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

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

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

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

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

Gen^l Pinkney admitted that it was so.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

On the question

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

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

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

On the question

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

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

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

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

Adjourned.

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

Art X. Sect 2. being resumed,

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

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

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

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

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

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

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

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

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

The postponement was agreed to nem: con:

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

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

On the question

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

Art: XI. being taken up.

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

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

On the question

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

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

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

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

M^r Gerry 2^ded the motion.

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

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

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

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

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

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

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

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

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

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

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

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

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

On the question

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

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

On the question

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Adjourned.

Tuesday August 28 1787. In Convention

M^r Sherman from the Committee to whom were referred several propositions on the 25^th instant, made the following report:—

That there be inserted after the 4 clause of 7^th. section

"Nor shall any regulation of commerce or revenue give preference to the ports of one State over those of another, or oblige vessels bound to or from any State to enter clear or pay duties in another and all tonnage, duties, imposts & excises laid by the Legislature shall be uniform throughout the U. S."

Art XI Sect. 3, It was moved to strike out the words "it shall be appellate" to insert the words "the supreme Court shall have appellate jurisdiction,"–in order to prevent uncertainty whether "it" referred to the supreme Court, or to the Judicial power.

On the question

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

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

M^r Pinkney urged the propriety of securing the benefit of the Habeas corpus in the most ample manner, moved "that it should not be suspended but on the most urgent occasions, & then only for a limited time not exceeding twelve months."

M^r Rutlidge was for declaring the Habeas Corpus inviolable. He did not conceive that a suspension could ever be necessary at the same time through all the States.

M^r Gov^r 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."

M^r 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 M^r Gov^r Morris' motion, to the word "unless" was agreed to nem: con:–on the remaining part;

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

Sec. 5. of art: XI. was agreed to nem: con. [43]

Art: XII being taken up.

M^r Wilson & M^r Sherman moved to insert after the words "coin money" the words "nor emit bills of credit, nor make any thing but gold & silver coin a tender in payment of debts" making these prohibitions absolute, instead of making the measures allowable (as in the XIII art:) with the consent of the Legislature of the U. S.

M^r Ghorum thought the purpose would be as well secured by the provisions of art: XIII which makes the consent of the Gen^l Legislature necessary, and that in that mode no opposition would be excited; whereas an absolute prohibition of paper money would rouse the most desperate opposition from its partizans.

M^r 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 1^st part–"nor emit bills of credit" N. H. ay. Mas. ay. C^t ay. P^a ay. Del. ay. M^d div^d. V^a no. N. C. ay. S. C. ay. Geo. ay.

The remaining part of M^r Wilson's & Sherman's motion was agreed to nem: con:

M^r King moved to add, in the words used in the Ordinance of Cong^r establishing new States, a prohibition on the States to interfere in private contracts.

M^r Gov^r Morris. This would be going too far. There are a thousand laws, relating to bringing actions–limitations, of actions & which affect contracts. The Judicial power of the U. S. will be a protection in cases within their jurisdiction; and within the State itself a majority must rule, whatever may be the mischief done among themselves.

M^r Sherman. Why then prohibit bills of credit?

M^r Wilson was in favor of M^r King's motion.

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

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

M^r Wilson. The answer to these objections is that retrospective interferences only are to be prohibited.

M^r Madison. Is not that already done by the prohibition of ex post facto laws, which will oblige the Judges to declare such interferences null & void.

M^r Rutlidge moved instead of M^r King's Motion to insert–"nor pass bills of attainder nor retrospective [44] laws" on which motion

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

M^r Madison moved to insert after the word "reprisal" (art. XII) the words "nor lay embargoes." He urged that such acts by the States would be unnecessary–impolitic–and unjust.

M^r Sherman thought the States ought to retain this power in order to prevent suffering & injury to their poor.

Col: Mason thought the amendment would be not only improper but dangerous, as the Gen^l 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.

M^r Gov^r Morris considered the provision as unnecessary; the power of regulating trade between State & State already vested in the Gen^l Legislature, being sufficient.

