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Memorial and Remonstrance and Notes of Debates in the Federal Convention
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Source: Internet Archive writingsjames02madirich; Project Gutenberg #40861/#41095 Source URL: https://archive.org/details/writingsjames02madirich ; https://www.gutenberg.org/ebooks/40861 ; https://www.gutenberg.org/ebooks/41095 Public domain basis: Public-domain US editions edited by Gaillard Hunt: The Writings of James Madison, vol. 2, 1783-1787 (New York: G. P. Putnam's Sons, 1901); The Journal of the Debates in the Convention which Framed the Constitution of the United States (New York: G. P. Putnam's Sons, 1908). Coverage: Partial: Hunt's Writings vol. 2 (letters and papers 1783-1787, including the Memorial and Remonstrance against Religious Assessments, 1785, Vices of the Political System of the United States, 1787, and Madison's preface to the Debates), as Internet Archive OCR; plus the complete Notes of Debates in the Federal Convention in Hunt's 1908 two-volume edition from Gutenberg.
The Writings of James Madison, vol. 2, 1783-1787 (Gaillard Hunt, ed., 1901)
# The Writings of James Madison, vol. 2, 1783-1787 (Gaillard Hunt, ed., 1901)
The Writings Of James Madison Volume Ii
THE WRITINGS
OF
JAMES MADISON
VOLUME II. 1783-1787
Of This Letter-Press Edition
OF THIS LETTER-PRESS EDITION
750 COPIES HA VE BEEN PRINTED FOR SALE
No.....
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December, 1901
The Writings Of James Madison
THE WRITINGS
OF
JAMES MADISON
h
COMPRISING HIS PUBLIC PAPERS AND HIS PRIVATE COR-
RESPONDENCE, INCLUDING NUMEROUS LETTERS AND
DOCUMENTS NOW FOR THE FIRST TIME PRINTED
EDITED BY
GAILLARD HUNT
VOLUME II. 1783-1787
G. P. Putnam'S Sons New York London
G. P. PUTNAM'S SONS
NEW YORK LONDON
27 WEST TWENTY-THIRD STREET 24 BEDFORD STREET, STRAND
&|re Knickerbocker flrtss 1901
Ube Itnfcfcerbocfcer press, View Iflorfc
Contents Of Volume Ii. Page
CONTENTS OF VOLUME II.
PAGE
Chronology xv
1783. To Edmund Randolph, July 8th .... 2
Impost in the Assembly — Nathan award — Place of sitting of Congress.
To Edmund Randolph, July I5th .... 2
Attachment of Philadelphia to Federal Government.
To Edmund Randolph, July 28th .... 3
Return of Congress to Philadelphia — Seat of Federal Govern ment — The definitive treaty of peace.
To Thomas Jefferson, August nth .... 5
The definitive treaty — Dana's mission to Russia — Ratification of treaty with Sweden — The peace establishment — Fate of the budget.
To Edmund Randolph, August I2th .... 8
Penurious spirit of Massachusetts — Statue voted for General Washington — His counsel sought.
To Edmund Randolph, August i8th .... 9
Seat of Government — Letters from Laurens — South Carolina agrees to the impost.
To Edmund Randolph, August 24th 10
Carleton's evacuation of New York.
To Edmund Randolph, August 3Oth . . . . n
British pamphlet on the subject of commercial treaty — Seat of Federal Government.
To James Madison, August 3Oth . . . . 13
Evacuation of New York — Seat of Federal Government.
vi CONTENTS OF VOL UME II.
To James Madison, September 8th .... 14
His mother's health — His slave Billy.
To Edmund Randolph, September 8th . . . 15
The definitive treaty — Seat of Federal Government — Sale of land warrants in Virginia.
To Edmund Randolph, September I3th ... 17
Prospects of a commercial treaty.
To Edmund Randolph, September 2Oth . . . 18
The Virginia cession.
To Thomas Jefferson, September 2Oth . . . 18
Territorial cession and seat of Federal Government — Personal plans — The peace establishment — Election of a secretary to Congress — A tax on department of finance — Investigations of mutiny.
To Edmund Randolph, September 3Oth ... 22
Reception of the Dutch Minister — Rule concerning prizes.
To Edmund Randolph, October I3th ... 24
Permanent seat of Congress — Arrival of Van Berkel.
-To Thomas Jefferson, December loth ... 27
Attitude of Mason towards the impost and the territorial ces sion — Prospects of a convention for revising the Form of gov ernment — Course of reading — Shape of the earth.
1784.
To Edmund Randolph, March loth .... 30
Course of reading — Extradition case of George Hancock. -To Thomas Jefferson, March i6th .... 34
Obligation to ratify a Minister's act — Number of votes neces sary to ratify a treaty of peace — Cession of territory — The Virginia council of State — Free navigation of the Potomac and boundary of Maryland — Negotiations with Maryland proposed — Books on government — Pair of spectacles ordered — Extra dition with South Carolina.
To Thomas Jefferson April 25th .... 46
Movements of Mazzei — Mazzei's opinion of public men — Navigation of the Potomac — Subterraneous city in Siberia.
^
CONTENTS OF VOLUME II. vii
PAGE
James Madison, May I3th ..... 50
Jefferson's appointment.
To Thomas Jefferson, May I5th . . . . 51
Revisal of State constitution — Election of Speaker.
To James Madison, June 5th ..... 52
Tobacco accounts.
To James Madison, June 24th ..... 53
Tobacco accounts.
Notes of speech on proposed amendment to Virginia constitution, June ....... 54, n.
To Thomas Jefferson, July 3d ..... 56
Taxation in Virginia — Ports of entry — Agitation for federal convention — General assessment for religious purposes pro posed — Sale of public lands — Efforts for Thomas Paine — Negotiations with Maryland for Potomac — Education of Jeffer son's nephew — Confusion in revenue department.
To George Washington, August I2th ... 63
Efforts in behalf of Thomas Paine.
To Thomas Jefferson, August 2Oth .... 64
Footing of the British debts — Ports of entry — Prices in Vir ginia — The damage to crops — Free navigation of the Missis sippi — Spain will not persist in her present attitude — Discussion of the subject — Jobs for Kentucky lands— Education of Jeffer son's nephew.
To James Madison, September 6th .... 76
Journey with Lafayette.
To Thomas Jefferson, September 7th ... 77
Journey with Lafayette — Opinion of his talents.
To Thomas Jefferson, October I ith .... 79
Trip to Ft. Stanwix— Treaty with the Indians.
To Thomas Jefferson, October I7th .... 82
Negotiations by Lafayette with Indians.
To James Monroe, November ..... 87
Changes in the council.
Notes of speech against assessments for support of
religion, November ..... 88
viii CONTENTS OF VOL UME II.
To James Monroe, November I4th .... 89
Proposed treaties with Southern Indians — Surveys of Poto mac and James rivers — General assessment.
To James Monroe, November 2/th .... 91
New York's negotiations with the Indians — Authority of
^ Congress and of the States — Insult to Marbois — Bill for re
ligious assessment.
To James Madison, November 2/th .... 94
Bill for confirming surveys.
To James Madison, December 3d .... 95
Payment of British debts — Bill for general assessments.
To James Monroe, December 4th .... 96
Establishment of circuit courts — Bill to carry out treaty of peace — General assessments — Bust of Lafayette.
To James Monroe, December 24th .... 98
Rejection of Impost — Act to surrender fugitives from justice — Bill for assize courts — General assessment.
To Richard Henry Lee, December 25th ... 99
Rejection of impost — Continental convention project.
Resolutions touching the navigation and jurisdiction
of the Potomac, December 28th .... 100
Bill for opening roads ioi,n.
1785. Thomas Jefferson, January 9th . . . .102
Acts passed by the Assembly — British debts — Difficulty of adjourning the House — Rejection of the impost — Changes in the Government — Amendment of State constitution — Education of Jefferson's nephews.
To Marquis de Lafayette, March 2oth . . .120
Free navigation of Mississippi — Settlements of Western territory — Discussion of the Mississippi question — Kentucky's desire for independent government.
To James Munroe, March 2ist 127
Office of Foreign Affairs — Independence of Kentucky.
CONTENTS OF VOLUME II.
PAGE
To James Monroe, April I2th 129
John Adams's appointment — Maury's station — Asks for news about impost — Changes in articles of confederation — General assessment — Cypher.
To Thomas Jefferson April 2/th . . . .132
Books desired — Tax on transfers of land — Kentucky conven tion — Washington's shares in Potomac and James River com panies — Meeting of Virginia Potomac Commissioners with Maryland Commissioners — General assessment — Opposition to Harrison — Mississippi question — Jefferson's nephews — Prices of grain, tobacco and fruit.
To James Monroe, April 28th ..... 142
Result of elections — Disorders of currency.
To James Monroe, May 2Qth 143
The western posts and the Mississippi question — Separation of Kentucky — Allotment of land for religious purposes — Gen eral assessment.
To James Monroe, June 2ist 146
General assessments — Commissioners from Georgia to Gover nor of New Orleans — Commercial discontent in Boston — Prices of tobacco — The port bill and Arthur Lee.
To Richard Henry Lee, July /th .... 149
Separation of Kentucky — Arrival of Gardoqui — Conditions of trade.
To Edmund Randolph, July 26th . . . .152
General assessment — Negotiations with Maryland — Remon strance against general assessments — Desire to live without slaves.
To James Monroe, August 7th 155
Regulations of trade — Policy of Great Britain.
To Thomas Jefferson, August 2Oth .... 160
Machinations of Great Britain with regard to commerce — Want of federal spirit — Growth of internal trade— Estimate of Lafayette — General assessment — Crops of corn and tobacco.
To Caleb Wallace, August 23d . . . . .166
Ideas of constitution.
Contents Of Vol Ume Ii. Page
CONTENTS OF VOL UME II.
PAGE
To Thomas Jefferson, October 3d .... 178
Federal finances — Requisitions of Congress — Federal author ity to regulate trade — Arrival of Franklin — Washington's in terest in the Potomac — Rumsey's invention.
Memorial and remonstrance against religious assess ments 183
\ To George Washington, November nth . . . 191
Harrison's election — Arthur Lee's election — The revised code — Project for general manumission — Assize and port bills.
To James Madison, November i8th .... 194
Progress of the revisal — Delegates to Congress for 1786. Notes for speech in the Virginia House of Delegates
on commercial regulations, November . . 194
To George Washington, December 9th . . . 196
Discussion of commercial propositions — Harmony in com mercial regulations between Maryland and Virginia — Progress of the revisal — Assize and port bills — Separation of Kentucky.
To James Monroe, December 9th .... 201
Federal power over trade — Convention of Commissioners from the States for deliberating on commerce — Progress of the revisal — The Memorial of Kentucky.
To Ambrose Madison, December I5th . . . 203
Rejection of the assize bill — Repeal of the act permitting masters to free their slaves.
To James Monroe, December I7th .... 204
Defeat of the assize bill — Progress of the bill for establishing religious freedom.
To James Monroe, December 24th .... 205
Proceedings of the Assembly — Bill for payment of British debts — Bill for reforming the county courts.
To James Madison, December 24th .... 207
/> Bill for payment of British debts — Price of tobacco — Bill for
establishing religious freedom — Personal debts.
To James Madison, December 27th .... 209 To James Monroe, December 3Oth .... 210
Discussion of British debts — Disparagement of the treaty of peace — Reform of the county courts.
CONTENTS OF VOLUME II. xi
1786.
PAGE
Petition against Church Establishment . . . 212 To Thomas Jefferson, January 22<d . . . .214
Jefferson's notes on Virginia — Close of the session of the As sembly — Review of acts passed.
To James Monroe, January 22d .... 222
Close of the session of the Assembly — Amendment of the port bill not passed — Failure of navigation system — Appoint ment of commissioners to meet commissioners from other States to discuss commercial regulations — Requisitions of Congress.
To Thomas Jefferson, March i8th .... 224
Plans for Virginia capitol — Review of books received — Com mercial convention to meet at Annapolis — Commercial evils — Danger of foreign machinations — Prices of tobacco and grain — Account for books with Jefferson.
To James Monroe, March igth 231
Joint land purchase — Vices of the confederation — Prospects of the convention.
To James Monroe, April Qth 234
Joint land purchase — Gloomy prospects for continuance of Union.
To Thomas Jefferson, May I2th .... 236
Jefferson's notes on Virginia — Inscription on Houdon's statue of Washington — Results of State election — Mason's attitude — Internal situation in Virginia — Indian warfare in Kentucky — Discussion of Buffon.
To James Monroe, May I3th 242
Prospects of Annapolis convention — Mason's anti-federal prejudices.
To James Monroe, June 4th 244
Kentucky separation — Indebtedness of the people.
To Thomas Jefferson, June igth .... 246
Populousness and means of subsistence — Crop conditions — Desires book on chemistry — Comparison of weasel with belette and ermine.
To James Monroe, June 2ist 253
The Mississippi question.
xii CONTENTS OF VOLUME II.
PAGE
To Thomas Jefferson, August I2th .... 257
Crop conditions — Improvement of navigation of Potomac — General rage for paper money — Convention for amending the confederation — Danger from closing the navigation of the Mis sissippi — Invites Jefferson to share in land purchases.
To James Monroe, August I7th 268
The Mississippi question.
To Ambrose Madison, September 8th . . . 269
Needs money — The Annapolis meeting.
To James Monroe, September nth .... 270
The Mississippi question — Results of the Annapolis meeting.
To James Monroe, October 5th 272
The Mississippi question — Joint purchases of land — Requests time to repay Monroe's loan.
To James Monroe, October 3Oth .... 275
The Mississippi question in the legislature — Candidates for Governor of Virginia.
To James Madison, November 1st . . . 276
Paper money discussed in Legislature — Danger from Indians — The Mississippi question.
Speech in the Virginia House of Delegates on Paper
Money . 279
To George Washington, November 1st . . 282
Paper money — The Mississippi question.
To George Washington, November 8th . . . 283
Agreement to Annapolis recommendation — Elections in Vir ginia.
To Henry Lee, November 9th 284
Lee's defeat for Congress.
From Henry Lee, December 2Oth .... 284, n. His defeat for Congress.
To James Madison, November i6th .... 286
Currency bills.
To Henry Lee, November 23d 286
Friendship for Lee — Causes of Lee's defeat.
CONTENTS OF VOLUME II. xiii
PAGE
To James Madison, November 24th .... 289
Tobacco receivable for taxes. To Thomas Jefferson, December 4th .... 289 ^
Compliance with recommendation of Annapolis meeting — Deputies for Virginia — The Mississippi question — Rejection of repudiation scheme — The revised code — Education bill — Re form of courts — Treasury empty — Harrison's defeat — Prices.
To George Washington, December 7th . . . 295
Washington's selection as a delegate to the federal conven tion — The Mississippi question — Henry's anti-federalism — To bacco as a commutable.
To James Madison, December i/th .... 298
Rates of indents — Personal movements.
To James Monroe, December 2ist .... 299
Pays Monroe $100 — No news about federal convention.
To George Washington, December 24th . . . 300
Washington's acceptance of service in the federal convention — Tobacco as a commutable.
1787.
To Edmund Pendleton, January 9th .... 303
Reform of the courts — The revised code — Rage for high duties — Sedition in Massachusetts.
To Thomas Jefferson, February 1 5th . . . . 307
Proceedings of legislature since December 4th — Jefferson's personal affairs.
To George Washington, February 2ist . . . 313
Infractions of treaty of peace — Prospects of federal conven tion — Commotion in Massachusetts quelled.
To Edmund Pendleton, February 24th . . .316
Conditions in Massachusetts — Prospects of federal convention — States which will send delegates — Failure of the requisitions.
To George Washington, March i8th .... -236-
Vocabulary of Choctaw and Cherokee Indians for Empress of Russia — Delegates to federal convention — Conditions in Massachusetts — The Mississippi question.
xiv CONTENTS OF VOLUME II.
^ PAGE
To Thomas Jefferson, March iQth (i8th) ... 324
Delegates to federal convention — Outlined plan for the new system.
To Thomas Jefferson, March iQth .... 328
The Spanish treaty and the Mississippi question — Protest of Van Berkel against Virginia privileges to France — Lincoln's expedition in Massachusetts — The Vermont question — Surveys of federal lands — Paper money in Virginia.
To Edmund Randolph, March 25th .... 333
Henry's anti-federalism — The Floridas — Jay's report on treaty of peace.
To James Madison, April 1st 334
Deputies to the approaching convention — The Mississippi question.
To Edmund Randolph, April 8th .... 336 Discusses plan of constitution.
To Edmund Randolph, April i5th .... 341
Washington as a delegate to the convention — Enforcement of treaty of peace — Seat of Congress — Spanish treaty.
To George Washington, April i6th .... 344
Discusses plan of constitution — Proceedings of Congress.
To James Monroe, April iQth 352
Seat of Congress. To Edmund Pendleton, April 22d .... 353
Spirit of Massachusetts — Prospects of the convention — En forcement of treaty of peace — Disposal of Western lands — Copper coinage agreed upon — Affairs with Spain.
To Thomas Jefferson, April 23d .... 357
Jay's report agreed to — Review of proceedings of Congress — Prospects of the convention.
Vices of the political system of the United States, 361
On Ancient and Modern Confederacies . . . 369
t-~-Qrigin of the Constitutional Convention . . . 391
Chronology Of James Madison
CHRONOLOGY OF JAMES MADISON.
1783-1787.
1783.
July to jn attendance on Congress. Dec.
Back in Orange.
Leaves Orange for Richmond.
1784.
May 13. *n the House of Delegates.
1784. Makes a Speech in favor of amending the State
June. constitution.
1784. Madison's bill for joint commissioners with Maryland
June 28. to regulate navigation of the Potomac passed.
1784. Madison appointed a commissioner for Virginia.
July r. Assembly adjourns.
1784.
^ At home in Orange.
1784. Makes journey from Baltimore with Marquis de
Sept. i. Lafayette.
1784.
Sept 4. Arrives in Philadelphia.
Se t « ^n Journey to Indian treaty at Fort Schuyler with
to Oct Marquis de Lafayette.
y 4* Arrives in New York on his way to Virginia. Oct. n.
i7»4. In Philadelphia.
xvi CHRONOLOGY OF
Attends session of the Assembly in Richmond.
_J Makes speech against assessments for religious pur poses.
Madison's resolutions giving Potomac commissioners
Dec '28 authority to ask co-operation of Pennsylvania in trade regulations passed.
- g Assembly adjourns.
1785-
Mar. to At Home in Orange.
Sept.
I785- Outlines plan of constitution for Kentucky to Caleb
Aug. 25. Wallace.
1785.
Sept. Goes to Philadelphia.
1785. Writes the "Memorial and Remonstrance against Re-
Oct. ligious Assessments."
1785. Attends session of Assembly in Richmond. Nov. Speaks on commercial regulations.
1786. Writes remonstrance against incorporation of Episco- Jan. pal church.
Madison's bill for federal convention to consider
Jan 21 commercial regulations passed and Madison named
as a delegate. 1786.
Feb. to Assembly adjourns. Aug.
1786.
Aug. At home in Orange.
T*7$lA
Sept' 5 Goes to Philadelphia.
1786.
Sept ii Arrives in Annapolis.
1786.
Oct - Convention meets.
1786. In Philadelphia in interest of projected federal con-
Oct. 30. vention.
1786. Returns to Richmond.
Nov. Speaks in House of Delegates against paper money.
JAMES MADISON. xvii
1786. Appointed delegate to serve in Congress till the first
Nov. 7. Monday in November, 1787.
1786. Introduces in Assembly resolutions for appointment
of delegates to federal convention. y7 ' Named as a delegate to the convention.
Tan iq ^ets out from Richmond for New York.
Feb In New York attending Congress.
Mar IQ Outlines plan of constitution to Jefferson.
A r'i 8 Outlines plan of constitution to Edmund Randolph.
Outlines plan of constitution to Washington. April 16.
2 Leaves New York for Philadelphia.
The Writings Of James Madison. To Edmund Randolph. Mad. Mss
THE WRITINGS OF
JAMES MADISON.
TO EDMUND RANDOLPH. MAD. MSS.
^, July 8, 1783.
MY DEAR FRIEND, — Yours of the 28 of June like the preceding one found me at this place, where my preparations for leaving Cong? will keep me much of the remainder of my time. The footing on which the Impost is placed by the Assembly is not an eligi ble one, but preferable to a total rejection. It is to be regretted that immediate use was not made of the impression of the letter from Gen! W. The interval preceding the next Session will give full scope to malignant insinuations. The reversal of the award in the case of Nathan may possibly be just in itself ; but it will require all your eloquence I fear to shield the honor of the State from its effects. The Agency which the Delegation had in the affair will impart no* small share of the mortification to them. I suppose the feelings of Mr Jefferson & Mr Harrison also will not be much delighted by it.
Gen! How is here with a corps of N. England
VOL. II — I
2 THE WRITINGS OF [1783
troops detached by G! W. for the purpose of quelling the Mutiny. His only employment will now be to detect & punish the promoters of it. Cong? remain at Princeton. Their removal from that place will soon become an interesting question. Not a few maintain strenuously the policy of returning to this City in order to obviate suspicions abroad of any disaffection in the mass of so important a State to the federal Gov' and to restore mutual confidence with a State which has of late been so firm in adhering to federal measures. It is supposed too that a freer choice might have been made am? the permanent seats offered by the States, than at a place where the necessity of a speedy removal w? give undue advan tage to an offer which happened to be in greatest readiness for immediate use. The Citizens here in general regret the departure of Cong?, disavow the idea that they were unwilling to take arms in defence of Cong?, and will probably enter into some declara tion tending to invite their return.
We hear nothing from our Ministers in Europe. The evacuation of N. York, as to the time seems as problematical as ever. The sending off the negroes continues to take place under the eyes & remon strances of the Inspectors of Embarkations.
TO EDMUND RANDOLPH. MAD. Mss.
PHILAD*, July 15, 1783.
MY DEAR SIR, — Yesterday's post brought me no letter from you. The contents of the inclosed paper
1783] JAMES MADISON. 3
make up every thing of consequence which I have for a subject at present. The enquiry into the Mu tiny has not advanced far enough to bring forth any discoveries. An address is circulating & will be generally signed by the Citizens here reciting to Con gress the proofs they have heretofore given of attach- me to the foederal Gov' professing a continuance of that attaching and declaring their readiness to support the dignity & privileges of Cong?, in case the con- veniency of this place for transacting the public affairs s? give it a preference to others untill a final residence shall be fixed.
Mr Lee arrived here the day before yesterday and goes to Princeton to-day. Mf Mercer's indisposition carries him to the Sea board of N. Jersey. My ab sence not producing any chasm in the representation and some private business requiring my stay here, I shall not return to Princeton for 7 or 8 days.
To Edmund Randolph. Mad. Mss
TO EDMUND RANDOLPH. MAD. MSS.
[July 28, 1783.]
MY DEAR SIR, — Yesterday's mail brought me no letter from you. The Address from the Citizens of P? came before Cong? on thursday and was referred to a commf of 5 members. The answer will probably be a very civil one, but will leave open the question touching the return of Cong? This question if de cided at all in the affirmative, must be preceded by despair of some of the competitors for the permanent residence, almost all of whom now make a common
4 THE WRITINGS OF [1783
cause ag5.1 Philada It is not improbable that when the urgency of the scanty accommodations at Prince ton comes to be more fully felt, with the difficulty of selecting a final seat among the numerous offers, N. Y. in case of its evacuation may be brought into rival- ship with Philada for the temporary residence of Con gress. My own opinion is that it would be less eligible as removing every thing connected with Cong? , not only farther from the South but farther from the Center, and making a removal to a Southern position finally more difficult than it would be from Philada. Williamsb? seems to have a very slender chance as far as I can discover. Annapolis I apprehend w? have a greater number of advocates. But the best chance both for Maryland & Virga, will be to unite in offer ing a double jurisdiction on the Potowmack. The only dangerous rival in that case will be a like offer from N. J. & Pa on the Delaware ; unless indeed Cong? s? be carried to N. York before a final choice be made in which case it would be difficult to get them out of the State.
In order to prepare the way to their permanent residence Cong? have app? a Com? to define the juris diction proper for them to be invested with. Williamsb? has asked an explanation on this point. The nearer the subject is viewed the less easy it is found to mark the just boundary between the authority of Cong? & that of the State on one side & on the other between the former & the privi leges of the inhabitants. May it not also be made a question whether in constitutional strictness the gift
1783] JAMES MADISON. 5
of any State, without the Concurrence of all the rest, can authorize Cong? to exercise any power not dele gated by the Confederation 1 As Cong? it would seem are incompetent to every act not warranted by that instrument or some other flowing from the same source. I wish you could spare a little attention to this subject & transmit your ideas on it. Contrary to my intention I shall be detained here several weeks yet, by a disappointing in some circumstances which must precede my setting out for Virgf.
There is considerable ground to believe that Carleton is possessed of the definitive Treaty. He has lately sent Cong? several depositions relative to forgeries of Mr. Morris' Notes, the authors of which he has confined in N. York, & has requested that persons may be sent in to attend the examination.
The Court Martial is still proceeding in the investigation of the Mutiny, but have disclosed no result.
To Thomas Jefferson
TO THOMAS JEFFERSON.
PHILAD*, Aug. n* 1783.
MY DEAR SIR, — At the date of my letter in April I expected to have had the pleasure by this time of being with you in Virginia. My disappointment has proceeded from several dilatory circumstances on which I had not calculated. My journey to Virg* tho' still somewhat contingent in point of time can not now be very long postponed. I need not I trust renew my assurance that it will not finally stop on this side of Monticello.
6 THE WRITINGS OF [1783
The reserve of our foreign Ministers still leaves us the sport of misinformations concerning the def: Treaty. We all thought a little time ago that it had certainly arrived at N. York. This opinion however has become extinct, and we are thrown back on the newspaper evidence which as usual is full of contra dictions. The probability seems to be that the delay arises from discussions with the Dutch. Mr. Dana has been sorely disappointed in the event of his announcing himself to the Court of Russia. His written communications obtain verbal answers only & these hold up the Mediation to which the Empress, with the Emperor of G[erman]y have been invited as a bar to any overt transaction with the U. S. and even suggest the necessity of new powers from the latter of a date subsequent to the acknowledgment of their Sovereignty by G. B. Having not seen the letters from Mr. Dana myself, I give this idea of them at second hand, remarking at the same time that it has been taken from such passages only as were not in Cypher ; the latter being not yet translated. Cong? remain at Princeton utterly undecided both as to their ultimate seat and their intermediate residence. Very little business of moment has been yet done at the new Metropolis, except a ratification of the Treaty with Sweden. In particular nothing has been done as to a foreign establishment. With regard to an internal peace establishment, though it has been treated with less inattention, it has undergone little discussion. The Commander-in-Chief has been in vited to Princeton with a view to obtain his advice
1783] JAMES MADISON. 7
and sanction to the military branches of it, and is every day expected there. The Budget of Congf is likely to have the fate of many of their other pro positions to the States. Delaware is the only one among those which have bestowed a consideration on it that has acceded in toto. Several Legislatures have adjourned without giving even that mark of their condescension. In the Southern States a jealousy of Congressional usurpations is likely to be the bane of the system : in the Eastern an aversion to the half- pay provided for by it. New Jersey & Maryland have adopted the impost, the other funds recommended being passed for one year only by one of these States, and postponed by the other. P* has hitherto been friendly to liberal and fcederal ideas and will continue so, unless the late jar with Cong? sd give a wrong bias of which there is some danger. Mass1.5 has in the election of Delegates for the ensuing year stigmatized the concurrence of those now in place, in the provision for half-pay, by substituting a new representation ; and has sent a Memorial to Cong5 which I am told is pregnant with the most penurious ideas not only on that subject but on several others which concern the national honor & dignity. This picture of our affairs is not a flattering one ; but we have been witnesses of so many cases in which evils & errors have been the parents of their own remedy, that we cannot but view it with consolations of hope. Remind Miss Patsy of my affection for her & be assured that I am Dy Sir Yf Sincere friend
8 THE WRITINGS OF [1783
To Edmund Randolph
TO EDMUND RANDOLPH.
PHILAD*, Aug: 12, 1783.
DEAR SIR, — The arrival of yesterday's mail has not enabled me to acknowledge the red of a favor. Per haps the post office may be again in fault.
Our late belief of the arrival of the Defin: Treaty at N. York has become utterly extinct. From the tenor of the Newspapers the delay seems to be the effect of discussions with the Dutch. The inclosed letter from our friend Hawkins provides for the article of Russian intelligence. I understand from Mr. Mercer who is here on business as well as myself that Mr. Dana's despatches were in part undecyphered when Mr. Hawkins' transcript was made. The Legislature of Mats have sent a memorial to Congress wearing a very unpropitious aspect on the grant of \ to the army and in other respects breathing a penurious spirit which if indulged will be fatal to every establish ment that requires expence. They profess great poverty, and have declined any decision on the Revenue propositions of Cong8. Rhode Island did not even bestow a consideration on them. Mr. H[owel]l from the latter State after being informed of the course taken by V* said that her backwardness very much emboldened the States that were disin clined to a Gen! Revenue. Cong? have voted Gen1 W. an elegant Bronze Statue. He has been invited to Princeton as well to relieve him from the tedium which he surfers on the North River as to make use of his Counsel in digesting a peace Establishm1. We shall probably be reinforced by Mr. Jones in a few
1783] JAMES MADISON. g
days. I shall give you notice when my departure will make it proper for your correspondence to be discontinued.
TO EDMUND RANDOLPH. MAD. MSS.
PHILAD* Aug 18, 1783.
DEAR SIR, — I have not this week any more than the last the pleasure of acknowledging a favor from you. Perhaps I may find one at Princeton when I get there. On thursday a question for returning to Philada was put and decided in the Negative by a large majority. The friends of the measure fore seeing its fate, and supposing that a negative declara tion cd. answer no good purpose and might an ill one, withdrew it. The more moderate opponents con curred in the inexpediency of proclaiming unneces sarily an aversion in Cong8 to Philada. But some of this class were so keen in their hostility, that a motion was made by two of them to return, who on the question voted agst their own motion. The public will not I believe fix on this proceeding as one of the brightest pages of the Journals? The abuses to which such an artifice may be extended are palpable. The merit of it in this application belongs to Mr. Howel of R. I. and Mr. B[lan]d of V. The motion was first made by Mr. L[ee] but in the course of the transaction devolved on Mr. Howel. I know of none that will read with pleasure this affair unless it be the Executive of Pa and those who wish to refer the removal of Cong5 to other motives than the national dignity & welfare.
io THE WRITINGS OF [1783
Cong5 have letters from Mr. Laurens of the i7th June but they decide nothing as to the definitive Treaty. We have no reason, hower, to impute the delay to any cause which renders the event suspicious. It is said that the British Councils grow more & more wary on the subject of a Coiner1 Treaty with the U. S. and that the spirit of the Navigation act is likely to prevail over a more liberal system.
S. Carolina we learn has agreed to the Impost on condition only that the revenue be collected by her own officers, & be credited to her own quota. It is supposed that she will agree to exchange the valua tion of land for the proposed rule of numbers. But on this point R. I. was more inflexible than on that of the Impost. I pity from my heart the officers of the Eastern line who are threatened by these prospects with disappointments which the Southern officers have no Idea of. From much conversation which I have lately had with some of the former, and from other information, there appears great reason to believe that if no continental provision be made for them they will not only be docked of their half-pay, but will run great hazard of being put off with regard to a great share of their other pay on the pretence of their States that they have already advanced beyond their proportion.
I expect Mr. Jones every moment.
TO EDMUND RANDOLPH. MAD. MSS.
PHILAD* Aug 24, 1783.
MY DEAR SIR, — Mr. Jones who arrived the begin ning of the week acquainted me with your abortive
1783] JAMES MADISON. 1 1
mission to Maryland which I had not before heard of. To this absence from Richmond I impute your silence by the late mails. I hope for the pleasure of a line by the mail now on its way, which will not however be acknowledged till the ensuing week as I am about returning to Princeton when it will find me too late for the post of this week. All that I have now to tell you is that Sr G. Carleton has notified to Cong5 his having received orders for the evacuation of N. York but he specifies no time fixed either by the orders or by his own plans. He repeats his lamentations touching the Loyalists and insinuates that the pro ceedings of the people agst them are a proof that little or no gov1 exists in the U. States.
With great affection I am yr frd & Svt
TO EDMUND RANDOLPH. MAD. MSS.
PRINCETON, Aug 30, 1783.
MY DEAR SIR, — We hear nothing from Europe that can be depended on relative to the definitive Treaty, nor any thing from N. York as to the time it will be evacuated. A Pamphlet has lately come over from G. Britain which appears to be well adapted to retard if not prevent a commercial Treaty, & which is said to be much attended to. It urges an adherence to the principle of the Navigation Act by which Ameri can Vessels will be excluded from the trade between the separate parts of the Empire, and from all inter course with the dependent territories. It undertakes to shew from an enumeration of the produce of the U. S. & the manufactures consumed by them, that those
12 THE WRITINGS OF [1783
of G. B. recommended by the superior credit which her Merchants can give, will be sufficiently sure of a preference in the American Market. And lastly it maintains that the interests of the States are so opposite in matters of Commerce, & the authority of Cong5 so feeble that no defensive precautions need be feared on the part of the U.S. and threatens that in case they should refuse to let British Vessels exclusively carry on a Commerce between the U. S. and the W. Indies as far as the interest of the Islands may require, the vessels of one State shall not be permitted to carry the product of another to any British Port. The Whole tenor of the reasoning supposes that France will not permit Vessels of the U. S. to trade with their Islands in which there is good reason to believe they are not mistaken. The object of the French Admin istration is said to be to allow a direct trade between the U. S. & their W. India possessions, but to confine it to French Bottoms.
The Legislature of Penna have unanimously adopted the RecoiTiendations of Cong5 both as to Revenue & a change of the federal rule for apportioning the com mon burdens. They will also present an invitation to Cong5 we understand, to resume their Sessions at Philada, if that place be judged most fit for the de spatch of public business, untill a permanent seat be chosen & prepared ; giving at the same time explicit assurances of support in case it should on any occa sion be needed. What effect this conciliatory propo sition may have on the temper of Cong5 is precarious. With some the complaisance shewn to the late recom-
1783] JAMES MADISON. 13
mendations of Cong? will be far from softening the dislike. With others Philada will ever be obnoxious while it contains and respects an obnoxious Character. Annapolis has seized the present occasion to forward her views with respect to Cong?, and has courted their presence in the most flattering terms. During this contest among the rival seats, we are kept in the most awkward situation that can be imagined ; and it is the more so as we every moment expect the Dutch Am bassador. We are crowded too much either to be comfortable ourselves or to be able to carry on the business with advantage. Mr. Jones & myself on our arrival were extremely put to it to get any quarters at all, and are at length put into one bed in a room not more than 10 feet square.
To James Madison. Mad. Mss
TO JAMES MADISON. MAD. MSS.
PRINCETON Aug : 30, 1783.
HOND SIR, — I rec? great pleasure from your's reed, by the last post which removed the apprehensions ex cited by your preceding one regarding the state of my mother's health. I hope this will find her still fur ther recovered. The time of my setting out for Virg? is still somewhat precarious : several matters being before Cong? which I wish to see first decided. An answer to this if not delayed will probably find me here.
The definitive Treaty is not yet come over. ST G. Carlton has notified to Cong? his receipt of final or ders for the evacuation of N. York, but fixes no time
i4 THE WRITINGS OF [1783
at which they are to be carried into execution. Gen! Washington has been here some days at the invitation of Cong! & will be consulted on the provision neces sary in time of peace for the security of this country. I inclose you one of the latest papers containing the address of the Preside to the assembly of Pen? The latter have unanimously acceded to the late recofh- endations of Cong! with respect to revenue, and a change of the rule for apportioning the common bur dens. It is said they are also about to address Cong! on the event which occasioned their removal, & to provide expressly for the protection of Cong! in case they s? deem Philad? the fittest place for the tran saction of business untill a final residence shall be chosen. What effect this may have is uncertain. We are exceedingly crowded in this place ; too much so both for our own comfort & for the despatch of busi ness. M' Jones & myself are in one room scarcely ten feet square & in one bed. With the best regards for all the family
I am yr. dutiful son
TO JAMES MADISON. MAD. MSS.
PHiLADf Sepr 8. 1783.
HOND SIR, — Mr Jones & myself being here trans acting some private business which brought us from Princeton the end of last week, I here receive your letter of the 22? ult. The favorable turn of my mother's state of health is a source of great satisfac tion to me, and will render any delay in my setting out for Virg* the less irksome to me. I shall return
1783] JAMES MADISON. 15
to Princeton tomorrow ; m}' final leaving of which will depend on events, but can not now be at any very great distance. On a view of all circumstances I have judged it most prudent not to force Billey back to V? even if [it] could be done ; and have accordingly taken measures for his final separation from me. I am persuaded his mind is too thoroughly tainted to be a fit companion for fellow slaves in Virgf The laws here do not admit of his being sold for more than 7 years. I do not expect to get near the worth of him ; but cannot think of punishing him by transpor tation merely for coveting that liberty for which we have paid the price of so much blood, and have pro claimed so often to be the right, & worthy the pur suit, of every human being.
We have no later advices from Europe than when I wrote by Merry Walker.
TO EDMUND RANDOLPH. MAD. MSS.
PHILAD* Sep* 8 1783.
MY DEAR SIR, — Mr Jones & myself having come down to this city the end of the past week for the purpose of negociating some pecuniary matters I am here to date my acknowledgment of your favor of the 30^ ulto. We return again tomorrow.
The delay of the definitive Treaty although not fully explained to Congress, excites less disquietude here than I find it does in Virginia. Our latest official advices were from Mr. Laurens, of the [seven teenth] of June. The Conduct of the British adminis tration was far from explicit, according to his state
1 6 THE WRITINGS OF [1783
of it, but probably proceeded more from the discor dant materials of which it is composed & doubts as to the commercial footing on which America ought to be placed, than from any insidious views. Why indeed a Commercial Treaty should be made to clog the Treaty of peace is left to conjecture. Perhaps the fact may not be true & the delay of the latter may be owing still to the old cause, to wit, a discussion of the intricate points with the Dutch. The situation of G. B. is such that nothing but some signal change in the aspect of things in this hemisphere can inspire a fresh disposition for war ; notwithstanding the menacing tone of Sr G. Carleton.
The Legislature of P* have taken every possible step to expiate the default of the Executive short of an impeachment of its members, which the rigor of some members of Cong? included among the terms of reconciliation with the State. They have expressly invited Cong? back, assured them of honorable pro tection, and given up the State-House with the appendages for their temporary use. They have also made German Town a competitor for the permanent abode of Congress.
The opposition in the N. England States to the grant of half-pay instead of subsiding has increased to such a degree as to produce almost a general anarchy. In what shape it will issue is altogether uncertain. Those who are interested in the event look forward with very poignant apprehensions. Nothing but some continental provision can obtain for them this part of their reward. * * *
1783] JAMES MADISON. 17
Why did not the Assembly stop the sale of land warrants ? They bring no profit to the public Treas ury, are a source of constant speculation on the ignorant, and will finally arm numbers of Citizens of other States & even foreigners with claims & clamors against the faith of Virginia. Immense quantities have from time to time been vended in this place at immense profit, and in no small proportion to the subjects of our Ally. The credulity here being exhausted I am told the land Jobbers are going on with their commodity to Boston & other places.
TO EDMUND RANDOLPH. MAD. MSS.
PRINCETON, Sep* 13, 1783.
MY DEAR SIR, — Our Ministers in Europe have made some amends for ye long silence by volum inous despatches brought down to 27* July. They were reel yesterday by Congress. No definitive treaty had then been signed by any of the parties, though all had been ready except Holland & America. The former is said to have settled her difficulties. The American Ministers have been endeavouring to incorporate some important commercial stipulations, but in vain ; and in case of emergency must come for ward with the provisional articles to be signed as y* definitive Treaty. The conduct of G. B. in the nego- ciation with America has shewn great unsteadiness if not insidiousness on the subject of commerce ; and the inclosed proclamation of the 2d. of July is a proof that some experiment is intended on the wisdom firm-
1 8 THE WRITINGS OF [1783
ness & union of the States before they will enter into a Treaty in derogation of her Navigation Act. Con gress will probably recomend some defensive plan to the States. If it s^ meet with the fate of former recommendations, it will not probably be owing to Rhode Island whose staple interest more than that of any others lies in carrying between the U. S. & the West Indies. If it fails at all it will prove such an inefficacy in the Union as will extinguish all respect for it & reliance on it. My situation here for writing is so incommodious that you must excuse my brevity.
TO EDMUND RANDOLPH. MAD. MSS.
PRINCETON, Sepr 20, 1783.
DEAR SIR, — I have nothing to add to my last on the subject of foreign affairs, further than that the Court of France has fixed on L'Orient as a free port for the U. S. The Virga Cession underwent a decision of Cong5 a day or two after my last. The form which they have given it may be seen in the hands of the Executive. I sincerely hope it may meet the ultimatum of Virga. The circumstances which pro duced brevity in my last as strongly recommended it at present. Adieu.
To Thomas Jefferson. Mad. Mss
TO THOMAS JEFFERSON. MAD. MSS.
PRINCETON, Sepr 20, 1783.
DEAR SIR, — Your favor of the 31 ult: came to hand yesterday. As the reason which chiefly urged my departure for Virga has ceased I have been led to protract my attendance on Congress by the interest I
1783] JAMES MADISON. 19
felt in some measures on foot, and the particular in terest which my Constituents have in them. Two of these were the territorial Cession and the permanent seat of Congress. The former was a few days ago put into a form which I hope will meet the ultimatum of Virginia. The first monday in next month is fixed for a decision of the latter ; after which it may still be necessary to choose a temporary residence until the permanent one can be made ready. I am utterly un able to foretell how either of these points will be de termined. It is not impossible that an effective vote may be found attainable on neither ; in which case the Winter must be spent in this village where the public business can neither be conveniently done, the mem bers of Congress be decently provided for, nor those connected with Congress provided for at all. I shall lose no time in looking out for quarters for you & en tering into provisional engagements in your favor. Your other request relative to Miss Patsy shall be equally attended to as soon as I go to Philada, which will probably be towards the end of the present week. It will give me real concern if we should miss one another altogether in the journies before us ; and yet I foresee the danger of it. Mr. Jones & myself will probably be on the road by the middle of next month or a few days later. This is the time about which you expect to commence your journey. Unless there fore we travel the same road a disappointment of more [than] an interview will be unavoidable. At present our plan is to proceed thro' Baltimore & Alex andria & Fredericksbg and we may possibly be at the
20 THE WRITINGS OF [1783
races of the second place. I am at a loss by what regulation I can obey your wishes with regard to the notes I have on hand ; having not yet made any copy of them, having no time now for that purpose, and being unwilling for several reasons to leave them all behind me. A disappointment however will be of the less consequence as they have been much briefer & more interrupted since the period at which you run them over, and have been altogether discon tinued since the arrival of Cong5 here.
My plan of spending this winter in Philad* in close reading was not entirely abandoned untill Congress left that City and shewed an utter disinclination to return to it. The prospect of agreeable and even in structive society was an original consideration with me ; and the subsequent one having yours added to it would have confirmed my intention after the abortive issue of another plan,1 had not the solicitude of a tender & infirm parent exacted a visit to Virga and an uncertainty of returning been thereby in curred. Even at present if Cong? s? make Philat their seat this winter & I can decline a visit to Virg? or speedily get away from it, my anxiety on the sub ject will be renewed.
Our last information from Europe is dated the 2;th July. France & Spain were then ready for the definitive signing of the Peace. Holland was on the point of being so. The American Plenipo5 had done nothing on the subject and in case of emergency
1 The allusion is to his rejection the month before by Miss Floyd, a daughter of William Floyd, of New York.
1783] JAMES MADISON. 21
could only sign the provisional Treaty as final. Their negotiations had been spent chiefly on commercial stipulations from which G. B. after very different professions & appearances, altogether drew back. The ready admission she found into our commerce without paying any price for it has suggested the policy of aiming at the entire benefit of it, and at the same time saving the carriage of the W. India trade the price she at first bid for it. The supposed contrariety of interests among the States and the impotence of the fcederal Gov', are urged by the ministerial pamphleteers as a safeguard ags.1 retalia tion. The other nations of Europe seem to have more honorable views towards our commerce, sundry advances having been made to our Ministers on that subject.
Congress have come to no decision even as yet on any of the great branches of the peace establishment. The military branch is supported and quickened by the presence of the Commander in Chief, but without any prospect of a hasty issue. The department of foreign Affairs both internal & external remains as it has long done. The election of a Sec? has been an order of the day for many months without a vote being taken. The importance of the marine depart ment has been diminished by the sale of almost all the Vessels belonging to the U. S. The department of Finance is an object of almost daily attack and will be reduced to its crisis on the final resignation of Mr. M., which will take place in a few months. The War Office is connected with the Military estab-
22 THE WRITINGS OF [1783
lishment & will be regulated I suppose in conformity to what that may be. Among other subjects which divide Congress, their Constitutional authority touch ing such an establishment in time of peace is one. Another still more puzzling is the precise jurisdiction proper for Congress within the limitsof their permanent seat. As these points may possibly remain undecided till Novr, I mention them particularly that your aid may be prepared. The investigation of the Mutiny ended in the condemnation of several Sergeants who were stimulated to the measure without being apprized of the object by the two officers who escaped. They have all red a pardon from Congress. The real plan & object of the mutiny lies in profound darkness. I have written this in hopes that it may get to Monti- cello before you leave it. It might have been made more interesting if I had brought the Cypher from Philad% tho' my present situation required a great effort to accomplish as much as I have. I am obliged to write in a position that scarcely admits the use of any of my limbs, Mr. Jones & myself being lodged in a room not 10 feet square and without a single accommodation for writing.
I am Dear Sir your sincere friend & Ob1 Serv'
TO EDMUND RANDOLPH. MAD. MSS.
PHILADA Septr 30, 1783.
MY DEAR SIR, — Your favor introducing Mr. Corbin and that by the last week's post have both been re- ceivd. The former did not get to Princeton before Mr.
1783] JAMES MADISON. 23
C. had left it, nor did I get to this place before he was so near leaving it that I had no opportunity of man ifesting my respect for your recommendations other wise than by verbal civilities to him. Yesterday's post brought me no letter from you. In answer to your comment in the preceding one on the reception of a Minister from the (Economical Republic to which we are allied, it will suffice to inform you, that in pursu ance of a commission from him six elegant horses are provided for his coach, as was to have been one of the best houses in the most fashionable part of the City. Wherever Commerce prevails there will be an in equality of wealth, and wherever the latter does a simplicity of manners must decline.
Our foreign intelligence remains as at the date of my last. I forget whether I mentioned to you that our Ministers unanimously express surprise at the doubt started in America as to the epoch which ter minated hostilities on our Coast. They affirm that one month from the date of the instrument was meant & suppose that that exposition will not be con tested. Pray can your researches inform me Is.1, Whether prizes made by & from parties not subject to the power before whose maritime courts they are carried, are provisionally or finally tried? — 2d. How far the rules established by the Sovereign of the Captor & those by the Sovereign of the Courts pre vail in such trials? 3dly, What difference is made in cases where both the parties concerned in the capture are subject to the same power and where they are subject to different powers ?
1783] JAMES MADISON. 25
a Sovereign authority agst a part of its Constituents which had fully expiated any offence which they might have committed ; and at the same time to convert their penitential and affectionate temper into the bit terest hatred. To enforce this idea some of the pro ceedings of Cong5 expressive of resentment ag5' Philada were made use of. Great stress was also laid on the tendency of removing to any small or distant place, to prevent or delay business which the honor & interest of the U. S. require sd be despatched as soon as possible. On the other side objections were drawn from those sources which have produced dis likes to Philada, and wch will be easily conjectured by you. On the question N. Y, Pa, Delaware, Virga, & N. Carolina were ay ; Massts, Con1, R. I., N. Jersey, no ; and Maryland & S. Carolina, divided. If either of the divided States had been in the affirmative it was the purpose of N. Jersey to add a seventh vote in favor of Philada. The division of S. Carolina was ow ing to the absence of Mr. Rutledge & Mr. Izard both of whom would have voted for Phila. The State was represented by two members only. The division of Maryland represented by Mr Carroll & Mr McHenry was occasioned by the negative of the latter, whose zeal for Annapolis determined him to sacrifice every consideration to an experiment in its favor, before he would accede to the vote for Philada. The aversion of the Eastern States was the ground of his coalition with them. The arguments in favor of Annapolis consisted of objections agst Philada. Those agst it were chiefly the same which had been urged in favor
26 THE WRITINGS OF [1783
of Philada. On the question the States were Massts, Con1, R. I., Delaware, Maryland & N. C., ay, N. Y., N. J. Pa Virga, no. S. C. divided. Virga was repre sented by Mr. Lee Mr. Mercer & Mr. M. The first was in the affirmative. Mr. Jones & Mr. Bland were in Philada. The vote of the latter wd have been in favor of Annapolis of the former in favor of Philada. The opinion of Mr. L & Mr. B in favr of Annapolis resulted from a dislike to Philada, & the idea that the views of Va would be promoted by it. That of their colleagues from a belief that the reasons drawn in favr of Philada, from National considerations reqd a concession of local views, and even that a recision of the permanent vote for Trenton in favor of George Town, the object of Va, would be promoted by placing the Eastern States in Philada. They also sup posed that the concurrence of the Eastern States in a temporary vote for Annapolis to take effect some weeks hence, was little to be confided in, since the ar rival of a colleague to the Delegate from N. Hamp shire would with the accession of Pena, who wd prefer Trenton to Annapolis & be moreover stimulated by resentment, would make up seven States to reverse the removal to Annapolis. Add to the whole that experience has verified the opinion that in any small place Cong5 are too dependent on courtesy & favor to be exempt either in their purses or their sensibility from degrading impositions. Upon the whole it is most probable that Philada will be [the] abode of Cong8 during the Winter. I must refer to Mr Jones for ex planations on all these points, he will be in Richmond
1783] JAMES MADISON. 27
early in the Session. For myself I have engaged to return to Princeton to attend some interesting points before Cong5. Having not yet settled my arrange ments for the Winter I must for the present be silent as to my [torn out] situation. Mr. Van Berkel ar rived a few days [torn out]. Cong8 are in a charming situation to receive him, being in an obscure village undetermined where they will spend the Winter, and without a Minister of F. A. After the rece of this you will stop your correspondence, and probably not hear further from me. I set off tomorrow morning at 3 oClock in the Flying Machine for Princeton, and it is now advancing towards the hour of sleep. In haste adieu My dear friend and be assured that I am Yrs Sincerely.
TO THOMAS JEFFERSON. MAD. MSS.
ORANGE Decemr ioth> 1783.
DEAR SIR, — My journey from Annapolis was so retarded by rains and their effect on the water courses that I did not complete it till the ninth day after I left you. I took1 Col. Mason in my way & had an evening's conversation with him. I found him much less opposed to the general impost than I expected. Indeed he disclaimed all opposition to the measure it self but had taken up a vague apprehension that if adopted at this crisis it might embarrass the defence of our trade agst British machinations, he seemed upon the whole to acquiesce in the territorial cession,
1 Cypher represented by italics.
28 THE WRITINGS OF [1783
but dwelt much on the expediency of the guaranty. On the article of a convention for revising our form of Government he was sound and ripe and I think would not decline a participation in the work. His heterodoxy lay chiefly in being too little impressed with either the necessity or the proper means of preserving the confederacy.
The situation of the commerce of this country as far as I can learn is even more deplorable than I had conceived. It cannot pay less to Philad? & Baltimore if one may judge from a comparison of prices here & in Europe, than 30 or 40 Per O on all the exports & imports, a tribute which if paid into the treasury of the State would yield a surplus above all its wants. If the Assembly should take any steps towards its emancipation you will no doubt be apprized of them as well as their other proceedings from Richmond.
I am not yet settled in the course of law reading with which I have tasked myself and find it will be impossible to guard it against frequent interruptions. I deputed one of my brothers to Monticello with the draught on your library, but Capt. Key was down at Richmond. As soon as he returns I propose to send again. My Trunk with Buffon &c. has come safe to Fred? so that I shall be well furnished with materials for collateral reading. In conversing on this author's Theory of central heat I recollect that we touched upon as the best means for trying its validity,1 the comparative distances from the earths
1 See letter of Feby. 17, [1784], shewing Buffon who had been read to have been misconceived. Note in MSS.
1783] JAMES MADISON. 29
center of the summits of the highest mountains and their bases or the level of the sea. Does not the oblate figure of the earth present a much more ex tensive and perhaps adequate field for experiments ? According to the calculations of Martin grounded on the data of Manpertius &c.
The Equatorial diameter of the Earth is... 7942.2 Eng. Miles The polar diam: 7852.4 E.M.
difference between eq : & pol. diameter. ... 89.8. E.M.
The difference then of the semidiameters is 44.9, E. miles, that is -gy^ of the mean semidiameter calling this difference in round numbers 45 miles, and disre garding the small variations produced by the elliptical form of the Earth, the radii will be shortened ^ of a mile by each degree from the equator to the poles. It would seem therefore that the difference of dis tance from the center at the Equator & at the highest latitude that may [be] visited must be sufficient to prod uce a discoverable difference in the degrees of any heat emitted equally in every direction from the center : and the experiment might be sufficiently diversified to guard against illusion from any difference which might be supposed in the intermediate density of different parts of the Earth. The distance even be tween the Equator & the polar circle produces a difference of no less than 33^- miles i.e. y^ of the mean distance from the center ; so that if the curiosity of two setts of French Philosophers employed in ascertaining the figure of the earth, had been directed to this question, a very little additional trouble &
30 THE WRITINGS OF [1784
expence might perhaps have finally solved it. Nay the extent of the U.S. computing from the 31° of lat: to the 45° only makes a difference of 7 miles in the distance from the center of the Earth ; a greater difference I suppose than is afforded by the highest mountains or the deepest mines or both put together. On my delivering you the draught on M.r Ambler I remember you put into my hands a note which I never looked into supposing it to relate to that cir cumstance In examining my papers I perceive that I have lost it and mention it to put you on your guard in case the note s? fall into bad hands & be capable of being abused. Present my respects to Mf Mercer & the other gentlemen of the Delegation & be assured that I am yrs sincerely
You will be so good as to give the inclosed a safe conveyance to Mrs. House.
TO EDMUND RANDOLPH. MAD. MSS.
ORANGE, March lo11?, 1784.
MY DEAR FRIEND, — Your favor of the 27^ Jany. was safely delivered to me about a fortnight ago, and was rec? with the greater pleasure, as it promises a con tinuance of your friendly attention. I am sorry that my situation enables me to stipulate no other return than sincere & thankful acknowledgments. — On my arrival here which happened early in Dec!" I entered as soon as the necessary attentions to my friends ad mitted, on the course of reading which I have long
1784] JAMES MADISON. 31
meditated. Co : Litt : in consequence & a few others from the same shelf have been my chief society dur ing the Winter. My progress, which in so short a period could not have been great under the most favorable circumstances, has been much retarded by the want of some important books, and still more by that of some living oracle for occasional consultation. But what will be most noxious to my project, I am to incur the interruptions wc.h will result from attendance in the Legislature, if the suffrage of my County should destine me for that service, which I am made to ex pect will be the case. Among the circumstances which reconcile me to this destination, you need not be assured that the opportunity of being in your neighborhood has its full influence.
I have perused with both pleasure and edification your observations on the demand made by the Exe cutive of S. C. of a citizen of this State.1 If I were to hazard an opinion after yours, it would be that the respect due to the chief magistracy of a confederate State, enforced as it is by the articles of Union, re quires an admission of the fact as it has been repre sented. If the representation be judged incomplete or ambiguous, explanations may certainly be called
1 George Hancock, a citizen of Virginia, assaulted Jonas Beard, a justice of the peace and member of the legislature of South Carolina. The Governor of South Carolina demanded Hancock's surrender from the Governor of Virginia, under the fourth article of the confederation, charging the assault as a high misdemeanor. Randolph, as Attorney General of Virginia, thought that Vir ginia had a right to insist upon proof of Hancock's guilt before taking action, but that South Carolina's definition of a misdemeanor must be admitted by Vir ginia, and that flight ought not to secure one from punishment. Randolph to Jefferson, January 30, 1784, Conway's Randolph, 51.
32 THE WRITINGS OF [1784
for, and if on a final view of the charge, Virginia should hold it to be not a casus foederis, she will be at liberty to [withhold her citizen, (at least upon that ground,) as S. C. will be to appeal to the Tribunal provided for all controversies among the States. Should the Law of S. C. happen to vary from the British Law, the most difficult point of discussion I apprehend will be, whether the terms " Treason &c." are to be referred to those determinate offences so denominated in the latter code, or to all those to which the policy of the several States may annex the same titles and penalties. Much may be urged I think both in favor of and ag5.1 each of these expositions. The two first of those terms coupled with " breach of the peace " are used in the 5 Art : of the Confedera tion, but in a way that does not clear the ambiguity. The truth perhaps in this as in many other instances, is, that if the compilers of the text had severally de clared their meanings, these would have been as diverse as the comments which will be made upon it. Waving the doctrine of the confederation, my pres ent view of the subject would admit few exceptions to the propriety of surrendering fugitive offenders. My reasons are these, i. By the express terms of the Union the citizens of every State are naturalized within all the others, and being entitled to the same privileges, may with the more justice be subjected to the same penalties. This circumstance materially dis tinguishes the citizens of the U. S. from the subjects of other nations not so incorporated. 2. The analogy of the laws throughout the States, and particularly the
1784] JAMES MADISON. 33
uniformity of trial by Juries of the vicinage, seem to obviate the capital objections ag5.1 removal to the State where the offence is charged. In the instance of con tiguous States a removal of the party accused from one to the other must often be a less grievance, than what happens within the same State when the place of residence & the place where the offence is laid are at distant extremities. The transportation to G. B. seems to have been reprobated on very different grounds : it would have deprived the accused of the privilege of trial by jury of the vicinage as well as of the use of his witnesses, and have exposed him to trial in a place where he was not even alledged to have ever made himself obnoxious to it ; not to mention the danger of unfairness arising from the circumstances which produced the regulation. 3. Unless citizens of one State transgressing within the pale of another be given up to be punished by the latter, they cannot be punished at all ; and it seems to be a common interest of the States that a few hours or at most a few days should not be sufficient to gain a sanctuary for the authors of the numerous offences below " high misde- mesnors." In a word, experience will shew if I mis take not that the relative situation of the U. S. calls for a " Droit Public " much more minute than that comprized in the fcederal articles, and which presup poses much greater mutual confidence and amity among the societies which are to obey it, than the law which has grown out of the transactions & intercourse of jealous & hostile nations.
Present my respectful compliments to your amiable
VOL. II. — 3
34 THE WRITINGS OF [1784
lady & accept the sincerest wishes for your joint happiness of
Your affr friend & ob* serv'.
P. S. By my brother who is charged with this I send Chastellaux's work, de la Felicite public which you may perhaps find leisure to run through before May — also a notable work of one of the Representa tives of the U. S. in Europe.
TO THOMAS JEFFERSON. MAD. MSS.
ORANGE, March 16, 1784.
DEAR SIR, — Your favour of the 20. ult. came duly to hand a few days ago. I cannot apprehend that any difficulties can ensue in Europe from the involuntary & immaterial delay of the ratification of the peace, or if there should that any imputations can be devised which will not be repelled by the collective force of the reasons in the intended protest ; some of which singly taken are unanswerable. As you no doubt had recourse to authorities which I have no opportun ity of consulting, I probably err in supposing the right of the Sovereign to reject the act of his plenipoten tiary to be more circumscribed than you lay it down. I recollect well that an implied condition is annexed by the usage of nations to a Plenipotentiary Coiriis- sion, but should not have extended the implication beyond cases where some palpable & material default in the Minister could be alledged by the Sovereign. Waving some such plea, the language both of the Comission and of reason seems to fix on the latter
1784] JAMES MADISON. 35
as clear an engagement to fulfil his promise to ratify a treaty, as to fulfil the promises of a treaty which he has ratified. In both cases one would pronounce the obligation equally personal to the Sovereign, and a failure on his part without some absolving circum stance equally a breach of faith. The project of affixing the Seal of the U. S. by 7 States to an act which had been just admitted to require nine, must have stood self-condemned ; and tho' it might have produced a temporary deceptidin abroad, must have been immediately detected at home, and have finally dishonored the federal counsels everywhere. The competency of 7 States to a Treaty of Peace has often been a subject of debate in Congress and has sometimes been admitted into their practice, at least so far as to issue fresh instructions. The reasoning employed in defence of the doctrine has been " that the cases which require 9 States, being exceptions to the general authority of 7 States ought to be taken strictly ; that in the enumeration of the powers of Congress in the first clause of art : 9 of the Confeder ation, the power of entering into treaties and alliances is contradistinguished from that of determining on peace & war & even separated by the intervening power of sending & receiving ambassadors ; that the excepting clause therefore in which ' Treaties & al liances ' ought to be taken in the same confined sense, and in which the power of determing on peace is omitted, cannot be extended by construction to the latter power ; that under such a construction 5 States might continue a war which it required nine to com-
36 THE WRITINGS OF [1784
mence, though where the object of the war has been obtained, a continuance must in every view be equip ollent to a commencement of it ; and that the very means provided for preserving a state of peace might thus become the means of preventing its restoration." The answer to these arguments has been that the construction of the fcederal articles which they main tain is a nicety which reason disclaims, and that if it be dangerous on one side to leave it in the breast of 5 States to protract a war, it is equally necessary on the other to restrain 7 States from saddling the Union with any stipulations which they may please to inter weave with a Treaty of peace. I was once led by this question to search the files of Cong? for such lights as the history of the Confederation might furnish, and on a review now of my papers I find the evidence from that source to consist of the following circum stances : In Doctr Franklin's " Sketch of Articles of Confederation" laid before Cong* on 21 day of July 1775, no number beyond a majority is required in any cases. In the plan reported to Congress by the Com mittee appointed n. June 1776, the general enumer ation of the powers of Congf in art. 18. is expressed in a similar manner with the first clause in the present 9^ art., as are the exceptions in a subsequent clause of the 1 8 art. of the report, with the excepting clause as it now stands : and yet in the margin of the Report and I believe in the same hand writing, there is a " Qu.: If so large a majority is necessary in conclud ing a Treaty of peace." There are sundry other mar ginal queries in the report from the same pen. Hence
1784] JAMES MADISON. 37
it would seem that notwithstanding the preceding dis crimination between the powers of " determining on peace " and " entering into Treaties," the latter was meant by the Com? to comprise the former. The next form in which the articles appear, is a printed copy of the Report as it had been previously amended, with sundry amendments, erasures, & notes on the printed copy itself in the hand of Mr Thomson. In the printed text of this paper art : 14 the phraseology which defines the general powers of Congress is the same with that in art: 18 of the manuscript report. In the subsequent clause requiring nine States, the text as printed ran thus : " The United States in Cong" assembled shall never engage in a war nor grant letters of marque & reprisal in time of peace, nor enter into any Treaties or alliances except for peace," the words except for peace being erased, but sufficiently legible through the erasure. The fair in ference from this passage seems to be i. that without those words 9 States were held to be required for concluding peace. 2. that an attempt had been made to render 7 States competent to such an act, which attempt must have succeeded either on a preceding discussion in Congress or in a Com*: of the whole, or a special com*:. 3. that on fuller deliberation the power of making Treaties of peace was meant to be left on the same footing with that of making all other Treaties. The remaining papers on the files have no reference to this question. Another question which several times during my service in Cong* exercised their deliberations was whether 7 States could revoke
38 THE WRITINGS OF [1784
a Commission for a Treaty issued by nine States, at any time before the faith of the Confederacy should be pledged under it. In the instance of a proposition in 1781 to revoke a Commission which had been granted under peculiar circumstances in 1779 to Adams1 to form a treaty of commerce witk G. B., the competency of 7 States was resolved on (by 7 States indeed) and a revocation took place accordingly. It was however effected with much difficulty, and some members of the minority even contested the validity of the proceeding. My own opinion then was and still is that the proceeding was equally valid & expe dient. The circumstances which had given birth to the comission had given place to others totally dif ferent ; not a single step had been taken under the commission which could affect the honour or faith of the U. S. and it surely can never be said that either the letter or spirit of the Confederation, requires the same majority to decline as to engage in foreign treaties. The safest method of guarding ag5.' the ex ecution of those great powers after the circumstances which dictated them have changed, is to limit their duration, trusting to renewals as they expire, if the original reasons continue. My experience of the un certainty of getting an affirmative vote even of 7 States had determined me before I left Congress, al ways to contend for such limitations.
I thought the sense of the term " appropriation " had been settled by the latter practice of Cong? to be the same as you take it to be. I always understood
1 Italics for cypher.
1784] JAMES MADISON. 39
that to be the true, the parliamentary and the only rational sense. If no distinction be admitted between the " appropriation of money to general uses " and " expenditures in detail " the Secretary of Cong? could not buy quills or wafers without a vote of nine States entered on record, and the Secretary to the Come of the States could not do it at all. In short unless one vote of appropriation can extend to a class of objects, there must be a physical impossibility of providing for them ; & the extent & generality of such classes can only be determined by discretion & conveniency. It is observable that in the specification of the powers which require 9 States, the single tech nical word "appropriate" is retained. In the general recital which precedes, the word " apply " as well as " appropriate " is used. — You were not mistaken in supposing I had in conversation restrained the author ity of the fcederal Court to territorial disputes, but I was egregiously so in the opinion I had formed. Whence I got it I am utterly at a loss to account. It could not be from the Confederation itself, for words could not be more explicit. I detected the error a few days ago in consulting the articles on another subject, & had noted it for my next letter to you.— I am not sure that I comprehend your idea of a ces sion of the territory beyond the Kenhaway and on this side of the Ohio. As all the soil of value has been granted out to individuals a cession in that view would be improper, and a cession of the jurisdiction to Cong? can be proper only where the Country is vacant of settlers. I presume your meaning therefore
40 THE WRITINGS OF [1784
to be no more than a separation of that country from this and an incorporation of it into yf Union ; a work to which all three must be parties. I have no reason to believe there will be any repugnance on the part of Virg* — The effort of Pen? for the Western commerce does credit to her public councils. The commercial genius of this State is too much in its infancy I fear to rival the example. Were this less the case, the con fusion of its affairs must stifle all enterprize. I shall be better able however to judge of the practicability of your hint when I know more of them. — The de clension of George Town does not surprise me tho' it gives me regret. If the competition should lie be tween Trenton & Philad* & depend on the vote of New York 1 it is not difficult to foresee into which scale it will be thrown, nor the probable effect of such decision on our Southern hopes. — I have long re garded the council as a grave of useful talents, as well as objectionable in point of expence, yet I see not how such a reform as you suggest can be brought about. The Constitution, tho' readily overleaped by the Legislature on the spur of an occasion, would probably be made a bar to such an innovation. It directs that 8 members be kept up, and requires the sanction of 4 to almost every act of the Governor. Is it not to be feared too, that these little meliora tions of the Government may turn the edge of some of the arguments which ought to be laid to its root ? I grow every day more & more solicitous to see this essential work begun. Every days delay settles the
1 Cypher.
1784] JAMES MADISON. 41
Gov' deeper into the habits of the people, and strengthens the prop which their acquiescence gives it. My field of observation is too small to warrant any conjecture of the public disposition towards the meas ure ; but all with whom I converse lend a ready ear to it. Much will depend on the politics of Mr. Henry, wc!* are wholly unknown to me. Should they be adverse, and G. Mason not in the Assembly haz ardous as delay is, the experiment must be put off to a more auspicious conjuncture.
The charter granted in 1732 to Lord Baltimore makes, if I mistake not, the Southern shore of the Po- towmac, the boundary of Maryland on that side. The constitution of Virginia cedes to that State " all the ter ritories contained within its charter with all the rights of property, jurisdiction and Government and all other rights whatsoever, which might at any time have been claimed by Virginia, excepting only the free naviga tion & use of the Rivers Potowmac and Pohomoque, &c." Is it not to be apprehended that this language will be construed into an entire relinquishment of the Jurisdiction of these rivers, and will not such a con struction be fatal to our port regulations on that side, & otherwise highly inconvenient ? I was told on my journey along the Potowmac of several flagrant evasions which had been practiced with impunity & success, by foreign vessels which had loaded at Alex andria. The jurisdiction of half the rivers ought to have been expressly reserved. The terms of the sur render are the more extraordinary, as the patents of
1 See the letter of July 3d to Jefferson.
42 THE WRITINGS OF [1784
the N. neck place the whole river potowmac within the Government of Virginia ; so that we were armed with a title both of prior & posterior date, to that of Maryland. What will be the best course to repair the error? — to extend our laws upon the River, making Maryland the plaintiff if she chooses to con test their authority — to state the case to her at once and propose a settlement by negociation — or to pro pose a mutual appointment of Comissioners for the general purpose of preserving a harmony and efficacy in the regulations on both sides ? The last mode squares best with my present ideas. It can give no irritation to Maryl? ; it can weaken no plea of Virg* ; it will give Maryland an opportunity of stirring the question if she chooses, and will not be fruitless if Maryland should admit our jurisdiction. If I see the subject in its true light no time should be lost in fix ing the interest of Virginia. The good humour into which the cession of the back lands must have put Maryland, forms an apt crisis for any negociations which may be necessary. You will be able probably to look into her charter & her laws, and to collect the leading sentiments relative to the matter.
The winter has been so severe that I have never renewed my call on the library of Monticello, and the time is now drawing so near when I may pass for a while into a different scene, that I shall await at least the return to my studies. Mr. L. Grymes told me a few days ago that a few of your Books which had been borrowed by Mr. W. Maury, and ordered by him to be sent to his brother's, the clergyman,
1784] JAMES MADISON. 43
on their way to Monticello, were still at the place which Mr. M. removed from. I desired Mr. Grymes to send them to me instead of the Parson, supposing, as the distance is less, the books will probably be sooner out of danger from accidents, and that a con veyance from hence will not be less convenient. I calculated also on the use of such of them as may fall within my plan. I lately got home the Trunk which contained my Buffon, but have barely entered upon him. My time begins already to be much less my own than during the winter blockade. I must leave to your discretion the occasional .purchase of rare and valuable books, disregarding the risk of duplicates, you know tolerably well the objects of my curiosity. I will only particularize my wish of whatever may throw light on the general constitution & droit pub lic of the several confederacies which have existed. I observe in Boinaud's catalogue several pieces on the Duch, the German, & the Helvetic. The opera tions of our own must render all such lights of conse quence. Books on the Law of N. & N. fall within a similar remark. The tracts of Bynkershoek, which you mention I must trouble you to get for me & in french if to be had rather than in latin. Should the body of his works come nearly as cheap as these select publications, perhaps it may [be] worth consider ing whether the whole would not be preferable. Is not Wolfius also worth having ? I recollect to have seen at Pritchard's a copy of Hawkin's abridge' of Co: Litt: I would willingly take it if it be still there & you have an opportunity. A copy of Deane's letters
44 THE WRITINGS OF [1784
which were printed in New York & which I failed to get before I left Phil? I should also be glad of. I use this freedom in confidence that you will be equally free in consulting your own conveniency whenever I encroach upon it. I hope you will do so particularly in the request I have to add. One of my parents would be considerably gratified with a pair of good Spectacles which are not to be got here. The par ticular readiness of Dudley to serve you inclines me to think that an order from you would be well executed. Will you therefore be so good as to get from him one of his best pebble & double jointed pair, for the age of fifty-five or thereabouts, with a good case ; and forward them by the first safe conveyance to me in Orange or at Richmond as the case may be. If I had thought of this matter before Mi" Maury set out, I might have lessened your trouble. It is not material whether I be repayed at the bank of Philad* or the Treas^ of Virginia, but I beg it may be at neither till you are made secure by public remittances. It will be necessary at any rate for £20 or 30 to be left in your hands or in the bank for little expendi tures which your kindness is likely to bring upon you.
The Executive of S. Carolina, as I am informed by the Attorney have demanded of Virginia the surren der of a citizen of Virga charged on the affidavit of Jonas Beard Esqf whom the Executive of S. C. rep resent to be a " Justice of the peace, a member of the Legislature, and a valuable, good man," as follows : that " three days before the 25* day of Octr 1783 he
1784] JAMES MADISON. 45
(Mr. Beard) was violently assaulted by G. H. during the sitting of the Court of General Sessions, without any provocation thereto given, who beat him (Mr. B.) with his fist & switch over the face head and mouth, from which beating he was obliged to keep his room until the said 25* day of Octf 1783, and call in the assistance of a physician." Such is the case as col lected by Mr. Randolph from the letter of the Execu tive of S. C. The questions which arise upon it are
1. whether it be a charge of high misdemesnor within the meaning of the 4 art : of Confederation.
2. whether in expounding the terms high misdemes nor, the law of S. Carolina, or the British law as in force in the U. S. before the Revolution ought to be the standard. 3. if it be not a casus fcederis what the law of nations exacts of Virginia ? 4. if the law of nations contains no adequate provision for such occurrences, whether the intimacy of the Union among the States, the relative position of some, and the common interest of all of them in guarding against impunity for offences which can be punished only by the jurisdiction within which they are committed, do not call for some supplemental regulations on this subject ? M' R. thinks Virginia not bound to surren der the fugitive untill she be convinced of the facts, by more substantial information, & of its amount ing to a high misdemesnor, by inspection of the law of S. C. which & not the British law ought to be the criterion. His reasons are too long to be rehearsed.
I know not my dear sir what to reply to the affec-
46 THE WRITINGS OF [1784
tionate invitation which closes your letter.1 I sub scribe to the justness of your general reflections I feel the attractions of the particular situation you point out to me. I cannot altogether renounce the pros pect : still less can I as yet embrace it. It is very far from being improbable that a few years more may prepare me for giving such a destiny to my future life ; in which case the same or some equally conven ient spot may be commanded by a little augmentation of price. But wherever my final lot may fix me be assured that I shall ever remain, with the sincerest affection & esteem,
Y5 friend and servant.
TO THOMAS JEFFERSON. MAD. MSS.
ORANGE April 25th 1784.
DEAR SIR, — Your favor of the 16^ of March came to hand a few days2 before Mazzei called on me. His plan was to have proceeded hence directly to Annapo lis. My conversation led him to premise a visit to Mr. Henry, from whence he proposed to repair to Rich-
1 " Monroe is buying land almost adjoining me. Short will do the same. What would I not give [if] you could fall into the circle. . . . There is a little farm of 140 a* adjoining me, & within two miles, all of good land, tho' old, with a small indifferent house on it, the whole not worth more than ^250. Such a one might be a farm of experiment & support a little table and house hold. It is on the road to Orange & so much nearer than I am. It is conven ient enough for supplementary supplies from thence. Once more think of it, and adieu." — Jefferson to Madison, Feb. 20, 1784. Writings of Jefferson, iii., 406. Madison's personal plans were given a definite shape the following sum mer, Aug. 19, 1784, when his father presented him with a farm of 560 acres, a part of the Montpelier tract. — Orange County MSS. Records.
2 Italics for cypher.
1 7 84] JA MES MADISON. 47
mond, and close his affairs with the Executive. Con- trary to my expectation he returned hither on thursday last, proposing to continue his circuit through Gloucester, York, and Williamsburg, recom mended by Mr. Henry, for obtaining from the former members of the Council certain facts relating to his appointment, of which the vouchers have been lost. This delay, with the expectation of your adjournment, will probably prevent his visit to Congress. Your let ter gave me the first information both of his views towards a Consulate and of his enmity towards Frank lin. The first was not betrayed to me by any conver sation either before or after I made known to him the determination of Congress to confine such appoint ments to natives of America. As to the second he was unreserved alledging at the same time that the exquisite cunning of the old fox has so enveloped his iniquity, that its reality cannot be proved by those who are thoroughly satisfied of it. It is evident, from several circumstances stated by himself that his en mity has been embittered if not wholly occasioned by incidents of a personal nature. Mr. Adams is the only public man whom he thinks favourably of, or seems to have associated with, a circumstance which their mutual characters may perhaps account for. Notwithstanding these sentiments towards Franklin & Adams his hatred of England remains unabated, & does not exceed his partiality to France, which with many other considerations which need not be pointed out, persuade me that however dreadful an actual visit from him might be to you in a personal
48 THE WRITINGS OF [1784
view, it would not produce the public mischiefs yo^i, apprehend from it. By his interview with Mr. Henry, I learn that the present politics of the latter comprehend very friendly views towards the confeder acy, a wish tempered with much caution for an amendment of our constitution, a patronage of the payment of British debts, and of a scheme of general assessment.
