Debates in the Federal Convention of 1787

by James Madison


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Tuesday, August 21

In Convention,

Governor Livingston, from the Committee of eleven to whom were referred the propositions respecting the debts of the several States, and also the militia, entered on the eighteenth inst., delivered the following report:

“The Legislature of the United States shall have power to fulfil the engagements which have been entered into by Congress, and to discharge, as well the debts of the United States, as the debts incurred by the several States, during the late war, for the common defence and general welfare.

“To make laws for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States; reserving to the States, respectively, the appointment of the officers, and the authority of training the militia, according to the discipline prescribed by the United States.”

Mr. Gerry considered giving the power only, without adopting the obligation, as destroying the security now enjoyed by the public creditors of the United States. He enlarged on the merit of this class of citizens, and the solemn faith which had been pledged under the existing Confederation. If their situation should be changed, as here proposed, great opposition would be excited against the plan. He urged, also, that as the States had made different degrees of exertion to sink their respective debts, those who had done most would be alarmed, if they were now to be saddled with a share of the debts of States which had done least.

Mr. Sherman. It means neither more nor less than the Confederation, as it relates to this subject.

Mr. Ellsworth moved that the Report delivered in by Governor Livingston should lie on the table; which was agreed to, nem. con.

Article 7, Section 3, was then resumed.

Mr. Dickinson moved to postpone this, in order to reconsider Article 4, Section 4, and to limit the number of Representatives to be allowed to the large States. Unless this were done, the small States would be reduced to entire insignificance, and encouragement given to the importation of slaves.

Mr. Sherman would agree to such a reconsideration; but did not see the necessity of postponing the section before the House. Mr. Dickinson withdrew his motion.

Article 7, Section 3, was then agreed to, — ten ayes; Delaware alone, no.

Mr. Sherman moved to add to Section 3, the following clause: “and all accounts of supplies furnished, services performed, and moneys advanced by the several States to the United States, or by the United States to the several States, shall be adjusted by the same rule.”

Mr. Gouverneur Morris seconds the motion.

Mr. Gorham thought it wrong to insert this in the Constitution. The Legislature will no doubt do what is right. The present Congress have such a power, and are now exercising it.

Mr. Sherman. Unless some rule be expressly given, none will exist under the new system.

Mr. Ellsworth. Though the contracts of Congress will be binding, there will be no rule for executing them on the States; and one ought to be provided.

Mr. Sherman withdrew his motion, to make way for one of Mr. Williamson, to add to Section 3, — “By this rule the several quotas of the States shall be determined, in settling the expenses of the late war.”

Mr. Carroll brought into view the difficulty that might arise on this subject, from the establishment of the Constitution as intended, without the unanimous consent of the States.

Mr. Williamson’s motion was postponed, nem. con.

Article 6, Section 12, which had been postponed on the fifteenth of August, was now called for by Colonel Mason, who wished to know how the proposed amendment as to money bills, would be decided before he agreed to any further points.

Mr. Gerry’s motion of yesterday, “that previous to a census direct taxation be proportioned on the States according to the number of representatives,” was taken up. He observed, that the principal acts of Government would probably take place within that period; and it was but reasonable that the States should pay in proportion to their share in them.

Mr. Ellsworth thought such a rule unjust. There was a great difference between the number of Representatives, and the number of inhabitants, as a rule in this case. Even if the former were proportioned as nearly as possible to the latter, it would be a very inaccurate rule. A State might have one Representative only, that had inhabitants enough for one and a half, or more, if fractions could be applied, and so forth. He proposed to amend the motion by adding the words, “subject to a final liquidation by the foregoing rule, when a census shall have been taken.”

Mr. Madison. The last appointment of Congress on which the number of Representatives was founded, was conjectural and meant only as a temporary rule, till a census should be established.

Mr. Read. The requisitions of Congress had been accommodated to the impoverishment produced by the war; and to other local and temporary circumstances.

Mr. Williamson opposed Mr. Gerry’s motion.

Mr. Langdon was not here when New Hampshire was allowed three members. It was more than her share; he did not wish for them.

Mr. Butler contended warmly for Mr. Gerry’s motion, as founded in reason and equity.

Mr. Ellsworth’s proviso to Mr. Gerry’s motion was agreed to, nem. con.

Mr. King thought the power of taxation given to the Legislature rendered the motion of Mr. Gerry altogether unnecessary.

On Mr. Gerry’s motion, as amended, —

Massachusetts, South Carolina, aye, — 2; New Hampshire, Connecticut, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, Georgia, no, — 8; North Carolina, divided.

On the question, “Shall Article 6, Sect. 12, with the amendment to it, proposed and entered on the fifteenth instant, as called for by Colonel Mason, be now taken up?” it passed in the negative, —

New Hampshire, Connecticut, Virginia, Maryland, North Carolina, aye, — 5; Massachusetts, New Jersey, Pennsylvania, Delaware, South Carolina, Georgia, no, — 6.

