Section. 1. All legislative Powers herein granted shall be vested in a

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The Journal of the

Debates in the Convention

Which Framed

The Constitution of the

United States

May-September, 1787

As Recorded by

James Madison

Edited by

Gaillard Hunt

In Two Volumes

Volume II.

G. P. Putnam's Sons

New York and London

=The Knickerbocker Press=

1908

=The Knickerbocker Press, New York=

CONTENTS OF VOLUME II.

PAGE

Chronology vii

Journal of the Constitutional Convention 1

Index 417

* * * * *

FAC-SIMILE.

FACING

PAGE

First Page of the Constitution, reduced 414

CHRONOLOGY OF JAMES MADISON.

1787.

* * * * *

1787

July 19. Advocates election of the Executive by the people.

July 20. Speaks in favor of making the Executive impeachable.

July 21. Seconds proposition to include the Judiciary with

the Executive in power to revise laws.

Moves that judges be appointed by the Executive

with concurrence of two-thirds of Senate.

July 25. Shows the difficulty of devising satisfactory mode

of selecting Executive.

August 7. Advocates liberal suffrage.

August 8. Moves that basis of representation in House of

Representatives be one to not more than 40,000

inhabitants.

Opposes proposition that money bills originate

only in House of Representatives.

August 9. Opposes incorporation in constitution of provision

against persons of foreign birth holding office.

August 10. Moves that legislature have power to compel attendance

of members.

August 11. Moves that Congress publish its journals, except

such parts of Senate proceedings as may be ordered

kept secret.

Advocates a centrally located capital.

August 13. Seconds motion in favor of liberal treatment of

foreigners.

Speaks in favor of participation of Senate in making

appropriations.

August 15. Moves that all bills be passed upon by the Executive

and Judiciary before becoming laws.

August 16. Advocates national power to tax exports.

August 17. Moves that legislature have power to declare war.

August 18. Submits propositions for national power over public

lands, to form governments for new States, over

Indian affairs, over seat of government, to grant

charters of incorporation, copyrights, to establish

a university, grant patents, acquire forts,

magazines, etc.

Speaks in favor of national control of militia.

August 22. Appointed on committee to consider navigation acts.

Moves that States have power to appoint militia

officers under rank of general officers.

Moves to commit question of negative of State laws.

Moves to include the Executive in treaty-making

power.

August 25. Declares it is wrong to admit the idea of property

in men in constitution.

August 27. Suggests that in case of death of President his

council may act.

Moves form of oath for President.

Moves that judges' salaries be fixed.

Expresses doubt whether Judiciary should have power

over cases arising under constitution.

August 28. Moves that States be forbidden to lay embargoes,

export and import duties.

August 29. Speaks in favor of navigation acts.

August 31. Moves that ratification of constitution be by a

majority of States and people.

Advocates ratification by State conventions.

Appointed on committee to consider parts of

constitution and propositions not yet acted upon.

Sept 3. Thinks eventual election of President by

legislature should be made difficult.

Sept 7. Moves that Senate have power to make treaties of

peace without President.

Sept 8. Moves that quorum of Senate be two-thirds of all

the members.

Seconds motion to increase representation.

Sept 14. Suggests that legislature should have power to

grant charters of incorporation.

Sept 17. Signs constitution.

JOURNAL OF THE CONSTITUTIONAL

CONVENTION OF 1787.

THURSDAY JULY 19. IN CONVENTION.

On reconsideration of the vote rendering the Executive re-eligible a 2^d

time, M^r Martin moved to re-instate the words, "to be ineligible a 2^d

time."

M^r Governeur Morris. It is necessary to take into one view all that

relates to the establishment of the Executive; on the due formation of

which must depend the efficacy & utility of the Union among the present

and future States. It has been a maxim in Political Science that

Republican Government is not adapted to a large extent of Country,

because the energy of the Executive Magistracy can not reach the extreme

parts of it. Our Country is an extensive one. We must either then

renounce the blessings of the Union, or provide an Executive with

sufficient vigor to pervade every part of it. This subject was of so

much importance that he hoped to be indulged in an extensive view of it.

One great object of the Executive is to controul the Legislature. The

Legislature will continually seek to aggrandize & perpetuate themselves;

and will seize those critical moments produced by war, invasion or

convulsion for that purpose. It is necessary then that the Executive

Magistrate should be the guardian of the people, even of the lower

classes, ag^{st} Legislative tyranny, against the Great & the wealthy

who in the course of things will necessarily compose the Legislative

body. Wealth tends to corrupt the mind to nourish its love of power, and

to stimulate it to oppression. History proves this to be the spirit of

the opulent. The check provided in the 2^d branch was not meant as a

check on Legislative usurpations of power, but on the abuse of lawful

powers, on the propensity in the 1^{st} branch to legislate too much to

run into projects of paper money & similar expedients. It is no check on

Legislative tyranny. On the contrary it may favor it, and if the 1^{st}

branch can be seduced may find the means of success. The Executive

therefore ought to be so constituted as to be the great protector of the

Mass of the people.--It is the duty of the Executive to appoint the

officers & to command the forces of the Republic: to appoint 1.

ministerial officers for the administration of public affairs. 2.

officers for the dispensation of Justice. Who will be the best Judges

whether these appointments be well made? The people at large, who will

know, will see, will feel the effects of them. Again who can judge so

well of the discharge of military duties for the protection & security

of the people, as the people themselves who are to be protected &

secured? He finds too that the Executive is not to be re-eligible. What

effect will this have? 1. it will destroy the great incitement to merit

public esteem by taking away the hope of being rewarded with a

reappointment. It may give a dangerous turn to one of the strongest

passions in the human breast. The love of fame is the great spring to

noble & illustrious actions. Shut the Civil road to Glory & he may be

compelled to seek it by the sword. 2. It will tempt him to make the most

of the short space of time allotted him, to accumulate wealth and

provide for his friends. 3. It will produce violations of the very

constitution it is meant to secure. In moments of pressing danger the

tried abilities and established character of a favorite magistrate will

prevail over respect for the forms of the Constitution. The Executive is

also to be impeachable. This is a dangerous part of the plan. It will

hold him in such dependence that he will be no check on the Legislature,

will not be a firm guardian of the people and of the public interest. He

will be the tool of a faction, of some leading demagogue in the

Legislature. These then are the faults of the Executive establishment as

now proposed. Can no better establish^t be devised? If he is to be the

Guardian of the people let him be appointed by the people? If he is to

be a check on the Legislature let him not be impeachable. Let him be of

short duration, that he may with propriety be re-eligible. It has been

said that the candidates for this office will not be known to the

people. If they be known to the Legislature, they must have such a

notoriety and eminence of Character, that they cannot possibly be

unknown to the people at large. It cannot be possible that a man shall

have sufficiently distinguished himself to merit this high trust without

having his character proclaimed by fame throughout the Empire. As to the

danger from an Unimpeachable magistrate he could not regard it as

formidable. There must be certain great Officers of State; a minister of

finance, of war, of foreign affairs &c. These he presumes will exercise

their functions in subordination to the Executive, and will be amenable

by impeachment to the Public Justice. Without these ministers the

Executive can do nothing of consequence. He suggested a biennial

election of the Executive at the time of electing the 1^{st} branch, and

the Executive to hold over, so as to prevent any interregnum in the

administration. An election by the people at large throughout so great

an extent of country could not be influenced by those little

combinations and those momentary lies, which often decide popular

elections within a narrow sphere. It will probably, be objected that the

election will be influenced by the members of the Legislature;

particularly of the 1^{st} branch, and that it will be nearly the same

thing with an election by the Legislature itself. It could not be denied

that such an influence would exist. But it might be answered that as the

Legislature or the candidates for it would be divided, the enmity of one

part would counteract the friendship of another; that if the

administration of the Executive were good, it would be unpopular to

oppose his re-election, if bad it ought to be opposed & a reappointm^t

prevented; and lastly that in every view this indirect dependence on the

favor of the Legislature could not be so mischievous as a direct

dependence for his appointment. He saw no alternative for making the

Executive independent of the Legislature but either to give him his

office for life, or make him eligible by the people. Again, it might be

objected that two years would be too short a duration. But he believes

that as long as he should behave himself well, he would be continued in

his place. The extent of the Country would secure his re-election

ag^{st} the factions & discontents of particular States. It deserved

consideration also that such an ingredient in the plan would render it

extremely palatable to the people. These were the general ideas which

occurred to him on the subject, and which led him to wish & move that

the whole constitution of the Executive might undergo reconsideration.

M^r Randolph urged the motion of M^r L. Martin for restoring the words

making the Executive ineligible a 2^d time. If he ought to be

independent, he should not be left under a temptation to court a

re-appointment. If he should be re-appointable by the Legislature, he

will be no check on it. His revisionary power will be of no avail. He

had always thought & contended as he still did that the danger

apprehended by the little States was chimerical; but those who thought

otherwise ought to be peculiarly anxious for the motion. If the

Executive be appointed, as has been determined, by the Legislature, he

will probably be appointed either by joint ballot of both houses, or be

nominated by the 1^{st} and appointed by the 2^d branch. In either case

the large States will preponderate. If he is to court the same influence

for his re-appointment, will he not make his revisionary power, and all

the other functions of his administration subservient to the views of

the large States. Besides, is there not great reason to apprehend that

in case he should be re-eligible, a false complaisance in the

Legislature might lead them to continue an unfit man in office in

preference to a fit one. It has been said that a constitutional bar to

re-appointment will inspire unconstitutional endeavours to perpetuate

himself. It may be answered that his endeavours can have no effect

unless the people be corrupt to such a degree as to render all

precautions hopeless; to which may be added that this argument supposes

him to be more powerful & dangerous, than other arguments which have

been used, admit, and consequently calls for stronger fetters on his

authority. He thought an election by the Legislature with an incapacity

to be elected a second time would be more acceptable to the people than

the plan suggested by M^r Gov^r Morris.

M^r King did not like the ineligibility. He thought there was great

force in the remark of M^r Sherman, that he who has proved himself most

fit for an Office, ought not to be excluded by the constitution from

holding it. He would therefore prefer any other reasonable plan that

could be substituted. He was much disposed to think that in such cases

the people at large would chuse wisely. There was indeed some difficulty

arising from the improbability of a general concurrence of the people in

favor of any one man. On the whole he was of opinion that an appointment

by electors chosen by the people for the purpose, would be liable to

fewest objections.

M^r Patterson's ideas nearly coincided he said with those of M^r King.

He proposed that the Executive should be appointed by Electors to be

chosen by the States in a ratio that would allow one elector to the

smallest and three to the largest States.

M^r Wilson. It seems to be the unanimous sense that the Executive should

not be appointed by the Legislature, unless he be rendered in-eligible a

2^d time: he perceived with pleasure that the idea was gaining ground,

of an election mediately or immediately by the people.

M^r Madison. If it be a fundamental principle of free Gov^t that the

Legislative, Executive & Judiciary powers should be _separately_

exercised, it is equally so that they be _independently_ exercised.

There is the same & perhaps greater reason why the Executive sh^d be

independent of the Legislature, than why the Judiciary should. A

coalition of the two former powers would be more immediately & certainly

dangerous to public liberty. It is essential then that the appointment

of the Executive should either be drawn from some source, or held by

some tenure that will give him a free agency with regard to the

Legislature. This could not be if he was to be appointable from time to

time by the Legislature. It was not clear that an appointment in the

1^{st} instance even with an ineligibility afterwards would not

establish an improper connection between the two departments. Certain it

was that the appointment would be attended with intrigues and

contentions that ought not to be unnecessarily admitted. He was disposed

for these reasons to refer the appointment to some other source. The

people at large was in his opinion the fittest in itself. It would be as

likely as any that could be devised to produce an Executive Magistrate

of distinguished Character. The people generally could only know & vote

for some Citizen whose merits had rendered him an object of general

attention & esteem. There was one difficulty however of a serious nature

attending an immediate choice by the people. The right of suffrage was

much more diffusive in the Northern than the Southern States; and the

latter could have no influence in the election on the score of the

Negroes. The substitution of electors obviated this difficulty and

seemed on the whole to be liable to fewest objections.

M^r Gerry. If the Executive is to be elected by the Legislature he

certainly ought not to be re-eligible. This would make him absolutely

dependent. He was ag^{st} a popular election. The people are uninformed,

and would be misled by a few designing men. He urged the expediency of

an appointment of the Executive by Electors to be chosen by the State

Executives. The people of the States will then choose the 1^{st} branch;

the legislatures of the States the 2^d branch of the National

Legislature, and the Executives of the States, the National Executive.

This he thought would form a strong attachm^t in the States to the

National System. The popular mode of electing the chief Magistrate would

certainly be the worst of all. If he should be so elected & should do

his duty, he will be turned out for it like Gov^r Bowdoin in Mass^{ts} &

President Sullivan in N. Hampshire.

On the question on M^r Gov^r Morris motion to reconsider generally the

Constitution of the Executive

Mas. ay. C^t ay. N. J. ay. & all the others ay.

M^r Elseworth moved to strike out the appointm^t by the Nat^l

Legislature, and to insert, to be chosen by electors appointed by the

Legislatures of the States in the following ratio; to wit--one for each

State not exceeding 200,000[1] inhab^{ts} two for each above y^t number

& not exceeding 300,000. and three for each State exceeding

300,000.--M^r Broome 2^{ded}. the motion.[2]

[1] The Journal gives it 100,000.--_Journal of the Federal

Convention_, 190.

[2] "Mr. Broom is a plain good Man, with some abilities, but

nothing to render him conspicuous. He is silent in public,

but chearful and conversable in private. He is about 35

years old."--Pierce's Notes, _Am. Hist. Rev._, iii., 330.

M^r Rutlidge was opposed to all the modes, except the appointm^t by the

Nat^l Legislature. He will be sufficiently independent, if he be not

re-eligible.

M^r Gerry preferred the motion of M^r Elseworth to an appointm^t by the

Nat^l Legislature, or by the people; tho' not to an app^t by the State

Executives. He moved that the electors proposed by M^r E. should be 25

in number, and allotted in the following proportion. to N. H. 1. to Mas.

3. to R. I. 1. to Con^t 2. to N. Y. 2. N. J. 2. P^a 3. Del. 1. M^d 2.

V^a 3. N. C. 2. S. C. 2. Geo. 1.

The question as moved by M^r Elseworth being divided, on the 1^{st} part

shall y^e Nat^l Executive be appointed by Electors?

Mas. div^d. Con^t ay. N. J. ay. P^a ay. Del. ay. M^d ay. V^a ay.

N. C. no. S. C. no. Geo. no.

On 2^d part shall the Electors be chosen by the State Legislatures?

Mas. ay. Con^t ay. N. J. ay. P^a ay. Del. ay. M^d ay. V^a no.

N. C. ay. S. C. no. Geo. ay.

The part relating to the ratio in which the States s^d chuse electors

was postponed nem. con.

M^r L. Martin moved that the Executive be ineligible a 2^d time.

M^r Williamson, 2^{ds} the motion. He had no great confidence in

Electors to be chosen for the special purpose. They would not be the

most respectable citizens; but persons not occupied in the high offices

of Gov^t. They would be liable to undue influence, which might the more

readily be practised as some of them will probably be in appointment 6

or 8 months before the object of it comes on.

M^r Elseworth supposed any persons might be appointed Electors,

excepting, solely, members of the Nat^l Legislature.

On the question Shall he be ineligible a 2^d time?

Mas. no. C^t no. N. J. no. P^a no. Del. no. M^d no. V^a no.

N. C. ay. S. C. ay. Geo. no.

On the question Shall the Executive continue for 7 years? It passed in

the negative

Mas. div^d. Con^t ay.[3] N. J. no. P^a no. Del. no. M^d no.

V^a no. N. C. div^d. S. C. ay. Geo. ay.

[3] In the printed Journal Con^t, no: N. Jersey ay.--Madison's

Note.

M^r King was afraid we sh^d shorten the term too much.

M^r Gov^r Morris was for a short term, in order to avoid impeach^{ts}

which w^d be otherwise necessary.

M^r Butler was ag^{st} the frequency of the elections. Geo. & S. C. were

too distant to send electors often.

M^r Elseworth was for 6 years. If the elections be too frequent, the

Executive will not be firm eno. There must be duties which will make him

unpopular for the moment. There will be _outs_ as well as _ins_. His

administration therefore will be attacked and misrepresented.

M^r Williamson was for 6 years. The expence will be considerable & ought

not to be unnecessarily repeated. If the Elections are too frequent, the

best men will not undertake the service and those of an inferior

character will be liable to be corrupted.

On the question for 6 years?

Mas. ay. Con^t ay. N. J. ay. P^a ay. Del. no. M^d ay. V^a ay.

N. C. ay. S. C. ay. Geo. ay.

Adjourned

FRIDAY JULY 20. IN CONVENTION.

The postponed Ratio of Electors for appointing the Executive; to wit 1

for each State whose inhabitants do not exceed 100.000. &c. being taken

up.

M^r Madison observed that this would make in time all or nearly all the

States equal. Since there were few that would not in time contain the

number of inhabitants intitling them to 3 Electors; that this ratio

ought either to be made temporary, or so varied as that it would adjust

itself to the growing population of the States.

M^r Gerry moved that in the _1^{st} instance_ the Electors should be

allotted to the States in the following ratio: to N. H. 1. Mass. 3. R.

I. 1. Con^t 2. N. Y. 2. N. J. 2. P^a 3. Del. 1. M^d 2. V^a 3. N. C. 2.

S. C. 2. Geo. 1.

On the question to postpone in order to take up this motion of M^r

Gerry. It passed in the affirmative

Mass. ay. Con^t no. N. J. no. P^a ay. Del. no. M^d no. V^a ay.

N. C. ay. S. C. ay. Geo. ay.

M^r Elseworth moved that 2 Electors be allotted to N. H. Some rule ought

to be pursued; and N. H. has more than 100,000 inhabitants. He thought

it would be proper also to allot 2. to Georgia.

M^r Broom & M^r Martin moved to postpone M^r Gerry's allotment of

Electors, leaving a fit ratio to be reported by the Committee to be

appointed for detailing the Resolutions.

On this motion,

Mass. no. C^t no. N. J. ay. P^a no. Del. ay. M^d ay. V^a no.

N. C. no. S. C. no. Geo. no.

M^r Houston 2^{ded} the motion of M^r Elseworth to add another Elector

to N. H. & Georgia. On the Question;

Mass. no. C^t ay. N. J. no. P^a no. Del. no. M^d no. V^a no.

N. C. no. S. C. ay. Geo. ay.

M^r Williamson moved as an amendment to M^r Gerry's allotment of

Electors in the 1^{st} instance that in future elections of the Nat^l

Executive, the number of Electors to be appointed by the several States

shall be regulated by their respective numbers of Representatives in the

1^{st} branch pursuing as nearly as may be the present proportions.

On question on M^r Gerry's ratio of Electors

Mass. ay. C^t ay. N. J. no. P^a ay. Del. no. M^d no. V^a ay.

N. C. ay. S. C. ay. Geo. no.

"to be removable on impeachment and conviction for malpractice or

neglect of duty," see Resol. 9.

M^r Pinkney & M^r Gov^r Morris moved to strike out this part of the

Resolution. M^r P. observ^d he ought not to be impeachable whilst in

office.

M^r Davie. If he be not impeachable whilst in office, he will spare no

efforts or means whatever to get himself re-elected. He considered this

as an essential security for the good behaviour of the Executive.

M^r Wilson concurred in the necessity of making the Executive

impeachable whilst in office.

M^r Gov^r Morris. He can do no criminal act without Coadjutors who may

be punished. In case he should be re-elected, that will be a sufficient

proof of his innocence. Besides who is to impeach? Is the impeachment to

suspend his functions. If it is not the mischief will go on. If it is

the impeachment will be nearly equivalent to a displacement, and will

render the Executive dependent on those who are to impeach.

Col. Mason. No point is of more importance than that the right of

impeachment should be continued. Shall any man be above Justice? Above

all shall that man be above it, who can commit the most extensive

injustice? When great crimes were committed he was for punishing the

principal as well as the Coadjutors. There had been much debate &

difficulty as to the mode of chusing the Executive. He approved of that

which had been adopted at first, namely of referring the appointment to

the Nat^l Legislature. One objection ag^{st} Electors was the danger of

their being corrupted by the Candidates, & this furnished a peculiar

reason in favor of impeachments whilst in office. Shall the man who has

practised corruption & by that means procured his appointment in the

first instance, be suffered to escape punishment, by repeating his

guilt?

Doc^r Franklin was for retaining the clause as favorable to the

Executive. History furnishes one example only of a first Magistrate

being formally brought to public Justice. Every body cried out ag^{st}

this as unconstitutional. What was the practice before this in cases

where the Chief Magistrate rendered himself obnoxious? Why recourse was

had to assassination in w^{ch} he was not only deprived of his life but

of the opportunity of vindicating his character. It w^d be the best way

therefore to provide in the Constitution for the regular punishment of

the Executive where his misconduct should deserve it, and for his

honorable acquittal where he should be unjustly accused.

M^r Gov^r Morris admits corruption & some few other offences to be such

as ought to be impeachable; but thought the cases ought to be enumerated

& defined.

M^r Madison thought it indispensable that some provision should be made

for defending the Community ag^{st} the incapacity, negligence or

perfidy of the chief Magistrate. The limitation of the period of his

service was not a sufficient security. He might lose his capacity after

his appointment. He might pervert his administration into a scheme of

peculation or oppression. He might betray his trust to foreign powers.

The case of the Executive Magistracy was very distinguishable, from that

of the Legislature or any other public body, holding offices of limited

duration. It could not be presumed that all or even a majority of the

members of an Assembly would either lose their capacity for discharging,

or be bribed to betray, their trust. Besides the restraints of their

personal integrity & honor, the difficulty of acting in concert for

purposes of corruption was a security to the Public. And if one or a few

members only should be seduced, the soundness of the remaining members,

would maintain the integrity and fidelity of the body. In the case of

the Executive Magistracy which was to be administered by a single man,

loss of capacity or corruption was more within the compass of probable

events, and either of them might be fatal to the Republic.

M^r Pinkney did not see the necessity of impeachments. He was sure they

ought not to issue from the Legislature who would in that case hold them

as a rod over the Executive and by that means effectually destroy his

independence. His revisionary power in particular would be rendered

altogether insignificant.

M^r Gerry urged the necessity of impeachments. A good Magistrate will

not fear them. A bad one ought to be kept in fear of them. He hoped the

maxim would never be adopted here that the chief magistrate could do no

wrong.

M^r King expressed his apprehensions that an extreme caution in favor of

liberty might enervate the Government we were forming. He wished the

House to recur to the primitive axiom that the three great departments

of Gov^{ts} should be separate & independent: that the Executive &

Judiciary should be so as well as the Legislative: that the Executive

should be so equally with the Judiciary. Would this be the case, if the

Executive should be impeachable? It had been said that the Judiciary

would be impeachable. But it should have been remembered at the same

time that the Judiciary hold their places not for a limited time, but

during good behaviour. It is necessary therefore that a form should be

established for trying misbehaviour. Was the Executive to hold his place

during good behaviour? The Executive was to hold his place for a limited

term like the members of the Legislature. Like them, particularly the

Senate whose members would continue in appointm^t the same term of 6

years he would periodically be tried for his behaviour by his electors,

who would continue or discontinue him in trust according to the manner

in which he had discharged it. Like them therefore, he ought to be

subject to no intermediate trial, by impeachment. He ought not to be

impeachable unless he held his office during good behavior, a tenure

which would be most agreeable to him; provided an independent and

effectual forum could be devised. But under no circumstances ought he to

be impeachable by the Legislature. This would be destructive of his

independence and of the principles of the Constitution. He relied on the

vigor of the Executive as a great security for the public liberties.

M^r Randolph. The propriety of impeachments was a favorite principle

with him. Guilt wherever found ought to be punished. The Executive will

have great opportunitys of abusing his power; particularly in time of

war when the military force, and in some respects the Public money will

be in his hands. Should no regular punishment be provided, it will be

irregularly inflicted by tumults & insurrections. He is aware of the

necessity of proceeding with a cautious hand, and of excluding as much

as possible the influence of the Legislature from the business. He

suggested for consideration an idea which had fallen (from Col.

Hamilton) of composing a forum out of the Judges belonging to the

States: and even of requiring some preliminary inquest whether just

ground of impeachment existed.

Doct^r Franklin mentioned the case of the Prince of Orange during the

late war. An agreement was made between France & Holland; by which their

two fleets were to unite at a certain time & place. The Dutch fleet did

not appear. Every body began to wonder at it. At length it was suspected

that the Statholder was at the bottom of the matter. This suspicion

prevailed more & more. Yet as he could not be impeached and no regular

examination took place, he remained in his office, and strengthening his

own party, as the party opposed to him became formidable, he gave birth

to the most violent animosities & contentions. Had he been impeachable,

a regular & peaceable enquiry would have taken place and he would if

guilty have been duly punished, if innocent restored to the confidence

of the Public.

M^r King remarked that the case of the Statholder was not applicable. He

held his place for life, and was not periodically elected. In the former

case impeachments are proper to secure good behaviour. In the latter

they are unnecessary; the periodical responsibility to the electors

being an equivalent security.

M^r Wilson observed that if the idea were to be pursued, the Senators

who are to hold their places during the same term with the Executive,

ought to be subject to impeachment & removal.

M^r Pinkney apprehended that some gentlemen reasoned on a supposition

that the Executive was to have powers which would not be committed to

him: He presumed that his powers would be so circumscribed as to render

impeachments unnecessary.

M^r Gov^r Morris's opinion had been changed by the arguments used in the

discussion. He was now sensible of the necessity of impeachments, if the

Executive was to continue for any length of time in office. Our

Executive was not like a Magistrate having a life interest, much less

like one having an hereditary interest in his office. He may be bribed

by a greater interest to betray his trust; and no one would say that we

ought to expose ourselves to the danger of seeing the first Magistrate

in foreign pay, without being able to guard ag^{st} it by displacing

him. One would think the King of England well secured ag^{st} bribery.

He has as it were a fee simple in the whole Kingdom. Yet Charles II. was

bribed by Louis XIV. The Executive ought therefore to be impeachable for

treachery: Corrupting his electors, and incapacity were other causes of

impeachment. For the latter he should be punished not as a man, but as

an officer, and punished only by degradation from his office. This

Magistrate is not the King but the prime Minister. The people are the

King. When we make him amenable to Justice however we should take care

to provide some mode that will not make him dependent on the

Legislature.

It was moved & 2^{ded} to postpone the question of impeachments which

was negatived, Mas. & S. Carolina only being ay.

On y^e Question, Shall the Executive be removable on impeachments &c.?

Mass. no. C^t ay. N. J. ay. P^a ay. Del. ay. M^d ay. V^a ay.

N. C. ay. S. C. no. Geo. ay.

"Executive to receive fixed compensation." Agreed to nem. con.

"to be paid out of the national Treasury" agreed to, N. Jersey only in

the negative.

M^r Gerry & Gov^r Morris moved that the Electors of the Executive shall

not be members of the Nat^l Legislature, nor officers of the U. States,

nor shall the Electors themselves be eligible to the supreme magistracy.

Agreed to nem. con.

Doc^r McClurg[4] asked whether it would not be necessary, before a

Committee for detailing the Constitution should be appointed, to

determine on the means by which the Executive, is to carry the laws into

effect, and to resist combinations ag^{st} them. Is he to have a

military force for the purpose, or to have the command of the Militia,

the only existing force that can be applied to that use? As the

Resolutions now stand the Committee will have no determinate directions

on this great point.

[4] "Mr. McClurg is a learned physician, but having never

appeared before in public life his character as a politician

is not sufficiently known. He attempted once or twice to

speak, but with no great success. It is certain that he has

a foundation of learning, on which, if he pleases, he may

erect a character of high renown. The Doctor is about 38

years of age, a Gentleman of great respectability, and of a

fair and unblemished character."--Pierce's Notes, _Am. Hist.

Rev._, iii., 332.

M^r Wilson thought that some additional directions to the Committee w^d

be necessary.

M^r King. The Committee are to provide for the end. Their discretionary

power to provide for the means is involved according to an established

axiom.

Adjourned.

SATURDAY JULY 21 IN CONVENTION

M^r Williamson moved that the Electors of the Executive should be paid

out of the National Treasury for the Service to be performed by them.

Justice required this: as it was a national service they were to render.

The motion was agreed to Nem. Con.

M^r Wilson moved as an amendment to Resol^n 10. that the supreme Nat^l

Judiciary should be associated with the Executive in the Revisionary

power. This proposition had been before made and failed: but he was so

confirmed by reflection in the opinion of its utility, that he thought

it incumbent on him to make another effort: The Judiciary ought to have

an opportunity of remonstrating ag^{st} projected encroachments on the

people as well as on themselves. It had been said that the Judges, as

expositors of the Laws would have an opportunity of defending their

constitutional rights. There was weight in this observation; but this

power of the Judges did not go far enough. Laws may be unjust, may be

unwise, may be dangerous, may be destructive; and yet may not be so

unconstitutional as to justify the Judges in refusing to give them

effect. Let them have a share in the Revisionary power, and they will

have an opportunity of taking notice of these characters of a law, and

of counteracting, by the weight of their opinions the improper views of

the Legislature.--M^r Madison 2^{ded} the motion.

M^r Ghorum did not see the advantage of employing the Judges in this

way. As Judges they are not to be presumed to possess any peculiar

knowledge of the mere policy of public measures. Nor can it be necessary

as a security for their constitutional rights. The Judges in England

have no such additional provision for their defence, yet their

jurisdiction is not invaded. He thought it would be best to let the

Executive alone be responsible, and at most to authorize him to call on

Judges for their opinions.

M^r Elseworth approved heartily of the motion. The aid of the Judges

will give more wisdom & firmness to the Executive. They will possess a

systematic and accurate knowledge of the Laws, which the Executive

cannot be expected always to possess. The Law of Nations also will

frequently come into question. Of this the Judges alone will have

competent information.

M^r Madison considered the object of the motion as of great importance

to the meditated Constitution. It would be useful to the Judiciary

departm^t by giving it an additional opportunity of defending itself

ag^{st} Legislative encroachments: It would be useful to the Executive,

by inspiring additional confidence & firmness in exerting the

revisionary power: It would be useful to the Legislature by the valuable

assistance it would give in preserving a consistency, conciseness,

perspicuity & technical propriety in the laws, qualities peculiarly

necessary; & yet shamefully wanting in our republican Codes. It would

moreover be useful to the Community at large as an additional check

ag^{st} a pursuit of those unwise & unjust measures which constituted so

great a portion of our calamities. If any solid objection could be urged

ag^{st} the motion, it must be on the supposition that it tended to give

too much strength either to the Executive or Judiciary. He did not think

there was the least ground for this apprehension. It was much more to be

apprehended that notwithstanding this co-operation of the two

departments, the Legislature would still be an overmatch for them.

Experience in all the States had evinced a powerful tendency in the

Legislature to absorb all power into its vortex. This was the real

source of danger to the American Constitutions; & suggested the

necessity of giving every defensive authority to the other departments

that was consistent with Republican principles.

M^r Mason said he had always been a friend to this provision. It would

give a confidence to the Executive, which he would not otherwise have,

and without which the Revisionary power would be of little avail.

M^r Gerry did not expect to see this point which had undergone full

discussion, again revived. The object he conceived of the Revisionary

power was merely to secure the Executive department ag^{st} legislative

encroachment. The Executive therefore who will best know and be ready to

defend his rights ought alone to have the defence of them. The motion

was liable to strong objections. It was combining & mixing together the

Legislative & the other departments. It was establishing an improper

coalition between the Executive & Judiciary departments. It was making

statesmen of the Judges; and setting them up as the guardians of the

Rights of the people. He relied for his part on the Representatives of

the people as the guardians of their Rights & interests. It was making

the Expositors of the Laws, the Legislators which ought never to be

done. A better expedient for correcting the laws, would be to appoint as

had been done in Pen^a, a person or persons of proper skill, to draw

bills for the Legislature.

M^r Strong thought with M^r Gerry that the power of making ought to be

kept distinct from that of expounding, the laws. No maxim was better

established. The Judges in exercising the function of expositors might

be influenced by the part they had taken in framing the laws.

M^r Gov^r Morris. Some check being necessary on the Legislature, the

question is in what hands it should be lodged. On one side it was

contended that the Executive alone ought to exercise it. He did not

think that an Executive appointed for 6 years, and impeachable whilst in

office w^d be a very effectual check. On the other side it was urged

that he ought to be reinforced by the Judiciary department. Ag^{st} this

it was objected that Expositors of laws ought to have no hand in making

them, and arguments in favor of this had been drawn from England. What

weight was due to them might be easily determined by an attention to

facts. The truth was that the Judges in England had a great share in y^e

Legislation. They are consulted in difficult & doubtful cases. They may

be & some of them are members of the Legislature. They are or may be

members of the privy Council, and can there advise the Executive as they

will do with us if the motion succeeds. The influence the English Judges

may have in the latter capacity in strengthening the Executive check can

not be ascertained, as the King by his influence in a manner dictates

the laws. There is one difference in the two cases however which

disconcerts all reasoning from the British to our proposed Constitution.

The British Executive has so great an interest in his prerogatives and

such powerful means of defending them that he will never yield any part

of them. The interest of our Executive is so inconsiderable & so

transitory, and his means of defending it so feeble, that there is the

justest ground to fear his want of firmness in resisting incroachments.

He was extremely apprehensive that the auxiliary firmness & weight of

the Judiciary would not supply the deficiency. He concurred in thinking

the public liberty in greater danger from Legislative usurpations than

from any other source. It had been said that the Legislature ought to be

relied on as the proper Guardians of liberty. The answer was short and

conclusive. Either bad laws will be pushed or not. On the latter

supposition no check will be wanted. On the former a strong check will

be necessary: and this is the proper supposition. Emissions of paper

money, largesses to the people--a remission of debts and similar

measures, will at some times be popular, and will be pushed for that

reason. At other times such measures will coincide with the interests of

the Legislature themselves, & that will be a reason not less cogent for

pushing them. It may be thought that the people will not be deluded and

misled in the latter case. But experience teaches another lesson. The

press is indeed a great means of diminishing the evil, yet it is found

to be unable to prevent it altogether.

M^r L. Martin, considered the association of the Judges with the

Executive as a dangerous innovation; as well as one which could not

produce the particular advantage expected from it. A knowledge of

Mankind, and of Legislative affairs cannot be presumed to belong in a

higher degree to the Judges than to the Legislature. And as to the

Constitutionality of laws, that point will come before the Judges in

their proper official character. In this character they have a negative

on the laws. Join them with the Executive in the Revision and they will

have a double negative. It is necessary that the Supreme Judiciary

should have the confidence of the people. This will soon be lost, if

they are employed in the task of remonstrating ag^{st} popular measures

of the Legislature. Besides in what mode & proportion are they to vote

in the Council of Revision?

M^r Madison could not discover in the proposed association of the Judges

with the Executive in the Revisionary check on the Legislature any

violation of the maxim which requires the great departments of power to

be kept separate & distinct. On the contrary he thought it an auxiliary

precaution in favor of the maxim. If a Constitutional discrimination of

the departments on paper were a sufficient security to each ag^{st}

encroachments of the others, all further provisions would indeed be

superfluous. But experience had taught us a distrust of that security;

and that it is necessary to introduce such a balance of powers and

interests as will guarantee the provisions on paper. Instead therefore

of contenting ourselves with laying down the Theory in the Constitution

that each department ought to be separate & distinct, it was proposed to

add a defensive power to each which should maintain the Theory in

practice. In so doing we did not blend the departments together. We

erected effectual barriers for keeping them separate. The most regular

example of this theory was in the British Constitution. Yet it was not

only the practice there to admit the Judges to a seat in the

legislature, and in the Executive Councils, and to submit to their

previous examination all laws of a certain description, but it was a

part of their Constitution that the Executive might negative any law

whatever; a part of _their_ Constitution which had been universally

regarded as calculated for the preservation of the whole. The objection

ag^{st} a union of the Judiciary & Executive branches in the revision of

the laws, had either no foundation or was not carried far enough. If

such a Union was an improper mixture of powers, or such a Judiciary

check on the laws, was inconsistent with the Theory of a free

Constitution, it was equally so to admit the Executive to any

participation in the making of laws; and the revisionary plan ought to

be discarded altogether.

Col. Mason observed that the defence of the Executive was not the sole

object of the Revisionary power. He expected even greater advantages

from it. Notwithstanding the precautions taken in the Constitution of

the Legislature, it would still so much resemble that of the individual

States, that it must be expected frequently to pass unjust and

pernicious laws. This restraining power was therefore essentially

necessary. It would have the effect not only of hindering the final

passage of such laws; but would discourage demagogues from attempting to

get them passed. It has been said (by M^r L. Martin) that if the Judges

were joined in this check on the laws, they would have a double

negative, since in their expository capacity of Judges they would have

one negative. He would reply that in this capacity they could impede in

one case only, the operation of laws. They could declare an

unconstitutional law void. But with regard to every law however unjust

oppressive or pernicious, which did not come plainly under this

description, they would be under the necessity as Judges to give it a

free course. He wished the further use to be made of the Judges, of

giving aid in preventing every improper law. Their aid will be the more

valuable as they are in the habit and practice of considering laws in

their true principles, and in all their consequences.

M^r Wilson. The separation of the departments does not require that they

should have separate objects but that they should act separately tho' on

the same objects. It is necessary that the two branches of the

Legislature should be separate and distinct, yet they are both to act

precisely on the same object.

M^r Gerry had rather give the Executive an absolute negative for its own

defence than thus to blend together the Judiciary & Executive

departments. It will bind them together in an offensive and defensive

alliance ag^{st} the Legislature, and render the latter unwilling to

enter into a contest with them.

M^r Gov^r Morris was surprised that any defensive provision for securing

the effectual separation of the departments should be considered as an

improper mixture of them. Suppose that the three powers, were to be

vested in three persons, by compact among themselves; that one was to

have the power of making, another of executing, and a third of judging,

the laws. Would it not be very natural for the two latter after having

settled the partition on paper, to observe, and would not candor oblige

the former to admit, that as a security ag^{st} legislative acts of the

former which might easily be so framed as to undermine the powers of the

two others, the two others ought to be armed with a veto for their own

defence, or at least to have an opportunity of stating their objections

ag^{st} acts of encroachment? And would any one pretend that such a

right tended to blend & confound powers that ought to be separately

exercised? As well might it be said that If three neighbours had three

distinct farms, a right in each to defend his farm ag^{st} his

neighbours, tended to blend the farms together.

M^r Ghorum. All agree that a check on the Legislature is necessary. But

there are two objections ag^{st} admitting the Judges to share in it

which no observations on the other side seem to obviate, the 1^{st} is

that the Judges ought to carry into the exposition of the laws no

prepossessions with regard to them. 2^d that as the Judges will

outnumber the Executive, the revisionary check would be thrown entirely

out of the Executive hands, and instead of enabling him to defend

himself, would enable the Judges to sacrifice him.

M^r Wilson. The proposition is certainly not liable to all the

objections which have been urged ag^{st} it. According (to M^r Gerry) it

will unite the Executive & Judiciary in an offensive & defensive

alliance ag^{st} the Legislature. According to M^r Ghorum it will lead

to a subversion of the Executive by the Judiciary influence. To the

first gentleman the answer was obvious: that the joint weight of the two

departments was necessary to balance the single weight of the

Legislature. To the 1^{st} objection stated by the other Gentleman it

might be answered that supposing the prepossession to mix itself with

the exposition, the evil would be overbalanced by the advantages

promised by the expedient. To the 2^d objection, that such a rule of

voting might be provided in the detail as would guard ag^{st} it.

M^r Rutlidge thought the Judges of all men the most unfit to be

concerned in the revisionary Council. The Judges ought never to give

their opinion on a law till it comes before them. He thought it equally

unnecessary. The Executive could advise with the officers of State, as

of war, finance &c. and avail himself of their information & opinions.

On Question on M^r Wilson's motion for joining the Judiciary in the

Revision of laws it passed in the negative--

Mass. no. Con^t ay. N. J. not present. P^a div^d. Del. no.

M^d ay. V^a ay. N. C. no. S. C. no. Geo. div^d.

Resol. 10, giving the Ex a qualified veto, without the amend^t was then

ag^d to nem. con.

The motion made by M^r Madison July 18. & then postponed, "that the

Judges sh^d be nominated by the Executive & such nominations become

appointments unless disagreed to by 2/3 of the 2^d branch of the

Legislature," was now resumed.

M^r Madison stated as his reasons for the motion, 1. that it secured the

responsibility of the Executive who would in general be more capable &

likely to select fit characters than the Legislature, or even the 2^d b.

of it, who might hide their selfish motives under the number concerned

in the appointment. 2. that in case of any flagrant partiality or error,

in the nomination it might be fairly presumed that 2/3 of the 2^d branch

would join in putting a negative on it. 3. that as the 2^d b. was very

differently constituted when the appointment of the Judges was formerly

referred to it, and was now to be composed of equal votes from all the

States, the principle of compromise which had prevailed in other

instances required in this that there sh^d be a concurrence of two

authorities, in one of which the people, in the other the States should

be represented. The Executive Magistrate w^d be considered as a national

officer, acting for and equally sympathizing with every part of the U.

States. If the 2^d branch alone should have this power, the Judges might

be appointed by a minority of the people, tho' by a majority, of the

States, which could not be justified on any principle as their

proceedings were to relate to the people, rather than to the States: and

as it would moreover throw the appointments entirely into the hands of

y^e Northern States, a perpetual ground of jealousy & discontent would

be furnished to the Southern States.

M^r Pinkney was for placing the appointm^t in the 2^d b. exclusively.

The Executive will possess neither the requisite knowledge of

characters, nor confidence of the people for so high a trust.

M^r Randolph w^d have preferred the mode of appointm^t proposed formerly

by M^r Ghorum, as adopted in the Constitution of Mass^{ts} but thought

the motion depending so great an improvement of the clause as it stands,

that he anxiously wished it success. He laid great stress on the

responsibility of the Executive as a security for fit appointments.

Appointments by the Legislatures have generally resulted from cabal,

from personal regard, or some other consideration than a title derived

from the proper qualifications. The same inconveniences will

proportionally prevail if the appointments be referred to either branch

of the Legislature or to any other authority administered by a number of

individuals.

M^r Elseworth would prefer a negative in the Executive on a nomination

by the 2^d branch, the negative to be overruled by a concurrence of 2/3

of the 2^d b. to the mode proposed by the motion; but preferred an

absolute appointment by the 2^d branch to either. The Executive will be

regarded by the people with a jealous eye. Every power for augmenting

unnecessarily his influence will be disliked. As he will be stationary

it was not to be supposed he could have a better knowledge of

characters. He will be more open to caresses & intrigues than the

Senate. The right to supersede his nomination will be ideal only. A

nomination under such circumstances will be equivalent to an

appointment.

M^r Gov^r Morris supported the motion. 1. The States in their corporate

capacity will frequently have an interest staked on the determination of

the Judges. As in the Senate the States are to vote the Judges ought not

to be appointed by the Senate. Next to the impropriety of being Judge in

one's own cause, is the appointment of the Judge. 2. It had been said

the Executive would be uninformed of characters. The reverse was y^e

truth. The Senate will be so. They must take the character of candidates

from the flattering pictures drawn by their friends. The Executive in

the necessary intercourse with every part of the U. S. required by the

nature of his administration, will or may have the best possible

information. 3. It had been said that a jealousy would be entertained of

the Executive. If the Executive can be safely trusted with the command

of the army, there cannot surely be any reasonable ground of Jealousy in

the present case. He added that if the Objections ag^{st} an appointment

of the Executive by the Legislature, had the weight that had been

allowed there must be some weight in the objection to an appointment of

the Judges by the Legislature or by any part of it.

M^r Gerry. The appointment of the Judges like every other part of the

Constitution sh^d be so modelled as to give satisfaction both to the

people and to the States. The mode under consideration will give

satisfaction to neither. He could not conceive that the Executive could

be as well informed of characters throughout the Union, as the Senate.

It appeared to him also a strong objection that 2/3 of the Senate were

required to reject a nomination of the Executive. The Senate would be

constituted in the same manner as Congress. And the appointments of

Congress have been generally good.

M^r Madison, observed that he was not anxious that 2/3 should be

necessary to disagree to a nomination. He had given this form to his

motion chiefly to vary it the more clearly from one which had just been

rejected. He was content to obviate the objection last made, and

accordingly so varied the motion as to let a majority reject.

Col. Mason found it his duty to differ from his colleagues in their

opinions & reasonings on this subject. Notwithstanding the form of the

proposition by which the appointment seemed to be divided between the

Executive & Senate, the appointment was Substantially vested in the

former alone. The false complaisance which usually prevails in such

cases will prevent a disagreement to the first nominations. He

considered the appointment by the Executive as a dangerous prerogative.

It might even give him an influence over the Judiciary department

itself. He did not think the difference of interest between the Northern

and Southern States could be properly brought into this argument. It

would operate & require some precautions in the case of regulating

navigation, commerce & imposts; but he could not see that it had any

connection with the Judiciary department.

On the question, the motion now being "that the executive should

nominate & such nominations should become appointments unless disagreed

to by the Senate"

Mass. ay. C^t no. P^a ay. Del. no. M^d no. V^a ay. N. C. no.

S. C. no. Geo. no.

On question for agreeing to the clause as it stands by which the Judges

are to be appointed by the 2^d branch

Mass. no. C^t ay. P^a no. Del. ay. M^d ay. V^a no. N. C. ay.

S. C. ay. Geo. ay.

Adjourned.

MONDAY JULY 23. IN CONVENTION

M^r John Langdon & M^r Nicholas Gilman[5] from N. Hampshire,[6] took

their seats.

[5] M^r Gilman is modest, genteel, and sensible. There is

nothing brilliant or striking in his character, but there is

something respectable and worthy in the man.--About 30 years

of age."--Pierce's Notes, _Am. Hist. Rev._, iii., 325.

He did not speak in the convention.

[6] The act appointing deputies to the convention was not passed

by the New Hampshire Legislature till June 27,

1787.--_Journal of Federal Convention_, 17.

Resol:^n 17. that provision ought to be made for future amendments of

the Articles of Union, agreed to, nem. con.

Resol^n 18. "requiring the Legis: Execut: & Jud^y of the States to be

bound by oath to support the articles of Union," taken into

consideration.

M^r Williamson suggests that a reciprocal oath should be required from

the National officers, to support the Governments of the States.

M^r Gerry moved to insert as an amendm^t that the oath of the officers

of the National Government also should extend to the support of the

Nat^l Gov^t which was agreed to nem. con.

M^r Wilson said he was never fond of oaths, considering them as a left

handed security only. A good Gov^t did not need them, and a bad one

could not or ought not to be supported. He was afraid they might too

much trammel the members of the existing Gov^t in case future

alterations should be necessary; and prove an obstacle to Resol: 17.

just ag^d to.

M^r Ghorum did not know that oaths would be of much use; but could see

no inconsistency between them and the 17. Resol. or any regular amend^t

of the Constitution. The oath could only require fidelity to the

existing Constitution. A constitutional alteration of the Constitution,

could never be regarded as a breach of the Constitution, or of any oath

to support it.

M^r Gerry thought with M^r Ghorum there could be no shadow of

inconsistency in the case. Nor could he see any other harm that could

result from the Resolution. On the other side he thought one good effect

would be produced by it. Hitherto the officers of the two Governments

had considered them as distinct from, and not as parts of the General

System, & had in all cases of interference given a preference to the

State Gov^{ts}. The proposed oath will cure that error.

The Resol^n (18) was agreed to nem. con.

Resol: 19. referring the new Constitution to Assemblies to be chosen by

the people for the express purpose of ratifying it was next taken into

consideration.

M^r Elseworth moved that it be referred to the Legislatures of the

States for ratification. M^r Patterson 2^{ded} the motion.

Col. Mason considered a reference of the plan to the authority of the

people as one of the most important and essential of the Resolutions.

The Legislatures have no power to ratify it. They are the mere creatures

of the State Constitutions, and cannot be greater than their creators.

And he knew of no power in any of the Constitutions, he knew there was

no power in some of them, that could be competent to this object.

Whither then must we resort? To the people with whom all power remains

that has not been given up in the Constitutions derived from them. It

was of great moment he observed that this doctrine should be cherished

as the basis of free Government. Another strong reason was that

admitting the Legislatures to have a competent authority, it would be

wrong to refer the plan to them, because succeeding Legislatures having

equal authority could undo the acts of their predecessors; and the

National Gov^t would stand in each State on the weak and tottering

foundation of an Act of Assembly. There was a remaining consideration of

some weight. In some of the States the Gov^{ts} were not derived from

the clear & undisputed authority of the people. This was the case in

Virginia. Some of the best & wisest citizens considered the Constitution

as established by an assumed authority. A national Constitution derived

from such a source would be exposed to the severest criticisms.