The want of both a Thermometer & Barof had de termined me to defer a meteorological diary till I could procure these instruments. Since the red of your letter I have attended to the other columns.
I hope the letter which had not reached you at the date of your last, did not altogether miscarry. On the 1 6 of March I wrote you fully on sundry points. Among others I suggested to your attention the case of the Potowmac, having in my eye the river below the head of navigation. It will be well I think to sound the ideas of Maryland also, as to the upper parts of the N. branch of it. ^^ policy of Baltimore will probably thwart as far as possible, the opening of it ; & without a very favorable construction of the right of Virginia, and even the privilege of using the Maryland Bank, it would seem that the necessary works could not be accomplished.
Will it not be good policy to suspend further Trea ties of Commerce, till measures shall have taken place in America which may correct the idea in Europe of impotency in the fcederal Gov' in matters of Com merce ? Has Virginia been seconded by any other State in her proposition for arming Congress with
1 7 84] JAMES MADISON. 49
power to frustrate the unfriendly regulations of G. B. with regard to her W. India islands? It is reported here that the late change of her ministers has revived the former liberality which seemed to prevail on that subject. Is the Impost gaining or losing ground among the States ? Do any considerable payments come into the Contin! Treasury ? Does the settle ment of the public accV5 make any comfortable pro gress ? Has any resolution been taken by Congress touching the old Cont! currency? Has Maryland foreborne to take any steps in favour of George Town ? Can you tell me whether any question in the Court of Appeals, has yet determined whether the war ceased on our coast on the 3d of March or the 3d of April ? The books which I was told were still at the place left by Mr W. Maury, had been sent away at [the] time Mr. L. Grymes informed of them.
Mr Mazzei tells me that a subterraneous city has been discovered in Siberia, which appears to have been once populous & magnificent. Among other curiosities it contains an equestrian Statue around the neck of which was a golden chain 200 feet in length, so exquisitely wrought that Buffon inferred from a specimen of 6 feet sent him by the Empress of Russia, that no artist in Paris could equal the workmanship. Mr. Mazzei saw the specimen in the hands of Buffon & heard him give this opinion of it. He heard read at the same time a letter from the Empress to Buffon in which she desired the present to be considered as a tribute to the man to whom Nat: Hist : was so much indebted. Monsf Faujas de S' Fond thought the city
50 THE WRITINGS OF [1784
was between 72 & 74 ° N. L. the son of Buffon be tween 62 & 64 ° Mr M. being on the point of depart ure had no opportunity of ascertaining the fact. If you should have had no better account of the discovery this will not be unacceptable to you & will lead you to obtain one.
I propose to set off for Richmond towards the end of this week. The election in this County was on Thursday last. My colleague is Mr Charles Porter
I am, &c.
TO JAMES MADISON. MAD. MSS.
RICHMOND May 13, 1784.
HON? SIR, — The Spectacles herewith inclosed came to my hands yesterday with information that the pf first sent were forwarded by mistake. It will however give my mother a double chance of suiting herself. I wish the p^ which may not be preferred to be sent down to me by the earliest opportunity unless they should suit yourself & you choose to keep them, as I am desired by the maker to return them in case they sh? not be wanted. We did not make a House till Wednesday & of course are but just beginning the business of the Session. Mr Jefferson has been app? an associate with Df F. & M" Adams in forming comercial Treaties and will proceed immediately to Europe. He takes the place of M' Jay who is returning to America & who is to be the Secretary of F. affairs if he will ac cept the office. I do not find that S. Jones is as yet
1784] JAMES MADISON. 51
here, & I suspend the sale of the Tob? with a hope of its further rise. 387. I believe may now be got, but 4<D/. is generally expected. I am your
dutiful son
TO THOMAS JEFFERSON. MAD. MSS.
RICHMOND, May 15, 1784.
DEAR SIR, — Your favor of the 7* inst. with another pf of spectacles inclosed came safe to hand on thurs- day last. I shall have the person for whose use they were intended take choice of the most suitable & will return the other pf to Mr Dudley by the first conveyance, unless I meet with a purchaser which I do not expect. The arrangement which is to carry you to Europe has been made known to me by Mr. Short who tells me he means to accompany or follow you. With the many reasons which make this event agree able, I cannot but mix some regret that your aid to wards a revisal of our State Constitution will be removed. I hope however for your licence to make use of the ideas you were so good as to confide to me, so far as they may be necessary to forward the object. Whether any experiment will be made this session is uncertain. Several members with whom I have casually conversed give me more encouragem' than I had indulged. As Col : Mason remains in pri vate life, the expediency of starting the idea will de pend much on the part to be expected from R. H. L. & P. H. The former is not yet come to this place,
52 THE WRITINGS OF [1784
nor can I determine any thing as to his politics on this point. The latter arrived yesterday, & from a short conversation I find him strenuous for invigorating the federal Gov1 though without any precise plan, but have got no explanations from him as to our internal Gov1. The general train of his thoughts seemed to suggest favorable expectations. We did not make a house till Wednesday last, & have done nothing yet but arrange ye committees & receive petitions. The former Speaker was re-elected without opposition. If you will either before or after your leaving America point out the channel of communication with you in Europe, I will take the pleasure of supplying you from time [to time] with our internal transactions, as far as they may deserve your attention, & expect that you will command every other service during yr absence which it may be in my power to render. Wishing you every success & happiness, I am, Dr sir,
Your affecl.e friend
TO JAMES MADISON. MAD. MSS.
RICHMOND June sf.h 1784,
HOND SIR, — I have disposed of the tobacco entrusted to me for 40 / per c' but receive in hand no more than will be delivered by Mf Craig. The residue will be paid before I leave this place. I inclose a draught on S. J. from Col. Harvey, for ^200 for which I have credited Mr Anderson on his bond. Ml" Anderson could not pay the balance now, but expects to do it shortly. The draught & the remittance, will I hope
1784] JAMES MADISON. 53
with such addition as you will be able to make, redeem your bond out of the hands of My Jones. I have ap plied to Gen! Wood for Majr Kite's warrant. He promises to get it if possible, before Mf Craig sets out. If he does it will be forwarded. I have laid Maj? Lee's case before the House, and it has been re ferred to the committee of propositions. The mass of business before this Committee & my avocations from it to other Committees have delayed it hitherto. Having but a moment to write this I must refer to Mr Craig for the news of the session. The House of Delegates have agreed to postpone the June tax till Jan^. It is not improbable that the Senate may require \ to be collected at an earlier period. Mf Winslow will probably be glad to be apprized of these circum stances. Remember me affect? to the family & accept of the dutiful respects of your son
TO JAMES MADISON. MAD. MSS.
RICHMOND June 24, 84
HOND SIR, — Your letter by Capt : Cowherd with that of my brother's have been just put into my hand. I shall leave to him the sale of the Tob° belonging to Capt. Conway & Ambrose ; not being at leisure my self to do it before he proposes to set out. I think it will be well to accept of Mi" Lawson's offer of the Madeira. I shall do the best I can towards satis fying the Treasury on ace' of M? Winslow. Maj' Lee's warrant has been ordered by the assembly, but Ml" Harvey being a little puzzled by the peculiarity
54 THE WRITINGS OF [1784
of the case, could not make it out immediately on my first application, & I have not time now to repeat it. I hope the delay will not be inconvenient to Majr Lee. Much time has been lately spent by the assem bly in abortive efforts for amendment of the constitu tion,1 and fulfilling the Treaty of peace in the article
1 Notes of Speech on Proposed Amendment to the Constitution of Virginia. June, 1784 :
' ' Virg? Legislature
" For Amending Constitution of V? in 1784.
" Nature of a Constitution exam<?see Mass1.5 p. 7. 8. 15. 16. N. Y. p. 63. — Pen? p. 85. 86. Del. p. 106 N. C. p. 146-150. S. C. p. 188. Geo p. 175. 186.
" Convention of 1776. without due power from people.
" i. passed the ordinance for Const? on recommendation of Cong? of May 15. 1776. prior to decln of independence : as was done in N. H. p. I & N. J. p. 78-84.
" 2. Passed it from impulse of necessity. — See last clause of the preamble
3. before independence declared by Cong*
" 4. power from people no where pretended.
"5. other ordinances of same Session deemed alterable as relative to Sen ators — oaths — Sal t .
" 6. provisions for care of West Augusta in its nature temporary.
" 7. Convention make themselves branch of the Legislature.
" Constitution, if so to be called defective
" i. in a Union of powers which is tyranny Montesq.
"2. Executive dependent on Legislature, i. for salary. 2. for character in the trefiial expulsion. — 3. expensive — 4. may be for life contrary to Art : 5 of Declaration of Rights. —
"3. Judiciary dependent for am! of salary
" 4. Privileges & wages of members of Legislature unlimited & undefined.
" 5. Senate badly constituted & improperly barred of the originating of laws.
" 6. equality of representation not provided for see N. Y. p. 65. S. C. p. 165
" 7. Impeachm1.5 of great moment & on bad footing.
" 8. County Courts seem to be fixed p. 143. 144. also General Court.
"9. Habeas Corpus omitted.
" 10. no mode of expounding constitution & and of course no check to Gen1. Assembly
"IT. Right of suffrage not well fixed — quere if popish recusants &c. are not disfranchised ? Const? rests on acquiescence, a bad basis
" Revision during war improper — on peace decency requires surrender of power to people.
1784] JAMES MADISON. 55
of British debts.1 The residue of the business will not be completed till next week. If my brother W. is at leisure as before, I beg him to bring down the chair for me to be here by Wednesday next. I am your dutiful son.
44 No danger in referring to the people who already exercise an equivalent power.
44 If no change be made in the Constitution, it is advisable to have it ratified and secured ag^ the doubts and imputations under which it now labours." — Mad. MSS.
2 4l J. M.'s proposition to the Gen. Assembly [June — 1784]. See Journal Whereas by the 44.h article of the Definitive Treaty of Peace ratified and pro claimed by the United States in Congress assembled on the I4l.h day of Jany last 4 it is agreed that Creditors on either side shall meet with no lawful im pediment to the recovery of the full value in sterling money, of all bona fide debts heretofore contracted ' : and whereas it is the duty and determination of this Commonwealth, with a becoming reverence for the faith of Treaties, truly and honestly, to give to the said article, all the effect, inasmuch as the debts due from the good people of this commonwealth to the subjects of G. Britain were contracted under the prospect of gradual payments, and are justly com puted to exceed the possibility of full payment at once, more especially, under the diminution of their property resulting from the devastations of the late war : and it is therefore conceived that the interest of the British creditors them selves will be favored by fixing certain reasonable periods, at which divided payments shall be made :
44 Resolved, that it is the opinion of this Committee, that the laws now in force relative to British debts, ought to be so varied & amended as to make the same recoverable in the proportions & at the periods following : that is to say, part thereof with interest of 5 per O. from the date of the definitive Treaty of peace, on the day of and the remaining on the day of And whereas it is further stipulated by art : 7l.h of the said Treaty, among other things, that 4 his Britannic Majesty shall with all convenient speed, and without causing any destruction, or carrying away any negroes or other property of the American inhabitants, withdraw all his armies, garrisons and fleets from the said United States ; and from every post place and harbour within the same, leaving in all fortifications the American artillery that may be therein, and shall also order and cause all archives, records, deeds & papers, belonging to any of the said States, or their citizens, which in the course of the war, may have fallen into the hands of his officers, to be forthwith restored and delivered to the proper States and persons to whom they belong,' which stipulation was in the same words contained in the Provisional articles signed at Paris on the 30^
56 THE WRITINGS OF [1784
TO THOMAS JEFFERSON. MAD. MSS.
RICHMOND, July 3d, 1784.
DEAR SIR, — The Assembly adjourned the day be fore yesterday. I have been obliged to remain here since on private business for my Countrymen with the Auditor's and other departments. I had allotted towards the close of the Session to undertake a narra tion for you of the proceedings, but the hurry on which I did not sufficiently calculate, rendered it im possible, and I now find myself so abridged in time that I cannot fulfil my intentions. It will however be the less material, as Mr. Short by whom this goes, will be possessed of almost every thing I could say. I inclose
day of November 1782 by the commissioners empowered on each part : and whereas posterior to the date of the said provisional articles, Sundry negroes the property of citizens of this commonwealth were carried away from the city of New York whilst in possession of the British forces, and no restitution or satisfaction on that head, has been made, either before or since the Definitive Treaty of peace ; And whereas the good people of this commonwealth have a clear right to expect that whilst, on one side, they are called upon by the U. S. in Congress assembled to them by fcederal Constitution the powers of war & peace are exclusively delegated, to carry into effect the stipulations in favour of British subjects, an equal observance of the stipulations in their own favor, should, on the other side, be duly secured to them under the authority of the Confederacy.
" Resolved, that it is the opinion of this Committee ; that the Delegates repre senting this State in Congress ought to be instructed to urge in Congress peremptory measures for obtaining from G. Britain satisfaction for the infringe ment of the article aforesaid ; and in case of refusal or unreasonable delay of such satisfaction, to urge that the sanction of Congress be given to the just policy of retaining so much of the debts due from citizens of this common wealth, to British subjects, as will fully repair the losses sustained from such infringement : and that to enable the said Delegates, to proceed herein with the greater precision & effect, the Executive ought to be requested to take imme diate measures for obtaining & transmitting to them, all just claims of the citizens of this Commonwealth under the 7*h art : as aforesaid." — Mad. MSS.
1784] JAMES MADISON. 57
you a list of the acts passed excepting a few which had not received the last Solemnity when the list went to press. Among the latter is an Act under which i per Ct. of the land tax will be collected this fall and will be for Congress. This with the \\ per Ct. added to the impost on trade, will be all that Congress will ob tain on their last requisition for this year. It will be much short of what they need, & of what might be expected from the declarations with which we intro duced the business of the Session. These declara tions will be seen in the Journal, copy of which I take for granted will be carried by Mr. Short. Another act not on the list lays duties on law proceedings, on alienations of land, on probats of Wills, administra tion & some other transactions which pass through official hands. This tax may be considered as the basis of a stamp-tax; it will probably yield ^15 or 20,000 at present, which is set apart for the foreign Creditors of this State.
We made a warm struggle for the establishing of Norfolk & Alexandria as our only ports ; but were obliged to add York, Tappahannock & Bermuda hun dred, in order to gain any thing & to restrain to these ports foreigners only. The footing on which British debts are put will appear from the Journal noting only that a law is now in force which forbids suits for them. The minority in the Senate have protested on the subject. Having not seen the protest I must refer to Mr. Short who will no doubt charge himself with it.
A trial was made for a Convention, but in a form not the most lucky. The adverse temper of the
58 THE WRITINGS OF [1784
House & particularly of Mr. Henry had determined me to be silent on the subject. But a Petition from Augusta having among other things touched on a Reform of the Gov' and R. H . L. arriving with fav orable sentiments, we thought it might not be amiss to stir the matter. Mr. Stuart from Augusta accord ingly proposed to the Comittee of propositions the Resolutions reported to the House as per Journal. Unluckily R. H. L. was obliged by sickness to leave us the day before the question came on in Comittee of the whole, and Mr. Henry shewed a more violent opposition than we expected. The consequence was that after two days Debate the Report was negatived, and the majority not content with stopping the measure for the present availed themselves of their strength to put a supposed bar on the Journal against a future possibility of carrying it. The members for a Convention with full powers, was not considerable for number, but included most of the young men of education & talents. A great many would have con curred in a Convention for specified amendments, but they were not disposed to be active even for such a qualified plan.
Several Petitions came forward in behalf of a gen1 Assessm1 which was reported by the Come of Religion to be reasonable.1 The friends of the measure did
'At this session a concerted effort was made by the various churches for State recognition. There was a committee of the legislature charged " with all mat ters relating to religion and morality," Petitions were presented from the Baptists and Presbyterians asking for a removal of all remaining distinctions in favor of the Episcopal Church, in order that " religious freedom be established upon the broad basis of perfect political equality." The bill for the Episcopal Church was debated two days. — Rives, i., 560, et seq. John B. Smith, president
1784] JAMES MADISON. 59
not chuse to try their strength in the House. The Episcopal Clergy introduced a notable project for re establishing their independence of the laity. The foundation of it was that the whole body should be legally incorporated, invested with the present prop erty of the Church, made capable of acquiring indefin itely — empowered to make canons & bye-laws not contrary to the laws of the land, and incumbents when once chosen by vestries, to be immovable otherwise than by sentence of the Convocation. Extraordinary as such a project was, it was preserved from a dishon orable death by the talents of Mr. Henry. It lies over for another Session.
The public lands at Richmond not wanted for pub lic use are ordered to be sold & the money, aided by subscriptions, to be applied to the erection of buildings on the Hill as formerly planned. This fixes the Gove, which was near being made as vagrant as that of the U. S., by a coalition between the friends of Will- iamsbs & Stanton. The point was carried by a small majority only.
The lands about Williamsbg are given to the Uni versity, and are worth, Mr. Tazewell thinks ^10,000 to it. For the encouragement of Mr. Maury's School, licence is granted for a lottery to raise not more than ^2000.
of Hampden-Sydney College, wrote to Madison, June 21, 1784, that the bill was insulting to non-Episcopalians, and any measure to enable the Episcopal clergy to regulate all spiritual concerns of that church was an express attempt " to draw the State into an elicit connection and commerce with them," and to put the legislature in the position of being at the head of the church. He was sorry that Christian ministers should virtually declare their church to be a mere political machine. — Smith to Madison, Mad. MSS.
60 THE WRITINGS OF [1784
The revisal is ordered to be printed. A frivolous ceconomy restrained the n? of copies to 500. I shall secure the n° you want & forward them by the first opportunity. The three Revisors' labour was recollected on this occasion, and ,£500 voted for each. I have taken out your warrant in five parts, that it may be the more easily converted to use. It is to be paid out of the first unappropriated money in the Treasury, which renders its value very precarious un less the Treasurer sd be willing to endorse it " receiva- ble-in-taxes," which he is not obliged to do. I shall await your orders as to the disposition of it.
An effort was made for Paine & the prospect once flattering. But a sudden opposition was brewed up which put a negative on every form which could be given to the proposed remuneration. Mr. Short will give you particulars.
Col : Mason the Attorney Mr. Henderson & myself are to negociate with Maryland if she will app' Com- issrs to establish regulations for the Potowmac.1
1 The boundary between Virginia and Maryland was the Potomac, and the charter of Lord Baltimore had defined the Southern shore as the line. This Virginia confirmed in the Constitution of 1776, reserving, however, the free navi- igation and use of the river. Madison feared that this general confirmation would be construed by Maryland into a total surrender of all jurisdiction over the river. Having accertained through Jefferson that Maryland would appoint commissioners to form regulations if Virginia did so, Madison introduced a bill to that effect, which was passed June 3Oth. See Rives, i,, 535, et seq. Through a blunder in the notifications Madison and Randolph did not attend the meeting with the Maryland Commissioners, which took place at Mount Vernon, but the Maryland Commissioners having journeyed some distance, Mason and Hender son decided to proceed with the conference. — Mason to Madison, August 9, 1785. — Mad. MSS. The Maryland members were T. Stone, Daniel of St. Thomas Jenifer and Samuel Chase. Together with Mason and Henderson they signed the report which was dated Mount Vernon, March 28, 1785, and
1784] JAMES MADISON. 61
Since the receipt of yours of May 8, I have made diligent enquiry concerning the several schools most likely to answer for the education of your Nephews.1 My information has determined me finally to prefer that of Mr. W. Maury as least exceptionable. I have accordingly recommended it to Mrf Carr, & on re ceiving her answer shall write to Mr Maury pointing out your wishes as to the course of study proper for Master Carr. I have not yet made up any opinion as to the disposition of your younger nephew but shall continue my enquiries till I can do so. I find a greater deficiency of proper schools than I could have sup posed, low as my expectations were on the subject. All that I can assure [you] of is that I shall pursue your wishes with equal pleasure & faithfulness.
transmitted to the General Assembly as " Result of the Deliberations of the Commissioners of Virginia & Maryland, appointed to settle the navigation & Jurisdiction of that Part of the Chesapeake Bay within the Limits of Virginia, & of the Rivers Potomack and Pokomoke." The Commissioners also united in a joint letter to the President of the Executive Council of Pennsylvania, rec ommending the cooperation of that State. — Mad. MSS. There is no reason for supposing that Madison's bill had any deeper purpose than the simple one that appeared on the surface, but when it appeared that regulations between Vir ginia and Maryland would be useless unless Pennsylvania were included, it be came equally evident that New York, New Jersey, and Delaware could render ineffective any agreement Pennsylvania might make. A general convention of all the States to bring about what was at first projected for two States only was the logical suggestion. It resulted in the call for the Annapolis meeting, which in turn led to the Philadelphia convention. The proceedings of the Virginia and Maryland Commissioners are traced in Kate Mason Rowland's George Mason, ii., 12, et seq. For Madison's resolutions extending the Commissioners' powers, szz post.
1 4t Mrs. Carr was informed by M? Jefferson, previous to his departure to Europe, that he had requested the favor of you, to direct the Studies of her two Sons Peter & Dabney in his absence. Should it be convenient for you to comply with M* Jeffersons request, M^s Carr will be much obliged to you to inform her, when, and in what manner you would wish them disposed of." — W. O. Collis to Madison, August 9, 1784.— Mad. MSS.
62 THE WRITINGS OF [1784
Your hint for appropriating the slave tax to Con gress fell in precisely with the opinion I had formed and suggested to those who are mpst attentive to our finances. The existing appropriation of half of it however to the Military debt was deemed a bar to such a measure. I wished for it because the slave holders are Tob° makers, and will generally have hard money wch alone will serve for Congress. Nothing can exceed the confusion which reigns throughout our Revenue department. We attempted but in vain to ascertain the amount of our debts, and of our re sources, as a basis for something like a system. Per haps by the next Session the information may be prepared. This confusion indeed runs through all our public affairs, and must continue as long as the present mode of legislating continues. If we cannot amend the constitution, we must at least call in the aid of accurate penmen for extending Resolutions into bills, which at present are drawn in [a] manner that must soon bring our laws and our Legislature into contempt among all orders of Citizens.
I have communicated your request from Philad* May 25, to Mr. Lane. He writes by Mr. Short & tells me he is possessed of the observations which he promised you. I found no opportunity of broaching a scheme for opening the navigation of the Potowmac under the auspices of Gen1 Washington, or of provid ing for such occurrences as the case of Marbois. With the aid of ye Attorney perhaps something may be done on the latter point next Session.
Adieu My dear friend.
1 7 84] JAMES MADISON. 63
To General Washington. Wash. Mss
TO GENERAL WASHINGTON. WASH. MSS.
ORANGE Augst 12, 1784
DEAR SIR, — I had the honor of receiving your favor of the 12^ of June during my attendance on the Le gislature, and of answering it a few days, before I left Richmond. Since my return home I have been in formed that the gentleman into whose hands the answer was put has mislaid or lost it, and that I can not rely on its ever finding its way to you. I have therefore to repeat, Sir, that the sanction which your judgment gave to the propriety of rewarding the lit erary services of Mr Payne,1 led to an attempt in the House of Delegates for that purpose. The proposi tion first made was, that he should be invested with a moity of a tract of public land known by the name of the Secretary's lying on the Eastern Shore. The kind reception given to this proposition induced some gen tlemen to urge that the whole tract containing about 500 acres might be included in the donation, as more becoming the dignity of the State, and not exceeding the merits of the object. The proposition thus en larged passed through two readings without apprehen sion on the part of its friends. — On the third, a sudden attack grounded on considerations of econ omy and suggestions unfavourable to Mr Payne threw the Bill out of the house. The next idea proposed
1 Madison wrote to Washington on this subject July 2d less fully than in this letter. For Washington's suggestion that something should be done for " poor Paine," see his letter of June 12, 1784, to Madison, Writings of Washington, x., 393, and for Jefferson's opinion of the action of the Assembly, Jefferson to Madison, Decembers, 1784, Writings of Jefferson, iv., 17.
64 THE WRITINGS OF [1784
was that the land in question should be sold and ^2000 of the proceeds allotted to Mf Payne to be laid out in the purchase of a farm if he should think fit. This was lost by a single vote. Whether a succeed ing Session may resume the matter, and view it in a different light, is not for me to say. Should exertions of genius which have been everywhere admired, and in America unanimously acknowledged, not save the author from indigence & distress, the loss of na tional character will hardly be balanced by the savings at the Treasury.
With the highest respect &c.
TO THOMAS JEFFERSON. MAD. MSS.
ORANGE Aug 20, 1784.
DEAR SIR, — Your favor of the Is.1 July written on the eve of your embarcation from Boston was safely delivered by your servant Bob about the 20^ of the same month. Along with it I red the pamphlet on the W. India trade, and a copy of Deane's letters. My last was written from Richmond on the adjourn ment of the Gen! Assembly & put into the hands of Mr. Short. It contained a cursory view of legislative proceedings, referring to the bearer for a more cir- cumstancial one. Since the adjournment I have been so little abroad that I am unable to say with certainty how far those proceedings harmonize with the vox populi. The opinion of some who have better means of information is that a large majority of the people
1784] JAMES MADISON. 65
either from a sense of private justice or of national faith, dislike the footing on which British debts are placed. The proceedings relative to an amendment of the State Constitution seem to interest the public much less than a friend to the scheme would wish. The act which produces most agitation and discussion is that which restrains foreign trade to enumerated ports. Those who meditate a renewal of the old plan of British Monopoly & diffusive credit, or whose mer cantile arrangements might be disturbed by the inno vation, with those whose local situations give them, or are thought to give them an advantage in large vessels coming up the rivers to their usual stations, are busy in decoying the people into a belief that trade ought in all cases to be left to regulate itself, that to confine it to particular ports is to renounce the boon with which Nature has favored our country, and if one sett of men are to be importers & export ers, another set to be carryers between the mouths & heads of the rivers & a third retailers, trade, as it must pass through so many hands all taking a profit, must in the end come dearer to the people than if the simple plan should be continued which unites these several branches in the same heads. These & other objections, tho' unsound, are not altogether unplausi- ble, and being propagated with more zeal and pains by those who have a particular interest to serve than proper answers are by those who regard the general interest only, make it very probable that the measure may be rescinded before it is to take effect. Should it escape such a fate, it will be owing to a few striking
VOL. II.— 5.
66 THE WRITINGS OF [1784
and undeniable facts, namely, that goods are much dearer in Virginia, than in the States where trade is drawn to a general mart, that even goods brought from Philad* and Baltimore to Winchester & other W. & S. W. parts of Virginia are retailed cheaper than those imported directly from Europe are sold on tide water ; that generous as the present price of our Tob° appears, the same article has currently sold 15 or 20 per G at least higher in Philad* where being as far from the ultimate market it cannot be intrinsically worth more ; that scarce a single vessel from any part of Europe, other than the British Dominions, comes into our ports, whilst vessels from so many other parts of Europe, resort to other ports of America, almost all of them too in pursuit of the Staple of Vir ginia. The exemption of our own citizens from the restriction is another circumstance that helps to parry attacks on the policy of it. The warmest friends to the law were averse to this discrimination which not only departs from its principle, but gives it an illiberal aspect to foreigners, but it was a necessary concession to prevailing sentiments. The like discrimination between our own citizens & those of other States contrary to the fcederal articles is an erratum which was omitted to be rectified, but will no doubt be so. Notwithstanding the languor of our direct trade with Europe, this Country has indirectly tasted some of the fruits of Independence. The price of our last crop of Tob° has been on James River from 35/ to 42/6 per G & has brought more specie into the Country than it ever before contained at one time.
1784] JAMES MADISON. 67
The price of hemp however has been reduced as much by the peace as that of Tob° has been raised, being sold I am told as low as 2O/ per Q beyond the mountains. Our crops of wheat have been rather scanty, owing partly to the rigors of the winter, partly to an insect,1 which in many places has destroyed whole fields of that grain. The same insect has since the harvest fallen upon the Corn with considerable damage ; but without some very unusual disaster to that article the crop will be exuberant, & will afford plentiful supplies for the W. India Islands if their European Masters will no longer deny themselves the benefit of such a trade with us. The crop of the Tobacco now on the ground will if the weather con tinues favorable be tolerably good, though much shortened on the whole by the want of early seasons for transplanting & an uncommon number of the insects which prey upon it in its different stages. It will be politic I think for the people here to push the culture of this article whilst the price keeps up, it be coming more apparent every day that the richness of soil & fitness of climate on the Western waters will in a few years, both reduce the price & engross the culture of it. This event begins to be generally fore seen & increases the demand greatly for land on the Ohio. What think you of a guinea an acre being already the price for choice tracts with sure titles ?
Nothing can delay such a revolution with regard to our staple, but an impolitic & perverse attempt in Spain
1 Chinch-bug. Note in MS.
68 THE WRITINGS OF [1784
to shut the mouth of the Mississippi against the inhab itants above. I say delay, because she can no more finally stop the current of trade down the river than she can that of the river itself. The importance of this mat ter is in almost every mouth. I am frequently asked what progress has been made towards a treaty with Spain & what may be expected from her liberality on this point, the querists all counting on an early ability in the western settlements to apply to other motives if necessary.1 My answers have both from ignorance & prudence been evasive. I have not thought fit however to cherish unfavorable impressions, being more & more led by revolving the subject, to conclude that Spain will never be so mad as to persist in her present ideas. For want of better matter for corres pondence, I will state the grounds on which I build my expectation^.
First. ^Apt as the policy of nations is to disregard justice and the general rights of mankind I deem it no small advantage that these considerations are in our favour. They must be felt in some degree by the most corrupt councils on a question whether the interest of millions shall be sacrificed to views concerning a distant and paltry settlement ; they are every day ac quiring weight from the progress of philosophy and civilization and they must operate on those nations of Europe who have given us a title to their friendly offices or who may wish to gain a title to ours.
Secondly. May not something be hoped from the
1 Italics for cyphers.
1784] JAMES MADISON. 69
respect which Spain may feel for consistency of char acter on an appeal to the doctrine maintained}^ herself in the year 1609, touching the scheld, or at least from the use which may be made of that fact by the powers disposed to favor our views.
Thirdly. The interest of Spain at least ought to claim her attention, (i) A. free trade down the Missis sippi would make new Orleans oneoi the most flourish ing emporiums in the world and deriving its happiness from the benevolence of Spain would feel a firm loyalty to her government. At present it is an expen sive establishment settled chiefly by French, who hate the government which oppresses them, who already covet a trade with the upper coimtry, will become every day more sensible of the rigor which denies it to them and vfi\\join in any attempt which may be made against their master. (2) A generous policy on the part of Spain towards the U. S. will be the cement of friend ship & lasting peace with them. A contrary one will produce immediate heart burnings and sow the seeds of inevitable hostility. The U. S. are already a power not to be despised by Spain the time cannot be distant when, in spite of al precautions the safety of her pos sessions in this quarter of the globe must depend more on our peaceableness than her own power. (3) In another view it is against the interest of Spain to throw obstacles in the way of our Western settlements. The part she took during the late war shews that she apprehended less from the power growing up in her neighborhood in a state of independence than as an in strument in the hands of Great Britain. If in this she
70 THE WRITINGS OF [1784
calculated on the impotence 0/the U. S. when dismem bered from the British empire she saw but little way into futurity ; if on \hepacific temper of republics unjust irritations on her part will soon prove to her that these have like passions with other governments. — her permanent security seems to lie in the complexity of our federal government and the diversity of interests among the members of it which render offensive meas ures improbable in council and difficult in execution. If such be the case when thirteen States compose the system ought she not to wish to see the number enlarged to three and twenty f A source of temporary security to her is our want of naval strength ; ought she not, then, to favor those emigrations to the Western land which, as long as they continue will leave no super numerary hands for the sea.
Fourthly. Should none of these circumstances affect her councils she cannot surely so far disregard the usage of nations as to contend that her possessions at the mouth tf/the Mississippi justify a total denial <si the use of it to the inhabitants above when possessions much less ^'^proportionate at the mouth of other rivers have been admitted only as a title to a moderate toll. The case of the Rhine the Maese & the Scheld, as of Elbe and Oder are if / mistake not in point here. How far other rivers may afford parallel cases I can not say. That of the Mississippi is probably the strongest in the world.
Fifthly. Must not the general interest of Europe in all cases influence the determinations of any particular nation in Europe and does not that interest in the
1784] JAMES MADISON. 71
present case clearly lie on our side, (i) All the prin cipal powers have, in &. general view more to gain than to lose by denying a right of those who hold the mouths of rivers to intercept a communication with those above. France Gr Brit and Sweden have no opportunity of exerting such a right, and must wish a free passage for their merchandize in every country Spain /ierse\i has no such opportunity and has besides three of her prin cipal rivers one of them the seat of her metropolis run ning thro' Portugal. Russia can have nothing to lose by denying this pretension and is bound to do so in favor of her great rivers the Neiper, the Niester and the Don which mouth in the black sea, and of fas. passage thrd the Dardanelles which she extorted from the T^lrks. The Emperor in common with the inland States of Germany and moreover by his possessions on the Maese and the Scheld, has a similar interest, ^^pos sessions of the King of Prussia on the Rhine, the Elbe, and the Oder, are pledges for his orthodoxy. The U. P\ hold it is true, the mouths of the Maese the Rhine and the Scheld but a general freedom of trade is so much their policy and they now carry on so much of it through the channel of rivers flowing thro different do minions that their weight can hardly be thrown into the wrong scale. The only powers that can have an inter est in opposing the American doctrine are the Ottoman which has already given up the point to Russia, Den mark which is suffered to retain the entrance of the Baltic Portugal whose principal rivers head in Spain, Venice which holds the mouth of the Po ; and Dantzick which commands that of the Vistula if it is yet to be
72 THE WRITINGS OF [1784
considered as a sovereign City. The prevailing disposi tion of Europe on this point once /Titrated an attempt of Denmark to exact a toll at the mouth of the Elbe by means of &fort on the holstein side, which commands it. The fact is mentioned in Salmons gazetteer, un der the head of Cluestadt. I have no opportunity of ascertain/;^ the circumstances of the case, or #/ discov ering like cases. (2) In a more important view, the settlement of the Western country which will much de pend on the free use of the Mississippi, will be beneficial to all nations who either directly or indirectly trade with the U. S. By a free expansion of our people the establishment of internal manufactures will not only be long delayed but the consumption of foreign manu factures long continue increasing ; and at the same time, all the productions of the American soil required by Europe in return for her manufactures, will propor tionally increase. The vacant land of the United States lying on the waters of the Mississippi is perhaps equal in extent to the land actually settled. If no check be given to emigrations from the latter to the former, they will probably keep pace at least with the zVzrrease of our people, till faz. population of both becomes nearly equal. For twenty or twenty-five years we shall conse quently have as few internal manufactures in propor tion to our numbers as at present and at the end of that period our imported manufactures will be doubled. It may be observed too, that as the market for these manufactures will first increase, and the provision for supplying it ~w\\\ follow fas, price of supplies will natur ally rise \\\ favor of those who manufacture them. On
1784] JAMES MADISON. 73
the other hand as the demand for the tobacco indigo rice corn &c produced by America for exportation will neither precede nor keep pace with their increase the price must naturally sink in favor also of those who consume them. Reverse the case by supposing the use of the Mississippi denied to us and the consequence is that many of our supernumerary hands who in the former case would be husbandmen on the waters of the Mississippi, will on the latter supposition be manufac turers on those of the Atlantic and even those who may not be discouraged from seating the vacant lands will be obliged by the want of vent for ti\e produce of the soil and of the means of purchasing foreign manu factures to manufacture in a great measure for them selves. Should Spain yield the point of the navigation of the Mississippi, but at the same time refiise us the use of her shores, the benefit will be ideal only. I have conversed with several persons who have a practical knowledge of the subject, all of whom assure me that not only the right of fastening to the Spanish shore, but that of holding an entrepot in our own, or of using New Orleans as a free port, is essential to a trade thro that channel. It has been said that sea vessels can get up as high as latitude thirty-two to meet the river craft, but it will be with so much difficulty and dis- advantage as to amount to a prohibition. The idea has also been suggested of large magazines constructed for floating ; but if this expedient were otherwise admissi ble the hurricanes which in that quarter frequently de molish edifices on land forbid the least confidence in those which would have no foundation but water.
74 THE WRITINGS OF [1784
Some territorial privileges therefore seem to be as in dispensable to the use of the river as this is to the prosperity of the western country. A place called " The Englishman's turn'' on the island of about six leagues below the town of New O. , is I am told the fittest for our purpose, & that the lower side of the peninsula is the best. Batonrouge is also mentioned as a conven ient station and point coupe as the highest to which vessels can ascend with tolerable ease. Information however of this from men who judge from a general and superficial view only can never be received as accurate. If Spain be sincerely disposed to gratify us, I hope she will be sensible it cannot be done effectually without allowing a previous survey and deliberate choice. Should it be impossible to obtain from her a portion of ground by other means, would it be unadvisable to at tempt it by purchase The price demanded could not well exceed the benefit to be obtained, and a reimburse ment 0/"the public advance might easily be provided for by the sale to individuals, and the conditions which might be annexed to their tenures. Such a spot could not fail in a little time to equal in value the same ex tent in London or Amsterdam. The most intelligent of those with whom I have conversed think that on whatever footing our trade may be allowed very judic- \Q\\S provision will be necessary for a fair adjustment of disputes between the Spaniards and the Americans dis putes which must be not only noxious to trade but tend to embroil the two nations. Perhaps a joint tribunal, under some modification or other might answer the purpose. There is a precedent I see for such an
1784] JAMES MADISON'. 75
establishment in the twenty-first article of the treaty of Munster in 1 648, between Spain and the U. N. I am informed that, sometime after New O. passed into the hands of Spain her Governor forbid all British vessels navigating under the treaty of Paris to fasten to the shore and caused such as did so to be cut loose. In con sequence of this practice a British frigate went up near the town fastened to the shore and set out guards to fire on any who might attempt to cut her loose. The Governor after trying in vain to remove the frigate by menaces acquiesced after which British vessels indiscrim inately used the shore and even the residence of British Merchants in the town of New O., trading clandestinely with the Spaniards as well as openly with their awn people, [was] winked at. The treaty 0/1763 stipulated to British subjects as well as / recollect no more than the right of navigating the river and if that of using was admitted under that stipulation, the latter right must have been admitted to be included in the former. When you were about leaving America as a Comissr for peace you intimated to me that a report was in circulation &l your being a party to jobs for Ken tucky lands and authorized me to contradict the re port. I have some reason to believe that the credit of your name has been made use of by some who are making purchases or locations in that quarter. If they have done it without sanction it may not be amiss to renew my authority. 1
1 " I can with truth therefore declare to you, and wish you to repeat it on every proper occasion, that no person on earth is authorized to place my name in any adventure for lands on the western waters." Jefferson to Madison, November u, 1784. — Writings of Jefferson, iv., 3.
76 THE WRITINGS OF [1784
In consequence of my letter to Mrs. Carr I have been called on by your elder Nephew, who is well sat isfied with the choice made of Williamsbg for his fu ture studies. I have furnished him with letters to my acquaintance there & with a draught on your Steward for ;£i2. He will be down by the opening of Mr. Maury's school at the close of the vacation, which lasts from the beginning of Augst to the end of Septr. I have the greater hopes that the preference of this School will turn out a proper one, as it has reel the approbation of the literary gentlemen of Williamsbg & will be periodically examined by Mr. Wythe & others. Your younger Nephew is with Majr Callis, who will keep [school ?] some time longer, I am at a loss as yet where to fix him, but will guard as much as possible agst any idle interval. I am, very affectly, dear Sir, y friend and serv1,
TO JAMES MADISON. MAD. MSS.
HON'D SIR, — I arrived at this place the night before last only, having declined starting from Fredg. at the time I proposed when I parted with you, & having staid at Baltimore one day, at the latter place I fell in with the Marquis & had his company thus far. He is proceeding Northw? as far as Boston from whence he goes to the Moran Treaty at Fort Stanwix and from thence returns to Virg* about the same time that I must be there. He presses me much to fall into his plan, and I am not sure that I shall decline it. It
1784] JAMES MADISON. 77
will carry me farther than I had proposed, but I shall be rewarded by the pleasure of his company and the further opportunity of gratifying my curiosity. I have nothing to add at present but that I am your affec son
TO THOMAS JEFFERSON. MAD. MSS.
PHILAD^- Sep1; 7th, 1784.
DEAR SIR, — Some business, the need of exercise after a very sedentary period, and the view of extending my ramble into the Eastern States which I have long had a curiosity to see have brought me to this place. The letter herewith enclosed was written before I left Virginia, & brought with me for the sake of a con veyance hence. Since the date of it I have learned that Mr Short who was to be the bearer of the letter to which it refers has not yet left Richmond. The causes of his delay are unknown to me. At Baltimore I fell in with the Marquis de la Fayette returning from a visit to Mount Vernon. Wherever he passes he receives the most flattering tokens of sincere affec tion from all ranks. He did not propose to have left Virginia so soon but Gen1 Washington was about setting out on a trip to the Ohio, and cod not then accompany him on some visits as he wished to do. The present plan of the Marquis is to proceed im mediately to New York, thence by Rhode Island to Boston, thence thro' Albany to Fort Stanwix, where a treaty with the Indians is to be held the latter end of this month, thence to Virginia so as to meet the Legislature at Richmond. I have some thoughts
78 THE WRITINGS OF [1784
of making this tour with him, but suspend my final resolution till I get to N. Y. whither I shall follow him in a day or two.
The relation in1 which the Marquis stands to France and America has induced me to enter into a free con- versan with him on the subject of the Mississippi. I have endeavored emphatically to impress on him that the ideas of America and of Spain irreconcileably clash that unless the mediation of France be effectually exerted, an actual rupture is near at hand that in such an event the connection between France and Spain will give the enemies of the former in America the fairest opportunity of involving her in our resentm^ against the latter, and of introducing Great Brit, as a party with us as against both that America cannot possibly be diverted from her object, and therefore France is bound to set every engine at work to divert Spain from hers ; and that France has besides a great interest in a trade with the western country thro the Mississippi. I thought it not amiss also to suggest to him some of the considerations which seem to appeal to the produce of Spain. He admitted the force of everything I said told rne he would write in the most [favorable] terms to the Coitnt de Vergennes by the packet which will probably carry this and let me see his letter at N. York before he sends it. He thinks that Spain is bent on excluding us from the Mississippi and mentioned several anecdotes which happened while he was at Madrid in proof of it.
The Committee of the States have dispersed.
1 Italics for cypher.
1784] JAMES MADISON. 79
Several of the Eastern members havg by quitting it reduced the number below a quorum, the impotent remnant thought it needless to keep together. It is not probable they will be reassembled before Novr, so that there will be an entire interregnum of the foederal Government for some time, against the inten tion of Cong5 I apprehend, as well as against every rule of decorum.
The Marquis this moment stepped into my room & seeing my cyphers before me dropped some questions which obliged me in order to avoid reserve to let him know that / was writing to you. I said nothing on the subject but he will probably infer from our conversatn that the Mississippi is most in my thoughts.
Mrs. House charges me with a thousand compli ments & kind wishes for you and Miss Patsy. We hear nothing of Mrs. Trist since her arrival at the Falls of the Ohio, on her way to N. Orleans. There is no doubt that she proceeded down the river thence, unapprized of her loss. When & how she will be able to get back since the Spaniards have shut all their ports agst the U. S., is uncertain & gives much anxiety to her friends. Browze has a windfall from his grand mother of ^"1000 sterling. Present my regards to Miss Patsy and to Mr. Short if he should be with you, and accept yourself Dear Sir, the sincerest affection of your friend & servant.
TO THOMAS JEFFERSON.
N. YORK, Octr n, 1784.
DEAR SIR, — My last dated from this place on the 14 [15] ult : informed you of my projected trip to Fort
8o THE WRITINGS OF [1784
Schuyler. I am this moment arrived so far on my re turn to Virginia. My past delay requires so much hurry now that I can only drop a few lines for the packet which is to sail on the i5th inst. The Mar quis & myself were overtaken at Albany by Mr. de Marbois, on the same errand with ourselves. We reached Fort S. on the 29, & on the next day paid a visit to the Oneida Nation 1 8 miles distant. The CorTi- issrs did not get up till the Saturday following. We found a small portion only of the six nations assem bled ; nor was the number much increased when we quitted the scene of business. Accts however had come of deputies from more distant tribes being on the way. The Marquis was recd by the Indians with equal proofs of attachment as have been shewn him elsewhere in America. This personal attachment with their supposed predilection for his nation, and the reports propagated among them that the Alliance be tween F. & U. S. was transient only, led him with the sanction of the Comissrs to deliver a Speech to the Indian Chiefs coinciding with the object of the Treaty. The answers were very favorable in their general tenor. Copies of both will be sent to Mons. de Vergennes & the [n] M. de Castries by Mr. Mar bois & be within the reach of your curiosity. The originals were so much appropriated to this use during my stay with the Marquis that I had no opportunity of providing copies for you. What the upshot of the Treaty will be is uncertain. The possession of the posts of Niagara &c by the British is a very inauspici ous circumstance. Another is that we are not likely
1784] JAMES MADISON. 81
to make a figure otherwise that will impress a high idea of our power or opulence. These obstacles will be rendered much more embarrassing by the instruc tions to the Comissrs which I am told leave no space for negociation or concession, & will consequently oblige them in case of refusal in the Indians to yield the ultimate hopes of Congress to break up the Treaty. But what will be the consequence of such an emer gency ? Can they grant a peace without cessions of territory — or if they do must not some other price here after purchase them. A Truce has never I believe been introduced with the Savages nor do I suppose that any provision has been made by Congress for such a contingency. The perseverance of the British in retaining the posts1 produces various conjectures. Some suppose it is meant to enforce a fulfilment of the Treaty of peace on our part. This interpretation is said to have been thrown out on the other side. Others that it is a salve for the wound given the Savages who are made to believe the posts will not be given up till good terms shall be granted them by Congress. Others that it is the effect merely of omission by the B. Gov'to send orders. Others that it is meant to fix the fur trade in the B. channel & it is even said that the Govt of Canada has a personal
1 ..." That one reason assign'd for detaining the Western posts from the United States was, because Virginia had not repealed her laws that impede the recovery of British debts. It is sincerely to be lamented that our State should be so charged, and it is much to be wished that the Advocates for re taining those laws wd no longer insist upon furnishing pretext for detaining from the U. S. possessions of such capital importance to the Union as these posts are." — Richard Henry Lee to Madison, November 20, 1784. Mad. MSS.
82 THE WRITINGS OF [1784
interest in securing a monopoly of at least the crop of this Season. I am informed by a person just from Michilimackinac that this will be greater than it has been for several seasons past, or perhaps any preced ing season, & that no part of it is allowed by the British Commanders to be brought thro' the U. S. From the same quarter I learn that the posts have been lately well provisioned for the winter, & that reliefs if not reinforcements of the garrisons will take place. Col : Monroe had passed Oswego when last heard of & was likely to execute his plan. If I have time & opportunity I will write again from Philad* for which I set out immediately ; if not from Rich mond. The Marqs proceeded from Albany to Boston from whence he will go via R. Island, to Virg*, and be at the Assembly. Thence he returns into the N. States to embark for Europe. I am Yrs affect
TO THOMAS JEFFERSON. MAD- MSS-
PHILADA. Octr. 17 1784.
DEAR SIR, — On my arrival here I found that Mr. Short had passed through on his way to N. York & was there at the date of my last. I regret much that I missed the pleasure of seeing him. The inclosed was put into my hands by Mrs. House, who reed*? it after he left Philad* My two last, neither of which were in cypher, were written as will be all future ones in the same situation, 1 in expectation of their being read by postmasters. I am well assured that this is
1 Italics for cypher.
1784] JAMES MADISON. 83
\hefate of all letters at least to and from public persons not only in France but all the other Countries of Europe. Having now the use of my cypher I can write without restraint. In my last I gave you a sketch of what passed at Fort Schuyler during my stay there, mentioning in particular that the Marquis had made a speech to the Indians with the sanction of the Corn- miss^ Wolcott, Lee, Butler? The question will prob ably occur how a foreigner and a private one, could appear on the theatre of a public treaty between the U. S. & the Indian nations and how the Commis sioners could lend a sanction to it. Instead of offering an opinion of the measure I will state the man ner in which it was brought about. It seems that most of the Indian tribes particularly those of the Iroquois retain a strong predilection for the French and most of the latter an enthusiastic idea of the Marquis. This idea has resulted from his being a Frenchman the figure he has made during the war and the arrival of several important events which he foretold to them soon after he came to this country. Before he went to fort Schuyler it had been suggested, either in compli ment or sincerity that his presence & influence might be of material service to the treaty. At albany the same thing had been said to him by general Wolcot. On his arrival at FortS. Mr. Kirkland recommended an exertion of his influence as of essential conseqcf to the treaty, painting in the strongest colours the attach ment of the Indians to his person, which seemed indeed to be verified by their caresses and the artifices em-
1 Oliver Wolcott, Richard Butler, and Arthur Lee.
84 THE WRITINGS OF [1784
ployed by the British partisans to frustrate the objects of the treaty among which was a pretext that the alliance between the U. S. and France was insincere and transitory and consequently the respect of the In dians for the latter ought to be no motive for their res pecting the former. Upon these circumstances the M. grounded a written message to the Commissrs. before they got up intimating his disposition to render the U. S. any service his small influence over the Indians might put in his power and desiring to know what the Commissioners would chuse him to say. The answer in Mr. Lees hand consisted of polite acknowledgments and information that the Commissrs. would be happy in affording him an opportunity of saying whatever he might wish forbearing to advise or suggest w* it would be best for him to say. the M. perceived the ca^Uion but imputed it to Lee alone. As his stay was to be very short it was necessary for him to take provisional measures before the arrival of the Commissrs and particularly for calling in the Oneida Chiefs who were at their town. It fell to my lot to be consulted in his dilemma. My advice was that he should invite the chief in such a way as would give him an opportunity of addressing them publicly, if on a personal interview with the Commissioners it should be judged expedient ; or of satisfying their expectations with a friendly entertainment in return for the civilities his visit to their town had met with. This advice was approved ; but the Indians brought with them such ideas of his importance as no private reception would probably have been equal to. When the Commissioners arrived the
1784] JAMES MADISON. 85
M. consulted them in person. They were reserved, he was embarrassed. Finally they changed their plan and concurred explicitly in his making a Speech in form. He accordingly prepared one communicated it to the Commrs. and publicly pronounced it the Commrs. premising such an one as was thought proper to intro duce his. The answer of the sachems, as well as the circumstances of the audience denoted the highest rev erence for the orator. The chief of the Oneidas said that the word which he had spoken to them early in the war had prevented them from being misled to the wrong side of it. During this scene and even during the whole stay of the M. he was the only conspicuous figure. The Commissioners were eclipsed All of them probably felt it. Lee complained to me of the immoderate stress laid on the influence of the M., and evidently promoted his departure. The M. was not insensible of it, but consoled himself with the service which he thought the Indian Speech would witness that he had rendered to the U. S. I am persuaded that the transaction is also pleasing to him in another view as it will form a bright column in the Gazettes of Europe. As it is blended with the pro ceed^ of the Commrf, it will probably not be published in America very soon. The time I have lately passed with the M. has given me a pretty thorough insight into his character. With great natural frankness of temper he unites much address and very considerable talents. In his politics he says his three hobby-horses are the alliance between France and the U. S., the union of the latter and the manumission of the slaves.
86 THE WRITINGS OF [1784
The two former are the dearer to him, as they are con nected with his personal glory. The last does him real honor, as it is a proof of his humanity. In a word, I take him to be as amiable a man as can be imagined and as sincere an American as any Frenchman can be ; one whose past services gratitude obliges us to acknow ledge and whose futitre friendship prudence requires us to cultivate.
The Committee of the States have never reassem bled. The case of Longchamps has been left both by the Legislature & Executive of this State to its Judiciary course. He is sentenced to a fine of 100 Crowns, to 2 years' imprisonment, and Security for good behaviour for 7 years. On teusday morning I set off for Richmond, where I ought to be to morrow, but some delays have put it out of my power. The ramble I have taken has rather inflamed than extinguished my curiosity to see the Northern and N. W. Country. If circumstances be favorable I may probably resume it next Summer. Present my compliments to Miss Patsy, for whom as well as your self Mrs. House charges me with hers. She has lately rec? a letter from poor Mrs. Trist, every syllable of which is the language of affection itself. She had arrived safe at the habitation of her decd Husband, but will not be able to leave that Country till the Spring at the nearest. The only happiness she says she is capable of there, is to receive proofs that her friends have not forgotten her. I do not learn what is likely to be the amount of the effects left by Mr. T. former accounts varied from 6 to 10,000 dollars. I am my Dear Sir, Yrs very affect.
1784] JAMES MADISON, 87
To James Monroe. Mad. Mss
TO JAMES MONROE. MAD. MSS.
RICHMOND, Nov. — , 1784.
DEAR SIR, — Your favor without date was brought by thursday's post. It inclosed a Cypher for which I thank you & which I shall make use of as occasion may require, though from the nature of our respective situations, its chief value will be derived from your use of it. Ge1 Washington arrived here on Sunday last, and the Marquis on thursday. The latter came from Boston in a French frigate. They have both been addressed & entertained in the best manner that circumstances would admit. These attentions and the balloting for public offices have consumed the greatest part of the past week. Mr. Jones is put into the place of Mr. Short, Mr. Roane and Mr. M. Selden are to go into those of Mr. M. Smith & Col. Chris tian who are the victims to that part of the Constitu tion which directs a triennial purgation of the Council. The vote is not to take effect till the Spring, but was made now in consequence of the discontinuance of the Spring Session. The rejected Candidates were Col. Bland, Cys Griffin, G. Webb, W. C. Nicholas, Mr. Breckenridge, Col. Carrington. The latter was within one vote of Mr. Selden, Col. B. Mr. N., & Mr. B., had as nearly as I recollect between 20 & 30 votes, Mr. G. & Mr. W. very few. Mr. H. Innes late Judge of the Kentucky Court is to succeed W[alker] D[aniel], late Attorney General in that District. His competitor was Mr. Stewart who was about 15 votes behind.
I am Dr Sir Yrs sincerely.
88 THE WRITINGS OF [1784
Notes Of Speech Against Assessments For Support Of
NOTES OF SPEECH AGAINST ASSESSMENTS FOR SUPPORT OF RELIGION. NOVEMBER - - 1784. MAD. MSS.
I. Rel. not within purview of civil authority.1
Tendency of estab? Xnty — i. to project of Uniformity. 2. to penal laws for support2 it.
Progress of Gen. Asses* proves this tendency. Difference between estab? and tolerating errour. " True question — not Is Rel. necessy, — but
II. are Relig* Estabts necesy for Religion ? No.
1. propensity of man to Religion.
2. Experience shews Relig. corrupted by Estabts'
3. Downfall of States mentioned by Mr. H. — happened where there was estab'-
4. Experience gives no model of Gen1 Asst-
5. Case of Pa. explained — not solitary. N. J. See const, of it. R. I. N. Y. D. factions greater in S. C.
6. Case of primitive Xnty.
of Reformation.
of Dissenters formerly.
7. Progress of Religious liberty.
III. Policy-
1. promote emigrations from State.
2. prevent immig. into it, as asylum.
IV. Necessity of Estab1 inferred from state of coy' True causes of disease.
1. war | common to other States & produce same com-
2. bad laws ) plts in N. E.
3. pretext from taxes.
4. state of administration of Justice.
5. transition from old to new plan.
6. policy and hopes of friends to G. Asst-
True remedies not Estabt- — but, being out of war, i. laws to cherish virtue.
*A paraphrase of this speech may be found in Rives i., 604. The speech is written in a microscopic hand on the back of a letter.
1784] JAMES MADISON. 89
2. administration of justice.
3. personal example — associations for R.
4. By present vote, cut off hope of G. asst-
5. Education of youth. V. Probable defects of Bill,
1. limited.
2. in particular.
3. What is Xnty ? Courts of law to Judge.
4. What edition: Hebrew, Septuagint, or Vulgate? What copy what translation ?
5. What books canonical, what apocryphal? the papists hold ing to be the former what protestants the latter, the Lutherans the latter what the protestants & papists ye former.
6. In what light are they to be viewed, as dictated every letter by inspiration, or the essential parts only ? Or the matter in general not the words ?
7. What sense the true one for if some doctrines be essential to Xnty those who reject these, whatever name they take are no Xn Society ?
8. Is it Trinitarianism, Arianism, Socinianism ? Is it salvation by faith or works also, by free grace or by will, &c., &c.
9. What clue is to guide [a] Judge thro' this labyrinth when ye question comes before them whether any particular society is a Xn society ?
10. Ends in what is orthodoxy, what heresy. Dishonors Christianity.
panegyric on it, on our side. Decl. Rights."
TO JAMES MONROE. MAD. MSS.
RICHMOND, Nov^ i4th, 1784.
DEAR SiR,1 — * * The Indians begin to
be unquiet we hear both on the N. W. & S. E. sides
1 The opening of the letter relates to Monroe's journey over the same ground substantially that Madison had just travelled.
9o THE WRITINGS OF [1784
of the Ohio. The Spaniards are charged with spur ring on the latter. As means of obviating the dangers, the H. of D. have resolved to authorize the Executive to Suspend the surveying of land within the un- purchased limits, & to instruct the Delegation to urge in Congf Treaties with the Southern Indians and negociations with Spain touching the Mississip1. They also propose to set on foot surveys of Potowmac & James Rivers from their falls to their sources. But their principal attention has been & is still occu pied with a scheme proposed for a Gen1 Asse1; 47 have carried it agst 32. l In its present form it excludes all but Xn Sects. The Presbyterian Clergy have remonstrated agst any narrow principles, but indirectly favor a more comprehensive establish'. I think the bottom will be enlarged & that a trial will be made of the practicability of the project. The Successor to Mr. H[arrison] is not yet appointed or nominated. It is in the option of Mr. H[enry], and I fancy he will not decline the service. There will be three vacancies in the Council, for which no nominations have been made. Mr. C. Griffith will probably be named, & Mr. W. Nicholas. Mr. Roane is also spoken of. I am, Dr Sir, Yrs sincerely.
1 The resolution was brought in by Henry. It declared that " the people of the commonwealth, according to their respective abilities, ought to pay a moderate tax or contribution for the support of the Christian religion, or of some Christian church, denomination, or communion of Christians, or of some form of Christian worship." Only one petition appeared against the measure. A special committee with Henry at the head was appointed to prepare the bill. See Rives i., 599, et seq.
1784] JAMES MADISON. 91
TO JAMES MONROE. MAD- MSS-
RICHMOND, Novr 27, 1784.
DEAR SIR, — Your favor of the I5th inst : came to hand by thursday's post. Mine by the last post ac knowledged your preceding one. The umbrage given to the Comsrs of the U. S. by the negociations of N. Y. with the Indians was not altogether unknown to me, though I am less acquainted with the circum stances of it than your letter supposes. The Idea which I at present have of the affair leads me to say that as far as N. Y. may claim a right of treating with Indians for the purchase of lands within her limits, she has the confederation on her side ; as far as she may have exerted that right in contravention of the Gen1 Treaty, or even unconfidentially with the Comsrs of Cong5, she has violated both duty & de corum. The fcederal articles give Cong5 the ex clusive right of managing all affairs with the Indians not members of any State, under a proviso, that the Legislative authority of the State within its own limits be not violated. By Indians not members of a State, must be meant those, I conceive who do not live within the body of the Society, or whose Persons or property form no objects of its laws. In the case of Indians of this description the only restraint on Con gress is imposed by the Legislative authority of the State.
If this proviso be taken in its full latitude, it must destroy the authority of Congress altogether, since no act of Cong5 within the limits of a State can be conceived which will not in some way or other
9 2 THE WRITINGS OF [1784
encroach upon the authority [of the] State. In order then to give some meaning to both parts of the sen tence as a known rule of interpretation requires, we must restrain this proviso to some particular view of the parties. What was this view ? My answer is that it was to save to the States their right of pre emption of lands from the Indians. My reasons are. i. That this was the principal right formerly exerted by the Colonies with regard to the Indians, 2. that it was a right asserted by the laws as well as the pro ceedings of all of them, and therefore being most familiar, wd be most likely to be in contemplation of the parties. 3. that being of most consequence to the States individually, and least inconsistent with the general powers of Congress, it was most likely to be made a ground of Compromise. 4. it has been always said that the proviso came from the Virga Delegates, who wd naturally be most vigilant over the territorial rights of their Constituents. But what ever may be the true boundary between the authority of Cong8 & that of N. Y., or however indiscreet the latter may have been I join entirely with you in thinking that temperance on the part of the former will be the wisest policy. I concur with you equally with regard to the ignominious secession at Anna polis. As Congs are too impotent to punish such offences, the task must finally be left to the States and experience has shewn in the case of Howel that the interposition of Cong? agst an offender instead of promoting his chastisement, may give him a signi- ficancy wch he otherwise wd never arrive at and may
1784] JAMES MADISON. 93
induce a State to patronize an act which of their own accord they would have punished. I am sorry to find
the affair of Mr. de Marb s. taking so serious a
face. As the insult was committed within the juris diction of Pena, I think you are right in supposing the offender could not be transferred to another jurisdic tion for punishment. The proper questions therefore are i. whether the existing law was fully put in force agst him by Pa? 2. whether due provision has been made by that State agst like contingencies ? Nothing seems to be more difficult under our new Govern ments than to impress on the attention of our Legis latures a due sense of those duties which spring from our relations to foreign nations. Several of us have been labouring much of late in the G. Assembly here to provide for a case with which we are every day threaten'd by the eagerness of our disorderly Citizens for Spanish plunder & Spanish blood. It has been proposed to authorize Cong8 Whenever satisfactory proof shall be given to them by a foreign power of such a crime being committed by our Citizens within its jurisdiction as by the law of Nations call for a sur render of the Offender, & the foreign power shall actually make the demand, that the Executive may at the instance of Cong5 apprehend & deliver up the offender. That there are offences of that class is clearly stated by Vattel in particular, & that the busi ness ought to pass through Cong5, is equally clear. The proposition was a few days ago rejected in Comittee of the whole. To-day on the report of the Corn6 it has been agreed to by a small majority. This
94 THE WRITINGS OF [1784
is the most material question that has agitated us during the week past. The Bill for a Religious Asses1 has not been yet brought in. Mr. Henry the father of the scheme is gone up to his Seat for his family & will no more sit in the H. of Delegates a circumstance very inauspicious to his offspring. An attempt will be made for circuit Courts, & Mr. Jones has it in contemplation to try whether any change has taken place in the sentiments of the H. of D. on the subject of the Treaty. He will write to you by this post & I refer to him for what I may have omitted.
With sincere regard & esteem I am Dr Sir Yr friend & serv1.
TO JAMES MADISON. MAD- MSS-
RICHD- Novr 27, 1784.
HOND SIR, — Having a moment's time to drop you a line I inform you that the Bill for confirming sur veys agst subsequent entries has been negatived by a large majority, rather on the principle that it was un necessary & retrospective, than that it was unjust in itself. On the contrary all the principal gentlemen were of opinion that it was just, but already provided for by the law. Mr. Innes the late Judge of the Kentucky Court, in particular told me he thought such surveys could not be overset. You will have heard of the vote in favor of the Gen1. Assess* The bill is not yet brought in & I question whether it will, or if so whether it will pass. This day a vote
1784] JAMES MADISON. 95
passed without a dissent for Circuit Courts. What opposition may be made to its passage I know not. I have not yet found time to do your business at the Land Office. I expected before this to have seen my brother A. & Majf Moore. I have been a little indisposed for a few days with a bad cold which still continues, otherwise I am well. Mr Joseph will tell you the price of Tob? I think it will rise. With regards to the family
I am Dr Sir Your Affecte son.
TO JAMES MADISON. MAD. MSS.
RICHMOND, Dec1; 3, 1784.
HON'D SIR, — My last informed you that a vote had passed in favor of Circuit Courts. A bill has since been brought in and will shortly be considered. The difficulty of suiting it to every palate, & the many latent objections of a selfish & private nature which will shelter themselves under some plausible objec tions of a public nature to which every innovation is liable render the event extremely uncertain. In the Course of this week The H. of D. have agreed to pay the British debts by annual portions for 7 years dis allowing interest between the 19^ of Ap! 1775 & 3? of March 1783, the period of hostilities. It is not unlikely that the same observations above made on the Circuit Court bill may be applicable to this case. The bill for Gen1.- Ass' was brought in yesterday. Its fate is equally uncertain. I inclose a copy of Treaty at Fort Stanwix which I rec*? by yesterdays post.
96 THE WRITINGS OF [1784
The Comiss?5 were proceeding to Fort Pitt to hold another Treaty : No Cong? had been formed on the 2O^h of Nov- nor much prospect of a speedy one. The British hold the N. Western Post yet & assign in justification the breach of Peace in Virg? & N. York. I am much better than at ye date of my last & with affec^ respect to family remain
Yr Dutiful Son.
TO JAMES MONROE. MAD. MSS,
RICHMOND, Decr. 4. i 784
DEAR SIR, — On Saturday last a proposition was agreed to for establishing Circuit Courts throughout this Commonwealth, and yesterday a bill for that pur pose was reported. On Wednesday next it will un dergo a discussion of the Com6 of the Whole. The circumstances under which it has passed thus far seem to promise a favorable issue, but the dangers which it is yet to go thro' are formidable. They proceed from latent & interested objections which have on several former occasions proved fatal to similar attempts. The plan is pretty analogous to the Nisi prius establishing in England. On Tuesday sundry propositions were made by Mr. Jones in favor of the 4 art : of the Treaty of peace. They passed by a large majority with blanks as to the length of time to be given for the payment of the principal and for disallowing the interest. The former was filled up with seven years, in preference to 10, 8, 6, & 5 which were contended for on different sides. The latter with the period be tween Ap1 19, 1775, & March 3, 1783, in preference
1784] JAMES MADISON. 97
to the period between the first date & May 1784, the date of the exchange of Ratifications. The bill will probably pass but not I fear without some im proper ingredients, & particularly some conditions relative to the N. W. Posts, or the Negroes which lye without our province. The bill for the Religious Ass' was reported yesterday and will be taken up in a Com? of the whole next week. Its friends are much disheartened at the loss of Mr. Henry. Its fate is I think very uncertain. Another Act of the H. of D. during the presf week is a direction to the Executive to carry into effect the vote of a Bust to the Marquis de la fayette, to be presented to the City of Paris, & to cause another to be procured to be set up in this Country. These resolutions are so contrived as to hide as much as possible the circumstance in the orig inal vote of the bust being to be presented to the Marquis himself. I find by a Letter from G1 Washing ton that he was on the 28th Ult : just setting out to accompany the Marquis to Annapolis & thence to Baltimore. The latter may therefore soon be expected at Trenton. He has been much caressed here as well as everywhere else in his Tour, and I make no doubt he will leave Cong* with equal reason to be pleased with his visit. I meant to have sent you a copy of the Resolutions touching the Busts, but have been disappointed in getting one. They were offered by Mr. Jones & agreed to unanimously, as they no doubt will also be in the Senate. Wishing you all hap piness, I am
D^Sir
Yrs. sincerely
VOL. II. — 7.
98 THE WRITINGS OF [1784
TO JAMES MONROE. MAD. MSS.
RICHMOND, Decr- 24th, 1784.
DEAR SIR, — Your favor of the 1 4th instant came to hand on thursday. A proposition was' made a few days ago for this State to empower Cong? to carry into effect the imposts as soon as 12 States should make themselves parties to it. It was rejected on the following grounds i. that it would present a disagreeable aspect of our affairs to Foreign nations. 2. that it might lead to other combinations of lesser numbers of the States. 3. that it would render R.I. an inlet for clandestine trade. 4. that it would sour her temper still further at a crisis when her concurrence in some general & radical amendment of the Confed eration may be invited by Congress. 5. that the chance is almost infinitely ags.1 a Union of i 2 States on such new ground, and consequently the experi ment would be only a fresh display of the jarring policy of the States, and afford a fresh triumph & irritation to R. Island. The Act empowering Cong? to surrender Citizens of this State to the Sovereign demanding them for certain crimes committed within his jurisdiction has passed. Congress are to Judge whether the crimes be such as according to the Law of nations warrant such demand, as well as whether the fact be duly proven. Concurrent provision is made for punishing such offences by our own laws in case no such demand be made to or be not admitted by Cong?, and legal proof can be had. The latter law extends to offences agst the Indians. As these tribes do not observe the law of Nations it was supposed
1784] JAMES MADISON. 99
neither necessary nor proper to give up Citizens to them. The Act is not suspended on the concurrence of any other State, it being judged favorable to the interest of this tho' no other should follow the exam ple, and a fit branch of the federal prerogative. The Bill for Assize Courts has passed the Senate without any material amendment, is enrolled, and waits only to be examined by the Coinitte & signed by the Speakers. The Gen! Assess' on the question for en grossing it, was yesterday carried by 44 ag8.1 42. To day its third reading was put off till Nov^ next, by 45 ag^ 37 or thereabouts, and it is to be printed for con sideration of the people. Much business is still on the table but we shall probably rise about New Years day. I am, Df Sir with sincere regard Yf friend & serv*
To Richard Henry Lee. Mad. Mss
TO RICHARD HENRY LEE. MAD. MSS.
Extract from a letter from J. M. to Rich? H. Lee, Deer 25, 1784.
In the course of the last week a proposition was made to im- power Congress to collect the Impost within this State (Virginia) as soon as 12 States shd. unite in the scheme. The argum1.5 which prevailed ags.1 it were the unfavorable aspect it wd. present to for eigners, the tendency of the example to inferior combinations — the field it w? open for contraband trade — its probable effect on the temper of R. Isl? which might thwart other necessary meas ures of requiring the unanimity of the States — the improbability of the union of 12 States on this new ground, a failure of which w? increase the appearance of discord in their policy ; and give fresh triumph & irritation to Rh. Is?
I have not yet found leisure to scan the project of a Con tinental Convention with so close an eye as to have made up any observations worthy of being mentioned to you. In general I
ioo THE WRITINGS OF [1784
hold it for a maxim that the Union of the States is essential to their safety ag5.* foreign danger, & internal contention; and that the perpetuity and efficacy of the present system cannot be con fided in. The question therefore is, in what mode, & at what moment the experiment for supplying the defects ought to be made. The answer to this question can not be given without a knowledge greater than I possess of the temper & views of the different States. Virginia seems I think to have excellent dis positions towards the confederacy, but her assent or dissent to such a proposition w? probably depend on the chance of its hav ing no opponent capable of rousing the prejudices & jealousies of the Assembly ag5* innovations, particularly such as will derogate from their own power & importance. Should a view of the other States present no objections ag5* the experiment, individually I w? wish none to be presupposed here.
To Marquis De Lafayette. Mad. Mss
TO MARQUIS DE LAFAYETTE. MAD. MSS.
ORANGE, March 2oth, 1785.
MY DEAR SIR, — -Your favour of the i5th, continued on the 1 7th of December came very slowly but finally safe to hand. The warm expressions of regard which it contains are extremely flattering to me ; and the more so as they so entirely correspond with my own wishes for everything which may enter into your happiness.
You have not erred in supposing me out of the number of those who have relaxed their anxiety con cerning the navigation of the Mississippi. If there be any who really look on the use of that river, as an object not to be sought or desired by the United States I cannot but think they frame their policy on both very narrow and very delusive foundations. It is true, if the States which are to be established on the waters of the Mississippi, were to be viewed in the same relation to the Atlantic States, as exists between the heterogeneous and hostile Societies of Europe, it might not appear strange that a distinction or even an opposition of interests should be set up. But is it true that they can be viewed in such a relation ? Will the settlements which are beginning to take place on the branches of the Mississippi be so many distinct societies, or only an expansion of the same society? so many new bodies or merely the growth of the old one ? Will they consist of a hostile or a foreign people, or will they not be bone of our bones and flesh of our flesh ? Besides the confederal band, within
1785] JAMES MADISON. 121
which they will be comprehended, how much will the connection be strengthened by the ties of friendship, of marriage and consanguinity ? ties which it may be remarked, will be even more numerous between the ultramontane and the Atlantic States than between any two of the latter. But viewing this subject through the medium least favorable to my ideas, it still presents to the U, States sufficient inducements to in sist on the navigation of the Mississippi. Upon this navigation depends essentially the value of that vast field of territory which is to be sold for the benefit of the common Treasury ; and upon the value of this territory when settled will depend the portion of the public burdens of which the old States will be re lieved by the new. Add to this the stake which a considerable proportion of those who remain in the old States will acquire in the new by adventures in land either on their own immediate account or that of their descendants.
Nature has given the use of the Mississippi to those who may settle on its waters, as she gave to the United States their independence. The impolicy of Spain may retard the former as that of G. Britain did the latter. But as G. B. could not defeat the latter, neither will Spain the former. Nature seems on all sides to be reasserting those rights which have so long been trampled on by tyranny & bigotry. Philosophy & Commerce are the auxiliaries to whom she is in debted for her triumphs. Will it be presumptuous to say that those nations will shew most wisdom as well as acquire most glory, who instead of forcing her
122 THE WRITINGS OF [1785
current into artificial channels, endeavour to ascertain its tendency and to anticipate its effects. If the United States were to become parties to the occlusion of the Mississippi they would be guilty of treason against the very laws under which they obtained & hold their national existence.
The repugnance of Spain to an amicable regu lation of the Use of the Mississippi, is the natural offspring of a System, which everybody but herself has long seen to be as destructive to her interest as it is dishonorable to her character. An extensive desart seems to have greater charms in her eye than a flourishing but limited empire, nay than an exten sive flourishing empire. Humanity cannot suppress the wish that some of those gifts which she abuses were placed by just means in hands that would turn them to a wiser account. What a metamorphosis wd the liberal policy of France work in a little time on the Island of N. Orleans? It would to her be a fund of as much real wealth as Potosi has been of im aginary wealth to Spain. It would become the Grand Cairo of the new World.
The folly of Spain is not less displayed in the means she employs than in the ends she prefers. She is afraid of the growth and neighbourhood of the U. States, because it may endanger the tranquility of her American possessions ; and to obviate this danger she proposes to shut up the Mississippi. If her pru dence bore any proportion to her jealousy she would see, that if the experiment were to succeed, it would only double the power of the U. States to disturb her,
1785] JAMES MADISON. 123
at the same time that it provoked a disposition to ex ert it ; she would see that the only offensive weapon which can render the U. States truly formidable to her is a navy, and that if she could keep their in habitants from crossing the Appalachian ridge, she would only drive to the Sea most of those swarms which would otherwise direct their course to the Western Wilderness. She should reflect too that as it was impossible for her to destroy the power which she dreads, she ought only to consult the means of preventing a future exertion of it. What are those means ? Two & two only. The first is a speedy concurrence in such a treaty with the U. S. as will produce a harmony, & remove all pretexts for inter rupting it. The second, which would in fact result from the first, consists in favouring the extension of their settlements. As these become extended the members of the Confederacy must be multiplied, and along with them the Wills which are to direct the machine. And as the wills multiply, so will the chances against a dangerous union of them. We ex perience every day the difficulty of drawing thirteen States into the same plans. Let the number be doubled & so will the difficulty. In the multitude of our Counsellors, Spain may be told, lies her safety.
If the temper of Spain be unfriendly to the views of the U. States, they may certainly calculate on the favorable sentiments of the other powers of Europe, at least of all such of them as favored our Indepen dence. The chief advantages expected in Europe from that event center in the revolution it was to
i24 THE WRITINGS OF [1785
produce in the commerce between the new & the old World. The commerce of the U. S. is advantageous to Europe in two respects, first by the unmanufactured produce which they export ; secondly by the manu factured imports which they consume. Shut up the Mississippi and discourage the settlements on its waters, and what will be the consequence ? First, a greater quantity of subsistence must be raised within the ancient settlements, the culture of tobacco indigo & other articles for exportation, be proportionably diminished, and their price proportionably raised on the European consumer. Secondly the hands with out land at home being discouraged from seeking it where alone it could be found, must be turned in a great degree to manufacturing, our imports proportion- ably diminished, and a proportional loss fall on the European Manufacturer. Establish the freedom of the Mississippi, and let our emigrations have free course, and how favorably for Europe will the conse quence be reversed. First the culture of every article for exportation will be extended, and the price re duced in favor of her consumers. Secondly, Our people will increase without an increase of our Manu facturers, and in the same proportion will be increased the employment & profit of hers.
