Mr. WILSON seconds the motion.

Mr. PINCKNEY opposed the interference of the judges in the legislative business: it will involve them in parties, and give a previous tincture to their opinions.

Mr. MERCER heartily approved the motion. It is an axiom that the judiciary ought to be separate from the legislative; but equally so, that it ought to be independent of that department. The true policy of the axiom is, that legislative usurpation and oppression may be obviated. He disapproved of the doctrine, that the judges, as expositors of the Constitution, should have authority to declare a law void. He thought laws ought to be well and cautiously made, and then to be uncontrollable.

Mr. GERRY. This motion comes to the same thing with what has been already negatived.

On the question on the motion of Mr. Madison,—

Delaware, Maryland, Virginia, ay, 3; New Hampshire, Massachusetts, Connecticut, New Jersey, Pennsylvania, North Carolina, South Carolina, Georgia, no, 8.209

Mr. GOUVERNEUR MORRIS regretted that something like the proposed check could not be agreed to. He dwelt on the importance of public credit, and the difficulty of supporting it without some strong barrier against the instability of legislative assemblies. He suggested the idea of requiring three fourths of each House to repeal laws where the President should not concur. He had no great reliance on the revisionary power, as the executive was now to be constituted, (elected by Congress.) The legislature will contrive to soften down the President. He recited the history of paper emissions, and the perseverance of the legislative assemblies in repeating them, with all the distressing effects of such measures before their eyes. Were the national legislature formed, and a war was now to break out, this ruinous expedient would be again resorted to, if not guarded against The requiring three fourths to repeal would, though not a complete remedy, prevent the hasty passage of laws, and the frequency of those repeals which destroy faith in the public, and which are among our greatest calamities.

Mr. DICKINSON was strongly impressed with the remark of Mr. Mercer, as to the power of the judges to set aside the law. He thought no such power ought to exist. He was, at the same time, at a loss what expedient to substitute. The justiciary of Arragon, he observed, became by degrees the lawgiver.

Mr. GOUVERNEUR MORRIS suggested the expedient of an absolute negative in the executive. He could not agree that the judiciary, which was part of the executive, should be bound to say, that a direct violation of the Constitution was law. A control over the legislature might have its inconveniences; but view the danger on the other side. The most virtuous citizens will often, as members of a legislative body, concur in measures which afterwards, in their private capacity, they will be ashamed of. Encroachments of the popular branch of the government ought to be guarded against. The

Ephori at Sparta became in the end absolute. The report of the council of censors in Pennsylvania points out the many invasions of the legislative department on the executive, numerous as the latter* is, within the short term of seven years, and in a state where a strong party is opposed to the constitution, and watching every occasion of turning the public resentments against it. If the executive be overturned by the popular branch, as happened in England, the tyranny of one man will ensue. In Rome, where the aristocracy overturned the throne, the consequence was different. He enlarged on the tendency of the legislative authority to usurp on the executive, and wished the section to be postponed, in order to consider of some more effectual check than requiring two thirds only to overrule the negative of the executive.

Mr. SHERMAN. Can one man be trusted better than all the others, if they all agree? This was neither wise nor safe. He disapproved of judges meddling in politics and parties. We have gone far enough, in forming the negative as it now stands.

Mr. CARROLL. When the negative to be overruled by two thirds only was agreed to, the quorum was not fixed. He remarked that, as a majority was now to be the quorum, seventeen in the larger, and eight in the smaller house might carry points. The advantage that might be taken of this seemed to call for greater impediments to improper-laws. He thought the controlling power, however, of the executive, could not be well decided, till it was seen how the formation of that department would be finally regulated. He wished the consideration of the matter to be postponed.

Mr. GORHAM saw no end to these difficulties and postponements. Some could not agree to the form of government, before the powers were defined. Others could not agree to the powers till it was seen how the government was to be formed. He thought a majority as large a quorum as was necessary. It was the quorum almost every where fixed in the United States.

