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Journal of the Federal Convention August 22nd 1787
Avalon Project ^ | James Madison

Posted on 08/22/2011 2:42:05 AM PDT by Jacquerie

Article VII Section 4. Slavery. Memorable Mason Speech. Navigation Acts. Second Grand Committee Report. Bills of Attainder. Ex Post Facto. Judicial Review. Old Engagements & Debt.

In Convention.

Art VII sect 4. [FN1], [FN2] 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 [FN3] 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. [FN4] 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. [FN5]

Mr. PINKNEY & Mr. LANGDON moved to commit Sect. 6. [FN4] as to [FN6] 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 [FN7] 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 [FN8] Question for committing 6 Sect. as to [FN6] 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. [FN9]

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, from 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.] [FN10]

["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 [FN11] 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."'] [FN12]

A motion to rescind the order of the House respecting the hours of meeting & adjourning, was negatived:

Mass: Pa. Del. Mard. ................ [FN13]

N. H. Con: N. J. Va. N. C. S. C. Geo. no [FN14]

Mr. GERRY & Mr. Mc.HENRY moved to insert after the 2d. sect. [FN15] Art: 7, the Clause following, to wit, "The Legislature shall pass no bill of attainder nor any ex post facto law." [FN16]

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 [FN17] 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 [FN18] 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, & [FN19] 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. [FN20]

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

FN1 See ante.

FN2 The word "was" is here inserted in the transcript.

FN3 The word "be" is here inserted in the transcript.

FN4 See ante.

FN5 In the transcript the vote reads: "Connecticut, New Jersey, Maryland, Virginia, North Carolina, South Carolina, Georgia, aye-7; New Hampshire, Pennyslvania, Delaware, no-3; Massachusetts, absent."

FN6 The word "a" is hereinserted in the transcript.

FN7 The word "had" is substituted in the transcript for "has."

FN8 The word "the" is here in serted in the transcript.

FN9 In the transcript the vote reads: "New Hampshire, Massachusetts, Pennsylvania, Delaware, Maryland, Virginia, North carolina, aye-9; Connecticut, New Jersey, no-2.'

FN10 Madison's direction is omitted in the transcript.

FN11 The transcript uses the word "authorities" in the singular.

FN12 Journal, Acts and Proceedings of the Convention . . . which for med the Constitution of the United States (1819), p. 277.

FN13 The figure "4" is here inserted in the transcript.

FN14 The figure "7" is here inserted in the transcript.

FN15 The word "of" is here inserted in the transcript.

FN16 The proceedings on this motion involving the two questions on "attainders & ex post facto laws," are not so fully stated in the Printed Journal.

FN17 The word "they" is here inserted in the transcript.

FN18 The word "that" is substituted in the transcript for "which."

FN19 The word "but" is substituted in the transcript for "&."

FN20 In the transcript the vote reads: "New Hampshire, Massachusetts, Delaware, Maryland, virginia South Carolina, Georiga, aye-7; uConnecticut, New Jersey, Pennsylvania, no-3; North Carolina, divided."

TOPICS: Government; Reference
KEYWORDS: constitution; convention; framers; freeperbookclub; madison
Article VII Section 4 resumed, “No tax or duty shall be laid by the Legislature on articles exported from any State; nor on the migration or importation of such persons as the several States shall think proper to admit; nor shall such migration or importation be prohibited.”

(The first clause passed yesterday.)

Roger Sherman (CN) struck a conciliatory tone; leave the clause as it was; the public good did not require slave trade elimination; the institution of slavery was diminishing on its own, and most important, it was not worth jeopardizing the Convention.

(The following notes by Mr. Madison on a speech by Mr. Mason is illustrative of the loss to history by the absence of a professional recorder. I suspect there was much more texture and content.)

George Mason (VA) (railed on the institution he profited mightily from and despised.) immediately nailed British merchants from long ago who brought it to our shores and for the Crown that rebuffed colonial VA prohibition attempts. (Thomas Jefferson’s draft of the Declaration of Independence also criticized the British Crown for defending a practice not permitted in the home isle.) The Brits missed an opportunity to turn slaves to their use in the late war. He referenced historic slave rebellions in Greece and Sicily and Cromwell’s interference in VA. MD, VA and NC in substance prohibited slave importation. All would be for naught if SC and GA were permitted unrestricted license to import, as the Western settlers clamored for more slaves.