These consequences would affect France in com mon with the other commercial nations of Europe ; but there are additional motives which promise the U. States her friendly wishes and offices. Not to dwell on the philanthropy which reigns in the heart of her Monarch and which has already adorned his
1785] JAMES MADISON. 125
head with a crown of laurels, he cannot be inattentive to the situation into which a controversy between his antient and new Allies would throw him, nor to the use which would be made of it by his watchful ad versary. Will not all his councils then be employed to prevent this Controversy ? will it not be seen that as the pretensions of the parties directly interfere, it can be prevented only by a dissuasive interposition on one side or the other, that on the side of the U. S. such an interposition must, from the nature of things be unavailing ; or if their pretensions for a moment be lulled they w? but awake with fresh energy, and consequently that the mediating influence of France ought to be turned wholly on the side of Spain. The influence of the French Court over that of Spain is known to be great. In America it is supposed to be greater than perhaps it really is. The same may be said of the intimacy of the union between the two nations. If this influence should not be exerted, this intimacy may appear to be the cause. The United States consider Spain as the only favorite of' their Ally of whom they have ground to be jealous, and whilst France continues to hold the first place in their affections they must at least be mortified at any ap pearance that the predilection may not be reciprocal. The Mississippi has drawn me into such length that I fear you will have little patience left for anything else. I will spare it as much as possible. I hear nothing from Congress except that Mr. Jay has ac cepted his app* and that no success!" has yet been chosen to Df Franklyn. Our Legislature made a
126 THE WRITINGS OF [1785
decent provision for remittances due for 1785 from Virginia to the Treas? of the U. S. and very extensive provision for opening our inland navigation. Whether they passed an act for paying British debts or not they do not know themselves. Before the bill for that purpose had got through the last usual forms, the want of members broke up the House. It remains therefore in a situation which has no precedent, & without a precedent lawyers & legislators are as much at a loss as a mariner without his compass.
The subjects in which you interested yourself were all referred to the Executive with power to do what I hope they will do better than the Assembly. I understood before I left Richm? that you w? receive officially from the Govf a copy of the Resolutions which I sent you. I recd a letter a few days ago from Mr. Mercer, written in the bosom of wedlock at Mr. Sprigg's ; another at the same time from Monroe, who was well at New York. I have nothing to say of myself but that I have exchanged Richmond for Orange, as you will have seen by the above date ; that I enjoy a satisfactory share of health ; that I spend the chief of my time in reading, & the chief of my reading, on Law ; that I shall hear with the greatest pleasure of your being far better employed ; & that I am, with most affed
Yf Obed^ friend & Serv^
1 This passage briefly recounts the acts passed by the Legislature.
1785] JAMES MADISON. 127
TO JAMES MONROE. MAD. MSS.
ORANGE March 21, 1785.
DEAR SIR, — Your favor of the is.£ of Feb3^ did not come to hand till a day or two ago, having travelled on to Richmond, remained there during the absence of Mr. Jones & on his return, been sent to me by way of Fred*. Before I left Richmond I wrote you that the Assembly had adjourned and requested that your subsequent letters might be addressed to Orange, and if I do not forget to care of Mr Maury at Frederickbg. This letter ought to have reached you before the date of yours. I hope it has since got to hand. I also forwarded from Richmond to your care a letter for Mr Jefferson which I hope has not miscarried. It contained a rehersal of * our last legislative politics & proceedings, which I find by his letters to me are a material object of his curiosity. I shall be glad to know by your next whether you have ever rec? it, that in case of miscarriage I may endeavor to supply the loss.
I do not wonder at the paragraph which you have copied from Mr. Jay's letter to Congress. His feel ings are such as every one must possess who is worthy of the station which he holds. If the Office of foreign Affairs be a proper one & properly filled, a reference of all foreign despatches to it in the first instance, is so obvious a course, that any other disposition of them by Congress seems to condemn their own es tablishment, to affront the Minister in office, and to put on him a label of caution ag5.' that respect & con fidence of the Ministers of foreign powers, which are
128 THE WRITINGS OF [1785
essential to his usefulness. I have always conceived the several ministerial departments of Congress, to be provisions for aiding their Counsels as well as ex ecuting their resolutions, & that consequently whilst they retain the right of rejecting the advice which may come from either of them, they ought not to re nounce the opportunity of make-g use of it. The for eign department is I am sensible, in several respects the most difficult to be regulated, but I cannot think the question arising on Mr. Jay's letter is to be num bered among the difficulties. The practice of Con gress during the administration of his predecessor was never fixed, & frequently improper, and I always suspected that his indifference to the place resulted in part at least from the mortifications to which this unsteadiness subjected him.
You will not be disappointed at the barrenness which is hence to mark the correspondence on my part. In the recess of the Legislature, few occurrences happen which can be interesting, and in my retired situation, few even of these fall within my knowledge. The situation of Mr. Jones will probably make his correspondence a more productive one. He has prob ably already mentioned to you the advances which Kentucky was said to be making towards an inde pendent Gov-. It is certain that a Convention has been held, which might have been set on foot with an eye to such an event ; but I learn from an intelligent person lately from that district, that its deliberations turned altogether on the pressure of certain acts of the General Assembly, & terminated in a vote of
1785] JAMES MADISON. 129
application for redress. He supposes however that the late extension of the tax on patents will give a suc cessful handle to those who wish to accelerate a sepa ration. This tax as it stood before was in the first class of their grievances.
You will I expect receive this from the hands of Mr. Burnley, a young gentleman of my neighborhood, who has passed with reputation through Mr. Wythe's School & has since taken out his forensic diploma. Your civilities to him will be well placed & will con fer an obligation on me. If Col. Grayson has re covered from the gout which I hear arrested him in the moment of his intended departure, and is with you, be so kind as to make my best respects to him.
I am Dear Sir with sincere regard & esteem Your obed1 friend & servant,
JAMES MONROE MAD- Mss-
ORANGE April 12 1785.
DEAR SIR, — I wrote you not long since by a young gentleman who proposed to go as far as N. Y. ac knowledging the red of your favor of Feby i5.1 I have since recd that of March which I meant to have ac knowledged through the same hands. But finding that ye delays which have hitherto kept back the bearer above referred to, are of uncertain continuance, & having no certain conveyance to Fred? I embrace an opportunity of sending this to Richmond, whence it will be forwarded by Mr. Jones in the mail.
The appointment of Mr. A. to the Court of G. B.
VOL. II. — 9.
i3o THE WRITINGS OF [1785
is a circumstance which does not contradict my expec tations ; nor can I say that it displeases me. Upon Geographical considerations N. E. will always have one of the principal appointmts, and I know of no individual from that quarter, who possesses more of their confidence, or would possess more of that of the other States ; nor do I think him so well fitted for any Court of equal rank, as that of London, I hope it has removed all obstacles to the establishment of Mr. Jefferson at the Court of France. Will not Congress soon take up the subject of Consular ar rangements ? I should suppose them at least of equal moment at present with some of ye higher appointmts which are likely to occupy them. Our friend Mr. Maury is waiting with a very inconvenient suspension of his other plans, the event of the offer he has made of his services.1 I find he considers Ireland as the Station next to be desired after that of England. He conceives & I believe very justly that the commercial intercourse between that Country & this will be very considerable, and merits our particular cultivation. I suppose from your silence on the subject, that the Western posts are still in the hands of G. B. Has the subject of the vacant lands to be disposed of, been revived ? what other measures are on foot or in con templation for paying off the public debts ? What paymts have been made of late into the public Treas ury ? It is said here that Massts is taking measures for urging R. I into the Impost, or rendering the
Barnes Maury. He was appointed Consul at Liverpool, where he acted as Madison's agent in selling his tobacco for many years.
1785] JAMES MADISON. 131
Scheme practicable without her concurrence. Is it so ? How many of the States have agreed to change the 8l.h Art of ye Confederation ? The Legislature of this State passed a law for complying with the pro visional act of Cong5 for executing that article as it now stands, the operation of which confirms the ne cessity of changing the article. The law requires as the Act of Cong5 does among other things a list of the Houses. If ye list does not discriminate the several kinds of Houses, how can Cong5 collect from it ye value of the improvements, how do justice to all their constituents ? And how can a discrimination be made in this country, where the variety is so infinite & so unsusceptible of description? If Cong5 govern themselves by number alone, this Country will cer tainly appeal to a more accurate mode of carrying the present rule of the confederation into practice. The average value of the improvements in Virga is not •£• perhaps not y1^- of that of ye improvements in Pena or N. Engd. Compare this difference with ye proportion between the value of Improvemts & that of the Soil, & what an immense loss shall we be taxed with ? The number of buildings will not be a less unjust rule than the number of acres, for estimating the respec tive abilities of the States.
The only proceeding of the late Session of Assem bly which makes a noise thro' the Country is that which relates to a Gen1 Assessm1. The Episcopal people are generally for it, tho' I think the zeal of some of them has cooled. The laity of the other sects are equally unanimous on the other side. So are all
132 THE WRITINGS OF [1785
the Clergy except the Presbyterian who seem as ready to set up an establishm' which is to take them in as they were to pull down that which shut them out. I do not know a more shameful contrast than might be found between their memorials on the latter & former occasion.
In one of your letters recd before I left Richmond you expressed a wish for a better Cypher. Since my return to Orange I have been able to get one made out which will answer every purpose. I will either enclose it herewith or send it by the Gentleman who is already charged with a letter for you. I wish much to throw our correspondence into a more regular course. I would write regularly every week if I had a regular conveyance to Freds. As it is I will write as often as I can find conveyances. The business of this neighborhood which used to go to Fredericks- burg is in a great measure turned towards Richmd, which is too circuitous a channel. Opportunities in every direction however will be henceforward multi plied by the advance of the Season. If you are not afraid of too much loading the mail I could wish you to enclose in your letters the last N. Y. or Phila paper.
I am Dr Sir Yrs most sincerely.
TO THOMAS JEFFERSON. MAD. MSS.
ORANGE April 27 1785.
DEAR SIR, — I have recd. your two favors of Novr 1 1 & Decr 8. Along with the former I recd. the two pamphlets on animal magnetism & the last aeronautic
1785] JAMES MADISON. 133
expedition, together with the phosphoretic matches. These articles were a great treat to my curiosity. As I had left Richmd before they were brought thither by Col. le Maire, I had no opportunity of attending my self to your wishes with regard to him ; but I wrote immediately to Mr. Jones & desired him to watch over the necessities of le Maire. He wrote me for answer that the Executive tho' without regular proof of his claims were so well satisfied from circum stances of the justice of them, that they had voted him ^150 for his relief till the Assembly could take the whole into consideration. This information has made me easy on the subject though I have not with drawn from the hands of Mr. Jones the provisional resource. I thank you much for your attention to my literary wants. All the purchases you have made for me, are such as I should have made for myself with the same opportunities. You will oblige me by adding to them the Dictionary in 13 vol. 4° by Felice & others, also de Thou in French. If the utility of Moreri be not superseded by some better work I should be glad to have him too. I am afraid if I were to attempt a catalogue of my wants I should not only trouble you beyond measure, but exceed the limits which other considerations ought to prescribe to me. I cannot however abridge the Commission you were so kind as to take on yourself in a former letter, of procuring me from time to time such books as may be either " old & curious or new & useful." Under this description will fall those particularized in my former letters, to wit : treatises on the ancient or
i34 THE WRITINGS OF [1785
modern federal republics — on the law of Nations— and the history natural & political of the New World ; to which I will add such of the Greek & Roman authors where they can be got very cheap, as are worth having and are not on the common list of School classics. Other books which particularly occur are the translation (French) of the Historians of the Roman Empire during its decline, by • Pascal's Provincial letters — Don Ulloa in the Origi nal — Linnaeus best edition Ordinances Marines- Collection of Tracts in french on the Oeconomics of different nations, I forget the full title. It is much referred to by Smith on the wealth of Nations. I am told a Monsr Amelot has lately published his travels into China, which if they have any merit must be very entertaining. Of Buffon I have his original work of 31 vol. 10 vol. of Supplem1, and 16 vol. on birds. I shall be glad of the continuation as it may from time to time be published. I am so pleased with the new invented lamp that I shall not grudge two guineas for one of them. I have seen a pocket compass of somewhat larger diameter than a watch & which may be carried in the same way. It has a spring for stopping the vibration of the needle when not in use. One of these would be very convenient in case of a ramble into the Western country. In my walks for exercise or amusements, objects fre quently present themselves, which it might be matter of curiosity to inspect, but which it is difficult or im possible to approach. A portable Glass would conse quently be a source of many little gratifications. I
1 785] JAMES MADISON. 1 35
have fancied that such an one might be fitted into a cane without making it too heavy. On the outside of the tube might be engraved a scale of inches &c. If such a project could be executed for a few Guineas, I should be willing to submit to the price ; if not, the best substitute I suppose, will be a pocket telescope, composed of several tubes so constructed as to slide the lesser into the greater. I should feel great remorse at troubling you with so many re quests, if your kind & repeated offers did not stifle it in some measure. Your proposal for my replacing here advances for me without regard to the exchange is liable to no objection except that it will probably be too unequal in my favour. I beg that you will en able me as much as you can to keep these little mat ters balanced. The papers from Le Grand were sent as soon as I got them to Mr. Jones with a request that he would make the use of them which you wished me to do.
Your remarks on the tax on transfers of land in a general view appear to me to be just but there were two circumstances which gave a peculiarity to the case in which our law adopted it. One was that the tax will fall much on those who are evading their quotas of other taxes by removing to Georgia & Kentucky ; the other that as such transfers are more frequent among those who do not remove, in the Western than the Eastern part of the Country, it will fall heaviest where direct taxes are least collected. With regard to the tax in general on law proceedings, it cannot perhaps be justified if tried by the strict rule
136 THE WRITINGS OF [1785
which proportions the quota of every man to his abil ity, time however will gradually in some measure equalize it, & if it be applied to ye support of the Judiciary establishment, as was the ultimate view of the periods of the tax, it seems to square very well with the Theory of taxation.
The people of Kentucky had lately a Convention which it was expected would be the mother of a sep aration. I am informed they proceeded no farther than to concert an Address to the Legislature on some points in which they think the laws bear un equally upon them, they will be ripe for that event at least as soon as their interest calls for it. There is no danger of a concert between them & the Counties West of the Alleghany which we mean to retain. If the latter embark in a scheme for independence it will be on their own bottom. They are more disunited in every respect from Kentucky than from Virginia.
I have not learnt with certainty whether Gen1 Washington will accept or decline the shares voted him by the Assembly in the Companies for opening our rivers. If he does not chuse to take to himself any benefit from the donation, he has I think a fine opportunity at once of testifying his disinterested purposes, of shewing his respect for the Assembly, and of rendering a service to his Country. He may accept the gift so far as to apply it to the scheme of opening the rivers & may then appropriate the revenue which it is hereafter to produce to some patriotic establishment. I lately dropped a hint of this sort to one of his friends & was told that such
1785] JAMES MADISON. 137
an idea had been suggested to him. The private subscriptions for Potowmac I hear amount to ;£io,- ooo Sterling. I cannot discover that those for James River deserve mention, or that the undertaking is pushed with any spirit. If those who are most inter ested in it let slip the present opportunity, their folly will probably be severely punished for the want of such another. It is said the undertaking on the Sus- quehannah by Maryland goes on with great spirit & expectations. I have heard nothing of Rumsey or his boats since he went into the Northern States. If his machinary for stemming ye current operates on the water alone, as is given out, may it not supply the great desiratum for perfecting the Balloons ?
I understand that Chase & Jenifer on the part of Maryland, Mason & Henderson on the part of Vir ginia have had a meeting on the proposition of Virga for settling the navigation & jurisdiction of Potowmac below the falls, & have agreed to report to the two Assemblies, the establishment of a concurrent jurisdic tion on that river & Chesapeak. The most amicable spirit is said to have governed the negociation.
The Bill for a Gen1 Assess1 has produced some fermentation below the Mountains & a violent one beyond them. The contest at the next Session on this question will be a warm & precarious one. The Port bill will also undergo a fiery trial. I wish the As size Courts may not partake of the danger. The elections as far as they have come to my knowledge are likely to produce a great proportion of new Mem bers. In Albemarle young Mr. Fry has turned out
138 THE WRITINGS OF [1785
Mr. Carter. The late Governor Harrison I hear has been baffled in his own County, but meant to be a Candidate in Surry & in case of a rebuff there to throw another die for the borough of Norfolk. I do not know how he construes the doctrine of residence. llt is surmised that the machinations of tyler who fears a rivalship for the chair are at the bottom of his diffi culties. ArtJir. Lee is elected in prince William he is said to have paved the way by promises to overset the port bill which is obnoxioiis to dumfries and to prevent the removal of the Assize Court from this town to Alexandria.
I reed, a letter from the marquis fayette, dated on the eve of his embarcation which has the following paragraph I have much conferred with the General upon the Potowmac system many people think the navigation of the Mississippi is not an advantage but it may be the excess of a very good thing, viz the open ing of your rivers. I fancy it has not changed your opinion but beg you will write me on the subject in the meanwhile I hope Congress will act coolly and pru dently by Spain who is such a fool that allowances must be made. It is unlucky that he should have left America with such an idea as to the Missipi. It may be of the worst conseqiice as it is not wholly imaginary the prospect of extending the commerce of the atlantic states to the western waters having given birth to it. I can not believe that many minds arc tainted with so illiberal and short-sighted a policy. I have thought it not amiss to write the marquis according to the
1 Italics for cypher.
1785] JAMES MADISON. 139
req^{,est of his letter and have stated to him the motives and obligations which must render the U. S. inflexi ble on the subject of the Missipi, the folly of Spain in contesting it and our expectations from the known influence of France over Spain and her friendly dis positions toward U. S. It is \s^\. justice to the marquis to observe that in all our conversations on the Missipi he expressed with every mark of sincerity a zeal for our claims and a pointed dfolike to the national char acter and policy of Spain and that if his zeal should be foiind to abate I should construe it to be the effect of a supposed revolution in the sentiments of America.
This would have been of somewhat earlier date but I postponed it that I might be able to include some information relative to your Nephews. My last in formed you that your eldest was then with Mr. Maury. I was so assured by Mr. Underwood from his neigh borhood, who I supposed could not be mistaken. I afterwards discovered that he was so, but could get no precise information till within a few days. One of my brothers being called into that part of Country by business, I wrote to Mrs. Carr and got him to wait on her. The answer with which I have been favored imports that " her eldest son was taken last fall with a fever which with repeated relapses kept him ex tremely weak & low till about the first of Jany from which time he was detained at home by delays in equipping him for Williamsbg till the ist of April, when he set out with promises to make up his lost time — that her youngest son had also been detained at home by ill health till very lately, but that he would
1 40 THE WRITINGS OF [1785
certainly go on to the academy as soon as a vacation on hand was over, that his time had not been entirely lost as his brother was capable of instructing him whenever his health would admit." Mr. Maury's School is said to be very flourishing. Mr. Wythe & the other gentlemen of the University have examined it from time to time & published their approbation of of its management. I cannot speak with the same authority as to the Academy in Prince Edward. The information which I have recd has been favorable to it. In the recommendation of these Seminaries I was much governed by the probable permanency of them ; nothing being more ruinous to education than the frequent interruptions & change of masters & methods incident to the private schools of this Country.
Our winter has been full of vicissitudes, but on the whole far from being a severe one, the spring has been uncommonly cold & wet, and vegetation, of course, very backward ; till within a few days during which it has been accelerated by very uncommon heat. A pocket Thermometer which stands on the second floor & the N. W. side of the House was on the 24 inst. at 4 O'Clock, at 77°, on the 25, at 78, on the 26, at 8i£; to-day, 27, at 82, the Weather during this period has been fair & the wind S, the atmosphere thick N. W. Our Wheat in the ground is very un promising throughout the Country, the price of that article on tide-water is about 6s. Corn sells in this part of the country at los. & under, below at 15^. and where the insect prevailed as high as 2os. It is said to have been raised by a demand for exportation.
1785] JAMES MADISON. 141
Tob° is selling on Rappahannock at 32^. & Richmd at 37^ 6. It is generally expected that it will at least get up to 4Ctf. Some of our peaches are killed & most of our Cherries. Our Apples are as yet safe. I can not say how it is with the fruit in other parts of the Country. The mischief to the Cherries &c was done on the night of the 20 when we had a severe black frost. I can not take my leave of you without making my acknowledgemts for the very friendly invitation con tained in your last. If I should ever visit Europe I should wish to do it less stinted in time than your plan proposes. This crisis too would be particularly inconvenient as it would break in upon a course of reading which if I neglect now I shall probably never resume. I have some reason also to suspect that crossing the Sea would be unfriendly to a singular disease of my constitution. The other part of your invitation has the strongest bias of my mind on its side, but my situation is as yet too dependent on cir cumstances to permit my embracing it absolutely. It gives me great satisfaction to find that you are look ing forward to the moment which is to restore you to your native Country, though considerations of a public nature check my wishes that such an event may be expedited. Present my best respects to Mr. Short & Miss Patsy, & accept of the affectionate regards of Dear Sir your sincere friend.
What has become of the subterraneous City dis covered in Siberia ?
Deaths. Thompson Mason Bartholomew Dand- ridge Ryland Randolph Joseph Reed of PhiladeK
i42 THE WRITINGS OF [1785
TO JAMES MONROE. MAD- MSS-
ORANGE Ap1 28, 1785.
DEAR SIR, — I have written several letters within a little time past which were sent to you partly by the post partly by Mr. Burnley, a young Gentleman of this County. In one of the letters I inclosed a cypher, wch will serve all the purposes of our future correspondence. This covers a letter from Mr. Jef ferson which you will be so good as to forw? by the first packet or other equally eligible conveyance. Our Elections as far as I hear are likely to produce a great proportion of new members. In some coun ties they are influenced by the Bill for a Gen1 Assess1. In Culpeper Mr. Pendleton a worthy man & accept able in his general character to the people was laid aside in consequence of his vote for the Bill, in favor of an Adversary to it. The Delegates for Albemarle are your friend Mr. W. C. Nicholas & Mr. Fry. Mr. Carter stood a poll but fell into the rear. The late Govr Harrison I am told has been baffled in his own County, meant to be a candidate for Surey & in case of a rebuff there to throw another die for the Borough of Norfolk. I do not know how he proposes to satisfy the doctrine of residence.
I hear frequent complaints of the disorders of our coin & the want of uniformity in the denominations of the States. Do not Congress think of a remedy for these evils ? The regulation of weights & meas ure seem also to call for their attention. Every day will add to the difficulty of executing these works. If a mint be not established & a recoinage effected
1785] JAMES MADISON. 143
while the federal debts carry the money thro' the hands of Congress I question much whether their limited powers will ever be able to render this branch of their prerogative effectual. With regard to the regulation of weights & measures, wd it not be highly expedient as well as honorable to the fcederal admin istration, to pursue the hint which has been suggested by ingenious & philosophical men, to wit, that the standard of measure sd be first fixed by the length of a pendulum vibrating seconds at the Equator or any given latitude — & that the standard of weights sd be a Cubical piece of Gold or other homogeneous body, of dimensions fixed by the standard of measure. Such a scheme appears to be easily reducible to practice ; & as it is founded on the division of time which is the same at all times & in all places & proceeds on other data which are equally so, it would not only secure a perpetual uniformity throughout the U. S. but might lead to Universal standards in these matters among nations. Next to the inconveniency of speaking dif ferent languages, is that of using different & arbitrary weights & measures.
I am Dr Sir Yr affece friend.
TO JAMES MONROE. MAD- MSS-
ORANGE May 29 1785.
DEAR SIR, — Your favor of May — came to hand a few days ago. It is fortunate that the variant ideas have been so easily accomodated touching the mode of surveying & selling the territorial fund. It will be
144
THE WRITINGS OF [1785
equally so I think if you can dispossess the British of the Western posts before the land office is opened. On this event and the navigation of the Mississippi will much depend the fiscal importance of the back Country to the U. States. The amount of the pro posed requisition will I fear startle those to whom it will be addressed. The use of certificates as a me dium for discharging the interest of the home debt is a great evil, though I suppose a necessary one. The advantage it gives to Sharpers & Collectors, can scarcely be described, and what is more noxious, it provokes violations of public faith, more than the weight of the Burden itself. The 1,000,000 Drs to be paid in specie, and the greatest part of it to be sent abroad, will equally try the virtue of the States. If they do not flinch however they will have the satis faction of coming out of the trial with more honour though with less money.
I have lately heard that the Kentucky Delegates will be instructed to propose to the next Session the separation of that Country from this, and its being handed over to Congress for admission into the Con federacy. If they pursue their object through this channel, they will not only accomplish it without difficulty, but set a useful example to other Western settlemts which may chuse to be lopped off from other States. My information as to this matter is not au thentic, but such as I am inclined to believe true. I hear also that a State is actually set up in the back Country of N. C. that it is organized, named, and has deputed representatives to Congress.
1785] JAMES MADISON. 145
It gives me much pleasure to observe by 2 printed reports sent me by Col. Grayson that, in the latter Cong5 had expunged a clause contained in the first for setting apart a district of land in each Township for supporting the Religion of the majority of inhabi tants. How a regulation so unjust in itself, so foreign to the Authority of Cong5, so hurtful to the sale of the public land, and smelling so strongly of an anti quated Bigotry, could have received the countenance of a Comtee is truly matter of astonishment. In one view it might have been no disadvantage to this State in case the Gen1 Assess1 should take place, as it would have given a repellent quality to the new Country in the estimation of those whom our own encroachments on Religious Liberty would be calculated to banish to it. But the adversaries to the assess* begin to think the prospect here flattering to their wishes. The printed Bill has excited great discussion and is likely to prove the sense of the Comunity to be in favor of the liberty now enjoyed. I have heard of several Coun ties where the late representatives have been laid aside for voting for the Bill, and not of a single one where the reverse has happened. The Presbyterian Clergy too who were in general friends to the scheme, are already in another tone, either compelled by the laity of that sect, or alarmed at the probability of further interferences of the Legislature, if they once begin to dictate in matters of Religion. I am, Dr Sir, Yrs affecly.
The letter herewith inclosed is from Mrs. Can- sister of Mr. Jefferson.
VOL. II. — 10.
i46 THE WRITINGS OF [1785
TO JAMES MONROE. MAD. MSS.
ORANGE 21 June 1785.
DEAR SIR, — Finding from a letter of Mr. Mazzei that you have never been furnished with a copy of the Bill for establishing the Christian Religion in this State, I now inclose one, regretting that I had taken it for granted that you must have been supplied thro' some other channel. A very warm opposition will be made to this innovation by the people of the middle and back Counties, particularly the latter. They do not scruple to declare it an alarming usurpation on their fundamental rights and that tho' the Gen1 As sembly should give it the form, they will not give it the validity of a law. If there be any limitation to the power of the Legislature, particularly if this limi tation is to be sought in our Declaration of Rights or Form of Government, I own the Bill appears to me to warrant this language of the people.
A gentleman of credit lately from Kentucky tells me that he fell in with two persons on the Ohio, who were going down the River in the character of Comissrs from Georgia, authorized to demand from the Spanish Govr of N. Orleans, the posts within the limits of that State, and a settlement of the boundary in general between it and the Spanish possessions. The Gentleman did not see their commission, but entertains no doubt of their having one. He was in formed that two others were joined in it who had taken a different route. Should there be no mistake in this case, you will no doubt be able to get a full account of the Embassy. I would willingly suppose
1785] JAMES MADISON. 147
that no State could be guilty either of so flagrant an outrage on the federal Constitution, or of so impru dent a mode of pursuing their claims against a for eign Nation.
I observe in a late Newspaper that the comercial discontents of Boston are spreading to New York and Philada. Whether they will reach Virginia or not I am unable to say. If they should, they must proceed from a different interest ; from that of the planters, not that of the Merchants. The present system here is as favorable to the latter as it is ruin ous to the former. Our trade was never more com- pleatly monopolized by G. B., when it was under the direction of the British Parliament than it is at this moment. But as our Merchants are almost all con nected with that country & that only, and as we have neither ships nor seamen of our own, nor likely to have any in the present course of things, no mer cantile complaints are heard. The planters are dis satisfied, and with reason, but they enter little into the science of commerce, and rarely of themselves combine in defence of their interests. If any thing could rouse them to a proper view of their situation one might expect it from the contrast of the market here with that of other States. Our staple has of late been as low as a guinea per d on Rappahannock, and not above 32 or 33^. on James River. The current prices in Philada during the same period have been 44^. of this currency for tobacco of the latter inspec tions and in like proportion for that of the former. The prices of imports of every kind in those two
148 THE WRITINGS OF [1785
Markets furnish a contrast equally mortifying to us. I have not had the same information from other States northward of us, but I have little doubt that it would teach us the same lesson. Our planters cannot suffer a loss of less that 50 per d on the staple of the Coun try, if to the direct loss in the price of the staple be added their indirect loss in the price of what they purchase with their staple. It is difficult notwith standing to make them sensible of the utility of establishing a Philada or1 a Baltimore among our selves, as one indispensable step towards relief, and the difficulty is not a little increased by the pains taken by the Merchants to prevent such a reformation, and by the opposition arising from local views. I have been told that Arthur Lee 2 paved the way to his election in Prince William by promising that, among other things he would overset the Port Bill. Mr. Jef ferson writes me that the Port Bill has been published in all the Gazettes in Europe, with the highest ap probation everywhere except in G. B. It would in deed be as surprising if she should be in favor of it as it is that any among ourselves should be against it. I see no possibility of engaging other nations in a rivalship with her without some such regulation of our commerce.
I am Dr Sir Yrs affecly
1 By concentrating our Commerce at Alexandria and Norfolk the object of the Port-Bill. [Note in MS.]
2 Italics for cypher.
1785] JAMES MADISON. 149
To R. H. Lee. Mad- Mss-
TO R. H. LEE. MAD- MSS-
ORANGE July 7th, 1785.
DEAR SIR, — Your favor of the 30* of May came to hand yesterday only, having lain some time in Fredg and finally came to Orange via Albemarle. I agree perfectly with you in thinking it the interest of this Country to embrace the first decent opportunity of parting with Kentucky, and to refuse with firmness to part with any more of our settlements beyond the Allegheny.1 It seems necessary however that this first instance of a voluntary dismemberment of a State should be conducted in such a manner as to form a salutary precedent. As it is an event which will indirectly affect the whole Confederacy, Congress ought clearly to be made a party to it, either ifne- diately, or by a proviso that the partition act shall not take effect, till the actual admission of the new State into the Union. No interval whatever should be suf fered between the release of our hold on that Country and its taking on itself the obligations of a member of the federal body. Should it be made a separate State without this precaution, it might possibly be
1 " You may be surprised to hear that a late Convention have unanimously agreed to petition the assembly to have this District established into a State. I cannot explain the prevailing Sentiments better, than by telling you We con ceive the people of this District do not at present enjoy a greater portion of Liberty than an American Colony might have done a few years ago had she been allowed a Representation in the British Parliament. . . . Until lately I have myself thought it would be more eligible to continue as we are a while longer ; but finding that our Situation is too remote to enjoy the advantages of Government with Virginia in any tolerable degree, I have fallen in with the opinion that it is better to part in peace than to remain together in a state of Jealousy and Discontent." Caleb Wallace to Madison, Lincoln Co., July 12, 1785. Mad. MSS.
150 THE WRITINGS OF [1785
tempted to remain so, as well with regard to the U. S. as to Virginia, by two considerations : i. the evasion of its share of the general debt. 2. the allurement which an exemption from taxes, would prove to the Citizens of States groaning under them. It is very possible that such a policy might in the end prove a disadvantageous one, but the charms of ambition and of present interest, too often prevail against the cool remonstrances of true policy. May we not also with justice require that a reasonable portion of the par ticular debt of Virga should be assumed by that part of Virginia which is to set up for itself ?
The arrival of Mr. Gardoqui will turn out I hope an auspicious step towards conciliating explanations & overtures with regard to the Mississippi. Besides the general motives for expediting an adjustment of this matter the prodigious effect of it on the sale of the back lands, makes it of peculiar importance. The same consideration presses for such arrangements with G. B. as will give us speedy possession of the Western posts. As to the commercial arrangements which we wish from her, I own my expectations are far from being sanguine. In fact what could she get from us by concessions which she is unwilling to make, which she does not now enjoy ? I cannot speak with certainty as to all the States, but sure I am that the trade of this was never more compleatly monopolized by her when it was under the direction of her own laws than it is at this moment. Our present situation therefore precisely verifies the doctrine held out in Deanes' intercepted letters. The revolution has
1785] JAMES MADISON. 15i
robbed us of our trade with the West Indies the only one which yielded us a favorable balance, without opening any other channels to compensate for it. What makes the British monopoly the more morti fying is the abuse which they make of it. Not only the private planters who have resumed the practice of shipping their own Tob°, but many of the Merchants particularly the natives of the Country who have no connections with G. B. have recd accts of sales this sea son, which carry the most visible & shameful frauds in every article. In every point of view indeed the trade of this Country is in a deplorable Condition. A comparison of current prices here with those in the Northern States, either at this time or at any time since the peace, will shew that the loss direct on our produce & indirect on our imports is not less than 50 per ct. Till very lately the price of our Staple has been down at 32 & 33^. on James River & 28^. on Rappa- hannock. During the same period the former was selling in Philada, & I suppose in other Northern ports, at 44^. of this Currency, and the latter in pro portion ; tho' it cannot be denied that Tob° in the Northern ports is intrinsically worth less than it is here, being at the same distance from its ultimate market, & burdened with the freight from this to the other States. The price of merchandize here is at least as much above as that of Tob° is below the Northern standard.
We have had throughout the month of June & until this time, very hot and very wet weather. The effect of it on upland corn has been favorable but
152 THE WRITINGS OF [1785
much the reverse on that of the flats. It has given full opportunity to the planters to pitch their crops of Tob°, but tho' many of them have repeated this operation several times the grasshoppers & other noxious insects have been so uncommonly trouble some that in many places the prospect is likely to be much abridged. Should this not be the case, the efforts of the Country must produce the greatest crop that has been seen since the peace. Our Wheat in this part of the Country is very indifferent. How it may be in others I cannot say, but believe the complaints are pretty general. With the highest esteem & regard I remain Df Sir,
Your obP & very humble serv'
TO EDMUND RANDOLPH. MAD. MSS.
ORANGE July 26, 1785.
MY DEAR FRIEND, --Your favour of the i;th inst : inclosing a letter from Mr. Jones and a copy of the ecclesiastical Journal, came safe to hand. If I do not dislike the contents of the latter, it is because they furnish as I conceive fresh and forcible arguments against the Gen1 Assessment. It may be of little consequence, what tribunal is to judge of Clerical mis- demesnors or how firmly the incumbent may be fast ened on the parish, whilst the Vestry & people may hear & pay him or not as they like. But should a legal salary be annexed to the title, this phantom of power would be substantiated into a real monster of
1785] JAMES MADISON. 153
oppression. Indeed it appears to be so at present as far as the Glebes & donations extend. I had seen some parcels of these proceedings before I recd your letter, and had remarked the sprinklings of liberality to which you allude. My conjectures, I believe, did not err as to the quarter from which they came.
The urgency of Gen! W. in the late negociation with Maryland makes it probable I think that he will feel some chagrin at the inattention to that with Penna, which has a much nearer connection with his favor ite object and was moreover suggested by himself. Shortly after the date of my last, I dropped a few lines to Col: Mason, reminding him that some report will be expected from the Commissioners by the As sembly, as well as of the real importance of the busi ness. I have not yet recd any answer ; and begin to suspect that my letter may have miscarried. Your information leads me to doubt whether he has ever been furnished with a copy of the Resolution under which he is to proceed. I will write to him again and inclose one which Mr, Jones sent me.
I have a letter from the Marquis, but dated as far back as March. It was accompanied with a Copy of a French Memorial to the Emperor which seems to have stifled the War in its birth ; and an Extract from a late work of Mr. Neckar which has made him the idol of one party in France and the execration of the other. To avoid the trouble of transcribing, I send them as they came to me. You can peruse & return them by my brother who is the bearer of this, or by any future opportunity. The M. says he is
154 THE WRITINGS OF [1785
doing all he can to forward our claim to the Missis sippi ; that the French Ministry understand the mat ter & are well disposed ; but that they are apprehensive " Spain knows not how to give up what she once has."
I had heard of the strictures on the incorporating Act, but without being able to pick up any of the papers in which they are published. I have desired my brother to search them out if he can. Perhaps you can refer him to the proper press & numbers.
At the instance of Col. N-l-s1 of A-b-le, I under took the draught of the inclosed remonstrance agst- the Gen1 Ass'. Subscriptions to it are on foot I believe in sundry Counties, and will be extended to others. My choice is that my name may not be associated with it. I am not sure that I know precisely your ideas on this subject ; but were they more variant from mine than I take them to be I should not be restrained from a confidential communication.
I keep up my attention as far as I can command my time, to the course of reading which I have of late pursued & shall continue to do so. I am however far from being determined ever to make a professional use of it. My wish is if possible to provide a decent & independent subsistence, without encountering the difficulties which I foresee in that line. Another of my wishes is to depend as little as possible on the labour of slaves. The difficulty of reconciling these views, has brought into my thoughts several projects from which advantage seemed attainable. I have in
o
concert with a friend here, one at present on the
1 Nicholas, of Albemarle.
1785] JAMES MADISON. 155
Anvil which we think cannot fail to yield a decent reward for our trouble. Should we persist in it, it will cost me a ride to Philada, after which it will go on without my being ostensibly concerned. I forbear to particularize till I can do it ore tenus. Should I take this ride I may possibly continue it into the Eastern States ; Col Monroe having given me an in vitation to take a ramble of curiosity this fall, which I have half a mind to accept, and among otther routes named this. I recollect that you talked yourself of a trip last Spring as far as Lancaster. Have you laid it aside totally ? Or will your domestic endearments forbid even the trip to Bath, from which I promised myself the happiness of taking you by the hand in Orange ? Give my warmest respects to Mrs. R, and be assured that I remain, with sincere affection your friend.
Was the Royal assent ever given to the act of 1 769, entitled " An Act to amend an Act entitled, an Act declaring the law concerning Extions & for relief of insolvent Debtors."
TO JAMES MONROE. MAD. MSS.
ORANGE Aug: 7* 1785.
DEAR SIR, — I received the day before yesterday your favour of the 26th July. I had previously recd the Report on the proposed change of the 9^ art. of the Confederation, transmitted by Col: G ray son ; and in my answer to him offered such ideas on the subject
156 THE WRITINGS OF [1785
as then occurred. I still think the probability of suc cess or failure ought to weigh much with Congress in every recommendation to the States ; of which probability Congress, in whom information from every State centers can alone properly judge. View ing in the abstract the question whether the power of regulating trade, to a certain degree at least, ought to be vested in Congress, it appears to me not to admit of a doubt, but that it should be de cided in the affirmative. If it be necessary to reg ulate trade at all, it surely is necessary to lodge the power where trade can be regulated with effect ; and experience has confirmed what reason foresaw, that it can never be so regulated by the States acting in their separate capacities. TJhey can no more ex ercise this power separately than they could separ ately carry on war, or separately form treaties of alliance or commerce. The nature of the thing therefore proves the former power, no less than the latter, to be within the reason of the fcederal Con stitution. Much indeed is it to be wished, as I con ceive, that no regulations of trade, that is to say, no restrictions on imposts whatever, were necessary. A perfect freedom is the System which would be my choice. But before such a System will be eligi ble perhaps for the U. S. they must be out of debt ; before it will be attainable, all other nations must concur in it. Whilst any one of these imposes on our Vessels seamen &c. in their ports, clogs from which they exempt their own, we must either retort the distinction, or renounce not merely a just profit,
1785] JAMES MADISON. 157
but our only defence against the danger which may most easily beset us. Are we not at this moment under this very alternative ? The policy of G. B. (to say nothing of other nations) has shut against us the channels without which our trade with her must be a losing one ; and she has consequently the tri umph, as we have the chagrin, of seeing accomplished her prophetic threats, that our independence should forfeit commercial advantages for which it would not recompence us with any new channels of trade. What is to be done? Must we remain passive victims to foreign politics, or shall we exert the lawful means which our independence has put into our hands of extorting redress ? The very question would be an affront to every Citizen who loves his Country. What, then, are these means ? Retaliating regula tions of trade only. How are these to be effectu ated ? only by harmony in the measures of the States. How is this harmony to be obtained ? only by an acquiescence of all the States in the opinion of a reasonable majority. If Congress as they are now constituted, can not be trusted with the power of di gesting and enforcing this opinion, let them be other wise constituted : let their numbers be encreased, let them be chosen oftener, and let their period of service be shortened ; or if any better medium than Congress can be proposed by which the wills of the States may be concentered, let it be substituted ; or lastly let no reg ulation of trade adopted by Congress be in force until it shall have been ratified by a certain proportion of the States. But let us not sacrifice the end to the
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means: let us not rush on certain ruin in order to avoid a possible danger. I conceive it to be of great impor tance that the defects of the federal system should be amended, not only because such amendments will make it better answer the purpose for which it was instituted, but because I apprehend danger to its very existence from a continuance of defects which expose a part if not the whole of the empire to severe distress. The suffering part, even when the minor part, can not long respect a Government which is too feeble to protect their interests : But when the suffer ing part comes to be the major part, and they despair of seeing a protecting energy given to the General Government, from what motives is their allegiance to be any longer expected. Should G. B. persist in the machinations which distress us ; and seven or eight of the States be hindered by the others from obtaining relief by federal means, I own, I tremble at the anti- federal expedients into which the former may be tempted.
As to the objection against entrusting Congress with a power over trade, drawn from the diversity of interests in the States, it may be answered, i. that if this objection had been listened to, no confederation could have ever taken place among the States, 2. that if it ought now to be listened to, the power held by Congress of forming cofriercial treaties, by which 9 States may indirectly dispose of the Commerce of the residue, ought to be immediately revoked, 3 that the fact is that a case can scarcely be imagined in which it would be the interest of any 2/3ds of the
1785] JAMES MADISON. 1 5 9
States to oppress the remaining i/3d. 4. that the true question is whether the commercial interests of the States do not meet in more points than they differ. To me it is clear that they do ; and if they do there are so many more reasons for, than against, submit ting the commercial interest of each State to the direction and care of the Majority. Put the West India trade alone, in which the interest of every State is involved, into the scale against all the inequalities which may result from any probable regulation by nine States, and who will say that the latter ought to preponderate ? I have heard the different interest which the Eastern States have as Carriers pointed out as a ground of caution to the Southern States who have no bottoms of their own agst their concur ring hastily in retaliations on G. B. But will the present system of G. B. ever give the Southern States bottoms, and if they are not their own Carriers I sd suppose it no mark either of folly or incivility to give our custom to our brethren, rather than to those who have not yet entitled themselves to the name of friends.
In detailing these sentiments, I have nothing more in view than to prove the readiness with which I obey your requests. As far as they are just they must have been often suggested in the discussions of Con gress on the subject. I can not even give them weight by saying that I have reason to believe they would be relished in the public Councils of this State. From the trials of which I have been a witness I augur that great difficulties will be encountered in every attempt
160 THE WRITINGS OF [1785
to prevail on the Legislature to part with power. The thing itself is not only unpalatable, but the argu ments which plead for it have not their full force on minds unaccustomed to consider the interests of the State as they are interwoven with those of the Con federacy much less as they may be affected by foreign politics, whilst those wch plead agst it are not only specious, but in their nature popular ; and for that reason sure of finding patrons. Add to all this that the Mercantile interest which has taken the lead in rousing the public attention of other States, is in this so exclusively occupied in British Commerce that what little weight they have will be most likely to fall into the opposite scale. The only circumstance which promises a favorable hearing to the meditated proposition of Cong5 is that the power which it asks is to be exerted agst G. B. and the proposition will consequently be seconded by the animosities which still prevail in a strong degree agst her. I am, My dear Sir very sincerely,
Yi" friend & servf
TO THOMAS JEFFERSON. MAD. MSS.
ORANGE Aug. 2O1!1 1785.
DEAR SIR, — Yours of the i8th of March never reached me till the 4th inst. It came by post from N. York, which it did not leave till the 21 of July. My last was dated in April, & went by Mr. Mazzei, who picked it up at N. York and promised to deliver it with his own hand.
1785] JAMES MADISON. 161
The machinations of G. B. with regard to Com merce have produced much distress and noise in the Northern States, particularly in Boston, from whence the alarm has spread to New York & Philda. Your correspondence with Cong5 will no doubt have fur nished you with full information on this head. I only know the general fact, and that the sufferers are every where calling for such augmentation of the power of Congress as may effect relief. How far the Southern States & Virginia in particular will join in this propo sition cannot be foreseen. It is easy to foresee that the circumstances .which in a confined view distin guish our situation from that of our brethren, will be laid hold of by the partizans of G. B, by those who are or affect to be jealous of Congress, and those who are interested in the present course of business, to give a wrong bias to our Councils. If anything should reconcile Virga to the idea of giv ing Congress a power over her trade, it will be that this power is likely to annoy G. B. against whom the animosities of our Citizens are still strong. They seem to have less sensibility to their commercial inter ests; which they very little understand, and which the mercantile class here have not the same motives if they had the same capacity to lay open to the pub lic, as that class have in the States North of us. The price of our Staple since the peace is another cause of inattention in the planters to the dark side of our commercial affairs. Should these or any other causes prevail in frustrating the scheme of the Eastern & Middle States of a general retaliation on G. B. I
VOL. II.— II.
162 THE WRITINGS OF [1785
1 tremble for the event. A majority of the States de prived of a regular remedy for their distresses by the want of a federal spirit in the minority must feel the strongest motives to some irregular experiments. The danger of such a crisis makes me surmise that the policy of G. B. results as much from the hope of effect ing a breach in o^t,r Confederacy as of monopolizing our trade.
Our internal trade is taking an arrangement from which I hope good consequences. Retail Stores are spreadg all over the country, many of them carried on by native adventurers, some of them branched out from the principal Stores at the heads of navigation. The distribution of the business, however into the importing & the retail departments has not yet taken place. Should the port bill be established it will I think quickly add this amendment which indeed must in a little time follow of itself. It is the more to be wished for as it is the only radical cure for credit to the consumer which continues to be given to a degree which if not checked will turn the diffusive retail of merchandize into a nuisance. When the Shop keeper buys his goods of the wholesale merchant, he must buy at so short a credit, that he can venture to give none at all.
You ask me to unriddle the dissolution of the Commee of the States at Annapolis. I am not sure that I am myself possessed fully of the causes different members of Congress having differed in their ac counts of the matter. My conception of it is that the
1 Italics for cypher.
1785] JAMES MADISON. 163
abrupt departure of some of the Eastern delegates, which destroyed the quorum & which Dana is said to have been at the bottom of proceeded partly from irri tations among the commee partly from dislike to the place of their session, and partly from an impatience to get home, which prevailed over their regard tor their private characters, as well as for their public duty.
Subsequent to the date of mine in which I gave my idea of fayette I had further opportunities of penetrat ing his character. Though his foibles did not disap pear all the favorable traits presented themselves in a stronger light on closer inspection. He certainly pos sesses talents which might figure in any line. If he is ambitious it is rather of the praise which virtue dedi cates to merit than of the homage which fear renders to power his disposition is naturally warm & affectionate, and his attachment to the U. S. unquestionable. Un less I am grossly deceived, you willyf^ his zeal sincere and useful, whenever it can be employ 'ed'm behalf of the U. S. with \puf\ opposition to the essential interests of France.
The opposition to the general assessment gains ground. At the instance of some of its adversaries I drew up the remonstrance herewith inclosed. It has been sent thro' the medium of confidential persons in a number of the tipper Counties, and I am told will be pretty extensively signed. The presbyterian clergy, have at length espoused the side of the opposition, being moved either by a fear of their laity or a jeal ousy of the episcopalians. The mutual hatred of these sects has been much inflamed by the late Act
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incorporating the latter. I am far from being sorry for it, as a coalition between them could alone endanger our religious rights, and a tendency to such an event had been suspected. The fate of the Circuit Courts is uncertain. They are threatened with no small danger from the diversity of opinions entertained among the friends of some reform in that department. But the greatest danger is to be feared from those who mask a secret aversion to any reform under a zeal for such a one as they know will be rejected. The Potowmack Company are going on with very flattering prospects. Their subscriptions some time ago amounted to up wards of four-fifths of the whole sum. I have the pleasure also to find by an advertisement from the managers for James River that more than half the sum is subscribed for that undertaking, and that the subscribers are to meet shortly for the purpose of organizing themselves & going to work. I despair of seeing the Revisal taken up at the ensuing Session. The number of copies struck are so deficient (there being not above three for each County) and there has been such delay in distributing them (none of the Counties having recd them till very lately & some probably not yet, tho' they were ready long ago,) that the principal end of their being printed has been frustrated. Our fields promise very short crops both of Corn & Tob°. The latter was much injured by the grass hopper & other insects; the former, somewhat by the bug in the Southern parts of the State, but both have suffered most from dry weather which prevails at present in this part of the Country, and has
1785] JAMES MADISON. 165
generally prevailed I understand in most other parts. It seems certain that no future weather can make a great crop of either particularly of Tob°, so great a proportion of the hills being without plants in them & so many more with plants in them which must come to nothing. Notwithstanding this prospect, its price has fallen from 36^. to 32 & 30^. on James River & 2%s. on Rappahannock. The scarcity of cash is one cause. ^Harrison late Gov. was elected in Surry, whither he previoiisly removed with his family a con test for the chair will no doubt ensue should he fail he will be for Congress. I have not yet recd any of the books which you have been so kind as to pick up for me, but expect their arrival daily, as you were probably soon after the date of your last apprised that I was withdrawn from the nomination which led you to suspend the forwarding them. I am invited by Col : Monroe to an option of rambles this fall, one of which is into the Eastern States. I wish much to accept so favorable an opportunity of executing the plan from which I was diverted last fall ; but cannot decide with certainty whether it will be practicable or not. I have in conjunction with a friend here a pro ject of interest on the anvil, which will carry me at least as far as Phila or New York where I shall be able to take my final resolution.
Adieu. Yrs sincerely.
1 Italics for cypher.
1 66 THE WRITINGS OF [1785
To Caleb Wallace
TO CALEB WALLACE.
1 MAD. MSS.
ORANGE, Aug1 23d, 1785.
DR SIR, — Your favour of the i2th of July was safely delivered to me by Mr. Craig. I accept with pleas ure your proposed exchange of Western for Eastern intelligence and though I am a stranger to parental ties can sufficiently conceive the happiness of which they are a source to congratulate you on your posses sion of two fine sons & a Daughter. I do not smile at the Idea of transplanting myself into your wilder ness. Such a change of my abode is not indeed prob able yet I have no Local partialities which can keep me from any place which promises the greatest real advantages, but if such a removal was not even possi ble I should nevertheless be ready to communicate as you desire my Ideas towards a constitution of Gov ernment for the State in embryo. I pass over the general policy of the measure which calls for such a provision. It has been unanimously embraced by those who being most interested in it must have best considered it, & will I dare say be with equal unan imity acceded to by the other party which is to be consulted. I will first offer some general remarks on the Subject, & then answer your several queries.
1 Several of Madison's friends in Kentucky wrote to him asking his assistance in the framing of a new government. January 6, 1785, George Muter trans mitted questions which Caleb Wallace wished answered, which were the same as those answered above. In the MSS. this letter is not addressed, and is marked as having been sent to "John Brown, Kentucky," but Sept. 24, 1785, Caleb Wallace replied to it as a letter to him, which doubtless it was. — Mad. MSS.
1785] JAMES MADISON. 167
i . The Legislative Department ought by all means, as I think to include a Senate constituted on such principles as will give wisdom and steadiness jo legis lation. The want of these qualities is the grievance complained of in all our republics. The want of fidelity in the administration of power having been the grievance felt under most Governments, and by the American States themselves under the British Government, it was natural for them to give too ex clusive an attention to this primary attribute. The Senate of Maryland with a few amendments is a good model. Trial has I am told verified the ex pectations from it. A Similar one made a part of our constitution as it was originally proposed but the inexperience & jealousy of our then Councils, re jected it in favor of our present Senate a worse could hardly have been substituted & yet, bad as it is, it is often a useful bit in the mouth of the house of Del egates. Not a single Session passes without instances of sudden resolutions by the latter of which they re pent in time to intercede privately with the Senate for their Negative. For the other branch models enough may be found care ought however to be taken against its becoming too numerous, by fixing the number which it is never to exceed. The quorum, wages, and privileges of both branches ought also to be fixed. A majority seems to be the natural quorum. The wages of the members may be made payable for - - years to come in the medium value of wheat for years preceding as the same shall from period to period be rated by a respectable Jury appointed for
1 68 THE WRITINGS OF [1785
that purpose by the Supreme Court. The privileges of the members ought not in my opinion to extend beyond an exemption of their persons and equipage from arrests during the time of their actual service. If it were possible it would be well to define the extent of the Legislative power but the nature of it seems in many respects to be indefinite. It is very practicable however to enumerate the essential ex ceptions. The Constitution may expressly restrain them from medling with religion — from abolishing Juries — from taking away the Habeas corpus — from forcing a citizen to give evidence against himself - from controuling the press — from enacting retro spective laws at least in criminal cases, from abrid ging the right of suffrage, from taking private prop erty for public use without paying its full Value from licensing the importation of Slaves, from infringing the confederation, &c &c.
As a further security against fluctuating & in digested laws the Constitution of New York has pro vided a Council of Revision. I approve much of such an institution & believe it is considered by the most intelligent citizens of that State as a valuable safeguard both to public interests & to private rights. Another provision has been suggested for preserving System in Legislative proceedings which to some may appear still better. It is that a standing committee composed of a few select & skilful individuals should be appointed to prepare bills on all subjects which they may judge proper to be submitted to the Legis lature at their meetings & to draw bills for them
1785] JAMES MADISON. 169
during their Sessions. As an antidote both to the jealousy & danger of their acquiring an improper influence they might be made incapable of holding any other Office Legislative, Executive, or Judiciary. I like this Suggestion so much that I have had thoughts of proposing it to our Assembly, who give almost as many proofs as they pass laws of their need of some such Assistance.
2 The Executive Department. Though it claims the 2d place is not in my estimation entitled to it by its importance all the great powers which are properly ex ecutive being transferred to the fcederal Government. I have made up no final opinion whether the first Magis trate should be chosen by the Legislature or the peo ple at large or whether the power should be vested in one man assisted by a council or in a council of which the President shall be only primus inter pares. There are examples of each in the U. States and probably advantages & disadvantages attending each. It is material I think that the number of members should be small & that their Salaries should be either unal terable by the Legislature or alterable only in such manner as will not affect any individual in place. Our Executive is the worst part of a bad Constitu tion. The Members of it are dependent on the Legis lature not only for their wages but for their reputation and therefore are not likely to withstand usurpations of that branch ; they are besides too numerous and expensive, their organization vague & perplexed & to crown the absurdity some of the members may with out any new appointment continue in Office for life
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contrary to one of the Articles of the Declaration of Rights.
3d The Judiciary Department merits every care Its efficacy is Demonstrated in G. Brittain where it maintains private Right against all the corruptions of the two other departments & gives a reputation to the whole Government which it is not in itself entitled to. The main points to be attended to are i. that the Judges should hold their places during good be havior 2. that their Salaries should be either fixed like the wages of the Representatives or not be alterable so as to affect the Individuals in office. 3 that their Salaries be liberal The first point is obvious ; with out the second the independence aimed at by the first will be ideal only ; without the 3d the bar will be superior to the bench which destroys all security for a Systematick administration of Justice, after securing these essential points, I should think it unadvisable to descend so far into detail as to bar any future Modification of this department which experience may recommend An enumeration of the Principal courts with Power to the Legislature to Institute inferior Courts may suffice. The Admiralty business can never be extensive in your situation and may be referred to one of the other Courts. With regard to a Court of Chancery as distinct from a Court of Law, the reasons of Lord Bacon on the affirmative side outweigh in my Judgment those of Lord Kaims on. the other side. Yet I should think it best to leave this important question to be decided by future lights without tying the hands of the Legislature one way
1785] JAMES MADISON. 171
or the other. I consider our county courts as on a bad footing and would never myself consent to copy them into another constitution.
All the States seem to have seen the necessity of providing for Impeachments but none of them to have hit on an unexceptionable Tribunal. In some the trial is referred to the Senate in others to the Executive, in others to the Judiciary department it has been suggested that a tribunal composed of mem bers from each Department would be better than either and I entirely concur in that opinion. I pro ceed next to your queries.
i. " Whether is a representation according to num- " bers, or property, or in a joint proportion to both, " the most Safe ? or is a representation by counties " preferable to a more equitable mode that will be diffi- " cult to adjust?" Under this question may be con sidered i. the right of Suffrage. 2 the mode of suffrage. 3 the Plan of representation As to the i. I think the extent which ought to be given to this right a matter of great delicacy and of critical im portance. To restrain it to the land holders will in time exclude too great a proportion of citizens ; to extend it to all citizens without regard to property, or even to all who possess a pittance may throw too much power into hands which will either abuse it themselves or sell it to the rich who will abuse it. I have thought it might be a good middle course to narrow this right in the choice of the least popular, & to enlarge it in that of the more popular branch of the Legislature. There is an example of this
i72 THE WRITINGS OF [1785
Distinction in N. Carolina if in none of the other States. How it operates or is relished by the people I cannot say. It would not be surprising if in the outset at least it should offend the sense of equality which reigns in a free Country. In a general view I see no reason why the rights of property which chiefly bears the burden of Government & is so much an object of Legislation should riot be respected as well as personal rights in the choice of Rulers. It must be owned indeed that property will give influence to the holder though it should give him no legal privi leges and will in general be safe on that as well as on other Accounts especially if the business of legislation be guarded with the provisions hinted at 2 As to the mode of suffrage I lean strongly to that of the bal lot, notwithstanding the objections which lie against it It appears to me to be the only radical cure for those arts of Electioneering which poison the very fountain of Liberty The States in which the Ballott has been the Standing mode are the only instances in which elections are tolerably chaste and those arts in disgrace. If it should be thought improper to fix this mode by the constitution I should think it at least necessary to avoid any constitutional bar to a future adoption of it 1 3 By the Plan of representa tion I mean i. the classing of the Electors 2 the proportioning of the representatives to each class. The first cannot be otherwise done than by geograph ical description as by Counties. The second may
1 The Constitution of N. York directs an experiment on this Subject. [Note in MS.]
1785] JAMES MADISON. 173
easily be done in the first instance either by compris ing within each county an equal number of electors ; or by proportioning the number of representatives of each county to its number of electors The difficulty arises from the disproportionate increase of electors in different Counties. There seem to be two methods only by which the representation can be equalized from time to time. The i is to change the bounds of the counties ; the 2? to change the number of re presentatives allotted to them respectively, as the former would not only be most troublesome & ex pensive but would involve a variety of other adjust ments the latter method is evidently the best. Ex amples of a Constitutional provision for it exists in several of the States. In some it is to be executed periodically in others, pro re nata. The latter seems most accurate and very practicable I have already intimated the propriety of fixing the number of repre sentatives, which ought never to be exceeded I should suppose 150 or even 100, might safely be made the ne plus ultra for Kentucky
2. " Which is to be preferred an Annual, Triennial, "or Septennial Succession to Offices or frequent elec- " tions without limitations in choice or that officers "when chosen should continue quamdiu se bene ges-
" serint?" The rule ought no doubt to J>e different
I in the different Departments of power. \£x>r one part
of the Legislature Annual Elections will I suppose be held indispensably though some of the ablest Statesmen & soundest Republicans in the U. States are in favor of triennial. The great Danger in
174 THE WRITINGS OF [1785
departing from annual elections in this case lies in the want of some other natural term to limit the' depar ture. For the other branch 4 or 5 years may be the period. For neither branch does it seem necessary or proper to prohibit an indefinite re-eligibility. With regard to the Executive if the elections be frequent & particularly if made as to any member of it by the people at large a re-eligibility cannot I think be objected to, if they be unfrequent, a temporary or perpetual incapacitation according to the degree of unfrequency at least in the case of the first Magis trate may not be amiss. As to the Judiciary depart ment enough has been said & as to the Subordinate officers civil & Military nothing need be said more than that a regulation of their appointments may under a few restrictions be safely trusted to the Legislature.
3 " How far may the same person with propriety " be employed in the different departments of Gov- " ernment in an infant country where the counsel of " every individual may be needed?" Temporary de viations from fundamental principles are always more or less dangerous. When the first pretext fails, those who become interested in prolonging the evil will rarely be at a loss for other pretexts. The first precedent too familiarises the people to the irregular ity, lessens their veneration for those fundamental principles, & makes them a more easy prey to am bition & self Interest. Hence it is that abuses of every kind when once established have been so often found to perpetuate themselves. In this caution
1785] JAMES MADISON. 1 7 5
I refer chiefly to an improper mixture of the three great Departments within the State. A Delegation to Congress is I conceive compatible with either.
4 " Should there be a periodical review of the Constitution ? " Nothing appears more elegible in theory nor has sufficient trial perhaps been yet made to condemn it in practice. Pennsylvania has alone adopted the expedient. Her citizens are much divided on the subject of their Constitution in gen eral & probably on this part of it in particular. I am inclined to think though am far from being certain, that it is not a favorite part even with those who are fondest of their Constitution. another plan has been thought of which might perhaps Succeed better and would at the same time be a safeguard to the equilibrium of the constituent Departments of Government. This is that a Majority of any two of the three departments should have authority to call a plenipotentiary convention whenever they may think their constitutional powers have been Violated by the other Department or that any material part of the Constitution needs amendment In your situ- ^tion I should think it both imprudent & indecent not to leave a door open for at least one revision of your first Establishment, imprudent because you have neither the same resources for supporting nor the same lights for framing a good establishment now as you will have 15 or 20 Years hence, indecent because an handful of early settlers ought not to pre clude a populous Country from a choice of the Govern ment under which they & their posterity are to live.
176 THE WRITINGS OF [1785
Should your first Constitution be made thus temporary the objections against an intermediate union of offices will be proportionably lessened. Should a revision of it not be made thus necessary & certain there will be little probability of its being ever revised. Faulty as our Constitution is as well with regard to the Authority which formed it as to the manner in which it is formed the Issue of an experiment has taught us the difficulty of amending it : & although the issue might have proceeded from the unseason- ableness of the time yet it may be questioned whether at any future time the greater depth to which it will have stricken its roots will not counterbalance any more auspicious circumstances for overturning it.
5 & 6 "Or will it be better unalterably to fix " some leading Principles in Government and make " it consistant for the Legislature to introduce such " changes in lesser matters as may become expedi- "ent? can censors be provided that will impartially " point out deficiencies in the Constitution & the " Violations that may happen "
Answers on these points may be gathered from what has been already said.
I have been led to offer my sentiments in this loose form rather than to attempt a delineation of such a Plan of government as would please myself not only by my Ignorance of many local circum stances & opinions which must be consulted in such a work but also by the want of sufficient time for it. At the receipt of your letter I had other employment and what I now write is in the midst of preparations
1785] JAMES MADISON. 177
for a Journey of business which will carry me as far as Philadelphia at least & on which I shall set out in a day or two.
I am sorry that it is not in my power to give you some satisfactory information concerning the Missis sippi. A Minister from Spain has been with Con gress for some time & is authorised as I under stand to treat on whatever subjects may concern the two nations. If any explanations or propositions have passed between him & the Minister of Con gress, they are as yet in the list of Cabinet Secrets, as soon as any such shall be made Public & come to my knowledge, I shall take the first opportunity of transmitting them. Wishing you & your family all happiness,
I am, Dr Sir,
Your friend & servant.
The Constitutions of the several States were printed in a small Volume a year or two ago by order of Cong5 a perusal of them need not be recommended to you. Having but a single copy I cannot supply you It is not improbable that you may be already pos sessed of one. The revisal of our laws by Jefferson, Wythe & Pendleton beside their Value in improving the legal code may suggest something worthy of being attended to in framing a Constitution.
VOL. II.— 12.
1 78 THE WRITINGS OF [1785
TO THOMAS JEFFERSON. MAD. MSS.
PHILADA Octr 3d, 1785.
DEAR SIR, — In pursuance of the plan intimated in my last I came to this city about three weeks ago, from which I continued my trip to New York. I re turned last night and in a day or two shall start for Virginia. Col. Monroe had left Philad* a few days before I reached it, on his way to a treaty to be held with the Indians about the end of this month on the Wabash. If a visit to the Eastern States had been his choice, short as the time would have proved, I should have made an effort to attend him. As it is I must postpone that gratification, with a purpose however of embracing it on the first convenient op portunity. Your favour of the 1 1 May by Mons^ Doradour inclosing your Cypher arrived in Virg* after I left it, and was sent after me to this place. Your notes which accompanied it, remained behind, and consequently I can only now say on that subject, that I shall obey your request on my return, which my call to Richmond will give me an early oppor tunity of doing. During my stay at New York I had several conversations with the Virg? Delegates, but with few others, on the affairs of the confederacy. I find with much regret that these are as yet little re deemed from the confusion which has so long mor tified the friends to our national honor and prosperity. Congress have kept the Vessel from sinking, but it has been by standing constantly at the pump, not by stopping the leaks which have endangered her. All their efforts for the latter purpose have been frus-
1785] JAMES MADISON. 179
trated by the selfishness or perverseness of some part or other of their constituents. The desiderata most strongly urged by our past experience & our present situation are i. a final discrimination between such of the unauthorised expences of the States as ought to be added to the common debt, and such as ought not. 2. a constitutional apportionment of the com mon debt, either by a valuation of the land, or a change of the article wch requires it. 3. a recogni tion by the States of the authority of Congress to en force payment of their respective quotas. 4.' a grant to Congress of an adequate power over trade. It is evident to me that the first object will never be ef fected in Congress, because it requires in those who are to decide it the spirit of impartial judges, whilst the spirit of those who compose Congress is rather that of advocates for the respective interests of their constituents. If this business were referred to a Commission filled by a member chosen by Congress out of each State, and sworn to impartiality, I should have hopes of seeing an end of it. The 2? object af fords less ground of hope. The execution of the 8th art of Confederation is generally held impracticable, and R. Island, if no other State, has put its veto on the proposed alteration of it. Until the 3? object can be obtained the Requisitions of Congress will con tinue to be mere calls for voluntary contributions, which every State will be tempted to evade, by the uniform experience that those States have come off best which have done so most. The present plan of federal Government reverses the first principle of
i8o THE WRITINGS OF [1785
all Government. It punishes not the evil-doers, but those that do well. It may be considered I think as a fortunate circumstance for the U. S. that the use of coercion, or such provision as would render the use of it unnecessary, might be made at little expence and perfect safety. A single frigate under the orders of Congress could make it the interest of any one of the Atlantic States to pay its just Quota. With regard to such of the Ultramontane States as depend on the trade of the Mississippi, as small a force would have the same effect ; whilst the residue trading thro' the Atlantic States might be wrought upon by means more indirect indeed but perhaps sufficiently effectual. The fate of the 4th object is still suspended. The Recomendations of Cong? on this subject past be fore your departure, have been positively complied with by few of the States I believe ; but I do not learn that they have been rejected by any. A proposition has been agitated in Congress, and will I am told be revived, asking from the States a general & perma nent authority to regulate trade, with a proviso that it shall in no case be exercised without the assent of eleven States in Congress. The Middle States favor the measure, the Eastern are zealous for it, the Southern are divided, ^ythe Virginia delegation the president* is an inflexible adversary, Gray son un friendly and Monroe & Hardy warm on the opposite side. If the proposition should pass Cong? its fate will depend much on the reception it may find in
1 Italics for cypher. 2 R. H. Lee.
1785] JAMES MADISON. 181
Virgf and this will depend much on the part which may be taken by a few members of the Legislature. The prospect of its being levelled agst. G. Britain will be most likely to give it popularity. In this suspence of a general provision for our commercial interests, the more suffering States are seeking relief from par tial efforts which are less likely to obtain it than to drive their trade into other channels, and to kindle heart-burnings on all sides. Massachusetts made the beginning, Penna has followed with a catalogue of duties on foreign goods & tonnage, which could scarcely be enforced against the smuggler, if N. Jersey, Delaware, & Maryland were to co-operate with her. The avowed object of these duties is to encourage domestic manufactures, and prevent the exportation of coin to pay for foreign. The Legislature had previously repealed the incorporation of the bank, as the cause of the latter & a great many other evils. S. Carolina I am told is deliberating on the distresses of her commerce and will probably concur in some general plan ; with a proviso, no doubt against any restraint from importing slaves, of which they have received from Africa since the peace about twelve thousand. She is also deliberating on the emission of paper money, & it is expected she will legalize a suspension of Judicial proceedings which has been al ready effected by popular combinations. The pretext for these measures is the want of specie occasioned by the unfavorable balance of trade. Your introduction of Mr. T. Franklin has been presented to me. The arrival of his Grandfather has produced an emulation
i82 THE WRITINGS OF [1785
among the different parties here in doing homage to his character. He will be unanimously chosen president of the State and will either restore to it an unexpected quiet or lose his own. It appears from his answer to some applications that he will not decline the appointment. On my journey I called at Mount Vernon & had the pleasure of finding the Gen1, in perfect health. He had just returned from a trip up the Potowmac. He grows more & more sanguine as he examines further into the practicability of opening its navigation. The subscriptions are compleated within a few shares, and the work is already begun at some of the lesser obstructions. It is overlooked by Rhumsey, the inventor of the boats which I have in former letters mentioned to you : He has not yet disclosed his secret. He had of late nearly finished a boat of proper size, wc-h he meant to have exhibited, but the house which contained it & materials for others was consumed by fire. He assured the Gen! that the enlargement of his machinery did not lessen the prospect of utility afforded by the miniature experi ments. The Gen! declines the shares voted him by the Assembly, but does not mean to withdraw the money from the object which it is to aid, and will even appropriate the future tolls I believe to some useful public establishment if any such can be devised that will both please himself & be likely to please the State. This is accompanied by a letter from our amiable friend Mrs. Trist to Miss Patsy. She got back safe to her friends in Aug -st & is as well as she has generally been, but her cheerfulness seems to be
1785] JAMES MADISON. 183
rendered less uniform than it once was by the scenes of adversity through which fortune has led her. Mrs. House is well & charges me not to omit her respect ful & affect6 compliments to you.
I remain Dr Sir, Yrs &c
Memorial And Remonstrance Against Religious
MEMORIAL AND REMONSTRANCE AGAINST RELIGIOUS
ASSESSMENTS.1
To THE HONORABLE THE GENERAL ASSEMBLY
Of The Commonwealth Of Virginia. A Memorial And Remonstrance
OF
THE COMMONWEALTH OF VIRGINIA. A MEMORIAL AND REMONSTRANCE.
We, the subscribers, citizens of the said Commonwealth, having taken into serious consideration, a Bill printed by order of the last Session of General Assembly, entitled " A Bill establishing a provision for Teachers of the Christian Religion," and conceiving
1 By a vote of ayes 48, noes 38, the third reading of the engrossed bill to establish a provision for the teachers of the Christian religion was postponed December 24, 1784, to the fourth Thursday in the next November. Among those voting against the postponement were Benjamin Harrison, Joseph Jones, John Marshall, Philip Barbour, Richard Bland Lee, Richard Henry Lee, and Henry Tazewell. Washington also favorecTtne bill. It was printed for distri bution among the voters in order that their sentiments towards it might be ascer tained. Among its opponents were Wilson Gary Nicholas and George Nicholas. A copy of the bill is found among the Washington MSS. The copy of the Re monstrance used here is one of the broadsides printed by the Phenix Press of Alexandria, now in the Virginia Historical Society, with a number of signatures appended to it. It has been collated with the notes in Madison's hand found among the Madison MSS.
" My brother informs me that he conversed with you on the propriety of remonstrating against certain measures of the last session of Assembly and that you seemed to think it would be best that the counties opposed to the measure should be silent. I fear this would be construed into an assent especially to the law for establishing a certain provision for the clergy : for as the Assembly only postponed the passing of it that they might know whether it was disagreeable to the people I think they may justly conclude that all are for it who do not say to the contrary. A majority of the counties are in favor of the measure but
184 THE WRITINGS OF [1785
that the same, if finally armed with the sanctions of a law, will be a dangerous abuse of power, are bound as faithful members of a free State, to remonstrate against it, and to declare the reasons by which we are determined. We remonstrate against the said Bill,
i. Because we hold it fora fundamental and undeniable truth, " that Religion or the duty which we owe to our Creator and the Manner of discharging it, can be directed only by reason and conviction, not by force or violence."1 The Religion then of every man must be left to the conviction and conscience of every man ; and it is the right of every man to exercise it as these may dictate. This right is in its nature an unalienable right. It is unalienable ; because the opinions of men, depending only on the evidence contemplated by their own minds, cannot follow the dictates of other men : It is unalienable also ; because what is here a right towards men, is a duty towards the Creator. It is the duty of every man to render to the Creator such homage, and such only, as he believes to be acceptable to him. This duty is prece dent both in order of time and degree of obligation, to the claims
undecipherable] a great majority of the people against it, but if this majority should not appear by petition the fact will be denied. Another reason why all should petition is that some will certainly do it and those who support the bills will insist that those who petition are all the opposition. Would it not add greatly to the weight of the petition if they all hold the same language? by discovering an exact uniformity of sentiment in a majority of the country it would certainly deter the majority of the assembly from proceeding. All my expectations are from their fears, and not their justice. ... If you think with me that it will be proper to say something to the Assembly, will you commit it to paper. I risk this because I know you are most capable of doing it properly and because it will be most likely to be generally adopted. I can get it sent to Amherst Buckingham Albemarle, Fluvanna, Augusta, Botetourt, Rock Bridge and Rockingham and have no doubt that Bedford and the counties Southward of it will readily join in the measure. I will also send it to Frederick and Berkeley and if it goes from your county to Farquieur Culpeper and Loudoun it will be adopted by the most populous part of the country." — George Nicholas to Madison, Charlottesville, April 22nd 1785, Mad. MSS.
"I found that no alteration could be made to the remonstrance without injury and immediately had it copied and sent to the counties I mentioned in a former letter." — Nicholas to Madison, Sweet Springs, July 24, 1785, Mad. MSS. ' Decl. Rights, Art: 16. [Note in the original.]
1785] JAMES MADISON. 185
of Civil Society. Before any man can be considered as a member of Civil Society, he must be considered as a subject of the Governor X' of the Universe : And if a member of Civil Society, who enters into any subordinate Association, must always do it with a re servation of his duty to the general authority ; much more must every man who becomes a member of any particular Civil Society, do it with a saving of his allegiance to the Universal Sovereign. *X We maintain therefore that in matters of Religion, no man's right is abridged by the institution of Civil Society, and that Religion is wholly exempt from its cognizance. True it is, that no other rule exists, by which any question which may divide a Society, can be ultimately determined, but the will of the majority ; but it is also true, that the majority may trespass on the rights of the minority.
2. Because if religion be exempt from the authority of the Society at large, still less can it be subject to that of the Legisla tive Body. The latter are but the creatures and vicegerents of the former. Their jurisdiction is both derivative and limited : it is limited with regard to the co-ordinate departments, more neces sarily is it limited with regard to the constituents. The preser vation of a free government requires not merely, that the metes and bounds which separate each department of power may be invariably maintained ; but more especially, that neither of them be suffered to overleap the great Barrier which defends the rights of the people. The Rulers who are guilty of such an encroach ment, exceed the commission from which they derive their authority, and are Tyrants. The People who submit to it are governed by laws made neither by themselves, nor by an authority derived from them, and are slaves.
3. Because, it is proper to take alarm at the first experiment on our liberties. We hold this prudent jealousy to be the first duty of citizens, and one of [the] noblest characteristics of the late Revolution. The freemen of America did not wait till usurped power had strengthened itself by exercise, and entangled the question in precedents. They saw all the consequences in the principle, and they avoided the consequences by denying the
1 86 THE WRITINGS OF [1785
principle. We revere this lesson too much, soon to forget it. Who does not see that the same authority which can establish Christianity, in exclusion of all other Religions, may establish with the same ease any particular sect of Christians, in exclusion of all other Sects ? That the same authority which can force a citizen to contribute three pence only of his property for the support of any one establishment, may force him to conform to any other establishment in all cases whatsoever ?
