The Journal of the Debates in the Convention which Framed the Constitution of the United States, May-September 1787. Volume 2

by United States. Constitutional Convention; James Madison

Saturday August 25. 1787. In Convention

The 1^st clause of 1 Sect. of art: VII being reconsidered

Col. Mason objected to the term "shall"–fullfil the engagements & discharge the debts &c. as too strong. It may be impossible to comply with it. The Creditors should be kept in the same plight. They will in one respect be necessarily and properly in a better. The Government will be more able to pay them. The use of the term shall will beget speculations and increase the pestilent practice of stock-jobbing. There was a great distinction between original creditors & those who purchased fraudulently of the ignorant and distressed. He did not mean to include those who have bought Stock in open market. He was sensible of the difficulty of drawing the line in this case, but he did not wish to preclude the attempt. Even fair purchasers at 4. 5. 6. 8 for 1 did not stand on the same footing with the first Holders, supposing them not to be blameable. The interest they receive even in paper, is equal to their purchase money. What he particularly wished was to leave the door open for buying up the securities, which he thought would be precluded by the term "shall" as requiring nominal payment, & which was not inconsistent with his ideas of public faith. He was afraid also the word "shall," might extend to all the old continental paper.

M^r Langdon wished to do no more than leave the Creditors in statu quo.

M^r Gerry said that for himself he had no interest in the question being not possessed of more of the securities than would, by the interest, pay his taxes. He would observe however that as the public had received the value of the literal amount, they ought to pay that value to some body. The frauds on the soldiers ought to have been foreseen. These poor & ignorant people could not but part with their securities. There are other creditors who will part with any thing rather than be cheated of the capital of their advances. The interest of the States he observed was different on this point, some having more, others less than their proportion of the paper. Hence the idea of a scale for reducing its value had arisen. If the public faith would admit, of which he was not clear, he would not object to a revision of the debt so far as to compel restitution to the ignorant & distressed, who have been defrauded. As to stock-jobbers he saw no reason for the censures thrown on them. They keep up the value of the paper. Without them there would be no market.

M^r Butler said he meant neither to increase nor diminish the security of the Creditors.

M^r Randolph moved to postpone the clause in favor of the following "All debts contracted & engagements entered into, by or under the authority of Cong^s shall be as valid ag^st the U. States under this constitution as under the Confederation."

Doc^r Johnson. The debts are debts of the U. S. of the great Body of America. Changing the Government cannot change the obligation of the U. S. which devolves of course on the new Government. Nothing was in his opinion necessary to be said. If any thing, it should be a mere declaration as moved by M^r Randolph.

M^r Gov^r Morris, said he never had become a public Creditor that he might urge with more propriety the compliance with public faith. He had always done so and always would, and preferr'd the term "shall" as the most explicit. As to buying up the debt, the term "shall" was not inconsistent with it, if provision be first made for paying the interest: if not, such an expedient was a mere evasion. He was content to say nothing as the New Government would be bound of course, but would prefer the clause with the term "shall," because it would create many friends to the plan.

On M^r Randolph's Motion

N. H. ay. Mas. ay. C^t ay. N. J. ay. P^a no. Del. ay. Mary^d ay. V^a ay. N. C. ay. S. C. ay. Geo. ay.

M^r Sherman thought it necessary to connect with the clause for laying taxes duties &c. an express provision for the object of the old debts &c.–and moved to add to the 1^st clause of 1^st sect. art VII "for the payment of said debts and for the defraying the expences that shall be incurred for the common defence and general welfare."

The proposition, as being unnecessary was disagreed to, Connecticut alone, being in the affirmative.

The Report of the Committee of eleven (see friday the 24^th instant) being taken up,

Gen^l Pinkney moved to strike out the words, "the year eighteen hundred" as the year limiting the importation of slaves, and to insert the words "the year eighteen hundred and eight."

M^r Ghorum 2^ded the motion.

