Tuesday, August 28 | Debates in the Federal Convention of 1787

by James Madison

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This Day in the Four Act Drama

In Convention. — Mr. SHERMAN, from the Committee to whom were referred several propositions on the twenty-fifth instant, made the following report; which was ordered to lie on the table:

“That there be inserted, after the fourth clause of the 7th Section: ‘Nor shall any regulation of commerce or revenue give preference to the ports of one State over those of another, or oblige vessels bound to or from any State to enter, clear, or pay duties in another; and all tonnage, duties, imposts, and excises laid by the Legislature, shall be uniform throughout the United States.’”

Article 11, Section 3, being considered, — it was moved to strike out the words, “it shall be appellate,” and to insert the words, “the Supreme Court shall have appellate jurisdiction,” — in order to prevent uncertainty whether “it” referred to the Supreme Court or to the Judicial power.

On the question, — New Hampshire, Massachusetts, Connecticut, Pennsylvania, Delaware, Virginia, North Carolina, South Carolina, Georgia, aye, — 9; Maryland, no, — 1; New Jersey, absent.

Section 4 was so amended, nem. con., as to read: “The trial of all crimes (except in cases of impeachment) shall be by jury; and such trial shall be held in the State where the said crimes shall have been committed; but when not committed within any State, then the trial shall be at such place or places as the Legislature may direct.” The object of this amendment was, to provide for trial by jury of offences committed out of any State.

Mr. PINCKNEY, urging the propriety of securing the benefit of the Habeas Corpus in the most ample manner, moved, that it should not be suspended but on the most urgent occasions, and then only for a limited time not exceeding twelve months.

Mr. RUTLEDGE was for declaring the Habeas Corpus inviolate. He did not conceive that a suspension could ever be necessary, at the same time, through all the States.

Mr. GOUVERNEUR MORRIS moved, that, “The privilege of the writ of Habeas Corpus shall not be suspended, unless where, in cases of rebellion or invasion, the public safety may require it.”

Mr. WILSON doubted whether in any case a suspension could be necessary, as the discretion now exists with Judges, in most important cases, to keep in gaol or admit to bail.

The first part of Mr. GOUVERNEUR MORRIS’S motion, to the word “unless,” was agreed to, nem. con. On the remaining part, — New Hampshire, Massachusetts, Connecticut, Pennsylvania, Delaware, Maryland, Virginia, aye, — 7; North Carolina, South Carolina, Georgia, no, — 3.

The fifth Section of Article 11, was agreed to, nem. con.1

Article 12 being then taken up, —

Mr. WILSON and Mr. SHERMAN moved to insert after the words, “coin money,” the words, “nor emit bills of credit, nor make any thing but gold and silver coin a tender in payment of debts;” making these prohibitions absolute, instead of making the measures allowable, as in the thirteenth Article, with the consent of the Legislature of the United States.

Mr. GORHAM thought the purpose would be as well secured by the provision of Article 13, which makes the consent of the General Legislature necessary; and that in that mode no opposition would be excited; whereas an absolute prohibition of paper money would rouse the most desperate opposition from its partisans.

Mr. SHERMAN thought this a favorable crisis for crushing paper money. If the consent of the Legislature could authorize emissions of it, the friends of paper money would make every exertion to get into the Legislature in order to license it.

The question being divided, — on the first part: “nor emit bills of credit,” —

New Hampshire, Massachusetts, Connecticut, Pennsylvania, Delaware, North Carolina, South Carolina, Georgia, aye, — 8; Virginia, no, — 1; Maryland, divided.

The remaining part of Mr. WILSON’S and Mr. SHERMAN’S motion was agreed to, nem. con.

Mr. KING moved to add, in the words used in the ordinance of Congress establishing new States, a prohibition on the States to interfere in private contracts.

Mr. GOUVERNEUR MORRIS. This would be going too far. There are a thousand laws relating to bringing actions, limitations of actions, &c., which affect contracts. The judicial power of the United States will be a protection in cases within their jurisdiction; and within the State itself a majority must rule, whatever may be the mischief done among themselves.

Mr. SHERMAN. Why then prohibit bills of credit?

Mr. WILSON was in favor of Mr. KING’S motion.

Mr. MADISON admitted that inconveniences might arise from such a prohibition; but thought on the whole it would be overbalanced by the utility of it. He conceived, however, that a negative on the State laws could alone secure the effect. Evasions might and would be devised by the ingenuity of the Legislatures.

Colonel MASON. This is carrying the restraint too far. Cases will happen that cannot be foreseen, where some kind of interference will be proper and essential. He mentioned the case of limiting the period for bringing actions on open account, — that of bonds after a certain lapse of time, — asking whether it was proper to tie the hands of the States from making provision in such cases.

Mr. WILSON. The answer to these objections is, that retrospective interferences only are to be prohibited.

Mr. MADISON. Is not that already done by the prohibition of ex post facto laws, which will oblige the Judges to declare such interferences null and void.

Mr. RUTLEDGE moved, instead of Mr. KING’S motion, to insert, “nor pass bills of attainder, nor retrospective2 laws.”