M^r Randolph. One idea has pervaded all our proceedings, to wit, that

opposition as well from the States as from individuals, will be made to

the System to be proposed. Will it not then be highly imprudent, to

furnish any unnecessary pretext by the mode of ratifying it. Added to

other objections ag^{st} a ratification by the Legislative authority

only, it may be remarked that there have been instances in which the

authority of the Common law has been set up in particular States ag^{st}

that of the Confederation which has had no higher sanction than

Legislative ratification.--Whose opposition will be most likely to be

excited ag^{st} the System? That of the local demagogues who will be

degraded by it from the importance they now hold. These will spare no

efforts to impede that progress in the popular mind which will be

necessary to the adoption of the plan, and which every member will find

to have taken place in his own, if he will compare his present opinions

with those brought with him into the Convention. It is of great

importance therefore that the consideration of this subject should be

transferred from the Legislatures where this class of men, have their

full influence to a field in which their efforts can be less

mischievous. It is moreover worthy of consideration that some of the

States are averse to any change in their Constitution, and will not take

the requisite steps, unless expressly called upon to refer the question

to the people.

M^r Gerry. The arguments of Col. Mason & M^r Randolph prove too much.

They prove an unconstitutionality in the present federal system & even

in some of the State Gov^{ts}. Inferences drawn from such a source must

be inadmissible. Both the State Gov^{ts} & the federal Gov^t have been

too long acquiesced in, to be now shaken. He considered the

Confederation to be paramount to any State Constitution. The last

article of it authorizing alterations must consequently be so as well as

the others, and every thing done in pursuance of the article must have

the same high authority with the article. Great confusion he was

confident would result from a recurrence to the people. They would never

agree on any thing. He could not see any ground to suppose that the

people will do what their rulers will not. The rulers will either

conform to, or influence the sense of the people.

M^r Ghorum was ag^{st} referring the plan to the Legislatures. 1. Men

chosen by the people for the particular purpose, will discuss the

subject more candidly than members of the Legislature who are to lose

the power which is to be given up to the Gen^l Gov^t. 2. Some of the

Legislatures are composed of several branches. It will consequently be

more difficult in these cases to get the plan through the Legislatures,

than thro' a Convention. 3. in the States many of the ablest men are

excluded from the Legislatures, but may be elected into a convention.

Among these may be ranked many of the Clergy who are generally friends

to good Government. Their services were found to be valuable in the

formation & establishment of the Constitution of Massach^{ts}. 4. the

Legislatures will be interrupted with a variety of little business, by

artfully pressing which designing men will find means to delay from year

to year, if not to frustrate altogether the national system. 5. If the

last art: of the Confederation is to be pursued the unanimous

concurrence of the States will be necessary. But will any one say, that

all the States are to suffer themselves to be ruined, if Rho. Island

should persist in her opposition to general measures. Some other States

might also tread in her steps. The present advantage which N. York seems

to be so much attached to, of taxing her neighbours by the regulation of

her trade, makes it very probable, that she will be of the number. It

would therefore deserve serious consideration whether provision ought

not to be made for giving effect to the System without waiting for the

unanimous concurrence of the States.

M^r Elseworth. If there be any Legislatures who should find themselves

incompetent to the ratification, he should be content to let them advise

with their constituents and pursue such a mode as w^d be competent. He

thought more was to be expected from the Legislatures than from the

people. The prevailing wish of the people in the Eastern States is to

get rid of the public debt; and the idea of strengthening the Nat^l

Gov^t carries with it that of strengthening the public debt. It was said

by Col. Mason 1. that the Legislatures have no authority in this case.

2. that their successors having equal authority could rescind their

acts. As to the 2^d point he could not admit it to be well founded. An

Act to which the States by their Legislatures, make themselves parties,

becomes a compact from which no one of the parties can recede of itself.

As to the 1^{st} point, he observed that a new sett of ideas seemed to

have crept in since the articles of Confederation were established.

Conventions of the people, or with power derived expressly from the

people, were not then thought of. The Legislatures were considered as

competent. Their ratification has been acquiesced in without complaint.

To whom have Cong^s applied on subsequent occasions for further powers?

To the Legislatures; not to the people. The fact is that we exist at

present, and we need not enquire how, as a federal Society, united by a

charter one article of which is that alterations therein may be made by

the Legislative authority of the States. It has been said that if the

confederation is to be observed, the States must _unanimously_ concur in

the proposed innovations. He would answer that if such were the urgency

& necessity of our situation as to warrant a new compact among a part of

the States, founded on the consent of the people; the same pleas would

be equally valid in favor of a partial compact, founded on the consent

of the Legislatures.

M^r Williamson thought the Resol:^n (19) so expressed as that it might

be submitted either to the Legislatures or to Conventions recommended by

the Legislatures. He observed that some Legislatures were evidently

unauthorized to ratify the system. He thought too that Conventions were

to be preferred as more likely to be composed of the ablest men in the

States.

M^r Gov^r Morris considered the inference of M^r Elseworth from the plea

of necessity as applied to the establishment of a new System on y^e

consent of the people of a part of the States, in favor of a like

establishm^t on the consent of a part of the Legislatures, as a non

sequitur. If the Confederation is to be pursued no alteration can be

made without the unanimous consent of the Legislatures: Legislative

alterations not conformable to the federal compact, would clearly not be

valid. The Judges would consider them as null & void. Whereas in case of

an appeal to the people of the U. S., the supreme authority, the federal

compact may be altered by a _majority of them_; in like manner as the

Constitution of a particular State may be altered by a majority of the

people of the State. The amendm^t moved by M^r Elseworth erroneously

supposes that we are proceeding on the basis of the Confederation. This

Convention is unknown to the Confederation.

M^r King thought with M^r Elseworth that the Legislatures had a

competent authority, the acquiescence of the people of America in the

Confederation, being equivalent to a formal ratification by the people.

He thought with M^r E. also that the plea of necessity was as valid in

the one case as the other. At the same time he preferred a reference to

the authority of the people expressly delegated to Conventions, as the

most certain means of obviating all disputes & doubts concerning the

legitimacy of the new Constitution; as well as the most likely means of

drawing forth the best men in the States to decide on it. He remarked

that among other objections made in the State of N. York to granting

powers to Cong^s one had been that such powers as would operate within

the State, could not be reconciled to the Constitution; and therefore

were not grantible by the Legislative authority. He considered it as of

some consequence also to get rid of the scruples which some members of

the State Legislatures might derive from their oaths to support &

maintain the existing Constitutions.

M^r Madison thought it clear that the Legislatures were incompetent to

the proposed changes. These changes would make essential inroads on the

State Constitutions, and it would be a novel & dangerous doctrine that a

Legislature could change the constitution under which it held its

existence. There might indeed be some Constitutions within the Union,

which had given a power to the Legislature to concur in alterations of

the federal Compact. But there were certainly some which had not; and in

the case of these, a ratification must of necessity be obtained from the

people. He considered the difference between a system founded on the

Legislatures only, and one founded on the people, to be the true

difference between a _league_ or _treaty_, and a _Constitution_. The

former in point of _moral obligation_ might be as inviolable as the

latter. In point of _political operation_, there were two important

distinctions in favor of the latter. 1. A law violating a treaty

ratified by a pre-existing law, might be respected by the Judges as a

law, though an unwise or perfidious one. A law violating a constitution

established by the people themselves, would be considered by the Judges

as null & void. 2. The doctrine laid down by the law of Nations in the

case of treaties is that a breach of any one article by any of the

parties, frees the other parties from their engagements. In the case of

a union of people under one Constitution, the nature of the pact has

always been understood to exclude such an interpretation. Comparing the

two modes in point of expediency he thought all the considerations which

recommended this Convention in preference to Congress for proposing the

reform were in favor of State Conventions in preference to the

Legislatures for examining and adopting it.

On question on M^r Elseworth's motion to refer the plan to the

Legislatures of the States

N. H. no. Mass. no. C^t ay. P^a no. Del. ay. M^d ay. V^a no.

N. C. no. S. C. no. Geo. no.

M^r Gov^r Morris moved that the reference of the plan be made to one

general Convention, chosen & authorized by the people to consider,

_amend_, & establish the same.--Not seconded.

On question for agreeing to Resolution 19. touching the mode of

Ratification as reported from the Committee of the Whole; viz, to refer

the Const^n, after the approbation of Cong^s to assemblies chosen by the

people;

N. H. ay. Mass. ay. C^t ay. P^a ay. Del. no. M^d ay. V^a ay.

N. C. ay. S. C. ay. Geo. ay.

M^r Gov^r Morris & M^r King moved that the representation in the second

branch consist of ---- members from each State, who shall vote per

capita.

M^r Elseworth said he had always approved of voting in that mode.

M^r Gov^r Morris moved to fill the _blank_ with _three_. He wished the

Senate to be a pretty numerous body. If two members only should be

allowed to each State, and a majority be made a quorum, the power would

be lodged in 14 members, which was too small a number for such a trust.

M^r Ghorum preferred two to three members for the blank. A small number

was most convenient for deciding on peace & war &c. which he expected

would be vested in the 2^d branch. The number of States will also

increase. Kentucky, Vermont, the Province of Mayne & Franklin will

probably soon be added to the present number. He presumed also that some

of the largest States would be divided. The strength of the General

Gov^t will lie not in the largeness, but in the smallness of the States.

Col. Mason thought 3 from each State including new States would make the

2^d branch too numerous. Besides other objections, the additional

expence ought always to form one, where it was not absolutely necessary.

M^r Williamson. If the number be too great, the distant States will not

be on an equal footing with the nearer States. The latter can more

easily send & support their ablest Citizens. He approved of the voting

per capita.

On the question for filling the blank with "_three_"

N. H. no. Mass. no. Con^t no. P^a ay. Del. no. V^a no. N. C. no.

S. C. no. Geo. no.

On question for filling it with "two." Agreed to nem. con.

M^r L Martin was opposed to voting per Capita, as departing from the

idea of the _States_ being represented in the 2^d branch.

M^r Carroll,[7] was not struck with any particular objection ag^{st} the

mode; but he did not wish so hastily to make so material an innovation.

[7] "Mr. Carrol is a Man of large fortune, and influence in his

State. He possesses plain good sense, and is in the full

confidence of his Countrymen. This Gentleman is about

[blank] years of age."--Pierce's Notes, _Am. Hist. Rev._,

iii., 330.

On the question on the whole motion viz. the 2^d b. to consist of 2

members from each State and to vote per Capita,

N. H. ay. Mass. ay. C^t ay. P^a ay. Del. ay. M^d no. V^a ay. N.

C. ay. S. C. ay. Geo. ay.

M^r Houston[8] & M^r Spaight moved "that the appointment of the

Executive by Electors chosen by the Legislatures of the States, be

reconsidered." M^r Houston urged the extreme inconveniency & the

considerable expence, of drawing together men from all the States for

the single purpose of electing the Chief Magistrate.

[8] "Mr. Houston is an Attorney at Law, and has been Member of

Congress for the State of Georgia. He is a Gentleman of

Family, and was educated in England. As to his legal or

political knowledge he has very little to boast of. Nature

seems to have done more for his corporeal than mental

powers. His Person is striking, but his mind very little

improved with useful or elegant knowledge. He has none of

the talents requisite for the Orator, but in public debate

is confused and irregular. Mr. Houston is about 30 years of

age of an amiable and sweet temper, and of good and

honorable principles."--Pierce's Notes, _Am. Hist. Rev._,

iii., 334.

On the question which was put without any debate

N. H. ay. Mass. ay. Ct. ay. P^a no. Del. ay. M^d no. Virg^a no.

N. C. ay. S. C. ay. Geo. ay.

Ordered that tomorrow be assigned for the reconsideration, Con^t & Pen^a

no--all the rest ay.

M^r Gerry moved that the proceedings of the Convention for the

establishment of a Nat^l Gov^t (except the part relating to the

Executive), be referred to a Committee to prepare & report a

Constitution conformable thereto.

Gen^l Pinkney reminded the Convention that if the Committee should fail

to insert some security to the Southern States ag^{st} an emancipation

of slaves, and taxes on exports, he sh^d be bound by duty to his State

to vote ag^{st} their Report. The app^t of a Com^e as moved by M^r

Gerry. Ag^d to nem. con.

Shall the Com^e consist of 10 members one from each State pres^t--All

the States were _no_, except Delaware, _ay_.

Shall it consist of 7. members

N. H. ay. Mas. ay. C^t ay. P^a no. Del. no. M^d ay. V^a no. N.

C. no. S. C. ay. Geo. no.

The question being lost by an equal division of Votes.

It was agreed, nem-con- that the Committee consist of 5 members to be

appointed tomorrow.

Adjourned.

TUESDAY JULY 24. IN CONVENTION

The appointment of the Executive by Electors reconsidered.

M^r Houston moved that he be appointed by the "Nat^l Legislature,"

instead of "Electors appointed by the State Legislatures" according to

the last decision of the mode. He dwelt chiefly on the improbability,

that capable men would undertake the service of Electors from the more

distant States.

M^r Spaight seconded the motion.

M^r Gerry opposed it. He thought there was no ground to apprehend the

danger urged by M^r Houston. The election of the Executive Magistrate

will be considered as of vast importance and will create great

earnestness. The best men, the Governours of the States will not hold it

derogatory from their character to be the electors. If the motion should

be agreed to, it will be necessary to make the Executive ineligible a

2^d time, in order to render him independent of the Legislature; which

was an idea extremely repugnant to his way of thinking.

M^r Strong supposed that there would be no necessity, if the Executive

should be appointed by the Legislature, to make him ineligible a 2^d

time; as new elections of the Legislature will have intervened; and he

will not depend for his 2^d appointment on the same sett of men as his

first was rec^d from. It had been suggested that _gratitude_ for his

past appointment w^d produce the same effect as dependence for his

future appointment. He thought very differently. Besides this objection

would lie ag^{st} the Electors who would be objects of gratitude as well

as the Legislature. It was of great importance not to make the Gov^t too

complex which would be the case if a new sett of men like the Electors

should be introduced into it. He thought also that the first characters

in the States would not feel sufficient motives to undertake the office

of Electors.

M^r Williamson was for going back to the original ground; to elect the

Executive for 7 years and render him ineligible a 2^d time. The proposed

Electors would certainly not be men of the 1^{st} nor even of the 2^d

grade in the States. These would all prefer a seat either in the Senate

or the other branch of the Legislature. He did not like the Unity in the

Executive. He had wished the Executive power to be lodged in three men

taken from three districts into which the States should be divided. As

the Executive is to have a kind of veto on the laws, and there is an

essential difference of interests between the N. & S. States,

particularly in the carrying trade, the power will be dangerous, if the

Executive is to be taken from part of the Union, to the part from which

he is not taken. The case is different here from what it is in England;

where there is a sameness of interests throughout the Kingdom. Another

objection ag^{st} a single Magistrate is that he will be an elective

King, and will feel the spirit of one. He will spare no pains to keep

himself in for life, and will then lay a train for the succession of his

children. It was pretty certain he thought that we should at some time

or other have a King; but he wished no precaution to be omitted that

might postpone the event as long as possible.--Ineligibility a 2^d time

appeared to him to be the best precaution. With this precaution he had

no objection to a longer term than 7 years. He would go as far as 10 or

12 years.

M^r Gerry moved that the Legislatures of the States should vote by

ballot for the Executive in the same proportions as it had been proposed

they should chuse electors; and that in case a majority of the votes

should not centre on the same person, the 1^{st} branch of the Nat^l

Legislature should chuse two out of the 4 candidates having most votes,

and out of these two, the 2^d branch should chuse the Executive.

M^r King seconded the motion--and on the Question to postpone in order

to take it into consideration. The _noes_ were so predominant, that the

States were not counted.

Question on M^r Houston's motion that the Executive be app^d by the Na^l

Legislature.

N. H. ay. Mass. ay. C^t no. N. J. ay. P^a no. Del. ay. M^d no.

V^a no. N. C. ay. S. C. ay. Geo. ay.

M^r L. Martin & M^r Gerry moved to re-instate the ineligibility of the

Executive a 2^d time.

M^r Elseworth. With many this appears a natural consequence of his being

elected by the Legislature. It was not the case with him. The Executive

he thought should be reelected if his conduct proved him worthy of it.

And he will be more likely to render himself, worthy of it if he be

rewardable with it. The most eminent characters also, will be more

willing to accept the trust under this condition, than if they foresee a

necessary degradation at a fixt period.

M^r Gerry. That the Executive sh^d be independent of the Legislature is

a clear point. The longer the duration of his appointment the more will

his dependence be diminished. It will be better then for him to continue

10. 15. or even 20. years and be ineligible afterwards.

M^r King was for making him re-eligible. This is too great an advantage

to be given up for the small effect it will have on his dependence, if

impeachments are to lie. He considered these as rendering the tenure

during pleasure.

M^r L. Martin, suspending his motion as to the ineligibility, moved

"that the appointm^t of the Executive shall continue for Eleven years.

M^r Gerry suggested fifteen years.

M^r King twenty years. This is the medium life of princes.[9]

[9] This might possibly be meant as a carricature of the

previous motions in order to defeat the object of

them.--Madison's Note.

M^r Davie eight years.

M^r Wilson. The difficulties & perplexities into which the House is

thrown proceed from the election by the Legislature which he was sorry

had been reinstated. The inconveniency of this mode was such that he

would agree to almost any length of time in order to get rid of the

dependence which must result from it. He was persuaded that the longest

term would not be equivalent to a proper mode of election, unless indeed

it should be during good behaviour. It seemed to be supposed that at a

certain advance of life, a continuance in office would cease to be

agreeable to the officer, as well as desirable to the public. Experience

had shewn in a variety of instances that both a capacity & inclination

for public service existed in very advanced stages. He mentioned the

instance of a Doge of Venice who was elected after he was 80 years of

age. The Popes have generally been elected at very advanced periods, and

yet in no case had a more steady or a better concerted policy been

pursued than in the Court of Rome. If the Executive should come into

office at 35 years of age, which he presumes may happen & his

continuance should be fixt at 15 years, at the age of 50. in the very

prime of life, and with all the aid of experience, he must be cast aside

like a useless hulk. What an irreparable loss would the British

Jurisprudence have sustained, had the age of 50. been fixt there as the

ultimate limit of capacity or readiness to serve the public. The great

luminary (L^d Mansfield) held his seat for thirty years after his

arrival at that age. Notwithstanding what had been done he could not but

hope that a better mode of election would yet be adopted; and one that

would be more agreeable to the general sense of the House. That time

might be given for further deliberation he w^d move that the present

question be postponed till tomorrow.

M^r Broom seconded the motion to postpone.

M^r Gerry. We seem to be entirely at a loss on this head. He would

suggest whether it would not be advisable to refer the clause relating

to the Executive to the Committee of detail to be appointed. Perhaps

they will be able to hit on something that may unite the various

opinions which have been thrown out.

M^r Wilson. As the great difficulty seems to spring from the mode of

election, he w^d suggest a mode which had not been mentioned. It was

that the Executive be elected for 6 years by a small number, not more

than 15 of the Nat^l Legislature, to be drawn from it, not by ballot,

but by lot and who should retire immediately and make the election

without separating. By this mode intrigue would be avoided in the first

instance, and the dependence would be diminished. This was not he said a

digested idea and might be liable to strong objections.

M^r Gov^r Morris. Of all possible modes of appointment that by the

Legislature is the worst. If the Legislature is to appoint, and to

impeach or to influence the impeachment, the Executive will be the mere

creature of it. He had been opposed to the impeachment but was now

convinced that impeachments must be provided for, if the app^t was to be

of any duration. No man w^d say, that an Executive known to be in the

pay of an Enemy, should not be removable in some way or other. He had

been charged heretofore (by Col. Mason) with inconsistency in pleading

for confidence in the Legislature on some occasions, & urging a distrust

on others. The charge was not well founded. The Legislature is worthy of

unbounded confidence in some respects, and liable to equal distrust in

others. When their interest coincides precisely with that of their

Constituents, as happens in many of their Acts, no abuse of trust is to

be apprehended. When a strong personal interest happens to be opposed to

the general interest, the Legislature cannot be too much distrusted. In

all public bodies there are two parties. The Executive will necessarily

be more connected with one than with the other. There will be a personal

interest therefore in one of the parties to oppose as well as in the

other to support him. Much had been said of the intrigues, that will be

practised by the Executive to get into office. Nothing had been said on

the other side of the intrigues to get him out of office. Some leader of

a party will always covet his seat, will perplex his administration,

will cabal with the Legislature, till he succeeds in supplanting him.

This was the way in which the King of England was got out, he meant the

real King, the Minister. This was the way in which Pitt (L^d Chatham)

forced himself into place. Fox was for pushing the matter still farther.

If he had carried his India bill, which he was very near doing, he would

have made the Minister, the King in form almost as well as in substance.

Our President will be the British Minister, yet we are about to make him

appointable by the Legislature. Something had been said of the danger of

Monarchy. If a good government should not now be formed, if a good

organization of the Executive should not be provided, he doubted whether

we should not have something worse than a limited monarchy. In order to

get rid of the dependence of the Executive on the Legislature, the

expedient of making him ineligible a 2^d time had been devised. This was

as much as to say we sh^d give him the benefit of experience, and then

deprive ourselves of the use of it. But make him ineligible a 2^d

time--and prolong his duration even to 15 years, will he by any

wonderful interposition of providence at that period cease to be a man?

No he will be unwilling to quit his exaltation, the road to his object

thro' the Constitution will be shut; he will be in possession of the

sword, a civil war will ensue, and the Co[~m]ander of the victorious

army on which ever side, will be the despot of America. This

consideration renders him particularly anxious that the Executive should

be properly constituted. The vice here would not, as in some other parts

of the system be curable. It is the most difficult of all rightly to

balance the Executive. Make him too weak: The Legislature will usurp his

powers. Make him too strong. He will usurp on the Legislature. He

preferred a short period, a re-eligibility, but a different mode of

election. A long period would prevent an adoption of the plan: it ought

to do so. He sh^d himself be afraid to trust it. He was not prepared to

decide on M^r Wilson's mode of election just hinted by him. He thought

it deserved consideration. It would be better that chance sh^d decide

than intrigue.

On a question to postpone the consideration of the Resolution on the

subject of the Executive

N. H. no. Mass. no. C^t ay. N. J. no. P^a ay. Del. div^d.

M^d ay. V^a ay. N. C. no. S. C. no. Geo. no.

M^r Wilson then moved that the Executive be chosen every ---- years by

---- Electors to be taken by lot from the Nat^t Legislature who shall

proceed immediately to the choice of the Executive and not separate

until it be made."

M^r Carrol 2^{ds} the motion.

M^r Gerry. This is committing too much to chance. If the lot should fall

on a sett of unworthy men, an unworthy Executive must be saddled on the

Country. He thought it had been demonstrated that no possible mode of

electing by the Legislature could be a good one.

M^r King. The lot might fall on a majority from the same State which w^d

ensure the election of a man from that State. We ought to be governed by

reason, not by chance. As nobody seemed to be satisfied, he wished the

matter to be postponed.

M^r Wilson did not move this as the best mode. His opinion remained

unshaken that we ought to resort to the people for the election. He

seconded the postponement.

M^r Gov^r Morris observed that the chances were almost infinite ag^{st}

a majority of Electors from the same State.

On a question whether the last motion was in order, it was determined in

the affirmative: 7 ays. 4 noes.

On the question of postponem^t it was agreed to nem. con.

M^r Carrol took occasion to observe that he considered the clause

declaring that direct taxation on the States should be in proportion to

representation, previous to the obtaining an actual census, as very

objectionable, and that he reserved to himself the right of opposing it,

if the Report of the Committee of detail should leave it in the plan.

M^r Gov^r Morris hoped the Committee would strike out the whole of the

clause proportioning direct taxation to representation. He had only

meant it as a bridge[10] to assist us over a certain gulph; having

passed the gulph the bridge may be removed. He thought the principle

laid down with so much strictness, liable to strong objections.

[10] The object was to lessen the eagerness on one side, & the

opposition on the other, to the share of representation

claimed by the S. States on account of the

Negroes.--Madison's Note.

On a ballot for a Committee to report a Constitution conformable to the

Resolutions passed by the Convention, the members chosen were

M^r Rutlidge, M^r Randolph, M^r Ghorum, M^r Elseworth, M^r Wilson--

On motion to discharge the Com^e of the whole from the propositions

submitted to the Convention by M^r C. Pinkney as the basis of a

constitution, and to refer them to the Committee of detail just

appointed, it was ag^d to nem: con.

A like motion was then made & agreed to nem: con: with respect to the

propositions of M^r Patterson.

Adjourned.

WEDNESDAY JULY 25. IN CONVENTION

Clause relating to the Executive being again under consideration[11]

[11] "Permit me to hint, whether it would not be wise &

seasonable to provide a strong check to the admission of

Foreigners into the administration of our national

Government; and to declare expressly that the command in

chief of the American army shall not be given to, nor

devolve on, any but a natural _born_ citizen."--John Jay to

Washington, July 25, 1787 (Wash. MSS.).

M^r Elseworth moved "that the Executive be appointed by the

Legislature," except when the magistrate last chosen shall have

continued in office the whole term for which he was chosen, & be

reeligible, in which case the choice shall be by Electors appointed by

the Legislatures of the States for that purpose. By this means a

deserving magistrate may be reelected without making him dependent on

the Legislature.

M^r Gerry repeated his remark that an election at all by the Nat^l

Legislature was radically and incurably wrong; and moved that the

Executive be appointed by the Governours & Presidents of the States,

with advice of their Councils, and where there are no Councils by

Electors chosen by the Legislatures. The executives to vote in the

following proportions: viz--

M^r Madison. There are objections ag^{st} every mode that has been, or

perhaps can be proposed. The election must be made either by some

existing authority under the Nat^l or State Constitutions--or by some

special authority derived from the people--or by the people

themselves.--The two Existing authorities under the Nat^l Constitution

w^d be the Legislative & Judiciary. The latter he presumed was out of

the question. The former was in his Judgment liable to insuperable

objections. Besides the general influence of that mode on the

independence of the Executive, 1. the election of the Chief Magistrate

would agitate & divide the legislature so much that the public interest

would materially suffer by it. Public bodies are always apt to be thrown

into contentions, but into more violent ones by such occasions than by

any others. 2. the candidate would intrigue with the Legislature, would

derive his appointment from the predominant faction, and be apt to

render his administration subservient to its views. 3. The Ministers of

foreign powers would have and would make use of, the opportunity to mix

their intrigues & influence with the Election. Limited as the powers of

the Executive are, it will be an object of great moment with the great

rival powers of Europe who have American possessions, to have at the

head of our Governm^t a man attached to their respective politics &

interests. No pains, nor perhaps expence, will be spared, to gain from

the Legislature an appointm^t favorable to their wishes. Germany &

Poland are witnesses of this danger. In the former, the election of the

Head of the Empire, till it became in a manner hereditary, interested

all Europe, and was much influenced by foreign interference. In the

latter, altho' the elective Magistrate has very little real power, his

election has at all times produced the most eager interference of

foreign princes, and has in fact at length slid entirely into foreign

hands. The existing authorities in the States are the Legislative,

Executive & Judiciary. The appointment of the Nat^l Executive by the

first was objectionable in many points of view, some of which had been

already mentioned. He would mention one which of itself would decide his

opinion. The Legislatures of the States had betrayed a strong propensity

to a variety of pernicious measures. One object of the Nat^l Legisl^{re}

was to controul this propensity. One object of the Nat^l Executive, so

far as it would have a negative on the laws, was to controul the Nat^l

Legislature so far as it might be infected with a similar propensity.

Refer the appointm^t of the Nat^l Executive to the State Legislatures,

and this controuling purpose may be defeated. The Legislatures can &

will act with some kind of regular plan, and will promote the appointm^t

of a man who will not oppose himself to a favorite object. Should a

majority of the Legislatures at the time of election have the same

object, or different objects of the same kind, The Nat^l Executive would

be rendered subservient to them.--An appointment by the State

Executives, was liable among other objections to this insuperable one,

that being standing bodies, they could & would be courted, and intrigued

with by the Candidates, by their partizans, and by the Ministers of

foreign powers. The State Judiciary had not & he presumed w^d not be

proposed as a proper source of appointment. The option before us then

lay between an appointment by Electors chosen by the people--and an

immediate appointment by the people. He thought the former mode free

from many of the objections which had been urged ag^{st} it, and greatly

preferable to an appointment by the Nat^l Legislature. As the electors

would be chosen for the occasion, would meet at once, & proceed

immediately to an appointment, there would be very little opportunity

for cabal, or corruption. As a further precaution, it might be required

that they should meet at some place, distinct from the seat of Gov^t and

even that no person within a certain distance of the place at the time

sh^d be eligible. This Mode however had been rejected so recently & by

so great a majority that it probably would not be proposed anew. The

remaining mode was an election by the people or rather by the qualified

part of them, at large: With all its imperfections he liked this best.

He would not repeat either the general argum^{ts}. for or the objections

ag^{st} this mode. He would only take notice of two difficulties which

he admitted to have weight. The first arose from the disposition in the

people to prefer a Citizen of their own State, and the disadvantage this

w^d throw on the smaller States. Great as this objection might be he did

not think it equal to such as lay ag^{st} every other mode which had

been proposed. He thought too that some expedient might be hit upon that

would obviate it. The second difficulty arose from the disproportion of

qualified voters in the N. & S. States, and the disadvantages which this

mode would throw on the latter. The answer to this objection was 1. that

this disproportion would be continually decreasing under the influence

of the Republican laws introduced in the S. States, and the more rapid

increase of their population. 2. That local considerations must give way

to the general interest. As an individual from the S. States, he was

willing to make the sacrifice.

M^r Elseworth. The objection drawn from the different sizes of the

States, is unanswerable. The Citizens of the largest States would

invariably prefer the candidate within the State; and the largest States

w^d invariably have the man.

Question on M^r Elseworth's motion as above.

N. H. ay. Mass. no. C^t ay. N. J. no. P^a ay. Del. no. M^d ay.

V^a no. N. C. no. S. C. no. Geo. no.

M^r Pinkney moved that the election by the Legislature be qualified with

a proviso that no person be eligible for more than 6 years in any twelve

years. He thought this would have all the advantage & at the same time

avoid in some degree the inconveniency, of an absolute ineligibility a

2^d time.

Col. Mason approved the idea. It had the sanction of experience in the

instance of Cong^s and some of the Executives of the States. It rendered

the Executive as effectually independent, as an ineligibility after his

first election, and opened the way at the same time for the advantage of

his future services. He preferred on the whole the election by the Nat^l

Legislature: Tho' Candor obliged him to admit, that there was great

danger of foreign influence, as had been suggested. This was the most

serious objection with him that had been urged.

M^r Butler. The two great evils to be avoided are cabal at home, &

influence from abroad. It will be difficult to avoid either if the

Election be made by the Nat^l Legislature. On the other hand. The Gov^t

should not be made so complex & unwieldy as to disgust the States. This

would be the case, if the election sh^d be referred to the people. He

liked best an election by Electors chosen by the Legislatures of the

States. He was ag^{st} a re-eligibility at all events. He was also

ag^{st} a ratio of votes in the States. An equality should prevail in

this case. The reasons for departing from it do not hold in the case of

the Executive as in that of the Legislature.

M^r Gerry approved of M^r Pinkney's motion as lessening the evil.

M^r Gov^r Morris was ag^{st} a rotation in every case. It formed a

political School, in w^{ch} we were always governed by the scholars,

and not by the Masters. The evils to be guarded ag^{st} in this case

are. 1. the undue influence of the Legislature. 2. instability of

Councils. 3. misconduct in office. To guard ag^{st} the first, we run

into the second evil. We adopt a rotation which produces instability

of Councils. To avoid Sylla we fall into Charibdis. A change of men is

ever followed by a change of measures. We see this fully exemplified

in the vicissitudes among ourselves, particularly in the State of

Pen^a. The self-sufficiency of a victorious party scorns to tread in the

paths of their predecessors. Rehoboam will not imitate Soloman. 2. the

Rotation in office will not prevent intrigue and dependence on the

Legislature. The man in office will look forward to the period at which

he will become re-eligible. The distance of the period, the

improbability of such a protraction of his life will be no obstacle.

Such is the nature of man, formed by his benevolent author no doubt for

wise ends, that altho' he knows his existence to be limited to a span,

he takes his measures as if he were to live for ever. But taking another

supposition, the inefficacy of the expedient will be manifest. If the

magistrate does not look forward to his re-election to the Executive, he

will be pretty sure to keep in view the opportunity of his going into

the Legislature itself. He will have little objection then to an

extension of power on a theatre where he expects to act a distinguished

part; and will be very unwilling to take any step that may endanger his

popularity with the Legislature, on his influence over which the figure

he is to make will depend. 3. To avoid the third evil, impeachments will

be essential. And hence an additional reason ag^{st} an election by the

Legislature. He considered an election by the people as the best, by the

Legislature as the worst, mode. Putting both these aside, he could not

but favor the idea of M^r Wilson, of introducing a mixture of lot. It

will diminish, if not destroy both cabal & dependence.

M^r Williamson was sensible that strong objections lay ag^{st} an

election of the Executive by the Legislature, and that it opened a door

for foreign influence. The principal objection ag^{st} an election by

the people seemed to be, the disadvantage under which it would place the

smaller States. He suggested as a cure for this difficulty, that each

man should vote for 3 candidates, one of them he observed would be

probably of his own State, the other 2. of some other States; and as

probably of a small as a large one.

M^r Gov^r Morris liked the idea, suggesting as an amendment that each

man should vote for two persons one of whom at least should not be of

his own State.

M^r Madison also thought something valuable might be made of the

suggestion with the proposed amendment of it. The second best man in

this case would probably be the first, in fact. The only objection which

occurred was that each Citizen after hav^g given his vote for his

favorite fellow Citizen, w^d throw away his second on some obscure

Citizen of another State, in order to ensure the object of his first

choice. But it could hardly be supposed that the Citizens of many States

would be so sanguine of having their favorite elected, as not to give

their second vote with sincerity to the next object of their choice. It

might moreover be provided in favor of the smaller States that the

Executive should not be eligible more than ---- times in ---- years from

the same State.

M^r Gerry. A popular election in this case is radically vicious. The

ignorance of the people would put it in the power of some one set of men

dispersed through the Union & acting in Concert to delude them into any

appointment. He observed that such a Society of men existed in the Order

of the Cincinnati. They are respectable, united, and influential. They

will in fact elect the chief Magistrate in every instance, if the

election be referred to the people. His respect for the characters

composing this Society could not blind him to the danger & impropriety

of throwing such a power into their hands.

M^r Dickinson. As far as he could judge from the discussions which had

taken place during his attendance, insuperable objections lay ag^{st} an

election of the Executive by the Nat^l Legislature; as also by the

Legislatures or Executives of the States. He had long leaned towards an

election by the people which he regarded as the best & purest source.

Objections he was aware lay ag^{st} this mode, but not so great he

thought as ag^{st} the other modes. The greatest difficulty in the

opinion of the House seemed to arise from the partiality of the States

to their respective Citizens. But might not this very partiality be

turned to a useful purpose. Let the people of each State chuse its best

Citizen. The people will know the most eminent characters of their own

States, and the people of different States will feel an emulation in

selecting those of which they will have the greatest reason to be proud.

Out of the thirteen names thus selected, an Executive Magistrate may be

chosen either by the Nat^l Legislature, or by Electors appointed by it.

On a Question which was moved for postponing M^r Pinkney's motion, in

order to make way for some such proposition as had been hinted by M^r

Williamson & others, it passed in the negative.

N. H. no. Mass. no. C^t ay. N. J. ay. P^a ay. Del. no. M^d ay.

V^a ay. N. C. no. S. C. no. Geo. no.

On M^r Pinkney's motion that no person shall serve in the Executive more

than 6 years in 12. years, it passed in the negative.

N. H. ay. Mass. ay. C^t no. N. J. no. P^a no. Del. no. M^d no.

V^a no. N. C. ay. S. C. ay. Geo. ay.

On a motion that the members of the Committee be furnished with copies

of the proceedings it was so determined; S. Carolina alone being in the

negative.

It was then moved that the members of the House might take copies of the

Resolutions which had been agreed to; which passed in the negative.

N. H. no. Mas. no. Con. ay. N. J. ay. P^a no. Del. ay.

Mary^d no. V^a ay. N. C. ay. S. C. no. Geo. no.

M^r Gerry & M^r Butler moved to refer the resolution relating to the

Executive (except the clause making it consist of a single person) to

the Co[~m]ittee of detail.

M^r Wilson hoped that so important a branch of the System w^d not be

committed untill a general principle sh^d be fixed by a vote of the

House.

M^r Langdon. was for the commitment--Adj^d.

THURSDAY JULY. 26. IN CONVENTION.[12]

[12] "The affairs of the federal government are, I believe, in

the utmost confusion: The convention is an expedient that

will produce a decisive effect. It will either recover us

from our present embarrassments or complete our ruin; for I

do suspect that if what they recommend sho^d be rejected

this wo^d be the case. But I trust that the presence of

Gen^l Washington will have great weight in the body itself

so as to overawe & keep under the demon of party, & that the

signature of his name to whatever act shall be the result of

their deliberations will secure its passage thro' the

union."--Monroe to Jefferson, July 27, 1787 (_Writings of

Monroe_, i., 173).

Col. Mason. In every stage of the Question relative to the Executive,

the difficulty of the subject and the diversity of the opinions

concerning it have appeared. Nor have any of the modes of constituting

that department been satisfactory. 1. It has been proposed that the

election should be made by the people at large; that is that an act

which ought to be performed by those who know most of Eminent

characters, & qualifications, should be performed by those who know

least. 2. that the election should be made by the Legislatures of the

States. 3. by the Executives of the States. Ag^{st} these modes also

strong objections have been urged. 4. It has been proposed that the

election should be made by Electors chosen by the people for that

purpose. This was at first agreed to: But on further consideration has

been rejected. 5. Since which, the mode of M^r Williamson, requiring

each freeholder to vote for several candidates has been proposed. This

seemed like many other propositions, to carry a plausible face, but on

closer inspection is liable to fatal objections. A popular election in

any form, as M^r Gerry has observed, would throw the appointment into

the hands of the Cincinnati, a Society for the members of which he had a

great respect, but which he never wished to have a preponderating

influence in the Gov^t. 6. Another expedient was proposed by M^r

Dickinson, which is liable to so palpable & material an inconvenience

that he had little doubt of its being by this time rejected by himself.

It would exclude every man who happened not to be popular within his own

State; tho' the causes of his local unpopularity might be of such a

nature as to recommend him to the States at large. 7. Among other

expedients, a lottery has been introduced. But as the tickets do not

appear to be in much demand, it will probably, not be carried on, and

nothing therefore need be said on that subject. After reviewing all

these various modes, he was led to conclude, that an election by the

Nat^l Legislature as originally proposed, was the best. If it was liable

to objections, it was liable to fewer than any other. He conceived at

the same time that a second election ought to be absolutely prohibited.

Having for his primary object for the pole-star of his political

conduct, the preservation of the rights of the people, he held it as an

essential point, as the very palladium of civil liberty, that the Great

officers of State, and particularly the Executive should at fixed

periods return to that mass from which they were at first taken, in

order that they may feel & respect those rights & interests, Which are

again to be personally valuable to them. He concluded with moving that

the constitution of the Executive as reported by the Com^e of the whole

be reinstated, viz. "that the Executive be appointed for seven years, &

be ineligible a 2^d time."

M^r Davie seconded the motion.

Doc^r Franklin. It seems to have been imagined by some that the

returning to the mass of the people was degrading the magistrate. This

he thought was contrary to republican principles. In free Governments

the rulers are the servants, and the people their superiors &

sovereigns. For the former therefore to return among the latter was not

to _degrade_ but to _promote_ them. And it would be imposing an

unreasonable burden on them, to keep them always in a State of

servitude, and not allow them to become again one of the Masters.

Question on Col. Masons motion as above; which passed in the affirmative

N. H. ay. Mass^{ts} not on floor. C^t no. N. J. ay. P^a no.

Del. no. M^d ay. V^a ay. N. C. ay. S. C. ay. Geo. ay.

M^r Gov^r Morris was now ag^{st} the whole paragraph. In answer to Col.

Mason's position that a periodical return of the great officers of the

State into the mass of the people, was the palladium of Civil liberty he

w^d observe that on the same principle the Judiciary ought to be

periodically degraded; certain it was that the Legislature ought on

every principle, yet no one had proposed, or conceived that the members

of it should not be re-eligible. In answer to Doc^r Franklin, that a

return into the mass of the people would be a promotion, instead of a

degradation, he had no doubt that our Executive like most others would

have too much patriotism to shrink from the burthen of his office, and

too much modesty not to be willing to decline the promotion.

On the question on the whole resolution as amended in the words

following--"that a National Executive be instituted--to consist of a

single person--to be chosen by the Nat^l legislature--for the term of

seven years--to be ineligible a 2^d time--with power to carry into

execution the nat^l laws--to appoint to offices in cases not otherwise

provided for--to be removable on impeachment & conviction of

mal-practice or neglect of duty--to receive a fixt compensation for the

devotion of his time to the public service, to be paid out of the Nat^l

treasury"--it passed in the affirmative

N. H. ay. Mass. not on floor. C^t ay. N. J. ay. P^a no. Del.

no. M^d no. V^a div^d. M^r Blair & Col. Mason ay. Gen^l

Washington & M^r Madison no. M^r Randolph happened to be out of

the House. N. C. ay. S. C. ay. Geo. ay.

M^r Mason moved "that the Co[~m]ittee of detail be instructed to receive

a clause requiring certain qualifications of landed property &

citizenship of the U. States, in members of the Legislature, and

disqualifying persons having unsettled Acc^{ts} with or being indebted

to the U. S., from being members of the Nat^l Legislature."--He observed

that persons of the latter descriptions had frequently got into the

State Legislatures, in order to promote laws that might shelter their

delinquencies; and that this evil had crept into Cong^s if Report was to

be regarded.

M^r Pinckney seconded the motion.

Mr. Gov^r Morris. If qualifications are proper, he w^d prefer them in

the electors rather than the elected. As to debtors of the U. S. they

are but few. As to persons having unsettled accounts he believed them to

be pretty many. He thought however that such a discrimination would be

both odious & useless, and in many instances, unjust & cruel. The delay

of settlem^t had been more the fault of the Public than of the

individuals. What will be done with those patriotic Citizens who have

lent money, or services or property to their Country, without having

been yet able to obtain a liquidation of their claims? Are they to be

excluded?

M^r Ghorum was for leaving to the Legislature the providing ag^{st} such

abuses as had been mentioned.

Col. Mason mentioned the parliamentary qualifications adopted in the

Reign of Queen Anne, which he said had met with universal approbation.

M^r Madison had witnessed the zeal of men having acc^{ts} with the

public, to get into the Legislatures for sinister purposes. He thought

however that if any precaution were taken for excluding them, the one

proposed by Col. Mason ought to be new modelled. It might be well to

limit the exclusion to persons who had rec^d money from the public, and

had not accounted for it.

M^r Gov^r Morris. It was a precept of great antiquity as well as of high

authority that we should not be righteous overmuch. He thought we ought

to be equally on our guard ag^{st} being wise overmuch. The proposed

regulation would enable the Govern^t to exclude particular persons from

office as long as they pleased. He mentioned the case of the Co[~m]ander

in Chief's presenting his account for secret services, which he said was

so moderate that every one was astonished at it; and so simple that no

doubt could arise on it. Yet had the Auditor been disposed to delay the

settlement, how easily he might have effected it, & how cruel w^d it be

in such a case to keep a distinguished & meritorious Citizen under a

temporary disability & disfranchisement. He mentioned this case merely

to illustrate the objectionable nature of the proposition. He was

opposed to such minutious regulations in a Constitution. The

parliamentary qualifications quoted by Col. Mason, had been disregarded

in practice; and was but a scheme of the landed ag^{st} the monied

interest.

M^r Pinckney & Gen^l Pinckney moved to insert by way of amendm^t the

words Judiciary & Executive so as to extend the qualifications to those

departments which was agreed to nem con.

M^r Gerry thought the inconveniency of excluding a few worthy

individuals who might be public debtors or have unsettled acc^{ts} ought

not to be put in the scale ag^{st} the public advantages of the

regulation, and that the motion did not go far enough.

M^r King observed that there might be great danger in requiring landed

property as a qualification since it would exclude the monied interest,

whose aids may be essential in particular emergencies to the public

safety.

M^r Dickinson, was ag^{st} any recital of qualifications in the

Constitution. It was impossible to make a compleat one, and a partial

one w^d by implication tie up the hands of the Legislature from

supplying the omissions. The best defence lay in the freeholders who

were to elect the Legislature. Whilst this Source should remain pure,

the Public interest would be safe. If it ever should be corrupt, no

little expedients would repel the danger. He doubted the policy of

interweaving into a Republican constitution a veneration for wealth. He

had always understood that a veneration for poverty & virtue, were the

objects of republican encouragement. It seemed improper that any man of

merit should be subjected to disabilities in a Republic where merit was

understood to form the great title to public trust, honors & rewards.

M^r Gerry if property be one object of Government, provisions to secure

it cannot be improper.

M^r Madison moved to strike out the word _landed_, before the word

"qualifications." If the proposition s^d be agreed to he wished the

Committee to be at liberty to report the best criterion they could

devise. Landed possessions were no certain evidence of real wealth. Many

enjoyed them to a great extent who were more in debt than they were

worth. The unjust Laws of the States had proceeded more from this class

of men, than any others. It had often happened that men who had acquired

landed property on credit, got into the Legislatures with a view of

promoting an unjust protection ag^{st} their Creditors. In the next

place, if a small quantity of land should be made the standard, it would

be no security; if a large one, it would exclude the proper

representatives of those classes of Citizens who were not landholders.

It was politic as well as just that the interests & rights of every

class should be duly represented & understood in the public Councils. It

was a provision every where established that the Country should be

divided into districts & representatives taken from each, in order that

the Legislative Assembly might equally understand & sympathize with the

rights of the people in every part of the Community. It was not less

proper that every class of Citizens should have an opportunity of making

their rights be felt & understood in the public Councils. The three

principal classes into which our citizens were divisible, were the

landed the commercial, & the manufacturing. The 2^d & 3^d class, bear as

yet a small proportion to the first. The proportion however will daily

increase. We see in the populous Countries in Europe now, what we shall

be hereafter. These classes understand much less of each others

interests & affairs, than men of the same class inhabiting different

districts. It is particularly requisite therefore that the interests of

one or two of them should not be left entirely to the care, or

impartiality of the third. This must be the case if landed

qualifications should be required; few of the mercantile, & scarcely any

of the manufacturing class chusing whilst they continue in business to

turn any part of their Stock into landed property. For these reasons he

wished if it were possible that some other criterion than the mere

possession of land should be devised. He concurred with M^r Gov^r Morris

in thinking that qualifications in the Electors would be much more

effectual than in the elected. The former would discriminate between

real & ostensible property in the latter; But he was aware of the

difficulty of forming any uniform standard that would suit the different

circumstances & opinions prevailing in the different States.

M^r Gov^r Morris 2^{ded} the motion.

On the Question for striking out "landed"

N. H. ay. Mass. ay. C^t ay. N. J. ay. P^a ay. Del. ay. M^d no.

V^a ay. N. C. ay. S. C. ay. Geo. ay.

On Question on 1^{st} part of Col. Masons proposition as to

"qualification of property & citizenship," as so amended

N. H. ay. Mas^{ts} ay. C^t no. N. J. ay. P^a no. Del. no.

M^d ay. V^a ay. N. C. ay. S. C. ay. Geo. ay.

"The 2^d part, for disqualifying debtors, and persons having unsettled

accounts," being under consideration

M^r Carrol moved to strike out "having unsettled accounts"

M^r Ghorum seconded the motion; observing that it would put the

commercial & manufacturing part of the people on a worse footing than

others as they would be most likely to have dealings with the public.

M^r L. Martin, if these words should be struck out, and the remaining

words concerning debtors retained, it will be the interest of the latter

class to keep their accounts unsettled as long as possible.

M^r Wilson was for striking them out. They put too much power in the

hands of the Auditors, who might combine with rivals in delaying

settlements in order to prolong the disqualifications of particular men.

