History of the Origin, Formation, and Adoption of the Constitution of the United States Volume II Part 14

[188] Pennsylvania and Virginia.

[189] See Elliot, V. 507, 528, 529.

[190] As to the other provisions of the Const.i.tution on this subject, see the Index, _verb._ Impeachment.

[191] Elliot, V. 405, 406. Art. I. -- 5 of the Const.i.tution.

[192] Elliot, V. 406. Const.i.tution, Art. I. ---- 5, 6.

[193] Elliot, V. 407. Const.i.tution, Art. I. -- 5.

[194] Elliot, V. 407. Const.i.tution, Art. I. -- 5.

[195] Elliot, V. 507, 520. Const.i.tution, Art. I. -- 3.

[196] Ibid.

[197] Art. I. -- 2.

[198] Const.i.tution, Art. I. -- 7.

[199] A question has been made, whether it is competent to two thirds of the members _present_ in each house to pa.s.s a bill notwithstanding the President's objections, or whether the Const.i.tution means that it shall be pa.s.sed by two thirds of all the members of each branch of the legislature. The history of the "veto" in the Convention seems to me to settle this question. There was a change of phraseology, in the course of the proceedings on this subject, which indicates very clearly a change of intention. The language employed in the resolutions, in all the stages through which they pa.s.sed, was, that "The national executive shall have a right to negative any legislative act, which shall not be afterwards pa.s.sed by _two third parts of each branch of the national legislature_." This was the form of expression contained in the resolutions sent to the committee of detail; and if it had been incorporated into the Const.i.tution, there could have been no question but that its meaning would have been, that the bill must be afterwards pa.s.sed by two thirds of all the members to which each branch is const.i.tutionally ent.i.tled. But the committee of detail changed this expression, and employed one which has a technical meaning, that meaning being made technical by the Const.i.tution itself.

Before the committee came to carry out the resolution relating to the President's negative, they had occasion to define what should const.i.tute a "_house_" in each branch of the legislature; and they did so by the provision that a majority of each _house_ shall const.i.tute a quorum to do business. This expression, a "house," or "each house," is several times employed in the Const.i.tution, with reference to the faculties and powers of the two chambers respectively, and it always means, when so used, the const.i.tutional quorum, a.s.sembled for the transaction of business, and capable of transacting business. This same expression was employed by the committee when they provided for the mode in which a bill, once rejected by the President, should be again brought before the legislative bodies. They directed it to be returned "_to that_ HOUSE _in which it shall have originated_,"--that is to say, to a const.i.tutional quorum, a majority of which pa.s.sed it in the first instance; and they then provided, that, if "_two thirds_ of that HOUSE shall agree to pa.s.s the bill, it shall be sent, together with the objections, to the other HOUSE,... and if approved by _two thirds_ of that HOUSE, it shall become a law." This change of phraseology, taken in connection with the obvious meaning of the term "house," as used in the Const.i.tution when it speaks of a chamber competent to do business, shows the intention very clearly. It is a very different provision from what would have existed, if the phrase "two third parts of each branch of the national legislature" had been retained. (See Elliot, V. 349, 376, 378, 431 536.)

This view will be sustained by an examination of all the instances in which the votes of "two thirds" in either body are required. Thus, "each house may determine the rules of its proceedings, punish its members for disorderly behavior, and, _with the concurrence of two thirds_, expel a member." (Art. I. -- 5.) The context of the same article defines what is to const.i.tute a "house," and makes it clear that two thirds of a "house" may expel. That this was the intention is also clear from what took place in the Convention. Mr. Madison objected to the provision as it stood on the report of the committee, by which a mere _majority_ of a quorum was empowered to expel, and, on his motion, the words "with the concurrence of two thirds" were inserted. (Elliot, V. 406, 407.) In like manner, the fifth Article of the Const.i.tution empowers Congress, "_whenever two thirds of both_ HOUSES _shall deem it necessary_," to propose amendments to the Const.i.tution. The term "house" is here used as synonymous with a quorum.

