CHAPTER XXV.

THE FRAMERS OF THE CONSTITUTION ON REGULATING OUR COMMERCE.

Unanimity of Sentiment. In his letter transmitting the Constitution to the Continental Congress, September 17, 1787, General Washington, who had been President of the Convention, observed:

"The friends of our country have long seen and desired that the power of making war, peace, and treaties, that of levying. money and regulating commerce, and the corresponding executive and judicial authorities should be fully and effectually vested in the general Government of the Union."

One of the principal objects of the Constitution thus declared to be the regulation of our foreign and domestic trade, in the interest of an American marine, it was natural that in the Convention unanimity of sentiment on this subject should prevail. Some have supposed that the extreme Southern States, having but a scanty shipping, took no interest in provisions for a merchant marine, but left that to the Middle and Eastern States. But there is no warrant for this belief. One of the ablest of the Delegates from that section was Mr. Charles Pinckney, of South Carolina, who offered a plan for a Constitution. In this. paper the second of the enumerated powers granted to Congress,. in article 6, read thus:

"To regulate commerce with all nations and among the several States."

And his plan provided, also, that all laws regulating commerce "shall require the assent of two thirds of the members present in each house."

In the plan of Constitution, reported to the Convention by a Committee appointed therefor, August 6, 1787, section 2 of arti

cle 7, being the second of the enumerated powers granted to Congress, provided for the regulation of commerce with foreign nations and between the States.

Pinckney's Two-Thirds Proposition. The Delegates from South Carolina and Georgia desired for a while the continuance of imports of African labor, and they argued that this was necessary to induce their States to adopt the Constitution. The Convention finding it difficult to agree on the migration proposition, the matter was referred to a committee of eleven. Mr. Gouverneur Morris, of Pennsylvania, "wished the whole subject to be committed, including the clause relating to taxes on exports and to a navigation act." Finally, Mr. Pinckney and Mr. Langdon moved to commit section 6, as to a navigation act, by two thirds of each House. On this question only Connecticut and New Jersey voted no. The Committee, in the order of States, consisted of Messrs. Langdon, of N. H., King, Johnson, Livingston, Clymer, Dickenson, Martin, Madison, Williamson, C. C. Pinckney, and Baldwin, of Ga. Livingston, of N. Y., was chairman. He reported to strike out so much of the 4th section as was referred to the Committee and insert, "The migration or importation of such persons as the several States now existing shall think proper to admit shall not be prohibited by the Legislature prior to the year A. D. 1800, but a tax or duty may be imposed on such migration at a rate not exceeding the average of the duties laid on imports." "The 5th section to remain as in the Report."

"The 6th to be stricken out."

This last was the two-thirds restriction.

When this Report was taken up, General Pinckney moved to strike out the words, "the year 1800," and insert the words, "the year 1808," as the time limit of slave importation.

Mr. Gorham seconded the motion.

Mr. Madison said: "Twenty years will produce all the mischief that can be apprehended from the liberty to import slaves. So long a term will be more dishonorable to the National character than to say nothing about it in the Constitution." New Jersey, Pennsylvania, Delaware, and Virginia voted no, the others, aye. Gouverneur Morris was for making the clause to

read, "importation of slaves into North Carolina, South Carolina, and Georgia shall not be prohibited," etc. Mr. Madison thought it wrong to admit in the Constitution the idea that there could be property in men.

When the Report was again taken up, Mr. Pinckney moved to postpone it in favor of the following proposition: "That no act of the Legislature for the purpose of regulating the commerce of the United States with foreign powers, or among the several States, shall be passed without the assent of two thirds of the members of each house."

Reasons for Restriction. Mr. Pinckney remarked, "that there were five distinct commercial interests: 1. The fisheries and West India trade, which belonged to the New England States; 2. The interest of New York, which lay in a free trade; 3. Wheat and flour, the staples of the Middle States (New Jersey and Pennsylvania); 4. Tobacco, the staple of Maryland and Virginia and partly of North Carolina; 5. Rice and indigo, the staples of South Carolina and Georgia. These different interests would be a source of oppressive regulations, if no check to a bare majority should be provided. States pursue their interests with less scruple than individuals. The power of regulating commerce was a pure concession on the part of the Southern States. They did not need the protection of the Northern States at present."

