Mr. KING moved to add to the end of art: XXI the words "between the said States" so as to confine the operation of the Govt. to the States ratifying it.
On the question
N. H. ay. Mas. ay. Ct. ay. N. J. ay. Pa. ay. Md. no. Virga. ay. N. C. ay. S. C. ay. Geo. ay.
Mr. MADISON proposed to fill the blank in the article with "any seven or more States entitled to thirty three members at least in the House of Representatives according to the allotment made in the 3 Sect: of art: 4." This he said would require the concurrence of a majority both of the States and people.
Mr. SHERMAN doubted the propriety of authorizing less than all the States to execute the Constitution, considering the nature of the existing Confederation. Perhaps all the States may concur, and on that supposition it is needless to hold out a breach of faith.
Mr. CLYMER and Mr. CARROL moved to postpone the consideration of Art: XXI in order to take up the Reports of Committees not yet acted on. On this question, the States were equally divided.
N. H. ay. Mas. no. Ct. divd. N. J. no. Pa. ay. Del. ay. Md. ay. Va. no. N. C no. S. C. no. G. ay.
Mr. Govr. MORRIS moved to strike out "Conventions of the" after "ratifications," leaving the States to pursue their own modes of ratification.
Mr. CARROL mentioned the mode of altering the Constitution of Maryland pointed out therein, and that no other mode could be pursued in that State.
Mr. KING thought that striking out "Conventions" as the requisite mode was equivalent to giving up the business altogether. Conventions alone, which will avoid all the obstacles from the complicated formation of the Legislatures, will succeed, and if not positively required by the plan, its enemies will oppose that mode.
Mr. Govr. MORRIS said he meant to facilitate the adoption of the plan, by leaving the modes approved by the several State Constitutions to be followed.
Mr. MADISON considered it best to require Conventions; among other reasons, for this, that the powers given to the Genl. Govt. being taken from the State Govts. the Legislatures would be more disinclined than conventions composed in part at least of other men; and if disinclined, they could devise modes apparently promoting, but really, thwarting the ratification. The difficulty in Maryland was no greater than in other States, where no mode of change was pointed out by the Constitution, and all officers were under oath to support it. The people were in fact, the fountain of all power, and by resorting to them, all difficulties were got over. They could alter constitutions as they pleased. It was a principle in the Bills of rights, that first principles might be resorted to.
Mr. Mc.HENRY said that the officers of Govt. in Maryland were under oath to support the mode of alteration prescribed by the Constitution.
Mr. GHORUM, urged the expediency of "Conventions" also Mr. PINKNEY, for reasons, formerly urged on a discussion of this question.
Mr. L. MARTIN insisted on a reference to the State Legislatures. He urged the danger of commotions from a resort to the people & to first principles in which the Governments might be on one side & the people on the other. He was apprehensive of no such consequences however in Maryland, whether the Legislature or the people should be appealed to. Both of them would be generally against the Constitution. He repeated also the peculiarity in the Maryland Constitution.
Mr. KING observed that the Constitution of Massachussets was made unalterable till the year 1790, yet this was no difficulty with him. The State must have contemplated a recurrence to first principles before they sent deputies to this Convention.
Mr. SHERMAN moved to postpone art. XXI & take up art: XXII on which question,
N. H. no. Mas. no. Ct. ay. N. J. no. P. ay. Del. ay. Md. ay. Va. ay. N. C. no S. C. no. Geo. no.
On Mr. Govr. Morris's motion to strike out "Conventions of the," it was negatived.
N. H. no. Mas. no. Ct. ay. N. J. no. Pa. ay. Del. no. Md. ay. Va. no. S. C. no. Geo. ay.
On filling the blank in Art: XXI with "thirteen" moved by Mr. CARROL & L. MARTIN
N. H. no. Mas. no. Ct. no-all no. except Maryland.
Mr. SHERMAN & Mr. DAYTON moved to fill the blank with "ten"
Mr. WILSON supported the motion of Mr. MADISON, requiring a majority both of the people and of States.
Mr. CLYMER was also in favor of it.
Col: MASON was for preserving ideas familiar to the people. Nine States had been required in all great cases under the Confederation & that number was on that account preferable
On the question for "ten"
N. H. no. Mas. no. Ct. ay. N. J. ay. Pa. no. Del. no. Md. ay. Va. no. N. C. no. S. C. no. Geo. ay.
On question for "nine"
N. H. ay. Mas. ay. Ct. ay. N. J. ay. Pa. ay. Del. ay. Md. ay. Va. no. N. C. no. S. C. no. Geo. ay
Art: XXI. as amended was then agreed to by all the States, Maryland excepted, & Mr. Jenifer being, ay.
Art: XXIIN taken up, to wit, "This Constitution shall be laid before the U. S. in Congs. assembled for their approbation; and it is the opinion of this Convention that it should be afterwards submitted to a Convention chosen, in each State under the recommendation of its Legislature, in order to receive the ratification of such Convention"
Mr. Govr. MORRIS & Mr. PINKNEY moved to strike out the words "for their approbation" On this question
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. no.
Mr. Govr. MORRIS & Mr. PINKNEY then moved to amend the art: so as to read
"This Constitution shall be laid before the U. S. in Congress assembled; and it is the opinion of this Convention that it should afterwards be submitted to a Convention chosen in each State, in order to receive the ratification of such Convention: to which end the several Legislatures ought to provide for the calling Conventions within their respective States as speedily as circumstances will permit." -Mr. Govr. MORRIS said his object was to impress in stronger terms the necessity of calling Conventions in order to prevent enemies to the plan, from giving it the go by. When it first appears, with the sanction of this Convention, the people will be favorable to it. By degrees the State officers, & those interested in the State Govts. will intrigue & turn the popular current against it.
Mr. L. MARTIN believed Mr. Morris to be right, that after a while the people would be agst. it, but for a different reason from that alledged. He believed they would not ratify it unless hurried into it by surprize.
Mr. GERRY enlarged on the idea of Mr. L. Martin in which he concurred, represented the system as full of vices, and dwelt on the impropriety of distroying the existing Confederation, without the unanimous consent of the parties to it. Question on Mr. Govr. Morris's & Mr. Pinkney's motion
N. H. ay. Mas. ay. Ct. no. N. J. no. Pa. ay. Del. ay. Md. no. Va. no. N. C. no. S. C. no. Geo. no.
Mr. GERRY moved to postpone art: XXII.
Col: MASON 2ded. the motion, declaring that he would sooner chop off his right hand than put it to the Constitution as it now stands. He wished to see some points not yet decided brought to a decision, before being compelled to give a final opinion on this article. Should these points be improperly settled, his wish would then be to bring the whole subject before another general Convention.
Mr. Govr. MORRIS was ready for a postponement. He had long wished for another Convention, that will have the firmness to provide a vigorous Government, which we are afraid to do.
Mr. RANDOLPH stated his idea to be, in case the final form of the Constitution should not permit him to accede to it, that the State Conventions should be at liberty to propose amendments to be submitted to another General Convention which may reject or incorporate them, as shall be judged proper.
On the question for postponing
N. H. no. Mas. no. Ct. no. N. J. ay. Pa. no. Del. no. Md. ay. Va. no. N. C. ay. S. C. no. Geo. no.
On the question on Art: XXII
N. H. ay. Mas. ay. Ct. ay. N. J. ay. Pa. ay. Del. ay. Md. no. Va. ay. N. C. ay. S. C. ay. Geo. ay.
Art: XXIII being taken up, as far as the words "assigned by Congress" inclusive, was agreed to nem: con: the blank having been first filled with the word "nine" as of course.
On a motion for postponement the residue of the clause, concerning the choice of the President &c.
N. H. no. Mas. ay. Ct. no. N. J. no. Pa. no. Del. ay. Md. no. Va. ay. N. C. ay. S. C. no. Geo. no.
Mr. Govr. MORRIS then moved to strike out the words "choose the President of the U. S. and"-this point, of choosing the President not being yet finally determined, & on this question
N. H. no. Mas. ay. Ct. ay. N. J. ay. Pa. ay Del. ay. Md. divd. Va. ay. N. C. ay. S. C. ay. Geo. ay.
Art: XXIII as amended was then agreed to nem: con:
The Report of the Grand Committee of eleven made by Mr. SHERMAN was then taken up (see Aug: 28).
On the question to agree to the following clause, to be inserted after Sect. 4. art: VII. "nor shall any regulation of commerce or revenue give preference to the ports of one State over those of another." Agreed to nem: con:
On the clause "or oblige vessels bound to or from any State to enter clear or pay duties in another"
Mr. MADISON thought the restriction wd. be inconvenient, as in the River Delaware, if a vessel cannot be required to make entry below the jurisdiction of Pennsylvania.
Mr. FITZIMMONS admitted that it might be inconvenient, but thought it would be a greater inconveniency to require vessels bound to Philada. to enter below the jurisdiction of the State.
Mr. GORHAM & Mr. LANGDON, contended that the Govt. would be so fettered by this clause, as to defeat the good purpose of the plan. They mentioned the situation of the trade of Mas. & N. Hampshire, the case of Sandy Hook which is in the State of N. Jersey, but where precautions agst. smuggling into N. York, ought to be established by the Genl. Government.