Slavery discouraged manufactures and arts. (I leave it to Civil War Freepers to elaborate the condition of Southern industry, society some seventy years later.) Slavery discouraged freehold farming and turned every Master into a petty tyrant. It brings the judgment of heaven upon a country.

Providence punishes national sins, by national calamities.

States should give up the right to import slaves that Eastern State ship owners profit from. The National Government should have the power to prevent an increase of slavery.

(Mr. Mason did not frame his words to restrict importation, but rather to limit the spread of slavery.)

Judge Oliver Ellsworth (CN) (a ship owner) responded with a blast of his own, that if what was said was meant, all slaves should be freed. He was apparently familiar with the economics of slave agriculture as he pointed out that VA and MD slaves multiplied quickly enough to negate any need for importation, while the sickly SC and GA slaves working rice fields require foreign replacements. He did not wish to risk the Convention and Constitution over slavery. In perhaps a bit of wishful thinking he predicted a natural end as white population increases would supply enough poor as a source of labor. Slavery was abolished in MA, and was soon to be in CN. As for possible foreign instigation of slave rebellions, it was inducement to treat slaves well.

Charles Pinckney (SC) delivered contradictions. Slavery could be wrong, but it was justified by ancient history and modern sanctions by England, Holland and France. Half of mankind were slaves. Leave Southern States alone and they would stop importation and he would vote for it himself as a citizen of SC. Don’t drive Southern States away; leave slavery alone.

General Pinckney (SC) defended importation and the institution from a practical standpoint. If the last clauses of Article VII Section 4 were rejected, SC would not join the Union. VA could do well without importation since they had more than they needed. (I’m not sure what he meant by royal assent) Importation was good for the country at large.

He admitted imported slaves could be reasonably dutied.

Abraham Baldwin (GA) considered the issue to be of local and not national concern. He accused the Central States of desiring a General Government; “who wished to have a vortex for everything.” Distance put GA in an unequal position that she could not purchase through giving up powers. Viewed from this standpoint, imagine how she would view abridgement of one of her prerogatives. If left alone, she may end the evil. (Mr. Baldwin then referred to a sect whose name eluded Mr. Madison.)

James Wilson (PA) did not buy their humble desires to be rid of slave importation. If this was so, why such opposition to a duty or ban on importation? Slaves would be the only items exempted from possible imposts. Mr. Wilson considered this a bounty on slaves.

Elbridge Gerry (MA) thought the National Government should be neutral, neither interfere with the institution, nor condone it.

John Dickinson (DE) stood opposed to protecting slave importation. It violated “every principle of honor & safety.” The National Government should decide whether importation enhances or impedes the national happiness. Slave nations were always unhappy nations. He was willing to call the Southern State’s bluff; they would join the Union if slave importation was banned.

Hugh Williamson (NC) explained the pertinent law of his State. Import duties were five on blacks from Africa, ten on those from elsewhere and fifty for free blacks. (IIRC plenty of other states by the Civil War era basically banned free black inhabitants) Southern States would not join if the clause was rejected.

Rufus King (MA) wished to consider the issue only in a political light. He thought equal opposition existed in the Northern States to what the Southern States demanded. (It was as if he wrote off at least two States no matter how the issue was decided) Commercial States would not look kindly at all on slaves’ duty exemption.

John Langdon (NH) could not leave it entirely to the States. Importation would go on notwithstanding predictions by some Southern State delegates.

General Pinckney (SC) motioned to commit that slaves be subject to an impost, the lack of which was troublesome.

John Rutlidge (SC) seconded General Pinckney (SC) and repeated the warning that GA, SC, NC would not join the union without the right to import slaves intact.

Governeur Morris (PA) wished to add the clauses on export taxation and navigation acts to the commitment.

Pierce Butler (SC) would never agree to export taxes.

Roger Sherman (CN) opposed a slave import ban if that was necessary to keep the Southern States on board. An importation tax on slave implied they were property, which he disagreed with. He believed the National Government would exercise, if given the chance, the power to ban slave imports.

Judge George Read (DE) supported the commitment as long as the previously agreed to clause on export taxes was included.

