Volume II Part 60 (1/2)

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 s.h.i.+ps 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 s.h.i.+ps 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.