Mr. Martin seconded the motion.

Continuing, Mr. Pinckney said: "It was the true interest of the Southern States to have no regulation of commerce; but considering the loss brought on the commerce of the Eastern States by the Revolution, their liberal conduct towards the views of South Carolina, and the interest the weak Southern States had in being united with the strong Eastern States, he thought it proper that no fetters should be imposed on the power of making commercial regulations; and that his constituents,

1 The editor of the work quoted from says in a note: "He meant the permission to import slaves. An understanding on the two subjects of navigation and slavery had taken place between those parts of the Union, which explains the vote on the motion (Pinckney's), as well as the language of General Pinckney and others."

though prejudiced against the Eastern States, would be reconciled to this liberality."

The Opposition developed. Mr. Clymer, of Pa., remarked: "The diversity of commercial interests of necessity creates difficulties, which ought not to be increased by unnecessary restrictions. The Northern and Middle States will be ruined, if not enabled to defend themselves against foreign regulations."

Mr. Sherman, of Conn., alluding to Pinckney's enumeration of particular interests, as requiring a security against abuse of the power, observed that the diversity was of itself a security, adding that "to require more than a majority to decide a question was always embarrassing, as had been experienced in cases requiring the votes of nine States in Congress."

Mr. Pinckney replied that "his enumeration meant the five minute interests"—"It still left the two great divisions of Northern and Southern interests."

66

Mr. Gouverneur Morris opposed the object of the motion as highly injurious. Preferences to American ships will multiply them, till they can carry the Southern produce cheaper than it is now carried. A navy [marine] was essential to security, particularly of the Southern States, and can only be had by a navigation act encouraging American bottoms and seamen. In those points of view, then, alone it is the interest of the Southern States that navigation acts should be facilitated. Shipping, he said, was the worst and most precarious kind of property, and stood in need of public patronage."

Mr. Williamson, of N. C., was in favor of "making two thirds instead of a majority requisite, as more satisfactory to the Southern people. No useful measure, he believed, had been lost in Congress for want of nine votes. . . . He acknowledged that he did not think the motion requiring two thirds necessary in itself, because if a majority of Northern States should push their regulations too far, the Southern States would build ships for themselves; but he knew the Southern people were apprehensive on this subject, and would be pleased with the precaution."

Mr. Spaight, of Va., was against the motion. "The Southern States could at any time save themselves from oppression by building ships for their own use."

Mr. Butler, of S. C., differed from those who considered the rejection of the motion as no concession on the part of the Southern States. "He considered the interest of these and of the Eastern States to be as different as the interests of Russia and Turkey. Being, notwithstanding, desirous of conciliating the affections of the Eastern States, he should vote against requiring two thirds instead of a majority.”

Colonel Mason, of Va., said: "If the Government is to be lasting, it must be founded in the confidence and affections of the people, and must be so constructed as to obtain these. The majority will be governed by their interests. The Southern States are the minority in both Houses. Is it to be expected that they will deliver themselves bound hand and foot to the Eastern States, and enable them to exclaim, in the words of Cromwell on a certain occasion, the Lord hath delivered them into our hands'?"

Mr. Wilson, of Pa., took notice of the several objections, and remarked that, "if every peculiar interest was to be secured, unanimity ought to be required. The majority would be no more governed by interest than the minority. It was surely better to let the latter be bound hand and foot than the former. Great inconveniences had, he contended, been experienced in Congress from the article of Confederation requiring nine votes in certain cases."

A Statesman's Clear View. “Mr. Madison went into a pretty full view on the subject. He observed that the disadvantage to the Southern States from a navigation act lay chiefly in a temporary rise of freight, attended, however, with an increase of Southern as well as Northern shipping; with the emigration of Northern seamen and merchants to the Southern States; and with a removal of the existing and injurious retaliations among the States on each other. The power of foreign nations to obstruct our retaliatory measures on them by a corrupt influence would also be less if a majority should be made competent than if two thirds of each House should be required to legislative acts in this case. An abuse of the power would be qualified with all these good effects. But he thought an abuse was rendered improbable by the provision of two branches; by the