USA > Virginia > The history of the Virginia federal convention of 1788, with some account of eminent Virginians of that era who were members of the body, Vol. II > Part 14
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136 It was a clear breach of the privileges of the Senate for the House of Delegates to recall from that body, without its consent, a resolution which had been duly passed by the House and was beyond its power, and which was doubtless referred by the Senate to a committee. The Senate Journal of the 30th of November does not notice the receipt of the resolution, but it notices the receipt of other resolutions or bills which White had been commanded, during the day, by the House to present to the Senate. The Journal was, no doubt, corrected when the turn of the House became known.
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shall be wholly owned by such citizens. These resolutions were agreed to, and the Committee of Commerce was ordered to bring in a bill pursuant with their tenor, and at the same time to bring in a bill in pursuance with the resolution instructing the delegates of Virginia in Congress to propose a grant of power over commerce, with certain stipulations, to that body. This was the last action of the House on this famous resolution, which, we are told by Mr. Madison, its peculiar friends cared no longer to sustain; but not until they had presented a resolu- tion, still more famous, which was adopted at a later stage, recom- mending a meeting of the States to consider their commercial regulations, but which was now voted down. 137
The brilliant success of the Federal Constitution has cast a halo around those who were active in preparing the public mind for its advent, and has left in shadow the illustrious men, who, devoted to the independence and glory of Virginia, hesitated to strip her of the prerogatives of sovereignty, and bind her up in one homogeneous mass with all the States. And the reputation of the members of the present House of Delegates has been arraigned at the bar of posterity by a venerable statesman, who usually displayed great magnanimity in judging the conduct of his associates, and whose censure, uttered from the verge of the grave, falls with the greater force upon those against whom it
137 Mr. Madison's words are: " The resolution [of the 21st January, of which presently] had been brought forward several weeks before on the failure of a proposed grant of power to Congress to collect a reve- nue from commerce, which had been abandoned by its friends in con- sequence of material alterations made in the grant by a committee of the whole." ("Introduction to the Debates in the Federal Conven- tion," Madison Papers, Vol. II, 695.) In the same paper (694) Mr. Madi- son calls the proceedings of the House "wayward," but it is hard to see wherein that waywardness consists. A committee reports to the House a resolution embracing certain stipulations, which the House, after full debate, alters and amends. Surely there is nothing "way- ward" in such action. If there was anything openly "wayward," it was the recall of the resolution from the Senate; but Mr. Madison could hardly allude to that subject, as he was one of the majority which sustained that questionable measure. Perhaps it is not going too far to say that Mr. Madison, in writing, so many years later, his "Introduction," could not forget the terrible defeats which he sustained, both in the committee and in the House.
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is aimed. What we have already said will show that the majority acted with a degree of prudence as well as of public spirit, which seem to have been wanting to the minority. That majority conceded nearly all that was asked by the Federal party proper, except the grant of five per centum on imports. The members of the majority voted to grant to Congress the right to lay uniform duties, which, when we regard the relative importance of Virginia in the confederation, was evidently a liberal concession. The duties were to be paid into the treasury of the State within which they were collected; for even the par- tial friends of the Federal Government did not propose to take directly from a State, almost overwhelmed with the embarrass- ments of a long war, all income from the customs. But it was evident that, if the system of uniform duties worked well in practice, it would supply the State with the means of honoring promptly the Federal requisitions already made or to be made thereafter. The majority did refuse to grant the five per centum duty to the Federal Government; but it was refused because the grant, judging from past experience, seemed nearly equivalent to a total surrender of all revenue from imports, while the expense of collection was borne by the State, and at a time when the State was not only burdened with debt, but when entire regions of country were praying to be relieved from the payment of taxes. On the other hand, the conduct of the small Federal minority was not only "wayward," but it verged to faction. This party received nearly all that it asked, with a single prominent exception. They had obtained the consent of the House of Delegates to cede to Congress the unlimited privi- lege of laying uniform duties upon imports. If the system of uniform duties had been carried into effect, then, for the first time, would Virginia be able to derive the full benefit from cus- toms; and it is not improbable that the forward impulse immedi- ately given to trade by the tariff laws of the Federal Govern- ment under the present Constitution would have been felt under the confederation. But the small Federal minority was stub- born, and, we had almost said, factious; and instead of availing themselves of the advantages proposed by a uniform rate of duties, they rejected the scheme in disgust, and, because they could not mould the majority to all their purposes, determined to do nothing at all. Had it not been for the lucky turn of events
