Thursday August 30th 1787. In Convention

Art XVII resumed for a question on it as amended by M^r Gov^r Morris's substitutes.

M^r Carrol moved to strike out so much of the article as requires the consent of the State to its being divided. He was aware that the object of this prerequisite might be to prevent domestic disturbances; but such was our situation with regard to the Crown lands, and the sentiments of Maryland on that subject, that he perceived we should again be at sea, if no guard was provided for the right of the U. States to the back lands. He suggested that it might be proper to provide that nothing in the Constitution should affect the Right of the U. S. to lands ceded by G. Britain in the Treaty of peace, and proposed a committment to a member from each State. He assured the House that this was a point of a most serious nature. It was desirable above all things that the act of the Convention might be agreed to unanimously. But should this point be disregarded, he believed that all risks would be run by a considerable minority, sooner than give their concurrence.

M^r L. Martin 2^ded the motion for a commitment.

M^r Rutlidge. Is it to be supposed that the States are to be cut up without their own consent. The case of Vermont will probably be particularly provided for. There could be no room to fear, that Virginia or N. Carolina would call on the U. States to maintain their Government over the Mountains.

M^r Williamson said that N. Carolina was well disposed to give up her western lands, but attempts at compulsion was not the policy of the U. S. He was for doing nothing in the constitution in the present case, and for leaving the whole matter in Statu quo.

M^r Wilson was against the commitment. Unanimity was of great importance, but not to be purchased by the majority's yielding to the minority. He should have no objection to leaving the case of the new States as heretofore. He knew nothing that would give greater or juster alarm than the doctrine, that a political society is to be torn assunder without its own consent.

On M^r Carrol's motion for commitment

N. H. no. Mas. 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 Sherman moved to postpone the substitute for Art: XVII agreed to yesterday in order to take up the following amendment

"The Legislature shall have power to admit other States into the Union, and new States to be formed by the division or junction of States now in the Union, with the consent of the Legislature of such States." (The first part was meant for the case of Vermont to secure its admission.)

On the question, it passed in the negative.

N. H. ay. Mas. ay. C^t ay. N. J. no. P^a ay. Del. no. M^d no. V^a no. N. C. no. S. C. ay. Geo. no.

Doc^r Johnson moved to insert the words "hereafter formed or" after the words "shall be" in the substitute for Art: XVII (the more clearly to save Vermont as being already formed into a State, from a dependence on the consent of N. York for her admission.) The motion was agreed to Del. & M^d only dissenting.

M^r Gov^r Morris moved to strike out the word "limits" in the substitute, and insert the word "jurisdiction". (This also was meant to guard the case of Vermont, the jurisdiction of N. York not extending over Vermont which was in the exercise of sovereignty, tho' Vermont was within the asserted limits of New York.)

On this question

N. H. ay. Mas. ay. C^t ay. N. J. no. P^a ay. Del. ay. M^d ay. V^a ay. N. C. no. S. C. no. Geo. no.

M^r L. Martin urged the unreasonableness of forcing & guaranteeing the people of Virginia beyond the Mountains, the Western people of N. Carolina & of Georgia, & the people of Maine, to continue under the States now governing them, without the consent of those States to their separation. Even if they should become the majority, the majority of Counties, as in Virginia may still hold fast the dominion over them. Again the majority may place the seat of Government entirely among themselves & for their own conveniency, and still keep the injured parts of the States in subjection, under the guarantee of the Gen^l Government ag^st domestic violence. He wished M^r Wilson had thought a little sooner of the value of political bodies. In the beginning, when the rights of the small States were in question, they were phantoms, ideal beings. Now when the Great States were to be affected, political societies were of a sacred nature. He repeated and enlarged on the unreasonableness of requiring the small States to guarantee the Western claims of the large ones.–It was said yesterday by M^r Gov^r Morris, that if the large States were to be split to pieces without their consent, their representatives here would take their leave. If the Small States are to be required to guarantee them in this manner, it will be found that the Representatives of other States will with equal firmness take their leave of the Constitution on the table.

It was moved by M^r L. Martin to postpone the substituted article, in order to take up the following.

"The Legislature of the U. S. shall have power to erect New States within as well as without the territory claimed by the several States or either of them, and admit the same into the Union: provided that nothing in this Constitution shall be construed to affect the claim of the U. S. to vacant lands ceded to them by the late treaty of peace, which passed in the negative: N. J. Del. & M^d only ay.

On the question to agree to M^r Gov^r Morris's substituted article as amended in the words following.

"New States may be admitted by the Legislature into the Union: but no new State shall be hereafter formed or erected within the jurisdiction of any of the present States without the consent of the Legislature of such State as well as of the General Legislature"

N. H. ay. Mas. 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. ay.

M^r Dickinson moved to add the following clause to the last—

"Nor shall any State be formed by the junction of two or more States or parts thereof, without the consent of the Legislature of such States, as well as of the Legislature of the U. States," which was agreed to without a count of the votes.

M^r Carrol moved to add–"Provided nevertheless that nothing in this Constitution shall be construed to affect the claim of the U. S. to vacant lands ceded to them by the Treaty of peace." This he said might be understood as relating to lands not claimed by any particular States, but he had in view also some of the claims of particular States.

M^r Wilson was ag^st the motion. There was nothing in the Constitution affecting one way or the other the claims of the U. S. & it was best to insert nothing, leaving every thing on that litigated subject in statu quo.

M^r Madison considered the claim of the U. S. as in fact favored by the jurisdiction of the Judicial power of the U. S. over controversies to which they should be parties. He thought it best on the whole to be silent on the subject. He did not view the proviso of Mr. Carrol as dangerous; but to make it neutral & fair, it ought to go further & declare that the claims of particular States also should not be affected.

M^r Sherman thought the proviso harmless, especially with the addition suggested by M^r Madison in favor of the claims of particular States.

M^r Baldwin did not wish any undue advantage to be given to Georgia. He thought the proviso proper with the addition proposed. It should be remembered that if Georgia has gained much by the cession in the Treaty of peace, she was in danger during the war of a Uti possidetis.

M^r Rutlidge thought it wrong to insert a proviso where there was nothing which it could restrain, or on which it could operate.

M^r Carrol withdrew his motion and moved the following.

"Nothing in this Constitution shall be construed to alter the claims of the U. S. or of the individual States to the Western territory, but all such claims shall be examined into & decided upon, by the Supreme Court of the U. States."

M^r Gov^r Morris moved to postpone this in order to take up the following.

"Nothing in this Constitution shall be construed to alter the claims of the U. S. or of the individual States to the Western territory, but all such claims shall be examined into & decided upon, by the Supreme Court of the U. States."

M^r L. Martin moved to amend the proposition of M^r Gov^r Morris by adding–"But all such claims may be examined into & decided upon by the supreme Court of the U. States."

M^r Gov^r Morris. this is unnecessary, as all suits to which the U. S. are parties, are already to be decided by the Supreme Court.

M^r L. Martin. it is proper in order to remove all doubts on this point.

Question on M^r L. Martin's amendatory motion

N. H. no. Mas. no. C^t no. N. J. ay. P^a no. Del. no. M^d ay. V^a no.–States not farther called the negatives being sufficient & the point given up.

The Motion of M^r Gov^r Morris was then agreed to, M^d alone dissenting.

Art: XVIII being taken up,–the word "foreign" was struck out nem: con: as superfluous, being implied in the term "invasion."

M^r Dickinson moved to strike out "on the application of its Legislature, against." He thought it of essential importance to the tranquility of the U. S. that they should in all cases suppress domestic violence, which may proceed from the State Legislature itself, or from disputes between the two branches where such exist.

M^r Dayton mentioned the Conduct of Rho: Island as shewing the necessity of giving latitude to the power of the U. S. on this subject.

On the question

N. H. no. Mas. 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.

On a question for striking out "domestic violence" and insert^g "insurrections–" It passed in the negative.

N. H. no. Mas. no. C^t no. N. J. ay. P^a no. Del. no. M^d no. V^a ay. N. C. ay. S. C. ay. Geo. ay.

M^r Dickinson moved to insert the words, "or Executive" after the words "application of its Legislature."–The occasion itself he remarked might hinder the Legislature from meeting.

On this question

N. H. ay. Mas. no. C^t ay. N. J. ay. P^a ay. Del. ay. M^d div^d. V^a no. N. C. ay. S. C. ay. Geo. ay.

M^r L. Martin moved to subjoin to the last amendment the words "in the recess of the Legislature." On which question

N. H. no. Mas. no. C^t no. P^a no. Del. no. M^d ay. V^a no. N. C. no. S. C. no. Geo. no.

On Question on the last clause as amended

N. H. ay. Mas. ay. C^t ay. N. J. ay. P^a ay. Del. no. M^d no. V^a ay. N. C. ay. S. C. ay. Geo. ay.

Art: XIX taken up.

M^r Gov^r Morris suggested that the Legislature should be left at liberty to call a Convention, whenever they please.

The Art: was agreed to nem: con:

Art: XX. taken up.–"or affirmation" was added after "oath."

M^r Pinkney moved to add to the Art:–"but no religious test shall ever be required as a qualification to any office or public trust under the authority of the U. States."

M^r Sherman thought it unnecessary, the prevailing liberality being a sufficient security ag^st such tests.

M^r Gov^r Morris & Gen^l Pinkney approved the motion.

The motion was agreed to nem: con: and then the whole Article; N. C. only no–and M^d divided.

Art: XXI. taken up, viz: "The ratifications of the Conventions of –— States shall be sufficient for organizing this Constitution."

M^r Wilson proposed to fill the blank with "seven" that being a majority of the whole number & sufficient for the commencement of the plan.

M^r Carrol moved to postpone the article in order to take up the Report of the Committee of Eleven (see Tuesday Aug^st 28)–and on the question

N. H. no. Mas. 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 Gov^r Morris thought the blank ought to be filled in a twofold way, so as to provide for the event of the ratifying States being contiguous which would render a smaller number sufficient, and the event of their being dispersed, which w^d require a greater number for the introduction of the Government.

M^r Sherman observed that the States being now confederated by articles which require unanimity in changes, he thought the ratification in this case of ten States at least ought to be made necessary.

M^r Randolph was for filling the blank with "nine" that being a respectable majority of the whole, and being a number made familiar by the constitution of the existing Congress.

M^r Wilson mentioned "eight" as preferable.

M^r Dickinson asked whether the concurrence of Congress is to be essential to the establishment of the system, whether the refusing States in the Confederacy could be deserted–and whether Congress could concur in contravening the system under which they acted?

M^r Madison, remarked that if the blank should be filled with "seven" "eight," or "nine," the Constitution as it stands might be put in force over the whole body of the people, tho' less than a majority of them should ratify it.

M^r Wilson. As the Constitution stands, the States only which ratify can be bound. We must he said in this case go to the original powers of Society. The House on fire must be extinguished, without a scrupulous regard to ordinary rights.

M^r Butler was in favor of "nine." He revolted at the idea, that one or two States should restrain the rest from consulting their safety.

M^r Carrol moved to fill the blank with "the thirteen," unanimity being necessary to dissolve the existing confederacy which had been unanimously established.

M^r King thought this amend^t necessary, otherwise as the Constitution now stands it will operate on the whole though ratified by a part only. Adjourned.

Friday August 31^st 1787. In Convention.

M^r King moved to add to the end of Art: XXI the words "between the said States" so as to confine the operation of the Gov^t to the States ratifying it.

On the question

N. H. ay. Mas. ay. C^t ay. N. J. ay. P^a ay. M^d no. Virg^a ay. N. C. ay. S. C. ay. Geo. ay.

M^r Madison proposed to fill the blank in the article with "any seven or more States entitled to thirty three members at least in the House of Representatives according to the allotment made in the 3 Sect: of Art: 4." This he said would require the concurrence of a majority of both the States and the people.

M^r Sherman doubted the propriety of authorizing less than all the States to execute the Constitution, considering the nature of the existing Confederation. Perhaps all the States may concur, and on that supposition it is needless to hold out a breach of faith.

M^r Clymer and M^r Carrol moved to postpone the consideration of Art: XXI in order to take up the Reports of Committees not yet acted on. On this question, the States were equally divided.

N. H. ay. Mas. no. C^t div^d. N. J. no. P^a ay. Del. ay. M^d ay. V^a no. N. C. no. S. C. no. G. ay.

M^r Gov^r Morris moved to strike out "Conventions of the" after "ratifications" leaving the States to pursue their own modes of ratification.

M^r Carrol mentioned the mode of altering the Constitution of Maryland pointed out therein, and that no other mode could be pursued in that State.

M^r King thought that striking out "Conventions," as the requisite mode was equivalent to giving up the business altogether. Conventions alone, which will avoid all the obstacles from the complicated formation of the Legislatures, will succeed, and if not positively required by the plan its enemies will oppose that mode.

M^r Gov^r Morris said he meant to facilitate the adoption of the plan, by leaving the modes approved by the several State Constitutions to be followed.

M^r Madison considered it best to require Conventions; Among other reasons, for this, that the powers given to the Gen^l Gov^t being taken from the State Gov^ts the Legislatures would be more disinclined than conventions composed in part at least of other men; and if disinclined, they could devise modes apparently promoting, but really thwarting the ratification. The difficulty in Maryland was no greater than in other States, where no mode of change was pointed out by the Constitution, and all officers were under oath to support it. The people were in fact, the fountain of all power, and by resorting to them, all difficulties were got over. They could alter constitutions as they pleased. It was a principle in the Bills of rights, that first principles might be resorted to.

M^r M^cHenry said that the officers of Gov^t in Maryland were under oath to support the mode of alteration prescribed by the Constitution.

M^r Ghorum urged the expediency of "Conventions" also M^r Pinkney, for reasons formerly urged on a discussion of this question.

M^r L. Martin insisted on a reference to the State Legislatures. He urged the danger of commotions from a resort to the people & to first principles, in which the Governments might be on one side and the people on the other. He was apprehensive of no such consequences however in Maryland, whether the Legislature or the people should be appealed to. Both of them would be generally against the Constitution. He repeated also the peculiarity in the Maryland Constitution.

