Liberty Letters, 21 August 1787, James Madison
Editor’s Summary: Governor Livingston reads report from the Committee of Eleven granting Congress the power to discharge the debts incurred by the United States as well as the debts of the several states during the late war, and to make laws for organizing and disciplining the militia, or such part of them employed in the service of the United States, reserving to the States the appointment of officers, and the authority of training the Militia according to the discipline prescribed by the United States. As to the debt issue, giving Congress the power was not enough, they must assume the obligation. He was concerned that those states which had actually been making their debts good would be alarmed at now having to pay a share of those states which did not. Dickinson proposed that their be an upward limit on the number of representatives large states possess, for if not, this would give encouragement to the importation of slaves.
Apportionment of direct taxes argued. Luther Martin argued, “Direct taxation should not be used but in case of absolute necessity; and then the States will be best Judges of the mode.”
Ellsworth states that the power to regulate trade given in the proposed Constitution is a protection against states taxing each other and gaining unfair advantages. He opposes Congress having the power to tax exports, but rather prefers the power to tax imports. “There are solid reasons against Congress taxing exports: it will discourage industry, as taxes on imports discourage luxury. … The taxing of exports would engender incurable jealousies.” Dickinson countered: “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.” Wilson stated “a power over exports might be more effectual than that over imports in obtaining beneficial treaties of commerce.” Gerry thought the power to levy export taxes would give the federal government the power of coercion over the states, as Great Britain exercised over Ireland.
Luther Martin proposed to vary the Sect: 4. art VII. so as to allow a prohibition or tax on the importation of slaves.
McHenry called the power to embargo, mentioned by Madison, an implied power within the war powers.
Governour LIVINGSTON from the Committee of Eleven to whom was referred the propositions respecting the debts of the several States and also the Militia entered on the 18th. inst: delivered the following report:
“The Legislature of the U. S. shall have power to fulfill 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 defense 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 U. S. 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 Govr. Livingston should lie on the table. 1 Agreed to nem. con.
Art: VII. Sect. 3. 2 resumed. — Mr. DICKINSON moved to postpone this in order to reconsider Art: IV. Sect. 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 insignificancy, 3 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. Art: VII. Sect. 3. 4 then agreed to 10 ays. Delaware alone being 5 no.
Mr. SHERMAN moved to add to Sect. 3. the following clause “and all accounts of supplies furnished, services performed, and monies 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. GOVERNr. MORRIS 2ds. the motion.
Mr. GHORUM, 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 Sect. 3. “By this rule the several quotas of the States shall be determined in Settling the expenses of the late war.”
Mr. CARROL 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-
Art: VI Sect. 12. 6 which had been postponed Aug: 15. 7 was now called for by Col. 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 1 1/2 or more, if fractions could be applied, &c — . 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 apportionment 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 the impoverishments 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. If 8 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. ELSEWORTH’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
N. H. no. Mas. ay. Ct. no. N. J. no. Pa. no. Del. no. Md. no. Va. no. N. Ci. divd. S. C. ay. Geo. no. 9
On a question, Shall Art: VI Sect. 12. with the amendment to it proposed & entered on the 15 instant, as called for by Col. Mason be now taken up? it passed in the Negative.
N. H. ay. Mas no. Ct. ay. N. J. no. Pa. no. Del. no. Md. ay. Va. ay. N. C. ay. S. C. no. Geo. no 10
Mr. L. MARTIN. The power of taxation is most likely to be criticized by the public. Direct taxation should not be used but in case of absolute necessity; and then the States will be best Judges of the mode. He therefore moved the following addition to Sect: 3. Art: VII “And whenever the Legislature of the U: S: 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 2ded. the motion — there was no debate, and on the question
N. H. no. Ct. no. N. J. ay. Pena. no. Del. no. Md. divd. (Jenifer & Carrol no). Va. no. N. C. no. S. C. no. Geo. no. 11
Art. VII. Sect. 4. 12, 13 — Mr. LANGDON. by this section the States are left at liberty to tax exports. New Hampshire therefore with other nonexporting 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 2/3 or 3/4 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. 1. 14 it will discourage industry, as taxes on imports discourage luxury. 2. 14 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 & indigo, and a tax on these alone would be partial and unjust. 3. 14 The taxing of exports would engender incurable jealousies.
Mr. WILLIAMSON. Tho’ North Carolina has been taxed by Virginia by a duty on 12,000 Hhs of her Tobo. exported thro’ Virga. yet he would never agree to this power. Should it take take place, it would destroy the last hope of an adoption of the plan.
Mr. GOVr. 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 neighbours. 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 pamphlets. 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 aught to be governed by national and permanent views, it is a sufficient argument for giving the power over exports that a tax, tho’ 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 can not 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. ELSEWORTH 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 N. Jersey, Delaware & will by & by when the River Delaware is opened, export for N-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 Govt. to oppress the States as much as Ireland is oppressed by Great Britain.
Mr. FITZIMMONS 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.