On the question

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

M^r Madison moved that the words "nor lay imposts or duties on imports" be transferred from art: XIII where the consent of the Gen^l Legislature may license the act–into art: XII which will make the prohibition of the States absolute. He observed that as the States interested in this power by which they could tax the imports of their neighbors passing thro' their markets, were a majority, they could give the consent of the Legislature, to the injury of N. Jersey, N. Carolina &c.

M^r Williamson 2^ded the motion.

M^r Sherman thought the power might safely be left to the Legislature of the U. States.

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

M^r 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 Gen^l Government over commerce. [45]

On the question

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

Art: XII as amended agreed to nem: con:

Art: XIII being taken up. M^r King moved to insert after the word "imports" the words "or exports," so as to prohibit the States from taxing either, & on this question it passed in the affirmative.

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

M^r Sherman moved to add after the word "exports"–the words "nor with such consent but for the use of the U. S."–so as to carry the proceeds of all State duties on imports & exports, into the common Treasury.

M^r Madison liked the motion as preventing all State imposts–but lamented the complexity we were giving to the commercial system.

M^r Gov^r Morris thought the regulation necessary to prevent the Atlantic States from endeavoring to tax the Western States–& promote their interest by opposing the navigation of the Mississippi which would drive the Western people into the arms of G. Britain.

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

M^r King was afraid that the regulation moved by M^r 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 M^r Sherman's motion

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

Art XIII was then agreed to as amended.

Art. XIV was taken up.

Gen^l Pinkney was not satisfied with it. He seemed to wish some provision should be included in favor of property in slaves.

On the question on Art: XIV.

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

Art: XV. being taken up, the words "high misdemesnor," were struck out, and "other crime" inserted, in order to comprehend all proper cases; it being doubtful whether "high misdemeanor" had not a technical meaning too limited.

M^r Butler and M^r Pinkney moved "to require fugitive slaves and servants to be delivered up like criminals."

M^r Wilson. This would oblige the Executive of the State to do it at the public expence.

M^r Sherman saw no more propriety in the public seizing and surrendering a slave or servant, than a horse.

M^r Butler withdrew his proposition in order that some particular provision might be made apart from this article.

Art XV as amended was then agreed to nem: con:

Adjourned.

Wednesday August 29^th. 1787. In Convention

Art: XVI. taken up.

M^r 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.

M^r Wilson and Doc^r 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.

M^r 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."

M^r Ghorum was for agreeing to the article, and committing the proposition.

M^r 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.

M^r Randolph said there was no instance of one nation executing judgments of the Courts of another nation. He moved the following proposition:

Executive or Judiciary shall be attested & exemplified under the seal thereof, such attestation and exemplification, shall be deemed in other States as full proof of the existence of that act–and its operation shall be binding in every other State, in all cases to which it may relate, and which are within the cognizance and jurisdiction of the State, wherein the said act was done."

On the question for committing Art: XVI with M^r Pinkney's motion

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

The motion of M^r Randolph was also committed nem: con:

M^r Gov^r 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 M^r Rutlidge, M^r Randolph, M^r Gorham, M^r Wilson, & M^r Johnson.

M^r Dickenson mentioned to the House that on examining Blackstone's Commentaries, he found that the term "ex post facto" related to criminal cases only; that they would not consequently restrain the States from retrospective laws in civil cases, and that some further provision for this purpose would be requisite.

Art: VII Sect. 6 by y^e Com̃ittee of eleven reported to be struck out (see the 24 instant) being now taken up.

M^r Pinkney moved to postpone the Report in favor of the following proposition–"That no act of the Legislature for the purpose of regulating the commerce of the U. S. with foreign powers among the several States, shall be passed without the assent of two thirds of the members of each House." He remarked that there were five distinct commercial interests. 1. the fisheries & W. India trade, which belonged to the N. England States. 2. the interest of N. York lay in a free trade. 3. Wheat & flour the Staples of the two middle States (N. J. & Penn^a). 4. Tob^o the staple of Maryl^d & 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.

M^r Martin 2^ded the motion.

