The subst.i.tute was then agreed to; Virg^a alone being in the negative.
The remainder of the paragraph being under consideration--viz--"nor keep troops nor ships of war in time of peace, nor enter into any agreement or compact with another State, nor with any foreign power. Nor engage in any war, unless it shall be actually invaded by enemies, or the danger of invasion be so imminent as not to admit of delay, until Congress can be consulted."
M^r M^cHenry & M^r Carrol moved that "no State shall be restrained from laying duties of tonnage for the purpose of clearing harbours and erecting lighthouses."
Col. Mason in support of this explained and urged the situation of the Chesapeak which peculiarly required expences of this sort.
M^r Gov^r Morris. The States are not restrained from laying tonnage as the Const.i.tution now stands. The exception proposed will imply the contrary, and will put the States in a worse condition than the gentleman (Col. Mason) wishes.
M^r Madison. Whether the States are now restrained from laying tonnage duties, depends on the extent of the power "to regulate commerce." These terms are vague, but seem to exclude this power of the States. They may certainly be restrained by Treaty. He observed that there were other objects for tonnage Duties as the support of seamen &c. He was more & more convinced that the regulation of Commerce was in its nature indivisible and ought to be wholly under one authority.
M^r Sherman. The power of the U. States to regulate trade being supreme can controul interferences of the State regulations when such interferences happen; so that there is no danger to be apprehended from a concurrent jurisdiction.
M^r Langdon insisted that the regulation of tonnage was an essential part of the regulation of trade, and that the States ought to have nothing to do with it. On motion "that no State shall lay any duty on tonnage without the consent of Congress."
N. H. ay. Mas. ay. C^t div^d. N. J. ay. P^a no. Del. ay. M^d ay.
V^a no. N. C. no. S. C. ay. Geo. no.
The remainder of the paragraph was then remoulded and pa.s.sed as follows viz--"No State shall without the consent of Congress, lay any duty of tonnage, keep troops or ships of war in time of peace, enter into any agreement or compact with another State, or with a foreign power, or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay."
Art II. sect. 1. (paragraph 6) "or the period for chusing another president arrive" were changed into "or a President shall be elected"
conformably to a vote of the ---- of ----.
M^r Rutlidge and Doc^r Franklin moved to annex to the end of paragraph 7. Sect. 1. Art II--"and he (the President) shall not receive, within that period, any other emolument from the U. S. or any of them." on which question
N. H. ay. Mas. ay. C^t no. N. J. no. P^a ay. Del. no. M^d ay.
V^a ay. N. C. no. S. C. ay. Geo.--ay.
Art: II. Sect. 2. "he shall have power to grant reprieves and pardons for offences against the U. S. &c."
M^r Randolph moved to except "cases of treason." The prerogative of pardon in these cases was too great a trust. The President may himself be guilty. The Traitors may be his own instruments.
Col: Mason supported the motion.
M^r Gov^r Morris had rather there should be no pardon for treason, than let the power devolve on the Legislature.
M^r Wilson. Pardon is necessary for cases of treason, and is best placed in the hands of the Executive. If he be himself a party to the guilt he can be impeached and prosecuted.
M^r King thought it would be inconsistent with the Const.i.tutional separation of the Executive & Legislative powers to let the prerogative be exercised by the latter. A Legislative body is utterly unfit for the purpose. They are governed too much by the pa.s.sions of the moment. In Ma.s.sachusetts, one a.s.sembly would have hung all the insurgents in that State: the next was equally disposed to pardon them all. He suggested the expedient of requiring the concurrence of the Senate in acts of Pardon.
M^r Madison admitted the force of objections to the Legislature, but the pardon of treasons was so peculiarly improper for the President that he should acquiesce in the transfer of it to the former, rather than leave it altogether in the hands of the latter. He would prefer to either an a.s.sociation of the Senate as a Council of advice, with the President.
M^r Randolph could not admit the Senate into a share of the power. The great danger to liberty lay in a combination between the President & that body.
Col: Mason. The Senate has already too much power. There can be no danger of too much lenity in legislative pardons, as the Senate must concur, & the President moreover can require 2/3 of both Houses.
