In the House of Delegates. November 14, 1785.
Whereas, the relative situation of the United States, has been found on trial, to require uniformity in their commercial regulations, as the only effectual policy for obtaining in the ports of foreign nations a stipulation of privileges reciprocal to those enjoyed by the subjects of such nations in the ports of the United States, for preventing animosities, which cannot fail to arise among the several States from the interference of partial and separate regulations [, and for deriving from commerce, such aids to the public revenue as it ought to contribute];1 and whereas such uniformity can be best concerted and carried into effect by the Fæderal Councils, which, having been instituted for the purpose of managing the interests of the States in cases which cannot so well be provided for by measures individually pursued, ought to be invested with authority in this case as being within the reason and policy of their institution:
Resolved,2 That the delegates representing this Commonwealth in Congress, be instructed to propose in Congress a recommendation to the States in Union, to authorize that Assembly to regulate their trade[, and to collect a revenue therefrom,]1 on the following principles, and under the following qualifications:
1st, That the United States in Congress assembled, be authorized to prohibit vessels belonging to any [nation, which has no commercial treaty with the United States,]3 from entering any of the ports thereof, or to impose any duties on such vessels and their cargoes, which may be judged necessary; all such prohibitions and duties to be uniform throughout the United States, and the proceeds of the latter to be carried into the Treasury of the State within which they shall accrue.
[2d, That over and above any duties which may be so laid, the United States in Congress assembled, be authorized to collect, in manner prescribed by an Act “To provide certain and adequate funds for the payment of this State’s quota of the debts contracted by the United States,” an impost not exceeding five per centum ad valorem, on all goods, wares, and merchandizes whatsoever, imported into the United States from any foreign ports; such impost to be uniform as aforesaid, and to be carried to the Treasury of the United States.]4
3d, That no state be at liberty to impose duties on any goods, wares, or merchandizes, imported by land or by water from any other State; but may altogether prohibit the importation from any other state of any particular species or description of goods, wares, or merchandize, [of] which the importation is at the same time prohibited from all other places whatsoever.
4th, That no Act of Congress that may be authorized, as hereby proposed, shall be entered into by less than two-thirds of the Condfederated States, nor be in force longer than5———years, [unless continued by a like proportion of votes within one year immediately preceding the expiration of the said period, or be revived in like manner after the expiration thereof; nor shall any impost whatsoever, be collected by virtue of the authority proposed in the second article, after the year 17 ]….6
John Beckley, C.H.D.
Broadside (NN); printed at Richmond in Nov. 1785 by James Hayes in an edition of 200 copies; Swem, “Va. Bibliog.,” description begins Earl G. Swem, “A Bibliography of Virginia,” Virginia State Library, Bulletin, VIII, X, XII (1915–1919) description ends No. 7466; Evans No. 19352. Brackets in text supplied; see notes below.
James Madison was the chief architect of this attempt to increase the powers of Congress, but his own later recollections and 19th-century disputes among Virginia historians as to whether he or John Tyler was the author of the resolution as finally adopted by the General Assembly have not only confused the question at issue but have obscured the more important aspects of the struggle that took place in the legislature in 1785. Madison was the unquestioned leader of the nationalists in the House of Delegates and the resolution that he sponsored deserves to rank in the annals of national growth with that adopted by the Virginia Convention on 15 May 1776 instructing the delegates in Congress to move for independence. For out of the struggle precipitated by Madison came an action that led to the Federal Convention of 1787 by way of the Annapolis Convention of 1786. Unfortunately, though the major fact of Madison’s sponsorship is well established, the textual history of his resolution is not so certain. In the present letter to TJ, Madison endeavored to reveal a part of the changes that had taken place in his resolution as a result of debate in the committee of the whole. The copy of Hayes’ broadside that he marked with “alterations of the pen” has not been found, but the differences that he wanted to make plain can in part be reconstructed from a comparison of the resolution as ordered to be printed on 14 Nov. with the text as reported out of the committee of the whole on 30 Nov. (JHD description begins Journal of the House of Delegates of the Commonwealth of Virginia (cited by session and date of publication) description ends , Oct. 1785, 1828 edn., p. 36, 66). Such a reconstruction is presented here, with the deletions bracketed. The results reveal at a glance that animosity toward the possession by Congress of power to raise an independent revenue was the mainspring of the substantive alterations in the text made by the committee in the last two weeks of November. This, however, did not embrace all of the changes or the whole of the time that the subject was under consideration in committee of the whole. Nor, indeed, is this the only text available. A brief résumé of the legislative history of a resolution so important in American constitutional history is therefore necessary.