Gen^l Pinkney said it was the true interest of the S. States to have no regulation of commerce; but considering the loss brought on the commerce of the Eastern States by the revolution, their liberal conduct towards the views [46] of South Carolina, and the interest the weak Southⁿ States had in being united with the strong Eastern States, he thought it proper that no fetters should be imposed on the power of making commercial regulations, and that his constituents though prejudiced against the Eastern States, would be reconciled to this liberality. He had himself, he said, prejudices ag^st the Eastern States before he came here, but would acknowledge that he had found them as liberal and candid as any men whatever.

M^r 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.

M^r Sherman, alluding to M^r Pinkney's enumeration of particular interests, as requiring a security ag^st 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.

M^r Pinkney replied that his enumeration meant the five minute interests. It still left the two great divisions of Northern & Southern interests.

M^r Gov^r Morris, opposed the object of the motion as highly injurious. Preferences to american ships will multiply them, till they can carry the Southern produce cheaper than it is now carried.–A navy was essential to security, particularly of the S. States, and can only be had by a navigation act encouraging american bottoms & seamen. In those points of view then alone, it is the interest of the S. States that navigation acts should be facilitated. Shipping he said was the worst & most precarious kind of property, and stood in need of public patronage.

M^r Williamson was in favor of making two thirds instead of a majority requisite, as more satisfactory to the Southern people. No useful measure he believed had been lost in Congress for want of nine votes. As to the weakness of the Southern States, he was not alarmed on that account. The sickliness of their climate for invaders would prevent their being made an object. He acknowledged that he did not think the motion requiring 2/3 necessary in itself, because if a majority of the Northern States should push their regulations too far the S. States would build ships for themselves: but he knew the Southern people were apprehensive on this subject and would be pleased with the precaution.

M^r Spaight was against the motion. The Southern States could at any time save themselves from oppression, by building ships for their own use.

M^r Butler differed from those who considered the rejection of the motion as no concession on the part of the S. States. He considered the interest of these and of the Eastern States, to be as different as the interests of Russia and Turkey. Being notwithstanding desirous of conciliating the affections of the East: States, he should vote ag^st requiring 2/3 instead of a majority.

Col: Mason. If the Gov^t 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."

M^r 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.

M^r 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 sh^d be made competent than if 2/3 of each House sh^d 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 w^d 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 w^d contribute the more to the public wants, and be otherwise a national benefit.

M^r Rutlidge was ag^st 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.

M^r Randolph said that there were features so odious in the constitution as it now stands, that he doubted whether he should be able to agree to it. A rejection of the motion would compleat the deformity of the system. He took notice of the argument in favor of giving the power over trade to a majority, drawn from the opportunity foreign powers would have of obstructing retaliatory measures if two thirds were made requisite. He did not think there was weight in that consideration. The difference between a majority & two thirds did not afford room for such an opportunity. Foreign influence would also be more likely to be exerted on the President who could require three fourths by his negative. He did not mean however to enter into the merits. What he had in view was merely to pave the way for a declaration which he might be hereafter obliged to make if an accumulation of obnoxious ingredients should take place, that he could not give his assent to the plan.

M^r Gorham. If the Government is to be so fettered as to be unable to relieve the Eastern States what motive can they have to join in it, and thereby tie their own hands from measures which they could otherwise take for themselves. The Eastern States were not led to strengthen the Union by fear for their own safety. He deprecated the consequences of disunion, but if it should take place it was the Southern part of the Continent that had most reason to dread them. He urged the improbability of a combination against the interest of the Southern States, the different situations of the Northern & Middle States being a security against it. It was moreover certain that foreign ships would never be altogether excluded especially those of Nations in treaty with us.

On the question to postpone in order to take up M^r Pinkney's motion

N. H. no. Mass. no. C^t no. N. J. no. P^a no. Del. no. M^d ay. V^a 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:

M^r 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, M^r Gov^r 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.

M^r Madison opposed the motion, insisting that the Western States neither would nor ought to submit to a union which degraded them from an equal rank with the other States.

Col: Mason. If it were possible by just means to prevent emigrations to the Western Country, it might be good policy. But go the people will as they find it for their interest, and the best policy is to treat them with that equality which will make them friends not enemies.

M^r Gov^r 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.

M^r Sherman, was ag^st the motion & for fixing an equality of privileges by the Constitution.