We should consider that we are providing a Constitution for future

generations, and not merely for the peculiar circumstances of the

moment. The time has been, and will again be, when the public safety may

depend on the voluntary aids of individuals which will necessarily open

acc^{ts} with the public, and when such acc^{ts} will be a

characteristic of patriotism. Besides a partial enumeration of cases

will disable the Legislature from disqualifying odious & dangerous

characters.

M^r Langdon[13] was for striking out the whole clause for the reasons

given by M^r Wilson. So many exclusions he thought too would render the

system unacceptable to the people.

[13] "M^r Langdon is a man of considerable fortune, possesses a

liberal mind, and a good plain understanding--about 40 years

old."--Pierce's Notes, _Am. Hist. Rev._, iii., 325.

M^r Gerry. If the argum^{ts} used today were to prevail, we might have a

Legislature composed of Public debtors, pensioners, placemen &

contractors. He thought the proposed qualifications would be pleasing to

the people. They will be considered as a security ag^{st} unnecessary or

undue burdens being imposed on them. He moved to add "pensioners" to the

disqualified characters which was negatived.

N. H. no. Mas. ay. Con. no. N. J. no. P^a no. Del. no.

Mary^d ay. V^a no. N. C. divided. S. C. no. Geo. ay.

M^r Gov^r Morris. The last clause, relating to public debtors will

exclude every importing merchant. Revenue will be drawn it is foreseen

as much as possible, from trade. Duties of course will be bonded, and

the Merch^{ts} will remain debtors to the public. He repeated that it

had not been so much the fault of individuals as of the public that

transactions between them had not been more generally liquidated &

adjusted. At all events to draw from our short & scanty experience rules

that are to operate through succeeding ages, does not savour much of

real wisdom.

On question for striking out, "persons having unsettled accounts with

the U. States."

N. H. ay. Mass. ay. C^t ay. N. J. no. P^a ay. Del. ay. M^d ay.

V^a ay. N. C. ay. S. C. ay. Geo. no.

M^r Elseworth was for disagreeing to the remainder of the clause

disqualifying Public debtors; and for leaving to the wisdom of the

Legislature and the virtue of the Citizens, the task of providing

ag^{st} such evils. Is the smallest as well as the largest debtor to be

excluded? Then every arrear of taxes will disqualify. Besides how is it

to be known to the people when they elect who are or are not public

debtors. The exclusion of pensioners & placemen in Engl^d is founded on

a consideration not existing here. As persons of that sort are dependent

on the Crown, they tend to increase its influence.

M^r Pinkney s^d he was at first a friend to the proposition, for the

sake of the clause relating to qualifications of property; but he

disliked the exclusion of public debtors; it went too far. It w^d

exclude persons who had purchased confiscated property or should

purchase Western territory of the public, and might be some obstacle to

the sale of the latter.

On the question for agreeing to the clause disqualifying public debtors

N. H. no. Mass. no. C^t no. N. J. no. P^a no. Del. no. M^d no.

V^a no. N. C. ay. S. C. no. Geo. ay.

Col. Mason, observed that it would be proper, as he thought, that some

provision should be made in the Constitution ag^{st} choosing for the

Seat of the Gen^l Gov^t the City or place at which the Seat of any State

Gov^t might be fixt. There were 2 objections ag^{st} having them at the

same place, which without mentioning others, required some precaution on

the subject. The 1^{st} was that it tended to produce disputes

concerning jurisdiction. The 2^d & principal one was that the

intermixture of the two Legislatures tended to give a provincial

tincture to y^e Nat^l deliberations. He moved that the Com^e be

instructed to receive a clause to prevent the seat of the Nat^l Gov^t

being in the same City or town with the Seat of the Gov^t of any State

longer than untill the necessary public buildings could be erected.

M^r Alex. Martin 2^{ded} the motion.

M^r Gov^r Morris did not dislike the idea, but was apprehensive that

such a clause might make enemies of Philad^a & N. York which had

expectations of becoming the Seat of the Gen^l Gov^t.

M^r Langdon approved the idea also: but suggested the case of a State

moving its seat of Gov^t to the nat^l Seat after the erection of the

Public buildings.

M^r Ghorum. The precaution may be evaded by the Nat^l Legisl^{re} by

delaying to erect the Public buildings.

M^r Gerry conceived it to be the gen^l sense of America, that neither

the Seat of a State Gov^t nor any large commercial City should be the

seat of the Gen^l Gov^t.

M^r Williamson liked the idea, but knowing how much the passions of men

were agitated by this matter, was apprehensive of turning them ag^{st}

the System. He apprehended also that an evasion, might be practised in

the way hinted by M^r Ghorum.

M^r Pinkney thought the Seat of a State Gov^t ought to be avoided; but

that a large town or its vicinity would be proper for the Seat of the

Gen^l Gov^t.

Col. Mason did not mean to press the motion at this time, nor to excite

any hostile passions ag^{st} the system. He was content to withdraw the

motion for the present.

M^r Butler was for fixing by the Constitution the place, & a central

one, for the seat of the Nat^l Gov^t.

The proceedings since Monday last were referred unanimously to the Com^e

of detail, and the Convention then unanimously adjourned till Monday,

Aug^{st} 6. that the Com^e of detail might have time to prepare & report

the Constitution. The whole proceedings as referred are as follow[14]:

[14] Madison's note says: "here copy them from the Journal p.

207." In the _Journal_ they are given as having been

"collected from the proceedings of the convention, as they

are spread over the journal from June 19^{th} to July

26^{th}."--_Journal of Federal Convention_, 207. The dates

show when the resolutions were agreed to, and are correct.

June 20. I. RESOLVED, That the Government of the United States

ought to consist of a supreme legislative, judiciary,

and executive.

June 21. II. RESOLVED, That the legislature consist of two

branches.

III. RESOLVED, That the members of the first branch of

the legislature ought to be elected by the people of the

several states, for the term of two years; to be paid

June 22. out of the publick treasury; to receive an adequate

compensation for their services; to be of the age of

June 23. twenty-five years at least; to be ineligible and

incapable of holding any office under the authority of

the United States (except those peculiarly belonging to

the functions of the first branch) during the term of

service of the first branch.

June 25. IV. RESOLVED, That the members of the second branch of

the legislature of the United States ought to be chosen

by the individual legislatures; to be of the age of

June 26. thirty years at least; to hold their offices for six

years, one third to go out biennally; to receive a

compensation for the devotion of their time to the

publick service; to be ineligible to and incapable of

holding any office, under the authority of the United

States (except those peculiarly belonging to the

functions of the second branch) during the term for

which they are elected, and for one year thereafter.

V. RESOLVED, That each branch ought to possess the right

of originating acts.

VI. RESOLVED, That the national legislature ought to

Postponed 27. possess the legislative rights vested in Congress by the

July 16. confederation; and moreover, to legislate in all cases

for the general interests of the union, and also in

July 17. those to which the states are separately incompetent, or

in which the harmony of the United States may be

interrupted by the exercise of individual legislation.

VII. RESOLVED, That the legislative acts of the United

States, made by virtue and in pursuance of the articles

of union, and all treaties made and ratified under the

authority of the United States, shall be the supreme law

of the respective states, as far as those acts or

treaties shall relate to the said states, or their

July 17 citizens and inhabitants; and that the judiciaries of

the several states shall be bound thereby in their

decisions, any thing in the respective laws of the

individual States to the contrary, notwithstanding.

July 16. VIII. RESOLVED, That in the original formation of the

legislature of the United States, the first branch

thereof shall consist of sixty-five members; of which

number

New Hampshire shall send three,

Massachusetts eight,

Rhode Island one,

Connecticut five,

New York six,

New Jersey four,

Pennsylvania eight,

Delaware one,

Maryland six,

Virginia ten,

North Carolina five,

South Carolina five,

Georgia three.

But as the present situation of the states may probably

alter in the number of their inhabitants, the

legislature of the United States shall be authorized,

from time to time, to apportion the number of

representatives; and in case any of the states shall

hereafter be divided, or enlarged by addition of

territory, or any two or more states united, or any new

states created within the limits of the United States,

the legislature of the United States shall possess

authority to regulate the number of representatives, in

any of the foregoing cases, upon the principle of their

number of inhabitants according to the provisions

hereafter mentioned, namely--Provided always, that

representation ought to be proportioned to direct

taxation. And in order to ascertain the alteration in

the direct taxation, which may be required from time to

time by the changes in the relative circumstances of the

states--

IX. RESOLVED, That a census be taken within six years

from the first meeting of the legislature of the United

States, and once within the term of every ten years

afterwards, of all the inhabitants of the United States,

in the manner and according to the ratio recommended by

Congress in their resolution of April 18, 1783; and that

the legislature of the United States shall proportion

the direct taxation accordingly.

X. RESOLVED, That all bills for raising or appropriating

money, and for fixing the salaries of the officers of

the government of the United States, shall originate in

the first branch of the legislature of the United

States, and shall not be altered or amended by the

second branch; and that no money shall be drawn from the

publick treasury, but in pursuance of appropriations to

be originated by the first branch.

XI. RESOLVED, That in the second branch of the

legislature of the United States, each state shall have

an equal vote.

July 26. XII. RESOLVED, That a national executive be instituted,

to consist of a single person; to be chosen by the

national legislature, for the term of seven years; to be

ineligible a second time; with power to carry into

execution the national laws; to appoint to offices in

cases not otherwise provided for; to be removable on

impeachment, and conviction of mal-practice or neglect

of duty; to receive a fixed compensation for the

devotion of his time to the publick service; to be paid

out of the publick treasury.

July 21. XIII. RESOLVED, That the national executive shall have a

right to negative any legislative act, which shall not

be afterwards passed, unless by two third parts of each

branch of the national legislature.

July 18. XIV. RESOLVED, That a national judiciary be established,

to consist of one supreme tribunal, the judges of which

July 21. shall be appointed by the second branch of the national

July 18. legislature; to hold their offices during good

behaviour; to receive punctually, at stated times, a

fixed compensation for their services, in which no

diminution shall be made, so as to affect the persons

actually in office at the time of such diminution.

XV. RESOLVED, That the national legislature be empowered

to appoint inferior tribunals.

XVI. RESOLVED, That the jurisdiction of the national

judiciary shall extend to cases arising under laws

passed by the general legislature; and to such other

questions as involve the national peace and harmony.

XVII. RESOLVED, That provision ought to be made for the

admission of states lawfully arising within the limits

of the United States, whether from a voluntary junction

of government and territory, or otherwise, with the

consent of a number of voices in the national

legislature less than the whole.

XVIII. RESOLVED, That a republican form of government

shall be guarantied to each state; and that each state

shall be protected against foreign and domestick

violence.

July 23. XIX. RESOLVED, That provision ought to be made for the

amendment of the articles of union, whensoever it shall

seem necessary.

XX. RESOLVED, That the legislative, executive, and

judiciary powers within the several states, and of the

national government, ought to be bound, by oath, to

support the articles of union.

XXI. RESOLVED, That the amendments which shall be

offered to the confederation by the convention ought, at

a proper time or times after the approbation of

Congress, to be submitted to an assembly or assemblies

of representatives, recommended by the several

legislatures, to be expressly chosen by the people to

consider and decide thereon.

XXII. RESOLVED, That the representation in the second

branch of the legislature of the United States consist

of two members from each state, who shall vote per

capita.

July 26. XXIII. RESOLVED, That it be an instruction to the

committee, to whom were referred the proceedings of the

convention for the establishment of a national

government, to receive a clause or clauses, requiring

certain qualifications of property and citizenship, in

the United States, for the executive, the judiciary, and

the members of both branches of the legislature of the

United States.

With the above resolutions were referred the propositions offered by M^r

C. Pinckney on the 29^{th} of May, & by M^r Patterson on the 15^{th} of

June.[15]

[15] "Aug 1. 1787 WILLIAMSB.

"DEAR COL.

"We are here & I believe every where all Impatience to know

something of your conventional Deliberations. If you cannot

tell us what you are doing, you might at least give us some

Information of what you are not doing. This w^d afford food

for political conjecture, and perhaps be sufficient to

satisfy present Impatience. I hope you have already

discovered the means of preserving the American Empire

united--& that the scheme of a Disunion has been found

pregnant with y^e greatest Evils--But we are not at this

distance able to judge with any accuracy upon subjects so

truly important & interesting as those w^{ch} must engage

you at present--We can only hope, that you will all resemble

Cæsar, at least in one particular: 'nil actum reputans si

quid superesset agendum';--& that your Exertions will be

commensurate to y^e great Expectations w^{ch} have been

formed...

"J. MADISON."[A]

[A] President of William and Mary College, and the

first Bishop of the Episcopal Church in

Virginia. He was a second cousin of James

Madison, of Orange.

(Mad. MSS.)

"RICHMOND Aug^t 5. 87.

"DEAR SIR,

"I am much obliged to you for your communication of the

proceedings of y^e Convention, since I left them; for I feel

that anxiety about y^e result, which it's Importance must

give to every honest citizen. If I thought that my return

could contribute in the smallest degree to it's Improvement,

nothing should Keep me away. But as I know that the talents,

knowledge, & well-established character, of our present

delegates have justly inspired the country with y^e most

entire confidence in their determinations; & that my vote

could only _operate_ to produce a division, & so destroy y^e

vote of y^e State, I think that my attendance now would

certainly be useless, perhaps injurious.

"I am credibly inform'd that M^r Henry has openly express'd

his disapprobation of the circular letter of Congress,

respecting y^e payment of British debts; & that he has

declared his opinion that y^e Interests of this state cannot

safely be trusted with that body. The doctrine of three

confederacies, or great Republics, has its advocates here. I

have heard Hervie support it, along with y^e extinction of

State Legislatures within each great Department. The

necessity of some independent power to controul the Assembly

by a negative, seems now to be admitted by y^e most zealous

republicans--they only differ about y^e mode of constituting

such a power. B. Randolph seems to think that a magistrate

annually elected by y^e people might exercise such a

controul as independently as y^e King of G. B. I hope that

our representative, Marshall, will be a powerful aid to

Mason in the next Assembly. He has observ'd the actual

depravation of mens manners, under y^e corrupting Influence

of our Legislature; and is convinc'd that nothing but y^e

adoption of some efficient plan from y^e Convention can

prevent anarchy first, & civil convulsions afterwards. M^r

H----y has certainly converted a majority of Prince Edward,

formerly y^e most averse to paper money, to y^e patronage of

it....

"Your friend & humble serv^t.

"JAMES MCCLURG."

(Mad. MSS.)

MONDAY AUGUST 6^{TH}. IN CONVENTION

M^r John Francis Mercer from Maryland took his seat.

M^r Rutlidge delivered in the Report of the Committee of detail as

follows: a printed copy being at the same time furnished to each

member[16]:

[16] Madison's printed copy is marked: "As Reported by Com^e of

Detail viz of five. Aug. 6. 1787." It is a large folio of

seven pages. In the enumeration of the Articles by a

misprint VI. was repeated, and the alterations in Article

VII. and succeeding articles were made by Madison. In Sect.

II of Article VI., as it was printed, it appeared: "The

enacting stile of the laws of the United States shall be.

'Be it enacted and it is hereby enacted by the House of

Representatives, and by the Senate of the United States, in

Congress assembled,'" which Madison altered to read: "The

enacting stile of the laws of the United States shall be.

'Be it enacted by the Senate & representatives, in Congress

assembled.'" The printed copy among the Madison papers is a

duplicate of the copy filed by General Washington with the

papers of the Constitution, and Sec. II is there given as

actually printed.--_Journal of the Federal Convention_, 219.

(Const. MSS.)

Madison accurately transcribed the report for his journal

and it is this copy which is used in the text.

"We the people of the States of New Hampshire, Massachusetts,

Rhode-Island and Providence Plantations, Connecticut, New York,

New Jersey, Pennsylvania, Delaware, Maryland, Virginia,

North-Carolina, South-Carolina, and Georgia, do ordain, declare,

and establish the following Constitution for the Government of

Ourselves and our Posterity.

ARTICLE I

The stile of the Government shall be, "The United States of

America."

II

The Government shall consist of supreme legislative, executive,

and judicial powers.

III

The legislative power shall be vested in a Congress, to consist

of two separate and distinct bodies of men, a House of

Representatives and a Senate; each of which shall in all cases

have a negative on the other. The Legislature shall meet on the

first Monday in December in every year.

IV

Sect. 1. The members of the House of Representatives shall be

chosen every second year, by the people of the several States

comprehended within this Union. The qualifications of the

electors shall be the same, from time to time, as those of the

electors in the several States, of the most numerous branch of

their own legislatures.

Sect. 2. Every member of the House of Representatives shall be

of the age of twenty five years at least; shall have been a

citizen in the United States for at least three years before his

election; and shall be, at the time of his election, a resident

of the State in which he shall be chosen.

Sect. 3. The House of Representatives shall, at its first

formation, and until the number of citizens and inhabitants

shall be taken in the manner hereinafter described, consist of

sixty-five Members, of whom three shall be chosen in

New-Hampshire, eight in Massachusetts, one in Rhode-Island and

Providence Plantations, five in Connecticut, six in New-York,

four in New-Jersey, eight in Pennsylvania, one in Delaware, six

in Maryland, ten in Virginia, five in North-Carolina, five in

South-Carolina, and three in Georgia.

Sect. 4. As the proportions of numbers in different States will

alter from time to time; as some of the States may hereafter be

divided; as others may be enlarged by addition of territory; as

two or more States may be united; as new States will be erected

within the limits of the United States, the Legislature shall,

in each of these cases, regulate the number of representatives

by the number of inhabitants, according to the provisions herein

after made, at the rate of one for every forty thousand.

Sect. 5. All bills for raising or appropriating money, and for

fixing the salaries of the officers of Government, shall

originate in the House of Representatives, and shall not be

altered or amended by the Senate. No money shall be drawn from

the Public Treasury, but in pursuance of appropriations that

shall originate in the House of Representatives.

Sect. 6. The House of Representatives shall have the sole power

of impeachment. It shall choose its Speaker and other officers.

Sect. 7. Vacancies in the House of Representatives shall be

supplied by writs of election from the executive authority of

the State, in the representation from which they shall happen.

V

Sect. 1. The Senate of the United States shall be chosen by the

Legislatures of the several States. Each Legislature shall chuse

two members. Vacancies may be supplied by the Executive until

the next meeting of the Legislature. Each member shall have one

vote.

Sect. 2. The Senators shall be chosen for six years; but

immediately after the first election they shall be divided, by

lot, into three classes, as nearly as may be, numbered one, two

and three. The seats of the members of the first class shall be

vacated at the expiration of the second year, of the second

class at the expiration of the fourth year, of the third class

at the expiration of the sixth year, so that a third part of the

members may be chosen every second year.

Sect. 3. Every member of the Senate shall be of the age of

thirty years at least; shall have been a citizen in the United

States for at least four years before his election; and shall

be, at the time of his election, a resident of the State for

which he shall be chosen.

Sect. 4. The Senate shall chuse its own President and other

officers.

VI

Sect. 1. The times and places and manner of holding the

elections of the members of each House shall be prescribed by

the Legislature of each State; but their provisions concerning

them may, at any time, be altered by the Legislature of the

United States.

Sect. 2. The Legislature of the United States shall have

authority to establish such uniform qualifications of the

members of each House, with regard to property, as to the said

Legislature shall seem expedient.

Sect. 3. In each House a majority of the members shall

constitute a quorum to do business; but a smaller number may

adjourn from day to day.

Sect. 4. Each House shall be the judge of the elections, returns

and qualifications of its own members.

Sect. 5. Freedom of speech and debate in the Legislature shall

not be impeached or questioned in any Court or place out of the

Legislature; and the members of each House shall, in all cases,

except treason felony and breach of the peace, be privileged

from arrest during their attendance at Congress, and in going to

and returning from it.

Sect. 6. Each House may determine the rules of its proceedings;

may punish its members for disorderly behaviour; and may expel a

member.

Sect. 7. The House of Representatives, and the Senate, when it

shall be acting in a legislative capacity, shall keep a journal

of their proceedings, and shall, from time to time, publish

them: and the yeas and nays of the members of each House, on any

question, shall at the desire of one-fifth part of the members

present, be entered on the journal.

Sect. 8. Neither House, without the consent of the other, shall

adjourn for more than three days, nor to any other place than

that at which the two Houses are sitting. But this regulation

shall not extend to the Senate, when it shall exercise the

powers mentioned in the ---- article.

Sect. 9. The members of each House shall be ineligible to, and

incapable of holding any office under the authority of the

United States, during the time for which they shall respectively

be elected: and the members of the Senate shall be ineligible

to, and incapable of holding any such office for one year

afterwards.

Sect. 10. The members of each House shall receive a compensation

for their services, to be ascertained and paid by the State, in

which they shall be chosen.

Sect. 11. The enacting stile of the laws of the United States

shall be, "Be it enacted by the Senate and Representatives in

Congress assembled."

Sect. 12. Each House shall possess the right of originating

bills, except in the cases beforementioned.

Sect. 13. Every bill, which shall have passed the House of

Representatives and the Senate, shall, before it become a law,

be presented to the President of the United States for his

revision: if, upon such revision, he approve of it, he shall

signify his approbation by signing it: But if, upon such

revision, it shall appear to him improper for being passed into

a law, he shall return it, together with his objections against

it, to that House in which it shall have originated, who shall

enter the objections at large on their journal and proceed to

reconsider the bill. But if after such reconsideration, two

thirds of that House shall, notwithstanding the objections of

the President, agree to pass it, it shall together with his

objections, be sent to the other House, by which it shall

likewise be reconsidered, and if approved by two thirds of the

other House also, it shall become a law. But in all such cases,

the votes of both Houses shall be determined by yeas and nays;

and the names of the persons voting for or against the bill

shall be entered on the journal of each House respectively. If

any bill shall not be returned by the President within seven

days after it shall have been presented to him, it shall be a

law, unless the legislature, by their adjournment, prevent its

return; in which case it shall not be a law.

VII

Sect. 1. The Legislature of the United States shall have the

power to lay and collect taxes, duties, imposts and excises;

To regulate commerce with foreign nations, and among the several

States;

To establish an uniform rule of naturalization throughout the

United States;

To coin money;

To regulate the value of foreign coin;

To fix the standard of weights and measures;

To establish Post-offices;

To borrow money, and emit bills on the credit of the United

States;

To appoint a Treasurer by ballot;

To constitute tribunals inferior to the Supreme Court;

To make rules concerning captures on land and water;

To declare the law and punishment of piracies and felonies

committed on the high seas, and the punishment of counterfeiting

the coin of the United States, and of offences against the law

of nations;

To subdue a rebellion in any State, on the application of its

legislature;

To make war;

To raise armies;

To build and equip fleets;

To call forth the aid of the militia, in order to execute the

laws of the Union, enforce treaties, suppress insurrections, and

repel invasions;

And to make all laws that shall be necessary and proper for

carrying into execution the foregoing powers, and all other

powers vested, by this Constitution, in the government of the

United States, or in any department or officer thereof;

Sect. 2. Treason against the United States shall consist only in

levying war against the United States, or any of them; and in

adhering to the enemies of the United States, or any of them.

The Legislature of the United States shall have power to declare

the punishment of treason. No person shall be convicted of

treason, unless on the testimony of two witnesses. No attainder

of treason shall work corruption of blood, nor forfeiture,

except during the life of the person attainted.

Sect. 3. The proportions of direct taxation shall be regulated

by the whole number of white and other free citizens and

inhabitants, of every age, sex and condition, including those

bound to servitude for a term of years, and three fifths of all

other persons not comprehended in the foregoing description,

(except Indians not paying taxes) which number shall, within six

years after the first meeting of the Legislature, and within the

term of every ten years afterwards, be taken in such manner as

the said Legislature shall direct.

Sect. 4. No tax or duty shall be laid by the Legislature on

articles exported from any State; nor on the migration or

importation of such persons as the several States shall think

proper to admit; nor shall such migration or importation be

prohibited.

Sect. 5. No capitation tax shall be laid, unless in proportion

to the Census hereinbefore directed to be taken.

Sect. 6. No navigation act shall be passed without the assent of

two thirds of the members present in each House.

Sect. 7. The United States shall not grant any title of

Nobility.

VIII

The acts of the Legislature of the United States made in

pursuance of this Constitution, and all treaties made under the

authority of the United States shall be the supreme law of the

several States, and of the citizens and inhabitants; and the

judges in the several States shall be bound thereby in their

decisions; any thing in the Constitutions or laws of the several

States to the contrary notwithstanding.

IX

Sect 1. The Senate of the United States shall have power to make

treaties, and to appoint Ambassadors, and Judges of the Supreme

Court.

Sect. 2. In all disputes and controversies now subsisting, or

that may hereafter subsist between two or more States,

respecting jurisdiction or territory, the Senate shall possess

the following powers. Whenever the Legislature, or the Executive

authority, or lawful agent of any State, in controversy with

another, shall by memorial to the Senate, state the matter in

question, and apply for a hearing; notice of such memorial and

application shall be given by order of the Senate, to the

Legislature or the Executive authority of the other State in

Controversy. The Senate shall also assign a day for the

appearance of the parties, by their agents, before the House.

The Agents shall be directed to appoint, by joint consent,

commissioners or judges to constitute a Court for hearing and

determining the matter in question. But if the Agents cannot

agree, the Senate shall name three persons out of each of the

several States; and from the list of such persons each party

shall alternately strike out one, until the number shall be

reduced to thirteen; and from that number not less than seven

nor more than nine names, as the Senate shall direct, shall in

their presence, be drawn out by lot; and the persons whose names

shall be so drawn, or any five of them shall be commissioners or

Judges to hear and finally determine the controversy; provided a

majority of the Judges, who shall hear the cause, agree in the

determination. If either party shall neglect to attend at the

day assigned, without shewing sufficient reasons for not

attending, or being present shall refuse to strike, the Senate

shall proceed to nominate three persons out of each State, and

the Clerk of the Senate shall strike in behalf of the party

absent or refusing. If any of the parties shall refuse to submit

to the authority of such Court; or shall not appear to prosecute

or defend their claim or cause, the Court shall nevertheless

proceed to pronounce judgment. The judgment shall be final and

conclusive. The proceedings shall be transmitted to the

President of the Senate, and shall be lodged among the public

records for the security of the parties concerned. Every

Commissioner shall, before he sit in judgment, take an oath, to

be administered by one of the Judges of the Supreme or Superior

Court of the State where the cause shall be tried, "well and

truly to hear and determine the matter in question according to

the best of his judgment, without favor, affection, or hope of

reward."

Sect. 3. All controversies concerning lands claimed under

different grants of two or more States, whose jurisdictions, as

they respect such lands, shall have been decided or adjusted

subsequent to such grants, or any of them, shall, on application

to the Senate, be finally determined, as near as may be, in the

same manner as is before prescribed for deciding controversies

between different States.

X

Sect. 1. The Executive Power of the United States shall be

vested in a single person. His stile shall be, "The President of

the United States of America;" and his title shall be, "His

Excellency." He shall be elected by ballot by the Legislature.

He shall hold his office during the term of seven years; but

shall not be elected a second time.

Sect. 2. He shall, from time to time, give information to the

Legislature, of the state of the Union: he may recommend to

their consideration such measures as he shall judge necessary,

and expedient: he may convene them on extraordinary occasions.

In case of disagreement between the two Houses, with regard to

the time of adjournment, he may adjourn them to such time as he

thinks proper: he shall take care that the laws of the United

States be duly and faithfully executed: he shall commission all

the officers of the United States; and shall appoint officers in

all cases not otherwise provided for by this Constitution. He

shall receive Ambassadors, and may correspond with the supreme

Executives of the several States. He shall have power to grant

reprieves and pardons; but his pardon shall not be pleadable in

bar of an impeachment. He shall be commander in chief of the

Army and Navy of the United States, and of the militia of the

several States. He shall, at stated times, receive for his

services, a compensation, which shall neither be increased nor

diminished during his continuance in office. Before he shall

enter on the duties of his department, he shall take the

following oath or affirmation, "I ---- solemnly swear, (or

affirm) that I will faithfully execute the office of President

of the United States of America." He shall be removed from his

office on impeachment by the House of Representatives, and

conviction in the Supreme Court, of treason, bribery, or

corruption. In case of his removal as aforesaid, death,

resignation, or disability to discharge the powers and duties of

his office, the President of the Senate shall exercise those

powers and duties, until another President of the United States

be chosen, or until the disability of the President be removed.

XI

Sect. 1. The Judicial Power of the United States shall be vested

in one Supreme Court, and in such inferior Courts as shall, when

necessary, from time to time, be constituted by the Legislature

of the United States.

Sect. 2. The Judges of the Supreme Court, and of the Inferior

Courts, shall hold their offices during good behaviour. They

shall, at stated times, receive for their services, a

compensation, which shall not be diminished during their

continuance in office.

Sect. 3. The Jurisdiction of the Supreme Court shall extend to

all cases arising under laws passed by the Legislature of the

United States; to all cases affecting Ambassadors, other Public

Ministers and Consuls; to the trial of impeachments of officers

of the United States; to all cases of Admiralty and maritime

jurisdiction; to controversies between two or more States,

(except such as shall regard Territory or Jurisdiction) between

a State and Citizens of another State, between Citizens of

different States, and between a State or the Citizens thereof

and foreign States, citizens or subjects. In cases of

impeachment, cases affecting Ambassadors, other Public Ministers

and Consuls, and those in which a State shall be party, this

jurisdiction shall be original. In all the other cases

beforementioned, it shall be appellate, with such exceptions and

under such regulations as the Legislature shall make. The

Legislature may assign any part of the jurisdiction

abovementioned (except the trial of the President of the United

States) in the manner, and under the limitations which it shall

think proper, to such Inferior Courts, as it shall constitute

from time to time.

Sect. 4. The trial of all criminal offences (except in cases of

impeachments) shall be in the State where they shall be

committed; and shall be by Jury.

Sect. 5. Judgment, in cases of Impeachment, shall not extend

further than to removal from office, and disqualification to

hold and enjoy any office of honour, trust or profit, under the

United States. But the party convicted shall, nevertheless be

liable and subject to indictment, trial, judgment and punishment

according to law.

XII

No State shall coin money; nor grant letters of marque and

reprisal; nor enter into any Treaty, alliance, or confederation;

nor grant any title of Nobility.

XIII

No State, without the consent of the Legislature of the United

States, shall emit bills of credit, or make any thing but specie

a tender in payment of debts; nor lay imposts or duties on

imports; nor keep troops or ships of war in time of peace; nor

enter into any agreement or compact with another State, or 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 a delay, until the Legislature of

the United States can be consulted.

XIV

The Citizens of each State shall be entitled to all privileges

and immunities of citizens in the several States.

XV

Any person charged with treason, felony or high misdemeanor in

any State, who shall flee from justice, and shall be found in

any other State, shall, on demand of the Executive power of the

State from which he fled, be delivered up and removed to the

State having jurisdiction of the offence.

XVI

Full faith shall be given in each State to the acts of the

Legislatures, and to the records and judicial proceedings of the

Courts and magistrates of every other State.

XVII

New States lawfully constituted or established within the limits

of the United States may be admitted, by the Legislature, into

this government; but to such admission the consent of two thirds

of the members present in each House shall be necessary. If a

new State shall arise within the limits of any of the present

States, the consent of the Legislatures of such States shall be

also necessary to its admission. If the admission be consented

to, the new States shall be admitted on the same terms with the

original States. But the Legislature may make conditions with

the new States, concerning the Public debt which shall be then

subsisting.

XVIII

The United States shall guaranty to each State a Republican form

of Government; and shall protect each State against foreign

invasions, and, on the application of its Legislature, against

domestic violence.

XIX

On the application of the Legislatures of two thirds of the

States in the Union, for an amendment of this Constitution, the

Legislature of the United States shall call a convention for

that purpose.

XX

The members of the Legislatures, and the Executive and Judicial

officers of the United States, and of the several States, shall

be bound by oath to support this Constitution.

XXI

The ratification of the Conventions of ---- States shall be

sufficient for organizing this Constitution.

XXII

This Constitution shall be laid before the United States in

Congress Assembled, for their approbation; and it is the opinion

of this Convention, that it should be afterwards submitted to a

Convention chosen, under the recommendation of its legislature,

in order to receive the ratification of such Convention.

XXIII

To introduce this government, it is the opinion of this

Convention, that each assenting Convention should notify its

assent and ratification to the United States in Congress

assembled; that Congress, after receiving the assent and

ratification of the Conventions of ---- States, should appoint

and publish a day, as early as may be, and appoint a place, for

commencing proceedings under this Constitution; that after such

publication, the Legislatures of the several States should elect

members of the Senate, and direct the election of members of the

House of Representatives; and that the members of the

Legislature should meet at the time and place assigned by

Congress, and should, as soon as may be, after their meeting,

choose the President of the United States, and proceed to

execute this Constitution.

A motion was made to adjourn till Wednesday, in order to give leisure to

examine the Report; which passed in the negative--

N. H. no. Mas. no. C^t no. P^a ay. M^d ay. Virg. ay. N. C. no.

S. C. no.

The House then adjourned till to-morrow 11 OC.

TUESDAY AUGUST 7.[17] IN CONVENTION

[17] Although the secrecy of the proceedings was guarded carefully,

the reason of the long adjournment was generally known

outside of the Convention.

"The Convention adjourned about three weeks ago and

appointed a Committee consisting of M^r Rutlege, M^r

Randolph, M^r Wilson, M^r Elsworth, & M^r Gorham to draw

into form the measures which had been agreed upon--they

reassembled last Monday sen'night to receive the report--I

suppose we shall have the result of this great business in a

few weeks more."--Edward Carrington to Monroe, August 7,

1787.

Monroe MSS.

_Cf._ King's account of the debate confirming the accuracy

of Madison's report (King's _Life and Correspondence of

Rufus King_, i., 617).

The Report of the Committee of detail being taken up,

M^r Pinkney moved that it be referred to a Committee of the whole. This

was strongly opposed by M^r Ghorum & several others, as likely to

produce unnecessary delay; and was negatived, Delaware Mary^d & Virg^a

only being in the affirmative.

The preamble of the Report was agreed to nem. con. So were Art: I & II.

Art: III considered. Col. Mason doubted the propriety of giving each

branch a negative on the other "in all cases." There were some cases in

which it was he supposed not intended to be given as in the case of

balloting for appointments.

M^r Gov^r Morris moved to insert "legislative acts" instead of "all

cases."

M^r Williamson 2^{ds} him.

M^r Sherman. This will restrain the operation of the clause too much. It

will particularly exclude a mutual negative in the case of ballots,

which he hoped would take place.

M^r Ghorum contended that elections ought to be made by _joint ballot_.

If separate ballots should be made for the President, and the two

branches should be each attached to a favorite, great delay contention &

confusion may ensue. These inconveniences have been felt in Mas^{ts} in

the election of officers of little importance compared with the

Executive of the U. States. The only objection ag^{st} a joint ballot is

that it may deprive the Senate of their due weight; but this ought not

to prevail over the respect due to the public tranquility & welfare.

M^r Wilson was for a joint ballot in several cases at least;

particularly in the choice of the President, and was therefore for the

amendment. Disputes between the two Houses during & concern^g the

vacancy of the Executive might have dangerous consequences.

Col. Mason thought the amendment of M^r Gov^r Morris extended too far.

Treaties are in a subsequent part declared to be laws, they will

therefore be subjected to a negative; altho' they are to be made as

proposed by the Senate alone. He proposed that the mutual negative

should be restrained to "cases requiring the distinct assent" of the two

Houses.

M^r Gov^r Morris thought this but a repetition of the same thing; the

mutual negative and distinct assent, being equivalent expressions.

Treaties he thought were not laws.

M^r Madison moved to strike out the words each of which shall in all

cases, have a negative on the other; the idea being sufficiently

expressed in the preceding member of the article; vesting the

"legislative power" in "distinct bodies," especially as the respective

powers and mode of exercising them were fully delineated in a subsequent

article.

Gen^l Pinkney 2^{ded} the motion.

On question for inserting legislative Acts as moved by M^r Gov^r Morris

N. H. ay. Mas. ay. C^t ay. P^a ay. Del. no. M^d no. V^a no.

N. C. ay. S. C. no. Geo. no.

On question for agreeing to M^r M's motion to strike out &c.----

N. H. ay. Mas. ay. C^t no. P^a ay. Del. ay. M^d no. V^a ay.

N. C. no. S. C. ay. Geo. ay.

M^r Madison wished to know the reasons of the Com^e for fixing by y^e

Constitution the time of Meeting for the Legislature; and suggested,

that it be required only that one meeting at least should be held every

year leaving the time to be fixed or varied by law.

M^r Gov^r Morris moved to strike out the sentence. It was improper to

tie down the Legislature to a particular time, or even to require a

meeting every year. The public business might not require it.

M^r Pinkney concurred with M^r Madison.

M^r Ghorum. If the time be not fixed by the Constitution, disputes will

arise in the Legislature; and the States will be at a loss to adjust

thereto, the times of their elections. In the N. England States the

annual time of meeting had been long fixed by their Charters &

Constitutions, and no inconvenience had resulted. He thought it

necessary that there should be one meeting at least every year as a

check on the Executive department.

M^r Elseworth was ag^{st} striking out the words. The Legislature will

not know till they are met whether the public interest required their

meeting or not. He could see no impropriety in fixing the day, as the

Convention could judge of it as well as the Legislature.

M^r Wilson thought on the whole it would be best to fix the day.

M^r King could not think there would be a necessity for a meeting every

year. A great vice in our system was that of legislating too much. The

most numerous objects of legislation belong to the States. Those of the

Nat^l Legislature were but few. The chief of them were commerce &

revenue. When these should be once settled alterations would be rarely

necessary & easily made.

M^r Madison thought if the time of meeting should be fixed by a law it

w^d be sufficiently fixed & there would be no difficulty then as had

been suggested, on the part of the States in adjusting their elections

to it. One consideration appeared to him to militate strongly ag^{st}

fixing a time by the Constitution. It might happen that the Legislature

might be called together by the public exigencies & finish their Session

but a short time before the annual period. In this case it would be

extremely inconvenient to reassemble so quickly & without the least

necessity. He thought one annual meeting ought to be required; but did

not wish to make two unavoidable.

Col. Mason thought the objections against fixing the time insuperable:

but that an annual meeting ought to be required as essential to the

preservation of the Constitution. The extent of the Country will supply

business. And if it should not, the Legislature, besides _legislative_,

is to have _inquisitorial_ powers, which cannot safely be long kept in a

state of suspension.

M^r Sherman was decided for fixing the time, as well as for frequent

meetings of the Legislative body. Disputes and difficulties will arise

between the two Houses, & between both & the States, if the time be

changeable--frequent meetings of Parliament were required at the

Revolution in England as an essential safeguard of liberty. So also are

annual meetings in most of the American charters & constitutions. There

will be business eno' to require it. The Western Country, and the great

extent and varying state of our affairs in general will supply objects.

M^r Randolph was ag^{st} fixing any day irrevocably; but as there was

no provision made any where in the Constitution for regulating the

periods of meeting, and some precise time must be fixed, untill the

Legislature shall make provision, he could not agree to strike out

the words altogether. Instead of which he moved to add the words

following--"unless a different day shall be appointed by law."

M^r Madison 2^{ded} the motion, & on the question

N. H. no. Mass. ay. C^t no. P^a ay. Del. ay. M^d ay. V^a ay.

N. C. ay. S. C. ay. Geo. ay.

M^r Gov^r Morris moved to strike out Dec^r & insert May. It might

frequently happen that our measures ought to be influenced by those in

Europe, which were generally planned during the Winter and of which

intelligence would arrive in the Spring.

M^r Madison 2^{ded} the motion, he preferred May to Dec^r because the

latter would require the travelling to & from the seat of Gov^t in the

most inconvenient seasons of the year.

M^r Wilson. The Winter is the most convenient season for business.

M^r Elseworth. The summer will interfere too much with private business,

that of almost all the probable members of the Legislature being more or

less connected with agriculture.

M^r Randolph. The time is of no great moment now, as the Legislature can

vary it. On looking into the Constitutions of the States, he found that

the times of their elections with which the election of the Nat^l

Representatives would no doubt be made to coincide, would suit better

with Dec^r than May. And it was advisable to render our innovations as

little incommodious as possible.

On the question for "May" instead of "Dec^r"

N. H. no. Mass. no. C^t no. P^a no. Del. no. M^d no. V^a no.

N. C. no. S. C. ay. Geo. ay.

M^r Read moved to insert after the word "Senate," the words, "subject to

the Negative to be hereafter provided." His object was to give an

absolute Negative to the Executive--He considered this as so essential

to the Constitution, to the preservation of liberty, & to the public

welfare, that his duty compelled him to make the Motion.

M^r Gov^r Morris 2^{ded} him. And on the question

N. H. no. Mass. no. C^t no. P^a no. Del. ay. M^d no. V^a no.

N. C. no. S. C. no. Geo. no.

M^r Rutlidge. Altho' it is agreed on all hands that an annual meeting of

the Legislature should be made necessary, yet that point seems not to be

free from doubt as the clause stands. On this suggestion, "Once at least

in every year," were inserted, nem. con.

Art. III with the foregoing alterations was ag^d to nem. con., and is as

follows: "The Legislative power shall be vested in a Congress to consist

of 2 separate & distinct bodies of men; a House of Rep^s & a Senate. The

Legislature shall meet at least once in every year, and such meeting

shall be on the 1^{st} Monday in Dec^r unless a different day shall be

appointed by law."

"Article IV. Sect. 1. taken up."

M^r Gov^r Morris moved to strike out the last member of the section

beginning with the words "qualifications of Electors," in order that

some other provision might be substituted which w^d restrain the right

of suffrage to freeholders.

M^r Fitzsimons 2^{ded} the motion.

M^r Williamson was opposed to it.

M^r Wilson. This part of the Report was well considered by the

Committee, and he did not think it could be changed for the better. It

was difficult to form any uniform rule of qualifications for all the

States. Unnecessary innovations he thought too should be avoided. It

would be very hard & disagreeable for the same persons at the same time,

to vote for representatives in the State Legislature and to be excluded

from a vote for those in the Nat^l Legislature.

M^r Gov^r Morris. Such a hardship would be neither great nor novel. The

people are accustomed to it and not dissatisfied with it, in several of

the States. In some the qualifications are different for the choice of

the Gov^r & Representatives; In others for different Houses of the

Legislature. Another objection ag^{st} the clause as it stands is that

it makes the qualifications of the Nat^l Legislature depend on the will

of the States, which he thought not proper.

M^r Elseworth. thought the qualifications of the electors stood on the

most proper footing. The right of suffrage was a tender point, and

strongly guarded by most of the State Constitutions. The people will not

readily subscribe to the Nat^l Constitution if it should subject them to

be disfranchised. The States are the best Judges of the circumstances &

temper of their own people.

Col. Mason. The force of habit is certainly not attended to by those

Gentlemen who wish for innovations on this point. Eight or nine States

have extended the right of suffrage beyond the freeholders. What will

the people there say, if they should be disfranchised. A power to alter

the qualifications would be a dangerous power in the hands of the

Legislature.

M^r Butler. There is no right of which the people are more jealous than

that of suffrage. Abridgments of it tend to the same revolution as in

Holland where they have at length thrown all power into the hands of the

Senates, who fill up vacancies themselves, and form a rank aristocracy.

M^r Dickinson. had a very different idea of the tendency of vesting the

right of suffrage in the freeholders of the Country. He considered them

as the best guardians of liberty; And the restriction of the right to

them as a necessary defence ag^{st} the dangerous influence of those

multitudes without property & without principle with which our Country

like all others, will in time abound. As to the unpopularity of the

innovation it was in his opinion chimerical. The great mass of our

Citizens is composed at this time of freeholders, and will be pleased

with it.

M^r Elseworth. How shall the freehold be defined? Ought not every man

who pays a tax, to vote for the representative who is to levy & dispose

of his money? Shall the wealthy merchants & manufacturers, who will bear

a full share of the public burthens be not allowed a voice in the

imposition of them. Taxation & representation ought to go together.

M^r Gov^r Morris. He had long learned not to be the dupe of words. The

sound of aristocracy therefore had no effect on him. It was the thing,

not the name, to which he was opposed, and one of his principal

objections to the Constitution as it is now before us, is that it

threatens this Country with an aristocracy. The aristocracy will grow

out of the House of Representatives. Give the votes to people who have

no property, and they will sell them to the rich who will be able to buy

them. We should not confine our attention to the present moment. The

time is not distant when this Country will abound with mechanics &

manufacturers who will receive their bread from their employers. Will

such men be the secure & faithful guardians of liberty? Will they be the

impregnable barrier ag^{st} aristocracy?--He was as little duped by the

association of the words, "taxation & Representation." The man who does

not give his vote freely is not represented. It is the man who dictates

the vote. Children do not vote. Why? because they want prudence, because

they have no will of their own. The ignorant & the dependent can be as

little trusted with the public interest. He did not conceive the

difficulty of defining "freeholders" to be insuperable. Still less that

the restriction could be unpopular. 9/10 of the people are at present

freeholders and these will certainly be pleased with it. As to

Merch^{ts}. &c. if they have wealth & value the right they can acquire

it. If not they don't deserve it.

Col. Mason. We all feel too strongly the remains of antient prejudices,

and view things too much through a British medium. A Freehold is the

qualification in England, & hence it is imagined to be the only proper

one. The true idea in his opinion was that every man having evidence of

attachment to & permanent common interest with the Society ought to

share in all its rights & privileges. Was this qualification restrained

to freeholders? Does no other kind of property but land evidence a

common interest in the proprietor? does nothing besides property mark a

permanent attachment. Ought the merchant, the monied man, the parent of

a number of children whose fortunes are to be pursued in his own Country

to be viewed as suspicious characters, and unworthy to be trusted with

the common rights of their fellow Citizens.

M^r Madison. the right of suffrage is certainly one of the fundamental

articles of republican Government, and ought not to be left to be

regulated by the Legislature. A gradual abridgment of this right has

been the mode in which aristocracies have been built on the ruins of

popular forms. Whether the Constitutional qualification ought to be a

freehold, would with him depend much on the probable reception such a

change would meet with in States where the right was now exercised by

every description of people. In several of the States a freehold was now

the qualification. Viewing the subject in its merits alone, the

freeholders of the Country would be the safest depositories of

Republican liberty. In future times a great majority of the people will

not only be without landed, but any other sort of property. These will

either combine, under the influence of their common situation: in which

case, the rights of property & the public liberty, will not be secure in

their hands: or which is more probable, they will become the tools of

opulence & ambition, in which case there will be equal danger on another

side. The example of England has been misconceived (by Col. Mason.) A

very small proportion of the Representatives are there chosen by

freeholders. The greatest part are chosen by the Cities & boroughs, in

many of which the qualification of suffrage is as low as it is in any

one of the U. S. and it was in the boroughs & Cities rather than the

Counties, that bribery most prevailed, & the influence of the Crown on

elections was most dangerously exerted.[18]

[18] "Note to speech of J. M. in Convention of 1787, August

7^{th}.:

"As appointments for the General Government here

contemplated will, in part, be made by the State Gov^{ts},

all the Citizens in States where the right of suffrage is

not limited to the holders of property, will have an

indirect share of representation in the General Government.

But this does not satisfy the fundamental principle that men

cannot be justly bound by laws in making which they have no

part. Persons & property being both essential objects of

Government, the most that either can claim, is such a

structure of it as will leave a reasonable security for the

other. And the most obvious provision, of this double

character, seems to be that of confining to the holders of

property the object deemed least secure in popular Gov^{ts}

the right of suffrage for one of the two Legislative

branches. This is not without example among us, as well as

other constitutional modifications, favouring the influence

of property in the Government. But the U. S. have not

reached the stage of Society in which conflicting feelings

of the Class with, and the Class without property, have the

operation natural to them in Countries fully peopled. The

most difficult of all political arrangements is that of so

adjusting the claims of the two Classes as to give security

to each and to promote the welfare of all. The federal

principle,--which enlarges the sphere of power without

departing from the elective basis of it and controuls in

various ways the propensity in small republics to rash

measures & the facility of forming & executing them, will be

found the best expedient yet tried for solving the

problem."--Madison's Note.

* * * * *

"Note to the speech of J. M. on the [7^{th}.] day of

[August].

"These observations (in the speech of J. M. see debates in

the Convention of 1787, on the [7^{th}.] day of [August]) do

not convey the speaker's more full & matured view of the

subject, which is subjoined. He felt too much at the time

the example of Virginia.

"The right of suffrage is a fundamental Article in

Republican Constitutions. The regulation of it is, at the

same time, a task of peculiar delicacy. Allow the right

exclusively to property, and the rights of persons may be

oppressed. The feudal polity, alone sufficiently proves it.

