Madison’s Notes: The Federal Convention of 1787: August 28

Liberty Letters, 28 August 1787, James Madison

Editor’s Notes: Mr. Sherman made the following report regarding items referred to committee:

1. That there be inserted after the 4th 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 and excises laid by the Legislature shall be uniform throughout the U. S.” Ordered to lie on the table.

2. Art. 11 Sect. 3 It was moved to strike out the words “it shall be appellate” and to insert the words “the supreme Court shall have appellate jurisdiction,” — in order to prevent uncertainty whether “it” referred to the supreme Court, or to the Judicial power. Passed.

3. Sect. 4. was so amended without dissent 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 offenses committed out of any State. Passed.

4. When if ever, Habeas Corpus (a writ to bring a prisoner before the court to inquire into the legality of his confinement) shall be suspended was debated. 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.” Motion passed without dissent. By the way, it proves the fraud of Libertarian historians that Lincoln was a tyrant for suspending habeas corpus during the Civil War. His was fully within his rights in that the Civil War was precisely the exception envisioned, being both a rebellion and an invasion, and no doubt also meeting the third qualifier, in that Lincoln surely believed that having to prove the legality of arrests of war criminals when the enemy thought the war illegal anyway, would but create a side show that might undermine the legitimacy of the war, dividing public opinion (think Vietnam), and thus cost lives, many lives (thus, undermining public safety).

Wilson and Sherman moved to insert after the words “coin money” the words “nor emit bills of credit, nor make any thing but gold and silver coin a tender in payment of debts” making these prohibitions absolute. Sherman thought this a favorable crisis for crushing paper money. He wanted to insure there was no loopholes. Near unanimous vote in favor of “nor emit bills of credit.”

Madison envisioned a “nullification principle.” His example: in the case of any “ex post facto” laws made, “judges” will be “oblige[d]” … “to declare such interferences null and void.”

Mr. Rutlidge moved to insert a prohibition against bills of attainder (legislative acts that would permit groups or individuals to pronounce sentence without a trial) nor retrospective (such as ex post facto) laws. Passed.

Madison opposed any power within individual states to impose import duties [both in trade with foreign nations, and between the states] in order to protect a local monopoly. He said this “would revive all the mischief experienced from the want of a General Government over commerce.” Such a power was rejected.

Morris noted that tax or trade policies that favored one state above another or one region of the country above another might lead that state or region into the arms of other countries.

Steve Farrell

_________________________

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 4th 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 and excises laid by the Legislature shall be uniform throughout the U. S.”

Ordered to lie on the table.

Art XI Sect. 3  It was moved to strike out the words

“it shall be appellate” and to insert the words “the supreme Court shall have appellate jurisdiction,” — in order to prevent uncertainty whether “it” referred to the supreme Court, or to the Judicial power.

On the question

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 offenses committed out of any State.

Mr. PINKNEY, urging the propriety of securing the benefit of the Habeas corpus in the most ample manner, moved “that it should not be suspended but on the most urgent occasions, & 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 [Jail] 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. 8 was agreed to nem: con:

Art: XII. 8 being 12 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 and 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 provision of art: XIII which makes the consent of the General Government from an equal rank Legislature necessary, and that in that mode, no opposition would be excited; whereas an absolute prohibition of paper money would rouse the most desperate opposition from its partisans.

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

The question being divided; on the 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 Congress 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 and which affect contracts. The Judicial power of the United States will be a protection in cases within their jurisdiction; and within the State itself a majority must rule, whatever may be the mischief done among themselves.

Mr. SHERMAN. Why then prohibit bills of credit?

Mr. WILSON was in favor of Mr. King’s motion.

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

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

Mr. WILSON. The answer to these objections is that retrospective [retroactive, or ex post facto] interferences only are to be prohibited.

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

Mr. RUTLIDGE moved instead of Mr. King’s Motion to insert — “nor pass bills of attainder nor retrospective 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. 19

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 and injury to their poor.

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

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

On the question

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. 20

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

Mr. WILLIAMSON 2ded. the motion

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

Col: MASON, observed that particular States might wish to encourage by import 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 mischief experienced from the want of a General Government over commerce.

On the question

N. H. ay. Mas. no. Ct. no. N. J. ay. Pa. no. Del: ay. Md. no. Va. no. N. C. ay. S. C. no. Geo. no. 22

Art: XII as amended 23 agreed to nem: con:

Art: XIII 24 being 25 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. 26

Mr. SHERMAN moved to add after the word “exports” — the words “nor with such consent but for the use of the United States.” — so as to carry the proceeds of all State duties on imports and 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 and promote their interest by opposing the navigation of the Mississippi which would drive the Western people into the arms of Great Britain.

Mr. CLYMER thought the encouragement of the Western Country was suicide on the old States. If the States have such different interests that they can not 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 a 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. 29

Art XIII was then agreed to as amended.

Art. XIV 30 was 31 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. 32

Art: XV 30 being taken up, the words “high misdemeanor,” were struck out, and 33 “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 expense.

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

Mr. BUTLER withdrew his proposition in order that some particular provision might be made apart from this article. Art XV as amended was then agreed to nem: con:

Adjourned
______________________

This version of Madison’s Notes for August 28, 1787, with updated spelling, some shorthand removed, definitions and editor’s notes added: Copyright © 2011 Steve Farrell and The Moral Liberal.