Article 1, Section 8, Clause 3 (Commerce)

Document 8

Records of the Federal Convention

[1:133; Madison, 6 June]

Mr. Sherman. . . . The objects of the Union, he thought were few. . . . 4 regulating foreign commerce, & drawing revenues from it.

[1:243; Madison, 15 June]

2. Resd. that in addition to the powers vested in the U. States in Congress, by the present existing articles of Confederation, they be authorized to . . . pass Acts for the regulation of trade & commerce as well with foreign nations as with each other:

[4:23; Martin, 19 June]

. . . because the States individually are incompetent to the purpose that the United-States should also regulate the Commerce of the United-States foreign & internal, is I believe a matter of general Consent. . . .

[2:374; Madison, 22 Aug.]

[Article 7, Sec. 4: "No tax or duty shall be laid by the Legislature on articles exported from any State; nor on the migration or importation of such persons as the several States shall think proper to admit; nor shall such migration or importation be prohibited."]

Mr Govr. Morris wished the whole subject to be committed including the clauses relating to taxes on exports & to a navigation act. These things may form a bargain among the Northern & Southern States.

Mr. Butler declared that he never would agree to the power of taxing exports.

Mr. Sherman said it was better to let the S. States import slaves than to part with them, if they made that a sine qua non. He was opposed to a tax on slaves imported as making the matter worse, because it implied they were property. He acknowledged that if the power of prohibiting the importation should be given to the Genl. Government that it would be exercised. He thought it would be its duty to exercise the power.

Mr. Read was for the commitment provided the clause concerning taxes on exports should also be committed.

Mr. Sherman observed that that clause had been agreed to & therefore could not committed.

Mr. Randolph was for committing in order that some middle ground might, if possible, be found. He could never agree to the clause as it stands. He wd. sooner risk the constitution--He dwelt on the dilemma to which the Convention was exposed. By agreeing to the clause, it [Volume 2, Page 484] would revolt the Quakers, the Methodists, and many others in the States having no slaves. On the other hand, two States might be lost to the Union. Let us then, he said, try the chance of a commitment.

On the question for committing the remaining part of Sect 4 & 5. of art: 7. N. H. no. Mas. abst. Cont. ay N. J. ay Pa. no. Del. no Maryd ay. Va ay. N. C. ay S. C. ay. Geo. ay. [Ayes--7; noes--3; absent--1.]

Mr. Pinkney & Mr. Langdon moved to commit sect. 6. as to navigation act by two thirds of each House.

Mr. Gorham did not see the propriety of it. Is it meant to require a greater proportion of votes? He desired it to be remembered that the Eastern States had no motive to Union but a commercial one. They were able to protect themselves. They were not afraid of external danger, and did not need the aid of the Southn. States.

Mr. Wilson wished for a commitment in order to reduce the proportion of votes required.

Mr. Elsworth was for taking the plan as it is. This widening of opinions has a threatening aspect. If we do not agree on this middle & moderate ground he was afraid we should lose two States, with such others as may be disposed to stand aloof, should fly into a variety of shapes & directions, and most probably into several confederations and not without bloodshed.

On Question for committing 6 sect. as to navigation Act to a member from each State--N. H. ay--Mas. ay. Ct no. N. J. no. Pa. ay. Del. ay. Md. ay. Va. ay. N.C. ay. S.C. ay. Geo. ay. [Ayes--9; noes--2.]

[2:449; Madison, 29 Aug.]

Art. VII Sect. 6 by ye. Committee of eleven reported to be struck out (see the 24 instant) being now taken up,

Mr. Pinkney moved to postpone the Report in favor of the following proposition--"That no act of the Legislature for the purpose of regulating the commerce of the U--S. with foreign powers, or among the several States, shall be passed without the assent of two thirds of the members of each House--" --He remarked that there were five distinct commercial interests--1. the fisheries & W. India trade, which belonged to the N. England States. 2. the interest of N. York lay in a free trade. 3. Wheat & flour the Staples of the two Middle States, (N. J. & Penna.)--4. Tobo. the staple of Maryd. & Virginia & partly of N. Carolina. 5. Rice & Indigo, the staples of S. Carolina & 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 S. States. They did not need. the protection of the N. States at present.

Mr. Martin 2ded. the motion

Genl. Pinkney said it was the true interest of the S. 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 Southn. 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 though prejudiced against the Eastern States, would be reconciled to this liberality--He had himself, he said, prejudices agst the Eastern States before he came here, but would acknowledge that he had found them as liberal and candid as any men whatever.

Mr. Clymer. The diversity of commercial interests, of necessity creates difficulties, which ought not to be increased by unnecessary restrictions. The Northern & middle States will be ruined, if not enabled to defend themselves against foreign regulations.

Mr. Sherman, alluding to Mr. Pinkney's enumeration of particular interests, as requiring a security agst. 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. Pinkney replied that his enumeration meant the five minute interests--It still left the two great divisions of Northern & Southern Interests.