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in the following two years, the conduct of the Federal party proper, in folding their arms when really substantial advantages were placed within their reach, would have received the severe condemnation of posterity. Upon a fair view of the case it is just to conclude that, while the conduct of the minority was deficient in judgment and in energy, the disposition of the majority of the House on this as on other occasions was emi- nently liberal and patriotic.139
138 If ever a body of men deserved to be held in grateful remem- brance by the friends of civil and religious freedom, it was the majority which guided the legislative councils of Virginia from 1765 to 1776, and from 1776 to the adoption of the Federal Constitution. That majority was formed in the Colony when Virginia had no more legal connection with any other American Colony than she had with England, Ireland, or Scotland; or, in other words, when her relation to all was the same. We are indebted to that majority for the preparation of the public mind for independence, which it finally achieved. With independence some of the elder members passed from the scene, and their places were filled by a set of young and brilliant men who were more forward in the field and in the cabinet during the war. But as these young men came upon the stage when the Colony had become independent, and was bound in a union of offence and defence with the other States, there was an evident change from the old feeling in their mode of viewing public affairs, and they were inclined to view Virginia rather as in connection with the other States than as an independent sove- reignty standing on her own bottom. But the feeling of the old majority still predominated in the Assembly, and especially in the House of Delegates; and though they were sometimes pressed by extraordinary emergencies to do some questionable things (of which hereafter), yet to their spirit and wisdom we mainly owe the blessings we now enjoy. Lest it might be supposed that we except Mr. Madison from that majority, it is due to the memory of that illustrious man to say that he was from his entrance into public life on many occasions one of the leading members. His services in the House of Delegates in respect of the revised bills, to omit allusion to his important ser- vices in the same theatre in other things, are worthy of all praise. But he belonged to the later type of that majority. He began his career in the Convention of 1776 at the age of twenty-five, passed in a year or two into the Privy Council, which was perpetually engaged with Fede- ral topics, and had served a term of three years in Congress at the close of the war. He had gradually learned to embrace all the States in his political periscope; and he was more apt to decide upon a domestic measure from general than from local considerations. And though in no human bosom was ever ambition the minister of a purer
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Another subject, which ultimately led to important changes in our Federal relations, engaged the attention of the House. On the 28th of June, 1784, the General Assembly appointed four commissioners to meet such as should be appointed by Mary- land, and, in concert with them, to frame such liberal and equita- ble regulations, respecting the jurisdiction and navigation of the river Potomac, as may be mutually advantageous to the two States, and to report the same to the General Assembly.139 On the 28th of December, of the same year, the House of Delegates resolved that the commissioners appointed on the 28th of June last be further authorized to unite with the Maryland commis- sioners in representing to the State of Pennsylvania that it is in contemplation of the said two States to promote the clearing and extending the navigation of the Potomac, from tidewater upwards, as far as the same may be found practicable, to open a convenient road from the head of such navigation to the waters running into the Ohio, and to obtain from Pennsylvania certain immunities in her waters and territory.140 On the 3Ist of December, of the same year (1784), the commissioners made a report, in part, respecting the opening and navigation of the Potomac, which was read, and referred to Grayson, Madison, and Page, who duly reported a bill for the purpose, which was read a second time, on the ist of January, 1785, and committed to the gentlemen who brought it in. On the 3d of January the committee reported the bill without amendment, and it was ordered to be engrossed and read a third time. On the follow- ing day it passed the House, and on the 4th received the assent of the Senate. On the 13th of December, 1785, George Mason, as chairman of the committee appointed under the resolution of the 28th of June, of the preceding year, and charged with fresh · instructions by a resolution of the House, passed on the 28th of
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patriotism, yet he could not be unconscious of his ample endowments, nor feel indisposed to exert them in accomplishing an object which he thought indispensable to the ultimate safety of all the States, and even of liberty itself.