On 7 Nov. Prentis reported out of the committee of the whole a resolution stating that “an act ought to pass, to authorise the delegates of this State in Congress, to give the assent of the state to a general regulation of the commerce of the United States, under certain qualifications” (JHD description begins Journal of the House of Delegates of the Commonwealth of Virginia (cited by session and date of publication) description ends , Oct. 1785, 1828 edn., p. 25). The resolution was approved, a bill or bills were ordered to be brought in, and Prentis, Tyler, Madison, Henry Lee, Meriwether Smith, Braxton, Ronald, Innes, and Bullitt were appointed a committee to “prepare and bring in the same.” Actually the committee later produced a resolution rather than a bill, in accordance with customary procedure in providing instructions for the delegates in Congress. On the basis of Madison’s outline of what must have been an impressive speech in behalf of national dignity and power, Rives accorded to Madison credit for the authorship of the preamble only in the resultant resolution (Rives, Madison, ii, 53–4; the text of Madison’s outline is in Writings, ed. Hunt, ii, 194–6; it includes a heading [“Power of treaties involves the danger if any”] reflecting a view of Congress’ power over commerce as derived from the treaty power similar to that advanced by TJ in his letter to Monroe of 15 June 1785). Brant, Madison, ii, 379, disagreeing with Rives’ rejection of the four parts of the resolution that seemed not to accord with Madison’s known views, states that the “Madison-Tyler forces carried their resolution by a wide margin and Madison proceeded to draft the authorized bill.” He produces in support of this another and variant text of the resolution in Madison’s hand (DLC: Madison Papers) that had theretofore been associated with the period of the Annapolis Convention. Correctly ascribing it to the time of the debates of Nov. 1785, Brant states that it is “Madison’s original draft” of the bill authorized by the House of Delegates on 7 Nov. This significant variant reads as follows:
“1. Resolved that to vest Congress with authority to regulate the foreign trade of the U.S. would add energy and dignity to the federal Government.
“2. Resolved that the unrestrained exercise of the powers possessed by each State over its own commerce may be productive of discord among the parties to the Union; and that Congress ought to be vested with authority to regulate the same in certain cases.
“3. Resolved that in regulating the foreign trade of U.S. Congress ought to enjoy the right
1. of prohibiting vessels, belonging to any foreign nation from entering into any of the ports of the U.S. such prohibition being uniform throughout the same: and
2. of imposing duties on the vessels, produce, or manufactures of foreign nations, and collecting them in such manner, as to Congress may seem best; to be appropriated to the establishment and support of a marine, and to this purpose alone; unless States in Congress agreed shall concur, on principles of extreme necessity, in any other appropriation. But Congress shall notwithstanding, have power to grant drawbacks, and shall not change the application of those duties which may arise from their recommendations concerning imposts on imported goods.
“4. Resolved that no State ought to be at liberty to impose duties on any goods ware or merchandizes imported by land or water from any other State; but each State ought to be free to prohibit altogether the importation from any other State, of any particular species or description of goods wares or merchandizes, which are at the same time prohibited to be imported from all other places whatsoever.
“5. Resolved that to every act of Congress done in pursuance of the foregoing authorities, and prohibiting foreign vessels, or imposing duties on Cargoes the assent of three fourths of the States in Congress shall be necessary; but the power of appropriating to the marine in the first instance shall be exercised with the assent of nine States.
“6. Resolved that no Act of Congress done in pursuance of the foregoing authorities, shall be in force longer than years, unless continued by ¾ of the confederated States within one year immediately preceding the expiration of the said period.”