Mr. Govr. 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 was essential to security, particularly of the S. States, and can only be had by a navigation act encouraging american bottoms & seamen--In those points of view then alone, it is the interest of the S. States that navigation acts should be facilitated. Shipping he said was the worst & most precarious kind of property. and stood in need of public patronage.

Mr Williamson 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 As to the weakness of the Southern States, he was not alarmed on that account. The sickliness of their climate for invaders would prevent their being made an object. He acknowledged that he did not think the motion requiring 2/3 necessary in itself, because if a majority of Northern States should push their regulations too far, the S. 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 was against the motion. The Southern States could at any time save themselves from oppression, by building ships for their own use.

Mr. Butler differed from those who considered the rejection of the motion as no concession on the part of the S. States. He considered the interests of these and of the Eastern States, to be as different as the interests of Russia and Turkey. Being notwitstanding desirous of conciliating the affections of the East: States, he should vote agst. requiring 2/3 instead of a majority.

Col: Mason. If the Govt. is to be lasting, it must be founded in the confidence & 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 & foot to the Eastern [Volume 2, Page 485] 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 took notice of the several objections and remarked that if every peculiar interest was to be secured, unanimity ought to be required. The majority he said 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.

Mr. Madison. went into a pretty full view of the subject. He observed that the disadvantage to the S. States from a navigation act, lay chiefly in a temporary rise of freight, attended however with an increase of Southn. as well as Northern Shipping--with the emigration of Northern seamen & merchants to the Southern States--& with a removal of the existing & injurious retaliations among the States on each other. The power of foreign nations to obstruct our retaliating measures on them by a corrupt influence would also be less if a majority shd be made competent than if 2/3 of each House shd. 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 2 branches--by the independence of the Senate, by the negative of the Executive, by the interest of Connecticut & N. Jersey which were agricultural, not commercial States; by the interior interest which was also agricultural in the most commercial States--by the accession of Western States which wd. be altogether agricultural. He added that the Southern States would derive an essential advantage in the general security afforded by the increase of our maritime strength. He stated the vulnerable situation of them all, and of Virginia in particular. The increase of the Coasting trade, and of seamen, would also be favorable to the S. States, by increasing, the consumption of their produce. If the Wealth of the Eastern should in a still greater proportion be augmented, that wealth wd. contribute the more to the public wants, and be otherwise a national benefit.

Mr. Rutlidge was agst. the motion of his colleague. It did not follow from a grant of the power to regulate trade, that it would be abused. At the worst a navigation act could bear hard a little while only on the S. States. As we are laying the foundation for a great empire, we ought to take a permanent view of the subject and not look at the present moment only. He reminded the House of the necessity of securing the West India trade to this country. That was the great object, and a navigation Act was necessary for obtaining it.

Mr. Randolph said that there were features so odious in the Constitution as it now stands, that he doubted whether he should be able to agree to it. A rejection of the motion would compleat the deformity of the system. He took notice of the argument in favor of giving the power over trade to a majority, drawn from the opportunity foreign powers would have of obstructing retaliating measures, if two thirds were made requisite. He did not think there was weight in that consideration-- The difference between a majority & two thirds did not afford room for such an opportunity. Foreign influence would also be more likely to be exerted on the President who could require three fourths by his negative-- He did not mean however to enter into the merits. What he had in view was merely to pave the way for a declaration which he might be hereafter obliged to make if an accumulation of obnoxious ingredients should take place, that he could not give his assent to the plan.

Mr Gorham. If the Government is to be so fettered as to be unable to relieve the Eastern States what motive can they have to join in it, and thereby tie their own hands from measures which they could otherwise take for themselves. The Eastern States were not led to strengthen the Union by fear for their own safety. He deprecated the consequences of disunion, but if it should take place it was the Southern part of the Continent that had the most reason to dread them. He urged the improbability of a combination against the interest of the Southern States, the different situations of the Northern & Middle States being a security against it. It was moreover certain that foreign ships would never be altogether excluded especially those of Nations in treaty with us.

On the question to postpone in order to take up Mr. Pinkney's Motion

N-- H. no. Mas. no. Ct. no. N. J. no. Pa. no. Del. no. Md. ay. Va ay. N. C. ay-- S-- C. no-- Geo. ay, [Ayes--4; noes--7.]

The Report of the Committee for striking out sect: 6. requiring two thirds of each House to pass a navigation act was then agreed to, nem: con:

[2:504; McHenry, 4 Sept.]

Upon looking over the constitution it does not appear that the national legislature can erect light houses or clean out or preserve the navigation of harbours--This expence ought to be borne by commerce--of course by the general treasury into which all the revenue of commerce must come--

Is it proper to declare all the navigable waters or rivers and within the U. S. common high ways? Perhaps a power to restrain any State from demanding tribute from citizens of another State in such cases is comprehended in the power to regulate trade between State and State.