139 The commissioners were George Mason, Edmund Randolph, James Madison, and Alexander Harrison.
14 House Journal, December 28, 1784. The resolution was carried to the Senate by Mr. Madison.
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December, of the same year, addressed a letter to the Speaker of the House, "enclosing the proceedings of the commissioners on the compact between the States of Virginia and Maryland respecting the jurisdiction and the navigation of the rivers Poto- mac and Pocomoke," which were read and ordered to be com- mitted to the Committee of Commerce. On the 26th of the same month Mr. Braxton, from the Committee of Commerce, reported a bill "to approve, confirm, and ratify the compact made by the commissioners appointed by this State to regulate and settle the jurisdiction and navigation of Potomac and Poco- moke rivers, and that part of Chesapeake bay which lieth within the territory of this State"; and the same was received, read the first time, and ordered to be read a second time. On the 27th the bill was read a second time, and committed to Madison, Tyler, Isaac Zane, Corbin, Braxton, and Simms. On the 29th Madison reported the bill, with amendments, which were agreed to by the House, and it was ordered, with the amendments, to be engrossed and read a third time. A few moments after the second reading of the bill a letter from the Governor of New Hampshire was communicated by the Executive to the Speaker of the House, enclosing an act of the Legislature of that State respecting navigation and commerce, which was referred to the whole House, on the bill "for imposing certain rates and duties upon goods, wares, and merchandise imported into this Com- monwealth." On the 30th the bill ratifying the Maryland com- pact was read a third time, and passed without a division; and Madison was requested to carry the bill to the Senate and desire their concurrence, which was given on the 4th of January, 1785, and the bill became a law.
This was a fresh instance of the sincere disposition of the General Assembly of Virginia to adopt the regulations of trade proposed by the Federal party proper, which were not incon- sistent with her position as an independent Commonwealth, and, by prudent management of her resources, to maintain her own credit, and incidentally the credit of the Union. The House had already ordered a bill to be brought in conferring on Con- gress the right to regulate duties for the term of thirteen years; and if from the perverseness of the Federal minority that whole- some and efficient measure was suffered to fall in their pursuit of their more extended schemes, it was no fault of the majority.
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A striking illustration of the hostility with which the majority of the House was regarded by the minority may be seen in the statement of Mr. Madison, who seems to charge that the com- pact between Maryland and Virginia was not communicated to Congress for its sanction in compliance with the Articles of Con- federation.141 The second section of the sixth Article of Confede- ration certainly requires the assent of Congress before any State can "enter into a treaty " with another State; but a distinction is clear between entering into a treaty-that is, making a treaty- and entering into negotiations which may result in a treaty. If the latter were in violation of the Articles of Confederation, Mr. Madison and his colleagues, who made the compact with the Maryland commissioners, and who, under the excitement of the conversations at Mount Vernon, were inclined to go farther in their negotiations than were warranted by their instructions, were knowingly guilty of a grave error. But it is clear that the second section of the sixth article merely forbids the ultimate execution of a compact between two or more States without the consent of Congress. Now, as the assent of Virginia to the com- pact formed by Mr. Madison and his colleagues did not make it final until the assent of Maryland was obtained, it is obvious . that the refusal of the House of Delegates to communicate the compact to Congress in its incomplete state was fairly justified both by the letter and the spirit of the Articles of Confederation. It was also prudent, as Maryland did not give her full assent to the compact. Thus, if the Assembly erred in entertaining a negotiation, Mr. Madison was blameable for acting as their minister in the premises; but, if the Assembly were right in entering upon the preliminaries, as it takes two to make a bar- gain, they incurred no blame in declining to transmit to Con- gress a treaty that, as it turned out, was not " entered into" at 142
141 " Introduction to the Debates in the Federal Convention " (Madi- son Papers, Vol. II, 713). From the position of the charge it appears plainly to refer to the action of Virginia on the Maryland compact.