On the motion of M^r Randolph
N. H. no.--Mas. no. C^t div^d. N. J. no. P^a no. Del. no. M^d no. V^a ay. N. C. no. S. C. no. Geo. ay.
Art II. Sect. 2. (paragraph 2) To the end of this, M^r Govern^r Morris moved to annex "but the Congress may by law vest the appointment of such inferior officers as they think proper, in the President alone, in the Courts of law, or in the heads of Departments." M^r Sherman 2^{ded} the motion.
M^r Madison. It does not go far enough if it be necessary at all.
Superior officers below Heads of Departments ought in some cases to have the appointment of the lesser offices.
M^r Gov^r Morris. There is no necessity. Blank commissions can be sent--
On the motion
N. H. ay. Mas. no. C^t ay. N. J. ay. P^a ay. Del. no. M^d div^d.
V^a no. N. C. ay. S. C. no. Geo. no.
The motion being lost by an equal division of votes. It was urged that it be put a second time some such provision being too necessary to be omitted, and on a second question it was agreed to nem: con.
Art. II. Sect. 1. The words "and not per capita" were struck out as superfluous and the words "by the Representatives" also--as improper, the choice of President being in another mode as well as eventually by the House of Rep^s.
Art II. Sect. 2. After "officers of the U. S. whose appointments are not otherwise provided for," were added the words "and which shall be established by law."
Art III. Sect. 2. parag: 3. M^r Pinkney & M^r Gerry moved to annex to the end, "And a trial by jury shall be preserved as usual in civil cases."
M^r Gorham. The const.i.tution of Juries is different in different States and the trial itself is _usual_ in different cases in different States.
M^r King urged the same objections.
Gen^l Pinkney also. He thought such a clause in the Const.i.tution would be pregnant with embarra.s.sments.
The motion was disagreed to nem: con:
Art. IV. Sect. 2. parag: 3. the term "legally" was struck out, and "under the laws thereof" inserted after the word "State" in compliance with the wish of some who thought the term legal equivocal, and favoring the idea that slavery was legal in a moral view.
Art. IV. Sect 3. "New States may be admitted by the Congress into this Union: but no new State shall be formed or erected within the jurisdiction of any other State; nor any State be formed by the junction of two or more States, or parts of States, without the consent of the Legislatures of the States concerned as well as of the Cong^s."
M^r Gerry moved to insert after "or parts of States" the words "or a State and part of a State" which was disagreed to by a large majority; it appearing to be supposed that the case was comprehended in the words of the clause as reported by the Committee.
Art. IV. Sect. 4. After the word "Executive" were inserted the words "when the Legislature cannot be convened."
Art. V. "The Congress, whenever two thirds of both Houses shall deem necessary, or on the application of two thirds of the Legislatures of the several States shall propose amendments to this Const.i.tution, which shall be valid to all intents and purposes as part thereof, when the same shall have been ratified by three fourths at least of the Legislatures of the several States, or by Conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress: Provided that no amendment which may be made prior to the year 1808 shall in any manner affect the 1 & 4 clauses in the 9. Section of article 1."
M^r Sherman expressed his fears that three fourths of the States might be brought to do things fatal to particular States, as abolishing them altogether or depriving them of their equality in the Senate. He thought it reasonable that the proviso in favor of the States importing slaves should be extended so as to provide that no State should be affected in its internal police, or deprived of its equality in the Senate.
Col: Mason thought the plan of amending the Const.i.tution exceptionable & dangerous. As the proposing of amendments is in both the modes to depend, in the first immediately, and in the second ultimately, on Congress, no amendments of the proper kind would ever be obtained by the people, if the Government should become oppressive, as he verily believed would be the case.
M^r Gov^r Morris & M^r Gerry moved to amend the article so as to require a Convention on application of 2/3 of the Sts.
M^r Madison did not see why Congress would not be as much bound to propose amendments applied for by two thirds of the States as to call a Convention on the like application. He saw no objection however against providing for a Convention for the purpose of amendments, except only that difficulties might arise as to the form, the quorum &c. which in const.i.tutional regulations ought to be as much as possible avoided.
The motion of M^r Gov^r Morris & M^r Gerry was agreed to nem: con: (see the first part of the article as finally past).
M^r Sherman moved to strike out of art. V. after "legislatures" the words "of three fourths" and so after the word "Conventions" leaving future Conventions to act in this matter, like the present Conventions according to circ.u.mstances.