Proposed Amendment of Articles of Confederation
MS (NA: PCC, No. 24, fols. 25–26). Written by JM. A copy, also in JM’s hand, is in LC: Madison Papers.
[Mar. 12, 1781]1
Whereas it is stipulated and declared in the 13th. Article of the Confederation “that every State shall abide by the determinations of the United States in Congress assembled on all questions which by this Confederation are submitted to them. And that the Articles of this Confederation shall be inviolably observed by every State”:2 by which Arti[c]le a general and implied power3 is vested in the United States in Congress assembled to enforce and carry into effect all the Articles of the said Confederation against any of the States which shall refuse or neglect to abide by such their determinations, or shall otherwise violate any of the said Articles, but no determinate and particular provision is made for that purpose: And Whereas the want of such provision may be made a pretext4 to call into Question the Legality of measures which may be necessary for preserving the authority of the Confederation & for doing justice to the States which shall duly fulfill their foederal engagements,5 and it is moreover most consonant to the spirit of a free constitution that on the one hand all exercise of power should be explicitly6 and precisely warranted, and on the other that the penal consequences of a violation of duty should be clearly promulged7 and understood: and Whereas it is further declared by the said 13th Article of the Confederation that no addition shall be made to the Articles thereof, Unless the same shall be agreed to in a Congress of the United States and be afterwards confirmed by the Legislatures of every State: The United States in Congress assembled having seriously & maturely deliberated on these considerations, and being desirous as far as possible to cement & invigorate the federal Union, that it may be both established on the most immutable basis, and be the more effectual for securing the immediate object of it, do hereby agree to, and recommend to the Legislatures of every State to confirm & to authorise their Delegates in Congress to subscribe, the following clause as an Additional Article to the 13 Articles of Confederation & perpetual Union:
It is understood & hereby declared that in case any one or more of the Confederated States shall refuse or neglect to abide by the determinations of the United States in Congress assembled or to observe all the Articles of the Confederation as required in the 13th. Article; the said United States in Congress assembled are fully authorised to employ the force of the United States as well by sea as by land to compel such State or States to fulfill their federal engagements, and particularly to make distraint on any of the effects Vessels and Merchandizes of such State or States or of any of the Citizens thereof wherever found, and to prohibit and prevent their trade and intercourse as well with any other of the United States and the Citizens thereof,8 as with any foreign State, and as well by land as by sea, untill full compensation or compliance be obtained with respect to all Requisitions made by the United States in Congress assembled9 in pursuance of the Articles of Confederation.
And it is to be understood, and is hereby agreed and conceded that this Article shall be fully and absolutely binding and conclusive when all the States not actually in the Possession10 of the Enemy, shall enact the same11
1. This date appears on the copy in JM’s files. The copy in PCC is undated. On 6 March 1781, following a motion by James Mitchell Varnum (R.I.), Congress named James Duane (N.Y.) and JM to a committee, with Varnum as its chairman, “to prepare a plan to invest the United States in Congress assembled with full and explicit powers for effectually carrying into execution in the several states all acts or resolutions passed agreeably to the Articles of Confederation” (JCC description begins Worthington Chauncey Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , XIX, 236). According to pp. 4–11 of Thomas Rodney’s diary (LC), Congress had debated at length on 5 March and briefly on 6 March upon the meaning of “acts or resolutions passed agreeably to the Articles.” JM and others had contended that, since the Articles required that no fewer than nine states must each have at least two delegates present to make a quorum in Congress for the transaction of most business, a majority of these nine (that is, five or more) in favor of a bill was sufficient to pass it. The opponents replied that the word “majority” in the Articles meant at least seven (a bare majority of the thirteen states); otherwise a minority of states might rule. With New Hampshire and Rhode Island represented by only one delegate each, and hence unable to vote on this issue, Congress could do no more than tentatively decide “that the Rule of their Conduct should be not to go upon any business but when nine States at least are represented in Congress, And not to pass any vote but with the assent of seven States at least Untill Otherwise Determined, when all the States are represented” (Burnett, Letters description begins Edmund C. Burnett, ed., Letters of Members of the Continental Congress (8 vols.; Washington, 1921–36). description ends , VI, 7–9). This was the meaning of the last seven words of the directive to the Varnum committee.
2. The word “that” in this quotation should be deleted in the second instance to make the quotation agree with the text of the Articles as given in NA: PCC, No. 9, fol. 192. This text and JM’s extract from it also differ inconsequentially in capitalization and punctuation.
3. This is believed to be JM’s first use of a phrase of great moment in the constitutional history of the United States.
4. Crossed out after “pretext” are the words, “by delinquent States against whom coercive.” James Duane inserted the words “to call into Question the Legality of.”
5. Following “engagements” are two deleted passages: one, “call in question the legality,” interlineated above the other, “to dispute and oppose the execution of such measures.”
6. This word is written above another too heavily stricken out to be legible, but it may have been “hereby.”
7. “Clearly promulged” is inserted in place of a deleted “explicitly determined[?].”
8. This proposal to apply economic sanctions against the citizens of offending states, as well as against the states themselves, is probably the chief nationalizing provision of the committee’s recommendations. With few exceptions, the powers delegated by the Articles of Confederation to “the United States in Congress Assembled” were to be made effective only through the instrumentality of the state governments. Except in several areas of its operations, such as the postal service, Congress had no direct relationship with the individual citizens of a state. Writing on 27 November 1830 to Andrew Stevenson, JM commented as follows about the powers of Congress under the Articles of Confederation: “These articles were not in force till they were finally ratified by Maryland in 1781. Prior to that event, the power of Congress was measured by the exigencies of the war, and derived its sanction from the acquiescence of the States. After that event, habit and a continued expediency, amounting often to a real or apparent necessity, prolonged the exercise of an undefined authority, which was the more readily overlooked, as the members of the body held their seats during pleasure, as its acts, particularly after the failure of the Bills of Credit, depended for their efficacy on the will of the States; and as its general impotency became manifest. Examples of departure from the prescribed rule, are too well known to require proof” (LC: Madison Papers; Madison, Writings [Hunt ed.] description begins Gaillard Hunt, ed., The Writings of James Madison (9 vols.; New York, 1900–1910). description ends , IX, 419).
9. Following “assembled,” JM originally wrote and then crossed out what appears to have been “under and in a pursuance of the Articles.”
10. Stricken out between “Possession” and “of” are the words “Power and under the Jurisdiction.”
11. This paragraph, in Varnum’s hand, replaces the following closing paragraph in JM’s retained copy: “And it is understood & is hereby agreed that this Article shall be binding on all the States not actually in possession of the Enemy, as soon as the Same shall be acceded to & duly [ratified by] the said States.” Although the committee’s report appears to have been written on 12 March, it was not laid before Congress until four days later. Thereafter no mention of it appears until 2 May, when it was referred to a “grand committee” made up of one delegate from each state. Theodorick Bland was the Virginia representative on this committee (JCC description begins Worthington Chauncey Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , XIX, 236, 272–73; XX, 469–71; XXI, 893–96; Brant, Madison description begins Irving Brant, James Madison (6 vols.; Indianapolis and New York, 1941–61). description ends , II, 105–9).