Tuesday August 28 1787. In Convention
Mr Sherman from the Committee to whom were referred several propositions on the 25th instant, made the following report:—
That there be inserted after the 4 clause of 7th. section
"Nor shall any regulation of commerce or revenue give preference to the ports of one State over those of another, or oblige vessels bound to or from any State to enter clear or pay duties in another and all tonnage, duties, imposts & excises laid by the Legislature shall be uniform throughout the U. S."
Art XI Sect. 3, It was moved to strike out the words "it shall be appellate" to insert the words "the supreme Court shall have appellate jurisdiction,"–in order to prevent uncertainty whether "it" referred to the supreme Court, or to the Judicial power.
On the question
N. H. ay. Mas. ay. Ct ay. N. J. abst. Pa ay. Del. ay. Md no. Va ay. N. C. ay. S. C. ay. Geo. ay.
Sect. 4. was so amended nem. con: as to read "The trial of all crimes (except in cases of impeachment) shall be by jury, and such trial shall be held in the State where the said crimes shall have been committed; but when not committed within any State, then the trial shall be at such place or places as the Legislature may direct." The object of this amendment was to provide for trial by jury of offences committed out of any State.
Mr Pinkney urged the propriety of securing the benefit of the Habeas corpus in the most ample manner, moved "that it should not be suspended but on the most urgent occasions, & then only for a limited time not exceeding twelve months."
Mr Rutlidge was for declaring the Habeas Corpus inviolable. He did not conceive that a suspension could ever be necessary at the same time through all the States.
Mr Govr Morris moved that "The privilege of the writ of Habeas Corpus shall not be suspended; unless where in cases of Rebellion or invasion the public safety may require it."
Mr Wilson doubted whether in any case a suspension could be necessary, as the discretion now exists with Judges, in most important cases to keep in Gaol or admit to Bail.
The first part of Mr Govr Morris' motion, to the word "unless" was agreed to nem: con:–on the remaining part;
N. H. ay. Mas. ay. Ct ay. Pa ay. Del. ay. Md ay. Va ay. N. C. no. S. C. no. Geo. no.
Sec. 5. of art: XI. was agreed to nem: con. [43]
[ [43] The vote on this section as stated in the printed Journal is not unanimous: the statement here is probably the right one.–Madison's Note.
Art: XII being taken up.
Mr Wilson & Mr Sherman moved to insert after the words "coin money" the words "nor emit bills of credit, nor make any thing but gold & silver coin a tender in payment of debts" making these prohibitions absolute, instead of making the measures allowable (as in the XIII art:) with the consent of the Legislature of the U. S.
Mr Ghorum thought the purpose would be as well secured by the provisions of art: XIII which makes the consent of the Genl Legislature necessary, and that in that mode no opposition would be excited; whereas an absolute prohibition of paper money would rouse the most desperate opposition from its partizans.
Mr Sherman thought this a favorable crisis for crushing paper money. If the consent of the Legislature could authorize emissions of it, the friends of paper money would make every exertion to get into the Legislature in order to license it.
The question being divided; on the 1st part–"nor emit bills of credit" N. H. ay. Mas. ay. Ct ay. Pa ay. Del. ay. Md divd. Va no. N. C. ay. S. C. ay. Geo. ay.
The remaining part of Mr Wilson's & Sherman's motion was agreed to nem: con:
Mr King moved to add, in the words used in the Ordinance of Congr establishing new States, a prohibition on the States to interfere in private contracts.
Mr Govr Morris. This would be going too far. There are a thousand laws, relating to bringing actions–limitations, of actions & which affect contracts. The Judicial power of the U. S. will be a protection in cases within their jurisdiction; and within the State itself a majority must rule, whatever may be the mischief done among themselves.
Mr Sherman. Why then prohibit bills of credit?
Mr Wilson was in favor of Mr King's motion.
