Saturday September 15, 1787
In Convention of the Whole
James Madison's Notes
Mr. Carrol reminded the House that no address to the people had yet been prepared. He considered it of great importance that such an one should accompany the Constitution. The people had been accustomed to such on great occasions, and would expect it on this-- He moved that a Committee be appointed for the special purpose of preparing an Address.
Mr Rutledge objected on account of the delay it would produce and the impropriety of addressing the people before it was known whether Congress would approve and support the plan-- Congress, if an address be thought proper can prepare as good a one-- The members of the Convention can also explain the reasons of what has been done to their respective Constituents.
Mr Sherman concurred in the opinion that an address was both unnecessary and improper.
On the motion of Mr. Carrol
Mr. Langdon. Some gentlemen have been very uneasy that no increase of the number of Representatives has been admitted. It has in particular been thought that one more ought to be allowed to N. Carolina. He was of opinion that an additional one was due both to that State & to Rho: Island. & moved to reconsider for that purpose.
Mr. Sherman. When the Committee of eleven reported the apportionment-- five Representatives were thought the proper share of N-- Carolina. Subsequent information however seemed to entitle that State to another--
On the motion to reconsider
N-- H-- ay-- Mas-- no. Ct ay-- N-- J. no-- Pen. divd. Del. ay. Md. ay. Va. ay-- N. C. ay. S-- C. ay. Geo. ay. [Ayes -- 8; noes -- 2; divided -- 1.]
Mr Langdon moved to add I member to each of the Representations of N-- Carolina & Rho: Island.
Mr. King was agst. any change whatever as opening the door for delays. There had been no official proof that the numbers of N-- C are greater than before estimated. And he never could sign the Constitution if Rho: Island is to be allowed two members that is, one fourth of the number allowed to Massts, which will be known to be unjust.
Mr. Pinkney urged the propriety of increasing the number of Reps allotted to N. Carolina.
Mr. Bedford contended for an increase in favor of Rho: Island, and of Delaware also
On the question for allowing two Reps. to Rho: Island it passed in the negative
N. H-- ay. Mas. no. Ct. no. N. J. no. Pa. no. Del. ay. Md. ay. Va. no. N. C-- ay. S. C. no-- Geo-- ay. [Ayes--5; noes -- 6.]
On the question for allowing six to N. Carolina, it passed in the negative
N. H. no. Mas. no. Ct. no--N. J. no. Pa. no. Del-- no--Md. ay. Va. ay. N -- C. ay. S-- C. ay. Geo. ay. [Ayes -- 5; noes -- 6.]
Art 1. sect. 10. (paragraph) 2) "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 U. States" --
In consequence of the proviso moved by Col: Mason: and agreed to on the 13 Sepr, this part of the section was laid aside in favor of the following substitute viz. "No State shall, without the consent of Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its Inspection laws; and the nett produce of all duties and imposts, laid by any State on imports or exports, shall be for the use of the Treasury of the U-- S--; and all such laws shall be subject to the revision and controul of the Congress"
On a motion to strike out the last part "and all such laws shall be subject to the revision and controul of the Congress" it passed in the Negative.
N. H. no. Mas. no. Ct no-- N. J. no. Pa divd. Del. no. Md. no Va ay-- N-- C-- ay. S. C. no Geo. ay. [Ayes -- 3; noes -- 7; divided -- 1.]
The substitute was then agreed to: Virga. alone being in the Negative. 2
The remainder of the paragraph being under consideration -- viz -- "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 imminent as not to admit of delay, until Congress can be consulted"
Mr. Mc.Henry & Mr. Carrol moved that "no State shall be restrained from laying duties of tonnage for the purpose of clearing harbours and erecting light-houses".
Col. Mason in support of this explained and urged the situation of the Chesapeak which peculiarly required expences of this sort.
Mr. Govr. Morris. The States are not restrained from laying tonnage as the Constitution now Stands. The exception proposed will imply the Contrary, and will put the States in a worse condition than the gentleman (Col Mason) wishes.
