ment has imperfections, which time and more experience will, I hope, effectually remedy." Thomas Jefferson, it will be admitted, was also qualified to speak, and he probably expressed the view of most men of his day when he said that "with all the imperfections of our present government it is without comparison the best existing, or that ever did exist." 2 John Marshall, whom many regard as the creator of our union through his opinions as Chief Justice of the Supreme Court, felt that if the Articles of Confederation preserved the idea of union until a more efficient system was adopted, which they certainly did and more, that then "this alone is certainly sufficient to entitle that instrument to the respectful recollection of the American people and its framers to their gratitude." 3 Significance James Madison's Summary From a national point of view the Articles were defective; from an inter- International national point of view they offered an example of a union of sovereign, free and independent States much closer than that of the society of nations, and, in spite of their imperfections, indeed because of their imperfections, they show, it is believed, how the society of nations can be organized as a Confederation without involving the sacrifice of sovereignty, should the members of that society be inclined to consider a conscious and closer union than exists today. While the defects of the Confederation were the subject of debate in the Congress, of discussion in the press, the talk alike of men of affairs and of private citizens, and the topic of correspondence if not its cause, among leaders of thought of the period, James Madison, to whose untiring efforts the world is principally indebted for the American Constitution, has, as was to be expected, stated more elaborately than any one of his contemporaries the weakness and the inadequacy of the Articles of Confederation in a memorandum prepared on the eve of the Convention, called for the sole and express purpose of recommending "a Federal constitution adequate to the exigencies of government and the preservation of the Union." In a paper written well nigh fifty years after the event, intended, apparently, as a preface to the Debates of the Convention, which he himself attended and reported with his own hand, he gives in the following passage the reasons why his testimony on this point should be accepted. Having served as a member of Congs. through the period between Mar. 1780 & the arrival of peace in 1783, I had become intimately acquainted with the public distresses and the causes of them. I had observed the successful opposition to every attempt to procure a remedy by new grants of power to 1 Letter to Lord Lansdown, April 16, 1786. William Jay, The Life of John Jay, 1833, Vol. ii, p. 183. 2 Letter to E. Carrington, Paris, August 4, 1787. Writings of Thomas Jefferson, Ford ed., Vol iv, p. 424. In a letter to M. de Meusnier, Jan. 24, 1786, Mr. Jefferson said: "The Confederation is a wonderfully perfect instrument considering the circumstances under which it was formed." (Ford ed., iv, 141.) 3 The Life of George Washington, by John Marshall, Philadelphia, 1805, v. 4, p. 416. of the Weakness Congs. I had found moreover that despair of success hung over the compromising provision of April 1783, for the Public necessities, which had been so elaborately planned and so impressively recommended to the States. Sympathizing, under this aspect of affairs, in the alarm of the friends of free Govt. at the threatened danger of an abortive result to the great & perhaps last experiment in its favour, I could not be insensible to the obligation to co-operate as far as I could in averting the calamity. With this view I acceded to the desire of my fellow Citizens of the County that I should be one of its representatives in the Legislature, hoping that I might there best contribute to inculcate the critical posture to which the Revolutionary cause was reduced, and the merit of a leading agency of the State in bringing about a rescue of the Union, and the blessings of liberty staked on it, from an impending catastrophe. It required but little time after taking my seat in the House of Delegates in May 1784, to discover that however favorable the general disposition of the State might be towards the Confederacy the Legislature retained the aversion of its predecessors to transfers of power from the State to the Govt. of the Union; notwithstanding the urgent demands of the Federal Treasury; the glaring inadequacy of the authorized mode of supplying it, the rapid growth of anarchy in the Fed'. System, and the animosity kindled among the States by their conflicting regulations.1 It is evident to us of the present day, from an inspection of his writings and from his leadership in the Constitutional Convention, that James Madison was the fittest by study and experience to propose the basis of a Constitution for the more perfect union, and his contemporaries, without the means of knowledge at our disposal, so considered him. One of his colleagues in the Federal Convention, writing of him, says: Mr. Maddison is a character who has long been in public life; and what is very remarkable every Person seems to acknowledge his greatness. He blends together the profound politician, with the Scholar. In the management of every great question he evidently took the lead in the Convention, and tho' he cannot be called an Orator, he is a most agreeable, eloquent, and convincing Speaker. From a spirit of industry and application which he possesses in a most eminent degree, he always comes forward the best informed Man of any point in debate. The affairs of the United States, he perhaps, has the most correct knowledge of, of any Man in the Union. has been twice a Member of Congress, and was always thought one of the ablest Members that ever sat in that Council.2 It was not by chance that Mr. Madison made this impression upon his fellow delegate, who in this matter spoke for his contemporaries. He had represented his State in the Continental Congress and was aware of the defects of the Confederation from actual experience in that body. He was familiar with every detail of the Articles of Confederation, and as a preparation for his work in the Convention he had set forth in connected form the defects of the Confederation in a memorandum, and he had likewise 1 The Writings of James Madison, Gaillard Hunt ed., Vol. ii, pp. 396-7. 2 Notes of Major William Pierce on the Federal Convention of 1787, American Historical Review, Vol. iii, p. 331. 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: 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 one. 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 |