I

Erie. He was in correspondence with Governor Harrison of Virginia, to whom Washington had addressed his now famous letter on Western communications a few months earlier, and with Thomas Jefferson, who about this date was also much concerned over the opening of highways of trade between Virginia and the new communities. Monroe was, therefore, fully advised, at the time of the report, upon the western situation, and the perils thought to lurk in it for the Union. the report he sought to arouse Congress and the State legislatures to the speedy action upon its recommendations which he considered necessary.

In

The situation of the commercial affairs of the Union [says the report] requires that the several legislatures should come to the earliest decision on the subject, which they [the committee] now submit to their consideration. They have weighed it with that profound attention, which is due to so important an object, and are fully convinced of its expedience. A further delay must be productive of inconvenience. The interests which will rest in every part of the Union must soon take root and have their influence. The produce raised upon the banks of the great rivers and lakes which have their source high up in the interior parts of the continent will empty itself into the Atlantic in different directions, and of course, as the States growing up at the westward attain maturity and get

1 Monroe to Jefferson, Writings of Monroe, vol. i., 39, 40; to Governor Harrison, vol. i., 39.

admission into the Confederacy will their government become more complicated. Whether this will be the source of strength and wealth to the Union, must therefore in great degree depend upon the measures which may now be adopted . . . and while the interests of each State and of the Federal Government continue to be the same, the same evils will always require the same correction, and of course the necessary powers should always be lodged in the same hands. They have therefore thought proper to propose an effective and perpetual remedy.'

The resolutions accompanying the report, after revision in the Committee of the Whole, recommended that the ninth article of the Confederation be amended to provide that the United States in Congress assembled should have "the sole and exclusive right and power of determining on peace and war except in the cases mentioned in the sixth article, of sending and receiving ambassadors, entering into treaties and alliances, of regulating the trade of the States, as well with foreign nations as with each other, and of laying such imposts and duties upon imports and exports as may be necessary for the purpose"; provided, however, that the legislative power of the several States should not be restrained from prohibiting the importation or exportation of any species of goods or commodities whatever, that

* Writings of James Monroe (Hamilton), vol. i., p. 83.

all duties imposed should be collected under the authority and accrue to the use of the State in which the same should be payable, and that every act of Congress for effectuating the purposes of the amendment should have the assent of nine States in Congress assembled. Sufficient opposition developed in Congress to defer action on the recommendation until the spring of 1786, and the subject then became merged with the measures to be discussed at Annapolis.2

I

But the movement in Congress was not permitted to die out, for the urgency of Charles Pinckney procured from the subcommittee of the Grand Committee of the Continental Congress, in August 1786, a report recommending among other things the addition of a new article to the Confederation, to be numbered fourteen, by which a power similar to that proposed by Monroe's committee in the previous year was to be vested in Congress. It, however, went farther than the proposal of 1785, in limiting the authority of the States to collect the duties which might be imposed by Congress, and in restricting their right to impose embargoes to times of scarcity. The proposed Article read as follows:

Art. 14: The United States in Congress assembled shall have the sole and exclusive power of regulating

I

Writings of James Monroe (Hamilton), vol. i., pp. 80 to 83. Sparks's Washington, ix., 503; Elliot's Debates, i., p. 111.

2 Writings of Monroe, vol. i., 95, 96, 101, 127.

the trade of the several States, as well with foreign nations as with each other, and of laying such prohibitions, and such imposts and duties upon imports and exports as may be necessary for the purpose; provided that the citizens of the States shall in no instance be subjected to pay higher duties and imposts than those imposed on the subjects of foreign powers: provided also that all such duties as may be imposed shall be collected under such regulations as the United States in Congress assembled shall establish consistent with the constitutions of the States respectively, and to accrue to the use of the States in which the same shall be payable; provided, also, that the legislative power of the several States shall not be restrained from laying embargoes in time of scarcity; and provided, lastly, that every act of Congress for the above purpose shall have the assent of nine States in Congress assembled, and in that proportion when there shall be more than thirteen in the Union.1

The phrases in which these resolutions are expressed indicate very clearly the intentions of the respective committees as to the scope of the powers to be vested in Congress:

The United States in Congress assembled shall have the sole and exclusive right and power of regulating the trade of the States, as well with foreign nations as with each other, and of laying such imposts and duties upon imports and exports as may be necessary for the purpose (Monroe's Committee).

1 Bancroft, Hist. Const., vol., ii., pp. 373–377.

The United States in Congress assembled shall have the sole and exclusive power of regulating the trade of the several States, as well with foreign nations as with each other, and of laying such prohibitions and such imposts and duties upon imports and exports as may be necessary for the purpose (Pinckney's Committee).

The words, "sole and exclusive," used in each of these resolutions, are known to the lawyer to be peculiarly appropriate to that case in which it is intended to (1)Xinvest one of the parties to an agreement with the complete control over the subject in question, and (2)Xdivest the other party of all share in that control. The lawyer is rarely able to foresee all that time may determine should be included under, or directly connected with, the subject of negotiation; and when it is his intention to secure to his client complete control over all that the future, according to the development of the arts, the changes of society, and the enlarging understanding of men, may ascertain to be within that subject, then the peculiarly apt phrase is that employed in both of these resolutions. Monroe and Pinckney were lawyers, and conversant with this technical significance of the terms used. This, or other equivalent phrases, had also come to be much used in documents of that day by those who desired to take control over some subject wholly from the States, and vest it wholly in the Confederacy.