was too vague. What is the extent of the term "disability," and who is to be the judge of it?

The postponement was agreed to, nem. con.

Col. MASON and Mr. MADISON moved to add to the oath to be taken by the supreme executive,

"and will, to the best of my judgment and power, preserve, protect, and defend, the Constitution of the United States."

Mr. WILSON thought the general provision for oaths of office, in a subsequent place, rendered the amendment unnecessary.

On the question,

New Hampshire, Connecticut, Pennsylvania, Maryland, Virginia, South Carolina, Georgia, ay, 7; Delaware, no, 1; Massachusetts, New Jersey, North Carolina, absent.

Article 11, being next taken up,

Dr. JOHNSON suggested, that the judicial power ought to extend to equity as well as law; and moved to insert the words, " both in law and equity," after the words "United States," in the first line of the first section.

Mr. READ objected to vesting these powers in the same court. On the question,

New Hampshire, Connecticut, Pennsylvania, Virginia, South Carolina, Georgia, ay, 6; Delaware, Maryland, no, 2; Massachusetts, New Jersey, North Carolina,

absent.

On the question to agree to article 11, sect. 1, as amended, the states were the same as on the preceding question.

Mr. DICKINSON moved, as an amendment to article 11, sect. 2, after the words, "good behavior," the words,

"Provided that they may be removed by the executive on the application by the Senate and House of Representatives."

Mr. GERRY seconded the motion.

Mr. GOUVERNEUR MORRIS thought it a contradiction in terms, to say that the judges should hold their offices during good behavior, and yet be removeable without a trial. Besides, it was fundamentally wrong to subject judges to so arbitrary an authority.

Mr. SHERMAN saw no contradiction or impropriety, if this were made a part of the constitutional regulation of the judiciary establishment. He observed that a like provision was contained in the British

statutes.

Mr. RUTLEDGE. If the Supreme Court is to judge between the United States and particular states, this alone is an insuperable objection to the motion.

Mr. WILSON considered such a provision in the British government as less dangerous than here; the House of Lords and House of Commons being less likely to concur on the same occasions. Chief Justice Holt, he remarked, had successively offended, by his independent conduct, both Houses of Parliament. Had this happened at the same time, he would have been ousted. The judges would be in a bad situation, if made to depend on any gust of faction which might prevail in the two branches of our government.

Mr. RANDOLPH opposed the motion, as weakening too much the independence of the judges.

Mr. DICKINSON was not apprehensive that the legislature, composed of different branches, constructed on such different principles, would improperly unite for the purpose of displacing a judge.

On the question for agreeing to Mr. Dickinson's motion, it was negatived.

Connecticut, ay; all the other states present, no.

On the question on article 11, sect. 2, as reported,

Delaware and Maryland only, no.

Mr. MADISON and Mr. M'HENRY moved to reinstate the words, "increased or," before the word "diminished," in article 11, sect. 2.

Mr. GOUVERNEUR MORRIS opposed it, for reasons urged by him on a former occasion.

Col. MASON contended strenuously for the motion. There was no weight, he said, in the argument drawn from changes in the value of the metals, because this might be provided for by an increase of salaries, so made as not to affect persons in office; and this was the only argument on which much stress seemed to have been laid.

Gen. PINCKNEY. The importance of the judiciary will require men of the first talents: large salaries will therefore be necessary, larger than the United States can afford in the first instance. He was not satisfied with the expedient mentioned by Col. Mason. He did not think it would have a good effect, or a good appearance, for new judges to come in with higher salaries than the old ones.

Mr. GOUVERNEUR MORRIS said the expedient might be evaded, and therefore amounted to nothing. Judges might resign, and then be reappointed to increased salaries.

On the question,

Virginia, ay, 1; New Hampshire, Connecticut, Pennsylvania, Delaware, South Carolina, no, 5; Maryland, divided; Massachusetts, New Jersey, North Carolina, Georgia, absent.

Mr. RANDOLPH and Mr. MADISON then moved to add the following words to article 11, sect. 2:

"nor increased by any act of the legislature which shall operate before the expiration of three years after the passing thereof."

On the question,

Maryland, Virginia, ay, 2; New Hampshire, Connecticut, Pennsylvania, Delaware, South Carolina, no, 5; Massachusetts, New Jersey, North Carolina, Georgia, absent.237

Article 11, sect. 3, being taken up, the following clause was postponed, viz:

--

"to the trial of impeachments of officers of the United States;". by which the jurisdiction of the Supreme Court was extended to such

cases.

Mr. MADISON and Mr. GOUVERNEUR MORRIS moved to insert, after the word "controversies," the words, to which the United States shall be a party;" which was agreed to, nem. con.

Dr. JOHNSON moved to insert the words, "this Constitution and the," before the word "laws."