It has been suggested, however, that the use of a positive expression, in relation to the action of the Senate upon treaties, throws some doubt upon the meaning of the term "two thirds," as used in other parts of the Const.i.tution. A treaty requires the concurrence of "two thirds of the senators _present_"; and it has been argued that the omission of this term in the other cases shows that two thirds of all the members are required in those cases. But it is to be remembered, that the Const.i.tution makes a general provision as to what shall const.i.tute a house for the transaction of business; that when it means that a particular function shall not be performed by such a house, or quorum, it establishes the exception by a particular provision, as when it requires two thirds of all the States to be present in the House of Representatives on the choice of a President, and makes a majority of all the States necessary to a choice; and that whether the function of the Senate in approving treaties is or is not a part of the business which under the general provision is required to be done in a "house" or quorum consisting of a majority of all the members, the Const.i.tution does not speak of this function as being done by a "house," but it speaks of the "advice and consent of the _Senate_," to be given "by two thirds of the senators _present_." The use of the term "present" was necessary, therefore, in this connection, because no term had preceded it which would guide the construction to the conclusion intended; but in the other cases, the previous use of the term "house," defined to be a majority of all the members, determines the sense in which the term "two thirds" is to be understood, and makes it, as I humbly conceive, two thirds of a const.i.tutional quorum.

[200] _Ante_, Vol. I. 220, note, 226, note.

[201] October 6, 1783, Journals, VIII. 423.

[202] October 8. Ibid. 424, 425.

[203] December 10, 11, 1784. Journals, X. 16-18.

[204] December 20, 21. Ibid. 23, 24.

[205] Pa.s.sed December 23. Ibid. 29.

[206] They removed from it October 2, 1788, on a notice from the Mayor of the city that repairs were to be made.

[207] See _ante_, Vol. I. pp. 358-361.

[208] See the conversation reported by Madison, Elliot, V. 374.

[209] Elliot, V. 409, 410. See _post_, as to the power of the President to a.s.semble and adjourn Congress.

[210] Mr. Justice Story has stated in his Commentaries (-- 829), that this clause came into the Const.i.tution in the _revised_ draft, near the close of the Convention, and was silently adopted, without opposition. This is a mistake. The clause was contained in the draft of the committee of detail, and was modified as stated in the text, on the 7th of August, after a full debate. Elliot, V. 377, 383-385.

CHAPTER X

REPORT OF THE COMMITTEE OF DETAIL, CONTINUED.--THE POWERS OF CONGRESS.--THE GRAND COMPROMISES OF THE CONSt.i.tUTION RESPECTING COMMERCE, EXPORTS, AND THE SLAVE-TRADE.

In the examination which has thus far been made of the process of forming the Const.i.tution, the reader will have noticed the absence of any express provisions concerning the regulation of commerce, and the obtaining of revenues. A system of government had been framed, embracing a national legislature, in which the mode of representation alone had been determined with precision. The powers of this legislature had been described only in very general terms. It was to have "the legislative rights vested in Congress by the Confederation,"

and the power "to legislate in all cases for the general interests of the Union, and also in those to which the States were separately incompetent, or in which the harmony of the United States may be interrupted by the exercise of individual legislation."

It might undoubtedly have been considered that, as the want of a power in the Confederation to make uniform commercial regulations affecting the foreign and domestic relations of the States was one of the princ.i.p.al causes of the a.s.sembling of this Convention, such a power was implied in the terms of the resolution, which had declared the general principles on which the authority of the national legislature ought to be regulated. Still, it remained to be determined what kind of regulation of commerce was required by "the general interests of the Union," or how far the States were incompetent, by their separate legislation, to deal with the interests of commerce so as to promote "the harmony of the United States." In the same way, a power to obtain revenues might be implied on the same general principles. But whether the commercial power foreshadowed in these broad declarations was to be limited or unlimited; whether there were any special objects or interests to which it was not to extend; and whether the revenues of the government were to be derived from imposts laid at pleasure upon imports or exports, or both; whether they might be derived from excises on the manufactures or produce of the country; whether its power of direct taxation was to be exercised under further limitations than those already agreed upon for the apportionment of direct taxes among the States;--all these details were as yet entirely unsettled.

