Notes on Debates, 21 February 1783
Notes on Debates
MS (LC: Madison Papers). For a description of the manuscript of Notes on Debates, see , V, 231–34.
Mr. Mercer made some remarks tending to a reconsideration of the act declaring general funds to be necessary, which revived the discussion of that subject.1
Mr Madison said that he had observed throughout the proceedings of Congress relative to the establishment of such funds that the power delegated to Congress by the confederation had been very differently construed by different members & that this difference of construction had materially affected their reasonings & opinions on the several propositions which had been made;2 that in particular it had been represented by sundry members that Congress was merely an Executive body; and therefore that it was inconsistent with the principles of liberty & the spirit of the Constitution, to submit to them a permanent revenue which wd. be placing the purse & the sword in the same hands;3 that he wished the true doctrine of the confederation to be ascertained as it might perhaps remove some embarrassments; and towards that end would offer his ideas on the subject.
He said that he did not conceive in the first place that the opinion was sound that the power of Congress in cases of revenue was in no respect Legislative, but merely Executive: and in the second place that admitting the power to be Executive a permanent revenue collected & dispensed by them in the discharge of the debts to wch. it sd. be appropriated, would be inconsistent with the nature of an Executive body, or dangerous to the liberties of the republic.4
As to the first opinion he observed that by the articles of Confederation Congs. had clearly & expressly the right to fix the quantum of revenue necessary for the public exigences, & to require the same from the States respectively in proportion to the value of their land; that the requisitions thus made were a law to the States, as much as the acts of the latter for complying with them were a law to their individual members:5 that the fœderal constitution6 was as sacred & obligatory as the internal constitutions of the several States; and that nothing could justify the States in disobeying acts warranted by it, but some previous abuse or infraction on the part of Congs.; that as a proof that the power of fixing the quantum & making requisitions of money, was considered as a legislative power over the purse, he would appeal to the proposition made by the British Minister of giving this power to the B. Parliamt. & leaving to the American assemblies the privilege of complying in their own modes; & to the reasonings of Congress & the several States on that proposition.7 He observed further that by the articles of Confederation was delegated to Congs. a right to borrow money indefinitely, and emit bills of Credit which was a species of borrowing, for repayment & redemption of which the faith of the States was pledged & their legislatures constitutionally bound.8 He asked whether these powers were reconcileable with the idea that Congress was a body merely Executive? He asked what would be thought in G. B. from whose constitution our Political reasonings were so much drawn, of an attempt to prove that a power of making requisitions of money on the Parliament, & of borrowing money for discharge of which the Parlt sd. be bound, might be annexed to the Crown without changing its quality of an Executive branch; and that the leaving to the Parliamt. the mode only of complying with the requisitions of the Crown, would be leaving to it its supreme & exclusive power of Legislation?9
As to the second point he referred again to the British Constitution & the mode in which provision was made for the public debts; observing that although the Executive had no authority to contract a debt; yet that when a debt had been authorized or admitted by the parliament a permanent & irrevocable revenue was granted by the Legislature, to be collected & dispensed by the Executive; and that this practice had never been deemed a subversion of the Constitution or a dangerous association of a power over the purse with the power of the Sword.10
If these observations were just as he concieved them to be, the establishment of a permanent revenue not by any assumed authority of Congress, but by the authority of the States at the recommendation of Congs: to be collected & applied by the latter to the discharge of the public debts, could not be deemed inconsistent with the spirit of the fœderal constitution, or subversive of the principles of liberty; and that all objections drawn from such a supposition ought [to] be withdrawn. Whether other objections of sufficient weight might not lie agst. such an establishmt. was another question. For his part altho’ for various reasons* he had never been sanguine that it was practicable & the discussions which had taken place had finally satisfied him that it would be necessary to limit the call for a general revenue to duties on commerce & to call for the deficiency in the most permanent way that could be reconciled with a revenue established within each State separately & appropriated to the Common Treasury. He said the rule which he had laid down to himself in this business was to concur in every arrangemt. that sd. appear necessary for an honorable & just fulfilment of the public engagements; & in no measure tending to augment the power of Congress which sd appear to be unnecessary; and particularly disclaimed the idea of perpetuating a public debt.16