The manuscript of this text does not bear any deletions or other alterations such as Madison or anyone else would have made upon the original draft of a document of paramount importance in which every word was bound to be subjected to intense and often partisan scrutiny. It is evident, therefore, that this is a fair copy of some earlier text. As to the time at which it was produced, the most that can be said is that it represents the resolution at some stage prior to 14 Nov. when the committee of the whole reported the amended resolution as printed above. Several possibilities occur: (1) it was prepared by Madison in preparation for the debate—perhaps at the time he outlined his speech, perhaps even before the convening of the legislature; (2) it was prepared during the debates on or before 7 Nov. when the committee of the whole recommended giving instructions to the delegates in Congress; or (3) it was prepared during the week of 7 Nov. when the Prentis committee was pursuing its instructions to draft such a document. No direct evidence can be adduced in support of any of these alternatives, but the editors incline to the belief that the first is the most probable. Even so, it is not possible to say how far this text represents exclusively the views of Madison, or those that he thought expedient and possible to get adopted, or those that resulted from debate and compromise in the Prentis committee or in committee of the whole. The most significant substantive difference between this text and that reported out of the committee of the whole on 14 Nov.—that is, the provision that revenues arising from imposts levied by Congress should be appropriated to the “establishment and support of a marine”—was certainly in accord with naval views that Madison had advocated years earlier (see Madison to TJ, 16 Apr. 1781; see Madison to Washington, 11 Nov. 1785; Writings, ed. Hunt, ii, 193).
On 28 Nov. the House of Delegates resolved itself into a committee of the whole and debated and amended the resolution that the Prentis committee had submitted two weeks earlier. Two days later the amended text was adopted and a copy ordered to be sent to the Senate for concurrence (JHD description begins Journal of the House of Delegates of the Commonwealth of Virginia (cited by session and date of publication) description ends , Oct. 1785, 1828 edn., p. 66). It is probable that the alterations in the printed resolution made by Madison in the copy sent to TJ included only those amendments up to this point and designated in notes 1–6 below. However, on 1 Dec. a motion was made from the floor that “the resolution reported from the committee of the whole House, and agreed to by the House on yesterday, containing instructions to the delegates of this Commonwealth in Congress … does not, from a mistake, contain the sense of the majority of this House that voted for the said resolution” and that the direction for sending the resolution to the Senate for concurrence should be rescinded. A roll-call vote resulted in the adoption of this resolution by a vote of 60 to 33. It also revealed the perhaps significant fact that Madison voted with the majority while Tyler voted with the minority. The resolution adopted 30 Nov. was then recommitted to the committee of the whole, “several amendments” were made and reported, and the House thereupon tabled the amended resolution (JHD description begins Journal of the House of Delegates of the Commonwealth of Virginia (cited by session and date of publication) description ends , Oct. 1785, 1828 edn., p. 67–8). The copy of the resolution that Madison sent to TJ may or may not have included these amendments made on 1 Dec., and in the absence of any text at this stage it is not possible to say what those amendments were (no printed or MS text of either resolution has been found in the Virginia Archives; communication to editors from W. J. Van Schreeven, State Archivist, 9 July 1953). As Madison informed TJ, another resolution was “proposed by Mr. Tyler immediately after the miscarriage of the printed proposition,” but this also was left on the table for some seven weeks. It was, however, called for and passed on the last day of the session, 21 Jan. 1786. Madison in the present letter refers to it as the “resolution above quoted,” but he does not quote it fully. As adopted, it reads:
“Resolved, that Edmund Randolph, James Madison, jun. Walter Jones, Saint George Tucker and Meriwether Smith, Esquires, be appointed commissioners, who, or any three of whom, shall meet such commissioners as may be appointed by the 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 harmony; 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.—That the said commissioners shall immediately transmit to the several States, copies of the preceding resolution, with a circular letter requesting their concurrence therein, and proposing a time and place for the meeting aforesaid” (same p. 153).