Mr. WILSON, after viewing the subject with all the coolness and attention possible, was most apprehensive of a dissolution of the government from the legislature swallowing up all the other powers. He remarked, that the prejudices against the executive resulted from a misapplication of the adage, that the Parliament was the palladium of liberty. Where the executive was really formidable, king and tyrant were naturally associated in the minds of people; not legislature and tyranny. But where the executive was not formidable, the two last were most properly associated. After the destruction of the king in Great Britain, a more pure and unmixed tyranny sprang up in the Parliament, than had been exercised by the monarch. He insisted that we had not guarded against the danger on this side, by a sufficient self-defensive power, either to the executive or judiciary department.

The executive consisted at that time of about twenty members

Mr RUTLEDGE was strenuous against postponing, and com plained much of the tediousness of the proceedings.

Mr. ELLSWORTH held the same language. We grow more and more skeptical as we proceed. If we do not decide soon, we shall be unable to come to any decision.

The question for postponement passed in the negative, - Delaware and Maryland only being in the affirmative.

Mr. WILLIAMSON moved to change "two thirds of each House" into three fourths," as requisite to overrule the dissent of the President. He saw no danger in this, and preferred giving the power to the President alone, to admitting the judges into the business of legislation.

Mr. WILSON seconds the motion; referring to and repeating the ideas of Mr. Carroll.

On this motion for three fourths, instead of two thirds, it passed in the affirmative.

Connecticut, Delaware, Maryland, Virginia, North Carolina, South Carolina, ay, 6; New Hampshire, Massachusetts, New Jersey, Georgia, no, 4; Pennsylvania, divided.

Mr. MADISON, observing that if the negative of the President was confined to bills, it would be evaded by acts under the form and name of resolutions, votes, &c., proposed that "or resolve" should be added after "bill," in the beginning of section 13, with an exception as to votes of adjournment, &c. After a short and rather confused conversation on the subject, the question was put and rejected, the votes being as follows:

Massachusetts, Delaware, North Carolina, ay, 3; New Hampshire, Connecticut, New Jersey, Pennsylvania, Maryland, Virginia, South Carolina, Georgia, no, 8. "Ten days, (Sundays excepted,)" instead of "seven," were allowed to the President for returning bills with his objections, -New Hampshire and Massachusetts only voting against it.

The thirteenth section of article 6, as amended, was then agreed to.210 Adjourned.

THURSDAY, August 16.

In Convention. - Mr. RANDOLPH, having thrown into a new form the motion putting votes, resolutions, &c., on a footing with bills, renewed it as follows:

"Every order, resolution, or vote, to which the concurrence of the Senate and House of Representatives may be necessary, (except on a question of adjournment, and in the cases hereinafter mentioned,) shall be presented to the President for his revision; and, before the same shall have force, shall be approved by him, or, being disapproved by him, shall be repassed by the Senate and House of Representatives, according to the rules and limitations prescribed in the case of a bill.""

Mr. SHERMAN thought it unnecessary, except as to votes taking money out of the treasury, which might be provided for in another place.

On the question as moved by Mr. Randolph, it was agreed to.

New Hampshire, Connecticut, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, Georgia, ay, 9; New Jersey, no, 1; Massachusetts, not present.

The amendment was made a fourteenth section of article 6.
Article 7, sect. 1, was then taken up.

Mr. L. MARTIN asked what was meant by the committee of detail, in the expression "duties," and "imposts." If the meaning were the same, the former was unnecessary; if different, the matter ought to be made clear.

Mr. WILSON. Duties are applicable to many objects to which the word imposts does not relate. The latter are appropriated to commerce; the former extends to a variety of objects, as stamp duties, &c.

Mr. CARROLL reminded the Convention of the great difference of interests among the states; and doubts the propriety, in that point of view, of letting a majority be a quorum.