M^r Madison. Twenty years will produce all the mischief that can be apprehended from the liberty to import slaves. So long a term will be more dishonourable to the National character than to say nothing about it in the Constitution.

On the motion; which passed in the affirmative,

N. H. ay. Mas. ay. C^t ay. N. J. no. P^a no. Del. no. M^d ay. V^a no. N. C. ay. S. C. ay. Geo. ay.

M^r Gov^r Morris was for making the clause read at once, "the importation of slaves into N. Carolina, S. Carolina & Georgia shall not be prohibited &c." This he said would be most fair and would avoid the ambiguity by which, under the power with regard to naturalization, the liberty reserved to the States might be defeated. He wished it to be known also that this part of the Constitution was a compliance with those States. If the change of language however should be objected to by the members from those States, he should not urge it.

Col. Mason was not against using the term "slaves" but ag^st naming N. C. S. C. & Georgia, lest it should give offence to the people of those States.

M^r Sherman liked a description better than the terms proposed, which had been declined by the old Cong^s & were not pleasing to some people. M^r Clymer concurred with M^r Sherman.

M^r Williamson said that both in opinion & practice he was against slavery; but thought it more in favor of humanity, from a view of all circumstances, to let in S. C. & Georgia on those terms, than to exclude them from the Union.

M^r Gov^r Morris withdrew his motion.

M^r Dickenson wished the clause to be confined to the States which had not themselves prohibited the importation of slaves, and for that purpose moved to amend the clause so as to read "The importation of slaves into such of the States as shall permit the same shall not be prohibited by the Legislature of the U. S. until the year 1808"–which was disagreed to nem: con: [42]

[ [42] In the printed Journals, Con^t Virg^a & Georgia voted in the affirmative.–Madison's Note.

The first part of the report was then agreed to, amended as follows. "The migration or importation of such persons as the several States now existing shall think proper to admit, shall not be prohibited by the Legislature prior to the year 1808."

N. H. Mas. Con. M^d N. C. S. C. Geo: ay. N. J. P^a Del. Virg^a no.

M^r Baldwin in order to restrain & more explicitly define "the average duty" moved to strike out of the 2^d part the words "average of the duties laid on imports" and insert "common impost on articles not enumerated" which was agreed to nem: cont:

M^r Sherman was ag^st this 2^d part, as acknowledging men to be property, by taxing them as such under the character of slaves.

M^r King & M^r Langdon considered this as the price of the 1^st part.

Gen^l Pinkney admitted that it was so.

Col. Mason. Not to tax, will be equivalent to a bounty on the importation of slaves.

M^r Ghorum thought that M^r Sherman should consider the duty, not as implying that slaves are property, but as a discouragement to the importation of them.

M^r Gov^r Morris remarked that as the clause now stands it implies that the Legislature may tax freemen imported.

M^r Sherman in answer to M^r Ghorum observed that the smallness of the duty shewed revenue to be the object, not the discouragement of the importation.

M^r Madison thought it wrong to admit in the Constitution the idea that there could be property in men. The reason of duties did not hold, as slaves are not like merchandize, consumed, &c.

Col. Mason (in answ^r to Gov^r Morris) the provision as it stands was necessary for the case of convicts in order to prevent the introduction of them.

It was finally agreed nem. contrad: to make the clause read "but a tax or duty may be imposed on such importation not exceeding ten dollars for each person," and then the 2^d part as amended was agreed to.

Sect 5. art. VII was agreed to nem: con: as reported.

Sect. 6. art. VII. in the Report, was postponed.

On motion of M^r Madison 2^ded by M^r Gov^r Morris Article VIII was reconsidered and after the words "all treaties made," were inserted nem: con: the words "or which shall be made." This insertion was meant to obviate all doubt concerning the force of treaties preexisting, by making the words "all treaties made" to refer to them, as the words inserted would refer to future treaties.