Mr. Lee in answer to Mr. Madison said the doctrine maintained by him was pregnant with dangerous consequences to the liberties of the confederated States; that notwithstanding the specious arguments that had been employed it was an established truth that the purse ought not to be put into the same hands with the Sword;17 that like arguments had been used in favor of Ship money in the reign of Charles I it being then represented as essential to the support of the Govt., that the Executive should be assured of the means of fulfilling its engagements for the public service:18 He said it had been urged by several in behalf of such an establishment for public credit that without it Congress was nothing more than a rope of sand. on this head he would be explicit; he had rather see Congress a rope of sand than a rod of Iron.19 He urged finally as a reason why some States would not & ought not to concur in granting to Congress a permanent revenue, that some States as Virga, would receive back a small part by paymt. from the U. S. to its Citizens; whilst others as Pena. wd. receive a vast surplus; & consequently be enriched by draining the former of its wealth.20
Mr. Mercer said if he conceived the fœderal compact to be such as it had been represented he would immediately withdraw from Congress & do every thing in his power to destroy its existence: that if Congs. had a right to borrow money as they pleased and to make requisitions on the States that wd. be binding on them, the liberties of the States were ideal;21 that requisitions ought to be consonant to the Spirit of liberty; that they should go frequently & accompanied with full information. that the States must be left to judge of the nature of them, of their abilities to comply with them & to regulate their compliance accordingly; he laid great stress on the omission of Congs. to transmit half yearly to the States an acct. of the monies borrowed by them &c. and even insinuated that this omission had absolved the States in some degree from the engagements.22 He repeated his remarks on the injustice of the rule by which loan office certificates had been settled, & his opinion that some defalcations would be necessary.23
Mr. Holten was opposed to all permanent funds, and to every arrangement not within the limits of the Confederation.24
Mr. Hamilton enlarged on the general utility of permanent funds to the fœderal interests of this Country, & pointed out the difference between the nature of the Constitution of the British Executive, & that of the U. S. in answer to Mr. Lee’s reasoning from the case of Ship money.25
Mr. Ghorum adverted with some warmth to the doctrines advanced by Mr. Lee & Mercer concerning the loan office Creditors. He said the Union could never be maintained on any other ground than that of Justice; that some States had suffered greatly from the deficiencies of others already; that if Justice was not to be obtained through the fœderal system & this system was to fail as would necessarily follow, it was time this should be known that some of the States might be forming other confederacies adequate to the purposes of their safety.26
This debate was succeeded by a discharge of the Committee from the business of devising the means requisite for restoring public credit &c &c,27 and the business referred to a Come. consisting of Mr. Ghorum Mr. Hamilton, Mr. Madison, Mr. Fitzimmons & Mr. Rutlidge.28
1. For “the act,” see JM Notes, 29 Jan., and n. 13. For the “discussion” preceding the adoption of “the act,” see also JM Notes, 24 Jan.; 27 Jan.; 28 Jan. 1783. The nature of John Francis Mercer’s “remarks” probably can be inferred from what he said later in the debate on this day and what he had said, as summarized by JM in his notes for 5–6 Feb., n. 9; 12 Feb., and n. 12; 17 Feb., and n. 1; 18 Feb.; 19 Feb. 1783. See also JM to Randolph, 18 Feb. 1783, and n. 3.
2. JM Notes, 13 Jan., and n. 17; 14 Jan., and nn. 4–6, 9; 24 Jan., and nn. 2, 4; 27 Jan.; 28 Jan. 1783, and nn. 10, 11, 45; JM to Randolph, 14 Jan.; 11 Feb. 1783.
3. For the oft-used warning that a union of “the purse & the sword in the same hands” would permit their possessor to be a tyrant, see remarks by Arthur Lee and Mercer as summarized by JM (JM Notes, 28 Jan., and n. 5; 12 Feb. 1783, and n. 12).
