the Federal Convention, i, 65). In 1784 there was no question or possibility of introducing the principle of separation of powers, but Jefferson sought to establish a visible head of government, to enlarge its powers, and, as all evidence indicates, to grant it even that measure of executive authority lying in the undefined twilight zone between what was expressly granted and what was expressly denied by the Articles of Confederation. This was obviously far beyond what Roger Sherman would have approved. It was more than any other member advocated and more than Congress granted. Thus in 1775 and again in 1784 Jefferson fully earned the comment of a careful historian: “It was chiefly through Jefferson’s perseverance that the vital need of preserving a visible head of the federal government eventually won the support of a majority in Congress” (Burnett, The Continental Congress, 1941, p. 607). But the effort was futile, and during the summer of 1784 the Committee of the States was distinguished by what Thomson called “this invisibility of a fæderal head” (Thomson to TJ, 1 Oct. 1784).