M^r King observed that the Constitution of Massachusetts was made unalterable till the year 1790, yet this was no difficulty with him. The State must have contemplated a recurrence to first principles before they sent deputies to this Convention.

M^r Sherman moved to postpone art. XXI. & to take up art: XXII on which question,

N. H. no. Mas. no. C^t ay. N. J. no. P. ay. Del. ay. M^d ay. V^a ay. N. C. no. S. C. no. Geo. no.

On M^r Gov^r Morris's motion to strike out "Conventions of the," it was negatived.

N. H. no. Mas. no. C^t ay. N. J. no. P^a ay. Del. no. M^d ay. V^a no. S. C. no. Geo. ay.

On filling the blank in Art: XXI with "thirteen" moved by Mr. Carrol & Martin, N. H. no. Mas. no. C^t no, all except Maryland.

M^r Sherman & M^r Dayton moved to fill the blank with "ten."

M^r Wilson supported the motion of M^r Madison, requiring a majority both of the people and of States. M^r Clymer was also in favor of it.

Col: Mason was for preserving ideas familiar to the people. Nine States had been required in all great cases under the Confederation & that number was on that account preferable.

On the question for "ten"

N. H. no. Mas. no. C^t ay. N. J. ay. P^a no. Del. no. M^d ay. V^a no. N. C. no. S. C. no. Geo. ay.

On question for "nine"

N. H. ay. Mas. ay. C^t ay. N. J. ay. P^a ay. Del. ay. M^d ay. V^a no. N. C. no. S. C. no. Geo. ay.

Art: XXI. as amended was then agreed to by all the States, Maryland excepted, & M^r Jenifer being ay.

Art. XXII taken up, to wit, "This Constitution shall be laid before the U. S. in Cong^s assembled for their approbation; and it is the opinion of this Convention that it should be afterwards submitted to a Convention chosen, in each State under the recommendation of its Legislature, in order to receive the ratification of such Convention."

M^r Gov^r Morris & M^r Pinkney moved to strike out the words "for their approbation." On this question

N. H. ay. Mas. no. C^t ay. N. J. ay. [47] P^a ay. Del. ay. M^d no. V^a ay. N. C. ay. S. C. ay. Geo. no.

[ [47] In the printed Journal N. Jersey–no.–Madison's Note.

M^r Gov^r Morris & M^r Pinkney then moved to amend the art: so as to read

"This Constitution shall be laid before the U. S. in Congress assembled; and it is the opinion of this Convention that it should afterwards be submitted to a Convention chosen in each State, in order to receive the ratification of such Convention; to which end the several Legislatures ought to provide for the calling Conventions within their respective States as speedily as circumstances will permit."

M^r Gov^r Morris said his object was to impress in stronger terms the necessity of calling Conventions in order to prevent enemies to the plan, from giving it the go by. When it first appears, with the sanction of this Convention, the people will be favorable to it. By degrees the State officers, & those interested in the State Gov^ts will intrigue & turn the popular current against it.

M^r L. Martin believed M^r Morris to be right, that after a while the people would be ag^st it, but for a different reason from that alledged. He believed they would not ratify it unless hurried into it by surprize.

M^r Gerry enlarged on the idea of M^r L. Martin in which he concurred, represented the system as full of vices, and dwelt on the impropriety of destroying the existing Confederation, without the unanimous consent of the parties to it.

Question on M^r Gov^r Morris's & M^r Pinkney's motion

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. no. Geo. no.

M^r Gerry moved to postpone art: XXII.

Col: Mason 2^ded the motion, declaring that he would sooner chop off his right hand than put it to the Constitution as it now stands. He wished to see some points not yet decided brought to a decision, before being compelled to give a final opinion on this article. Should these points be improperly settled, his wish would then be to bring the whole subject before another general Convention.

M^r Gov^r Morris was ready for a postponement. He had long wished for another Convention, that will have the firmness to provide a vigorous Government, which we are afraid to do.

M^r Randolph stated his idea to be, in case the final form of the Constitution should not permit him to accede to it, that the State Conventions should be at liberty to propose amendments to be submitted to another General Convention which may reject or incorporate them, as may be judged proper.

On the question for postponing

N. H. no. Mas. no. C^t no. N. J. ay. P^a no. Del. no. M^d ay. V^a no. N. C. ay. S. C. no. Geo. no.

On the question on Art: XXII

N. H. ay. Mas. 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.

Art: XXIII being taken up, as far as the words "assigned by Congress" inclusive, was agreed to nem: con: the blank having been first filled with the word "nine" as of course.

On a motion for postponing the residue of the clause, concerning the choice of the President &c.

N. H. no. Mas. ay. C^t no. N. J. no. P^a no. Del. ay. M^d no. V^a ay. N. C. ay. S. C. no. Geo. no.

M^r Gov^r Morris then moved to strike out the words "choose the President of the U. S. and"–this point, of choosing the President not being yet finally determined, & on this question

N. H. no. Mas. ay. C^t ay. N. J. ay. P^a ay. Del. ay. M^d div^d. V^a ay. N. C. ay. S. C. ay. [48] Geo. ay.

[ [48] In printed Journal–S.–C.–no.–Madison's Note.

Art: XXIII as amended was then agreed to nem: con:

The Report of the Grand Committee of eleven made by M^r Sherman was then taken up (see Aug: 28).

On the question to agree to the following clause, to be inserted after sect. 4. art: VII. "nor shall any regulation of commerce or revenue give preference to the ports of one State over those of another." Agreed to nem: con:

On the clause "or oblige vessels bound to or from any State to enter clear or pay duties in another"

M^r Madison thought the restriction w^d be inconvenient, as in the River Delaware, if a vessel cannot be required to make entry below the jurisdiction of Pennsylvania.

M^r Fitzimmons admitted that it might be inconvenient, but thought it would be a greater inconvenience to require vessels bound to Philad^a to enter below the jurisdiction of the State.

M^r Ghorum & M^r Langdon, contended that the Gov^t would be so fettered by this clause, as to defeat the good purpose of the plan. They mentioned the situation of the trade of Mas. & N. Hampshire, the case of Sandy Hook which is in the State of N. Jersey, but where precautions ag^st smuggling into N. York, ought to be established by the Gen^l Government.

M^r M^cHenry said the clause would not screen a vessel from being obliged to take an officer on board as a security for due entry &c.

M^r Carrol was anxious that the clause should be agreed to. He assured the House, that this was a tender point in Maryland.

M^r Jennifer urged the necessity of the clause in the same point of view.

On the question for agreeing to it

N. H. 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.

The word "tonnage" was struck out, nem: con: as comprehended in "duties."

On question On the clause of the Report "and all duties, imposts & excises, laid by the Legislature shall be uniform throughout the U. S." It was agreed to nem: con: [49]

[ [49] In printed Journal N. H. and S. C. entered as in the negative.–Madison's Note.

On motion of M^r Sherman it was agreed to refer such parts of the Constitution as have been postponed, and such parts of Reports as have not been acted on, to a Committee of a member from each State; the Committee appointed by ballot, being, M^r Gilman, M^r King, M^r Sherman, M^r Brearly, M^r Gov^r Morris, M^r Dickinson, M^r Carrol, M^r Madison, M^r Williamson, M^r Butler, & M^r Baldwin.

The House adjourned.

Saturday Sep^r 1. 1787 In Convention.

M^r Brearley from the Comm^e of eleven to which were referred yesterday the postponed part of the Constitution, & parts of Reports not acted upon, made the following partial report.

That in lieu of the 9^th Sect: of Art: 6. the words following be inserted viz "The members of each House shall be ineligible to any Civil office under the authority of the U. S. during the time for which they shall respectively be elected, and no person holding an office under the U. S. shall be a member of either House during his continuance in office."

M^r Rutlidge from the Committee to whom were referred sundry propositions (see Aug: 29), together with art: XVI reported that the following additions be made to the Report–viz.

After the word "States" in the last line on the Margin of the 3^d page (see the printed Report),–add "to establish uniform laws on the subject of Bankruptcies."

And insert the following as Art: XVI viz

"Full faith and credit 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 prescribe the manner in which such acts, Records, & proceedings shall be proved, and the effect which Judgments obtained in one State, shall have in another."

After receiving these reports

The House adjourned to 10OC on Monday next.

Monday Sep^r 3 1787. In Convention

M^r Gov^r Morris moved to amend the Report concerning the respect to be paid to Acts Records &c. of one State, in other States (see Sep^r 1.) by striking out "judgments obtained in one State shall have in another" and to insert the word "thereof" after the word "effect."

Col: Mason favored the motion, particularly if the "effect" was to be restrained to judgments & Judicial proceedings.

M^r Wilson remarked, that if the Legislature were not allowed to declare the effect the provision would amount to nothing more than what now takes place among all Independent Nations.

Doc^r Johnson thought the amendment as worded would authorize the Gen^l Legislature to declare the effect of Legislative acts of one State in another State.

M^r Randolph considered it as strengthening the general objection ag^st the plan, that its definition of the powers of the Government was so loose as to give it opportunities of usurping all the State powers. He was for not going farther than the Report, which enables the Legislature to provide for the effect of Judgments.

On the amendment, as moved by M^r Gov^r Morris

Mas. ay. C^t ay. N. J. ay. P^a ay. M^d no. V^a no. N. C. ay. S. C. ay. Geo. no.

On motion of M^r Madison, "ought to" were struck out, and "shall" inserted; and "shall" between "Legislature" & "by general laws" struck out, and "may" inserted, nem: con:

On the question to agree to the report as amended viz "Full faith & credit shall be given in each State to the public acts, records & judicial proceedings of every other State, and the Legislature may by general laws prescribe the manner in which such acts records & proceedings shall be proved, and the effect thereof." Agreed to with^t a count of Sts.

The clause in the Report "To establish uniform laws on the subject of Bankruptcies" being taken up.

M^r Sherman observed that Bankruptcies were in some cases punishable with death by the laws of England, & He did not chuse to grant a power by which that might be done here.

M^r Gov^r Morris said this was an extensive & delicate subject. He would agree to it because he saw no danger of abuse of the power by the Legislature of the U. S.

On the question to agree to the clause

N. H. ay. Mas. ay. C^t no. N. J. ay. P^a ay. M^d ay. V^a ay. N. C. ay. S. C. ay. Geo. ay.

M^r Pinkney moved to postpone the Report of the Committee of Eleven (see Sep^r 1.) in order to take up the following,

"The members of each House shall be incapable of holding any office under the U. S. for which they or any other for their benefit, receive any salary, fees or emoluments of any kind, and the acceptance of such office shall vacate their seats respectively." He was strenuously opposed to an ineligibility of members to office, and therefore wished to restrain the proposition to a mere incompatibility. He considered the eligibility of members of the Legislature to the honourable offices of Government, as resembling the policy of the Romans, in making the temple of virtue the road to the temple of fame.

On this question

N. H. no. Mas. no. C^t no. N. J. no. P^a ay. M^d no. V^a no. N. C. ay. S. C. no. Geo. no.

M^r King moved to insert the word "created" before the word "during" in the Report of the Committee. This he said would exclude the members of the first Legislature under the Constitution, as most of the offices w^d then be created.

M^r Williamson 2^ded the motion. He did not see why members of the Legislature should be ineligible to vacancies happening during the term of their election.

M^r Sherman was for entirely incapacitating members of the Legislature. He thought their eligibility to offices would give too much influence to the Executive. He said the incapacity ought at least to be extended to cases where salaries should be increased, as well as created, during the term of the member. He mentioned also the expedient by which the restriction could be evaded to wit: an existing officer might be translated to an office created, and a member of the Legislature be then put into the office vacated.

M^r Gov^r Morris contended that the eligibility of members to office w^d lessen the influence of the Executive. If they cannot be appointed themselves, the Executive will appoint their relations & friends, retaining the service & votes of the members for his purposes in the Legislature. Whereas the appointment of the members deprives him of such an advantage.

M^r Gerry, thought the eligibility of members would have the effect of opening batteries ag^st good officers, in order to drive them out & make way for members of the Legislature.

M^r Gorham was in favor of the amendment. Without it we go further than has been done in any of the States, or indeed any other Country. The experience of the State Governments where there was no such ineligibility, proved that it was not necessary; on the contrary that the eligibility was among the inducements for fit men to enter into the Legislative service.

M^r Randolph was inflexibly fixed against inviting men into the Legislature by the prospect of being appointed to offices.

M^r Baldwin remarked that the example of the States was not applicable. The Legislatures there are so numerous that an exclusion of their members would not leave proper men for offices. The case would be otherwise in the General Government.

Col: Mason. Instead of excluding merit, the ineligibility will keep out corruption, by excluding office-hunters.

M^r Wilson considered the exclusion of members of the Legislature as increasing the influence of the Executive as observed by M^r Gov^r Morris at the same time that it would diminish, the general energy of the Government. He said that the legal disqualification for office would be odious to those who did not wish for office, but did not wish either to be marked by so degrading a distinction.

M^r Pinkney. The first Legislature will be composed of the ablest men to be found. The States will select such to put the Government into operation. Should the Report of the Committee or even the amendment be agreed to, The great offices, even those of the Judiciary Department which are to continue for life, must be filled while those most capable of filling them will be under a disqualification.

On the question on M^r King's motion

N. H. ay. Mas. ay. C^t no. N. J. no. P^a ay. M^d no. V^a ay. N. C. ay. S. C. no. Geo. no.

The amendment being thus lost by the equal division of the States, M^r Williamson moved to insert the words "created or the emoluments whereof shall have been increased" before the word "during" in the Report of the Committee.

M^r King 2^ded the motion, & on the question

N. H. ay. Mas. ay. C^t no. N. J. no. Pa. ay. M^d no. V^a ay. N. C. ay. S. C. no. Geo. divided.

The last clause rendering a Seat in the Legislature & an office incompatible was agreed to nem. con:

The Report as amended & agreed to is as follows.