On which motion, — New Hampshire, New Jersey, Pennsylvania, Delaware, North Carolina, South Carolina, Georgia, aye, — 7; Connecticut, Maryland, Virginia, no, — 3.

Mr. MADISON moved to insert, after the word “reprisal,” (Article 12,) the words, “nor lay embargoes.” He urged that such acts by the States would be unnecessary, impolitic, and unjust.

Mr. SHERMAN thought the States ought to retain this power, in order to prevent suffering and injury to their poor.

Colonel MASON thought the amendment would be not only improper but dangerous, as the General Legislature would not sit constantly, and therefore could not interpose at the necessary moments. He enforced his objection by appealing to the necessity of sudden embargoes, during the war, to prevent exports, particularly in the case of a blockade.

Mr. GOUVERNEUR MORRIS considered the provision as unnecessary; the power of regulating trade between State and State, already vested in the General Legislature, being sufficient.

On the question,—

Massachusetts, Delaware, South Carolina, aye, — 3; New Hampshire, Connecticut, New Jersey, Pennsylvania, Maryland, Virginia, North Carolina, Georgia, no, — 8.

Mr. MADISON moved, that the words, “nor lay imposts or duties on imports,” be transferred from Article 13, where the consent of the General Legislature may license the act, into Article 12, which will make the prohibition on the States absolute. He observed, that as the States interested in this power, by which they could tax the imports of their neighbours passing through their markets, were a majority, they could give the consent of the Legislature to the injury of New Jersey, North Carolina, &c.

Mr. WILLIAMSON seconded the motion.

Mr. SHERMAN thought the power might safely be left to the Legislature of the United States.

Colonel MASON observed, that particular States might wish to encourage, by impost duties, certain manufactures, for which they enjoyed natural advantages, as Virginia, the manufacture of hemp, &c.

Mr. MADISON. The encouragement of manufactures in that mode requires duties, not only on imports directly from foreign countries, but from the other States in the Union, which would revive all the mischiefs experienced from the want of a general Government over commerce.

On the question, —

New Hampshire, New Jersey, Delaware, North Carolina, aye, — 4; Massachusetts, Connecticut, Pennsylvania, Maryland, Virginia, South Carolina, Georgia, no, — 7.

Article 12, as amended, was then agreed to, nem. con.

Article 13, was then taken up.

Mr. KING moved to insert, after the word “imports,” the words, “or exports,” so as to prohibit the States from taxing either; and on this question, it passed in the affirmative, —

New Hampshire, Massachusetts, New Jersey, Pennsylvania, Delaware, North Carolina, aye, — 6; Connecticut, Maryland, Virginia, South Carolina, Georgia, no, — 5.

Mr. SHERMAN moved to add, after the word “exports,” the words, “nor with such consent, but for the use of the United States;” so as to carry the proceeds of all State duties on imports or exports into the common treasury.

Mr. MADISON liked the motion, as preventing all State imposts: but lamented the complexity we were giving to the commercial system.

Mr. GOUVERNEUR MORRIS thought the regulation necessary, to prevent the Atlantic States from endeavoring to tax the Western States, and promote their interest by opposing the navigation of the Mississippi, which would drive the Western people into the arms of Great Britain.

Mr. CLYMER thought the encouragement of the Western country was suicide on the part of the old States. If the States have such different interests that they cannot be left to regulate their own manufactures, without encountering the interests of other States, it is a proof that they are not fit to compose one nation.

Mr. KING was afraid that the regulation moved by Mr. SHERMAN would too much interfere with the policy of States respecting their manufactures, which may be necessary. Revenue, he reminded the House, was the object of the General Legislature.

On Mr. SHERMAN’S motion, —

New Hampshire, Connecticut, New Jersey, Pennsylvania, Delaware, Virginia, North Carolina, South Carolina, Georgia, aye, — 9; Massachusetts, Maryland, no, — 2.

Article 13, was then agreed to, as amended.

Article 14, was then taken up.

General PINCKNEY was not satisfied with it. He seemed to wish some provision should be included in favor of property in slaves.

On the question on Article 14, —

New Hampshire, Massachusetts, Connecticut, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, aye, — 9; South Carolina, no, — 1; Georgia, divided.

Article 15 being then taken up, the words, “high misdemeanor,” were struck out, and the words, “other crime,” inserted, in order to comprehend all proper cases; it being doubtful whether “high misdemeanor” had not a technical meaning too limited.

Mr. BUTLER and Mr. PINCKNEY moved to require “fugitive slaves and servants to be delivered up like criminals.”

Mr. WILSON. This would oblige the Executive of the State to do it at the public expense.

Mr. SHERMAN saw no more propriety in the public seizing and surrendering a slave or servant than a horse.

Mr. BUTLER withdrew his proposition, in order that some particular provision might be made, apart from this article.

Article 15, as amended, was then agreed to, nem. con.


1 The vote on this section, as stated in the printed Journal, is not unanimous: the statement here is probably the right one.

2 In the printed Journal, “ex post facto.

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