On June 12, 1776, the Continental Congress appointed a committee to prepare a plan of confederation for the young colonies. The articles directed the states to supply whatever requisitions Congress requested. Article VIII stated that expenses “Shall be defrayed out of a common treasury, which shall be supplied by the several states, in proportion to the value of all land within each state” and …”taxes for paying that proportion shall be laid and levied by the authority and direction of the legislatures of the several states within the time agreed upon by the united states in Congress assembled.” Article XIII stated, “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.”1 The Articles were sent to the states on November 15, 1777.
Unfortunately, problems arose under the Articles even before they were approved by all of the states mainly because the committee failed to put into the plan an enforcement power. In its absence the states were free to question the necessity of any requisition and to pay less than their full quota. George Washington commented, “One State will comply with a requisition of Congress; another neglects to do it; a third executes it by halves; and all differ either in the manner, the matter, or so much in point of time, that we are always working up hill, and ever shall be.”2 Much of this was due to the colonial beliefs that local priorities trumped national priorities, a national authority was something to be suspicious of, and the private property and liberties of the citizens of the state, county, and town were to be protected above all else.
The lack of compliance on the part of the states with the Continental Congress’s food requisitions of February 25, 17803 made it clear there was a need to amend the articles with additional powers. Congress had two options: either bypass the states by the imposition of taxes directly or coerce the states to comply with the requisitions. On February 3, 1781, John Witherspoon of New Jersey moved that Congress ask the states for an amendment granting the Congress the authority to regulate trade.
It is indispensably necessary that the United States in Congress assembled, should be vested with a right of superintending the commercial regulations of every State, that none may take place that shall be partial or contrary to the common interest; and that they should be vested with the exclusive right of laying duties upon all imported articles, no restriction to be valid, and no such duty to be laid, but with the consent of nine states. Provided, that all duties and imposts laid by the United States in Congress assembled, shall always be a certain proportion of the value of the article or articles on which the same shall be laid; and the same article shall bear the same duty and impost throughout the said states without exemption.
The motion did not pass. It was then amended:
Resolved, That it be recommended to the several states, as indispensably necessary, that they pass laws granting to vest a power in Congress, to levy
for the use of the United States, a duty of five percent ad valorem, at the time and place of importation, upon all goods, wares and merchandises of foreign growth and manufactures, which may be imported into any of the said states from any foreign port, island or plantation, after the first day of May, 1781.4
Following the adoption of the Articles of Confederation in 1781, some changes were made to floor procedures. In the beginning the Continental Congress operated on the “unit rule” in which each state had one vote. Before the Articles were approved, a simple majority of the states present could decide a motion. After the Articles were ratified, seven votes were required to decide regular business, and nine votes to decide important business (ie. ratification of treaties, financial matter), and if Congress was not explicitly given the right to act on a motion, such as regulation of trade, the motion required the unanimous consent of all the states. This amended motion was opposed only by Rhode Island, but one nay vote was enough to defeat it.
Near the end of May 1781, in a letter to Edmund Pendleton, James Madison, having defended the federal collection as necessary, feared the actual collection might require “a confidence in them [Congress], on the part of the States, greater perhaps than many may think consistent with republican Jealousies.” He then explained the two sides of the issue.
On one side it was contended that the powers incident to the collection of a duty on trade were in their nature so municipal … that it was improbable that the States could be prevailed on to part with them; and that consequently, it would be most prudent to ask from the States nothing more than the duty itself, to be collected by State officers, and paid to a Continental Receiver; and not the right of collecting it by officers of Congress.
On the opposite side it was urged, that as Congress would be held responsible for the public debt, it was necessary, and would be expected, that the fund granted for discharging them should be exclusively and independently in their hands; that if the collectors were under the control of the States, the urgency of their wants would be constantly diverting the revenue from its proper destination.5
The second option, the use of coercive enforcement, was attempted in the fall of 1780. From August 3 to 9, delegates from New Hampshire, Connecticut, and Massachusetts met in Boston. This convention passed thirteen resolutions that exhorted the states to increase their efforts to comply with congressional requisitions regarding the collection of taxes and the provision of supplies and recruits. The twelfth resolution called on the states “to invest their Delegates in Congress with powers competent for the government and direction of … national affairs” and also urged that all matters concerning the nation “be under the superintendency and direction of one supreme head.”6 In other words, they were asking Congress to assume sufficient power to coerce all the states into meeting their quotas with respect to the army. Before adjourning, the delegates called for another convention in November in Hartford and agreed to invite New York and Rhode Island to join them.