"The members of each House shall be ineligible to any Civil office under the authority of the U. States, created, or the emoluments whereof shall have been increased during the time for which they shall respectively be elected–And no person holding any office under the U. S. shall be a member of either House during his continuance in office."

Adjourned.

Tuesday Sep^r 4. 1787. In Convention

M^r Brearly from the Committee of Eleven made a further partial Report as follows

"The Committee of Eleven to whom sundry resolutions &c. were referred on the 31^st of August, report that in their opinion the following additions and alterations should be made to the Report before the Convention, viz. [50]

[ [50] This is an exact copy. The variations in that in the printed Journal are occasioned by its incorporation of subsequent amendments. This remark is applicable to other cases.–Madison's Note. The report was copied by the Secretary of the Convention, William Jackson, into the Journal, after it had been read. Afterwards two sentences were altered by interlining with lead pencil. The alterations (indicated by italics) are as follows: Paragraph 4, "The person having the greatest number of votes ... if such number be a majority of the whole number of the electors appointed." Paragraph 7, "But no treaty, except treaties of peace, shall be made," etc. The changes in paragraph 4 are unimportant: the change in paragraph 7 was an amendment offered by Madison September 7th, and adopted.–Const. MSS.—Journal of Federal Convention, p. 323, et seq.

(1.) The first clause of sect: 1. art. 7. to read as follows–'The Legislature shall have power to lay and collect taxes duties imposts & excises, to pay the debts and provide for the common defence & general welfare of the U. S.'

(2.) At the end of the 2^d clause of sect. 1. art. 7. add 'and with the Indian tribes.'

(3.) In the place of the 9^th art. Sect. 1. to be inserted 'The Senate of the U. S. shall have power to try all impeachments; but no person shall be convicted without the concurrence of two thirds of the members present.'

(4.) After the word 'Excellency' in sect. 1. art. 10. to be inserted. 'He shall hold his office during the term of four years, and together with the Vice-President, chosen for the same term, be elected in the following manner, viz. Each State shall appoint in such manner as its Legislature may direct, a number of electors equal to the whole number of Senators and members of the House of Representatives, to which the State may be entitled in the Legislature. The Electors shall meet in their respective States, and vote by ballot for two persons, of whom one at least shall not be an inhabitant of the same State with themselves; and they shall make a list of all the persons voted for, and of the number of votes for each, which list they shall sign and certify and transmit sealed to the Seat of the Gen^l Government, directed to the President of the Senate–The President of the Senate shall in that House open all the certificates, and the votes shall be then & there counted. The Person having the greatest number of votes shall be the President, if such number be a majority of that of the electors; and if there be more than one who have such a majority, and have an equal number of votes, then the Senate shall immediately choose by ballot one of them for President: but if no person have a majority, then from the five highest on the list, the Senate shall choose by ballot the President, and in every case after the choice of the President, the person having the greatest number of votes shall be vice-president: but if there should remain two or more who have equal votes, the Senate shall choose from them the Vice-President. The Legislature may determine the time of choosing and assembling the Electors, and the manner of certifying and transmitting their votes.'

(5) 'Sect. 2. No person except a natural born citizen or a Citizen of the U. S. at the time of the adoption of this Constitution shall be eligible to the office of President; nor shall any person be elected to that office, who shall be under the age of thirty five years, and who has not been in the whole, at least fourteen years a resident within the U. S.'

(6) 'Sect. 3. The vice-president shall be ex officio President of the Senate, except when they sit to try the impeachment of the President, in which case the Chief Justice shall preside, and excepting also when he shall exercise the powers and duties of President, in which case & in case of his absence, the Senate shall chuse a President pro tempore–The vice President when acting as President of the Senate shall not have a vote unless the House be equally divided.'

(7) 'Sect. 4. The President by and with the advice and Consent of the Senate, shall have power to make Treaties; and he shall nominate and by and with the advice and consent of the Senate shall appoint ambassadors, and other public ministers, Judges of the Supreme Court, and all other Officers of the U. S. whose appointments are not otherwise herein provided for. But no Treaty shall be made without the consent of two thirds of the members present.'

(8) After the words–'into the service of the U. S.' in sect. 2. art: 10. add 'and may require the opinion in writing of the principal officer in each of the Executive Departments, upon any subject relating to the duties of their respective offices.'

The latter part of Sect. 2. art: 10. to read as follows.

(9) 'He shall be removed from his office on impeachment by the House of Representatives, and conviction by the Senate, for Treason, or bribery, and in case of his removal as aforesaid, death, absence, resignation or inability to discharge the powers or duties of his office, the vice-president shall exercise those powers and duties until another President be chosen, or until the inability of the President be removed.'"

The (1^st) clause of the Report was agreed to, nem. con.

The (2) clause was also agreed to nem: con:

The (3) clause was postponed in order to decide previously on the mode of electing the President.

The (4) clause was accordingly taken up.

M^r Gorham disapproved of making the next highest after the President, the vice-President, without referring the decision to the Senate in case the next highest should have less than a majority of votes. As the regulation stands a very obscure man with very few votes may arrive at that appointment.

M^r Sherman said the object of this clause of the report of the Committee was to get rid of the ineligibility, which was attached to the mode of election by the Legislature, & to render the Executive independent of the Legislature. As the choice of the President was to be made out of the five highest, obscure characters were sufficiently guarded against in that case; and he had no objection to requiring the vice-President to be chosen in like manner, where the choice was not decided by a majority in the first instance.

M^r Madison was apprehensive that by requiring both the President & vice President to be chosen out of the five highest candidates, the attention of the electors would be turned too much to making candidates instead of giving their votes in order to a definitive choice. Should this turn be given to the business, The election would, in fact be consigned to the Senate altogether. It would have the effect at the same time, he observed, of giving the nomination of the candidates to the largest States.

M^r Gov^r Morris concurred in, & enforced the remarks of M^r Madison.

M^r Randolph & M^r Pinkney wished for a particular explanation & discussion of the reasons for changing the mode of electing the Executive.

M^r Gov^r Morris said he would give the reasons of the Committee and his own. The 1^st was the danger of intrigue & faction if the appointm^t should be made by the Legislature. 2. The inconveniency of an ineligibility required by that mode in order to lessen its evils. 3. The difficulty of establishing a Court of Impeachments, other than the Senate which would not be so proper for the trial nor the other branch for the impeachment of the President, if appointed by the Legislature. 4. Nobody had appeared to be satisfied with an appointment by the Legislature. 5. Many were anxious even for an immediate choice by the people. 6. The indispensable necessity of making the Executive independent of the Legislature.–As the Electors would vote at the same time throughout the U. S. and at so great a distance from each other, the great evil of cabal was avoided. It would be impossible also to corrupt them. A conclusive reason for making the Senate instead of the Supreme Court the Judge of impeachments, was that the latter was to try the President after the trial of the impeachment.

Col: Mason confessed that the plan of the Committee had removed some capital objections, particularly the danger of cabal and corruption. It was liable however to this strong objection, that nineteen times in twenty the President would be chosen by the Senate, an improper body for the purpose.

M^r Butler thought the mode not free from objections, but much more so than an election by the Legislature, where as in elective monarchies, cabal faction & violence would be sure to prevail.

M^r Pinkney stated as objections to the mode 1. that it threw the whole appointment in fact into the hands of the Senate. 2. The Electors will be strangers to the several candidates and of course unable to decide on their comparative merits. 3. It makes the Executive reeligible which will endanger the public liberty. 4. It makes the same body of men which will in fact elect the President his Judges in case of an impeachment.

M^r Williamson had great doubts whether the advantage of reeligibility would balance the objection to such a dependence of the President on the Senate for his reappointment. He thought at least the Senate ought to be restrained to the two highest on the list.

M^r Gov^r Morris said the principal advantage aimed at was that of taking away the opportunity for cabal. The President may be made if thought necessary ineligible on this as well as on any other mode of election. Other inconveniences may be no less redressed on this plan than any other.

M^r Baldwin thought the plan not so objectionable when well considered, as at first view: The increasing intercourse among the people of the States, would render important characters less & less unknown; and the Senate would consequently be less & less likely to have the eventual appointment thrown into their hands.

M^r Wilson. This subject has greatly divided the House, and will also divide the people out of doors. It is in truth the most difficult of all on which we have had to decide. He had never made up an opinion on it entirely to his own satisfaction. He thought the plan on the whole a valuable improvement on the former. It gets rid of one great evil, that of cabal & corruption; & Continental Characters will multiply as we more & more coalesce, so as to enable the electors in every part of the Union to know & judge of them. It clears the way also for a discussion of the question of re-eligibility on its own merits which the former mode of election seemed to forbid. He thought it might be better however to refer the eventual appointment to the Legislature than to the Senate, and to confine it to a smaller number than five of the Candidates. The eventual election by the Legislature w^d not open cabal anew, as it would be restrained to certain designated objects of choice, and as these must have had the previous sanction of a number of the States; and if the election be made as it ought as soon as the votes of the Electors are opened & it is known that no one has a majority of the whole there can be little danger of corruption. Another reason for preferring the Legislature to the Senate in this business was that the House of Rep^s will be so often changed as to be free from the influence & faction to which the permanence of the Senate may subject that branch.

M^r Randolph preferred the former mode of constituting the Executive, but if the change was to be made, he wished to know why the eventual election was referred to the Senate and not to the Legislature? He saw no necessity for this and many objections to it. He was apprehensive also that the advantage of the eventual appointment would fall into the hands of the States near the seat of Government.

M^r Gov^r Morris said the Senate was preferred because fewer could then say to the President, you owe your appointment to us. He thought the President would not depend so much on the Senate for his reappointment as on his general good conduct.

The further consideration of the Report was postponed that each member might take a copy of the remainder of it.

The following motion was referred to the Committee of Eleven–to wit,–"To prepare & report a plan for defraying the expences of the Convention."

[51]M^r Pinkney moved a clause declaring "that each House should be judge of the privilege of its own members." M^r Gov^r Morris 2^ded the motion.

[ [51] This motion not contained in the printed Journal–Madison's Note.

M^r Randolph & M^r Madison expressed doubts as to the propriety of giving such a power, & wished for a postponement.

M^r Gov^r Morris thought it so plain a case that no postponement could be necessary.

M^r Wilson thought the power involved, and the express insertion of it needless. It might beget doubts as to the power of other public bodies, as Courts &c. Every Court is the judge of its own privileges.

M^r Madison distinguished between the power of Judging of privileges previously & duly established, and the effect of the motion which would give a discretion to each House as to the extent of its own privileges. He suggested that it would be better to make provision for ascertaining by law, the privileges of each House, than to allow each House to decide for itself. He suggested also the necessity of considering what privileges ought to be allowed to the Executive.

Adjourned.

Wednesday Sep^r 5. 1787. In Convention.

M^r Brearley from the Committee of Eleven made a farther report as follows,

(1) To add to the clause "to declare war" the words "and grant letters of marque and reprisal."

(2) To add to the clause "to raise and support armies" the words "but no appropriation of money to that use shall be for a longer term than two years."

(3) Instead of sect: 12. art 6. say–"All bills for raising revenue shall originate in the House of Representatives, and shall be subject to alterations and amendments by the Senate: no money shall be drawn from the Treasury, but in consequence of appropriations made by law."

(4) Immediately before the last clause of sect. 1. art. 7. insert "To exercise exclusive legislation in all cases whatsoever over such district (not exceeding ten miles square) as may, by Cession of particular States and the acceptance of the Legislature become the Seat of the Government of the U. S. and to exercise like authority over all places purchased for the erection of Forts, Magazines, Arsenals, Dock Yards, and other needful buildings."

(5) "To promote the progress of Science and useful arts by securing for limited times to authors & inventors, the exclusive right to their respective writings and discoveries."

This report being taken up,–The (1) clause was agreed to nem: con:

To the (2) clause M^r Gerry objected that it admitted of appropriations to an army, for two years instead of one, for which he could not conceive a reason, that it implied that there was to be a standing army which he inveighed against as dangerous to liberty, as unnecessary even for so great an extent of Country as this, and if necessary, some restriction on the number & duration ought to be provided: Nor was this a proper time for such an innovation. The people would not bear it.

M^r Sherman remarked that the appropriations were permitted only, not required to be for two years. As the Legislature is to be biennially elected, it would be inconvenient to require appropriations to be for one year, as there might be no Session within the time necessary to renew them. He should himself he said like a reasonable restriction on the number and continuance of an army in time of peace.

The (2) clause was then agreed to nem: con:

The (3) clause, M^r Gov^r Morris moved to postpone. It had been agreed to in the Committee on the ground of compromise, and he should feel himself at liberty to dissent to it, if on the whole he should not be satisfied with certain other parts to be settled.— M^r Pinkney 2^ded the motion.

M^r Sherman was for giving immediate ease to those who looked on this clause as of great moment, and for trusting to their concurrence in other proper measures.

On the question for postponing

N. H. ay. Mas. no. C^t ay. N. J. ay. P^a ay. Del. ay. M^d ay. V^a no. N. C. ay. S. C. ay. Geo. ay.

So much of the (4) clause as related to the seat of Government was agreed to nem: con:

On the residue to wit, "to exercise like authority over all places purchased for forts" &c.

M^r Gerry contended that this power might be made use of to enslave any particular State by buying up its territory, and that the strongholds proposed would be a means of awing the State into an undue obedience to the Gen^l Government.

M^r King thought himself the provision unnecessary, the power being already involved: but would move to insert after the word "purchased" the words "by the consent of the Legislature of the State." This would certainly make the power safe.

M^r Gov^r Morris 2^ded the motion, which was agreed to nem: con: as was then the residue of the clause as amended.

The (5) clause was agreed to nem: con:

The following Resolution & order being reported from the Committee of eleven, to wit,

"Resolved that the U. S. in Congress be requested to allow and cause to be paid to the Secretary and other officers of this Convention such sums in proportion to their respective times of service, as are allowed to the Secretary & similar officers of Congress."