Extend it equally to all, and the rights of property, or the

claims of justice, may be overruled by a majority without

property or interested in measures of injustice. Of this

abundant proof is afforded by other popular Gov^{ts} and is

not without examples in our own, particularly in the laws

impairing the obligation of contracts.

"In civilized communities, property as well as personal

rights is an essential object of the laws, which encourage

industry by securing the enjoyment of its fruits; that

industry from which property results, & that enjoyment which

consists not merely in its immediate use, but in its

posthumous destination to objects of choice and of kindred

affection.

"In a just & a free Government, therefore, the rights both

of property & of persons ought to be effectually guarded.

Will the former be so in case of a universal & equal

suffrage? Will the latter be so in case of a suffrage

confined to the holders of property?

"As the holders of property have at stake all the other

rights common to those without property, they may be the

more restrained from infringing, as well as the less tempted

to infringe the rights of the latter. It is nevertheless

certain, that there are various ways in which the rich may

oppress the poor; in which property may oppress liberty; and

that the world is filled with examples. It is necessary that

the poor should have a defence against the danger.

"On the other hand, the danger to the holders of property

cannot be disguised, if they be undefended against a

majority without property. Bodies of men are not less swayed

by interest than individuals, and are less controlled by the

dread of reproach and the other motives felt by individuals.

Hence the liability of the rights of property, and of the

impartiality of laws affecting it, to be violated by

Legislative majorities having an interest real or supposed

in the injustice: Hence agrarian laws, and other leveling

schemes: Hence the cancelling or evading of debts, and other

violations of contracts. We must not shut our eyes to the

nature of man, nor to the light of experience. Who would

rely on a fair decision from three individuals if two had an

interest in the case opposed to the rights of the third?

Make the number as great as you please, the impartiality

will not be increased; nor any further security against

injustice be obtained, than what may result from the greater

difficulty of uniting the wills of a greater number.

"In all Gov^{ts} there is a power which is capable of

oppressive exercise. In Monarchies and Aristocracies

oppression proceeds from a want of sympathy & responsibility

in the Gov^t towards the people. In popular Governments the

danger lies in an undue sympathy among individuals composing

a majority, and a want of responsibility in the majority to

the minority. The characteristic excellence of the political

System of the U. S. arises from a distribution and

organization of its powers, which at the same time that they

secure the dependence of the Gov^t on the will of the

nation, provides better guards than are found in any other

popular Gov^t against interested combinations of a Majority

against the rights of a Minority.

"The U. States have a precious advantage also in the actual

distribution of property particularly the landed property;

and in the universal hope of acquiring property. This latter

peculiarity is among the happiest contrasts in their

situation to that of the old world, where no anticipated

change in this respect, can generally inspire a like

sympathy with the rights of property. There may be at

present, a Majority of the Nation, who are even freeholders,

or the heirs or aspirants to Freeholds. And the day may not

be very near when such will cease to make up a Majority of

the community. But they cannot always so continue. With

every admissible subdivision of the Arable lands, a

populousness not greater than that of England or France will

reduce the holders to a Minority. And whenever the majority

shall be without landed or other equivalent property and

without the means or hope of acquiring it, what is to secure

the rights of property ag^{st} the danger from an equality &

universality of suffrage, vesting compleat power over

property in hands without a share in it: not to speak of a

danger in the meantime from a dependence of an increasing

number on the wealth of a few? In other Countries this

dependence results in some from the relations between

Landlords & Tenants in others both from that source & from

the relations between wealthy capitalists and indigent

labourers. In the U. S. the occurrence must happen from the

last source; from the connection between the great

Capitalists in Manufactures & Commerce and the numbers

employed by them. Nor will accumulations of Capital for a

certain time be precluded by our laws of descent & of

distribution; Such being the enterprise inspired by free

Institutions, that great wealth in the hands of individuals

and associations may not be unfrequent. But it may be

observed, that the opportunities may be diminished, and the

permanency defeated by the equalizing tendency of our laws.

"No free Country has ever been without parties, which are a

natural offspring of Freedom. An obvious and permanent

division of every people is into the owners of the soil, and

the other inhabitants. In a certain sense the country may be

said to belong to the former. If each landholder has an

exclusive property in his share, the Body of Landholders

have an exclusive property in the whole. As the Soil becomes

subdivided, and actually cultivated by the owners, this view

of the subject derives force from the principle of natural

law, which vests in individuals an exclusive right to the

portions of ground with which he has incorporated his labour

& improvements. Whatever may be the rights of others derived

from their birth in the Country, from their interest in the

highways & other parcels left open for common use, as well

as in the national edifices and monuments; from their share

in the public defence, and from their concurrent support of

the Gov^t, it would seem unreasonable to extend the right so

far as to give them when become the majority, a power of

Legislation over the landed property without the consent of

the proprietors. Some barrier ag^{st} the invasion of their

rights would not be out of place in a just and provident

System of Gov^t. The principle of such an arrangement has

prevailed in all Gov^{ts} where peculiar privileges or

interests held by a part were to be secured ag^{st}

violation, and in the various associations where pecuniary

or other property forms the stake. In the former case a

defensive right has been allowed; and if the arrangement be

wrong, it is not in the defense but in the kind of privilege

to be defended. In the latter case, the shares of suffrage,

allotted to individuals have been with acknowledged justice

apportioned more or less to their respective interests in

the Common Stock.

"These reflections suggest the expediency of such a

modification of Gov^t as would give security to the part of

the Society having most at stake and being most exposed to

danger. Three modifications present themselves.

"1. _Confining_ the right of suffrage to freeholders, & to

such as hold an equivalent property, convertible of course

into freeholds. The objection to this regulation is obvious.

It violates the vital principle of free Gov^t that those who

are to be bound by laws, ought to have a voice in making

them. And the violation w^d be more strikingly unjust as the

law makers become the minority. The regulation would be as

unpropitious, also, as it would be unjust. It would engage

the numerical & physical force in a constant struggle

ag^{st} the public authority; unless kept down by a standing

army fatal to all parties.

"2. Confining the right of suffrage for one Branch to the

holders of property, and for the other Branch to those

without property. This arrangement which w^d give a mutual

defence, where there might be mutual danger of encroachment,

has an aspect of equality & fairness. But it w^d not be in

fact either equal or fair, because the rights to be defended

would be unequal, being on one side those of property as

well as of persons, and on the other those of persons only.

The temptation also to encroach tho' in a certain degree

mutual, w^d be felt more strongly on one side than on the

other: It would be more likely to beget an abuse of the

Legislative Negative in extorting concessions at the expence

of property, than the reverse. The division of the State

into two Classes, with distinct & independ^t Organs of

power, and without any intermingled agency whatever, might

lead to contests & antipathies not dissimilar to those

between the Patricians & Plebeians at Rome.

"3. Confining the right of electing one Branch of the

Legislature to freeholders, and admitting all others to a

common right with holders of property in electing the other

Branch. This w^d give a defensive power to holders of

property, and to the class also without property when

becoming a majority of electors, without depriving them in

the meantime of a participation in the Public Councils. If

the holders of property would thus have a two-fold share of

representation, they w^d have at the same time a two-fold

stake in it, the rights of property as well as of persons,

the two-fold object of political Institutions. And if no

exact & safe equilibrium can be introduced, it is more

reasonable that a preponderating weight sh^d be allowed to

the greater interest than to the lesser. Experience alone

can decide how far the practice in this case would

correspond with the Theory. Such a distribution of the right

of suffrage was tried in N. York and has been abandoned

whether from experienced evils, or party calculations, may

possibly be a question. It is still on trial in N. Carolina,

with what practical indications is not known. It is certain

that the trial, to be satisfactory ought to be continued for

no inconsiderable period; untill in fact the non-freeholders

should be the majority.

"4. Should experience or public opinion require an equal &

universal suffrage for each branch of the Gov^t such as

prevails generally in the U. S., a resource favorable to the

rights of the landed & other property, when its possessors

become the minority, may be found in an enlargement of the

Election Districts for one branch of the Legislature, and an

extension of its period of service. Large districts are

manifestly favorable to the election of persons of general

respectability, and of probable attachment to the rights of

property, over competitors depending on the personal

solicitation practicable on a contracted theatre. And altho'

an ambitious candidate, of personal distinction, might

occasionally recommend himself to popular choice by

espousing a popular though unjust object, it might rarely

happen to many districts at the same time. The tendency of a

longer period of service would be, to render the Body more

stable in its policy, and more capable of stemming popular

currents taking a wrong direction, till reason & justice

could regain their ascendancy.

"5. Should even such a modification as the last be deemed

inadmissible, and universal suffrage and very short periods

of elections within contracted spheres, be required for each

branch of the Gov^t, the security for the holders of

property when the minority, can only be derived from the

ordinary influence possessed by property, & the superior

information incident to its holders; from the popular sense

of justice enlightened & enlarged by a diffusive education;

and from the difficulty of combining & effectuating unjust

purposes throughout an extensive country; a difficulty

essentially distinguishing the U. S. & even most of the

individual States, from the small communities where a

mistaken interest or contagious passion, could readily unite

a majority of the whole under a factious leader, in

trampling on the rights of the minor party.

"Under every view of the subject, it seems indispensable

that the Mass of Citizens should not be without a voice, in

making the laws which they are to obey, & in chusing the

Magistrates who are to administer them, and if the only

alternative be between an equal & universal right of

suffrage for each branch of the Gov^t and a confinement of

the _entire_ right to a part of the Citizens, it is better

that those having the greater interest at stake namely that

of property & persons both, should be deprived of half their

share in the Gov^t than, that those having the lesser

interest, that of personal rights only, should be deprived

of the whole."--Madison's Note.

Doc^r Franklin. It is of great consequence that we sh^d not depress the

virtue & public spirit of our common people; of which they displayed a

great deal during the war, and which contributed principally to the

favorable issue of it. He related the honorable refusal of the American

seamen who were carried in great numbers into the British Prisons during

the war, to redeem themselves from misery or to seek their fortunes, by

entering on board the Ships of the Enemies to their Country; contrasting

their patriotism with a contemporary instance in which the British

seamen made prisoners by the Americans, readily entered on the ships of

the latter on being promised a share of the prizes that might be made

out of their own Country. This proceeded he said from the different

manner in which the common people were treated in America & G. Britain.

He did not think that the elected had any right in any case to narrow

the privileges of the electors. He quoted as arbitrary the British

Statute setting forth the danger of tumultuous meetings, and under that

pretext narrowing the right of suffrage to persons having freeholds of a

certain value; observing that this Statute was soon followed by another

under the succeeding Parliam^t subjecting the people who had no votes to

peculiar labors & hardships. He was persuaded also that such a

restriction as was proposed would give great uneasiness in the populous

States. The sons of a substantial farmer, not being themselves

freeholders, would not be pleased at being disfranchised, and there are

a great many persons of that description.

M^r Mercer. The Constitution is objectionable in many points, but in

none more than the present. He objected to the footing on which the

qualification was put, but particularly to the _mode of election_ by the

people. The people can not know & judge of the characters of Candidates.

The worse possible choice will be made. He quoted the case of the Senate

in Virg^a as an example in point. The people in Towns can unite their

votes in favor of one favorite; & by that means always prevail over the

people of the Country, who being dispersed will scatter their votes

among a variety of candidates.

M^r Rutlidge thought the idea of restraining the right of suffrage to

the freeholders a very unadvised one. It would create division among the

people & make enemies of all those who should be excluded.

On the question for striking out as moved by M^r Gov^r Morris, from the

word "qualifications" to the end of the III article

N. H. no. Mass. no. C^t no. P^a no. Del. ay. M^d div^d. V^a no.

N. C. no. S. C. no. Geo. not pres^t.

Adjourned

WEDNESDAY AUG^{ST} 8. IN CONVENTION

Art: IV. sect. 1.--M^r Mercer expressed his dislike of the whole plan,

and his opinion that it never could succeed.

M^r Ghorum. he had never seen any inconveniency from allowing such as

were not freeholders to vote, though it had long been tried. The

elections in Phil^a, N. York & Boston where the Merchants & Mechanics

vote are at least as good as those made by freeholders only. The case in

England was not accurately stated yesterday (by M^r Madison). The Cities

& large towns are not the seat of Crown influence & corruption. These

prevail in the Boroughs, and not on account of the right which those who

are not freeholders have to vote, but of the smallness of the number who

vote. The people have been long accustomed to this right in various

parts of America, and will never allow it to be abridged. We must

consult their rooted prejudices if we expect their concurrence in our

propositions.

M^r Mercer did not object so much to an election by the people at large

including such as were not freeholders, as to their being left to make

their choice without any guidance. He hinted that Candidates ought to be

nominated by the State Legislatures.

On the question for agreeing to Art: IV--Sect, 1 it pass^d nem. con.

Art. IV. Sect. 2. taken up.

Col. Mason was for opening a wide door for emigrants; but did not chuse

to let foreigners and adventurers make laws for us & govern us.

Citizenship for three years was not enough for ensuring that local

knowledge which ought to be possessed by the Representative. This was

the principal ground of his objection to so short a term. It might also

happen that a rich foreign Nation, for example Great Britain, might send

over her tools who might bribe their way into the Legislature for

insidious purposes. He moved that "seven" years instead of "three," be

inserted.

M^r Gov^r Morris 2^{ded} the Motion, & on the question, all the States

agreed to it except Connecticut.

M^r Sherman moved to strike out the word "resident" and insert

"inhabitant," as less liable to misconstruction.

M^r Madison 2^{ded} the motion, both were vague, but the latter least so

in common acceptation, and would not exclude persons absent occasionally

for a considerable time on public or private business. Great disputes

had been raised in Virg^a concerning the meaning of residence as a

qualification of Representatives which were determined more according to

the affection or dislike to the man in question, than to any fixt

interpretation of the word.

M^r Wilson preferred "inhabitant."

M^r Gov^r Morris, was opposed to both and for requiring nothing more

than a freehold. He quoted great disputes in N. York occasioned by these

terms, which were decided by the arbitrary will of the majority. Such a

regulation is not necessary. People rarely chuse a nonresident--It is

improper as in the 1^{st} branch, _the people at large_, not the

_States_, are represented.

M^r Rutlidge urged & moved, that a residence of 7 years sh^d be required

in the State Wherein the Member sh^d be elected. An emigrant from N.

England to S. C. or Georgia would know little of its affairs and could

not be supposed to acquire a thorough knowledge in less time.

M^r Read reminded him that we were now forming a _Nat^l_ Gov^t and such

a regulation would correspond little with the idea that we were one

people.

M^r Wilson. enforced the same consideration.

M^r Madison suggested the case of new States in the West, which could

have perhaps no representation on that plan.

M^r Mercer. Such a regulation would present a greater alienship among

the States than existed under the old federal system. It would

interweave local prejudices & State distinctions in the very

Constitution which is meant to cure them. He mentioned instances of

violent disputes raised in Maryland concerning the term "residence."

M^r Elseworth thought seven years of residence was by far too long a

term: but that some fixt term of previous residence would be proper. He

thought one year would be sufficient, but seemed to have no objection to

three years.

M^r Dickinson proposed that it should read "inhabitant actually resident

for ---- years." This would render the meaning less indeterminate.

M^r Wilson. If a short term should be inserted in the blank, so strict

an expression might be construed to exclude the members of the

Legislature, who could not be said to be actual residents in their

States whilst at the Seat of the Gen^l Government.

M^r Mercer. It would certainly exclude men, who had once been

inhabitants, and returning from residence elsewhere to resettle in their

original State; although a want of the necessary knowledge could not in

such cases be presumed.

M^r Mason thought 7 years too long, but would never agree to part with

the principle. It is a valuable principle. He thought it a defect in the

plan that the Representatives would be too few to bring with them all

the local knowledge necessary. If residence be not required, Rich men of

neighbouring States, may employ with success the means of corruption in

some particular district and thereby get into the public Councils after

having failed in their own State. This is the practice in the boroughs

of England.

On the question for postponing in order to consider M^r Dickinsons

motion

N. H. no. Mass. no. C^t no. N. J. no. P^a no. Del. no. M^d ay.

V^a no. N. C. no. S. C. ay. Geo. ay.

On the question for inserting "inhabitant" in place of "resident"--ag^d

to nem. con.

M^r Elseworth & Col. Mason move to insert "one year" for previous

inhabitancy.

M^r Williamson liked the Report as it stood. He thought "resident" a

good eno' term. He was ag^{st} requiring any period of previous

residence. New residents if elected will be most zealous to conform to

the will of their constituents, as their conduct will be watched with a

more jealous eye.

M^r Butler & M^r Rutlidge moved "three years" instead of "one year" for

previous inhabitancy.

On the question for 3 years,

N. H. no. Mass. no. C^t no. N. J. no. P^a no. Del. no. M^d no.

V^a no. N. C. no. S. C. ay. Geo. ay.

On the question for "1 year"

N. H. no.--Mass. no. C^t no. N. J. ay. P^a no. Del. no.

M^d div^d. V^a no. N. C. ay. S. C. ay. Geo. ay.

Art. IV. Sect. 2. as amended in manner preceding, was agreed to nem.

con.

Art. IV. Sect. 3. taken up.

Gen^l Pinkney & M^r Pinkney moved that the number of Representatives

allotted to S. Carol^a be "six." On the question,

N. H. no. Mass. no. C^t no. N. J. no. P^a no. Delaware ay.

M^d no. V^a no. N. C. ay. S. C. ay. Geo. ay.

The 3. Sect of Art: IV, was then agreed to.

Art: IV. Sect. 4. taken up.

M^r Williamson moved to strike out "according to the provisions

hereinafter made" and to insert the words "according to the rule

hereafter to be provided for direct taxation."--See Art. VII. Sect. 3.

On the question for agreeing to M^r Williamson's amendment

N. H. ay. Mass. ay. C^t ay. N. J. no. P^a ay. Del. no. M^d ay.

V^a ay. N. C. ay. S. C. ay. Geo. ay.

M^r King wished to know what influence the vote just passed was meant to

have on the succeeding part of the Report, concerning the admission of

Slaves into the rule of Representation. He could not reconcile his mind

to the article if it was to prevent objections to the latter part. The

admission of slaves was a most grating circumstance to his mind, & he

believed would be so to a great part of the people of America. He had

not made a strenuous opposition to it heretofore because he had hoped

that this concession would have produced a readiness which had not been

manifested, to strengthen the Gen^l Gov^t and to mark a full confidence

in it. The Report under consideration had by the tenor of it, put an end

to all those hopes. In two great points the hands of the Legislature

were absolutely tied. The importation of slaves could not be

prohibited--exports could not be taxed. Is this reasonable? What are the

great objects of the Gen^l System? 1. defence ag^{st} foreign invasion.

2. ag^{st} internal sedition. Shall all the States then be bound to

defend each; & shall each be at liberty to introduce a weakness which

will render defence more difficult? Shall one part of the U. S. be bound

to defend another part, and that other part be at liberty not only to

increase its own danger, but to withhold the compensation for the

burden? If slaves are to be imported shall not the exports produced by

their labor, supply a revenue the better to enable the Gen^l Gov^a to

defend their Masters? There was so much inequality & unreasonableness in

all this, that the people of the Northern States could never be

reconciled to it. No candid man could undertake to justify it to them.

He had hoped that some accommodation w^d have taken place on this

subject; that at least a time w^d have been limited for the importation

of slaves. He never could agree to let them be imported without

limitation & then be represented in the Nat^l Legislature. Indeed he

could so little persuade himself of the rectitude of such a practice,

that he was not sure he could assent to it under any circumstances. At

all events, either slaves should not be represented, or exports should

be taxable.

M^r Sherman regarded the slave trade as iniquitous; but the point of

representation having been settled after much difficulty & deliberation,

he did not think himself bound to make opposition; especially as the

present article as amended did not preclude any arrangement whatever on

that point in another place of the Report.

M^r Madison objected to 1 for every 40.000 inhabitants as a perpetual

rule. The future increase of population if the Union sh^d be permanent,

will render the number of Representatives excessive.

M^r Ghorum. It is not to be supposed that the Gov^t will last so long as

to produce this effect. Can it be supposed that this vast Country

including the Western territory will 150 years hence remain one nation?

M^r Elseworth. If the Gov^t should continue so long, alterations may be

made in the Constitution in the manner proposed in a subsequent article.

M^r Sherman & M^r Madison moved to insert the words "not exceeding,"

before the words "1 for every 40.000." which was agreed to nem. con.

M^r Gov^r Morris moved to insert "free" before the word inhabitants.

Much he said would depend on this point. He never would concur in

upholding domestic slavery. It was a nefarious institution. It was the

curse of heaven on the States where it prevailed. Compare the free

regions of the Middle States, where a rich & noble cultivation marks the

prosperity & happiness of the people, with the misery & poverty which

overspread the barren wastes of V^a Mary^d & the other States having

slaves. Travel thro' y^e whole Continent & you behold the prospect

continually varying with the appearance & disappearance of slavery. The

moment you leave y^e E. States & enter N. York, the effects of the

institution become visible, passing thro' the Jerseys & entering P^a

every criterion of superior improvement witnesses the change. Proceed

southw^{dly}. & every step you take thro' y^e great regions of slaves

presents a desert increasing, with y^e increasing [word is illegible]

proportion of these wretched beings. Upon what principle is it that the

slaves shall be computed in the representation? Are they men? Then make

them Citizens and let them vote. Are they property? Why then is no other

property included? The Houses in this city (Philad^a) are worth more

than all the wretched Slaves which cover the rice swamps of South

Carolina. The admission of slaves into the Representation when fairly

explained comes to this: that the inhabitant of Georgia and S. C. who

goes to the Coast of Africa, and in defiance of the most sacred laws of

humanity tears away his fellow creatures from their dearest connections

& damns them to the most cruel bondages, shall have more votes in a

Gov^t instituted for protection of the rights of mankind, than the

Citizen of P^a or N. Jersey who views with a laudable horror, so

nefarious a practice. He would add that Domestic slavery is the most

prominent feature in the aristocratic countenance of the proposed

Constitution. The vassalage of the poor has ever been the favorite

offspring of Aristocracy. And What is the proposed compensation to the

Northern States for a sacrifice of every principle of right, of every

impulse of humanity. They are to bind themselves to march their militia

for the defence of the S. States; for their defence ag^{st} those very

slaves of whom they complain. They must supply vessels & seamen in case

of foreign Attack. The Legislature will have indefinite power to tax

them by excises, and duties on imports: both of which will fall heavier

on them than on the Southern inhabitants; for the bohae tea used by a

Northern freeman, will pay more tax than the whole consumption of the

miserable slave, which consists of nothing more than his physical

subsistence and the rag that covers his nakedness. On the other side the

Southern States are not to be restrained from importing fresh supplies

of wretched Africans, at once to increase the danger of attack, and the

difficulty of defence; nay they are to be encouraged to it by an

assurance of having their votes in the Nat^l Gov^t increased in

proportion, and are at the same time to have their exports & their

slaves exempt from all contributions for the public service. Let it not

be said that direct taxation is to be proportioned to representation. It

is idle to suppose that the Gen^l Gov^t can stretch its hand directly

into the pockets of the people scattered over so vast a Country. They

can only do it through the medium of exports imports & excises. For What

then are all the sacrifices to be made? He would sooner submit himself

to a tax for paying for all the negroes in the U. States, than saddle

posterity with such a Constitution.

M^r Dayton 2^{ded} the motion. He did it he said that his sentiments on

the subject might appear whatever might be the fate of the amendment.

M^r Sherman, did not regard the admission of the Negroes into the ratio

of representation, as liable to such insuperable objections. It was the

freemen of the South^n States who were in fact to be represented

according to the taxes paid by them, and the Negroes are only included

in the Estimate of the taxes. This was his idea of the matter.

M^r Pinkney, considered the fisheries & the Western frontier as more

burthensome to the U. S. than the slaves. He thought this could be

demonstrated if the occasion were a proper one.

M^r Wilson, thought the motion premature. An agreement to the clause

would be no bar to the object of it.

Question On motion to insert "free" before "inhabitants,"

N. H. no. Mass. no. C^t no. N. J. ay. P^a no. Del. no. M^d no.

V^a no. N. C. no. S. C. no. Geo. no.

On the suggestion of M^r Dickinson the words, "provided that each State

shall have one representative at least,"--were added nem. con.

Art. IV. Sect. 4. as amended was agreed to con. nem.

Art. IV. Sect. 5. taken up.

M^r Pinkney moved to strike out Sect. 5. As giving no peculiar advantage

to the House of Representatives, and as clogging the Gov^t. If the

Senate can be trusted with the many great powers proposed, it surely may

be trusted with that of originating money bills.

M^r Ghorum. was ag^{st} allowing the Senate to _originate_; but only to

_amend_.

M^r Gov^r Morris. It is particularly proper that the Senate sh^d have

the right of originating money bills. They will sit constantly, will

consist of a smaller number, and will be able to prepare such bills with

due correctness; and so as to prevent delay of business in the other

House.

Col. Mason was unwilling to travel over this ground again. To strike out

the Section, was to unhinge the compromise of which it made a part. The

duration of the Senate made it improper. He does not object to that

duration. On the Contrary he approved of it. But joined with the

smallness of the number, it was an argument against adding this to the

other great powers vested in that body. His idea of an Aristocracy was

that it was the govern^t of the few over the many. An aristocratic body,

like the screw in mechanics, work^g its way by slow degrees, and holding

fast whatever it gains, should ever be suspected of an encroaching

tendency. The purse strings should never be put into its hands.

M^r Mercer, considered the exclusive power of originating Money bills as

so great an advantage, that it rendered the equality of votes in the

Senate ideal & of no consequence.

M^r Butler was for adhering to the principle which had been settled.

M^r Wilson was opposed to it on its merits without regard to the

compromise.

M^r Elseworth did not think the clause of any consequence, but as it was

thought of consequence by some members from the larger States, he was

willing it should stand.

M^r Madison was for striking it out; considering it as of no advantage

to the large States as fettering the Gov^t and as a source of injurious

altercations between the two Houses.

On the question for striking out "Sect. 5, Art. IV".

N. H. no. Mass. no. C^t no. N. J. ay. P^a ay. Del. ay. M^d ay.

V^a ay. N. C. no. S. C. ay. Geo. ay.

Adj^d.

THURSDAY, AUG^{ST} 9. IN CONVENTION

Art: IV. Sect. 6. M^r Randolph expressed his dissatisfaction at the

disagreement yesterday to Sect. 5. concerning money bills, as

endangering the success of the plan, and extremely objectionable in

itself; and gave notice that he should move for a reconsideration of the

vote.

M^r Williamson said he had formed a like intention.

M^r Wilson, gave notice that he sh^d move to reconsider the vote,

requiring seven instead of three years of Citizenship as a qualification

of candidates for the House of Representatives.

Art. IV. Sec. 6. & 7. Agreed to nem. con.

Art. V. Sect. 1. taken up.

M^r Wilson objected to vacancies in the Senate being supplied by the

Executives of the States. It was unnecessary as the Legislatures will

meet so frequently. It removes the appointment too far from the people;

the Executives in most of the States being elected by the Legislatures.

As he had always thought the appointment of the Executives by the

Legislative department wrong; so it was still more so that the Executive

should elect into the Legislative department.

M^r Randolph thought it necessary in order to prevent inconvenient

chasms in the Senate. In some States the Legislatures meet but once a

year. As the Senate will have more power & consist of a smaller number

than the other House, vacancies there will be of more consequence. The

Executives might be safely trusted he thought with the appointment for

so short a time.

M^r Elseworth. It is only said that the Executive _may_ supply

vacancies. When the Legislative meeting happens to be near, the power

will not be exerted. As there will be but two members from a State

vacancies may be of great moment.

M^r Williamson. Senators may resign or not accept. This provision is

therefore absolutely necessary.

On the question for striking out "vacancies shall be supplied by the

Executives"

N. H. no. Mass. no. C^t no. N. J. no. P^a ay. M^d div^d. V^a no.

N. C. no. S. C. no. Geo. no.

M^r Williamson moved to insert after "vacancies shall be supplied by the

Executives," the following words "unless other provision shall be made

by the Legislature" (of the State).

M^r Elseworth. He was willing to trust the Legislature, or the Executive

of a State, but not to give the former a discretion to refer

appointments for the Senate to whom they pleased.

Question on M^r Williamson's motion

N. H. no. Mass. no. C^t no. N. J. no. P^a no. M^d ay. V^a no.

N. C. ay. S. C. ay. Geo. ay.

M^r Madison in order to prevent doubts whether resignations could be

made by Senators, or whether they could refuse to accept, moved to

strike out the words after "vacancies," & insert the words "happening by

refusals to accept, resignations or otherwise, may be supplied by the

Legislature of the State in the representation of which such vacancies

shall happen, or by the Executive thereof until the next meeting of the

Legislature."

M^r Gov^r Morris this is absolutely necessary, otherwise, as members

chosen into the Senate are disqualified from being appointed to any

office by Sect. 9. of this art: it will be in the power of a Legislature

by appointing a man a Senator ag^{st} his consent, to deprive the U. S.

of his services.

The motion of M^r Madison was agreed to nem. con.

M^r Randolph called for division of the Section, so as to leave a

distinct question on the last words "each member shall have one vote."

He wished this last sentence to be postponed until the reconsideration

should have taken place on Sect. 5. Art. IV. concerning money bills. If

that section should not be reinstated his plan would be to vary the

representation in the Senate.

M^r Strong concurred in M^r Randolph's ideas on this point.

M^r Read did not consider the section as to money bills of any advantage

to the larger States and had voted for striking it out as being viewed

in the same light by the larger States. If it was considered by them as

of any value, and as a condition of the equality of votes in the Senate,

he had no objection to its being re-instated.

M^r Wilson--M^r Elseworth & M^r Madison urged that it was of no

advantage to the larger States, and that it might be a dangerous source

of contention between the two Houses. All the principal powers of the

Nat^l Legislature had some relation to money.

Doc^r Franklin, considered the two clauses, the originating of money

bills, and the equality of votes in the Senate, as essentially connected

by the compromise which had been agreed to.

Col. Mason said this was not the time for discussing this point. When

the originating of money bills shall be reconsidered, he thought it

could be demonstrated that it was of essential importance to restrain

the right to the House of Representatives the immediate choice of the

people.

M^r Williamson. The State of N. C. had agreed to an equality in the

Senate, merely in consideration that money bills should be confined to

the other House: and he was surprised to see the smaller States

forsaking the condition on which they had received their equality.

Question on the section 1. down to the last sentence

N. H. ay. Mass. no. C^t ay. N. J. ay. P^a[19] no. Del. ay.

M^d ay. Virg^a ay. N. C. no. S. C. div^d. Geo. ay.

[19] "In the printed Journal Pennsylvania ay."--Madison's

Note.

M^r Randolph moved that the last sentence "each member shall have one

vote," be postponed.

It was observed that this could not be necessary; as in case the

sanction as to originating money bills should not be reinstated, and a

revision of the Constitution should ensue, it w^d still be proper that

the members should vote per Capita. A postponement of the preceding

sentence allowing to each State 2 members w^d have been more proper.

M^r Mason, did not mean to propose a change of this mode of voting per

capita in any event. But as there might be other modes proposed, he saw

no impropriety in postponing the sentence. Each State may have two

members, and yet may have unequal votes. He said that unless the

exclusive originating of money bills should be restored to the House of

Representatives, he should, not from obstinacy but duty and conscience,

oppose throughout the equality of Representation in the Senate.

M^r Gov^r Morris. Such declarations were he supposed, addressed to the

smaller States in order to alarm them for their equality in the Senate,

and induce them ag^{st} their judgments, to concur in restoring the

section concerning money bills. He would declare in his turn that as he

saw no prospect of amending the Constitution of the Senate & considered

the section relating to money bills as intrinsically bad, he would

adhere to the section establishing the equality at all events.

M^r Wilson. It seems to have been supposed by some that the section

concerning money bills is desirable to the large States. The fact was

that two of those States (P^a & V^a) had uniformly voted ag^{st} it

without reference to any other part of the system.

M^r Randolph, urged as Col. Mason had done that the sentence under

consideration was connected with that relating to Money bills, and might

possibly be affected by the result of the motion for reconsidering the

latter. That the postponement was therefore not improper.

Question for postponing "each member shall have one vote,"

N. H. div^d. Mass. no. C^t no. N. J. no. P^a no. Del. no.

M^d no. V^a ay. N. C. ay. S. C. no. Geo. no.

The words were then agreed to as part of the section.

M^r Randolph then gave notice that he should move to reconsider this

whole Sect: 1. Art. V. as connected with the 5. Sect. Art. IV. as to

which he had already given such notice.

Art. V. Sect. 2^d taken up.

M^r Gov^r Morris moved to insert after the words, "immediately after,"

the following "they shall be assembled in consequence of," which was

agreed to nem. con. as was then the whole sect. 2.

Art: V. Sect. 3. taken up.

M^r Gov^r Morris moved to insert 14 instead of 4 years citizenship as a

qualification for Senators: urging the danger of admitting strangers

into our public Councils. M^r Pinkney 2^d him.

M^r Elseworth, was opposed to the motion as discouraging meritorious

aliens from emigrating to this Country.

M^r Pinkney. As the Senate is to have the power of making treaties &

managing our foreign affairs, there is peculiar danger and impropriety

in opening its door to those who have foreign attachments. He quoted the

jealousy of the Athenians on this subject who made it death for any

stranger to intrude his voice into their Legislative proceedings.

Col. Mason highly approved of the policy of the motion. Were it not that

many not natives of this Country had acquired great merit during the

revolution, he should be for restraining the eligibility into the

Senate, to natives.

M^r Madison was not averse to some restrictions on this subject; but

could never agree to the proposed amendment. He thought any restriction

however in the _Constitution_ unnecessary, and improper, unnecessary;

because the Nat^l Legisl^{re} is to have the right of regulating

naturalization, and can by virtue thereof fix different periods of

residence or conditions of enjoying different privileges of Citizenship:

Improper; because it will give a tincture of illiberality to the

Constitution: because it will put it out of the power of the Nat^l

Legislature even by special acts of naturalization to confer the full

rank of Citizens on meritorious strangers & because it will discourage

the most desirable class of people from emigrating to the U. S. Should

the proposed Constitution have the intended effect of giving stability &

reputation to our Gov^{ts} great numbers of respectable Europeans; men

who love liberty and wish to partake its blessings, will be ready to

transfer their fortunes hither. All such would feel the mortification of

being marked with suspicious incapacitations though they s^d not covet

the public honors. He was not apprehensive that any dangerous number of

strangers would be appointed by the State Legislatures, if they were

left at liberty to do so: nor that foreign powers would make use of

strangers as instruments for their purposes. Their bribes would be

expended on men whose circumstances would rather stifle than excite

jealousy & watchfulness in the public.

M^r Butler was decidedly opposed to the admission of foreigners without

a long residence in the Country. They bring with them, not only

attachments to other Countries; but ideas of Gov^t so distinct from ours

that in every point of view they are dangerous. He acknowledged that if

he himself had been called into public life within a short time after

his coming to America, his foreign habits opinions & attachments would

have rendered him an improper agent in public affairs. He mentioned the

great strictness observed in Great Britain on this subject.

Doc^r Franklin was not against a reasonable time, but should be very

sorry to see any thing like illiberality inserted in the Constitution.

The people in Europe are friendly to this Country. Even in the Country

with which we have been lately at war, we have now & had during the war,

a great many friends not only among the people at large but in both

houses of Parliament. In every other Country in Europe all the people

are our friends. We found in the course of the Revolution, that many

strangers served us faithfully, and that many natives took part ag^{st}

their Country. When foreigners after looking about for some other

Country in which they can obtain more happiness, give a preference to

ours, it is a proof of attachment which ought to excite our confidence &

affection.

M^r Randolph did not know but it might be problematical whether

emigrations to this Country were on the whole useful or not: but he

could never agree to the motion for disabling them for 14 years to

participate in the public honours. He reminded the Convention of the

language held by our patriots during the Revolution, and the principles

laid down in all our American Constitutions. Many foreigners may have

fixed their fortunes among us under the faith of these invitations. All

persons under this description, with all others who would be affected by

such a regulation, would enlist themselves under the banners of

hostility to the proposed System. He would go as far as seven years, but

no further.

M^r Wilson said he rose with feelings which were perhaps peculiar;

mentioning the circumstance of his not being a native, and the

possibility, if the ideas of some gentlemen should be pursued, of his

being incapacitated from holding a place under the very Constitution,

which he had shared in the trust of making. He remarked the illiberal

complexion which the motion would give to the System & the effect which

a good system would have in inviting meritorious foreigners among us,

and the discouragement & mortification they must feel from the degrading

discrimination now proposed. He had himself experienced this

mortification. On his removal into Maryland, he found himself, from

defect of residence, under certain legal incapacities which never ceased

to produce chagrin, though he assuredly did not desire & would not have

accepted the offices to which they related. To be appointed to a place

may be matter of indifference. To be incapable of being appointed, is a

circumstance grating and mortifying.

M^r Gov^r Morris. The lesson we are taught is that we should be governed

as much by our reason, and as little by our feelings as possible. What

is the language of Reason on this subject? That we should not be polite

at the expence of prudence. There was a moderation in all things. It is

said that some tribes of Indians, carried their hospitality so far as to

offer to strangers their wives & daughters. Was this a proper model for

us? He would admit them to his house, he would invite them to his table,

would provide for them comfortable lodgings; but would not carry the

complaisance so far as, to bed them with his wife. He would let them

worship at the same altar, but did not choose to make Priests of them.

He ran over the privileges which emigrants would enjoy among us, though

they should be deprived of that of being eligible to the great offices

of Government; observing that they exceeded the privileges allowed to

foreigners in any part of the world; and that as every Society from a

great nation down to a club had the right of declaring the conditions on

which new members should be admitted, there could be no room for

complaint. As to those philosophical gentlemen, those Citizens of the

World as they called themselves, He owned he did not wish to see any of

them in our public Councils. He would not trust them. The men who can

shake off their attachments to their own Country can never love any

other. These attachments are the wholesome prejudices which uphold all

Governments. Admit a Frenchman into your Senate, and he will study to

increase the commerce of France: an Englishman, he will feel an equal

bias in favor of that of England. It has been said that The Legislatures

will not chuse foreigners, at least improper ones. There was no knowing

what Legislatures would do. Some appointments made by them, proved that

every thing ought to be apprehended from the cabals practised on such

occasions. He mentioned the case of a foreigner who left this State in

disgrace, and worked himself into an appointment from another to

Congress.

Question on the motion of M^r Gov^r Morris to insert 14 in place of 4

years

N.H. ay. Mass. no. C^t no. N.J. ay. P^a no. Del. no. M^d no.

V^a no. N. C. no. S. C. ay. Geo. ay.

On 13 years, moved by M^r Gov^r Morris

N. H. ay. Mass. no. C^t no. N. J. ay. P^a no. Del. no. M^d no.

V^a no. N. C. no. S. C. ay. Geo. ay.

On 10 years moved by Gen^l Pinkney

N. H. ay. Mass. no. C^t no. N. J. ay. P^a no. Del. no. M^d no.

V^a no. N. C. ay. S. C. ay. Geo. ay.

D^r Franklin reminded the Convention that it did not follow from an

omission to insert the restriction in the Constitution that the persons

in question w^d be actually chosen into the Legislature.

M^r Rutlidge. 7 years of Citizenship have been required for the House of

Representatives. Surely a longer time is requisite for the Senate, which

will have more power.

M^r Williamson. It is more necessary to guard the Senate in this case

than the other House. Bribery & cabal can be more easily practised in

the choice of the Senate which is to be made by the Legislatures

composed of a few men, than of the House of Represent^s who will be

chosen by the people.

M^r Randolph will agree to 9 years with the expectation that it will be

reduced to seven if M^r Wilson's motion to reconsider the vote fixing 7

years for the House of Representatives should produce a reduction of

that period.

On a question for 9 years

N. H. ay. Mass. no. C^t no. N. J. ay. P^a no. Del. ay. M^d no.

V^a ay. N. C. div^d. S. C. ay. Geo. ay.

The term "Resident" was struck out, & "inhabitant" inserted nem. con.

Art. V. Sect. 3. as amended agreed to nem. con.

Sect. 4. agreed to nem. con.

Article VI. Sect. 1. taken up.

M^r Madison & M^r Gov^r Morris moved to strike out "each House" & to

insert "the House of Representatives;" the right of the Legislatures to

regulate the times & places &c. in the election of Senators being

involved in the right of appointing them, which was disagreed to.

Division of the question being called, it was taken on the first part

down to "but their provisions concerning &c."

The first part was agreed to nem. con.

M^r Pinkney & M^r Rutlidge moved to strike out the remaining part viz

but their provisions concerning them may at any time be altered by the

Legislature of the United States. The States they contended could & must

be relied on in such cases.

M^r Ghorum. It would be as improper take this power from the Nat^l

Legislature, as to Restrain the British Parliament from regulating the

circumstances of elections, leaving this business to the Counties

themselves--

M^r Madison.[20] The necessity of a Gen^l Gov^t supposes that the State

Legislatures will sometimes fail or refuse to consult the common

interest at the expence of their local conveniency or prejudices. The

policy of referring the appointment of the House of Representatives to

the people and not to the Legislatures of the States, supposes that the

result will be somewhat influenced by the mode. This view of the

question seems to decide that the Legislatures of the States ought not

to have the uncontrouled right of regulating the times places & manner

of holding elections. These were words of great latitude. It was

impossible to foresee all the abuses that might be made of the

discretionary power. Whether the electors should vote by ballot or viva

voce, should assemble at this place or that place; should be divided

into districts or all meet at one place, sh^d all vote for all the

representatives; or all in a district vote for a number allotted to the

district; these & many other points would depend on the Legislatures,

and might materially affect the appointments. Whenever the State

Legislatures had a favorite measure to carry, they would take care so to

mould their regulations as to favor the candidates they wished to

succeed. Besides, the inequality of the Representation in the

Legislatures of particular States, would produce a like inequality in

their representation in the Nat^l Legislature, as it was presumable that

the Counties having the power in the former case would secure it to

themselves in the latter. What danger could there be in giving a

controuling power to the Nat^l Legislature? Of whom was it to consist?

1. of a Senate to be chosen by the State Legislatures. If the latter

therefore could be trusted, their representatives could not be

dangerous. 2. of Representatives elected by the same people who elect

the State Legislatures; Surely then if confidence is due to the latter,

it must be due to the former. It seemed as improper in principle, though

it might be less inconvenient in practice, to give to the State

Legislatures this great authority over the election of the

Representatives of the people in the Gen^l Legislature, as it would be

to give to the latter a like power over the election of their

Representatives in the State Legislatures.

[20] Madison wrote to Jefferson, July 18:

"I have taken lengthy notes of everything that has yet

passed, and mean to go on with the drudgery, if no

indisposition obliges me to discontinue it. It is not

possible to form any judgment of the future duration of the

Session. I am led by sundry circumstances to guess that the

residue of the work will not be very quickly despatched. The

public mind is very impatient for ye event, and various

reports are circulating which tend to inflame curiosity. I

do not learn however that any discontent is expressed at the

concealment; and have little doubt that the people will be

as ready to receive as we shall be able to propose, a

Government that will secure their liberties &

happiness."--Mad. MSS.

M^r King. If this power be not given to the Nat^l Legislature, their

right of judging of the returns of their members may be frustrated. No

probability has been suggested of its being abused by them. Altho this

scheme of erecting the Gen^l Gov^t on the authority of the State

Legislatures has been fatal to the federal establishment, it would seem

as if many gentlemen, still foster the dangerous idea.

M^r Gov^r Morris observed that the States might make false returns and

then make no provisions for new elections.

M^r Sherman did not know but it might be best to retain the clause,

though he had himself sufficient confidence in the State Legislatures.

The motion of M^r P. & M^r R. did not prevail.

The word "respectively" was inserted after the word "State."

On the motion of M^r Read the word "their" was struck out, &

"regulations in such cases" inserted in place of "provisions concerning

them" the clause then reading--"but regulations in each of the foregoing

cases may at any time, be made or altered by the Legislature of the U.

S." This was meant to give the Nat^l Legislature a power not only to

alter the provisions of the States, but to make regulations in case the

States should fail or refuse altogether.

Art. VI. Sect. 1. as thus amended was agreed to nem. con.

Adjourned.

FRIDAY AUG^{ST} 10. IN CONVENTION

Art. VI. Sect. 2. taken up.

M^r Pinkney. The Committee as he had conceived were instructed to report

the proper qualifications of property for the members of the Nat^l

Legislature; instead of which they have referred the task to the Nat^l

Legislature itself. Should it be left on this footing, the first

Legislature will meet without any particular qualifications of property;

and if it should happen to consist of rich men they might fix such

qualifications as may be too favorable to the rich; if of poor men, an

opposite extreme might be run into. He was opposed to the establishment

of an undue aristocratic influence in the Constitution but he thought it

essential that the members of the Legislature, the Executive, and the

Judges, should be possessed of competent property to make them

independent & respectable. It was prudent when such great powers were to

be trusted to connect the tie of property with that of reputation in

securing a faithful administration. The Legislature would have the fate

of the Nation put into their hands. The President would also have a very

great influence on it. The Judges would have not only important causes

between Citizen & Citizen but also where foreigners are concerned. They

will even be the Umpires between the U. States and individual States as

well as between one State & another. Were he to fix the quantum of

property which should be required, he should not think of less than one

hundred thousand dollars for the President, half of that sum for each of

the Judges, and in like proportion for the members of the Nat^l

Legislature. He would however leave the sums blank. His motion was that

the President of the U. S. the Judges, and members of the Legislature

should be required to swear that they were respectively possessed of a

cleared unincumbered Estate to the amount of ---- in the case of the

President &c &c.

M^r Rutlidge seconded the motion, observing that the Committee had

reported no qualifications because they could not agree on any among

themselves, being embarrassed by the danger on one side of displeasing

the people by making them high, and on the other of rendering them

nugatory by making them low.

M^r Elseworth. The different circumstances of different parts of the U.

S. and the probable difference between the present and future

circumstances of the whole, render it improper to have either _uniform_

or _fixed_ qualifications. Make them so high as to be useful in the S.

States, and they will be inapplicable to the E. States. Suit them to the

latter, and they will serve no purpose in the former. In like manner

what may be accommodated to the existing State of things among us, may

be very inconvenient in some future state of them. He thought for these

reasons that it was better to leave this matter to the Legislative

discretion than to attempt a provision for it in the Constitution.

Doct^r Franklin expressed his dislike of every thing that tended to

debase the spirit of the common people. If honesty was often the

companion of wealth, and if poverty was exposed to peculiar temptation,

it was not less true that the possession of property increased the

desire of more property. Some of the greatest rogues he was ever

acquainted with, were the richest rogues. We should remember the

character which the Scripture requires in Rulers, that they should be

men hating covetousness. This Constitution will be much read and

attended to in Europe, and if it should betray a great partiality to the

rich will not only hurt us in the esteem of the most liberal and

enlightened men there, but discourage the common people from removing to

this Country.

The Motion of M^r Pinkney was rejected by so general a _no_, that the

States were not called.

M^r Madison was opposed to the Section as vesting an improper &

dangerous power in the Legislature. The qualifications of electors and

elected were fundamental articles in a Republican Gov^t and ought to be

fixed by the Constitution. If the Legislature could regulate those of

either, it can by degrees subvert the Constitution. A Republic may be

converted into an aristocracy or oligarchy as well by limiting the

number capable of being elected, as the number authorized to elect. In

all cases where the representatives of the people will have a personal

interest distinct from that of their Constituents, there was the same

reason for being jealous of them, as there was for relying on them with

full confidence, when they had a common interest. This was one of the

former cases. It was as improper as to allow them to fix their own

wages, or their own privileges. It was a power also which might be made

subservient to the views of one faction ag^{st} another. Qualifications

founded on artificial distinctions may be devised, by the stronger in

order to keep out partizans of a weaker faction.

M^r Elseworth, admitted that the power was not unexceptionable; but he

could not view it as dangerous. Such a power with regard to the electors

would be dangerous because it would be much more liable to abuse.

M^r Gov^r Morris moved to strike out "with regard to property" in order

to leave the Legislature entirely at large.

M^r Williamson. This would surely never be admitted. Should a majority

of the Legislature be composed of any particular description of men, of

lawyers for example, which is no improbable supposition, the future

elections might be secured to their own body.

M^r Madison observed that the British Parliam^t possessed the power of

regulating the qualifications both of the electors, and the elected; and

the abuse they had made of it was a lesson worthy of our attention. They

had made the changes in both cases subservient to their own views, or to

the views of political or Religious parties.