Mr. Madison. Whether the States are now restrained from laying tonnage duties depends on the extent of the power "to regulate commerce". These terms are vague but seem to exclude this power of the States-- They may certainly be restrained by Treaty. He observed that there were other objects for tonnage Duties as the support of Seamen &c. He was more & more convinced that the regulation of Commerce was in its nature indivisible and ought to be wholly under one authority.
Mr. Sherman. The power of the U. States to regulate trade being supreme can controul interferences of the State regulations when such interferences happen; so that there is no danger to be apprehended from a concurrent jurisdiction.
Mr. Langdon insisted that the regulation of tonnage was an essential part of the regulation of trade, and that the States ought to have nothing to do with it. On motion "that no "State shall lay any duty on tonnage without the Consent "of Congress"
N. H-- ay-- Mas. ay. Ct. divd. N. J. ay. Pa. no. Del. ay. Md. ay. Va. no. N-- C. no. S-- C. ay. Geo. no. [Ayes -- 6; noes -- 4; divided -- 1.]
The remainder of the paragraph was then remoulded and passed as follows viz-- "No State shall without the consent of Congress, lay any duty of tonnage, keep troops or ships of war in time of peace, enter into any agreement or compact with another State, or with a foreign power, or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay"
Art II. sect. 1. (paragraph 6) "or the period for chusing another president arrive" was changed into "or a President shall be elected" comformably to a vote of the day of
Mr. Rutlidge and Docr Franklin moved to annex to the end paragraph 7. sect. 1. art II-- "and he (the President) shall not receive, within that period, any other emolument from the U. S. or any of them." on which question
N-- H. ay-- Mas. ay. Ct. no. N. J. no. Pa ay. Del. no. Md. ay-- Va. ay. N. C. no. S-- C. ay. Geo-- ay. [Ayes--7; noes -- 4.]
Art: II. sect. 2. "he shall have power to grant reprieves and pardons for offences against the U. S. &c"
Mr Randolph moved to "except cases of treason". The prerogative of pardon in these cases was too great a trust. The President may himself be guilty. The Traytors may be his own instruments.
Col: Mason supported the motion.
Mr Govr Morris had rather there should be no pardon for treason, than let the power devolve on the Legislature.
Mr Wilson. Pardon is necessary for cases of treason, and is best placed in the hands of the Executive. If he be himself a party to the guilt he can be impeached and prosecuted.
Mr. King thought it would be inconsistent with the Constitutional separation of the Executive & Legislative powers to let the prerogative be exercised by the latter -- A Legislative body is utterly unfit for the purpose. They are governed too much by the passions of the moment. In Massachusetts, one assembly would have hung all the insurgents in that State: the next was equally disposed to pardon them all. He suggested the expedient of requiring the concurrence of the Senate in Acts of Pardon.
Mr. Madison admitted the force of objections to the Legislature, but the pardon of treasons was so peculiarly improper for the President that he should acquiesce in the transfer of it to the former, rather than leave it altogether in the hands of the latter. He would prefer to either an association of the Senate as a Council of advice, with the President.
Mr Randolph could not admit the Senate into a share of the Power. the great danger to liberty lay in a combination between the President & that body --
Col: Mason. The Senate has already too much power--There can be no danger of too much lenity in legislative pardons, as the Senate must con concur, & the President moreover can require 2/3; of both Houses
On the motion of Mr. Randolph
N. H. no-- Mas. no-- Ct. divd. N-- J-- no. Pa. no--Del. no. Md no-- Va ay-- N-- C. no-- S. C. no. Geo--ay. [Ayes -- 2; noes -- 8; divided -- 1.
Art II. sect. 2. (paragraph 2) To the end of this, Mr Governr. Morris moved to annex "but the Congress may by law vest the appointment of such inferior Officers as they think proper, in the President alone, in the Courts of law, or in the heads of Departments." Mr Sherman 2ded. the motion
Mr. Madison. It does not go far enough if it be necessary at all -- Superior Officers below Heads of Departments ought in some cases to have the appointment of the lesser offices.