4. Because, the bill violates that equality which ought to be the basis of every law, and which is more indispensible, in pro portion as the validity or expediency of any law is more liable to be impeached. If " all men are by nature equally free and inde pendent," * all men are to be considered as entering into Society on equal conditions ; as relinquishing no more, and therefore retaining no less, one than another, of their natural rights. Above all are they to be considered as retaining an " equal title to the free exercise of Religion according to the dictates of conscience " 2
/Whilst we assert for ourselves a freedom to embrace, to profess and to observe the Religion which we believe to be of divine origin, we cannot deny an equal freedom to those whose minds have not yet yielded to the evidence which has convinced us. If this freedom be abused, it is an offence against God, not against man : To God, therefore, not to men, must an account of it be ren-
\^dered. As the Bill violates equality by subjecting some to peculiar burdens ; so it violates the same principle, by granting to others peculiar exemptions. Are the Quakers and Menonists the only sects who think a compulsive support of their religions unneces sary and unwarantable ? Can their piety alone be intrusted with the care of public worship ? Ought their Religions to be en dowed above all others, with extraordinary privileges, by which proselytes may be enticed from all others ? We think too favor ably of the justice and good sense of these denominations, to believe that they either covet pre-eminencies over their fellow citizens, or that they will be seduced by them, from the common opposition to the measure.
1 Decl. Rights, Art. I. [Note in the original.]
2 Art : 16. [Note in the original.]
1785] JAMES MADISON. 187
5. Because the bill implies either that the Civil Magistrate is a competent Judge of Religious truth ; or that he may employ Re ligion as an engine of Civil policy. The first is an arrogant pretension falsified by the contradictory opinions of Rulers in all ages, and throughout the world : The second an unhallowed perversion of the means of salvation.
6. Because the establishment proposed by the Bill is not re quisite for the support of the Christian Religion. To say that it is, is a contradiction to the Christian Religion itself ; for every page of it disavows a dependence on the powers of this world : it is a contradiction to fact ; for it is known that this Religion both ex isted and flourished, not only without the support of human laws, but in spite of every opposition from them ; and not only during the period of miraculous aid, but long after it had been left to its own evidence, and the ordinary care of Providence : Nay, it is a contradiction in terms ; for a Religion not invented by human policy, must have pre-existed and been supported, before it was established by human policy. It is moreover to weaken in those who profess this Religion a pious confidence in its innate excel lence, and the patronage of its Author ; and to foster in those who still reject it, a suspicion that its friends are too conscious of its fallacies, to trust it to its own merits.
7. Because experience witnesseth that ecclesiastical establish ments, instead of maintaining the purity and efficacy of Religion, have had a contrary operation. During almost fifteen centuries^ has the legal establishment of Christianity been on trial. What have been its fruits ? More or less in all places, pride and indolence in the Clergy ; ignorance and servility in the laity ; in both, superstition, bigotry and persecution. Enquire of the Teachers of Christianity for the ages in which it appeared in its greatest lustre ; those of every sect, point to the ages prior to its incorpora- / tion with Civil policy. Propose a restoration of this primitive state in which its Teachers depended on the voluntary rewards of their flocks ; many of them predict its downfall. On which side ought their testimony to have greatest weight, when for or when against their interest ?
1 88 THE WRITINGS OF [1785
8. Because the establishment in question is not necessary for the support of Civil Government. If it be urged as necessary for the support of Civil Government only as it is a means of support ing Religion, and it be not necessary for the latter purpose, it cannot be necessary for the former. If Religion be not within [the] cognizance of Civil Government, how can its legal establish ment be said to be necessary to civil Government ? /What in fluence in fact have ecclesiastical establishments had on Civil Society ? In some instances they have been seen to erect a spiritual tyranny on the ruins of Civil authority ; in many instan ces they have been seen upholding the thrones of political tyr anny ; in no instance have they been seen the guardians of the liberties of the people. Rulers who wished to subvert the public liberty, may have found an established clergy convenient auxiliar ies. A just government, instituted to secure & perpetuate it, needs them not. Such a government will be best supported by protect ing every citizen in the enjoyment of his Religion with the same equal hand which protects his person and his property ; by neither invading the equal rights of any Sect, nor suffering any Sect to invade those of another.
9. Because the proposed establishment is a departure from that generous policy, which, offering an asylum to the persecuted and oppressed of every Nation and Religion, promised a lustre to our country, and an accession to the number of its citizens. What a melancholy mark is the Bill of sudden degeneracy ? In stead of holding forth an asylum to the persecuted, it is itself a signal of persecution. It degrades from the equal rank of Citizens all those whose opinions in Religion do not bend to those of the Legislative authority. Distant as it may be, in its present form, from the Inquisition it differs from it only in degree. The one is the first step, the other the last in the career of intolerance. The magnanimous sufferer under this cruel scourge in foreign Regions, must view the Bill as a Beacon on our Coast, warning him to seek some other haven, where liberty and philanthrophy in their due extent may offer a more certain repose from his troubles.
10. Because, it will have a like tendency to banish our Citizens. The allurements presented by other situations are
1785] JAMES MADISON. 189
every day thinning their number. To superadd a fresh motive to emigration, by revoking the liberty which they now enjoy, would be the same species of folly which has dishonoured and depopu lated flourishing kingdoms.
11. Because, it will destroy that moderation and harmony which the forbearance of our laws to intermeddle with Religion, has produced amongst its several sects. Torrents of blood have been spilt in the old world, by vain attempts of the secular arm to extinguish Religious discord, by proscribing all difference in Re ligious opinions. Time has at length revealed the true remedy. Every relaxation of narrow and rigorous policy, wherever it has been tried, has been found to assuage the disease. The American Theatre has exhibited proofs, that equal and compleat liberty, ifx it does not wholly eradicate it, sufficiently destroys its malignant influence on the health and prosperity of the State. If with the salutary effects of this system under our own eyes, we begin to contract the bonds of Religious freedom, we know no name that will too severely reproach our folly. At least let warning be taken at the first fruits of the threatened innovation. The very appearance of the Bill has transformed that " Christian forbear ance, 1 love and charity," which of late mutually prevailed, into animosities and jealousies, which may not soon be appeased. What mischiefs may not be dreaded should this enemy to the public quiet be armed with the force of a law ?
12. Because, the policy of the bill is adverse to the diffusion of the light of Christianity. The first wish of those who enjoy this precious gift, ought to be that it may be imparted to the whole race of mankind. Compare the number of those who have as yet received it with the number still remaining under the dominion of false Religions ; and how small is the former ! Does the policy of the Bill tend to lessen the disproportion ? No; it at once discourages those who are strangers to the light of [revelation] from coming into the Region of it ; and countenances, by example the nations who continue in darkness, in shutting out those who might convey it to them. Instead of
1 Art. 16. [Note in the original.]
1 9o THE WRITINGS OF [1785
levelling as far as possible, every obstacle to the victorious prog ress of truth, the Bill with an ignoble and unchristian timidity would circumscribe it, with a wall of defence, against the encroach ments of error.
13. Because attempts to enforce by legal sanctions, acts obnox ious to so great a proportion of Citizens, tend to enervate the laws in general, and to slacken the bands of Society. If it be difficult to execute any law which is not generally deemed neces sary or salutary, what must be the case where it is deemed invalid and dangerous ? and what may be the effect of so striking an example of impotency in the Government, on its general authority.
14. Because a measure of such singular magnitude and delicacy ought not to be imposed, without the clearest evidence that it is called for by a majority of citizens : and no satisfactory method is yet proposed by which the voice of the majority in this case may be determined, or its influence secured. " The people of the respective counties are indeed requested to signify their opinion respecting the adoption of the Bill to the next Session of Assem bly." But the representation must be made equal, before the voice either of the Representatives or of the Counties, will be that of the people. Our hope is that neither of the former will, after due consideration, espouse the dangerous principle of the Bill. Should the event disappoint us, it will still leave us in full confidence, that a fair appeal to the latter will reverse the sentence against our liberties.
15. Because, finally, " the equal right of every citizen to the free exercise of his Religion according to the dictates of con science " is held by the same tenure with all our other rights. If we recur to its origin, it is equally the gift of nature ; if we weigh its importance, it cannot be less dear to us ; if we consult the Declaration of those rights which pertain to the good people of Virginia, as the " basis and foundation of Government," 1 it is enumerated with equal solemnity, or rather studied emphasis. Either then, we must say, that the will of the Legislature is the only measure of their authority ; and that in the plenitude of this
1 Decl. Rights-title. [Note in the original.]
1785] JAMES MADISON. 191
authority, they may sweep away all our fundamental rights ; or, that they are bound to leave this particular right untouched and sacred : Either we must say, that they may controul the freedom of the press, may abolish the trial by jury, may swallow up the Executive and Judiciary Powers of the State ; nay that they may despoil us of our very right of suffrage, and erect themselves into an independant and hereditary assembly : or we must say, that they have no authority to enact into law the Bill under considera tion. We the subscribers say, that the General Assembly of this Commonwealth have no such authority : And that no effort may be omitted on our part against so dangerous an usurpation, we oppose to it, this remonstrance ; earnestly praying, as we are in duty bound, that the Supreme Lawgiver of the Universe, by illuminating those to whom it is addressed, may on the one hand, turn their councils from every act which would affront his holy prerogative, or violate the trust committed to them : and on the other, guide them into every measure which may be worthy of his [blessing, may re]dound to their own praise, and may establish more firmly the liberties, the prosperity, and the Happiness of the Commonwealth.
TO GENERAL WASHINGTON. WASH. MSS.
RICHMOND Novr n, 1785.
DEAR SIR, — I recd. your favor of the 29^ Ult : on thursday. That by Col. Lee had been previously delivered. Your letter for the Assembly was laid before them yesterday. I have reason to believe that it was received with every sentiment which could correspond with yours. Nothing passed from which any conjecture could be formed as to the objects which would be most pleasing for the appropriation of the fund. The disposition is I am persuaded much stronger to acquiesce in your choice whatever it may
192 THE WRITINGS OF [1785
be than to lead or anticipate it ; and I see no incon- veniency in your taking time for a choice that will please yourself. The letter was referred to a com mittee which will no doubt make such a report as will give effect to your wishes.
Our Session commenced very inauspiciously with a contest for the chair, which was followed by a rigid scrutiny into Mr. Harrison's election in his county. He gained the chair by a majority of 6 votes and re tained his seat by a majority of still fewer. His resi dence was the point on which the latter question turned. Doct Lee's election was questioned on a similar point, and was also established ; but it was held to be vacated by his acceptance of a lucrative post under the United States. The House have en gaged with some alacrity in the consideration of the Revised Code prepared by Mr. Jefferson Mr. Pendle- ton & Mr. Wythe. The present temper promises an adoption of it in substance. The greatest danger arises from its length compared with the patience of the members. If it is persisted in it must exclude several matters which are of moment, but I hope only for the present Assembly. The pulse of the H. of D. was felt on thursday with regard to a general manu mission, by a petition presented on that subject. It was rejected without dissent, but not without an avowed patronage of its principle by sundry respect able members. A motion was made to throw it under the table, which was treated with as much indignation on one side as the petition itself was on the other. There are several petitions before the House against
1785] JAMES MADISON. 193
any step towards freeing the Slaves, and even praying for a repeal of the law which licences particular manu missions. The Merchants of several of our Towns have made representations on the distress of our com merce, which have raised the question whether relief shall be attempted by a reference to Cong?, or by measures within our own compass. On a pretty full discussion it was determined by a large majority that the power over trade ought to be vested in Congress, under certain qualifications. If the qualifications suggested & no others should be annexed, I think they will not be subversive of the principle tho' they will, no doubt, lessen its utility. The Speaker, Mr. M. Smith & Mr. Braxton, are the champions against Congress. Mr. Thurston & Mr. White have since come in, and I fancy I may set down both as auxiliaries. They are, however not a little puzzled by the difficulty of substituting any practicable regu lations within ourselves. Mr. Braxton proposed two that did not much aid his side of the question : the i was that all British vessels from the W. Indies should be excluded from our ports ; the 2. that no Merchant should carry on trade here until he sd have been a resident— -years. Unless some plan free from objection can be devised for this State, its patrons will be reduced clearly to the dilemma of acceding to a general one, or leaving our trade under all its present embarrassments. There was some little skirmishing on the ground of public faith, which leads me to hope that its friends have less to fear than was surmised. The Assize & Port Bills have not yet been
VOL. II. — 13.
i94 THE WRITINGS OF [1785
awakened. The Senate will make a House to-day for the first time.
With the greatest respect & regard I have the honor to be Dr Sir
Yr Obed1 & very Kble Serv1
TO JAMES MADISON. MAD. MSS.
RICH? Nov' 18. 1785.
HonD Sir, — I rcd yrs by Capt. Barbour who I hope will enquire as to Turpin in the land office. I wish you rather to confide such business to friends coming here who can be relied on than to refer it to me. I am so little master of my time and the office is removed so far out of the way that I cannot be relied on. I will endeavor to get the Journals for you soon. The price of Tob° forbids the sale of your Hhd. The As sembly have made some progress in the Revisal, and I hope will go thro' it. Public cred* seems to have more friends and paper money more adversaries than I had expected. — Delegates to Cong5 for 1786. R. H. Lee, Wra Grayson J* Monroe, H. Lee Jr. ^ Carrington Councilor Carter Bratton.
Yr afTe son
J. Madison Jr. Notes For Speech In The Virginia House Of Delegates
J. MADISON JR.
NOTES FOR SPEECH IN THE VIRGINIA HOUSE OF DELEGATES
NOVEMBER, 1785. l
Commercial Regulations. Mad. Mss
COMMERCIAL REGULATIONS.
MAD. MSS.
Gen! reg! necessary whether the object be to i. counteract foreign plans
1 This skeleton of a speech is written, as other speeches are, upon a slip of
1785] JAMES MADISON. 195
2. encourage ships & seamen 3. manufactures
4. Revenue
5. frugality, [articles of luxury most easily run from Stateto State]
6. Embargo's in war — case of Delaware in late war.1 necessary to prevent contention ams States.
1. Case of French provinces, Neckar says 23,000 patrols em- ployd. ags- internal contraband.2
2. Case of Mass'? & Con*
3. Case of N. Y. & N. J.
4. P.a & Delaware
5. V? & Mary*? late regulation
6. Irish propositions necessary to Justice & true Policy
1. Con1 & N Hamp :
2. N. J.
3. N. C.
4. Western Country.
Necessary as a system convenient & intelligible to foreigners trading to U. S. Necessary as within reason of federal constitu tion, the regulation of trade being as imposable by states as peace, war, ambrs &c.
Treaties of comerce ineffectual without it Safe with reg? to the liberties of the States.
1. Cong? may be trusted with trade as well as war &c
2. power of Treaties involve the danger if any —
3. Controul of States over Cong3.
4. example of amphyctionic league, achean do. Switzerld-, Hol land, Germany.
paper in a hand so small that parts of it can hardly be deciphered with the naked eye. An effect of the speech was the adoption by the House of a reso lution, that "an act ought to pass to authorize the delegates of this State in Congress to give the assent of the State to a general regulation of the Commerce of the United States, under certain qualifications."
1 The non-importation agreements of the colonies before the Revolution were not entered into by Delaware until some time after the other colonies. See Life of George Read, 81.
2 4< De V Administration des Finances de la France"" had made its appearance the year before this speech was delivered.
196 THE WRITINGS OF [1785
5. peculiar situation of U. S. increase the repellant power of the States. Essential to preserve fed1- Constitution
1. declension of fed1- Gov*.
2. inadequacy to end, must lead states to substitute some other policy no institution remaining long when it ceases to be useful, &c.
3. policy of G. B. to weaken union.
Consequences of dissolution of confederacy, i. Appeal to sword in every petty squabble. 2. Standing armies beginning with weak & jealous states. 3. perpetual taxes. 4. sport of foreign politics. 5, 6. blast glory of Revolution.
TO GENERAL WASHINGTON.
WASH. MSS,
RICHMOND Dec1: 9, 1785.
DEAR SIR, — Your favor of the 30 Novl" was re ceived a few days ago. This would have followed much earlier the one which yours acknowledges had I not wished it to contain some final information re lative to the commercial propositions. The discussion of them has consumed much time and though the
o
absolute necessity of some such general system pre vailed over all the efforts of its adversaries in the first instance, the stratagem of limiting its duration to a short term has ultimately disappointed our hopes. I think it better to trust to further experience and even distress, for an adequate remedy, than to try a temporary measure which may stand in the way of a permanent one, and confirm that transatlantic policy which is founded on our supposed distrust of Congress and of one another. Those whose opposition in this case did not spring from illiberal animosities towards the Northern States, seem to have been frightened on one side at the idea of a perpetual and irrevocable
1785] JAMES MADISON. 197
grant of power, and on the other flattered with a hope that a temporary grant might be renewed from time to time, if its utility should be confirmed by the experiment. But we have already granted perpetual and irrevocable powers of a more extensive nature than those now proposed and for reasons not stronger than the reasons which urge the latter. And as to the hope of renewal it is the most visionary one that perhaps ever deluded men of sense. Nothing but the peculiarity of our circumstances could ever have produced those sacrifices of sovereignty on which the federal Government now rests. If they had been temporary, and the expiration of the term required a renewal at this crisis, pressing as the crisis is, and re cent as is our experience of the value of the confed eracy, sure I am that it would be impossible to revive it. What room have we then to hope that the expira tion of temporary grants of commercial powers would always find a unanimous disposition in the States to follow their own example. It ought to be remembered too that besides the caprice, jealousy, and diversity of situations, which will be certain obstacles in our way, the policy of foreign nations may hereafter imitate that of the Macedonian Prince who effected his purposes against the Grecian confederacy by gaining over a few of the leading men in the smaller members of it. Add to the whole, that the difficulty now found in obtaining a unanimous concurrence of the States in any measure whatever must continually increase with every increase of their number, and perhaps in a greater ratio, as the Ultramontane States may either
198 THE WRITINGS OF [1785
have or suppose they have a less similitude of inter ests to the Atlantic States than these have to one another. — The propositions however have not yet re ceived the final vote of the House, having lain on the table for some time as a report from the Com6 of the whole. The question was suspended in order to con sider a proposition which had for its object a meeting of Politico-commercial Comissrs from all the States for the purpose of digesting and reporting the re quisite augmentation of the power of Congress over trade. What the event will be cannot be foreseen. The friends of the original propositions are I am told rather increasing, but I despair of a majority, in any event for a longer term than 25 years for their duration. The other scheme will have fewer enemies and may perhaps be carried. It seems naturally to grow out of the proposed appointment of Cofrisrs for Virg? & Mary? concerted at Mount Vernon, for keeping up harmony in the commercial regulations of the two States. Maryd has ratified the report, but has invited into the plan Delaware & Pena, who will naturally pay the same compliment to their neigh bours &c. &c. Besides the general propositions on the subject of trade, it has been proposed that some intermediate measures should be taken by ourselves, and a sort of navigation Act will I am apprehensive be attempted. It is backed by the mercantile inter est of most of our towns except Alexandria, which alone seems to have liberality or light on the subject. It was refused even to suspend the measure on the concurrence of Mary? or N. Carolina. This folly
1785] JAMES MADISON. 199
however cannot one would think brave the ruin which it threatens to our Merchts, as well as people at large, when a final vote comes to be given.
We have got thro' a great part of the revisal, and might by this time have been at the end of it had the time wasted in disputing whether it could be finished at this Session been spent in forwarding the work. As it is we must content ourselves with passing a few more of the important bills, leaving the residue for our Successors of the next year. As none of the bills passed are to be in force till Jan?, 1787, and the resi due unpassed will probably be least disputable in their nature, this expedient, though little eligible, is not inadmissible. Our public credit has had a severe attack and a narrow escape. As a compromise it has been necessary to set forward the half tax till March ; and the whole tax of Sep1^ next till Nov* ensuing. The latter postponement was meant to give the planters more time to deal with the Merch' in the sale of their Tob°, and is made a permanent regulation. The Assize bill is now depending. It has many enemies and its fate is precarious. My hopes how ever prevail over my apprehensions. The fate of the Port bill is more precarious. The failure of an inter view between our Comssrs and Comssrs on the part of N. Carolina has embarrassed the projected Canal between the waters of the two States. If N. C. were entirely well disposed the passing an Act suspended on & referred to her legislature would be sufficient, and this course must I suppose be tried, though pre vious negociation would have promised more certain
200 THE WRITINGS OF [1785
success. — Kentucky has made a formal application for independence. Her memorial has been considered and the terms of separation fixed by a Com? of the whole. The substance of them is that all private rights & interests derived from the laws of Virginia shall be secured that the unlocated lands shall be ap plied to the objects to which the laws of V* have ap propriated them — that nonresidents shall be subjected to no higher taxes than residents — that the Ohio shall be a co™ on highway for Citizens of the U. S. and the jurisdiction of Kentucky & Virga, as far as the re maining territory of the latter will lie thereon, be concurrent only with the new States on the opposite Shore — that the proposed State shall take its due share of our State debts — and that the separation shall not take place unless these terms shall be approved by a Convention to be held to decide the question, nor untill Cong? shall assent thereto, and fix the terms of their admission into the Union. The limits of the proposed State are to be the same with the present limits of the district. The apparent coolness of the Representatives of Kentucky as to a separation since these terms have been defined indicates that they had some views which will not be favored by them. They disliked much to be hung up on the will of Congress.
I am Df Sir with the highest esteem and unfeigned regard Yf Obed< & hble Serv!
1785] JAMES MADISON. 201
TO JAMES MONROE. MAD. MSS.
RICHD, Dec1: 9, 1785.
DEAR SIR, — Supposing that you will be at New York by the time this reaches it I drop a few lines for the post of to-day. Mr Jones tells me he in formed you that a substitute had been brought for ward to the commercial propositions which you left on the carpet. The subject has not since been called up. If any change has taken place in the mind of the House, it has not been unfavorable to the idea of confiding to Congress a power over trade. I am far from thinking however that a perpetual power can be made palatable at this time. It is more probable that the other idea of a Convention of Commiss" from the States for deliberating on the state of commerce and the degree of power which ought to be lodged in Congress, will be attempted. Should it fail in the House, it is possible that a revival of the printed pro positions with an extension of their term to twentyfive years, will be thought on by those who contend that something of a general nature ought to be done. My own opinion is unaltered. The propositions for a State effort have passed and a bill is ordered in, but the passage of the bill will be a work of difficulty & uncertainty ; many having acquiesced in the prelimi nary stages who will strenuously oppose the measure in its last stages. No decisive vote has been yet taken on the Assize bill. I conceive it to be in some danger, but that the chance is in its favour. The case of the British debts will be introduced in a day or two. We have got through more than half
202 THE WRITINGS OF [1785
of the Revisal. The Criminal bill has been assailed on all sides. Mr Mercer has proclaimed unceasing hostility against it. Some alterations have been made & others probably will be made, but I think the main principle of it will finally triumph overall oppo sition. I had hoped that this Session wd have finished the code, but a vote ags.f postponing the further consideration of it till the next, was carried by so small a Majority that I perceive it will be ne cessary to contend for nothing more than a few of the more important bills leaving the residue of them for another year. My proposed amendment to the report on the Memorial of Kentucky, was agreed to in a Comittee of the whole without alteration, and with very few dissents. It lies on the table for the ratifica tion of the House. The members from that district have become extremely cold on the subject of an im mediate separation. The half tax is postponed till March & the Septf tax till Nov1: next. Not a word has passed in the House as to a paper emission. I wish to hear from you on your arrival at N. Y. and to receive in particular whatever you may be at liberty to disclose with regard to the Treaty of peace, &c with G. B. Mr Jones wishes you to accept this as on his acd as well as mine, he sent C. Griffins order on the bank by the last post and hopes you rec? it at Fred? Col. Grayson will no doubt have left you. I have omitted for some time writing to him on a supposition that I should be too late.
I am D? Sir
Yr^ affe1?
1785] JAMES MADISON. 203
TO AMBROSE MADISON.1
RICHMOND, Dec1: 15, 1785
D? BROR-' — I wrote to my father a day or two ago by Col : Burnley to which I refer. The principal step since taken by the H. of Delegates has been the rejection of a bill on which the assize scheme de pended. The majority consisted of 63 ags.1 49. Yester day the vote of the Speaker decided in the affirmative a resolution to repeal the act which permits masters to free their slaves.2 I hope the bill which must follow on the subject may be less successful. Many who concurred in the Resolution will probably be content finally with some amendment of the law in
1 From the New York Public Library (Lenox) MSS. A copy of the letter was printed in the Nation July 19, 1894.
2 The act was passed at the May session, 1782, of the General Assembly : " Whereas application hath been made to this present general assembly, that those persons who are disposed to emancipate their slaves may be empowered so to do, and the same hath been judged expedient under certain restrictions : Be it therefore enacted, That it shall hereafter be lawful for any person, by his or her last will and testament, or by any other instrument in writing, under his or her hand and seal, attested and proved in the county court by two witnesses, . . . to emancipate and set free, his or her slaves, or any of them, who shall thereupon be entirely and freely discharged from the performance of any con tract entered into during servitude, and enjoy as full freedom as if they had been particularly named and freed by this act." — Hening's Statutes at Large, xi, 39.
Jacob Read, of South Carolina, wrote to Madison from Congress August 29, 1785: "An opinion prevails in South Carolina that the principal holders of Slaves in your State wish to divest themselves of that kind of property and that tolerable good purchases might be made on good Security being given for pay ments by installments with a regular discharge of the Interest.
" Under the Impression of this opinion the Hon!e M^ J. Rutledge of S? Carolina has addressed a Letter to me wishing to become engaged in any pur chase I may be able to make, & to make a joint concern. . . . My present application to you is to request you to inform me if you know of any such per sons as may wish to sell a gang of Hands & the Terms on which they might be had. . . . We want ! Greatly want ! ! the assistance of your abilities & Experience in Congress." — Mad. MSS.
204 THE WRITINGS OF [1785
favor of creditors. Should it prove otherwise this retrograde step with regard to an emancipation will not only dishonor us extremely but hasten the event which is dreaded by stimulating the efforts of the friends to it. The residue of the Revisal from No. 65 will be put off, except the Religious Bill and a few others. Leave was given yesterday for a bill in favor of British Creditors, but not without proofs that it will be opposed in every stage of its progress thro' the House. The price of Tob° is not much, if at all changed.
TO JAMES MONROE. MAD. MSS.
RICHMOND, Dec^ 17, 1785
DEAR SIR, — Since my last by the preceding post the fate of the assize laws has been determined by a negative in the H. of Delegates on the Bill on which its execution depended. The majority consisted of 63 agst 49. A reform of the County Courts is the substitute proposed by the adversaries of the Assize, and if it can be put into any rational shape will be re ceived by the other side as auxiliary to the Assize plan which may be resumed at another Session. It is surmised that the Senate will not part? with this plan in any event, and as the law passecNh the last Session, unless repealed or suspended, stops the pro ceedings of the Gen1 Court after the Is.1 day of Jan? A bill must be sent to the Senate which will give them an opportunity of proposing some amendment which may revive the question at the present Session.
1785] JAMES MADISON. 205
Our progress in the Revisal has been stopped by the waste of time produced by the inveterate and prolix opposition of its adversaries, & the approach of Christmas. The Bill proportioning crimes & punish ments was the one at which we stuck after wading thro' the most difficult parts of it. A few subsequent bills however were excepted from the postponement. Among these was the Bill for establishing Religious freedom, which has got thro' the H. of Delegates without alteration, though not without warm op position. Mr. Mercer & Mr. Corbin were the prin cipal Combatants against it. Mr. Jones is well. With sincerity, I am
Y^ aff? friend.
TO JAMES MONROE. MAD. MSS.
RICHMOND, Dec! 24, 1785.
DEAR SIR, — The proceedings of the Assembly since my last, dated this day week have related i. to the Bill for establishing Religious freedom in the Re visal. 2. a Bill concerning British debts. 3. a Bill concerning the Proprietary interest in the Northern Neck. 4. for reforming the County Courts. The first employed the H. of Delegates several days ; The preamble being the principal subject of contention. It at length passed without alteration. The Senate I am told have exchanged after equal altercation, the preamble of the revisal for the last clause in the Dec laration of Rights ; an exchange we1? was proposed in the H. of D. and negatived by a considerable
2c6 THE WRITINGS OF [1785
majority. I do not learn that they have made or will make any other alteration. The Bill for the pay ment of British debts is nearly a transcript of that which went thro' the two Houses last year, except that it leaves the periods of instalment blank, and gives the Creditor an opportunity of taking imme diate execution for the whole debt, if the debtor refuses to give security for complying with the instal ments. The Bill was near being put off to the next Session on the second reading. A majority were for it, but having got inadvertently into a hobble, from the manner in which the question was put, the result was that Monday next should be appointed for its consideration. The arrival & sentiments of Col: Grayson will be favorable to some provision on the subject. A clause is annexed to the Bill, authoris ing the Executive to suspend its operation, in case Cong? shall signify the policy of so doing. The general cry is that the Treaty ought not to be ex ecuted here until the posts are surrendered, and an attempt will be made to suspend the operation of the Bill on that event or at least on the event of a posi tive declaration from Cong? that it ought to be put in force. The last mode will probably be fixed on, notwithstanding its departure from the regular course of proceeding, and the embarrassment in which it may place Congress.
The bill for reforming the County Courts proposes to select five Justices, who are to sit quarterly, be paid scantily, and to possess the Civil Jurisdiction of the County Courts, and the Criminal jurisdiction of
1785] JAMES MADISON. 207
the Gen1. Court under certain restrictions. It is meant as a substitute for the Assize system, to all the objections against which it is liable, without pos sessing its advantages. It is uncertain whether it will pass at all or what form it will finally take. I am inclined to think it will be thrown out. The Bill relating to the N. Neck passed the H. of D. yester day. It removes the records into the Land office here, assimilates locations of surplus land to the general plan, and abolishes the Quitrent. It was suggested that the latter point was of a judiciary nature, that it involved questions of fact, of law, and of the Treaty of peace, and that the Representatives of the late proprietor ought at least to be previously heard ac cording to the request of their Agent. Very little attention was paid to these considerations, and the bill passed almost unanimously. With sincere affection I am your friend & serv'
TO JAMES MADISON. MAD. MSS.
RICHMOND Dec1: 24. 1785.
My last informed you of the miscarriage of the Assize scheme. It has been followed with an at tempt to reform the County Courts, which will prob ably end in the appointment of four months in which the Courts shall be confined to Docket business & compelled to dispatch it. A Bill is depending for the payment of British debts, nearly on the model of that which fell thro' last year. It is extremely grat ing and will be rejected unless the prospect of an
208 THE WRITINGS OF [1785
accomodation with G. B. on the subject of the posts & the negroes, or the apprehensions of being saddled with worse terms by delay, should overcome the dis inclination. The port bill has not been yet taken up. It will be severely attacked. We have a variety of orders of the day which will consume time, and other bills are to be brought in. Of course the end of the Session is remote, unless impatience should produce the same effect as a conclusion of the busi ness. The petition of the little fork has been justly rejected, by a general vote. I have not yet disposed of your Tob? The price has not latterly exceeded I believe four dollars, and I am told to day that 20/1, is talked of. I have never yet had it in my power to make the enquiries at the land office, or to get out your patents. Capt. Barbour tells me he has been there and could not get the information relative to Turpin without a knowledge of some dates which you have not mentioned to him or to me. If you have any unliquidated claims ag-' the U. S. that can be settled by the Comiss- before the i? day of Jan? or loan office certificates issued from the Con' officer here the interest up to Dec- 1782 will be paid at the Treas^ in specie. Let this circumstance be known if you please, tho' I suppose it will be too late. It may be of the less consequence, as such warrants for inter est will in future be receivable in taxes. The Quitrents for the Northern Neck are abolished by a bill which is gone up to the Senate. The Bill for establish ing Religious freedom passed the H. of Delegates as it stands in the Revised Code. The Senate have
1785] JAMES MADISON. 209
disagreed to the preamble and substituted the last Article of the Declaration of Rights. Which house is to recede, is uncertain. Both are much attached to their respective ideas. Capt : Barbour tells me Payne has engaged his brother J- B. to pay the money due to you. I wish you could let Maj- Moore have about £ 1 8 of it, the amount of his interest on the certifi cate obtained from Dunscomb by M' Hubbard Tay lor, & left with me. Let me know whether such an arrangement will be practicable. Be kind eno' also to let Capt. Walker & my brother F. know that I am called on for their balances to the Steward of H amp- den Sidney by a man here who has an order on me for them, present my regards to the family and believe me to be your Affec" son—
TO JAMES MADISON. MAD. MSS.
RICHMOND Deer 27, 1785
HOND SIR, — Mr Js Davis has just handed your favor of the 24. inst. It is too late to revise the pro ceedings relative to the Trustees of Beverley. The Act authorizes the Comssrs who are to settle your accounts to make a reasonable allowance for your trouble. I cannot get a copy of the act without pay ing the £10. Capt. P. Barbour will inform you of Dean's answer to his application. He carried a letter from me giving you an acct. of the latest proceedings of the Assembly. Nothing of consequence has been done since. It is uncertain when we shall rise. If an opportunity should offer, I shall be glad of the fresh butter at all events.
I am with best regards to ye family yr ar? son.
VOL. II.— 14.
210 THE WRITINGS OF [1785
TO JAMES MONROE. MAD. MSS.
RICHMOND Dec1: 30, 1785.
DEAR SIR, — The past week has been rendered im portant by nothing but some discussions on the sub ject of British debts. The bill brought in varied from that which miscarried last year i. by adding provision in favor of the Creditors for securing pay ment at the dates of the instalments 2. by annexing a clause empowering the Executive to suspend the operation of the Act in case Congress should notify their wish to that effect. Great difficulty was found in drawing the House into Comte on the subject. It was at length effected on Wednesday. The changes made in the Bill by the Comittee are i. striking out the clause saving the Creditors from the act of limita tion which makes the whole a scene of Mockery — 2. striking out the provision for securities — 3. Converting the clause authorizing Cong- to direct a suspension of the Act into a clause suspending it, untill Cong" should notify to the Executive thatG. B. had complyed with the Treaty on her part, or that they were satis fied with the steps taken by her for evacuating the posts, paying for Negroes and for a full compliance with the Treaty. The sentence underlined was pro posed as an amendment to the amendment and admitted by a very small majority only. 4. exoner ating the public from responsibility for the payments into the Treasury by British debtors beyond the real value of the liquidated paper. Since these proceed ings of the Committee of the whole, the subject has
1 7 85] JAMES MADISON. 2 1 1
slept on the table, no one having called for the re port. Being convinced myself that nothing can be now done that will not extremely dishonor us, and em barrass Cong'!, my wish is that the report may not be called for at all.
In the course of the debates no pains were spared to disparage the Treaty by insinuations ag-f Cong!, the Eastern States, and the negociators of the Treaty, particularly J. Adams. These insinuations & artifices explain perhaps one of the motives from which the augmention of the federal powers & respectability has been opposed. The Reform of the County Courts has dwindled into directions for going thro' the docket quarterly, under the same penalties as now oblige them to do their business monthly. The ex periment has demonstrated the impracticability of rendering these courts fit instruments of Justice ; and if it had preceded the Assize Question would I think have ensured its success. Some wish to renew this question in a varied form, or at least under a varied title ; but the Session is too near its period for such an attempt. When it will end I know not. The business depending w? employ the House till March. A system of navigation and commercial regulations for this State alone is before us and comprises matter for a month's debate. The Compact with Mary? has been ratified.1 It was proposed to submit it to
1 Aug. 9, 1785, George Mason wrote from Gunston Hall to Madison, enclos ing for his inspection a copy of his and Henderson's report to the Legislature and of the joint letter to the government of Pennsylvania of the Virginia and Maryland commissioners.
January 13, 1786, the Virginia General Assembly agreed that duties on ex-
2i2 THE WRITINGS OF [1786
Cong" for their sanction, as being within the word Treaty used in the Confederation. This was oppd- It was then attempted to transmit it to our Dele gates to be by them simply laid before Cong' Even this was negatived by a large Majority. I can add no more without risking the opportunity by the post except that I remain Yr affe? friend
Church Establishment. Mad. Mss
CHURCH ESTABLISHMENT. MAD. MSS.
TO THE HONBLE THE SPEAKER & GENTLEMEN THE GENERAL ASSEMBLY OF VIRGINIA. (1786. )J
We the subscribers members of the protestant episcopal Church claim the attention of your honourable Body to our objections to the law passed at the last Session of Assembly for incorporating the protestant Episcopal church ; and we remonstrate against the said law —
ports and imports should be the same in Virginia and Maryland, and that com missioners from the two States should meet annually to arrange the schedules — Journal of the Hotise of Delegates.
1 The petition is in Madison's handwriting.
June 3, 1784, a memorial from the Protestant Episcopal Church in Virginia was presented in the House of Delegates stating that the church labored under disadvantages because of several laws directing the modes of worship, and requesting the repeal of such acts ; " that an act may pass, to incorporate the Protestant Episcopal Church in Virginia, to enable them to regulate all the spiritual concerns of that Church, alter its form of worship, and constitute such canons, by-laws and rules for the government and good order thereof, as are suited to their religious principles ; and in general that the Legislature will aid and patronize the Christian religion." This was referred to the Committee on Religion, of which Madison was himself a member ; but he was opposed to the views of the majority of his colleagues. On June 8 Carey reported that the memorial seemed to the committee to be reasonable. The bill for the incorporation of the Protestant Episcopal Church was read the second time June 1 6, and after modification to a less objectionable form passed at the next session of the Assembly. (See Journal of the House of Delegates.} Madison himself voted for it, as a strategic movement, to ward off action on the more im portant bill for religious assessments. The act contained twelve sections, pro viding that the "Minister and vestry of the Protestant Episcopal Church"
1786] JAMES MADISON. 213
Because the law admits the power of the Legislative Body to interfere in matters of Religion which we think is not included in their jurisdiction.
Because the law was passed on the petition of some of the Clergy of the Protestant Episcopal Church without any applica tion from the other members of that Church on whom the law is
should, under that name, constitute a body politic and corporate in the respec tive parishes, and should forever enjoy all glebe lands already purchased, churches, burying-grounds, etc., belonging to them, " and every other thing the property of the late established church." In the proceedings of the ministers and vestries all matters were to be decided by a majority vote. They had full power and authority to purchase and enjoy lands, etc. In whatever parishes ministers and vestrymen wished to form a body corporate under the act, it was lawful for any two members of the church to call together the other members in the parish and elect twelve church members, to form a vestry and with the minister of the church were authorized to regulate all its religious concerns, doctrine, discipline and worship. (Hening's Statutes at Large, 11,532).
Beginning with the session of the Assembly in the Autumn of 1786 petitions to repeal the act began to pour in, and also a smaller number against the repeal (Journal of the House of Delegates, Oct. j/, Nov. i, Nov. 6, Nov. 9, Nov. 10, Nov. 17, Nov. 24, Dec. 4, Dec. 3, Dec. 7.) The act of repeal was finally passed Jan. 10, 1787. (Hening's Stats, at Large, 12,266.)
Rev D* John B. Smith, of Hampden-Sidney College, a Presbyterian, wrote to Madison under date June 21, 1784 :
" Since my arrival at home, I have seen a part of your Journals, & by them have learned the objects of the Petition from the Episcopal Clergy, which in one or two instances, appear to me very exceptionable. The first part of their prayer is necessary & proper ; & the whole of it might pass without much animadversion to its disadvantage, 'till you hear them requesting that ' they, the Clergy, may be incorporated by law ' ; & then an attentive mind must revolt against it as very unjustifiable, & very insulting to the members of their com munion in general. Had they requested that an incorporating act should pass, in favour of that Church as a party of Christians, whereby the people might have had a share in the direction of ecclesiastical regulations, £ the appointment of Church officers for that purpose, it would have been extremely proper. But as the matter now stands, the clergy seem desirous to exclude them from any share in such a privilege & willing to oblige the members of their Churches to sit down patiently, under such regulations as an incorporated body of Clergymen, who wish to be peculiarly considered as ministers in the view of the law, shall chuse to make, without a legal right to interpose in any manner, but such as these spiritual leaders may think fit to allow. * * * * * *
" But that part of the petition, which concerns me most as well as every non- Episcopalian in the state, is, where these Clergymen pray for an act of the
2i4 THE WRITINGS OF [1786
to operate, and we conceive it to be highly improper that the Legislature should regard as the sense of the whole Church the opinion of a few interested members who were in most instances originally imposed on the people without their consent & who were not authorized by even the smallest part of this community to make such a proposition.
Because the law constitutes the Clergy members of a convention who are to legislate for the laity contrary to their fundamental right of chusing their own Legislators.
Because by that law the most obnoxious & unworthy Clergyman cannot be removed from a parish except by the determination of a body, one half of whom the people have no confidence in & who will always have the same interest with the minister whose con duct they are to judge of.
Because — by that law power is given to the convention to regu late matters of faith & the obsequious vestries are to engage to change their opinions as often as the convention shall alter theirs.
Because a system so absurd and servile will drive the members of the Episcopal Church over to the Sects where there will be more consistency & liberty.
We therefore hope that the wisdom & impartiality of the present assembly will incline them to repeal a law so pregnant with mis chief & injustice.
TO THOMAS JEFFERSON. MAD. MSS.
RICHMOND, Jan. 220!, 1786.
DEAR SIR, — My last dated Novr I5th, from this place answered yours of May nth, on the subject of your printed notes.1 I have since had opportuni ties of consulting other friends on the plan you propose, who concur in the result
Assembly to ENABLE, them to regulate all the spiritual concerns of that Church &c. This is an express attempt to draw the State into an illicit connexion & commerce with them, which is already the ground of that uneasiness which at present prevails thro' a great part of the State. According to the spirit of that prayer, the Legislature is to consider itself as the head of that Party, & con sequently they as members are to be fostered with particular care."
Mad. MSS. " On my return to Orange I found the copy of your Notes brought along
1 7 86] JAMES MADISON. 215
of the consultations which I transmitted you. Mr. Wythe's idea seems to be generally approved, that the copies destined for the University should be dealt out by the discretion of the Professors, rather than indiscriminately and at once put into the hands of the students, which, other objections apart, would at once exhaust the Stock. A vessel from Havre de Grace brought me a few days ago two Trunks of Books, but without letter or catalogue attending them. I have forwarded them to Orange without examining much into the contents, lest I should miss a conveyance which is very precarious at this season, and be deprived of the amusement they promise me for the residue of the winter.
Our Assembly last night closed a Session of 97 days, during the whole of which except the first seven, I have shared in the confinement. It opened with a very warm struggle for the chair between M* Harrison & M^ Tyler which ended in the victory of the former by a majority of 6 votes. This vic tory was shortly afterwards nearly frustrated by an impeachment of his election in the County of Surry. Having failed in his native County of Charles City, he abdicated his residence there, removed into the County of Surry where he had an estate, took every step which the interval would admit, to constitute himself an inhabitant, and was in consequence elected a representative. A charge of non-residence was nevertheless brought against him, decided ag^ him in the comittee of privileges by the casting vote of the Chairman, and reversed in the House by a very small majority. The election of Doc1; Lee was attacked on two grounds. Ist, of non-residence, 2d]y , of holding a lucrative office under Cong5, on the Ist he was acquitted, on the 2d, expelled, by a large majority. The revised Code was brought forward pretty early in the Session. It was first referred to Come of Cts of Justice, to report such of the bills as were not of a temporary nature, and on their report comitted to comtee of the whole. Some difficulties were raised as to the proper mode of proceeding, and some opposition made to the work itself. These however being surmounted, and three days in each week appropriated to the task, we went on slowly but suc cessfully, till we arrived at the bill concerning crimes and punishments. Here the adversaries of the Code exerted their whole force, which being abetted by the impatience of its friends in an advanced stage of the Session, so far pre vailed that the farther prosecution of the work was postponed till the next Ses sion. The operation of the bills passed is suspended until the beginning of 1787 so that if the Code sd be resumed by the next Assembly and finished early
with it by Mr. Doradour. I have looked them over carefully myself & con sulted several judicious friends in confidence. We are all sensible that the freedom of your strictures on some particular measures and opinions will dis please their respective abettors. But we equally concur in thinking that this consideration ought not to be weighed against the utility of your plan. We think both the facts and remarks which you have assembled too valuable not to be made known, at least to those for whom you destine them, and speak of them to one another in terms ^vhich I must not repeat to you.1' — Madison to Jefferson, November 15, 1785. Mad. MSS.
216 THE WRITINGS OF [1786
in the Session, the whole system may commence at once. I found it more popular in the Assembly than I had formed any idea of, and though it was considered by paragraphs and carried through all the customary forms, it might have been finished at one Session with great ease, if the time spent on motions to put it off and other dilatory artifices had been employed on its merits. The adversaries were the Speaker, Thruston, and Mercer, who came late in the Session into a vacancy left by the death of Col. Brent, of Stafford, and contrib uted principally to the mischief.1 The titles in the enclosed list will point out to you such of the bills as were adopted from the Revisal. The alterations which they underwent are too numerous to be specified, but have not materially vitiated the work. The bills passed over were either temporary ones, such as being not essential as parts of the system may be adopted at any time and were likely to impede it at this, or such as have been rendered unnecessary by Acts passed since the epoch at which the revisal was prepared. After the comple tion of the work at this Session was despaired of it was proposed arid decided that a few of the bills following the bill concerning crimes and punishments should be taken up as of peculiar importance. The only one of these which 1 was pursued into an Act is the Bill concerning Religious freedom. The steps / taken throughout the Country to defeat the Gen1 Assessment had produced all the effect that could have been wished. The table was loaded with petitions and remonstrances from all parts against the interposition of the Legislature in matters of Religion. A general convention of the Presbyterian church prayed expressly that the bill in the Revisal might be passed into a law, as the best safeguard short of a Constitutional one, for their religious rights. The bill was carried thro' the H. of Delegates, without alteration. The Senate objected to
; the preamble, and sent down a proposed substitution of the i6^h art : of the Declaration of Rights. The H. of D. disagreed. The Senate insisted, and asked a Conference. Their objections were frivolous indeed. In order to re-
: move them as they were understood by the Managers of the H. of D. The pre amble was sent up again from the H. of D. with one or two verbal alterations. As an amendment to these the Senate sent down a few others, which as they did not affect the substance though they somewhat defaced the composition, it was thought better to agree to than to run further risks, especially as it was get ting late in the Session and the House growing thin. The enacting clauses past without a single alteration, and I flatter myself have in this country extin- ! guished forever the ambitious hope of making laws for the human mind.
Acts not included in the Revisal.
For the na- This was brought forward by Col: Henry Lee Jr., and passed
ura ization o wjtjlout opposition. It recites his merits towards this Country, the Marquis de la fayette anc^ constitutes him a Citizen of it.
To amend the The donation presented to Gen1 W embarrassed him much, on act vesting in One side, he disliked the appearance of slighting the bounty of his 1 The portions of the letter printed in italics are in cypher in the original.
1786] JAMES MADISON. 217
Country and of an ostentatious disinterestedness, on the other, Geni. Wash- an acceptance of reward in any shape was irreconcileable with "" '
the law he had imposed on himself. His answer to the Assem- River Com- bly declined in the most affectionate terms the emolument alloted panics.
to himself, but intimated his willingness to accept it so far as to dedicate it to some public and patriotic use. This Act recites the original act & his answer, and appropriates the future revenue from the shares to such public objects as he shall appoint. He has been pleased \.Q ask my ideas with regard to the most proper objects. I suggest ', in general only, a partition of the fund between some institution which would please the philosophical world, and some other which may be of a popular cast. If your knowledge of the several institutions in France or elsewhere should suggest models or hints, I could wish for your ideas on the case, which no less concern the good of the Commonwealth than the character of its most illustrious citizen.
Some of the malefactors consigned by the Executive to labour, An act em-
brought the legality of such pardons before the late Court of P°werin& the
Governor & Appeals who adjudged them to be void. This Act gives the Ex- Council to
ecutive a power in such cases for one year. It passed before the grant condi- bill in the revisal on this subject was taken up, and was urged tional pardons against the necessity of passing it at this Session. The expiration in certain of this act at the next Session will become an argument on the other side.
This Act empowers the Executive to confine or send away sus- An act giv- picious aliens, on notice from Cong5 that their sovereigns have ing P°wers to declared or commenced hostilities agst the U. S., or that ye latter and c^u'ncil have declared War agst such sovereigns. It was occasioned by in certain the arrival of two or three Algerines here, who, having no appar- cases.
ent object, were suspected of an unfriendly one. The Executive caused them to be brought before them, but found themselves unarmed with power to pro ceed. These adventurers have since gone off.
Abolishes the quitrent, and removes the papers to the Regis- Act for safe ter's office. keeping land
papers of the Northern Neck.
Requires them to clear their dockets quarterly. It amounts to Act for re- nothing and is chiefly the result of efforts to render Courts of forming
Assize unnecessary. County
The latter act passed at the last Session required sundry sup plemental regulations to fit it for operation, an attempt to provide Ac* to sus" these which involved the merits of the innovation drew forth the edition of the united exertions of its adversaries. On the question on the sup- Actestablish- plemental bill they prevailed by 63 votes ag^ 49. The best that ing Courts of could be done in this situation was to suspend instead of repealing Assize.
the original act, which will give another chance to our successors for introdu cing the proposed reform. The various interests opposed to it, will never be conquered without considerable difficulty.
2i8 THE WRITINGS OF [1786
Resolution The necessity of harmony in the cofnercial regulations of the proposing a States has been rendered every day more apparent. The local general meet- efjorts to counteract the policy of G. B., instead of succeeding,
have in everv instance recoiled more or less on the States which from the
States to con- ventured on the trial. Notwithstanding these lessons, the Mer- sider and rec- chts of this State, except those of Alexandria and a few of the omend a rnore intelligent individuals elsewhere, were so far carried away
by their jealousies of the Northern Marine as to wish for a naviga- for regulating •>
coerce, and ti°n Act confined to this State alone. In opposition to those nar- appointg as row ideas the printed proposition herewith inclosed was made. ComsTs from As printed, it went into a Comme of the whole. The alterations a' c a " of the pen shew the state in which it came out. Its object was to Madison Jr §^ve Cong5 such direct power only as would not alarm, but to Walter Jones, limit that of the States in such manner as wd indirectly require a St G. Tucker, conformity of the plans of Cong5. The renunciation of the right nith, G. Q£ iaying duties on imports from other States, would amount to a David Ross prohibition of duties on imports from foreign Countries, unless who are to similar duties existed in other States. This idea was favored by comunicate the discord produced between several States by rival and adverse the proposal regulations. The evil had proceeded so far between Connecticut timers lace an(^ Massts that the former laid heavier duties on imports from of meeting. the latter than from G. B., of which the latter sent a letter of complaint to the Executive here and I suppose to the other Executives. Without some such self-denying compact it will, I conceive be impossible to preserve harmony among the contiguous States. In the Comittee of the whole the proposition was combated at first on its gen eral merits. This ground was however soon changed for that of its perpetual duration, which was reduced first to 25 years, then to 13 years. Its adversaries were the Speaker, Thruston, and Corbin ; they were bitter and illiberal against Congress & the Northern States beyond example Thrustoti considered it as problematical, whether it would not be better to encourage the British than the Eastern marine Braxton and Smith were in the same sentiments, but absent at this crisis of the question. The limitation of the plan to 13 years so far destroyed its value in the judgment of its friends that they chose rather, to do nothing than to adopt it in that form. The report accordingly remained on the table uncalled for to the end of the Session. And on the last day the resolution above quoted was substituted. It had been proposed by Mr. Tyler imme diately after the miscarriage of the printed proposition, but was left on the table till it was found that Several propositions for regulating our trade without regard to other States produced nothing. In this extremity The resolution was generally acceded to, not with the opposition of Corbin & Smith. The Comssr- Jirst named were the Attorney, Dr Jones, and myself. In the House of D., Tucker and Smith were added, and in the Senate, Mason, Ross, and Ronald. The last does not undertake.
1 7 86] JAMES MADISON. 219
The port bill was attacked and nearly defeated, an amendatory bill was passed with difficulty thro' the H. of D., and rejected in the Senate. The orig inal one will take effect before the next Session, but will probably be repealed then. It would have been repealed at this, if its adversaries had known their strength in time and exerted it with Judgment.
A Bill was brought in for paying British debts but was rendered so inadequate to its object by alterations inserted by a Comitte of the whole that the patrons of it thought it best to let it sleep.
Several petitions (from Methodists chiefly) appeared in favor of a gradual abolition of slavery, and several from another quarter for a repeal of the law which licences private manumissions. The former were not thrown under the table, but were treated with all the indignity short of it. A proposition for bringing in a Bill conformably to the latter, was decided in the affirmative by the casting voice of the Speaker ; but the bill was thrown out on the first read ing by a considerable majority.
A considerable itch for paper money discovered itself, though no overt attempt was made. The partisans of the measure, among whom Mr. M. S J may be considered as the most zealous, flatter themselves, and / fear upon too good ground, that it will be among the measures of the next session. The unfavora ble balance of trade and the substitution of facilities in the taxes will have dis missed the little specie remaining among us and strengthened the common argument for a paper meditim.
This tax was to have been collected in Sep^ last, and had been in part actually collected in specie. Notwithstanding this and postponing the distress of public credit, an effort was made to remit the tax the tax of the altogether. The party was headed by Braxton, who was courting present year an appointment into the council. On the question for a third reading, the affirmative was carried by 52 ag^ 42. On the final -n payment question, a vigorous effort on the negative side with a reinforce ment of a few new members, threw the bill out. The victory however was not obtained, without subscribing to a postponement instead of remission, and the admission of facilities instead of Specie. The postponement too extends not only to the tax which was under collection, and which will not now come in till May, but to the tax of Sepr next which will not now be in the Treasury till the beginning of next year. The wisdom of seven Sessions will be unable to repair the mischiefs of this single act.
This was prayed for by a memorial from a Convention held in Kentucky, and passed without opposition. It contains stipula- .c c°"~
tions in favor of territorial rights held under the laws of Vira, and erection of suspends the actual separation on the decision of a Convention Kentucky authorized to meet for that purpose, and on the assent of Con- into an inde- gress. The boundary of the proposed State is to remain the same as the present boundary of the district.
1 Meriwether Smith.
220 THE WRITINGS OF [1786
At the last Session of 1784 and act passed displacing all the
ct to militia officers, and providing for the appointm*. of experienced
amend the
Militia law men« In most counties it was carried into execution, and gener ally much to the advantage of ye militia. In consequence of a few petitions ag3.' the law as a breach of the Constitution, this act reverses all the proceedings under it, and reinstates the old officers.
From the peculiar situation of that district the Escheat law was tend the no^- originally extended to it. Its extension at this time was occa-
operation of sioned by a bill brought in by Mr. Mercer for seizing and selling the Escheat the deeded land of the late lord Fairfax on the ground of its being law to the devised to aliens, leaving them at liberty indeed to assert their Neck pretensions before the Court of Appeals. As the bill however
stated the law & the fact, and excluded the ordinary inquest, in the face of pretensions set up even by a Citizen, (Martin,) to whom it is said the re version is given by the will, it was opposed as exerting at least a Legislative in terference in and improper influence on the Judiciary question. It was proposed to substitute the present act as an amendm* to the bill in a Committee of the whole which was disagreed to. The bill being of a popular cast went thro' the H. of D. by a great majority. In the Senate it was rejected by a greater one, if not unanimously. The extension of the escheat law was, in consequence, taken up and passed.
"Act for to wit, attempts to dismember the State without the consent of
cerniining the LeSislature- Xt is pointed agst the faction headed by A. offences " C[ampbell], in the County of Washington.
Act for Complies with the requisition of Cong! for the present year, to
amending wit : 1786. It directs 512,000 dollars, the quota of this State, to the appropri- be paid before May next the time fixed by Congress, altho it is atmg Act. known that the postponement of the taxes renders the payment of a shilling impossible. Our payments last year gained us a little reputation. Our conduct this must stamp us with ignominy.
Act for Reduces that of the Govrr- from ^"1,000 to ^"800, & the others
rfg" a.tm some at a greater and some at a less proportion.
of the Civil list.
Act for Meant chiefly to affect vacant land in the Northern Neck,
disposing of erroneously conceived to be in great quantity and of great value, waste an s r^^e prjce js fixed at £2$ per Hundred acres, at which not an acre on Eastern waters. Wl11 be sold-
An act im- Amounting in the whole to 5 s. per ton. posing addl tonnage on British vessels.
1786] JAMES MADISON. 221
Nothing has been yet done with N. C. towards opening a Canal thro the Dismal. The powers given to Commsfs on our part are renewed, and some negociation will be brought about if possible. A certain interest in that State is suspected of being disinclined to promote the object, notwithstanding its manifest importance to the community at large. On Potowmack they have been at work some time. On this river they have about eighty hands ready to break ground, and have engaged a man to plan for them. I fear there is a want of skill for the undertaking that threatens a waste of labour and a discouragement to the enterprize. I do not learn that any measures have been taken to procure from Europe the aid which ought to be purchased at any price, and which might I should suppose be purchased at a moderate one.
I had an opportunity a few days ago of knowing that M^s Carr and her fam ily, as well as your little daughter, were well. I am apprehensive that some im pediments still detain your younger nephew from his destination. Peter has been in Williamsburg, and I am told by Mr. Maury that his progress is satisfac tory. He has read, under him, Horace, some of Cicero's Orations, Greek testament, ^Esop's fables in Greek, ten books of Homer's Iliad, & is now beginning Xenophon, Juvenal, & Livy. He has also given some attention to French.
I have paid le Maire ten guineas. He will set out in about three weeks I am told for France.. Mr. Jones has promised to collect & forward by him all such papers as are in print and will explain the situation of our affairs to you. Among these will be the most important acts of the Session, & the Journal as far as it will be printed.
M* W™ Hays in sinking a well on the declivity of the Hill above the pro posed seat of the Capitol and nearly in a line from the Capitol to Belvidere, found about seventy feet below the surface, several large bones, apparently be long to a fish not less than the Shark, and what is more singular, several frag ments of potter's ware in the stile of the Indians. Before he reached these curiosities he passed thro' about fifty feet of soft blue clay. I have not seen the articles, having but just heard of them, & been too closely engaged ; but have my information from the most unexceptionable witnesses who have. I am told by Gen1 Russel of Washington County, that in sinking a Salt well in that County he fell in with the hip bone of the incognitum, the socket of which was about 8 inches diameter. It was very soft in the subterraneous State, but seemed to undergo a petrefaction on being exposed to the air.
Adieu. Affec^.
Promotions. — Edward Carrington & H. Lee, Jr., added to R. H. Lee, J? Monroe, and W™ Grayson, in the delegation to Congress. Carter Braxton to the Council.
J1?0 Tyler to court of admiralty, in room of B. Waller, res? prices current. — Tob°, 23^. on James River, and proportially elsewhere. Wheat, 55 to 6s. per Bushel. Corn, i8s to 2os. per Barrel. Pork 28s to 30J pr Ct.
222 THE WRITINGS OF [1786
TO JAMES MONROE. MAD. MSS.
RICHMOND, Jany. 22?, 1786.
DEAR SIR, — Your favors of the 19th Decr and 7th Jany came both to hand by yesterdays mail. The Assembly adjourned last night after a Session of 97 days. If its importance were to be measured by a list of the laws which it has produced, all preceding Legislative merit would be eclipsed, the number in this instance amounting to 114 or 115. If we recur to the proper criterion no Session has perhaps afforded less ground for applause. Not a single member seems to be pleased with a review of what has passed. I was too hasty in informing you that an amendment of the Port bill had passed. I was led into the error by the mistake of some who told me it had passed the Senate when it had only been agreed to in a Comittee of the Senate. Instead of passing it they sent down a repeal of the old port bill by way of amend ment. This was disagreed to by the H. of D. as in directly originating. The Senate adhered & the bill was lost. An attempt was then made by the adver saries of the port measure to suspend its operation till the end of the next Session. This also was nega tived so that the old bill is left as it stood without al teration. Defective as it is particularly in putting citizens of other States on the footing of foreigners, and destitute as it is of proper concomitant pro visions, it was judged best to hold it fast and trust to a succeeding Assembly for amendments. The navi gation System for the State after having been prepared at great length by Mr G. Baker was pro-
1786] JAMES MADISON. 223
crastinated in a very singular manner, and finally died away of itself, without anything being done, ex cept a short act passed yesterday in great hurry im posing a tonnage of 55. on the vessels of foreigners not having treated with the U. S. This failure of local measures in the comercial line, instead of re viving the original propositions for a general plan, revived that of Mf Tyler for the appointment of Comsrs to meet Comsrs from other States on the sub ject of general regulations. It went through by a very great majority, being opposed only by Mr M. Smith and Mr. Corbin. The expedient is no doubt liable to objections and will probably miscarry. I think however it is better than nothing, and as a recommendation of additional powers to Congress is within the purview of the Comission it may pos sibly lead to better consequences than at first occur. The Comsrs first named were the attorney, Doctr W. Jones of the Senate and myself. The importunity of Mr. Page procured the addition of S* George Tucker who is sensible, fcederal, and skilled in comerce, to whom was added on the motion of I know not whom M- M. Smith, who is at least exceptionable in the second quality having made unceasing war during the Session agst the idea of bracing the federal system. In the Senate a further addition was made of Col. Mason Mr. D. Ross and Mr. Ronald. The name of the latter was struck out at his desire. The others stand. It is not unlikely that this multitude of associates will stifle the thing in its birth. By some it was probably meant to do so. I am glad to
224 THE WRITINGS OF [1786
find that Virginia has merit where you are and should be more so if I saw greater reason for it. The bill which is considered at N. Y. as a compliance with the requisitions of Cong5, is more so in appearance than reality. It will bring no specie into the Treasy and but little Continental paper. Another act has since passed which professes to comply more regularly with the demand of Cong? but this will fail as to specie and as to punctuality. It will probably procure the indents called for, and fulfils the views of Cong5 in making those of other States receivable into our Treasy. Among the acts passed since my last I must not omit an economical revision of the Civil list. The saving will amount to 5 or 6000 pounds. The Govr was reduced by the H. of D. to ,£800, to which the Senate objected. Which receded I really forget. The Council to ^2000, the Attorney to ^"200, Regis ter from ,£1,100 to ,£800, Auditors & Solicitor from ^4 to 300, Speaker of H. of D. to 40^. per day in cluding daily pay as a member & of Senate to 2os, &c. ; Delegates to Cong5 to 6 dollars per day. The act however is not to commence till November next. I mentioned in my last the propriety of addressing your future letters to Orange.
TO THOMAS JEFFERSON. MAD. MSS.
Virga ORANGE, March i8th, 1786.
DEAR SIR, — Your two favours of the i & 20 Sepr, under the same cover by Mr Fitzhugh did not come to hand till the 24th ult; and of course till it was too
1786] JAMES MADISON. 225
late for any Legislative interposition with regard to the Capitol. I have written to the Attorney on the subject. A letter which I have from him dated prior to his receipt of mine takes notice of the plan you had promised and makes no doubt that it will arrive in time for the purpose of the Commissioners. I do not gather from his expressions however that he was aware of the change which will become necessary in the foundation already laid ; a change which will not be submitted to without reluctance for two reasons, i. the appearance of caprice to which it may expose the Commissioners. 2. which is the material one, the danger of retarding the work till the next Session of Assembly can interpose a vote for its suspension, and possibly for a removal to Williamsburg. This danger is not altogether imaginary. Not a Session has passed since I became a member without one or other or both of these attempts. At the late Session a suspension was moved by the Williamsburg In terest, which was within a few votes of being agreed to. It is a great object therefore with the Richmond Interest to get the building so far advanced before the fall as to put an end to such experiments. The circumstances which will weigh in the other scale, and which it is to be hoped will preponderate, are, the fear of being reproached with sacrificing public con siderations to a local policy, and a hope that the substitution of a more economical plan, may bet ter reconcile the Assembly to a prosecution of the Undertaking.
Since I have been at home I have had leisure to
VOL. II.— 14.
226 THE WRITINGS OF 1786]
review the literary cargo for which I am so much in debted to your friendship. The collection is perfectly to my mind. I must trouble you only to get two little mistakes rectified. The number of Vol. in the En cyclopedic corresponds with your list, but a duplicate has been packed up of Tom. iere partie of Histoire Naturelle, Quadrupedes, premiere livraison, and there is left out the 2d part of the same Tom. which as ap pears by the Avis to the ist livraison makes the Ist Tome of Histoire des oiseaux, as well as by the His toire des oiseaux sent, which begins with Tom. II ire partie, and with the letter F from the Avis to the sixth livraison I infer that the vol. omitted made part of the 5me livraison. The duplicate vol. seems to have been a good deal handled and possibly be longs to your own sett. Shall I keep it in my hands, or send it back ? The other mistake is an omission of the 4th vol. of D'Albon sur Finteret de plusieurs nations, &c. The binding of the three vols which are come is distinguished from that of most of the other books by the circumstance of the figure on the back numbering the vols being on a black instead of a red ground. The author's name above is on a red ground. I mention these circumstances that the binder may supply the omitted volume in proper uniform. I annex a state of our account balanced. I had an opportunity a few days after your letters were recd of remitting the balance to the hands of Mr.s Carr with a request that it might be made use of as you direct to prevent a loss of time to her sons from occasional disappointments in the stated funds. I have not yet
1786] JAMES MADISON. 227
heard from the Mr Fitzhughs on the subject of your advance to them. The advance to Le Maire had been made a considerable time before I received your countermanding instructions. I have no copying press, but must postpone that conveniency to other wants which will absorb my little resources. I am fully apprized of the value of this machine and mean to get one when I can better afford it, and may have more use for it. I am led to think it wd be a very economical acquisition to all our public offices which are obliged to furnish copies of papers belonging to them.
A Quorum of the deputies appointed by the Assem bly for a commercial convention had a meeting at Rich mond shortly after I left it, and the Attorney tells me, it has been agreed to propose Annapolis, for the place, and the first monday in Sepr for the time of holding the Convention. It was thought prudent to avoid the neighborhood of Congress, and the large Comercial towns, in order to disarm the adversaries to the object, of insinuations of influence from either of these quar ters. I have not heard what opinion is entertained of this project at New York, nor what reception it has found in any of the States. If it should come to nothing, it will, I fear confirm G. B. and all the world in the belief that we are not to be respected, nor ap prehended as a nation in matters of commerce. The States are every day giving proofs that separate regu lations are more likely to set them by the ears, than to attain the common object. When Massts set on foot a retaliation of the policy of G. B. Connecticut
228 THE WRITINGS OF [1786
declared her ports free. N. Jersey served N. York in the same way. And Delaware I am told has lately followed the example, in opposition to the commercial plans of Penna. A miscarriage of this attempt to unite the States in some effectual plan, will have an other effect of a serious nature. It will dissipate every prospect of drawing a steady revenue from our imposts either directly into the federal treasury, or indirectly thro' the treasuries of the Commercial States, and of consequence the former must depend for supplies solely on annual requisitions, and the latter on direct taxes drawn from the property of the Country. That these dependencies are in an alarm ing degree fallacious is put by experience out of all question. The payments from the States under the calls of Congress have in no year borne any propor tion to the public wants. During the last year, that is from Novr, 1784, to Novr 1785, the aggregate pay ments, as stated to the late Assembly fell short of 400,000 dollrs, a sum neither equal to the interest due on the foreign debts, nor even to the current expences of the federal Government. The greatest part of this sum too went from Virga, which will not supply a single shilling the present year. Another unhappy effect of a continuance of the present anarchy of our commerces will be a continuance of the unfavorable balance on it, which by draining us of our metals furnishes pretexts for the pernicious substitution of paper money, for indulgences to debtors, for postpone ments of taxes. In fact most of our political evils may be traced up to our commercial ones, as most of
1786] JAMES MADISON. 229
our moral may to our political. The lessons which the mercantile interests of Europe have received from late experience will probably check their propensity to credit us beyond our resources, and so far the evil of an unfavorable balance will correct itself. / But the Merchants of G. B. if no others will continue to credit us at least as far as our remittances can be strained, and that is far enough to perpetuate our difficulties unless the luxurious propensity of our own people can be otherwise checked. This view of our situation presents the proposed Convention as a remedial ex periment which ought to command every assent ; but if it be a just view it is one which assuredly will not be taken by all even of those whose intentions are good. I consider the event therefore as extremely uncertain, or rather, considering that the States must first agree to the proposition for sending deputies, that these must agree in a plan to be sent back to the States, and that these again must agree unanimously in a ratification of it. I almost despair of success. It is necessary however that something should be tried & if this be not the best possible expedient, it is the best that could possibly be carried thro' the Legis lature here. And if the present crisis cannot effect unanimity, from what future concurrence of circum stances is it to be expected ? Two considerations particularly remonstrate against delay. One is the danger of having the same 1 game played on our Con federacy by which Philip managed that of the Grecians. I saw end during the late Assembly of the influence
1 Cypher for italics.
23o THE WRITINGS OF [1786
of the desperate circumstances of individuals on their pttblic conduct to admonish me of the possibility of finding in the council of some one of the States Jit instrii- ments of foreign machinations. The other consider ation is the probability of an early increase of the confederated States, which more than proportionally impede measures which require unanimity, as the new members, may bring sentiments and interests less con genial with those tf/the Atlantic States than those of the latter are one with another.
The price of our staple is down at 22s. at Richmond. One argument for putting off the taxes was that it would relieve the planters from the necessity of sell ing, & would enable them to make a better bargain with the purchasers. The price has notwithstanding been falling ever since. How far the event may have proceeded from a change in the Market of Europe I know not. That it has in part proceeded from the practice of remitting and postponing the taxes may I think be fairly deduced. The scarcity of money must of necessity sink the price of every article, and the relaxation in collecting the taxes, increases this scarcity by diverting the money from the public Treasury to the shops of Merchandize. In the former case it would return into circulation. In the latter it goes out of the Country to balance the increased con sumption. A vigorous and steady collection of taxes would make the money necessary here and would therefore be a mean of keeping it here. In our situa tion it would have the salutary operation of a sumpt uary law. The price of Indian Corn in this part of
1786] JAMES MADISON. 231
the Country which produced the best crops is not higher than 2 dollrs per barr1. It would have been much higher but for the peculiar mildness of the win ter. December and Jany scarcely reminded us that it was winter. February, though temperate, was less unseasonable. Our deepest snow (about 7 inches) was in the present month. I observe the tops of the blue ridge still marked with its remains. My last was dated January 22, and contained a narrative of the proceedings of the Assembly. I shall write you again as soon as the subject & opportunity occur, remain ing in the mean time
Yr affecte friend
Dr to T. J. livs sols Crecf
1785 Sep! i To am' of books, &c 1164 — 3 drs livs sols
By balance Stated by T. J. 77! 407—15
By advance to lemaire 10 Guns 234
drs By d° for 6 Copies Revisal at 2^ 81
722—15 *By ^25 Va Cy remitted to Mrs C. . .441— 8
1 1 64—3
* ^25 I discover exceeds the sum extended a few livres which may be carried into the next Ace* if it be thought worth while.
TO JAMES MONROE. MAD. MSS.
ORANGE igth March 1786
DEAR SIR, — I am just favored with yours of the 1 1 & 1 6 of Feby. A newspaper since the date of the
232 THE WRITINGS OF [1786
latter has verified to me your inauguration into the mysteries of Wedlock, of which you dropped a pre vious hint in the former.1 You will accept my sin- cerest congratulations on this event, with every wish for the happiness it promises. I join you cheerfully in the purchase from Taylor, as preferably to taking it wholly to myself. The only circumstance I regret is that the first payment will rest with you alone, if the conveyance should be accelerated. A few months will elapse inevitably before I shall be able to place on the spot my half of the sum but the day shall be shortened as much as possible. I accede also fully to your idea of extending the purchase in that quarter. Perhaps we may be able to go beyond the thousand acres you have taken into view. But ought we not to explore the ground before we venture too far?* proximity of situation is but presumptive evi dence of the quality of soil. The value of land de pends on a variety of little circumstances which can v only be judged of from inspection, and a knowledge of which gives a seller an undue advantage over an uninformed buyer. Can we not about the last of May or June take a turn into that district, I am in a manner determined on it myself. It will separate you but for a moment from New York, and may give us lights of great consequence. I have a project in my head which if it hits your idea and can be effected
1 " If you visit this place shortly I will present you to a young lady who will be adopted a citizen of Virg? in the course of this week." Monroe to Madison, February n, 1786. — Writings of Monroe, i., 123.
2 Madison and Monroe bought lands in the Mohawk Valley on a speculation. They desired Jefferson to join in the enterprise but he did not accept. Apparently no money was made in the transaction.
1786] JAMES MADISON. 233
may render such an excursion of decisive value to us. I reserve it for oral communication.
" The Question of policy," you say, " is whether it will be better to correct the vices of the Confedera tion by recommendation gradually as it moves along, or by a Convention. If the latter should be determined on, the powers of the Virga Comsrs are inadequate." If all on whom the correction of these vices depends were well informed and well disposed, the mode would be of little moment. But as we have both ignorance and iniquity to combat, we must defeat the designs of the latter by humouring the prejudices of the former. The efforts for bringing about a correc tion thro' the medium of Congress have miscarried. Let a Convention then, be tried. If it succeeds in the first instance, it can be repeated as other defects force themselves on the public attention, and as the public mind becomes prepared for further remedies. The Assembly here would refer nothing to Congress. They would have revolted equally against a plenipo tentiary commission to their deputies for the Conven tion. The option therefore lay between doing what was done and doing nothing. Whether a right choice was made time only can prove. I am not in general an advocate for temporizing or partial remedies. But a rigor in this respect, if pushed too far may hazard everything. If the present paroxysm of our affairs be totally neglected our case may become desperate. If anything comes of the Convention it will probably be of a permanent not a temporary nature, which I think will be a great point. The mind feels a peculiar
234 THE WRITINGS OF [1786
complacency in seeing a good thing done when it is not subject to the trouble & uncertainty of doing it over again. The commission is to be sure not filled to every man's mind. The History of it may be a sub ject of some future tete a tete. You will be kind enough to forward the letter to Mr Jefferson and to be assured that I am with the sincerest affection
yf friend & serv'
To James Monore. Mad. Mss
TO JAMES MONORE. MAD. MSS.
ORANGE April gth, 1786.
DEAR SIR, — I am favoured with yours of the i8th of March. My last answered your preceding one re lating to your territorial speculation. I hope it has been recd. I forgot to intimate to you, though I pre sume it would have been superfluous, that it will be well in every purchase to ascertain by information as far as possible, the proportion of land which lies on the river and comes within the description of low grounds. The value of every tract depends much on this pro portion. The contiguous upland is I believe generally of good soil, but there must be both degrees & excep tions to its quality. The low grounds are in a manner uniformly & universally good. The step taken by N. Jersey was certainly a rash one, and will furnish fresh pretexts to unwilling States for withholdg their contri butions.1 In one point of view however it furnishes a
1 "Jersey having taken into consideration the late requisition, the house of dele gates resolv'd that having enter'd into the confederation upon terms highly dis- advantagous to that state, from the necessity of public Aff!fs at the time, and a confidence that those points in which they were aggriev'd wo*? be remedied and
1786] JAMES MADISON, 235
salutary lesson. Is it possible with such an example be fore our eyes of impotency in the federal system, to re main sceptical with regard to the necessity of infusing more energy into it?/ A Government cannot long stand which is obliged in the ordinary course of its adminis tration to court a compliance with its constitutional acts, from a member not of the most powerful order, situated within the immediate verge of authority, and apprised of every circumstance which should remon strate against disobedience. The question whether it be possible and worth while to preserve the Union of the States must be speedily decided some way or other. Those who are indifferent to its preservation would do well to look forward to the consequences of its extinction. The prospect to my eye is a gloomy one indeed. I am glad to hear that the opposition to the impost is likely to be overcome. It is an encourage ment to persevere in good measures. I am afraid at the same time that like other auxiliary resources it will be overrated by the States, and slacken the regular efforts of taxation. It is also materially short of the power which Congress ought to have with re gard to Trade. It leaves the door unshut agst acom- ercial warfare among the States, our trade exposed to foreign machinations, and the distresses of an un favorable balance very little checked. The experi ence of European Merchts who have speculated in our trade will probably check in a great measure, our
finding this was not the case and a compact founded in such unequal principles likely, by their acquiescence to be fetter'd on them, they wo1? not therefore com ply with the same until their grievances were redress'd." — Monroe to Madison, March 19, 1786. — Writings of Monroe, i., 124.