The authorship of this resolution became the subject of controversy in the 19th century. Madison seems to have begun the difficulty in 1804 by stating to Noah Webster that in 1785 he had “made a proposition with success” for a meeting of commissioners at Annapolis—a statement, as Brant points out, that was made not to claim credit, but to correct Webster’s belief that “this was a first proposal of the new Constitution” (Madison to Webster, 12 Oct. 1804; Writings, ed. Hunt, vii, 162–7; Brant, Madison, ii, 382). This statement was reinforced by one made by George Tucker (History of the United States, i, 343) to the effect that, because of anti-federalist sentiment prevailing in the legislature in Dec. 1785, Madison “did not venture to offer his own resolution, but prevailed upon Mr. Tyler … to offer it.” Tucker added: “This fact is stated on the authority of Mr. Madison himself.” L. G. Tyler (Letters and Times of the Tylers, Richmond, 1884, i, 132–4; iii, 179–80) disagreed with these assertions and insisted that John Tyler was the author of the resolution finally adopted by the legislature. Brant, reviewing the evidence, accepts in these words the Madison view of 1804 and that reported by Tucker with Madison’s approval: “Returning to his original thought based on the Virginia-Maryland commercial conference, Madison now drafted and Tyler introduced a resolution which, the former believed, would have fewer enemies” (Brant, Madison, ii, 381).
The editors, however, while convinced of Madison’s modesty and integrity in advancing his own claims, cannot accept his later recollections as to this matter because of their conflict with contemporary evidence of an overwhelming character. This evidence may be summarized as follows: (1) In at least two letters, both written the day after the resolution was adopted and one of them being the present letter to TJ, Madison ascribed the resolution to Tyler. In a letter to Monroe, 22 Jan. 1786, he wrote: “This failure of local measures [the port bill, navigation system] in the commercial line, instead of reviving the original propositions for a general plan, revived that of Mr. Tyler for the appointment of Commissioners to meet Commissioners from the other States on the subject of general regulations” (Madison, Writings, ed. Hunt, ii, 222–4). (2) To believe that these words mean the plan “of Mr. Tyler” was his only in the sense that he introduced it requires the assumption that Madison contrived and Tyler acquiesced in a strategy to make the most of the defeat on the first proposition by falling back upon the expedient of an interstate conference as being less offensive to anti-nationalists. There seems to be no contemporary evidence to sustain this view, nor indeed any of a later date save Tucker’s assertion. There is, on the contrary, substantial contemporary evidence against it, including the fact that, on the crucial vote on 1 Dec. 1785, Madison and Tyler were on opposite sides of the question. This is not necessarily conclusive, but, taken in connection with the statement made by Madison to TJ in the present letter, it is almost so: “The limitation of the plan to 13 years so far destroyed its value in the judgment of its friends that they chose rather, to do nothing than to adopt it in that form. The report accordingly remained on the table uncalled for to the end of the Session” (italics supplied). If on or before 1 Dec. the friends of the measure had decided to do nothing rather than accept the resolution in emasculated form, and therefore allowed it to rest on the table, Tyler can scarcely be numbered among those friends if, as Madison states in the present letter, he made the alternative proposal “immediately after the miscarriage of the printed proposition.” Also, since Madison was the chief “friend” of the measure, his words can scarcely be reconciled with the 19th-century hypothesis that he at this time wrote an alternative and caused it to be introduced by Tyler. (3) Madison disliked the Tyler alternative as much as Tyler evidently disliked his. On the day after adoption of the Tyler resolution, Madison wrote to Monroe: “The expedient [of a conference of commissioners] is no doubt liable to objections and will probably miscarry. I think however it is better than nothing” (Writings, ed. Hunt, ii, 222–4). (4) The supposition that Tyler and Madison were acting independently rather than in a concerted strategy seems to be supported by the fact that their respective plans were so wholly different, each being generally characteristic of the man who introduced it. Madison’s reflected a bold, forthright, nationalism, asserting at the outset (as amended) that “the relative situation of the United States has been found on trial, to require uniformity in their commercial regulations”; the Tyler alternative, on the other hand, merely called for a conference to “consider how far a uniform system in their commercial regulations may be necessary.” One was a specific plan, carefully outlined; the other was an expedient for preparing an undefined plan. But what divorced it most of all from Madison’s thinking and known views was the fact that it was not, like his own, a set of instructions to the Virginia delegates in Congress to propose a course of action through the national body, but was instead a device that would be established without reference to Congress, would report its findings directly