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CHAP. themselves." "Why, then, prohibit bills of credit?" VII. inquired Sherman. Wilson was in favor of King's 1787. motion. Madison admitted that inconveniences might 28. arise from such a prohibition, but thought on the whole its utility would overbalance them. He conceived, however, that a negative on the state laws could alone secure the end. Evasions might and would be devised by the ingenuity of legislatures." His colleague Mason replied: "The motion" of King "is carrying the restraint too far. Cases will happen that cannot be foreseen, where some kind of interfer ence will be proper and essential." He mentioned the case of limiting the period for bringing actions on open account, that of bonds after a lapse of time, asking whether it was proper to tie the hands of the states from making provision in such cases.'

"The answer to these objections is," Wilson explained, "that retrospective interferences only are to be prohibited." "Is not that already done," asked Madison, "by the prohibition of ex post facto laws, which will oblige the judges to declare such interferences null and void?" But the prohibition which, on the motion of Gerry and McHenry, had been adopted six days before, was a limitation on the powers of congress. Instead of King's motion, Rutledge advised to extend that limitation to the individual states; and accordingly they, too, were now forbidden to pass bills of attainder or ex post facto

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1

Gilpin, 1443; Elliot, 485.

2 Ibid.

Ibid.

485.

Ex post facto, not retrospective, was the form used by Rutledge. Correct Gilpin, 1444, by the Jour

Gilpin, 1399, 1444; Elliot, 462, nal of the Convention, in Elliot, i.

271, and compare Elliot, i. 257.

VII.

laws by the vote of seven states against Connecticut, CHAP.
Maryland, and Virginia, Massachusetts being absent.
So the motion of King, which had received hearty 1787.
support only from Wilson, was set aside by a very 28.
great majority.

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The next morning "Dickinson mentioned to the 29. house that, on examining Blackstone's Commentaries, he found that the term ex post facto related to criminal cases only; that the words would consequently not restrain the states from retrospective laws in civil cases; and that some further provision for this purpose would be requisite." Of this remark the convention at the moment took no note; and the clause of Rutledge was left in the draft then making of the constitution, as the provision against the "stay laws and occlusion of courts" so much warned against by Madison, "the payment or discharge of debts or contracts in any manner different from the agreement of the parties," as demanded by Sherman and Ellsworth.2

Among the prohibitions on the states which the committee of detail reported was that of laying du ties on imports. "Particular states," observed Mason, may wish to encourage by impost duties certain manufactures for which they enjoy natural advan

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1 Gilpin, 1450; Elliot, 488.

That no other motion in form or substance was adopted by the convention till after the draft went into the hands of the committee of style and revision, appears from a most careful comparison of the printed journal of the convention, of its journal as preserved in manuscript, of every scrap of paper containing any motion or sketch

of a motion preserved among the
records of the convention in the
state department, of the debates
of the convention as reported by
Madison, and of the several copies
of the broadside which were used
for the entry of amendments by
Washington, by Madison, by Brear-
ley, by Gilman, by Johnson, and
another, which seems to be that of
the secretary, Jackson.

28.

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CHAP. tages, as Virginia the manufacture of hemp, etc."1 VII. Madison replied: "The encouragement of manufac 1787. tures in that mode requires duties, not only on im 28. ports directly from foreign countries, but from the

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other states in the union, which would revive all the mischiefs experienced from the want of a general government over commerce." King proposed to extend the prohibition not to imports only, but also to exports, so as to prohibit the states from taxing either. Sherman added, that, even with the consent of the United States, the several states should not levy taxes on importations except for the use of the United States. This movement Gouverneur Morris supported as a regulation necessary to prevent the Atlantic states from endeavoring to tax the western states and promote their separate interest by opposing the navigation of the Mississippi, which would drive the western people into the arms of Great Britain. George Clymer, of Pennsylvania, "thought the encouragement of the western country was suicide on the part of 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." King did not wish to "interfere too much with the policy of states respecting their manufactures," holding that such a policy of protection in a separate state might be necessary. "Revenue," he reminded the house, " was the object of the general legislature." By a large majority the

1 Gilpin, 1445; Elliot, 486.
• Ibid.

3

Gilpin, 1446, 1447; Elliot, 487.

Gilpin, 1447; Elliot, 487.

VII.

1787. 28.

Aug.

prohibition on the several states of taxing imports CHAP. was made dependent on the consent of the legislature of the United States; and with this limitation it was carried without a dissentient vote. The extending of the prohibition to exports obtained a majority of but one. That taxes on imports or exports by the states, even with the consent of the United States, should be exclusively for the use of the United States, gained every state but Massachusetts and Maryland. The power to protect domestic manufactures by imposts was taken away from the states, and, so far as it is incident to the raising of revenue, was confined to the United States.

The country had been filled with schemes for a division of the thirteen states into two or more sepa rate groups; the convention, following its committee of detail, would suffer no state to enter into any confederation, or even into a treaty or alliance with any confederation. The restriction was absolute. To make it still more clear and peremptory, it was repeated and enlarged in another article, which declared not only that "no state shall enter into any agreement or compact with any foreign power," but that "no state shall enter into any agreement or compact with any other state." Each state was confined in its government strictly to its own duties within itself.

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As to slavery, it was by unanimous consent treated as a sectional interest; freedom existed in all the states; slavery was a relation established within a state by its own law. Under the sovereignty of the king of Great Britain the laws of a colony did not on

'Article xiii. Gilpin, 1239; Elliot, 381.

6.

VII.

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CHAP. British soil prevail over the imperial law. The slave, so it was finally accepted, became free on touching 1787. the soil of England. In like manner in America, a 6. slave in one American colony, finding himself on the soil of another, was subject only to the laws of the colony in which he might be found. It remained so on the declaration of independence; not as an innovation, but as the continuance of an established fact. The articles of confederation took no note of slavery, except by withholding the privileges of intercitizenship from the slave. The enumeration of slaves was in the distribution of political power a matter of indifference so long as congress voted by states and proportioned its requisitions of revenue to wealth alone.

In framing a constitution in which representation in one branch of the legislature was made to depend on population, it became the political interest of the states in which slaves abounded to have them included in the enumeration of the population equally with the free negroes and the whites. They so far succeeded that the slave inhabitants were held to be a part of the grand aggregate of the people of the United States, and as such were entitled to bring a proportional increase of representation to the state in which they abode. For the purpose of representation the slaves were by a compromise allowed to be counted, but only as three out of five; should the master see fit to liberate the slave, he became at once a free inhabitant and citizen with the right of intercitizenship, and of being counted equally in the representative population.

Intercitizenship was the life-blood of the union. The report of the committee of detail, changing only

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