(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 Jeffersons 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 Cromwells 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. Dont 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. (Im 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 States 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. Madisons 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 States 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.
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 Henrys 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 gentlemans 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.