Mr. Mc.HENRY said the clause would not shreeen a vessel from being obliged to take an officer on board as a security for due entry &c.
Mr. CARROL was anxious that the clause should be agreed to. He assured the House, that this was a tender point in Maryland.
Mr. JENNIFER urged the necessity of the clause in the same point of view.
On the question for agreeing to it
N. H. no. Ct. ay. N. J. ay. Pa. ay. Del. ay. Md. ay. Va. ay. N. C. ay. S. C. no. Geo. ay.
The word "tonnage" was struck out, nem: con: as comprehended in "duties"
On question on the clause of the Report "and all duties, imposts & excises, laid by the Legislature shall be uniform throughout the U. S." It was agreed to nem: con:
On motion of Mr. SHERMAN it was agreed to refer such parts of the Constitution as have been postponed, and such parts of Reports as have not been acted on, to a Committee of a member from each State; the Committee appointed by ballot, being-Mr. Gilman, Mr. King, Mr. Sherman, Mr. Brearly, Mr. Govr. Morris, Mr. Dickinson, Mr. Carrol, Mr. Madison, Mr. Williamson, Mr. Butler & Mr. Baldwin.
Art XVII resumed for a question on it as amended by Mr. Govr. Morris's substitutes.
Mr. CARROL moved to strike out so much of the article as requires the consent of the State to its being divided. He was aware that the object of this prerequisite might be to prevent domestic disturbances, but such was our situation with regard to the Crown lands, and the sentiments of Maryland on that subject, that he perceived we should again be at sea, if no guard was provided for the right of the U. States to the back lands. He suggested that it might be proper to provide that nothing in the Constitution should affect the Right of the U. S. to lands ceded by G. Britain in the Treaty of peace, and proposed a committment to a member from each State. He assured the House that this was a point of a most serious nature. It was desirable above all things that the act of the Convention might be agreed to unanimously. But should this point be disregarded, he believed that all risks would be run by a considerable minority, sooner than give their concurrence.
Mr. L. MARTIN 2ded. the motion for a committment.
Mr. RUTLIDGE is it to be supposed that the States are to be cut up without their own consent. The case of Vermont will probably be particularly provided for. There could be no room to fear, that Virginia or N. Carolina would call on the U. States to maintain their Government over the Mountains.
Mr. WILLIAMSON said that N. Carolina was well disposed to give up her western lands, but attempts at compulsion was not the policy of the U. S. He was for doing nothing in the constitution in the present case, and for leaving the whole matter in Statu quo.
Mr. WILSON was against the committment. Unanimity was of great importance, but not to be purchased by the majority's yielding to the minority. He should have no objection to leaving the case of new States as heretofore. He knew of nothing that would give greater or juster alarm than the doctrine, that a political society is to be torne asunder without its own consent. On Mr. Carrol's motion for commitment
N. H. no. Mas. no. Ct. no. N. J. ay. Pa. no. Del. ay. Md. ay. Va. no. N. C. no. S. C. no. Geo. no.
Mr. SHERMAN moved to postpone the substitute for art: XVII agreed to yesterday in order to take up the following amendment "The Legislature shall have power to admit other States into the Union, and new States to be formed by the division or junction of States now in the Union, with the consent of the Legislature of such States." [The first part was meant for the case of Vermont to secure its admission.]
On the question, it passed in the negative
N. H. ay. Mas. ay. Ct. ay. N. J. no. Pa. ay. Del. no. Md. no. Va. no. N. C. no. S. C. ay. Geo. no.
Docr. JOHNSON moved to insert the words "hereafter formed or" after the words "shall be" in the substitute for art: XVII, [the more clearly to save Vermont as being already formed into a State, from a dependence on the consent of N. York to her admission.] The motion was agreed to Del. & Md. only dissenting.
Mr. GOVERNR. MORRIS moved to strike out the word "limits" in the substitute, and insert the word "jurisdiction" [This also meant to guard the case of Vermont, the jurisdiction of N. York not extending over Vermont which was in the exercise of sovereignty, tho' Vermont was within the asserted limits of New York]
On this question
N. H. ay. Mas. ay. Ct. ay. N. J. no. Pa. ay. Del. ay. Md. ay. Va. ay. N. C. no. S. C. no. Geo. no.
Mr. L. MARTIN, urged the unreasonableness of forcing & guaranteeing the people of Virginia beyond the Mountains, the Western people, of N. Carolina, & of Georgia, & the people of Maine, to continue under the States now governing them, without the consent of those States to their separation. Even if they should become the majority, the majority of Counties, as in Virginia may still hold fast the dominion over them. Again the majority may place the seat of Government entirely among themselves & for their own conveniency, and still keep the injured parts of the States in subjection, under the guarantee of the Genl. Government agst. domestic violence. He wished Mr. Wilson had thought a little sooner of the value of political bodies. In the beginning, when the rights of the small States were in question, they were phantoms, ideal beings. Now when the Great States were to be affected, political societies were of a sacred nature. He repeated and enlarged on the unreasonableness of requiring the small States to guarantee the Western claims of the large ones. -It was said yesterday by Mr. Govr. Morris, that if the large States were to be split to pieces without their consent, their representatives here would take their leave. If the Small States are to be required to guarantee them in this manner, it will be found that the Representatives of other States will with equal firmness take their leave of the Constitution on the table.
It was moved by Mr. L. MARTIN to postpone the substituted article, in order to take up the following. "The Legislature of the U. S. shall have power to erect New States within as well as without the territory claimed by the several States or either of them, and admit the same into the Union: provided that nothing in this constitution shall be construed to affect the claim of the U. S. to vacant lands ceded to them by the late treaty of peace. which passed in the negative: N. J. Del. & Md. only ay.
On the question to agree to Mr. Govr. Morris's substituted article as amended in the words following,
"New States may be admitted by the Legislature into the Union: but no new State shall be hereafter formed or erected within the jurisdiction of any of the present States without the consent of the Legislature of such State as well as of the General Legislature"
N. H. ay. Mas. ay. Ct. ay. N. J. no. Pa. ay. Del. no. Md. no. Va. ay. N. C. ay. S. C. ay. Geo. ay.
Mr. DICKINSON moved to add the following clause to the last- "Nor shall any State be formed by the junction of two or more States or parts thereof, without the consent of the Legislatures of such States, as well as of the Legislature of the U. States." which was agreed to without a count of the votes.
Mr. CARROL moved to add-"Provided nevertheless that nothing in this Constitution shall be construed to affect the claim of the U. S. to vacant lands ceded to them by the Treaty of peace." This he said might be understood as relating to lands not claimed by any particular States, but he had in view also some of the claims of particular States.
Mr. WILSON was agst. the motion. There was nothing in the Constitution affecting one way or the other the claims of the U. S. & it was best to insert nothing leaving every thing on that litigated subject in statu quo.
Mr. MADISON considered the claim of the U. S. as in fact favored by the jurisdiction of the judicial power of the U. S. over controversies to which they whould be parties. He thought it best on the whole to be silent on the subject. He did not view the proviso of Mr. Carrol as dangerous; but to make it neutral & fair, it ought to go farther & declare that the claims of particular States also should not be affected.
Mr. SHERMAN thought the proviso harmless, especially with the addition suggested by Mr. Madison in favor of the claims of particular States.
Mr. BALDWIN did not wish any undue advantage to be given to Georgia. He thought the proviso proper with the addition proposed. It should be remembered that if Georgia has gained much by the cession in the Treaty of peace, she was in danger during the war, of a Uti possidetis.
Mr. RUTLIDGE thought it wrong to insert a proviso where there was nothing which it could restrain, or on which it could operate.
Mr. CARROL withdrew his motion and moved the following. "Nothing in this Constitution shall be construed to alter the claims of the U. S. or of the individual States to the Western territory, but all such claims shall be examined into & decided upon, by the Supreme Court of the U. States."
Mr. Govr. MORRIS moved to postpone this in order to take up the following.
"The Legislature shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the U. States; and nothing in this constitution contained, shall be so construed as to prejudice any claims either of the U. S. or of any particular State." -The postponemt. agd. to nem. con.
Mr. L. MARTIN moved to amend the proposition of Mr. Govr. Morris by adding- "But all such claims may be examined into & decided upon by the supreme Court of the U. States."
Mr. Govr. MORRIS. this is unnecessary, as all suits to which the U. S. are parties, are already to be decided by the Supreme Court.
Mr. L. MARTIN, it is propor in order to remove all doubts on this point. Question on Mr. L. Martin's amendatory motion
N. H. no. Mas. no. Ct. no. N. J. ay. Pa. no. Del. no. Md. ay. Va. no- States not farther called the negatives being sufficient & the point given up.
The Motion of Mr. Govr. Morris was then agreed to, Md. alone dissenting.
Art: XVIII being taken up,-the word "foreign" was struck out. nem: con: as superfluous, being implied in the term "invasion."
