University of Virginia Library

Tuesday August 28 1787. in Convention

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

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

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

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

On the question

N. H ay. Mas. ay. Ct. ay. N. J. abst. Pa. ay.
Del. ay. Md. no. Va. ay. N C ay. S. C ay. Geo. ay.

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

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

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

Mr. Govr. Morris moved that "The privilege of the
writ of Habeas Corpus shall not be suspended; unless
where in cases of Rebellion or invasion the public
safety may require it."

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

The first part of Mr. Govr. Morris' motion, to the
word "unless" was agreed to nem: con:—on the remaining
part;

N. H. ay. Mas ay. Ct. ay. Pa. ay. Del. ay.
Md. ay. Va. ay. N. C. no. S. C. no. Geo. no.

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

Art: XII being taken up.

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

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

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

The question being divided; on the 1st. part—
"nor emit bills of credit" N. H. ay. Mas. ay. Ct.
ay. Pa. ay. Del. ay. Md. divd. Va. no. N. C. ay.
S. C. ay. Geo. ay.

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

Mr. King moved to add, in the words used in the
Ordinance of Congr. establishing new States, a prohibition
on the States to interfere in private contracts.

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

Mr. Sherman. Why then prohibit bills of credit?

Mr. Wilson was in favor of Mr. King's motion.

Mr. Madison admitted that inconveniences might

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

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

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

Mr. Madison. Is not that already done by the

prohibition of ex post facto laws, which will oblige
the Judges to declare such interferences null & void.

Mr. Rutlidge moved instead of Mr. King's Motion
to insert—" nor pass bills of attainder nor retrospective[44]
laws" on which motion N. H. ay. Ct. no. N.
J. ay. Pa. ay. Del. ay. Md. no. Virga. no. N. C.
ay. S. C. ay. Geo. ay.

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

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

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

Mr. Govr. Morris considered the provision as unnecessary;
the power of regulating trade between
State & State already vested in the Genl. Legislature,
being sufficient.

On the question

N. H. no. Mas. ay. Ct. no. N. J. no. Pa. no.
Del. ay. Md. no. Va. no. N. C. no. S. C. ay. Geo.
no.

Mr. Madison moved that the words "nor lay imposts

or duties on imports" be transferred from art:
XIII where the consent of the Genl. Legislature may
license the act—into art: XII which will make the
prohibition of the States absolute. He observed
that as the States interested in this power by which
they could tax the imports of their neighbors passing
thro' their markets, were a majority, they could give
the consent of the Legislature, to the injury of. N.
Jersey, N. Carolina &c.

Mr. Williamson 2ded. the motion.

Mr. Sherman thought the power might safely be
left to the Legislature of the U. States.

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

Mr. Madison. The encouragement of Manufactures
in that mode requires duties not only on imports
directly from foreign Countries, but from the
other States in the Union, which would revive all
the mischiefs experienced from the want of a Genl.
Government over commerce.[45]

On the question

N. H. ay. Mas. no. Ct. no. N. J. ay. Pa. no.
Dela. ay. Md. no. Va. no. N. C. ay. S. C. no. Geo.
no.

Art: XII as amended agreed to nem: con:

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

N. H. ay. Mas. ay. Ct. no. N. J. ay. P. ay,
Del. ay. Md. no. Va. no. N. C. ay. S. C. no. Geo.
no.

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

Mr. Madison liked the motion as preventing all
State imposts—but lamented the complexity we
were giving to the commercial system.

Mr. Govr. Morris thought the regulation necessary
to prevent the Atlantic States from endeavoring to
tax the Western States—& promote their interest
by opposing the navigation of the Mississippi which
would drive the Western people into the arms of G.
Britain.

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

Mr. King was afraid that the regulation moved by

Mr. Sherman would too much interfere with the
policy of States respecting their manufactures, which
may be necessary. Revenue he reminded the House
was the object of the general Legislature.

On Mr. Sherman's motion

N. H. ay. Mas. no. Ct. ay. N. J. ay. Pa. ay.
Del. ay. Md. no. Va. ay. N. C. ay. S. C. ay. Geo.
ay

Art XIII was then agreed to as amended.

Art. XIV was taken up.

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

On the question on Art: XIV.

N. H. ay. Mas. ay. Ct. ay. N. J. ay. Pa. ay.
Del. ay. Md. ay. Va. ay. N.C. ay. S. C. no. Geo.
divided.

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

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

Mr. Wilson. This would oblige the Executive of
the State to do it at the public expence.

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

Mr. Butler withdrew his proposition in order that

some particular provision might be made apart from
this article.

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

Adjourned.