4. The sharp disagreements between leaders both in and out of Congress concerning the intention of the framers of the Articles of Confederation suggest that JM was idealistic in hoping for his fellow delegates and the members of state legislatures to accept a single “true doctrine” about the scope and nature of the powers of Congress. The issue was more than academic, for if Congress was altogether an “executive,” as the term was used in the debate, it was confined to the passive role of executing the will of state legislatures, or at least of nine of them, conveyed in letters to their delegates or to the president of Congress. “Legislative,” however, connoted both initiatory and discretionary power exercised within the broad fields of power conferred upon Congress by the Articles of Confederation. Although its framers neglected to describe those fields or Congress as either “executive” or “legislative,” they seem to have viewed “the United States, in Congress Assembled” as a permanent body, fluctuating in membership and essentially international in character, which should embody in its “acts,” “resolves,” “reports,” and “ordinances” the concerted will of the Confederation on important domestic and foreign problems requiring a united front to be handled effectively (, V, 546–54, 674–89; XIX, 214–23). Congress obviously had created “the executive departments” of foreign affairs, war, and finance, but many of its other proceedings, in conformance with the powers delegated in the Articles of Confederation, were as obviously “legislative” or “legislative-executive” in nature. See, for example, , VII, 329; XX, 469–71; XXI, 894–96; JM Notes, 18 Feb. 1783, n. 14.
By insisting that a power should be labeled in accordance with its nature, JM skillfully refuted the arguments of Arthur Lee, David Howell, and other delegates. They, by disregarding the vast differences in origin and structure between the governments of the United States and Great Britain, held that the congressional powers “of determining on peace and war,” “sending and receiving ambassadors,” and “entering into treaties and alliances” must be “executive” in nature, because in Great Britain they were exclusively, except for treaties alienating portions of the imperial domain, the prerogatives of the Crown rather than of Parliament (, XIX, 217; , IV, 241; 242, n. 3; William Bennett Munro, The Governments of Europe [New York, 1925], pp. 38, 48–49). Even granting the “executive” quality of those powers would not warrant the inference of Lee and his supporters that congressional authority “in cases of revenue” must be of the same nature.
5. JM’s reference was to articles VIII and XIII of the Articles of Confederation (, XIX, 217, 221). His statement is also supported by “the form” of ratification, adopted by Congress on 26 June 1778, and by the acts of ratification by several state legislatures (, XI, 657–58, 663–64, 666–67; XII, 1161–63; XIII, 187; XIV, 618; XV, 1058–59).
6. After originally writing “constitution,” JM canceled it and wrote “compact” above it. He then deleted “compact” and rewrote “constitution.” On 10 July 1778 Congress had designated the Articles of Confederation as “the glorious compact” (, XI, 681). See also JM Notes, 14 Jan., and n. 6; 28 Jan. 1783, and nn. 9, 27–29.
7. JM referred to the “conciliatory motion” of Lord North, offered in the House of Commons on 20 February 1775 and adopted a week later (, XVIII, cols. 319–20, 338, 358; XIX, cols. 763–64, 806, 815, 817). The motion invited the legislature of each British colony in America to submit a plan for making sufficient revenue “disposable by Parliament” to help pay for “the common defence” and to support the colony’s “civil government” and “administration of justice.” If the King and Parliament should approve the plan, Parliament would “for bear” to “levy any duty, tax, or assessment” on that colony, “except only such duties as it may be expedient to continue to levy or to impose for the regulation of commerce” and would credit “the account of” that colony with “the nett produce of the duties last mentioned.”
Both the address of the Virginia House of Burgesses on 12 June and of the Second Continental Congress on 31 July 1775 rejecting the offer in the “conciliatory motion” were drafted almost entirely by Thomas Jefferson (, I, 170–74, 230–33; , II, 224–34). Among the reasons stated in each of these documents for refusing to accept the proposal were that (1) it did not surrender the “pretended right” of Parliament to tax the colonies but only extended a conditional offer to suspend the exercise of the power; and (2) it unjustly maintained that Parliament rather than a colony should prescribe how the revenue derived from taxing its own citizens should be spent.
8. JM referred to Articles IX, XII, and XIII of the Articles of Confederation (, XIX, 219–20, 221; JM Notes, 28 Jan., and n. 27). For the extent to which each of the thirteen sovereign states could be “constitutionally bound,” see the last clause of Article II of the Articles of Confederation (, XIX, 214; JM Notes, 28 Jan., and nn. 23, 28; 19 Feb. 1783, n. 5).