236 THE WRITINGS OF [1786
opportunities of consuming beyond our resources ; but they will continue to credit us as far as our coin in addi tion to our productions will extend, and our experience here teaches us that our people will extend their con sumption as far as credit can be obtained. /
TO THOMAS JEFFERSON. MAD. MSS.
ORANGE May i2th, 1786.
DEAR SIR, — My last was of March 18, since which I have been favored with yours of the 8 and 9th of Feby. Bancroft's applica tion in favour of Paridise inclosed in the latter shall be attended to as far as the case will admit ; though I see not how any relief can be obtained. If Mr. P stands on the list of foreign creditors his agent here may probably convert his Securities into money with out any very great loss, as they rest on good funds, and the principal is in a course of payment. If he stands on the domestic list as I presume he does, the interest only is provided for, and since the postponement of the taxes even that cannot be negociated without a discount of 10 per C-, at least. The principal cannot be turned into cash without sinking j of its amount.
Your notes ' having got into print in France will inevitably be translated back & published in that form, not only in England but in America, unless you give out the original. I think therefore you owe it not only to yourself, but to the place you occupy & the sub jects you have handled, to take this precaution. To say nothing of the injury which will certainly result to the diction from a trans lation first into French & then back into English, the ideas themselves may possibly be so perverted as to lose their propriety. The books which you have been so good as to ford to me are so well assorted to my wishes that no suggestions are necessary as to your future purchases. A copy of the old edition of the Encyclo pedia is desirable for ye reasons you mention, but as I should gratify my desire in this particular at the expense of something else
1 On Virginia.
1786] JAMES MADISON. 237
which I can less dispense with, I must content myself with the new Edition for the present. The watch I bought in Philada, though a pretty good one, is probably so far inferior to those of which you have a sample, that I cannot refuse your kind offer to procure me. one of the same sort ; and I am fancying to myself so many little gratifications from the pedometer that I cannot forego that addition. The inscription for the Statue is liable to Houdon's criticism, and is in every respect inferior to the substitute which you have copied into your letter.1 I am apprehensive notwithstanding that no change can be effected. The Assembly will want some proper ground for resuming the matter. The devices for the other side of the pedestal are well chosen, and might I should suppose be ap plied without scruple as decorations of the artist. I counted my self on the addition of proper ornaments, and am persuaded that such a liberty could give offence nowhere. The execution of your hints with regard to the z Marquis & Rochambeau would be no less pleasing to me than to you. I think with you also that the setting up the busts of our own worthies would not be doing more honour to them than to ourselves. I foresee however the difficulty of over coming the popular objection against every measure which involves expence, particularly where the importance of the measure will be felt by a few only ; and an unsuccessful attempt would be worse than no attempt. I have heard nothing as to the Capitol. I men tioned to you in my last that I had written to the Attorney on the subject. I shall have an opportunity shortly of touching on it again to him.
A great many changes have taken place in the late elections. The principal acquisitions are Col. G. Mason who I am told was pressed into the service at the instigation of Gen1 Washington,
1 " ' Behold, Reader, the form of George Washington. For his worth, ask History ; that will tell it, when this stone shall have yielded to the decays of time. His cuntry erects this monument : Houdon makes it.' This for one side. On the 2d represent the evacuation of Boston with the motto ' Hostibus primum fugatis.' On the 3d the capture of the Hessians with ' Hostibus iterum devictis.' On the 4*h the surrender of York, with ' Hostibus ultimum deballatis.'"— Jefferson to Madison, February 8,1786. — Writings of Jefferson, iv. , 195. Fortunately the unpretentious inscription required by Virginia was adhered to.
2 Italics for cypher.
238 THE WRITINGS OF [1786
Gen1 Nelson, Mann Page. In Albemarle both the old ones de clined the task. Their successors are George & Jno Nicholas. Col. Carter was again an unsuccessful candidate. I have not heard how Mr. Harrison has shaped his course. It was expected that he would stand in a very awkward relation both to Charles City & to Surrey, and would probably succeed in neither. Monroe lost his election in King George by 6 votes. Mercer did his by the same number in Stafford. Neither of them were present, or they would no doubt have both been elected. Col. Bland is also to be among us. Among the many good things which may be expected from Col. Mason we may reckon perhaps an effort to review our Constitution. The loss of the Port bill will certainly be one con dition on which we are to receive his valuable assistance. I am not without fears also concerning his federal ideas. The last time I saw him he seemed to have come about a good deal towards the policy of giving Cong5 the management of Trade. But he has been led so far out of the right way, that a thorough return can scarcely be hoped for. On all the other great points, the Revised Code, the Assize bill, taxation, paper money, &c., his abilities will be ines timable. Most if not all the States except Maryld, have appointed deputies for the proposed Convention at Annapolis. The refusal of Maryland to appoint proceeded as I am informed by Mr. Dan Carroll, from a mistaken notion, that the measure would derogate from the authority of Congress, and interfere with the Revenue system of April 1783, which they have lately recomended anew to the States. There is certainly no such interference, and instead of lessening the authority of Congress, the object of the Conven tion is to extend it over commerce. I have no doubt that on a reconsideration of the matter it will be viewed in a different light. The internal situation of this State is growing worse & worse. Our specie has vanished. The people are again plunged in debt to the Merchants, and these circumstances added to the fall of Tob° in Europe & a probable combination among its chief purchasers here, have reduced that article to 2os. The price of Corn is in many parts of the Country, at 2os. and upwards per barr1. In this part it is not more that i$s. Our Spring has been a cool & latterly a dry one, of course it is a backward one. The first day of april was the most remarkable ever experienced in this climate. It
1786] JAMES MADISON. 239
snowed & hailed the whole day in a storm from N. E., and the. Thermr stood at 4 o'C. P. M. at 26°. If the snow had fallen in the usual way it would have been 8 or 10 inches deep at least, but con sisting of small hard globules mixed with small hail, & lying on the ground so compact & firm as to bear a man, it was less than half of that depth. We hear from Kentucky that the inhabitants are still at variance with their savage neighbours. In a late skir mish several were lost on both sides. On that of the whites Col. W. Christian is mentioned. It is said the scheme of independence is growing unpopular since the Act of our Assembly has brought the question fully before them. Your Nephew, D Carr, has been some time at the Academy in Prince Edward. The President, Mr. Smith, speaks favorably of him.
With the sincerest affection, I remain, Dr Sir your friend & servant.
P. S. I have taken measures for securing the Paccan nuts & the seed of the Sugar Tree. Are there no other things here which would be acceptable on a like account ? You will withhold from me a real pleasure if you do not favor me with your com mands freely. Perhaps some of our animal curiosities would enable you to gratify particular characters of merit. I can without diffi culty get the skins of all our comon and of some of our rarer quad rupeds, and can have them stuffed if desired. It is possible, also, that I may be able to send some of them alive. I lately had on hand a female opossum with 7 young ones, which I intended to have reared for the purpose partly of experiments myself and partly of being able to forward some of them to you in case of an opporty, and your desiring it. Unfortunately they have all died. But I find they can be got at any time almost in the Spring of the year, and if the season be too far advanced now, they may cer tainly be had earlier in the next Spring. I observe that in your notes you number the fallow & Roe-deer among the native quad rupeds of America. As Buffon had admitted the fact, it was whether true or erroneous, a good argument no doubt against him. But I am persuaded they are not natives of the new continent. Buffon mentions the Chevruil in particular as abounding in Louisiana. I have enquired of several credible persons who have
24o THE WRITINGS OF [1786
traversed the Western woods extensively and quite down to New Orleans, all of whom affirm that no other than our common deer are any where seen. Nor can I find any written evidence to the contrary that deserves notice. You have I believe justly con sidered our Monax as the Marmotte of Europe. I have lately had an opportunity of examining a female one with some atten tion. Its weight, after it had lost a good deal of blood, was 5 |- Ibs. Its dimensions, shape, teeth, and structure within as far as I could judge corresponded in substance with the description given by D'Aubenton. In sundry minute circumstances a precise corre spondence was also observable. The principal variations were i, in the face, which was shorter in the Monax than in the propor tions of the Marmotte, and was less arched about the root of the nose. 2, in the feet, each of the forefeet having a fifth nail, about \ of an inch long growing out of the inward side of the heel, with out any visible toe. From this particular it would seem to be the Marmotte of Poland, called the Bobac, rather than the Alpine Marmotte. 3, in the teats, which were 8 only. The marmottein Buffon had 10. 4th, in several circumstances of its robe ; particu larly of that of the belly, which consisted of a short coarse thin hair, whereas this part of Buffon's marmotte was covered with a thicker fur than the back, &c. A very material circumstance in the comparison remains to be ascertained. The European Mar motte is in the class of those which are dormant during the winter. No person here of whom I have enquired can decide whether this be a quality of the Monax. I infer that it is of the dormant class not only from its similitude to the Marmotte in other respects, but from the sensible coldness of the Monax I examined, compared with the human body, altho the vital heat of quadrupeds is said in general to be greater than that of man. This inferiority of heat being a characteristic of animals which become torpid from cold, I should consider it as deciding the quality of y? Monax in this respect, were it not that the subject of my examination, tho it re mained alive several days in my hands was so crippled and appar ently dying the whole time that its actual heat could not fairly be taken for the degree of its natural heat. If it had recovered I had intended to have made a trial with the Thermometer. I now pro pose to have if 1 can one of their habitations discovered during
1 7 86] JAMES MADISON. 241
the summer, and to open it on some cold day next winter. This will fix the matter. There is another circumstance which belongs to a full comparison of the two animals. The Marmotte of Europe is said to be an inhabitant of the upper region of mountains only. Whether our Monax be confined to mountainous situations or not I have not yet learnt. If it be not found as a permanent inhabi tant of the level Country, it certainly descends occasionally into the plains which are in the neighborhood of mountains. I also compared a few days ago one of our moles (male) with the male one described in Buffon. It weighed 2OZ n pents. Its length the end of its snout to the root of the tail was 5 inch 3 lines, English measure. That described in Buffon was not weighed I believe. Its length was 5 inch french measure. The external and inter nal correspondence seemed to be too exact for distinct species. There was a difference nevertheless in two circumstances, one of which is not unworthy of notice, and the other of material con sequence in the comparison. The first difference was in the tail, that of the mole here being ioj- English lines only in the length, and naked, whereas that of Buffon's mole was 14 French lines in length and covered with hair. If the hair was included in the latter measure, the difference in the length ought scarcely to be noted. The second difference lay in the teeth. The mole in Buf fon had 44. That which I examined had but 33. One of those on the left side of the upper Jaw, and next to the principal cutters, was so small as to be scarcely visible to the natural eye, and had no corresponding tooth on the opposite side. Supposing this de fect of a corresponding tooth to be accidental, a difference of ten teeth still remains. If these circumstances should not be thought to invalidate the identity of species, the mole will stand as an ex ception to the Theory which supposes no animal to be common to the two Continents, which cannot bear the cold of the region where they join ; since according to Buffon this species of mole is not found " dans les climats froids ou la terre est gelee pendant la plus grande partie de 1'annee," and it cannot be suspected of such a Journey during a short summer as would head the sea which separates the two Continents. I suspect that several of our quad rupeds which are not peculiar to the new Continent will be found to be exceptions to this Theory, if the mole should not. The
VOL. II.— 16.
242 THE WRITINGS OF [1786
Marmotte itself, is not an animal taken notice of very far to the North, and as it moves slowly, and is deprived of its locomotive powers altogether by cold cannot be supposed to have travelled the road which leads from the old to the New World. It is perhaps ques tionable whether any of the dormant animals, if any such be really comon to Europe & America, can have emigrated from one to the other. I have thought that the cuts of the Quadrupeds in Buffon, if arranged in frames, would make both an agreeable and instruc tive piece of wall furniture. What would be about the cost of them in such a form ? I suppose they are not to be had coloured to the life, and would besides be too costly. What is the price of Buf- fon's birds, colored ?
Your letter of 28 October has never come to hand.
TO JAMES MONROE. MAD. MSS.
ORANGE May 13*, 1786
DEAR SIR, — I was favored a few days ago with yours of the 28th ult. I am under great obligations for your kindness in the affair with Taylor. My late letters will have informed you of my washes that you may fully partake of the bargain entered into already, as well as every future adventure in that quarter. The encouragement you give me to expect your company has in a manner determined me to encounter a journey as soon as I can conveniently make pre paration for it. I am the rather induced to do it as I shall be the more able by that means to accelerate a repayment of your kind advances, having some little resources in Philad? of wc.h I must avail myself for that purpose. My next will probably tell you when I shall be able to set out.
I think, with you, that it would have an odd ap-
i786] JAMES MADISON. 243
pearance for two Conventions to be sitting at the same time, with powers in part concurrent. The reasons you give seem also to be valid against augmenting the powers of that which is to meet at Annapolis. I am not surprized therefore at the embarrassment of Congress in the present conjuncture. Will it not be best on the whole to suspend measures for a more thorough cure of our federal system, till the partial experiment shall have been made. If the spirit of the Conventioners should be friendly to the Union, and their proceedings well conducted, their return into the Councils of their respective States will greatly facili tate any subsequent measures which may be set on foot by Congress, or by any of the States.
Great changes have taken place in the late elec tions. I regret much that we are not to have your aid. It will be greatly needed I am sure. Mercer it seems lost his election by the same number of votes as left you out. He was absent at the time or he would no doubt have been elected. Have you seen his pamphlet ? You will have heard of the election of Col. Mason, Gen1 Nelson, Mann Page, G. Nicholas, Jn° Nicholas, & Col. Bland. Col. Mason will be an inestimable acquisition on most of the great points. On the port bill he is to be equally dreaded. In fact I consider that measure as lost almost at any rate. There was a majority agf1 it last session if it had been skilfully made use of. To force the trade to Norfolk & Alexandria, without preparations for it at those places, will be considered as injurious. And so little ground is there for confidence in the
244 THE WRITINGS OF [1786
stability of the Legislature that no preparations will ever be made in consequence of a preceding law. The transition must of necessity therefore be at any time abrupt and inconvenient. I am somewhat ap prehensive, likewise, that Col. Mason may not be fully cured of his anti-federal prejudices.
We hear from Kentucky that the Savages continue to disquiet them. Col. W. Christian it is said lately lost his life in pursuing a few who had made an inroad on the settlement. We are told too that the proposed separation is growing very unpopular among them.
I am Dr Sir with great affection Yr friend & Servt
Pray forward the herewith inclosed to Mr J. I sent one for him about the last of March which I hope you recd & put into the proper channel
TO JAMES MONROE. MAD. MSSi
ORANGE June 4th, 1786.
DEAR SIR, — At the date of my last I expected I should by this time have been on the journey which promises the pleasure of taking you by the hand in New York. Several circumstances have produced a delay in my setting out which I did not calculate upon, and which are like to continue it for eight or ten days to come. My journey will also be rendered tedious by the route which I shall pursue. I have some business which makes it expedient for me to take Winchester & Lancaster in my way, and some duties of consanguinity which will detain me some days in the
1786] JAMES MADISON. 245
neighborhood of the former. If I have an oppor tunity I will write you again before I set out and if I should not I will do it : immediately on my reaching Philada. You will not write after the receipt of this. I imagine you get from Mr. Jones better infor mation as to the back country as well as concerning our more immediate affairs than I can give you. The death of Christian seems to be confirmed. The dis inclination of Kentucky to a separation is also repeated with strong circumstances of probability. Our staple continues low. The people have got in debt to the merchts, who set their own price of course. There are perhaps other causes also besides the fall of the market in Europe which of itself does not explain the matter. One of them may be the scarcity of money which is really great. The advocates for paper money are making the most of this handle. I begin to fear exceedingly that no efforts will be sufficient to parry this evil. The election of Col. Mason is the main counterpoise for my hopes against the popular cry. Mann Page & Gen1 Nelson will also I flatter myself be valuable fellow labourers. Our situation is truly embarrassing. It cannot perhaps be affirmed that there is gold & silver eno' in the Country to pay the next tax. What then is to be done ? Is there any other alternative but to emit paper or to postpone the collection ? These are ye questions which will be rung in our ears by the very men whose past measures have plunged us into our difficulties. But I will not plague you with our difficulties here. You have enough of them, I am sure where you are.
246 THE WRITINGS OF [1786
Present my best respects to Col. Grayson & your other colleagues & believe me to be, your's affectionately.
TO THOMAS JEFFERSON. MAD. MSS.
ORANGE June ig11? 1786
DEAR SIR, — Since my last which was of the 18* of May I have rec? your very agreeable favor of the 28th of Octobr. I began to fear it had miscarried. Your reflections on the idle poor of Europe,1 form a valuable lesson to the Legislators of every
1 " FONTAINEBLEAU Oct. 2S. 1785.
*********
" as soon as I had got clear of the town I fell in with a poor woman walk ing at same rate with myself & going the same course, wishing to know the condition of the labouring poor I entered into conversation with her, which I began by enquiries for the path which would lead me into the mountain : & thence proceeded to enquiries into her vocation, condition & circumstance, she told me she was a daylabourer, at 8 sous or 4"? sterling the day : that she had two children to maintain, & to pay a rent of 30 livres for her home, (which would consume the hire of 75 days) that often she could get no emploiment, and of course was without bread, as we had walked together near a mile & she had so far served me as a guide, I gave her, on parting, 24 sous, she burst into tears of a gratitude which I could perceive was unfeigned, because she was un able to utter a word, she had probably never before received so great an aid. this little attendrissement, with the solitude of my walk led me into a train of reflections on that unequal division of property which occasions the numberless instances of wretchedness which I had observed in this country & is to be ob served all over Europe, the property of this country is absolutely concentered in a very few hands, having revenues of from half a million of guineas a year downwards, these employ the flower of the country as servants, some of them having as many as 200 domestics, not labouring, they employ also a great number of manufacturers, & tradesmen, & lastly the class of labouring hus bandmen, but after all these comes the most numerous of all the classes, that is, the poor who cannot find work. I asked myself what could be the reason that so many should be permitted to beg who are willing to work, in a country where there is a very considerable proportion of uncultivated lands? these lands are kept idle mostly for the sake of game, it should seem then that it must be because of the enormous wealth of the proprietors which places them above attention to the increase of their revenues by permitting these lands to
1786] JAMES MADISON. 247
Country, and particularly of a new one. I hope you will enable yourself before you return to America to compare with this description of people in France the condition of the indigent part of other communities in EuroDgLJarhere the like causes of wretchedness exist in a less degree./ I have no doubt but that the misery of the lower classes will be found to abate wherever the Government assumes a freer aspect, & the laws favor a sub division of property, yet I suspect that the difference will not fully account for the comparative comfort of the mass of people in the United States. Our limited population has probably as large a share in producing this effect as the political advantages which distinguish us. A certain degree of misery seems insepar able from a high degree of populousness. If the lands in Europe which are now dedicated to the amusement of the idle rich, were parcelled out among the idle poor, I readily conceive the happy revolution which would be experienced by a certain proportion of the latter. But still would there not remain a great proportion unrelieved? No problem in political ceconomy has appeared to me more puzzling than that which relates to the most proper
be laboured.' I am conscious that an equal division of property is impracti cable, but the consequences of this enormous inequality producing so much misery to the bulk of mankind, legislators cannot invent too many devices for sub-dividing property, only taking care to let their sub divisions go hand in hand with the natural affections of the human mind, the descent of property of every kind therefore to all the children, or to all the brothers & sisters, or other relations in equal degree is a politic measure, and a practicable one. another means of silently lessening the unequality of property is to exempt all from taxation below a certain point, & to tax the higher portions of property in geometrical progression as they rise. Whenever there is in any country, un cultivated lands and unemployed poor, it is clear that the laws of property have been so far extended as to violate natural right, the earth is given as a common stock to man to labour & live on. if, for the encouragement of industry we allow it to be appropriated, we must take care that other employment be per mitted to those excluded from the appropriation, if we do not the fundamental right to labour the earth returns to the unemployed, it is too soon yet in our country to say that every man who cannot find employment but who can find uncultivated land, shall be at liberty to cultivate it, paying a moderate rent, but it is not too soon to provide by every possible means that as few as possible shall be without a little portion of land, the small land holders are the most precious part of a state." — Jefferson to Madison, Mad. MSS. /
248 THE WRITINGS OF [1786
distribution of the inhabitants of a country fully peopled.1 Let the lands be shared among them ever so wisely, & let them be sup plied with labourers ever so plentifully ; as there must be a great surplus of subsistence, there will also remain a great surplus of inhabitants, a greater by far than will be employed in cloathing both themselves & those who feed them, and in administering to both, every other necessary & even comfort of life. What is to be done with this surplus ? Hitherto we have seen them dis tributed into manufactures of superfluities, idle proprietors of productive lands, domestics, soldiers, merchants, mariners, and a few other less numerous classes. All these classes notwithstand ing have been found insufficient to absorb the redundant mem bers of a populous society ; and yet a reduction of most of those classes enters into the very reform which appears so necessary & desirable. From a more equal partition of property, must result a greater simplicity of manners, consequently a less consumption of manufactured superfluities, and a less proportion of idle pro prietors & domestics. / From a juster Government must result less need of soldiers either for defence ags- dangers from without, or disturbances from within. The number of merchants must be inconsiderable under any modification of Society ; and that of mariners will depend more on geographical position, than on the plan of legislation. But I forget that I am writing a letter not a dissertation.
Things have undergone little change here since my last. The scarcity of money the low price of Tob° & the high price of bread continue to be the topics of complaint. The last evil is likely to be much increased by a sudden vicissitude in the prospects of wheat. At the date of my last we were praying for rain. Shortly after we had a deluge of it. From the 19th of May to the 4* of June, we scarcely saw the sun, had almost incessant rains, and sometimes showers, or rather torrents that threatened to sweep away every thing. The planters pretty generally availed them selves of the Season for getting their Tobacco into the hills. But the farmers have nearly lost their crops of wheat. A great pro portion of the heads in this part of the country are blasted, and
1 Malthus' first edition of his Essay on the Principle of Population was not published till 170.8.
1 7 86] JAMES MADISON. 249
in many parts it is said the fields will not be worth cutting. Our crops of apples also whicu in common with all other fruits seemed to be abundant appear to have suffered much from the wet. We are now again suffering f-om the opposite extreme. We have had no rain since the cessation of the long spell, that is since the 3d instant, and the earth is as dry and as hard as a brick.
In an answer from the attorney to a late letter, he says "that after great anxiety we have rec? the plan of a capitol from Mr J. and with some difficulty the directors have assented to conform the bricks already laid to that model."
I have a little itch to gain a smattering in chymistry. Will you be kind eno' to pick up some good elementary treatise for me, with a good dictionary of moderate size, unless the chymical volume in the encyclopedic should be judged a competent pro vision. Morveau's Elements I observe are quoted with great respect by Buffon. I wish also to get his two Boxes, called Le necessaire chemique. They are described in the Bibliotheque physico-economique for 1784. p. 134. where the maker in Paris is also referred to. I project this last indulgence on the supposition that the whole apparatus, including the contents of the Bottles will not cost more than a couple of Louis.
I observe that in your analysis of the Revisal p. 251 of your notes, a Bill is mentioned for consigning our roads to undertakers instead of the present vicious plan of repairing them. No such provision is comprized in the Road bill reported & printed. If it be any where in existence, I wish you could put me on the means of getting a sight of it. I conceive such a reform to be essential & that the Legislature would adopt it, if presented in a well digested form.
I lately sent you some particulars relating to our mole.1 For want of something better to fill the remainder of my paper, I will now add the result of my examination two days ago of another of our minor quadrupeds, I mean, a Weasel. It was a female & came to my hands dead. Its colour corresponded with the de scription given by D'Aubenton of the Belette & Roselet or Hermine
1 in enumerating the distinctions between our mole & the comon one of Eu rope, I find I omitted the difference of colour. You know the colour of ours, which is pretty remote from black, tho' somewhat darkish. [Note in MS.]
250
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[1786
in its summer dress, excepting only that the belly &c. which in the European animal was white, was in ';urs of a lightish yellow, save only the part under the lower jaws which was white for about yz an inch back from the under lip. The little brown spots near the corners of the mouth mentioned by D'Aubenton were peninsu lar. The tail was of the color of the back &c. all but the end which was black. The ears were extremely thin, had a fold or duplication on the lower part of the conque about 2 lines deep, and at the margin all around were covered with a very fine short hair or fur of the colour nearly of the back. The rest of the ear was in a manner naked, and of a lightish color. The fore feet were tipped & spotted with white. The hind feet were also tipped with white, and one of them a little spotted. It had five toes on each foot, the fifth on each being very short and at some distance from the end of the foot. Its smell was a sort of rankish musk, but not so strong as to be very offensive. It had no visible teats. Its weight dimensions &c. compared with those of Buffon's Belette & Hermine were as follows.
Weight
Weasel oz pw* gn! 2 17 13
Belette oz
2*
Hermine
oz pw* 7 10 —
Length from muzzle to root of tail
Inch lines
7 9 3 6 i ii
2 6
5 4i
3
41
Inch
6 i I i
lines
6 3
5 6
5 5
»*
3
9 ii
Inch lines
9 6 3 10
2 8
3 10
7 7
3*
4
i i 4
of the Trunk of the Tail
Height before
behind.
distance from muzzle to lower corner of the eye. . from upper corner of eye to the ear. . from one corner to the other of the eye. . length of the ear perpendicularly
width of ear horizontally
4 io|
I II
distance between the ears at bottom Length of the neck
* The belette of this weight was but 6 in. 5 lines in length. The weight & measure of the Weasel are English those of the Belette & Roselet — french.
1786]
James Madison
JAMES MADISON.
251
circumference of neck
Weasel
Belette
Hermine
Inch lines 2 5
2 10
3 3 2 9 ioi
Inch lines
2
2 3 2 2 2 6
9 7 ii
3
2
3 short i
ii 4
5i 4 3 4 i 3
2£ 2
Inch lines 2 6 3 4 3 4 3 3
I 2
i i
I 10
si
3
6 3
of body behind forelegs. . . . before hindlegs. . . . of head between eyes & ears Length of foreleg from knee to heel from heel to the nails
of hindleg from knee to heel
i 4 li
Width of forefoot
^
Length of nails of forefoot . .
2
of hindfoot ...
1 1
of hair on the body
31
at end of tail
6i
distance between anus and vulva
q
Spleen length of
i 3 qi
width of in middle
Kidneys long . .
71
wide
41
thick
•7
Heart long . .
64
round.
u? i 41
ql
Tongue long from end to the filet
wide
2*
Teeth
number
34 14 14 6
n°
34 14 14 or 15 6
n°
34 14 IQ
6
Ribbs
Vertebrae of tail ... . . .
Palate furrows of ...
The gall bladder was empty, the membrane of the Bladder very thin, and the two last furrows of the palate broken in the middle, in the Weasel as noted in the Belette, and the contrary not noted in the Hermine.
The spleen was of the same color on both sides in the Weasel. In the Hermine it was of a reddish brown as in the weasel, on one side, and of a very pale hue on the other. Nothing is said as to this circumstance in the description of the Belette.
The right kidney in the Weasel was advanced a little only before the left, as in the Belette, and not its whole length as in the Hermine.
252 THE WRITINGS OF [1786
The attempt to examine whether the number of false ribbs in the Weasel was 4 as in the Belette or 3 as in the Hermine, was frustrated.
On a review of the differential characters of the Belette and the Hermine, and a comparison of the weasel with both, it appears, i. that the weasel stands between the two in point of size, but much less removed from the former than the latter, unless the individ ual here examined was much under the ordinary size. Its having no visible teats seems to be an indication that it was young. An other probable indication was the smallness of the hindmost teeth both in the upper & lower Jaws, those in the lower being not big ger than the head of a small pin ; & those in the upper dispropor tionate to the contiguous tooth. 2. that it resembles the Hermine in the length of the trunk of the tail, and in the blackness of its end, — but the Belette in the number of vertebrae in the Trunk, and in the shortness of the hair at the end of the tail. 3. That it resem bles the Hermine in the colour of its feet, and the Belette in that of the margin of the ears. 4. that it resembles the Belette & not the Hermine in the Relative position of the Kidneys. 5. that it differs from the Hermine in being an inhabitant of warm climates. Wheather it resembles the Belette in not being an inhabitant of cold climates remains for enquiry. 6. that it differs from both in never becoming white during the winter, if this change be well founded with regard to the Belette. Buffon asserts that there are instances of it, but it may be questioned whether they were not mere albinos of the species.
The figure of the head of the Weasel when reduced to the naked bone resembled rather that of the Belette than that of the Hermine in the skeletons represented in Buffon. In its entire state it resembled most the head in the cut of the Her mine given by Buffon. Indeed the entire cut of the Hermine was a much stronger likeness of the weasel, than the cut of the Belette.
The result of the comparison seems to be that notwithstanding the blackness of the end of the tail & whiteness of the feet, which are regarded as characteristics of the Hermine contradistinguish ing it from the belette, our weasel cannot be of the former spe cies, and is nothing more than a variety of the latter. This
1 7 86] JAMES MADISON. 253
conclusion is the stronger, as the manners of our weasel corre spond more nearly with those of the Belette, than with those of the Hermine. And if it be a just conclusion, it may possibly make one exception to Buffon's position that no animal is com mon to the two continents that cannot bear the climate where they join ; as it certainly contradicts his assertion that of the animals common to the two continents, those of the new are in every in stance smaller than those of the old. — But he seems to have given up this point himself. Supplem' torn. 8, p. 329. " L'imperfection de nature qu'el [M. P. 1'auteur des recherches sur les Americains] reproche gratuitement a 1'Amerique en general, ne doit porter que sur les animaux de la partie meridionale de ce continent, les- quels &c." —
My next will probably be dated in Philad* or rather in N. York to which I am called by some business of a private nature in which I am concerned jointly with Col. Monroe. In the mean time I remain Yr.s very affectionately
TO JAMES MONROE. MAD. MSS.
ORANGE June 2ist, 1786.
DEAR SIR, — Your favor of the 3 1 st ult. did not come to hand till two days ago. As I expect to see you in a short time, I will suspend the full communication of my ideas on the subject of it till I have that pleasure. I cannot however forbear in the mean time expressing my amazement that a thought should be entertained of * surrendering the Mississippi, and of guaranteing the possessions of Spain in America. In the first place has not Virgf, have not Cong5 themselves, and the Ministers of Cong?, by their orders asserted the right of those who live on the waters of the Mississippi to
1 Italics for cypher.
254 THE WRITINGS OF [1786
use it as the high road given by nature to the sea f This being the case, have Congs any more authority to say that the Western citizens of Virga. shall not pass through the capes of Mississippi than to say that her Eastern citizens shall notfiass through the capes Henry & Charles. It should be remembered that the United States are not now extricating themselves from war, a crisis which often knows no law but that of necessity. The measure in question would be a voluntary barter in time of proj cound peace of the rights of one part of the empire to the interests of another part. What would Massachusetts say to a proposition for ceding to Britain her right of fishery as the price of some stipu lations in favor of Tobacco.
Again can there be a more short-sighted or dishon orable policy than to concur with Spn in frustrat ing 'the benevolent views of nature to sell the affections of our ultra-montane brethren to depreciate the richest fund we possess to distrust an ally whom we know to be able to befriend us and to have an interest in doing it against the only nation whose enmity we can dread, and at the same time to court by the most precious sacrifices the alliance of a nation whose impotency is notorious, who has given no proof of regard for us and the genius of whose Government religion & manners unfit them of all the nations in Christendom for a coali tion with this country. Can anything too, as you well observe, be more unequal than a stipulation which is to open all our ports to her and some only and those the least valuable of hers to us ; and which places the commercial freedom of our ports agst the fettered reg-
1786] JAMES MADISON. 255
illations of those in Spain. I always thought the stip ulation with france & Holld of the privileges of the most favoured nation as unequal, and only to be justi fied by the influence which the treaties could not fail to have on the event of the war. A stipulation putting Spanish subjects on the same footing with our own citizens is carrying the evil still farther without the same pretext for it ; and is the more to be dreaded, as by making her the most favored nation it would let in the other nations with whom we are now connected to the same privileges, whenever they may find it their interest to make the same compensation for them whilst we have not a reciprocal right to force them into such an arrangement in case our interest should dictate it. A guaranty is if possible still more objec tionable. If it be insidious we plunge ourselves into infamy. If sincere, into obligations the extent of which cannot easily be determined. In either case we get farther into the labyrinth of european politics from which we ought religiously to keep ourselves as free as possible. And what is to be gained by ruch a rash step ? Will any man in his senses pretend that our territory needs such a safeguard, or that if it were in danger, it is the arm of Spain that is to save it. Viewing the matter in this light I cannot but flatter myself, that if the attempt you apprehend should be made it will be rejected with becoming indig nation. I am less sanguine as to the issue of the other matter contained in your letter.1 I know the mutual
1 The claims of the State against the General Government. See Monroe's letter. Writings, i., 135.
\
256 THE WRITINGS OF [1786
prejudices which impede every overture towards a just & final settlement of claims & accts. I persist in the opinion that a proper & speedy adjustment is unattainable from any assembly constituted as Cong5 is, and acting under the impulse which they must. I need not repeat to you the plan which has always ap peared to me most likely to answer the purpose. In the mean time, it is mortifying to see the other States, or rather their Representatives, pursuing a course which will make the case more & more difficult, & putting arms into the hands of the Enemies to every Amendment of our federal system. God knows that they are formidable enough in this State without such an advantage. With it, their triumph will be certain & easy. But I have been led much farther already than I proposed, and will only that
I am with the sincerest affection, your friend & serv'
The inclosed Tickets belong to a very worthy friend who knows not how to obtain a small prize which they have drawn without giving you the trouble of applying for it. He is apprehensive that the door may be already shut agst the demand. If it should not you will kind eno' to call on the proper office and get the proper certificate. There are but 2 of the Tickets I believe which are entitled to prizes, but as they cannot be distinguished here, it must be done by the Register in the office.
1 786] JAMES MADISON. 257
TO THOMAS JEFFERSON.
PHILADA, Aug: 12th, 1786.
DEAR SIR, — My last of the igth of June intimated that my next would be from N, York or this place. I expected it would rather have been from the former which I left a few days ago, but my time was so taken up there with my friends and some business that I thought it best to postpone it till my return here. My ride through Virga, Maryd, and Pena, was in the midst of harvest. I found the crops of wheat in the upper parts of the two former considerably injured by the wet weather which my last described as so de structive in the lower parts of those States. The computed loss where I passed was about one third. The loss in the Rye was much greater. It was ad mitted however that the crops of both would have been unusually large but for this casualty. Through out Pena the wheat was unhurt, and the Rye very little affected. As I came by the way of Winchester & crossed the Potowmac at Harper's I had an oppor tunity of viewing the magnificent scene which nature here presents. I viewed it however under great dis advantages. The air was so thick that distant objects were not visible at all, and near ones not distinctly so. We ascended the mountain also at a wrong place, fatigued ourselves much in traversing it before we gained the right position, were threatened during the whole time with a thunder storm, and finally over taken by it. Had the weather been favorable the prospect would have appeared to peculiar advantage, being enriched with the harvest in its full maturity,
VOL. II. — 17.
258 THE WRITINGS OF [1786
which filled every vale as far as the eye could reach. I had the additional pleasure here of seeing the progress of the works on the Potowmac. About 50 hands were employed at these falls or rather rapids, who seemed to have overcome the greatest difficul ties. Their plan is to slope the fall by opening the bed of the river, in such a manner as to render a lock unnecessary, and, by means of ropes fastened to the rocks, to pull up & ease down the boats where the current is most rapid. At the principal falls 150 hands I was told were at work, and that the length of the canal will be reduced to less than a mile, and carried through a vale which does not require it to be deep. Locks will here be unavoidable. The undertakers are very sanguine. Some of them who are most so talk of having the entire work finished in three years.1 I can give no particular account of the progress on James River, but am told it is very flat tering. I am still less informed of what is doing in North Carolina towards a Canal between her & our waters. The undertaking on the Susquehannah is said to be in such forwardness as to leave no doubt of its success. A negociation is set on foot between Pen?, Maryd, & Delaware, for a canal from the head of Chesapeak to the Delaware. Maryd as I under stand heretofore opposed the undertaking, and Pena means now to make her consent to it a condition on which the opening of the Susquehannah within the
1 The MSS. records of the Chesapeake and Ohio Canal Company in the office of the Company in Washington show the work referred to here of the Po tomac Company.
1786] JAMES MADISON. 259
limits of Pena will depend. Unless this is permitted the opening undertaken within the limits of Maryland will be of little account. It is lucky that both parties are so dependent on each other as to be thus mutually forced into measures of general utility. I am told that Pent has complied with the joint request of Virga and Maryland fora Road between the head of Potow- mac and the waters of the Ohio and the secure & free use of the latter through her jurisdiction. These fruits of the Revolution do great honour to it. I wish all our proceedings merited the same character. Un happily there are but too many belonging to the op posite side of the acce. At the head of these is to be put the general rage for paper money. Pen? & N. Carolina took the lead in this folly. In the former the sum emitted was not considerable, the funds for sinking it were good, and it was not made a legal tender. It issued into circulation partly by way of loan to individuals on landed security, partly by way of payment to the public creditors. Its present de preciation is about 10 or 12 per cf. In N. Carolina the sums issued at different times has been of greater amount, and it has constantly been a tender. It issued partly in payments to military creditors and latterly, in purchases of Tob? on public account. The Agent I am informed was authorised to give nearly the double of the current price, and as the paper was a tender, debtors ran to him with their Tob?, and the creditors paid the expence of the farce. The depre ciation is said to be 25 or 30 per C*. in that State. S. Carolina was the next in order. Her emission was in
260 THE WRITINGS OF [1786
the way of loans to individuals, and is not a legal tender. But land is there made a tender in case of suits which shuts the Courts of Justice, and is perhaps as great an evil. The friends of the emission say that it has not yet depreciated, but they admit that the price of commodities has risen, which is evidently the form in which depreciation will first shew itself. New Jersey has just issued £"30,000 (dollars at js 6) in loans to her citizens. It is a legal tender. An ad dition of ,£100,000 is shortly to follow on the same principles. The terror of popular associations stifles as yet an overt discrimination between it & specie ; but as this does not operate in Philada & N. York where all the trade of N. J. is carried on, its depreci ation has already commenced in those places & must soon communicate itself to N. J. New York is strik ing ,£200,000 (dollr at 8^.) on the plan of loans to her citizens. It is made a legal tender in case of suits only. As it is but just issuing from the press, its de preciation exists only in the foresight of those who reason without prejudice on the subject. In Rhode Island, £"100,000 (dolr at 6^.) has lately been issued in loans to individuals. It is not only made a tender, but severe penalties annexed to the least attempt direct or indirect to give a preference to specie. Pre cautions dictated by distrust in the rulers soon pro duced it in the people. Supplies were withheld from the Market, the Shops were shut, popular meetings en sued, and the State remains in a sort of convulsion.
The Legislature of Mass1.5 at their last Session re jected a paper emission by a large majority. Con-
1786] JAMES MADISON. 261
necticut & N. Hampshire also have as yet forborne, but symptoms of danger it is said begin to appear in, the latter. The Senate of Maryd has hitherto been a bar to paper in that State. The clamor for it is now universal, and as the periodical election of the Senate happens at this crisis, and the whole body is unluckily by their Constitution to be chosen at once, it is probable that a paper emission will be the result. If, in spite of the zeal exerted agst the old Senate a majority of them should be re-elected, it will require all their firmness to withstand the popular torrent. Of the affairs of Georga I know as little as of those of Kamskatska. Whether Virga is to remain exempt from the epidemic malady will depend on the ensuing Assembly. My hopes rest chiefly on the exertions of Col. Mason and the failure of the experiments else where. That these must fail is morally certain ; for besides the proofs of it already visible in some States, and the intrinsic defect of the paper in all, this fic titious money will rather feed than cure the spirit of extravagance which sends away the coin to pay the unfavorable balance, and will therefore soon be carried to market to buy up coin for that purpose. From that moment depreciation is inevitable. The value of money consists in the uses it will serve. Specie will serve all the uses of paper, paper will not serve one of the essential uses of specie. The paper therefore will be less valuable than specie. Among the numer ous ills with which this practice is pregnant, one I find is that it is producing the same warfare & retalia tion among the States as were produced by the State
262 THE WRITINGS OF [1786
regulations of commerce.; Massts & Connecticut have passed laws enabling their Citizens who are debtors to Citizens of States having paper money, to pay their debts in the same manner as their Citizens who are creditors to Citizens of the latter States are liable to be paid their debts. The States which have ap pointed deputies to Annapolis are N. Hampshire, Massts, R. Island, N. Y., N. J., Pena, Delaware, & Virga. Connecticut declined not from a dislike to the object, but to the idea of a Convention, which it seems has been rendered obnoxious by some internal Conventions, which embarrassed the Legislative Au thority. Mary1!, or rather her Senate negatived an appointment because they supposed the measure might interfere with the plans or prerogatives of Cong5. N. Carolina has had no Legislative meeting since the proposition was communicated. S. Caro lina supposed she had sufficiently signified her concur rence in a general regulation of trade by vesting the power in Congress for 15 years. Georgia- — .
Many Gentlemen both within & without Cong5, wish to make this Meeting subservient to a plenipotentiary Convention for amending the Confederation. Tho' my wishes are in favor of such an event, yet I despair so much of its accomplishment at the present crisis that I do not extend my views beyond a commercial Reform. To speak the truth / almost despair even of this} You will find the cause in a measiire now be fore Congress of which you will receive the detail from Col. Monroe. I content myself with hinting that it is
1 The portions of the letter in cypher are represented by italics.
1786] JAMES MADISON. 263
a proposed treaty with Spain one article of which shuts up the Mississippi twenty-Jive or thirty years, passing by the other Southern States, figure to your self the effect of such a stipulation on the Assembly of Virginia, already jealous of Northern politics and which will be composed of about thirty members from the Western waters, of a majority of others attached to the Western Country from interests of their own, of their friend or their constituent, and of many others who though indifferent to Mississippi, will zealously play off the disgust of its friends against federal measures. Figure to yourself its effect on the people at large on the western waters, who are im patiently waiting for a favorable result to the negotia tion with Gardoqui, & who will consider themselves as sold by their Atlantic brethren. Will it be an unnatural consequence if they consider themselves absolved from every federal tie and court some protec tion for their betrayed rights. This protection will appear more attainable from the maritime power of Britain than from any other quarter ; and Britain will be more ready than any other nation to seize an opportunity of embroiling our affairs. What may be the motive with Spain to satisfy herself with a tem porary occlusion of the Mississippi at the same time jthat she holds forth our claim to it as absolutely inad missible is matter for conjecture only. The patrons of the measure in Congress contend that the Minister, who at present governs the Spanish councils means only to disembarrass himself at the expence of the successors. I should rather suppose he means to work
264 THE WRITINGS OF [1786
a total separation of interest and affection between western & eastern settlements and to foment the jeal ousy between the Eastern & Southern States. By the former the population of the Western Country it may be expected, will be checked and the Mississippi so far secured ; and by both the general security of Spanish America be promoted. As far as I can learn the assent of nine States in Congress will not at this time be got to the projected treaty but an unsuccessful attempt by six or seven will favor the views of Spain and be fatal I fear to an augmentation of the federal author ity if not to the little now existing. My personal situation is rendered by this business particularly mortifying. Ever since I have been out of Congress I have been inculcating on our Assembly a confidence in the equal attention of Congress to the rights and interests of every part of the republic and on the Western members in particular, the necessity of mak ing the Union respectable by new powers to Congress if they wished Congress to negociate with effect for the Mississippi. I leave to Col. Monroe the giving you a particular account of the Impost. The Acts of Penna, Delaware & N. York must be revised & amended in material points before it can be put in force, and even then the fetters put on the collection by some other States will make it a very awkward business. Your favor of 25^ of April from London found me here. My letter from Richmd at the close of the Assembly will have informed you of the situation in which British debts stand in Virga. Unless Cons say something on the subject I do not think anything
1786] JAMES MADISON. 265
will be done by the next Session. The expectations of the British Merchants coincide with the informa tion I had recd, as your opinion of the steps proper to be taken by the Assembly do with those for which I have ineffectually contended. The merits of Mr. P[aradise] will ensure every attention from me to his claim as far as general principles will admit. I am afraid that these will insuperably bar his wishes. The Catalogues sent by Mr. Skipwith I do not ex pect to receive till I get back to Virga. If you meet with " Grcecorum Respublicae ab Ubbone Emmio de- scriptae," Sugd. Batavorum, 1632, pray get it for me. My trip to N. Y. was occasioned chiefly by a plan concerted between Col. Monroe 1 & myself for a pur chase of land on the Mohawk. Both of us have visited that district and were equally charmed with it. The soil is perhaps scarcely inferior to that of Ken tucky, it lies within the body of the Atlantic States & at a safe distance from every frontier, it it contiguous to a branch of Hudson's River which is navigable with trifling portages which will be temporary, to tide-water, and is not more than ten 15 or 20 miles from popul ous settlements, where land sells at £8 to ^10 per acre. In talking of this Country sometime ago with General Washington he considered it in the same light with Monroe and myself, intimating that if he had money to spare and was disposed to deal in land, this is the
1 Monroe left the White House hopelessly broken in fortune and spent the latter part of his life in absolute poverty. Madison and Jefferson left behind them estates overburdened with debt. No one of the three possessed the talent of either making or saving money. It was this land speculation, however, which Madison believed would make him moderately wealthy.
266 THE WRITINGS OF [1786
very Spot which his fancy had selected of all the U. S. We have made a small purchase, and nothing but the difficulty of raising a sufficient sum restrained us from making a large one. In searching for the means of overcoming this difficiilty one has occurred which we have agreed that I should mention to you, and which \iyou should think as we do is recommended by the prospect of advantage to yourself as well as to ^ls. We mention it freely because we trust that if it does not meet with your sanction — — you will as freely tell us so^ It is that the aid of your credit \nyourprivate capacity be used for borrowing say four or Jive thou sand louis more or less, on the obligation of Monroe and myself with your suretyship to be laid out by Monroe and my self {Q? our triple emolument on interest not ex ceeding six p. cent to be paid annually and the prin ciple within a term not less than eight or ten years. To guard ag8' accidents a private instrument might be executed among ourselves such writing specifying all necessary covenants. We have not taken the reso lution of this plan without well examining the expedi ency of your becoming a party to it as well as the prospect of its succeeding. There can certainly be no impropriety inyoiir taking just means of better ing your fortune, nor can we discover in yoiir doing this on \heMokawk more than on james River. For the prospect of gain by rise of the land beyond the inter est of the money we calculate on the present difference of pri\c-e~\ between the settled & vacant land far beyond any possible difference in the real value. The
1 August 15 Madison sent the substance of this part of the letter to Monroe. Mad. MSS.
1786] JAMES MADISON. 267
former as has been noted sells for eight or ten pounds per acre. The latter distinguished only by its being a little higher 2tp the River & its being uninhabited was bought by us for one dollar & a half and there is little doubt that by taking itp a large quantity, still better bargains may be got. This comparative cheapness pro ceeds from causes which are accidental & temporary. The lands in question are chiefly in the hands of men who hold large quantities and who are either in debtor live in the city at an expence for which they have no other resource or are engaged in transactions that re quire money. The scarcity of specie which enters much into the cheapness is probably but temporary also. As it is the child of extravagance it will become the parent of economy, which will regain us our due share of the universal medium. The same vicissitude which can only be retarded by our short-lived substitutes of paper will be attended also by such &fall in the rate of exchange that money drawn by bills from Europe now and repaid a few years hence will probably save one years interest at least. I will only add that scarce an instance has happened in which purchases of new lands of good quality and in good situations have not well rewarded the adventurers. With these remarks which determine our judgments we submit to your better one \ki& project to which they relate. Wishing you every possible happiness I remain Dr Sir your affectionate friend & Serv'
Mr.s House and Mr.s Trist desire to be particularly remembered to yourself and Miss Patsy. I left with Col Monroe letters for you both from Mr.s T. which will probably go by the same packet with this.
268 THE WRITINGS OF [1786
TO JAMES MONROE.1
PHILADELPHIA, August lyth, 1786.
DR SIR, — I have your favor of the 1/j.th inst. The expedient of which you ask my opinion has received, as it deserved, all the consideration which the time and other circumstances would allow me to give. I think that, in the present state of things, such an arrangement would be beneficial, and even pleasing to those most concerned in it ; and yet I doubt extremely the policy of your proposing it to Con gress.2 The objections which occur to me are: i. That if the temper and views of Congress be such as you apprehend, it is morally certain they would not enter into the accommodation. Nothing, therefore, would be gained, and you would have to combat under the disadvantage of having forsaken your first ground. 2. If Congress should adopt your expedient as a ground of negociation with Guardoqui, and the views of Spain be such as they must be apprehended to be, it is still more certain that it would be rejected on that side, especially under the flattering hopes which the spirit of concession in Congress must have raised. In this event, the patrons of the measure now before
1 From the Works of Madison.
2 " It has occurr'd to G[rayson] & myself to propose to Congress that negotia tions be carried on with Sp? upon the following principles : i. That exports be admitted thro' the Mississippi to some free port — perhaps N. Orleans, to pay there a toll to Sp? of abl. 3 pr. cent™ ad valorem & to be carried thence under the regulations of Congress. 2. That imports shall pass into the Western coun try thro' the ports of the U. S. only. 3. That this sacrifice be given up to obtain in other respects a beneficial treaty. I beg of you to give me yr. opinion on it." — Monroe to Madison, August 14, 1786, Writings of Monroe, i., 151, 152.
1786] JAMES MADISON. 269
Congress would return to it with a greater eagerness and with fresh arguments, drawn from the impossi bility of making better terms, and from the relaxation into which their opponents will have been betrayed. It is even possible that a foresight of this event might induce a politic concurrence in the experiment.
Your knowledge of all circumstances will make you a better judge of the solidity or fallacy of these reflec tions than I can be. I do not extend them because it would be superfluous, as well as because it might lead to details which could not prudently be com mitted to the mail without the guard of a cypher. Not foreseeing that any confidential communication on paper would happen between us during my absence from Virginia, I did not bring mine with me.
TO AMBROSE MADISON. 1
ASJAPOLis, Sep*. 8th, 1786.
DR BRO?, — I came to this place a day or two ago, where I found two comsrs only. A few more have since come in, but the prospect of a sufficient n? to make the meeting respectable is not flattering. I was sorry to find in Philadf that the unpunctuality of some of the purchasers of the Tob? had put it out of the power of Mf H. to supply me with all the money be come due under the contracts. This unpunctuality owing partly to causes which are felt everywhere, partly to the abolition of the bank, has extended itself to men who have scarcely before afforded room
1 New York Public Library (Lenox) MSS.
270 THE WRITINGS OF [1786
for complaint. The disappointment reduced me to the dilemma of either not executing the commissions for the family & failing in some of my engagements particularly in N. Y. or of leaving you still longer to parry your creditors. Disagreeable as the latter option was I could not but consider it as the lesser inconvenience. Mr H. has promised to spare no efforts to get in the remaining payments as fast as possible, & to send or even bring them to Annapolis in case the session here should be prolonged till a sum worth while shall be collected. If the Session here should be so far shortened as to leave me time I propose to ride back to Philad? & be the bearer of it from thence myself. I shall probably write again to you from this place. I do not write now to my father because I have nothing worth the postage. You will let him know that most of the Articles on his list will prob ably soon be at Fredgl" perhaps sooner than this reaches you. The West Ind* articles were dear & for that reason some of them are abridged in quan tity. The other articles were cheap in general, which led me to add several beyond my commission, being well assured that if not wanted they may be either disposed of or exchanged with advantage.
TO JAMES MONROE. MAD. MSS.
ANNAPOLIS, Sepr n, 1786
DEAR SIR, — I have two letters from you not yet ac knowledged, one of the i5-' the other of the 3*? inst : nothing could be more distressing than the issue of
1786] JAMES MADISON. 271
the business stated in the latter.1 If the affirmative vote of 7 States si be pursued it will add the in sult of trick to the injury of the thing itself. Our prospect here makes no amends for what is done with you. Delaware N. J. & V* alone are on the ground, two Commissrs attend from N. Y. & one from Pa. Un less the sudden attendance of a much more respecta ble number takes place it is proposed to break up the Meeting, with a recomendation of another time & place, & an intimation of the expediency of extending the plan to other defects of the Confederation. In case of a speedy dispersion I shall find it requisite to ride back as far as Philad* before I proceed to Virg* from which place, if not from this, I will let you know the upshot here. I have heard that Col. Grayson was stopped at Trenton by indisposition on his way to the Assembly of Pena. I hope he is well again, & wd write to him but know not whither to address a letter to him.2
Adieu. Yrs affy.
1 The instructions to Jay on the subject of the Mississippi negotiations hav ing been in part repealed, the plan of the friends of the free navigation to order the transfer of negotiations to Madrid was blocked by a newly-adopted rule of Congress " that we shall not move in form or substance any proposition which has been set aside by the previous question, unless the same number of States are present." — Monroe to Madison, Writings of Monroe, t., 759, 160.
2 The following bill is of interest as showing what Madison's expenses were while he was attending the Annapolis convention :
"COLONEL MADISON'S BILL 1786
" Sept! 5 Lodging & Breakfast 3/9 Dinner 3/9 £, o. 7. o
wine 3/9 punch 2/6 porter 2/6 o. 8. 9
punch i/ serv*. Board I2/ o. 13. o
6 Lodging & Breakfast 3/9 wine 2/6 o. 6. 3
porter 2/6 Dinner 3/9. Servl Grog i/ o. 7. 3
Board for Serv*. 6/ o. 6. o
272 THE WRITINGS OF [1786
TO JAMES MONROE. MAD. MSS.
PHILAD^, Octr 5*, 1786.
DEAR SIR, — I rec^ yesterday your favor of the 2d. inst : which makes the third for which my acknowledg ments are due. The progression which a certain measure l seems to be making is an alarming proof of the predominance of temporary and partial interests over those just & extended maxims of policy, which have been so much boasted of among us and which alone can effectuate the durable prosperity of the Union. Should the measure triumph under the patronage of 9 States or even of the whole thirteen, I shall never be convinced that it is expedient, be-
" Sept! 7
Lodging and Breakfast 3/9 Tea i/io £
o.
5-
7
Serv1. Board 6/
0.
6.
0
8
Lodging and Breakfast 3/9 Serv1. Board 6/
"
9-
9
9
Lodging and Breakfast 3/9 Punch 1/3
0.
5-
o
Dinner and Club 8/9 Tea i/io Serv* Board 6/ . .
"
16.
7
10
Lodging and Breakfast 3/9 Tea i/io Serv*
board 6/
"
II.
7
ii
Lodging & Breakfast 3/9 Dinner 3/9 Club 5/. . .
"
12.
6
Tea i/io Serv! Board 6/
' '
7-
10
12
Lodging & Breakfast 3/9 Dinner & Club 8/9. . .
"
12.
6
Tea i/io Serv1. Board 6/
'*
7-
10
13
Lodging & Breakfast 3/9 Serv* Board 6/
«•
9-
9
Stabling & hay 45/ Oats 56 Gallons @ iod 4&/8/
4-
11.
8
Omited the 4th Punch 2/6 Supper 3/ serv1 d? 2/
"
7-
6
Hay and Oats 6/8 .
"
6.
8
14
Lodging & Breakfast 3/9 Dinner & Club 10/9. .
0.
14.
6
Servts Board 6/ Hay & Oats n. 8
o.
ii.
8
£1
5.
8
15
Lodging i/ Servt. 6/
I.
6
£14- 7- 2 Contents Received in full
Geo Mann." Mad. MSS. The prospective treaty with Spain closing the navigation of the Mississippi.
1786] JAMES MADISON. . 273
cause I cannot conceive it to be just. There is no maxim in my opinion which is more liable to be mis applied, and which therefore more needs elucidation than the current one that the interest of the majority is the political standard of right and wrong. Taking the word "interest" as synonymous with " ultimate happiness, " in which sense it is qualified with every necessary moral ingredient, the proposition is no doubt true. But taking it in the popular sense, as referring to immediate augmentation of property and wealth, nothing can be more false. In the latter sense it would be the interest of the majority in every com munity to despoil & enslave the minority of indi viduals ; and in a federal community to make a similar sacrifice of the minority of the component States. In fact it is only re-establishing under another name and a more specious form, force as the measure of right ; and in this light the Western settlements will infallibly view it.
I have considered with attention the paragraph in your last which relates to the further offer of Taylor. It seems to be an inviting one & probably would turn out a good one, yet there are strong objections ags.1 purchasing in the dark or on a vague knowledge of the situation. There would be hazard in the experi ment if both parties were on a level, but there would perhaps be rashness in it where one of them proceeds on full information. Circumspection seems also more necessary in proportion to the indulgences proposed in the payments, as they suggest other motives for sell ing than mere pecuniary difficulties. These objections
VOL. ii. — it
274 THE WRITINGS OF [1786
may indeed be lessened by taking information at second hand and by supposing the partial payment in hand as the ruling motive of the seller. But still they have considerable weight ; and when added to two others are decisive with me ags.' an immediate con tract. I draw the first of these from the numerous disappointments to which I find pecuniary matters in the present state of things are liable, and the mortifi cations which they involve. The second I draw from a reflection that if we should at the date of future payments have in our hands the means of discharging them, they will as ready money then command as good bargains as can now be made on credit. These remarks you will observe lye agst further speculations at present. The expediency of them under favorable circumstances I view in as strong a light as ever I did, and am happy to find your attention kept up to the subject, and you are gathering information relative to it.
I fear I shall be obliged to accept of your very friendly procrastination of the repayment which ought long ago to have been made. The disappointments which have prevented it, contribute to my delay here at this time, and will together with a vicarious busi ness which I have undertaken for a particular friend, probably spin it out a few days longer. If anything occurs before I set out or on the road I shall not fail to write. Col. Grayson is still here. For a week he has been nearly well, his symptoms of yesterday prove that he has remains of his disorder which require his attention.
1786] JAMES MADISON. 275
Martin did not make his report from Milligan as to the lottery tickets, pray send me the information in your next. Complts to yr family Adieu
Seal & present the inclosed if you please.
TO JAMES MONROE. MAD. MSS.
RICHM?, Octr. 30, 1786
DEAR SIR, — I drop you a few lines rather as a ful filment of my promise than for the purpose of infor mation, since they go by M* Jones who is much better acquainted with the politics here than myself. I find with pleasure that the navigation of the Miss?1 will be defended by the Legislature with as much zeal as could be wished.1 Indeed the only dan ger is that too much resentment may be indulged by many ags.e the federal councils. Paper money has not yet been tried even in any indirect mode that could bring forth the mind of the Legislature. Ap pearances on the subject however are rather flattering. Mr. H [enry] has declined a reappointf to the office he
1 The House of Delegates received a memorial from the delegates represent ing the counties of the district of Kentucky, setting forth that a report prevailed in that district that Congress proposed to cede to Spain the exclusive navigation of the Mississippi for twenty-five or thirty years, in consideration of some com mercial advantages, that they conceived it their duty to represent that the prosperity of the Western country was absolutely dependent on the free naviga tion of that river, as without it they could not carry their produce to market ; that Congress could not, without a flagrant violation of the confederation, de prive them of an advantage which nature had thus given them, and for the secure enjoyment of which the federal government was formed. Resolutions and instructions to the delegates in Congress in the sense of the memorial were passed by the House, November 29, 1786. — Journal of House of Delegates.
276 THE WRITINGS OF [1786
holds, and M^ Randolph1 is in nomination for his successor, and will pretty certainly be elected. R. H. L [ee] has been talked of, but is not yet proposed. The appt8 to Cong8 are a subject of conversation & will be made as soon as a Senate is made. Mr. Jones will be included in the New Delegation. Your presence & communications on the point of the Missippi are exceedingly wished for and would in several respects be extremely useful. If Mr. Jones does not return in a day or two come without him I beseech you. I am consulted frequently on matters concerning which I cannot or ought not to speak, and refer to you as the proper source of information as far as you may be at liberty. Hasten your trip I again beseech you. I hope Mrs. Monroe continues well. My sincerest respects wait on her. In haste
Adieu. Yrs.
TO JAMES MADISON. MAD. MSS.
RICHMOND Nov? i. 1786.
HON'D SIR, — Jn.° Tucker & Joe got down this fore noon, with articles sent. I shall execute your in structions as to the advertizements, and the Revised laws, if I can get at the latter time eno' in the morn ing. I will do the same as to the French Dicty for Mr Taylor if I can effect it in time ; if not I will make use of the first succeeding opportunity. I can give you no account of the Key of the Trunk. I suppose it must have been dropped or taken off & not re-
1 Edmund Randolph was elected.
1786] JAMES MADISON. 277
placed, for keys in such cases are usually fastened to the Trunks. I omitted in my letter from Fred? to men tion that I had directed 2 bolts of Oznabergs to be sent along with the other articles from Philada. but as I did it on the like condition of price & quality being approved by Mr H. it is uncertain whether any of the articles will come. I intended it merely as an experiment.
Paper money was the subject of discussion this day, and was voted by a majority of 84 vs 17, to be " unjust, impolitic, destructive of public & private confidence, and 1 of that virtue which is the basis of Republican Government." Our Revenue matters have also been on the anvil, several changes in our taxes are proposed, and it is not unlikely that some will take place. Duties on imports will be urged as far as they can be guarded agst smuggling by land, as well as by water. Govr Henry declines a reappoint6, but does not come into the Assembly. The Attorney or R. H. Lee, probably the former, will supply his place. We learn that great commotions are prevail ing in Massts. An appeal to the Sword is exceedingly dreaded. The discontented it is said are as numer ous as the friends of Gov' and more decided in their
1 The vote appears in the Journals of the House of Delegates as 85 to 17. The resolution was: " Resolved, that it is the opinion of this committee, [of the whole] that the petition of sundry inhabitants of the counties of Brunswick and Campbell, praying for an emission of paper money, are unreasonable and ought to be rejected ; and that, in the opinion of this committee, an emission of paper money would be unjust, impolitic and destructive of public and private confidence, and of that virtue which is the basis of republican government." Nevertheless, petitions praying for an emission of paper money were received by the House December 7.
278 THE WRITINGS OF [1786
measures. Should they get uppermost, it is uncer tain what may be the effect. They profess to aim only at a reform of their Constitution and of certain abuses in the public administration, but an abolition of debts public & private, and a new division of property are strongly suspected to be in contempla tion. We also learn that a general combination of the Indians threatens the frontier of the U. S. Cong5 are planning measures for warding off the blow, one of which is an augmentation of the federal troops to upwards of 2000 men. In addition to these ills, it is pretty certain that a formidable party in Cong5 are bent on surrendering the Missis1?1 to Spain for the sake of some commercial stipulations. The project has already excited much heat within that Assembly & if pursued will not fail to alienate the Western Country & confirm the animosity & jealousy already subsisting between the Atlantic States. I fear that, altho' it should be frustrated, the effects already pro duced will be a great bar to our amendment of the Confederacy which I consider as essential to its con tinuance. I have letters from Kentucky which inform me that the expedition ag5t the Indians has prevented the meeting which was to decide the question of their Independence. It is probable the news relative to the surrender of the Miss?1 will lessen the disposition to separate. If the bacon left behind by Jn.° should not have been sent it need not be sent at all. Fresh butter will from time to time, continue to be very acceptable. My best regards to my mother and the family.
Your affec' & dutiful son.
1786] JAMES MADISON. 279
Speech In The Virginia House Of Delegates, Novem
SPEECH IN THE VIRGINIA HOUSE OF DELEGATES, NOVEM BER, 1786, AGAINST PAPER MONEY.1 MAD. MSS.
Unequal to Specie, i. being redemble at future day and not bearing interest. 2. illustrated by [obliterated] of Bank notes — Stock in funds—
1 Notes on the back of a letter to Madison from Robt. Johnson, dated 23d September, 1786 :
Paper Emissions
67>zequal to specie. Bank notes. Stock. Object? navy bills, tallies
Spanish paper 6foless £/«just either to Cred1.3 or debtrs
1. alloy
2. Weights & measures
3. brass made for silver by Romn?
4. Case of debtrs to other States ^constitutional, i. property dec1? by bill of Rights
Antifedl 2. trial by Jury
Unnecessary. i. produce will bring specie
2. paper in Tob? notes Warr4.5 &c
Hurtful i. by luxury increase, not cure the evil of scarcity of specie
2. destroy confidence public & private
3. source of dissension between States see Confed? as to
regulation of coin
4. enrich collectors, speculators & —
5. vitiate morals
6. reverse the end of Gov*. by punishing good Citizens &
rewarding bad.
7. discourage foreign commerce &c
8. dishonor our Repub [illegible] the eyes of mankind Examples of other States & during war
Object? paper good formerly
Answer. i. Not true in N. E. V* Mary? 12 to 20 Per G
2. Confidence then
3. principles of money not then understood Such w? not then nor now do in Europe
Advantages from reject? paper
1. Distinguish the State & its credit
2. draw comerce & specie
3. Not honorable [example] to other states.
—Mad. MSS.
28o THE WRITINGS OF [1786
paper of Spain issued during late war [see Neckar on finance]. Navy bills — tallies. 3. being of less use than specie which answers externally as well as internally — must be of value which depends on the use.
Unjust, i. to creditors if a legal tender. 2 to debtors if not legal tender, by increasing diffi culty of getting specie. This it does by increas ing extravagance & unfavourable balance of trade — & by destroying that confidence be tween man & man, by which resources of one may be comanded by another. Illustrated i by raising denomination of coin 2. increas ing alloy of d? brass made as silver by the Romans according to Sallust.1 3 by changing weights & measures. 4. by case of creditors within who are debtors without the State.
Unconstitutional i. Affects rights of property as much as taking away equal value in land ; illustr? by case of land p? for down & to be con vey? in future, & of a law permitting convey ance to be satisfied by conveying a part only— or other land of inferior quality — 2. affects property without trial by Jury.
1 Shortly after Cicero's first great speech against Catiline, Catiline's friend, Caius Manlius, despatched deputies to the Roman general, Quintus Marcius Rex, with instructions to say, among other things : ' ' Often have your fore fathers, taking compassion on the Roman people, relieved their poverty by their decrees ; and very recently, within our memory, silver was paid with brass, owing to the pressure of debt, with the approval of all good citizens." — Sallust's Conspiracy of Catiline, ch. 33. The payments were in pursuance of a law pro posed by L. Valerius Flaccus, Consul, A. U. C. 667. Only the fourth part was paid, an as for a sestertius, and a sestertius for a denarius.
1786] JAMES MADISON. 281
Antifederal. Right of regulating coin given to Cong? for two reasons, i. for sake of uni formity. 2. to prevent fraud in States towards each other or foreigners. Both these reasons hold equally as to paper money.
U necessary, i. produce of country will bring in specie, if not laid out in superfluities. 2. Of paper, if necessary, eno' already in Tob? notes, & public securities — 3. the true mode of giv ing value to these, and bringing in specie is to enforce Justice & taxes.
Pernicious, i. by fostering luxury, extends instead of curing scarcity of specie — 2. by disabling compliance with requisition of Cong? 3. serv ing dissentions between States. 4. destroy? confidence between individuals. 5. discour aging comerce — 6 enrich? collectors & sharp ers — 7. vitiating morals. 8. reversing end of Gov' which is to reward best & punish worst. 9. conspiring with other States to disgrace Republican Gov'.5 in the eyes of mankind.
Objection, paper money good before the War.
Answ* i. not true in N. Eng? nor in V* where ex change rose to 60 per d nor in Mary? see Franklyn on paper money 2. confidence then not now. 3. principles of paper credit not then understood. Such w? not then nor now succeed in Great Britain &c.
282 THE WRITINGS OF [1786
To George Washington. Wash. Mss
TO GEORGE WASHINGTON. WASH. MSS.
RICHMOND, NovT i, 1786.
DEAR SIR, — I have been here too short a time as yet to have collected fully the politics of the Session. In general appearances are favorable. On the question of a paper emission the measure was this day rejected in emphatic terms by a majority of 84 vs. 17. The Affair of the Mississippi is but imperfectly known. I find that its influence on the federal spirit will not be less than was apprehended. The Western members will not be long silent on the subject. I inculcate a hope that the views of Congress may yet be changed and that it would be rash to suffer the alarm to inter fere with the policy of amending the Confederacy. The sense of the House has not yet been tried on the latter point. The Report from the Deputies to Annapolis lies on the Table, and I hope will be called for before the business of the Mississippi begins to ferment. Mr. Henry has signified his wish not to be reelected, but will not be in the Assembly. The Attorney & R. H. Lee are in nomination for his suc cessor. The former will probably be appointed, in which case the contest for that vacancy will lie be tween Col. Innes & Mr. Marshal. The nominations for Cong? are as usual numerous. There being no Senate yet it is uncertain when any of these appoint ments will take place.
With the sincerest affection & the highest esteem I am Dear Sir
Yf Obed< & humble ServF
i y86] JAMES MADISON. 283
TO GEORGE WASHINGTON. WASH. MSS.
RICHM?, Novr 8l.h, 1786.
DEAR SIR, — I am just honoured with your favor of the 5^ inst : The intelligence from Gen! Knox J is gloomy indeed, but is less so than the colours in which I had it thro' another channel. If the lessons which it inculcates should not work the proper impressions on the American public, it will be a proof that our case is desperate. Judging from the present temper and apparent views of our Assembly, I have some ground for leaning to the side of Hope. The vote against paper money has been followed by two others of great importance. By .one of them petitions for applying a scale of depreciation to the Military certificates was unanimously rejected. By the other the expediency of complying with the Recommendation from Anna polis in favour of a general revision of the federal system was unanimously agreed to. A bill for the purpose is now depending and in a form which attests the most federal spirit. As no opposition has been yet made and it is ready for the third reading, I ex pect it will soon be before the public. It has been thought advisable to give this subject a very solemn dress, and all the weight that could be derived from a single State. This idea will be pursued in the selec tion of characters to represent Virg* in the federal convention. You will infer our earnestness on this point from the liberty which will be used of placing your name at the head of them. How far this liberty
1 Respecting Shay's Rebellion.
284 THE WRITINGS OF [1786
may correspond with the ideas by which you ought to be governed will be best decided when it must ulti mately be decided. In every event it will assist powerfully in marking the zeal of our Legislature, and its opinion of the magnitude of the occasion. Mr. Randolph has been elected successor to Mr. Henry. He had 73 votes, Col. Bland 28, & R. H. Lee 22. The delegation to Congress drops Col. H. Lee, a circumstance which gives much pain to those who attend to the mortification in which it involves a man of sensibility. I am yet to learn the ground of the extensive disapprobation which has shewn itself. I am Dear Sir most respectfully & affectly
Yr Obe# & hble Serv<
TO HENRY LEE.1 MAD. MSS.
(Copy.)
RICHMOND Nov. gth 1786.
DEAR SIR, — The last mail went out at a time when
I was so engaged that I could not drop a line to you
—the task of first conveying to you the result of the
elections for Congress here has therefore probably
1 " ALEX? 20* Dec: 86
" MY DEAR SIR, — After the notification of my disgrace which reached me about the 2ol.h Nov. I hastened from N York & pressed forward to my home. Every difficulty of weather and roads opposed my progress and retarded me ef fectually, for it took us three weeks to reach this place which I had reckoned on accomplishing in twelve days. At length we arrived on the banks of pato- mac, and thro our avidity to embrace our friends, were on the point of destruc tion for some hours, by rashly adventuring to cross in the night, thro' bodies of floating ice. But providence, kinder to me than my beloved country rescued my family & myself, with some detriment of sense but no injury to my reputa tion — striking difference to be sure, and a theme for unceasing admiration of the Supreme benevolence on my part. This subject always disturbs me & excites
1786] JAMES MADISON. 285
been performed by some of your other friends — The superiority which your reflection and firmness will maintain over the vicissitudes incident to public life, forbids any suggestions which may be calculated to abate a sensibility with regard to them — I will only assure you that the indelicacy of the situation in which your country has placed you is severely felt by those whose esteem you would most value.
The enclosed paper contains all the Legislative information worth giving you — Present my respectful compliments to Mr.s Lee, and assure yourself of my sincerest wishes for your happiness—
Yrs Affy
Js. MADISON J? To the
Honble Henry Lee New York
my resentment. But cruel & ungrateful as I estimate the treatment I have re ceived from the assembly, I am frank to declare to you that the opinion I had formed of your dereliction of the friendship which existed between us rendered my affection doubly severe. In all nations precedents are to be found demon strative of the caprice & indelicacy of public bodys, therefore being not alone I could have procured repose to my feelings that all who knew me, would attrib ute my dismission to the proper cause.
" Your abandonment of a man who loved your character to excess & who es teemed your friendship among the first blessings of his life connected with the circumstance of your election to the office from which he was dismissed, to gether with many other considerations which are unnecessary to repeat wounded me deeply, & has given me many melancholy hours. Your letter of the iil.h af fords me some relief, & as it explains your intentions which before were subject to conjecture, strengthens my hope that you regard me as I have esteemed you, & that no difference in political sentiments ever has or ever can cool the affec tion which commenced in our youth, and till very lately has existed in full vigor. It is my wish that we may ever be united, & I believe you cannot question my sentiments, especially, when it relates to you." — Henry Lee to Madison, Mad. MSS. Lee was soon restored to favor in the State. Madison wrote to him again November 23"? .
286 THE WRITINGS OF [1786
TO JAMES MADISON. MAD. MSS.
RICHM?, NovT 16, 1786.
HON? SIR, — Mr. Anderson in answer to your en quiries tells me that you shall have goods at 87^ per G and that he will take Tob? for his brother if it be ready by the ioth of next month.
The H. of Delegates have done little since my last, and what was then done is still ineffectual for want of a Senate. A proposition for stopping the receipt of indents was made, and met with so little countenance that it was withdrawn. They will continue to be re ceivable as far as the law now permits, and those who have them not would do well to provide them. A bill is depending which makes Tob? receivable in lieu of the specie part of the current tax, according to its value at the different Warehouses. Whether it will pass or not is uncertain. I think it most probable that it will pass. Nothing has yet been done as to the certificate tax. I have sent Mr. R. Taylor his French Diet? by Mr Pannel, its price was 4^. With best regards to the family I remain
Yr dutiful Son
I have a letter from Mr. J. Smith giving me the first information that J. W. & J. M. are not to return to the Academy, and asking for the balance. I hope my brother F. has taken steps for remitting his.
To Henry Lee
TO HENRY LEE. (Copy)
RICHMOND, Nov. 23"? 1786.
DEAR SIR, — I have received your favor of the nth Instant. — Having never felt an intermission of my
1 7 86] JAMES MADISON. 287
regard for you I cannot be insensible either to the friendship which it speaks on your part or the failure of it, which it supposes on mine — That the latter sen timent should have resulted from a communication which could have no motive but one that ought to have prevented such a consequence, may well fill me with surprise — To the former, as well as to my own feelings, I owe an explanation which might perhaps be put into a more striking dress, if I were less unused to that mode of justifying my friendships — I observe in the first place, that I was not fully aware of the ex tent to which the event shewed that prejudices had been diffused against you — and that my intimations on that head were meant only to break the force of a disappointment which might fall upon you — This mis calculation of danger was also more natural as I had taken it for granted that one of the gentlemen elected would have been withheld or withdrawn from the nomination — 2d. that my own nomination was not suffered to be a bar to any steps in your behalf, which the occasion seemed to call for, and propriety seemed to admit — That it was properly a bar to some steps which in other circumstances might have been taken will be felt by every man who shuns the imputation of arrogantly presuming on his own appointment— and still more arrogantly seeking to annex to it, that of others with whom he chuses to be associated— Whenever indeed an assent to my own nomination to office, shall proceed from no other motive but that of " supporting the temporary wishes of myself," a pos sibility only of its interference with the consideration
288 THE WRITINGS OF [1786
of private friendship, shall not fail to recall it — As long as I continue to be carried into public service by motives more consonant to my professions, a presiwnp- tion at least of such an interference will be held a necessary apology to myself for yielding to that con sideration — What share the affair of the Mississippi had in the prejudices raised against you I am not able to say exactly — As far as I could learn the subject was little talked of previous to the election, and I believe your opinions known to but few — As I perceive your suspicions strongly connect this cause with the injury you have sustained, I feel a satisfaction in declaring that in the instances which came within my knowledge, I made it a point to urge the fact that you had invari ably obeyed your instructions — that any further in structions therefore might be safely confided to you, and that it would be cruel to sacrifice to possible dangers the feelings of a public servant, who was charged with no breach of duty whatever, and who in other respects had gained distinguished honor to him self and to his country—
In stating these facts I discharge a debt due to truth, to candour, and to the friendship which has subsisted between us — The full approbation which my own mind gives to the part taken by me, leaves nothing to be added, but a return of my wishes for your health and happiness- Adieu, sincerely yrs
Y Madison Jr
Y MADISON JR Henry Lee Jun. Esq. Alexandria
1786] JAMES MADISON. 289
TO JAMES MADISON. MAD. MSS.