142 Mr. Madison's words are : "From the legislative Journals of Vir- ginia it appears that a vote refusing to apply for a sanction of Congress was followed by a vote against the communication of the compact to Congress." ( Madison Papers, Vol. II, 712.) This charge is vague. It arraigns Virginia before the Union and before posterity as guilty of a
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But the majority were now to afford still further proof of their urgent wish to promote harmony among the States, to provide for the full and early discharge of the public debt, and to place the United States on an equal footing with foreign Powers in respect to commercial regulations. On the last day of the ses sion (January 21, 1786,) a resolution was offered in the House
most deliberate violation of the letter and spirit of the Articles of Con- federation, while it affords no clew by which we may ascertain its date and soften its heinousness or remove it altogether. But its date can be reduced to a narrow compass It must have happened since 1781, as , the Articles of Confederation did not take effect until that year. . From that date until 1783, Mr. Madison was in Congress, and his gene- ral argument excludes what occurred so early as the war. Indeed, the gist of his argument was that the Articles of Confederation in their last days were not duly respected by the States; and as he was in the Assembly in 1784 and 1785, it is certain that his charge, which must have been founded on what he saw, as the Journals (as we will pres- ently show) contain nothing of the kind, attaches to one of those two years. Now, I affirm, from a minute inspection of the Journals, that I cannot find the slightest foundation of such a charge. On the contrary, I perceive on every page an earnest effort to vest Congress with fresh and larger powers than it already possessed. But as the great compact of those years was the treaty with Maryland, I have traced most criti- . cally the progress of the whole affair, and affirm positively that no such record can be found in the Journals of the House and of the Senate, where, if anywhere, it should appear. Still, I am ready to concede, on the authority of Mr. Madison, that the motions in question were made and rejected ; but, if they were made, as they only could have been made, respecting the Maryland compact, I think I have shown that they were very properly put aside until it was known whether the com- pact should be acceded to by the parties to it. So far on the negative side of the proof. But there is positive proof that the Assembly did recognize to the last the binding force of the second section of the sixth article of the Confederation. On the 13th of January, 1786, a series of resolutions was reported from the Committee of Commerce, one of which was in these words: "That this State should concur with the State of Maryland in making a joint application to Congress for their consent to form a compact for the purpose of affording in due time, and in just proportion between the two States, naval protection to such part of Chesapeake bay and Potomac river which may at any time hereafter be left. unprovided for by Congress," &c., &c., and "that the delegates from this State to Congress ought to be author- ized and requested to make such application in behalf of this State. in conjunction with the delegates from the State of Maryland in Congress."
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of Delegates, which, if we consider its ultimate results, was one of the most memorable in human history. It was resolved "that Edmund Randolph, James Madison, Jr.,143 Walter Jones, Saint George Tucker, and Meriwether Smith, Esqs., be appointed commissioners,1" who, or any three of whom, shall
This resolution was doubtless drawn by Madison, as it recognizes the propriety of obtaining the assent of Congress in the initiatory stages of a compact. Now, what was the action of the House on this reso- lution ? It was immediately read a second time, and was unanimously agreed to ; and, with others of the series, was taken to the Senate by Mr. Braxton, and passed that body, without amendment, on the 17th of January. So that, if, in some moment of excitement, the motions alluded to by Mr. Madison were rejected, the Assembly nobly redeemed their character in the adoption of this resolution. The series of reso- lutions, of which this was the first, consisted of seven, two of which were rejected ; and it is possible that Mr. Madison, after a long lapse of years, relying only on his memory (for there is no record on the Journals in the case that I can find), may have believed that the reso- lution asking the consent of Congress to a compact with Maryland was one of those that were rejected. (House Journal, January 13, 1786, page 140.) What induces me to believe that the resolution in question was written by Mr. Madison, who had been three years in Congress and entertained the esprit de corps, was the use of the word "requested" instead of "instructed," which was invariably used in resolutions addressed by the Assembly to the delegates in Congress. Perhaps it may as well be stated here that Curtis, in his History of the Federal Constitution (Vol. I, 341), following Marshall, dates the appointment of the Virginia commissioners "in the spring of 1785." As such appoint- ments were only made by the Assembly, which up to this period never sat early in the spring (for the Virginia commissioners met in Alex- andria in March), I was led to search the Journals with some care to ascertain the facts of the case, which are as already narrated in the text.
143 I have invariably omitted the affix of "Jr." to Mr. Madison's name, because, however convenient it was in Orange, it had no signifi- cancy in our public bodies.