to the states without the intermediation of Congress, and would have the effect of bringing Congress into its orbit only in the improbable circumstance of having its act “unanimously ratified” by all of the states. This was something quite different from the Virginia-Maryland commercial conference with which Madison had been identified; it underscored the concept of the nation as a league of sovereign states engaged in negotiating, contracting, and “ratifying” agreements; it was, in brief, a document reflecting the views of those who were opposed to increasing the national power. A conclusive evidence that Madison did not sponsor it for political expediency is the fact that he feared those who had produced it had done so for such reasons. To Monroe he listed the names of the commissioners and of those who had been named, and then asserted: “It is not unlikely that this multitude of associates will stifle the thing in its birth. By some it was probably meant to do so” (same). This was said in the context of his remark about a fellow commissioner, Meriwether Smith, who had “made unceasing war during the Session against the idea of bracing the federal system.” (5) During the course of the debates Madison wrote that his original propositions had been “suspended in order to consider a proposition which had for its object a meeting of Politico-commercial Commissioners from all the States for the purpose of digesting and reporting the requisite augmentation of the power of Congress over trade.” He then added a statement that seems to offer the best explanation for the origin of the alternative proposed by Tyler: “It seems naturally to grow out of the proposed appointment of Commissioners for Virga. and Maryd. concerted at Mount Vernon, for keeping up harmony in the commercial regulations of the two States (Madison to Washington, 9 Dec. 1785; Writings, ed. Hunt, ii, 198; see also Madison to Monroe, same date, ii, 201–2). This was written four days after the Maryland resolutions were laid before the Virginia legislature, resolutions which suggested that Delaware and Pennsylvania also be brought into the uniform commercial system proposed for the two states (JHD description begins Journal of the House of Delegates of the Commonwealth of Virginia (cited by session and date of publication) description ends , Oct. 1785, 1828 edn., p. 72). An extension of the Mount Vernon idea to two other states may have provided for John Tyler, as it certainly did for the committee of commerce to whom the Maryland resolutions were referred, the natural suggestion that it would be logical to enlarge such a plan so as to include all the states.
But by a happy irony the triumph of Tyler’s resolution and the defeat of Madison’s set the country on the route toward an early and effective re-modelling of the national constitution. Had Madison’s own proposal succeeded in its aim, a federal convention to create a more perfect union would have been less necessary and might thereby have been postponed so long into the future as to deprive him of the majestic role that he played in that of 1787. Madison wholeheartedly welcomed this unexpected development of the Tyler resolution (see Madison to TJ, 12 Aug. 1786). By a less happy irony, the author of the resolution himself did not view the outcome with pride. In 1788, speaking in the Virginia Ratifying Convention, John Tyler said: “I wished Congress to have the regulation of trade. … I was among those members who, a few years ago, proposed that regulation. I have lamented that I have put my hand to it, since this measure may have grown out of it. It was the hopes of our people to have their trade on a respectable footing. But it never entered into my head that we should quit liberty and throw ourselves into the hands of an energetic government” (quoted in Lyon G. Tyler, Letters and Times of the Tylers, Richmond, 1884, i, 151). If these fruits were galling, the last trace of pride in the resolution would have been removed by the dry—and accurate—comment of the author’s son, President John Tyler: “There is no particular merit in the composition, and the resolution embodies only a single idea … —an idea which, no doubt from apparent necessities, had forced itself upon the minds of others” (Tyler to John C. Hamilton, 14 July 1855; same, i, 133). Thus ingloriously was planted the seed that grew with such unintended might.
1. The part enclosed in brackets (supplied) was deleted in committee of the whole.
2. The following words were added at this point in committee of the whole: “that it is the opinion of this committee.”
3. The part enclosed in brackets (supplied) was struck out in committee of the whole and “foreign nation” substituted therefor.
4. This entire paragraph was deleted in committee of the whole, and in consequence paragraphs 3 and 4 became 2 and 3 respectively.
6. The part enclosed in brackets (supplied) was deleted in committee of the whole. When the committee reported on 30 Nov., a motion was made to restore the words “unless continued by a like proportion of votes … after the expiration thereof,” but this was defeated by a vote of 79 to 28 (JHD description begins Journal of the House of Delegates of the Commonwealth of Virginia (cited by session and date of publication) description ends , Oct. 1785, 1828 edn., p. 66).
Four lines are omitted here; they concern the commitment and printing of the resolution.