Question on the motion to strike out with regard to property

N. H. no. Mass. no. C^t ay. N. J. ay. P^a ay. Del.[21] no.

M^d no. V^a no. N. C. no. S. C. no. Geo. ay.

[21] In the printed Journal Delaware did not vote--Madison's

Note.

M^r Rutlidge was opposed to leaving the power to the Legislature--He

proposed that the qualifications should be the same as for members of

the State Legislatures.

M^r Wilson thought it would be best on the whole to let the Section go

out. A uniform rule would probably never be fixed by the Legislature,

and this particular power would constructively exclude every other power

of regulating qualifications.

On the question for agreeing to Art. VI. Sect. 2^d

N. H. ay. Mass. ay. C^t no. N. J. no. P^a no. M^d no. V^a no.

N. C. no. S. C. no. Geo. ay.

On motion of M^r Wilson to reconsider Art: IV. Sect. 2; so as to restore

3 in place of seven years of citizenship as a qualification for being

elected into the House of Represent^s.

N. H. no. Mass. no. C^t ay. N. J. no. P^a ay. Del. ay. M^d ay.

V^a ay. N. C. ay. S. C. no. Geo. no.

Monday next was then assigned for the reconsideration; all the States

being ay. except Mass^{ts}. & Georgia.

Art: VI. Sect. 3. taken up.

M^r Ghorum contended that less than a majority in each House should be

made a Quorum, otherwise great delay might happen in business, and great

inconvenience from the future increase of numbers.

M^r Mercer was also for less than a majority. So great a number will put

it in the power of a few by seceding at a critical moment to introduce

convulsions, and endanger the Governm^t. Examples of secession have

already happened in some of the States. He was for leaving it to the

Legislature to fix the Quorum, as in Great Britain, where the requisite

number is small & no inconveniency has been experienced.

Col. Mason. This is a valuable & necessary part of the plan. In this

extended Country, embracing so great a diversity of interests, it would

be dangerous to the distant parts to allow a small number of members of

the two Houses to make laws. The Central States could always take care

to be on the Spot and by meeting earlier than the distant ones, or

wearying their patience, and outstaying them, could carry such measures

as they pleased. He admitted that inconveniences might spring from the

secession of a small number; But he had also known good produced by an

apprehension, of it. He had known a paper emission prevented by that

cause in Virginia. He thought the Constitution as now moulded was

founded on sound principles, and was disposed to put into it extensive

powers. At the same time he wished to guard ag^{st} abuses as much as

possible. If the Legislature should be able to reduce the number at all,

it might reduce it as low as it pleased & the U. States might be

governed by a Juncto--A majority of the number which had been agreed on,

was so few that he feared it would be made an objection ag^{st} the

plan.

M^r King admitted there might be some danger of giving an advantage to

the Central States; but he was of opinion that the public inconveniency

on the other side was more to be dreaded.

M^r Gov^r Morris moved to fix the quorum at 33 members in the H. of

Rep^s & 14 in the Senate. This is a majority of the present number, and

will be a bar to the Legislature: fix the number low and they will

generally attend knowing that advantage may be taken of their absence,

the Secession of a small number ought not to be suffered to break a

quorum. Such events in the States may have been of little consequence.

In the national Councils they may be fatal. Besides other mischiefs, if

a few can break up a quorum, they may seize a moment when a particular

part of the Continent may be in need of immediate aid, to extort, by

threatening a secession, some unjust & selfish measure.

M^r Mercer 2^{ded} the motion.

M^r King said he had just prepared a motion which instead of fixing the

numbers proposed by M^r Gov^r Morris as Quorums, made those the lowest

numbers, leaving the Legislature at liberty to increase them or not. He

thought the future increase of members would render a majority of the

whole extremely cumbersome.

M^r Mercer agreed to substitute M^r King's motion in place of M^r

Morris's.

M^r Elseworth was opposed to it. It would be a pleasing ground of

confidence to the people that no law or burden could be imposed on them

by a few men. He reminded the movers that the Constitution proposed to

give such a discretion with regard to the number of Representatives that

a very inconvenient number was not to be apprehended. The inconveniency

of secessions may be guarded ag^{st} by giving to each House an

authority to require the attendance of absent members.

M^r Wilson concurred in the sentiments of M^r Elseworth.

M^r Gerry seemed to think that some further precautions than merely

fixing the quorum might be necessary. He observed that as 17 w^d be a

majority of a quorum of 33, and 8 of 14, questions might by possibility

be carried in the H. of Rep^s by 2 large States, and in the Senate by

the same States with the aid of two small ones.--He proposed that the

number for a quorum in the H. of Rep^s should not exceed 50, nor be less

than 33, leaving the intermediate discretion to the Legislature.

M^r King. As the quorum could not be altered with^t the concurrence of

the President by less than 2/3 of each House, he thought there could be

no danger in trusting the Legislature.

M^r Carrol. This would be no security ag^{st} a continuance of the

quorums at 33 & 14. when they ought to be increased.

On question on M^r King's motion "that not less than 33 in the H. of

Rep^s nor less than 14 in the Senate sh^d constitute a Quorum which may

be increased by a law, on additions of the members in either House.

N. H. no. Mass. ay. C^t no. N. J. no. P^a no. Del. ay. M^d no.

V^a no. N. C. no. S. C. no. Geo. no.

M^r Randolph & M^r Madison moved to add to the end of Art. VI. Sect. 3,

"and may be authorized to compel the attendance of absent members in

such manner & under such penalties as each House may provide." Agreed to

by all except Pen^a which was divided.

Art. VI. Sect. 3. agreed to as amended nem. con.

Sect. 4. } Agreed to nem. con.

Sect. 5. }

M^r Madison observed that the right of expulsion (Art. VI. Sect. 6.) was

too important to be exercised by a bare majority of a quorum: and in

emergencies of faction might be dangerously abused. He moved that, "with

the concurrence of 2/3," might be inserted between may & expel.

M^r Randolph & M^r Mason approved the idea.

M^r Gov^r Morris. This power may be safely trusted to a majority. To

require more may produce abuses on the side of the minority. A few men

from factious motives may keep in a member who ought to be expelled.

M^r Carrol thought that the concurrence of 2/3 at least ought to be

required.

On the question requiring 2/3 in cases of expelling a member.

N. H. ay. Mass. ay. C^t ay. N. J. ay. P^a div^d. Del. ay.

M^d ay. V^a ay. N. C. ay. S. C. ay. Geo. ay.

Art. VI. Sect. 6. as thus amended agreed to nem. con.

Art: VI. Sect. 7. taken up.

M^r Gov^r Morris urged that if the yeas & nays were proper at all any

individual ought to be authorized to call for them; and moved an

amendment to that effect.--The small States may otherwise be under a

disadvantage, and find it difficult to get a concurrence of 1/5.

M^r Randolph 2^{ded} y^e motion.

M^r Sherman had rather strike out the yeas & nays altogether. They never

have done any good, and have done much mischief. They are not proper as

the reasons governing the voter never appear along with them.

M^r Elseworth was of the same opinion.

Col. Mason liked the Section as it stood, it was a middle way between

two extremes.

M^r Ghorum was opposed to the motion for allowing a single member to

call the yeas & nays, and recited the abuses of it in Mass^{ts}. 1 in

stuffing the journals with them on frivolous occasions. 2 in misleading

the people who never know the reasons determing the votes.

The motion for allowing a single member to call the yeas & nays was

disag^d to nem. con.

M^r Carrol. & M^r Randolph moved to strike out the words, "each House"

and to insert the words, "the House of Representatives" in Sect. 7. Art.

6. and to add to the section the words "and any member of the Senate

shall be at liberty to enter his dissent."

M^r Gov^r Morris & M^r Wilson observed that if the minority were to have

a right to enter their votes & reasons, the other side would have a

right to complain, if it were not extended to them: & to allow it to

both, would fill the Journals, like the records of a Court, with

replications, rejoinders &c.

Question on M^r Carrol's motion to allow a member to enter his dissent

N. H. no. Mass. no. Con^t no. N. J. no. P^a no. Del. no. M^d ay.

V^a ay. N. C. no. S. C. ay. Geo. ay.

M^r Gerry moved to strike out the words "when it shall be acting in its

legislative capacity" in order to extend the provision to the Senate

when exercising its peculiar authorities and to insert "except such

parts thereof as in their judgment require secrecy" after the words

"publish them."--(It was thought by others that provision should be made

with respect to these when that part came under consideration which

proposed to vest those additional authorities in the Senate.)

On this question for striking out the words "when acting in its

legislative capacity"

N. H. div^d. Mass. ay. C^t no. N. J. no. P^a no. Del. ay.

M^d ay. V^a ay. N. C. ay. S. C. ay. Geo. ay.

Adjourned.

SATURDAY AUG^{ST} 11 IN CONVENTION

M^r Madison & M^r Rutlidge moved "that each House shall keep a journal

of its proceedings, & shall publish the same from time to time; except

such part of the proceedings of the Senate, when acting not in its

Legislative capacity as may be judged by that House to require secrecy."

M^r Mercer. This implies that other powers than legislative will be

given to the Senate which he hoped would not be given.

M^r Madison & M^r R's motion was disag^d to by all the States except

Virg^a.

M^r Gerry & M^r Sherman moved to insert after the words "publish them"

the following "except such as relate to treaties & military operations."

Their object was to give each House a discretion in such cases.--On this

question

N. H. no. Mass. ay. C^t ay. N. J. no. P^a no. Del. no. V^a no.

N. C. no. S. C. no. Geo. no.

M^r Elseworth. As the clause is objectionable in so many shapes, it may

as well be struck out altogether. The Legislature will not fail to

publish their proceedings from time to time. The people will call for it

if it should be improperly omitted.

M^r Wilson thought the expunging of the clause would be very improper.

The people have a right to know what their Agents are doing or have

done, and it should not be in the option of the Legislature to conceal

their proceedings. Besides as this is a clause in the existing

confederation, the not retaining it would furnish the adversaries of the

reform with a pretext by which weak & suspicious minds may be easily

misled.

M^r Mason thought it would give a just alarm to the people, to make a

conclave of their Legislature.

M^r Sherman thought the Legislature might be trusted in this case if in

any.

Question on 1^{st} part of the section down to "_publish them_"

inclusive: Agreed to nem. con.

Question on the words to follow, to wit "except such parts thereof as

may in their Judgment require secrecy."

N. H. div^d. Mass. ay. C^t ay. N. J. ay. P^a no. Del. no.

M^d no. V^a ay. N. C. ay. S. C. no. Geo. ay.

The remaining part as to yeas & nays,--agreed to nem. con.

Art VI. Sect. 8. taken up.

M^r King remarked that the section authorized the 2 Houses to adjourn to

a new place. He thought this inconvenient. The mutability of place had

dishonored the federal Gov^t and would require as strong a cure as we

could devise. He thought a law at least should be made necessary to a

removal of the Seat of Gov^t.

M^r Madison viewed the subject in the same light, and joined with M^r

King in a motion requiring a law.

Mr. Govern^r Morris proposed the additional alteration by inserting the

words, "during the Session" &c.

M^r Spaight. This will fix the seat of Gov^t at N. Y. The present

Congress will convene them there in the first instance, and they will

never be able to remove, especially if the Presid^t should be [a]

Northern Man.

M^r Gov^r Morris such a distrust is inconsistent with all Gov^t.

M^r Madison supposed that a central place for the seat of Gov^t was so

just and w^d be so much insisted on by the H. of Representatives, that

though a law should be made requisite for the purpose, it could & would

be obtained. The necessity of a central residence of the Gov^t w^d be

much greater under the new than old Gov^t. The members of the new Gov^t

w^d be more numerous. They would be taken more from the interior parts

of the States; they w^d not like members of y^e present Cong^s come so

often from the distant States by water. As the powers & objects of the

new Gov^t would be far greater y^e heretofore, more private individuals

w^d have business calling them to the seat of it, and it was more

necessary that the Gov^t should be in that position from which it could

contemplate with the most equal eye, and sympathize most equally with,

every part of the nation. These considerations he supposed would extort

a removal even if a law were made necessary. But in order to quiet

suspicions both within & without doors, it might not be amiss to

authorize the 2 Houses by a concurrent vote to adjourn at their first

meeting to the most proper place, and to require thereafter, the

sanction of a law to their removal.

The motion was accordingly moulded into the following form: "the

Legislature shall at their first assembling determine on a place at

which their future sessions shall be held; neither House shall

afterwards, during the session of the House of Rep^s without the consent

of the other, adjourn for more than three days, nor shall they adjourn

to any other place than such as shall have been fixt by law."

M^r Gerry thought it would be wrong to let the Presid^t check the will

of the 2 Houses on this subject at all.

M^r Williamson supported the ideas of M^r Spaight.

M^r Carrol was actuated by the same apprehensions.

M^r Mercer, it will serve no purpose to require the two Houses at their

first meeting to fix on a place. They will never agree.

After some further expressions from others denoting an apprehension that

the seat of Gov^t might be continued at an improper place if a law

should be made necessary to a removal, and the motion above stated with

another for recommitting the section had been negatived, the section was

left in the shape in which it was reported as to this point. The words,

"during the session of the Legislature" were prefixed to the 8^{th}

section--and the last sentence "But this regulation shall not extend to

the Senate when it shall exercise the powers mentioned in the ----

article" struck out. The 8^{th} section as amended was then agreed to.

M^r Randolph moved according to notice to reconsider Art: IV. Sect. 5.

concerning money bills which had been struck out. He argued 1. that he

had not wished for this privilege whilst a proportional Representation

in the Senate was in contemplation, but since an equality had been fixed

in that house, the large States would require this compensation at

least. 2. that it would make the plan more acceptable to the people,

because they will consider the Senate as the more aristocratic body, and

will expect that the usual guards ag^{st} its influence be provided

according to the example in G. Britain. 3. the privilege will give some

advantage to the House of Rep^s if it extends to the originating

only--but still more if it restrains the Senate from amend^g. 4. he

called on the smaller States to concur in the measure, as the condition

by which alone the compromise had entitled them to an equality in the

Senate. He signified that he should propose instead of the original

section, a clause specifying that the bills in question should be for

the purpose of Revenue, in order to repel y^e objection ag^{st} the

extent of the words, "_raising money_," which might happen incidentally,

and that the Senate should not so amend or alter as to increase or

diminish the sum; in order to obviate the inconveniences urged ag^{st} a

restriction of the Senate to a simple affirmation or negative.

M^r Williamson 2^{ded} the motion.

M^r Pinkney was sorry to oppose the opportunity gentlemen asked to have

the question again opened for discussion, but as he considered it a mere

waste of time he could not bring himself to consent to it. He said that

notwithstanding what had been said as to the compromise, he always

considered this section as making no part of it. The rule of

Representation in the 1^{st} branch was the true condition of that in

the 2^d branch.--Several others spoke for & ag^{st} the reconsideration,

but without going into the merits.--On the Question to reconsider

N. H. ay. Mass. ay. C^t ay. N. J.[22] ay. P^a ay. Del. ay.

M^d no. V^a ay. N. C. ay. S. C. div^d. Geo. ay.--Monday was then

assigned--

[22] In the printed Journal N. Jersey--no.--Madison's Note.

Adj^d.[23]

[23] The next day being Sunday, Madison wrote to his father:

"PHILAD^A Aug^{st} 12, 1787.

"HON^D SIR

"I wrote to you lately inclosing a few newspapers. I now

send a few more, not because they are interesting but

because they may supply the want of intelligence that might

be more so. The Convention reassembled at the time my last

mentioned that they had adjourned to. It is not possible yet

to determine the period to which the Session will be spun

out. It must be some weeks from this date at least, and

possibly may be computed by months. Eleven states are on the

ground, and have generally been so since the second or third

week of the Session. Rhode Island is one of the absent

States. She has never yet appointed deputies. N. H. till of

late was the other. That State is now represented. But just

before the arrival of her deputies, those of N. York left

us.--We have till within a few days had very cool weather.

It is now pleasant, after a fine rain. Our acc^{ts} from

Virg^a give us but an imperfect idea of the prospects with

you. In particular places the drouth we hear has been

dreadful. Gen^l Washington's neighbourhood is among the most

suffering of them. I wish to know how your neighbourhood is

off. But my chief anxiety is to hear that your health is

re-established. The hope that this may procure me that

information is the principal motive for writing it, having

as you will readily see not been led to it by any thing

worth communicating. With my love to my mother & the rest of

the family I remain Dear Sir

"Y^r aff^t son."

(Mad. MSS.)

Edward Carrington wrote to Madison from New York, August 11,

showing the solicitude of federalist members of Congress:

"... The President has been requested to write to the states

unrepresented, pressing upon them the objects which require

the attendance of their delegations, & urging them to come

forward, amongst the objects is that of the report of the

convention, which, it is supposed, is now in the State of

parturition--this bantling must receive the blessing of

Congress this session, or, I fear, it will expire before the

new one will assemble; every experiment has its critical

stages which must be taken as they occur, or the whole will

fail--the peoples expectations are rising with the progress

of this work, but will desert it, should it remain long with

Congress--permit me to suggest one idea as to the mode of

obtaining the accession of the States to the new plan of

government--let the convention appoint _one_ day, say the

1^{st} of May, upon which a convention appointed by the

people shall be held in each state, for the purpose of

accepting or rejecting in toto, the project--supposing an

act of the ordinary legislatures to be equally authentic,

which would not be true, yet many reasons present themselves

in favor of--special conventions--many men would be admitted

who are excluded from the legislatures--the business would

be taken up unclogged with any other--and it would

effectually call the attention of all the people to the

object as seriously affecting them. All the States being in

convention at the same time, opportunities of speculating

upon the views of each other would be cut off--the project

should be decided upon without an attempt to alter it--you

have doubtless found it difficult to reconcile the different

opinions in your body--will it not be impossible then, to

reconcile those which will arise amongst numerous assemblies

in the different states? It is possible there never may be a

general consent to the project as it goes out; but it is

absolutely certain there will never be an agreement in

amendments. It is the lot of but few to be able to discern

the remote principles upon which their happiness &

prosperity essentially depend--."--(Mad. MSS.)

MONDAY, AUG^{ST} 13. IN CONVENTION

Art. IV. Sect. 2. reconsidered--

M^r Wilson & M^r Randolph moved to strike out "7 years" and insert "4

years," as the requisite term of Citizenship to qualify for the House of

Rep^s. M^r Wilson said it was very proper the electors should govern

themselves by this consideration; but unnecessary & improper that the

Constitution should chain them down to it.

M^r Gerry wished that in future the eligibility might be confined to

Natives. Foreign powers will intermeddle in our affairs, and spare no

expence to influence them. Persons having foreign attachments will be

sent among us & insinuated into our councils, in order to be made

instruments for their purposes. Every one knows the vast sums laid out

in Europe for secret services. He was not singular in these ideas. A

great many of the most influential men in Mass^{ts} reasoned in the same

manner.

M^r Williamson moved to insert 9 years instead of seven. He wished this

Country to acquire as fast as possible national habits. Wealthy

emigrants do more harm by their luxurious examples, than good, by the

money, they bring with them.

Col. Hamilton was in general ag^{st} embarrassing the Gov^t with minute

restrictions. There was on one side the possible danger that had been

suggested. On the other side, the advantage of encouraging foreigners

was obvious & admitted. Persons in Europe of moderate fortunes will be

fond of coming here where they will be on a level with the first

Citizens. He moved that the section be so altered as to require merely

citizenship & inhabitancy. The right of determining the rule of

naturalization will then leave a discretion to the Legislature on this

subject which will answer every purpose.

M^r Madison seconded the motion. He wished to maintain the character of

liberality which had been professed in all the Constitutions &

publications of America. He wished to invite foreigners of merit &

republican principles among us. America was indebted to emigration for

her settlement & Prosperity. That part of America which had encouraged

them most had advanced most rapidly in population, agriculture & the

arts. There was a possible danger he admitted that men with foreign

predilections might obtain appointments but it was by no means probable

that it would happen in any dangerous degree. For the same reason that

they would be attached to their native Country, our own people w^d

prefer natives of this Country to them. Experience proved this to be the

case. Instances were rare of a foreigner being elected by the people

within any short space after his coming among us. If bribery was to be

practised by foreign powers, it would not be attempted among the

electors but among the elected, and among natives having full Confidence

of the people not among strangers who would be regarded with a jealous

eye.

M^r Wilson cited Pennsylv^a as a proof of the advantage of encouraging

emigrations. It was perhaps the youngest (except Georgia) settlem^t on

the Atlantic; yet it was at least among the foremost in population &

prosperity. He remarked that almost all the Gen^l officers of the Pen^a

line of the late army were foreigners. And no complaint had ever been

made against their fidelity or merit. Three of her deputies to the

Convention (M^r R. Morris, M^r Fitzsimons & himself) were also not

natives. He had no objection to Col. Hamilton's motion & would withdraw

the one made by himself.

M^r Butler was strenuous ag^{st} admitting foreigners into our public

Councils.

Question on Col. Hamilton's Motion

N. H. no. Mass. no. C^t ay. N. J. no. P^a ay. Del. no. Md. ay.

V^a ay. N. C. no. S. C. no. Geo. no.

Question on M^r Williamson's motion to insert 9 years instead of seven.

N. H. ay. Mass^{ts} no. C^t no. N. J. no. P^a no. Del. no.

M^d no. V^a no. N. C. no. S. C. ay. Geo. ay.

M^r Wilson renewed the motion for 4 years instead of 7; & on question

N. H. no. Mass. no. C^t ay. N. J. no. P^a no. Del. no. M^d ay.

V^a ay. N. C. no. S. C. no. Geo. no.

M^r Gov^r Morris moved to add to the end of the section (Art IV. S. 2) a

proviso that the limitation of seven years should not affect the rights

of any person now a Citizen.

M^r Mercer 2^{ded} the motion. It was necessary he said to prevent a

disfranchisement of persons who had become Citizens under and on the

faith & according to the laws & Constitution from being on a level in

all respects with natives.

M^r Rutlidge. It might as well be said that all qualifications are

disfranchisem^{ts} and that to require the age of 25 years was a

disfranchisement. The policy of the precaution was as great with regard

to foreigners now Citizens; as to those who are to be naturalized in

future.

M^r Sherman. The U. States have not invited foreigners nor pledged their

faith that they should enjoy equal privileges with native Citizens. The

Individual States alone have done this. The former therefore are at

liberty to make any discriminations they may judge requisite.

M^r Ghorum. When foreigners are naturalized it w^d seem as if they stand

on an equal footing with natives. He doubted then the propriety of

giving a retrospective force to the restriction.

M^r Madison animadverted on the peculiarity of the doctrine of M^r

Sherman. It was a subtilty by which every national engagement might be

evaded. By parity of reason, Whenever our public debts, or foreign

treaties become inconvenient nothing more would be necessary to relieve

us from them, than to new model the Constitution. It was said that the

_U. S._ as such have not pledged their faith to the naturalized

foreigners, & therefore are not bound. Be it so, & that the States alone

are bound. Who are to form the New Constitution by which the condition

of that class of citizens is to be made worse than the other class? Are

not the States y^e Agents? Will they not be the members of it? Did they

not appoint this Convention? Are not they to ratify its proceedings?

Will not the new Constitution be their Act? If the new Constitution then

violates the faith pledged to any description of people will not the

makers of it, will not the States, be the violaters? To justify the

doctrine it must be said that the States can get rid of their obligation

by revising the Constitution, though they could not do it by repealing

the law under which foreigners held their privileges. He considered this

a matter of real importance. It would expose us to the reproaches of all

those who should be affected by it, reproaches which w^d soon be echoed

from the other side of the Atlantic; and would unnecessarily enlist

among the Adversaries of the reform a very considerable body of

Citizens: We should moreover reduce every State to the dilemma of

rejecting it or of violating the faith pledged to a part of its

Citizens.

M^r Gov^r Morris considered the case of persons under 25 years, as very

different from that of foreigners. No faith could be pleaded by the

former in bar of the regulation. No assurance had ever been given that

persons under that age should be in all cases on a level with those

above it. But with regard to foreigners among us, the faith had been

pledged that they should enjoy the privileges of Citizens. If the

restriction as to age had been confined to natives, & had left

foreigners under 25 years, eligible in this case, the discrimination w^d

have been an equal injustice on the other side.

M^r Pinkney remarked that the laws of the States had varied much the

terms of naturalization in different parts of America; and contended

that the U. S. could not be bound to respect them on such an occasion as

the present. It was a sort of recurrence to first principles.

Col. Mason was struck not like (Mr. Madison) with the _peculiarity_, but

the _propriety_ of the doctrine of M^r Sherman. The States have formed

different qualifications themselves, for enjoying different rights of

citizenship. Greater caution w^d be necessary in the outset of the Gov^t

than afterwards. All the great objects w^d then be provided for. Every

thing would be then set in motion. If persons among us attached to G. B.

should work themselves into our Councils, a turn might be given to our

affairs & particularly to our Commercial regulations which might have

pernicious consequences. The Great Houses of British Merchants will

spare no pains to insinuate the instruments of their views into the

Gov^t.

M^r Wilson read the clause in the Constitution of Pen^a giving to

foreigners after two years residence all the rights whatsoever of

Citizens. Combined it with the article of Confederation making the

Citizens of one State Citizens of all, inferred the obligation Pen^a was

under to maintain the faith thus pledged to her citizens of foreign

birth, and the just complaints which her failure would authorize: He

observed likewise that the Princes & States of Europe would avail

themselves of such breach of faith to deter their subjects from

emigration to the U. S.

M^r Mercer enforced the same idea of a breach of faith.

M^r Baldwin could not enter into the force of the arguments ag^{st}

extending the disqualification to foreigners now Citizens. The

discrimination of the place of birth, was not more objectionable than

that of age which all had concurred in the propriety of.

Question on the proviso of M^r Gov^r Morris in favor of foreigners now

Citizens

N. H. no. Mass. no. C^t ay. N. J. ay. P^a ay. Del. no.

Mary^d ay. V^t ay. N. C. no. S. C. no. Geo. no.

M^r Carrol moved to insert "5 years" instead of "seven" in Sect. 2^d

Art: IV

N. H. no. Mass. no. C^t ay. N. J. no. P^a div^d. Del. no. M^d

ay. V^a ay. N. C. no. S. C. no. Geo. no.

The Section (Art IV. Sec. 2.) as formerly amended was then agreed to

nem. con.

M^r Wilson moved that (in Art: V. Sect. 3.) 9 years be reduced to seven,

which was disag^d to and the 3^d section (Art. V.) confirmed by the

following vote.

N. H. ay. Mass. ay. C^t no. N. J. ay. P^a no. Del. ay. M^d no.

V^a ay. N. C. ay. S. C. ay. Geo. ay.

Art. IV. Sec. 5. being reconsidered.

M^r Randolph moved that the clause be altered so as to read--"Bills for

raising money for the _purpose of revenue_ or for appropriating the same

shall originate in the House of Representatives and shall not be so

amended or altered by the Senate as to increase or diminish the sum to

be raised, or change the mode of levying it, or the object of its

appropriation."--He would not repeat his reasons, but barely remind the

members from the smaller States of the compromise by which the larger

States were entitled to this privilege.

Col. Mason. This amendment removes all the objections urged ag^{st} the

section as it stood at first. By specifying _purposes of revenue_, it

obviated the objection that the section extended to all bills under

which money might incidentally arise. By authorizing amendments in the

Senate it got rid of the objections that the Senate could not correct

errors of any sort, & that it would introduce into the House of Rep^s

the practice of tacking foreign matter to money bills. These objections

being removed, the arguments in favor of the proposed restraint on the

Senate ought to have their full force. 1. the Senate did not represent

the _people_, but the _States_ in their political character. It was

improper therefore that it should tax the people. The reason was the

same ag^{st} their doing it; as it had been ag^{st} Cong^s doing it. Nor

was it in any respect necessary in order to cure the evils of our

Republican system. He admitted that notwithstanding the superiority of

the Republican form over every other, it had its evils. The chief ones,

were the danger of the majority oppressing the minority, and the

mischievous influence of demagogues. The Gen^l Government of itself will

cure them. As the States will not concur at the same time in their

unjust & oppressive plans, the General Gov^t will be able to check &

defeat them, whether they result from the wickedness of the majority, or

from the misguidance of demagogues. Again, the Senate is not like the H.

of Rep^s chosen frequently and obliged to return frequently among the

people. They are to be chosen by the Sts for 6 years, will probably

settle themselves at the seat of Gov^t will pursue schemes for their own

aggrandisement--will be able by weary^g out the H. of Rep^s and taking

advantage of their impatience at the close of a long Session, to extort

measures for that purpose. If they should be paid as he expected would

be yet determined & wished to be so, out of the Nat^l Treasury, they

will particularly extort an increase of their wages. A bare negative was

a very different thing from that of originating bills. The practice in

Engl^d was in point. The House of Lords does not represent nor tax the

people, because not elected by the people. If the Senate can originate,

they will in the recess of the Legislative Sessions, hatch their

mischievous projects, for their own purposes, and have their money bills

ready cut & dried (to use a common phrase) for the meeting of the H. of

Rep^s. He compared the case to Poyning's law--and signified that the

House of Rep^s might be rendered by degrees like the Parliament of

Paris, the mere depository of the decrees of the Senate. As to the

compromise so much had passed on that subject that he would say nothing

about it. He did not mean by what he had said to oppose the permanency

of the Senate. On the contrary he had no repugnance to an increase of

it--nor to allowing it a negative, though the Senate was not by its

present constitution entitled to it. But in all events he would contend

that the purse-strings should be in the hands of the Representatives of

the people.

M^r Wilson was himself directly opposed to the equality of votes granted

to the Senate by its present Constitution. At the same time he wished

not to multiply the vices of the system. He did not mean to enlarge on a

subject which had been so much canvassed, but would remark that as an

insuperable objection ag^{st} the proposed restriction of money bills to

the H. of Rep^s that it would be a source of perpetual contentions where

there was no mediator to decide them. The Presid^t here could not like

the Executive Magistrate in England interpose by a prorogation, or

dissolution. This restriction had been found pregnant with altercation

in every State where the Constitution had established it. The House of

Rep^s will insert other things in money bills, and by making them

conditions of each other, destroy the deliberate liberty of the Senate.

He stated the case of a Preamble to a money bill sent up by the House of

Commons in the reign of Queen Anne, to the H. of Lords, in which the

conduct of the displaced Ministry, who were to be impeached before the

Lords, was condemned; the Co[~m]ons thus extorting a premature judgm^t

without any hearing of the Parties to be tried, and the H. of Lords

being thus reduced to the poor & disgraceful expedient of opposing to

the authority of a law, a protest on their Journals ag^{st} its being

drawn into precedent. If there was anything like Poynings law in the

present case, it was in the attempt to vest the exclusive right of

originating in the H. of Rep^s and so far he was ag^{st} it. He should

be equally so if the right were to be exclusively vested in the Senate.

With regard to the purse strings, it was to be observed that the purse

was to have two strings, one of which was in the hands of the H. of

Rep^s the other in those of the Senate. Both houses must concur in

untying, and of what importance could it be which untied first, which

last. He could not conceive it to be any objection to the Senate's

preparing the bills, that they would have leisure for that purpose and

would be in the habits of business. War, Commerce, & Revenue were the

great objects of the Gen^l Government. All of them are connected with

money. The restriction in favor of the H. of Represent^s would exclude

the Senate from originating any important bills whatever--

M^r Gerry considered this as a part of the plan that would be much

scrutinized. Taxation & representation are strongly associated in the

minds of the people, and they will not agree that any but their

immediate representatives shall meddle with their purses. In short the

acceptance of the plan will inevitably fail, if the Senate be not

restrained from originating money bills.

M^r Govern^r Morris. All the arguments suppose the right to originate &

to tax, to be exclusively vested in the Senate.--The effects commented

on may be produced by a Negative only in the Senate. They can tire out

the other House, and extort their concurrence in favorite measures, as

well by withholding their negative, as by adhering to a bill introduced

by themselves.

M^r Madison thought If the substitute offered by M^r Randolph for the

original section is to be adopted it would be proper to allow the Senate

at least so to amend as to _diminish_ the sums to be raised. Why should

they be restrained from checking the extravagance of the other House?

One of the greatest evils incident to Republican Gov^t was the spirit of

contention & faction. The proposed substitute, which in some respects

lessened the objections ag^{st} the section, had a contrary effect with

respect to this particular. It laid a foundation for new difficulties

and disputes between the two houses. The word _revenue_ was ambiguous.

In many acts, particularly in the regulation of trade, the object would

be twofold. The raising of revenue would be one of them. How could it be

determined which was the primary or predominant one; or whether it was

necessary that revenue sh^d be the sole object, in exclusion even of

other incidental effects. When the Contest was first opened with G. B.

their power to regulate trade was admitted. Their power to raise revenue

rejected. An accurate investigation of the subject afterwards proved

that no line could be drawn between the two cases. The words _amend or

alter_ form an equal source of doubt & altercation. When an obnoxious

paragraph shall be sent down from the Senate to the House of Rep^s, it

will be called an origination under the name of an amendment. The Senate

may actually couch extraneous matter under that name. In these cases,

the question will turn on the _degree_ of connection between the matter

& object of the bill and the alteration or amendment offered to it. Can

there be a more fruitful source of dispute, or a kind of dispute more

difficult to be settled? His apprehensions on this point were not

conjectural. Disputes had actually flowed from this source in Virg^a

where the Senate can originate no bill. The words, "so as to _increase

or diminish_ the sum to be raised," were liable to the same objections.

In levying indirect taxes, which it seemed to be understood were to form

the principal revenue of the new Gov^t the sum to be raised, would be

increased or diminished by a variety of collateral circumstances

influencing the consumption, in general, the consumption of foreign or

of domestic articles--of this or that particular species of articles and

even by the mode of collection which may be closely connected with the

productiveness of a tax.--The friends of the section had argued its

necessity from the permanency of the Senate. He could not see how this

argum^t applied. The Senate was not more permanent now than in the form

it bore in the original propositions of M^r Randolph and at the time

when no objection whatever was hinted ag^{st} its originating money

bills. Or if in consequence of a loss of the present question, a

proportional vote in the Senate should be reinstated as has been urged

as the indemnification the permanency of the Senate will remain the

same.--If the right to originate be vested exclusively in the House of

Rep^s either the Senate must yield ag^{st} its judgment to that House,

in which case the Utility of the check will be lost--or the Senate will

be inflexible & the H. of Rep^s must adapt its money bill to the views

of the Senate, in which case, the exclusive right will be of no

avail.--As to the Compromise of which so much had been said, he would

make a single observation. There were 5 States which had opposed the

equality of votes in the Senate, viz, Mass^{ts}. Penn^a Virg^a N.

Carolina & South Carol^a. As a compensation for the sacrifice extorted

from them on this head, the exclusive origination of money bills in the

other House had been tendered. Of the five States a majority viz. Penn^a

Virg^a & S. Carol^a have uniformly voted ag^{st} the proposed

compensation, on its own merits, as rendering the plan of Gov^t still

more objectionable. Mass^{ts} has been divided. N. Carolina alone has

set a value on the compensation, and voted on that principle. What

obligation then can the small States be under to concur ag^{st} their

judgments in reinstating the section?

M^r Dickenson. Experience must be our only guide. Reason may mislead us.

It was not Reason that discovered the singular & admirable mechanism of

the English Constitution. It was not Reason that discovered or ever

could have discovered the odd & in the eye of those who are governed by

reason, the absurd mode of trial by Jury. Accidents probably produced

these discoveries, and experience has given a sanction to them. This is

then our guide. And has not experience verified the utility of

restraining money bills to the immediate representatives of the people.

Whence the effect may have proceeded he could not say: whether from the

respect with which this privilege inspired the other branches of Gov^t

to the H. of Co[~m]ons, or from the turn of thinking it gave to the

people at large with regard to their rights, but the effect was visible

& could not be doubted--Shall we oppose to this long experience, the

short experience of 11 years which we had ourselves, on this subject. As

to disputes, they could not be avoided any way. If both Houses should

originate, each would have a different bill to which it would be

attached, and for which it would contend.--He observed that all the

prejudices of the people would be offended by refusing this exclusive

privilege to the H. of Repres^s and these prejudices sh^d never be

disregarded by us when no essential purpose was to be served. When this

plan goes forth it will be attacked by the popular leaders. Aristocracy

will be the watchword; the Shiboleth among its adversaries. Eight States

have inserted in their Constitutions the exclusive right of originating

money bills in favor of the popular branch of the Legislature. Most of

them however allowed the other branch to amend. This he thought would be

proper for us to do.

M^r Randolph regarded this point as of such consequence, that as he

valued the peace of this Country, he would press the adoption of it. We

had numerous & monstrous difficulties to combat. Surely we ought not to

increase them. When the people behold in the Senate, the countenance of

an aristocracy; and in the president, the form at least of a little

monarch, will not their alarms be sufficiently raised without taking

from their immediate representatives, a right which has been so long

appropriated to them.--The Executive will have more influence over the

Senate, than over the H. of Rep^s Allow the Senate to originate in this

Case, & that influence will be sure to mix itself in their deliberations

& plans. The Declaration of War he conceived ought not to be in the

Senate composed of 26 men only, but rather in the other House. In the

other House ought to be placed the origination of the means of war. As

to Commercial regulations which may involve revenue, the difficulty may

be avoided by restraining the definition to bills, for the _mere_ or

_sole_, purpose of raising revenue. The Senate will be more likely to be

corrupt than the H. of Rep^s and should therefore have less to do with

money matters. His principal object however was to prevent popular

objections against the plan, and to secure its adoption.

M^r Rutlidge. The friends of this motion are not consistent in their

reasoning. They tell us that we ought to be guided by the long

experience of G. B. & not our own experience of 11 years; and yet they

themselves propose to depart from it. The _H. of Co[~m]ons_ not only

have the exclusive right of originating, but the _Lords_ are not allowed

to alter or amend a money bill. Will not the people say that this

restriction is but a mere tub to the whale. They cannot but see that it

is of no real consequence; and will be more likely to be displeased with

it as an attempt to bubble them, than to impute it to a watchfulness

over their rights. For his part, he would prefer giving the exclusive

right to the Senate, if it was to be given exclusively at all. The

Senate being more conversant in business, and having more leisure, will

digest the bills much better, and as they are to have no effect, till

examined & approved by the H. of Rep^s there can be no possible danger.

These clauses in the Constitutions of the States had been put in through

a blind adherence to the British model. If the work was to be done over

now, they would be omitted. The experiment in S. Carolina, where the

Senate can originate or amend money bills, has shewn that it answers no

good purpose; and produces the very bad one of continually dividing &

heating the two houses. Sometimes indeed if the matter of the amendment

of the Senate is pleasing to the other House they wink at the

encroachment; if it be displeasing, then the Constitution is appealed

to. Every Session is distracted by altercations on this subject. The

practice now becoming frequent is for the Senate not to make formal

amendments; but to send down a schedule of the alterations which will

procure the bill their assent.

M^r Carrol. The most ingenious men in Mary^d are puzzled to define the

case of money bills, or explain the Constitution on that point, tho it

seemed to be worded with all possible plainness & precision. It is a

source of continual difficulty & squabble between the two houses.

M^r McHenry[24] mentioned an instance of extraordinary subterfuge, to

get rid of the apparent force of the Constitution.

[24] "Mr. McHenry was bred a physician, but he afterwards turned

Soldier and acted as Aid to Gen^l Washington and the Marquis

de la Fayette. He is a Man of Specious talents, with nothing

of genious to improve them. As a politician there is nothing

remarkable in him, nor has he any of the graces of the

Orator. He is however, a very respectable young Gentleman,

and deserves the honor which his country has bestowed on

him. Mr. McHenry is about 32 years of age."--Pierce's Notes,

_Am. Hist. Rev._, iii., 330.

On Question on the first part of the motion as to the exclusive

originating of Money bills in the H. of Rep^s

N. H. ay. Mass. ay. C^t no. N. J. no. P^a no. Del. no. M^d no.

Virg^a ay. M^r Blair & M^r M. no. M^r R, Col. Mason and

Gen^l Washington[25] ay. N. C. ay. S. C. no. Geo. no.

[25] He disapproved & till now voted ag^{st} the exclusive

privilege, he gave up his judgment he said because it was

not of very material weight with him & was made an essential

point with others who if disappointed, might be less cordial

in other points of real weight.--Madison's Note.

Question on Originating by H. of Rep^s & _amending_ by Senate, as

reported Art IV. Sect. 5.

N. H. ay. Mass. ay. C^t no. N. J. no. P^a no. Del. no. M^d no.

V^a[26] ay. N. C. ay. S. C. no. Geo. no.

[26] In the printed Journ Virg^a--no.--Madison's Note.

Question on the last clause of Sect. 5, Art: IV--viz "No money shall be

drawn from the Public Treasury, but in pursuance of _appropriations_

that shall originate in the House of Rep^s. It passed in the negative--

N. H. no. Mas. ay. Con. no. N. J. no. P^a no. Del. no. M^d no.

V^a no. N. C. no. S. C. no. Geo. no.

Adj^d.

TUESDAY AUG. 14[27]. IN CONVENTION

[27] General Henry Knox wrote to Washington from New York under

date of August 14th:

"Influenced by motives of delicacy I have hitherto forborne

the pleasure my dear Sir of writing to you since my return

from Philadelphia.

"I have been apprehensive that the stages of the business of

the convention, might leak out, and be made an ill use of,

by some people. I have therefore been anxious that you

should escape the possibility of imputation. But as the

subjects seem now to be brought to a point, I take the

liberty to indulge myself in communicating with you.

"Although I frankly confess that the existence of the State

governments is an insuperable evil in a national point of

view, yet I do not well see how in this stage of the

business they could be annihilated--and perhaps while they

continue the frame of government could not with propriety be

much higher toned than the one proposed. It is so infinitely

preferable to the present constitution, and gives such a

bias to a proper line of conduct in future that I think all

men anxious for a national government should zealously

embrace it.

"The education, genius, and habits of men on this continent

are so various even at this moment, and of consequence their

views of the same subject so different, that I am satisfied

with the result of the convention, although it is short of

my wishes and of my judgment.

"But when I find men of the purest intentions concur in

embracing a system which on the highest deliberation, seems

to be the best which can be obtained, under present

circumstances, I am convinced of the propriety of its being

strenuously supported by all those who have wished for a

national republic of higher and more durable powers.

"I am persuaded that the address of the convention to

accompany their proposition will be couched in the most

persuasive terms.

"I feel anxious that there should be the fullest

representation in Congress, in order that the propositions

should receive their warmest concurrence and strongest

impulse...."--Wash. MSS.

Article VI. Sect. 9. taken up.

M^r Pinkney argued that the making the members ineligible to offices was

_degrading_ to them, and the more improper as their election into the

Legislature implied that they had the confidence of the people; that it

was _inconvenient_, because the Senate might be supposed to contain the

fittest men. He hoped to see that body become a School of public

Ministers, a nursery of Statesmen: that it was _impolitic_, because the

Legislature would cease to be a magnet to the first talents and

abilities. He moved to postpone the section in order to take up the

following proposition viz--"the members of each House shall be incapable

of holding any office under the U. S. for which they or any of others

for their benefit receive any salary, fees, or emoluments of any

kind--and the acceptance of such office shall vacate their seats

respectively."

Gen^s Mifflin[28] 2^{ded} the motion.

[28] "General Mifflin is well known for the activity of his

mind, and the brilliancy of his parts. He is well-informed

and a graceful Speaker. The General is about 40 years of age

and a very handsome man."--Pierce's Notes, _Am. Hist. Rev._,

iii., 328.

Col. Mason ironically proposed to strike out the whole section, as a

more effectual expedient for encouraging that exotic corruption which

might not otherwise thrive so well in the American Soil--for compleating

that Aristocracy which was probably in the contemplation of some among

us, and for inviting into the Legislative Service, those generous &

benevolent characters who will do justice to each other's merit, by

carving out offices & rewards for it. In the present state of American

morals & manners, few friends it may be thought will be lost to the

plan, by the opportunity of giving premiums to a mercenary & depraved

ambition.

M^r Mercer. It is a first principle in political science, that whenever

the rights of property are secured, an aristocracy will grow out of it.

Elective Governments also necessarily become aristocratic, because the

rulers being few can & will draw emoluments for themselves from the

many. The Governments of America will become aristocracies. They are so

already. The public measures are calculated for the benefit of the

Governors, not of the people. The people are dissatisfied & complain.

They change their rulers, and the public measures are changed, but it is

only a change of one scheme of emolument to the rulers, for another. The

people gain nothing by it, but an addition of instability & uncertainty

to their other evils.--Governm^{ts} can only be maintained by _force_ or

_influence_. The Executive has not _force_, deprive him of influence by

rendering the members of the Legislature ineligible to Executive

offices, and he becomes a mere phantom of authority. The Aristocratic

part will not even let him in for a share of the plunder. The

Legislature must & will be composed of wealth & abilities, and the

people will be governed by a Junto. The Executive ought to have a

Council, being members of both Houses. Without such an influence, the

war will be between the aristocracy & the people. He wished it to be

between the Aristocracy & the Executive. Nothing else can protect the

people ag^{st} those speculating Legislatures which are now plundering

them throughout the U. States.

M^r Gerry read a Resolution of the Legislature of Mass^{ts} passed

before the Act of Cong^s recommending the Convention, in which her

deputies were instructed not to depart from the rotation established in

the 5^{th} art: of Confederation, nor to agree in any case to give to

the members of Cong^s a capacity to hold offices under the Government.

This he said was repealed in consequence of the Act of Cong^s with which

the State thought it proper to comply in an unqualified manner. The

Sense of the State however was Still the same. He could not think with

M^r Pinkney that the disqualification was degrading. Confidence is the

road to tyranny. As to Ministers & Ambassadors few of them were

necessary. It is the opinion of a great many that they ought to be

discontinued, on our part; that none may be sent among us, & that source

of influence be shut up. If the Senate were to appoint Ambassadors as

seemed to be intended, they will multiply embassies for their own sakes.

He was not so fond of those productions as to wish to establish

nurseries for them. If they are once appointed, the House of Rep^s will

be obliged to provide salaries for them, whether they approve of the

measures or not. If men will not serve in the Legislature without a

prospect of such offices, our situation is deplorable indeed. If our

best Citizens are actuated by such mercenary views we had better chuse a

single despot at once. It will be more easy to satisfy the rapacity of

one than of many. According to the idea of one Gentleman (M^r Mercer)

our Government it seems is to be a Gov^t of plunder. In that case it

certainly would be prudent to have but one rather than many to be

employed in it. We cannot be too circumspect in the formation of this

System. It will be examined on all sides and with a very suspicious eye.

The people who have been so lately in arms ag^{st} G. B. for their

liberties, will not easily give them up. He lamented the evils existing

at present under our Governments, but imputed them to the faults of

those in office, not to the people. The misdeeds of the former will

produce a critical attention to the opportunities afforded by the new

system to like or greater abuses. As it now stands it is as compleat an

aristocracy as ever was framed. If great powers should be given to the

Senate we shall be governed in reality by a Junto as has been

apprehended. He remarked that it would be very differently constituted

from Cong^s. 1. there will be but 2 deputies from each State, in Cong^s

there may be 7. and are generally 5.--2. they are chosen for six years,

those of Congress annually. 3. they are not subject to recall; those of

Cong^s are. 4. In Congress 9 _States_ are necessary for all great

purposes, here 8 _persons_ will suffice. Is it to be presumed that the

people will ever agree to such a system? He moved to render the members

of the H. of Rep^s as well as of the Senate ineligible not only during,

but for one year after the expiration of their terms.--If it should be

thought that this will injure the Legislature by keeping out of it men

of abilities who are willing to serve in other offices it may be

required as a qualification for other offices, that the Candidate shall

have served a certain time in the Legislature.

M^r Gov^r Morris. Exclude the officers of the army & navy, and you form

a band having a different interest from & opposed to the civil power:

you stimulate them to despise & reproach those "talking Lords who dare

not face the foe." Let this spirit be roused at the end of a war, before

your troops shall have laid down their arms, and though the Civil

authority "be intrenched in parchment to the teeth" they will cut their

way to it. He was ag^{st} rendering the members of the Legislature

ineligible to offices. He was for rendering them eligible ag^n after

having vacated their Seats by accepting office. Why should we not avail

ourselves of their services if the people chuse to give them their

confidence. There can be little danger of corruption either among the

people or the Legislatures who are to be the Electors. If they say, we

see their merits, we honor the men, we chuse to renew our confidence in

them, have they not a right to give them a preference; and can they be

properly abridged of it.