After reading the report of the Boston convention, Gov. George Clinton of New York laid it before the New York State Assembly. On September 9, the Assembly agreed that “unless Congress [is] authorized to direct uncontrollably the Operations of the War, and enabled to enforce a Compliance with their Requisitions, the Common Force can never be properly united.”7 Two weeks later, on October 10, the New York Assembly spelled out exactly what it meant by enforcing a compliance.
whenever it shall appear to [Congress], that any State is deficient in furnishing the Quota of Men, Money, Provisions or other Supplies, required of such State, that Congress direct the Commander in Chief, without Delay, to march the Army or such Part of it as may be requisite , into such State, and by a Military Force, compel it to furnish its Deficiency. 8
The resolution was sent to both the Continental Congress and upcoming Hartford Convention that was scheduled to meet on November 8 to consider how to remedy the shortcomings in the Articles. The Convention made one change to the resolution: the Commander in Chief could still take military action to enforce a Congressional requisition, but only during the years 1780 and 1781.9 The new proposal was presented to Congress on December 12; it was then assigned to a committee of five that included James Madison. Although he favored the empowerment of Congress, he was outvoted.10 In a letter to Samuel Adams on December 4, James Warren wrote,
A Convention … solemnly Resolved to recommend it to their several States to Vest the Military with Civil Powers of an Extraordinary kind and where their own Interest is Concerned, no less than a Compulsive power over the deficient States to oblige them by the point of the Bayonet to furnish money and supplies for their own pay and support.11
In a letter to William Livingston, Governor of New Jersey, on the same topic, Rev. John Witherspoon wrote, “the resolution is of such a nature that I should never give my voice to it.”12
On March 6, 1781, Congress authorized another committee, this time composed of three members, “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.”13 The committee members were James Madison, James Mitchell Varnum and James Duane. Madison and Varnum were clear advocates of coercive enforcement and Duane represented the state of New York that passed the original resolution. Their efforts were presented to Congress on March 16. In the resolution’s preamble, the committee claimed that there existed “… a general and implied power vested in the United States in Congress assembled to enforce and carry into a effect all the Articles of the said Confederation against any of the States which shall refuse or neglect to abide by such their determinations.” The committee wanted to make the enforcement explicit, that is, Congress would have the authority to compel delinquent states into compliance using “the force of the United States by sea as well as by land.” It also proposed that Congress be given the authority to seize “the effects of 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.”14 In a letter dated April 16 to Thomas Jefferson, Madison wrote “the situation of most of the States is such that two or three vessels of force employed against their trade will make it their interest to yield prompt obedience to all just requisitions on them.” He believed
the necessity of arming Congress with coercive powers arises from the shameful deficiency of some of the states [specifically, the New England states] which are most capable of yielding their apportioned supplies, and the military extractions to which others [the southern states and specifically his home state of Virginia] already exhausted by the enemy and our own troops are in consequence exposed. Without such powers too in the general government, the whole confederacy may be insulted and the most salutary measures frustrated by the most inconsiderable State in the Union.15
On May 2, the “Amendment to give Congress Coercive Power over the States and their Citizens” was sent to a Grand Committee consisting of one member from each state. Even though the three-member committee was strongly in favor of the amendment, most of the other committee members were not. They were not willing to relinquish any portion of their states’ rights or those rights that flowed from the notion of localism. On July 20, the Grand Committee submitted a milder form of the amendment.
That it be recommended to the several States to pass laws empowering the United States in Congress assembled to have use and exercise the right of laying Embargoes in time of War, provided that such Embargoes extend to all the States in the Union, and be laid for a term not exceeding sixty days, at any one time.
That the quotas of monies called for by the United States in Congress assembled when voted by the respective States, be appropriated and vested specifically by the Legislatures of the respective States for the use of the United States in Congress assembled: And that the taxes so appropriated be paid by the Collectors in the first instance, to such person or persons as the United States in Congress assembled shall appoint for receiving the same.16
Unfortunately, it was again perceived by the majority to be a threat to state sovereignty. The amendment never again garnered enough votes to be adopted.
