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house, was to be insisted on by some, although not by all, of the Southern membe
Thus was a dark and gloomy prospect a second time presented to the framers of the Constitution. If, on the one side, there were States feeling themselves bound as a class to insist on certain concessions, on the other side were those by whom such concessions could not be made. The chief motive with the Eastern, and with most of the Northern States, in seeking a new union under a new frame of government, was a commercial one. They had suffered so severely from the effects of the commercial policy of England and other European na tions, and from the incapacity of Congress to control that policy; that it had become indispensable to them to secure a national power which could dictate the terms and vehicles of commercial intercourse with the whole country. Cut off from the British West India trade by the English Orders in Council, the Eastern and Middle States required other means of counteracting those oppressive regulations than could be found in their separate State legislation, which furnished no power whatever for obtaining a single commercial treaty. Besides these considerations, which related to the special interests of the commercial States, the want of a navy, which could only be built up by measures that would encourage the growth of the mercantile marine, and which, although needed for the protection of commerce, was
1 See ante, Vol. I. Book III. Chap. IV., on the origin and necessity of the commercial power.
also required for the defence of the whole country, made it necessary that the power to pass a navigation act should be burdened with no serious restrictions.
The idea of requiring a vote of two thirds in Congress for the passage of a navigation act, founded on the assumed diversity of Northern and Southern, or the commercial and the planting interests, proceeded upon the necessity for a distinct protection of the latter against the former, by means of a special legislative check. To a certain extent, as I have already said, these interests, when regarded in their aggregates, offered a real diversity But it did not follow that this peculiar check upon the power of a majority was either a necessary or an expedient mode of providing against oppressive legislation. In every system of popular government, there are great disadvantages in departing from the simple rule of a majority; and perhaps the principle which requires the assent of more than a majority ought never to be extended to mere matters of legislation, but should be confined to treaty stipulations, and to those fundamental changes which affect the nature of the government and involve the terms on which the different portions of society are associated together.
It was undoubtedly the purpose of those who sought for this particular restriction, to qualify the nature of the government, in its relation to the interests of commerce. But the real question was, whether there existed any necessary reason for plas
cing those interests upon a different footing from that of all other subjects of national legislation. The operation of the old rule of the Confederation, which required the assent of nine States in Congress to almost all the important measures of government, many of which involved no fundamental right of separate States, had revealed the inconveniences of lodging in the hands of a minority the power to obstruct just and necessary legislation. If, indeed, it was highly probable that the power, by being left with a majority, would be abused, if the interests of the Eastern and Middle States were purely and wholly commercial, and would be likely so to shape the legislation of the country as to encourage the growth of its mercantile marine, at the expense of other forms of industry and enterprise, and no other suitable and efficient checks could be found, then the restriction proposed might be proper and ne
But in truth the separate interests of the Eastern and Middle States, when closely viewed, were not in all respects the same. Connecticut and New Jersey were agricultural States. New York and Pennsylvania, although interested in maritime commerce, were destined to be great producers of the most important grains. Maryland, although a commercial, was also an agricultural State. The new States likely to be formed in the West would be almost wholly agricultural, and would have no more shipping than might be required to move the surplus products of their soil upon their great inland lakes towards the
shores of the Atlantic. All these States, existing and expectant, were interested to obtain commercial treaties with foreign countries; all needed the benefits of uniform commercial regulations; but they were not all equally interested in a high degree of encouragement to the growth of American shipping, by means of a stringent navigation act, that would bear heavily upon the Southern planter.
Not only was there a very considerable protection against the abuse of its power by a sectional majority, in these more minute diversities of interest, but there were also two very efficient legislative checks upon that power already introduced into the government. If an unjust and oppressive measure had commanded a majority in the House, it might be defeated in the Senate, or, if that check should fail, it might be arrested by the executive.
It had, nevertheless, been made part of the limitations upon the commercial power, embraced in the report of the committee of detail, that a navigation act should require a vote of two thirds of both branches of the legislature. The vote which adopted the prohibition against taxes on exports, taken on the 21st of August, was followed, on that day and the next, by an excited debate on the taxation of the slave-trade, in which the three States of Georgia, North Carolina, and South Carolina made the limitation upon the power of the Union over this traffic the condition of their accepting the Constitution. This debate was closed by the proposition of Gouverneur Morris, to refer the whole subject to a com
mittee of one from each State, in order that the three matters of exports, the slave-trade, and a navigation act might form a bargain or compromise between the Northern and the Southern States.' But the prohibition against taxing exports had already been agreed to, and there remained to be committed only the proposed restriction against taxing or prohibiting the migration or importation of such persons as the States might see fit to admit, the restriction which required a capitation tax to conform to the census, and the proposed limitation upon the power to pass a navigation act. Thus, in effect, the questions to come before this committee were, whether the slave-trade should be excepted from both the commercial and revenue powers of the general government, and whether the commercial power should be subjected to a restriction which required a vote of two thirds in dealing with the commercial interests of the Union.
We know very little of the deliberations of this committee; but as each State was equally repre sented in it, and as the position of the different sectional objects is quite clear, we can have no difficulty in forming an opinion as to the motives and purposes of the settlement which resulted from their action, or in obtaining a right estimate of the result itself.
In the first place, then, we are to remember the previous concessions already made by the Northern States, and the advantages resulting from them. 1 Elliot, V. 460.