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 lapse of time, asking whether it was proper to tie the hands of the states from making provision in such

"The answer to these objections is," Wilson explained, "that retrospective interferences only are to be prohibited.” "Is not that already done," asked Madison, "by the prohibition of ex post facto laws, which will oblige the judges to declare such interferences null and void?"+ But the prohibi tion which, on the motion of Gerry and McHenry, had been adopted six days before, was a limitation on the powers of congress. Instead of King's motion, Rutledge advised to extend that limitation to the individual states; and accordingly they, too, were now forbidden to pass bills of attainder or ex post facto laws by the vote of seven states against Connecticut, Maryland, and Virginia, Massachusetts being absent. So the motion of King, which had received hearty support only from Wilson, was set aside by a very great majority.

The next morning "Dickinson mentioned to the house that, on examining Blackstone's Commentaries, he found that the term ex post facto related to criminal cases only; that the words would consequently not restrain the states from retrospective laws in civil cases; and that some further provision for this purpose would be requisite." # Of this remark the convention at the moment took no note; and the clause of Rutledge was left in the draft then making of the constitution, as the provision against the "stay laws and occlusion of courts" so much warned against by Madison, "the payment or discharge of debts or contracts in any manner different from the agreement of the parties," as demanded by Sherman and Ellsworth. I

*Gilpin, 1443; Elliot, 485. + Gilpin, 1399, 1444; Elliot, 462, 485. Ex post facto, not retrospective, was the form used by Rutledge. Correct Gilpin, 1444, by the Journal of the Convention, in Elliot, i., 271, and compare Elliot, i., 257. #Gilpin, 1450; Elliot, 488.

That no other motion in form or substance was adopted by the convention till after the draft went into the hands of the committee of style and revision, appears from a most careful comparison of the printed journal of the convention, of

Among the prohibitions on the states which the committee of detail reported on the twenty-eighth, was that of laying duties on imports. "Particular states," observed Mason, "may wish to encourage by impost duties certain manufactures for which they enjoy natural advantages, as Virginia the manufacture of hemp, etc." * Madison replied: "The encouragement of manufactures in that mode requires duties, not only on imports directly from foreign countries, but from the other states in the union, which would revive all the mischiefs experienced from the want of a general government over commerce." † King proposed to extend the prohibition not to imports only, but also to exports, so as to prohibit the states from taxing either. Sherman added, that, even with the consent of the United States, the several states should not levy taxes on importations except for the use of the United States. This movement Gouverneur Morris supported as a regulation necessary to prevent the Atlantic states from endeavoring to tax the western states and promote their separate interest by opposing the navigation of the Mississippi, which would drive the western people into the arms of Great Britain. George Clymer of Pennsylvania "thought the encouragement of the western country was suicide on the part of the old states. If the states have such different interests that they cannot be left to regulate their own manufactures, without encountering the interests of other states, it is a proof that they are not fit to compose one nation." King did not wish to "interfere too much with the policy of states respecting their manufactures," holding that such a policy of protection in a separate state might be necessary. "Revenue," he reminded the house, " was the object of the general legislature." # By a large majority the prohibition on the several states of taxing imports was made dependent on the consent of the legislature of the United States; its journal as preserved in manuscript, of every scrap of paper containing any motion or sketch of a motion preserved among the records of the convention in the state department, of the debates of the convention as reported by Madison, and of the several copies of the broadside which were used for the entry of amendments by Washington, by Madison, by Brearley, by Gilman, by Johnson, and another, which seems to be that of the secretary, Jackson. *Gilpin, 1445; Elliot, 486. + Ibid.

Gilpin, 1446, 1447; Elliot, 487. #Gilpin, 1447; Elliot, 478.

and with this limitation it was carried without a dissentient vote. The extending of the prohibition to exports obtained a majority of but one. That taxes on imports or exports by the states, even with the consent of the United States, should be exclusively for the use of the United States, gained every state but Massachusetts and Maryland. The power to protect domestic manufactures by imposts was taken away from the states, and, so far as it is incident to the raising of revenue, was confined to the United States.

The country had been filled with schemes for a division of the thirteen states into two or more separate groups; the convention, following its committee of detail, would suffer no state to enter into any confederation, or even into a treaty or alliance with any confederation. The restriction was absolute. To make it still more clear and peremptory, it was repeated and enlarged in another article, which declared not only that "no state shall enter into any agreement or compact with any foreign power," but that "no state shall enter into any agreement or compact with any other state." * Each state was confined in its government strictly to its own duties within itself.

As to slavery, it was by a unanimous consent treated as a sectional interest; freedom existed in all the states; slavery was a relation established within a state by its own law. Under the sovereignty of the king of Great Britain the laws of a colony did not on British soil prevail over the imperial law. In like manner in America, a slave in one American colony, finding himself on the soil of another, was subject only to the laws of the colony in which he might be found. It remained so on the declaration of independence; not as an innovation, but as the continuance of an established fact. The articles of confederation took no note of slavery, except by withholding the privileges of intercitizenship from the slave. The enumeration of slaves was in the distribution of political power a matter of indifference so long as congress voted by states and proportioned its requisitions of revenue to wealth alone.

In framing a constitution in which representation in one branch of the legislature was made to depend on population, it became the political interest of the states in which slaves *Article xiii. Gilpin, 1239, 1447; Elliot, 381, 487.

abounded to have them included in the enumeration of the population equally with the free negroes and the whites. They so far succeeded that the slave inhabitants were held to be a part of the grand aggregate of the people of the United States, and as such were entitled to bring a proportional increase of representation to the state in which they abode. For this purpose of representation the slaves were by a compromise allowed to be counted, but only as three out of five; should the master see fit to liberate the slave, he became at once a free inhabitant and a citizen with the right of intercitizenship, and of being counted equally in the representative population.

Intercitizenship was the life-blood of the union. The report of the committee of detail, changing only the words "free inhabitants" for "citizens," followed the articles of confederation in declaring that "the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.”* The slave remained a slave, but only in states whose

local laws permitted it.

After three weeks' reflection, Cotesworth Pinckney, on the twenty-eighth of August, avowed himself not satisfied with the article; he wished that "some provision should be included in favor of property in slaves." The article was nevertheless adopted, but not unanimously; South Carolina voted against it, and Georgia was divided, showing that discontent with the want of the protection to slavery was seated in their breasts, even so far as to impugn the great principle which was a necessary condition of union.t

The convention proceeded with its work, and proposed that any person who should flee from justice should be delivered up on the demand of the executive of the state from which he fled. Butler and Charles Pinckney moved, as an amendment, to require fugitive slaves to be delivered up like criminals. "This," answered Wilson, "would oblige the executive of the state to do it at the public expense." "The public," said Sherman, "can with no more propriety seize and surrender a slave or servant than a horse." Butler withdrew his motion and the article as proposed was unanimously adopted. ‡

* Gilpin, 1240; Elliot, 881.

Gilpin, 1447; Elliot, 487. Gilpin, 1447, 1448; Elliot, 487.

The convention was not unprepared to adopt a fugitive slave law, for such a clause formed a part of the ordinance of 1787, adopted in the preceding July for the government of the north-western territory. On the twenty-ninth, Butler, after the opportunity of reflection and consultation, offered a proposal: "That the fugitive slaves escaping into another state shall be delivered up to the person justly claiming their ser vice or labor." This for the moment was agreed to without dissent. The trouble and expense of making the claim fell on the slave-holder; the language of the article did not clearly point out by whom the runaway slave was to be delivered up.

* Gilpin, 1456; Elliot, 492. Compare Gilpin, 1558; Elliot, 564.