Mr. DICKINSON moved to strike out "on the application of its Legislature, against" He thought it of essential importance to the tranquility of the U. S. that they should in all cases suppress domestic violence, which may proceed from the State Legislature itself, or from disputes between the two branches where such exist
Mr. DAYTON mentioned the Conduct of Rho: Island as shewing the necessity of giving latitude to the power of the U. S. on this subject.
On the question
N. H. no. Mas. no. Ct. no. N. J. ay. Pa. ay. Del. ay. Md. no. Va. no. N. C. no. S. C. no. Geo. no.
On a question for striking out "domestic violence" and insertg. "insurrections." It passed in the negative.
N. H. no. Mas. no. Ct. no. N. J. ay. Pa. no. Del. no. Md. no. Va. ay. N. C. ay. S. C. ay. Geo. ay.
Mr. DICKINSON moved to insert the words, "or Executive" after the words "application of its Legislature"-The occasion itself he remarked might hinder the Legislature from meeting.
On this question
N. H. ay. Mas. no. Ct. ay. N. J. ay. Pa. ay. Del. ay. Md. divd. Va. no. N. C. ay. S. C. ay. Geo. ay.
Mr. L. MARTIN moved to subjoin to the last amendment the words "in the recess of the Legislature"
On which question
N. H. no. Mas. no. Ct. no. Pa. no. Del. no. Md. ay. Va. no. N. C. no. S. C. no. Geo. no.
On Question on the last clause as amended
N. H. Mas. ay. Ct. ay. N. J. ay. Pa. ay. Del. no. Md. no. Va. ay. N. C. ay. S. C. ay. Geo. ay.
Art: XIX, taken up.
Mr. Govr. MORRIS suggested that the Legislature should be left at liberty to call a Convention, whenever they please.
The art: was agreed to nem: con:
Art: XX., taken up. - "or affirmation" was added after "oath."
FN27 In the transcript the word "was" is crossed out and "were" is written above it.
Mr. PINKNEY moved to add to the art: -"but no religious test shall ever be required as a qualification to any office or public trust under the authority of the U. States"
Mr. SHERMAN thought it unnecessary, the prevailing liberality being a sufficient security agst. such tests.
Mr. Govr. MORRIS & Genl. PINKNEY approved the motion. The motion was agreed to nem: con: and then then whole
Article; N. C. only no-& Md. divided
Art: XXI., taken up. viz: The ratifications of the Conventions of ---------- States shall be sufficient for organizing this Constitution."
Mr. WILSON proposed to fill the blank with "seven" that being a majority of the whole number & sufficient for the commencement of the plan.
Mr. CARROL moved to postpone the article in order to take up the Report of the Committee of Eleven (see Tuesday Augst. 28)- and on the question
N. H. no. Mas. no. Ct. no. N. J. ay. Pa. no. Del. ay. Md. ay. Va. no. N. C. no. S. C. no. Geo. no.
Mr. Govr. MORRIS thought the blank ought to be filled in a twofold way, so as to provide for the event of the ratifying States being contiguous which would render a smaller number sufficient, and the event of their being dispersed, which wd. require a greater number for the introduction of the Government.
Mr. SHERMAN. observed that the States being now confederated by articles which require unanimity in changes, he thought the ratification in this case of ten States at least ought to be made necessary.
Mr. RANDOLPH was for filling the blank with "nine" that being a respectable majority of the whole, and being a number made familiar by the constitution of the existing Congress.
Mr. WILSON mentioned "eight" as preferable.
Mr. DICKINSON asked whether the concurrence of Congress is to be essential to the establishment of the system, whether the refusing States in the Confederacy could be deserted-and whether Congress could concur in contravening the system under which they acted?
Mr. MADISON, remarked that if the blank should be filled with "seven" eight, or "nine"-the Constitution as it stands might be put in force over the whole body of the people, tho' less than a majority of them should ratify it.
Mr. WILSON. As the Constitution stands, the States only which ratify can be bound. We must he said in this case go to the original powers of Society. The House on fire must be extinguished, without a scrupulous regard to ordinary rights.
Mr. BUTLER was in favor of "nine." He revolted at the idea, that one or two States should restrain the rest from consulting their safety.
Mr. CARROL moved to fill the blank with "the thirteen," unanimity being necessary to dissolve the existing confederacy which had been unanimously established.
Mr. KING thought this amendt. necessary, otherwise as the Constitution now stands it will operate on the whole though ratified by a part only.
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 & 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:
"Whenever the act of any State, whether Legislative, 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. 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 terms, "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. Committee 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, or 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 Maryd. & 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 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.
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, itis 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 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 interests of these and of the Eastern States, to be as different as the interests of Russia and Turkey. Being notwith-standing 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 retaliating 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 the 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 pospone in order to take up Mr. Pinkney's Motion
N. H. no. Mas. 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 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 country of Virginia were in a like situation.
On Mr. Govr. Morris's motion to substitute &c it was agreed to.
N. H. no. Mas. 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 can not 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 though
t 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 States is the object of the new System, and is to be pointed agst. one or two States, he expected, the Gentleman from these would pretty quickly leave us.
Art X. Sect. 2. being resumed.
Mr. L. MARTIN moved to insert the words "after conviction" after the words "reprieves and pardons"
Mr. 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.-
Mr. L. MARTIN withdrew his motion.
Mr. 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. abst. Ct. ay. N. J. abst. Pa. ay. Del. no. Md. ay. Va. ay. N. C. abst. S. C. no. Geo. ay.
The clause for removing the President on impeachment by the House of Reps. and conviction in the supreme Court, of Treason, Bribery or corruption, was postponed nem: con: at the instance of Mr. Govr. MORRIS, who thought the Tribunal an improper one, particularly, if the first judge was to be of the privy Council.
Mr. Govr. MORRIS objected also to the President of the Senate being provisional successor to the President, and suggested a designation of the Chief Justice.
Mr. 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.
Mr. 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.
Mr. DICKINSON 2ded. the postponement, remarking that it was too vague. What is the extent of the term "disability" & who is to be the judge of it?
The postponement was agreed to nem: con:
Col: MASON & Mr. 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."
Mr. WILSON thought the general provision for oaths of office, in a subsequent place, rendered the amendment unnecessary-
On the question
N. H. ay. Mas. abst. Ct. ay. Pa. ay. Del. no. Md. ay. Va. ay. N. C. abst. S. C. ay. Geo. ay.
Art: XI. being taken up.
Docr. 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 1st. line, of sect. 1.
Mr. READ objected to vesting these powers in the same Court.
On the question
N. H. ay. Mas. absent. Ct. ay. N. J. abst. P. ay. Del. no. Md. no. Virga. ay. N. C. abst. S. C. ay. Geo. ay.
On the question to agree to Sect. 1. art. XI. as amended.
N. H. ay. Mas. abst. Ct. ay. Pa. ay. N. J. abst. Del. no.
Md. no. Va. ay. N. C. abst. S. C. ay. Geo. ay.
Mr. 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."
Mr. GERRY 2ded. the motion
Mr. Govr. 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.
Mr. SHERMAN saw no contradiction or impropriety if this were made part of the constitutional regulation of the Judiciary establishment. He observed that a like provision was contained in the British Statutes.
Mr. RUTLIDGE. If the Supreme Court is to judge between the U. S. and particular States, this alone is an insuperable objection to the motion.
Mr. 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 every gust of faction which might prevail in the two branches of our Govt.
Mr. RANDOLPH opposed the motion as weakening too much the independence of the Judges.
Mr. 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 Mr. Dickinson's Motion
N. H. no. Mas. abst. Ct. ay. N. J. abst. Pa. no. Del. no. Md. no. Va. no. N. C. abst. S. C. no. Geo. no.
On the question on Sect. 2. art: XI as reported. Del & Maryd. only no.
Mr. MADISON and Mr. Mc.HENRY moved to reinstate the words "increased or" before the word "diminished" in the 2d. sect. art XI.
Mr. Govr. 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.
Genl. 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.
Mr. Govr. MORRIS said the ex pedient might be evaded & therefore amounted to nothing. Judges might resign, and then be reappointed to increased salaries.
On the question
N. H. no. Ct. no. Pa. no. Del. no. Md. divd. Va. ay. S. C. no. Geo. abst. also Mas. N. J. & N. C.
Mr. RANDOLPH & Mr. MADISON then moved to add the following words to sect. 2. art XI. "nor increased by any Act of the Legislature which shall operate before the expiration of three years after the passing thereof"
On this question
N. H. no. Ct. no. Pa. no. Del. no. Md. ay. Va. ay. S. C. no. Geo. abst. 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.
Mr. MADISON & Mr. Govr. 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:
Docr. JOHNSON moved to insert the words "this Constitution and the" before the word "laws"
Mr. 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 Docr. 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 Mr. 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.
Mr. Govr. 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.
Mr. 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.
Mr. DICKINSON moved to add after the word "appellate" the words both as to law & fact which was agreed to nem: con:
Mr. MADISON & Mr. Govr. MORRIS moved to strike out the beginning of the 3d. 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 before mentioned the Judicial power shall be exercised in such manner as the Legislature shall direct"
Del. Virga. ay
N. H Con. P. M. S. C. G no
On a question for striking out the last sentence of sect. 3.
