The Journal of the Debates in the Convention which framed the Constitution of USA Volume II Part 37

The clause "in cases of impeachment," was postponed.

M^r Gov^r 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.

M^r Wilson. The Committee he believed meant facts as well as law & Common as well as Civil law. The jurisdiction of the federal Court of Appeals had he said been so construed.

M^r d.i.c.kinson moved to add after the word "appellate" the words "both as to law & fact" which was agreed to nem: con:

M^r Madison & M^r Gov^r Morris moved to strike out the beginning of the 3^d sect. "The jurisdiction of the supreme Court" & 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" Del. Virg^a ay. N. H. Con.

P. M. S. C. G. no.

On a question for striking out the last sentence of the sect. 3. "The Legislature may a.s.sign &c."

N. H. ay. C^t ay. P^a ay. Del. ay. M^d ay. V^a ay. S. C. ay.

Geo. ay.

M^r 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 Art: of the Confederation--which was agreed to nem: con:

Adjourned.

TUESDAY AUGUST 28 1787. IN CONVENTION

M^r Sherman from the Committee to whom were referred several propositions on the 25^{th} instant, made the following report:--

That there be inserted after the 4 clause of 7^{th}. 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 & excises laid by the Legislature shall be uniform throughout the U. S."

Art XI Sect. 3, It was moved to strike out the words "it shall be appellate" 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. C^t ay. N. J. abs^t. P^a ay. Del. ay. M^d no.

V^a 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 offences committed out of any State.

M^r Pinkney urged 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."

M^r 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.

M^r Gov^r 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."

M^r 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 M^r Gov^r Morris' motion, to the word "unless" was agreed to nem: con:--on the remaining part;

N. H. ay. Mas. ay. C^t ay. P^a ay. Del. ay. M^d ay. V^a ay.

N. C. no. S. C. no. Geo. no.

Sec. 5. of art: XI. was agreed to _nem_: con.[43]

[43] The vote on this section as stated in the printed Journal is not unanimous: the statement here is probably the right one.--Madison's Note.

Art: XII being taken up.

M^r Wilson & M^r Sherman moved to insert after the words "coin money"

the words "nor emit bills of credit, nor make any thing but gold & 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._

M^r Ghorum thought the purpose would be as well secured by the provisions of art: XIII which makes the consent of the Gen^l 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.

M^r Sherman thought this a favorable crisis for crus.h.i.+ng 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 1^{st} part--"nor emit bills of credit" N. H. ay. Mas. ay. C^t ay. P^a ay. Del. ay. M^d div^d. V^a no.

N. C. ay. S. C. ay. Geo. ay.

The remaining part of M^r Wilson's & Sherman's motion was agreed to nem: con:

M^r King moved to add, in the words used in the Ordinance of Cong^r establis.h.i.+ng new States, a prohibition on the States to interfere in private contracts.

M^r Gov^r Morris. This would be going too far. There are a thousand laws, relating to bringing actions--limitations, of actions & which affect contracts. The Judicial power of the U. S. 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.

M^r Sherman. Why then prohibit bills of credit?

M^r Wilson was in favor of M^r King's motion.

M^r 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 & 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?

M^r Wilson. The answer to these objections is that retrospective interferences only are to be prohibited.

M^r Madison. Is not that already done by the prohibition of ex post facto laws, which will oblige the Judges to declare such interferences null & void.

M^r Rutlidge moved instead of M^r King's Motion to insert--"nor pa.s.s bills of attainder nor retrospective[44] laws" on which motion

N. H. ay. C^t no. N. J. ay. P^a ay. Del. ay. M^d no. Virg^a no.

N. C. ay. S. C. ay. Geo. ay.

[44] In the printed Journal--ex post facto.--Madison's Note.

M^r 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.

M^r Sherman thought the States ought to retain this power in order to prevent suffering & injury to their poor.