Two subjects, one of which might fall within a general commercial power, and the other within a general power to raise revenues, had already been incidentally alluded to, and both were likely to create great embarra.s.sment. General Pinckney had twice given notice that South Carolina could not accede to the new Union proposed, if it possessed a power to tax exports.[211] It had also become apparent, in the discussions and arrangements respecting the apportionment of representatives, that the possible encouragement of the slave-trade, which might follow an admission of the blacks into the rule of representation, was one great obstacle, in the view of the Northern States, to such an admission; and at the same time, that it was very doubtful whether all the Southern States would surrender to the general government the power to prohibit that trade.[212] The compromise which had already taken place on the subject of representation had settled the principles on which that difficult matter was to be arranged. But the power to increase the slave populations by continued importation had not been agreed to be surrendered; and unless some satisfactory and reasonable adjustment could be made on this subject, there could be no probability that the Const.i.tution would be finally ratified by the people of the Northern States.[213] It is necessary, therefore, to look carefully at these two subjects, namely, the taxation of exports and the prohibition of the slave-trade.

That a power to lay taxes or duties on exported products belongs to every government possessing a general authority to select the objects from which its revenues are to be derived, is a proposition which admits of little doubt. It is not to be doubted, either, that it is a power which may be attended with great benefit, not only for purposes of revenue, but for the encouragement of manufactures; and it is clear that it may often be used as a means of controlling the commercial policy of other countries, when applied to articles which they cannot produce, but which they must consume. A government that is dest.i.tute of this power is not armed with the most complete and effectual means for counteracting the regulations of foreign countries that bear heavily upon the industrial pursuits of its people, although it may have other and sufficient sources of revenue; and therefore, until an unrestricted commercial intercourse and a free exchange of commodities become the general policy of the world, to deny to any government a power over the exported products of its own country, is to place it at some disadvantage with all commercial nations that possess the power to enhance the price of commodities which they themselves produce.

But, on the other hand, the practice of taxing the products of a country, as they pa.s.s out of its limits to enter into the consumption of other nations, can be beneficially exercised only by a government that can select and arrange the objects of such taxation so as to do nearly equal justice to all its producing interests. If, for example, the article of wine were produced only by a single province of France, and all the other provinces produced no commodities sought for by other nations, an export duty upon wine would fall wholly upon the single province where it was produced, and would place its production at an unequal compet.i.tion with the wines of other countries. But France produces a variety of wines, the growth of many different provinces; and therefore, in the adjustment of an export duty upon wines, the government of that country, after a due regard to the demand for each kind or cla.s.s of this commodity, has chiefly to consider the effect of such a tax in the compet.i.tion with the same commodity produced by other nations.

At the time of the formation of the Const.i.tution of the United States, there was not a single production, common to all the States, of sufficient importance to become an article of general exportation.

Indeed, there were no commodities produced for exportation by so many of the States, that a tax or duty imposed upon them on leaving the country would operate with anything like equality even in different sections of the Union. In fact, from the extreme northern to the extreme southern boundary of the Union, the exports were so various, both in kind and amount, that a tax imposed on an article the produce of the South could not be balanced by a tax imposed upon an article produced or manufactured at the North. How, for example, could the burden of an export duty on the tobacco of Virginia, or the rice or indigo of South Carolina, be equalized by a similar duty on the lumber or fish or flour of other States? Possibly, after long experience and the acc.u.mulation of the necessary statistics, an approach towards an equality of such burdens might have been made; but it could never have become more than an unsatisfactory approximation; and while the effect of such a tax at one end of the Union on the demand for the commodity subjected to it might be estimated,--because the opportunity for other nations to supply themselves elsewhere might be so precise as to be easily measured,--its effect at the other end of the Union, on another commodity, might be wholly uncertain, because the demand from abroad might be influenced by new sources of supply, or might from accidental causes continue to be nearly the same as before.

However theoretically correct it might have been, therefore, to confer on the general government the same authority to tax exports as to impose duties on imported commodities,--and the argument for it drawn from the necessities for revenue and protection of manufactures was exceedingly strong,--the actual situation of the country made it quite impracticable to obtain the consent of some of the States to a full and complete revenue power. Several of the most important persons in the Convention were strongly in favor of it. Was.h.i.+ngton, Madison, Wilson, Gouverneur Morris, and d.i.c.kinson are known to have held the opinion, that the government would be incomplete, without a power to tax exports as well as imports. But the decided stand taken by South Carolina, whose exports for a single year were said by General Pinckney to have amounted to 600,000, the fruit of the labor of her slaves, probably led the committee of detail to insert in their report of a draft of the Const.i.tution a distinct prohibition against laying any tax or duty on articles exported from any State.