Nov. 24. 1786.
HOND SIR, — The H. of D. have just past a bill making Tob? receivable in the tax at the market price at the several Warehouses to be fixt by the Executive. There is a proviso that the highest price shall not ex ceed 28^. An equality of price throughout was con tended for which I disapproved i. because I think it would have been unjust. 2 because the bill could not have been carried in that form. I was not anxious for its success in any form, but acquiesced in it as it stands as the people may consider it in the light of an easement, and as it may prevent some worse project in the Assembly. I have in my hands about 300 doll" in indents the property of a friend in Philad* which may be applied to your taxes at the market value if you chuse to take them. A call of the House stops me.
TO THOMAS JEFFERSON. MAD. MSS.
RICHM? Decr 4, 1786.
DEAR SIR, — Your last favor which was of the 25* of April, has already been acknowledged. My last inclosing a letter from Mr.s Carr, was dated a few days ago only. It was put into the hands of Mos^ Chevalier who has gone to N. York, whither I shall forward this to his care. He is to embark in the packet which will sail on the i5-h inst : The recom mendation from the meeting at Annapolis of a pleni potentiary Convention in Philad* in May next has been well rece? by the Assembly here. Indeed
VOL. II. — IQ
29o THE WRITINGS OF [1786
the evidence of dangerous defects in the confedera tion has at length proselyted the most obstinate ad versaries to a reform. The unanimous sanction given by the Assembly to the inclosed compliance 1 with the Recommendation marks sufficiently the rev olution of sentiment which the experience of one year has effected in this Country. The deputies are not yet appointed. It is expected that Gen! Washington, the present Govf E. Randolph, Esqr & the late one M! Henry, will be of the number.2
The project for bartering the Missipi to Spain was brought before the Assembly after the preceding measure had been adopted. The report of it having reached the ears of the Western Representatives, as many of them as were on the spot, backed by a num ber of the late officers, presented a memorial, full of consternation & complaint ; in consequence of which some very pointed resolutions by way of instruction to the Delegates in Cong5 were unanimously entered into by the House of Delegates. They are now be-
1 " Resolved unanimously, That an act ought to pass, in conformity to the re port of the Commissioners assembled at Annapolis on the I4th of September last, for appointing Commissioners on the part of this State, to meet Commis sioners on the part of the other States, in Convention at Philadelphia, on the second Monday in May next, with powers to devise such further provision as shall appear to them necessary to render the constitution of the federal govern ment adequate to the exigencies of the Union ; and to report such an act for that purpose to the United States in Congress assembled, as when agreed to by them, and afterwards confirmed by the Legislature of every State, will effect ually provide for the same."
The resolution was written by Madison. The copy enclosed was contained in a newspaper clipping.
2 Henry refused to serve. The full Virginia delegation consisted of Madison, Wythe, Randolph, Mason, Blair and McClurg.
1786] JAMES MADISON. 291
fore the Senate who will no doubt be also unanimous in their Concurrence.
The question of paper money was among the first with which the Session opened. It was introduced by petitions from two Counties. The discussion was faintly supported by a few obscure patrons of the measure, and on the vote it was thrown out by 85 vs 1 7. A petition for paying off the public securities according to a scale of their current prices, was unani- mously rejected.
The consideration of the Revised Code has been resumed & prosecuted pretty far towards its conclu sion. I find however that it will be impossible as well as unsafe to give an ultimate fiat to the System at this session. The expedient I have in view is to provide for a supplemental revision by a comtee who shall accommodate the bills skipped over, and the subsequent laws, to such part of the code as has been adopted, suspending the operation of the latter for one year longer. Such a work is rendered indis pensable by the alterations made in some of the bills in their passage, by the change of circumstances which call for corresponding changes in sundry bills which have been laid by, and by the incoherence be tween the whole code & the laws in force of poste rior date to the code. This business has consumed a great deal of the time of two Sessions, and has given infinite trouble to some of us. We have never been without opponents who contest at least every innovation inch by inch. The bill proportioning crimes & punishments on which we were wrecked
292 THE WRITINGS OF [1786
last year, has after undergoing a number of altera tions, got thro' a Committee of the whole ; but it has not yet been reported to the House, where it will meet with the most vigorous attack. I think the chance is rather against its final passage in that branch of the Assembly, and if it should not miscarry there, it will have another gauntlet to run through the Senate.
The bill on the subject of Education which could not safely be brought into discussion at all last year, has undergone a pretty indulgent consideration this. In order to obviate the objection from the inability of the Country to bear the expence, it was proposed that it should be passed into a law, but its operation suspended for three or four years. Even in this form however there would be hazard in pushing it to a final question, and I begin to think it will be best to let it lie over for the supplemental Re- visors, who may perhaps be able to put it into some shape that will lessen the objection of ex- pence. I should have no hesitation at this policy if I saw a chance of getting a Committee equal to the work of compleating the Revision. Mf Pen- dleton is too far gone to take any part in it. Mr. Wythe I suppose will not decline any duty which may be imposed on him, but it seems almost cruel to tax his patriotic zeal any farther. Mr Blair is the only remaining character in which full confi dence could be placed.
The delay in the administration of Justice from the accumulation of business in the Gen1 Court, and de-
1786] JAMES MADISON. 293
spair of obtaining a reform according to the Assize plan, have led me to give up this plan in favor of district Courts ; which differ from the former in being clothed with all the powers of the Gen! Court within their respective districts. The bill on the latter plan will be reported in a few days and will probably tho' not certainly be adopted.
The fruits of the impolitic measures taken at the last Session with regard to taxes are bitterly tasted now. Our Treasury is empty, no supplies have gone to the federal treasury, and our internal embarrass ments torment us exceedingly. The present Assembly have good dispositions on the subject, but some time will elapse before any of their arrangements can be productive. In one instance only the general prin ciples of finance have been departed from. The specie part of the tax under collection is made payable in Tob° This indulgence to the people as it is called & considered was so warmly wished for out of doors, and so strenuously pressed within that it could not be rejected without danger of exciting some worse pro ject of a popular cast. As Tob° alone is made corn- mutable, there is reason to hope the public treasury will suffer little if at all. It may possibly gain.
The Repeal of the port bill has not yet been at tempted. Col. Mason has been waited for as the hero of the attack. As it is become uncertain whether he will be down at all, the question will probably be brought forward in a few days. The repeal were he present would be morally certain. Under the disad vantage of his absence it is more than probable. The
294 THE WRITINGS OF [1786
question of British debts has also awaited his patron age. I am unable to say what the present temper is on that subject, nothing having passed that could make trial of it. The repeated disappointments I have sus tained in efforts in favor of the Treaty make me ex tremely averse to take the lead in the business again. The public appointm1.5 have been disposed of as fol lows : The contest for the chair lay between Col. Bland & M5 Prentis. The latter prevailed by a majority of near 20 votes. Mr Harrison the late Speaker lost his election in Surry which he repre sented last year ; and since has been equally unsuc cessful in his pristine County Charles City where he made a second experiment. In the choice of a Gov ernor Mf E. Randolph had a considerable majority of the whole on the first ballot. His competitors were Col. Bland & R. H. Lee, each of whom had be tween 20 & 30 votes. The delegation to Cong? con tained under the first choice Grayson, Carrington, R. H. Lee, Mr. Jones & myself. Col. H. Lee of the last delegation was dropt. The causes were differ ent I believe & not very accurately known to me. One of them is said to have been his supposed heter odoxy touching the Missipp.' Mr Jones has since declined his appointing & Col. Lee has been rein stated by an almost unanimous vote. A vacancy in the Council produced by the Resignation of Mr. Roane is filled by Mr. Boiling Starke. Cyrus Griffin was a candidate but was left considerably in the rear. The Attorney Generalship has been conferred on Col. Innes. Mi" Marshall had a handsome vote.
1786] JAMES MADISON. 295
Our summer & fall have been wet beyond all im agination in some places, and much so everywhere. The crops of corn are in general plentiful. The price up the country will not exceed Ss or IDS. In this district it is scarcest & dearest, being already as high as 1 2s or 15^. The crop of Tob° will fall short con siderably it is calculated of the last year's. The highest & lowest prices in the Country of the new crop are 25^ & 2os. A rise is confidently expected.
My next will be from N. Y. whither I shall set out as soon as the principal business of the Session is over. Till my arrival there I postpone communica tions relative to our national affairs, which I shall then be able to make on better grounds, as well as some circumstances relative to the affairs of this State, which the hurry of the present opportunity restrains me from entering into.
Adieu.
To General Washington. Mad. Mss
TO GENERAL WASHINGTON. MAD. MSS.
RICHMOND, DecT 7, 1786
DEAR SIR, — Notwithstanding the communications in your favor of the i8th Ult°, which has remained till now unacknowledged, it was the opinion of every judicious friend whom I consulted, that your name could not be spared from the Deputation to the Meet ing in May at Philadelphia. It was supposed in the first place, that the peculiarity of the Mission, and its acknowledged pre-eminence over every other public object, may possibly reconcile your undertaking it,
296 THE WRITINGS OF [1786
with the respect which is justly due, & which you wish to pay, to the late officers of the Army ; and in the second place, that although you should find that or any other consideration an obstacle to your attend ance on the service, the advantage of having your name in the front of the appointment, as a mark of the earnestness of Virga, and an invitation to the most select characters from every part of the Confederacy, ought at all events to be made use of. In these senti ments I own I fully concurred, and flatter myself that they will at least apologize for my departure from those held out in your letter. I even flatter myself that they will merit a serious consideration with your self, whether the difficulties which you enumerate ought not to give way to them.
The affair of the Mississippi which was brought before the Assembly in a long Memorial from the Western members and some of the Officers, has undergone a full consideration of both Houses. The Resolutions printed in the papers were agreed to unanimously in the House of Delegates. In the Senate, I am told, the language was objected to by some members, as too pointed. They certainly ex press in substance the decided sense of the country at this time on the subject, and were offered in the place of some which went much farther, and which were in other respects exceptionable. I am entirely convinced, from what I observe here, that unless the project of Congress (for ceding to Spain the Missis sippi for 25 years) can be reversed, the hopes of carrying this State into a proper federal system will
1786] JAMES MADISON. 297
be demolished. Many of our most federal leading men are extremely soured with what has already passed. Mr. Henry, who has been hitherto the Champion of the federal cause has become a cold advocate, and in the event of an actual sacrifice of the Mississippi by Congress, will unquestionably go over to the opposite side. I have a letter from Col. Grayson of late date which tells me that nothing further has been done in Congress, and one from M* A. Clarke of New Jersey, which informs me that he expected every day, instructions from his Legislature for reversing the vote given by the Delegates of that State in favor of the project.
The temper of the Assembly at the beginning of the Session augured an escape from every measure this year not consonant to the proper principles of Legislation. I fear now that the conclusion will con tradict the promising outset. In admitting Tobacco for a commutable, we perhaps swerved a little from the line in which we set out. I acquiesced in the measure myself as a prudential compliance with the clamours within doors & without, and as a probable means of obviating more hurtful experiments. I find however now, that it either had no such tendency, or that schemes were in embryo which I was not aware of. A bill for establishing District Courts, has been clogged with a plan for installing all debts now due, so as to make them payable in three annual portions. What the fate of the experiment will be I know not. It seems pretty certain, that if it fails, the bill will fail with it. It is urged in support of the measure that it
298 THE WRITINGS OF [1786
will be favorable to debtors and creditors both, and that, without it the bill for accelerating justice would ruin the former, and endanger the public repose. The objections are so numerous, and of such a nature, that I shall myself give up the bill rather than pay such a price for it.
With unfeigned affection, &c.
TO JAMES MADISON. MAD. MSS.
RICHM? Dec1: i7'h 1786
HOND SIR, — Yours by Mr Porter has been handed to me. I have not had an opp? of enquir? of Mr Anderson concerning the person who is to receive Tob? for his brother. I mentioned before that the rate of indents here was about a dollar in the pound. Whether I can get the certificates for your taxes I cannot say, nor do I know the rate at which they pass. Mr Jones has returned hither & declines his app' to Cong5 Fresh butter will be very acceptable, the supply sent being already out. No other article of provisions is wanted, as we dine at a Tavern. I propose to go from Fred? to N. York in the Stage, & shall consequently take no horses with me. When I shall set out I can not decide, but expect to leave this before Xmas sometime. The representation of the State in Cong" during the winter will be so precarious that I shall be able to stay a day or two only in Orange.1 I have other reasons also of a public nature
1 " The truth is, we have not a government to wield and correct. . . . We have only four States now on the floor." — Carrington to Madison, from Con gress, December 18, 1786. Mad. MSS.
1 786] JAMES MADISON. 299,
for wishing to hasten my journey, and a private one arising from the probable increase of the cold in case of delay. Tell my brother Ambrose, I wish him to sound Mf Cowherd as to the possibility of his making a payment before the first of Jan? instead of the time fixed. I will abate a reasonable interest, and be obliged to him into the bargain. My affections to the family. Y? dutiful son
Y MADISON Jr.
I wish my cloathes so far as they may require little amendm*5 to be put in order before I get to Orange, that I may not be detained on that score.
TO JAMES MONROE. MAD. MSS.
RICHMD, Dec1. 2ist, 1786.
DEAR SIR, — Your favor of the i Gainst: came to hand too late the evening before last to be then an swered. The payment of the 100 d^s here was perfectly convenient, and I have put that sum into the hands of Mr Jones to be applied to the use which you have directed. This payment added to the 100 d's paid in Philad? leaves still a balance of 137^ according to my memoranda which is subject to your further orders. We hear nothing from any of the other States on the subject of the federal Convention. The ice seems to have intercepted totally the Northern communication for a considerable time past. The Assembly have been much occupied of late with the bill for district Courts. On the final question there was a majority of one ag5' it in fact, though on the count a mistake
3oo THE WRITINGS OF [1786
made the division equal & it fell to the Chair to decide who passed the bill. The real majority how ever were sensible of the mistake & refused to agree to the title, threatening a secession at the same time. The result was a compromise that the question sd be decided anew the next morning, when the bill was lost in a full house by a single voice. It is now pro posed to extend the Session of the Gen! Court so as to accelerate the business depending there. We hear that Maryland is much agitated on the score of paper money the H. of Delegates having decided in favour of an emission. Adieu. Yr.s Aff?
To George Washington. Mad. Mss
TO GEORGE WASHINGTON. MAD. MSS.
RICHMOND, Decr 24, 1786.
DEAR SIR, — Your favor of the i6th instant came to hand too late on thursday evening to be answered by the last mail. I have considered well the circum stances which it confidentially discloses, as well as those contained in your preceding favor.1 The diffi culties which they oppose to an acceptance of the appointment in which you are included can as little be denied, as they can fail to be regretted. But I
1 Washington declined re-election to the presidency of the Society of the Cincinnati, chiefly because he did not wish to participate in a contest over a proposed change in the plan of the society, which was to be discussed at the meeting to be held at Philadelphia in May. He gave, as his reasons for not attending, his occupations, his precarious health, and that he desired to live in retirement. To serve in the federal convention when the Cincinnati were in session might put him in a false position. He finally yielded, however, to the pleadings of his friends. Washington to Madison, December 16, 1786, Ford's Writings of Washington, II, q2, ct seq.
1786] JAMES MADISON. 301
still am inclined to think that the posture of our affairs, if it should continue, would prevent every criticism on the situation which the contemporary meetings would place you in ; and that at least a door could be kept open for your acceptance here after, in case the gathering clouds became so dark & menacing as to supersede every consideration but that of our national existence & safety. A suspence of your ultimate determination would be nowise in convenient in a public view, as the Executive are authorised to fill vacancies ; and can fill them at any time ; and, in any event, three out of seven deputies are authorized to represent the State. How far it may be admissible in another view, will depend per haps in some measure on the chance of your finally undertaking the service ; but principally on the corre spondence which is now passing on the subject between yourself and the Governor.
Your observations on Tobacco as a commutable in the taxes are certainly just & unanswerable. My ac quiescence in the measure was against every general principle which I have embraced, and was extorted by a fear that some greater evil under the name of relief to the people would be substituted. I am far from being sure however that I did right. The other evils contended for have indeed been as yet parried, but it is very questionable whether the concession in the affair of the Tob? had much hand in it. The original object was paper money. Petitions for gradu ating certificates succeeded. Next came instalments. And lastly a project for making property a tender for
302 THE WRITINGS OF [1786
debts at j- of its value. All these have been happily got rid of by very large majorities. But the positive efforts in favor of Justice have been less successful. A plan for reforming the administration in this branch accommodated more to the general opinion than the Assize plan got as far as the third reading, and was then lost by a single vote. The Senate would have passed it readily, and would have even added amend ments of the right complexion. I fear it will be some time before this necessary reform will again have a fair chance. Besides some other grounds of appre hension, it may well be supposed that the Bill which is to be printed for consideration of the public, will, instead of calling forth the sanction of the wise & virtuous, be a signal to interested men to redouble their efforts to get into the Legislature. The Revenue business is still unfinished. The present rage seems to be to draw all our income from trade. From the sample given of the temper of the House of Delegates on this subject, it is much to be feared that the duties will be augmented with so daring a hand, that we shall drive away our trade instead of making it tribu tary to our treasury. The only hope that can be in dulged is that of moderating the fury. The Port bill was defended against a repeal by about 70 votes against about 40. The revised code is not quite finished and must receive the last hand from a suc ceeding assembly. Several bills of consequence be ing rendered unfit to be passed in their present form by a change of circumstances since they were pre pared, necessarily require revision. Others as the
1787] JAMES MADISON. 303
Education bill &c are thought to be adapted only to a further degree of wealth and population. Others, as the Execution bill which subjects lands to debts, do not find yet an adequate patronage. Several bills also, and particularly the bill relating to crimes & punishments, have been rejected, and require recon sideration from another assembly. This last bill after being purged of its objectionable peculiarities, was thrown out on the third reading by a single vote. It will little elevate your idea of our Senate to be told that they negatived the bill defining the privileges of ambassadors, on the principle, as I am told, that an alien ought not to be put on better ground than a citizen. British debts have not yet been men tioned, and probably will not, unless Congress say something on the matter before the adjournment. With every sentiment of esteem &c &c.
TO EDMUND PENDLETON. Mad. Mss.
RICHMOND, Jan? gth, 1787.
MY DEAR SIR, — Your favor of the 9^ ult, has been so long on hand unanswered that I can not now ac knowledge it without observing in the apology for the delay that I waited for some measures of which I wished to communicate the event. The district bill of which I formerly made mention, was finally thrown into a very curious situation, and lost by a single voice. I refer you for its history to Col. Pendleton, who was here at the time and is now with you. An attempt has been since made to render the General Court more
3o4 THE WRITINGS OF [1787
efficient by lengthening its terms, and transferring the criminal business to the Judges of the Admiralty. As most of the little motives which co-operated with a dis like to Justice, in defeating the District Bill happened to be in favour of the subsequent attempt, it went through the House of Delegates by a large Majority. The Senate have disappointed the majority infinitely in putting a negative on it, as we just learn that they have done, by a single voice. An amendment of the County Courts has also been lost, through a disagree ment of the two Houses on the subject. Our merit on the score of Justice has been entirely of the nega tive kind. It has been sufficient to reject violations of this cardinal virtue, but not to make any positive provisions in its behalf.
The revised code has not been so thoroughly passed as I hoped at the date of my last. The advance of the Session, the coldness of a great many, and the dis like of some to the subject, required that it should be pressed more gently than could be reconciled with a prosecution of the work to the end. I had long fore seen that a supplemental revision as well of some of the articles of the Code, as of the laws passed since it was digested, would become necessary, and had settled a plan for the purpose with myself. This plan was to suspend the laws adopted from the code, until the supplement could be prepared, and then to put the whole in force at once. Several circumstances satis fied me of late that if the work was put within the reach of the next assembly, there would be danger not only of its being left in a mutilated state, but of
1787] JAMES MADISON. 305
its being lost altogether. The observations in your favor above acknowledged, encouraged me to propose that the parts of the code adopted should take effect without waiting for the last hand to it. This idea has been pursued, and the bills passed at the last Session are to comence as then determined, those passed at the present being suspended until July next. I would myself have preferred a suspension of the former also till July, for the sake of a more thorough promulga tion, and of a cotemporary introduction of the laws many of which are connected together ; but the Senate thought otherwise, and in a ticklish stage of the Ses sion, the friends of the code in the H. of D. joined me in opinion that it would be well to create no un necessary delays or disagreements. I have strong apprehensions that the work may never be systemati cally perfected for the reasons which you deduce from our form of Government. Should a disposition how ever continue in the Legislature as favorable as it has been in some stages of the business, I think a succes sion of revisions, each growing shorter than the pre ceding, might ultimately bring a completion within the compass of a single Session. At all events, the invaluable acquisition of important bills prepared at leisure by skilful hands, is so sensibly impressed on thinking people by the crudeness and tedious discus sion of such as are generally introduced, that the ex- pence of a continued revision will be thought by all such to be judiciously laid out for this purpose alone. The great objection which I personally feel arises from the necessity we are under of imposing the weight of
VOL. II. — 20
306 THE WRITINGS OF [1787
these projects on those whose past services have so justly purchased an exemption from future labours. In your case the additional consideration of ill health, became almost an affair of Conscience, and I have been no otherwise able to stifle the remorse of having nominated you along with Mr Wythe and Mr Blair for reviewing the subject left unfinished, than by re flecting that your colleagues will feel every disposition to abridge your share of the burden, and in case of such an increase of your infirmity as to oblige you to renounce all share, that they are authorised to ap point to, I will not say toyf//, the vacancy. I flatter myself that you will be at least able to assist in gen eral consultations on the subject, and to adjust the bills unpassed to the changes which have taken place since they were prepared. On the most unfortunate suppositions my intentions will be sure to find in your benevolence a pardon for my error.
The Senate have saved our commerce from a dreadful blow which it would have sustained from a bill passed in the H. of D. imposing enormous duties, without waiting for the concurrence of the other States or even of Maryland. There is a rage at present for high duties, partly for the purpose of revenue, partly of forcing manufactures, which it is difficult to resist. It seems to be forgotten in the first case that in the arithmetic of the customs as Dean Swift observes 2 & 2 do not make four ; and in the second that man ufactures will come of themselves when we are ripe for them. A prevailing argument among others on the subject is that we ought not to be dependent on
1787] JAMES MADISON. 307
foreign nations for useful articles, as the event of a war may cut off all external supplies. This argument certainly loses its force when it is considered that in case of a war hereafter, we should stand on a very different ground from what we lately did. Neutral Nations, whose rights are becoming every day more & more extensive, would not now suffer themselves to be shut out from our ports, nor would the hostile Nation presume to attempt it. As far as relates to implements of war which are contraband, the argu ment for our fabrication of them is certainly good.
Our latest information from the Eastwl has not re moved our apprehensions of ominous events in that quarter. It is pretty certain that the seditious party has become formidable in the Gov^ and that they have opened a comunication with the viceroy of Canada. I am not enough acquainted with the proceedings of Congress to judge of some of the points, which you advert to. The regulations of their land office have appeared to me nearly in the light in which they do to you. I expect to set out in a few days for N. York, when I shall revive my claim to a correspond ence which formerly gave me so much pleasure and which will enable me perhaps to answer your queries. The end of my paper will excuse an abrupt but affect6 Adieu.
TO THOMAS JEFFERSON. MAD. MSS.
NEW YORK, Febv isth, 1787.
DEAR SIR, My last was from Richmond, of the 4l.h of December, and contained a sketch of our legislative
3o8 THE WRITINGS OF [1787
proceedings prior to that date. The principal pro ceedings of subsequent date relate as nearly as I can recollect Ist, to a rejection of the Bill on crimes & punishments, which after being altered so as to re move most of the objections as was thought, was lost by a single vote. The rage agst Horse stealers had a great influence on the fate of the bill. Our old bloody code is by this event fully restored, the prerogative of conditional pardon having been taken from the Ex ecutive by a judging of the Court of Appeals, and the temporary law granting it to them having expired and been left unrevived. I am not without hope that the rejected bill will find a more favorable disposition in the next Assembly. 2dly. To the bill for diffusing knowledge, it went through two readings by a small majority and was not pushed to a third one. The necessity of a systematic provision on the subject was admitted on all hands. The objections agst that par ticular provision were i. the expence, wch was alledged to exceed the ability of the people 2. the difficulty of executing it in the present sparse settlement of the Country. 3. the inequality of the districts as con tended by the Western members. The last objection is of little weight and might have been easily removed if it had been urged in an early stage of the discus sion. The bill now rests on the same footing with the other unpassed bills in the Revisal. 3dly. To the Revisal at large. It was found impossible to get thro' the system of the late Session, for several rea sons, i. the changes which have taken place since its compilement, in our affairs and our laws ; particu-
1787] JAMES MADISON. 309
larly those relating to our Courts, called for changes in some of the bills which could not be made with safety by the Legislature. 2. The pressure of other business which tho' of less importance in itself, yet was more interesting for the moment. 3. the alarm excited by an approach toward the Execution Bill, which subjects land to the payment of debts. This bill could not have been carried, was too important to be lost, and even too difficult to be amended without destroying its texture. 4. the danger of passing the Repealing Bill at the end of the Code, before the op eration of the various amendments, &c., made by the Assembly could be leisurely examined by competent Judges. Under these circumstances it was thought best to hand over the residue of the work to our suc cessors, and in order to have it made compleat, Mr. Pendleton, Mr. Wythe, & Blair, were app<! a Com mittee to amend the unpassed bills & also to prepare a supplemental revision of the laws which have been passed since the original work was executed. It be came a critical question with the friends of the Re- visal whether the parts of the Revisal actually passed shd be suspended in the mean time, or left to take their operation. The first plan was strongly recom mended by the advantage of giving effect to the sys tem at once, and by the inconveniency arising from the latter of leaving the old laws to a constructive re peal only. The latter notwithstanding was preferred as putting the adopted bills out of the reach of a suc ceeding Assembly, which might possibly be unfriendly to the system altogether. There was good reason to
3io THE WRITINGS OF [1787
suspect Mr. Henry who will certainly be then a mem ber. By suffering the bills which have passed to take effect in the mean time it will be extremely difficult to get rid of them. 4thly. Religion. The Act incor porating the protestant Episcopal Church excited the most pointed opposition from the other Sects. They even pushed their attacks ags.1 the reservation of the Glebes &c., to the church exclusively. The latter cir cumstance involved the Legislature in some embar rassment. The result was a repeal of the Act, with a saving of the property. 5th. The district Courts. After a great struggle they were lost in the House of Delegates by a single voice. 6thly. taxes ; the at tempts to reduce former taxes were baffled, and sundry new taxes added, on lawyers, ^ of their fees, on Clks of Courts, \ of do., on doctr.s a small tax, a tax on houses in towns so as to level their burden with that of real estate in the country, very heavy taxes on riding carriages, &c. Besides these an additional duty of 2 per Cr. ad valorem on all merchandizes im ported in vessels of nations not in treaty with the U. S. an add! duty of 4? on every gallon of wine except French wines and of 2? on every gallon of distilled Spirits except French brandies which are made duty free. The exceptions in favor of France were the effect of the sentiments & regulations communicated to you by MT Calonne. A printed copy of the com munication was recd the last day of the session in a newspaper from N. York, and made a warm impres sion on the Assembly. Some of the taxes are liable to objections, and were much complained of. With
1787] JAMES MADISON. 311
the additional duties on trade they will considerably enhance our revenue. I should have mentioned a duty of 6s. per Hh? on Tob° for complying with a special requisition of Cong5 for supporting the corps of men raised for the public security. 7th. the Mis sissippi. At the date of my last the House of Delegates only had entered into Resolutions ags* a surrender of the right of navigating it. The Senate shortly after concurred. The States South of Virgf still adhere as far as I can learn to the same ideas as have governed Virginia. N. Jersey one of the States in Congress which was on the opposite side has now instructed her Delegates ag5t surrendering to Spain the navigation of the River even for a limited time. And Pen? it is expected will do the same. I am told that Mr. Jay has not ventured to proceed in his project^ and I suppose will not now do it1. 8th. the Conven tion for amending the federal Constitution. At the date of my last Virg? had passed an Act for appoint ing deputies. The deputation consists of Gen! Wash ington Mi" Henry, late Govr, Mf Randolph present Gov^ Mf Blair M? Wythe Col. Mason & Js M. N. Carol? has also made an app*, including her present & late Gov*. S. C. it is expected by her delegates in Cong5, will not fail to follow these examples. Mary land has determined I just hear to app* but has not yet agreed on her deputies. Delaware, Penna, & N. Jy, have made respectable appointmts. N. York has not yet decided on the point. Her Assembly has just re jected the impost which has an unpropitious aspect.
1 Cypher.
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It is not clear however that she may not yet accede to the other measure. Connecticut has a great aver sion to Conventions, and is otherwise habitually dis inclined to abridge her State prerogatives. Her concurrence nevertheless is not despaired of. Mass*.5 it is said will concur, though hitherto not well in clined. N. Hampshire will probably do as she does. Rhode Island can be relied on for nothing that is good. On all great points she must sooner or later bend to Mass'.8 and Connecticut.
Having but just come to this place I do not under take to give you any general view of American affairs, or of the particular State of things in Massts. The omission is probably of little consequence as informa tion of this sort must fall within your correspondence with the office of foreign affairs. I shall not however plead this consideration in a future letter, when I hope to be more able to write fully.
M* Fitzhugh has paid into my hands for your use ,£58-6-8 Virga Currency in discharge of 1000 livres advanced to him in France. He was anxious to have settled it according to the actual exchange instead of the legal one of 33! on the British stand ard, and even proposed the addition of Interest. I did not hesitate to conclude that I should fulfill your intentions by rejecting both. I have sent to Mrs Carr ^25 for the use of your nephews as you directed. The balance is in my hands subject to your orders tho' I shall venture to apply it in the same way if I sh? be apprised of its being necessary to prevent in terruption to the studies of the Young gentlemen.
1787] JAMES MADISON. 313
My last informed you of the progress &c. of Master Peter. I have since rec*? from the preset of Hampden Sydny a letter containing the following paragraph " Dabney Carr is a boy of very promising genius & very diligent application. He conducts himself with a good deal of prudence, & I hope will answer the ex pectations of his friends. I was afraid at first that he was dull or indolent from his appearance, but I find myself agreeably disappointed. His principal study at present is the Latin language, but he is also obliged to pay some attention to his native tongue. I remain Df Sir Yr AfTecte friend
TO GEORGE WASHINGTON. WASH. MSS.
NEW YORK Feby 21, 1787.
DEAR SIR, — Some little time before my arrival here a quorum of the States was made up and Gen! Sinclair put in the Chair. We have at present nine States on the ground, but shall lose South Carolina to-day. Other States are daily expected. What business of moment may be done by the present or a fuller meeting is un certain.1 The objects now depending and most im mediately in prospect are i. The Treaty of peace. The Secretary of foreign Affairs has very ably re ported a view of the infractions on both sides, his
1 " Mr. James Madison, a delegate from Virginia, produced his credentials, by which it appears, that on the 7th of November last, he was appointed a dele gate to serve in Congress until the first Monday in November, 1787." — Jour nals of Congress, February 12, 1787, vol. xii., p. 9. (Ed. 1801.)
3i4 THE WRITINGS OF [1787
exposition of the contested articles, and the steps pro per to be taken by Congress. I find what I was not be fore apprized of that more than one infraction on our part, preceded even the violation on the other side in the instance of the Negroes. Some of the reasoning on the subject of the debts would be rather grating to Virginia. A full compliance with the Treaty ac cording to judicial constructions, and as a ground for insisting on a reciprocal compliance, is the proposi tion in which the Report terminates. 2. a Recom mendation of the proposed Convention in May. Cong- have been much divided and embarrassed on the question whether their taking an interest in the measure would impede or promote it. On one side it has been urged that some of the backward States have scruples ag5.' acceding to it without some consti tutional sanction ; on the other that other States will consider any interference of Cong* as proceeding from the same views which have hitherto excited their jealousies. A vote of the Legislature here en tered into yesterday will give some relief in the case. They have instructed their delegates in Cong5 to move for the recomendation in question. The vote was carried by a majority of one only in the Senate, and there is room to suspect that the minority were actuated by a dislike to the substance rather than by
' any objections ags.c the form of the business. A large Majority in the other branch a few days ago put a definitive veto on the Impost. It -would seem as if the politics of this State are directed by individual interests and plans, which might be incommoded by
I
1787] JAMES MADISON. 315
the controul of an efficient federal Government. The four States North of it are still to make their decision on 'the subject of the Convention. I am told by one of the Mass5.1 delegates that the Legislature of that State which is now sitting, will certainly accede and appoint deputies if Cong? declare their approbation of the measure. I have similar information that Con necticut will probably come in, though it is said that the interference of Congress will rather have a con trary tendency there. It is expected that S. Carolina will not fail to adopt the plan, and that Georgia is equally well disposed. All the intermediate States between the former and N. York have already ap pointed deputies, except Maryland which it is said means to do it, and has entered into some vote which declares as much. Nothing has yet been done by the New Cong5, with regard to the Mississippi. Our latest information from Mass1.5 gives hopes that the meeting or as the Legislature there now style it, the Rebellion is nearly extinct. If the measures however on foot for disarming and disfranchising those con cerned in it should be carried into effect, a new crisis may be brought on. I have not been here long enough to gather the general sentiments of leading characters touching our affairs & prospects. I am inclined to hope that they will gradually be concen tered in the plan of a thorough reform of the existing system. Those who may lean towards a Monarchial Gov', and who I suspect are swayed by very indi gested ideas, will of course abandon an unattainable object whenever a prospect opens of rendering the
316 THE WRITINGS OF [1787
Republican form competent to its purposes. Those who remain attached to the latter form must soon perceive that it cannot be preserved at all under any modification which does not redress the ills experi enced from our present establishments. Virginia is the only State which has made any provision for the late moderate but essential requisition of Cong!, and her provision is a partial one only.
This would have been of earlier date, but I have waited for more interesting subjects for it. I shall do myself the pleasure of repeating the liberty of dropping you a few lines as often as proper occasions arise, on no other condition however than your waiv ing the trouble of regular answers or acknowledge ments on your part.
With the greatest respect and Affection I am DrSir
Y1: Obed1 friend & Serv'.
To Edmund Pendleton. Mad. Mss
TO EDMUND PENDLETON. MAD. MSS.
NEW YORK, Feby 24, 1787
DEAR SIR, — If the contents of the Newspapers of this place find their way into the gazettes of Rich mond you will have learnt that the expedition of Gen! Lincoln against the insurgents has effectually dis persed the main body of them. It appears however that there are still some detachments which remain to be subdued, & that the Government of Massts con sider very strong precautions as necessary agst farther eruptions. The principal incendiaries have unluckily
1787] JAMES MADISON. 317
made off. By some it is said that they are gone to Canada ; by others that they have taken shelter in Vermont, and by some that they are opening a com munication with the upper parts of this State. The latter suggestion has probably some color, as the Gov ernor here has thought proper to offer rewards for them after the example of Govr Bowdoin. We have no interesting information from Europe.
The only step of moment taken by Cong?, since my arrival has been a recommendation of the proposed meeting in May for revising the federal articles. Some of the States, considering this measure as an ex tra-constitutional one, had scruples ags.c concurring in it without some regular sanction. By others it was thought best that Cong? should remain neutral in the business, as the best antidote for the jealousy of an ambitious desire in them to get more power into their hands. This suspense was at length removed by an instruction from this State to its delegates to urge a Recommendatory Resolution in Congress which ac cordingly passed a few days ago.1 Notwithstanding this instruction from N. York, there is room to sus pect her disposition not to be very federal, a large majority of her House of delegates having very lately entered into a definite refusal of the impost, and the
1 February 21, " Congress having had under consideration the letter of John Dickinson, Esq ; chairman of the commissioners, who assembled at Annapolis, during the last year ; also the proceedings of the said commissioners, and en tirely coinciding with them, as to the inefficiency of the federal government, and the necessity of devising such farther provisions as shall render the same adequate to the exigencies of the union, do strongly recommend to the different legislatures to send forward delegates, to meet the proposed convention, on the second Monday in May next, at the city of Philadelphia." On motion of the
3i8 THE WRITINGS OF [1787
instruction itself having passed in the Senate by a cast ing vote only. In consequence of the sanction given by Cong5, Mass1.5 it is said will send deputies to the Convention, and her example will have great weight with the other N. England States. The States from N. Ca. to N. Jersey inclusive have made their appoint ments, except Mary?, who has as yet only determined that she will make them. The gentlemen here from S. C* & Georgia, expect that those States will follow the general example. Upon the whole therefore it seems probable that a meeting will take place, and that it will be a pretty full one. What the issue of it will be is among the other arcana of futurity and nearly as inscrutable as any of them. In general I find men of reflection much less sanguine as to the new than despondent as to the present System. Indeed the Present System neither has nor deserves advocates ; and if some very strong props are not applied, will quickly tumble to the ground. No money is paid into the public Treasury ; no respect is paid to the federal authority. Not a single State complies with the re quisitions ; several pass them over in silence, and some positively reject them. The payments ever since the peace have been decreasing, and of late fall short even
Massachusetts delegates the following was substituted : ' ' Resolved, That in the opinion of Congress, it is expedient, that on the second Monday in May next, a convention of delegates, who shall have been appointed by the several states, be held at Philadelphia, for the sole and express purpose of revising the articles of confederation, and reporting to Congress and the several legislatures, such al terations and provisions therein, as shall, when agreed to in Congress, and con firmed by the States, render the federal constitution adequate to the exigencies of Government, and the preservation of the Union." — Journals of Congress, xii., 13, 14. (Ed. 1801.)
1787] JAMES MADISON. 319
of the pittance necessary for the Civil list of the Con federacy. It is not possible that a government can last long under these circumstances. If the approach ing convention should not agree on some remedy, I am persuaded that some very different arrangement will ensue. The late turbulent scenes in Mass1.8 & in famous ones in Rhode Island, have done inexpressible injury to the republican character in that part of the U. States ; and a propensity towards Monarchy is said to have been produced by it in some leading minds.1 The bulk of the people will probably prefer the lesser evil of a partition of the Union into three more prac ticable and energetic Governments. The latter idea I find after long confinement to individual speculations & private circles, is beginning to shew itself in the Newspapers. But tho' it is a lesser evil, it is so great a one that I hope the danger of it will rouse all
1 " Extract of a letter from a Gentleman in Boston of the 4^ March 1787 to R. King
" has come back from Virginia with news that the commissioners on the
part of New York alarmed the Virginia Delegates, with an account that the Commissioners on the part of Massachusetts were for a monarchy ; that those Delegates wrote their Legislature of it, who shut their Galeries and made a most serious Business of the matter — pray let me know by the next post what you hear of this, and what has been said —
"The Commissioners alluded to, are those who settled the late Territorial Controversy between Massachusetts & New York —
" Mr. King presents his compliments to Col. Grayson & M* Madison, and for the satisfaction of his friend, who wrote the Letter, from which the above is an Extract, begs to be informed whether they have any knowledge of a letter written by the Delegates of Virginia or any of them, containing the information suggested in the Extract, or of any proceedings of the Virginia Legislature of the nature alleged.
" Monday morn?
" ii Mar. 1787." Mad. MSS.
320 THE WRITINGS OF [1787
the real friends of the Revolution to exert themselves in favor of such an organization of the confederacy as will perpetuate the Union, and redeem the honor of the Republican name.
I shall follow this introductory letter with a few lines from time to time as a proper subject for them occurs. The only stipulation I expect on your part is that you will not consider them as claiming either answers or acknowledgements ; and that you will be lieve me to be, with sincerest wishes for your health and every other happiness,
Y5 affect6 friend & serv!
TO GEORGE WASHINGTON. WASH. MSS.
NEW YORK March 18* 1787.
DEAR SIR, — Recollecting to have heard you men tion a plan formed by the Empress of Russia for a comparative view of the aborigines of the New Conti nent, and of the N. E. parts of the old, through the medium of their respective tongues, and that her wishes had been conveyed to you for your aid in ob taining the American vocabularies, I have availed my self of an opportunity offered by the kindness of Mi" Hawkins, of taking a copy of such a sample of the Cherokee & Choctaw dialects as his late commission to treat with them enabled him to obtain, and do my self the honor now of inclosing it. I do not know how far the list of words made use of by Mr Hawkins may correspond with the standard of the Empress, nor how far nations so remote as the Cherokees &
1787] , JAMES MADISON. 321
Choctaws from the N. W. shores of America, may fall within the scheme of comparison. I presume how ever that a great proportion at least of the words will answer, and that the laudable curiosity which sug gests investigations of this sort will be pleased with every enlargement of the field for indulging it. Not finding it convenient to retain a copy of the inclosed as I wished to do for myself, I must ask the favor of your amanuensis to perform that task for me.
The appointments for the Convention go on very successfully. Since the date of my last, Georgia, S. Carolina, N. York, Massts, & N. Hampshire have come into the measure. Georgia & N. Hampshire have constituted their Delegates in Cong? their rep resentatives in Convention. S. Carolina has appointed Mr J. Rutledge, Gen! Pinkney, Mr Laurens, Major Butler and Mr Cha? Pinkney, late member of Cong?. The deputies of Mass'.5 are Mr Dana, Mr King, Mf Ghoram, Mr Gerry, Mr Strong. I am told that a Resolution of the Legislature of this State which originated with their Senate lays its deputies under the fetter of not departing from the 5*.h of the present articles of Confederation. As this Resolution passed before the Recommendatory act of Congress was known, it is conjectured that it may be rescinded ; but its having passed at all denotes a much great[er] prevalence of political jealousy in that quarter than had been imagined. The deputation of N. York con sists of Col. Hamilton, Judge Yates, and a Mr Lan sing. The two last are said to be pretty much linked to the anti federal party here, and are likely of course
VOL. II. — 21.
322 THE WRITINGS OF [1787
to be a clog on their colleague. It is not doubted now that Connecticut & R. Island will avoid the singularity of being unrepresented in the Convention.
The thinness of Cong5 has been an obstacle to all the important business before them. At present there are nine States on the ground but this number, though adequate to every object when unanimous, makes a slow progress in business that requires seven States only. And I see little prospect of the number being increased.
By our latest and most authentic information from Mass1.5, it would seem that a calm has been restored by the expedition of Gen! Lincoln. The precautions taking by the State however betray a great distrust of its continuance. Besides their act disqualifying the malcontents from voting in the election of members
o
for the Legislature &c. another has been passed for raising a corps of 1000 or 1500 men, and appropriat ing the choicest revenues of the Country to its support. It is said that at least half of the insurgents decline accepting the terms annexed to the amnesty, and that this defiance of the law ag5t Treason, is countenanced not only by the impunity with which they shew them selves on public occasions, even with insolent badges of their character, but by marks of popular favor con ferred on them in various instances in the election to local offices.
A proposition has been introduced & discussed in the Legislature of this State for relinquishing its claim to Vermont, and urging the admission of it into the Confederacy. As far as I can learn difficulties will
1787] JAMES MADISON. 323
arise only in settling the form, the substance of the measures being not disliked by any of the parties. It is wished by those who are not interested in claims to lands within that district to guard ags.e any responsi bility in the State for compensation. On the other side it will at least be insisted that they shall not be barred of the privilege of carrying their claims before a federal Court, in case Vermont shall become a party to the Union. I think it probable if she should not decline becoming such altogether, that she will make two conditions if not more : i. that neither her boun daries nor the rights of her citizens shall be impeach- able under the 9th art: of Confederation. 2. that no share of the public debt already contracted shall be allotted to her.
I have a letter from Col. Jn? Campbel,1 dated at Pittsburg, from wc!* I gather that the people of that quarter are thrown into great agitation by the reported intention of Congf concerning the Mississippi, and that measures are on foot, for uniting the minds of all the different settlements which have a common inter est at stake. Should this policy take effect I think
1 " On my way to this place I met a man from the Settlement on Cumberland River in North Carolina who had just come by the way of Kentucky. He in forms me that the minds of all the Western People are agitated on account of the proposed cession of the Mississippi navigation to Spain every person talks of it with indignation and reprobates it as a measure of the greatest Injustice and Despotism declaring that if it takes place they will look upon themselves released from all Federal Obligations and fully at Liberty to seek alliances & connections wherever they can find them and that the British Officers at Detroit have already been tampering with them. I am apprehensive that these matters will hasten the separation of the District of Kentucky prematurely from the other part of the State. * * * " John Campbell to Madison, Pittsburgh, February 21, 1787. Mad. MSS.
324 THE WRITINGS OF [1787
there is much ground to apprehend that the ambition of individuals will quickly mix itself with the first im pulses of resentment and interest, that by degrees the people may be led to set up for themselves, that they will slide like Vermont insensibly into a communica tion and latent connection with their British Neigh bours, and, in pursuance of the same example, make such a disposition of the Western territory as will entice into it most effectually emigrants from all parts of the Union. If these apprehensions be not imagin ary they suggest many observations extremely inter esting to Spain as well as to the United States.
I hear from Richmond with much concern that Mf Henry has positively declined his mission to Philad*. Besides the loss of his services on that theatre, there is danger I fear that this step has proceeded from a wish to leave his conduct unfettered on another theatre where the result of the Convention will receive its destiny from his omnipotence.
With every sentiment of esteem & affection I remain
Dear Sir, your Obed' and very hble Serv'
TO THOMAS JEFFERSON.1
NEW YORK, March igth [iSth], 1787.
DEAR SIR, — My last was of the iith of February, and went by the packet. This will go to England in
1 From Madison's Works. The correct date of the letter is doubtless March i8th, as Jefferson acknowledged on June 2Oth the receipt of two letters, dated respectively March iSth and igth. and this letter evidently preceded the other letter to Jefferson dated March igth. The letter should be taken in connection
1787] JAMES MADISON. 325
the care of a French gentleman, who will consign it to the care of Mr. Adams.
The appointments for the Convention go on auspiciously. Since my last, Georgia, South Carolina, New York, Massachusetts, and New Hampshire, have come into the measure. The first and the last of these States have commissioned their delegates to Congress as their representatives in Convention. The deputation of Massachusetts consists of Mess". Gorham, Dana, King, Gerry, and Strong. That of New York, Messrs. Hamilton, Yates, and Lansing. That of South Carolina, Messrs. J. Rutledge, Laur- ens, Pinckney, (General,) Butler, and Charles Pinck- ney, lately member of Congress. The States which have not yet appointed are Rhode Island, Connecti cut, and Maryland. The last has taken measures which prove her intention to appoint, and the two former it is not doubted will follow the example of their neighbours. I just learn from the Governor of Virginia that Mr. Henry has resigned his place in the deputation from that State, and that General Nelson is put into it by the Executive, who were authorised to fill vacancies. The Governor, Mr. Wythe, and Mr. Blair, will attend, and some hopes are entertained of Col. Mason's attendance. General Washington has prudently authorised no expectations of his at tendance, but has not either precluded himself abso lutely from stepping into the field if the crisis should demand it.
with that of April 8th to Randolph and April i6th to Washington as developing Madison's plan of government. See also the letter on the subject of the Ken tucky constitution, January 6, 1785, to George Muter.
326 THE WRITINGS OF [1787
What may be the result of this political experiment cannot be foreseen. The difficulties which present themselves are, on one side, almost sufficient to dismay the most sanguine, whilst on the other side the most timid are compelled to encounter them by the mortal diseases of the existing Constitution. These diseases need not be pointed out to you, who so well understand them. Suffice it to say, that they are at present marked by symptoms which are truly alarming, which have tainted the faith of the most orthodox republicans, and which challenge from the votaries of liberty every concession in favor of stable Government not infringing fundamental principles, as the only security against an opposite extreme of our present situation.
I think myself that it will be expedient, in the first place, to lay the foundation of the new system in such a ratification by the people themselves of the several States as will render it clearly paramount to their Legislative authorities. 2dly. Over and above the positive power of regulating trade and sundry other matters in which uniformity is proper, to arm the federal head with a negative in all cases ^whatsoever on the local Legislatures. Without this defensive power, experience and reflection have satisfied me that, however ample the federal powers may be made, or however clearly their boundaries may be deline ated on paper, they will be easily and continually- baffled by the Legislative sovereignties of the States. The effects of this provision would be not only to guard the national rights and interests against in-
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vasion, but also to restrain the States from thwarting and molesting each other ; and even from oppressing the minority within themselves by paper money and other unrighteous measures which favor the interest of the majority. In order to render the exercise of such a negative prerogative convenient, an emanation of it must be vested in some set of men within the several States, so far as to enable them to give a temporary sanction to laws of immediate necessity. 3dly. To change the principle of Representation in the federal system. Whilst the execution of the acts of Congress depends on the several Legislatures, the equality of votes does not destroy the inequality of importance and influence in the States. But in case of such an augmentation of the federal power as will render it efficient without the intervention of the Legislatures, a vote in the general Councils from Delaware would be of equal value with one from Massachusetts or Virginia. This change, therefore, is just. I think, also, it will be practicable. A ma jority of the States conceive that they will be gainers by it. It is recommended to the Eastern States by the actual superiority of their populousness7 and to the Southern by their expected superiority ; and if a majority of the larger States concur, the fewer and smaller States must finally bend to them. This point being gained, many of the objections now urged in the leading States against renunciations of power will vanish. 4thly. To organize the federal powers in such a manner as not to blend together those which ought to be exercised by separate departments.
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The limited powers now vested in Congress are fre quently mismanaged from the want of such a distri bution of them. What would be the case under an enlargement not only of the powers, but the number of the federal Representatives ? These are some of the leading ideas which have occurred to me, but which may appear to others as improper as they appear to me necessary.
TO THOMAS JEFFERSON.1
NEW YORK, March 19, 1787.
DEAR SIR, — Congress have continued so thin as to be incompetent to the dispatch of the more important business before them. We have at present nine States, and it is not improbable that something may now be done. The report of Mr. Jay on the mutual violations of the treaty of peace will be among the first subjects of deliberation. He favors the British claim of interest, but refers the question to the court. The amount of the report, which is an able one, is, that the treaty should be put in force as a law, and the exposition of it left, like that of other laws, to the ordinary tribunals.
The Spanish project sleeps. A perusal of the attempt of seven States to make a new treaty, by repealing an essential condition of the old, satisfied me that Mr. Jay's caution would revolt at so irregular a sanction. A late accidental conversation with Guardoqui proved to me that the negotiation is
1 From the Madison Papers (1840).
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arrested. It may appear strange that a member of Congress should be indebted to a foreign Minister for such information, yet such is the footing on which the intemperance of party has put the matter, that it rests wholly with Mr. Jay how far he will communi cate with Congress, as well as how far he will negoti ate with Guardoqui. But although it appears that the intended sacrifice of the Mississippi will not be made, the consequences of the intention and the attempt are likely to be very serious. I have already made known to you the light in which the subject was taken up by Virginia. Mr. Henry's disgust exceeds all measure, and I am not singular in ascrib ing his refusal to attend the Convention to the policy of keeping himself free to combat or espouse the result of it according to the result of the Mississippi business, among other circumstances. North Caro lina also has given pointed instructions to her Dele gates ; so has New Jersey. A proposition for the like purpose was a few days ago made in the Legis lature of Pennsylvania, but went off without a de cision on its merits. Her Delegates in Congress are equally divided on the subject. The tendency of this project to foment distrust among the Atlantic States, at a crisis when harmony and confidence ought to have been studiously cherished, has not been more verified than its predicted effect on the ultramontane settlements. I have credible information that the people living on the Western waters are already in great agitation, and are taking measures for uniting their consultations. The ambition of individuals will
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quickly mix itself with the original motives of resent ment and interest. Communication will gradually take place with their British neighbours. They will be led to set up for themselves, to seize on the vacant lands, to entice emigrants by bounties and an exemp tion from Federal burthens, and in all respects play the part of Vermont on a large theatre. It is hinted to me that British partizans are already feeling the pulse of some of the Western settlements. Should these apprehensions not be imaginary, Spain may have equal reason with the United States to rue the unnatural attempt to shut the Mississippi. Guardoqui has been admonished of the danger, and, I believe, is not insensible to it, though he affects to be otherwise, and talks as if the dependence of Britain on the com mercial favors of his Court would induce her to play into the hands of Spain. The eye of France also cannot fail to watch over the western prospects. I learn from those who confer here with Otto and De la Forest, that they favor the opening of the Missis sippi, disclaiming at the same time any authority to speak the sentiments of their Court. I find that the Virginia Delegates, during the Mississippi discussions last fall, entered into very confidential interviews with these gentlemen. In one of them the idea was communicated to Otto of opening the Mississippi for exports but not for imports, and of giving to France and Spain some exclusive privileges in the trade. He promised to transmit it to Vergennes, to obtain his sentiments on the whole matter, and to com municate them to the Delegates. Not long since
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Grayson called on him, and revived the subject. He assured Grayson that he had received no answer from France, and signified his wish that you might pump the Count de Vergennes, observing that he would deny to you his having received any information from America. I discover, through several channels, that it would be very grateful to the French politicians here to see our negotiations with Spain shifted into your hands, and carried on under the mediating auspices of their Court.
Van Berkel has remonstrated against the late acts of Virginia, giving privileges to French wines and brandies in French bottoms, contending that the Dutch are entitled by their treaty to equal exemp tions with the most favored nation, without being subject to a compensation for them. Mr. Jay has reported against this construction, but considers the act of Virginia as violating the treaty ; — first, as it appears to be gratuitous, not compensatory, on the face of it ; secondly, because the States have no right to form tacit compacts with foreign nations. No decision of Congress has yet taken place on the subject.
The expedition of General Lincoln against the in surgents has effectually succeeded in dispersing them. Whether the calm which he has restored will be durable or not, is uncertain. From the precautions taking by the Government of Massachusetts, it would seem as if their apprehensions were not extinguished. Besides disarming and disfranchising, for a limited time, those who have been in arms, as a condition of
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their pardon, a military corps is to be raised to the amount of one thousand or fifteen hundred men, and to be stationed in the most suspected districts. It is said that, notwithstanding these specimens of the temper of the Government, a great proportion of the offenders choose rather to risk the consequences of their treason, than submit to the conditions annexed to the amnesty ; that they not only appear openly on public occasions, but distinguish themselves by badges of their character ; and that this insolence is in many instances countenanced by no less decisive marks of popular favor than elections to local offices of trust and authority.
A proposition is before the Legislature of this State, now sitting, for renouncing its pretensions to Vermont, and urging the admission of it into the Confederacy. The different parties are not agreed as to the form in which the renunciation should be made, but are likely to agree as to the substance. Should the offer be made, and should Vermont not reject it altogether, I think they will insist on two stipulations at least ; — first, that t.heir becoming par ties to the Confederation shall not subject their boundaries, or the rights of their citizens, to be ques tioned under the ninth Article ; secondly, that they shall not be subject to any part of the public debts already contracted.
The Geographer and his assistants have returned surveys on the Federal lands to the amount of about eight hundred thousand acres, which it is supposed would sell pretty readily for public securities, and
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some of it, lying on the Ohio, even for specie. It will be difficult, however, to get proper steps taken by Congress, so many of the States having lands of their own at market. It is supposed that this consid eration had some share in the zeal for shutting the Mississippi. New Jersey, and some others having no Western lands, which favored this measure, begin now to penetrate the secret.
A letter from the Governor of Virginia informs me, that the project of paper-money is beginning to recover from the blow given it at the last session of the Legislature. If Mr. Henry espouses it, of which there is little doubt, I think an emission will take place.
TO EDMUND RANDOLPH.1
NEW YORK, March 25, 1787.
DEAR SIR, — I have had the pleasure of your two favors of the first and seventh instant. The refusal of Mr. Henry to join in the task of revising the Con federation is ominous ; and the more so, I fear, if he means to be governed by the event which you con jecture. There seems to be little hope, at present, of being able to quash the proceedings relative to the affair which is so obnoxious to him,2 though on the other hand, there is reason to believe that they will never reach the object at which they aimed.
Congress have not changed the day for meeting at Philadelphia as you imagine. The act of Virginia,
1 From the Madison Papers (1840). * The Jay project for a treaty with Spain.
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I find, has done so in substituting second day for the second Monday in May, the time recommended from Annapolis.
I cannot suppose that Mr. Otto has equivocated in his explanation to the public touching the Flori- das. Nothing of that subject has been mentioned here, as far as I know. Supposing the exchange in question to have really been intended, I do not see the inference to be unfavorable to France. Her views, as they occur to me, would most probably be to conciliate the Western people, in common with the Atlantic States, and to extend her commerce, by reversing the Spanish policy. I have always wished to see the Mississippi in the hands of France, or of any nation which would be more liberally disposed than the present holders of it.
Mr. Jay's report on the treaty of peace has at length been decided on. It resolves and declares, that the treaty, having been constitutionally formed, is the law of the land, and urges a repeal of all laws contravening it, as well to stop the complaints of their existing as legal impediments, as to avoid need less questions touching their validity. Mr. Jay is preparing a circular address to accompany the Reso lutions, and the latter will not be forwarded till the former is ready.
TO JAMES MADISON. MAD. MSS.
N. YORK April i, 1787
HOND SIR, — I have received your favor of the 17^ Feb^ and have made enquiry as to the Andover
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Works, not indeed thro' the channel you suggested, but through one still more direct & authentic. I find that the works are not pursued with such alacrity at present as to promise the supply you wish, that it is uncertain whether it would be delivered at Philada at all, and that the price is at present unfixed. I shall have an opportunity of seeing in Trenton on my way to the Convention, the man who is con nected with these works and will collect any further information he may be able to give.
Congress has remained very thin ever since my arrival, and have done but little business of impor tance. The general attention is now directed towards the approaching Convention. All the States have appointed deputies to it except Connecticut, Mary land, and Rho. Island. The first, it is not doubted will appoint, and the second has already resolved on the expediency of the measure. Rho. Island alone has refused her concurrence. A majority of more than twenty in the Legislature of that State has re fused to follow the general example. Being conscious of the wickedness of the measures they are pursuing they are afraid of everything that may become a con- troul on them. Notwithstanding this prospect of a very full and respectable meeting, no very sanguine expectations can well be indulged. The probable diversity of opinions and prejudices, and of supposed or real interests among the States, renders the issue totally uncertain. The existing embarrassments and mortal diseases of the Confederacy form the only ground of hope, that a spirit of concession on all
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sides may be produced by the general chaos, or at least partitions of the Union, which offers itself as the alternative.
N. Carolina and N Jersey have followed the ex ample of Virginia in giving instructions in favor of the Missippi. Penn* has not done so as was expected, but she has appointed a Delegation which thinks dif ferently from her last on the subject.
I am anxious to hear from my brother A. on the subject of the Tobacco. It will at furthest I hope arrive within the current month in Philad? With affecte regards to my mother & the family I remain yr dutiful son
TO EDMUND RANDOLPH.1
NEW YORK, April 8, 1787.
DEAR SIR, — Your two favors of the twenty-second and twenty-seventh of March, have been received since my last. In a preceding one you ask, what tribunal is to take cognizance of Clark's offence? If our own laws will not reach it, I see no possibility of punishing it. But will it not come within the act of the last session concerning treasons and other offences committed without the commonwealth? I have had no opportunity yet of consulting Mr. Otto on the allegation of Oster touching the marriage of French subjects in America. What is the conspicuous prose cution which you suspect will shortly display a notable instance of perjury ?
1 From the Madison Papers (1840).
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I am glad to find that you are turning your thoughts towards the business of May next. My despair of your finding the necessary leisure, as sig nified in one of your letters, with the probability that some leading propositions at least would be expected from Virginia, had engaged me in a closer attention to the subject than I should otherwise have given. I will just hint the ideas that have occurred, leaving explanations for our interview.
I think with you, that it will be well to retain as much as possible of the old Confederation, though I doubt whether it may not be best to work the valu able articles into the new system, instead of engraft ing the latter on the former. I am also perfectly of your opinion, that, in framing a system, no material sacrifices ought to be made to local or temporary prejudices. An explanatory address must of necessity accompany the result of the Convention on the main object. I am not sure that it will be practicable to present the several parts of the reform in so detached a manner to the States, as that a partial adoption will be binding. Particular States may view different articles as conditions of each other, and would only ratify them as such. Others might ratify them as independent propositions. The consequence would be that the ratifications of both would go for nothing. I have not, however, examined this point thoroughly. In truth, my ideas of a reform strike so deeply at the old Confederation, and lead to such a systematic change, that they scarcely admit of the expedient.
I hold it for a fundamental point, that an individual
VOL. II. — 22
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independence of the States is utterly irreconci lable with the idea of an aggregate sovereignty. I think, at the same time, that a consolidation of the States into one simple republic is not less unattain able than it would be inexpedient. Let it be tried, then, whether any middle ground can be taken, which will at once support a due supremacy of the national authority, and leave in force the local au thorities so far as they can be subordinately useful.
The first step to be taken is, I think, a change in the principle of representation. According to the present form of the Union, an equality of suffrage, if not just towards the larger members of it, is at least safe to them, as the liberty they exercise of rejecting or executing the acts of Congress, is uncon trollable by the nominal sovereignty of Congress. Under a system which would operate without the intervention of the States, the case would be materially altered. A vote from Delaware would have the same effect as one from Massachusetts or Virginia.
Let the national Government be armed with a positive and complete authority in all cases where uniform measures are necessary, as in trade, &c., &c. Let it also retain the powers which it now possesses.
Let it have a negative, in all cases whatsoever, on the Legislative acts of the States, as the King of Great Britain heretofore had. This I conceive to be essential and the least possible abridgement of the State sovereignties. Without such a defensive power,
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every positive power that can be given on paper will be unavailing. It will also give internal stability to the States. There has been no moment since the peace at which the Federal assent would have been given to paper-money, &c., &c.
Let this national supremacy be extended also to the Judiciary department. If the Judges in the last resort depend on the States, and are bound by their oaths to them and not to the Union, the intention of the law and the interests of the nation may be defeated by the obsequiousness of the tribunals to the policy or prejudices of the States. It seems at least essential that an appeal should lie to some national tribunals in all cases which concern foreigners, or inhabitants of other States. The admiralty juris diction may be fully submitted to the National Government.
A Government formed of such extensive powers ought to be well organized. The Legislative depart ment may be divided into two branches. One of them to be chosen every years by the Legisla tures or the people at large ; the other to consist of a more select number, holding their appointments for a longer term, and going out in rotation. Perhaps the negative on the State laws may be most conven iently lodged in this branch. A Council of Revision may be superadded, including the great ministerial officers.
A national Executive will also be necessary. I have scarcely ventured to form my own opinion yet, either of the manner in which it ought to be
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constituted, or of the authorities with which it ought to be clothed.
An article ought to be inserted expressly guaran teeing the tranquillity of the States against internal as well as external dangers.
To give the new system its proper energy, it will be desirable to have it ratified by the authority of the people, and not merely by that of the Legisla tures.
I am afraid you will think this project, if not ex travagant, absolutely unattainable and unworthy of being attempted. Conceiving it myself to go no further than is essential, the objections drawn from this source are to be laid aside. I flatter myself, however, that they may be less formidable on trial than in contemplation. The change in the principle of representation will be relished by a majority of the States, and those too of most influence. The northern States will be reconciled to it by the actual superiority of their populousness ; the Southern by their expected superiority on this point. This prin ciple established, the repugnance of the large States to part with power will in a great degree subside, and the smaller States must ultimately yield to the pre dominant will. It is also already seen by many, and must by degrees be seen by all, that, unless the Union be organized efficiently on republican princi ples, innovations of a much more objectionable form may be obtruded, or, in the most favorable event, the partition of the Empire, into rival and hostile confederacies will ensue.
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TO EDMUND RANDOLPH.1
NEW YORK, April 15, 1787.
DEAR SIR, — Your favor of the fourth of April has been received since my last. The probability of General Washington's coming to Philadelphia is, in one point of view, flattering. Would it not, however, be well for him to postpone his actual attendance, until some judgment can be formed of the result of the meeting? It ought not to be wished by any of his friends that he should partici pate in any abortive undertaking. It may occur, perhaps, that the delay would deprive the Conven tion of his presiding auspices, and subject him, on his arrival, to a less conspicuous point of view than he ought on all occasions to stand in. Against this difficulty must be weighed the consideration above mentioned, to which may be added the opportunity which Pennsylvania, by the appointment of Doctor Franklin, has afforded of putting sufficient dignity into the Chair.
The effect of the interposition of Congress in favor of the treaty at this crisis, was foreseen by us.2
1 From the Madison Papers (1840).
2 March 21, 1787, Congress unanimously resolved that the Legislatures of the several States could not, of right, pass acts for interpreting or construing a treaty, nor in any manner retard its operation, and that all State acts repug nant to the treaty of peace with Great Britain ought to be repealed, and the State Legislatures were requested to repeal them. Journals of Congress (Ed. 1801), xii., 23, 24. On April I3th, the Secretary for Foreign Affairs (Jay) reported a letter to the States, which was agreed to, to accompany the resolutions of March 2ist. It regretted that in some of the States too little attention had been paid to the public faith pledged by the treaty, and urged the binding nature of a treaty upon each member of the Confederacy. Id. 22, et seq.
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I would myself have preferred a little procrastina tion on the subject. But the manifest and undeni able propriety of the thing itself, with the chance that the Legislature here, which will adjourn in a little time until next winter, and which is one of the principal transgressors, may set an immediate example of reformation, overruled the argument for delay. The difficulties which, as you suggest, may be left behind by a mere repeal of all existing im pediments, will be probably found of a very serious nature to British creditors. If no other advantage should be taken of them by the State, than the making the assent of the creditors to the plan of instalments, a condition of such further provisions as may not come within the treaty, I do not know that the existence of these difficulties ought to be matter of regret. In every view Congress seem to have taken the most proper course for maintaining the national character ; and if any deviations in particular States should be required by peculiar circumstances, it will be better that they should be chargeable on such States than on the United States.
The Maryland Assembly met on the second in stant, being convened by proclamation. The ex pected delay, therefore, in her appointments for the Convention, cannot be admitted among the consid erations which are to decide the time of your setting out. I am sorry that punctuality on your part will oblige you to travel without the company of Mrs. Randolph. But the sacrifice seems to be the more
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necessary, as Virginia ought not only to be on the ground in due time, but to be prepared with some materials for the work of the Convention. In this view, I could wish that you might be able to reach Philadelphia some days before the second Monday in May.
This city has been thrown into no small agitation by a motion, made a few days ago, for a short adjournment of Congress, and the appointment of Philadelphia as the place of its reassembling. No final question was taken, but some preliminary ques tions shewed that six States were in favor of it ; Rhode Island, the seventh State, was at first in the affirmative, but one of its Delegates was over come by the exertions made to convert him. As neither Maryland nor South Carolina was present, the vote is strong evidence of the precarious tenure by which New York enjoys her metropolitan ad vantages. The motives which led to this attempt were probably with some of a local nature. With others they certainly were of a general nature.
Mr. Jay was a few days ago instructed to com municate to Congress the State of the Spanish nego tiation. An unwilling but silent assent was given by Massachusetts and Connecticut. The Report shews that Jay viewed the act of seven States as valid, and has even adjusted with Guardoqui an article for suspending our use of the Mississippi during the term of the treaty. A subsequent report, on a reference of Western information from Virginia and North Carolina denotes little confidence in the
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event of the negotiation, and considerable perplexity as to the steps proper to be taken by Congress. Wednesday is fixed for the consideration of these reports. We mean to propose that Jefferson be sent, under a special commission, to plead the cause of the Mississippi at Madrid.
TO GEORGE WASHINGTON. WASH. MSS.
NEW YORK April 16 1787.
DEAR SIR, — I have been honored with your letter of the 31 March, and find with much pleasure that your views of the reform which ought to be pursued by the Convention, give a sanction to those which I have entertained. Temporising applications will dis honor the Councils which propose them, and may foment the internal malignity of the disease, at the same time that they produce an ostensible palliation of it. Radical attempts although unsuccessful will at least justify the authors of them.
Having been lately led to revolve the subject which is to undergo the discussion of the Convention, and formed some outlines of a new system, I take the liberty of submitting them without apology to your eye.
Conceiving that an individual independence of the States is utterly irreconcileable with their aggregate sovereignty, and that a consolidation of the whole into one simple republic would be as inexpedient as it is unattainable, I have sought for middle ground, which may at once support a due supremacy of the
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national authority, and not exclude the local authori ties wherever they can be subordinately useful.
I would propose as the ground-work that a change be made in the principle of representation. Accord ing to the present form of the Union in which the intervention of the States is in all great cases neces sary to effectuate the measures of Congress, an equality of suffrage, does not destroy the inequality of importance in the several members. No one will deny that Virginia and Mass*3 have more weight and influence both within & without Congress than Delaware or Rho. Island. Under a system which would operate in many essential points without the intervention of the State Legislatures, the case would be materially altered. A vote in the national Coun cils from Delaware, would then have the same effect and value as one from the largest State in the Union. I am ready to believe that such a change would not be attended with much difficulty. A majority of the States, and those of greatest influence, will regard it as favorable to them. To the Northern States it will be recommended by their present populousness ; to the Southern by their expected advantage in this respect. The lesser States must in every event yield to the predominant will. But the consideration which particularly urges a change in the representa tion is that it will obviate the principal objections of the larger States to the necessary concessions of power.
I would propose next that in addition to the present federal powers, the national Government should be
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armed with positive and compleat authority in all cases which require uniformity; such as the regula tion of trade, including- the right of taxing both ex ports & imports, the fixing the terms and forms of naturalization, &c &c.
Over and above this positive power, a negative in all cases whatsoever on the legislative acts of the States, as heretofore exercised by the Kingly prerog ative, appears to me to be absolutely necessary, and to be the least possible encroachment on the State jurisdictions. Without this defensive power, every positive power that can be given on paper will be evaded & defeated. The States will continue to in vade the National jurisdiction, to violate treaties and the law of nations & to harass each other with rival and spiteful measures dictated by mistaken vi-ews of interest. Another happy effect of this prerogative would be its controul on the internal vicissitudes of State policy, and the aggressions of interested majori ties on the rights of minorities and of individuals. The great desideratum which has not yet been found for Republican Governments seems to be some disin terested & dispassionate umpire in disputes between different passions & interests in the State. The ma jority who alone have the right of decision, have frequently an interest, real or supposed in abusing it. In Monarchies the sovereign is more neutral to the interests and views of different parties ; but, unfor- tunely he too often forms interests of his own repug nant to those of the whole. Might not the national prerogative here suggested be found sufficiently dis-
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interested for the decision of local questions of policy, whilst it would itself be sufficiently restrained from the pursuit of interests adverse to those of the whole Society. There has not been any moment since the peace at which the representatives of the Union would have given an assent to paper money or any other measure of a kindred nature.
The national supremacy ought also to be extended as I conceive to the Judiciary departments. If those who are to expound & apply the laws, are connected by their interests & their oaths with the particular States wholly, and not with the Union, the participa tion of the Union in the making of the laws may be possibly rendered unavailing. It seems at least ne cessary that the oaths of the Judges should include a fidelity to the general as well as local constitution, and that an appeal should lie to some National tribu nals in all cases to which foreigners or inhabitants of other States may be parties. The admiralty juris diction seems to fall entirely within the purview of the national Government.
The National supremacy in the Executive depart ments is liable to some difficulty, unless the officers administering them could be made appointable by the supreme Government. The Militia ought cer tainly to be placed in some form or other under the authority which is entrusted with the general protec tion and defence.
A Government composed of such extensive powers should be well organized and balanced. The legisla tive department might be divided into two branches ;
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one of them chosen every years by the people at large, or by the Legislatures ; the other to consist of fewer members, to hold their places fora longer term, and to go out in such a rotation as always to leave in office a large majority of old members. Perhaps the negative on the laws might be most conveniently ex ercised by this branch. As a further check, a coun cil of revision including the great ministerial officers might be superadded.
A National Executive must also be provided. I have scarcely ventured as yet to form my own opinion either of the manner in which it ought to be consti tuted or of the authorities with which it ought to be cloathed.
An article should be inserted expressly guarantying the tranquillity of the States against internal as well as external dangers.
In like manner the right of coercion should be ex pressly declared. With the resources of Commerce in hand, the National administration might always find means of exerting it either by sea or land ; But the difficulty & awkwardness of operating by force on the collective will of a State, render it particularly desirable that the necessity of it might be precluded. Perhaps the negative on the laws might create such a mutuality of dependence between the General and particular authorities, as to answer this purpose or perhaps some defined objects of taxation might be submitted along with commerce, to the general authority.
To give a new System its proper validity and en-
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ergy, a ratification must be obtained from the people, and not merely from the ordinary authority of the Legislatures. This will be the more essential as in roads on the existing Constitutions of the States will be unavoidable.
The inclosed address to the States on the subject of the Treaty of peace has been agreed to by Con gress, & forwarded to the several Executives. We foresee the irritation which it will excite in many of our Countrymen ; but could not withhold our appro bation of the measure. Both the resolutions and the address, passed without a dissenting voice.
Congress continue to be thin, and of course do little business of importance. The settlement of the public accounts, — the disposition of the public lands, and arrangements with Spain, are subjects which claim their particular attention. As a step towards the first, the treasury board are charged with the task of reporting a plan by which the final decision on the claims of the States will be handed over from Con gress to a select sett of men bound by the oaths, and cloathed with the powers of Chancellors. As to the Second article, Congress have it themselves under consideration. Between 6 & 700 thousand acres have been surveyed and are ready for sale. The mode of sale however will probably be a source of different opinions ; as will the mode of disposing of the unsurveyed residue. The Eastern gentlemen re main attached to the scheme of townships. Many others are equally strenuous for indiscriminate loca tions. The States which have lands of their own for
350 THE WRITINGS OF [1787
sale are suspected of not being hearty in bringing the federal lands to market. The business with Spain is becoming extremely delicate, and the information from the Western settlements truly alarming.
A motion was made some days ago for an adjourn ment of Congress for a short period, and an ap pointment of Philad* for their reassembling. The eccentricity of this place as well with regard to E. and West as to N. & South has I find been for a con siderable time a thorn in the minds of many of the Southern members. Suspicion too has charged some important votes on the weight thrown by the present position of Congress into the Eastern Scale, and pre dicts that the Eastern members will never concur in any substantial provision or movement for a proper permanent seat for the National Government whilst they remain so much gratified in its temporary resi dence. These seem to have been the operative mo tives with those on one side who were not locally interested in the removal. On the other side the motives are obvious. Those of real weight were drawn from the apparent caprice with which Con gress might be reproached, and particularly from the peculiarity of the existing moment. I own that I think so much regard due to these considerations, that notwithstanding the powerful ones on the other side, I should have assented with great repugnance to the motion, and would even have voted against it if any probability had existed that by waiting for a proper time, a proper measure might not be lost for a very long time. The plan which I shrl have judged
1787] JAMES MADISON. 351
most eligible would have been to fix on the removal whenever a vote could be obtained but so as that it should not take effect until the commencement of the ensuing federal year. And if an immediate removal had been resolved on, I had intended to propose such a change in the plan. No final question was taken in the case. Some preliminary questions shewed that six States were in favor of the motion. Rho. Island the 7l.h was at first on the same side, and Mr. Var- num, one of the delegates continues so. His col league was overcome by the solicitations of his Eastern brethren. As neither Maryland nor South Carolina were on the floor, it seems pretty evident that N. York has a very precarious tenure of the advantages derived from the abode of Congress.
We understand that the discontents in Massts, which lately produced an appeal to the sword, are now producing a trial of strength in the field of elec tioneering. The Governor will be displaced. The Senate is said to be already of a popular complexion, and it is expected that the other branch will be still more so. Paper money it is surmised will be the en gine to be played off agV creditors both public and private. As the event of the elections however is not yet decided, this information must be too much blended with conjecture to be regarded as a matter of certainty.