9. By “the Crown,” JM apparently meant “the King” or “the King in Privy Council.”
10. See n. 3, above; also JM Notes, 24 Jan., and n. 4; 19 Feb. 1783, and n. 15. Upon the accession of each new sovereign in the eighteenth century, Parliament allocated definite sources of revenue, known as the “civil list revenues,” for his support and that of his household, and to be “collected & dispensed” by him within the terms of the “settlement.” In 1761 George III surrendered entirely his interest in the hereditary revenues of the Crown in England for the grant of a civil list of £800,000 a year, from which he paid the salaries of judges and ambassadors and certain pensions. Although he retained hereditary revenues in Scotland, possessed separate civil lists in Ireland and the duchies of Cornwall and Lancaster, and was entitled to some admiralty and other dues, the whole totaling nearly an additional million pounds per annum, he successfully appealed to Parliament in 1780 for the payment of debts beyond his ability to discharge (F[rederic] W[illiam] Maitland, The Constitutional History of England [Cambridge, England, 1919], pp. 373, 433–36, 440–41; William Hunt, The History of England from the Accession of George III, to the Close of Pitt’s First Administration (1760–1801) [London, 1905], p. 13).
11. JM Notes, 24 Jan., and n. 20; 25 Jan., and nn. 7, 13; 27 Jan., and nn. 13, 14, 16; 28 Jan., and nn. 3, 11, 27, 28, 41, 45; 29 Jan., and nn. 8, 14, 36; 31 Jan., and n. 11; 12 Feb., and n. 1; 18 Feb., and nn. 4, 8; 19 Feb., and nn. 3, 7, 17; 20 Feb., and n. 14; JM to Randolph, 28 Jan.; 4 Feb.; 11 Feb.; 18 Feb. 1783, n. 3. For the passage by JM to which footnotes No. 12, 13, 14, and 15 refer, see his own footnote at the bottom of page 272.
12. Among “the most respectable people,” JM probably included Thomas FitzSimons, Alexander Hamilton, Robert Morris, David Ramsay, George Washington, and James Wilson (JM Notes, 13 Jan.; 24 Jan., and n. 20; 27 Jan., and n. 12; 28 Jan., and n. 34; 29 Jan., and nn. 14, 41; 12 Feb., and n. 8; 18 Feb.; 19 Feb., and n. 23; 20 Feb., and n. 14; JM to Randolph, 28 Jan.; 18 Feb. 1783, and n. 3; , XXVI, 17–18, 82–86, 103–4, 183–88; Clarence L. Ver Steeg, Robert Morris, pp. 128–29).
13. JM Notes, 13 Jan., and nn. 17, 21; 28 Jan., and n. 23; 8 Feb., n. 3; 11 Feb., and n. 2; 12 Feb., and n. 15; 18 Feb.; 19 Feb., and nn. 11, 12, 19; 20 Feb., and nn. 17, 18; JM to Randolph, 14 Jan.; 22 Jan., and n. 8; 11 Feb.; 25 Feb. 1783; , XXV, 226–29, 430–31; Clarence L. Ver Steeg, Robert Morris, pp. 139, 153–54, 166–72, 182–83; , VII, 34, n. 3; 50, n. 3.
14. JM Notes, 27 Jan., and nn. 13, 27; 29 Jan.; 30 Jan., and n. 6; 31 Jan., and n. 11; 19 Feb., and n. 6; 20 Feb., nn. 7, 9, 14; JM to Randolph, 4 Feb. JM also could have referred appropriately to his summary of Nathaniel Gorham’s remarks on 20 February (JM Notes, 20 Feb. 1783, and n. 8). JM’s reference to “Mr. Ghorum” demonstrates that he wrote the footnote after completing the text of his notes for this day.
