rise in value and she already had more than she wanted.1 It was to the interest of the whole Union therefore to continue importation. The more slaves the more production to employ the carrying trade; the greater the consumption and also the greater the public revenue, but Pinckney repeated his warning that the Convention would exclude South Carolina from the Union if it taxed slaves, or prohibited their importation, or migration.

At this time slavery was considered to be a local institution and Baldwin, doubtless with this idea in mind, remarked, that not being a national subject it was not properly before the Convention. Speaking for Georgia, he said, that she might probably put a stop to the evil, but she would not tolerate any attempt to abridge one of her favorite prerogatives. If South Carolina and Georgia were disposed to abandon the slave trade, as some of their representatives had suggested, Wilson observed that they would never refuse to assent to the Constitution because it prohibited the importation. If slaves alone were exempt from taxation there would be, in fact, a bounty on them. Gerry, as usual discerning the essential difficulty, remarked, that though the Convention had nothing to do with the conduct of the States as to slaves, it ought to be careful not to give any sanction to the slave trade but, rising to a higher view of the difficulty, Dickinson insisted that the true question was whether the national happiness would be promoted or impeded by the importation, and therefore, the question should be left to the national legislature.

The nearest approach to a precedent for empowering Congress to levy a tax on the slave trade was the law of

1 Estimated at this time at 300,000; see Journal, Documentary History, I, 327; Elliot, I, 194; by the census of 1790 there were 293,427 slaves in the State and 12,666 free colored persons.

IMPORTATION OF SLAVES.

539

North Carolina of 1786, which imposed a duty of five pounds on every slave imported from Africa and ten pounds from any other quarter, except from a State which permitted emancipation; in which case the tax was fifty pounds. Yet, familiar as he must have been with this law, Williamson declared that the southern States could not become members of the Union unless the slave trade was left free and untaxed. But King could not harmonize the contradiction of making every article of import dutiable, except slaves, for the inequality could not fail to be felt by the commercial States, north. Unless the southern States would of themselves cease the importation, Langdon was unwilling to let the traffic go on; its control, he said, should be given to the general government.

The discussion of the subject seemed only to bring out its difficulties, with little prospect of their dissolution. Rutledge again assured the Convention that Georgia and South Carolina would not agree to the plan unless their right to import slaves was untouched, and, with Pinckney, he moved that the matter be referred to a committee. Morris with diplomatic instinct, discerning a chance for a compromise, agreed with them, and wished to refer also the clause relating to taxes on exports and navigation acts. These things, he said, might form the basis of a bargain between the northern and southern States. Sherman, realizing the peril of the situation, expressed his belief that it would be better to let the southern States import slaves, than to lose them as part of the Union. He opposed the tax on slaves imported, because it implied that they were property. As it had already been agreed that exports should not be taxed, Sherman believed that this

1 Act of North Carolina, 1786; Iredell's Laws, Edenton, MDCCXCI, 578.

subject could not be committeed, though several had expressed a wish for it. Randolph, convinced of the necessity for a compromise, declared for commitment by which he thought some middle ground might be found. He wished to avoid antagonizing the Quakers, the Methodists and others in States having no slaves. The whole matter, therefore, almost by common consent was given over to a committee.1

Pinckney and Langdon suggested that the clause requiring that a navigation act could be passed with the assent of two-thirds of the members present in each House should be committeed. His object was to secure a larger proportion of votes. Gorham thought the commitment useless, for the eastern States had no motive, save a commercial one, to join the Union, and were able to protect themselves; and, having no fear of external danger, they did not need the aid of the South. Wilson, however, wished the matter committeed in order to reduce the number of votes required. Ellsworth, who all along had steadily defended the report of the Committee of Detail, protested against the many changes to which it was being subjected. To him the increasing differences of opinion had a threatening aspect. He looked upon the Committee's draft as a safe middle ground and feared that departure from it would only lead to several confederations formed, perhaps, not without bloodshed. But Connecticut and New Jersey alone opposed the commitment. To Langdon, King, Johnson, Livingston, Clymer, Dickinson, Luther Martin, Madison, Williamson, C. C. Pinckney and Baldwin were referred the clauses on taxing or prohibiting, the slave trade, and also the clause of the report of the Committee

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

NEW CLAUSES PROPOSED.

541

of Detail forbidding a capitation tax, unless in proportion to the census.

The Committee of Eleven, to whom had been referred the resolutions offered by Pinckney, Madison and Morris, through Rutledge, its chairman, recommended the addition of several clauses. Congress should be given power to lay and collect taxes, duties, imposts and excises; to pass laws for the payment of the debts and the necessary expenses of the United States, provided that no law for raising any revenue, except a special appropriation for the payment of interest on loans or debts, should continue in force for longer than a fixed number of years. It should have power to regulate commerce with foreign nations, and among the several States, and with Indian tribes within the limits of any State, and not subject to its laws. From time to time, it might provide for the management and security of the common property and general welfare of the United States in such manner as should not interfere with the government of the individual States in matters which respected their internal police or for which their individual authority might be competent. The President should be at least thirty-five years of age, a citizen of the United States and an inhabitant of them for twenty-one years. He should have a private council, consisting of the President of the Senate, the Speaker of the House, the Judges of the Supreme Court and the heads of the executive departments. Its views should not be obligatory on him, nor release him from responsibility for whatever measures he might adopt.

The report of the Committee of Detail had made no provision for the removal of judges of the Supreme Court. It was now recommended that they be made subject to impeachment by the House and to trial by the Senate. Pinckney's amendment respecting the Court was that its

542

EX POST FACTO LAWS.

jurisdictions should extend to controversies between the United States and individual States, or the United States and a person. Gerry and McHenry suggested a new clause forbidding Congress to pass bills of attainder or any ex post facto laws,1 Gerry's purpose being to supply a prohibition more needed respecting Congress than the State legislatures; because the number of members of Congress would be the fewer, and therefore the more to be feared. The injunction against bills of attainder was unanimously agreed to, but Morris and Ellsworth thought that the proviso against ex post facto laws would be superfluous, as they would be void of themselves. The constitution of North Carolina was an immediate precedent, however, and Williamson, a delegate from that State, observed that though the provision had been violated there, it had done good and might be beneficial in the new plan, because it would enable the judges to take cognizance of many matters, and this view was sustained.3

At Pinckney's suggestion, in order to make the officers of the United States independent of external influence, they were forbidden, by unanimous agreement, to accept, without the consent of Congress any office, present or title of any kind from any foreign power. The paramount authority of the Constitution and laws of the United States and of treaties made under its authority was also agreed to, the language of Rutledge being substituted for the clause reported by the Committee of Detail. In like manner, Morris's phraseology was substituted for the Com

1 Compare Constitution, Article I, Section 10, Clause 1.

2 Constitution of North Carolina, 1776, Article XXIV.

8 New Hampshire, Massachusetts, Delaware, Maryland, Virginia, South Carolina and Georgia, aye; Connecticut, New Jersey, Pennsylvania, no; North Carolina divided.

4 Compare Constitution, Article I, Section 9, Clause 8.

5 Compare Constitution, Article VI, Clause 2.