A similar question, in relation to the extent of the commercial power, was destined to arise out of the relations of the different States to the slave-trade. If the power to regulate commerce, that might be conferred upon the general government, was to be universal and unlimited, it must include the right to prohibit the importation of slaves. If the right to sanction or tolerate the importation of slaves, which, like all other political rights, belonged to the people of the several States as sovereign communities, was to be retained by them as an exception from the commercial power which they might confer upon the national legislature, that exception must be clearly and definitely established. For several reasons, the question was necessarily to be met, as soon as the character and extent of the commercial power should come into discussion. While the trade had been prohibited by all the other States, including Virginia and Maryland, it had only been subjected to a duty by North Carolina, and was subjected to a similar discouragement by South Carolina and Georgia.

The basis of representation in the national legislature, in which it had been agreed that the slaves should be included in a certain ratio, created a strong political motive with the Northern States to obtain for the general government a power to prevent further importations. It was fortunate that this motive existed; for the honor and reputation of the country were concerned to put an end to this traffic. No other nation, it was true, had at that time abolished it; but here were the a.s.sembled States of America, engaged in framing a Const.i.tution of government, that ought, if the American character was to be consistent with the principles of the American Revolution, to go as far in the recognition of human rights as the circ.u.mstances of their actual situation would admit. What was practicable to be done, from considerations of humanity, and all that could be successfully done, was the measure of their duty as statesmen, admitted and acted upon by the framers of the Const.i.tution, including many of those who represented slaveholding const.i.tuencies, as well as the representatives of States that had either abolished both the traffic in slaves and the inst.i.tution itself, or were obviously destined to do it.

This just and necessary rule of action, however, which limited their efforts to what the actual circ.u.mstances of the country would permit, made a clear distinction between a prohibition of the future importation of slaves, and the manumission of those already in the country. The former could be accomplished, if the consent of the people of the States could be obtained, without trenching on their sovereign control over the condition of all persons within their respective limits. It involved only the surrender of a right to add to the numbers of their slaves by continued importations. But the power to determine whether the slaves then within their limits should remain in that condition, could not be surrendered by the people of the States, without overturning every principle on which the system of the new government had been rested, and which had thus far been justly regarded as essential to its establishment and to its future successful operation.

It is not, therefore, to be inferred, because a large majority of the Convention sought for a power to prohibit the increase of slaves by further importation, that they intended by means of it to extinguish the inst.i.tution of slavery within the States. So far as they acted from a political motive, they designed to take away the power of a State to increase its congressional representation by bringing slaves from Africa; and so far as they acted from motives of general justice and humanity, they designed to terminate a traffic which never has been and never can be carried on without infinite cruelty and national dishonor. That the individuals of an inferior race already placed in the condition of servitude to a superior one may, by the force of necessity, be rightfully left in the care and dominion of those on whom they have been cast, is a proposition of morals entirely fit to be admitted by a Christian statesman. That new individuals may rightfully be placed in the same condition, not by the act of Providence through the natural increase of the species, but by the act of man in transferring them from distant lands, is quite another proposition. The distinction between the two, so far as a moral judgment is concerned with the acts of the framers of the Const.i.tution upon the circ.u.mstances before them, defines the limits of duty which they intended to recognize.

No satisfactory means exist for determining to what extent a continuance of the importation of slaves was necessary, in an economical point of view, to the States of North Carolina, South Carolina, and Georgia. There is some reason to suppose that the natural increase of the slave population in Virginia at that period more than supplied her wants; and perhaps the less healthy regions of the more southern States may have still required foreign supplies in order to keep the lands already occupied under cultivation, or to make new lands productive.[214] All that is historically certain on this subject is, that the representatives of the three most southerly States acted upon the belief, that their const.i.tuents would not surrender the right to continue the importation of slaves, although they might, if left to themselves, discontinue the practice at some future time.

These declarations, however, had not been made at the time when the principles on which the Const.i.tution was to be framed were sent to the committee of detail. Nothing had yet occurred in the Convention, to make it certain that the power to import would be retained by any of the States. The committee of detail had, therefore, so far as the action of the Convention had gone, an unrestricted choice between a full and a limited commercial power. They consisted of three members from non-slaveholding and two from slaveholding States;[215] but as one of them, Mr. Rutledge of South Carolina, was one of the persons who subsequently announced to the Convention the position that would be taken by his own State and by North Carolina and Georgia, there can be no doubt that he announced the same determination in the committee.