I do not learn that the proposed Act relating to Vermont has yet gone through all the stages of legis lation here ; nor can I say whether it will finally pass or not. In truth, it having not been a subject of
352 THE WRITINGS OF [1787
conversation for some time, I am unable to say what has been done or is likely to be done with it. With the sincerest affection & the highest esteem I have the honor to be, Dear Sir your devoted Serv*
TO JAMES MONROE. MAD. MSS.
NEW YORK, April 19, 1787
DEAR SIR, — No definite steps are yet taken for the transportation of your furniture. I fear we shall be obliged to make use of a conveyance to Norfolk as soon as one shall offer. I have examined the work manship of the man in Chappel street. The face of it is certainly superior to that of your workman. Whether it may prove much so for substantial pur poses, I do not undertake to say. Should M-s Monroe not be pleased with the articles, I w^ recom mend that you dispose of them, which may be done probably without loss, and send us a commission to replace them. I think we could please you both ; and on terms not dearer than that of your purchase. We learn nothing yet of a remittance from S. Carolina.
The business of the Mississippi will I think come to a point in a few days. You shall know the result in due time.
A motion was lately made to remove shortly to Philad* six States would have been for it. Rh. Island was so at first and would have been a seventh* One of the delegation was overpowered by exertions of his Eastern brethren. I need not rehearse to you
1787] JAMES MADISON. 353
the considerations which operated on both sides. Your conjectures will not mistake them. My own opinion is that there are strong objections ags.e the movement, objections which nothing would supersede but the difficulty of bringing the sense of the Union to an efficient vote in Congress, and the danger of losing altogether a proper measure by waiting for a proper time. A middle way would have been my choice ; that is, to fix Philad* for the meeting of the ensuing Cong- , & to remain here in the mean time. This would have given time for all preliminary ar rangements, would have steered clear of the Conven tion, and, by selecting a natural period for the event, and transferring the operation of it to our successors in office, all insinuations of suddenness, and of per sonal views, would have been repelled.
I hear with great pleasure that you are to aid the deliberations of the next Assembly, and with much concern that paper money will probably be among the bad measures which you will have to battle. Wishing you success in this and all your other labours for the public and for yourself, I remain, with
best
respects to Mrf Monroe, yours affely.
TO EDMUND PENDLETON. MAD. MSS.
NEW YORK April 22 1787
MY DEAR SIR, — The period since my last has afforded such scanty materials for a letter that I have postponed it, till I have now to thank you for yours
VOL. II. 23.
354 THE WRITINGS OF [1787
of the 7'.h inst : which came to hand two days ago. I always feel pleasure in hearing from you, but par ticularly when my concern for your doubtful health is relieved by such an evidence in its favor. At the same time I must repeat my wishes to forego this pleasure whenever it may interfere with the attention which you owe to your ease, your business, or your other friends.
I do not learn that any symptoms yet appear of a return of the insurgent spirit in Massts. On the contrary it is said that the malcontents are trying their strength in a more regular form. This is the crisis of their elections, and if they can muster suffi cient numbers, their wicked measures are to be shel tered under the forms of the Constitution. How far their influence may predominate in the current appointments is uncertain, but it is pretty certain that a great change in the rulers of that State is taking place, and that a paper emission, if nothing worse, is strongly apprehended. Governor Bowdoin is already displaced in favor of M" Hancock, whose acknowledged merits are not a little tainted by a dis honorable obsequiousness to popular follies. A great change has also taken place in the Senate, and a still greater is prognosticated in the other branch of the Legislature.
We are flattered with the prospect of a pretty full and very respectable meeting in next month. All the States have made appointments except Connecti cut Maryland, & Rh. Island. The last has refused. Maryland will certainly concur. The temper of
1787] JAMES MADISON. 355
Connecticut is equivocal. The turn of her elections which are now going on, is said to be rather unpro- pitious. The absence of one or two States however will not materially affect the deliberations of the Convention. Disagreement in opinion among those present is much more likely to embarrass us. The nearer the crisis approaches, the more I tremble for the issue. The necessity of gaining the concurrence of the Convention in some system that will answer the purpose, the subsequent approbation of Congress, and the final sanction of the States, presents a series of chances, which would inspire despair in any case where the alternative was less formidable. The difficulty too is not a little increased by the neces sity which will be produced by encroachments on the State Constitutions, of obtaining not merely the assent of the Legislatures, but the ratification of the people themselves. Indeed if such encroachments could be avoided, a higher sanction than the Legisla tive authority would be necessary to render the laws of the Confederacy paramount to the acts of its members.
I enclose a late Act of Congress, which will shew you the light in which they view and inculcate a compliance with the Treaty of peace. We were not unaware of the bitterness of the pill to many of our countrymen, but national considerations overruled that objection. An investigation of the subject had proved that the violations on our part were not only most numerous and important, but were of earliest date. And the assurances on the other part are
356 THE WRITINGS OF [1787
explicit that a reparation of our wrongful measures shall be followed by an immediate and faithful execu tion of the Treaty by Great Britain.
Congress are at present deliberating on the most proper plan for disposing of ye Western lands, and providing a criminal and civil administration for the Western settlements beyond the Ohio. The latter subject involves great difficulties. On the former also opinions are various. Between 6 & 7,00,000 Acres have been surveyed in Townships & are to be sold as soon as they shall be duly advertised. The sale was at first to have been distributed throughout the States. This plan is now exchanged for the opposite extreme. The sale is to be made where Cong5 sits. Unquestionably reference ought to have been had in fixing on the place, either to the Center of the Union or to the proximity of the premises. In providing for the unsurveyed lands, the difficulty arises from the Eastern attachm* to townships & the Southern to indiscriminate locations. A Copper coinage was agreed on yesterday to the amount of upwards of two hundred thousand dollars, 15 per C- is to be drawn into the federal Treasury from this operation.
Our affair with Spain is on a very delicate footing. It is not easy to say what precise steps would be most proper to be taken on our side, and extremely difficult to say what will be actually taken. Many circumstances threaten an Indian war, but the cer tainty of it is not established. A British officer was lately here from Canada, as has been propagated, but
1787] JAMES MADISON. 357
not on a mission to Congress. His business was unknown, if he had any that was important.
I am extremely concerned, though not much sur prised at the danger of a paper emission in Virginia. If Mr. H. sh? erect the standard he will certainly be joined by sufficient force to accomplish it. Remorse and shame are but too feeble restraints on interested individuals agst unjust measures, and are rarely felt at all by interested multitudes.
Wishing you all happiness I remain Dear Sir Your affect6 humble servant
TO THOMAS JEFFERSON.1
NEW YORK, April 23, 1787.
DEAR SIR, — Congress have agreed to Mr. Jay's report on the treaty of peace, and to an address which accompanies it. Copies of both will no doubt be sent you from his Department. The Legislature of this State, which was sitting at the time, and on whose account the acts of Congress were hurried through, has adjourned till January next, without deciding on them. This is an ominous example to the other States, and must weaken much the claim on Great Britain of an execution of the treaty on her part, as promised in case of proper steps being taken on ours. Virginia, we foresee, will be among the foremost in seizing pretexts for evading the injunc tions of Congress. South Carolina is not less infected with the same spirit. The present deliberations of
1 From the Madison Papers (1840).
358 THE WRITINGS OF [1787
Congress turn on, first, the sale of the Western lands ; secondly, the government of the Western settlements within the Federal domain ; thirdly, the final settle ment of the accounts between the Union and its members ; fourthly, the treaty with Spain.
1. Between six and seven hundred thousand acres have been surveyed in townships, under the land ordinance, and are to be sold forthwith. The place where Congress sit is fixed for the sale. Its eccen tricity, and remoteness from the premises, will, I apprehend, give disgust. On the most eligible plan of selling the unsurveyed residue, Congress are much divided ; the Eastern States being strongly attached to that of townships, notwithstanding the expense incident to it ; the Southern being equally biassed in favor of indiscriminate locations, notwithstanding the many objections against that mode. The dispute will probably terminate in some kind of compromise, if one can be hit upon.
2. The government of the settlements on the Illi nois and Wabash is a subject very perplexing in itself, and rendered more so by our ignorance of many circumstances on which a right judgment de pends. The inhabitants at those places claim pro tection against the savages, and some provision for both criminal and civil justice. It appears also that land-jobbers are among them, who are likely to multiply litigations among individuals, and, by col lusive purchases of spurious titles, to defraud the United States.
3. The settlement of the public accounts has long
1787] JAMES MADISON. 359
been pursued in varied shapes, and with little pros pect of success. The idea which has long been urged by some of us, seems now to be seriously em braced, of establishing a plenipotentiary tribunal for the final adjustment of the mutual claims, on the great and simple principle of equity. An ordinance for this purpose has been reported by the Treasury Board, and has made some progress through Con gress. It is likely to be much retarded by the thin ness of Congress, as indeed is almost every other matter of importance.
4. The Spanish negotiation is in a very ticklish situation. You have been already apprized of the vote of seven States last fall for ceding the Missis sippi for a term of years. From sundry circum stances it was inferred that Jay was proceeding under this usurped authority. A late instruction to him to lay the state of the negotiation before Con gress has discovered that he has adjusted with Guardoqui an article for suspending the use of the Mississippi by the citizens of the United States. The report, however, leaves it somewhat doubtful how far the United States are committed by this step, and a subsequent report of the Secretary on the seizure of Spanish property in the Western country, and on information of discontents touching the occlusion of the Mississippi, shews that the probable consequences of the measure perplex him extremely. It was nevertheless conceived by the instructed delegations to be their duty to press a revocation of the step taken, in some form which
360 THE WRITINGS OF [1787
would least offend Spain, and least irritate the patrons of the vote of seven States. Accordingly a motion was made to the following effect — that the present state of the negotiation with Spain, and of the affairs of the United States, rendered it expedient that you should proceed, under a special commission, to Ma drid, for the purpose of making such representations as might at once impress on that Court our friendly disposition and induce it to relax on the contested points ; and that the proper communications and explanations should be made to Guardoqui relative to this change in the mode of conducting the nego tiation. This motion was referred to Mr. Jay, whose report disapproves of it. In this state the matter lies. Eight States only being present, no effective vote is to be expected. It may, notwithstanding, be incumbent on us to try some question which will at least mark the paucity of States who abet the obnox ious project. Massachusetts and New York alone, of the present States, are under that description ; and Connecticut and New Hampshire alone of the absent. Maryland and South Carolina have hitherto been on the right side. Their future conduct is somewhat problematical. The opinion of New Hampshire is only conjectured. The conversion of Rhode "Island countenances a hope that she too may, in this instance, desert the New England standard.
The prospect of a full and respectable Convention grows stronger every day. Rhode Island alone has refused to send Deputies. Maryland has probably appointed by this time. Of Connecticut alone doubts are entertained. The anti-federal party in that State
1787] JAMES MADISON. 361
is numerous and persevering. It is said that the elections which are now going on are rather dis couraging to the advocates of the Convention. Pennsylvania has added Dr. Franklin to her deputa tion. There is some ground to calculate on the attendance of General Washington. Our Governor, Mr. Wythe, Mr. Blair, and Col. Mason will pretty certainly attend. The last, I am informed, is renoun cing his errors on the subject of the Confederation, and means to take an active part in the amendment of it. Mr. Henry pretty soon resigned the under taking. General Nelson was put into his place, who has also declined. He was succeeded by Mr. R. H. Lee, who followed his example. Doctor M'Clurg has been since appointed, and as he was on the spot must have been previously consulted.
Mad. Mss
MAD. MSS.
A -i „ Vices of the April, 1707.
Political sys-
Observations by J. M. (A copy taken by permission by Dan1. tem of the u-
Carroll & sent to Ch* Carroll of Carrollton.) States.
1. This evil has been so fully experienced both K Faiiure Of during the war and since the peace, results so nat- the states to
... . . comply with
urally from the number and independent authority the constitu-
of the States and has been so uniformly exemplified *ional requisi- in every similar Confederacy, that it may be con sidered as not less radically and permanently inherent in than it is fatal to the object of the present system.
2. Examples of this are numerous and repetitions 2. Encroach- may be foreseen in almost every case where any ™ents by the
1 t < States on the
favorite object of a State shall present a temptation, federal author-
Among these examples are the wars and treaties of ity- Georgia with the Indians. The unlicensed compacts between
362 THE WRITINGS OF [1787
Virginia and Maryland, and between Pen* & N. Jersey — the troops raised and to be kept up by Massts.
violations 3* ^rom tne number of Legislatures, the sphere of of the law of life from which most of their members are taken, nations and of and the circumstances under which their legislative
treaties.
business is carried on, irregularities of this kind must frequently happen. Accordingly not a year has passed with out instances of them in some one or other of the States. The Treaty of Peace — the treaty with France — the treaty with Holland have each been violated. [See the complaints to Congress on these subjects.] The causes of these irregularities must necessarily pro duce frequent violations of the law of nations in other respects.
As yet foreign powers have not been rigorous in animadverting on us. This moderation, however cannot be mistaken for a per manent partiality to our faults, or a permanent security ag3t those disputes with other nations, which being among the greatest of public calamities, it ought to be least in the power of any part of the community to bring on the whole.
Tres asses 4' These are alarming symptoms, and may be daily of the states apprehended as we are admonished by daily experi-
ofelch "the!-8 encc' See the law of virginia restricting foreign ves sels to certain ports — of Maryland in favor of vessels belonging to her own citizens — of N. York in favor of the same — Paper money, instalments of debts, occlusion of Courts, making property a legal tender, may likewise be deemed aggressions on the rights of other States. As the Citizens of every State aggre gately taken stand more or less in the relation of Creditors or debtors, to the Citizens of every other State, Acts of the debtor State in favor of debtors, affect the Creditor State, in the same manner as they do its own citizens who are relatively creditors towards other citizens. This remark may be extended to foreign nations. If the exclusive regulation of the value and alloy of coin was properly delegated to the federal authority, the policy of it equally requires a controul on the States in the cases above mentioned. It must have been meant i. to preserve uniformity in the circulating medium throughout the nation. 2. to prevent those frauds on the citizens of other States, and the subjects of foreign powers, which might disturb the tranquillity at home, or involve the Union in foreign contests.
1787] JAMES MADISON. 363
The practice of many States in restricting the commercial inter course with other States, and putting their productions and manu factures on the same footing with those of foreign nations, though not contrary to the federal articles, is certainly adverse to the spirit of the Union, and tends to beget retaliating regulations, not less expensive and vexatious in themselves than they are destruc tive of the general harmony.
5. This defect is strongly illustrated in the state 5. want of of our commercial affairs. How much has the ^"wh^re national dignity, interest, and revenue, suffered common inter- from this cause ? Instances of inferior moment are
the want of uniformity in the laws concerning naturalization & literary property; of provision for national seminaries, for grants of incorporation for national purposes, for canals and other works of general utility, wch may at present be defeated by the perverseness of particular States whose concurrence is necessary.
6. The confederation is silent on this point and 6 Want of therefore by the second article the hands of the Guaranty to federal authority are tied. According to Repub- thLc'onstitlf lican Theory, Right and power being both vested in tions & laws the majority, are held to be synonimous. Accord- aeainst inter-
nal violence.
ing to fact and experience a minority may in an appeal to force, be an overmatch for the majority, i. if the minority happen to include all such as possess the skill and habits of military life, & such as possess the great pecuniary resources, one-third only may conquer the remaining two-thirds. 2. one- third of those who participate in the choice of the rulers, may be rendered a majority by the accession of those whose poverty excludes them from a right of suffrage, and who for obvious reasons will be more likely to join the standard of sedition than that of the established Government. 3. where slavery exists the republican Theory becomes still more fallacious.
7. A sanction is essential to the idea of law, as y want of coercion is to that of Government. The federal sanction to the system being destitute of both, wants the great vital J^"^"* ^ principles of a Political Constution. Under the Government of form of such a constitution, it is in fact nothing the Confeder-
e acy.
more than a treaty of amity of commerce and of
alliance, between independent and Sovereign States. From what
364 THE WRITINGS OF [1787
cause could so fatal an omission have happened in the articles of Confederation ? from a mistaken confidence that the justice, the good faith, the honor, the sound policy, of the several legislative assemblies would render superfluous any appeal to the ordinary motives by which the laws secure the obedience of individuals : a confidence which does honor to the enthusiastic virtue of the compilers, as much as the inexperience of the crisis apologizes for their errors. The time which has since elapsed has had the double effect, of increasing the light and tempering the warmth, with which the arduous work may be revised. It is no longer doubted that a unanimous and punctual obedience of 13 inde pendent bodies, to the acts of the federal Government ought not to be calculated on. Even during the war, when external danger supplied in some degree the defect of legal & coercive sanctions, how imperfectly did the States fulfil their obligations to the Union ? In time of peace, we see already what is to be expected. How indeed could it be otherwise ? In the first place, Every general act of the Union must necessarily bear unequally hard on some particular member or members of it, secondly the partiality of the members to their own interests and rights, a par tiality which will be fostered by the courtiers of popularity, will naturally exaggerate the inequality where it exists, and even sus pect it where it has no existence, thirdly a distrust of the volun tary compliance of each other may prevent the compliance of any, although it should be the latent disposition of all. Here are causes & pretexts which will never fail to render federal meas ures abortive. If the laws of the States were merely recommend atory to their citizens, or if they were to be rejudged by County authorities, what security, what probability would exist, that they would be carried into execution ? Is the security or probability greater in favor of the acts of Cong* which depending for their execution on the will of the State legislatures, wch are tho' nomin ally authoritative, in fact recommendatory only ?
s. want of 8. In some of the States the Confederation is thefipeoP7e ^f recognized by, and forms a part of the Constitu- the articles of tion. In others however it has received no other confederation. sanction than that of the legislative authority.
From this defect two evils result : i. Whenever a law of a State
1787] JAMES MADISON. 365
happens to be repugnant to an act of Congress, particularly when the latter [former] is of posterior date to the former, [latter] it will be at least questionable whether the latter [former] must not prevail ; and as the question must be decided by the Tribunals of the State, they will be most likely to lean on the side of the State. 2. As far as the union of the States is to be regarded as a league of sovereign powers, and not as a political Constitution by virtue of which they are become one sovereign power, so far it seems to follow from the doctrine of compacts, that a breach of any of the articles of the Confederation by any of the parties to it, absolves the other parties from their respective Obligations, and gives them a right if they chuse to exert it, of dissolving the Union altogether.
9. In developing the evils which viciate the Mult. H political system of the U S., it is proper to include city of laws in those which are found within the States individu- the several ally, as well as those which directly affect the
States collectively, since the former class have an indirect influ ence on the general malady and must not be overlooked in form ing a compleat remedy. Among the evils then of our situation may well be ranked the multiplicity of laws from which no State is exempt. As far as laws are necessary to mark with precision the duties of those who are to obey them, and to take from those who are to administer them a discretion which might be abused, their number is the price of liberty. As far as laws exceed this limit, they are a nuisance ; a nuisance of the most pestilent kind. Try the Codes of the several States by this test, and what a luxuriancy of legislation do they present. The short period of in dependency has filled as many pages as the century which preceded it. Every year, almost every session, adds a new volume. This may be the effect in part, but it can only be in part, of the situa tion in which the revolution has placed us. A review of the several Codes will shew that every necessary and useful part of the least voluminous of them might be compressed into one tenth of the compass, and at the same time be rendered ten fold as perspicuous.
10. This evil is intimately connected with the 10. mutabii- former yet deserves a distinct notice, as it emphati- ity of the laws
.... ' ., of the States.
cally denotes a vicious legislation. We daily see
laws repealed or superseded, before any trial can have been made
366 THE WRITINGS OF [1787
of their merits, and even before a knowledge of them can have reached the remoter districts within which they were to operate. In the regulations of trade this instability becomes a snare not only to our citizens, but to foreigners also.
ii. injustice n. If the multiplicity and mutability of laws of the laws of prove a want of wisdom, their injustice betrays a
the States.
defect still more alarming : more alarming not merely because it is a greater evil in itself ; but because it brings more into question the fundamental principle of republican Gov ernment, that the majority who rule in such governments are the safest Guardians both of public Good and private rights. To what causes is this evil to be ascribed ?
These causes lie i. in the Representative bodies. 2. in the people,,, themselves.
ii. Representative appointments are sought from 3 motives, i. Ambition. 2. personal interest. 3. public good. Unhappily the two first are proved by experience to be most prevalent. Hence the candidates who feel them, particularly, the second, are most industrious, and most successful in pursuing their object : and forming often a majority in the legislative Councils, with interested views, contrary to the interest and views of their con stituents, join in a perfidious sacrifice of the latter to the former. A succeeding election it might be supposed, would displace the offenders, and repair the mischief. But how easily are base and selfish measures, masked by pretexts of public good and apparent expediency ? How frequently will a repetition of the same arts and industry which succeeded in the first instance, again prevail on the unwary to misplace their confidence ?
How frequently too will the honest but unenlightened repre sentative be the dupe of a favorite leader, veiling his selfish views under the professions of public good, and varnishing his sophisti cal arguments with the glowing colours of popular eloquence ?
2. A still more fatal if not more frequent cause, lies among the people themselves. All civilized societies are divided into differ ent interests and factions, as they happen to be creditors or debt ors — rich or poor — husbandmen, merchants or manufacturers — members of different religious sects — followers of different politi cal leaders — inhabitants of different districts — owners of different
1787] JAMES MADISON. 367
kinds of property &c &c. In republican Government the majority however composed, ultimately give the law. Whenever there fore an apparent interest or common passion unites a majority what is to restrain them from unjust violations of the rights and interests of the minority, or of individuals ? Three motives only i. a prudent regard to their own good as involved in the general and permanent good of the community. This consideration although of decisive weight in itself, is found by experience to be too often unheeded. It is too often forgotten, by nations as well as by individuals, that honesty is the best policy. 2dly. respect for character. However strong this motive may be in individuals, it is considered as very insufficient to restrain them from injustice. In a multitude its efficacy is diminished in proportion to the number which is to share the praise or the blame. Besides, as it has reference to public opinion, which within a particular Society, is the opinion of the majority, the standard is fixed by those whose conduct is to be measured by it. The public opinion without the Society will be little respected by the people at large of any Country. Individuals of extended views, and of national pride, may bring the public proceedings to this standard, but the example will never be followed by the multitude. Is it to be imagined that an ordinary citizen or even Assemblyman of R. Island in estimating the policy of paper money, ever considered or cared, in what light the measure would be viewed in France or Holland ; or even in Massts or Connec1 ? It was a sufficient temp tation to both that it was for their interest; it was a sufficient sanc tion to the latter that it was popular in the State ; to the former, that it was so in the neighbourhood. 3dly. will Religion the only remaining motive be a sufficient restraint? It is not pretended to be such on men individually considered. Will its effect be greater on them considered in an aggregate view ? quite the reverse. The conduct of every popular assembly acting on oath, the strongest of religious ties, proves that individuals join without remorse in acts, against which their consciences would revolt if proposed to them under the like sanction, separately in their closets. When indeed Religion is kindled into enthusiasm, its force like that of other passions, is increased by the sympathy of a multitude. But enthusiasm is only a temporary state of religion,
368 THE WRITINGS OF [1787
and while it lasts will hardly be seen with pleasure at the helm of Government. Besides as religion in its coolest state is not infalli ble, it may become a motive to oppression as well as a restraint from injustice. Place three individuals in a situation wherein the interest of each depends on the voice of the others ; and give to two of them an interest opposed to the rights of the third ? Will the latter be secure? The prudence of every man would shun the danger. The rules & forms of justice suppose & guard against it. Will two thousand in a like situation be less likely to encroach on the rights of one thousand ? The contrary is wit nessed by the notorious factions & oppressions which take place in corporate towns limited as the opportunities are, and in little republics when uncontrouled by apprehensions of external danger. If an enlargement of the sphere is found to lessen the insecurity of private rights, it is not because the impulse of a common interest or passion is less predominant in this case with the majority ; but because a common interest or passion is less apt to be felt and the requisite combinations less easy to be formed by a great than by a small number. The Society becomes broken into a greater variety of interests, of pursuits of passions, which check each other, whilst those who may feel a common sentiment have less opportunity of communication and concert. It may be in ferred that the inconveniences of popular States contrary to the prevailing Theory, are in proportion not to the extent, but to the ..narrowness of their limits.
The great desideratum in Government is such a modification of the sovereignty as will render it sufficiently neutral between the different interests and factions, to controul one part of the society from invading the rights of another, and at the same time sufficiently controuled itself, from setting up an interest adverse to that of the whole Society. In absolute Monarchies the prince is sufficiently, neutral towards his subjects, but fre quently sacrifices their happiness to his ambition or his avarice. In small Republics, the sovereign will is sufficiently controuled from such a sacrifice of the entire Society, but is not sufficiently neutral towards the parts composing it. As a limited monarchy tempers the evils of an absolute one ; so an extensive Republic meliorates the administration of a small Republic.
1787] JAMES MADISON. 369
An auxiliary desideratum for the melioration of the Repub lican form is such a process of elections as will most certainly extract from the mass of the society the purest and noblest characters which it contains ; such as will at once feel most strongly the proper motives to pursue the end of their appoint ment, and be most capable to devise the proper means of attain ing it.
OF ANCIENT & MODERN CONFEDERACIES.1 MAD. MSS.
Lycian Confederacy.
In this confederacy the number of votes allotted to each member was proportioned to its pecuniary contributions. The Judges and Town magistrates were elected by the general authority in like proportion.
See Montesquieu11 who prefers this mode.
The name of a federal republic may be refused to Lycia which Montesquieu cites as an example in which the importance of the members determined the proportion of their votes in the general Councils. The Gryson 3 League is a juster example. Code de 1'Hum.4 Confederation.
Lyciorum quoque avo^iav celebrat Strabo : de qua pauca libet heic subjungere. Fuere eorum urbes XXIII, distinctse in classes tres pro modo virium. In prima classe censebantur maximae sex, in altera mediae, numero nobis incerto, in tertia reliquse omnes, quarum fortuna minima. Et singulae quidem urbes hae domi res suas curabant, magistratus suos, ordinemque civilem suum habebant : universae tamen in unum coeuntes unam communem rempublicam constituebant, concilioque utebantur uno, velut, senatu majore. In eo de bello, de pace, de foederibus, denique de rerum Lyciacarum summa deliberabant et statue- bant. Coibant vero in concilium hoc ex singulis urbibus missi
1 This memorandum is written on small sheets of paper, which, put together, formed a compact little book, suited to be carried in the pocket. There are 39 pages, and it would seem Madison intended extending it, for an extra page is headed " Gryson Confederacy,"
2 L Esprit des Lois (1748).
3 Canton of Grisons, Switzerland.
4 Code de V Humanite" on la Legislation, by Felice in 13 vols.
370 THE WRITINGS OF [1787
cum potestate ferendi suffragii : utebanturque ea in re jure aequissimo. Nam quselibet urbs primes classis habebat jus suffra- giorum trium, secundae duorum, tertiae unius. Eademque pro- portione tributa quoque conferebant, et munia alia obibant. Quemadmodum enim ratio ipsa dictat, et poscit aequitas, ut plura qui possident, et caeteris ditiores sunt, plura etiam in usus communes, et reipublicae subsidia conferant, sic quoque eadem aequitatits regula postulat, ut in statuendo de re communi iidem illi plus aliis possint : praesertim cum eorundem magis intersit rempublicam esse salvam quam tenuiorum. Locum concilii hujus non habebant nxum & certum, sed, ex omnibus urbem deligebant, quae videbatur pro tern pore commodissima. Concilio coacto primum designabant Lyciarcham principem totius Reipublicae, dein magistratus alios creabant partes rei- publicae administraturos demum judicia publica constituebant. Atque hsec omnia faciebant servata proportione eadem, ut nulla omnino urbs prseteriretur munerumve aut honorum horum non fieret particeps. Et hoc jus illibatum mansit Lyciis ad id usque tempus, quo Romani assumpto Asiae imperio magna ex parte sui arbitrii id fecerunt. — Ubbo Emmius de Republica Lyciorum in Asia. [Apud Grovonii Thes., iv, 597.] l
1 Translation : Strabo [Lib. xiv, cap. iii], moreover, mentions the lack of laws of the Lycians : concerning which we will add a little to what he says. — There were twenty-three cities, divided into three classes, according to their power. To the first class belonged the six largest, to the second those of intermediate rank, the number of which is uncertain, to the third all the rest, whose importance was very small. And each of these cities took care of its affairs at home, and had its own magistrates and its own system of civil government, but all, uniting, formed one joint republic, and had one delibera tive assembly, a greater senate, as it were. In that assembly they deliberated and decided concerning war, peace and treaties, and, in a word, concerning all the affairs of Lycia. Persons sent from each city with the right to vote met in this assembly ; and, in that matter, they were governed by a most equitable law. For any city of the first class had the right to cast three votes, of the second two, of the third one. In the same proportion they also paid taxes, and performed other duties. For as reason itself dictates, and as equity demands that those who possess more and are richer than others, should contribute more to the public service and the support of the State, thus also the same rule of equity requires that, in deciding with regard to the common interest, those same persons should have greater influence than others ; espe-
1787] JAMES MADISON. 371
Amphyctionic Confederacy
Instituted by Amphyction son of Deucalion King of Athens 1522 years Ant.: Christ.: Code De 1'Humanite.
Seated first at Thermopylae, then at Delphos, afterwards at these places alternately. It met half yearly to wit in the Spring & Fall, besides extraordinary occasions. Id. In the latter meetings, all such of the Greeks as happened to be at Delphos on a religious errand were admitted to deliberate, but not to vote. Encyclopedic. *
The number and names of the confederated Cities differently reported. The Union seems to have consisted originally of the Delphians and their neighbors only, and by degrees to have comprehended all Greece. 10, n, 12, are the different numbers of original members mentioned by different Authors. Code de 1'Humanite.
Each city sent two deputies one to attend particularly to Religious matters — the other to civil and criminal matters affecting individuals — both to decide on matters of a general nature. Id. Sometimes more than two were sent, but they had two votes only. Encyclop.
The Amphyctions took an oath mutually to defend and protect the united Cities — to inflict vengeance on those who should sacri legiously despoil the temple of Delphos — to punish the violators of this oath — and never to divert the water courses of any of the Amphyctionic Cities either in peace or in war. Code de 1'Hum. ^Eschines orat : vs. Ctesip.
The Amphyctionic Council was instituted by way of defence and terror ag^ the Barbarians. Dicf.e de Treviux.
daily since they are more interested in the welfare of the State than are the poor. They had no fixed place for this assembly, but they selected, from the entire number, the city that seemed best suited to the occasion. The assembly having convened, they first designated a Lyciarch as head of the whole State ; they next chose other magistrates to govern the component parts of the State, and finally, they established courts of justice. And they did all these things maintaining the same proportion, so that no city was neglected, or was excluded from participation in these functions and honors. And this state of things remained unchanged until the time when the Romans, having become masters of Asia, brought it also under their control.
1 Encyclopedic, published under the direction of Diderot and d'Alembert.
372 THE WRITINGS OF [1787
Foedral Authority.
The Amphyctions had full power to propose and resolve what ever they judged useful to Greece. Encycop Pol. GEcon.
1. They judged in the last resort all differences between the Amphyctionic cities. Code de 1'Hum.
2. mulcted the aggressors. Id.
3. employed whole force of Greece ag5.' such as refused to execute its decrees. Id. & Plutarch, Cimon.
4. guarded the immense Riches of the Temple of Delphos, and decided controversies between the inhabitants and those who came to consult the Oracle. Encyclop.
5. superintended the Pythian games. Code de 1'Hum.
6. exercised right of admitting new members. See decree admitting Philip, in Demosthenes on Crown.
7. Appointed General of the federal troops with full powers to carry their decrees into execution. Ibid.
8. Declared & carried on war. Code de 1'Human.
Strabo says that the Council of the Amphyctions was dissolved in the time of Augustus ; but Pausanias, who lived in the time of Antoninus Pius says it remained entire then, and that the number of Amphyctions was thirty. Potter's Gre. Ant : Vol. i, p. 90.'
The institution declined on the admission of Phil and in the time of the Roman Emperors, the functions of the Council were reduced to the administration & police of the Temple. This limited authority expired only with the Pagan Religion. Code de 1'Human.
Vices of the Constitution.
It happened but too often that the Deputies of the strongest Cities awed and corrupted those of the weaker, and that Judg ment went in favor of the most powerful party. Id. see also Plutarch's Themistocles.
Greece was the victim of Philip. If her Confederation had been stricter, & been persevered in, she would never have yielded to Macedon, and might have proved a Barrier to the vast projects of Rome. Code de 1'Hum.
Philip had two votes in the Council. Rawleigh Hist : World, lib. 4, c. i, Sec. 7 _____
1 John Potter's Archeologia Grceca, two volumes, Oxford, (1688-9).
1787] JAMES MADISON. 373
The execution of the Amphyctionic powers was very different from the Theory. Id. — It did not restrain the parties from war ring ags.1 each other. Athens & Sparta were members during their conflicts. Quer. whether Thucidides or Xenophon in their Histories ever allude to the Amphyctionic authority which ought to have kept the peace ?
See Gillies' Hist. Greece, particularly Vol. II. p. 345. Achaean Confederacy
In 124 olymp? the Patrians & Dymaeans joined first in this league. Polyb. lib. 2, c. 3.1
This League consisted at first of three small Cities. Aratus added Sicyon, and drew in many other Cities of Achaia & Peloponnesus. Of these he formed a Republic of a peculiar sort. Code de 1'Human.
It consisted of twelve cities, and was produced by the necessity of such a defence agst the Etolians. Encyclo. PoL OE. & Polyb. lib. 2.
The members enjoyed a perfect equality, each of them sending the number of deputies to the Senate. Id.
The Senate assembled in the Spring & Fall, and was also con vened on extraordinary occasions by two Pretors charged with the administration during the recess, but who could execute nothing with* the consent of the Inspectors. Id. Foederal Authority
1. The Senate composed of the deputies made war & peace. D'Albon I page 270
2. Appointed a Captain General annually. Co. d'Hum.
3. Transferred the power of deciding to ten Citizens taken from the deputies, the rest retaining a right of consultation only. Id.
4. Sent and received Ambassadors. D'Albon. Ibid. 5 appointed a prime Minister. D'Albon. Ibid.
6. Contracted foreign Alliances. Code de 1'Hum.
7. Confederated Cities in a manner forced to receive the same laws & customs weights & measures : Id. & Polyb. lib. 2 cap. 3, yet considered as having each their independent police & Magis trates. Encyclop. Pol. CEcon.
1 Polybe's General History (probably the Paris edition of 1609).
374 THE WRITINGS OF [1787
8. Penes hoc concilium erat summum rerum arbitrium, ex cujus decreto bella suscipiebantur, & finiebantur, pax conveniebat, fce- dera feriebantur & solvebantur, leges fiebant ratce aut irritce. Hujus etiam erat Magistratus toti Societati communes eligere, legationes decernere &c. Regebant concilium praetor praecipue, si praesens esset, et magistratus alii, quos Achaei Srjpiovpyovz nuncupabant. Ubbo Emmius.
Hi numero X erant suffragiis legitimi concilii, quod verno tem- pore habebatur, electi ex universa societate prudentia praecipui, quorum concilio potissimum praetor ex lege utebatur. Horum potestas & dignitas maxima erat post ipsum Praetorem, quos idcirco Livius, Polybium sequens, summum Achaeorum magistra- tum appellabat. Cum his igitur de negociis gravioribus in concilio agitandis Praetor praeconsultabat, nee de iis, nisi in id pars major consentiret, licebat ad consilium referre. Id.
Ista vero imprimis memorabilis lex est, vinculum societatis Achaicae maxime" stringens, et concordiam muniens, qua inter- dictum fuit, ne cui civitati Societatis hujus participi fas esset, seorsim ad exteros ullos mittere legatos, non ad Romanos, non ad alios. Et hoc expressim inserta fuit pactis conventis Achaeo rum cum populo Romano. . . . Omnium autem lauda- tissima lex apud eos viguit &c., qua vetitum, ne quis omnino, sive privatae conditionis, sen magistratum gerens, ullam ob causam, quaecunque etiam sit, dona a Rege aliquo caperet.1 Id.
1 Translation : This assembly was invested with the supreme authority, and in pursuance of its decisions wars were begun and ended, and laws became valid and were abrogated. It was also within its province to choose magistrates common to the whole community, to decide upon sending embassies, etc. . . . The praetor, especially, presided over the assembly, if he was present, and also other magistrates, whom the Achsei called drjjiiiovtyoi. These were ten in number, and were elected from the entire community by a vote of the legitimate assembly (which was held in the spring) as being eminent for wisdom, and their advice was mainly followed by the praetor, according to law. Their power and dignity were next to those of the praetor and therefore Livy, following Polybius(II, 38 seq.}, calls them the chief magistracy of the Achaeans. With these therefore the praetor consulted beforehand concerning the transaction of the more important business in the assembly, nor was it allowable, unless the majority concurred, to lay it before the assembly.
That was indeed a specially memorable law, drawing very close the bond of the Achaean league, and strengthening harmony ; by it any city forming part
1787] JAMES MADISON. 375
Vices of the Constitution.
The defect of subjection in the members to the general au thority ruined the whole Body. The Romans seduced the members from the League by representing that it violated their sovereignty. Code de 1'Human.
After the death of Alexander, this Union was dissolved by various dissentions, raised chiefly thro' the acts of the Kings of Macedon. Every City was now engaged in a separate interest & no longer acted in concert. Polyb. lib. 2, cap. 3. After in 142 Olympd, they saw their error & began to think of returning to their former State. This was the time when Pyrhus invaded Italy. Ibid. Helvetic Confederacy.
Commenced in 1308 by the temporary, and in 1315 by the perpetual Union of Uri, Switz & Underwald, for the defence of their liberties ag5.' the invasions of the House of Austria. In 1315 the Confederacy included 8 Cantons, and 1513 the number of 13 was compleated by the accession of Appenzel. Code de 1'Hum.
The General Diet representing the United Cantons is composed of two deputies from each. Some of their allies as the Abbi S*. Gall &c., are allowed by long usage to attend by their deputies. Id.
All general Diets are held at such time & place as Zurich, which is first in rank & the depository of the common archives, shall name in a circular summons. But the occasion of annual conferences for the administration of their dependent bailages has fixed the same time, to wit the feast of St. John, for the Gen eral Diet. And the city of Frauenfeld in Turgovia is now the place of Meeting. Formerly it was the City of Baden. Id.
The Diet is opened by a Complimentary Address of the first Deputy of each Canton by turns, called the Helvetic salutation. It consists in a congratulatory review of circumstances & events favorable to their common interest — and exhortations to Union and patriotism.
of this league was forbidden to send, independently, ambassadors to any foreign nation ; they were not to send them to the Romans, and not to others. And this was expressly inserted in the treaties of the Achaeans with the Roman people. . . . The most excellent law of all was in force among them . . . whereby any one, whether a private individual or a magistrate, was forbidden to accept gifts from any King on any account whatever.
376 THE WRITINGS OF [1787
The deputies of the first canton Zurich propose the matters to be discussed. Questions are decided by plurality of voices. In case of division, the Bailiff of Turgovia has the casting one. The Session of the Diet continues about a month. Id.
After the objects of universal concern are despatched, such of the deputies whose Constituents have no share in the depend ent bailages, withdraw, and the Diet then becomes a representa tion of the Cantons to whom these bailages belong, and proceeds to the consideration of the business relating thereto. Id.
•Extraordinary Diets for incidental business or giving audience to foreign ministers may be called at any time by any one of the Cantons or by any foreign minister who will defray the expense of meeting. Seldom a year without an extraordinary Diet. Stanyan's Switzerland
There is an annual Diet of 12 Cantons by one deputy from each for the affairs of the Ultramontane bailages. Code de 1'Human.
Particular Cantons also have their diets for their particular affairs, the time & place for whose meeting are settled by their particular Treaties.
All public affairs are now treated not in Gen! Diet, but in the particular Assemblies of Protestant & Catholic Cantons. D'Albon. Foederal Authority
The title of Republic and Sovereign State improperly given to this Confederacy, which has no concentered authority the Diets being only a Congress of Delegates from some or all of the Can tons, and having no fixt objects that are national. Dictionaire de Suisse.
The 13 Cantons do not make one Commonwealth like the United Provinces, but are so many independent Comonwealths in strict alliance. There is not so much as any common instru ment by which they are all reciprocally bound together ; The 3 primitive Cantons alone being each directly allied to the other twelve. The others in many instances are connected l indirectly only, as allies of allies. In this mode any one Canton may draw
1 Note in Madison's writings : By ye Convention of Stantz, any member attacked has a direct claim on the succour of the whole confederacy. Coxe, p. 343. William Coxe's Voyages.
1787] JAMES MADISON. 377
in all the others to make a common cause in its defence. Stanyan.
The confederacy has no common Treasury — no common troops — no common Coin — no common Judicatory — nor any other common mark of sovereignty. Id.
The General Diet cannot terminate any interesting affair with out special instructions, & powers, & the deputies accordingly take most matters proposed ad referendum. Code de 1'Hum.
The Cantons individually exercise the right of sending & re ceiving ambassadors — making Treaties — coining money — pro scribing the money of one another — prohibiting the importation and exportation of merchandise — furnishing troops to foreign States, and doing everything else which does not wound the liberty of any other Canton. Excepting a few cases specified in the Alliances and which directly concern the object of the league, no Canton is subject to the Resolutions of the plurality. Id.
The only establishment truly national is that of a federal army, as regulated in 1668, and which is no more than an eventual plan of defence adopted among so many allied States. Id.
1. The League consists in a perpetual defensive engagement ag5.' external attacks and internal troubles. It may be regarded as an axiom in the public Law of the confederacy, that the federal engagements are precedent to all other political engagements of the Cantons. Id.
2. Another axiom is that there are no particular or common possessions of the Cantons for the defence of which the others are not bound as Guarantees or auxiliaries of Guarantees. Id.
3. All disputes are to be submitted to Neutral Cantons, who may employ force if necessary in execution of their decrees. Id. Each party to choose 4 Judges who may in case of disagree ment chuse umpire, and these under oath of impartiality to pronounce definitive sentence, which all Cantons to enforce. — D'Albon. & Stan.
4. No Canton ought to form new alliances without the consent of the others [this was stipulated in consequence of an improper alliance in 1442 by Zurich with the House of Austria.] Id.
5. It is an essential Object of the league to preserve interior tranquillity by the reciprocal protection of the form of Governm' established in each Canton, so that each is armed with the force
378 THE WRITINGS OF [1787
of the whole Corps for the suppression of rebellions & Revolts, and the History of Switzerland affords frequent instances of mutual succors for these purposes. Dictr? de Suisse.
6. The Cantons are bound not to give shelter to fugitives from Justice, in consequence of which each Canton can at this day banish malefactors from all the territories of the League. Id.
7. Tho' each Canton may prohibit the exportation & importa tion of merchandize, it must allow it to pass thro' from one neigh boring Canton to another without any augmentation of the tolls. Code de 1'Hum.
8. In claiming succors agst foreign powers, the 8 Elder Cantons have a more extensive right than the 5 Junior ones. The former may demand them of one another without explaining the motives of the quarrel. The latter cannot intermeddle but as mediators or auxiliaries ; nor can they commence hostilities without the sanction of the Confederates ; and if cited by their adversaries) cannot refuse to accept the other Cantons for arbiters or Judges. Dictr.e de Suisse.
9. In general each Canton is to pay its own forces without compensation from the whole or the succoured party. But in case a siege is to be formed for the benefit of a particular Canton, this is to defray the expence of it, and if for the common benefit, each is to pay its just proportion. D'Albon. On no pretext is a Canton to be forced to march its troops out of the limits of Switzerland. Stanyan.
10. Foreign Ministers from different Nations reside in different Cantons. Such of them as have letters of credence for the whole Confederacy address them to Zurich the chief Canton. The Am bassador of France, who has most to do with the Confederacy is complimented at his Quarters by deputies from the whole body.
Vices of the Constitution
1. disparity in size of Cantons
2. different principles of Governm* in diff* Cantons
3. intolerance in Religion
4. weakness of the Union. The comon bailages w0!1 served as a cement, sometimes become occasions of quarrels. Dictr.e de Suisse.
In a treaty in 1683 with Victor Amadceus of Savoy, it is stip-
1787] JAMES MADISON. 379
ulated that he shall interpose as Mediator in disputes between the Cantons, and if necessary use force ags.1 the party refusing to sub mit to the sentence. Dictr.e de Suisse. — a striking proof of the want of authority in the whole over its parts. Belgic Confederacy
established in 1679 by the Treaty called the Union of Utrecht. Code de 1'Humanite.
The provinces came into this Union slowly. Guelderland the smallest of them made many difficulties. Even some of the Cities & towns pretended to annex conditions to their acceding. Id.
When the Union was originally established a committee com posed of deputies from each province was appointed to regulate affairs, and to convoke the provinces according to art. XIX of the Treaty. Out of this Committee grew the States General Id. — who strictly speaking are only the Representatives of the States General who amount to 800 members. Temple, p. 112. *
The number of Deputies to the States General from each prov ince not limited, but have only a single voice. They amount commonly, all together to 40 or 50. They hold their seats, some for life, some for 6 3 & i years, & those of Groninguen & Overyssel during pleasure. They are paid, but very moderately, by their respective constituents, and are amenable to their Trib unals only. Code de 1'Hum. No military man is deputable to the States Gen! Id.
Ambass" of Republic have session & deliberation but no suf frage in States Gen!. Id. The grand pensioner of Holland as ordinary deputy from Holland, attends always in the States Gen1, & makes the propositions of that Province to States G1. Id.
They sit constantly at the Hague since 1593, and every day in the week except Saturday & Sunday. The States of Holland in granting this residence, reserve by way of protestation, the rights, the honors & prerogatives belonging to them as sovereigns of the Province ; yielding the States Gen! only a rank in certain public ceremonies. Id.
The eldest deputy from each province presides for a week by turns. The president receives letters &c. from the Ministers of the Republic at foreign Courts, and of foreign Ministers residing 1 Sir William Temple's Remarks on the United Provinces (1674).
380 THE WRITINGS OF [1787
at the Hague, as well as of all petitions presented to theAssembly ; all which he causes to be read by the Secretary. Id.
The Secretary besides correcting & recording the Resolutions prepares & despatches instructions to Ministers abroad— & letters to foreign powers. He assists also at conferences held with foreign Ministers 6° there gives his voice. He has a deputy when there is not a second Secretary. The Agent of the States Gen1 is charged with the Archives and is also employed on occasions of receiving foreign Ministers or sending Messages to them. Id. Federal Authority.
The avowed objects of the Treaty of Union, i. to fortify the Union — 2. to repel the common enemy. Id
The Union is to be perpetual in the same manner as if the Confederates formed one province only, without prejudice how ever to the privileges & rights of each province & City. Id.
Differences between provinces & between Cities are to be set tled by the ordinary Judges — by arbitration — by amicable agree ment, without the interference of other provinces otherwise than by way of accommodation. The Stadtholder is to decide such differences in the last resort. Id.
No change to be made in the articles of Union, without unani mous consent of the parties & everything done contrary to them to be null & void. Id
States General, i. execute, without consulting their con stituents, treaties & alliances already formed. Id.
2. take oaths from Generals & Govern", and appoint Field Deputies
3. The collection of duties on imports & exports and the expe dition of Safe Conducts are in their name & by their officers. Id.
4. they superintend & examine accounts of the E. India Com pany. Id
5. inspect the Mint — appoint les Maitres de la Monnoye — fix la tattle & la valeur of the Coin, having always regard to the regular rights of the provinces within their own Territories. Id.
6. Appoint a Treasurer General & Receiver General of the Quotas furnished by the Provinces. Id.
7. elect out of a double nomination, the fiscal & other officers within the departments of the admiralties, except that the High
1787] JAMES MADISON. 381
officers of the fleet are appointed by the Admiral General, to whom the maritime provinces have ceded this right. Id. — The Navy supported by duties on foreign trade, appropriated thereto by the maritime provinces, for the benefit of the whole Republic. Id.
8. They govern as sovereigns, the dependent territories, accord ing to the several capitulations. Id.
9. they form Committees of their own body of a member from each deputation, for foreign affairs — finances marine — & other matters. At all these conferences the Grand Pensioner of Hol land & the Secretary of the States Gen! attend and have a deciding voice. Id.
10. App* & receive Ambassrs— negociate w1!1 foreign powers — deliberate on war — peace — alliances — the raising forces — care of fortifications — military affairs to a certain degree — the equipment of fleets — building of ships — directions concerning money. Id. But they can neither make peace — nor war — nor truces — nor treaties — nor raise troops — nor impose taxes, nor do other acts requiring unanimity without consulting & obtaining the sanction of the Provinces. Id. Coining money also requires unanimity & express sanction of provinces. Temple, repealing an old law on same footing. Burrish. Batav. illustrata. In points not enu merated in this article plurality of voices decides. Code de I'Hum.
11. composition & publication of edicts & proclamations rela tive both to the objects expressed in the articles of Union and to the measures taken for the cofhon good, are in the name of the States, and altho' they are addressed to the States of th'e Pro vinces who announce them with their sanction, still it is in the name of the States Gen! that obedience is required of all the inhabitants of the provinces. Code de 1'Hum.
The Provinces have reserved to themselves
1. their sovereignty within their own limits in general. Code de I'Hum.
2. the right of coining money, as essential to Sovereignty, but agreed at the same time that the money which s^ be current throughout the Republic sd. have the same intrinsic value : To give effect to which regulation a mint is established at the Hague
382 THE WRITINGS OF [1787
under a chamber which has the inspection of all money struck either in name of States Gen- or particular provinces, as also of foreign coin. Id. — Coining money not in provinces or Cities, but in the generality of Union by comon agreement. Temple.
3. Every province raises what money & by what means it pleases, and sends its quota to Receiver General Temple.
The quotas were not settled without great difficulty. Id.
4. the naming to GoverV5 of Towns within themselves — keeping keys & giving word to Magistrates — a power over troops in all things not military — conferring Col* Comissions & inferior posts in such Regiments as are paid by the provinces respectively — taking oath of fidelity — concerning a revocation of all which the States Gen1 are not permitted to deliberate. Id.
The Provinces are restricted
1. from entering into any foreign Treaties without consent of the rest. Code de Hum.
2. from establishing imposts prejudicial to others without gen eral consent. Id.
3. from charging their neighbours with higher duties than their own subjects. Id.
Council of State. — composed of deputies from the provinces in different proportions. 3 of them are for life, the rest generally for 3 years : they vote per capita. Temple.
They are subordinate to the States General, who frequently however consult with them. In matters of war which require secrecy they act of themselves. Military & fiscal matters are the objects of their administration. They vote
They execute the resolutions of the States Gen!, propose requi sitions of men & money & superintend the fortifications &c., & the affairs of revenues & Govl.s, of the conquered possessions. Temple.
Chamber of Accounts, was erected for the ease of the Council of State. It is subordinate to the States Gen1, is composed of two deputies from each province, who are changed triennially. They examine and state all accts of the several Receivers — controul and register orders of Council of State disposing of the finances. Id.
College of Admiralty established by the States Gen1 1597 is
1787] JAMES MADISON. 383
subdivided into five of w°^ three are in Holland — one in Zealand — one in Friezland, each composed of 7 deputies, 4 appl by the province where the admiralty resides & 3 by the other provinces. The vice-Admiral presides in all of them when he is present. Temple.
They take final cognizance of all crimes & prizes at sea ;
of all frauds in customs provide quota of
fleets resolved on by States Gen! app* Capt* & superior officers of each squadron take final cognizance also of Civil matters within 600 florins — an appeal lying to States Gen1 for matters beyond that sum. Code de 1'Hum. & Temple.
The authority of States Gen! in Admiralty Depmart* is much limited by the influence & privileges of maritime provinces, & the jurisdiction herein is full of confusion & contradiction. Code de rhumanite.
Stadtholder who is now hereditary in his political capacity is au thorized i. to settle differences between provinces, provisionally till other methods can be agreed on, which having never been this prerogative may be deemed a permanent one. Code de 1'Hum.
2. Assists at deliberations of States Gen! & their particular conferences, recommends & influences appointm' of Ambassa dors. Id.
3. has seat & suffrage in Council of State. Id.
4. presiding in the provincial Courts of Justice where his name is prefixed to all public acts. Id.
5 supreme Curator of most of the Universities. Id.
6. As Stadtholder of the provinces has considerable rights par taking of the sovereignty, as appointing town magistrates on pres entation made to him of a certain number. Executing provincial decrees &c Id. & Mably, Etud. de 1'hist.
7. gives audiences to Ambassadors & may have Agents with their Sovereigns for his private affairs. Mab. Ibid1
8. exercises power of pardon. Temple. In his Military capacity as Cap* Gen!
1. commands forces — directs marches — provides for garrisons — & in general regulates military affairs. Code de 1'Hum.
2. disposes of all appointm^, from Ensigns to Cols. The
1 Gabriel Bonnot de Mably (1709-1785).
384 THE WRITINGS OF [1787
Council of State hav? surrendered to him the appointm'? within their disposal Id. & the States Gen! app1 the higher grades on his recomendation. Id
3. disposes of the Gov*5 &c. of the fortified towns tho' the comissions issue from the States Gen! Id.
In his Marine capacity as Admiral General i. superintends & directs everything relative to naval forces & other affairs within Admiralty. Id
2 presides in the Admiralties in person or by proxy. Id
3 Appoints Lieuts. Admirals & officers under them. Id.
4. establishes Councils of war, whose sentences are in the name of the States Gen! & his Highness and are not executed till he approves. Id.
The Stadtholder has a general & secret influence on the great machine which cannot be defined. Id.
His Revenue from appointm1.5 amount to 300,000 florins, to which is to be added his extensive patrimonies. Id.
The standing army of the Republic, 40,000 men. Vices of the Constitution
The Union of Utrecht imports an authority in the States Gen! seemingly sufficient to secure harmony ; but the Jealousy in each province of its sovereignty renders the practice very different from the Theory. Code de 1'Hum.
It is clear that the delay occasioned by recurring to seven inde pendent provinces including about 52 voting Cities &c. is a vice in the Belgic Republic which exposes it to the most fatal incon veniences. Accordingly the fathers of their country have en deavored to remedy it in the extraordinary Assemblies of the States Gen! in (1584) in 1651, 1716, 1717, but unhappily without effect. This vice is notwithstanding deplorable. Id. — Among other evils it gives foreign ministers the means of arresting the most important deliberations by gaining a single province or city. This was done by France in 1726, when the Treaty of Hanover was delayed a whole year. In 1688 the States concluded a Treaty of themselves but at the risk of their heads. Id. It is the practice also in matters of contribution or subsidy to pass over this article of the Union, for where delay wc! be dangerous the consenting provinces furnish their quotas without waiting for the others, but
1787] JAMES MADISON. 385
by such means the Union is weakened and if often repeated must be dissolved — Id.
Foreign Ministers elude matters taken ad referendum by tam pering with the provinces & Cities. Temple p. 116.
Treaty of Union obliges each Province to levy certain contri butions. But this article never could probably never will be executed because the inland provinces who have little commerce cannot pay an equal Quota. Burrish, Bat. illustrat :
Deputations from agreeing to disagreeing provinces frequent. Temple.
It is certain that so many independent Corps & interests could not be kept together without such a center of Union as the Stadt- holdership, as has been allowed & repeated in so many solemn Acts. Code de Hum.
In the intermission of the Stadtholdership Holland by her Riches & Authority which drew the others into a sort of depend ence, supplied the place. Temple.
With such a Governm' the Union never cd. have subsisted, if in effect the provinces had not within themselves a spring capable of quick — ing their tardiness, and impelling them to the same way of thinking. This Spring is the Stadtholder. His prerogatives are immense — i, &c. &c. — A strange effect of human contradictions. Men too jealous to confide their liberty to their representatives who are their equals, abandoned it to a prince who might the more easily abuse it as the affairs of the Republic were important & had not them fixed themselves. Mably Etude d'Hist., 205. 6.
Grotius has s^ that the hatred of his countrymen ags.1 the H of Austria kept them from being destroyed by the vices of their Constitution. Ibid.
The difficulty of procuring unanimity has produced a breach of fundamentals in several instances — Treaty of Westphalia was concluded without consent of Zealand &c D'Albon & Temple -These tend to alter the constitution D'Albon.
It appears by several articles of the Union that the confeder ates had formed the design of establishing a Gen1 tax, [Impot,] ta be administered by the States Gen! . But this design so proper for bracing this happy Union has not been executed. Code de 1'Hum.
386 THE WRITINGS OF [1787
Germanic Confederacy — took its present form in the year • .
—Code de 1'Hum.
The Diet is to be convoked by the Emperor, or on his failure, by the Archbishop of Mentz, with consent of Electors once in ten years at least from the last adjournment, and six months before the time of meeting. Ratisbon is the seat of the Diet since 1663.
The members amount to 285, and compose three Colleges, to wit, that of the Electors — of Princes — of Imperial Cities. The voices amount to 159, of which 153 are individual & 6 collective. The latter are particular to the College of princes and are formed out of 39 prelates &c. and 93 Counts &c. The individual voices are common to the three Colleges, and are given by 9 Electors — 94 princes, 33 of the ecclesiastical & 61 of the secular Bench — & 50 Imperial Cities, 13 of the Rhenish, & 37 of the Suabian Bench. The K. of Prussia has nine voices in as many different capaci ties. Id
The three Colleges assemble in the same House but in differ ent apartments Id
The Emperor as head of the Germanic body is presid.1 of the Diet. He & others are represented by proxies at present. Id
The deliberations are ground'? on propositions from Emperor & commerce in the College of Electors, from whence they pass to that of the princes, & thence to that of the Imperial Cities. They are not resolutions till they have been passed in each. When the Electors & Princes cannot agree, they confer ; but do not confer with the Imperial Cities, plurality of voices decide in each Col lege, except in matters of Religion & a few reserved cases, in which according to the Treaty of Westphalia, and the Imperial Capitulations the Empire is divided into the Catholic & Evan gelic Corps. Id.
After the Resolutions have passed the three Colleges, they are presented to the Representative of the Emperor, without whose ratification they are null. Id they are called placita after pass ing the three Colleges — conclusa after ratification by Emperor. Id.
The Collection of Acts of one Diet is called the Recess, which cannot be made up & have the force of law, till the Close of the Diet, the subsisting diet has not been closed for more than a
1787] JAMES MADISON. 387
hundred years, of course it has furnished no effective Resolution, though a great number of Interesting ones have passed. This delay proceeds from the Imperial Court who refuse to grant a Recess, notwithstanding the frequent and pressing applications made for one. Id
Foederal Authority.
The powers as well as the organization of the Diet have varied at different times. Antiently it elected as a corps the Emperors and judged of their Conduct. The Golden Bull gives this right to the Electors alone. Antiently it regulated tolls — at present the Electors alone do this. Id
The Treaty of Westphalia & the capitulations of the Emperors from Charles V downwards, define the present powers of the Diet. These concern — i. Legislation of the Empire — 2. War & peace & alliances — 3. raising troops — 4. contributions — 5 construction of fortresses— 6 Money — 7 Ban of the Empire. 8 Admission of new princes — 9. the Supreme tribunals — 10. disposition of Grand fiefs & grand Charges — In all these points the Emperor & Diet must concur. Id
The Ban of the Empire is a sort of proscription by which the disturbers of the public peace are punished. The offenders life & goods are at the mercy of every one, formerly the Emperors themselves pronounced the ban ag" those who offended them. It has been since regulated that no one shall be exposed to the Ban without the examination & consent of the Diet. Encyclop.
By the Ban the party is outlawed, degraded from all his fed eral rights — his subjects absolved from their allegiance — and his possessions forfeited. Code de 1'Hum.
The Ban is incurred when the Emperor or one of the supreme Tribunals address an order to any one, on pain in case of dis obedience, of being proscribed ipso facto. Id.
The Circles formerly were in number 6 only. There are now ten. They were instituted for the more effectual preservation of the public peace, and the execution of decrees of Diet & supreme Tribunals against contumacious members, for which purposes they have their particular diets, with the chief prince of the Circle at their head, have particular officers for commanding the forces of the Circle, levy contributions, see that Justice is duly
388 THE WRITINGS OF [1787
administered — that the coin is not debased — that the customs are not unduly raised. — Savage vol. 2 p. 35.
If a Circle fail to send its due succours, it is to pay damages suffered therefrom to its neighbours. If a member of the circle refuse, the Col. of the Circle is to admonish, & if this be insuf ficient, the delinquent party is to be compelled under a sentence from the Imperial Chamber. Id.
Aulic Council [established by Diet in 1512. Encyclop.,] com posed of members appointed by the Emperor. Code de 1'Hum.
Its cognizance is restrained to matters above 2,000 Crowns ; is concurrent with the jurisdiction of the Imperial Chamber in con troversies between the States — also in those of subjects of the Empire by way of appeal from subaltern Tribunals of the Empire, and from sovereign tribunals of princes. Id. — Arms are to be used for carrying its decrees into execution, as was done in 1718 by the troops of the Circle of upper Rhine in a controversy be tween Landgrave of Hesse Cassel & Prince of Hesse of Rhin- fitz. Id.
Imperial Chamber, established in 1495 by the Diet as a means of public peace, by deciding controversies between members of the Empire. Code de 1'Hum.
This is the first Tribunal of the Empire. It has an appellate jurisdiction in all Civil, and fiscal causes or where the public peace may be concerned. It has a concurrent jurisdiction with the Aulic Council; and causes cannot be removed from one to the other. Id.
The Judges of this Tribunal are appointed partly by the Em peror — partly by Electors — partly by circles — are supported by all the States of the Empire, excepting the Emperor. They are badly paid, though great salaries are annexed to their offices. Id.
In every action, real or personal — The Diet— Imperial Chamber and Aulic Council are so many supreme Courts to which none of the States can demur. The jurisprudence, by which they govern themselves, are according to the subject matter — i. the provincial laws of Germany 2. the Scripture — 3 the law of nature — 4 law of Nations — 5 the Roman law — 6 the canon law — 7 the foedal law of the Lombards. Id.
1787] JAMES MADISON. 389
Members of Diet as such are subject in all public affairs to be judged by Emperor & Diet, — as individuals in private capacity are subject to Aulic Council & Imperial Chamber. Id.
The members have reserved to themselves the right i. to enter into war & peace with foreign powers 2 to enter into alliances with foreign powers and with one another, not prejudicial to their engagements to the Empire Code de 'Hum. — 3 to make laws, levy taxes, raise troops, to determine on life & death. Savage.
4 Coin money. Id. 5. exert territorial sovereignty within their limits in their own name. Code de 1'Hum. 6. to grant pardons. Savage, p. 44. 7. to furnish their quotas of troops, equipped mounted & armed & to provide for sustenance of them, as if they served at home. Code de I'Hum.
Members of Empire restricted
1. from entering into Confederacies prejudicial to the Empire.
2. from laying tolls or customs upon bridges, rivers, or pas sages to which strangers are subject, without consent of the Emperor in full Diet.
3. cannot give any other value to money, nor make any other kind of money, than what is allowed by the Empire. Savage vol.
2, p. 45-
4. (by edict of 1548, particularly) from taking arms one ag5' another, from doing themselves justice — from affording retreat, much more, assistance to infractors of the public peace ; the ban of the Empire being denounced ag5' the transgressors of these prohibitions, besides a fine of 2000 marks of gold and loss of regalities. — Code d'Hum.
Emperor. — has the prerogative i. of exclusively making propositions to the Diet — 2 presiding in all Assemblies & Tri bunals of the Empire when he chuses — 3 of giving suffrage in all affairs treated in the diet — 4 of negativing their resolutions —
5 of issuing them in his own name — 6 of watching over the safety of the Empire — 7 of naming Ambassadors to negociate within the Empire as well as at foreign Courts — affairs concerning the Germanic Corps. 8. of re-establishing in good fame persons dis honored by Council of war & civil Tribunals. Code d'Hum. — 9 of giving investiture of the principal immediate fiefs of the Empire, wch is not indeed of much consequence — 10 of con-
390 THE WRITINGS OF [1787
ferring vacant electorates — n of preventing subjects from being withdrawn from the jurisdiction of their proper Judge — 12. Of conferring charges of the Empire. 13 of conferring dignities & titles as of Kings &c. — 14 of instituting military orders — 15 of granting the dernier resort — 16. of judging differences & contro versies touching tolls — 17. of deciding contests between Catholic & Protestant States touching precedence &c. — Id. — 18. of found ing Universities within the lands of the States, so far as to make the person endowed with Academic honors therein be regarded as such throughout Germany. — 19 of granting all sorts of privi leges not injurious to the States of the Empire — 20 of establish ing great fairs — 21 of receiving the droit des Postes generates — 22 of striking money, but without augumenting or diminishing its value. 23 of permitting strangers to enlist soldiers, conformably to Recess of 1654. Id. 24. Of receiving and applying Revenues of Empire. — Savage, p. . He cannot make war or peace, nor laws, nor levy taxes nor alter the denomination of money nor weights or measures. — Savage, v. 2, p. 35. The Emperor as such does not properly possess any territory within the Empire, nor derive any revenue for his support. Code de 'Hum. Vices of the Constitution.
1. The Quotas are complained of & supplied very irregularly & defectively Code de 'Hum. provision is made by decree of diet for enforcing them, but it is a delicate matter to execute it ags* the powerful members. Id.
2. The establishing of Imperial Chamber has not been found an efficacious remedy ags.1 civil wars. It has committed faults. The Ressortissans have not always been docile. Id.
3. Altho' the establishing of Imperial Chambers &c give a more regular form to the police of the fiefs, it is not to be supposed they are capable of giving a certain force to the laws and main taining the peace of the Empire if the House of Austria had not acquired power eno' to maintain itself on the imperial Throne, to make itself respected, to give orders which it might be imprudent to despise, as the laws were therefore despised. Mabley Etude d' hist., p. 180
[Jealousy of the Imperial authority seems to have been a great cement of the Confederacy.]
1835] JAMES MADISON. 391
Origin Of The Constitutional Convention. Mad. Mss
ORIGIN OF THE CONSTITUTIONAL CONVENTION. MAD. MSS. A SKETCH NEVER FINISHED NOR APPLIED.1
As the weakness and wants of man naturally lead to an asso ciation of individuals under a Common Authority, whereby each may have the protection of the whole against danger from without, and enjoy in safety within, the advantages of social intercourse, and an exchange of the necessaries & comforts of life ; in like manner feeble communities, independent of each other, have re sorted to a Union, less intimate, but with common Councils, for the common safety ag5- powerful neighbors, and for the preserva tion of justice and peace among themselves. Ancient history furnishes examples of these confederal 2 associations, tho' with a very imperfect account, of their structure, and of the attributes and functions of the presiding Authority. There are examples of modern date also, some of them still existing, the modifications and transactions s of which are sufficiently known.
It remained for the British Colonies, now United States, of North America, to add to those examples, one of a more interest ing character than any of them 4 which led to a system without an example b ancient or modern, a system founded on popular rights, and so combining a federal form with the forms of individual Republics, as may enable each to supply the defects of the other and obtain that advantage of both.
Whilst the Colonies enjoyed the protection of the parent Country as it was called, against foreign danger ; and were secured
1 From the context it would appear that this sketch was written about the year 1835, when Madison was preparing for posthumous publication his journal of the corTstitutional convention. It is an exceedingly rough draft, written upon separate slips of paper, and some of these slips have been lost since Gilpin used the sketch in his edition of Madison's Works (1840). The Bulletin of the Bureau of Rolls and Library, Department of State, No. 9, October, 1897, contained about a fifth part of the sketch, but since then all of it has been found, except the last four paragraphs which are reprinted here from the Gilpin edition.
2 The word " confederacies " also appears here parallel with " confederal."
3 The word " operations" also appears here.
4 " and leading to another " also appears.
5 The word " precedent " also appears.
392 THE WRITINGS OF [1835
by its superintending controul, against conflicts among themselves, they continued independent of each other, under a common, tho' limited dependence, on the Parental Authority. When however the growth of the offspring in strength and in wealth, awakened the jealousy and tempted the avidity of the parent, into schemes of usurpation & exaction,1 the obligation was felt by the former of uniting their Counsels and efforts, to avert the impending calamity.
As early as the year 1754, indications having been given of a design * in the British government to levy contributions on the Colonies, without their consent ; a meeting of Colonial deputies took place at Albany, which attempted to introduce a compromis ing substitute, that might at once satisfy the British requisitions, and save their own rights from violation. The attempt had no other effect, than by bringing these rights into a more conspicuous view, to invigorate the attachment to them, on the one side ; and to nourish the haughty & encroaching spirit on the other.
In 1774. The progress made by G. B. in the open assertion of her pretensions, and the apprehended purpose of otherwise main taining them by Legislative enactments and declarations, had been such that the Colonies did not hesitate to assemble, by their deputies, in a formal Congress, authorized to oppose to the British innovations whatever measures might be found best adapted to the occasion ; without however losing sight of an eventual recon ciliation.
The dissuasive 3 measures of that Congress, being without effect, another Congress was held4 in 1775, whose pacific efforts to bring about a change in the views of the other party, being equally unavailing, and the commencement of actual hostilities having at length put an end to all hope of recon ciliation ; the Congress finding moreover that the popular voice began to call for an entire & perpetual dissolution of the political ties which had connected them with G. B., proceeded on the memorable 4th of July, 1776 to declare the 13 Colonies Indepen dent States.
1 " extortion" also appears. " "plan" also appears.
3 " experimental " also appears. 4 " met " also appears.
1835] JAMES MADISON. 393
During the discussions of this solemn Act, a Committee con sisting of member from each colony had been appointed, to pre pare & digest a form of Confederation, for the future management of the Common interests, which had hitherto been left to the dis cretion of Congress, guided by the exigencies of the contest, and by the known intentions or occasional instructions of the Colonial Legislatures.
It appears that as early as the 2istof July 1775, A plan entitled "Articles of Confederation & perpetual Union of the Colonies," had been sketched by Doc' Franklin, The plan being on that day submitted by him to Congress; and tho' not copied into. their Journals remaining on their files in his handwriting. But not withstanding the term "perpetual" observed in the title, the articles provided expressly for the event of a return of the Colo nies to a connection with G. Britain.
This sketch became a basis for the plan reported by the Com? on the 12* of July, now also remaining on the files of Congress, in the handwriting of Mr. Dickinson. The plan, tho' dated after the Declaration of Independence, was probably drawn up before that event ; since the name of Colonies, not States is used through out the draught. The plan reported, was debated and amended from time to time, till the 17* of November 1777, when it was agreed to by Congress, and proposed to the Legislatures of the States, with an explanatory and recommendatory letter. The ratifications of these by their Delegates in Cong5, duly authorized took place at successive dates, but were not compleated till March i, 1781, when'Maryland who had made it a prerequisite1 that the vacant lands acquired from the British Crown should be a common fund, yielded to the persuasion that a final & formal establishment of the federal Union & Gov* would make a favor able impression not only on other foreign Nations, but on G. B. herself.
The great difficulty experienced in so framing the fed? system as to obtain the unanimity required for its due sanction, may be inferred from the long interval, and recurring discussions, between the commencement and completion of the work ; from the changes
1 " preliminary" also appears.
394 THE WRITINGS OF [1835
made during its progress ; from the language of Cong? when pro posing it to the States, wch dwelt on the impracticability of devis ing a system acceptable to all of them ; from the reluctant assent given by some ; and the various alterations proposed by others ; and by tardiness in others again which produced a special address to them from Cong", enforcing the duty of sacrificing local con siderations and favorite opinions to the public safety, and the necessary harmony : Nor was the assent of some of the States finally yielded without strong protests against particular articles, and a reliance on future amendments removing their objections.
It is to be recollected, no doubt, that these delays might be occasioned in some degree, by an occupation of the Public Councils both general & local, with the deliberations and meas ures, essential to a Revolutionary struggle ; But there must have been a balance for these causes, in the obvious motives to hasten the establishment of a regular and efficient Gov1 ; and in the ten dency of the crisis to repress opinions and pretensions,1 which might be inflexible in another state of things.
The principal difficulties which embarrassed the progress, and retarded the completion of the plan of Confederation, may be traced to i. the natural repugnance2 of the parties to a relin- quishment of Power ; 2 a natural jealousy of its abuse in other hands than their own ; 3 the rule of suffrage among parties un equal in size, but equal in sovereignty ; 4 the ratio of Contribu tions in money and in troops, among parties, whose inequality in size did not correspond with that of their wealth, or of their mili tary or free population ; 5, the selection and definition of the powers, at once necessary to the federal head, and safe to the several members.
To these sources of difficulty, incident to the formation of all such Confederacies, were added two others one of a temporary, the other of a permanent nature. The first was the case of the Crown lands, so called because they had been held by the British Crown, and being ungranted to individuals when its authority ceased, were considered by the States within whose charters or
" that would not be abandoned " also appears. 2 " reluctance " also appears.
1835] JAMES MADISON. 395
asserted limits they lay, as devolving on them ; whilst it was con tended by the others, that being wrested from the dethroned Authority, by the equal exertions of all, they resulted of right and in equity to the benefit of all. The lands being of vast extent and of growing value, were 1 the occasion of much discussion & heart burning ; & proved the most obstinate of the impediments to an earlier consummation of the plan of federal Gov*. The State of Maryland the last that acceded to it held out as already noticed, till the i. March 1781 and then yielded only to the hope that by giving a stable & authoritative character to the Confederation, a successful termination of the Contest might be accelerated. The dispute was happily compromised by successive surrenders of portions of the territory by the States having exclusive claims to it, and acceptances of them by Congress.
The other source of dissatisfaction was the peculiar situation of some of the States, which having no convenient- ports for foreign commerce, were subject to be taxed by their neighbors, thro' whose ports, their commerce was carried on. New Jersey placed between Phila & N. York, was likened to a cask tapped at both ends ; And N. Carolina, between Virga & S. Carolina to a patient bleeding at both Arms. The Articles of Confederation provided no remedy2 for the complaint ; which produced a strong protest on the part of N. Jersey ; and never ceased to be a source of dissatisfaction & discord, until the new Constitution superseded the old.
But the radical infirmity of the " Art? of Confederation " was the dependence of Cong? on the voluntary and simultaneous com pliance with its Requisitions, by so many independent Communities, each consulting more or less its particular interests & convenience and distrusting the compliance of the others. Whilst the paper emissions of Cong? continued to circulate they were employed as a sinew of war, like gold & silver. When that ceased to be the case, and the fatal defect of the political System was felt in its alarming force, the war was merely kept alive and brought to a successful conclusion by such foreign aids and temporary expedi ents as could be applied ; a hope prevailing with many, and a wish with all, that a state of peace, and the sources of prosperity opened
1 " was" also appears. 2 " relief " also appears.
396 THE WRITINGS OF [1835
by it, would give to the Confederacy in practice, the efficiency which had been inferred from its theory.
The close of the war however brought no cure for the public embarrassments. The States relieved from the pressure of foreign danger, and flushed with the enjoyment of independent and sover eign power ; (instead of a diminished disposition to part with it), persevered in omissions and in measures incompatible with their relations to the Federal Govt and with those among themselves.
Having served as a member of Cong? through the period between Mar. 1780 & the arrival of peace in 1783, 1 had become intimately acquainted with the public distresses and the causes of them. I had observed the successful opposition to every attempt to procure a remedy by new grants of power to Cong5 I had found moreover that despair of success hung over the compromising provision of April 1783, for the Public necessities, which had been so elabo rately planned and so impressively recommended to the States.1 Sympathizing, under this aspect of affairs, in the alarm of the friends of free Gov* at the threatened danger of an abortive result to the great & perhaps last experiment in its favour, I could not be insensible to the obligation to co-operate as far as I could in averting the calamity. With this view I acceded to the desire of my fellow Citizens of the County that I should be one of its rep resentatives in the Legislature, hoping that I might there best contribute to inculcate the critical posture to which the Revolu tionary cause was reduced, and the merit of a leading agency of the State in bringing about a rescue of the Union, and the bless ings 2 of liberty staked on it, from an impending catastrophe.
It required but little time after taking my seat in the House of Delegates in May 1784, to discover that however favorable the general disposition of the State might be towards 3 the Confederacy the Legislature retained the aversion of its predecessors to trans fers of power from the State to the Gov! of the Union ; notwith standing the urgent demands of the Federal Treasury ; the glaring inadequacy of the authorized mode of supplying it, the rapid
1 See address of Congress. Note in MS. It may be found in Vol. I, p. 454, n., of this edition.
2 " cause " also appears. 3 " to " also appears.