M^r Williamson; introduced his opposition to the motion by referring to

the question concerning "money bills." That clause he said was dead. Its

Ghost he was afraid would notwithstanding haunt us. It had been a matter

of conscience with him, to insist upon it as long as there was hope of

retaining it. He had swallowed the vote of rejection, with reluctance.

He could not digest it. All that was said on the other side was that the

restriction was not _convenient_. We have now got a House of Lords which

is to originate money-bills.--To avoid another _inconveniency_, we are

to have a whole Legislature at liberty to cut out offices for one

another. He thought a self-denying ordinance for ourselves would be more

proper. Bad as the Constitution has been made by expunging the

restriction on the Senate concerning money bills he did not wish to make

it worse by expunging the present Section. He had scarcely seen a single

corrupt measure in the Legislature of N. Carolina, which could not be

traced up to office hunting.

M^r Sherman. The Constitution sh^d lay as few temptations as possible in

the way of those in power. Men of abilities will increase as the Country

grows more populous and as the means of education are more diffused.

M^r Pinkney. No State has rendered the members of the Legislature

ineligible to offices. In S. Carolina the Judges are eligible into the

Legislature. It cannot be supposed then that the motion will be

offensive to the people. If the State Constitutions should be revised he

believed restrictions of this sort w^d be rather diminished than

multiplied.

M^r Wilson could not approve of the section as it stood, and could not

give up his judgment to any supposed objections that might arise among

the people. He considered himself as acting & responsible for the

welfare of millions not immediately represented in this House. He had

also asked himself the serious question what he should say to his

constituents in case they should call upon him to tell them why he

sacrificed his own Judgment in a case where they authorized him to

exercise it? Were he to own to them that he sacrificed it in order to

flatter their prejudices, he should dread the retort: did you suppose

the people of Penn^a had not good sense enough to receive a good

Government? Under this impression he should certainly follow his own

Judgment which disapproved of the section. He would remark in addition

to the objections urged ag^{st} it, that as one branch of the

Legislature was to be appointed by the Legislatures of the States, the

other by the people of the States, as both are to be paid by the States,

and to be appointable to State offices, nothing seemed to be wanting to

prostrate the Nat^l Legislature, but to render its members ineligible to

Nat^l offices, & by that means take away its power of attracting those

talents which were necessary to give weight to the Govern^t and to

render it useful to the people. He was far from thinking the ambition

which aspired to Offices of dignity and trust, an ignoble or culpable

one. He was sure it was not politic to regard it in that light, or to

withhold from it the prospect of those rewards, which might engage it in

the career of public service. He observed that the State of Penn^a which

had gone as far as any State into the policy of fettering power, had not

rendered the members of the Legislature ineligible to offices of Gov^t.

M^r Elsworth did not think the mere postponement of the reward would be

any material discouragement of merit. Ambitious minds will serve 2 years

or 7 years in the Legislature for the sake of qualifying themselves for

other offices. This he thought a sufficient security for obtaining the

services of the ablest men in the Legislature, although whilst members

they should be ineligible to Public offices. Besides, merit will be most

encouraged, when most impartially rewarded. If rewards are to circulate

only within the Legislature, merit out of it will be discouraged.

M^r Mercer was extremely anxious on this point. What led to the

appointment of this Convention? The corruption & mutability of the

Legislative Councils of the States. If the plan does not remedy these,

it will not recommend itself; and we shall not be able in our private

capacities to support & enforce it: nor will the best part of our

Citizens exert themselves for the purpose.--It is a great mistake to

suppose that the paper we are to propose will govern the U. States. It

is The men whom it will bring into the Govern^t and interest in

maintaining it that is to govern them. The paper will only mark out the

mode & the form. Men are the substance and must do the business. All

Gov^t must be by force or influence. It is not the King of France--but

200,000 janisaries of power that govern that Kingdom. There will be no

such force here; influence then must be substituted; and he would ask

whether this could be done, if the members of the Legislature should be

ineligible to offices of State; whether such a disqualification would

not determine all the most influential men to stay at home, & prefer

appointments within their respective States.

M^r Wilson was by no means satisfied with the answer given by M^r

Elseworth to the argument as to the discouragement of merit. The members

must either go a second time into the Legislature, and disqualify

themselves--or say to their Constituents, we served you before only from

the mercenary view of qualifying ourselves for offices, and have^g

answered this purpose we do not chuse to be again elected.

M^r Gov^r Morris put the case of a war, and the Citizen the most capable

of conducting it, happening to be a member of the Legislature. What

might have been the consequence of such a regulation at the

commencement, or even in the Course of the late contest for our

liberties?

On question for postponing in order to take up M^r Pinkney's motion, it

was lost,

N. H. ay. Mas. no. C^t no. N. J. no. P^a ay. Del. ay.

M^d ay. V^a ay. N. C. no. S. C. no. Geo. div^d.

M^r Gov^r Morris moved to insert, after "office," except offices in the

army or navy: but in that case their offices shall be vacated.

M^r Broom 2^{ds} him.

M^r Randolph had been & should continue uniformly opposed to the

striking out of the clause; as opening a door for influence &

corruption. No arguments had made any impression on him, but those which

related to the case of war, and a co-existing incapacity of the fittest

commanders to be employed. He admitted great weight in these, and would

agree to the exception proposed by M^r Gov^r Morris.

M^r Butler & M^r Pinkney urged a general postponem^t of 9. Sect. Art.

VI. till it should be seen what powers would be vested in the Senate,

when it would be more easy to judge of the expediency of allowing the

officers of State to be chosen out of that body.--A general postponement

was agreed to nem. con.

Art: VI. Sect. 10. taken up--"that members be paid by their respective

States."

M^r Elseworth said that in reflecting on this subject he had been

satisfied that too much dependence on the States would be produced by

this mode of payment. He moved to strike it out and insert that they

should "be paid out of the Treasury of the U. S. an allowance not

exceeding ([blank]) dollars per day or the present value thereof."

M^r Gov^r Morris, remarked that if the members were to be paid by the

States it would throw an unequal burden on the distant States, which

would be unjust as the Legislature, was to be a national Assembly. He

moved that the payment be out of the Nat^l Treasury; leaving the quantum

to the discretion of the Nat^l Legislature. There could be no reason to

fear that they would overpay themselves.

M^r Butler contended for payment by the States; particularly in the case

of the Senate, who will be so long out of their respective States, that

they will lose sight of their Constituents unless dependent on them for

their support.

M^r Langdon was ag^{st} payment by the States. There would be some

difficulty in fixing the sum; but it would be unjust to oblige the

distant States to bear the expence of their members in travelling to and

from the Seat of Gov^t.

M^r Madison. If the H. of Rep^s is to be chosen _biennially_--and the

Senate to be _constantly_ dependent on the Legislatures which are chosen

_annually_, he could not see any chance for that stability in the Gen^l

Gov^t the want of which was a principal evil in the State Gov^{ts}. His

fear was that the organization of the Gov^t supposing the Senate to be

really independ^t for six years, would not effect our purpose. It was

nothing more than a combination of the peculiarities of two of the State

Gov^{ts} which separately had been found insufficient. The Senate was

formed on the model of that of Maryl^d. The Revisionary check, on that

of N. York. What the effect of a union of these provisions might be,

could not be foreseen. The enlargement of the sphere of the Government

was indeed a circumstance which he thought would be favorable as he had

on several occasions undertaken to show. He was however for fixing at

least two extremes not to be exceeded by the Nat^l Legisl^{re} in the

payment of themselves.

M^r Gerry. There are difficulties on both sides. The observation of M^r

Butler has weight in it. On the other side, the State Legislatures may

turn out the Senators by reducing their salaries. Such things have been

practised.

Col. Mason. It has not yet been noticed that the clause as it now stands

makes the House of Represent^s also dependent on the State Legislatures:

so that both houses will be made the instruments of the politics of the

States whatever they may be.

M^r Broom could see no danger in trusting the Gen^l Legislature with the

payment of themselves. The State Legislatures had this power, and no

complaint had been made of it.

M^r Sherman was not afraid that the Legislature would make their own

wages too high; but too low, so that men ever so fit could not serve

unless they were at the same time rich. He thought the best plan would

be to fix a moderate allowance to be paid out of the Nat^l Treas^y and

let the States make such additions as they might judge fit. He moved

that 5 dollars per day be the sum, any further emoluments to be added by

the States.

M^r Carrol had been much surprised at seeing this clause in the Report.

The dependence of both Houses on the State Legislatures is compleat;

especially as the members of the former are eligible to State offices.

The States can now say: if you do not comply with our wishes, we will

starve you; if you do we will reward you. The new Gov^t in this form was

nothing more than a second edition of Congress in two volumes, instead

of one, and perhaps with very few amendments--

M^r Dickenson took it for granted that all were convinced of the

necessity of making the Gen^l Gov^t independent of the prejudices,

passions, and improper views of the State Legislatures. The contrary of

This was effected by the section as it stands. On the other hand there

were objections ag^{st} taking a permanent standard as wheat which had

been suggested on a former occasion, as well as against leaving the

matter to the pleasure of the Nat^l Legislature. He proposed that an Act

should be passed every 12 years by the Nat^l Legisl^{re} settling the

quantum of their wages. If the Gen^l Gov^t should be left dependent on

the State Legislatures, it would be happy for us if we had never met in

this Room.

M^r Elseworth was not unwilling himself to trust the Legislature with

authority to regulate their own wages, but well knew that an unlimited

discretion for that purpose would produce strong, tho' perhaps not

insuperable objections. He thought changes in the value of money,

provided for by his motion in the words, "or the present value thereof."

M^r L. Martin. As the Senate is to represent the States, the members of

it ought to be paid by the States.

M^r Carrol. The Senate was to represent & manage the affairs of the

whole, and not to be the advocates of State interests. They ought then

not to be dependent on nor paid by the States.

On the question for paying the Members of the Legislature out of the

Nat^l Treasury,

N. H. ay. Mass. no. C^t ay. N. J. ay. P^a ay. Del. ay.

M^d ay. V^a ay. N. C. ay. S. C. no. Geo. ay.

M^r Elseworth moved that the pay be fixed at 5 doll^{rs} or the present

value thereof per day during their attendance & for every thirty miles

in travelling to & from Congress.

M^r Strong preferred 4 dollars, leaving the Sts. at liberty to make

additions.

On question for fixing the pay at 5 dollars.

N. H. no. Mass. no. C^t ay. N. J. no. P^a no. Del. no.

M^d no. V^a ay. N. C. no. S. C. no. Geo. no.

M^r Dickenson proposed that the wages of the members of both houses s^d

be required to be the same.

M^r Broome seconded him.

M^r Ghorum. this would be unreasonable. The Senate will be detained

longer from home, will be obliged to remove their families, and in time

of war perhaps to sit constantly. Their allowance should certainly be

higher. The members of the Senates in the States are allowed more, than

those of the other house.

M^r Dickenson withdrew his motion.

It was moved & agreed to amend the section by adding--"to be ascertained

by law."

The section (Art. VI. Sect. 10) as amended, agreed to nem. con.

Adj^d.

WEDNESDAY AUGUST 15. IN CONVENTION.

Art: VI. Sect. 11. Agreed to nem. con.

Art: VI. Sect 12. taken up.

M^r Strong moved to amend the article so as to read--"Each House shall

possess the right of originating all bills, except bills for raising

money for the purposes of revenue, or for appropriating the same and for

fixing the salaries of the officers of the Gov^t which shall originate

in the House of Representatives; but the Senate may propose or concur

with amendments as in other cases".

Col. Mason, 2^{ds} the motion. He was extremely earnest to take this

power from the Senate, who he said could already sell the whole Country

by means of Treaties.

M^r Ghorum urged the amendment as of great importance. The Senate will

first acquire the habit of preparing money bills, and then the practice

will grow into an exclusive right of preparing them.

M^r Govern^r Morris opposed it as unnecessary and inconvenient.

M^r Williamson, some think this restriction on the Senate essential to

liberty, others think it of no importance. Why should not the former be

indulged. He was for an efficient and stable Gov^t: but many would not

strengthen the Senate if not restricted in the case of money bills. The

friends of the Senate would therefore lose more than they would gain by

refusing to gratify the other side. He moved to postpone the subject

till the powers of the Senate should be gone over.

M^r Rutlidge 2^{ds} the motion.

M^r Mercer should hereafter be ag^{st} returning to a reconsideration of

this section. He contended (alluding to M^r Mason's observations) that

the Senate ought not to have the power of treaties. This power belonged

to the Executive department; adding that Treaties would not be final so

as to alter the laws of the land, till ratified by legislative

authority. This was the case of Treaties in Great Britain; particularly

the late Treaty of Co[~m]erce with France.

Col. Mason, did not say that a Treaty would repeal a law; but that the

Senate by means of treaty might alienate territory &c., without

legislative sanction. The cessions of the British Islands in W. Indies

by Treaty alone were an example. If Spain should possess herself of

Georgia therefore the Senate might by treaty dismember the Union. He

wished the motion to be decided now, that the friends of it might know

how to conduct themselves.

On the question for postponing Sect: 12. it passed in the affirmative.

N. H. ay. Mass. ay. C^t no. N. J. no. Pen^a no. Del: no.

Mary^d no. V^a ay. N. C. ay. S. C. ay. Geo. ay.

M^r Madison moved that all acts before they become laws should be

submitted both to the Executive and supreme Judiciary Departments, that

if either of these should object 2/3 of each House, if both should

object, 3/4 of each House, should be necessary to overrule the

objections and give to the acts the force of law.[29]

[29] Madison's Note says: "See the motion at large in the

Journal of this date, page 253, and insert it here." The

Journal gives it as follows:

"It was moved by Mr. Madison, and seconded, to agree to the

following amendment of the thirteenth section of the sixth

article:

"Every bill which shall have passed the two houses, shall,

before it become a law, be severally presented to the

President of the United States, and to the judges of the

supreme court for the revision of each. If, upon such

revision, they shall approve of it, they shall respectively

signify their approbation by signing it; but if, upon such

revision, it shall appear improper to either, or both, to be

passed into a law, it shall be returned, with the objections

against it, to that house, in which it shall have

originated, who shall enter the objections at large on their

journal, and proceed to reconsider the bill: but if, after

such reconsideration, two thirds of that house, when either

the President, or a majority of the judges shall object, or

three fourths, where both shall object, shall agree to pass

it, it shall, together with the objections, be sent to the

other house, by which it shall likewise be reconsidered;

and, if approved by two thirds, or three fourths of the

other house, as the case may be, it shall become a law."

M^r Wilson seconds the motion.

M^r Pinkney opposed the interference of the Judges in the Legislative

business: it will involve them in parties, and give a previous tincture

to their opinions.

M^r 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

uncontroulable.

M^r Gerry. This motion comes to the same thing with what has been

already negatived.

Question on the motion of M^r Madison

N. H. no. Mass. no. C^t no. N. J. no. P^a no. Del. ay.

Mary^d ay. Virg^a ay. N. C. no. S. C. no. Geo. no.

M^r Gov^r 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 3/4 to repeal would, though

not a compleat 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.

M^r Dickenson was strongly impressed with the remark of M^r 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.

M^r Gov^r 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 controul 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 ag^{st}. The Ephori at Sparta became in the end absolute. The

Report of the Council of Censors in Pennsylv^a points out the many

invasions of the legislative department on the Executive numerous as the

latter[30] 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 ag^{st} 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 2/3 only to overrule the negative of the Executive.

[30] The Executive consists at this time of ab^t 20

members.--Madison's Note.

M^r 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.

M^r Carrol. When the negative to be overruled by 2/3 only was agreed to,

the _quorum_ was not fixed. He remarked that as a majority was now to be

the quorum, 17. in the larger, and 8 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 controuling 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.

M^r Ghorum 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 fixt in the U.

States.

M^r Wilson; after viewing the subject with all the coolness and

attention possible was most apprehensive of a dissolution of the Gov^t

from the legislature swallowing up all the other powers. He remarked

that the prejudices ag^{st} 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 ag^{st}

the danger on this side by a sufficient self-defensive power either to

the Executive or Judiciary department.

M^r Rutlidge was strenuous ag^{st} postponing; and complained much of

the tediousness of the proceedings.

M^r Elseworth held the same language. We grow more & more sceptical 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: Del: & Mary^d only

being in the affirmative.

M^r Williamson moved to change, "2/3 of each House" into "3/4" as

requisite to overrule the dissent of the President. He saw no danger in

this, and preferred giving the power to the Presid^t alone, to admitting

the Judges into the business of legislation.

M^r Wilson 2^{ds} the motion; referring to and repeating the ideas of

M^r Carroll.

On this motion for 3/4, instead of two-thirds; it passed in the

affirmative.

N. H. no. Mass. no. C^t ay. N. J. no. Pen^a div^d. Del. ay.

M^d ay. V^a ay. N. C. ay. S. C. ay. Geo. no.

M^r 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 sect 13. with an exception as to

votes of adjournment &c. After a short and rather confused conversation

on the subject, the question was put & rejected, the States being as

follows,

N. H. no. Mass. ay. C^t no. N. J. no. Pen^a no. Del. ay. M^d no.

V^a no. N. C. ay. S. C. no. Geo. no.

"_Ten_ days (Sundays excepted)" instead of "_seven_" were allowed to the

President for returning bills with his objections N. H. & Mas: only

voting ag^{st} it.

The 13 Sect: of Art. VI as amended was then agreed to.

Adjourned.

THURSDAY. AUGUST 16. IN CONVENTION.

M^r 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 & House

of Rep^s 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 & House

of Rep^s according to the rules & limitations prescribed in the case of

a Bill."

M^r Sherman thought it unnecessary, except as to votes taking money out

of the Treasury which might be provided for in another place.

On Question as moved by M^r Randolph

N. H. ay. Mass. not present. C^t ay. N. J. no. P^a ay. Del. ay.

M^d ay. V^a ay. N. C. ay. S. C. ay. Geo. ay.

The Amendment was made section 14. of Art. VI.

Art: VII. Sect. 1. taken up.

M^r 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.

M^r Wilson. _Duties_ are applicable to many objects to which the word

_imposts_ does not relate. The latter are appropriated to commerce; the

former extend to a variety of objects, as stamp duties &c.

M^r 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.

M^r Mason urged the necessity of connecting with the power of levying

taxes duties &c., the prohibition in Sect. 4 Art. VI that no tax should

be laid on exports. He was unwilling to trust to its being done in a

future article. He hoped the North^n 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

U. States on articles exported from any State."

M^r Sherman had no objection to the proviso here, other than it would

derange the parts of the report as made by the Committee, to take them

in such an order.

M^r Rutlidge. 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.

M^r Governeur 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.

M^r Madison. 1. 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. 2. it might with particular

advantage be exercised with regard to articles in which America was not

rivalled in foreign markets, as Tob^o &c. The contract between the

French Farmers Gen^l and M^r Morris stipulating that if taxes s^d be

laid in america on the export of Tob^o they s^d be paid by the Farmers,

shewed 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. 3. it would be unjust to the States whose produce was exported

by their neighbours, to leave it subject to be taxed by the latter. This

was a grievance which had already filled N.H. Con^t N. Jer^y Del: and N.

Carolina with loud complaints, as it related to imports, and they would

be equally authorized by taxes by the States on exports. 4. The South^n

States being most in danger and most needing naval protection, could the

less complain if the burthen should be somewhat heaviest on them. 5. 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

ag^{st} the motion.

M^r Williamson considered the clause proposed ag^{st} taxes on exports

as reasonable and necessary.

M^r Elseworth was ag^{st} Taxing exports; but thought the prohibition

stood in the most proper place, and was ag^{st} deranging the order

reported by the Committee.

M^r Wilson was decidedly ag^{st} prohibiting general taxes on exports.

He dwelt on the injustice and impolicy of leaving N. Jersey Connecticut

&c. any longer subject to the exactions of their commercial neighbours.

M^r 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.

M^r Gov^r 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 W. Indies & 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.

M^r 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

neighbours. 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 promoting the carrying trade of

the North^n States, the South^n 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.

M^r 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 except it might be such

articles as ought not to be exported. The complexity of the business in

America would render an equal tax on exports impracticable. The

oppression of the uncommercial States was guarded ag^{st} by the power

to regulate trade between the States. As to compelling foreigners, that

might be done by regulating trade in general. The Government would not

be trusted with such a power. Objections are most likely to be excited

by considerations relating to taxes & money. A power to tax exports

would shipwreck the whole.

M^r Carrol was surprised that any objection should be made to an

exception of exports from the power of taxation.

It was finally agreed that the question concerning exports sh^d lie over

for the place in which the exception stood in the report: Mary^d alone

voting ag^{st} it.

Sect: 1. (Art. VII) agreed to; M^r Gerry alone answering, no.

Clause for regulating commerce with foreign nations &c. agreed

to nem. con.

for coining money. ag^d to nem. con.

for regulating foreign coin. d^o d^o.

for fixing standard of weights & measures. d^o d^o.

"To establish post-offices," M^r Gerry moved to add, and post-roads. M^r

Mercer 2^{ded}. & on question

N.H. no. Mass. ay. C^t no. N.J. no. Pen^a no. Del. ay. M^d ay.

V^a ay. N.C. no. S.C. ay. Geo. ay.

M^r Gov^r Morris moved to strike out "and emit bills on the credit of

the U. States"--If the United States had credit such bills would be

unnecessary; if they had not, unjust & useless.

M^r Butler, 2^{ds} the motion.

M^r Madison, will it not be sufficient to prohibit the making them a

_tender_? This will remove the temptation to emit them with unjust

views. And promissory notes in that shape may in some emergencies be

best.

M^r Gov^r Morris, striking out the words will leave room still for notes

of a _responsible_ minister which will do all the good without the

mischief. The Monied interest will oppose the plan of Government, if

paper emissions be not prohibited.

M^r Ghorum was for striking out, without inserting any prohibition, if

the words stand they may suggest and lead to the measure.

Col. Mason had doubts on the subject. Cong^s he thought would not have

the power unless it were expressed. Though he had a mortal hatred to

paper money, yet as he could not forsee all emergencies, he was

unwilling to tie the hands of the Legislature. He observed that the late

war could not have been carried on, had such a prohibition existed.

Mr. Ghorum. The power as far as it will be necessary or safe, is

involved in that of borrowing.

M^r Mercer was a friend to paper money, though in the present state &

temper of America, he should neither propose nor approve of such a

measure. He was consequently opposed to a prohibition of it altogether.

It will stamp suspicion on the Government to deny it a discretion on

this point. It was impolitic also to excite the opposition of all those

who were friends to paper money. The people of property would be sure to

be on the side of the plan, and it was impolitic to purchase their

further attachment with the loss of the opposite class of Citizens.

M^r Elseworth thought this a favorable moment to shut and bar the door

against paper money. The mischiefs of the various experiments which had

been made, were now fresh in the public mind and had excited the disgust

of all the respectable part of America. By withholding the power from

the new Govern^t more friends of influence would be gained to it than by

almost any thing else. Paper money can in no case be necessary. Give the

Government credit, and other resources will offer. The power may do

harm, never good.

M^r Randolph, notwithstanding his antipathy to paper money, could not

agree to strike out the words, as he could not foresee all the occasions

that might arise.

M^r Wilson. It will have a most salutary influence on the credit of the

U. States to remove the possibility of paper money. This expedient can

never succeed whilst its mischiefs are remembered. And as long as it can

be resorted to, it will be a bar to other resources.

M^r Butler remarked that paper was a legal tender in no Country in

Europe. He was urgent for disarming the Government of such a power.

M^r Mason was still averse to tying the hands of the Legislature

_altogether_. If there was no example in Europe as just remarked it

might be observed on the other side, that there was none in which the

Government was restrained on this head.

M^r Read, thought the words, if not struck out, would be as alarming as

the mark of the Beast in Revelations.

M^r Langdon had rather reject the whole plan than retain the three words

("and emit bills").

On the motion for striking out

N.H. ay. Mass. ay. C^t ay. N.J. no. P^a ay. Del. ay. M^d no.

V^a ay.[31] N.C. ay. S.C. ay. Geo. ay.

[31] This vote in the affirmative by Virg^a was occasioned

by the acquiescence of M^r Madison who became satisfied that

striking out the words would not disable the Gov^t from the

use of public notes as far as they could be safe & proper; &

would only cut off the pretext for a paper currency and

particularly for making the bills a tender either for public

or private debts.--Madison's Note.

The clause for borrowing money, agreed to nem. con.

Adj^d.

FRIDAY AUGUST 17. IN CONVENTION

Art. VII. Sect. 1. resumed, on the clause, "to appoint Treasurer by

ballot,"

M^r Ghorum moved to insert "joint" before ballot, as more convenient as

well as reasonable, than to require the separate concurrence of the

Senate.

M^r Pinkney 2^{ds} the motion. M^r Sherman opposed it as favoring the

larger States.

M^r Read moved to strike out the clause, leaving the appointment of the

Treasurer as of other officers to the Executive. The Legislature was an

improper body for appointments. Those of the State legislatures were a

proof of it. The Executive being responsible would make a good choice.

M^r Mercer 2^{ds} the motion of M^r Read.

On the motion for inserting the word "joint" before ballot

N.H. ay. Mass. ay. C^t no. N.J. no. P^a ay. M^d no. V^a ay.

N.C. ay. S.C. ay. Geo. ay.

Col. Mason in opposition to M^r Read's motion desired it might be

considered to whom the money would belong; if to the people, the

legislature representing the people ought to appoint the keepers of it.

On striking out the clause as amended by inserting "Joint"

N.H. no. Mass. no. C^t no. P^a ay. Del. ay. M^d ay. V^a no.

N.C. no. S.C. ay. Geo. no.

"To constitute inferior tribunals" agreed to nem. con.

"To make rules as to captures on land & water" d^o d^o.

"To declare the law and punishment of piracies and felonies &c &c."

considered.

M^r Madison moved to strike out "and punishment &c."

M^r Mason doubts the safety of it, considering the strict rule of

construction in criminal cases. He doubted also the propriety of taking

the power in all these cases wholly from the States.

M^r Govern^r Morris thought it would be necessary to extend the

authority further, so as to provide for the punishment of counterfeiting

in general. Bills of exchange for example might be forged in one State

and carried into another.

It was suggested by some other member that _foreign_ paper might be

counterfeited by Citizens; and that it might be politic to provide by

national authority for the punishment of it.

M^r Randolph did not conceive that expunging "the punishment" would be a

constructive exclusion of the power. He doubted only the efficacy of the

word "declare."

M^r Wilson was in favor of the motion. Strictness was not necessary in

giving authority to enact penal laws; though necessary in enacting &

expounding them.

On motion for striking out "and punishment" as moved by M^r Madison

N.H. no. Mass. ay. C^t no. P^a ay. Del. ay. M^d no. V^a ay.

N.C. ay. S.C. ay. Geo. ay.

M^r Gov^r Morris moved to strike out "declare the law" and insert

"punish" before "piracies," and on the question.

N.H. ay. Mass. ay. C^t no. P^a ay. Del. ay. M^d ay. V^a no.

N.C. no. S.C. ay. Geo. ay.

M^r Madison & M^r Randolph moved to insert "define &," before "punish."

M^r Wilson thought "felonies" sufficiently defined by common law.

M^r Dickenson concurred with M^r Wilson.

M^r Mercer was in favor of the amendment.

M^r Madison. Felony at common law is vague. It is also defective. One

defect is supplied by Stat: of Anne as to running away with vessels

which at co[~m]on law was a breach of trust only. Besides no foreign law

should be a standard farther than is expressly adopted. If the laws of

the States were to prevail on this subject, the Citizens of different

States would be subject to different punishments for the same offence at

Sea. There would be neither uniformity nor stability in the law--The

proper remedy for all these difficulties was to vest the power proposed

by the term "define" in the Nat^l legislature.

M^r Gov^r Morris would prefer _designate_ to _define_, the latter being

as he conceived, limited to the preexisting meaning.

It was said by others to be applicable to the creating of offences also,

and therefore suited the case both of felonies & of piracies. The motion

of M^r M. & M^r R. was agreed to.

M^r Elseworth enlarged the motion so as to read "to define and punish

piracies and felonies committed on the high seas, counterfeiting the

securities and current coin of the U. States, and offences ag^{st} the

law of Nations" which was agreed to nem. con.

"To subdue a rebellion in any State, on the application of its

legislature"

M^r Pinkney moved to strike out, "on the application of its

legislature".

M^r Gov^r Morris 2^{ds}.

M^r L. Martin opposed it as giving a dangerous & unnecessary power. The

consent of the State ought to precede the introduction of any extraneous

force whatever.

M^r Mercer supported the opposition of M^r Martin.

M^r Elseworth proposed to add after "legislature," "or Executive."

M^r Gov^r Morris. The Executive may possibly be at the head of the

Rebellion. The Gen^l Gov^t should enforce obedience in all cases where

it may be necessary.

M^r Elseworth. In many cases The Gen^l Gov^t ought not to be able to

interpose, unless called upon. He was willing to vary his motion so as

to read "or without it when the legislature cannot meet."

M^r Gerry was ag^{st} letting loose the myrmidons of the U. States on a

State without its own consent. The States will be the best Judges in

such cases. More blood would have been spilt in Mass^{ts} in the late

insurrection, if the Gen^l Authority had intermeddled.

M^r Langdon was for striking out as moved by M^r Pinkney. The

apprehension of the national force, will have a salutary effect in

preventing insurrections.

M^r Randolph. If the Nat^l Legislature is to judge whether the State

legislature can or cannot meet, that amendment would make the clause as

objectionable as the motion of M^r Pinkney.

M^r Gov^r Morris. We are acting a very strange part. We first form a

strong man to protect us, and at the same time wish to tie his hands

behind him. The legislature may surely be trusted with such a power to

preserve the public tranquillity.

On the motion to add, "or without it (application) when the legislature

cannot meet"

N.H. ay. Mass. no. C^t ay. P^a div^d. Del. no. M^d no. V^a ay.

N.C. div^d. S. C. ay. Geo. ay. So agreed to.

M^r Madison and M^r Dickenson moved to insert as explanatory, after

"State"--"against the Government thereof". There might be a rebellion

ag^{st} the U. States--which was agreed to nem. con.

On the clause as amended

N.H. ay. Mass.[32] abs^t. C^t ay. Pen. abs^t. Del. no. M^d no.

V^a ay. N.C. no. S.C. no. Georg. ay.--so it was lost.

[32] In the printed Journal, Mas. no.--Madison's Note.

"To make war"

M^r Pinkney opposed the vesting this power in the Legislature. Its

proceedings were too slow. It w^d meet but once a year, the H^s of Rep^s

would be too numerous for such deliberations. The Senate would be the

best depository, being more acquainted with foreign affairs, and most

capable of proper resolutions. If the States are equally represented in

the Senate, so as to give no advantage to the large States, the power

will notwithstanding be safe, as the small have their all at stake in

such cases as well as the large States. It would be singular for one

authority to make war, and another peace.

M^r Butler. The Objections ag^{st} the Legislature lie in a great degree

ag^{st} the Senate. He was for vesting the power in the President, who

will have all the requisite qualities, and will not make war but when

the Nation will support it.

M^r Madison and M^r Gerry moved to insert "_declare_," striking out

"_make_" war; leaving to the Executive the power to repel sudden

attacks.

M^r Sherman thought it stood very well. The Executive sh^d be able to

repel and not to commence war. "Make" is better than "declare" the

latter narrowing the power too much.

M^r Gerry never expected to hear in a republic a motion to empower the

Executive alone to declare war.

M^r Elsworth. There is a material difference between the cases of making

_war_ and making _peace_. It sh^d be more easy to get out of war, than

into it. War also is a simple and overt declaration, peace attended with

intricate & secret negociations.

M^r Mason was ag^{st} giving the power of war to the Executive because

not safely to be trusted with it; or to the Senate, because not so

constructed as to be entitled to it. He was for clogging rather than

facilitating war; but for facilitating peace. He preferred "_declare_"

to "_make_."

On the motion to insert "_declare_"--in place of "_make_," it was agreed

to.

N.H. no. Mass, abs^t. Con^t no.[33] P^a ay. Del. ay. M^d ay.

V^a ay. N.C. ay. S.C. ay. Geo. ay.

[33] On the remark by M^r King that "_make_" war might be

understood to "conduct" it which was an Executive function.

M^r Elsworth gave up his objection, and the vote of Con. was

changed to _ay_.--Madison's Note.

M^r Pinkney's motion to strike out whole clause, disag^d to without call

of States.

M^r Butler moved to give the Legislature the power of peace, as they

were to have that of war.

M^r Gerry 2^{ds} him. 8 Senators may possibly exercise the power if

vested in that body, and 14 if all should be present; and may

consequently give up part of the U. States. The Senate are more liable

to be corrupted by an Enemy than the whole Legislature.

On the motion for adding "and peace" after "war,"

N.H. no. Mas. no. C^t no. P^a no. Del. no. M^d no. V^a no.

N.C. no. S.C. no. Geo. no.

Adjourned.

SATURDAY AUGUST 18. IN CONVENTION

M^r Madison submitted, in order to be referred to the Committee of

detail the following powers as proper to be added to those of the

General Legislature:

"To dispose of the unappropriated lands of the U. States."

"To institute temporary Governments for new States arising

therein."

"To regulate affairs with the Indians as well within as without

the limits of the U. States."

"To exercise exclusively Legislative authority at the seat of

the General Government, and over a district around the same, not

exceeding ---- square miles; the Consent of the Legislature of

the State or States comprising the same, being first obtained."

"To grant charters of incorporation in cases where the public

good may require them, and the authority of a single State may

be incompetent"

"To secure to literary authors their copy rights for a limited

time."

"To establish an University."

"To encourage by premiums & provisions, the advancement of

useful knowledge and discoveries."

"To authorize the Executive to procure and hold for the use of

the U. S. landed property for the erection of Forts, magazines,

and other necessary buildings."

These propositions were referred to the Committee of detail which had

prepared the Report and at the same time the following which were moved

by M^r Pinkney:--in both cases unanimously:

"To fix and permanently establish the seat of Government of the

U. S. in which they shall possess the exclusive right of soil &

jurisdiction."

"To establish seminaries for the promotion of literature and the

arts & sciences."

"To grant charters of incorporation."

"To grant patents for useful inventions."

"To secure to Authors exclusive rights for a certain time."

"To establish public institutions, rewards and immunities for

the promotion of agriculture, commerce, trades and

manufactures."

"That funds which shall be appropriated for the payment of

public Creditors, shall not during the time of such

appropriation, be diverted or applied to any other purpose and

that the Committee prepare a clause or clauses for restraining

the Legislature of the U. S. from establishing a perpetual

revenue."

"To secure the payment of the public debt."

"To secure all creditors under the new Constitution from a

violation of the public faith when pledged by the authority of

the Legislature."

"To grant letters of mark and reprisal."

"To regulate Stages on the post roads."

M^r Mason introduced the subject of regulating the militia. He thought

such a power necessary to be given to the Gen^l Government. He hoped

there would be no standing army in time of peace, unless it might be for

a few garrisons. The Militia ought therefore to be the more effectually

prepared for the public defence. Thirteen States will never concur in

any one system, if the disciplining of the Militia be left in their

hands. If they will not give up the power over the whole, they probably

will over a part as a select militia. He moved as an addition to the

propositions just referred to the Comittee of detail, & to be referred

in like manner, "a power to regulate the militia."

M^r Gerry remarked that some provision ought to be made in favor of

public Securities, and something inserted concerning letters of marque,

which he thought not included in the power of war. He proposed that

these subjects should also go to a Committee.

M^r Rutlidge moved to refer a clause "that funds appropriated to public

creditors should not be diverted to other purposes."

M^r Mason was much attached to the principle, but was afraid such a

fetter might be dangerous in time of war. He suggested the necessity of

preventing the danger of perpetual revenue which must of necessity

subvert the liberty of any country. If it be objected to on the

principle of M^r Rutlidge's motion that public Credit may require

perpetual provisions, that case might be excepted; it being declared

that in other cases, no taxes should be laid for a longer term than ----

years. He considered the caution observed in Great Britain on this point

as the paladium of public liberty.

M^r Rutlidge's motion was referred--He then moved that a Grand Committee

be appointed to consider the necessity and expediency of the U. States

assuming all the State debts--A regular settlement between the Union &

the several States would never take place. The assumption would be just

as the State debts were contracted in the common defence. It was

necessary, as the taxes on imports the only sure source of revenue were

to be given up to the Union. It was politic, as by disburdening the

people of the State debts it would conciliate them to the plan.

M^r King and M^r Pinkney seconded the motion. (Col. Mason interposed a

motion that the Committee prepare a clause for restraining perpetual

revenue, which was agreed to nem. con.)

M^r Sherman thought it would be better to authorize the Legislature to

assume the State debts, than to say positively it should be done. He

considered the measure as just and that it would have a good effect to

say something about the matter.

M^r Elseworth differed from M^r Sherman. As far as the State debts ought

in equity to be assumed, he conceived that they might and would be so.

M^r Pinkney observed that a great part of the State debts were of such a

nature that although in point of policy and true equity they ought, yet

would they not be viewed in the light of federal expenditures.

M^r King thought the matter of more consequence than M^r Elseworth

seemed to do; and that it was well worthy of commitment. Besides the

considerations of justice and policy which had been mentioned, it might

be remarked that the State Creditors an active and formidable party

would otherwise be opposed to a plan which transferred to the Union the

best resources of the States without transferring the State debts at the

same time. The State Creditors had generally been the strongest foes to

the impost-plan. The State debts probably were of greater amount than

the federal. He would not say that it was practicable to consolidate the

debts, but he thought it would be prudent to have the subject considered

by a Committee.

On M^r Rutlidge's motion, that a Com^e be appointed to consider of the

assumption &c.

N. H. no. Mass. ay. C^t ay. N. J. no. P^a div^d. Del. no. M^d

no. V^a ay. N. C. ay. S. C. ay. Geo. ay.

M^r Gerry's motion to provide for public securities, for stages on post

roads, and for letters of marque & reprisal, were committed nem. con.

M^r King suggested that all unlocated lands of particular States ought

to be given up if State debts were to be assumed:--M^r Williamson

concurred in the idea.

A Grand Committee was appointed consisting of M^r Langdon, M^r King, M^r

Sherman, M^r Livingston, M^r Clymer, M^r Dickenson, M^r M^cHenry, M^r

Mason, M^r Williamson, M^r C. C. Pinkney, M^r Baldwin.

M^r Rutlidge remarked on the length of the Session, the probable

impatience of the public and the extreme anxiety of many members of the

Convention to bring the business to an end; concluding with a motion

that the Convention meet henceforward precisely at 10 Oc A.M. and that

precisely at 4 Oc P.M. the President adjourn the House without motion

for the purpose, and that no motion to adjourn sooner be allowed.

On this question

N. H. ay. Mass. ay. C^t ay. N. J. ay. P^a no. Del. ay. M^d no.

V^a ay. N. C. ay. S. C. ay. Geo. ay.

M^r Elseworth observed that a Council had not yet been provided for the

President. He conceived there ought to be one. His proposition was that

it should be composed of the President of the Senate, the Chief Justice,

and the ministers as they might be estab^d for the departments of

foreign & domestic affairs, war finance and marine, who should advise

but not conclude the President.

M^r Pinkney wished the proposition to lie over, as notice had been given

for a like purpose by M^r Gov^r Morris who was not then on the floor.

His own idea was that the President sh^d be authorized to call for

advice or not as he might chuse. Give him an able Council and it will

thwart him; a weak one and he will shelter himself under their sanction.

M^r Gerry was ag^{st} letting the heads of the Departments, particularly

of finance have any thing to do in business connected with legislation.

He mentioned the Chief Justice also as particularly exceptionable. These

men will also be so taken up with other matters as to neglect their own

proper duties.

M^r Dickenson urged that the great appointments should be made by the

Legislature in which case they might properly be consulted by the

Executive, but not if made by the Executive himself--This subject by

general consent lay over; & the House proceeded to the clause "To raise

armies."

M^r Ghorum moved to add "and support" after "raise." Agreed to nem. con.

and then the clause was agreed to nem. con. as amended.

M^r Gerry took notice that there was no check here ag^{st} standing

armies in time of peace. The existing Cong^s is so constructed that it

cannot of itself maintain an army. This w^d not be the case under the

new system. The people were jealous on this head, and great opposition

to the plan would spring from such an omission. He suspected that

preparations of force were now making ag^{st} it. (he seemed to allude

to the activity of the Gov^r of N. York at this crisis in disciplining

the militia of that State.) He thought an army dangerous in time of

peace & could never consent to a power to keep up an indefinite number.

He proposed that there shall not be kept up in time of peace more than

---- thousand troops. His idea was that the blank should be filled with

two or three thousand.

Instead of "to build and equip fleets"--"to provide and maintain a navy"

agreed to nem. con. as a more convenient definition of the power.

"To make rules for the Government and regulation of the land & naval

forces," added from the existing Articles of Confederation.

M^r L. Martin and M^r Gerry now regularly moved "provided that in time

of peace the army shall not consist of more than ---- thousand men."

Gen^l Pinkney asked whether no troops were ever to be raised untill an

attack should be made on us?

M^r Gerry. If there be no restriction, a few States may establish a

military Gov^t.

M^r Williamson, reminded him of M^r Mason's motion for limiting the

appropriation of revenue as the best guard in this case.

M^r Langdon saw no room for M^r Gerry's distrust of the Representatives

of the people.

M^r Dayton. Preparations for war are generally made in peace; and a

standing force of some sort may, for ought we know, become unavoidable.

He should object to no restrictions consistent with these ideas.

The motion of M^r Martin and M^r Gerry was disagreed to nem. con.

M^r Mason moved as an additional power "to make laws for the regulation

and discipline of the militia of the several States, reserving to the

States the appointment of the officers." He considered uniformity as

necessary in the regulation of the Militia throughout the Union.

Gen^l Pinkney mentioned a case during the war in which a dissimilarity

in the militia of different States had produced the most serious

mischiefs. Uniformity was essential. The States would never keep up a

proper discipline of their militia.

M^r Elseworth was for going as far in submitting the militia to the

Gen^l Government as might be necessary, but thought the motion of M^r

Mason went too far. He moved that the militia should have the same arms

& exercise and be under rules established by the Gen^l Gov^t when in

actual service of the U. States and when States neglect to provide

regulations for militia, it sh^d be regulated & established by the

Legislature of U. S. The whole authority over the militia ought by no

means to be taken away from the States whose consequence would pine away

to nothing after such a sacrifice of power. He thought the Gen^l

Authority could not sufficiently pervade the Union for such a purpose,

nor could it accommodate itself to the local genius of the people. It

must be vain to ask the States to give the Militia out of their hands.

M^r Sherman 2^{ds} the motion.

M^r Dickenson. We are come now to a most important matter, that of the

sword. His opinion was that the States never would nor ought to give up

all authority over the Militia. He proposed to restrain the general

power to one fourth part at a time, which by rotation would discipline

the whole Militia.

M^r Butler urged the necessity of submitting the whole Militia to the

general Authority, which had the care of the general defence.

M^r Mason. had suggested the idea of a select militia. He was led to

think that would be in fact as much as the Gen^l Gov^t could

advantageously be charged with. He was afraid of creating insuperable

objections to the plan. He withdrew his original motion, and moved a

power "to make laws for regulating and disciplining the militia, not

exceeding one tenth part in any one year, and reserving the appointment

of officers to the States."

Gen^l Pinkney, renewed M^r Mason's original motion. For a part to be

under the Gen^l and a part under the State Gov^{ts} w^d be an incurable

evil. he saw no room for such distrust of the Gen^l Gov^t.

M^r Langdon 2^{ds} General Pinkney's renewal. He saw no more reason to

be afraid of the Gen^l Gov^t than of the State Gov^{ts}. He was more

apprehensive of the confusion of the different authorities on this

subject, than of either.

M^r Madison thought the regulation of the Militia naturally appertaining

to the authority charged with the public defence. It did not seem in its

nature to be divisible between two distinct authorities. If the States

would trust the Gen^l Gov^t with a power over the public treasure, they

would from the same consideration of necessity grant it the direction of

the public force. Those who had a full view of the public situation w^d

from a sense of the danger, guard ag^{st} it: the States would not be

separately impressed with the general situation, nor have the due

confidence in the concurrent exertions of each other.

M^r Elseworth, considered the idea of a select militia as impracticable;

& if it were not it would be followed by a ruinous declension of the

great body of the Militia. The States would never submit to the same

militia laws. Three or four shillings as a penalty will enforce better

obedience in New England, than forty lashes in some other places.

M^r Pinkney thought the power such an one as could not be abused, and

that the States would see the necessity of surrendering it. He had

however but a scanty faith in Militia. There must be also a real

military force. This alone can effectually answer the purpose. The

United States had been making an experiment without it, and we see the

consequence in their rapid approaches toward anarchy.[34]

[34] This had reference to the disorders particularly that had

occurred in Massach^{ts} which had called for the

interposition of the federal troops.--Madison's Note.

M^r Sherman, took notice that the States might want their militia for

defence ag^{st} invasions and insurrections, and for enforcing obedience

to their laws. They will not give up this point. In giving up that of

taxation, they retain a concurrent power of raising money for their own

use.

M^r Gerry thought this the last point remaining to be surrendered. If it

be agreed to by the Convention, the plan will have as black a mark as

was set on Cain. He had no such confidence in the Gen^l Gov^t as some

gentlemen possessed, and believed it would be found that the States have

not.

Col. Mason, thought there was great weight in the remarks of M^r

Sherman, and moved an exception to his motion "of such part of the

militia as might be required by the States for their own use."

M^r Read doubted the propriety of leaving the appointment of the Militia

officers in the States. In some States they are elected by the

Legislatures; in others by the people themselves. He thought at least an

appointment by the State Executives ought to be insisted on.

On committing to the grand Committee last appointed, the latter motion

of Col. Mason, & the original one revived by Ge^l Pinkney

N. H. ay. Mas. ay. C^t no. N. J. no. P^a ay. Del. ay. M^d div^d.

V^a ay. N. C. ay. S. C. ay. Geo. ay.

Adjourned.

MONDAY AUGUST 20. IN CONVENTION

M^r Pinkney submitted to the House, in order to be referred to the

Committee of detail, the following propositions--"Each House shall be

the judge of its own privileges, and shall have authority to punish by

imprisonment every person violating the same, or who, in the place where

the Legislature may be sitting and during the time of its Session, shall

threaten any of its members for any thing said or done in the House; or

who shall assault any of them therefor--or who shall assault or arrest

any witness or other person ordered to attend either of the Houses in

his way going or returning; or who shall rescue any person arrested by

their order."

"Each branch of the Legislature, as well as the supreme Executive shall

have authority to require the opinions of the supreme Judicial Court

upon important questions of law, and upon solemn occasions."

"The privileges and benefit of the Writ of Habeas corpus shall be

enjoyed in this Government in the most expeditious and ample manner; and

shall not be suspended by the Legislature except upon the most urgent

and pressing occasions, and for a limited time not exceeding ----

months."

"The liberty of the Press, shall be inviolably preserved."

"No troops shall be kept up in time of peace, but by consent of the

Legislature."

"The military shall always be subordinate to the Civil power, and no

grants of money shall be made by the Legislature for supporting military

Land forces, for more than one year at a time."

"No soldier shall be quartered in any house in time of peace without

consent of the owner."

"No person holding the office of President of the U. S. a Judge of their

supreme Court, Secretary for the department of Foreign Affairs, of

Finance, of Marine, of War, or of ----, shall be capable of holding at

the same time any other office of Trust or emolument under the U. S. or

an individual State."

"No religious test or qualification shall ever be annexed to any oath of

office under the authority of the U. S."

"The U. S. shall be forever considered as one Body corporate and politic

in law, and entitled to all the rights privileges and immunities, which

to Bodies corporate ought to or do appertain."

"The Legislature of the U. S. shall have the power of making the Great

Seal which shall be kept by the President of the U. S. or in his absence

by the President of the Senate, to be used by them as the occasion may

require.--It shall be called the Great Seal of the U. S. and shall be

affixed to all laws."

"All commissions and writs shall run in the name of the U.S."

"The Jurisdiction of the Supreme Court shall be extended to all

controversies between the U. S. and an individual State, or the U. S.

and the Citizens of an individual State."

These propositions were referred to the Committee of detail without

debate or consideration of them by the House.

M^r Gov^r Morris 2^{ded} by M^r Pinkney, submitted the following

propositions which were in like manner referred to the Committee of

Detail.

"To assist the President in conducting the Public affairs there

shall be a Council of State composed of the following

officers--1. The Chief Justice of the Supreme Court, who shall

from time to time recommend such alterations of and additions to

the laws of the U. S. as may in his opinion be necessary to the

due administration of Justice, and such as may promote useful

learning and inculcate sound morality throughout the Union: He

shall be President of the Council in the absence of the

President.