Mr Madison admitted that inconveniences might arise from such a prohibition but thought on the whole it would be overbalanced by the utility of it. He conceived however that a negative on the State laws could alone secure the effect. Evasions might and would be devised by the ingenuity of the Legislatures.
Col: Mason. This is carrying the restraint too far. Cases will happen that cannot be foreseen, where some kind of interference will be proper & essential. He mentioned the case of limiting the period for bringing actions on open account–that of bonds after a certain lapse of time–asking whether it was proper to tie the hands of the States from making provision in such cases?
Mr Wilson. The answer to these objections is that retrospective interferences only are to be prohibited.
Mr Madison. Is not that already done by the prohibition of ex post facto laws, which will oblige the Judges to declare such interferences null & void.
Mr Rutlidge moved instead of Mr King's Motion to insert–"nor pass bills of attainder nor retrospective [44] laws" on which motion
N. H. ay. Ct no. N J. ay. Pa ay. Del. ay. Md no. Virga no. N. C. ay. S. C. ay. Geo. ay.
[ [44] In the printed Journal–ex post facto.–Madison's Note.
Mr Madison moved to insert after the word "reprisal" (art. XII) the words "nor lay embargoes." He urged that such acts by the States would be unnecessary–impolitic–and unjust.
Mr Sherman thought the States ought to retain this power in order to prevent suffering & injury to their poor.
Col: Mason thought the amendment would be not only improper but dangerous, as the Genl Legislature would not sit constantly and therefore could not interpose at the necessary moments. He enforced his objection by appealing to the necessity of sudden embargoes during the war, to prevent exports, particularly in the case of a blockade.
Mr Govr Morris considered the provision as unnecessary; the power of regulating trade between State & State already vested in the Genl Legislature, being sufficient.
On the question
N. H. no. Mas. ay. Ct no. N. J. no. Pa no. Del. ay. Md no. Va no. N. C. no. S. C. ay. Geo. no.
Mr Madison moved that the words "nor lay imposts or duties on imports" be transferred from art: XIII where the consent of the Genl Legislature may license the act–into art: XII which will make the prohibition of the States absolute. He observed that as the States interested in this power by which they could tax the imports of their neighbors passing thro' their markets, were a majority, they could give the consent of the Legislature, to the injury of N. Jersey, N. Carolina &c.
Mr Williamson 2ded the motion.
Mr Sherman thought the power might safely be left to the Legislature of the U. States.
Col: Mason observed that particular States might wish to encourage by impost duties certain manufactures for which they enjoyed natural advantages, as Virginia, the manufacture of Hemp &c.
Mr Madison. The encouragement of Manufactures in that mode requires duties not only on imports directly from foreign Countries, but from the other States in the Union, which would revive all the mischiefs experienced from the want of a Genl Government over commerce. [45]
[ [45] August 28, 1787, New York, Hamilton wrote to King: "I wrote to you some days since [August 20] to request you to inform me when there was a prospect of your finishing, as I intended to be with you, for certain reasons, before the conclusion.
"It is whispered here that some late changes in your scheme have taken place which give it a higher tone. Is this the case?"–King's Life and Correspondence of Rufus King, I, 258.
On the question
N. H. ay. Mas. no. Ct no. N. J. ay. Pa no. Dela ay. Md no. Va no. N. C. ay. S. C. no. Geo. no.
Art: XII as amended agreed to nem: con:
Art: XIII being taken up. Mr King moved to insert after the word "imports" the words "or exports," so as to prohibit the States from taxing either, & on this question it passed in the affirmative.
N. H. ay. Mas. ay. Ct no. N. J. ay. P. ay. Del. ay. Md no. Va no. N. C. ay. S. C. no. Geo. no.
Mr Sherman moved to add after the word "exports"–the words "nor with such consent but for the use of the U. S."–so as to carry the proceeds of all State duties on imports & exports, into the common Treasury.
Mr Madison liked the motion as preventing all State imposts–but lamented the complexity we were giving to the commercial system.