15. In his letter of 25 February to Randolph (q.v.), JM repeated the substance of the footnote to this point.
16. The contrast between JM’s position as revealed in the last two sentences of this paragraph and his nationalistic view of the powers of Congress expressed in his speech of 28 January (JM Notes, 28 Jan. 1783, and nn. 27, 28) makes clear how much he had become willing, without a surrender of principle, to concede in order to avoid the dismal future he described earlier in the paragraph. Judging from Joseph Jones’s letter of 27 February to Washington, Jones and JM were closely attuned in their outlook upon the issue (, VII, 60–63). Although the long-extended debates had not tempered Hamilton’s nationalism, including his belief in the efficacy of “perpetuating a public debt,” he, too, for the sake of staving off disunion, expressed the hope that his state of New York would “chearfully comply” with the plan of evaluation which Congress had adopted, even though he had voted against it as “founded on false principles” (, III, 268–74). See also JM Notes, 28 Jan., and n. 9; 19 Feb. 1783, and nn. 3, 7, 13, 20; Clarence L. Ver Steeg, Robert Morris, p. 175.
17. For Arthur Lee’s and John F. Mercer’s earlier insistence upon this “established truth,” see n. 3, above. By 27 February, not without some sacrifice of principle, Mercer would change his position on the general issue (JM Notes, 27 Feb. 1783, and n. 12).
18. “Ship money,” narrowly defined, was a levy imposed by the king of England upon ports, maritime towns, and counties in a time of emergency for the support of the navy. Although King Charles I in 1628 had accepted the statute known as the “Petition of Right,” with its denial to him of the power of taking “any gift, loan, benevolence or such like charge” without the consent of Parliament, he had refused to construe this prohibition to include ship money. In the “Ship Money Case” of 1637, a royal court sustained the king by ruling that “a statute derogatory from the prerogative does not bind the king and the king may dispense with any law in cases of necessity.” Parliament in 1641 declared this judgment void, and the king assented on 7 August of that year (F. W. Maitland, Constitutional History of England, pp. 298–300, 307–8).
19. The “rope of sand” metaphor, dating in Greek literature from at least as early as the second century A.D., was used frequently by Americans during the Revolution (Samuel Jebb, ed., Aelius Aristides … opera omnia graece & latine [2 vols.; Oxford, 1722–30], II, 309; , III, 322, VI, 58). For “rod of Iron,” see Psalms 2:9; Revelation 12:5.
20. , V, 459–60; JM Notes, 8 Feb., and n. 3; 19 Feb., and nn. 6, 18; 20 Feb. 1783, and nn. 4, 6, 9.
21. That is, “visionary.” See nn. 1–9, above; JM Notes, 12 Feb., and n. 12; JM to Randolph, 18 Feb., and nn. 2, 3; 25 Feb. 1783.
22. JM Notes, 12 Feb., and n. 5; 19 Feb. 1783, and n. 15.
23. JM Notes, 18 Feb., and nn. 5, 7; 19 Feb., and nn. 14, 18, 20; 20 Feb. 1783, and nn. 4, 6–8.
24. Samuel Holten, who from 1778 to 1780 had been a delegate from Massachusetts in Congress, submitted his second-term credentials on 4 February (, XXIV, 107). See also JM Notes, 27 Feb. 1783.
25. JM Notes, 19 Feb. 1783, and n. 15.
26. JM Notes, 12 Feb., and n. 7; 18 Feb., and n. 5; 19 Feb.; 20 Feb., and n. 6; JM to Randolph, 25 Feb. 1783.
27. Congress accepted the recommendation of the committee of the whole that it “be discharged” from the instructions of 29 January “to consider further the means of restoring and supporting public credit, and of obtaining from the states substantial funds for funding the whole debt of the United States,” and that this “business” be “referred to a special committee” (JM Notes, 29 Jan. 1783, and n. 7; , XXIV, 97, 144).
28. In their outlook upon “the business,” Hamilton and FitzSimons were nationalistic, Rutledge stressed states’ rights, and Gorham and JM, although differing on particular issues, probably would co-operate in seeking a compromise between the two extremes (JM Notes, 27 Jan.; 28 Jan.; 29 Jan.; 12 Feb.; 18 Feb.; 19 Feb., and n. 20; 20 Feb. 1783, and nn. 7, 14; n. 16, above). For the first report of this committee, see JM Notes, 27 Feb. 1783, and n. 8.