Article 1, Section 10, Clause 1
Records of the Federal Convention
[2:439; Madison, 28 Aug.]
Art: XII being taken up.
Mr. Wilson & Mr. Sherman moved to insert after the words "coin money" the words "nor emit bills of credit, nor make any thing but gold & silver coin a tender in payment of debts" making these prohibitions absolute, instead of making the measures allowable (as in the XIII art:) with the consent of the Legislature of the U.S.
Mr. Ghorum thought the purpose would be as well secured by the provision of art: XIII which makes the consent of the Genl. 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 1st part--"nor emit bills of credit"
N. H. ay. Mas. ay. Ct. ay. Pa. ay-- Del. ay. Md divd. Va. no. N-- C-- ay-- S-- C. ay. Geo. ay. [Ayes--8; noes--1; divided--1.]
The remaining part of Mr. Wilson's & Sherman's motion, was agreed to nem: con:
Mr King moved to add, in the words used in the Ordinance of Congs establishing new States, a prohibition on the States to interfere in private contracts.
Mr. Govr. Morris. This would be going too far. There are a thousand laws relating to bringing actions--limitations of actions & which affect contracts-- The Judicial power of the U-- S-- 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 can not be foreseen, where some kind of interference will be proper, & 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 & void.
Mr. Rutlidge moved instead of Mr. King's Motion to insert--"nor pass bills of attainder nor retrospective laws" on which motion
N. H. ay-- Ct. no. N. J. ay. Pa. ay. Del. ay. Md. no. Virga. no. N-- C. ay. S. C. ay. Geo. ay. [Ayes--7; noes--3.]
[2:448; Madison, 29 Aug.]
Mr. Dickenson mentioned to the House that on examining Blackstone's Commentaries, he found that the terms "ex post facto" related to criminal cases only; that they would not consequently restrain the States from retrospective laws in civil cases, and that some further provision for this purpose would be requisite.
[2:619; Madison, 14 Sept.]
The first clause of Art I. sect 10--was altered so as to read--"No State shall enter into any Treaty alliance or confederation; grant letters of marque and reprisal; coin money; emit bills of credit; make any thing but gold & silver coin a tender in payment of debts; pass any bill of attainder, ex post law, or law impairing the obligation of contracts, or grant any title of nobility."
Mr Gerry entered into observations inculcating the importance of public faith, and the propriety of the restraint put on the States from impairing the obligation of contracts--Alledging that Congress ought to be laid under the like prohibitions. he made a motion to that effect. He was not 2ded
[2:640; Mason, 15 Sept.]
Both the general legislature and the State legislature are expressly prohibited making ex post facto laws; though there never was nor can be a legislature but must and will make such laws, when necessity and the public safety require them; which will hereafter be a breach of all the constitutions in the Union, and afford precedents for other innovations.
Farrand, Max, ed. The Records of the Federal Convention of 1787. Rev. ed. 4 vols. New Haven and London: Yale University Press, 1937.
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