2. The Secretary of Domestic affairs who shall be appointed by

the President and hold his office during pleasure. It shall be

his duty to attend to matters of general police, the State of

Agriculture and manufactures, the opening of roads and

navigations, and the facilitating communications thro' the U.

States; and he shall from time to time recommend such measures

and establishments as may tend to promote those objects.

3. The Secretary of Commerce and Finance who shall also be

appointed by the President during pleasure. It shall be his duty

to superintend all matters relating to the public finances, to

prepare & report plans of revenue and for the regulation of

expenditures, and also to recommend such things as may in his

Judgment promote the commercial interests of the U. S.

4. The Secretary of foreign affairs who shall also be appointed

by the President during pleasure. It shall be his duty to

correspond with all foreign Ministers, prepare plans of

Treaties, & consider such as may be transmitted from abroad, and

generally to attend to the interests of the U. S. in their

connections with foreign powers.

5. The Secretary of War who shall also be appointed by the

President during pleasure. It shall be his duty to superintend

every thing relating to the war Department, such as the raising

and equipping of troops, the care of military stores, public

fortifications, arsenals & the like--also in time of war to

prepare & recommend plans of offence and Defence.

6. The Secretary of the Marine who shall also be appointed

during pleasure--It shall be his duty to superintend every thing

relating to the Marine Department, the public ships, Dock Yards,

naval Stores & arsenals--also in the time of war to prepare and

recommend plans of offence and defence.

The President shall also appoint a Secretary of State to hold

his office during pleasure; who shall be Secretary to the

Council of State, and also public Secretary to the President. It

shall be his duty to prepare all Public dispatches from the

President which he shall countersign.

The President may from time to time submit any matter to the

discussion of the Council of State, and he may require the

written opinions of any one or more of the members: But he shall

in all cases exercise his own judgment, and either Conform to

such opinions or not as he may think proper; and every officer

above mentioned shall be responsible for his opinion on the

affairs relating to his particular Department.

Each of the officers above mentioned shall be liable to

impeachment & removal from office for neglect of duty

malversation or corruption."

M^r Gerry moved "that the Committee be instructed to report proper

qualifications for the President, and a mode of trying the Supreme

Judges in cases of impeachment."

The clause "to call forth the aid of the Militia &c. was postponed till

report should be made as to the power over the Militia referred

yesterday to the Grand Committee of eleven.

M^r Mason moved to enable Congress "to enact sumptuary laws." No

Government can be maintained unless the manners be made consonant to it.

Such a discretionary power may do good and can do no harm. A proper

regulation of excises & of trade may do a great deal but it is best to

have an express provision. It was objected to sumptuary laws that they

were contrary to nature. This was a vulgar error. The love of

distinction it is true is natural; but the object of sumptuary laws is

not to extinguish this principle but to give it a proper direction.

M^r Elseworth. The best remedy is to enforce taxes & debts. As far as

the regulation of eating & drinking can be reasonable, it is provided

for in the power of taxation.

M^r Gov^r Morris argued that sumptuary laws tended to create a landed

nobility, by fixing in the great-landholders and their posterity their

present possessions.

M^r Gerry, the law of necessity is the best sumptuary law.

On Motion of M^r Mason "as to sumptuary laws"

N. H. no. Mas. no. C^t no. N. J. no. P^a no. Del. ay. M^d ay.

V^a no. N. C. no. S. C. no. Geo. ay.

"And to make all laws necessary and proper for carrying into execution

the foregoing powers, and all other powers vested, by this Constitution,

in the Government of the U. S. or any department or officer thereof."

M^r Madison and M^r Pinkney moved to insert between "laws" and

"necessary" "and establish all offices," it appearing to them liable to

cavil that the latter was not included in the former.

M^r Gov^r Morris, M^r Wilson, M^r Rutlidge and M^r Elseworth urged that

the amendment could not be necessary.

On the motion for inserting "and establish all offices"

N. H. no. Mass. ay. C^t no. N. J. no. P^a no. Del. no. M^d ay.

V^a no. N. C. no. S. C. no. Geo. no.

The clause as reported was then agreed to nem. con.

Art: VII Sect. 2. concerning Treason which see.

M^r Madison, thought the definition too narrow. It did not appear to go

as far as the Stat. of Edw^d III. He did not see why more latitude might

not be left to the Legislature. It w^d be as safe as in the hands of

State legislatures. And it was inconvenient to bar a discretion which

experience might enlighten, and which might be applied to good purposes

as well as be abused.

M^r Mason was for pursuing the Stat: of Edw^d III.

M^r Gov^r Morris was for giving to the Union an exclusive right to

declare what sh^d be treason. In case of a contest between the U. S. and

a particular State, the people of the latter must under the disjunctive

terms of the clause, be traitors to one or other authority.

M^r Randolph thought the clause defective in adopting the words, "in

adhering" only. The British Stat: adds, "giving them aid and comfort"

which had a more extensive meaning.

M^r Elseworth considered the definition as the same in fact with that of

the Statute.

M^r Gov^r Morris "adhering" does not go so far as "giving aid and

comfort" or the latter words may be restrictive of "adhering," in either

case the Statute is not pursued.

M^r Wilson held "giving aid and comfort" to be explanatory, not

operative words; and that it was better to omit them.

M^r Dickenson, thought the addition of "giving aid and comfort"

unnecessary & improper; being too vague and extending too far. He wished

to know what was meant by the "testimony of two witnesses" whether they

were to be witnesses to the same overt act or to different overt acts.

He thought also that proof of an overt act ought to be expressed as

essential in the case.

Doc^r Johnson considered "giving aid & comfort" as explanatory of

"adhering" & that something should be inserted in the definition

concerning overt acts. He contended that Treason could not be both

ag^{st} the U. States--and individual States; being an offence ag^{st}

the Sovereignty which can be but one in the same community.

M^r Madison remarked that "and" before "in adhering" should be changed

into "or" otherwise both offences viz. of "levying war," & of adhering

to the Enemy might be necessary to constitute Treason. He added that, as

the definition here was of treason against _the U. S._ it would seem

that the individual States w^d be left in possession of a concurrent

power so far as to define & punish treason particularly ag^{st}

themselves; which might involve double punishm^t.

It was moved that the whole clause be recommitted which was lost, the

votes being equally divided.

N. H. no. Mas. no. C^t no. N. J. ay. P^a ay. Del. no. M^d ay.

V^a ay. N. C. div^d. S. C. no. Geo. ay.

M^r Wilson & Doc^r Johnson moved, that "or any of them," after "United

States" be struck out in order to remove the embarrassment; which was

agreed to nem. con.

M^r Madison. This has not removed the embarrassment. The same Act might

be treason ag^{st} the United States as here defined--and ag^{st} a

particular State according to its laws.

M^r Elseworth. There can be no danger to the gen^l authority from this;

as the laws of the U. States are to be paramount.

Doc^r Johnson was still of opinion there could be no Treason ag^{st} a

particular State. It could not even at present, as the Confederation now

stands, the Sovereignty being in the Union; much less can it be under

the proposed system.

Col. Mason. The United States will have a qualified sovereignty only.

The individual States will retain a part of the Sovereignty. An Act may

be treason ag^{st} a particular State which is not so ag^{st} the U.

States. He cited the Rebellion of Bacon in Virginia as an illustration

of the doctrine.

Doc^r Johnson: That case would amount to Treason ag^{st} the Sovereign,

the Supreme Sovereign, the United States.

M^r King observed that the controversy relating to Treason might be of

less magnitude than was supposed; as the Legislature might punish

capitally under other names than Treason.

M^r Gov^r Morris and M^r Randolph wished to substitute the words of the

British Statute and moved to postpone Sect 2. art VII in order to

consider the following substitute--"Whereas it is essential to the

preservation of liberty to define precisely and exclusively what shall

constitute the crime of Treason, it is therefore ordained, declared &

established, that if a man do levy war ag^{st} the U. S. within their

territories, or be adherent to the enemies of the U. S. within the said

territories, giving them aid and comfort within their territories or

elsewhere, and thereof be provably attainted of open deed by the people

of his condition, he shall be adjudged guilty of Treason."

On this question

N. H.--Mas. no. C^t no. N. J. ay. P^a no. Del. no. M^d no.

V^a ay. N. C. no. S. C. no. Geo. no.

It was then moved to strike out "ag^{st} United States" after "treason"

so as to define treason generally, and on this question

Mass. ay. C^t ay. N. J. ay. P^a ay. Del. ay. M^d ay. V^a no.

N. C. no. S. C. ay. Geo. ay.

It was then moved to insert after "two witnesses" the words "to the same

overt act."

Doc^r Franklin wished this amendment to take place. prosecutions for

treason were generally virulent; and perjury too easily made use of

against innocence.

M^r Wilson. much may be said on both sides. Treason may sometimes be

practised in such a manner, as to render proof extremely difficult--as

in a traitorous correspondence with an Enemy.

On the question--as to some overt act

N. H. ay. Mass. ay. C^t ay. N. J. no. P^a ay. Del. ay. M^d ay.

V^a no. N. C. no. S. C. ay. Geo. ay.

M^r King moved to insert before the word "power" the word "sole," giving

the U. States the exclusive right to declare the punishment of Treason.

M^r Broom 2^{ds} the motion.

M^r Wilson in cases of a general nature, treason can only be ag^{st} the

U-- States, and in such they sh^d have the sole right to declare the

punishment--yet in many cases it may be otherwise. The subject was

however intricate and he distrusted his present judgment on it.

M^r King this amendment results from the vote defining treason generally

by striking out ag^{st} the U. States, which excludes any treason

ag^{st} particular States. These may however punish offences as high

misdemeanors.

On inserting the word "sole." It passed in the negative

N. H. ay. Mas. ay. C^t no. N. J. no. P^a ay. Del. ay. M^d no.

V^a no. N. C. no. S. C. ay. Geo. no.--

M^r Wilson. the clause is ambiguous now. "Sole" ought either to have

been inserted, or "against the U. S." to be re-instated.

M^r King no line can be drawn between levying war and adhering to enemy

ag^{st} the U. States and ag^{st} an individual State--Treason ag^{st}

the latter must be so ag^{st} the former.

M^r Sherman, resistance ag^{st} the laws of the U. States as

distinguished from resistance ag^{st} the laws of a particular State,

forms the line.

M^r Elseworth, the U. S. are sovereign on one side of the line dividing

the jurisdictions--the States on the other--each ought to have power to

defend their respective Sovereignties.

M^r Dickenson, war or insurrection ag^{st} a member of the Union must be

so ag^{st} the whole body; but the constitution should be made clear on

this point.

The clause was reconsidered nem. con--& then M^r Wilson & M^r Elseworth

moved to reinstate "ag^{st} the U. S." after "Treason--" on which

question

N. H. no. Mass. no. C^t ay. N. J. ay. P^a no. Del. no. M^d ay.

V^a ay. N. C. ay. S. C. no. Geo. ay.

M^r Madison was not satisfied with the footing on which the clause now

stood. As Treason ag^{st} the U. States involves treason ag^{st}

particular States, and vice versa, the same act may be twice tried &

punished by the different authorities. M^r Gov^r Morris viewed the

matter in the same light--

It was moved & 2^{ded} to amend the sentence to read--"Treason ag^{st}

the U. S. shall consist only in levying war against them, or in adhering

to their enemies" which was agreed to.

Col. Mason moved to insert the words "giving them aid and comfort," as

restrictive of "adhering to their Enemies &c." the latter he thought

would be otherwise too indefinite--This motion was agreed to: Con^t:

Del: & Georgia only being in the Negative.

M^r L. Martin moved to insert after conviction &c.--"or on confession in

open court"--and on the question (the negative States thinking the words

superfluous) it was agreed to

N. H. ay. Mass. no. C^t ay. N. J. ay. P. ay. Del. ay. M^d ay.

V^a ay. N. C. div^d. S. C. no. Geo. no.

Art: VII. Sect. 2, as amended was then agreed to nem. con.

Sect. 3. taken up. "white & other" struck out nem. con. as superfluous.

M^r Elseworth moved to require the first census to be taken within

"three" instead of "six" years from the first meeting of the

Legislature--and on question

N. H. ay. Mass. ay. C^t ay. N. J. ay. P^a ay. Del. ay. M^d ay.

V^a ay. N. C. ay. S. C. no. Geo. no.

M^r King asked what was the precise meaning of _direct_ taxation? No one

answ^d.

M^r Gerry moved to add to the 3^d Sect. Art: VII. the following clause

"That from the first meeting of the Legislature of the U. S. until a

Census shall be taken all monies for supplying the public Treasury by

direct taxation shall be raised from the several States according to the

number of their Representatives respectively in the first branch".

M^r Langdon. This would bear unreasonably hard on N. H. and he must be

ag^{st} it.

M^r Carrol opposed it. The number of Rep^s did not admit of a proportion

exact enough for a rule of taxation.

Before any question the House

Adjourned.

TUESDAY AUGUST 21. IN CONVENTION

Governour Livingston[35] from the Committee of Eleven to whom was

referred the propositions respecting the debts of the several States and

also the Militia entered on the 18^{th} inst: delivered the following

report:

[35] "Governor Livingston is confessedly a Man of the first rate

talents, but he appears to me rather to indulge a

sportiveness of wit, than a strength of thinking. He is

however equal to anything, from the extensiveness of his

education and genius. His writings teem with satyr and a

neatness of style. But he is no Orator, and seems little

acquainted with the guiles of policy. He is about 60 years

old, and remarkably healthy."--Pierce's Notes, _Am. Hist.

Rev._, iii., 327.

"The Legislature of the U. S. shall have power to fulfil the

engagements which have been entered into by Congress, and to

discharge as well the debts of the U. S. as the debts incurred

by the several States during the late war, for the common

defence and general welfare."

"To make laws for organizing arming and disciplining the

militia, and for governing such part of them as may be employed

in the service of the U. S. reserving to the States

respectively, the appointment of the officers, and the authority

of training the militia according to the discipline prescribed

by the U. States."

M^r Gerry considered giving the power only, without adopting the

obligation, as destroying the security now enjoyed by the public

creditors of the U-- States. He enlarged on the merit of this class of

citizens, and the solemn faith which had been pledged under the existing

Confederation. If their situation should be changed as here proposed

great opposition would be excited ag^{st} the plan. He urged also that

as the States had made different degrees of exertion to sink their

respective debts, those who had done most would be alarmed, if they were

now to be saddled with a share of the debts of States which had done

least.

M^r Sherman. It means neither more nor less than the confederation as it

relates to this subject.

M^r Elseworth moved that the Report delivered in by Gov^r Livingston

should lie on the table.--Agreed to nem. con.

Art: VII. Sect. 3 resumed.--M^r Dickinson moved to postpone this in

order to reconsider Art: IV. Sect. 4. and to _limit_ the number of

representatives to be allowed to the large States. Unless this were done

the small States would be reduced to entire insignificancy, and

encouragement given to the importation of slaves.

M^r Sherman would agree to such a reconsideration, but did not see the

necessity of postponing the section before the House.--M^r Dickenson

withdrew his motion.

Art: VII. Sect 3. then agreed to 10 ays, Delaware alone being no.

M^r Sherman moved to add to Sect 3. the following clause "And all

accounts of supplies furnished, services performed, and monies advanced

by the several States to the U. States, or by the U. S. to the several

States shall be adjusted by the same rule."

M^r Govern^r Morris 2^{ds} the motion.

M^r Ghorum, thought it wrong to insert this in the Constitution. The

Legislature will no doubt do what is right. The present Congress have

such a power and are now exercising it.

M^r Sherman unless some rule be expressly given none will exist under

the new system.

M^r Elseworth. Though The contracts of Congress will be binding, there

will be no rule for executing them on the States; and one ought to be

provided.

M^r Sherman withdrew his motion to make way for one of M^r Williamson to

add to Sect. 3. "By this rule the several quotas of the States shall be

determined in settling the expences of the late war."

M^r Carrol brought into view the difficulty that might arise on this

subject from the establishment of the Constitution as intended without

the _unanimous_ consent of the States.

M^r Williamson's motion was postponed nem. con.

Art: VI Sect. 12. which had been postponed of Aug: 15. was now called

for by Col. Mason, who wished to know how the proposed amendment as to

money bills would be decided, before he agreed to any further points.

M^r Gerry's motion of yesterday that previous to a census, direct

taxation be proportioned on the States according to the number of

Representatives, was taken up. He observed that the principal acts of

Government would probably take place within that period, and it was but

reasonable that the States should pay in proportion to their share in

them.

M^r Elseworth thought such a rule unjust. There was a great difference

between the number of Represent^s and the number of inhabitants as a

rule in this case. Even if the former were proportioned as nearly as

possible to the latter, it would be a very inaccurate rule. A State

might have one Representative only that had inhabitants enough for 1-1/2

or more, if fractions could be applied, &c.--. He proposed to amend the

motion by adding the words, "subject to a final liquidation by the

foregoing rule when a census shall have been taken."

M^r Madison. The last appointment of Cong^s on which the number of

Representatives was founded, was conjectural and meant only as a

temporary rule till a Census should be established.

M^r Read. The requisitions of Cong^s had been accommodated to the

impoverishment produced by the war; and to other local and temporary

circumstances.

M^r Williamson opposed M^r Gerry's motion.

M^r Langdon was not here when N. H. was allowed three members. If it was

more than her share; he did not wish for them.

M^r Butler contended warmly for M^r Gerry's motion as founded in reason

and equity.

M^r Elseworth's proviso to M^r Gerry's motion was agreed to nem. con.

M^r King thought the power of taxation given to the Legislature rendered

the motion of M^r Gerry altogether unnecessary.

On M^r Gerry's motion as amended

N. H. no. Mass. ay. C^t no. N. J. no. P^a no. Del. no. M^d no.

V^a no. N. C. div^d. S. C. ay. Geo. no.

On a question, Shall Art: VI Sect. 12. with the amendment to it proposed

& entered on the 15 instant, as called for by Col. Mason be now taken

up? It passed in the negative.

N. H. ay. Mass. no. C^t ay. N. J. no. P^a no. Del. no. M^d ay.

V^a ay. N. C. ay. S. C. no. Geo. no.

M^r L. Martin. The power of taxation is most likely to be criticised by

the public. Direct taxation should not be used but in cases of absolute

necessity; and then the States will be the best Judges of the mode. He

therefore moved the following addition to Sect: 3: Art VII "And whenever

the Legislature of the U. S. shall find it necessary that revenue should

be raised by direct taxation, having apportioned the same, according to

the above rule on the several States, requisitions shall be made of the

respective States to pay into the Continental Treasury their respective

quotas within a time in the said requisitions specified; and in case of

any of the States failing to comply with such requisitions, then and

then only to devise and pass acts directing the mode, and authorizing

the collection of the same."

M^r M^cHenry 2^{ded} the motion--there was no debate, and on the

question

N. H. no. C^t no. N. J. ay. Pen^a no. Del. no. M^d div^d.

(Jenifer & Carol no) V^a no. N. C. no. S. C. no. Geo. no.

Art. VII. Sect. 4.--M^r Langdon, by this section the States are left at

liberty to tax exports. N. H. therefore with other non-exporting States,

will be subject to be taxed by the States exporting its produce. This

could not be admitted. It seems to be feared that the Northern States

will oppress the trade of the South^n. This may be guarded ag^{st} by

requiring the concurrence of 2/3 or 3/4 of the legislature in such

cases.

M^r Elseworth. It is best as it stands. The power of regulating trade

between the States will protect them ag^{st} each other. Should this not

be the case, the attempts of one to tax the produce of another passing

through its hands, will force a direct exportation and defeat

themselves. There are solid reasons ag^{st} Cong^s taxing exports. 1. it

will discourage industry, as taxes on imports discourage luxury. 2. The

produce of different States is such as to prevent uniformity in such

taxes. There are indeed but a few articles that could be taxed at all;

as Tob^o rice & indigo, and a tax on these alone would be partial &

unjust. 3. The taxing of exports would engender incurable jealousies.

M^r Williamson. Tho' N. C. has been taxed by Virg^a by a duty on 12000

Hhs of her Tob^o exported thro' Virg^a yet he would never agree to this

power. Should it take place, it would destroy the last hope of an

adoption of the plan.

M^r Gov^r Morris. These local considerations ought not to impede the

general interest. There is great weight in the argument, that the

exporting States will tax the produce of their uncommercial neighbours.

The power of regulating the trade between P^a & N. Jersey will never

prevent the former from taxing the latter. Nor will such a tax force a

direct exportation from N. Jersey. The advantages possessed by a large

trading City, outweigh the disadvantage of a moderate duty; and will

retain the trade in that channel. If no tax can be laid on exports, an

embargo cannot be laid though in time of war such a measure may be of

critical importance. Tobacco, lumber and live-stock are three objects

belonging to different States, of which great advantage might be made by

a power to tax exports. To these may be added Genseng and Masts for

Ships by which a tax might be thrown on other nations. The idea of

supplying the West Indies with lumber from Nova Scotia is one of the

many follies of lord Sheffield's pamphlets. The State of the Country

also will change, and render duties on exports, as skins, beaver & other

peculiar raw materials, politic in the view of encouraging American

manufactures.

M^r Butler was strenuously opposed to a power over exports, as unjust

and alarming to the staple States.

M^r Langdon suggested a prohibition on the States from taxing the

produce of other States exported from their harbours.

M^r Dickenson. The power of taxing exports may be inconvenient at

present; but it must be of dangerous consequence to prohibit it with

respect to all articles and for ever. He thought it would be better to

except particular articles from the power.

M^r Sherman. It is best to prohibit the National legislature in all

cases. The States will never give up all power over trade. An

enumeration of particular articles would be difficult invidious and

improper.

M^r Madison. As we ought to be governed by national and permanent

views, it is a sufficient argument for giving y^e power over exports

that a tax, tho' it may not be expedient at present, may be so

hereafter. A proper regulation of exports may & probably will be

necessary hereafter, and for the same purposes as the regulation of

imports; viz, for revenue--domestic manufactures--and procuring

equitable regulations from other nations. An Embargo may be of absolute

necessity, and can alone be effectuated by the Gen^l authority. The

regulation of trade between State and State cannot effect more than

indirectly to hinder a State from taxing its own exports; by authorizing

its Citizens to carry their commodities freely into a neighbouring State

which might decline taxing exports in order to draw into its channel the

trade of its neighbours. As to the fear of disproportionate burthens on

the more exporting States, it might be remarked that it was agreed on

all hands that the revenue w^d principally be drawn from trade, and as

only a given revenue would be needed, it was not material whether all

should be drawn wholly from imports--or half from those, and half from

exports. The imports and exports must be pretty nearly equal in every

State--and relatively the same among the different States.

M^r Elseworth did not conceive an embargo by the Congress interdicted by

this section.

M^r M^cHenry conceived that power to be included in the power of war.

M^r Wilson. Pennsylvania exports the produce of Mary^d N. Jersey,

Delaware & will by & by when the River Delaware is opened, export for N.

York. In favoring the general power over exports therefore, he opposed

the particular interest of his State. He remarked that the power had

been attacked by reasoning which could only have held good in case the

Gen^l Gov^t had been _compelled_, instead of _authorized_, to lay duties

on exports. To deny this power is to take from the Common Gov^t half the

regulation of trade. It was his opinion that a power over exports might

be more effectual than that over imports in obtaining beneficial

treaties of commerce.

M^r Gerry was strenuously opposed to the power over exports. It might be

made use of to compel the States to comply with the will of the Gen^l

Government, and to grant it any new powers which might be demanded. We

have given it more power already than we know how will be exercised. It

will enable the Gen^l Gov^t to oppress the States as much as Ireland is

oppressed by Great Britain.

M^r Fitzimmons[36] would be ag^{st} a tax on exports to be laid

immediately; but was for giving a power of laying the tax when a proper

time may call for it. This would certainly be the case when America

should become a manufacturing Country. He illustrated his argument by

the duties in G. Britain on wool &c.

[36] "Mr. Fitzsimons is a Merchant of considerable talents, and

speaks very well I am told, in the Legislature of

Pennsylvania. He is about 40 years old."--Pierce's Notes,

_Am. Hist. Rev._, iii., 328.

Col. Mason. If he were for reducing the States to mere corporations as

seemed to be the tendency of some arguments, he should be for subjecting

their exports as well as imports to a power of general taxation. He went

on a principle often advanced & in which he concurred, that "a majority

when interested will oppress the minority." This maxim had been verified

by our own Legislature (of Virginia). If we compare the States in this

point of view the 8 Northern States have an interest different from the

five South^n States; and have in one branch of the legislature 36 votes

ag^{st} 29. and in the other in the proportion of 8 ag^{st} 5. The

Southern States had therefore ground for their suspicions. The case of

Exports was not the same with that of imports. The latter were the same

throughout the States; the former very different. As to Tobacco other

nations do raise it, and are capable of raising it as well as Virg^a &c.

The impolicy of taxing that article had been demonstrated by the

experiment of Virginia.

M^r Clymer[37] remarked that every State might reason with regard to its

particular productions, in the same manner as the Southern States. The

middle States may apprehend an oppression of their wheat flour,

provisions &c. and with more reason, as these articles were exposed to a

competition in foreign markets not incident to Tob^o rice &c. They may

apprehend also combinations ag^{st} them between the Eastern & Southern

States as much as the latter can apprehend them between the Eastern &

middle. He moved as a qualification of the power of taxing Exports that

it should be restrained to regulations of trade by inserting after the

word "duty" sect 4 art VII the words, "for the purpose of revenue."

[37] "Mr. Clymer is a Lawyer of some abilities;--he is a

respectable Man and much esteemed. Mr. Clymer is about 40

years old."--Pierce's Notes, _Am. Hist. Rev._, iii., 328.

On question on M^r Clymer's motion

N. H. no. Mass. no. C^t no. N. J. ay. P^a ay. Del. ay. M^d no.

V^a no. N. C. no. S. C. no. Geo. no.

M^r Madison. In order to require 2/3 of each House to tax exports, as a

lesser evil than a total prohibition moved to insert the words "unless

by consent of two thirds of the Legislature."

M^r Wilson 2^{ds} and on this question, it passed in the Negative.

N. H. ay. Mass. ay. C^t no. N. J. ay. P^a ay. Del. ay. M^d no.

V^a no (Col. Mason, M^r Randolph M^r Blair no. Gen^l Washington

& J. M. ay.) N. C. no. S. C. no. Geo. no.

Question on Sect: 4. Art VII. as far as to "no tax sh^l be laid on

exports"--it passed in the affirmative.

N. H. no. Mass. ay. C^t ay. N. J. no. P^a no. Del. no. M^d ay.

V^a ay. (Gen^l W. & J. M. no) N. C. ay. S. C. ay. Geo. ay.

M^r L. Martin, proposed to vary the Sect: 4. art VII so as to allow a

prohibition or tax on the importation of slaves. 1. as five slaves are

to be counted as 3 free men in the apportionment of Representatives;

such a clause would leave an encouragement to this trafic. 2. slaves

weakened one part of the Union which the other parts were bound to

protect; the privilege of importing them was therefore unreasonable. 3.

it was inconsistent with the principles of the revolution and

dishonorable to the American character to have such a feature in the

Constitution.

M^r Rutlidge did not see how the importation of slaves could be

encouraged by this section. He was not apprehensive of insurrections and

would readily exempt the other States from the obligation to protect the

Southern against them. Religion & humanity had nothing to do with this

question. Interest alone is the governing principle with nations. The

true question at present is whether the South^n States shall or shall

not be parties to the Union. If the Northern States consult their

interest, they will not oppose the increase of slaves which will

increase the commodities of which they will become the carriers.

M^r Elseworth was for leaving the clause as it stands, let every State

import what it pleases. The morality or wisdom of slavery are

considerations belonging to the States themselves. What enriches a part

enriches the whole, and the States are the best judges of their

particular interest. The old confederation had not meddled with this

point, and he did not see any greater necessity for bringing it within

the policy of the new one.

M^r Pinkney. South Carolina can never receive the plan if it prohibits

the slave trade. In every proposed extension of the powers of Congress,

that State has expressly & watchfully excepted that of meddling with the

importation of negroes. If the States be all left at liberty on this

subject, S. Carolina may perhaps by degrees do of herself what is

wished, as Virginia & Maryland already have done.

Adjourned.

WEDNESDAY AUGUST 22. IN CONVENTION.

Art VII sect 4. resumed. M^r Sherman was for leaving the clause as it

stands. He disapproved of the slave trade; yet as the States were now

possessed of the right to import slaves, as the public good did not

require it to be taken from them, & as it was expedient to have as few

objections as possible to the proposed scheme of Government, he thought

it best to leave the matter as we find it. He observed that the

abolition of Slavery seemed to be going on in the U. S. & that the good

sense of the several States would probably by degrees compleat it. He

urged on the Convention the necessity of despatching its business.

Col. Mason. This infernal traffic originated in the avarice of British

Merchants. The British Gov^t constantly checked the attempts of Virginia

to put a stop to it. The present question concerns not the importing

States alone but the whole Union. The evil of having slaves was

experienced during the late war. Had slaves been treated as they might

have been by the Enemy, they would have proved dangerous instruments in

their hands. But their folly dealt by the slaves, as it did by the

Tories. He mentioned the dangerous insurrections of the slaves in Greece

and Sicily; and the instructions given by Cromwell to the Commissioners

sent to Virginia, to arm the servants & slaves, in case other means of

obtaining its submission should fail. Maryland & Virginia he said had

already prohibited the importation of slaves expressly. N. Carolina had

done the same in substance. All this would be in vain, if S. Carolina &

Georgia be at liberty to import. The Western people are already calling

out for slaves for their new lands, and will fill that Country with

slaves if they can be got thro' S. Carolina & Georgia. Slavery

discourages arts & manufactures. The poor despise labor when performed

by slaves. They prevent the immigration of Whites, who really enrich &

strengthen a Country. They produce the most pernicious effect on

manners. Every master of slaves is born a petty tyrant. They bring the

judgment of heaven on a Country. As nations can not be rewarded or

punished in the next world they must be in this. By an inevitable chain

of causes & effects providence punishes national sins, by national

calamities. He lamented that some of our Eastern brethren had from a

lust of gain embarked in this nefarious traffic. As to the States being

in possession of the Right to import, this was the case with many other

rights, now to be properly given up. He held it essential in every point

of view that the Gen^l Gov^t should have power to prevent the increase

of slavery.

M^r Elseworth. As he had never owned a slave could not judge of the

effects of slavery on character. He said however that if it was to be

considered in a moral light we ought to go farther and free those

already in the Country.--As slaves also multiply so fast in Virginia &

Maryland that it is cheaper to raise than import them, whilst in the

sickly rice swamps foreign supplies are necessary, if we go no farther

than is urged, we shall be unjust towards S. Carolina & Georgia. Let us

not intermeddle. As population increases, poor laborers will be so

plenty as to render slaves useless. Slavery in time will not be a speck

in our Country. Provision is already made in Connecticut for abolishing

it. And the abolition has already taken place in Massachusetts. As to

the danger of insurrections from foreign influence, that will become a

motive to kind treatment of the slaves.

M^r Pinkney. If slavery be wrong, it is justified by the example of all

the world. He cited the case of Greece Rome & other antient States; the

sanction given by France England, Holland & other modern States. In all

ages one half of mankind have been slaves. If the S. States were let

alone they will probably of themselves stop importations. He w^d himself

as a citizen of S. Carolina vote for it. An attempt to take away the

right as proposed will produce serious objections to the Constitution

which he wished to see adopted.

General Pinkney declared it to be his firm opinion that if himself & all

his colleagues were to sign the Constitution & use their personal

influence, it would be of no avail towards obtaining the assent of their

Constituents. S. Carolina & Georgia cannot do without slaves. As to

Virginia she will gain by stopping the importations. Her slaves will

rise in value, & she has more than she wants. It would be unequal to

require S. C. & Georgia to confederate on such unequal terms. He said

the Royal assent before the Revolution had never been refused to S.

Carolina as to Virginia. He contended that the importation of slaves

would be for the interest of the whole Union. The more slaves, the more

produce to employ the carrying trade; The more consumption also, and the

more of this, the more revenue for the common treasury. He admitted it

to be reasonable that slaves should be dutied like other imports, but

should consider a rejection of the clause as an exclusion of S. Carol^a

from the Union.

M^r Baldwin had conceived national objects alone to be before the

Convention, not such as like the present were of a local nature. Georgia

was decided on this point. That State has always hitherto supposed a

Gen^l Governm^t to be the pursuit of the central States who wished to

have a vortex for every thing--that her distance would preclude her from

equal advantage--& that she could not prudently purchase it by yielding

national powers. From this it might be understood in what light she

would view an attempt to abridge one of her favorite prerogatives. If

left to herself, she may probably put a stop to the evil. As one ground

for this conjecture, he took notice of the sect of ---- which he said

was a respectable class of people, who carried their ethics beyond the

mere _equality of men_, extending their humanity to the claims of the

whole animal creation.

M^r Wilson observed that if S. C. & Georgia were themselves disposed to

get rid of the importation of slaves in a short time as had been

suggested, they would never refuse to Unite because the importation

might be prohibited. As the section now stands all articles imported are

to be taxed. Slaves alone are exempt. This is in fact a bounty on that

article.

M^r Gerry thought we had nothing to do with the conduct of the States as

to Slaves, but ought to be careful not to give any sanction to it.

M^r Dickenson considered it as inadmissible on every principle of honor

& safety that the importation of slaves should be authorized to the

States by the Constitution. The true question was whether the national

happiness would be promoted or impeded by the importation, and this

question ought to be left to the National Gov^t not to the States

particularly interested. If Eng^d & France permit slavery, slaves are at

the same time excluded from both those kingdoms. Greece and Rome were

made unhappy by their slaves. He could not believe that the South^n

States would refuse to confederate on the account apprehended;

especially as the power was not likely to be immediately exercised by

the Gen^l Government.

M^r Williamson stated the law of N. Carolina on the subject, to-wit that

it did not directly prohibit the importation of slaves. It imposed a

duty of £5 on each slave imported from Africa, £10 on each from

elsewhere, & £50 on each from a State licensing manumission. He thought

the S. States could not be members of the Union if the clause sh^d be

rejected, and that it was wrong to force any thing down not absolutely

necessary, and which any State must disagree to.

M^r King thought the subject should be considered in a political light

only. If two States will not agree to the Constitution as stated on one

side, he could affirm with equal belief on the other, that great & equal

opposition would be experienced from the other States. He remarked on

the exemption of slaves from duty whilst every other import was

subjected to it, as an inequality that could not fail to strike the

commercial sagacity of the North^n & Middle States.

M^r Langdon was strenuous for giving the power to the Gen^l Gov^t. He

c^d not with a good conscience leave it with the States who could then

go on with the traffic, without being restrained by the opinions here

given that they will themselves cease to import slaves.

Gen^l Pinkney thought himself bound to declare candidly that he did not

think S. Carolina would stop her importations of slaves in any short

time, but only stop them occasionally as she now does. He moved to

commit the clause that slaves might be made liable to an equal tax with

other imports which he thought right & w^{ch} w^d remove one difficulty

that had been started.

M^r Rutlidge. If the Convention thinks that N. C. S. C. & Georgia will

ever agree to the plan, unless their right to import slaves be

untouched, the expectation is vain. The people of those States will

never be such fools as to give up so important an interest. He was

strenuous ag^{st} striking out the section, and seconded the motion of

Gen^l Pinkney for a commitment.

M^r Gov^r Morris wished the whole subject to be committed including the

clauses relating to taxes on exports & to a navigation act. These things

may form a bargain among the Northern & Southern States.

M^r Butler declared that he never would agree to the power of taxing

exports.

M^r Sherman said it was better to let the S. States import slaves than

to part with them, if they made that a sine qua non. He was opposed to a

tax on slaves imported as making the matter worse, because it implied

they were _property_. He acknowledged that if the power of prohibiting

the importation should be given to the Gen^l Government that it would be

exercised. He thought it would be its duty to exercise the power.

M^r Read was for the commitment provided the clause concerning taxes on

exports should also be committed.

M^r Sherman observed that that clause had been agreed to & therefore

could not be committed.

M^r Randolph was for committing in order that some middle ground might,

if possible, be found. He could never agree to the clause as it stands.

He w^d sooner risk the constitution. He dwelt on the dilemma to which

the Convention was exposed. By agreeing to the clause, it would revolt

the Quakers, the Methodists, and many others in the States having no

slaves. On the other hand, two States might be lost to the Union. Let us

then, he said, try the chance of a commitment.

On the question for committing the remaining part of Sect. 4 & 5. of

Art: 7.

N. H. no. Mass. abt^t Con^t ay. N. J. ay. P^a no. Del. no.

Mary^d ay. V^a ay. N. C. ay. S. C. ay. Geo. ay.

M^r Pinkney & M^r Langdon moved to commit Sect. 6. as to navigation act

by two thirds of each House.

M^r Gorham did not see the propriety of it. Is it meant to require a

greater proportion of votes? He desired it to be remembered that the

Eastern States had no motive to Union but a commercial one. They were

able to protect themselves. They were not afraid of external danger, and

did not need the aid of the South^n States.

M^r Wilson wished for a commitment in order to reduce the proportion of

votes required.

M^r Elseworth was for taking the plan as it is. This widening of

opinions has a threatening aspect. If we do not agree on this middle &

moderate ground he was afraid we should lose two States, with such

others as may be disposed to stand aloof, should fly into a variety of

shapes & directions, and most probably into several confederations and

not without bloodshed.

On Question for committing 6 Sect. as to navigation act to a member from

each State--

N. H. ay. Mas. ay. C^t no. N. J. no. P^a ay. Del. ay. M^d ay.

V^a ay. N. C. ay. S. C. ay. Geo. ay.

The Committee appointed were M^r Langdon, King, Johnson, Livingston,

Clymer, Dickenson, L. Martin, Madison, Williamson, C. C. Pinkney, &

Baldwin.

To this committee were referred also the two clauses above mentioned, of

the 4 & 5. Sect: of Art. 7.

M^r Rutlidge from the Committee to whom were referred on the 18 &

20^{th} instant the propositions of M^r Madison & M^r Pinkney made the

Report following:[38]

[38] Madison's Note says: ("Here insert Report from Journal of

the Convention of the date.") It is found on p. 227, 228, of

the Journal and is as above.

"The committee report, that in their opinion the following

additions should be made to the report now before the

convention, namely,

"At the end of the first clause of the first section of the

seventh article add, 'for payment of the debts and necessary

expenses of the United States; provided that no law for raising

any branch of revenue, except what may be specially appropriated

for the payment of interest on debts or loans, shall continue in

force for more than ---- years.'

"At the end of the second clause, second section, seventh

article, add, 'and with Indians, within the limits of any state,

not subject to the laws thereof.'

"At the end of the sixteenth clause of the second section,

seventh article, add, 'and to provide, as may become necessary,

from time to time, for the well managing and securing the common

property and general interests and welfare of the United States

in such manner as shall not interfere with the governments of

individual states, in matters which respect only their internal

police, or for which their individual authority may be

competent.'

"At the end of the first section, tenth article, add, 'he shall

be of the age of thirty-five years, and a citizen of the United

States, and shall have been an inhabitant thereof for twenty-one

years.'

"After the second section of the tenth article, insert the

following as a third section:

"'The President of the United States shall have a privy

council, which shall consist of the president of the

senate, the speaker of the house of representatives, the

chief justice of the supreme court, and the principal

officer in the respective departments of foreign

affairs, domestic affairs, war, marine, and finance, as

such departments of office shall from time to time be

established, whose duty it shall be to advise him in

matters respecting the execution of his office, which he

shall think proper to lay before them: but their advice

shall not conclude him, nor affect his responsibility

for the measures which he shall adopt.'

"At the end of the second section of the eleventh article, add,

'the judges of the supreme court shall be triable by the senate,

on impeachment by the house of representatives.'

"Between the fourth and fifth lines of the third section of the

eleventh article, after the word 'controversies,' insert,

'between the United States and an individual state, or the

United States and an individual person.'"

A motion to rescind the order of the House respecting the hours of

meeting & adjourning, was negatived:

Mass: P^a Del. Mar^d ay. N. H. Con: N. J. V^a N. C. S. C.

Geo. no.

M^r Gerry and M^r M^cHenry moved to insert after the 2^d Sect. Art: 7,

the clause following, to wit, "The Legislature shall pass no bill of

attainder nor any ex post facto law."[39]

[39] The proceedings on this motion involving the two questions

on "attainders and ex post facto laws," are not so fully

stated in the printed Journal.--Madison's Note.

M^r Gerry urged the necessity of this prohibition, which he said was

greater in the National than the State Legislature, because the number

of members in the former being fewer, they were on that account the more

to be feared.

M^r Gov^r Morris thought the precaution as to ex post facto laws

unnecessary; but essential as to bills of attainder.

M^r Elseworth contended that there was no lawyer, no civilian who would

not say that ex post facto laws were void of themselves. It cannot then

be necessary to prohibit them.

M^r Wilson was against inserting any thing in the Constitution as to ex

post facto laws. It will bring reflections on the Constitution--and

proclaim that we are ignorant of the first principles of Legislation, or

are constituting a Government that will be so.

The question being divided, the first part of the motion relating to

bills of attainder was agreed to nem contradicente.

On the second part relating to ex post facto laws--

M^r Carrol remarked that experience overruled all other calculations. It

had proved that in whatever light they might be viewed by civilians or

others, the State Legislatures had passed them, and they had taken

effect.

M^r Wilson. If these prohibitions in the State Constitutions have no

effect, it will be useless to insert them in this Constitution. Besides,

both sides will agree to the principle, and will differ as to its

application.

M^r Williamson. Such a prohibitory clause is in the Constitution of N.

Carolina, and tho it has been violated, it has done good there & may do

good here, because the Judges can take hold of it.

Doc^r Johnson thought the clause unnecessary, and implying an improper

suspicion of the National Legislature.

M^r Rutlidge was in favor of the clause.

On the question for inserting the prohibition of ex post facto laws.

N. H. ay. Mas. ay. Con^t no. N. J. no. P^a no. Del. ay. M^d ay.

Virg^a ay. N. C. div^d. S. C. ay. Geo. ay.

The report of the committee of 5. made by M^r Rutlidge, was taken up and

then postponed that each member might furnish himself with a copy.

The Report of the Committee of Eleven delivered in & entered on the

Journal of the 21^{st} inst. was then taken up, and the first clause

containing the words "The Legislature of the U. S. _shall have power_ to

fulfil the engagements which have been entered into by Congress" being

under consideration,

M^r Elseworth argued that they were unnecessary. The U. S. heretofore

entered into Engagements by Cong^s who were their Agents. They will

hereafter be bound to fulfil them by their new agents.

M^r Randolph thought such a provision necessary: for though the U.

States will be bound, the new Gov^t will have no authority in the case

unless it be given to them.

M^r Madison thought it necessary to give the authority in order to

prevent misconstruction. He mentioned the attempts made by the Debtors

to British subjects to shew that contracts under the old Government,

were dissolved by the Revolution which destroyed the political identity

of the Society.

M^r Gerry thought it essential that some explicit provision should be

made on this subject, so that no pretext might remain for getting rid of

the public engagements.

M^r Gov^r Morris moved by way of amendment to substitute--"The

Legislature _shall_ discharge the debts & fulfil the engagements of the

U. States."

It was moved to vary the amendment by striking out "discharge the debts"

& to insert "liquidate the claims," which being negatived,

The amendment moved by M^r Gov^r Morris was agreed to all the States

being in the affirmative.

It was moved & 2^{ded} to strike the following words out of the 2^d

clause of the report "and the authority of training the militia

according to the discipline prescribed by the U. S." Before a question

was taken

The House adjourned.

THURSDAY IN CONVENTION AUG: 23, 1787

The Report of the Committee of Eleven made Aug: 21. being taken up, and

the following clause being under consideration to wit "To make laws for

organizing, arming & disciplining the Militia, and for governing such

parts of them as may be employed in the service of the U. S. reserving

to the States respectively, the appointment of the officers, and

authority of training the militia according to the discipline

prescribed."

M^r Sherman moved to strike out the last member "and authority of

training" &c. He thought it unnecessary. The States will have this

authority of course if not given up.

M^r Elseworth doubted the propriety of striking out the sentence. The

reason assigned applies as well to the other reservation of the

appointment to offices. He remarked at the same time that the term

discipline was of vast extent and might be so expounded as to include

all power on the subject.

M^r King, by way of explanation, said that by _organizing_, the

Committee meant, proportioning the officers & men--by _arming_,

specifying the kind size & caliber of arms--& by _disciplining_,

prescribing the manual exercise evolutions &c.

M^r Sherman withdrew his motion.

M^r Gerry. This power in the U. S. as explained is making the States

drill-sergeants. He had as lief let the Citizens of Massachusetts be

disarmed, as to take the command from the States, and subject them to

the Gen^l Legislature. It would be regarded as a system of Despotism.

M^r Madison observed that "_arming_" as explained did not extend to

furnishing arms; nor the term "_disciplining_" to penalties & Courts

Martial for enforcing them.

M^r King added to his former explanation that _arming_ meant not only to

provide for uniformity of arms, but included the authority to regulate

the modes of furnishing, either by the militia themselves, the State

Governments, or the National Treasury; that _laws_ for disciplining,

must involve penalties and every thing necessary for enforcing

penalties.

M^r Dayton moved to postpone the paragraph, in order to take up the

following proposition.

"To establish an uniform & general system of discipline for the

Militia of these States, and to make laws for organizing,

arming, disciplining & governing _such part of them as may be

employed in the service of the U. S._, reserving to the States

respectively the appointment of the officers, and all authority

over the militia not herein given to the General Government."

On the question to postpone in favor of this proposition: it passed in

the Negative.

N. H. no. Mas. no. C^t no. N. J. ay. P. no. Del. no. Mary^d ay.

V^a no. N. C. no. S. C. no. Geo. ay.

M^r Elseworth & M^r Sherman moved to postpone the 2^d clause in favor of

the following

"To establish an uniformity of arms, exercise & organization for

the militia, and to provide for the Government of them when

called into the service of the U. States."

The object of this proposition was to refer the plan for the Militia to

the General Gov^t but to leave the execution of it to the State

Gov^{ts}.

Mr. Langdon said he could not understand the jealousy expressed by some

Gentlemen. The General & State Gov^{ts} were not enemies to each other,

but different institutions for the good of the people of America. As one

of the people he could say, the National Gov^t is mine, the State Gov^t

is mine. In transferring power from one to the other, I only take out of

my left hand what it cannot so well use, and put it into my right hand

where it can be better used.

M^r Gerry thought it was rather taking out of the right hand & putting

it into the left. Will any man say that liberty will be as safe in the

hands of eighty or a hundred men taken from the whole continent, as in

the hands of two or three hundred taken from a single State.

M^r Dayton was against so absolute a uniformity. In some States there

ought to be a greater proportion of cavalry than in others. In some

places rifles would be most proper, in others muskets &c.

Gen^l Pinkney preferred the clause reported by the Committee, extending

the meaning of it to the case of fines &c.

M^r Madison. The primary object is to secure an effectual discipline of

the Militia. This will no more be done if left to the States separately

than the requisitions have been hitherto paid by them. The States

neglect their Militia now, and the more they are consolidated into one

nation, the less each will rely on its own interior provisions for its

safety & the less prepare its Militia for that purpose; in like manner

as the militia of a State would have been still more neglected than it

has been if each county had been independently charged with the care of

its Militia. The Discipline of the Militia is evidently a _National_

concern, and ought to be provided for in the _National_ Constitution.

M^r L. Martin was confident that the States would never give up the

power over the Militia; and that, if they were to do so, the militia

would be less attended to by the Gen^l than by the State Governments.

M^r Randolph asked what danger there Could be that the Militia could be

brought into the field and made to commit suicide on themselves. This is

a power that cannot from its nature be abused, unless indeed the whole

mass should be corrupted. He was for trammelling the Gen^l Gov^t

whenever there was danger, but here there could be none. He urged this

as an essential point; observing that the Militia were every where

neglected by the State Legislatures, the members of which courted

popularity too much to enforce a proper discipline. Leaving the

appointment of officers to the States protects the people ag^{st} every

apprehension that could produce murmur.

On Question on M^r Elsworth's Motion

N. H. no. Mass. no. C^t ay. N. J. no. P^a no. Del. no. M^d no.

V^a no. N. C. no. S. C. no. Geo. no.

A motion was then made to recommit the 2^d clause which was negatived.

On the question to agree to the 1^{st} part of the clause, namely

"To make laws for organizing arming & disciplining the Militia,

and for governing such part of them as may be employed in the

service of the U. S."

