egress to and from any other State, and should enjoy therein all the privileges of trade and commerce, subject to the same duties, impositions, and restrictions as the inhabitants thereof respectively, provided that such restrictions should not extend so far as to prevent the removal of property imported into any State to any other State of which the owner was an inhabitant.1 States were prohibited also from laying imposts or duties which should interfere with any stipulation in treaties entered into by the United States with any king, prince, or state in pursuance of treaties which had been already proposed by Congress to the courts of France and Spain."

The provisions last referred to, and contained in the fourth and sixth of the Articles of Confederation, vested no legislative rights in Congress and, therefore, were not strictly within the scope of Randolph's resolution.

That part of the sixth article which has been quoted is represented by a separate clause in the Constitution. The provision quoted from the fourth article, however, found no place in the Constitution, except such as has been given to it by implication.3

The subjects upon which the debates of the Convention principally turned, in the consideration of this resolution, were Federal taxation of exports, control of the slave trade, and the passage of a navigation act.

From the standpoint of the Northern States, Federal control of the slave trade was an indispensable necessity. The first great compromise of the Constitution, the inclusion of slaves in estimating population as a basis of representation, placed those States where slaves were 3 Crandall v. Nevada, 6 Wall. 35.

1 Article IV. 1

2 Article VI.

. few in number at an immediate disadvantage, and required for their future protection that some effective check should be placed upon the increase of slave population by importation.

Furthermore, the shipping interests of Northern States needed the protection of a navigation act, and the desire for this protection was one of their principal inducements to seek an amendment of the Articles of Confederation and a strengthening of the Federal government.

On the other hand, the Southern States desired slaves, and in North Carolina, South Carolina, and Georgia the slave trade was not prohibited; the Southern States had little interest in shipping, but were dependent upon their exports. They were concerned in procuring cheap transportation, not in the nationality of the vessel by which transportation was made. A tax upon exports was, therefore, out of the question, and a navigation act should require a two-thirds vote, lest, as Mason said, "a few rich merchants in Philadelphia, New York, and Boston might by that means monopolize the staples of the Southern States." 1

On June 15, Paterson submitted several resolutions, which, taken together, have generally been known as the New Jersey plan. The second resolution outlining this plan, provided,

"That in addition to the powers vested in the United States in Congress by the existing Articles of Confederation they be authorized to pass acts for raising a revenue by laying a duty or duties on all goods and merchandise of foreign growth or manufacture

1 Bancroft, Vol. VI, p. 364; “George Mason, Life, Correspondence and Speeches," Rowland, G. P. Putnam's Sons, 1892, Vol. II, pp. 175, 269; Madison Papers, Vol. III, p. 1593; Jefferson's Works, Vol. VI, p. 323.

imported into any port of the United States. To pass Acts for the regulation of trade and commerce as well with foreign nations as with each other"; etc.

The third resolution provided that none of the powers vested in Congress should be exercised without the consent of a certain number of States to be agreed upon.

These resolutions were without debate referred to a committee of the whole house, which four days later reported its disapproval. The debate upon Randolph's resolutions, therefore, continued until July 23rd, when the work of the Committee of the Whole was referred to a Committee of Detail to draft and submit a Constitution. On the following day the Committee of the Whole, to which the Pinckney and Paterson plans had been referred, was discharged from their consideration and they also were referred to the Committee of Detail.

The Pinckney plan was at no time separately considered. It appears to have been mentioned but once in the Convention, and then by its author. The Paterson plan had been disapproved. So far as the record goes, therefore, neither of these plans appears to have exercised much influence on the deliberations of the Convention. The fact probably was otherwise. "The reference of the New Jersey and Pinckney plans to the Committee of Detail was not, as has generally been assumed, a mere smothering of them. . . . Paterson's proposals for a power to lay duties on imports, to regulate commerce," and a number of other provisions, appear in the report of the Committee of Detail, though

not in the resolution of the Committee of the Whole. Pinckney's plan also appears to have contributed in a considerable degree to the instrument reported by the Committee of Detail.1

In the draft of Constitution submitted to the Convention by that Committee on August 6th, appears a draft of the commerce clause in nearly its present form. In this draft, among grants of power to Congress to raise revenue, coin money, to establish post-offices, post and military roads, and other grants upon related subjects, appears a grant of power in general terms to "regulate commerce with all nations and among the several States." The powers of Congress were, however, to be subject to the limitation that "no navigation act shall be passed without the assent of two-thirds of the members present in each house."

The difference in the wording indicates that the Committee considered other regulations of commerce besides a navigation act to be within the scope of the clause. The important acts of commercial regulation which were discussed, either before or after the meeting of the Convention, were the passage of a navigation act and the imposition of a tariff. It is probable that the only regulations which the Committee had in view, beside these, related to navigation and were of a purely local character. Revenue being disposed of by separate provisions

1 "Studies in the History of the Federal Convention," Professor John Franklin Jameson, Rep. Am. Hist. Ass'n, 1902.

2 Proceedings of Congress Concerning Duties, Feb. 3, 1781; 3 Jour. of Cong. 572, 573; Proceedings of Congress as to Regulation of Commerce, April 30, 1784; 4 Jour. of Cong. 392, 393; Resolution to Empower Congress to Regulate Trade, Virginia House of Delegates, Nov. 30, 1785. See 4 Jour. of Cong. 621.

C

of the Constitution,1 the subject of a navigation act covered the field of commercial regulation, so far as concerned matters of national interest.

The Committee also reported a number of restrictions both upon the Federal government and upon the States.

The revenue and commercial powers of Congress were to be limited by requiring uniformity of indirect taxes and apportionment of direct taxes; by forbidding taxation of articles exported from any State, and of the migration or importation of such persons as any State might think proper to admit. State taxation of imports, exports, and tonnage was also to be forbidden, and citizens of each State were to be protected in the enjoyment of the privileges and immunities of citizens in the several States.2

Taxation of exports, regulation of the slave trade, and passage of a navigation act came, therefore, before the Convention in the debate upon the report of this Committee. The first of these questions concerned the Federal power to tax exports. Southern States were interested in finding a market for their products. They had no interest in shipping, and General Pinckney expressed the views of Southern delegates when he said that it was the true interest of the South to have no regulation of commerce.3 "Were it not," said Mercer, "for promoting the carrying trade of the Northern States, the Southern States could let the trade go into foreign bottoms," a view strongly supported by Mason. A tax upon exports, therefore, was in any event out

5 How. 504, 594; 7 How. 479, 480, 549. 2 Elliot, Vol. I, pp. 224, 230.

Ibid. Vol. V, p. 489. • Ibid. p. 433.