Mr. MADISON doubted whether it was not going too far, to extend the jurisdiction of the court generally to cases arising under the Constitution, and whether it ought not to be limited to cases of a judiciary nature. The right of expounding the Constitution, in cases not of this nature, ought not to be given to that department.

The motion of Dr. Johnson was agreed to, nem. con., it being generally supposed, that the jurisdiction given was constructively limited to cases of a judiciary nature.

On motion of Mr. RUTLEDGE, the words, "passed by the legislature," were struck out; and after the words, "United States," were inserted, nem. con., the words, "and treaties made or which shall be made under their authority," conformably to a preceding amendment in another place.

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

Mr. GOUVERNEUR 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.

Mr. WILSON. The committee, he believed, meant facts as well as law, and common as well as civil law. The jurisdiction of the federal court of appeals had, he said, been so construed.

Mr. DICKINSON moved to add, after the word "appellate," the words, "both as to law and fact;" which was agreed to, nem. con.

Mr. MADISON and Mr. GOUVERNEUR MORRIS moved to strike out the beginning of the third section, "The jurisdiction of the supreme court," and 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."

Delaware, Virginia, ay, 2; New Hampshire, Connecticut, Pennsylvania, Maryland, South Carolina, Georgia, no, 6.

On a question for striking out the last sentence of the third section, "The legislature may assign," &c., it passed, nem. con.

Mr. 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 Article of the Confederation; which was agreed to, nem. con.238

Adjourned.

TUESDAY, August 28.

In Convention. - Mr. SHERMAN, from the committee to whom were referred several propositions on the 25th instant, made the following report; which was ordered to lie on the table:

"That there be inserted, after the 4th clause of the 7th sect.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, and excises, laid by the legislature, shall be uniform throughout the United States.'

Article 11, sect. 3, being considered, it was moved to strike out the words, "it shall be appellate," and 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,

New Hampshire, Massachusetts, Connecticut, Pennsylvania, Delaware, Virginia, North Carolina, South Carolina, Georgia, ay, 9; Maryland, no, 1; New Jersey. absent.

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.

Mr. PINCKNEY, urging 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, and then only for a limited time, not exceeding twelve months.

Mr. RUTLEDGE was for declaring the habeas corpus inviolate. He did not conceive that a suspension could ever be necessary, at the same time, through all the states.

Mr. GOUVERNEUR 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."

Mr. 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 Mr. Gouverneur Morris's motion, to the word unless," was agreed to, nem. con. On the remaining part, New Hampshire, Massachusetts, Connecticut, Pennsylvania, Delaware, Maryland, Virginia, ay, 7; North Carolina, South Carolina, Georgia, no, 3.

The 5th sect. of article 11, was agreed to, nem. con.*

Article 12 being then taken up,

Mr. WILSON and Mr. SHERMAN moved to insert, after the words, "coin money," the words, "nor emit bills of credit, nor make any thing but gold and silver coin a tender in payment of debts;" making these prohibitions absolute, instead of making the measures allowable, as in the 13th article, with the consent of the legislature of the United States.

Mr. GORHAM thought the purpose would be as well secured by the provision of article 13, which makes the consent of the general

The vote on this section, as stated in the printed Journal, is not unanimous: the statement here is probably the right one.

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.

Mr. SHERMAN thought this a favorable crisis for crushing 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 first part, "nor emit bills of credit,"

New Hampshire, Massachusetts, Connecticut, Pennsylvania, Delaware, North Carolina, South Carolina, Georgia, ay, 8; Virginia, no, 1; Maryland, divided.

The remaining part of Mr. Wilson's and Mr. Sherman's motion was agreed to, nem. con.239

Mr. KING moved to add, in the words used in the ordinance of Congress establishing new states, a prohibition on the states to interfere in private contracts.

Mr. GOUVERNEUR MORRIS. This would be going too far. There are a thousand laws relating to bringing actions, limitations of actions, &c., which affect contracts. The judicial power of the United States 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.

Mr. SHERMAN. Why then prohibit bills of credit?

Mr. WILSON was in favor of Mr. King's motion.

Mr. 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 and 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.

Mr. WILSON. The answer to these objections is, that retrospective interferences only are to be prohibited.

Mr. MADISON. Is not that already done by the prohibition of ex post facto laws, which will oblige the judges to declare such interferences null and void.240

Mr. RUTLEDGE moved, instead of Mr. King's motion, to insert, "nor pass bills of attainder, nor retrospective [in the printed Journal, "ex post facto,"] laws."

On which motion,

New Hampshire, New Jersey, Pennsylvania, Delaware, North Carolina, South Carolina, Georgia, ay, 7; Connecticut, Maryland, Virginia, no, 3.

Mr. MADISON moved to insert, after the word "reprisal,"