Mr Govr Morris There is no necessity. Blank Commissions can be sent --
On the motion
N. H. ay. Mas-- no-- Ct ay. N. J. ay. Pa. ay. Del. no. Md. divd Va no. N. C. ay-- S C no. Geo-- no-- [Ayes -- 5; noes -- 5; divided -- 1.]
The motion being lost by the equal division of votes, It was urged that it be put a second time, some such provision being too necessary, to be omitted. and on a second question it was agreed to nem. con.
Art II Sect. 1. The words, "and not per capita" -- were struck out as superfluous--and the words "by the Representatives" also -- as improper, the choice of President being in another mode as well as eventually by the House of Reps--
Art: II. Sect. 2. After "Officers of the U. S. whose appointments are not otherwise provided for," were added the words "and which shall be established by law". 3
Art III. sect. 2. parag: 3.. Mr. Pinkney & Mr. Gerry moved to annex to the end. "And a trial by jury shall be preserved as usual in civil cases."
Mr. Gorham. The constitution of Juries is different in different States and the trial itself is usual in different cases in different States,
Mr. King urged the same objections
Genl. Pinkney also. He thought such a clause in the Constitution would be pregnant with embarassments
The motion was disagreed to nem: con:
Art. IV. sect 2. parag: 3. the term "legally" was struck out, and "under the laws thereof" inserted after the word "State," 4 in compliance with the wish of some who thought the term legal equivocal, and favoring the idea that slavery was legal in a moral view--
Art. IV. sect 3. "New States may be admitted by the Congress into this Union: but no new State shall be formed or erected within the jurisdiction of any other State; nor any State be formed by the junction of two or more States, or parts of States, without the consent of the Legislatures of the States concerned as well as of the Congs."
Mr Gerry moved to insert after "or parts of States" the words "or a State and part of a State" which was disagreed to by a large majority; it appearing to be supposed that the case was comprehended in the words of the clause as reported by the Committee.
Art. IV. sect. 4. After the word "Executive" were inserted the words "when the Legislature cannot be Convened" 5
Art-- V. "The Congress, 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 the one or the other mode of ratification may be proposed by the Congress: Provided that no amendment which may be made prior to the year 1808 shall in any manner affect the 1 & 4 clauses in the 9. section of article I ."
Mr. Sherman expressed his fears that three fourths of the States might be brought to do things fatal to particular States, as abolishing them altogether or depriving them of their equality in the Senate. He thought it reasonable that the proviso in favor of the States importing slaves should be extended so as to provide that no State should be affected in its internal police, or deprived of its equality in the Senate.
Col: Mason thought the plan of amending the Constitution exceptionable & dangerous. As the proposing of amendments is in both the modes to depend, in the first immediately, and in the second, ultimately, on Congress, no amendments of the proper kind would ever be obtained by the people, if the Government should become oppressive, as he verily believed would be the case. 6
Mr. Govr. Morris & Mr. Gerry moved to amend the article so as to require a Convention on application of 2/3; of the Sts
Mr Madison did not see why Congress would not be as much bound to propose amendments applied for by two thirds of the States as to call a call a Convention on the like application. He saw no objection however against providing for a Convention for the purpose of amendments, except only that difficulties might arise as to the form, the quorum &c. which in Constitutional regulations ought to be as much as possible avoided.
The motion of Mr. Govr Morris and Mr. Gerry was agreed to nem: con (see: the first part of the article as finally past)
Mr Sherman moved to strike out of art. V. after "legislatures" the words "of three fourths" and so after the word "Conventions" leaving future Conventions to act in this matter, like the present Conventions according to circumstances.
On this motion
N-- H-- divd. Mas-- ay-- Ct ay. N-- J. ay-- Pa no. Del-- no. Md no. Va no. N. C. no. S-- C. no. Geo-- no. [Ayes -- 3; noes -- 7; divided -- 1.]