Another factor that influenced the majority of states not to vote for the coercive powers amendment was the anger they had towards the military practice of impressment during the war. Impressment was the taking of a citizen’s property with or without his permission and giving him a promissory note in lieu of payment in the form of a commissary or quartermaster certificate that would be paid at a later date. The major items impressed were food, clothing, wagons, and horses. From the state’s perspective, this “intrusion on the private property of individuals”17 was bad enough, but then to be paid in depreciating currency was too much. The Continental Congress first authorized the practice on October 26, 1775. It would continue to be authorized whenever the commissary or quartermaster’s department simply did not have the supplies that the army needed. The last time it was authorized by the Congress was on June 4, 1781.18
One year later, Alexander Hamilton summed up why the Imposition of Duties and the Coercive Powers Amendment were never adopted,
A mere regard of the interests of the confederacy will never be a principle sufficiently active to curb the ambition and intrigues of different members. Force cannot effect it: A contest of arms will seldom be between the common sovereign and a single refractory member; but between distinct combinations of the several parts against each other.19
It was fortunate for the Continental Army that the war was coming to end because it was clear that many members of the Continental Congress were more interested in protecting their state’s rights than in meeting the needs of the only force between them and a return to tyranny.
1 Merrill Jensen, ed., The Documentary History of the Ratification of the Constitution (Madison: State Historical Society of Wisconsin, 1976), 53.
2 George Washington to Joseph Jones, May 31, 1780, in The Writings of George Washington from the original Manuscript Sources, 1745-1799, John C. Fitzpatrick, ed. (Washington DC: G.P.O., 1931-1944), 18: 453.
3 Galliard Hunt, ed., Journals of the Continental Congress (Washington DC: G.P.O., 1912), 16: 196-98.
4 Hunt, ed., Journals of the Continental Congress, 19: 110-12.
5 James Madison to Edmund Pendleton, May 29, 1781, in The Writings of James Madison, Gaillard Hunt, ed. (New York: G. P. Putnam’s Sons, 1900), 3:140-41.
6 The Public records of the State of Connecticut, Charles J. Hoadly and Leonard W. Labaree, ed. (Hartford, CN: 1894) 3:559-64; William Winslow Crosskey and William Jeffrey, Jr., Politics and the Constitution in the History of the United States (Chicago: 1953-1980), 3:136.
7 “Address of the New York Assembly to Governor Clinton, September 9, 1780,” Journal of the Assembly of the State of New York, microfilm ed., Records of the States of the United States, William Sumner Jenkins, ed. (Washington DC, 1949), N.Y., A, 1b, reel 4, entry for September 7, 1780.
8 The Votes and Proceedings of the Assembly of the State of New York (Albany, NY: Munsell & Rowland, 1859) 43.
9 Keith L. Dougherty, Collective Action Under the Articles of Confederation (Cambridge: Cambridge University Press, 2001), 133.
10 Dougherty, Collective Action, 134.
11 L. H. Butterfield and Marc Friedlaender, eds., Adams Family Correspondence, October 1780 – September 1782 (Cambridge: Belknap Press of Harvard University Press, 1973), 19.
12 John Witherspoon to William Livingston, December 16, 1780, in Edmund C. Burnett, ed., The Letters of Members of the Continental Congress (Washington DC: Carnegie Institute, 1931), 5:487.
13 Hunt, ed., Journals of the Continental Congress, 19:236.
14 “Amendment to Give Congress Coercive Power over the States and their Citizens, March 16, 1781,” in Jensen, The Documentary History, 1:141-43; “Proposed Amendment of the Articles of Confederation, March 12, 1781,” in The Papers of James Madison, William T. Hutchinson and William M. E. Rachel, ed. (Chicago: University of Chicago Press, 1963), 3:17-20.
15 Madison to Jefferson, April 16,1781, in The Writings of James Madison, Hunt, ed., 1:131-32.
16 Hunt, ed., Journals of the Continental Congress, 20:773.
17 “Supreme Executive Council of the State of Pennsylvania to the President of Congress, September 17, 1777,” Pennsylvania Archives, First Series, 5:630.
18 Hunt, ed., Journals of the Continental Congress, 3:323; 20:598.
19Alexander Hamilton, The Continentalist No. VI (July 4, 1782), reprinted in The Papers of Alexander Hamilton, Harold C. Syrett, ed. (New York: Columbia University Press, 1962), 3:105.