Mr Govr Morris thought the regulation necessary to prevent the Atlantic States from endeavoring to tax the Western States–& promote their interest by opposing the navigation of the Mississippi which would drive the Western people into the arms of G. Britain.
Mr Clymer thought the encouragement of the Western Country was suicide on the old States. If the States have such different interests that they cannot be left to regulate their own manufactures without encountering the interests of other States, it is a proof that they are not fit to compose one nation.
Mr King was afraid that the regulation moved by Mr Sherman would too much interfere with the policy of States respecting their manufactures, which may be necessary. Revenue he reminded the House was the object of the general Legislature.
On Mr Sherman's motion
N. H. ay. Mas. no. Ct ay. N. J. ay. Pa ay. Del. ay. Md no. Va ay. N. C. ay. S. C. ay. Geo. ay.
Art XIII was then agreed to as amended.
Art. XIV was taken up.
Genl Pinkney was not satisfied with it. He seemed to wish some provision should be included in favor of property in slaves.
On the question on Art: XIV.
N. H. ay. Mas. ay. Ct ay. N. J. ay. Pa ay. Del. ay. Md ay. Va ay. N. C. ay. S. C. no. Geo. divided.
Art: XV. being taken up, the words "high misdemesnor," were struck out, and "other crime" inserted, in order to comprehend all proper cases; it being doubtful whether "high misdemeanor" had not a technical meaning too limited.
Mr Butler and Mr Pinkney moved "to require fugitive slaves and servants to be delivered up like criminals."
Mr Wilson. This would oblige the Executive of the State to do it at the public expence.
Mr Sherman saw no more propriety in the public seizing and surrendering a slave or servant, than a horse.
Mr Butler withdrew his proposition in order that some particular provision might be made apart from this article.
Art XV as amended was then agreed to nem: con:
Adjourned.
Wednesday August 29th. 1787. In Convention
Art: XVI. taken up.
Mr Williamson moved to substitute in place of it, the words of the Articles of Confederation on the same subject. He did not understand precisely the meaning of the article.
Mr Wilson and Docr Johnson supposed the meaning to be that Judgments in one State should be the ground of actions in other States, & that acts of the Legislatures should be included, for the sake of Acts of insolvency &c.
Mr Pinkney moved to commit Art XVI with the following proposition "To establish uniform laws upon the subject of bankruptcies, and respecting the damages arising on the protest of foreign bills of exchange."
Mr Ghorum was for agreeing to the article, and committing the proposition.
Mr Madison was for committing both. He wished the Legislature might be authorized to provide for the execution of Judgments in other States, under such regulations as might be expedient. He thought that this might be safely done, and was justified by the nature of the Union.
Mr Randolph said there was no instance of one nation executing judgments of the Courts of another nation. He moved the following proposition:
Executive or Judiciary shall be attested & exemplified under the seal thereof, such attestation and exemplification, shall be deemed in other States as full proof of the existence of that act–and its operation shall be binding in every other State, in all cases to which it may relate, and which are within the cognizance and jurisdiction of the State, wherein the said act was done."
On the question for committing Art: XVI with Mr Pinkney's motion
N. H. no. Mas. no. Ct ay. N. J. ay. Pa ay. Del. ay. Md ay. Va ay. Pa ay. N. C. ay. S. C. ay. Geo. ay.
The motion of Mr Randolph was also committed nem: con:
Mr Govr Morris moved to commit also the following proposition on the same subject.
"Full faith ought to be given in each State to the public acts, records, and judicial proceedings of every other State; and the Legislature shall by general laws, determine the proof and effect of such acts, records, and proceedings" and it was committed nem. contrad:
The Committee appointed for these references, were Mr Rutlidge, Mr Randolph, Mr Gorham, Mr Wilson, & Mr Johnson.
Mr Dickenson mentioned to the House that on examining Blackstone's Commentaries, he found that the term "ex post facto" related to criminal cases only; that they would not consequently restrain the States from retrospective laws in civil cases, and that some further provision for this purpose would be requisite.