Mr. MASON urged the necessity of connecting with the powers levying taxes, duties, &c., the prohibition in article 6, sect. 4, "that no tax should be laid on exports." He was unwilling to trust to its being done in a future article. He hoped the Northern States did not mean to deny the Southern this security. It would hereafter be as desirable to the former, when the latter should become the most populous. He professed his jealousy for the productions of the Southern, or, as he called them, the staple States. He moved to insert the following amendment:

'Provided, that no tax, duty, or imposition, shall be laid by the legislature of the United States on articles exported from any state."

Mr. SHERMAN had no objection to the proviso here, other than that it would derange the parts of the report, as made by the com mittee, to take them in such an order.

Mr. RUTLEDGE. It being of no consequence in what order points are decided, he should vote for the clause as it stood, but on condition that the subsequent part relating to negroes should also be agreed to.

Mr. GOUVERNEUR MORRIS considered such a proviso as inadmissible any where. It was so radically objectionable, that it might cost the whole system the support of some members. He contended that it would not in some cases be equitable to tax imports without taxing exports; and that taxes on exports would be often the most easy and proper of the two.

Mr. MADISON. First, the power of laying taxes on exports is proper in itself; and, as the states cannot with propriety exercise it separately, it ought to be vested in them collectively. Secondly, it might with particular advantage be exercised with regard to articles in which America was not rivalled in foreign markets, as tobacco, &c.; the contract between the French farmers-general and Mr. Morris, stipulating that, if taxes should be laid in America on the export of tobacco, they should be paid by the farmers, showed that it was understood by them, that the price would be thereby raised in America, and consequently the taxes be paid by the European consumer. Thirdly, it would be unjust to the states whose produce was exported by their neighbors, to leave it subject to be taxed by the latter.

This

was a grievance which had already filled New Hampshire, Connecticut, New Jersey, Delaware, and North Carolina, with loud complaints, as it related to imports, and they would be equally authorized by taxes by the states on exports. Fourthly, the Southern States, being most in danger and most needing naval protection, could the less complain if the burden should be somewhat heaviest on them. And, finally, we are not providing for the present moment only; and time will equalize the situation of the states in this matter. He was, for these reasons, against the motion.

Mr. WILLIAMSON considered the clause proposed, against taxes on exports, as reasonable and necessary.

Mr. ELLSWORTH was against taxing exports, but thought the prohibition stood in the most proper place, and was against deranging the order reported by the committee.

Mr. WILSON was decidedly against prohibiting general taxes on exports. He dwelt on the injustice and impolicy of leaving New Jersey, Connecticut, &c., any longer subject to the exactions of their commercial neighbors.

Mr. GERRY thought the legislature could not be trusted with such a power. It might ruin the country. It might be exercised partially, raising one and depressing another part of it.

Mr. GOUVERNEUR MORRIS. However the legislative power may be formed, it will, if disposed, be able to ruin the country. He considered the taxing of exports to be in many cases highly politic. Virginia has found her account in taxing tobacco. All countries having peculiar articles tax the exportation of them, as France her wines and brandies. A tax here on lumber would fall on the West Indies, and punish their restrictions on our trade. The same is true of live stock, and, in some degree, of flour. In case of a dearth in the West Indies, we may extort what we please. Taxes on exports are a necessary source of revenue. For a long time the people of America will not have money to pay direct taxes. Seize and sell their effects, and you push them into revolts.

Mr. MERCER was strenuous against giving Congress power to tax exports. Such taxes are impolitic, as encouraging the raising of articles not meant for exportation. The states had now a right, where their situation permitted, to tax both the imports and the exports of their uncommercial neighbors. It was enough for them to sacrifice one half of it. It had been said, the Southern States had most need of naval protection. The reverse was the case. Were it not for pro

moting the carrying trade of the Northern States, the Southern States could let the trade go into foreign bottoms, where it would not need our protection Virginia, by taxing her tobacco, had given an advantage to that of Maryland.

Mr. SHERMAN. To examine and compare the states, in relation to imports and exports, will be opening a boundless field. He thought the matter had been adjusted, and that imports were to be subject, and exports not, to be taxed. He thought it wrong to tax exports,

VOL. V.

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