This to be further considered. A motion to be made on the light house etc, to-morrow.

[2:529; McHenry, 6 Sept.]

Spoke to Gov Morris Fitzimmons and Mr Goram to insert a power in the confederation enabling the legislature to erect piers for protection of shipping in winter and to preserve the navigation of harbours--Mr Gohram against. The other two gentlemen for it--Mr Gov: thinks it may be done under the words of the 1 clause 1 sect 7 art. amended--"and provide for the common defence and general welfare."--If this comprehends such a power, it goes to authorise the legisl. to grant exclusive privileges to trading companies etc.

[2:563; Madison, 10 Sept.]

Mr. Randolph took this opportunity to state his objections to the System. They turned . . . --on the want of [Volume 2, Page 486] some particular restraint on Navigation acts--on the power to lay duties on exports

[2:633; McHenry, 15 Sept.]

Maryland moved.

No State shall be prohibited from laying such duties of tonnage as may be sufficient for improving their harbors and keeping up lights, but all acts laying such duties shall be subject to the approbation or repeal of Congress.

Moved to amend it viz. No State without the consent of Congress shall lay a duty of tonnage. Carryed in the affirmative

6 ays 4 Noes, 1 divided.

. . . . .

Mr. Mason moved in substance that no navigation act be passed without the concurrence of 2/3 of the members present in each house.

Negatived.

[2:635; King, 15 Sept.]

Mr. Gerry's objections. . . .

The Power given respectg. Commerce will enable the Legislature to create corporations and monopolies

[2:639; Mason, 15 Sept.]

By requiring only a majority to make all commercial and navigation laws, the five Southern States, whose produce and circumstances are totally different from that of the eight Northern and Eastern States, will be ruined, for such rigid and premature regulations may be made as will enable the merchants of the Northern and Eastern States not only to demand an exhorbitant freight, but to monopolize the purchase of the commodities at their own price, for many years, to the great injury of the landed interest, and the impoverishment of the people; and the danger is the greater as the gain on one side will be in proportion to the loss on the other. Whereas requiring two-thirds of the members present in both Houses would have produced mutual moderation, promoted the general interest, and removed an insuperable objection to the adoption of the government.

[2:625, 631; Madison, 25 Sept.]

Mr. Mc.Henry & Mr. Carrol moved that "no State shall be restrained from laying duties of tonnage for the purpose of clearing harbours and erecting light-houses".

Col. Mason in support of this explained and urged the situation of the Chesapeak which peculiarly required expences of this sort.

Mr. Govr. Morris. The States are not restrained from laying tonnage as the Constitution now Stands. The exception proposed will imply the Contrary, and will put the States in a worse condition than the gentleman (Col Mason) wishes.

Mr. Madison. Whether the States are now restrained from laying tonnage duties depends on the extent of the power "to regulate commerce". These terms are vague but seem to exclude this power of the States-- They may certainly be restrained by Treaty. He observed that there were other objects for tonnage Duties as the support of Seamen &c. He was more & more convinced that the regulation of Commerce was in its nature indivisible and ought to be wholly under one authority.

Mr. Sherman. The power of the U. States to regulate trade being supreme can controul interferences of the State regulations when such interferences happen; so that there is no danger to be apprehended from a concurrent jurisdiction.

Mr. Langdon insisted that the regulation of tonnage was an essential part of the regulation of trade, and that the States ought to have nothing to do with it. On motion "that no State shall lay any duty on tonnage without the Consent of Congress"

N. H-- ay-- Mas. ay. Ct. divd. N. J. ay. Pa. no. Del. ay. Md. ay. Va. no. N-- C. no. S-- C. ay. Geo. no. [Ayes--6; noes--4; divided--1.]

. . . . .

Col: Mason expressing his discontent at the power given to Congress by a bare majority to pass navigation acts, which he said would not only enhance the freight, a consequence he did not so much regard--but would enable a few rich merchants in Philada N. York & Boston, to monopolize the Staples of the Southern States & reduce their value perhaps 50 Per Ct--moved a further proviso "that no law in nature of a navigation act be passed before the year 1808, without the consent of 2/3 of each branch of the Legislature"

On this motion

N. H. no. Mas-- no. Ct no. N-- J. no-- Pa no. Del. no. Md ay. Va. ay. N. C abst S. C. no-- Geo-- ay. [Ayes--3; noes--7; absent--1.]

The Founders' Constitution
Volume 2, Article 1, Section 8, Clause 3 (Commerce), Document 8
http://press-pubs.uchicago.edu/founders/documents/a1_8_3_commerces8.html
The University of Chicago Press

Farrand, Max, ed. The Records of the Federal Convention of 1787. Rev. ed. 4 vols. New Haven and London: Yale University Press, 1937.