"The Legislature may assign &c."
N. H. ay. Ct. ay. Pa. ay. Del. ay. Md. ay. Va. ay. S. C. ay. Geo. ay.
Mr. 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:
The 1st. 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 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.
Mr. LANGDON wished to do no more than leave the Creditors in statu quo.
Mr. 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.
Mr. BUTLER said he meant neither to increase nor diminish the security of the creditors.
Mr. RANDOLPH moved to postpone the clause in favor of the following "All debts contracted & engagements entered into, by or under the authority of Congs. shall be as valid agst. the U. States under this constitution as under the Confederation." Docr. JOHNSON. The debts are debts of the U- S- of the great Body of America. Changing the Government can not 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 Mr. Randolph.
Mr. Govr. 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 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 Mr. Randolph's Motion
N. H. ay. Mas. ay. Ct. ay. N. J. ay. Pa. no Del. ay. Maryd. ay Va. ay. N. C. ay. S. C. ay. Geo ay.
Mr. 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 1st. clause of 1st. 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 24th. instant] being taken up,
Genl. 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"
Mr. GHORUM 2ded. the motion
Mr. 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 dishonorable 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. Ct. ay. N. J. no. Pa. no. Del. no. Md. ay. Va. no. N. C. ay. S. C. ay. Geo. ay.
Mr. Govr. MORRIS was for making the clause read at once, " 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 agst. naming N. C. S. C. & Georgia, lest it should give offence to the people of those States.
Mr. SHERMAN liked a description better than the terms proposed, which had been declined by the old Congs. & were not pleasing to some people.
Mr. CLYMER concurred with Mr. Sherman
Mr. 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.
Mr. Govr. MORRIS withdrew his motion.
Mr. 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: cont:
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. Md. N. C. S. C. Geo: ay
N. J. Pa. Del. Virga..............no
Mr. BALDWIN in order to restrain & more explicitly define "the average duty" moved to strike out of the 2d. part the words "average of the duties laid on imports" and insert "common impost on articles not enumerated" which was agreed to nem: cont:
Mr. SHERMAN was agst. this 2d. part, as acknowledging men to be property, by taxing them as such under the character of slaves.
Mr. KING & Mr. LANGDON considered this as the price of the 1st. part.
Genl. PINKNEY admitted that it was so.
Col: MASON. Not to tax, will be equivalent to a bounty on the importation of slaves.
Mr. GHORUM thought that Mr. Sherman should consider the duty, not as implying that slaves are property, but as a discouragement to the importation of them.
Mr. Govr. MORRIS remarked that as the clause now stands it implies that the Legislature may tax freemen imported.
Mr. SHERMAN in answer to Mr. Ghorum observed that the smallness of the duty shewed revenue to be the object, not the discouragement of the importation.
Mr. 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 answr. to Govr. 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 2d. 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 Mr. MADISON 2ded. by Mr. Govr. MORRIS Art 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.
Mr. CARROL & Mr. 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 vessels on entering or clearing out, or paying duties or imposts in one State in preference to another"
Mr. 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.
Mr. Mc. HENRY & Genl. PINKNEY made the following propositions "Should it be judged expedient by the Legislature of the U. S. that one or more ports 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 Mr. Langdon, Mr. Ghorum, Mr. Sherman, Mr. Dayton, Mr. Fitzimmons, Mr. Read, Mr. Carrol, Mr. Mason, Mr. Williamson, Mr. Butler, Mr. Few.
On the question now taken on Mr. Dickinson motion of yesterday, allowing appointments to offices, to be referred by the Genl. Legislature to the Executives of the Several States" as a farther amendment to sect. 2, art. X. the votes were,
N. H. no. Mas. no. Ct. ay. Pa. no. Del. no. Md. divided. Va. ay. N. C. no. S. C. no. Geo. ay.
In amendment of the same section, "other public Ministers" were inserted after "ambassadors."
Mr. Govr. 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.
Mr. BROOME 2ded. him.
On the question
N. H. ay. Mas. ay. Ct. ay. Pa. ay. Del. ay. Md. no. Va. ay. N. C. ay. S. C. ay. Geo. ay. "Shall receive ambassadors & other public Ministers," agreed to, nem. con.
Mr. 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. Ct. ay. Pa. no Md. no. Va. 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. Ct. no. Pa. no. Del. no. Md. ay. Va. no. N. C. ay. S. C. ay. Geo. no.
Governour LIVINGSTON, from the Committee of Eleven, to whom were referred the two remaining clauses of the 4th. Sect & the 5 & 6 Sect: of the 7th. art: delivered in the following Report:
"Strike out so much of the 4th Sect: as was referred to the Committee and insert-"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 1800, but a tax or duty may be imposed on such migration or importation at a rate not exceeding the average of the duties laid on imports."
"The 5 Sect: to remain as in the Report"
"The 6 Sect to be stricken out"
Mr. BUTLER, according to notice, moved that clause 1st. sect. 1. of Art VII, as to the discharge of debts, be reconsidered tomorrow. He dwelt on the division of opinion concerning the domestic debts, and the different pretensions of the different classes of holders.
Genl. PINKNEY 2ded. him.
Mr. RANDOLPH wished for a reconsideration in order to better the expression, and to provide for the case of the State debts as is done by Congress.
On the question for reconsidering
N. H. no. Mas: ay. Cont. ay N. J. ay. Pena. absent. Del. ay Md. no. Va. ay. N. C. absent, S. C. ay. Geo. ay.-and tomorrow assigned for the reconsideration.
Sect: 2 & 3 of art: IX being taken up,
Mr. RUTLIDGE said this provision for deciding controversies between the States was necessary under the Confederation, but will be rendered unnecessary by the National Judiciary now to be established, and moved to strike it out.
Docr. JOHNSON 2ded. the Motion
Mr. SHERMAN concurred: so did Mr. DAYTON.
Mr. WILLIAMSON was for postponing instead of striking out, in order to consider whether this might not be a good provision, in cases where the Judiciary were interested or too closely connected with the parties.
Mr. GHORUM had doubts as to striking out. The Judges might be connected with the States being parties-He was inclined to think the mode proposed in the clause would be more satisfactory than to refer such cases to the Judiciary.
On the Question for postponing the 2d. & 3d. Section, it passed in the negative
N. H. ay. Masts. no. Cont. no N. J. no. Pena. abst. Del. no. Md. no. Va. no. N. C. ay. S. C. no. Geo. ay.
Mr. WILSON urged the striking out, the Judiciary being a better provision.
On Question for striking out 2 & 3 Sections Art: IX N. H. ay. Mas. ay. Ct. ay. N. J. ay. Pa. abst Del. ay. Md. ay. Va. ay. N. C. no. S. C. ay. Geo. no.
Art. X. sect. 1. "The executive power of the U. S. shall be vested in a single person. His stile shall be "The President of the U. S. of America" and his title shall be "His Excellency." He shall be elected by ballot by the Legislature. He shall hold his office during the term of seven years; but shall not be elected a second time.
On the question for vesting the power in a single person. It was agreed to nem: con: So also on the Stile and title.
Mr. RUTLIDGE moved to insert "joint" before the word "ballot," as the most convenient mode of electing.
Mr. SHERMAN objected to it as depriving the States represented in the Senate of the negative intended them in that house.
Mr. GHORUM said it was wrong to be considering at every turn whom the Senate would represent. The public good was the true object to be kept in view. Great delay and confusion would ensue if the two Houses shd. vote separately, each having a negative on the choice of the other.
Mr. DAYTON. It might be well for those not to consider how the Senate was constituted, whose interest it was to keep it out of sight. -If the amendment should be agreed to, a joint ballot would in fact give the appointment to one House. He could never agree to the clause with such an amendment. There could be no doubt of the two Houses separately concurring in the same person for President. The importance & necessity of the case would ensure a concurrence.
Mr. CARROL moved to strike out "by the Legislature" and insert "by the people."
Mr. WILSON 2ded. him & on the question
N. H. no. Massts. no. Cont. no. N. J. no. Pa. ay. Del. ay. Md. no. Va. no N. C. no. S. C. no. Geo. no.
Mr. BREARLY was opposed to the motion for inserting the word "joint." The argument that the small States should not put their hands into the pockets of the large ones did not apply in this case.
Mr. WILSON urged the reasonableness of giving the larger States a larger share of the appointment, and the danger of delay from a disagreement of the two Houses. He remarked also that the Senate had peculiar powers balancing the advantage given by a joint balot in this case to the other branch of the Legislature.
Mr. LANGDON. This general officer ought to be elected by the joint & general voice. In N. Hampshire the mode of separate votes by the two Houses was productive of great difficulties. The negative of the Senate would hurt the feelings of the man elected by the votes of the other branch. He was for inserting "joint" tho' unfavorable to N. Hampshire as a small State.
Mr. WILSON remarked that as the President of the Senate was to be President of the U. S. that Body in cases of vacancy might have an interest in throwing dilatory obstacles in the way, if its separate concurrence should be required.
