To Edmund Pendleton
RC (LC: Madison Papers). Addressed to “The Honble Edmund Pendleton Esqr. Caroline County Virginia.”
Philada. May 29th 1781
The two circumstances relating to the proposed duty on trade mentioned in your favor of the 1st. instant were subjects of discussion1 when the measure was on the anvil. It was evident that the disposition of the States to invest Congress with such a power wd. be influenced by the length of the term assigned for the exercise of it. It was equally evident that no provision would satisfy the present creditors of the U. States or obtain future loans that was not commensurate to all the public engagements. In order to reconcile these points the duration of the impost was limited, but limited in so indefinite a manner as not to defeat the object of it.2 Should the increase of trade render the duty more productive than was estimated it must the sooner extinguish the public debts & cease. The application of Congress for such a power supposes indeed a confidence in them on the part of the States, greater perhaps than many may think consistent with republican jealousy, but if the States will not enable their representatives to fulfill their engagements, it is not to be expected that individuals either in Europe &3 America will confide in them. The 2d. objection you mention was also a subject of much discussion in Congress. On one side it was contended that the powers incident to the collection of a duty on trade were in their nature so municipal, and in their operation so irritative that it was improbable that the States could be prevailed on to part with them, and that consequently it would be most prudent to ask from the States nothing more th[an] the duty itself, to be collected by State officers & paid to a Continental Receiver, and not the right of levying & collecting it by officers of Congress. On the opposite side it was urged that as Congress would be held responsible for the public debts it was necessary & would be expected; that the fund granted fo[r] discharging them should be exclusively & independe[nt]ly in their hands, that if the Collectors were under the controul of the States, the urgency of their wants would be constantly diverting the revinue from its proper destination, that if the States were willing to give up the thing itself it was not likely they wou[ld] cavil at any form that wd. be most effectual, tha[t] the form proposed might be reconciled with their internal jurisdictions by annexing to the Office of Coll[ec]tor all the powers incident thereto, & leaving to Congress the right of appointing the Officer.4 How far it may be best to appoint the established naval officers, I am not prepared to say, but sho[uld] that be found to be the case, they will exercise the[ir] new functions, not as Naval officers of the State, but as invested with a separate commission by Congress in such manner that in the former respect, they are wholly exempt from the jurisdiction of Congress, & in the latter from that of the State. Such a junction of pow[ers] derived from different sources, in the same person certainly has its inconveniences, but there will be many instances of it in our complex Government.5 I have met with so many interruptions this morning that I fear I may have not done justice to the subject in my explanation of it. Another consequence is that I must be very brief on [the] head of intelligence to make sure of the post.
A report of an intended evacuation of N. Y. has again sprung up. The rumor of Clintons being in the Bay corresponds so well in point of time with the last embarkation that I fear you lent too incredulous an ear to it.6 Genl Wayne has certainly moved at last after bringing the competition b[etween] discipline & the mutinous spirit of the troo[ps to an] issue. Fortunately the former gained a complete triumph.7 If Virga. can maintain her opposition a little time longer, I flatter myself the direction of our general force will be more favorable for her than it has been. If the war centers in the S. Department on the part of the Enemy, it certainly must on our part. A number of arrivals have taken pl[ac]e within a few days from the Havannah. It is sd. near 200,000 Dollars make a part of their Cargo. The enormous price of flour produces this ballance in our favor.8 What a prodigious sum are we losing from the delay of the States to authorize the collection of the 5 PerCt. on Trade[,] the plan not permitting it in one State till all shall have concurred in it. It appears probable that Pensacola is by this time in the hands of the Spaniards.9
J Madison Jr.
1. Here JM crossed out “in Congress.” His reference to Pendleton’s letter of the “1st. instant” should have been to that of 21 May (q.v.). For the context of this first paragraph, which in the manuscript was bracketed by JM or a member of his family for publication (Madison, Papers [Gilpin ed.] description begins Henry D. Gilpin, ed., The Papers of James Madison (3 vols.; Washington, 1840). description ends , I, 94–96), see Papers of Madison description begins William T. Hutchinson, William M. E. Rachal, et al., eds., The Papers of James Madison (2 vols. to date; Chicago, 1962——). description ends , II, 303–4; above, Motion on Impost, 18 April 1781, editorial note and n. 1; and Pendleton to JM, 21 May 1781.
2. In his letter of 21 May Pendleton had protested that the Pennsylvania law authorizing Congress to collect the impost was “perpetual,” and therefore “a dangerous Policy.” The resolution of Congress asking for this authority declared that the duties would “be continued until the said debts shall be fully and finally discharged” (JCC description begins Worthington Chauncey Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , XIX, 113).
3. JM probably intended to write “or.”
4. After “Officer” JM crossed out “according to this side.” On 3 February 1781, during the debate on the impost resolution, JM sought unsuccessfully to amend it so as to leave each state’s taxing power unaltered, except that every state would agree to levy the tariff and empower congressional appointees to collect it (Papers of Madison description begins William T. Hutchinson, William M. E. Rachal, et al., eds., The Papers of James Madison (2 vols. to date; Chicago, 1962——). description ends , II, 303–4).
5. In his letter of 21 May Pendleton had observed that the continental collectors “must necessarily be the [state] Naval officers.” The duties of the “naval officers” varied somewhat from state to state. Tidewater Virginia, for example, was divided into naval districts corresponding to the principal rivers, each with its civilian naval officer. He supervised the entrance and clearance of vessels, the inspection, loading, and unloading of cargoes, and, beginning in 1783, the collection of tonnage duties and tariffs on merchandise (Hening, Statutes description begins William Waller Hening, ed., The Statutes at Large; Being a Collection of All the Laws of Virginia, from the First Session of the Legislature, in the Year 1619 (13 vols.; Richmond and Philadelphia, 1819–23). description ends , XI, 182, 258–64).
7. General Wayne had four unruly soldiers executed on 22 May, before finally beginning the march of his Pennsylvania troops toward Virginia on 26 May (Pennsylvania Packet, 29 May 1781).
8. On 28 May Daniel of St. Thomas Jenifer, a delegate in Congress from Maryland, wrote: “Yesterday and today arrived from the Havannah Eight sail of vessels with Hard Money. The merchants I am told pay very little regard to the embargo Law, indeed the State [Pennsylvania] has not money to purchase the third of any vessels Cargo even were it to be offered to the President and Council” (Burnett, Letters description begins Edmund C. Burnett, ed., Letters of Members of the Continental Congress (8 vols.; Washington, 1921–36). description ends , VI, 101). President Joseph Reed concurred in a letter to Washington by remarking, “we cannot obtain a Barrell with our Money” (Pennsylvania Archives description begins Samuel Hazard et al., eds., Pennsylvania Archives (9 ser., 138 vols.; Philadelphia and Harrisburg, 1852–1949). description ends , 1st ser., IX, 146). Despite having made repeated protests against the ineffectiveness of the embargo because of non-enforcement of the measure by Delaware (JM to Jefferson, 16 April 1781) and by Maryland, Pennsylvania was continuing as best it could to stay the outward flow of commodities needed by Washington’s army. However, some merchants and shipowners were heedless of the embargo in the face of the high price of American flour in Cuba or the high freight rate for carrying it there.
9. For the surrender of Pensacola on 9 May 1781, see Virginia Delegates to Jefferson, 24 April 1781, n. 5.