Roger Sherman (CN) said the agreed to clause may not be recommitted.

Governor Edmund Randolph described the dilemma as either revolt by some Northern religious sects or loss of two Southern States. He supported a commitment to find a compromise, for he could not support the plan otherwise. (He was right, for even with the eventual compromise, many Northern delegates to some state ratifying conventions were enraged that slavery and importation of slaves were allowed to continue.)

The last two clauses of Section 4 of Article VII, “nor on the migration or importation of such persons as the several States shall think proper to admit; nor shall such migration or importation be prohibited,” and Sect. 5. “No capitation tax shall be laid, unless in proportion to the Census hereinbefore directed to be taken,” were sent to committee by a 7-3 vote.

Charles Pinckney (SC) and John Langdon (NH) motioned to commit Section 6 of Article VII, “No Navigation Act shall be passed without the assent of two thirds of the members present in the each House.”

Nathaniel Gorham (MA) did not see the need to commit Section 6. What was to happen, increase the two thirds requirement? (Just as Southern States had interests to protect, so did the Northern, and Gorham let the Convention know of them in no uncertain terms.) It was for commercial needs and no others that the Northern States would join in union. (The threat was clear)

James Wilson (PA) wished to commit in order to reduce the percentage of votes required.

Olive Ellsworth wished all to accept the Sections as they were. He feared the likely loss of at least two States, dissolution of the Union, more confederacies and even bloodshed.

The motion to commit Section 6 of Article VII regarding Navigation Acts passed 9-2. Appointed to the committee were Mr. Langdon, King, Johnson, Livingston, Clymer, Dickenson, L. Martin, Madison, Williamson, C. C. Pinkney, & Baldwin.

John Rutlidge (SC) submitted the next report of the Grand Committee regarding amendments proposed by Mr. Mason and Mr. Pinckney on August 20.

(Rather than list the raw amendments here as was done in Mr. Madison’s notes, I will quote the amended Articles and Sections as they come up for debate. Hang on.)

A motion to rescind the rule of meeting hours (10am to 4pm) of the Convention failed 7-4.

Elbridge Gerry (MA) and James McHenry (MD) proposed to amend Article VII Section 2 to read, “Treason shall consist only in levying war against the United States, or; and in adhering to the enemies of the United States, The Legislature of the United States shall have power to declare the punishment of treason. No person shall be convicted of treason, unless on the testimony of two witnesses. No attainder of treason shall work corruption of blood, nor forfeiture, except during the life of the person attainted. The Legislature shall pass no bill of attainder nor any ex post facto law."

Elbridge Gerry (MA) urged this precaution because it would be easier to implement at the National level than in the States. (IIRC, Thomas Jefferson signed a Bill of Attainder while Governor of VA during the war. They were non-judicial, legislative punishments)

Governeur Morris (PA) did not fear ex post facto laws (They are common these days), but supported the bill of attainder prohibition.

Judge Oliver Ellsworth (CN) said ex post facto laws were “void of themselves.”

James Wilson (PA) (anticipated opposition in State Ratifying Conventions) thought an ex post facto prohibition would reflect poorly on the Convention as a bunch of knuckleheads. It would call the rest of the Constitution into question by opponents. (He was right)

(Imagine no ex post facto prohibition in the Constitution. When Congress passed and a President signed such a bill into law, what do you think the courts would decide?)

The amendment was divided, and the first as to bills of attainder passed.

Daniel Carroll (MD) said State Legislatures had passed ex post facto laws and he did not care how their existence in the new plan was viewed.

James Wilson (PA) remarked that if such prohibitions had no effect in State Constitutions it would be useless to have them in the National Constitution.

Hugh Williamson (NC) said such a prohibition was in his State’s Constitution. It had been violated, but it did good there and would do good here, “because Judges can take hold of it.”

(Because Judges can take hold of it? Is that not Judicial Review? Mr. Williamson saw Judicial Review as a power inherent within the Judiciary)

Dr. William Samuel Johnson (CN) opposed and John Rutlidge (SC) supported the clause. On the ex post facto question, it passed 7-3-1.

The Committee of Detail (Committee of Five) Report was postponed in order for members to absorb it.

The Report of the Committee of Eleven (Grand Committee) which was submitted and tabled on 21 August, was reconsidered.

