embodied in another memorandum the defects of the known instances of confederations, in so far as they could be gathered from historical records then at his disposal.1 He arranged the defects of the Confederation under eleven headings and accompanied each with apt illustrations. Of this important document, which is unfortunately too long to be quoted in its entirety, as it deserves to be, the following is a brief analysis: 1. Failure of the States to comply with the Constitutional requisitions. This defect Mr. Madison considered to be so obvious as to require neither illustration nor argument. It resulted, he said, "so naturally from the number and independent authority of the States, and has been so uniformly exemplified in every similar Confederacy, that it may be considered as not less radically and permanently inherent in, than it is fatal to the object of, the present system.' 2. Encroachments by the States on the federal authority. As examples of this defect he cites the wars and treaties of Georgia with the Indians, the compacts between Virginia and Maryland and between Pennsylvania and New Jersey, the troops raised and kept up by Massachusetts without the consent of the Confederation, as required by the sixth of the articles. 3. Violations of the law of nations and of treaties. Under this heading he said that “not a year has passed without instances of them in some one or other of the States," and as examples he cites the Treaty of Peace with Great Britain, the treaty with France, the treaty with Holland, each one of which had been violated, and although these nations had been forebearing, or, as Madison said, "have not been rigorous in animadverting on us," indulgence was not always to be expected in the future. 4. Trespasses of the States on the rights of each other. Under this caption Mr. Madison has a somewhat imposing and alarming list, citing specifically the law of his own State restricting foreign vessels to certain ports, and the laws of Maryland and New York in favor of vessels of their own citizens. Among the additional examples he mentions are the issue of paper money, making property a legal tender, acts of the debtor State in favor of debtors, affecting not only citizens of the other States but citizens or subjects of foreign nations, and finally the practice of many States in violating the spirit of the Articles of Confederation by putting the goods and products of the members of the Union upon the same footing with those of foreign countries. 5. Want of concert in matters where common interest requires it. 1 Writings of Madison, Hunt ed., Vol. ii, pp. 369-390. See also memorandum contained in Letters and Other Writings of James Madison, pub. by order of Congress, 1865, Vol. i, pp. 389-398. 2 Ibid., pp. 361-369. Also see pp. 391-412 for sketch on the origin of the Constitutional Convention, To this defect Mr. Madison attributes the deplorable state of commerce throughout the States, a weakness also affecting the national dignity, interest and revenue. To this clause he also traces inferior but still important defects, such as the want of uniformity in laws concerning naturalization and literary property, the lack of provision for national seminaries, for grants of incorporation for national purposes, for canals and other works of general utility. 6. Want of guaranty to the States of their Constitutions and laws against internal violence. The hands of the Confederation were, he says, tied in this matter, because the Articles are silent as to it, and a very distressing example of this is mentioned in his correspondence, that of Shays' rebellion in Massachusetts in 1787, which also produced a profound impression upon contemporary opinion. 7. Want of sanction to the laws, and of coercion in the Government of the Confederacy. Mr. Madison considered a sanction as essential to the idea of law as coercion is to that of government. This defect of the Confederation was due to the fact that the Articles did not form a "Political Constitution," but were, as he says, "nothing more than a treaty of amity, of commerce, and of alliance between independent and Sovereign States." Therefore, there was no central government and there was a lack of power in the Congress to compel obedience to law; and in Madison's opinion coercion in government was as essential as the sanction of law. The experience of the Congress had, he said, demonstrated "that a unanimous and punctual obedience of 13 independent bodies to the acts of the federal Government ought not to be calculated on," and without the supremacy of the acts of the Union, interpreted and applied in the sense in which they were meant by the Congress, it was impossible to better conditions or indeed to preserve the Union. 8. Want of ratification by the people of the Articles of Confederation. Mr. Madison attached very great importance to this defect, as appears from his correspondence and also from his attitude in the Convention, recognizing clearly that a ratification by the people within a State would make it the law of the people, as well as of the State, and that an act or law ratified by the people would give the government a right to proceed directly against the person violating the act or law, instead of appealing to the State to correct the violation. These consequences he considered as characteristic of what he called a political constitution, whereas in the Confederation, which he properly regarded as a league of sovereign powers and not as a political constitution, the Union could only act upon the State and through the State upon its citizens. In this connection, he also pointed out the danger to the Union of the violation of the compact by a State, which would give to the other mem bers of the diplomatic union the right to withdraw and thus to destroy the Confederation. 9. Multiplicity of laws in the several States. This is a defect in a nation or in a State, which apparently can not be corrected without a change of mind, heart and conduct on the part of members of legislatures. If Mr. Madison expected far less under a "Political Constitution" his reputation as a prophet would be shattered, for the laws of the Congress under the Constitution and of the different States since the date of its adoption are so constantly amended that we do not know whether our knowledge, so painfully acquired during a recess of these lawmaking bodies, has been repealed overnight by their action when in session. His comments on this point are, however, so interesting that they are quoted rather than paraphrased. Thus he says: one. Among the evils then of our situation, may well be ranked the multiplicity of laws from which no State is exempt. As far as laws are necessary to mark with precision the duties of those who are to obey them, and to take from those who are to administer them a discretion which might be abused, their number is the price of liberty. As far as laws exceed this limit they are a nuisance; a nuisance of the most pestilent kind. Try the Codes of the several States by this test, and what a luxuriancy of legislation do they present. The short period of independency has filled as many pages as the century which preceded it. Every year, almost every session, adds a new volume. This may be the effect in part, but it can only be in part, of the situation in which the revolution has placed us. A review of the several Codes will shew that every necessary and useful part of the least voluminous of them might be compressed into one-tenth of the compass, and at the same time be rendered ten-fold as perspicuous. 