Mr. MADISON. If the amendment be agreed to the rule of voting will give to the largest State, compared with the smallest, an influence as 4 to 1 only, altho the population is as 10 to 1. This surely can not be unreasonable as the President is to act for the people not for the States. The President of the Senate also is to be occasionally President of the U. S. and by his negative alone can make 3/4 of the other branch necessary to the passage of a law. This is another advantage enjoyed by the Senate.
On the question for inserting "joint," it passed in the affirmative
N. H. ay. Masts. ay. Ct. no. N. J. no. Pa. ay. Del. ay. Md. no Va. ay. N. C. ay. S. C. ay. Geo. no.
Mr. DAYTON then moved to insert, after the word "Legislatures" the words "each State having one vote" Mr. BREARLEY 2ded. him, and on the question it passed in the negative
N. H. no. Mas. no. Ct. ay. N. J. ay. Pa. no. Del. ay. Md. ay. Va. no. N. C. no. S. C. no. Geo. ay.
Mr. PINKNEY moved to insert after the word "Legislature" the words "to which election a majority of the votes of the members present shall be required" &
On this question, it passed in the affirmative
N. H. ay. Mas. ay. Ct. ay. N. J. no. Pa. ay. Del. ay. Md. ay. Va. ay. N. C. ay. S. C. ay. Geo. ay.
Mr. READ moved "that in case the numbers for the two highest in votes should be equal, then the President of the Senate shall have an additional casting vote," which was disagreed to by a general negative.
Mr. Govr. MORRIS opposed the election of the President by the Legislature. He dwelt on the danger of rendering the Executive uninterested in maintaining the rights of his Station, as leading to Legislative tyranny. If the Legislature have the Executive depedent on them, they can perpetuate & support their usurpations by the influence of tax-gatherers & other officers, by fleets armies &c. Cabal & corruption are attached to that mode of election: so also is ineligibility a second time. Hence the Executive is interested in Courting popularity in the Legislature by sacrificing his Executive Rights; & then he can go into that Body, after the expiration of his Executive office, and enjoy there the fruits of his policy. To these considerations he added that rivals would be continually intrigueing to oust the President from his place. To guard against all these evils he moved that the President "shall be chosen by Electors to be chosen by the People of the several States"
Mr. CARROL 2ded. him & on the question it passed in the negative.
N. H. no. Mas. no. Ct. ay. N. J. ay. Pa. ay. Del. ay. Md. no. Va. ay. N. C. no. S. C. no. Geo. no.
Mr. DAYTON moved to postpone the consideration of the two last clauses of Sect. 1. art. X. which was disagreed to without a count of the States.
Mr. BROOME moved to refer the two clauses to a Committee of a member from each State, & on the question, it failed the States being equally divided
N. H. no. Mas. no. Ct. divd. N. J. ay. Pa. ay. Del. ay. Md. ay. Va. ay. N. C. no. S. C. no. Geo. no.
On the question taken on the first part of Mr. Govr. Morris's Motion towit "shall be chosen by electors" as an abstract question, it failed the States being equally divided.
N. H. no. Mas. abst. Ct. divd. N. Jersey ay. Pa. ay. Del. ay. Md. divd. Va. ay. N. C. no. S. C. no. Geo. no.
The consideration of the remaining clauses of Sect 1. art X. was then postponed till tomorrow at the instance of the Deputies of New Jersey.
Sect. 2. Art: X being taken up, the word information was transposed & inserted after "Legislature"
On motion of Mr. Govr. MORRIS, "he may" was struck out, & "and" inserted before "recommend" in clause 2d. sect 2d. art: X. in order to make it the duty of the President to recommend, & thence prevent umbrage or cavil at his doing it.
Mr. SHERMAN objected to the sentence "and shall appoint officers in all cases not otherwise provided for by this Constitution." He admitted it to be proper that many officers in the Executive Department should be so appointed- but contended that many ought not, as general officers in the army in time of peace &c. Herein lay the corruption in G. Britain. If the Executive can model the army, he may set up an absolute Government; taking advantage of the close of a war and an army commanded by his creatures. James 2d. was not obeyed by his officers because they had been appointed by his predecessors not by himself. He moved to insert "or by law" after the word "Constitution."
On Motion of Mr. MADISON "officers" was truck out and "to offices" inserted, in order to obviate doubts that he might appoint officers without a previous creation of the offices by the Legislature.
On the question for inserting "or by law as moved by Mr. Sherman
N. H. no. Mas. no. Ct. ay. N. J. no. Pena. no. Del. no. Md. no. Va. no. N. C. absent. S. C. no. Geo. no.
Mr. DICKINSON moved to strike out the words "and shall appoint to offices in all cases not otherwise provided for by this Constitution" and insert-"and shall appoint to all offices established by this Constitution, except in cases herein otherwise provided for, and to all offices which may hereafter be created by law."
Mr. RANDOLPH observed that the power of appointments was a formidable one both in the Executive & Legislative hands-and suggested whether the Legislature should not be left at liberty to refer appointments in some cases, to some State authority.
Mr. DICKENSON'S motion, it passed in the affirmative N. H. no. Mas. no. Ct. ay. N. J. ay. Pa. ay. Del. no. Md. ay. Va. ay. N. C. abst. S. C. no. Geo. ay.
Mr. DICKINSON then moved to annex to his last amendment "except where by law the appointment shall be vested in the Legislatures or Executives of the several States." Mr. RANDOLPH 2ded. the motion
Mr. WILSON- If this be agreed to it will soon be a standing instruction from the State Legislatures to pass no law creating offices, unless the appts. be referred to them.
Mr. SHERMAN objected to "Legislatures" in the motion, which was struck out by consent of the movers.
Mr. Govr. MORRIS. This would be putting it in the power of the States to say, "You shall be viceroys but we will be viceroys over you"-
The Motion was negatived without a Count of the States-
Ordered unanimously that the order respecting the adjournment at 4 OClock be repealed, & that in future the House assemble at 10 OC. & adjourn at 3 OC.
The Report of the Committee of Eleven made Aug: 21. being taken up, and the following clause being under consideration to wit "To make laws for organizing, arming & disciplining the Militia, and for governing such part of them as may be employed in the service of the U. S. reserving to the States respectively, the appointment of the officers, and authority of training the militia according to the discipline prescribed-"
Mr. SHERMAN moved to strike out the last member- "and authority of training &c. He thought it unnecessary. The States will have this authority of course if not given up.
Mr. ELSWORTH doubted the propriety of striking out the sentence. The reason assigned applies as well to the other reservation of the appointment to offices. He remarked at the same time that the term discipline was of vast extent and might be so expounded as to include all power on the subject.
Mr. KING, by way of explanation, said that by organizing, the Committee meant, proportioning the officers & men-by arming, specifying the kind size & caliber of arms-& by disciplining prescribing the manual exercise evolutions &c.
Mr. SHERMAN withdrew his motion
Mr. GERRY. This power in the U. S. as explained is making the States drill- sergeants. He had as lief let the Citizens of Massachussets be disarmed, as to take the command from the States, and subject them to the Genl. Legislature. It would be regarded as a system of Despotism.
Mr. MADISON observed that "arming" as explained did not did not extend to furnishing arms; nor the term "disciplining" to penalties & Courts Martial for enforcing them.
Mr. KING added, to his former explanation that arming meant not only to provide for uniformity of arms, but included authority to regulate the modes of furnishing, either by the Militia themselves, the State Governments, or the National Treasury: that laws for disciplining, must involve penalties and every thing necessary for enforcing penalties.
Mr. DAYTON moved to postpone the paragraph, in order to take up the following proposition
"To establish an uniform & general system of discipline for the Militia of these States, and to make laws for organizing, arming, disciplining & governing such part of them as may be employed in the service of the U. S., reserving to the States respectively the appointment of the officers, and all authority over the Militia not herein given to the General Government"
On the question to postpone in favor of this proposition: it passed in the Negative
N. H. no. Mas no. Ct. no. N. J. ay. P. no. Del. no. Maryd. ay. Va. no. N. C. no. S. C. no. Geo. ay.
Mr. ELSWORTH & Mr. SHERMAN moved to postpone the 2d. clause in favor of the following "To establish an uniformity of arms, exercise & organization for the Militia, and to provide for the Government of them when called into the service of the U. States" The object of this proposition was to refer the plan for the Militia to the General Govt. but leave the execution of it to the State Govts.
Mr. LANGDON said He could not understand the jealousy expressed by some Gentleman. The General & State Govts. were not enemies to each other, but different institutions for the good of the people of America. As one of the people he could say, the National Govt. is mine, the State Govt. is mine. In transferring power from one to the other, I only take out of my left hand what it can not so well use, and put it into my right hand where it can be better used.
Mr. GERRY thought it was rather taking out of the right hand & putting it into the left. Will any man say that liberty will be as safe in the hands of eighty or a hundred men taken from the whole continent, as in the hands of two or three hundred taken from a single State.