M^r Carrol and M^r L. Martin expressed their apprehensions, and the probable apprehensions of their constituents, that under the power of regulating trade the General Legislature, might favor the ports of particular States, by requiring vessels destined to or from other States to enter & clear thereat, as vessels belonging or bound to Baltimore, to enter & clear at Norfolk &c. They moved the following proposition

"The Legislature of the U. S. shall not oblige vessels belonging to citizens thereof, or to foreigners, to enter or pay duties or imposts in any other State than in that to which they may be bound, or to clear out in any other than the State in which their cargoes may be laden on board; nor shall any privilege or immunity be granted to any vessel on entering or clearing out, or paying duties or imposts in one State in preference to another."

M^r Ghorum thought such a precaution unnecessary; & that the revenue might be defeated, if vessels could run up long rivers, through the jurisdiction of different States without being required to enter, with the opportunity of landing & selling their cargoes by the way.

M^r M^cHenry & Gen^l Pinkney made the following propositions

"Should it be judged expedient by the Legislature of the U. S. that one or more port for collecting duties or imposts other than those ports of entrance & clearance already established by the respective States, should be established, the Legislature of the U. S. shall signify the same to the Executives of the respective States, ascertaining the number of such ports judged necessary; to be laid by the said Executives before the Legislatures of the States at their next session; and the Legislature of the U. S. shall not have the power of fixing or establishing the particular ports for collecting duties or imposts in any State, except the Legislature of such State shall neglect to fix and establish the same during their first session to be held after such notification by the Legislature of the U. S. to the Executive of such State."

"All duties imposts & excises, prohibitions or restraints laid or made by the Legislature of the U. S. shall be uniform & equal throughout the U. S."

These several propositions were referred nem: con: to a committee composed of a member from each State. The committee appointed by ballot were M^r Langdon, M^r Ghorum, M^r Sherman, M^r Dayton, M^r Fitzimmons, M^r Read, M^r Carrol, M^r Mason, M^r Williamson, M^r Butler, M^r Few.

On the question now taken on M^r Dickinson's motion of yesterday, allowing appointments to offices, to be referred by the Gen^l Legislature to the Executives of the several States as a further amendment to sect. 2. art. X, the votes were

N. H. no. Mas. no. C^t ay. P^a no. Del. no. M^d divided. V^a ay. N. C. no. S. C. no. Geo. ay.

In amendment of the same section, "other public Ministers" were inserted after "ambassadors."

M^r Gov^r Morris moved to strike out of the section–"and may correspond with the supreme Executives of the several States" as unnecessary and implying that he could not correspond with others. M^r Broome 2^ded him.

On the question

N. H. ay. Mas. ay. C^t ay. P^a ay. Del. ay. M^d no. V^a ay. N. C. ay. S. C. ay. Geo. ay.

"Shall receive ambassadors & other public Ministers," agreed to, nem. con.

M^r Sherman moved to amend the "power to grant reprieves & pardon" so as to read "to grant reprieves until the ensuing session of the Senate, and pardons with consent of the Senate."

On the question

N. H. no. Mas. no. C^t ay. P^a no. M^d no. V^a no. N. C. no. S. C. no. Geo. no.

"except in cases of impeachment" inserted nem. con: after "pardon."

On the question to agree to–"but his pardon shall not be pleadable in bar"

N. H. ay. Mas. no. C^t no. P^a no. Del. no. M^d ay. V^a no. N. C. ay. S. C. ay. Geo. no.

Adjourned.

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Monday Aug^st 27^th. 1787. In Convention

Art X. Sect 2. being resumed,

M^r L. Martin moved to insert the words "after conviction" after the words "reprieves and pardons."

M^r Wilson objected that pardon before conviction might be necessary in order to obtain the testimony of accomplices. He stated the case of forgeries in which this might particularly happen.–M^r L. Martin withdrew his motion.