Art: VII Sect. 6 by ye Com̃ittee of eleven reported to be struck out (see the 24 instant) being now taken up.
Mr Pinkney moved to postpone the Report in favor of the following proposition–"That no act of the Legislature for the purpose of regulating the commerce of the U. S. with foreign powers among the several States, shall be passed without the assent of two thirds of the members of each House." He remarked that there were five distinct commercial interests. 1. the fisheries & W. India trade, which belonged to the N. England States. 2. the interest of N. York lay in a free trade. 3. Wheat & flour the Staples of the two middle States (N. J. & Penna). 4. Tobo the staple of Maryld & Virginia & partly of N. Carolina. 5. Rice & Indigo, the staples of S. Carolina & Georgia. These different interests would be a source of oppressive regulations if no check to a bare majority should be provided. States pursue their interests with less scruple than individuals. The power of regulating commerce was a pure concession on the part of the S. States. They did not need the protection of the N. States at present.
Mr Martin 2ded the motion.
Genl Pinkney said it was the true interest of the S. States to have no regulation of commerce; but considering the loss brought on the commerce of the Eastern States by the revolution, their liberal conduct towards the views [46] of South Carolina, and the interest the weak Southn States had in being united with the strong Eastern States, he thought it proper that no fetters should be imposed on the power of making commercial regulations, and that his constituents though prejudiced against the Eastern States, would be reconciled to this liberality. He had himself, he said, prejudices agst the Eastern States before he came here, but would acknowledge that he had found them as liberal and candid as any men whatever.
[ [46] He meant the permission to import slaves. An understanding on the two subjects of navigation and slavery, had taken place between those parts of the Union, which explains the vote on the motion depending, as well as the language of Genl Pinkney & others.–Madison's Note.
Mr Clymer. The diversity of commercial interests of necessity creates difficulties, which ought not to be increased by unnecessary restrictions. The Northern & middle States will be ruined, if not enabled to defend themselves against foreign regulations.
Mr Sherman, alluding to Mr Pinkney's enumeration of particular interests, as requiring a security agst abuse of the power; observed that the diversity was of itself a security, adding that to require more than a majority to decide a question was always embarrassing as had been experienced in cases requiring the votes of nine States in Congress.
Mr Pinkney replied that his enumeration meant the five minute interests. It still left the two great divisions of Northern & Southern interests.
Mr Govr Morris, opposed the object of the motion as highly injurious. Preferences to american ships will multiply them, till they can carry the Southern produce cheaper than it is now carried.–A navy was essential to security, particularly of the S. States, and can only be had by a navigation act encouraging american bottoms & seamen. In those points of view then alone, it is the interest of the S. States that navigation acts should be facilitated. Shipping he said was the worst & most precarious kind of property, and stood in need of public patronage.
Mr Williamson was in favor of making two thirds instead of a majority requisite, as more satisfactory to the Southern people. No useful measure he believed had been lost in Congress for want of nine votes. As to the weakness of the Southern States, he was not alarmed on that account. The sickliness of their climate for invaders would prevent their being made an object. He acknowledged that he did not think the motion requiring 2/3 necessary in itself, because if a majority of the Northern States should push their regulations too far the S. States would build ships for themselves: but he knew the Southern people were apprehensive on this subject and would be pleased with the precaution.
Mr Spaight was against the motion. The Southern States could at any time save themselves from oppression, by building ships for their own use.
Mr Butler differed from those who considered the rejection of the motion as no concession on the part of the S. States. He considered the interest of these and of the Eastern States, to be as different as the interests of Russia and Turkey. Being notwithstanding desirous of conciliating the affections of the East: States, he should vote agst requiring 2/3 instead of a majority.
Col: Mason. If the Govt is to be lasting, it must be founded in the confidence & affections of the people, and must be so constructed as to obtain these. The Majority will be governed by their interests. The Southern States are the minority in both Houses. Is it to be expected that they will deliver themselves bound hand & foot to the Eastern States, and enable them to exclaim, in the words of Cromwell on a certain occasion–"the lord hath delivered them into our hands."