M^r 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.

M^r 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 M^r Gov^r Morris's motion for striking out.

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

M^r L. Martin & M^r Gov^r 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,

M^r Gov^r 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 Gen^l Legislature."

The first part to Union inclusive was agreed to nem: con:

M^r L. Martin opposed the latter part. Nothing he said would so alarm the limited States as to make the consent of the large States claiming the Western lands, necessary to the establishment of new States within their limits. It is proposed to guarantee the States. Shall Vermont be reduced by force in favor of the States claiming it? Frankland & the Western county of Virginia were in a like situation.

On M^r Gov^r Morris's motion to substitute &c. it was agreed to.

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

Art: XVII–before the House, as amended.

M^r Sherman was against it. He thought it unnecessary. The Union cannot dismember a State without its consent.

M^r Langdon thought there was great weight in the argument of M^r Luther Martin, and that the proposition substituted by M^r Gov^r Morris would excite a dangerous opposition to the plan.

M^r Gov^r Morris thought on the contrary that the small States would be pleased with the regulation, as it holds up the idea of dismembering the large States.

M^r 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.

Doc^r Johnson agreed in general with the ideas of M^r 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.

M^r 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.

M^r 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.

M^r 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 Gen^l Government should abet the minority, & by that means divide a State against its own consent.

M^r Gov^r Morris. If the forced division of the States is the object of the new system, and is to be pointed ag^st one or two States, he expected the Gentlemen from these would pretty quickly leave us.

Adjourned.

Thursday August 30th 1787. In Convention

Art XVII resumed for a question on it as amended by M^r Gov^r Morris's substitutes.

M^r 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.

M^r L. Martin 2^ded the motion for a commitment.

M^r 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.

M^r 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.

M^r Wilson was against the commitment. 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 the new States as heretofore. He knew nothing that would give greater or juster alarm than the doctrine, that a political society is to be torn assunder without its own consent.

On M^r Carrol's motion for commitment

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

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

Doc^r 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 for her admission.) The motion was agreed to Del. & M^d only dissenting.

M^r Gov^r Morris moved to strike out the word "limits" in the substitute, and insert the word "jurisdiction". (This also was 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. C^t ay. N. J. no. P^a ay. Del. ay. M^d ay. V^a ay. N. C. no. S. C. no. Geo. no.

M^r 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 Gen^l Government ag^st domestic violence. He wished M^r 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 M^r Gov^r 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 M^r 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. & M^d only ay.

On the question to agree to M^r Gov^r 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. C^t ay. N. J. no. P^a ay. Del. no. M^d no. V^a ay. N. C. ay. S. C. ay. Geo. ay.

M^r 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 Legislature of such States, as well as of the Legislature of the U. States," which was agreed to without a count of the votes.

M^r 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.

M^r Wilson was ag^st 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.

M^r 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 should 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 further & declare that the claims of particular States also should not be affected.

M^r Sherman thought the proviso harmless, especially with the addition suggested by M^r Madison in favor of the claims of particular States.

M^r 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.

M^r Rutlidge thought it wrong to insert a proviso where there was nothing which it could restrain, or on which it could operate.

M^r 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."

M^r Gov^r Morris moved to postpone this in order to take up 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."

M^r L. Martin moved to amend the proposition of M^r Gov^r Morris by adding–"But all such claims may be examined into & decided upon by the supreme Court of the U. States."

M^r Gov^r Morris. this is unnecessary, as all suits to which the U. S. are parties, are already to be decided by the Supreme Court.

M^r L. Martin. it is proper in order to remove all doubts on this point.

Question on M^r L. Martin's amendatory motion

N. H. no. Mas. no. C^t no. N. J. ay. P^a no. Del. no. M^d ay. V^a no.–States not farther called the negatives being sufficient & the point given up.

The Motion of M^r Gov^r Morris was then agreed to, M^d alone dissenting.

Art: XVIII being taken up,–the word "foreign" was struck out nem: con: as superfluous, being implied in the term "invasion."

M^r 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.

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

On a question for striking out "domestic violence" and insert^g "insurrections–" It passed in the negative.

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