Mr Gerry moved to strike out the words "or by Conventions in three fourths thereof"
On this motion
N-- H-- no. Mas. no-- Ct. ay. N-- J. no. Pa no--Del-- no. Md no. Va. no. N-- C. no. S. C. no-- Geo-- no. [Ayes -- 1; noes -- 10.]
M-- Sherman moved according to his idea above expressed to annex to the end of the article a further proviso "that no State shall without its consent be affected in its internal police, or deprived of its equal suffrage in the Senate",
Mr. Madison. Begin with these special provisos, and every State will insist on them, for their boundaries, exports &c.
On the motion of Mr. Sherman
N. H-- no. Mas. no. Ct ay. N. J. ay-- Pa no. Del-- ay. Md. no. Va. no N. C. no. S. C. no. Geo. no. [Ayes -- 3; noes -- 8.]
Mr. Sherman then moved to strike out art V altogether
Mr Brearley 2ded. the motion, on which
N. H. no. Mas. no. Ct. ay. N. J. ay. Pa. no. Del. divd. Md. no. Va. no. N. C. no. S. C. no. Geo. no [Ayes -- 2; noes -- 8; divided -- 1.]
Mr. Govr Morris moved to annex a further proviso--"that no State, without its consent shall be deprived of its equal suffrage in the Senate"
This motion being dictated by the circulating murmurs of the small States was agreed to without debate, no one opposing it, or on the question, saying no.
Col: Mason expressing his discontent at the power given to Congress by a bare majority to pass navigation acts, which he said would not only enhance the freight, a consequence he did not so much regard -- but would enable a few rich merchants in Philada N. York & Boston, to monopolize the Staples of the Southern States & reduce their value perhaps 50 Per Ct -- moved a further proviso "that no law in nature of a navigation act be passed before the year 1808, without the consent of 2/3; of each branch of the Legislature
On this motion
N. H. no. Mas-- no. Ct no. N-- J. no-- Pa no. Del. no. Md ay. Va. ay. N. C abst S. C. no-- Geo-- ay. [Ayes -- 3; noes -- 7; absent -- 1.]
Mr Randolph animadverting on the indefinite and dangerous power given by the Constitution to Congress, expressing the pain he felt at differing from the body of the Convention, on the close of the great & awful subject of their labours, and anxiously wishing for some accommodating expedient which would relieve him from his embarrassments, made a motion importing "that amendments to the plan might be offered by the State Conventions, which should be submitted to and finally decided on by another general Convention" 7 Should this proposition be disregarded, it would he said be impossible for him to put his name to the instrument. Whether he should oppose it afterwards he would not then decide but he would not deprive himself of the freedom to do so in his own State, if that course should be prescribed by his final judgment--
Col: Mason 2ded. & followed Mr. Randolph in animadversions on the dangerous power and structure of the Government, concluding that it would end either in monarchy, or a tyrannical aristocracy; which, he was in doubt. but one or other, he was sure. This Constitution had been formed without the knowledge or idea of the people. A second Convention will know more of the sense of the people, and be able to provide a system more consonant to it. It was improper to say to the people, take this or nothing. As the Constitution now stands, he could neither give it his support or vote in Virginia; and he could not sign here what he could not support there. With the expedient of another Convention as proposed, he could sign. 8
Mr. Pinkney. These declarations from members so respectable at the close of this important scene, give a peculiar solemnity to the present moment. He descanted on the consequences of calling forth the deliberations & amendments of the different States on the subject of Government at large. Nothing but confusion & contrariety could spring from the experiment. The States will never agree in their plans--And the Deputies to a second Convention coming together under the discordant impressions of their Constituents, will never agree. Conventions are serious things, and ought not to be repeated--He was not without objections as well as others to the plan. He objected to the contemptible weakness & dependence of the Executive. He objected to the power of a majority only of Congs over Commerce. But apprehending the danger of a general confusion, and an ultimate decision by the Sword, he should give the plan his support.