"Ordered that the Secretary make out & transmit to the Treasury office of the U. S. an account for the said services & for the incidental expences of this Convention."

The resolution & order were separately agreed to nem: con:

M^r Gerry gave notice that he should move to reconsider articles XIX. XX. XXI. XXII.

M^r Williamson gave like notice as to the article fixing the number of Representatives, which he thought too small. He wished also to allow Rho: Island more than one, as due to her probable number of people, and as proper to stifle any pretext arising from her absence on the occasion.

The Report made yesterday as to the appointment of the Executive being then taken up. M^r Pinkney renewed his opposition to the mode, arguing 1. that the electors will not have sufficient knowledge of the fittest men, & will be swayed by an attachment to the eminent men of their respective States. Hence 2^dly the dispersion of the votes would leave the appointment with the Senate, and as the President's reappointment will thus depend on the Senate he will be the mere creature of that body. 3. He will combine with the Senate ag^st the House of Representatives. 4. This change in the mode of election was meant to get rid of the ineligibility of the President a second time, whereby he will become fixed for life under the auspices of the Senate.

M^r Gerry did not object to this plan of constituting the Executive in itself, but should be governed in his final vote by the powers that may be given to the President.

M^r Rutlidge was much opposed to the plan reported by the Committee. It would throw the whole power into the Senate. He was also against a re-eligibility. He moved to postpone the Report under consideration & take up the original plan of appointment by the Legislature, to wit. "He shall be elected by joint ballot by the Legislature to which election a majority of the votes of the members present shall be required: He shall hold his office during the term of seven years; but shall not be elected a second time."

On this motion to postpone

N. H. div^d. 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.

Col. Mason admitted that there were objections to an appointment by the Legislature as originally planned. He had not yet made up his mind, but would state his objections to the mode proposed by the Committee. 1. It puts the appointment in fact into the hands of the Senate; as it will rarely happen that a majority of the whole votes will fall on any one candidate: and as the existing President will always be one of the 5 highest, his reappointment will of course depend on the Senate. 2. Considering the powers of the President & those of the Senate, if a coalition should be established between these two branches, they will be able to subvert the Constitution–The great objection with him would be removed by depriving the Senate of the eventual election. He accordingly moved to strike out the words "if such number be a majority of that of the electors."

M^r Williamson 2^ded the motion. He could not agree to the clause without some such modification. He preferred making the highest tho' not having a majority of the votes, President, to a reference of the matter to the Senate. Referring the appointment to the Senate lays a certain foundation for corruption & aristocracy.

M^r Gov^r Morris thought the point of less consequence than it was supposed on both sides. It is probable that a majority of the votes will fall on the same man. As each Elector is to give two votes, more than 1/4 will give a majority. Besides as one vote is to be given to a man out of the State, and as this vote will not be thrown away, 1/2 the votes will fall on characters eminent & generally known. Again if the President shall have given satisfaction, the votes will turn on him of course, and a majority of them will reappoint him, without resort to the Senate: If he should be disliked, all disliking him, would take care to unite their votes so as to ensure his being supplanted.

Col. Mason those who think there is no danger of there not being a majority for the same person in the first instance, ought to give up the point to those who think otherwise.

M^r Sherman reminded the opponents of the new mode proposed that if the small States had the advantage in the Senate's deciding among the five highest candidates the large States would have in fact the nomination of these candidates.

On the motion of Col: Mason

N. H. no. Mas. no. C^t no. N. J. no. P^a no. Del. no. M^d ay. [52] V^a no. N. C. ay. S. C. no. Geo. no.

[ [52] In printed Journal Maryland–no–Madison's Note.

M^r Wilson moved to strike out "Senate" and insert the word "Legislature."

M^r Madison considered it as a primary object to render an eventual resort to any part of the Legislature improbable. He was apprehensive that the proposed alteration would turn the attention of the large States too much to the appointment of candidates, instead of aiming at an effectual appointment of the officer, as the large States would predominate in the Legislature which would have the final choice out of the candidates. Whereas if the Senate in which the small States predominate should have the final choice, the concerted effort of the large States would be to make the appointment in the first instance conclusive.

M^r Randolph. We have in some revolutions of this plan made a bold stroke for Monarchy. We are now doing the same for an aristocracy. He dwelt on the tendency of such an influence in the Senate over the election of the President in addition to its other powers, to convert that body into a real & dangerous Aristocracy.

M^r Dickinson was in favor of giving the eventual election to the Legislature, instead of the Senate. It was too much influence to be superadded to that body.

On the question moved by M^r Wilson

N. H. div^d. Mas. no. C^t no. N. J. no. P^a ay. Del. no. M^d no. V^a ay. N. C. no. S. C. ay. Geo. no.

M^r Madison & M^r Williamson moved to strike out the word "majority" and insert "one-third" so that the eventual power might not be exercised if less than a majority, but not less than 1/3 of the Electors should vote for the same person.

M^r Gerry objected that this would put it in the power of three or four States to put in whom they pleased.

M^r Williamson. There are seven States which do not contain one third of the people. If the Senate are to appoint, less than one sixth of the people will have the power.

On the question

N. H. no. Mas. 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.

M^r Gerry suggested that the eventual election should be made by six Senators and seven Representatives chosen by joint ballot of both Houses.

M^r King observed that the influence of the Small States in the Senate was somewhat balanced by the influence of the large States in bringing forward the candidates, [53] and also by the Concurrence of the small States in the Committee in the clause vesting the exclusive origination of Money bills in the House of Representatives.

[ [53] This explains the compromise mentioned above by M^r Gov^r Morris. Col. Mason, M^r Gerry & other members from large States set great value on this privilege of originating money bills. Of this the members from the small States, with some from the large States who wished a high mounted Gov^t endeavored to avail themselves, by making that privilege, the price of arrangements in the constitution favorable to the small States, and to the elevation of the Government.–Madison's Note.

Col: Mason moved to strike out the word "five" and insert the word "three" as the highest candidates for the Senate to choose out of.

M^r Gerry 2^ded the motion.

M^r Sherman would sooner give up the plan. He would prefer seven or thirteen.

On the question moved by Col: Mason & M^r Gerry

N. H. no. Mas. no. C^t no. N. J. no. P^a no. Delaware [and] M^d no. V^a ay. N. C. ay. S. C. no. Geo. no.

M^r Spaight and M^r Rutlidge moved to strike out "five" and insert "thirteen"–to which all the States disagreed–except N. C. & S. C.

M^r Madison & M^r Williamson moved to insert after "Electors" the words "who shall have balloted" so that the non voting electors not being counted might not increase the number necessary as a majority of the whole to decide the choice without the agency of the Senate.

On this question

N. H. no. Mas. no. C^t no. N. J. no. P^a ay. Del. no. M^d ay. V^a ay. N. C. ay. S. C. no. Geo. no.

M^r Dickinson moved, in order to remove ambiguity from the intention of the clause as explained by the vote, to add, after the words "if such number be a majority of the whole number of the Electors" the word "appointed."

On this motion

N. H. ay. Mas. ay. Con. ay. N. J. ay. P^a ay. Delaware [and] M^d ay. V^a no. N. C. no. S. C. ay. Geo. ay.

Col: Mason. As the mode of appointment is now regulated, he could not forbear expressing his opinion that it is utterly inadmissible. He would prefer the Government of Prussia to one which will put all power into the hands of seven or eight men, and fix an Aristocracy worse than absolute monarchy.

The words "and of their giving their votes" being inserted on motion for that purpose, after the words "The Legislature may determine the time of chusing and assembling the Electors."

The House adjourned.

Thursday Sep^r 6. 1787. In Convention

M^r King and M^r Gerry moved to insert in the (5) [54] clause of the Report (see Sep^r 4) after the words "may be entitled in the Legislature" the words following–"But no person shall be appointed an elector who is a member of the Legislature of the U. S. or who holds any office of profit or trust under the U. S." which passed nem: con:

[ [54] This is a mistake and should be fourth clause. See p. 298.

M^r Gerry proposed as the President was to be elected by the Senate out of the five highest candidates, that if he should not at the end of his term be re-elected by a majority of the Electors, and no other candidate should have a majority, the eventual election should be made by the Legislature. This he said would relieve the President from his particular dependence on the Senate for his continuance in office.

M^r King liked the idea, as calculated to satisfy particular members and promote unanimity & as likely to operate but seldom.

M^r Read opposed it, remarking that if individual members were to be indulged, alterations would be necessary to satisfy most of them.

M^r Williamson espoused it as a reasonable precaution against the undue influence of the Senate.

M^r Sherman liked the arrangement as it stood, though he should not be averse to some amendments. He thought he said that if the Legislature were to have the eventual appointment instead of the Senate, it ought to vote in the case by States, in favor of the small States, as the large States would have so great an advantage in nominating the candidates.

M^r Gov^r Morris thought favorably of M^r Gerry's proposition. It would free the President from being tempted in naming to offices, to Conform to the will of the Senate, & thereby virtually give the appointments to office, to the Senate.

M^r Wilson said that he had weighed carefully the report of the Committee for remodelling the constitution of the Executive; and on combining it with other parts of the plan, he was obliged to consider the whole as having a dangerous tendency to aristocracy; as throwing a dangerous power into the hands of the Senate. They will have in fact, the appointment of the President, and through his dependence on them, the virtual appointment to offices; among others the Officers of the Judiciary Department. They are to make Treaties; and they are to try all impeachments. In allowing them thus to make the Executive & Judiciary appointments, to be the Court of impeachments, and to make Treaties which are to be laws of the land, the Legislative, Executive & Judiciary powers are all blended in one branch of the Government. The power of making Treaties involves the case of subsidies, and here as an additional evil, foreign influence is to be dreaded. According to the plan as it now stands, the President will not be the man of the people as he ought to be, but the minion of the Senate. He cannot even appoint a tide-waiter without the Senate. He had always thought the Senate too numerous a body for making appointments to office. The Senate will moreover in all probability be in constant Session. They will have high salaries. And with all those powers, and the President in their interest, they will depress the other branch of the Legislature, and aggrandize themselves in proportion. Add to all this, that the Senate sitting in conclave, can by holding up to their respective States various and improbable candidates, contrive so to scatter their votes, as to bring the appointment of the President ultimately before themselves. Upon the whole, he thought the new mode of appointing the President, with some amendments, a valuable improvement; but he could never agree to purchase it at the price of the ensuing parts of the Report, nor befriend a system of which they make a part.

M^r Gov^r Morris expressed his wonder at the observations of M^r Wilson so far as they preferred the plan in the printed Report to the new modification of it before the House, and entered into a comparative view of the two, with an eye to the nature of M^r Wilsons objections to the last. By the first the Senate he observed had a voice in appointing the President out of all the Citizens of the U. S: by this they were limited to five candidates previously nominated to them, with a probability of being barred altogether by the successful ballot of the Electors. Here surely was no increase of power. They are now to appoint Judges nominated to them by the President. Before they had the appointment without any agency whatever of the President. Here again was surely no additional power. If they are to make Treaties as the plan now stands, the power was the same in the printed plan. If they are to try impeachments, the Judges must have been triable by them before. Wherein then lay the dangerous tendency of the innovations to establish an aristocracy in the Senate? As to the appointment of officers, the weight of sentiment in the House, was opposed to the exercise of it by the President alone; though it was not the case with himself. If the Senate would act as was suspected, in misleading the States into a fallacious disposition of their votes for a President, they would, if the appointment were withdrawn wholly from them, make such representations in their several States where they have influence, as would favor the object of their partiality.

M^r Williamson, replying to M^r Morris, observed that the aristocratic complexion proceeds from the change in the mode of appointing the President which makes him dependent on the Senate.

M^r Clymer said that the aristocratic part to which he could never accede was that in the printed plan, which gave the Senate the power of appointing to offices.

M^r Hamilton said that he had been restrained from entering into the discussions by his dislike of the Scheme of Gov^t in General; but as he meant to support the plan to be recommended, as better than nothing, he wished in this place to offer a few remarks. He liked the new modification, on the whole, better than that in the printed Report. In this the President was a Monster elected for seven years, and ineligible afterwards; having great powers, in appointments to office, & continually tempted by this constitutional disqualification to abuse them in order to subvert the Government. Although he should be made re-eligible, still if appointed by the Legislature, he would be tempted to make use of corrupt influence to be continued in office. It seemed peculiarly desirable therefore that some other mode of election should be devised. Considering the different views of different States, & the different districts Northern Middle & Southern, he concurred with those who thought that the votes would not be concentered, and that the appointment would consequently in the present mode devolve on the Senate. The nomination to offices will give great weight to the President. Here then is a mutual connexion & influence, that will perpetuate the President, and aggrandize both him & the Senate. What is to be the remedy? He saw none better than to let the highest number of ballots, whether a majority or not, appoint the President. What was the objection to this? Merely that too small a number might appoint. But as the plan stands, the Senate may take the candidate having the smallest number of votes, and make him President.

M^r Spaight & M^r Williamson moved to insert "seven" instead of "four" years for the term of the President [55]—

[ [55] An ineligibility w^d have followed (tho' it would seem from the vote not in the opinion of all) this prolongation of the term.–Madison's Note.

On this motion

N. H. ay. Mas. 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.

M^r Spaight & M^r Williamson, then moved to insert "six," instead of "four". On which motion

N. H. no. 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 term "four" all the States were ay, except N. Carolina, no.

On the question (Clause 4. in the Report) for appointing President by electors–down to the words,–"entitled in the Legislature" inclusive

N. H. ay. Mas: ay. Con^t ay. N. J. ay. P^a ay. Del. ay. M^d ay. V^a ay. N. C. no. S. C. no. Geo.–ay.

It was moved that the Electors meet at the seat of the Gen^l Gov^t which passed in the Negative N. C. only being ay.