N. H. ay. Mas. ay. C^t no. N. J. ay. P^a ay. Del. ay. M^d no.

V^a ay. N. C. ay. S. C. ay. Geo. ay.

M^r Madison moved to amend the next part of the clause so as to read

"reserving to the States respectively, the appointment of the officers,

_under the rank of General officers_."

M^r Sherman considered this as absolutely inadmissible. He said that if

the people should be so far asleep as to allow the most influential

officers of the militia to be appointed by the Gen^l Government, every

man of discernment would rouse them by sounding the alarm to them.

M^r Gerry. Let us at once destroy the State Gov^{ts} have an Executive

for life or hereditary, and a proper Senate, and then there would be

some consistency in giving full powers to the Gen^l Gov^t but as the

States are not to be abolished, he wondered at the attempts that were

made to give powers inconsistent with their existence. He warned the

Convention ag^{st} pushing the experiment too far. Some people will

support a plan of vigorous Government at every risk. Others of a more

democratic cast will oppose it with equal determination, and a Civil war

may be produced by the conflict.

M^r Madison. As the greatest danger is that of disunion of the States,

it is necessary to guard ag^{st} it by sufficient powers to the Common

gov^t and as the greatest danger to liberty is from large standing

armies, it is best to prevent them by an effectual provision for a good

Militia.

On the Question to agree to M^r Madison's motion

N. H. ay. Mas. no. C^t no. N. J. no. P^a no. Del. no. M^d no.

V^a no. N. C. no. S. C. ay. Geo. ay.[40]

[40] In the printed Journal, Geo: no.--Madison's Note.

On the question to agree to the "reserving to the States the appointment

of the officers." It was agreed to nem: contrad:

On the question on the clause "and the authority of training the Militia

according to the discipline prescribed by the U. S."--

N. H. ay. Mas. ay. C^t ay. N. J. ay. P^a ay. Del. no. M^d ay.

V^a no. N. C. ay. S. C. no. Geo. no.

On the question to agree to Art. VII. Sect. 7. as

reported it passed nem: contrad.

M^r Pinkney urged the necessity of preserving foreign Ministers & other

officers of the U. S. independent of external influence and moved to

insert, after Art. VII Sect 7. the clause following--"No person holding

any office of profit or trust under the U. S. shall without the consent

of the Legislature, accept of any present, emolument, office or title of

any kind whatever, from any King, Prince or foreign State", which passed

nem: contrad:

M^r Rutlidge moved to amend Art: VIII to read as follows,

"This Constitution & the laws of the U. S. made in pursuance

thereof, and all the Treaties made under the authority of the U.

S. shall be the supreme law of the several States and of their

citizens and inhabitants; and the Judges in the several States

shall be bound thereby in their decisions, any thing in the

Constitutions or laws of the several States, to the contrary

notwithstanding."

which was agreed to, nem: contrad:

Art: IX being next for consideration,

M^r Gov^r Morris argued ag^{st} the appointment of officers by the

Senate. He considered the body as too numerous for the purpose; as

subject to cabal; and as devoid of responsibility. If Judges were to be

tried by the Senate according to a late report of a Committee it was

particularly wrong to let the Senate have the filling of vacancies which

its own decrees were to create.

M^r Wilson was of the same opinion & for like reasons.

The art. IX. being waved, and Art. VII. Sect. 1. resumed,

M^r Gov^r Morris moved to strike the following words out of the 18

clause "enforce treaties" as being superfluous, since treaties were to

be "laws"--which was agreed to nem: contrad:

M^r Gov^r Morris moved to alter 1^{st} part. of 18. clause Sect. 1. art

VII so as to read "to provide for calling forth the militia to execute

the laws of the Union, suppress insurrections and repel

invasions"--which was agreed to nem: contrad:

On the question then to agree to the 18 clause of Sect. 1. Art: 7. as

amended it passed in the affirmative nem: contrad.

M^r C. Pinkney moved to add as an additional power to be vested in the

Legislature of the U. S. "To negative all laws passed by the several

States interfering in the opinion of the legislature with the general

interests and harmony of the Union; provided that two thirds of the

members of each House assent to the same." This principle he observed

had formerly been agreed to. He considered the precaution as essentially

necessary. The objection drawn from the predominance of the large States

had been removed by the equality established in the Senate.[41]

[41] "RICHMOND AUG^t 22. 87.

"DEAR SIR,

* * * * *

"I have still some hope that I shall hear from you of y^e

reinstatement of y^e _negative_--as it is certainly y^e only

means by which the several Legislatures can be restrained

from disturbing y^e order & harmony of y^e whole, & y^e

governm^t render'd properly _national_, & _one_. I should

suppose y^t some of its former opponents must by this time

have seen y^e necessity of advocating it, if they wish to

support their own principles."

(James McClurg to Madison--Mad. MSS.)

M^r Broome 2^{ded} the proposition.

M^r Sherman thought it unnecessary; the laws of the General Government

being supreme & paramount to the State laws according to the plan, as it

now stands.

M^r Madison proposed that it should be committed. He had been from the

beginning a friend to the principle; but thought the modification might

be made better.

M^r Mason wished to know how the power was to be exercised. Are all laws

whatever to be brought up? Is no road nor bridge to be established

without the Sanction of the General Legislature? Is this to sit

constantly in order to receive & revise the State Laws?--He did not mean

by these remarks to condemn the expedient, but he was apprehensive that

great objections would lie ag^{st} it.

M^r Williamson thought it unnecessary, having been already decided, a

revival of the question was a waste of time.

M^r Wilson considered this as the key-stone wanted to compleat the wide

arch of Government we are raising. The power of self-defence had been

urged as necessary for the State Governments. It was equally necessary

for the General Government. The firmness of Judges is not of itself

sufficient. Something further is requisite. It will be better to prevent

the passage of an improper law, than to declare it void when passed.

M^r Rutlidge. If nothing else, this alone would damn and ought to damn

the Constitution. Will any State ever agree to be bound hand & foot in

this manner. It is worse than making mere corporations of them whose bye

laws would not be subject to this shackle.

M^r Elseworth observed that the power contended for w^d require either

that all laws of the State Legislatures should previously to their

taking effect be transmitted to the Gen^l Legislature, or be repealable

by the Latter; or that the State Executives should be appointed by the

Gen^l Government, and have a controul over the State laws. If the last

was meditated let it be declared.

M^r Pinkney declared that he thought the State Executives ought to be so

appointed with such a controul, & that it would be so provided if

another Convention should take place.

M^r Govern^r Morris did not see the utility or practicability of the

proposition of M^r Pinkney, but wished it to be referred to the

consideration of a Committee.

M^r Langdon was in favor of the proposition. He considered it as

resolvable into the question whether the extent of the National

Constitution was to be judged of by the Gen^l or the State Governments.

On the question for commitment, it passed in the negative.

N. H. ay. Mass^{ts} no. Con^t no. N. J. no. P^a ay. Del. ay.

M^d ay. V^a ay. N. C. no. S. C. no. Geo. no.

M^r Pinkney then withdrew his proposition.

The 1^{st} sect. of Art: VII being so amended as to read "The

Legislature _shall_ fulfil the engagements and discharge the debts of

the U. S. & shall have the power to lay & collect taxes duties imposts &

excises," was agreed to.

M^r Butler expressed his dissatisfaction lest it should compel payment

as well to the Blood-suckers who had speculated on the distresses of

others, as to those who had fought & bled for their country. He would be

ready he said to-morrow to vote for a discrimination between those

classes of people, and gave notice that he should move for a

reconsideration.

Art IX Sect. 1. being resumed, to wit "The Senate of the U. S. shall

have power to make treaties, and to appoint Ambassadors, and Judges of

the Supreme Court."

M^r Madison observed that the Senate represented the States alone, and

that for this as well as other obvious reasons it was proper that the

President should be an agent in Treaties.

M^r Gov^r Morris did not know that he should agree to refer the making

of Treaties to the Senate at all, but for the present w^d move to add,

as an amendment to the section after "Treaties"--"but no Treaty shall be

binding on the U. S. which is not ratified by a law."

M^r Madison suggested the inconvenience of requiring a legal

_ratification_ of treaties of alliance for the purposes of war &c &c."

M^r Ghorum. Many other disadvantages must be experienced if treaties of

peace & all negotiations are to be previously ratified--and if not

previously, the Ministers would be at a loss how to proceed. What would

be the case in G. Britain if the King were to proceed in this manner.

American Ministers must go abroad not instructed by the same Authority

(as will be the case with other Ministers) which is to ratify their

proceedings.

M^r Gov^r Morris. As to treaties of alliance, they will oblige foreign

powers to send their ministers here the very thing we should wish for.

Such treaties could not be otherwise made, if his amendment sh^d

succeed. In general he was not solicitious to multiply & facilitate

Treaties. He wished none to be made with G. Britain, till she should be

at war. Then a good bargain might be made with her. So with other

foreign powers. The more difficulty in making treaties, the more value

will be set on them.

M^r Wilson. In the most important Treaties, the King of G. Britain being

obliged to resort to Parliament for the execution of them, is under the

same fetters as the amendment of M^r Morris' will impose on the Senate.

It was refused yesterday to permit even the Legislature to lay duties on

exports. Under the clause without the amendment, the Senate alone can

make a Treaty, requiring all the Rice of S. Carolina to be sent to some

one particular port.

M^r Dickinson concurred in the amendment, as most safe and proper, tho'

he was sensible it was unfavorable to the little States, w^{ch} would

otherwise have an _equal_ share in making Treaties.

Doc^r Johnson thought there was something of solecism in saying that the

acts of a minister with plenipotentiary powers from one Body, should

depend for ratification on another Body. The Example of the King of G.

B. was not parallel. Full & compleat power was vested in him. If the

Parliament should fail to provide the necessary means of execution, the

Treaty would be violated.

M^r Ghorum in answer to M^r Gov^r Morris, said that negotiations on the

spot were not to be desired by us, especially if the whole Legislature

is to have any thing to do with Treaties. It will be generally

influenced by two or three men, who will be corrupted by the Ambassadors

here. In such a Government as ours, it is necessary to guard against the

Government itself being seduced.

M^r Randolph observing that almost every Speaker had made objections to

the clause as it stood, moved in order to a further consideration of the

subject, that the motion of M^r Gov^r Morris should be postponed, and on

this question It was lost the States being equally divided.

Mass^{ts} no. Con^t no. N. J. ay. Pen^a ay. Del. ay. M^d ay.

V^a ay. N. C. no. S. C. no. Geo. no.

On M^r Gov^r Morris motion

Mass^{ts} no. Con^t no. N. J. no. P^a ay. Del. no. M^d no.

V^a no. N. C. div^d. S. C. no. Geo. no.

The several clauses of Sect: 1. Art IX, were then separately postponed

after inserting "and other public ministers" next after "ambassadors."

M^r Madison hinted for consideration, whether a distinction might not be

made between different sorts of Treaties--allowing the President &

Senate to make Treaties eventual and of alliance for limited terms--and

requiring the concurrence of the whole Legislature in other Treaties.

The 1^{st} Sect Art IX. was finally referred nem: con: to the committee

of Five, and the House then

Adjourned.

FRIDAY AUGUST 24. 1787. IN CONVENTION

Governour Livingston, from the Committee of Eleven, to whom were

referred the two remaining clauses of the 4^{th} Sect & the 5 & 6 Sect:

of the 7^{th}. Art: delivered in the following Report:

"Strike out so much of the 4^{th} Sect: as was referred to the

Committee and insert--'The migration or importation of such

persons as the several States now existing shall think proper to

admit, shall not be prohibited by the Legislature prior to the

year 1800, but a tax or duty may be imposed on such migration or

importation at a rate not exceeding the average of the duties

laid on imports.'"

"The 5 Sect: to remain as in the Report."

"The 6 Sect, to be stricken out."

M^r Butler, according to notice, moved that clause 1^{st} sect. 1. of

art VII, as to the discharge of debts, be reconsidered tomorrow. He

dwelt on the division of opinion concerning the domestic debts, and the

different pretensions of the different classes of holders. Gen^l Pinkney

2^{ded} him.

M^r Randolph wished for a reconsideration in order to better the

expression, and to provide for the case of the State debts as is done by

Congress.

On the question for reconsidering

N. H. no. Mass. ay. Con^t ay. N. J. ay. Pen^a absent. Del. ay.

M^d no. V^a ay. N. C. absent. S. C. ay. Geo. ay.--and tomorrow

assigned for the reconsideration.

Sect: 2 & 3 of art: IX being taken up,

M^r Rutlidge said this provision for deciding controversies between the

States was necessary under the Confederation, but will be rendered

unnecessary by the National Judiciary now to be established, and moved

to strike it out.

Doc^r Johnson 2^{ded} the motion.

M^r Sherman concurred: so did M^r Dayton.

M^r Williamson was for postponing instead of striking out, in order to

consider whether this might not be a good provision, in cases where the

Judiciary were interested or too closely connected with the parties.

M^r Ghorum had doubts as to striking out. The Judges might be connected

with the States being parties--He was inclined to think the mode

proposed in the clause would be more satisfactory than to refer such

cases to the Judiciary.

On the Question for postponing the 2^d & 3^d Section it passed in the

negative.

N. H. ay. Mass^{ts} no. Con^t no. N. J. no. Pen^a abs^t.

Del. no. M^d no. V^a no. N. C. ay. S. C. no. Geo. ay.

M^r Wilson urged the striking out, the Judiciary being a better

provision.

On Question for striking out 2 & 3 Sections Art: IX

N. H. ay. Mass. ay. C^t ay. N. J. ay. P^a abs^t. Del. ay.

M^d ay. V^a ay. N. C. no. S. C. ay. Geo. no.

Art X. Sect. 1. "The Executive power of the U. S. shall be vested in a

single person. His stile shall be "The President of the U. S. of

America" and his title shall be "His Excellency." He shall be elected by

ballot by the Legislature. He shall hold his office during the term of

seven years; but shall not be elected a second time."

On the question for vesting the power in a _single person_--It was

agreed to nem: con: So also on the _stile_ and _title_.

M^r Rutlidge moved to insert "joint" before the word "ballot," as the

most convenient mode of electing.

M^r Sherman objected to it as depriving the _States_ represented in the

_Senate_ of the negative intended them in that house.

M^r Ghorum said it was wrong to be considering at every turn whom the

Senate would represent. The public good was the true object to be kept

in view. Great delay and confusion would ensue if the two Houses sh^d

vote separately, each having a negative on the choice of the other.

M^r Dayton. It might be well for those not to consider how the Senate

was constituted, whose interest it was to keep it out of sight.--If the

amendment should be agreed to, a _joint_ ballot would in fact give the

appointment to one House. He could never agree to the clause with such

an amendment. There could be no doubt of the two Houses separately

concurring in the same person for President. The importance & necessity

of the case would ensure a concurrence.

M^r Carrol moved to strike out "by the Legislature" and insert "by the

people." M^r Wilson 2^{ded}. him & on the question

N. H. no. Mass^{ts} no. Con^t no. N. J. no. P^a ay. Del. ay.

M^d no. V^a no. N. C. no. S. C. no. Geo. no.

M^r Brearly was opposed to the motion for inserting the word "joint."

The argument that the small States should not put their hands into the

pockets of the large ones did not apply in this case.

M^r Wilson urged the reasonableness of giving the larger States a larger

share of the appointment, and the danger of delay from a disagreement of

the two Houses. He remarked also that the Senate had peculiar powers

balancing the advantage given by a joint ballot in this case to the

other branch of the Legislature.

M^r Langdon. This general officer ought to be elected by the joint &

general voice. In N. Hampshire the mode of separate votes by the two

Houses was productive of great difficulties. The negative of the Senate

would hurt the feelings of the man elected by the votes of the other

branch. He was for inserting "joint" tho' unfavorable to N. Hampshire as

a small State.

M^r Wilson remarked that as the President of the Senate was to be the

President of the U. S. that Body in cases of vacancy might have an

interest in throwing dilatory obstacles in the way, if its separate

concurrence should be required.

M^r Madison. If the amendment be agreed to the rule of voting will give

to the largest State, compared with the smallest, an influence as 4 to 1

only, altho the population is as 10 to 1. This surely cannot be

unreasonable as the President is to act for the _people_ not for the

_States_. The President of the _Senate_ also is to be occasionally

President of the U. S. and by his negative alone can make 3/4 of the

other branch necessary to the passage of a law. This is another

advantage enjoyed by the Senate.

On the question for inserting "joint," it passed in the affirmative.

N. H. ay. Mass^{ts} ay. C^t no. N. J. no. P^a ay. Del. ay.

M^d no. V^a ay. N. C. ay. S. C. ay. Geo. no.

M^r Dayton then moved to insert, after the word "Legislatures" the words

"each State having one vote." M^r Brearly 2^{ded} him, and on the

question it passed in the negative.

N. H. no. Mas. no. C^t ay. N. J. ay. P^a no. Del. ay. M^d ay.

V^a no. N. C. no. S. C. no. Geo. ay.

M^r Pinkney moved to insert after the word "Legislature" the words "to

which election a majority of the votes of the members present shall be

required" & on this question, it passed in the affirmative.

N. H. ay. Mass. ay. C^t ay. N. J. no. P^a ay. Del. ay. M^d ay.

V^a ay. N. C. ay. S. C. ay. Geo. ay.

M^r Read moved "that in case the numbers for the two highest in votes

should be equal, then the President of the Senate shall have an

additional casting vote," which was disagreed to by a general negative.

M^r Gov^r Morris opposed the election of the President by the

Legislature. He dwelt on the danger of rendering the Executive

uninterested in maintaining the rights of his Station, as leading to

Legislative tyranny. If the Legislature have the Executive dependent on

them, they can perpetuate & support their usurpations by the influence

of tax-gatherers & other officers, by fleets armies &c. Cabal &

corruption are attached to that mode of election: so also is

ineligibility a second time. Hence the Executive is interested in

Courting popularity in the Legislature by sacrificing his Executive

Rights; & then he can go into that Body, after the expiration of his

Executive office, and enjoy there the fruits of his policy. To these

considerations he added that rivals would be continually intriguing to

oust the President from his place. To guard against all these evils he

moved that the President "shall be chosen by Electors to be chosen by

the People of the several States." M^r Carrol 2^{ded} him & on the

question it passed in the negative N. H. no. Mass. no. C^t ay. N. J. ay.

P^a ay. Del. ay. M^d no. V^a ay. N. C. no. S. C. no. Geo. no.

M^r Dayton moved to postpone the consideration of the two last clauses

of Sect. 1. art X. which was disagreed to without a count of the States.

M^r Broome moved to refer the two clauses to a Committee of a member

from each State, & on the question, it failed the States being equally

divided.

N. H. no. Mas. no. C^t div^d. N. J. ay. P^a ay. Del. ay. M^d ay.

V^a ay. N. C. no. S. C. no. Geo. no.

On the question taken on the first part of M^r Gov^r

Morris's motion to wit "shall be chosen by electors"

as an abstract question, it failed the States being

equally divided,

N. H. no. Mas. abs^t. C^t div^d. N. Jersey ay. P^a ay. Del. ay.

M^d div^d. V^a ay. N. C. no. S. C. no. Geo. no.

The consideration of the remaining clauses of Sect. 1. art. X. was then

postponed till tomorrow at the instance of the Deputies of New Jersey.

Sect. 2. Art: X being taken up, the word information was transposed &

inserted after "Legislature."

On motion of M^r Gov^r Morris, "he may" was struck out, & "and" inserted

before "recommend" in the clause 2^d sect 2^d art: X. in order to make

it the _duty_ of the President to recommend, & thence prevent umbrage or

cavil at his doing it.

M^r Sherman objected to the sentence "and shall appoint officers in all

cases not otherwise provided for by this Constitution." He admitted it

to be proper that many officers in the Executive Department should be so

appointed--but contended that many ought not, as general officers in the

army in time of peace &c. Herein lay the corruption in G. Britain. If

the Executive can model the army, he may set up an absolute Government;

taking advantage of the close of a war and an army commanded by his

creatures. James 2^d was not obeyed by his officers because they had

been appointed by his predecessors not by himself. He moved to insert

"or by law" after the word "Constitution."

On motion of M^r Madison "officers" was struck out and "to offices"

inserted, in order to obviate doubts that he might appoint officers

without a previous creation of the offices by the Legislature.

On the question for inserting "or by law" as moved by M^r Sherman

N. H. no. Mas. no. C^t ay. N. J. no. Pen^a no. Del. no.

M^d no. V^a no. N. C. absent. S. C. no. Geo. no.

M^r Dickinson moved to strike out the words "and shall appoint to

offices in all cases not otherwise provided for by this Constitution"

and insert--"and shall appoint to all offices established by this

Constitution, except in cases herein otherwise provided for, and to all

offices which may hereafter be created by law."

M^r Randolph observed that the power of appointments was a formidable

one both in the Executive & Legislative hands--and suggested whether the

Legislature should not be left at liberty to refer appointments in some

cases, to some State authority.

M^r Dickenson's motion, it passed in the affirmative.

N. H. no. Mas. no. C^t ay. N. J. ay. P^a ay. Del. no. M^d ay.

V^a ay. N. C. abs^t. S. C. no. Geo. ay.

M^r Dickinson then moved to annex to his last amendment "except where by

law the appointment shall be vested in the Legislatures or Executives of

the several States." M^r Randolph 2^{ded} the motion.

M^r Wilson. If this be agreed to it will soon be a standing instruction

from the State Legislatures to pass no law creating offices, unless the

app^{ts} be referred to them.

M^r Sherman objected to "Legislatures" in the motion, which was struck

out by consent of the movers.

M^r Gov^r Morris. This would be putting it in the power of the States to

say, "You shall be viceroys but we will be viceroys over you"--

The motion was negatived without a Count of the States--

Ordered unanimously that the order respecting the adjournment at 4

OClock be repealed, & that in future the House assemble at 10 OC. &

adjourn at 3 OC.

Adjourned.

SATURDAY AUGUST 25. 1787. IN CONVENTION

The 1^{st} clause of 1 Sect. of art: VII being reconsidered

Col. Mason objected to the term "_shall_"--fullfil the engagements &

discharge the debts &c. as too strong. It may be impossible to comply

with it. The Creditors should be kept in the same plight. They will in

one respect be necessarily and properly in a better. The Government will

be more able to pay them. The use of the term _shall_ will beget

speculations and increase the pestilent practice of stock-jobbing. There

was a great distinction between original creditors & those who purchased

fraudulently of the ignorant and distressed. He did not mean to include

those who have bought Stock in open market. He was sensible of the

difficulty of drawing the line in this case, but he did not wish to

preclude the attempt. Even fair purchasers at 4. 5. 6. 8 for 1 did not

stand on the same footing with the first Holders, supposing them not to

be blameable. The interest they receive even in paper, is equal to their

purchase money. What he particularly wished was to leave the door open

for buying up the securities, which he thought would be precluded by the

term "shall" as requiring _nominal payment_, & which was not

inconsistent with his ideas of public faith. He was afraid also the word

"_shall_," might extend to all the old continental paper.

M^r Langdon wished to do no more than leave the Creditors in statu quo.

M^r Gerry said that for himself he had no interest in the question being

not possessed of more of the securities than would, by the interest, pay

his taxes. He would observe however that as the public had received the

value of the literal amount, they ought to pay that value to some body.

The frauds on _the soldiers_ ought to have been foreseen. These poor &

ignorant people could not but part with their securities. There are

other creditors who will part with any thing rather than be cheated of

the capital of their advances. The interest of the States he observed

was different on this point, some having more, others less than their

proportion of the paper. Hence the idea of a scale for reducing its

value had arisen. If the public faith would admit, of which he was not

clear, he would not object to a revision of the debt so far as to compel

restitution to the ignorant & distressed, who have been defrauded. As to

stock-jobbers he saw no reason for the censures thrown on them. They

keep up the value of the paper. Without them there would be no market.

M^r Butler said he meant neither to increase nor diminish the security

of the Creditors.

M^r Randolph moved to postpone the clause in favor of the following "All

debts contracted & engagements entered into, by or under the authority

of Cong^s shall be as valid ag^{st} the U. States under this

constitution as under the Confederation."

Doc^r Johnson. The debts are debts of the U. S. of the great Body of

America. Changing the Government cannot change the obligation of the U.

S. which devolves of course on the new Government. Nothing was in his

opinion necessary to be said. If any thing, it should be a mere

declaration as moved by M^r Randolph.

M^r Gov^r Morris, said he never had become a public Creditor that he

might urge with more propriety the compliance with public faith. He had

always done so and always would, and preferr'd the term "_shall_" as the

most explicit. As to _buying up_ the debt, the term "_shall_" was not

inconsistent with it, if provision be first made for paying the

interest: if not, such an expedient was a mere evasion. He was content

to say nothing as the New Government would be bound of course, but would

prefer the clause with the term "_shall_," because it would create many

friends to the plan.

On M^r Randolph's Motion

N. H. ay. Mas. ay. C^t ay. N. J. ay. P^a no. Del. ay. Mary^d ay.

V^a ay. N. C. ay. S. C. ay. Geo. ay.

M^r Sherman thought it necessary to connect with the clause for laying

taxes duties &c. an express provision for the object of the old debts

&c.--and moved to add to the 1^{st} clause of 1^{st} sect. art VII "for

the payment of said debts and for the defraying the expences that shall

be incurred for the common defence and general welfare."

The proposition, as being unnecessary was disagreed to, Connecticut

alone, being in the affirmative.

The Report of the Committee of eleven (see friday the 24^{th} instant)

being taken up,

Gen^l Pinkney moved to strike out the words, "the year eighteen hundred"

as the year limiting the importation of slaves, and to insert the words

"the year eighteen hundred and eight."

M^r Ghorum 2^{ded} the motion.

M^r Madison. Twenty years will produce all the mischief that can be

apprehended from the liberty to import slaves. So long a term will be

more dishonourable to the National character than to say nothing about

it in the Constitution.

On the motion; which passed in the affirmative,

N. H. ay. Mas. ay. C^t ay. N. J. no. P^a no. Del. no. M^d ay.

V^a no. N. C. ay. S. C. ay. Geo. ay.

M^r Gov^r Morris was for making the clause read at once, "the

importation of slaves into N. Carolina, S. Carolina & Georgia shall not

be prohibited &c." This he said would be most fair and would avoid the

ambiguity by which, under the power with regard to naturalization, the

liberty reserved to the States might be defeated. He wished it to be

known also that this part of the Constitution was a compliance with

those States. If the change of language however should be objected to by

the members from those States, he should not urge it.

Col. Mason was not against using the term "slaves" but ag^{st} naming N.

C. S. C. & Georgia, lest it should give offence to the people of those

States.

M^r Sherman liked a description better than the terms proposed, which

had been declined by the old Cong^s & were not pleasing to some people.

M^r Clymer concurred with M^r Sherman.

M^r Williamson said that both in opinion & practice he was against

slavery; but thought it more in favor of humanity, from a view of all

circumstances, to let in S. C. & Georgia on those terms, than to exclude

them from the Union.

M^r Gov^r Morris withdrew his motion.

M^r Dickenson wished the clause to be confined to the States which had

not themselves prohibited the importation of slaves, and for that

purpose moved to amend the clause so as to read "The importation of

slaves into such of the States as shall permit the same shall not be

prohibited by the Legislature of the U. S. until the year 1808"--which

was disagreed to nem: con:[42]

[42] In the printed Journals, Con^t Virg^a & Georgia voted in

the affirmative.--Madison's Note.

The first part of the report was then agreed to, amended as follows.

"The migration or importation of such persons as the several States now

existing shall think proper to admit, shall not be prohibited by the

Legislature prior to the year 1808."

N. H. Mas. Con. M^d N. C. S. C. Geo: ay. N. J. P^a Del.

Virg^a no.

M^r Baldwin in order to restrain & more explicitly define "the average

duty" moved to strike out of the 2^d part the words "average of the

duties laid on imports" and insert "common impost on articles not

enumerated" which was agreed to nem: cont:

M^r Sherman was ag^{st} this 2^d part, as acknowledging men to be

property, by taxing them as such under the character of slaves.

M^r King & M^r Langdon considered this as the price of the 1^{st} part.

Gen^l Pinkney admitted that it was so.

Col. Mason. Not to tax, will be equivalent to a bounty on the

importation of slaves.

M^r Ghorum thought that M^r Sherman should consider the duty, not as

implying that slaves are property, but as a discouragement to the

importation of them.

M^r Gov^r Morris remarked that as the clause now stands it implies that

the Legislature may tax freemen imported.

M^r Sherman in answer to M^r Ghorum observed that the smallness of the

duty shewed revenue to be the object, not the discouragement of the

importation.

M^r Madison thought it wrong to admit in the Constitution the idea that

there could be property in men. The reason of duties did not hold, as

slaves are not like merchandize, consumed, &c.

Col. Mason (in answ^r to Gov^r Morris) the provision as it stands was

necessary for the case of convicts in order to prevent the introduction

of them.

It was finally agreed nem. contrad: to make the clause read "but a tax

or duty may be imposed on such importation not exceeding ten dollars for

each person," and then the 2^d part as amended was agreed to.

Sect 5. art. VII was agreed to nem: con: as reported.

Sect. 6. art. VII. in the Report, was postponed.

On motion of M^r Madison 2^{ded} by M^r Gov^r Morris Article VIII was

reconsidered and after the words "all treaties made," were inserted nem:

con: the words "or which shall be made." This insertion was meant to

obviate all doubt concerning the force of treaties preexisting, by

making the words "all treaties made" to refer to them, as the words

inserted would refer to future treaties.

M^r Carrol and M^r L. Martin expressed their apprehensions, and the

probable apprehensions of their constituents, that under the power of

regulating trade the General Legislature, might favor the ports of

particular States, by requiring vessels destined to or from other States

to enter & clear thereat, as vessels belonging or bound to Baltimore, to

enter & clear at Norfolk &c. They moved the following proposition

"The Legislature of the U. S. shall not oblige vessels belonging

to citizens thereof, or to foreigners, to enter or pay duties or

imposts in any other State than in that to which they may be

bound, or to clear out in any other than the State in which

their cargoes may be laden on board; nor shall any privilege or

immunity be granted to any vessel on entering or clearing out,

or paying duties or imposts in one State in preference to

another."

M^r Ghorum thought such a precaution unnecessary; & that the revenue

might be defeated, if vessels could run up long rivers, through the

jurisdiction of different States without being required to enter, with

the opportunity of landing & selling their cargoes by the way.

M^r M^cHenry & Gen^l Pinkney made the following propositions

"Should it be judged expedient by the Legislature of the U. S.

that one or more port for collecting duties or imposts other

than those ports of entrance & clearance already established by

the respective States, should be established, the Legislature of

the U. S. shall signify the same to the Executives of the

respective States, ascertaining the number of such ports judged

necessary; to be laid by the said Executives before the

Legislatures of the States at their next session; and the

Legislature of the U. S. shall not have the power of fixing or

establishing the particular ports for collecting duties or

imposts in any State, except the Legislature of such State shall

neglect to fix and establish the same during their first session

to be held after such notification by the Legislature of the U.

S. to the Executive of such State."

"All duties imposts & excises, prohibitions or restraints laid

or made by the Legislature of the U. S. shall be uniform & equal

throughout the U. S."

These several propositions were referred nem: con: to a committee

composed of a member from each State. The committee appointed by ballot

were M^r Langdon, M^r Ghorum, M^r Sherman, M^r Dayton, M^r Fitzimmons,

M^r Read, M^r Carrol, M^r Mason, M^r Williamson, M^r Butler, M^r Few.

On the question now taken on M^r Dickinson's motion of yesterday,

allowing appointments to offices, to be referred by the Gen^l

Legislature to the Executives of the several States as a further

amendment to sect. 2. art. X, the votes were

N. H. no. Mas. no. C^t ay. P^a no. Del. no. M^d divided. V^a ay.

N. C. no. S. C. no. Geo. ay.

In amendment of the same section, "other public Ministers" were inserted

after "ambassadors."

M^r Gov^r Morris moved to strike out of the section--"and may correspond

with the supreme Executives of the several States" as unnecessary and

implying that he could not correspond with others. M^r Broome 2^{ded}

him.

On the question

N. H. ay. Mas. ay. C^t ay. P^a ay. Del. ay. M^d no. V^a ay.

N. C. ay. S. C. ay. Geo. ay.

"Shall receive ambassadors & other public Ministers," agreed to, nem.

con.

M^r Sherman moved to amend the "power to grant reprieves & pardon" so as

to read "to grant reprieves until the ensuing session of the Senate, and

pardons with consent of the Senate."

On the question

N. H. no. Mas. no. C^t ay. P^a no. M^d no. V^a no. N. C. no.

S. C. no. Geo. no.

"except in cases of impeachment" inserted nem. con: after "pardon."

On the question to agree to--"but his pardon shall not be pleadable in

bar"

N. H. ay. Mas. no. C^t no. P^a no. Del. no. M^d ay. V^a no.

N. C. ay. S. C. ay. Geo. no.

Adjourned.

MONDAY AUG^{ST} 27^{TH}. 1787. IN CONVENTION

Art X. Sect 2. being resumed,

M^r L. Martin moved to insert the words "after conviction" after the

words "reprieves and pardons."

M^r Wilson objected that pardon before conviction might be necessary in

order to obtain the testimony of accomplices. He stated the case of

forgeries in which this might particularly happen.--M^r L. Martin

withdrew his motion.

M^r Sherman moved to amend the clause giving the Executive the command

of the Militia, so as to read "and of the Militia of the several States,

_when called into the actual service of the U. S._" and on the Question

N. H. ay. Mas. abs^t. C^t ay. N. J. abs^t. P^a ay. Del. no.

M^d ay. V^a ay. N. C. abs^t. S. C. no. Geo. ay.

The clause for removing the President on impeachment by the House of

Rep^s and conviction in the supreme Court, of Treason, Bribery or

corruption, was postponed nem: con: at the instance of M^r Gov^r Morris,

who thought the Tribunal an improper one, particularly, if the first

Judge was to be of the privy Council.

M^r Gov^r Morris objected also to the President of the Senate being

provisional successor to the President, and suggested a designation of

the Chief Justice.

M^r Madison added as a ground of objection that the Senate might retard

the appointment of a President in order to carry points whilst the

revisionary power was in the President of their own body, but suggested

that the Executive powers during a vacancy, be administered by the

persons composing the Council to the President.

M^r Williamson suggested that the Legislature ought to have power to

provide for occasional successors, & moved that the last clause (of 2

sect. X art:) relating to a provisional successor to the President, be

postponed.

M^r Dickinson 2^{ded} the postponement, remarking that it 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 & M^r 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 U. S."

M^r Wilson thought the general provision for oaths of office, in a

subsequent place, rendered the amendment unnecessary.--

On the question

N. H. ay. Mas. abs^t. C^t ay. P^a ay. Del. no. M^d ay. V^a ay.

N. C. abs^t. S. C. ay. Geo. ay.

Art: XI. being taken up.

Doc^r 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 "U. S." in the 1^{st} line of sect 1.

M^r Read objected to vesting these powers in the same Court.

On the question

N. H. ay. Mas. absent. C^t ay. N. J. abs^t. P. ay. Del. no.

M^d no. Virg^a ay. N. C. abs^t. S. C. ay. Geo. ay.

On the question to agree to Sect. 1. art. XI. as amended

N. H. ay. Mas. abs^t. C^t ay. P^a ay. N. J. abs^t. Del. no.

M^d no. V^a ay. N. C. abs^t. S. C. ay. Geo. ay.

M^r Dickinson moved as an amendment to sect. 2. art XI 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."

M^r Gerry 2^{ded} the motion.

M^r Gov^r 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.

M^r 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.

M^r Rutlidge. If the Supreme Court is to judge between the U. S. and

particular States, this alone is an insuperable objection to the motion.

M^r Wilson considered such a provision in the British Government as less

dangerous than here, the House of Lords & 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 Gov^t.

M^r Randolph opposed the motion as weakening too much the independence

of the Judges.

M^r 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 M^r Dickinson's Motion

N. H. no. Mas. abs^t. C^t ay. N. J. abs^t. P^a no. Del. no.

M^d no. V^a no. N. C. abs^t. S. C. no. Geo. no.

M^r Madison and M^r M^cHenry moved to reinstate the words "increased or"

before the word "diminished" in 2^d sect, art. XI.

M^r Gov^r 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^l Pinkney. The importance of the Judiciary will require men of the

first talents: large salaries will therefore be necessary, larger than

the U. S. can allow 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.

M^r Gov^r Morris said the expedient might be evaded & therefore amounted

to nothing. Judges might resign, & then be re-appointed to increased

salaries.

On the question

N. H. no. C^t no. P^a no. Del. no. M^d div^d. V^a ay. S. C. no.

Geo. abs^t also Mas^{ts}. & N. J. & N. C.

M^r Randolph & M^r Madison then moved to add the following words to art.

XI 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

N. H. no. C^t no. P^a no. Del. no. M^d ay. V^a ay. S. C. no.

Geo. abs^t also Mas. N. J. & N. C.

Sect. 3. art. XI. being taken up, the following clause was postponed

viz, "to the trial of impeachments of officers of the U. S." by which

the jurisdiction of the supreme Court was extended to such cases.

M^r Madison & M^r Gov^r Morris moved to insert after the word

"controversies" the words "to which the U. S. shall be a party," which

was agreed to nem: con:

Doc^r Johnson moved to insert the words "this Constitution and the"

before the word "laws."

M^r Madison doubted whether it was not going too far to extend the

jurisdiction of the Court generally to cases arising under the

Constitution & 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 Doc^r 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 M^r Rutlidge the words "passed by the Legislature" were

struck out, and after the words "U. S." 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.

M^r Gov^r 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.

M^r Wilson. The Committee he believed meant facts as well as law &

Common as well as Civil law. The jurisdiction of the federal Court of

Appeals had he said been so construed.

M^r Dickinson moved to add after the word "appellate" the words "both as

to law & fact" which was agreed to nem: con:

M^r Madison & M^r Gov^r Morris moved to strike out the beginning of the

3^d sect. "The jurisdiction of the supreme Court" & 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" Del. Virg^a ay. N. H. Con.

P. M. S. C. G. no.

On a question for striking out the last sentence of the sect. 3. "The

Legislature may assign &c."

N. H. ay. C^t ay. P^a ay. Del. ay. M^d ay. V^a ay. S. C. ay.

Geo. ay.

M^r 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 Art: of the Confederation--which was agreed to nem:

con:

Adjourned.

TUESDAY AUGUST 28 1787. IN CONVENTION

M^r Sherman from the Committee to whom were referred several

propositions on the 25^{th} instant, made the following report:--

That there be inserted after the 4 clause of 7^{th}. section

"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 & excises laid by

the Legislature shall be uniform throughout the U. S."

Art XI Sect. 3, It was moved to strike out the words "it shall be

appellate" 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

N. H. ay. Mas. ay. C^t ay. N. J. abs^t. P^a ay. Del. ay. M^d no.

V^a ay. N. C. ay. S. C. ay. Geo. ay.

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.

M^r Pinkney urged 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, & then only for a limited time not

exceeding twelve months."

M^r Rutlidge was for declaring the Habeas Corpus inviolable. He did not

conceive that a suspension could ever be necessary at the same time

through all the States.

M^r Gov^r 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."

M^r 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 M^r Gov^r Morris' motion, to the word "unless" was

agreed to nem: con:--on the remaining part;

N. H. ay. Mas. ay. C^t ay. P^a ay. Del. ay. M^d ay. V^a ay.

N. C. no. S. C. no. Geo. no.

Sec. 5. of art: XI. was agreed to _nem_: con.[43]

[43] The vote on this section as stated in the printed Journal

is not unanimous: the statement here is probably the right

one.--Madison's Note.

Art: XII being taken up.

M^r Wilson & M^r 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._

M^r Ghorum thought the purpose would be as well secured by the

provisions of art: XIII which makes the consent of the Gen^l 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.

M^r 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 1^{st} part--"nor emit bills of

credit" N. H. ay. Mas. ay. C^t ay. P^a ay. Del. ay. M^d div^d. V^a no.

N. C. ay. S. C. ay. Geo. ay.

The remaining part of M^r Wilson's & Sherman's motion was agreed to nem:

con:

M^r King moved to add, in the words used in the Ordinance of Cong^r

establishing new States, a prohibition on the States to interfere in

private contracts.

M^r Gov^r 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.

M^r Sherman. Why then prohibit bills of credit?

M^r Wilson was in favor of M^r King's motion.

M^r 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

& 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?

M^r Wilson. The answer to these objections is that retrospective

interferences only are to be prohibited.

M^r 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.

M^r Rutlidge moved instead of M^r King's Motion to insert--"nor pass

bills of attainder nor retrospective[44] laws" on which motion

N. H. ay. C^t no. N. J. ay. P^a ay. Del. ay. M^d no. Virg^a no.

N. C. ay. S. C. ay. Geo. ay.

[44] In the printed Journal--ex post facto.--Madison's Note.

M^r Madison moved to insert after the word "reprisal" (art. XII) the

words "nor lay embargoes." He urged that such acts by the States would

be unnecessary--impolitic--and unjust.

M^r Sherman thought the States ought to retain this power in order to

prevent suffering & injury to their poor.

Col: Mason thought the amendment would be not only improper but

dangerous, as the Gen^l Legislature would not sit constantly and

therefore could not interpose at the necessary moments. He enforced his

objection by appealing to the necessity of sudden embargoes during the

war, to prevent exports, particularly in the case of a blockade.

M^r Gov^r Morris considered the provision as unnecessary; the power of

regulating trade between State & State already vested in the Gen^l

Legislature, being sufficient.

On the question

N. H. no. Mas. ay. C^t no. N. J. no. P^a no. Del. ay. M^d no.

V^a no. N. C. no. S. C. ay. Geo. no.

M^r Madison moved that the words "nor lay imposts or duties on imports"

be transferred from art: XIII where the consent of the Gen^l Legislature

may license the act--into art: XII which will make the prohibition of

the States absolute. He observed that as the States interested in this

power by which they could tax the imports of their neighbors passing

thro' their markets, were a majority, they could give the consent of the

Legislature, to the injury of N. Jersey, N. Carolina &c.

M^r Williamson 2^{ded} the motion.

M^r Sherman thought the power might safely be left to the Legislature of

the U. States.

Col: Mason observed that particular States might wish to encourage by

impost duties certain manufactures for which they enjoyed natural

advantages, as Virginia, the manufacture of Hemp &c.

M^r Madison. 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 Gen^l Government over commerce.[45]

[45] August 28, 1787, New York, Hamilton wrote to King: "I wrote

to you some days since [August 20] to request you to inform

me when there was a prospect of your finishing, as I

intended to be with you, for certain reasons, before the

conclusion.

"It is whispered here that some late changes in your scheme

have taken place which give it a higher tone. Is this the

case?"--King's _Life and Correspondence of Rufus King_, _I_,

258.

On the question

N. H. ay. Mas. no. C^t no. N. J. ay. P^a no. Del^a ay. M^d no.

V^a no. N. C. ay. S. C. no. Geo. no.

Art: XII as amended agreed to nem: con:

Art: XIII being taken up. M^r King moved to insert after the word

"imports" the words "or exports," so as to prohibit the States from

taxing either, & on this question it passed in the affirmative.

N. H. ay. Mas. ay. C^t no. N. J. ay. P. ay. Del. ay. M^d no.

V^a no. N. C. ay. S. C. no. Geo. no.

M^r Sherman moved to add after the word "exports"--the words "nor with

such consent but for the use of the U. S."--so as to carry the proceeds

of all State duties on imports & exports, into the common Treasury.

M^r Madison liked the motion as preventing all State imposts--but

lamented the complexity we were giving to the commercial system.

M^r Gov^r Morris thought the regulation necessary to prevent the

Atlantic States from endeavoring to tax the Western States--& promote

their interest by opposing the navigation of the Mississippi which would

drive the Western people into the arms of G. Britain.

M^r Clymer thought the encouragement of the Western Country was suicide

on 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.

M^r King was afraid that the regulation moved by M^r Sherman would too

much interfere with the policy of States respecting their manufactures,

which may be necessary. Revenue he reminded the House was the object of

the general Legislature.

On M^r Sherman's motion

N. H. ay. Mas. no. C^t ay. N. J. ay. P^a ay. Del. ay. M^d no.

V^a ay. N. C. ay. S. C. ay. Geo. ay.

Art XIII was then agreed to as amended.

Art. XIV was taken up.

Gen^l Pinkney was not satisfied with it. He seemed to wish some

provision should be included in favor of property in slaves.

On the question on Art: XIV.

N. H. ay. Mas. ay. C^t ay. N. J. ay. P^a ay. Del. ay. M^d ay. V^a ay. N.

C. ay. S. C. no. Geo. divided.

Art: XV. being taken up, the words "high misdemesnor," were struck out,

and "other crime" inserted, in order to comprehend all proper cases; it

being doubtful whether "high misdemeanor" had not a technical meaning

too limited.

M^r Butler and M^r Pinkney moved "to require fugitive slaves and

servants to be delivered up like criminals."

M^r Wilson. This would oblige the Executive of the State to do it at the

public expence.

M^r Sherman saw no more propriety in the public seizing and surrendering

a slave or servant, than a horse.

M^r Butler withdrew his proposition in order that some particular

provision might be made apart from this article.

Art XV as amended was then agreed to nem: con:

Adjourned.

WEDNESDAY AUGUST 29^{TH}. 1787. IN CONVENTION

Art: XVI. taken up.

M^r Williamson moved to substitute in place of it, the words of the

Articles of Confederation on the same subject. He did not understand

precisely the meaning of the article.

M^r Wilson and Doc^r Johnson supposed the meaning to be that Judgments

in one State should be the ground of actions in other States, & that

acts of the Legislatures should be included, for the sake of Acts of

insolvency &c.

M^r Pinkney moved to commit Art XVI with the following proposition "To

establish uniform laws upon the subject of bankruptcies, and respecting

the damages arising on the protest of foreign bills of exchange."

M^r Ghorum was for agreeing to the article, and committing the

proposition.

M^r Madison was for committing both. He wished the Legislature might be

authorized to provide for the _execution_ of Judgments in other States,

under such regulations as might be expedient. He thought that this might

be safely done, and was justified by the nature of the Union.

M^r Randolph said there was no instance of one nation executing

judgments of the Courts of another nation. He moved the following

proposition:

Executive or Judiciary shall be attested & exemplified under the

seal thereof, such attestation and exemplification, shall be

deemed in other States as full proof of the existence of that

act--and its operation shall be binding in every other State, in

all cases to which it may relate, and which are within the

cognizance and jurisdiction of the State, wherein the said act

was done."

On the question for committing Art: XVI with M^r Pinkney's motion

N. H. no. Mas. no. C^t ay. N. J. ay. P^a ay. Del. ay. M^d ay.

V^a ay. P^a ay. N. C. ay. S. C. ay. Geo. ay.

The motion of M^r Randolph was also committed nem: con:

M^r Gov^r Morris moved to commit also the following proposition on the

same subject.

"Full faith ought to be given in each State to the public acts,

records, and judicial proceedings of every other State; and the

Legislature shall by general laws, determine the proof and

effect of such acts, records, and proceedings" and it was

committed nem. contrad:

The Committee appointed for these references, were M^r Rutlidge, M^r

Randolph, M^r Gorham, M^r Wilson, & M^r Johnson.

M^r Dickenson mentioned to the House that on examining Blackstone's

Commentaries, he found that the term "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.

Art: VII Sect. 6 by y^e Co[~m]ittee of eleven reported to be struck out

(see the 24 instant) being now taken up.

M^r Pinkney moved to postpone the Report in favor of the following

proposition--"That no act of the Legislature for the purpose of

regulating the commerce of the U. S. with foreign powers among the

several States, shall be passed without the assent of two thirds of the

members of each House." He remarked that there were five distinct

commercial interests. 1. the fisheries & W. India trade, which belonged

to the N. England States. 2. the interest of N. York lay in a free

trade. 3. Wheat & flour the Staples of the two middle States (N. J. &

Penn^a). 4. Tob^o the staple of Maryl^d & Virginia & partly of N.

Carolina. 5. Rice & Indigo, the staples of S. Carolina & Georgia. These

different interests would be a source of oppressive regulations if no

check to a bare majority should be provided. States pursue their

interests with less scruple than individuals. The power of regulating

commerce was a pure concession on the part of the S. States. They did

not need the protection of the N. States at present.

M^r Martin 2^{ded} the motion.

Gen^l Pinkney said it was the true interest of the S. States to have no

regulation of commerce; but considering the loss brought on the commerce

of the Eastern States by the revolution, their liberal conduct towards

the views[46] of South Carolina, and the interest the weak South^n