Mr Wilson took notice of the several objections and remarked that if every peculiar interest was to be secured, unanimity ought to be required. The majority he said would be no more governed by interest than the minority. It was surely better to let the latter be bound hand and foot than the former. Great inconveniences had, he contended, been experienced in Congress from the article of confederation requiring nine votes in certain cases.
Mr Madison went into a pretty full view of the subject. He observed that the disadvantage to the S. States from a navigation act, lay chiefly in a temporary rise of freight, attended however with an increase of Southn as well as Northern Shipping–with the emigration of Northern Seamen & merchants to the Southern States–& with a removal of the existing & injurious retaliations among the States on each other. The power of foreign nations to obstruct our retaliating measures on them by a corrupt influence would also be less if a majority shd be made competent than if 2/3 of each House shd be required to legislative acts in this case. An abuse of the power would be qualified with all these good effects. But he thought an abuse was rendered improbable by the provision of 2 branches–by the independence of the Senate, by the negative of the Executive, by the interest of Connecticut & N. Jersey which were agricultural, not commercial States; by the interior interest which was also agricultural in the most commercial States, by the accession of Western States which wd be altogether agricultural. He added that the Southern States would derive an essential advantage in the general security afforded by the increase of our maritime strength. He stated the vulnerable situation of them all, and of Virginia in particular. The increase of the coasting trade, and of seamen, would also be favorable to the S. States, by increasing, the consumption of their produce. If the wealth of the Eastern should in a still greater proportion be augmented, that wealth wd contribute the more to the public wants, and be otherwise a national benefit.
Mr Rutlidge was agst the motion of his colleague. It did not follow from a grant of the power to regulate trade, that it would be abused. At the worst a navigation act could bear hard a little while only on the S. States. As we are laying the foundation for a great empire, we ought to take a permanent view of the subject and not look at the present moment only. He reminded the House of the necessity of securing the West India trade to this country. That was the great object, and a navigation act was necessary for obtaining it.
Mr Randolph said that there were features so odious in the constitution as it now stands, that he doubted whether he should be able to agree to it. A rejection of the motion would compleat the deformity of the system. He took notice of the argument in favor of giving the power over trade to a majority, drawn from the opportunity foreign powers would have of obstructing retaliatory measures if two thirds were made requisite. He did not think there was weight in that consideration. The difference between a majority & two thirds did not afford room for such an opportunity. Foreign influence would also be more likely to be exerted on the President who could require three fourths by his negative. He did not mean however to enter into the merits. What he had in view was merely to pave the way for a declaration which he might be hereafter obliged to make if an accumulation of obnoxious ingredients should take place, that he could not give his assent to the plan.
Mr Gorham. If the Government is to be so fettered as to be unable to relieve the Eastern States what motive can they have to join in it, and thereby tie their own hands from measures which they could otherwise take for themselves. The Eastern States were not led to strengthen the Union by fear for their own safety. He deprecated the consequences of disunion, but if it should take place it was the Southern part of the Continent that had most reason to dread them. He urged the improbability of a combination against the interest of the Southern States, the different situations of the Northern & Middle States being a security against it. It was moreover certain that foreign ships would never be altogether excluded especially those of Nations in treaty with us.
On the question to postpone in order to take up Mr Pinkney's motion
N. H. no. Mass. no. Ct no. N. J. no. Pa no. Del. no. Md ay. Va ay. N. C. ay. S. C. no. Geo. ay.
The Report of the Committee for striking out Sect. 6. requiring two thirds of each House to pass a navigation act was then agreed to, nem: con:
Mr Butler moved to insert after Art: XV. "If any person bound to service or labor in any of the U. States shall escape into another State, he or she shall not be discharged from such service or labor, in consequence of any regulations subsisting in the State to which they escape, but shall be delivered up to the person justly claiming their service or labor," which was agreed to nem: con:
Art: XVII being taken up, Mr Govr Morris moved to strike out the two last sentences, to wit "If the admission be consented to, the new States shall be admitted on the same terms with the original States. But the Legislature may make conditions with the new States, concerning the public debt which shall be then subsisting."–He did not wish to bind down the Legislature to admit Western States on the terms here stated.