Mr. L. Martin. The power of taxation is most likely to be criticised by the public. Direct taxation should not be used but in cases of absolute necessity; and then the States will be the best judges of the mode. He therefore moved the following addition to Article 7, Sect. 3: “And whenever the Legislature of the United States shall find it necessary that revenue should be raised by direct taxation, having apportioned the same according to the above rule on the several States, requisitions shall be made of the respective States to pay into the Continental Treasury their respective quotas, within a time in the said requisitions specified; and in case of any of the States failing to comply with such requisitions, then, and then only, to devise and pass acts directing the mode, and authorizing the collection of the same.”

Mr. McHenry seconded the motion; there was no debate, and on the question, —

New Jersey, aye, — 1; New Hampshire, Connecticut, Pennsylvania, Delaware, Virginia, North Carolina, South Carolina, Georgia, no, — 8; Maryland, divided, (Jenifer and Carroll, no.)

Article 7, Sect. 4, was then taken up.

Mr. Langdon. By this section the States are left at liberty to tax exports. New Hampshire, therefore, with other non-exporting States, will be subject to be taxed by the States exporting its produce. This could not be admitted. It seems to be feared that the Northern States will oppress the trade of the Southern. This may be guarded against by requiring the concurrence of two thirds, or three fourths of the Legislature, in such cases.

Mr. Ellsworth. It is best as it stands. The power of regulating trade between the States will protect them against each other. Should this not be the case, the attempts of one to tax the produce of another, passing through its hands, will force a direct exportation and defeat themselves. There are solid reasons against Congress taxing exports. First, it will discourage industry, as taxes on imports discourage luxury. Secondly, the produce of different States is such as to prevent uniformity in such taxes. There are indeed but a few articles that could be taxed at all; as tobacco, rice, and indigo; and a tax on these alone would be partial and unjust. Thirdly, the taxing of exports would engender incurable jealousies.

Mr. Williamson. Though North Carolina has been taxed by Virginia by a duty on twelve thousand hogsheads of her tobacco through Virginia, yet he would never agree to this power. Should it take place, it would destroy the last hope of the adoption of the plan.

Mr. Gouverneur Morris. These local considerations ought not to impede the general interest. There is great weight in the argument, that the exporting States will tax the produce of their uncommercial neighbors. The power of regulating the trade between Pennsylvania and New Jersey will never prevent the former from taxing the latter. Nor will such a tax force a direct exportation from New Jersey. The advantages possessed by a large trading city outweigh the disadvantage of a moderate duty; and will retain the trade in that channel. If no tax can be laid on exports, an embargo cannot be laid, though in time of war such a measure may be of critical importance. Tobacco, lumber, and live stock, are three objects belonging to different States, of which great advantage might be made by a power to tax exports. To these may be added ginseng and masts for ships, by which a tax might be thrown on other nations. The idea of supplying the West Indies with lumber from Nova Scotia, is one of the many follies of Lord Sheffield’s pamphlet. The state of the country, also, will change, and render duties on exports, as skins, beaver, and other peculiar raw materials, politic in the view of encouraging American manufactures.

Mr. Butler was strenuously opposed to a power over exports, as unjust and alarming to the staple States.

Mr. Langdon suggested a prohibition on the States from taxing the produce of other States exported from their harbours.

Mr. Dickinson. The power of taxing exports may be inconvenient at present; but it must be of dangerous consequence to prohibit it with respect to all articles, and for ever. He thought it would be better to except particular articles from the power.

Mr. Sherman. It is best to prohibit the National Legislature in all cases. The States will never give up all power over trade. An enumeration of particular articles would be difficult, invidious, and improper.

Mr. Madison. As we ought to be governed by national and permanent views, it is a sufficient argument for giving the power over exports, that a tax, though it may not be expedient at present, may be so hereafter. A proper regulation of exports may, and probably will, be necessary hereafter, and for the same purposes as the regulation of imports, viz: for revenue, domestic manufactures, and procuring equitable regulations from other nations. An embargo may be of absolute necessity and can alone be effectuated by the general authority. The regulation of trade between State and State cannot effect more than indirectly to hinder a State from taxing its own exports, by authorizing its citizens to carry their commodities freely into a neighbouring State, which might decline taxing exports, in order to draw into its channel the trade of its neighbours. As to the fear of disproportionate burdens on the more exporting States, it might be remarked that it was agreed, on all hands, that the revenue would principally be drawn from trade, and as only a given revenue would be needed, it was not material whether all should be drawn wholly from imports, or half from those and half from exports. The imports and exports must be pretty nearly equal in every State, and relatively, the same among the different States.

Mr. Ellsworth did not conceive an embargo by the Congress interdicted by this section.

Mr. McHenry conceived that power to be included in the power of war.

Mr. Wilson. Pennsylvania exports the produce of Maryland, New Jersey, Delaware, and will by and by, when the River Delaware is opened, export for New York. In favoring the general power over exports, therefore, he opposed the particular interest of his State. He remarked that the power had been attacked by reasoning which could only have held good, in case the General Government had been compelled, instead of authorized, to lay duties on exports. To deny this power is to take from the common Government half the regulation of trade. It was his opinion, that a power over exports might be more effectual than that over imports, in obtaining beneficial treaties of commerce.