144 As all the commissioners, except Saint George Tucker, were members of the present Convention, it is proper to say that the time and place agreed upon was the first Monday in September, 1786, and at Annapolis; that Randolph, Madison, and Tucker alone attended; that five States only-Virginia. Pennsylvania, Delaware, New Jersey, and New York-were represented, and that the commissioners from all the States present addressed a letter, written by Alexander Hamil- ton, to the States collectively, setting forth the facts of the case, and
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meet such commissioners as may be appointed by other States in the Union, at a time and place to be agreed on, to take into consideration the trade of the United States; to examine the relative situations and trade of the said States; to consider how far a uniform system in their commercial regulations may be necessary to their common interest and their permanent har- mony, and to report to the several States such an act relative to this great object, as, when unanimously ratified by them, will enable the United States, in Congress, effectually to provide for the same"; and it was also resolved "that the said commission- ers shall immediately transmit to the several States copies of the preceding resolution, with a circular-letter requesting their con- currence therein, and proposing a time and place for the meeting aforesaid." The resolution was offered by John Tyler, one of the majority of the House, and sustained by him. It was twice read, and agreed to by the House without a division. But it was the last day of the session, and there was no time to lose. General Matthews was immediately ordered to carry the resolution to the Senate and desire their concurrence. This remarkable resolution was drawn by Madison, and had been offered in Committee of the Whole, when the resolution grant- ing five per centum of the customs had been summarily rejected; but "it was," says Mr. Madison, " so little acceptable that it was not persisted in," but "it now obtained a general vote."
A message was soon delivered from the Senate, by Mr. Jones, that the resolution was agreed to, with certain amendments, in which that body desired the concurrence of the House. The House proceeded to consider the amendments of the Senate, some of which were agreed to, and others disagreed to. Gene- ral Matthews was ordered to acquaint the Senate therewith. That body instantly receded from the amendments which had been disagreed to by the House, and the resolution became a law. This remarkable resolution was drawn by Madison, and had been offered in Committee of the Whole by Tyler, when
recommending an appointment of commissioners from all the States to assemble in Philadelphia on the second Monday in May next, 1787; that Virginia, in a law drawn by Madison (Madison Papers, Vol. II, 704, and Hening, 1786), was the first to appoint commissioners to the Convention (of which hereafter).
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the stipulation granting five per centum of the customs to the Federal Government had been summarily rejected. "It was, however," says Mr. Madison, "so little acceptable that it was not persisted in, but it now obtained a general vote."
143 The resolution, as altered by the Senate, contains the names of David Ross, William Ronald, and George Mason, and requires five commissioners, instead of three, to be present. Professor Tucker informed me that Madison told him that he wrote the resolution. The Journal does not mention the name of the mover, nor the fact that it had been previously presented. We learn these facts from the "Introduc- tion" of Mr. Madison to the "Debates in the General Convention" ( Madison Papers, Vol. II, 696). Some months ago John C. Hamilton, of New York, wrote to ex-President Tyler with the view of ascertain- ing from him the precise relation which his father (Judge Tyler) bore to the resolution. The ex-President did me the honor of consulting me on the subject, and I wrote to him in detail the facts of the case, and the reasons which induced the selection of his father as the mover. In the course of the investigation the original resolution, in the archives of the House of Delegates, was examined, and it was ascer- tained, as I was told by Mr. Tyler, to be in the handwriting neither of Mr. Madison nor Judge Tyler, but of Mr. Beckley, the Clerk of the House. Mr. Madison assigns as the reason for its passage "that it was the alternative of adjourning without any effort for the crisis in the affairs of the Union." Such was, naturally enough, the conclusion of Mr. Madison as the representative of the Federal party proper, who was disposed to consider nothing done unless in correspondence with his wishes; but the acts of the majority present a very different case. The majority had, indeed, rejected the five per centum feature of the Federal project; but they cheerfully conceded to the Federal Govern- ment the power to establish uniform duties throughout the Union for the term of thirteen years; and when they found it vain to satisfy the Federal minority without what they deemed the virtual subjection of the State at the feet of Congress, they threw the whole responsibility of a general regulation of the customs upon those who, claiming to be the special friends of the Federal Government, had given up the subject in disgust. They accordingly ratified with promptness the compact already made with Maryland, and on the 13th of January, 1786-eight days only before the adjournment-determined to enter into a negotiation with Maryland for the regulation of the commerce of the two States, and adopted the following resolution: "That it is important to the commerce and revenue of the State of Maryland and this State that duties, imports, or exports, if laid, should be the same on both States; and that it is proper for the Legislatures of the said States, at their annual meeting in the autumn, to appoint commission-
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