It was moved to insert the words "under the seal of the State" after the word "transmit" in the 4^th. clause of the Report which was disagreed to; as was another motion to insert the words "and who shall have given their votes" after the word "appointed" in the 4^th Clause of the Report as added yesterday on motion of M^r Dickinson.

On several motions, the words "in presence of the Senate and House of Representatives" were inserted after the word "counted" and the word "immediately" before the word "choose;" and the words "of the Electors" after the word "votes."

M^r Spaight said if the election by Electors is to be crammed down, he would prefer their meeting altogether and deciding finally without any reference to the Senate and moved "that the Electors meet at the seat of the General Government."

M^r Williamson 2^ded the motion, on which all the States were in the negative except N: Carolina.

On motion the words "But the election shall be on the same day throughout the U. S." were added after the words "transmitting their votes"

N. H. ay. Mas. no. 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.

On a question on the sentence in clause (4) "if such number be a majority of that of the Electors appointed"

N. H. ay. Mas. ay. C^t ay. N. J. ay. P^a no. Del. ay. M^d ay. V^a no. N.C. no. S. C. ay. Geo. ay.

On a question on the clause referring the eventual appointment of the President to the Senate

N. H. ay. Mas. ay. C^t ay. N. J. ay. P^a ay. Del. ay. V^a ay. N. C. no. Here the call ceased.

M^r Madison made a motion requiring 2/3 at least of the Senate to be present at the choice of a President. M^r Pinkney 2^ded the motion.

M^r Gorham thought it a wrong principle to require more than a majority in any case. In the present case it might prevent for a long time any choice of a President. On the question moved by M^r M. and M^r P.

N. H. ay. Mas. abs^t. C^t no. N. J. no. P^a no. Del. no. M^d ay. V^a ay. N. C. ay. S. C. ay. Geo. ay.

M^r Williamson suggested as better than an eventual choice by the Senate, that this choice should be made by the Legislature, voting by States and not per capita.

M^r Sherman suggested the "House of Rep^s" as preferable to the Legislature, and moved accordingly,

To strike out the words "The Senate shall immediately choose &c." and insert "The House of Representatives shall immediately choose by ballot one of them for President, the members from each State having one vote."

Col: Mason liked the latter mode best as lessening the aristocratic influence of the Senate.

On the motion of M^r Sherman

N. H. ay. Mas. ay. C^t ay. N. J. 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 suggested the idea of providing that in all cases, the President in office, should not be one of the five Candidates; but be only re-eligible in case a majority of the electors should vote for him. (This was another expedient for rendering the President independent of the Legislative body for his continuance in office.)

M^r Madison remarked that as a majority of members w^d make a quorum in the H. of Rep^s it would follow from the amendment of M^r Sherman giving the election to a majority of States, that the President might be elected by two States only, Virg^a & Pen^a which have 18 members, if these States alone should be present.

On a motion that the eventual election of Presid^t in case of an equality of the votes of the electors be referred to the House of Rep^s

N. H. ay. Mas. ay. N. J. no. P^a ay. Del. no. M^d no. V^a ay. N. C. ay. S. C. ay. Geo. ay.

M^r King moved to add to the amendment of M^r Sherman "But a quorum for this purpose shall consist of a member or members from two thirds of the States, and also of a majority of the whole number of the House of Representatives."

Col: Mason liked it as obviating the remark of M^r Madison–The motion as far as "States" inclusive was ag^d to. On the residue to wit, "and also of a majority of the whole number of the House of Reps^s." it passed in the negative.

N. H. no. Mas. ay. C^t ay. N. J. no. P^a ay. Del. no. M^d no. V^a ay. N. C. ay. S. C. no. Geo. no.

The Report relating to the appointment of the Executive stands as amended, as follows.

"He shall hold his office during the term of four years, and together with the vice-President, chosen for the same term, be elected in the following manner.

Each State shall appoint in such manner as its Legislature may direct, a number of electors equal to the whole number of Senators and members of the House of Representatives, to which the State may be entitled in the Legislature:

But no person shall be appointed an Elector who is a member of the Legislature of the U. S. or who holds any office of profit or trust under the U. S.

The Electors shall meet in their respective States and vote by ballot for two persons, of whom one at least shall not be an inhabitant of the same State with themselves; and they shall make a list of all the persons voted for, and of the number of votes for each, which list they shall sign and certify, and transmit sealed to the Seat of the General Government, directed to the President of the Senate.

The President of the Senate shall in the presence of the Senate and House of Representatives open all the certificates & the votes shall then be counted.

The person having the greatest number of votes shall be the President (if such number be a majority of the whole number of electors appointed) and if there be more than one who have such majority, and have an equal number of votes, then the House of Representatives shall immediately choose by ballot one of them for President, the Representation from each State having one vote. But if no person have a majority, then from the five highest on the list, the House of Representatives shall in like manner choose by ballot the President. In the choice of a President by the House of Representatives, a Quorum shall consist of a member or members from two thirds of the States, ( [56]and the concurrence of a majority of all the States shall be necessary to such choice.)–And in every case after the choice of the President, the person having the greatest number of votes of the Electors shall be the vice-president: But, if there should remain two or more who have equal votes, the Senate shall choose from them the vice-President. [57]

[ [56] Note.–This clause was not inserted on this day, but on the 7^th. of Sep^r–See Friday the 7^th.–Madison's Note.

[ [57] September 6 Madison wrote to Jefferson (cipher represented by italics): "... As the Convention will shortly rise I should feel little scruple in disclosing what will be public here, before it could reach you, were it practicable for me to guard by Cypher against an intermediate discovery. But I am deprived of this resource by the shortness of the interval between the receipt of your letter of June 20 and the date of this. This is the first day which has been free from Committee service, both before & after the hours of the House, and the last that is allowed me by the time advertised for the sailing of the packet.

"The Convention consists now as it has generally done of Eleven States. There has been no intermission of its Sessions since a house was formed, except an interval of about ten days allowed a Committee appointed to detail the general propositions agreed on in the House. The term of its dissolution cannot be more than one or two weeks distant. A Gover^mt will probably be submitted to the people of the States, consisting of a President, cloathed with Executive power; a Senate chosen by the Legislatures, and another House chosen by the people of the States, jointly possessing the Legislative power; and a regular Judiciary establishment. The mode of constituting the Executive is among the few points not yet finally settled. The Senate will consist of two members from each State, and appointed sexennially. The other, of members, appointed biennially by the people of the States, in proportion to their number. The Legislative power will extend to taxation, trade, and sundry other general matters. The powers of Congress will be distributed, according to their nature, among the several departments. The States will be restricted from paper money and in a few other instances. These are the outlines. The extent of them may perhaps surprize you. I hazard an opinion nevertheless that the plan, should it be adopted, will neither effectually answer its national object, nor prevent the local mischiefs which everywhere excite disgusts ag^st the State Governments. The grounds of this opinion will be the subject of a future letter.

"I have written to a friend in Cong^s intimating in a covert manner the necessity of deciding & notifying the intentions of Cong^s with regard to their foreign Ministers after May next, and have dropped a hint on the communications of Dumas.

"Congress have taken some measures for disposing of the public land, and have actually sold a considerable tract. Another bargain I learn is on foot for a further sale.

"Nothing can exceed the universal anxiety for the event of the meeting here. Reports and conjectures abound concerning the nature of the plan which is to be proposed. The public however is certainly in the dark with regard to it. The Convention is equally in the dark as to the reception w^ch may be given to it on its publication. All the prepossessions are on the right side, but it may well be expected that certain characters will wage war against any reform whatever. My own idea is that the public mind will now or in a very little time receive anything that promises stability to the public Councils & security to private rights, and that no regard ought to be had to local prejudices or temporary considerations. If the present moment be lost, it is hard to say what may be our fate.

"Our information from Virginia is far from being agreeable. In many parts of the Country the drought has been extremely injurious to the Corn. I fear, tho' I have no certain information, that Orange & Albemarle share in the distress. The people also are said to be generally discontented. A paper emission is again a topic among them, so is an instalment of all debts in some places and the making property a tender in others. The taxes are another source of discontent. The weight of them is complained of, and the abuses in collecting them still more so. In several Counties the prisons & Court Houses & Clerks' offices have been wilfully burnt. In Green Briar the course of Justice has been mutinously stopped, and associations entered into ag^st the payment of taxes. No other County has yet followed the example. The approaching meeting of the Assembly will probably allay the discontents on one side by measures which will excite them on another.

"Mr. Wythe has never returned to us. His lady whose illness carried him away, died some time after he got home. The other deaths, in Virg^a are Col. A. Cary and a few days ago, Mrs. Harrison, wife of Benjⁿ Harrison, Jun^r, & sister of J. F. Mercer. Wishing you all happiness.

"I remain, Dear sir, Y^rs affect^ly.

"Give my best wishes to Mazzei. I have rec^d his letter & book and will write by the next packet to him. Dorhman is still in V^a Cong^s have done nothing for him in his affair. I am not sure that 9 St^s have been assembled of late. At present, it is doubtful whether there are seven."–Mad. MSS.

The Legislature may determine the time of choosing the Electors, and of their giving their votes; and the manner of certifying and transmitting their votes–But the election shall be on the same day through-out the U. States."

Adjourned.

Friday Sep^r 7 [58] 1787. In Convention

[ [58] The following letter was received on this day from Jonas Phillips, a Jew in Philadelphia:

"Sires

"With leave and submission I address myself To those in whome there is wisdom understanding and knowledge. They are the honourable personages appointed and Made overseers of a part of the terrestrial globe of the Earth, Namely the 13 united states of america in Convention Assembled, the Lord preserve them amen—

"I the subscriber being one of the people called Jews of the City of Philadelphia, a people scattered and despersed among all nations do behold with Concern that among the laws in the Constitution of Pennsylvania their is a Clause Sect. 10 to viz–I do belive in one God the Creature and governour of the universe the Rewarder of the good and the punisher of the wicked–and I do acknowledge the scriptures of the old and New testement to be given by a devine inspiration–to swear and believe that the new testement was given by devine inspiration is absolutly against the Religious principle of a Jew and is against his Conscience to take any such oath–By the above law a Jew is deprived of holding any publick office or place of Government which is a Contridectory to the bill of Right Sect 2. viz

"That all men have a natural and unalienable Right To worship almighty God according to the dectates of their own Conscience and understanding, and that no man aught or of Right can be compelled to attend any Religious Worship or Erect or support any place of worship or Maintain any minister contrary to or against his own free will and Consent nor Can any man who acknowledges the being of a God be Justly deprived or abridged of any Civil Right as a Citizen on account of his Religious sentiments or peculiar mode of Religious Worship, and that no authority Can or aught to be vested in or assumed by any power what ever that shall in any Case interfere or in any manner Controul the Right of Conscience in the free Exercise of Religious Worship—

"It is well known among all the Citizens of the 13 united States that the Jews have been true and faithfull whigs, and during the late Contest with England they have been foremost in aiding and assisting the States with their lifes and fortunes, they have supported the Cause, have bravely faught and bleed for liberty which they Can not Enjoy—

Therefore if the honourable Convention shall in ther Wisdom think fit and alter the said oath and leave out the words to viz–and I do acknowledge the scripture of the new testeraent to be given by devine inspiration then the Israeletes will think them self happy to live under a government where all Religious societys are on an Eaquel footing–I solecet this favour for my self my Childreen and posterity and for the benefit of all the Israeletes through the 13 united States of america.

"My prayers is unto the Lord. May the people of this States Rise up as a great and young lion, May they prevail against their Enemies, May the degrees of honour of his Excellencey the president of the Convention George Washington, be Extollet and Raise up. May Every one speak of his glorious Exploits. May God prolong his days among us in this land of Liberty–May he lead the armies against his Enemys as he has done hereuntofore–May God Extend peace unto the united States–May they get up to the highest Prosperetys–May God Extend peace to them and their Seed after them so long as the Sun and moon Endureth–and may the almighty God of our father Abraham Isaac and Jacob endue this Noble Assembly with wisdom Judgement and unamity in their Councells, and may they have the Satisfaction to see that their present toil and labour for the wellfair of the united States may be approved of, Through all the world and perticular by the united States of america is the ardent prayer of Sires.

"Your Most devoted obe^d Servant

"Jonas Phillips

"Philadelphia 24^th Ellul 5547 or Sep^r 7^th. 1787"–Const. MSS.

The mode of constituting the Executive being resumed, M^r Randolph moved, to insert in the first section of the report made yesterday

"The Legislature may declare by law what officer of the U. S. shall act as President in case of the death, resignation, or disability of the President and Vice-President; and such officer shall act accordingly until the time of electing a President shall arrive."

M^r Madison observed that this, as worded, would prevent a supply of the vacancy by an intermediate election of the President, and moved to substitute–"until such disability be removed, or a President shall be elected. [59] M^r Gov^r Morris 2^ded the motion, which was agreed to.

[ [59] In the printed Journal this amendment is put into the original motion.–Madison's Note.

It seemed to be an objection to the provision with some, that according to the process established for chusing the Executive, there would be difficulty in effecting it at other than the fixed periods; with others, that the Legislature was restrained in the temporary appointment to "officers" of the U. S.: They wished it to be at liberty to appoint others than such.

On the Motion of M^r Randolph as amended, it passed in the affirmative.

N. H. divided. Mas. no. C^t no. N. J. ay. P^a ay. Del. no. M^d ay. V^a ay. N. C. no. S. C. ay. Geo. ay.

M^r Gerry moved "that in the election of President by the House of Representatives, no State shall vote by less than three members, and where that number may not be allotted to a State, it shall be made up by its Senators; and a concurrence of a majority of all the States shall be necessary to make such choice." Without some such provision five individuals might possibly be competent to an election; these being a majority of two thirds of the existing number of States; and two thirds being a quorum for this business.

M^r Madison 2^ded the motion.

M^r Read observed that the States having but one member only in the House of Rep^s would be in danger of having no vote at all in the election: the sickness or absence either of the Representative or one of the Senators would have that effect.

