Mr. RANDOLPH opposed the motion, as weakening too much the independence of the judges.

Mr. 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 Mr. Dickinson's motion, it was negatived.

Connecticut, ay; all the other states present, no.

On the question on article 11, sect. 2, as reported,—

Delaware and Maryland only, no.

Mr. MADISON and Mr. M'HENRY moved to reinstate the words, "increased or," before the word "diminished,” in article 11, sect. 2.

Mr. GOUVERNEUR 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. PINCKNEY. The importance of the judiciary will require men of the first talents: large salaries will therefore be necessary, larger than the United States can afford 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.

Mr. GOUVERNEUR MORRIS said the expedient might be evaded, and therefore amounted to nothing. Judges might resign, and then be reappointed to increased salaries.

On the question,

Virginia, ay, 1; New Hampshire, Connecticut, Pennsylvania, Delaware, South Carolina, no, 5; Maryland, divided; Massachusetts, New Jersey, North Carolina, Georgia, absent.

Mr. RANDOLPH and Mr. MADISON then moved to add the following words to article 11, 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,

Maryland, Virginia, ay, 2; New Hampshire, Connecticut, Pennsylvania, Delaware, South Carolina, no, 5; Massachusetts, New Jersey, North Carolina, Georgia, absent.237

Article 11, sect. 3, being taken up, the following clause was postponed, viz:

"to the trial of impeachments of officers of the United States;" by which the jurisdiction of the Supreme Court was extended to such

cases.

Mr. MADISON and Mr. GOUVERNEUR MORRIS moved to insert, after the word "controversies," the words, "to which the United States shall be a party;" which was agreed to, nem. con.

Dr. JOHNSON moved to insert the words, "this Constitution and the," before the word "laws."

Mr. MADISON doubted whether it was not going too far, to ex tend the jurisdiction of the court generally to cases arising under the Constitution, and 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 Dr. 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 Mr. RUTLEDGE, the words, "passed by the legislature," were struck out; and after the words, "United States," 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.

Mr. GOUVERNEUR 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.

-

Mr. WILSON. The committee, he believed, meant facts as well as law, and common as well as civil law. The jurisdiction of the federal court of appeals had, he said, been so construed.

Mr. DICKINSON moved to add, after the word "appellate," the words, "both as to law and fact; which was agreed to, nem. con.

Mr. MADISON and Mr. GOUVERNEUR MORRIS moved to strike out the beginning of the third section, "The jurisdiction of the supreme court," and 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."

Delaware, Virginia, ay, 2; New Hampshire, Connecticut, Pennsylvania, Maryland, South Carolina, Georgia, no, 6.

On a question for striking out the last sentence of the third section, "The legislature may assign," &c., it passed, nem. con.

Mr. 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 Article of the Confederation; which was agreed to, nem. con.238 Adjourned.

TUESDAY, August 28.

In Convention. - Mr. SHERMAN, from the committee to whom were referred several propositions on the 25th instant, made the following report; which was ordered to lie on the table:

"That there be inserted, after the 4th clause of the 7th sect. 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 United States.'"

Article 11, sect. 3, being considered, — 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,

New Hampshire, Massachusetts, Connecticut, Pennsylvania, Delaware, Virginia, North Carolina, South Carolina, Georgia, ay, 9; Maryland, no, 1; New Jersey, absent.

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. PINCKNEY, 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, and then only for a limited time, not exceeding twelve months.

Mr. RUTLEDGE was for declaring the habeas corpus inviolate. He did not conceive that a suspension could ever be necessary, at the same time, through all the states.

Mr. GOUVERNEUR 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. Gouverneur Morris's motion, to the word "unless," was agreed to, nem. con. On the remaining part, New Hampshire, Massachusetts, Connecticut, Pennsylvania, Delaware, Maryland, Virginia, ay, 7; North Carolina, South Carolina, Georgia, no, 3.

The 5th sect. of article 11, was agreed to, nem. con.*

Article 12 being then taken up,

Mr. WILSON and 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 13th article, with the consent of the legislature of the United States.

Mr. GORHAM thought the purpose would be as well secured by the provision of article 13, which makes the consent of the general

* The vote on this section, as stated in the printed Journal, is not unanimous: the statement here is probably the right one.

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 first part, "nor emit bills of credit,"

--

New Hampshire, Massachusetts, Connecticut, Pennsylvania, Delaware, North Carolina, South Carolina, Georgia, ay, 8; Virginia, no, 1; Maryland, divided.

The remaining part of Mr. Wilson's and Mr. Sherman's motion was agreed to, nem. con.2

239

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. GOUVERNEUR MORRIS. This would be going too far. There are a thousand laws relating to bringing actions, limitations of actions, &c., 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 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 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 retrospec

tive 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.240

Mr. RUTLEDGE moved, instead of Mr. King's motion, to insert, "nor pass bills of attainder, nor retrospective [in the printed Journal, "ex post facto,"] laws."

On which motion,

New Hampshire, New Jersey, Pennsylvania, Delaware, North Carolina, South Carolina, Georgia, ay, 7; Connecticut, Maryland, Virginia, no, 3.

Mr. MADISON moved to insert, after the word "reprisal,"

(article 12,) 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, 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. GOUVERNEUR 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,

Massachusetts, Delaware, South Carolina, ay, 3; New Hampshire, Connecticut, New Jersey, Pennsylvania, Maryland, Virginia, North Carolina, Georgia, no, 8.

Mr. MADISON moved, that the words, "nor lay imposts or duties on imports," be transferred from article 13, where the consent of the general legislature may license the act, into article 12, 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 seconded 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 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 general government

over commerce.

On the question,

New Hampshire, New Jersey, Delaware, North Carolina, ay, 4; Massachusetts, Connecticut, Pennsylvania, Maryland, Virginia, South Carolina, Georgia, no, 7. Article 12, as amended, was then agreed to, nem. con.

Article 13, was then taken up.

Mr. KING moved to insert, after the word "imports," the words, "or exports; so as to prohibit the states from taxing either; and on

this question, it passed in the affirmative.

New Hampshire, Massachusetts, New Jersey, Pennsylvania, Delaware, North Carolina, ay, 6; Connecticut, Maryland, Virginia, South Carolina, Georgia, no, 5. Mr. SHERMAN moved to add, after the word "exports," the words, nor with such consent, but for the use of the United States;