Mr. Gerry was strenuously opposed to the power over exports. It might be made use of to compel the States to comply with the will of the General Government, and to grant it any new powers which might be demanded. We have given it more power already than we know how will be exercised. It will enable the General Government to oppress the States, as much as Ireland is oppressed by Great Britain.

Mr. Fitzsimons would be against a tax on exports to be laid immediately; but was for giving a power of laying the tax when a proper time may call for it. This would certainly be the case when America should become a manufacturing country. He illustrated his argument by the duties in Great Britain on wool, &c.

Colonel Mason. If he were for reducing the States to mere corporations, as seemed to be the tendency of some arguments, he should be for subjecting their exports as well as imports to a power of general taxation. He went on a principle often advanced and in which he concurred, that a majority, when interested, will oppress the minority. This maxim had been verified by our own Legislature [of Virginia]. If we compare the States in this point of view, the eight Northern States have an interest different from the five Southern States; and have in one branch of the Legislature thirty-six votes, against twenty-nine, and in the other in the proportion of eight against five. The Southern States had therefore ground for their suspicions. The case of exports was not the same with that of imports. The latter were the same throughout the States; the former very different. As to tobacco, other nations do raise it, and are capable of raising it, as well as Virginia, &c. The impolicy of taxing that article had been demonstrated by the experiment of Virginia.

Mr. Clymer remarked, that every State might reason with regard to its particular productions in the same manner as the Southern States. The Middle States may apprehend an oppression of their wheat, flour, provisions, &c.; and with more reason, as these articles were exposed to a competition in foreign markets not incident to tobacco, rice, &c. They may apprehend also combinations against them, between the Eastern and Southern States, as much as the latter can apprehend them between the Eastern and Middle. He moved, as a qualification of the power of taxing exports, that it should be restrained to regulations of trade, by inserting after the word “duty,” Article 7, Section 4, the words “for the purpose of revenue.”

On the question on Mr. Clymer’s motion, —

New Jersey, Pennsylvania, Delaware, aye, — 3; New Hampshire, Massachusetts, Connecticut, Maryland, Virginia, North Carolina, South Carolina, Georgia, no, — 8.

Mr. Madison, in order to require two thirds of each House to tax exports, as a lesser evil than a total prohibition, moved to insert the words, “unless by consent of two thirds of the Legislature.”

Mr. Wilson seconds; and on this question, it passed in the negative, —

New Hampshire, Massachusetts, New Jersey, Pennsylvania, Delaware, aye, — 5; Connecticut, Maryland, Virginia, (Colonel Mason, Mr. RandolphMr. Blair, no; General Washington, Mr. Madison, aye,) North Carolina, South Carolina, Georgia, no, — 6.

On the question on Article 7, Section 4, as far as to “no tax shall be laid on exports,” it passed in the affirmative, —

Massachusetts, Connecticut, Maryland, Virginia, (General Washington and Mr. Madison, no,) North Carolina, South Carolina, Georgia, aye, — 7; New Hampshire, New Jersey, Pennsylvania, Delaware, no, — 4.

Mr. L. Martin proposed to vary Article 7, Section 4, so as to allow a prohibition or tax on the importation of slaves. In the first place, as five slaves are to be counted as three freemen, in the apportionment of Representatives, such a clause would leave an encouragement to this traffic. In the second place, slaves weakened one part of the Union, which the other parts were bound to protect; the privilege of importing them was therefore unreasonable. And in the third place, it was inconsistent with the principles of the Revolution, and dishonorable to the American character, to have such a feature in the Constitution.

Mr. Rutledge did not see how the importation of slaves could be encouraged by this section. He was not apprehensive of insurrections, and would readily exempt the other States from the obligation to protect the Southern against them. Religion and humanity had nothing to do with this question. Interest alone is the governing principle with nations. The true question at present is, whether the Southern States shall or shall not be parties to the Union. If the Northern States consult their interest, they will not oppose the increase of slaves, which will increase the commodities of which they will become the carriers.

Mr. Ellsworth was for leaving the clause as it stands. Let every State import what it pleases. The morality or wisdom of slavery are considerations belonging to the States themselves. What enriches a part enriches the whole, and the States are the best judges of their particular interest. The old Confederation had not meddled with this point; and he did not see any greater necessity for bringing it within the policy of the new one.

Mr. Pinckney. South Carolina can never receive the plan if it prohibits the slave-trade. In every proposed extension of the powers of Congress, that State has expressly and watchfully excepted that of meddling with the importation of negroes. If the States be all left at liberty on this subject, South Carolina may perhaps, by degrees do of herself what is wished, as Virginia and Maryland already have done.

Adjourned.


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Contents

Introduction

The year was 1787. The place: the State House in Philadelphia. This is the story of the framing of the federal Constitution.

The Convention

Read the four-act drama and day-by-day summary by Gordon Lloyd, as well as Madison’s Notes on the Convention.

Interactive Map of Historic Philadelphia in the Late 18th Century

Learn about historic Philadelphia and where the founders stayed, ate, and met.

View Interactive

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