Col. 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 8 Northern States have an interest different from the five Southern States; and have in one branch of the legislature 36 votes against 29. and in the other, in the proportion of 8 against. 5. The Southern States had therefore good 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 Virga. &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 Tobo. rice &c. They may apprehend also combinations against them between the Eastern & Southern States as much as the latter can apprehend them between the Eastern & 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” Sect 4 art VII the words, “for the purpose of revenue.”
On 15 Question on Mr. Clymer’s motion
N. H. no. Mas. no. Ct. no. N. J. ay. Pa. ay. Del. ay. Md. no. Va. no. N. C. no. S. C. no. Geo. no. 16
Mr. MADISON. In order to require 2/3 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 2ds. and on this question, it passed in the Negative. N. H. ay. Mas. ay. Ct. no. N. J. ay. Pa. ay. Del. ay. Md. no. Va. no [Col. Mason, Mr. Randolph, Mr. Blair no. Genl. Washington & J. M. ay.] N. C. no. S. C. no. Geo. no. 17, 18 Question on Sect: 4. art VII. as far as to “no tax shl. be laid on exports — It passed in the affirmative.
N. H. no. Mas. ay. Ct. ay. N. J. no. Pa. no. Del. no. Md. ay. Va. ay (Genl. W. & J. M. no) N. C. ay. S. C. ay. Geo. ay. 19
Mr. L. MARTIN, proposed to vary the Sect: 4. art VII. so as to allow a prohibition or tax on the importation of slaves. 1. 20 as five slaves are to be counted as 3 free men in the apportionment of Representatives; such a clause wd. leave an encouragement to this trafic. 2. 21 slaves weakened one part of the Union which the other parts were bound to protect: the privilege of importing them was therefore unreasonable. 3. 22 it was inconsistent with the principles of the revolution and dishonorable to the American character to have such a feature in the Constitution.
Mr. RUTLIDGE 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 & humanity had nothing to do with this question. Interest alone is the governing principle with nations. The true question at present is whether the Southn. 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. ELSEWORTH 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. PINKNEY. South Carolina can never receive the plan if it prohibits the slave trade. In every proposed extension of the powers of the Congress, that State has expressly & watchfully excepted that of meddling with the importation of negroes. If the States be all left at liberty on this subject, S. Carolina may perhaps by degrees do of herself what is wished, as Virginia & Maryland have already 23 done.
1. The words “which was” are here inserted in the transcript.
2. The words “was then” are here inserted in the transcript.
3. The word “insignificancy” is changed to “insignificance” in the transcript.
4. The word “was” is here inserted in the transcript.
5. The word “being” is omitted in the transcript.
6. See ante.
7. The words “on the fifteenth of August” are substituted in the transcript for “Aug: 15.”
8. The word “if” is omitted in the transcript.
9. In the transcript the vote reads “Massachusetts, South Carolina, aye — 2; New Hampshire, Connecticut, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, Georgia, no — 8; North Carolina, divided.”
10. In the transcript the vote reads: “New Hampshire, Connecticut, Virginia, Maryland, North Carolina, aye — 5; Massachusetts, New Jersey, Pennsylvania, Delaware, South Carolina, Georgia, no — 6.”
11. In the transcript the vote reads: “New Jersey, aye — 1; New Hampshire, Connecticut, Pennsylvania, Delaware, Virginia, North Carolina, South Carolina, Georgia, no — 8; Maryland, divided [Jenifer and Caroll, no].”
12. See ante.
13. The words “was then taken up” are here inserted in the transcript.
14. The figures “1,” “2” and “3” are changed in the transcript to “First,” “Secondly” and “Thirdly.”
15. The word “the” is here inserted in the transcript.
16. In the transcript the vote reads: “New Jersey, Pennsylvania, Delaware, Aye — 3; New Hampshire, Massachusetts, Connecticut, Maryland, Virginia, North Carolina, South Carolina, Georgia, no — 8.”
17. In the transcript the vote reads: “New Hampshire, Massachusetts, New Jersey, Pennsylvania, Delaware, aye — 5; Connecticut, Maryland, Virginia [Col. Mason, Mr. Randolph, Mr. Blair, no; General Washington, Mr. Madison, aye] North Carolina, South Carolina, Georgia, no — 6.”
18. The words “On the” are here inserted in the transcript.
19. In the transcript the vote reads: “Massachusetts, Connecticut, Maryland, Virginia [Genl. Washington and Mr. Madison, no] North Carolina, South Carolina, Georgia, aye — 7; New Hampshire, New Jersey, Pennsylvania, Delaware, no — 4.”
20. The figure “1” is changed in the transcript to “In the first place.”
21. The figure “2” is changed in the transcript to “In the second place.”
22. The figure “3” is changed in the transcript to “And in the third place.”
23. The words “have already” are transposed in the transcript to read “already have.”
Some spellings have been modernized and abbreviations put in full text.
This version of Madison’s Notes on the Federal Convention for 22 August 1787, along with the editor’s summary, Copyright © 2011 Steve Farrell and The Moral Liberal.