Mr Madison opposed the motion, insisting that the Western States neither would nor ought to submit to a union which degraded them from an equal rank with the other States.
Col: Mason. If it were possible by just means to prevent emigrations to the Western Country, it might be good policy. But go the people will as they find it for their interest, and the best policy is to treat them with that equality which will make them friends not enemies.
Mr Govr Morris did not mean to discourage the growth of the Western Country. He knew that to be impossible. He did not wish however to throw the power into their hands.
Mr Sherman, was agst the motion & for fixing an equality of privileges by the Constitution.
Mr Langdon was in favor of the motion, he did not know but circumstances might arise which would render it inconvenient to admit new States on terms of equality.
Mr Williamson was for leaving the Legislature free. The existing small States enjoy an equality now, and for that reason are admitted to it in the Senate. This reason is not applicable to new Western States.
On Mr Govr Morris's motion for striking out.
N. H. ay. Mas. ay. Ct ay. N. J. ay. Pa ay. Del. ay. Md no. Va no. N. C. ay. S. C. ay. Geo. ay.
Mr L. Martin & Mr Govr Morris moved to strike out of art XVII, "but to such admission the consent of two thirds of the members present shall be necessary." Before any question was taken on this motion,
Mr Govr Morris moved the following proposition as a substitute for the XVII Art:
"New States may be admitted by the Legislature into this Union; but no new State shall be erected within the limits of any of the present States, without the consent of the Legislature of such State, as well as of the Genl Legislature."
The first part to Union inclusive was agreed to nem: con:
Mr L. Martin opposed the latter part. Nothing he said would so alarm the limited States as to make the consent of the large States claiming the Western lands, necessary to the establishment of new States within their limits. It is proposed to guarantee the States. Shall Vermont be reduced by force in favor of the States claiming it? Frankland & the Western county of Virginia were in a like situation.
On Mr Govr Morris's motion to substitute &c. it was agreed to.
N. H. no. Mass. ay. Ct no. N. J. no. Pa ay. Del. no. Md no. Va ay. N. C. ay. S. C. ay. Geo. ay.
Art: XVII–before the House, as amended.
Mr Sherman was against it. He thought it unnecessary. The Union cannot dismember a State without its consent.
Mr Langdon thought there was great weight in the argument of Mr Luther Martin, and that the proposition substituted by Mr Govr Morris would excite a dangerous opposition to the plan.
Mr Govr Morris thought on the contrary that the small States would be pleased with the regulation, as it holds up the idea of dismembering the large States.
Mr Butler. If new States were to be erected without the consent of the dismembered States, nothing but confusion would ensue. Whenever taxes should press on the people, demagogues would set up their schemes of new States.
Docr Johnson agreed in general with the ideas of Mr Sherman, but was afraid that as the clause stood, Vermont would be subjected to N. York, contrary to the faith pledged by Congress. He was of opinion that Vermont ought to be compelled to come into the Union.
Mr Langdon said his objections were connected with the case of Vermont. If they are not taken in, & remain exempt from taxes, it would prove of great injury to N. Hampshire and the other neighbouring States.
Mr Dickinson hoped the article would not be agreed to. He dwelt on the impropriety of requiring the small States to secure the large ones in their extensive claims of territory.
Mr Wilson. When the majority of a State wish to divide they can do so. The aim of those in opposition to the article, he perceived was that the Genl Government should abet the minority, & by that means divide a State against its own consent.
Mr Govr Morris. If the forced division of the States is the object of the new system, and is to be pointed agst one or two States, he expected the Gentlemen from these would pretty quickly leave us.
Adjourned.