Mr. DAYTON was against so absolute a uniformity. In some States there ought to be a greater proportion of cavalry than in others. In some places rifles would be most proper, in others muskets &c.
Genl. PINKNEY preferred the clause reported by the Committee, extending the meaning of it to the case of fines &c.
Mr. MADISON. The primary object is to secure an effectual discipline of the Militia. This will no more be done if left to the States separately than the requisitions have been hitherto paid by them. The States neglect their Militia now, and the more they are consolidated into one nation, the less each will rely on its own interior provisions for its safety & the less prepare its Militia for that purpose; in like manner as the militia of a State would have been still more neglected than it has been if each County had been independently charged with the care of its Militia. The Discipline of the Militia is evidently a National concern, and ought to be provided for in the National Constitution.
Mr. L. MARTIN was confident that the States would never give up the power over the Militia; and that, if they were to do so the militia would be less attended to by the Genl. than by the State Governments.
Mr. RANDOLPH asked what danger there could be that the Militia could be brought into the field and made to commit suicide on themselves. This is a power that can not from its nature be abused, unless indeed the whole mass should be corrupted. He was for trammelling the Genl. Govt. wherever there was danger, but here there could be none. He urged this as an essential point; observing that the Militia were every where neglected by the State Legislatures, the members of which courted popularity too much to enforce a proper discipline. Leaving the appointment of officers to the States protects the people agst. every apprehension that could produce murmur.
On Question on Mr. Elsworth's Motion
N. H. no. Mas. no. Ct. ay. N. J. no. Pa. no. Del. no. Md. no. Va. no. N. C. no. S. C. no. Geo. no.
A motion was then made to recommit the 2d. clause which was negatived.
On the question to agree to the 1st. part of the clause, namely
"To make laws for organizing arming & disciplining the Militia, and for governing such part of them as may be employed in the service of the U. S."
N. H ay. Mas. ay. Ct. no. N. J. ay. Pa. ay. Del. ay. Md. no. Va. ay. N. C. ay. S. C. ay. Geo. ay.
Mr. MADISON moved to amend the next part of the clause so as to read "reserving to the States respectively, the appointment of the officers, under the rank of General officers"
Mr. SHERMAN considered this as absolutely inadmissible. He said that if the people should be so far asleep as to allow the most influential officers of the militia to be appointed by the Genl. Government, every man of discernment would rouse them by sounding the alarm to them.
Mr. GERRY. Let us at once destroy the State Govts. have an Executive for life or hereditary, and a proper Senate, and then there would be some consistency in giving full powers to the Genl. Govt. but as the States are not to be abolished, he wondered at the attempts that were made to give powers inconsistent with their existence. He warned the Convention agst. pushing the experiment too far. Some people will support a plan of vigorous Government at every risk. Others of a more democratic cast will oppose it with equal determination, and a Civil war may be produced by the conflict.
Mr. MADISON. As the greatest danger is that of disunion of the States, it is necessary to guard agat. it by sufficient powers to the Common Govt. and as the greatest danger to liberty is from large standing armies, it is best to prevent them, by an effectual provision for a good Militia.
On the Question to agree to Mr. Madison's motion
N. H. ay. Mas. no. Ct. no. N. J. no. Pa. no. Del. no. Md. no. Va. no. N. C. no. S. C. ay. Geo. ay.
On the question to agree to the "reserving to the States the appointment of the officers." It was agreed to nem: contrad: On the question on the clause "and the authority of training the Militia according to the discipline prescribed by the U. S.-"
N. H. ay. Mas. ay. Ct. ay. N. J. ay. Pa. ay. Del. no. Md. ay. Va. no. N. C. ay. S. C. no. Geo. no.
On the question to agree to Art. VII. Sect. 7. as reported It passed nem. contrad:
Mr. PINKNEY urged the necessity of preserving foreign Ministers & other officers of the U. S. independent of external influence and moved to insert, after Art VII Sect 7. the clause following- "No person holding any office of profit or trust under the U. S. shall without the consent of the Legislature, accept of any present, emolument, office or title of any kind whatever, from any King, Prince or foreign State which passed nem: contrad.
Mr. RUTLIDGE moved to amend Art: VIII to read as follows,
"This Constitution & the laws of the U. S. made in pursuance thereof, and all Treaties made under the authority of the U. S. shall be the supreme law of the several States and of their citizens and inhabitants; and the Judges in the several States shall be bound thereby in their decisions, any thing in the Constitutions or laws of the several States, to the contrary notwithstanding."
which was agreed to nem: contrad:
Art: IX being next for consideration,
Mr. Govr. MORRIS argued agst. the appointment of officers by the Senate. He considered the body as too numerous for the purpose; as subject to cabal; and as devoid of responsibility. If Judges were to be tried by the Senate according to a late report of a Committee it was particularly wrong to let the Senate have the filling of vacancies which its own decrees were to create.
Mr. WILSON was of the same opinion & for like reasons.
The art IX being waived and art VII. sect 1. resumed,
Mr. Govr. MORRIS moved to strike the following words out of the 18 clause "enforce treaties" as being superfluous, since treaties were to be "laws"-which was agreed to nem: contrad:
Mr. Govr. MORRIS moved to alter 1st. part. of 18. clause sect. 1. to execute the laws of the Union, suppress insurrections and repel invasions."
art. VII so as to read "to provide for calling forth the Militia
which was agreed to nem: contrad
On the question then to agree to the 18 clause of Sect. 1. art: 7. as amended it passed in the affirmative nem: contradicente.
Mr. C- PINKNEY moved to add as an additional power to be vested in the Legislature of the U. S. "To negative all laws passed by the several States interfering in the opinion of the Legislature with the general interests and harmony of the Union; provided that two thirds of the members of each House assent to the same"
This principle he observed had formerly been agreed to. He considered the precaution as essentially necessary: The objection drawn from the predominance of the large States had been removed by the equality established in the Senate.
Mr. BROOME 2ded. the proposition.
Mr. SHERMAN thought it unnecessary; the laws of the General Government being Supreme & paramount to the State laws according to the plan, as it now stands.
Mr. MADISON proposed that it should be committed. He had been from the beginning a friend to the principle; but thought the modification might be made better.
Mr. MASON wished to know how the power was to be exercised. Are all laws whatever to be brought up? Is no road nor bridge to be established without the Sanction of the General Legislature? Is this to sit constantly in order to receive & revise the State Laws? He did not mean by these remarks to condemn the expedient, but he was apprehensive that great objections would lie agst. it.
Mr. WILLIAMSON thought it unnecessary, & having been already decided, a revival of the question was a waste of time.
Mr. WILSON considered this as the key-stone wanted to compleat the wide arch of Government, we are raising. The power of selfdefence had been urged as necessary for the State Governments. It was equally necessary for the General Government. The firmness of Judges is not of itself sufficient. Something further is requisite. It will be better to prevent the passage of an improper law, than to declare it void when passed.
Mr. RUTLIDGE. If nothing else, this alone would damn and ought to damn the Constitution. Will any State ever agree to be bound hand & foot in this manner. It is worse than making mere corporations of them whose bye laws would not be subject to this shackle.
Mr. ELSEWORTH observed that the power contended for wd. require either that all laws of the State Legislatures should previously to their taking effect be transmitted to the Genl. Legislature, or be repealable by the Latter; or that the State Executives should be appointed by the Genl. Government, and have a controul over the State laws. If the last was medit. ated let it be declared.
Mr. PINKNEY declared that he thought the State Executives ought to be so appointed with such a controul, & that it would be so provided if another Convention should take place.
Mr. GOVERNR. MORRIS did not see the utility or practicability of the proposition of Mr. Pinkney, but wished it to be referred to the consideration of a Committee.
Mr. LANGDON was in favor of the proposition. He considered it as resolvable into the question whether the extent of the National Constitution was to be judged of by the Genl. or the State Governments.
On the question for commitment, it passed in the negative.
N. H. ay. Masts. no. Cont. no. N. J. no. Pa. ay. Del: ay. Md. ay. Va. ay. N. C. no. S. C. no. Geo. no.
Mr. PINKNEY then withdrew his proposition.
The 1st. sect. of art: VII being so amended as to read "The Legislature shall fulfil the engagements and discharge the debts of the U. S. & shall have the power to lay & collect taxes duties imposts & excises," was agreed to.
Mr. BUTLER expressed his dissatisfaction lest it should compel payment as well to the Blood-suckers who had speculated on the distresses of others, as to those who had fought & bled for their country. He would be ready he said tomorrow to vote for a discrimination between those classes of people, and gave notice that he should move for a reconsideration.
Art IX. sect. 1. being resumed, to wit "The Senate of the U. S. shall have power to make treaties, and to appoint Ambassadors, and Judges of the Supreme Court."
Mr. MADISON observed that the Senate represented the States alone, and that for this as well as other obvious reasons it was proper that the President should be an agent in Treaties.
Mr. Govr. MORRIS did not know that he should agree to refer the making of Treaties to the Senate at all, but for the present wd. move to add, as an amendment to the section after "Treaties"- "but no Treaty shall be binding on the U. S. which is not ratified by a law."