M^r Sherman moved to amend the clause giving the Executive the command of the Militia, so as to read "and of the Militia of the several States, when called into the actual service of the U. S." and on the Question

N. H. ay. Mas. abs^t. C^t ay. N. J. abs^t. P^a ay. Del. no. M^d ay. V^a ay. N. C. abs^t. S. C. no. Geo. ay.

The clause for removing the President on impeachment by the House of Rep^s and conviction in the supreme Court, of Treason, Bribery or corruption, was postponed nem: con: at the instance of M^r Gov^r Morris, who thought the Tribunal an improper one, particularly, if the first Judge was to be of the privy Council.

M^r Gov^r Morris objected also to the President of the Senate being provisional successor to the President, and suggested a designation of the Chief Justice.

M^r Madison added as a ground of objection that the Senate might retard the appointment of a President in order to carry points whilst the revisionary power was in the President of their own body, but suggested that the Executive powers during a vacancy, be administered by the persons composing the Council to the President.

M^r Williamson suggested that the Legislature ought to have power to provide for occasional successors, & moved that the last clause (of 2 sect. X art:) relating to a provisional successor to the President, be postponed.

M^r Dickinson 2^ded the postponement, remarking that it was too vague. What is the extent of the term "disability" and who is to be the judge of it?

The postponement was agreed to nem: con:

Col: Mason & M^r Madison moved to add to the oath to be taken by the supreme Executive "and will to the best of my judgment and power preserve protect and defend the Constitution of the U. S."

M^r Wilson thought the general provision for oaths of office, in a subsequent place, rendered the amendment unnecessary.—

On the question

N. H. ay. Mas. abs^t. C^t ay. P^a ay. Del. no. M^d ay. V^a ay. N. C. abs^t. S. C. ay. Geo. ay.

Art: XI. being taken up.

Doc^r Johnson suggested that the judicial power ought to extend to equity as well as law–and moved to insert the words, "both in law and equity" after the words "U. S." in the 1^st line of sect 1.

M^r Read objected to vesting these powers in the same Court.

On the question

N. H. ay. Mas. absent. C^t ay. N. J. abs^t. P. ay. Del. no. M^d no. Virg^a ay. N. C. abs^t. S. C. ay. Geo. ay.

On the question to agree to Sect. 1. art. XI. as amended

N. H. ay. Mas. abs^t. C^t ay. P^a ay. N. J. abs^t. Del. no. M^d no. V^a ay. N. C. abs^t. S. C. ay. Geo. ay.

M^r Dickinson moved as an amendment to sect. 2. art XI after the words "good behavior" the words "provided that they may be removed by the Executive on the application by the Senate and House of Representatives."

M^r Gerry 2^ded the motion.

M^r Gov^r Morris thought it a contradiction in terms to say that the Judges should hold their offices during good behavior, and yet be removeable without a trial. Besides it was fundamentally wrong to subject Judges to so arbitrary an authority.

M^r Sherman saw no contradiction or impropriety if this were made a part of the Constitutional regulation of the Judiciary establishment. He observed that a like provision was contained in the British Statutes.

M^r Rutlidge. If the Supreme Court is to judge between the U. S. and particular States, this alone is an insuperable objection to the motion.

M^r Wilson considered such a provision in the British Government as less dangerous than here, the House of Lords & House of Commons being less likely to concur on the same occasions. Chief Justice Holt, he remarked, had successively offended by his independent conduct, both houses of Parliament. Had this happened at the same time, he would have been ousted. The Judges would be in a bad situation if made to depend on any gust of faction which might prevail in the two branches of our Gov^t.

M^r Randolph opposed the motion as weakening too much the independence of the Judges.

M^r Dickinson was not apprehensive that the Legislature composed of different branches constructed on such different principles, would improperly unite for the purpose of displacing a Judge.