M^r Madison replied that, if one member of the House of Representatives should be left capable of voting for the State, the states having one Representative only would still be subject to that danger. He thought it an evil that so small a number at any rate should be authorized to elect. Corruption would be greatly facilitated by it. The mode itself was liable to this further weighty objection that the representatives of a Minority of the people, might reverse the choice of a majority of the States and of the people. He wished some cure for this inconveniency might yet be provided.

M^r Gerry withdrew the first part of his motion; and on the, Question on the 2^d part viz: "and a concurrence of a majority of all the States shall be necessary to make such choice" to follow the words "a member or members from two thirds of the States"–It was agreed to nem: con:

The section 2. (see Sep^r 4) requiring that the President should be a natural-born Citizen &c., & have been resident for fourteen years, & be thirty five years of age, was agreed to nem: con:

Section 3 (see Sep^r 4). "The vice President shall be ex-officio President of the Senate"

M^r Gerry opposed this regulation. We might as well put the President himself at the head of the Legislature. The close intimacy that must subsist between the President & vice-president makes it absolutely improper. He was ag^st having any vice President.

M^r Gov^r Morris. The vice President then will be the first heir apparent that ever loved his father. If there should be no vice president, the President of the Senate would be temporary successor, which would amount to the same thing.

M^r Sherman saw no danger in the case. If the vice-President were not to be President of the Senate, he would be without employment, and some member by being made President must be deprived of his vote, unless when an equal division of votes might happen in the Senate, which would be but seldom.

M^r Randolph concurred in the opposition to the clause.

M^r Williamson, observed that such an officer as vice-President was not wanted. He was introduced only for the sake of a valuable mode of election which required two to be chosen at the same time.

Col: Mason, thought the office of vice-President an encroachment on the rights of the Senate; and that it mixed too much the Legislative & Executive, which as well as the Judiciary departments, ought to be kept as separate as possible. He took occasion to express his dislike of any reference whatever of the power to make appointments, to either branch of the Legislature. On the other hand he was averse to vest so dangerous a power in the President alone. As a method for avoiding both, he suggested that a privy Council of six members to the president should be established; to be chosen for six years by the Senate, two out of the Eastern two out of the middle, and two out of the Southern quarters of the Union, & to go out in rotation two every second year; the concurrence of the Senate to be required only in the appointment of Ambassadors, and in making treaties, which are more of a legislative nature. This would prevent the constant sitting of the Senate which he thought dangerous, as well as keep the departments separate & distinct. It would also save the expence of constant sessions of the Senate. He had he said always considered the Senate as too unwieldy & expensive for appointing officers, especially the smallest, such as tide waiters &c. He had not reduced his idea to writing, but it could be easily done if it should be found acceptable.

On the question shall the vice President be ex officio President of the Senate?

N. H. ay. Mas. ay. C^t ay. N. J. no. P^a ay. Del. ay. Mar. no. V^a ay. N. C. abs^t. S. C. ay. Geo. ay.

The other parts of the same Section (3) were then agreed to.

The Section 4.–to wit. "The President by & with the advice and consent of the Senate shall have power to make Treaties &c."

M^r Wilson moved to add after the word "Senate" the words, "and House of Representatives." As treaties he said are to have the operation of laws, they ought to have the sanction of laws also. The circumstance of secrecy in the business of treaties formed the only objection; but this he thought, so far as it was inconsistent with obtaining the Legislative sanction, was outweighed by the necessity of the latter.

M^r Sherman thought the only question that could be made was whether the power could be safely trusted to the Senate. He thought it could; and that the necessity of secrecy in the case of treaties forbade a reference of them to the whole Legislature.

M^r Fitzimmons 2^ded the motion of M^r Wilson, & on the question

N. H. no. Mas. no. C^t no. N. J. no. P^a ay. Del. no. M^d no. V^a ay. N. C. no. S. C. no. Geo. no.

The first sentence as to making treaties was then Agreed to; nem: con:

"He shall nominate &c. Appoint Ambassadors &c."

M^r Wilson objected to the mode of appointing, as blending a branch of the Legislature with the Executive. Good laws are of no effect without a good Executive; and there can be no good Executive without a responsible appointment of officers to execute. Responsibility is in a manner destroyed by such an agency of the Senate. He would prefer the council proposed by Col: Mason, provided its advice should not be made obligatory on the President.

M^r Pinkney was against joining the Senate in these appointments, except in the instances of Ambassadors who he thought ought not to be appointed by the President.

M^r Gov^r Morris said that as the President was to nominate, there would be responsibility, and as the Senate was to concur, there would be security. As Congress now make appointments there is no responsibility.

M^r Gerry. The idea of responsibility in the nomination to offices is Chimerical. The President cannot know all characters, and can therefore always plead ignorance.

M^r King. As the idea of a Council proposed by Col. Mason has been supported by M^r Wilson, he would remark that most of the inconveniences charged on the Senate are incident to a Council of Advice. He differed from those who thought the Senate would sit constantly. He did not suppose it was meant that all the minute officers were to be appointed by the Senate, or any other original source, but by the higher officers of the departments to which they belong. He was of opinion also that the people would be alarmed at an unnecessary creation of new Corps which must increase the expence as well as influence of the Government.

On the question on these words in the clause viz–"He shall nominate & by & with the advice and consent of the Senate, shall appoint ambassadors, and other public ministers (and consuls) Judges of the Supreme Court". Agreed to nem: con: the insertion of "and consuls" having first taken place.

On the question on the following words "And all other officers of U.S."

N. H. ay. Mas. ay. C^t ay. N. J. ay. P^a no. Del. ay. M^d ay. V^a ay. N. C. ay. S. C. no. Geo. ay.

On motion of M^r Spaight–"that the President shall have power to fill up all vacancies that may happen during the recess of the Senate by granting Commissions which shall expire at the end of the next Session of the Senate." It was agreed to nem: con:

Section 4. "The President by and with the advice and consent of the Senate shall have power to make Treaties,—But no treaty shall be made without the consent of two thirds of the members present"–this last clause being before the House.

M^r Wilson thought it objectionable to require the concurrence of 2/3 which puts it into the power of a minority to controul the will of a majority.

M^r King concurred in the objection; remarking that as the Executive was here joined in the business, there was a check which did not exist in Congress where the concurrence of 2/3 was required.

M^r Madison moved to insert after the word "treaty" the words "except treaties of peace" allowing these to be made with less difficulty than other treaties–It was agreed to nem: con:

M^r Madison then moved to authorize a concurrence of two thirds of the Senate to make treaties of peace, without the concurrence of the President.–The President he said would necessarily derive so much power and importance from a state of war that he might be tempted if authorized, to impede a treaty of peace. M^r Butler 2^ded the motion.

M^r Gorham thought the precaution unnecessary as the means of carrying on the war would not be in the hands of the President, but of the Legislature.

M^r Gov^r Morris thought the power of the President in this case harmless; and that no peace ought to be made without the concurrence of the President, who was the general Guardian of the National interests.

M^r Butler was strenuous for the motion, as a necessary security against ambitious & corrupt Presidents. He mentioned the late perfidious policy of the Statholder in Holland; and the artifices of the Duke of Marlbro' to prolong the war of which he had the management.

M^r Gerry was of opinion that in treaties of peace a greater rather than less proportion of votes was necessary, than in other treaties. In Treaties of peace the dearest interests will be at stake, as the fisheries, territory &c. In treaties of peace also there is more danger to the extremities of the Continent of being sacrificed, than on any other occasions.

M^r Williamson thought that Treaties of peace should be guarded at least by requiring the same concurrence as in other Treaties.

On the motion of M^r Madison & M^r Butler

N. H. no. Mas. 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 part of the clause concerning treaties amended by the exception as to Treaties of peace,

N. H. ay. Mas. ay. C^t ay. N. J. no. P^a no. Del. ay. M^d ay. V^a ay. N. C. ay. S. C. ay. Geo. no.

"and may require the opinion in writing of the principal officer in each of the Executive Departments, upon any subject relating to the duties of their respective offices," being before the House

Col: Mason [60] said that in rejecting a Council to the President we were about to try an experiment on which the most despotic Government had never ventured. The Grand Signor himself had his Divan. He moved to postpone the consideration of the clause in order to take up the following.

[ [60] In the printed Journal, M^r Madison is erroneously substituted for Col: Mason.–Madison's Note.

"That it be an instruction to the Committee of the States to prepare a clause or clauses for establishing an Executive Council, as a Council of State for the President of the U. States, to consist of six members, two of which from the Eastern, two from the middle, and two from the Southern States, with a Rotation and duration of office similar to those of the Senate; such Council to be appointed by the Legislature or by the Senate."

Doctor Franklin 2^ded the motion. We seemed he said too much to fear cabals in appointments by a number, and to have too much confidence in those of single persons. Experience shewed that caprice, the intrigues of favorites & mistresses, were nevertheless the means most prevalent in monarchies. Among instances of abuse in such modes of appointment, he mentioned the many bad Governors appointed in G. B. for the Colonies. He thought a Council would not only be a check on a bad President but be a relief to a good one.

M^r Gov^r Morris. The question of a Council was considered in the Committee, where it was judged that the Presid^t by persuading his Council to concur in his wrong measures, would acquire their protection for them.

M^r Wilson approved of a Council in preference to making the Senate a party to appointm^ts.

M^r Dickinson was for a Council. It w^d be a singular thing if the measures of the Executive were not to undergo some previous discussion before the President.

M^r Madison was in favor of the instruction to the Committee proposed by Col: Mason.

The motion of M^r Mason was negatived. May^d ay. S. C. ay. Geo. ay.–N. H. no. Mas. no. C^t no. N. J. no. P^a no. Del. no. V^a no. N. C. no.

On the question, "authorizing the President to call for the opinions of the Heads of Departments, in writing": it passed in the affirmative N. H. only being no. [61]

[ [61] Not so stated in the printed Journal; but conformable to the result afterwards appearing.–Madison's Note.

The clause was then unanimously agreed to—

M^r Williamson & M^r Spaight moved "that no Treaty of peace affecting Territorial rights sh^d be made without the concurrence of two thirds of the members of the Senate present."

M^r King. It will be necessary to look out for securities for some other rights, if this principle be established; he moved to extend the motion–"to all present rights of the U. States."

Adjourned.

Saturday September 8^th In Convention

The last Report of the Committee of Eleven (see Sep^r 4) was resumed.

M^r King moved to strike out the "exception of Treaties of peace" from the general clause requiring two thirds of the Senate for making Treaties.

M^r Wilson wished the requisition of two thirds to be struck out altogether. If the majority cannot be trusted, it was a proof, as observed by M^r Ghorum, that we were not fit for one Society.

A reconsideration of the whole clause was agreed to.

M^r Gov^r Morris was ag^st striking out the "exception of Treaties of peace." If two thirds of the Senate should be required for peace, the Legislature will be unwilling to make war for that reason, on account of the Fisheries or the Mississippi, the two great objects of the Union. Besides, if a majority of the Senate be for peace, and are not allowed to make it, they will be apt to effect their purpose in the more disagreeable mode, of negativing the supplies for the war.

M^r Williamson remarked that Treaties are to be made in the branch of the Gov^t where there may be a majority of the States without a majority of the people. Eight men may be a majority of a quorum, & should not have the power to decide the conditions of peace. There would be no danger, that the exposed States, as S. Carolina or Georgia, would urge an improper war for the Western Territory.

M^r Wilson. If two thirds are necessary to make peace, the minority may perpetuate war, against the sense of the majority.

M^r Gerry enlarged on the danger of putting the essential rights of the Union in the hands of so small a number as a majority of the Senate, representing perhaps, not one fifth of the people. The Senate will be corrupted by foreign influence.

M^r Sherman was ag^st leaving the rights established by the Treaty of peace, to the Senate, & moved to annex a proviso that no such rights sh^d be ceded without the sanction of the Legislature.

M^r Gov^r Morris seconded the ideas of M^r Sherman.

M^r Madison observed that it had been too easy in the present Congress, to make Treaties altho' nine States were required for the purpose.

On the question for striking "except Treaties of peace"

N. H. ay. 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. ay.

M^r Wilson & M^r Dayton move to strike out the clause requiring two thirds of the Senate for making Treaties; on which,

N. H. no. Mas. no. C^t div^d. N. J. no. P^a no. Del. ay. M^d no. V^a no. N. C. no. S. C. no. Geo. no.

M^r Rutlidge & M^r Gerry moved that "no Treaty be made without the consent of 2/3 of all the members of the Senate"–according to the example in the present Cong^s.

M^r Ghorum. There is a difference in the case, as the President's consent will also be necessary in the new Gov^t.

On the question

N. H. no. Mass. no. (M^r Gerry 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.

M^r Sherman mov^d that no Treaty be made without a Majority of the whole number of the Senate. M^r Gerry seconded him.

M^r Williamson. This will be less security than 2/3 as now required.

M^r Sherman. It will be less embarrassing.

On the question, it passed in the negative.

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

M^r Madison moved that a Quorum of the Senate consist of 2/3 of all the members.

M^r Gov^r Morris–This will put it in the power of one man to break up a Quorum.

M^r Madison. This may happen to any Quorum.

On the Question it passed in the negative.

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

M^r Williamson & M^r Gerry mov^d "that no Treaty sh^d be made with^t previous notice to the members, & a reasonable time for their attending."

On the Question

All the States no; except N. C. S. C. & Geo. ay.

On a question on clause of the Report of the Com^e of Eleven relating to Treaties by 2/3 of the Senate.

All the States were ay.–except P^a N. J. & Geo. no.

M^r Gerry mov^d that "no officer be app^d but to offices created by the Constitution or by law."–This was rejected as unnecessary by six no's & five ays:

The Ayes. Mass. C^t N. J. N. C. Geo.–Noes. N. H. P^a Del. M^d V^a S. C.

The clause referring to the Senate, the trial of impeachments ag^st the President, for Treason & bribery, was taken up.