The first clause of which, “The Legislature of the U. S. shall have power to fulfill the engagements which have been entered into by Congress, and to discharge as well the debts of the U. S. as the debts incurred by the several States during the late war, for the common defense and general welfare," was up.

Judge Oliver Ellsworth (CN) argued the first clause was unnecessary. The US was duty bound to fulfill its engagements.

Governor Edmund Randolph thought the clause necessary because the new Government will have no authority not given to it.

James Madison (VA) (wandered a little off topic and brought up a related issue, that of private debt owed to British citizens) thought the power necessary to avoid any question that Congress would pay government debt.

Elbridge Gerry (MA) concurred with Mr. Madison in that a public statement would remove any pretext to avoid obligations.

Governeur Morris (PA) motioned to substitute, “-"The Legislature shall discharge the debts & fulfill the engagements, of the U. States."

A motion to amend Mr. Morris’ substitution was defeated.

Mr. Morris’ motion passed without opposition.


1 posted on 08/22/2011 2:42:15 AM PDT by Jacquerie
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Constitutional Convention Ping!

The term “Navigation Acts” was meant in the sense of restrictive British trade laws in place since the mid 17th Century. These limited colonial trade to the mother country, to be carried in English ships. During wars, the colonials naturally traded and smuggled directly with foreign countries, especially the West Indies. When the French and Indian War ended, Britain attempted to reinstate its grip on trade. From our standpoint, it was bad enough we could not trade directly with other countries, but Britain also taxed goods coming and going. In 1787, Southern States feared a simple majority in Congress could for instance, shut down trade along the Mississippi River in order to boost the business of Northern shippers. Thus, the two thirds requirement to pass Navigation Acts was designed to protect Southern interests.

Historic Footnote: You may remember VA had called for the Philadelphia Convention. Governor Edmund Randolph took it upon his state to pay for Convention expenses, and in the following letter, asked his Lieutenant Governor for more funds.

Philadelphia August 22 1787.

“I requested Dr. Mclurg (He was the delegate who filled Patrick Henry’s seat and had left the Convention early.) to inform your honorable board, that at the completion of our business we should be called upon for several expences incurred during our session; the principal of which would be an allowance to the secretary, and two door-keepers, and the charge of printing and stationary. Perhaps this circumstance may have escaped that gentleman’s memory; and as it is a matter of some consequence to us, I beg leave to mention it now, and to ask the sense of the executive, whether it can be placed among the contingent charges of government, or must be paid by ourselves. When I informed you, that the balance in my hands would probably be absorbed before my return, or something to this effect, I had in contemplation not my own wages only, but this debt also. You will therefore be pleased, sir, to give me the earliest answer, which may be in your power. Should it not be expedient to allow these expences, I shall have a small balance still in my hands, which I will pay into the treasury immediately on my return — . . .”

“N. B. I failed in my attempt to take up my draught for the 100 L, as it had been sent to Virginia, contrary to the information I first received. So that what I have said above goes upon the supposition of that sum having been debited to me.”

2 posted on 08/22/2011 2:47:57 AM PDT by Jacquerie (In avowed socialist countries, the central planners are mathematicians, scientists. Ours are lawyers)
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To: Jacquerie


3 posted on 08/22/2011 2:52:37 AM PDT by Repeal The 17th (Proud to be a (small) monthly donor.)
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To: Jacquerie

So much of our history has been lost/neglected the slave issue misrepresented-as evidenced by comments made in the Convention alone,and it being a microcosm of the national discussion at that time. I find it interesting that the Smithsonian seems to be reacting to the current trends with its silly presentation of Jefferson the racist. Their image difficult to reconcile to Jeffersons draft -as you remind —and his notes on the State of Va. And the other side wholly ignores Mason-and any other who opposed the human trafficking.

4 posted on 08/22/2011 3:37:17 AM PDT by StonyBurk (ring)
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To: StonyBurk

Slavery and the Constitutional Convention could make a small book. IIRC one of the complaints in Jefferson’s first draft of the Declaration was the King imposed the vile institution on his colonial subjects while prohibiting it at home. Edmund Burke said the same to Parliament in 1775.

5 posted on 08/22/2011 6:01:34 AM PDT by Jacquerie (More Central Planning is not the solution to the failures of Central Planning.)
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