Mr. MADISON suggested the inconvenience of requiring a legal ratification of treaties of alliance for the purposes of war &c &c
Mr. GHORUM. Many other disadvantages must be experienced if treaties of peace & all negociations are to be previously ratified- and if not previously, the Ministers would be at a loss how to proceed. What would be the case in G. Britain if the King were to proceed in this manner. American Ministers must go abroad not instructed by the same Authority (as will be the case with other Ministers) which is to ratify their proceedings.
Mr. Govr. MORRIS. As to treaties of alliance, they will oblige foreign powers to send their Ministers here, the very thing we should wish for. Such treaties could not be otherwise made, if his amendment shd. succeed. In general he was not solicitous to multiply & facilitate Treaties. He wished none to be made with G. Britain, till she should be at war. Then a good bargain might be made with her. So with other foreign powers. The more difficulty in making treaties, the more value will be set on them.
Mr. WILSON. In the most important Treaties, the King of G.
Britain being obliged to resort to Parliament for the execution of them, is under the same fetters as the amendment of Mr. Morris will impose on the Senate. It was refused yesterday to permit even the Legislature to lay duties on exports. Under the clause, without the amendment, the Senate alone can make a Treaty, requiring all the Rice of S. Carolina to be sent to some one particular port.
Mr. DICKINSON concurred in the amendment, as most safe and proper, tho' he was sensible it was unfavorable to the little States; wch. would otherwise have an equal share in making Treaties.
Docr. JOHNSON thought there was something of solecism in saying that the acts of a Minister with plenipotentiary powers from one Body, should depend for ratification on another Body. The Example of the King of G. B. was not parallel. Full & compleat power was vested in him. If the Parliament should fail to provide the necessary means of execution, the Treaty would be violated.
Mr. GHORUM in answer to Mr. Govr. MORRIS, said that negociations on the spot were not to be desired by us, especially if the whole Legislature is to have any thing to do with Treaties. It will be generally influenced by two or three men, who will be corrupted by the Ambassadors here. In such a Government as ours, it is necessary to guard against the Government itself being seduced.
Mr. RANDOLPH observing that almost every Speaker had made objections to the clause as it stood, moved in order to a further consideration of the subject, that the Motion of Mr. Govr. Morris should be postponed, and on this question It was lost the States being equally divided.
Massts. no. Cont. no. N. J. ay. Pena. ay. Del. ay. Md. ay. Va. ay. N. C. no. S. C. no. Geo. no.
On Mr. Govr. Morris Motion
Masts. no. Cont. no. N. J. no. Pa. ay. Del. no. Md. no. Va. no. N. C. divd. S. C. no. Geo. no.
The several clauses of Sect: 1. Art IX, were then separately postponed after inserting "and other public Ministers" next after "Ambassadors."
Mr. MADISON hinted for consideration, whether a distinction might not be made between different sorts of Treaties-Allowing the President & Senate to make Treaties eventual and of Alliance for limited terms-and requiring the concurrence of the whole Legislature in other Treaties.
The 1st. Sect art IX. was finally referred nem: con: to the committee of Five, and the House then
Art VII sect 4., resumed. Mr. SHERMAN was for leaving the clause as it stands. He disapproved of the slave trade; yet as the States were now possessed of the right to import slaves, as the public good did not require it to be taken from them, & as it was expedient to have as few objections as possible to the proposed scheme of Government, he thought it best to leave the matter as we find it. He observed that the abolition of Slavery seemed to be going on in the U. S. & that the good sense of the several States would probably by degrees compleat it. He urged on the Convention the necessity of despatching its business.
Col. MASON. This infernal trafic originated in the avarice of British Merchants. The British Govt. constantly checked the attempts of Virginia to put a stop to it. The present question concerns not the importing States alone but the whole Union. The evil of having slaves was experienced during the late war. Had slaves been treated as they might have been by the Enemy, they would have proved dangerous instruments in their hands. But their folly dealt by the slaves, as it did by the Tories. He mentioned the dangerous insurrections of the slaves in Greece and Sicily; and the instructions given by Cromwell to the Commissioners sent to Virginia, to arm the servants & slaves, in case other means of obtaining its submission should fail. Maryland & Virginia he said had already prohibited the importation of slaves expressly. N. Carolina had done the same in substance. All this would be in vain if S. Carolina & Georgia be at liberty to import. The Western people are already calling out for slaves for their new lands, and will fill that Country with slaves if they can be got thro' S. Carolina & Georgia. Slavery discourages arts & manufactures. The poor despise labor when performed by slaves. They prevent the immigration of Whites, who really enrich & strengthen a Country. They produce the most pernicious effect on manners. Every master of slaves is born a petty tyrant. They bring the judgment of heaven on a Country. As nations can not be rewarded or punished in the next world they must be in this. By an inevitable chain of causes & effects providence punishes national sins, by national calamities. He lamented that some of our Eastern brethren had from a lust of gain embarked in this nefarious traffic. As to the States being in possession of the Right to import, this was the case with many other rights, now to be properly given up. He held it essential in every point of view that the Genl. Govt. should have power to prevent the increase of slavery.
Mr. ELSWORTH. As he had never owned a slave could not judge of the effects of slavery on character: He said however that if it was to be considered in a moral light we ought to go farther and free those already in the Country. -As slaves also multiply so fast in Virginia & & Maryland that it is cheaper to raise than import them, whilst in the sickly rice swamps foreign supplies are necessary, if we go no farther than is urged, we shall be unjust towards S. Carolina & Georgia. Let us not intermeddle. As population increases poor laborers will be so plenty as to render slaves useless. Slavery in time will not be a speck in our Country. Provision is already made in Connecticut for abolishing it. And the abolition has already taken place in Massachusetts. As to the danger of insurrections from foreign influence, that will become a motive to kind treatment of the slaves.
Mr. PINKNEY. If slavery be wrong, it is justified by the example of all the world. He cited the case of Greece Rome & other antient States; the sanction given by France England, Holland & other modern States. In all ages one half of mankind have been slaves. If the S. States were let alone they will probably of themselves stop importations. He wd. himself as a Citizen of S. Carolina vote for it. An attempt to take away the right as proposed will produce serious objections to the Constitution which he wished to see adopted.
General PINKNEY declared it to be his firm opinion that if himself & all his colleagues were to sign the Constitution & use their personal influence, it would be of no avail towards obtaining the assent of their Constituents. S. Carolina & Georgia cannot do without slaves. As to Virginia she will gain by stopping the importations. Her slaves will rise in value, & she has more than she wants. It would be unequal to require S. C. & Georgia to confederate on such unequal terms. He said the Royal assent before the Revolution had never been refused to S. Carolina as to Virginia. He contended that the importation of slaves would be for the interest of the whole Union. The more slaves, the more produce to employ the carrying trade; The more consumption also, and the more of this, the more of revenue for the common treasury. He admitted it to be reasonable that slaves should be dutied like other imports, but should consider a rejection of the clause as an exclusion of S. Carola. from the Union.
Mr. BALDWIN had conceived national objects alone to be before the Convention, not such as like the present were of a local nature. Georgia was decided on this point. That State has always hitherto supposed a Genl. Governmt. to be the pursuit of the central States who wished to have a vortex for every thing- that her distance would preclude her from equal advantage-& that she could not prudently purchase it by yielding national powers. From this it might be understood in what light she would view an attempt to abridge one of her favorite prerogatives. If left to herself, she may probably put a stop to the evil. As one ground for this conjecture, he took notice of the sect of -------- which he said was a respectable class of people, who carried their ethics beyond the mere equality of men, extending their humanity to the claims of the whole animal creation.
Mr. WILSON observed that if S. C. & Georgia were themselves disposed to get rid of the importation of slaves in a short time as had been suggested, they would never refuse to Unite because the importation might be prohibited. As the Section now stands all articles imported are to be taxed. Slaves alone are exempt. This is in fact a bounty on that article.
Mr. GERRY thought we had nothing to do with the conduct of the States as to Slaves, but ought to be careful not to give any sanction to it.
Mr. DICKENSON considered it as inadmissible on every principle of honor & safety that the importation of slaves should be authorised to the States by the Constitution. The true question was whether the national happiness would be promoted or impeded by the importation, and this question ought to be left to the National Govt. not to the States particularly interested. If Engd. & France permit slavery, slaves are at the same time excluded from both those Kingdoms. Greece and Rome were made unhappy by their slaves. He could not believe that the Southn. States would refuse to confederate on the account apprehended; especially as the power was not likely to be immediately exercised by the Genl. Government.
Mr. WILLIAMSON stated the law of N. Carolina on the subject, to wit that it did not directly prohibit the importation of slaves. It imposed a duty of 5. on each slave imported from Africa. 10 on each from elsewhere, & 50 on each from a State licensing manumission. He thought the S. States could not be members of the Union if the clause shd. be rejected, and that it was wrong to force any thing down, not absolutely necessary, and which any State must disagree to.