Col. Mason. Why is the provision restrained to Treason & bribery only? Treason as defined in the Constitution will not reach many great and dangerous offences. Hastings is not guilty of Treason. Attempts to subvert the Constitution may not be Treason as above defined. As bills of attainder which have saved the British Constitution are forbidden, it is the more necessary to extend the power of impeachments. He mov^d to add, after "bribery" "or maladministration." M^r Gerry seconded him.

M^r Madison. so vague a term will be equivalent to a tenure during pleasure of the Senate.

M^r Gov^r Morris, it will not be put in force & can do no harm. An election of every four years will prevent maladministration.

Col. Mason withdrew "maladministration" & substitutes "other high crimes & misdemesnors ag^st the State."

On the question thus altered

N. H. ay. Mass. ay. C^t ay. N. J. no. P^a no. Del. no. M^d ay. V^a ay. N. C. ay. S. C. ay. [62] Geo. ay.

[ [62] In the printed Journal, S. Carolina, no.–Madison's Note.

M^r Madison objected to a trial of the President by the Senate, especially as he was to be impeached by the other branch of the Legislature, and for any act which might be called a misdemesnor. The President under these circumstances was made improperly dependent. He would prefer the Supreme Court for the trial of impeachments, or rather a tribunal of which that should form a part.

M^r Gov^r Morris thought no other tribunal than the Senate could be trusted. The supreme Court were too few in number and might be warped or corrupted. He was ag^st a dependence of the Executive on the Legislature, considering the Legislative tyranny the great danger to be apprehended; but there could be no danger that the Senate would say untruly on their oaths that the President was guilty of crimes or facts, especially as in four years he can be turned out.

M^r Pinkney disapproved of making the Senate the Court of impeachments, as rendering the President too dependent on the Legislature. If he opposes a favorite law, the two Houses will combine ag^st him, and under the influence of heat and faction throw him out of office.

M^r Williamson thought there was more danger of too much lenity than of too much rigour towards the President, considering the number of cases in which the Senate was associated with the President.

M^r Sherman regarded the Supreme Court as improper to try the President, because the Judges would be appointed by him.

On motion of M^r Madison to strike out the words–"by the Senate" after the word "conviction"

N. H. no. Mas. no. C^t no. N. J. no. P^a ay. Del. no. M^d no. V^a ay. N. C. no. S. C. no. Geo. no.

In the amendment of Col: Mason just agreed to, the word "State" after the words "misdemeanors against," was struck out, and the words "United States," inserted unanimously, in order to remove ambiguity.

On the question to agree to clause as amended,

N. H. ay. Mas. ay. Cont. ay. N. J. ay. P^a no. Del. ay. M^d ay. V^a ay. N. C. ay. S. C. ay. Geo. ay.

On motion "The vice-President and other Civil officers of the U. S. shall be removed from office on impeachment and conviction as aforesaid" was added to the clause on the subject of impeachments.

The clause of the report made on the 5^th Sep^r & postponed was taken up to wit–"All bills for raising revenue shall originate in the House of Representatives; and shall be subject to alterations and amendments by the Senate. No money shall be drawn from the Treasury but in consequence of appropriations made by law."

It was moved to strike out the words "and shall be subject to alterations and amendments by the Senate" and insert the words used in the Constitution of Massachusetts on the same subject–"but the Senate may propose or concur with amendments as in other bills" which was agreed too nem: con:

On the question On the first part of the clause–"All bills for raising revenue shall originate in the House of Representatives" [63]

[ [63] This was a conciliatory vote, the effect of the compromise formerly alluded to. See Note Wednesday Sep^r 5.–Madison's Note.

N. H. ay. Mas. ay. C^t ay. N. J. ay. P^a ay. Del. no. M^d no. V^a ay. N. C. ay. S. C. ay. Geo. ay.

M^r Gov^r Morris moved to add to clause (3) of the report made on Sep^r 4. the words "and every member shall be on oath" which being agreed to, and a question taken on the clause so amended viz–"The Senate of the U. S. shall have power to try all impeachments; but no person shall be convicted without the concurrence of two thirds of the members present; and every member shall be on oath"

N. H. ay. Mas. ay. C^t ay. N. J. ay. P^a no. Del.–ay. M^d ay. V^a no. N. C. ay. S. C. ay. Geo. ay.

M^r Gerry repeated his motion above made on this day, in the form following: "The Legislature shall have the sole right of establishing offices not heretofore provided for" which was again negatived: Mas. Con^t & Geo. only being ay.

M^r M^cHenry observed that the President had not yet been any where authorized to convene the Senate, and moved to amend Art X. sect. 2. by striking out the words "he may convene them (the Legislature) on extraordinary occasions," & insert, "He may convene both or either of the Houses on extraordinary occasions." This he added would also provide for the case of the Senate being in Session, at the time of convening the Legislature.

M^r Wilson said he should vote ag^st the motion, because it implied that the senate might be in Session, when the Legislature was not, which he thought improper.

On the question

N. H. ay. Mas. no. C^t ay. N. J. ay. P^a no. Del. ay. M^d ay. V^a no. N. C. ay. S. C. no. Geo. ay.

A Committee was then appointed by Ballot to revise the stile of and arrange the articles which had been agreed to by the House. The committee consisted of M^r Johnson, M^r Hamilton, M^r Gov^r Morris, M^r Madison and M^r King.

M^r Williamson moved that, previous to this work of the Committee the clause relating to the number of the House of Representatives sh^d be reconsidered for the purpose of increasing the number.

M^r Madison 2^ded the Motion.

M^r Sherman opposed it he thought the provision on that subject amply sufficient.

Col: Hamilton expressed himself with great earnestness and anxiety in favor of the motion. He avowed himself a friend to a vigorous Government, but would declare at the same time, that he held it essential that the popular branch of it should be on a broad foundation. He was Seriously of opinion that the House of Representatives was on so narrow a scale as to be really dangerous, and to warrant a jealousy in the people for their liberties. He remarked that the connection between the President & Senate would tend to perpetuate him, by corrupt influence. It was the more necessary on this account that a numerous representation in the other branch of the Legislature should be established.

On the motion of M^r Williamson to reconsider, it was negatived [64]

N. H. no. Mas. no. C^t no. N. J. no. P^a ay. Del. ay. M^d ay. V^a ay. N. C. ay. S. C. ay. Geo. no.

[ [64] This motion & vote are entered on the Printed journal of the ensuing morning.–Madison's Note.

Adj^d.

Monday Sep^r 10. 1787 In Convention [65]

[ [65] "There is said to be a disposition generally prevalent thro' this state to comply with y^e plan of y^e convention without much scrutiny, Hervey, who has been in Albemarle lately, says y^t Nicholas is determined to support it however contrary it may be to his own opinions. I am persuaded that those who sacrifice solid and permanent advantages in this plan, to their idea of the transitory disposition of the people, will condemn themselves hereafter."–James McClurg to Madison, September 10, 1787.–Mad. MSS.

M^r Gerry moved to reconsider Art XIX. viz. "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 U. S. shall call a Convention for that purpose," (see Aug 6).

This constitution he said is to be paramount to the State Constitutions. It follows hence, from this article that two thirds of the States may obtain a Convention, a majority of which can bind the Union to innovations that may subvert the State Constitutions altogether. He asked whether this was a situation proper to be run into.

M^r Hamilton 2^ded the motion, but he said with a different view from M^r Gerry. He did not object to the consequences stated by M^r Gerry. There was no greater evil in subjecting the people of the U.S. to the major voice than the people of a particular State. It had been wished by many and was much to have been desired that an easier mode of introducing amendments had been provided by the articles of the Confederation. It was equally desirable now that an easy mode should be established for supplying defects which will probably appear in the new System. The mode proposed was not adequate. The State Legislatures will not apply for alterations but with a view to increase their own powers. The National Legislature will be the first to perceive and will be most sensible to the necessity of amendments, and ought also to be empowered, whenever two thirds of each branch should concur to call a Convention. There could be no danger in giving this power, as the people would finally decide in the case.

M^r Madison remarked on the vagueness of the terms, "call a Convention for the purpose," as sufficient reason for reconsidering the article. How was a Convention to be formed? by what rule decide? what the force of its acts?

On the motion of M^r Gerry to reconsider

N. H. div^d. Mas. 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 Sherman moved to add to the article "or the Legislature may propose amendments to the several States for their approbation, but no amendments shall be binding until consented to by the several States."

M^r Gerry 2^ded the motion.

M^r Wilson moved to insert, "two thirds of" before the words "several States"–on which amendment to the motion of M^r Sherman

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. no.

M^r Wilson then moved to insert "three fourths of" before "the several Sts." which was agreed to nem: con:

M^r Madison moved to postpone the consideration of the amended proposition in order to take up the following,

"The Legislature of the U. S. whenever two thirds of both Houses shall deem necessary, or on the application of two thirds of the Legislatures of the several States, shall propose amendments to this Constitution, which shall be valid to all intents and purposes as part thereof, when the same shall have been ratified by three fourths at least of the Legislatures of the several States, or by Conventions in three fourths thereof, as one or the other mode of ratification may be proposed by the Legislature of the U.S:"

M^r Hamilton 2^ded the motion.

M^r Rutlidge said he never could agree to give a power by which the articles relating to slaves might be altered by the States not interested in that property and prejudiced against it. In order to obviate this objection, these words were added to the proposition: [66] "provided that no amendments which may be made prior to the year 1808 shall in any manner affect the 4 & 5 sections of the VII article."–The postponement being agreed to,

[ [66] The Printed Journal makes the succeeding proviso as to sections 4 & 5, of the art: VII moved by M^r Rutlidge, part of the proposition of M^r Madison.–Madison's Note.

On the question on the proposition of M^r Madison & M^r Hamilton as amended

N. H. div^d. Mas. ay. C^t ay. N. J. ay. P^a ay. Del. no. M^d ay. V^a ay. N. C. ay. S. C. ay. Geo. ay.

M^r Gerry moved to reconsider Art: XXI and XXII. from the latter of which "for the approbation of Cong^s" had been struck out. He objected to proceeding to change the Government without the approbation of Congress, as being improper and giving just umbrage to that body: He repeated his objections also to an annulment of the confederation with so little scruple or formality.

M^r Hamilton concurred with M^r Gerry as to the indecorum of not requiring the approbation of Congress. He considered this as a necessary ingredient in the transaction. He thought it wrong also to allow nine States as provided by Art XXI. to institute a new Government on the ruins of the existing one. He w^d propose as a better modification of the two articles (XXI & XXII) that the plan should be sent to Congress in order that the same if approved by them, may be communicated to the State Legislatures, to the end that they may refer it to State conventions; each Legislature declaring that if the Convention of the State should think the plan ought to take effect among nine ratifying States, the same sh^d take effect accordingly.

M^r Gorham. Some States will say that nine States shall be sufficient to establish the plan, others will require unanimity for the purpose. And the different and conditional ratifications will defeat the plan altogether.

M^r Hamilton. No Convention convinced of the necessity of the plan will refuse to give it effect on the adoption by nine States. He thought this mode less exceptionable than the one proposed in the article, while it would attain the same end.

M^r Fitzimmons remarked that the words "for their approbation" had been struck out in order to save Congress from the necessity of an Act inconsistent with the Articles of Confederation under which they held their authority.

M^r Randolph declared, if no change should be made in this part of the plan, he should be obliged to dissent from the whole of it. He had from the beginning he said been convinced that radical changes in the system of the Union were necessary. Under this conviction he had brought forward a set of republican propositions as the basis and outline of a reform. These Republican propositions had however, much to his regret, been widely, and, in his opinion, irreconcileably departed from. In this state of things it was his idea and he accordingly meant to propose, that the State Conventions sh^d be at liberty to offer amendments to the plan; and that these should be submitted to a second General Convention, with full power to settle the Constitution finally. He did not expect to succeed in this proposition, but the discharge of his duty in making the attempt, would give quiet to his own mind.

M^r Wilson was against a reconsideration for any of the purposes which had been mentioned.

M^r King thought it would be more respectful to Congress to submit the plan generally to them; than in such a form as expressly and necessarily to require their approbation or disapprobation. The assent of nine States he considered as sufficient; and that it was more proper to make this a part of the Constitution itself, than to provide for it by a supplemental or distinct recommendation.

M^r Gerry urged the indecency and pernicious tendency of dissolving in so slight a manner, the solemn obligations of the articles of confederation. If nine out of thirteen can dissolve the compact. Six out of nine will be just as able to dissolve the new one hereafter.

M^r Sherman was in favor of M^r King's idea of submitting the plan generally to Congress. He thought nine States ought to be made sufficient: but that it would be best to make it a separate act and in some such form as that intimated by Col: Hamilton, than to make it a particular article of the Constitution.

On the question for reconsidering the two articles, XXI & XXII—

N. H. div^d. Mas. no. C^t ay. N. J. ay. P^a no. Del. ay. M^d ay. V^a ay. N. C. ay. S. C. no. Geo. ay.

M^r Hamilton then moved to postpone art XXI in order to take up the following, containing the ideas he had above expressed, viz

Resolved that the foregoing plan of a Constitution be transmitted to the U. S. in Congress assembled, in order that if the same shall be agreed to by them, it may be communicated to the Legislatures of the several States, to the end that they may provide for its final ratification by referring the same to the Consideration of a Convention of Deputies in each State to be chosen by the people thereof, and that it be recommended to the said Legislatures in their respective acts for organizing such convention to declare, that if the said Convention shall approve of the said Constitution, such approbation shall be binding and conclusive upon the State, and further that if the said Convention should be of opinion that the same upon the assent of any nine States thereto, ought to take effect between the States so assenting, such opinion shall thereupon be also binding upon such a State, and the said Constitution shall take effect between the States assenting thereto.

M^r Gerry 2^ded the motion.