10. Mutability of the laws of the States. Mr. Madison was aware that his previous heading practically included this Nevertheless he stated it for the sake of completeness and as his observations upon it have not lost their point they are quoted to give full effect to the previous objections. Thus he says: This evil is intimately connected with the former, yet deserves a distinct notice, as it emphatically denotes a vicious legislation. We daily see laws repealed or superseded before any trial can have been made of their merits, and even before a knowledge of them can have reached the remoter districts within which they were to operate. In the regulations of trade, this instability becomes a snare not only to our citizens, but to foreigners also. 11. Injustice of the laws of the States. This subject is likewise connected with the previous ones, because it is not merely the multiplicity of the laws and the numerous changes involved to which he objects. They were even at times unjust, in addition to other vices, and he was especially anxious to find the reasons for the injustice of the laws of the different States, in the belief that when the reasons had been Personal Sovereignty disclosed the remedy would follow close upon their footsteps. The causes of the evils he held to be, first, in the representative bodies, and second, in the people themselves; in the representative bodies because representative appointments are, he says, sought from three motives: "1. Ambition. 2. Personal interest. 3. Public good." And he felt obliged to state that "Unhappily, the two first are proved by experience to be most prevalent." But he regarded, and properly, the people to be more at fault, because if they wanted different representatives they could have them, and if they insisted upon just laws their representatives would frame them. He finds the chief fault to be in the fact that civilized societies are divided into different interests and factions, " creditors or debtors, rich or poor, husbandmen, merchants, or manufacturers, members of different religious sects, followers of different political leaders, inhabitants of different districts, owners of different kinds of property, &c., &c." He mentions three correctives, but finds them to be wanting whenever the interest of the individual seems to suggest their violation. They are: "1. A prudent regard to their own good, as involved in the general and permanent good of the community." As a result of experience Mr. Madison holds that this consideration lacks decisive weight, and he includes nations as well as individuals, saying, "It is too often forgotten, by nations as well as by individuals, that honesty is the best policy." The second is a respect for character, and here again he finds that this corrective does not prevent injustice, because, as he says, "In a multitude its efficacy is diminished in proportion to the number which is to share the praise or the blame," and even if it prevails within a society it is doubtful if it crosses the frontier and extends into adjoining provinces or States, inasmuch as actions are constantly committed within one State affecting strangers beyond its confines. The third is religion, which he mentions only to reject, saying, The conduct of every popular assembly acting on oath, the strongest of religious ties, proves that individuals join without remorse in acts, against which their consciences would revolt if proposed to them under the like sanction, separately in their closets." 66 As the result of his careful and prolonged study of this subject, he finds that "The great desideratum in Government is such a modification of the sovereignty as will render it sufficiently neutral between the different interests and factions to controul one part of the society from invading the rights of another, and, at the same time, sufficiently controuled itself from setting up an interest adverse to that of the whole society," and he concludes by considering the different forms of government and the extent to which they may be counted upon to meet his requirements. Thus he says: In absolute Monarchies the prince is sufficiently neutral towards his subjects, but frequently sacrifices their happiness to his ambition or his avarice. Mr. In small Republics, the sovereign will is sufficiently controuled from such a sacrifice of the entire Society, but is not sufficiently neutral towards the parts. composing it. As a limited monarchy tempers the evils of an absolute one; so an extensive Republic meliorates the administration of a small Republic. The form of government which he himself felt necessary was later laid before the Federal Convention by Mr. Randolph in what has been called the Public Virginia plan, which not only bears the impress of his experienced and scholarly mind but is in his own handwriting as well. He was not, however, unconscious of the fact that something was needed above and beyond the form of government, and it is the conscious expression of this fact that gives point and value to his observations. Governors of the States must be worthy of the trust, and with this he aptly closes his observations: An auxiliary desideratum for the melioration of the Republican form is such a process of elections as will most certainly extract from the mass of the society the purest and noblest characters which it contains; such as will at once feel most strongly the proper motives to pursue the end of their appointment, and be most capable to devise the proper means of attaining it. Before the ratification of the Articles of Confederation by the last of the thirteen States on March 1, 1781, a movement had begun to amend the Articles in order to make them more adequate for governmental purposes, which, prolonged through a series of years, led to the call of the Constitutional Convention which met in Philadelphia in the summer of 1787, an assembly which replaced the Articles by a newer and more perfect instrument of government called the Constitution, under which the United States on the one hand and the States on the other have waxed great and have prospered. The Congress recognized that the work of its hands was imperfect, but its members felt that the Articles of Confederation embodied all of the concessions from the States which they could obtain at that time, and they did not recognize, perhaps, before experiencing them, the defects of that instrument of government which is known as the Articles of Confederation. Officers Dissatis faction Jonathan Elliot, to whom we are under the deepest obligation for his Debates in the State Conventions on the adoption of the Federal Constitution, and the debates in the Convention itself, entitled the section devoted to the period between the ratification of the Articles and the call of the Convention, "Proceedings which led to the Adoption of the Constitution of the United States." And in this section he enumerates four proposals, which failed but they may be termed happy failures, for it is because of them that the call that Failed went out for a convention which framed the more perfect Union. These four are: First, the proposal to amend the eighth of the Articles of Confederation, in 1 Jonathan Elliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution, 1836, Vol. i, pp. 92–120. Four |