Mr. KING thought the subject should be considered in a political light only. If two States will not agree to the Constitution as stated on one side, he could affirm with equal belief on the other, that great & equal opposition would be experienced from the other States. He remarked on the exemption of slaves from duty whilst every other import was subjected to it, as an inequality that could not fail to strike the commercial sagacity of the Northn. & middle States.
Mr. LANGDON was strenuous for giving the power to the Genl. Govt. He cd. not with a good conscience leave it with the States who could then go on with the traffic, without being restrained by the opinions here given that they will themselves cease to import slaves.
Genl. PINKNEY thought himself bound to declare candidly that he did not think S. Carolina would stop her importations of slaves in any short time, but only stop them occasionally as she now does. He moved to commit the clause that slaves might be made liable to an equal tax with other imports which he he thought right & wch. wd. remove one difficulty that had been started.
Mr. RUTLIDGE. If the Convention thinks that N. C. S. C. & Georgia will ever agree to the plan, unless their right to import slaves be untouched, the expectation is vain. The people of those States will never be such fools as to give up so important an interest. He was strenuous agst. striking out the Section, and seconded the motion of Genl. Pinkney for a commitment.
Mr. Govr. MORRIS wished the whole subject to be committed including the clauses relating to taxes on exports & to a navigation act. These things may form a bargain among the Northern & Southern States.
Mr. BUTLER declared that he never would agree to the power of taxing exports.
Mr. SHERMAN said it was better to let the S. States import slaves than to part with them, if they made that a sine qua non. He was opposed to a tax on slaves imported as making the matter worse, because it implied they were property. He acknowledged that if the power of prohibiting the importation should be given to the Genl. Government that it would be exercised. He thought it would be its duty to exercise the power.
Mr. READ was for the commitment provided the clause concerning taxes on exports should also be committed.
Mr. SHERMAN observed that that clause had been agreed to & therefore could not committed.
Mr. RANDOLPH was for committing in order that some middle ground might, if possible, be found. He could never agree to the clause as it stands. He wd. sooner risk the constitution. He dwelt on the dilemma to which the Convention was exposed. By agreeing to the clause, it would revolt the Quakers, the Methodists, and many others in the States having no slaves. On the other hand, two States might be lost to the Union. Let us then, he said, try the chance of a commitment.
On the question for committing the remaining part of Sect. 4 & 5. of art: 7. N. H. no. Mas. abst. Cont. ay N. J. ay Pa. no. Del. no Maryd. ay. Va. ay. N. C. ay S. C. ay. Geo. ay.
Mr. PINKNEY & Mr. LANGDON moved to commit Sect. 6. as to navigation act by two thirds of each House
Mr. GORHAM did not see the propriety of it. Is it meant to require a greater proportion of votes? He desired it to be remembered that the Eastern States had no motive to Union but a commercial one. They were able to protect themselves. They were not afraid of external danger, and did not need the aid of the Southn. States.
Mr. WILSON wished for a commitment in order to reduce the proportion of votes required.
Mr. ELSWORTH was for taking the plan as it is. This widening of opinions has a threatening aspect. If we do not agree on this middle & moderate ground he was afraid we should lose two States, with such others as may be disposed to stand aloof, should fly into a variety of shapes & directions, and most probably into several confederations and not without bloodshed.
On Question for committing 6 Sect. as to navigation act to a member from each State-N. H. ay. Mas. ay. Ct. no. N. J. no. Pa. ay. Del. ay. Md. ay. Va. ay. N. C. ay. S. C. ay. Geo. ay.
The Committee appointed were Mr. Langdon, King, Johnson, Livingston, Clymer, Dickenson, L. Martin, Madison, Williamson, C. C. Pinkney, & Baldwin.
To this committee were referred also the two clauses abovementioned, of the 4 & 5. Sect: of Art. 7.
Mr. RUTLIDGE, fron the Committee to whom were referred on the 18 & 20th. instant the propositions of Mr. Madison & Mr. Pinkney, made the Report following.-
[Here insert the Report from the Journal of the Convention of this date.]
["The committee report, that in their opinion the following additions should be made to the report now before the convention namely,
"At the end of the first clause of the first section of the seventh article add, 'for payment of the debts and necessary expenses of the United States; provided that no law for raising any branch of revenue, except what may be specially appropriated for the payment of interest on debts or loans, shall continue in force for more than -------- years.'
"At the end of the second clause, second section, seventh article, add, 'and with Indians, within the limits of any state, not subject to the laws thereof.'
"At the end of the sixteenth clause of the second section, seventh article, add, 'and to provide, as may become necessary, from time to time, for the well managing and securing the common property and general interests and welfare of the United States in such manner as shall not interfere with the governments of individual states, in matters which respect only their internal police, or for which their individual authorities may be competent.'
"At the end of the first section, tenth article, add, 'he shall be of the age of thirty five years, and a citizen of the United States, and shall have been an inhabitant thereof for twenty one years.'
"After the second section of the tenth article, insert the following as a third section:
'The President of the United States shall have a privy council, which shall consist of the president of the senate, the speaker of the house of representatives, the chief justice of the supreme court, and the principal officer in the respective departments of foreign affairs, domestic affairs, war, marine, and finance, as such departments of office shall from time to time be established, whose duty it shall be to advise him in matters respecting the execution of his office, which he shall think proper to lay before them: but their advice shall not conclude him, nor affect his responsibility for the measures which he shall adopt.'
"At the end of the second section of the eleventh article, add, 'the judges of the supreme court shall be triable by the senate, on impeachment by the house of representatives.'
"Between the fourth and fifth lines of the third section of the eleventh article, after the word 'controversies,' insert 'between the United States and an individual state, or the United States and an individual person."']
A motion to rescind the order of the House respecting the hours of meeting & adjourning, was negatived:
Mass: Pa. Del. Mard. ................
N. H. Con: N. J. Va. N. C. S. C. Geo. no
Mr. GERRY & Mr. Mc.HENRY moved to insert after the 2d. sect. Art: 7, the Clause following, to wit, "The Legislature shall pass no bill of attainder nor any ex post facto law."
Mr. GERRY urged the necessity of this prohibition, which he said was greater in the National than the State Legislature, because the number of members in the former being fewer were on that account the more to be feared.
Mr. Govr. MORRIS thought the precaution as to ex post facto laws unnecessary; but essential as to bills of attainder
Mr. ELSEWORTH contended that there was no lawyer, no civilian who would not say that ex post facto laws were void of themselves. It can not then be necessary to prohibit them.
Mr. WILSON was against inserting any thing in the Constitution as to ex post facto laws. It will bring reflexions on theConstitution-and proclaim that we are ignorant of the first principles of Legislation, or are constituting a Government which will be so.
The question being divided, The first part of the motion relating to bills of attainder was agreed to nem. contradicente.
On the second part relating to ex post facto laws-
Mr. CARROL remarked that experience overruled all other calculations. It had proved that in whatever light they might be viewed by civilians or others, the State Legislatures had passed them, and they had taken effect.
Mr. WILSON. If these prohibitions in the State Constitutions have no effect, it will be useless to insert them in this Constitution. Besides, both sides will agree to the principle, & will differ as to its application.
Mr. WILLIAMSON. Such a prohibitory clause is in the Constitution of N. Carolina, and tho it has been violated, it has done good there & may do good here, because the Judges can take hold of it.
Docr. JOHNSON thought the clause unnecessary, and implying an improper suspicion of the National Legislature.
Mr. RUTLIDGE was in favor of the clause. On the question for inserting the prohibition of ex post facto laws.
N. H. ay. Mas. ay. Cont. no. N. J. no. Pa. no. Del. ay. Md. ay. Virga. ay N. C. divd. S. C. ay. Geo. ay.
The report of the committee of 5. made by Mr. Rutlidge, was taken up & then postponed that each member might furnish himself with a copy.
The Report of the Committee of Eleven delivered in & entered on the Journal of the 21st. inst. was then taken up. and the first clause containing the words "The Legislature of the U. S. shall have power to fulfil the engagements which have been entered into by Congress" being under consideration,
Mr. ELSWORTH argued that they were unnecessary. The U. S. heretofore entered into Engagements by Congs. who were their agents. They will hereafter be bound to fulfil them by their new agents.
Mr. RANDOLPH thought such a provision necessary: for though the U. States will be bound, the new Govt. will have no authority in the case unless it be given to them.
Mr. MADISON thought it necessary to give the authority in order to prevent misconstruction. He mentioned the attempts made by the Debtors to British subjects to shew that contracts under the old Government, were dissolved by the Revolution which destroyed the political identity of the Society.
Mr. GERRY thought it essential that some explicit provision should be made on this subject, so that no pretext might remain for getting rid of the public engagements.
Mr. Govr. MORRIS moved by way of amendment to substitute-"The Legislature shall discharge the debts & fulfil the engagements, of the U. States."
It was moved to vary the amendment by striking out "discharge the debts" & to insert "liquidate the claims," which being negatived,
The amendment moved by Mr. Govr. Morris was agreed to all the States being in the affirmative.
It was moved & 2ded. to strike the following words out of the 2d. clause of the report "and the authority of training the Militia according to the discipline prescribed by the U. S." Before a question was taken
The House adjourned