M^r Wilson. This motion being seconded, it is necessary now to speak freely. He expressed in strong terms his disapprobation of the expedient proposed, particularly the suspending the plan of the Convention on the approbation of Congress. He declared it to be worse than folly to rely on the concurrence of the Rhode Island members of Cong^s in the plan. Maryland has voted on this floor; for requiring the unanimous assent of the 13 States to the proposed change in the federal System. N. York has not been represented for a long time past in the Convention. Many individual deputies from other States have spoken much against the plan. Under these circumstances can it be safe to make the assent of Congress necessary. After spending four or five months in the laborious & arduous task of forming a Government for our Country, we are ourselves at the close throwing insuperable obstacles in the way of its success.

M^r Clymer thought that the mode proposed by M^r Hamilton would fetter & embarrass Cong^s as much as the original one, since it equally involved a breach of the articles of Confederation.

M^r King concurred with M^r Clymer. If Congress can accede to one mode, they can to the other. If the approbation of Congress be made necessary, and they should not approve, the State Legislatures will not propose the plan to Conventions; or if the States themselves are to provide that nine States shall suffice to establish the System, that provision will be omitted, every thing will go into confusion, and all our labor be lost.

M^r Rutlidge viewed the matter in the same light with M^r King.

On the question to postpone in order to take up Col: Hamilton's motion

N. H. no. Mas. 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 Question being then taken on the article XXI. It was agreed to unanimously.

Col: Hamilton withdrew the remainder of the motion to postpone art. XXII, observing that his purpose was defeated by the vote just given.

M^r Williamson & M^r Gerry moved to re-instate the words "for the approbation of Congress" in Art: XXII. which was disagreed to nem: con:

M^r Randolph took this opportunity to state his objections to the System. They turned on the Senate's being made the Court of Impeachment for trying the Executive–on the necessity of 3/4 instead of 2/3 of each house to overrule the negative of the President–on the smallness of the number of the Representative branch,–on the want of limitation to a standing army–on the general clause concerning necessary and proper laws–on the want of some particular restraint on navigation acts–on the power to lay duties on exports–on the authority of the General Legislature to interpose on the application of the Executives of the States–on the want of a more definite boundary between the General & State Legislatures–and between the General and State Judiciaries–on the unqualified power of the President to pardon treasons–on the want of some limit to the power of the Legislature in regulating their own compensations. With these difficulties in his mind, what course he asked was he to pursue? Was he to promote the establishment of a plan which he verily believed would end in Tyranny? He was unwilling he said to impede the wishes and Judgment of the Convention, but he must keep himself free, in case he should be honored with a seat in the Convention of his State, to act according to the dictates of his judgment. The only mode in which his embarrassments could be removed, was that of submitting the plan to Cong^s to go from them to the State Legislatures, and from these to State Conventions having power to adopt reject or amend; the process to close with another General Convention with full power to adopt or reject the alterations proposed by the State Conventions, and to establish finally the Government. He accordingly proposed a Resolution to this effect.

Doc^r Franklin 2^ded the motion.

Col: Mason urged & obtained that the motion should lie on the table for a day or two to see what steps might be taken with regard to the parts of the system objected to by M^r Randolph.

M^r Pinkney moved "that it be an instruction to the Committee for revising the stile and arrangement of the articles agreed on, to prepare an address to the people, to accompany the present Constitution, and to be laid with the same before the U. States in Congress."

[67]The motion itself was referred to the Committee nem: con:

[67]M^r Randolph moved to refer to the Committee also a motion relating to pardons in cases of Treason–which was agreed to nem: con:

[ [67] These motions are not entered in the printed Journal.–Madison's Note.

Adjourned.

Tuesday Sep^r 11. 1787. In Convention

The Report of the Committee of stile & arrangement not being made & being waited for,

The House Adjourned.

Wednesday Sep^r 12. 1787. In Convention

Doc^r Johnson from the Committee of stile &c. reported a digest of the plan, of which printed copies were ordered to be furnished to the members. He also reported a letter to accompany the plan, to Congress. [68]

[ [68] A note by Madison in the text says: "(here insert a transcript of the former from the annexed sheet as printed and of the latter from the draft as finally agreed to,)" and his footnote says: "This is a literal copy of the printed Report. The Copy in the printed Journal contains some of the alterations subsequently made in the House." No transcript of the report was, however, made by Madison, but the printed copy is among his papers. It is a large folio of four pages printed on one side of each page, and is accurately reproduced here. Madison's copy is marked by him: "as reported by Com^e of revision, or stile and arrangement Sep^r 12." The report is, in fact, correctly printed in the Journal of the Federal Convention, 351, et seq., Madison's statement to the contrary being an error. General Bloomfield furnished Brearley's copy to John Quincy Adams, and he printed it without the alterations and amendments which Brearley had made. The extent of Brearley's alterations and amendments may be seen in the copy printed in the Documentary History of the Constitution, i., 362, et seq.

We, the people of the United States, in order to form a more perfect union, to establish justice, insure domestic tranquility, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.

Article I.

Sect. 1. All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

Sect. 2. The House of Representatives shall be composed of members chosen every second year by the people of the several states, and the electors in each state shall have the qualifications requisite for electors of the most numerous branch of the state legislature.

No person shall be a representative who shall not have attained to the age of twenty-five years, and been seven years a citizen of the United States, and who shall not, when elected, be an inhabitant of that state in which he shall be chosen.

Representatives and direct taxes shall be apportioned among the several states which may be included within this Union, according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to servitude for a term of years, and excluding Indians not taxed, three-fifths of all other persons. The actual enumeration shall be made within three years after the first meeting of the Congress of the United States, and within every subsequent term of ten years, in such manner as they shall by law direct. The number of representatives shall not exceed one for every forty thousand, but each state shall have at least one representative: and until such enumeration shall be made, the state of New-Hampshire shall be entitled to chuse three, Massachusetts eight, Rhode-Island and Providence Plantations one, Connecticut five, New-York, six, New-Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North-Carolina five, South-Carolina five, and Georgia three.

When vacancies happen in the representation from any state, the Executive authority thereof shall issue writs of election to fill such vacancies.

The House of Representatives shall choose their Speaker and other officers; and they shall have the sole power of impeachment.

Sect. 3. The Senate of the United States shall be composed of two senators from each state, chosen by the legislature thereof, for six years: and each senator shall have one vote.

Immediately after they shall be assembled in consequence of the first election, they shall be divided [69] as equally as may be into three classes. The seats of the senators 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, and of the third class at the expiration of the sixth year, so that one-third may be chosen every second year: and if vacancies happen by resignation, or otherwise, during the recess of the Legislature of any state, the Executive thereof may make temporary appointments until the next meeting of the Legislature.

[ [69] The words, "by lot," were not in the Report as printed; but were inserted in manuscript, as a typographical error, departing from the text of the Report referred to the Committee of style & arrangement.–Marginal note by Madison.

No person shall be a senator who shall not have attained to the age of thirty years, and been nine years a citizen of the United States, and who shall not, when elected, be an inhabitant of that state for which he shall be chosen.

The Vice-President of the United States shall be, ex officio, [70] President of the senate, but shall have no vote, unless they be equally divided.

[ [70] Ex officio struck out in Madison's copy.

The Senate shall choose their other officers, and also a President pro tempore, in the absence of the Vice-President, or when he shall exercise the office of President of the United States.

The Senate shall have the sole power to try all impeachments. When sitting for that purpose, they shall be on oath. When the President of the United States is tried, the Chief Justice shall preside: and no person shall be convicted without the concurrence of two-thirds of the members present.

Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, 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.

Sect. 4. The times, places and manner of holding elections for senators and representatives, shall be prescribed in each state by the legislature thereof: but the Congress may at any time by law make or alter such regulations.

The Congress shall assemble at least once in every year, and such meeting shall be on the first Monday in December, unless they shall by law appoint a different day.

Sect. 5. Each house shall be the judge of the elections, returns and qualifications of its own members, and a majority of each shall constitute a quorum to do business: but a smaller number may adjourn from day to day, and may be authorized to compel the attendance of absent members, in such manner, and under such penalties as each house may provide.

Each house may determine the rules of its proceedings; punish its members for disorderly behaviour, and, with the concurrence of two-thirds, expel a member.

Each house shall keep a journal of its proceedings, and from time to time publish the same, excepting such parts as may in their judgment require secrecy; and the yeas and nays of the members of either house on any question shall, at the desire of one-fifth of those present, be entered on the journal.

Neither house, during the session of Congress, shall, without the consent of the other, adjourn for more than three days, nor to any other place than that in which the two houses shall be sitting.

Sect. 6. The senators and representatives shall receive a compensation for their services, to be ascertained by law, and paid out of the treasury of the United States. They shall in all cases, except treason, felony and breach of the peace, be privileged from arrest during their attendance at the session of their respective houses, and in going to and returning from the same; and for any speech or debate in either house, they shall not be questioned in any other place.

No senator or representative shall, during the time for which he was elected, be appointed to any civil office under the authority of the United States, which shall have been created, or the emoluments whereof shall have been encreased during such time; and no person holding any office under the United States, shall be a member of either house during his continuance in office.

Sect. 7. The enacting stile of the laws shall be, "Be it enacted by the senators and representatives in Congress assembled."

All bills for raising revenue shall originate in the house of representatives: but the senate may propose or concur with amendments as on other bills.

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. If he approve he shall sign it, but if not he shall return it, with his objections to that house in which it shall have originated, who shall enter the objections at large on their journal, and proceed to reconsider it. If after such reconsideration two-thirds of that house shall agree to pass the bill, it shall be sent, together with the objections, to the other house, by which it shall likewise be reconsidered, and if approved by two-thirds of that house, 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 and against the bill shall be entered on the journal of each house respectively. If any bill shall not be returned by the President within ten days (Sundays excepted) after it shall have been presented to him, the same shall be a law, in like manner as if he had signed it, unless the Congress by their adjournment prevent its return, in which case it shall not be a law.

Every order, resolution, or vote to which the concurrence of the Senate and House of Representatives may be necessary (except on a question of adjournment) shall be presented to the President of the United States; and before the same shall take effect, shall be approved by him, or, being disapproved by him, shall be repassed by [71] three-fourths [72] of the Senate and House of Representatives, according to the rules and limitations prescribed in the case of a bill.

[ [71] In the entry of this Report in the printed Journal "two-thirds" are substituted for "three-fourths." This change was made after the Report was received.–Madison's Note. This is a mistake. The printed Journal has it "three fourths."

[ [72] A marginal note says "two thirds."

Sect. 8. The Congress may by joint ballot appoint a treasurer. They shall have power

To lay and collect taxes, duties, imposts and excises; to pay the debts and provide for the common defence and general welfare of the United States. [73]

To lay and collect taxes, duties, imposts and excises; to pay the debts and provide for the common defence and general welfare of the United States. [73]

[ [73] "but all duties imposts & excises shall be uniform throughout the U. States," interlined by Madison.

To borrow money on the credit of the United States.

To regulate commerce with foreign nations, among the several states, and with the Indian tribes.

To establish an uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the United States.

To coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures.

To provide for the punishment of counterfeiting the securities and current coin of the United States.

To establish post offices and post roads.

To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.

To constitute tribunals inferior to the supreme court.

To define and punish piracies and felonies committed on the high seas, and [74] offences against the law of nations.

[ [74] (punish) a typographical omission.–Madison's Note.

To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water.

To raise and support armies: but no appropriations of money to that use shall be for a longer term than two years.

To provide and maintain a navy.

To make rules for the government and regulation of the land and naval forces.

To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions.

To provide for organizing, arming and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the States respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress.

To exercise exclusive legislation in all cases whatsoever, over such district (not exceeding ten miles square) as may, by cession of particular States, and the acceptance of Congress, become the seat of the government of the United States, and to exercise like authority over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dock-yards, and other needful buildings–And

To make all laws which 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. 9. The migration or importation of such persons as the several states now existing shall think proper to admit, shall not be prohibited by the Congress prior to the year one thousand eight hundred and eight, but a tax or duty may be imposed on such importation, not exceeding ten dollars for each person.

The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.

No bill of attainder shall be passed, nor any ex post facto law.

No capitation tax shall be laid, unless in proportion to the census herein before directed to be taken. [75]

To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water.

To raise and support armies: but no appropriations of money to that use shall be for a longer term than two years.

To provide and maintain a navy.

To make rules for the government and regulation of the land and naval forces.

To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions.

To provide for organizing, arming and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the States respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress.

To exercise exclusive legislation in all cases whatsoever, over such district (not exceeding ten miles square) as may, by cession of particular States, and the acceptance of Congress, become the seat of the government of the United States, and to exercise like authority over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dock-yards, and other needful buildings–And

To make all laws which 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.

[ [75] "No preference shall be given by any regulation of commerce or revenue to the ports of one State over those of another–nor shall vessels bound to or from one State be obliged to enter, clear or pay duties in another," interlined by Madison.

No tax or duty shall be laid on articles exported from any State.

No money shall be drawn from the treasury, but in consequence of appropriations made by law.

No title of nobility shall be granted by the United States. And no person holding any office of profit or trust under them, shall, without the consent of the Congress, accept of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state.

Sect. 10. No state shall coin money, nor emit bills of credit, nor make anything but gold or silver coin a tender in payment of debts, nor pass any bill of attainder, nor ex post facto laws, nor laws altering or impairing the obligation of contracts; nor grant letters of marque and reprisal, nor enter into any treaty, alliance, or confederation, nor grant any title of nobility.

No state shall, without the consent of Congress, lay imposts or duties on imports or exports, nor with such consent, but to the use of the treasury of the United States. [76] [77] Nor keep troops nor ships of war in time of peace, nor enter into any agreement or compact with another state, nor with any foreign power. Nor engage in any war, unless it shall be actually invaded by enemies, or the danger of invasion be so iminent, as not to admit of delay until the Congress can be consulted.

[ [76] provided that no State shall be restrained from imposing the usual duties on produce exported from such State for the sole purpose of defraying the charges of inspecting packing storing & indemnifying the losses on such produce while in the custody of public officers. But all such regulations shall in case of abuse be subject to the revision & controul of Congress.–Marginal note by Madison.

[ [77] "No State shall without the consent of Congress," interlined by Madison.