In their report, they shaped the commercial power accordingly. They provided that the legislature of the United States should have power to lay and collect taxes, duties, imposts, and excises; and to regulate commerce with foreign nations, and among the several States.

But they also reported several restrictions upon both the revenue and commercial powers. Besides providing, in accordance with the ninth resolution adopted by the Convention, that direct taxation should be proportioned among the States according to the census, to be taken by a particular rule, they added the further restrictions, that no tax or duty should be laid by the national legislature on articles exported from any State, nor on the migration or importation of such persons as the several States might think proper to admit; that such migration or importation should not be prohibited; that no capitation tax should be laid, unless in proportion to the census; and that no navigation act should be pa.s.sed without the a.s.sent of two thirds of the members present in each house.

That the new government must have a direct revenue power, was generally conceded, and it was also generally admitted that it must have a power to regulate commerce with foreign countries. But the idea was more or less prevalent among the Southern statesmen, that the interest of their own States, considered as a distinct and separate interest from that of the commercial States, did not require a regulation of commerce by the general government. It is not easy to determine to what extent these views were correct. Taking into consideration nothing more than the fact, that the staple production of Virginia was tobacco, as it was also partly that of North Carolina; that rice and indigo were the great products of South Carolina and Georgia; and that neither of these four States possessed a large amount of s.h.i.+pping;--it might certainly be considered that an unrestricted foreign intercourse was important to them.

But, on the other hand, if those States, by clothing the Union with a power to regulate commerce, were likely to subject themselves to a temporary rise of freights, the measures which might have that effect would also tend directly to increase Southern as well as Northern s.h.i.+pping, to augment the commercial marine of the whole country, and thus to increase its general maritime strength. The general security thus promoted was as important to one cla.s.s of States as to another.

The increase of the coasting trade would also increase the consumption of the produce of all the States. The great benefit, however, to be derived from a national regulation of commerce,--a benefit in which all the States would equally share, whatever might be their productions,--was undoubtedly the removal of the existing and injurious retaliations which the States had hitherto practised against each other.[216]

Still, these advantages were indirect or incidental. The immediate and palpable commercial interests of different portions of the Union, regarded in the ma.s.s, were not identical; and it was in one sense true, that the power of regulating commerce was a concession on the part of the Southern States to the Northern, for which they might reasonably expect equivalent advantages, or which they might reasonably desire to qualify by some restriction.

On the reception of the report of the committee of detail, and when the article relating to representation was reached, the consequences of agreeing that the slaves should be computed in the rule, taken in connection with an unrestrained power in the States to increase the slave populations by further importation, and with the exemption of exports from taxation, became more prominent, and more likely to produce serious dissatisfaction. The concession of the slave representation had been made by some of the Northern members, in the hope that it might be the means of strengthening the plan of government, and of procuring for it full powers both of revenue and of commercial regulation. But now, it appeared that, as to two very important points, the hands of the national legislature were to be absolutely tied. The importation of slaves could not be prohibited; exports could not be taxed. These restrictions seemed to many to have an inevitable tendency to defeat the great primary purposes of a national government. All must agree, that defence against foreign invasion and against internal sedition was one of the princ.i.p.al objects for which such a government was to be established. Were all the States then to be bound to defend each, and was each to be at liberty to introduce a weakness which would increase both its own and the general danger, and at the same time to withhold the compensation for the burden? If slaves were to be imported, why should not the exports produced by their labor supply a revenue, that would enable the general government to defend their masters? To refuse it, was so inequitable and unreasonable, said Rufus King, that he could not a.s.sent to the representation of the slaves, unless exports should be taxable;--perhaps he could not finally consent to it, under any circ.u.mstances.[217]

Gouverneur Morris, with his accustomed ardor, went further still, and insisted on re-opening the subject of representation, now that the other features of the system were to be made to favor the increase of slaves, and to throw the burdens of maintaining the government chiefly upon the Northern States. It was idle, he declared, to say that direct taxation might be levied upon the slaveholding States in proportion to their representative population: for the general government could never stretch out its hand, and put it directly into the pockets of the people, over so vast a country. Its revenues must be derived from exports, imports, and excises. He therefore would not consent to the sacrifices demanded, and moved the insertion of the word "free" before the word "inhabitants," in the article regulating the basis of representation.[218]