Mr. Gerry, stated the objections which determined him to withhold his name from the Constitution. 1. the duration and re-eligibility of the Senate. 2. the power of the House of Representatives to conceal their journals. 3-- the power of Congress over the places of election. 4 the unlimited power of Congress over their own compensations. 5 Massachusetts has not a due share of Representatives allotted to her. 6. 3/5; of the Blacks are to be represented as if they were freemen 7. Under the power over commerce, monopolies may be established. 8. The vice president being made head of the Senate. He could however he said get overall these, if the rights of the Citizens were not rendered insecure 1. by the general power of the Legislature to make what laws they may please to call necessary and proper. 2. raise armies and money without limit. 3. to establish a tribunal without juries, which will be a Star-chamber as to Civil cases. Under such a view of the Constitution, the best that could be done he conceived was to provide for a second general Convention.
On the question on the proposition of Mr Randolph. All the States answered-- no
On the question to agree to the Constitution. as amended. 9 All the States ay.
The Constitution was then ordered to be engrossed.
And the House adjourned 10
1: In the printed Journal N. Carolina-- no & S.
2: Taken from Journal, which ascribes Vote 545, Detail of Ayes and Noes, to this question. The correctness of this is doubtful.
3: Based upon Journal (p. 383). Crossed out "It was moved and seconded to appoint a Committee to prepare an address to the People of the United States to accompany the Constitution which passed in the negative. It was moved and seconded to reconsider the 3rd clause, 2nd sect, 1st article. which passed in the affirmative It was moved and seconded to --"
See further Votes 541--566, Detail of Ayes and Noes.
Journal (pp. 383--385) adds the following amendments, evidently compiled from the interlineations of the Brearley copy: --
Article second, section first, clause first. Strike out the words "in the following manner," and insert in their stead the words "as follows."
Section first, clause second. Transpose the words "shall be appointed an elector," to the end of the clause; and instead of the word "nor" read "or."
Section first, clause third. Strike out the words "and not per capita," and the words "by the representatives."
Section first, clause fourth. Strike out the words "time in," and insert the words "day on;" strike out "but the election shall be on the same day," and insert "which day shall be the same."
Section first, clause seventh. Instead of "receive a fixed compensation for his services," read "receive for his services a compensation."
In the oath to be taken by the president, strike out the word "judgment," and insert "abilities."
Section second, clause first. After the words "militia of the several states," add the words "when called into the actual service of the United States."
Section second, clause second. After the words "provided for," add "and which shall be established by law."
Article third, section first. Strike out the words "both in law and equity."
Section second, clause first. Strike out the word "both."...
Article fourth, section second, clause second. Instead of "and removed," read "to be removed."
Section second, clause third. For "of regulations subsisting," read "of any law or regulation."...
Article fourth, section fourth. After the word "executive," insert "when the legislature cannot be convened."
4: Crossed out "in another place". Change accords with Journal, p. 384.
5: Taken from Journal, see note 5.
6: In the margin of his copy of the draft of September 12, Mason had written:
"Article 5th --By this article Congress only have the power of proposing amendments at any future time to this constitution and should it prove ever so oppressive, the whole people of America can't make, or even propose alterations to it; a doctrine utterly subversive of the fundamental principles of the rights and liberties of the people.".
7: Upon this proposal, see August 31 and September 10.
8: For Mason's objections, (This was written by Mason on the blank pages of his copy of the draft of September 12. Mason supplied copies of this in one form or another to several people,and it was finally printed in pamphlet form. Angle brackets indicate additions or changes made before printing. (It is reprinted here from Rowland's Life of George Mason, II, 387--390). See August 31.
9: In addition to the changes noted above in the Records, September 13--15, the following have been compiled from the Baldwin, Brearley and Washington copies of the draft of September 12:--
- Article I, Section 7, paragraph 1 -- "The enacting stile..."struck out.
- Article II, Section 1, paragraph 3 -- "government of the United States" substituted for "general government".
- Article II, Section 1, paragraph 8 -- the dash "--" after "I" struck out.
- Article III, Section 3, paragraph 2 -- "or" substituted for "nor" before "forfeiture" and the comma "," after "forfeiture" struck out.