On the question for agreeing to M^r Dickinson's Motion

N. H. no. Mas. abs^t. C^t ay. N. J. abs^t. P^a no. Del. no. M^d no. V^a no. N. C. abs^t. S. C. no. Geo. no.

M^r Madison and M^r M^cHenry moved to reinstate the words "increased or" before the word "diminished" in 2^d sect, art. XI.

M^r Gov^r Morris opposed it for reasons urged by him on a former occasion—

Col: Mason contended strenuously for the motion. There was no weight he said in the argument drawn from changes in the value of the metals, because this might be provided for by an increase of salaries so made as not to affect persons in office, and this was the only argument on which much stress seemed to have been laid.

Gen^l Pinkney. The importance of the Judiciary will require men of the first talents: large salaries will therefore be necessary, larger than the U. S. can allow in the first instance. He was not satisfied with the expedient mentioned by Col: Mason. He did not think it would have a good effect or a good appearance, for new Judges to come in with higher salaries than the old ones.

M^r Gov^r Morris said the expedient might be evaded & therefore amounted to nothing. Judges might resign, & then be re-appointed to increased salaries.

On the question

N. H. no. C^t no. P^a no. Del. no. M^d div^d. V^a ay. S. C. no. Geo. abs^t also Mas^ts. & N. J. & N. C.

M^r Randolph & M^r Madison then moved to add the following words to art. XI sect. 2. "nor increased by any Act of the Legislature which shall operate before the expiration of three years after the passing thereof."

On the question

N. H. no. C^t no. P^a no. Del. no. M^d ay. V^a ay. S. C. no. Geo. abs^t also Mas. N. J. & N. C.

Sect. 3. art. XI. being taken up, the following clause was postponed viz, "to the trial of impeachments of officers of the U. S." by which the jurisdiction of the supreme Court was extended to such cases.

M^r Madison & M^r Gov^r Morris moved to insert after the word "controversies" the words "to which the U. S. shall be a party," which was agreed to nem: con:

Doc^r Johnson moved to insert the words "this Constitution and the" before the word "laws."

M^r Madison doubted whether it was not going too far to extend the jurisdiction of the Court generally to cases arising under the Constitution & whether it ought not to be limited to cases of a Judiciary Nature. The right of expounding the Constitution in cases not of this nature ought not to be given to that Department.

The motion of Doc^r Johnson was agreed to nem: con: it being generally supposed that the jurisdiction given was constructively limited to cases of a Judiciary nature.

On motion of M^r Rutlidge the words "passed by the Legislature" were struck out, and after the words "U. S." were inserted nem. con: the words "and treaties made or which shall be made under their authority" conformably to a preceding amendment in another place.

The clause "in cases of impeachment," was postponed.

M^r Gov^r Morris wished to know what was meant by the words "In all the cases before-mentioned it (jurisdiction) shall be appellate with such exceptions &c.," whether it extended to matters of fact as well as law–and to cases of common law as well as civil law.

M^r Wilson. The Committee he believed meant facts as well as law & Common as well as Civil law. The jurisdiction of the federal Court of Appeals had he said been so construed.

M^r Dickinson moved to add after the word "appellate" the words "both as to law & fact" which was agreed to nem: con:

M^r Madison & M^r Gov^r Morris moved to strike out the beginning of the 3^d sect. "The jurisdiction of the supreme Court" & to insert the words "the Judicial power" which was agreed to nem: con:

The following motion was disagreed to, to wit to insert "In all the other cases beforementioned the Judicial power shall be exercised in such manner as the Legislature shall direct" Del. Virg^a ay. N. H. Con. P. M. S. C. G. no.

On a question for striking out the last sentence of the sect. 3. "The Legislature may assign &c."

N. H. ay. C^t ay. P^a ay. Del. ay. M^d ay. V^a ay. S. C. ay. Geo. ay.

M^r Sherman moved to insert after the words "between Citizens of different States" the words, "between Citizens of the same State claiming lands under grants of different States"–according to the provision in the 9th Art: of the Confederation–which was agreed to nem: con:

Adjourned.

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