1835] JAMES MADISON. 397
growth of anarchy in the Fed1 System, and the animosity kindled among the States l by their conflicting regulations.
The temper of the Legislature & the wayward course of its pro ceedings may be gathered from the Journals of its Sessions in the years 1784 & 1785.
The failure however of the varied propositions in the Legisla ture, for enlarging the powers of Congress, the continued failure of the efforts of Congr to obtain from them the means of providing for the debts of the Revolution; and of countervailing the commer cial laws of G. B., a source of much irritation & ag5.' which the separate efforts of the States were found worse than abortive ; these Considerations with the lights thrown on the whole subject, by the free & full discussion it had undergone led to a general acquies cence in the Resell1 passed on the 21. of Jany 1786, which proposed & invited a meeting of Deputies from all the States to — insert the Resol. (See Journal.)2
The resolution had been brought forward some weeks before on the failure of a proposed grant of power to Congress to collect a revenue from commerce, which had been abandoned by its friends in consequence of material alterations made in the grant by a Committee of the whole. The Resolution Tho introduced by Mr. Tyler an influential member, who having never served in Congress, had more the ear of the House than those whose services there exposed them to an imputable bias, was so little acceptable that it was not then persisted in. Being now revived by him, on the last day of the Session, and being the alternative of adjourning without any effort for the crisis in the affairs of the Union, it ob-
1 " its members " also appear.
2 " Resolved, that Edmund Randolph, James Madison, Jr., Walter Jones, St. George Tucker, and Meriwether Smith, Esquires, be appointed Commissioners, who, or any three of whom, shall meet such Commissioners as may be appointed in the other States of the Union, at a time and place to be agreed on, to take into consideration the trade of the United States ; to examine the relative situa tions and trade of said States ; to consider how far a uniform system in their commercial regulations may be necessary to their common interest and their permanent harmony ; and to report to the several States such an act, relative to this great object, as, when unanimously ratified by them, will enable the United States in Congress effectually to provide for the same." See Madison's letter of Jany. 22, 1786, to Jefferson.
398 THE WRITINGS OF [1835
tained a general vote ; less however with some of its friends from a confidence in the success of the experiment than from a hope that it might prove a step to a more comprehensive & adequate provision for the wants of the Confederacy.
It happened also that Commissioners appointed by Virga & Maryd to settle the jurisdiction on waters dividing the two States had, apart from their official reports, recomended a uniformity in the regulations of the 2 States on several subjects & particularly on those having relation to foreign trade. It appeared at the time that Mary? had deemed a concurrence of her neighbors, Pena & Delaware, indispensable in such a case, who for like reasons would require that of their neighbors. So apt and forcible an illustra tion of the necessity of a uniformity throughout all the States could not but favour the passage of a Resolution which proposed a Convention having that for its object.
The comissioners appointed by the Legisl : & who attended the Convention were E. Randolph the attorney of the state St. Geo: Tucker & J. M. The designation of the time & place to be pro posed for its meeting, and communicated to the states having been left to the Comr? they named for the time early September and for the place the City of Annapolis avoiding the residences of Cong5 and large Comercial Cities as liable to suspicions of an extraneous influence.
Altho' the invited Meeting appeared to be generally favored, five states only assembled ; some failing to make appointments, and some of the individuals appointed not hastening their attendance, the result in both cases being ascribed mainly, to a belief that the time had not arrived for such a political reform, as might be ex pected from a further experience of its necessity.
But in the interval between the proposal of the Convention, and the time of its meeting such had been the advance of public opinion in the desired direction, stimulated as it had been by the effect of the contemplated object, of the meeting, in turning the general attention to the Critical State of things, and in calling forth the sentiments and exertions of the most enlightened & influ ential patriots, that the Convention thin as it was did not scruple to decline the limited task assigned to it and to recommend to the States a Convention with powers adequate to the occasion. Nor
1835] JAMES MADISON. 399
was it unnoticed that the commission of the N. Jersey Deputation had extended its object to a general provision for the exigencies of the Union A recommendation for this enlarged purpose was ac cordingly reported by a Corn6 to whom the subject had been referred. It was drafted by Col : H., and finally agreed to unanim ously in the following form. Insert it.1
1 The adoption of the address was the only thing done by the Annapolis meet ing. The draft was submitted by Hamilton at a conference and some of the more radical features were toned down at the insistence of Randolph. Madison said to Hamilton : " You had better yield to this man, for otherwise all Virginia will be against you." — Morse's Hamilton, I, 167. The address was as follows :
* * * " Deeply impressed, however, with the magnitude and importance of the object confided to them on this occasion, your Commissioners cannot for bear to indulge an expression of their earnest and unanimous wish, that speedy measures may be taken to effect a general meeting of the States in a future Convention, for the same and such other purposes, as the situation of public af fairs may be found to require.
" If, in expressing this wish, or in intimating any other sentiment, your Com missioners should seem to exceed the strict bounds of their appointment, they entertain a full confidence, that a conduct dictated by an anxiety for the welfare of the United States will not fail to receive an indulgent construction.
" In this persuasion, your Commissioners submit an opinion, that the idea of extending the powers of their Deputies to other objects than those of commerce, which has been adopted by the State of New Jersey, was an improvement on the original plan, and will deserve to be incorporated into that of a future Con vention. They are the more naturally led to this conclusion, as, in the course of their reflections on the subject, they have been induced to think that the power of regulating trade is of such comprehensive extent, and will enter so far into the general system of the Federal Government, that to give it efficacy, and to obviate questions and doubts concerning its precise nature and limits, may require a correspondent adjustment of other parts of the Federal System.
" That there are important defects in the system of the Federal Government, is acknowledged by the acts of all those States which have concurred in the present meeting. That the defects, upon a closer examination, may be found greater and more numerous than even these acts imply, is at least so far prob able, from the embarrassments which characterize the present state of our na tional affairs, foreign and domestic, as may reasonably be supposed to merit a deliberate and candid discussion, in some mode which will unite the sentiments and councils of all the States. In the choice of the mode, your Commissioners are of opinion, that a Convention of deputies from the different States, for the special and sole purpose of entering into this investigation, and digesting a plan for supplying such defects as may be discovered to exist, will be entitled
400 THE WRITINGS OF [1835
The recommendation was well rec? by the Legislature of Virga, which happened to be the first that acted on it, the example of her compliance was made as conciliatory and impressive as possible. The Legislature were unanimous or very nearly so on the occa sion, and as a proof of the magnitude & solemnity attached to it, they placed Gen! W. at the head of the Deputation from the State; and as a proof of the deep interest he felt in the case he overstepped the obstacles to his acceptance of the appointment.1
The law2 complying with the recommendation3 from Annapolis was in the terms following : 4
to a preference, from considerations which will occur without being par ticularized.
"Your Commissioners decline an enumeration of those national circumstances on which their opinion, respecting the propriety of a future Convention with more enlarged powers, is founded ; as it would be an useless intrusion of facts and observations, most of which have been frequently the subject of public dis cussion, and none of which can have escaped the penetration of those to whom they would in this instance be addressed. They are, however, of a nature so serious, as, in the view of your Commissioners, to render the situation of the United States delicate and critical, calling for an exertion of the united virtue and wisdom of all the members of the Confederacy.
" Under this impression, your Commissioners, with the most respectful def erence, beg leave to suggest their unanimous conviction, that it may essentially tend to advance the interests of the Union, if the States by whom they have been respectively delegated would themselves concur, and use their endeavors to procure the concurrence of the other States, in the appointment of Commis sioners, to meet at Philadelphia on the second Monday in May next, to take into consideration the situation of the United States ; to devise such further pro visions as shall appear to them necessary to render the constitution of the Fe deral Government adequate to the exigencies of the Union ; and to report such an act for that purpose, to the United States in Congress assembled, as, when agreed to by them, and afterwards confirmed by the Legislatures of every State, will effectually provide for the same.
" Though your Commissioners could not with propriety address these obser vations and sentiments to any but the States they have the honor to represent, they have nevertheless concluded, from motives of respect, to transmit copies of this Report to the United States in Congress assembled, and to the Execu tives of the other States." ! " Trust " also appears.
2 " Bill " and " act " also appear. 3 " Bill " also appears.
4 It was written by Madison :
" Whereas, the Commissioners who assembled at Annapolis, on the fourteenth day of September last, for the purpose of devising and reporting the means of
1835] JAMES MADISON. 401
A resort to a General Convention to remodel the Confederacy, was not a new idea. It had entered at an early date into the con versations and speculations of the most reflecting & foreseeing
enabling Congress to provide effectually for the commercial interests of the United States, have represented the necessity of extending the revision of the Federal system to all its defects ; and have recommended that deputies for that purpose be appointed by the several Legislatures, to meet in Convention in the City of Philadelphia, on the second Monday of May next, — a provision which seems preferable to a discussion of the subject in Congress, where it might be too much interrupted by the ordinary business before them, and where it would, besides, be deprived of the valuable counsels of sundry in dividuals who are disqualified by the constitutions or laws of particular States, or restrained by peculiar circumstances from a seat in that Assembly :
" And whereas, the General Assembly of this Commonwealth, taking into view the actual situation of the Confederacy, as well as reflecting on the alarming representations made from time to time, by the United States in Con gress, particularly in their act of the fifteenth day of February last, can no longer doubt that the crisis is arrived at which the good people of America are to decide the solemn question, whether they will, by wise and magnanimous efforts, reap the just fruits of that independence which they have so gloriously acquired, and of that union which they have cemented with so much of their common blood ; or whether, by giving way to unmanly jealousies and preju dices, or to partial and transitory interests, they will renounce the auspicious blessings prepared for them by the Revolution, and furnish to its enemies an eventual triumph over those, by whose virtue and valour, it has been accomplished :
" And whereas, the same noble and extended policy, and the same fraternal and affectionate sentiments, which originally determined the citizens of this Commonwealth to unite with their brethren of the other States, in establishing a federal government, cannot but be felt with equal force now, as motives to lay aside every inferior consideration, and to concur in such farther concessions and provisions, as may be necessary to secure the great objects for which that government was instituted, and to render the United States as happy in peace, as they have been glorious in war.
" Be it, therefore, enacted, by the General Assembly of the Commonwealth of Virginia, That seven Commissioners be appointed by joint ballot of both Houses of Assembly, who, or any three of them, are hereby authorized as Deputies of this Commonwealth, to meet such Deputies as may be appointed and authorized by other States, to assemble in Convention at Philadelphia, as above recommended, and to join with them in devising and discussing all such alterations and farther provisions, as may be necessary to render the Federal Constitution adequate to the exigencies of the Union; and in reporting such an act for that purpose, to the United States in Congress, as when agreed to by them,
VOL. II. — 26
402 THE WRITINGS OF [1835
observers of the inadequacy of the powers allowed to Congress.1 In a pamphlet published in May 81 at the seat of Cong? Pelatiah Webster an able tho' not conspicuous Citizen, after discussing the fiscal system of the U. States, and suggesting among other re medial provisions including national Bank remarks that " the Authority of Cong5, at present is very inadequate to the perform ance of their duties ; and this indicates the necessity of their calling a Continental Convention for the express purpose of ascer taining, defining, enlarging and limiting, the duties & powers of their Constitution."
On the i. day of Ap!, 1783, Col: Hamilton, in a debate in Cong* observed that 2
He alluded probably to (see life of Schuyler in Longacre 3 — )
It does not appear however that his expectation had been fulfilled.
In a letter to J. M. from R. H. Lee then President of Cong? dated Novr 26, 1784 He says : 4
The answer of J. M. remarks a
and duly confirmed by the several States, will effectually provide for the same. " And be it further enacted, That in case of the death of any of the said deputies, or of their declining their appointments, the Executive are hereby authorized to supply such vacancies; and the Governor is requested to transmit forthwith a copy of this act to the United States in Congress, and to the Exec utives of each of the States in the Union."
1 See Alexander Hamilton to James Duane, Sept. 3, 1780. Works of Hamil ton (Lodge), i., 203.
2 — he wished to see a general convention with the object of strengthening the federal constitution instead of several conventions of representatives of the several sections of the country. Vol. i., 439, of this edition.
3 The reference is incorrect, and should be to the sketch of Hamilton in Longacre, Vol. ii. : " The same legislature [of 1782] that appointed him [Hamilton] unanimously passed resolutions, introduced into the senate by General Schuyler, declaring that the confederation was defective in not giving congress power to provide revenue for itself, or in not investing them with funds from established and productive sources ; and that it would be advisable to revise and amend the confederation."
4 — that a general convention to revise the articles of confederation is being talked about in congress.
5 — that he favors the project, but doubts if it is favored in Virginia. See his letter to Lee, December 24, 1784, ante.
1835] JAMES MADISON. 403
In 1785, Noah Webster whose pol & other valuable writings had made him known to the Public, in one of his publications, of American policy brought into view the same resort for supply ing the defects Fed1 System (see his life in Longacre) J
The proposed & expected Convention at Annapolis the first of a general character that appears to have been realized, & the state of the public mind awakened by it, had attracted the par ticular attention of Cong5 and favored the idea there of a Con vention with fuller powers for amending the Confederacy, to J. M. letters of Monroe of Grayson.2
1 "Sketches of American Policy," published in the winter of 1784-85. Longacre Vol. ii.
2 Cf. the letters of Monroe to Madison, December 26, 1785, February n and March 19, 1786. Writings of Monroe, i., 109, 122, 123. The letter of Gray- son is dated New York, March 22, 1786 :
******** " There has been a great contest in Jersey for the Argent papier ; but though it went triumphantly through the lower house, it was lost in the Council, 8 to 5, — some of the Members who were adverse to it, have been burnt in effigy, in particular Col? Ogden at or near Elizabeth town: the old Governor was drawn up to the Stake but pardoned, on account of his having been the first magis trate: This same Jersey bill was one of the most iniquitous things I ever saw in my life ; the money was a tender ; if it was refused, the debt was suspended for 12 years, in the mean time the act of limitation ran of course, which in effect destroyed it. — Jersey has not been singular in her attempts at cheating : in this place a bill is depending, of the same purport as that of Jersey, & which it is probable will pass, although it is violently opposed by the upright & respectable part of the CommY . The Antients were surely men of more candor than We are ; they contended openly for an abolition of debts in so many words, while we strive as hard for the same thing under the decent & specious pretense of a circulating medium. Montesquieu was not wrong when he said the demo- cratical might be as tyranical as the despotic, for where is there a greater act of despotism than that of issuing paper to depreciate for the purpose of paying debts, on easy terms; If Lord Effingham is right that an act ag* the Constitu tion is void, surely paper money with a tender annexed to it is void for is it not an attack upon property, the security of which is made a fundamental in every State in the Union : — There has been some serious thoughts in the minds of some of the Members of Congress to recommend to the States the meeting of a general Convention, to consider, of an alteration of the Confederation & there is a motion to this effect now under Consideration : it is contended that the', present Confederation is utterly inefficient, and that if it remains much longer in its present State of imbecillity we shall be one of the most contemptible
4o4 THE WRITINGS OF [1835
It does not appear that in any of these cases, the reform system was to be otherwise sanctioned than by the Legislative authy of the States ; nor whether nor how far a change was to be made in the structure of the Depository of the Federal powers.
The act of Virga providing for the Convention at Philada, was succeeded by appointments from the other states as their Legisla tures were assembled, the appointments being selections from the most experienced & highest 1 standing Citizens. Rh. Is. was the only exception to a compliance with the recommendation from Annapolis, well known to have been swayed by an obdurate adher ence to an advantage which her position gave her of taxing her neighbors thro' their consumption of imported supplies, an ad vantage which it was forseen would be taken from her by a revisal of the " articles of Confederation."
As the pub. mind had been ripened for a salutary Reform of the pol. System, in the interval between the proposal & the meet ing of the Corn" at Annapolis, the interval between the last event, and the meeting of Deps at Phila had continued to develope more & more the necessity & the extent of a systematic provision for the preservation and Gov* of the Union. Among the ripening incidents was the Insurrection of Shays, in Mass*5, against her Gov*; which was with difficulty suppressed, notwithstanding the influence on the insurgents of an apprehended interposition of the Fed? troops.
At the date of the Convention, the aspect & retrospect of the pol. condition of the U. S. could not but fill the pub. mind with a gloom which was relieved only by a hope that so select a Body would devise an adequate remedy for the existing and prospective evils so impressively demanding it.
It was seen that the public debt rendered so sacred by the
Nations on the face of the Earth: — for my own part I have not yet made up my mind on the subject: I am doubtful whether it is not better to bear those ills we have than fly to others that we know not of: I am however in no doubt about the weakness of the foederal Government: if it was weaker notwithstand ing, it would answer if the States had power as in the United Netherlands the foederal Government is weak but the Individual States are strong — It is no wonder our Government should not work well, being formed on the Dutch model where circumstances are so materially different: — * * * . " 1 " High " also appears.
1835] JAMES MADISON. 405
cause in which it had been incurred remained without any pro vision for its payment. The reiterated and elaborate efforts of Cong, to procure from the States a more adequate power to raise the means of payment had failed. The effect of the ordinary requisitions of Congress had only displayed the inefficiency of the authy making them; none of the States having duly complied with them, some having failed altogether or nearly so; and in one instance, that of N. Jersey, a compliance was expressly refused ; nor was more yielded to the expostulations of members of Cong5 deputed to her Legislature, than a mere repeal of the law, without a compliance (see letter of Grayson to J. M.).
The want of Authy in Cong? to regulate Commerce had pro duced in Foreign nations particularly G. B., a monopolizing policy injurious to the trade of the U. S., and destructive to their navi gation; the imbecility and anticipated dissolution of the Confed eracy extinguish81 all apprehensions of a Countervailing policy on the part of the U. States.
The same want of a general power over Commerce led to an exercise of the power separately, by the States, wc.h not only proved abortive, but engendered rival, conflicting and angry regu lations. Besides the vain attempts to supply their respective treasuries by imposts, which turned their commerce into the neighbouring ports, and to coerce a relaxation of the British mon opoly of the W. Ind* navigation, which was attempted by Virginia,1 (see Journal of ) the States having ports for foreign com
merce, taxed & irritated the adjoining States, trading thro' them, as N. Y., Pen*, Virga & S. Carolina. Some of the States, as Con necticut, taxed imports as from Massts, higher than imports even from G. B. of wch Mass1.5 complained to Virg* and doubtless to other States (see letter of J. M.). In sundry instances as of N. Y., N. J., Pa & Maryld, (see ). The navigation laws treated the
Citizens of other States as aliens.
In certain cases the Authy of the Confederacy was disregarded, as in violation not only of the Treaty of peace ; but of Treaties with France & Holland, which were complained of to Cong8.
1 The allusion is to the act of the Virginia Assembly passed January 21, 1786, imposing a tonnage tax of 5.f. on vessels of foreigners, described in Madison's letter to Monroe of January 22, 1786, ante
406 THE WRITINGS OF [1835
In other cases the Fed1 Authy was violated by Treaties & wars with Indians, as by Geo.; by troops raised & kept up with' the consent of Cong5, as by Mass'.5; by compacts with* the consent of Cong*, as between Pen* and N. Jersey, and between Virga & Mary]d. From the Legisl: Journals of Virga it appears, that a vote refusing to apply for a sanction of Cong3 was followed by a vote agst the communication of the Compact to Cong3.
In the internal administration of the States a violation of Con tracts had become familiar in the form of depreciated paper made a legal tender, of property substituted for money, of Instalment laws, and of the occlusions of the Courts of Justice; although evident that all such interferences affected the rights of other States, Relatively creditor, as well as Citizens Creditors within the State.
Among the defects which had been severely felt was that of a uniformity in cases requiring it, as laws of naturalization and bankruptcy, a Coercive authority operating on individuals and a guaranty of the internal tranquillity of the States.
As a natural consequence of this distracted and disheartening condition 1 of the union, the Fed1 Authy had ceased to be re spected abroad, and dispositions were shewn there, particularly in G. B., to take advantage of its imbecility, and to speculate on its approaching downfall : At home it had lost all confidence & credit ; the unstable and unjust career of the States had also for feited the respect & confidence essential to order and good Govt* involving a general decay of confidence between Man & man. It was found moreover that those least partial to popular Gov', or most distrustful of its efficacy were yielding to anticipations, that from an increase of the confusion a Gov' might result more con genial with their taste or their opinions. Whilst those most de voted to the principles and forms of Republics, were alarmed for the cause of liberty itself, at stake in the American Experiment, and anxious for a system that w? avoid the inefficacy of a mere confederacy without passing into the opposite extreme of a con solidated gov* It was known that there were individuals who had betrayed a bias towards Monarchy (see Knox to G. W. and him
1 "appearances" also appears.
1835] JAMES MADISON. 407
to Jay,) (Marshall's life l) and there had always been some not unfavorable to a partition of the Union into several Con federacies ; either from a better chance of figuring on a Sectional Theatre, or that the Sections would require stronger Govts, or by their hostile conflicts lead to a monarchical consolidation. The idea of a dismemberment had recently made its appearance in the Newspapers.
Such were the defects, the deformities, the diseases and the
1 June 27, 1786, Jay wrote to Washington : " What I most fear is, that the better kind of people (by which I mean the people who are orderly and indus trious, who are content with their situations, and not uneasy in their circum stances) will be led by the insecurity of property, the loss of confidence in their rulers, and the want of public faith and rectitude, to consider the charms of liberty as imaginary and delusive. A state of uncertainty and fluctuation must disgust and alarm such men, and prepare their minds for almost any change that may promise them quiet and security." In the course of his reply Wash ington said : " What astonishing changes a few years are capable of producing ! I am told that even respectable characters speak of a monarchical form of gov ernment without horror. From thinking, proceeds speaking, thence to acting is often but a single step. But how irrevocable and tremendous ! what a triumph for our enemies to verify their predictions ! — what a triumph for the advocates of despotism to find that we are incapable of governing ourselves, and that systems founded on the basis of equal liberty are merely ideal and fal lacious ! Would to God that wise measures may be taken in time to avert the consequences we have but too much reason to apprehend." — Marshall's Wash ington (2<? Ed.), ii., 107, 109.
From New York, October 28, 1786, Knox wrote to Washington as follows :
". . . Our political machine constituted of thirteen independent sovereign ties, have [sic] been constantly operating against each other, and against the federal head, ever since the peace. The powers of Congress are utterly inade quate to preserve the balance between the respective States, and oblige them to do those things which are essential to their own welfare, and for the general good. The human mind in the local legislatures seems to be exerted, to pre vent the federal constitution from having any beneficial effects. The machine works inversely to the public good in all its parts. Not only is State against State, and all against the federal head, but the States within themselves possess the name only, without having the essential concomitant of government, the power of preserving the peace, the protection of the liberties and property of the citizens.
" On the first impression of Faction and licentiousness the fine theoretic gov ernment of Massachusetts has given way, and its laws arrested and trampled under foot. Men at a distance, who have admired our systems of government,
4o8 THE WRITINGS OF [1835
ominous prospects, for which the Convention were to provide a remedy, and which ought never to be overlooked in expounding & appreciating the Constitutional Charter, the remedy that was provided.
As a sketch on paper, the earliest perhaps wc.h of a Constitu tional Gov1 for the Union (organized into the regular Departments with physical means operating on individuals) to be sanctioned
unfounded in nature, are apt to accuse the rulers, and say that taxes have been assessed too high and collected too rigidly. This is a deception equal to any that has hitherto been entertained. It is indeed a fact, that high taxes are the ostensible cause of the commotions, but that they are the real cause is as far remote from truth as light from darkness. The people who are the insurgents have never paid any, or but very little taxes. But they see the weakness of government ; They feel at once their own poverty, compared with the opulent, and their own force, and they are determined to make use of the latter, in order to remedy the former. Their creed is ' That the property of the United States has been protected from the confiscation of Great Britain by the joint exertions of all, and therefore ought to be the common property of all. And he that at tempts opposition to this creed is an enemy to equity and justice, and ought to be swept from off the face of the earth.' In a word they are determined to annihilate all debts public and private and have agrarian Laws, which are easily affected by the means of unfortunate paper money which shall be a ten der in all cases whatever.
" The numbers of these people amount in Massachusetts to about one fifth part of several populous counties, and to them may be collected, people of similar sentiments, from the States of Rhode Island, Connecticut and New Hampshire so as to constitute a body of 12 or 15000 desperate & unprincipled men. They are chiefly of the young and active part of the community, more easily collected than perhaps kept together afterwards. But they will probably commit overt acts of treason, which will compell them to embody for their own safety — once embodied they will be constrained to submit to discipline for the same reason. Having proceeded to this length for which they are now ripe, we shall have a formidable rebellion against reason, the principles of all gov ernment, and the very name of liberty. This dreadful situation has alarmed every man of principle and property in New England. They start as from a dream, and ask what has been the cause of our delusion? what is to afford us security against the violence of lawless men ? Our government must be braced, changed, or altered to secure our lives and property. We imagined that the mildness of our government and the virtue of the people were so correspondent, that we were not as other nations requiring brutal force to support the laws. But we find that we are men, actual men, possessing all the turbulent passions be longing to that animal and that we must have government proper and adequate
1835] JAMES MADISON. 409
by the people of the States, acting in their original & sovereign character, was contained in a letter from J. M. of Apl 8 1787 to Govr Randolph, a copy of the latter is here inserted.
The feature in the letter which vested in the general Authy a negative on the laws of the States, was suggested by the negative in the head of the British Empire, which prevented collisions be tween the parts & the whole, and between the parts themselves. It was supposed that the substitution, of an elective and responsi ble authority for an hereditary and irresponsible one, would avoid the appearance even of a departure from the principle of Repub licanism. But altho' the subject was so viewed in the Conven tion, and the votes on it were more than once equally divided, it was finally & justly abandoned, as apart from other objections it was not practicable among so many states increasing in num ber and enacting each of them so many laws. Instead of the proposed negative, the objects of it were left as finally provided for in the Constitution.
On the arrival of the Virginia Deputies at Philada, it occurred v to them that from the early and prominent part taken by that State in bringing about the Convention some initiative step might be expected from them. The Resolutions introduced by Gov ernor Randolph were the result of a Consultation on the subject ; with an understanding that they left all the Deputies entirely open
for him. The people of Massachusetts for instance, are far advanced in this doc trine, and the men of reflection, & principle, are determined to endeavor to estab lish a government which shall have the power to protect them in their lawful pursuits, and which will be efficient in all cases of internal commotions or for eign invasions. They mean that liberty shall be the basis, a liberty resulting from the equal and firm administration of the laws. They wish for a general government of unity as they see the local legislatures, must naturally and neces sarily tend to retard and frustrate all general government.
1 ' We have arrived at that point of time in which we are forced to see our national humiliation, and that a progression in this line, cannot be productive of happiness either public or private. Something is wanting and something must be done or we shall be involved in all the horror of faction and civil war with out a prospect of its termination. Every tried friend to the liberties of his country is bound to reflect, and to step forward to prevent the dreadful consequences which will result from a government of events. Unless this is done we shall be liable to be ruled by an arbitrary and capricious armed tyranny, whose word and will must be law. ." — Wash. MSS.
4io THE WRITINGS OF [1835
to the lights of discussion, and free to concur in any alterations or modifications which their reflections and judgments might ap prove. The Resolutions as the Journals shew became the basis on which the proceedings of the Convention commenced, and to the developments, variations and modifications of which the plan of Gov' proposed by the Convention may be traced.
The curiosity I had felt during my researches into the History of the most distinguished Confederacies, particularly those of antiquity, and the deficiency I found in the means of satisfying it more especially in what related to the process, the principles, the reasons, & the anticipations, which prevailed in the formation of them, determined me to preserve as far as I could an exact account of what might pass in the Convention whilst executing its trust, with the magnitude of which I was duly impressed, as I was with the gratification promised to future curiosity by an authentic exhibition of the objects, the opinions, & the reasonings from which the new System of Gov' was to receive its peculiar structure & organization. Nor was I unaware of the value of such a con tribution to the fund of materials for the History of a Constitu tion on which would be Staked the happiness of a people great even in its infancy, and possibly 1 the cause of liberty throughout the world.
In pursuance of the task I had assumed I chose a seat in front of the presiding member, with the other members on my right & left hands. In this favorable position for hearing all that passed, I noted in terms legible & in abbreviations & marks intelligible to myself what was read from the Chair or spoken by the members ; and losing not a moment unnecessarily between the adjournment & reassembling of the Convention I was enabled to write out my daily notes during the session or within a few finishing days after its close, in the extent and form preserved in my own hand on my files.
In the labor and correctness of this I was not a little aided by practice, and by a familiarity with the style and the train of ob servation and reasoning which characterized the principal speak ers. It happened, also, that I was not absent a single day, nor
" perhaps " also appears.
1835] JAMES MADISON. 411
more than a casual fraction of an hour in any day, so that I could not have lost a single speech unless a very short one.
It may be proper to remark, that, with a very few exceptions) i/ the speeches were neither furnished, nor revised, nor sanctioned, by the speakers, but written out from my notes, aided by the freshness of my recollections. A further remark may be proper, that views of the subject might occasionally be presented, in the speeches and proceedings, with a latent reference to a compro mise on some middle ground, by mutual concessions. The ex ceptions alluded to were,— first, the sketch furnished by Mr. Randolph of his speech on the introduction of his propositions, on the twenty-ninth day of May ; secondly, the speech of Mr. Hamilton, who happened to call on me when putting the last hand to it, and who acknowledged its fidelity, without suggesting more than a very few verbal alterations which were made ; thirdly, the speech of Gouverneur Morris on the second day of May, which was communicated to him on a like occasion, and who acquiesced in it without even a verbal change. The correctness of his lan guage and the distinctness of his enunciation were particularly favorable to a reporter. The speeches of Doctor Franklin, ex cepting a few brief ones, were copied from the written ones read to the Convention by his colleague, Mr. Wilson, it being incon venient to the Doctor to remain long on his feet.
Of the ability and intelligence of those who composed the Con- / vention the debates and proceedings may be a test ; as the char acter of the work which was the offspring of their deliberations must be tested by the experience of the future, added to that of nearly half a century which has passed.
But whatever may be the judgment pronounced on the ^ competency of the architects of the Constitution, or what ever may be the destiny of the edifice prepared by them, I feel it a duty to express my profound and solemn conviction, de rived from my intimate opportunity of observing and appreciat ing the views of the Convention, collectively and individually, that there never I was an assembly of men, charged with a great and arduous trust, who were more pure in their motives, or more exclusively or anxiously devoted to the object committed to them, than were the members of the Federal Convention of 1787, to the
4i2 THE WRITINGS OF JAMES MADISON. [1835]
object of devising and proposing a constitutional system which should best supply the defects of that which it was to replace, and best secure the permanent liberty and happiness of their country. /
End Of Volume Ii
END OF VOLUME II.
The Journal of the Debates in the Convention, vol. 1 (Gaillard Hunt, ed., 1908)
# The Journal of the Debates in the Convention, vol. 1 (Gaillard Hunt, ed., 1908)
Produced by the Bookworm, <bookworm.librivox AT gmail.com>, Ernest Schaal, and the Online Distributed Proofreading Team at http://www.pgdp.net (This book was produced from scanned images of public domain material from the Google Print project.)
The Journal of the Debates in the Convention Which Framed The Constitution of the United States May-September, 1787
As Recorded by James Madison
Edited by Gaillard Hunt
In Two Volumes
Volume I
Volume I.
G. P. Putnam's Sons New York and London The Knickerbocker Press 1908
The Knickerbocker Press, New York
[Illustration]
Contents Of Volume I. Page
CONTENTS OF VOLUME I.
PAGE The Records of the Constitutional Convention (Introduction by the Editor) vii
Chronology xix
Journal of the Constitutional Convention of 1787 1
[Illustration]
[Illustration]
List Of Fac-Similes. Facing Page
LIST OF FAC-SIMILES.
FACING PAGE
First Page of Madison's Journal, actual size 2
Charles Pinckney's Letter 20
The Pinckney Draft 22
Hamilton's Principal Speech 154
[Illustration]
[Illustration]
The Records Of The Constitutional Convention
THE RECORDS OF THE CONSTITUTIONAL CONVENTION.
James Madison's contemporaries generally conceded that he was the leading statesman in the convention which framed the Constitution of the United States; but in addition to this he kept a record of the proceedings of the convention which outranks in importance all the other writings of the founders of the American Republic. He is thus identified, as no other man is, with the making of the Constitution and the correct interpretation of the intentions of the makers. His is the only continuous record of the proceedings of the convention. He took a seat immediately in front of the presiding officer, among the members, and took down every speech or motion as it was made, using abbreviations of his own and immediately afterwards transcribing his notes when he returned to his lodgings. A few motions only escaped him and of important speeches he omitted none. The proceedings were ordered to be kept secret, but his self-imposed task of reporter had the unofficial sanction of the convention. Alexander Hamilton corrected slightly Madison's report of his great speech and handed him his plan of government to copy. The same thing was done with Benjamin Franklin's speeches, which were written out by Franklin and read by his colleague Wilson, the fatigue of delivery being too great for the aged Franklin, and Madison also copied the Patterson plan. Edmund Randolph wrote out for him his opening speech from his notes two years after the convention adjourned.[1]
[1] Madison to Randolph, April 21, 1789.
In the years after the convention Madison made a few alterations and additions in his journal, with the result that in parts there is much interlineation and erasure, but after patient study the meaning is always perfectly clear. Three different styles of Madison's own penmanship at different periods of his life appear in the journal, one being that of his old age within five years of his death. In this hand appears the following note at the end of the journal: "The few alterations and corrections made in the debates which are not in my handwriting were dictated by me and made in my presence by John C. Payne."[2] The rare occasions where Payne's penmanship is distinguishable are indicated in the notes to this edition.
[2] Mrs. Madison's brother.
The importance attached by Madison to his record is shown by the terms of his will, dated April 15, 1835, fourteen months before his death:
"I give all my personal estate ornamental as well as useful, except as herein after otherwise given, to my dear Wife; and I also give to her all my manuscript papers, having entire confidence in her discreet and proper use of them, but subject to the qualification in the succeeding clause. Considering the peculiarity and magnitude of the occasion which produced the Convention at Philadelphia in 1787, the Characters who composed it, the Constitution which resulted from their deliberations, its effects during a trial of so many years on the prosperity of the people living under it, and the interest it has inspired among the friends of free Government, it is not an unreasonable inference that a careful and extended report of the proceedings and discussions of that body, which were with closed doors, by a member who was constant in his attendance, will be particularly gratifying to the people of the United States, and to all who take an interest in the progress of political science and the course of true liberty. It is my desire that the Report as made by me should be published under her authority and direction."[3]
[3] Orange County, Va., MSS. records.
This desire was never consummated, for Mrs. Madison's friends advised her that she could not herself profitably undertake the publication of the work, and she accordingly offered it to the Government, by which it was bought for $30,000, by act of Congress, approved March 3, 1837. On July 9, 1838, an act was approved authorizing the Joint Committee on the Library to cause the papers thus purchased to be published, and the Committee intrusted the superintendence of the work to Henry D. Gilpin, Solicitor of the Treasury. The duplicate copy of the journal which Mrs. Madison had delivered was, under authority of Congress, withdrawn from the State Department and placed in Mr. Gilpin's hands. In 1840 (Washington: Lantree & O'Sulivan), accordingly, appeared the three volumes, _The Papers of James Madison Purchased by Order of Congress_, edited by Henry D. Gilpin. Other issues of this edition, with changes of date, came out later in New York, Boston, and Mobile. This issue contained not only the journal of the Constitutional Convention, but Madison's notes of the debates in the Continental Congress and in the Congress of the Confederation from February 19 to April 25, 1787, and a report Jefferson had written of the debates in 1776 on the Declaration of Independence, besides a number of letters of Madison's. From the text of Gilpin a fifth volume was added to Elliot's _Debates_ in 1845, and it was printed in one volume in Chicago, 1893.
Mr. Gilpin's reading of the duplicate copy of the Madison journal is thus the only one that has hitherto been published.[4] His work was both painstaking and thorough, but many inaccuracies and omissions have been revealed by a second reading from the original manuscript journal written in Madison's own hand, just as he himself left it; and this original manuscript has been followed with rigid accuracy in the text of the present edition.
[4] Volume iii of _The Documentary History of the United States_ (Department of State, 1894) is a presentation of a literal print of the original journal, indicating by the use of larger and smaller type and by explanatory words the portions which are interlined or stricken out.
The editor has compared carefully with Madison's report, as the notes will show, the incomplete and less important records of the convention, kept by others. Of these, the best known is that of Robert Yates, a delegate in the convention from New York, who took notes from the time he entered the convention, May 25, to July 5, when he went home to oppose what he foresaw would be the result of the convention's labors. These notes were published in 1821 (Albany), edited by Yates's colleague in the convention, John Lansing, under the title, _Secret Proceedings and Debates of the Convention Assembled at Philadelphia, in the Year 1787, for the Purpose of Forming the Constitution of the United States of America_. This was afterwards reprinted in several editions and in the three editions of _The Debates on the Federal Constitution_, by Jonathan Elliot (Washington, 1827-1836). Madison pronounced Yates's notes "Crude and broken." "When I looked over them some years ago," he wrote to J. C. Cabell, February 2, 1829, "I was struck with the number of instances in which he had totally mistaken what was said by me, or given it in scraps and terms which, taken without the developments or qualifications accompanying them, had an import essentially different from what was intended." Yates's notes were colored by his prejudices, which were strong against the leaders of the convention, but, making allowance for this and for their incompleteness, they are of high value and rank next to Madison's in importance.
Rufus King, a delegate from Massachusetts, kept a number of notes, scattered and imperfect, which were not published till 1894, when they appeared in King's _Life and Correspondence of Rufus King_ (New York: Putnam's).
William Pierce, a delegate from Georgia, made some memoranda of the proceedings of the convention, and brief and interesting sketches of all the delegates, which were first printed in _The Savannah Georgian_, April, 18-28, 1828, and reprinted in _The American Historical Review_ for January, 1898.
The notes of Yates, King, and Pierce are the only unofficial record of the convention extant, besides Madison's, and their chief value is in connection with the Madison record, which in the main they support, and which occasionally they elucidate.
December 30, 1818, Charles Pinckney wrote to John Quincy Adams that he had made more notes of the convention than any other member except Madison, but they were never published and have been lost or destroyed.[5]
[5] See p. 22, n.
In 1819 (Boston) was published the _Journal, Acts and Proceedings of the Convention_, etc., under the supervision of John Quincy Adams, Secretary of State, by authority of a joint resolution of Congress of March 27, 1818. This was the official journal of the convention, which the Secretary, William Jackson, had turned over to the President, George Washington, when the convention adjourned, Jackson having previously burned all other papers of the convention in his possession. March 16, 1796, Washington deposited the papers Jackson had given him with the Secretary of State, Timothy Pickering. They consisted of three volumes,--the journal of the convention, the journal of the proceedings of the Committee of the Whole of the convention, and a list of yeas and nays, beside a printed draft of the Constitution as reported August 6th, showing erasures and amendments afterwards adopted, and the Virginia plan in different stages of development.
In preparing the matter for publication Secretary Adams found that for Friday, September 14, and Saturday, September 15, the journal was a mere fragment, and Madison was applied to and completed it from his minutes. From General B. Bloomfield, executor of the estate of David Brearley, a delegate in the convention from New Jersey, Adams obtained a few additional papers, and from Charles Pinckney a copy of what purported to be the plan of a constitution submitted by him to the convention. All of these papers, with some others, appeared in the edition of 1819, which was a singularly accurate publication, as comparison by the present editor of the printed page with the original papers has shown.
The Pinckney plan, as it appeared in this edition of the journal, was incorporated by Madison into his record, as he had not secured a copy of it when the convention was sitting. But the draft furnished to Secretary Adams in 1818, and the plan presented by Pinckney to the convention in 1787 were not identical, as Madison conclusively proved in his note to his journal, in his letter to Jared Sparks of November 25, 1831, and in several other letters, in all of which he showed that the draft did not agree in several important respects with Pinckney's own votes and motions in the convention, and that there were important discrepancies between it and Pinckney's _Observations on the Plan of Government_, a pamphlet printed shortly after the convention adjourned.[6]
[6] See P. L. Ford's _Pamphlets on the Constitution_, 419.
It is, indeed, inconceivable that the convention should have incorporated into the constitution so many of the provisions of the Pinckney draft, and that at the same time so little reference should have been made to it in the course of the debates; and it is equally extraordinary that the contemporaries of Pinckney did not accord to him the chief paternity of the Constitution, which honor would have belonged to him if the draft he sent to Mr. Adams in 1818 had been the one he actually offered the convention in the first week of its session. The editor has made a careful examination of the original manuscripts in the case. They consist (1) of Mr. Pinckney's letter to Mr. Adams of December 12, 1818, written from Winyaw, S. C., while Pinckney was temporarily absent from Charleston, acknowledging Mr. Adams's request for the draft, (2) his letter of December 30, written from Charleston, transmitting the draft, and (3) the draft. The penmanship of all three papers is contemporaneous, and the letter of December 30 and the draft were written with the same pen and ink. This may possibly admit of a difference of opinion, because the draft is in a somewhat larger chirography than the letter, having been, as befitted its importance, written more carefully. But the letter and the draft are written upon the same paper, and this paper was not made when the convention sat in 1787. There are several sheets of the draft and one of the letter, and all bear the same water-mark--"Russell & Co. 1797." The draft cannot, therefore, claim to be the original Pinckney plan, and was palpably made for the occasion, from Mr. Pinckney's original notes doubtless, aided and modified by a copy of the Constitution itself. Thirty years had elapsed since the close of the Constitutional Convention when the draft was compiled, and its incorrectness is not a circumstance to occasion great wonder.[7]
[7] See p. 19, n.
Correspondence on the subject of the convention, written while it was in session, was not extensive, but some unpublished letters throwing light upon contemporaneous opinion have been found and are quoted in the notes.
The editor desires to record his obligation for assistance in preparing these volumes to his friend, Montgomery Blair, Esq., of Silver Spring, Md.
Gaillard Hunt. Cherry Hill Farm, Va.,
GAILLARD HUNT.
CHERRY HILL FARM, VA., September, 1902.
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CHRONOLOGY OF JAMES MADISON.
1787.
1787. Prepares the "Virginia plan" in conjunction with the May 6-25. Virginia delegates.
May 14. Attends the first gathering of the delegates.
May 30. Moves postponement of question of representation by free population.
Moves that congressional representation be proportioned to the importance and size of the States.
Makes his first speech on this subject.
May 31. Advocates representation in one house by popular election.
Opposes uniting several States into one district for representation in Senate.
Doubts practicability of enumerating powers of national legislature.
Suggests the impossibility of using force to coerce individual States.
June 1. Moves that the powers of the Executive be enumerated.
June 2. Objects to giving Congress power to remove the President upon demand of a majority of the State legislatures.
June 4. Favors giving power to more than a majority of the national legislature to overrule an Executive negative of a law.
June 5. Opposes election of judges by both branches of Congress.
Advocates submission of constitution to conventions of the people.
Favors inferior judicial tribunals.
June 6. Speaks for popular representation in the House.
Seconds motion to include a portion of the Judiciary with the Executive in revisionary power over laws.
June 7. Speaks for proportional representation in both houses of Congress.
June 8. Seconds motion to give Congress power to negative State laws.
Suggests temporary operation of urgent laws.
June 12. Seconds motion to make term of Representatives three years.
Thinks the people will follow the convention.
Favors a term of seven years for Senators.
June 13. Moves defining powers of Judiciary.
Objects to appointment of judges by whole legislature.
Thinks both houses should have right to originate money bills.
Advocates a national government and opposes the "Jersey plan."
June 21. Speaks in favor of national supremacy.
Opposes annual or biennial elections of Representatives.
June 22. Favors fixing payment of salaries by a standard.
June 23. Proposes to debar Senators from offices created or enhanced during their term.
Speaks for the proposition.
June 25. Wishes to take up question of right of suffrage.
June 26. Speaks for a long term for Senators.
Opposes their payment by the States.
June 28. Speaks for proportional representation.
June 29. Insists that too much stress is laid on State sovereignty.
June 30. Contends against equal State representation in the Senate.
Speaks again on subject, but would preserve State rights.
July 2. Opposes submission of the question to a special committee.
July 5. Opposes compromise report of committee.
July 6. Thinks part of report need not be postponed.
July 7. Thinks question of representation ought to be settled before other questions.
July 9. Suggests free inhabitants as basis of representation in one house, and all inhabitants as basis in the other house.
July 10. Moves increase of Representatives.
July 11. Favors representation based on population.
July 14. Urges proportional representation as necessary to protect the smaller States.
July 17. Advocates national power of negative over State laws.
Thinks the branches of government should be kept separate.
Thinks monarchy likely to follow instability.
Thinks there should be provision for interregnum between adoption and operation of constitution.
Moves national guarantee of States against domestic violence.
July 18. Seconds motion forbidding a State to form any but a republican government.
Journal Of The Constitutional
JOURNAL OF THE CONSTITUTIONAL CONVENTION OF 1787.
Monday May 14^{th} 1787 was the day fixed for the meeting of the deputies in Convention for revising the federal System of Government. On that day a small number only had assembled. Seven States were not convened till,
Friday 25 of May, when the following members appeared to wit:
From _Massachusetts_, Rufus King. _N. York_, Robert Yates,[8] Alex^r Hamilton. _N. Jersey_, David Brearly, William Churchill Houston, William Patterson. _Pennsylvania_, Robert Morris, Thomas Fitzsimons, James Wilson, Governeur Morris. _Delaware_, George Read, Richard Basset,[9] Jacob Broome. _Virginia_, George Washington, Edmund Randolph, John Blair,[10] James Madison, George Mason, George Wythe, James McClurg. _N. Carolina_, Alexander Martin, William Richardson Davie, Richard Dobbs Spaight, Hugh Williamson. _S. Carolina_, John Rutlidge, Charles Cotesworth Pinckney, Charles Pinckney, Pierce Butler. _Georgia_, William Few.[11]
[8] William Pierce, delegate from Georgia, made an estimate of each member of the convention, the only contemporary estimate thus far brought to light. Yates did not speak in the Convention.
"M^r Yates is said to be an able Judge. He is a Man of great legal abilities, but not distinguished as an Orator. Some of his Enemies say he is an anti-federal Man, but I discovered no such disposition in him. He is about 45 years old, and enjoys a great share of health."--Pierce's Notes, _Am. Hist. Rev._, iii., 327. For more about Pierce's Notes, see p. 45, n.
[9] "M^r Bassett is a religious enthusiast, lately turned Methodist, and serves his Country because it is the will of the people that he should do so. He is a Man of plain sense, and has modesty enough to hold his Tongue. He is Gentlemanly Man and is in high estimation among the Methodists. Mr. Bassett is about 36 years old."--Pierce's Notes, _Id._, iii., 330. He did not speak in the Convention.
[10] "Mr. Blair is one of the most respectable Men in Virginia, both on account of his Family as well as fortune. He is one of the Judges of the Supreme Court in Virginia, and acknowledged to have a very extensive knowledge of the Laws. M^r Blair is however, no Orator, but his good sense, and most excellent principles, compensate for other deficiencies. He is about 50 years of age."--Pierce's Notes, _Am. Hist. Rev._, iii., 331. He did not speak in the Convention.
[11] "M^r Few possesses a strong natural Genius, and from application has acquired some knowledge of legal matters;--he practises at the bar of Georgia, and speaks tolerably well in the Legislature. He has been twice a Member of Congress, and served in that capacity with fidelity to his State, and honor to himself. Mr. Few is about 35 years of age."--Pierce's Notes, _Id._, iii., 333. He did not speak in the Convention.
The credentials of Connecticut and Maryland required but one deputy to represent the state; of New York, South Carolina, Georgia, and New Hampshire, two deputies; of Massachusetts, New Jersey, Delaware, Virginia, and North Carolina, three; of Pennsylvania, four.--_Journal of the Federal Convention_, 16 _et seq._; _Documentary History of the Constitution_, i., 10 _et seq._
M^r Robert Morris[12] informed the members assembled that by the instruction & in behalf, of the deputation of Pen^a he proposed George Washington, Esq^r late Commander in chief for president of the Convention. M^r Jn^o Rutlidge seconded the motion; expressing his confidence that the choice would be unanimous, and observing that the presence of Gen^l Washington forbade any observations on the occasion which might otherwise be proper.
[12] "Robert Morris is a merchant of great eminence and wealth; an able Financier, and a worthy Patriot. He has an understanding equal to any public object, and possesses an energy of mind that few Men can boast of. Although he is not learned, yet he is as great as those who are. I am told that when he speaks in the Assembly of Pennsylvania, that he bears down all before him. What could have been his reason for not Speaking in the Convention I know not,--but he never once spoke on any point. This Gentleman is about 50 years old."--Pierce's Notes, _Am. Hist: Rev._, iii., 328.
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General Washington[13] was accordingly unanimously elected by ballot, and conducted to the Chair by M^r R. Morris and M^r Rutlidge; from which in a very emphatic manner he thanked the Convention for the honor they had conferred on him, reminded them of the novelty of the scene of business in which he was to act, lamented his want of better qualifications, and claimed the indulgence of the House towards the involuntary errors which his inexperience might occasion.
[13] "Gen^l Washington is well known as the Commander in chief of the late American Army. Having conducted these States to independence and peace, he now appears to assist in framing a Government to make the People happy. Like Gustavus Vasa, he may be said to be the deliverer of his Country;--like Peter the great he appears as the politician and the States-man; and like Cincinnatus he returned to his farm perfectly contented with being only a plain Citizen, after enjoying the highest honor of the confederacy,--and now only seeks for the approbation of his Country-men by being virtuous and useful. The General was conducted to the Chair as President of the Convention by the unanimous voice of its Members. He is in the 52^d year of his age."--Pierce's Notes, _Am. Hist. Rev._, iii., 331.
(The nomination came with particular grace from Pe[~nn]a, as Doc^r Franklin alone could have been thought of as a competitor. The Doc^r was himself to have made the nomination of General Washington, but the state of the weather and of his health confined him to his house.)
M^r Wilson[14] moved that a Secretary be appointed, and nominated M^r Temple Franklin.
[14] "Mr. Wilson ranks among the foremost in legal and political knowledge. He has joined to a fine genius all that can set him off and show him to advantage. He is well acquainted with Man, and understands all the passions that influence him. Government seems to have been his peculiar Study, all the political institutions of the World he knows in detail, and can trace the causes and effects of every revolution from the earliest stages of the Greecian commonwealth down to the present time. No man is more clear, copious, and comprehensive than Mr. Wilson, yet he is no great Orator. He draws the attention not by the charm of his eloquence, but by the force of his reasoning. He is about 45 years old."--Pierce's Notes, _Am. Hist. Rev._, iii., 329.
Col Hamilton[15] nominated Major Jackson.
[15] "Col^o Hamilton is deservedly celebrated for his talents. He is a practitioner of the Law, and reputed to be a finished Scholar. To a clear and strong judgment he unites the ornaments of fancy, and whilst he is able, convincing, and engaging in his eloquence the Heart and Head sympathize in approving him. Yet there is something too feeble in his voice to be equal to the strains of oratory;--it is my opinion he is rather a convincing Speaker, that [than] a blazing Orator. Col^o Hamilton requires time to think,--he enquires into every part of his subject with the searchings of phylosophy, and when he comes forward he comes highly charged with interesting matter, there is no skimming over the surface of a subject with him, he must sink to the bottom to see what foundation it rests on.--His language is not always equal, sometimes didactic like Bolingbroke's, at others light and tripping like Stern's. His eloquence is not so defusive as to trifle with the senses, but he rambles just enough to strike and keep up the attention. He is about 33 years old, of small stature, and lean. His manners are tinctured with stiffness, and sometimes with a degree of vanity that is highly disagreable."--Pierce's Notes, _Id._, iii., 327.
On the ballot Maj^r Jackson had 5 votes & M^r Franklin 2 votes.
On reading the credentials of the deputies it was noticed that those from Delaware were prohibited from changing the Article in the Confederation establishing an equality of votes among the States.[16]
[16] "... So also and Provided, that such Alterations or further Provisions, or any of them, do not extend to that part of the Fifth Article of the Confederation of the said States, finally ratified on the first day March, in the Year One thousand seven hundred and eighty one, which declares that 'In determining Questions in the United States in Congress Assembled each State shall have one Vote.'"--_Documentary History of the Constitution_ (Dept. of State), i., 24.
The appointment of a Committee, consisting of Mess^{rs} Wythe, Hamilton & C. Pinckney, on the motion of Mr. Pinckney, to prepare standing rules & orders was the only remaining step taken on this day.
MONDAY MAY 28.----
From Mass^{ts} Nat: Gorham & Caleb Strong. From Connecticut Oliver Elseworth. From Delaware, Gunning Bedford. From Maryland James M^cHenry. From Penn^a B. Franklin, George Clymer, Th^s Mifflin & Jared Ingersol, took their seats.[17]
[17] "Entre nous. I believe the Eastern people have taken ground they will not depart from respecting the Convention.--One legislature composed of a lower-house triennially elected and an _Executive & Senate_ for a good number of years.--I shall see Gerry & Johnson, as they pass & may perhaps give you a hint."--William Grayson to Madison, New York, May 24, 1787, _Mad. MSS._
M^r Wythe[18] from the Committee for preparing rules made a report which employed the deliberations of this day.
[18] "M^r Wythe is the famous Professor of Law at the University of William and Mary. He is confessedly one of the most learned legal Characters of the present age. From his close attention to the study of general learning he has acquired a compleat knowledge of the dead languages and all the sciences. He is remarked for his exemplary life, and universally esteemed for his good principles. No Man it is said understands the history of Government better than M^r Wythe,--nor any one who understands the fluctuating condition to which all societies are liable better than he does, yet from his too favorable opinion of Men, he is no great politician. He is a neat and pleasing Speaker, and a most correct and able Writer. Mr. Wythe is about 55 years of age."--Pierce's Notes, _Am. Hist. Rev._, iii., 331.
M^r King[19] objected to one of the rules in the Report authorizing any member to call for the yeas & nays and have them entered on the minutes. He urged that as the acts of the Convention were not to bind the Constituents, it was unnecessary to exhibit this evidence of the votes; and improper as changes of opinion would be frequent in the course of the business & would fill the minutes with contradictions.
[19] "M^r King is a Man much distinguished for his eloquence and great parliamentary talents. He was educated in Massachusetts, and is said to have good classical as well as legal knowledge. He has served for three years in the Congress of the United States with great and deserved applause, and is at this time high in the confidence and approbation of his Country-men. This Gentleman is about thirty three years of age, about five feet ten inches high, well formed, an handsome face, with a strong expressive Eye, and a sweet high toned voice. In his public speaking there is something peculiarly strong and rich in his expression, clear, and convincing in his arguments, rapid and irresistible at times in his eloquence but he is not always equal. His action is natural, swimming, and graceful, but there is a rudeness of manner sometimes accompanying it. But take him _tout en semble_, he may with propriety be ranked among the luminaries of the present Age."--Pierce's Notes, _Am. Hist. Rev._, iii., 325.
Col. Mason[20] seconded the objection; adding that such a record of the opinions of members would be an obstacle to a change of them on conviction; and in case of its being hereafter promulged must furnish handles to the adversaries of the Result of the Meeting.
[20] "Mr. Mason is a Gentleman of remarkable strong powers, and possesses a clear and copious understanding. He is able and convincing in debate, steady and firm in his principles, and undoubtedly one of the best politicians in America. M^r Mason is about 60 years old, with a fine strong constitution."--Pierce's Notes, _Id._, iii., 331.
The proposed rule was rejected nem. contrad certe. The standing rules[21] agreed to were as follows:[22]
[21] Previous to the arrival of a majority of the States, the rule by which they ought to vote in the Convention had been made a subject of conversation among the members present. It was pressed by Governeur Morris and favored by Robert Morris and others from Pennsylvania, that the large States should unite in firmly refusing to the small states an equal vote, as unreasonable, and as enabling the small States to negative every good system of Government, which must, in the nature of things, be founded on a violation of that equality. The members from Virginia, conceiving that such an attempt might beget fatal altercations between the large & small States, and that it would be easier to prevail on the latter, in the course of the deliberations, to give up their equality for the sake of an effective Government, than on taking the field of discussion to disarm themselves of the right & thereby throw themselves on the mercy of the larger States, discountenanced and stifled the project.--Madison's Note.
[22] In the MS. Madison adds: "[See the Journal & copy here the printed rules]," and they were copied by him from the _Journal of the Federal Convention_ (_1819_). They have been compared with the MS. journal and found to be correct.
Viz.
A House to do business shall consist of the Deputies of not less than seven States; and all questions shall be decided by the greater number of these which shall be fully represented; but a less number than seven may adjourn from day to day.
Immediately after the President shall have taken the chair, and the members their seats, the minutes of the preceding day shall be read by the Secretary.
Every member, rising to speak, shall address the President; and whilst he shall be speaking, none shall pass between them, or hold discourse with another, or read a book, pamphlet or paper, printed or manuscript--and of two members rising at the same time, the President shall name him who shall be first heard.
A member shall not speak oftener than twice, without special leave, upon the same question; and not the second time, before every other, who had been silent, shall have been heard, if he choose to speak upon the subject.
A motion made and seconded, shall be repeated, and if written, as it shall be when any member shall so require, read aloud by the Secretary, before it shall be debated; and may be withdrawn at any time, before the vote upon it shall have been declared.
Orders of the day shall be read next after the minutes, and either discussed or postponed, before any other business shall be introduced.
When a debate shall arise upon a question, no motion, other than to amend the question, to commit it, or to postpone the debate shall be received.
[23]A question which is complicated, shall, at the request of any member, be divided, and put separately on the propositions of which it is compounded.
[23] An undecided line is drawn through the page in the MS. from here to the end of the rules; but not, as it would appear, to strike them out, as they were actually adopted by the Convention.
The determination of a question, altho' fully debated, shall be postponed, if the deputies of any State desire it until the next day.
A writing which contains any matter brought on to be considered, shall be read once throughout for information, then by paragraphs to be debated, and again, with the amendments, if any, made on the second reading; and afterwards the question shall be put on the whole, amended, or approved in its original form, as the case shall be.
Committees shall be appointed by ballot; and the members who have the greatest number of ballots, altho' not a majority of the votes present, shall be the Committee. When two or more members have an equal number of votes, the member standing first on the list in the order of taking down the ballots, shall be preferred.
A member may be called to order by any other member, as well as by the President; and may be allowed to explain his conduct or expressions supposed to be reprehensible. And all questions of order shall be decided by the President without appeal or debate.
Upon a question to adjourn for the day, which may be made at any time, if it be seconded, the question shall be put without a debate.
When the House shall adjourn, every member shall stand in his place, until the President pass him.
A letter from sundry persons of the State of Rho. Island addressed to the Honorable The Chairman of the General Convention was presented to the Chair by Mr. Gov^r Morris,[24] and being read, was ordered to lie on the table for further consideration.[25]
[24] "M^r Governeur Morris is one of those Genius's in whom every species of talents combine to render him conspicuous and flourishing in public debate:--He winds through all the mazes of rhetoric, and throws around him such a glare that he charms, captivates, and leads away the senses of all who hear him. With an infinite streach of fancy he brings to view things when he is engaged in deep argumentation, that render all the labor of reasoning easy and pleasing. But with all these powers he is fickle and inconstant,--never pursuing one train of thinking,--nor ever regular. He has gone through a very extensive course of reading, and is acquainted with all the sciences. No Man has more wit,--nor can any one engage the attention more than M^r Morris. He was bred to the Law, but I am told he disliked the profession, and turned Merchant. He is engaged in some great mercantile matters with his namesake, M^r Rob^t Morris. This Gentleman is about 38 years old, he has been unfortunate in losing one of his Legs, and getting all the flesh taken off his right arm by a scald, when a youth."--Pierce's Notes, _Am. Hist. Rev._, iii., 329.
[25] "NEWPORT June 18th 1787
"Sir--
"The inclosed address, of which I presume your Excellency has received a duplicate, was returned to me from New York after my arrival in this State. I flattered myself that our Legislature, which convened on monday last, would have receded from the resolution therein refer'd to, and have complied with the recommendation of Congress in sending deligates to the federal convention. The upper house, or Governor, & Council, embraced the measure, but it was negatived in the house of Assembly by a large majority, notwithstanding the greatest exertions were made to support it.
"Being disappointed in their expectations, the minority in the administration and all the worthy citizens of this State, whose minds are well informd regreting the peculiarities of their Situation place their fullest confidence in the wisdom & moderation of the national council, and indulge the warmest hopes of being favorably consider'd in their deliberations. From these deliberations they anticipate a political System which must finally be adopted & from which will result the Safety, the honour, & the happiness of the United States.
"Permit me, Sir, to observe, that the measures of our present Legislature do not exhibit the real character of the State. They are equally reprobated, & abhored by Gentlemen of the learned professions, by the whole mercantile body, & by most of the respectable farmers and mechanicks. The majority of the administration is composed of a licentious number of men, destitute of education, and many of them, Void of principle. From anarchy and confusion they derive their temporary consequence, and this they endeavor to prolong by debauching the minds of the common people, whose attention is wholly directed to the Abolition of debts both public & private. With these are associated the disaffected of every description, particularly those who were unfriendly during the war. Their paper money System, founded in oppression & fraud, they are determined to Support at every hazard. And rather than relinquish their favorite pursuit they trample upon the most sacred obligations. As a proof of this they refused to comply with a requisition of Congress for repealing all laws repugnant to the treaty of peace with Great Britain, and urged as their principal reason, that it would be calling in question the propriety of their former measures.
"These evils may be attributed, partly to the extreme freedom of our own constitution, and partly to the want of energy in the federal Union: And it is greatly to be apprehended that they cannot Speedily be removed but by uncommon and very serious exertions. It is fortunate however that the wealth and resources of this State are chiefly in possion of the well Affected, & that they are intirely devoted to the public good.
"I have the honor of being Sir, "with the greatest Veneration & esteem, "Your excellencys very obedient & "most humble servant-- ["J. M. VARNUM.]
"His excellency "GEN^l WASHINGTON."
The letter was inadvertently unsigned, but it was well known to come from General Varnum. The enclosure was as follows:
"PROVIDENCE, May 11. 1787. "GENTLEMEN:
"Since the Legislature of this State have finally declined sending Delegates to Meet you in Convention for the purposes mentioned in the Resolve of Congress of the 21^{st} February 1787, the Merchants Tradesmen and others of this place, deeply affected with the evils of the present unhappy times, have thought proper to Communicate in writing their approbation of your Meeting, And their regret that it will fall short of a Compleat Representation of the Federal Union.--
"The failure of this State was owing to the Nonconcurrence of the Upper House of Assembly with a Vote passed in the Lower House, for appointing Delegates to attend the said Convention, at their Session holden at Newport on the first Wednesday of the present Month.--
"It is the general Opinion here and we believe of the well informed throughout this State, that full power for the Regulation of the Commerce of the United States, both Foreign & Domestick ought to be vested in the National Council.
"And that Effectual Arrangements should also be made for giving Operation to the present powers of Congress in their Requisitions upon the States for National purposes.--
"As the Object of this Letter is chiefly to prevent any impressions unfavorable to the Commercial Interest of this State, from taking place in our Sister States from the Circumstance of our being unrepresented in the present National Convention, we shall not presume to enter into any detail of the objects we hope your deliberations will embrace and provide for being convinced they will be such as have a tendency to strengthen the Union, promote Commerce, increase the power & Establish the Credit of the United States.
"The result of your deliberations tending to these desireable purposes we still hope may finally be Approved and Adopted by this State, for which we pledge our Influence and best exertions.--
"In behalf of the Merchants, Tradesmen &c.
"We have the Honour to be with perfect Consideration & Respect "Your most Obedient & "Most Humble Servant's
"JOHN BROWN JABEZ BOWEN } THO^S LLOYD HALSEY NICHO^S BROWN } JOS. NIGHTINGALE JOHN JENCKES } LEVI HALL WELCOME ARNOLD } Comtee. PHILIP ALLEN WILLIAM RUSSELL } PAUL ALLEN JEREMIAH OLMY } WILLIAM BARTON } "The Hon^{ble} the Chairman of the General Convention "PHILADELPHIA" --_Const. MSS._
Both letters are printed in the _Documentary History of the Constitution_, i., 277 and 275.
M^r Butler moved that the House provide ag^{st} interruption of business by absence of members,[26] and against licentious publications of their proceedings--to which was added by--M^r Spaight[27]--a motion to provide that on the one hand the House might not be precluded by a vote upon any question, from revising the subject matter of it, When they see cause, nor, on the other hand, be led too hastily to rescind a decision, which was the result of mature discussion.--Whereupon it was ordered that these motions be referred for the consideration of the Committee appointed to draw up the standing rules and that the Committee make report thereon.
[26] "Mr. Butler is a character much respected for the many excellent virtues which he possesses. But as a politician or an Orator, he has no pretensions to either. He is a Gentleman of fortune, and takes rank among the first in South Carolina. He has been appointed to Congress, and is now a Member of the Legislature of South Carolina. M^r Butler is about 40 years of age; an Irishman by birth."--Pierce's Notes, _Am. Hist. Rev._, iii., 333.
[27] "Mr. Spaight is a worthy Man, of some abilities, and fortune. Without possessing a Genius to render him brilliant, he is able to discharge any public trust that his Country may repose in him. He is about 31 years of age."--Pierce's Notes, _Id._, iii., 332.
Adj^j till tomorrow 10. OClock.
TUESDAY MAY 29.
John Dickenson and Elbridge Gerry, the former from Delaware, the latter from Mass^{ts} took their seats. The following rules were added, on the report of M^r Wythe from the Committee--
That no member be absent from the House, so as to interrupt the representation of the State, without leave.
That Committees do not sit whilst the House shall be or ought to be, sitting.
That no copy be taken of any entry on the journal during the sitting of the House without leave of the House.
That members only be permitted to inspect the journal.
That nothing spoken in the House be printed, or otherwise published or communicated without leave.
That a motion to reconsider a matter which has been determined by a majority, may be made, with leave unanimously given, on the same day on which the vote passed; but otherwise not without one day's previous notice: in which last case, if the House agree to the reconsideration, some future day shall be assigned for that purpose.
M^r C. Pinkney[28] moved that a Committee be appointed to superintend the Minutes.
[28] "Mr. Charles Pinckney is a young Gentleman of the most promising talents. He is, altho' only 24 y^s of age, in possession of a very great variety of knowledge. Government, Law, History, and Phylosophy are his favorite studies, but he is intimately acquainted with every species of polite learning, and has a spirit of application and industry beyond most Men. He speaks with great neatness and perspicuity, and treats every subject as fully, without running into prolixity, as it requires. He has been a Member of Congress, and served in that Body with ability and eclat."--Pierce's Notes, _Am. Hist. Rev._, iii., 333.
M^r Gov^r Morris objected to it. The entry of the proceedings of the Convention belonged to the Secretary as their impartial officer. A committee might have an interest & bias in moulding the entry according to their opinions and wishes.
The motion was negatived, 5 noes, 4 ays.
Mr. Randolph[29] then opened the main business.[30]
[29] "Mr. Randolph is Governor of Virginia,--a young Gentleman in whom unite all the accomplishments of the Scholar, and the Statesman. He came forward with the postulata, or first principles, on which the Convention acted, and he supported them with a force of eloquence and reasoning that did him great honor. He has a most harmonious voice, a fine person and striking manners. Mr. Randolph is about 32 years of age."--Pierce's Notes, _Id._, iii., 332.
[30] In the MS. in Randolph's hand: "[here insert his speech including his resolutions]." The speech also is in Randolph's hand, having been furnished by him.
He expressed his regret, that it should fall to him, rather than those, who were of longer standing in life and political experience, to open the great subject of their mission. But, as the convention had originated from Virginia, and his colleagues supposed that some proposition was expected from them, they had imposed this task on him.
He then commented on the difficulty of the crisis, and the necessity of preventing the fulfilment of the prophecies of the American downfal.
He observed that in revising the foederal system we ought to inquire 1. into the properties, which such a government ought to possess, 2. the defects of the confederation, 3. the danger of our situation & 4. the remedy.
1. The Character of such a government ought to secure 1. against foreign invasion: 2. against dissensions between members of the Union, or seditions in particular States: 3. to procure to the several States various blessings, of which an isolated situation was incapable: 4. to be able to defend itself against encroachment: & 5. to be paramount to the state constitutions.
2. In speaking of the defects of the confederation he professed a high respect for its authors, and considered them as having done all that patriots could do, in the then infancy of the science, of constitutions, & of confederacies,--when the inefficiency of requisitions was unknown--no commercial discord had arisen among any States--no rebellion had appeared as in Mass^{ts}--foreign debts had not become urgent--the havoc of paper money had not been foreseen--treaties had not been violated--and perhaps nothing better could be obtained from the jealousy of the states with regard to their sovereignty.
He then proceeded to enumerate the defects. 1. that the confederation produced no security against foreign invasion; congress not being permitted to prevent a war nor to support it by their own authority--Of this he cited many examples; most of which tended to shew, that they could not cause infractions of treaties or of the law of nations to be punished: that particular states might by their conduct provoke war without controul; and that neither militia nor draughts being fit for defence on such occasions, enlistments only could be successful, and these could not be executed without money.
2, that the foederal government could not check the quarrels between states, nor a rebellion in any, not having constitutional power nor means to interpose according to the exigency.
3, that there were many advantages, which the U. S. might acquire, which were not attainable under the confederation--such as a productive impost--counteraction of the commercial regulations of other nations--pushing of commerce ad libitum,--&c &c.
4, that the foederal government could not defend itself against encroachments from the states.
5, that it was not even paramount to the state constitutions, ratified as it was in many of the states.
3. He next reviewed the danger of our situation, appealed to the sense of the best friends of the U. S. the prospect of anarchy from the laxity of government every where; and to other considerations.
4. He then proceeded to the remedy; the basis of which he said must be the republican principle.
He proposed as conformable to his ideas the following resolutions, which he explained one by one.
1. Resolved that the articles of Confederation ought to be so corrected & enlarged as to accomplish the objects proposed by their institution; namely, "common defence, security of liberty, and general welfare."
2. Res^d therefore that the rights of suffrage in the National Legislature ought to be proportioned to the Quotas of contribution, or to the number of free inhabitants, as the one or the other rule may seem best in different cases.
3. Res^d that the National Legislature ought to consist of two branches.
4. Res^d that the members of the first branch of the National Legislature ought to be elected by the people of the several States every ---- for the term of ----; to be of the age of ---- years at least, to receive liberal stipends by which they may be compensated for the devotion of their time to the public service; to be ineligible to any office established by a particular State, or under the authority of the United States, except those peculiarly belong to the functions of the first branch, during the term of service, and for the space of ---- after its expiration; to be incapable of re-election for the space of ---- after the expiration of their term of service, and to be subject to recall.
5. Resol^d that the members of the second branch of the National Legislature ought to be elected by those of the first, out of a proper number of persons nominated by the individual Legislatures, to be of the age of ---- years at least; to hold their offices for a term sufficient to ensure their independency; to receive liberal stipends, by which they may be compensated for the devotion of their time to the public service; and to be ineligible to any office established by a particular State, or under the authority of the United States, except those peculiarly belonging to the functions of the second branch, during the term of service; and for the space of ---- after the expiration thereof.
6. Resolved that each branch ought to possess the right of originating Acts; that the National Legislature ought to be empowered to enjoy the Legislative Rights vested in Congress by the Confederation & moreover to legislate in all cases to which the separate States are incompetent, or in which the harmony of the United States may be interrupted by the exercise of individual Legislation; to negative all laws passed by the several States contravening in the opinion of the National Legislature the articles of Union; and to call forth the force of the Union ag^{st} any member of the Union failing to fulfil its duty under the articles thereof.
7. Res^d that a National Executive be instituted; to be chosen by the National Legislature for the term of ---- years, to receive punctually at stated times, a fixed compensation for the services rendered, in which no increase or diminution shall be made so as to affect the Magistracy, existing at the time of increase or diminution, and to be ineligible a second time; and that besides a general authority to execute the national laws, it ought to enjoy the Executive rights vested in Congress by the Confederation.
8. Res^d that the Executive and a convenient number of the National Judiciary, ought to compose a Council of revision with authority to examine every act of the National Legislature before it shall operate, & every act of a particular Legislature before a Negative thereon shall be final; and that the dissent of the said Council shall amount to a rejection, unless the Act of the National Legislature be again passed, or that of a particular Legislature be again negatived by ---- of the members of each branch.
9. Res^d that a National Judiciary be established to consist of one or more supreme tribunals, and of inferior tribunals to be chosen by the National Legislature, to hold their offices during good behaviour; and to receive punctually at stated times fixed compensation for their services, in which no increase or diminution shall be made so as to affect the persons actually in office at the time of such increase or diminution. That the jurisdiction of the inferior tribunals shall be to hear & determine in the first instance, and of the supreme tribunal to hear and determine in the dernier resort, all Piracies & felonies on the high seas, captures from an enemy: cases in which foreigners or Citizens of other States applying to such jurisdictions may be interested, or which respect the collection of the National revenues; impeachments of any national officers, and questions which may involve the national peace and harmony.
10. Resolv^d that provision ought to be made for the admission of States lawfully arising within the limits of the United States, whether from a voluntary junction of Government & Territory or otherwise, with the consent of a number of voices in the National Legislature less than the whole.
11. Res^d that a Republican Government & the territory of each State, except in the instance of a voluntary junction of Government & territory, ought to be guarantied by the United States to each State.
12. Res^d that provision ought to be made for the continuance of Congress and their authorities and privileges, until a given day after the reform of the articles of Union shall be adopted, and for the completion of all their engagements.
13. Res^d that provision ought to be made for the amendment of the Articles of Union whensoever it shall seem necessary, and that the assent of the National Legislature ought not to be required thereto.
14. Res^d that the Legislative Executive & Judiciary powers within the several States ought to be bound by oath to support the articles of Union.
15. Res^d that the amendments which shall be offered to the Confederation, by the Convention ought at a proper time, or times, after the approbation of Congress to be submitted to an assembly or assemblies of Representatives, recommended by the several Legislatures to be expressly chosen by the people to consider & decide thereon.
He concluded with an exhortation, not to suffer the present opportunity of establishing general peace, harmony, happiness and liberty in the U. S. to pass away unimproved.[31]
[31] This abstract of the speech was furnished to J. M. by M^r Randolph and is in his handwriting. As a report of it from him had been relied on, it was omitted by J. M.--_Madison's Note._ The fifteen resolutions, constituting the "Virginia Plan," are in Madison's handwriting.
It was then Resolved--That the House will tomorrow resolve itself into a Committee of the Whole House to consider of the state of the American Union--and that the propositions moved by M^r Randolph be referred to the said Committee.
M^r Charles Pinkney laid before the House the draft of a federal Government which he had prepared, to be agreed upon between the free and independent States of America.[32]--M^r P. plan ordered that the same be referred to the Committee of the Whole appointed to consider the state of the American Union.[33]
[32] Robert Yates, delegate from New York, kept notes of the proceedings of the Convention, until he left July 5th, with his colleague, John Lansing. They wrote a joint letter to Governor Clinton afterwards, giving their reasons: "We were not present at the completion of the new constitution; but before we left the convention, its principles were so well established as to convince us, that no alteration was to be expected to conform it to our ideas of expediency and safety."--_Secret Proceedings of the Federal Convention_, 10. Yates's notes are quoted here, whenever they are at variance with Madison's. He gives Pinckney's motion as follows: "Mr. C. Pinckney, a member from South Carolina, then added, that he had reduced his ideas of a new government to a system, which he read, and confessed that it was grounded on the same principle as of the above [the Randolph] resolutions."--_Id._, 97.
[33] Charles Pinckney wrote to John Quincy Adams:
"WINGAW NEAR GEORGETOWN December 12 1818
"SIR
"I have just had the honour to receive your favour--Being at present absent from Charleston on a visit to my planting interest in this neighbourhood I shall in consequence of your letter shorten my stay here considerably & return to Town for the purpose of complying with your request as soon as possible--From an inspection of my old papers not long ago I know it was then easily in my power to have complied with your request--I still hope it is & as soon as I return to my residence in Charleston will again, or as quickly as I can write you on it to prevent delay.
"The Draught of the Constitution proposed by me was divided into a number of articles & was in complete detail--the resolutions offered by M^r Randolph were merely general ones & as far as I recollect they were both referred to the same Committee.
"With great respect & esteem" &c. --_Dept. of State MSS._, Miscellaneous Letters.
Three weeks later he wrote again:
"SIR
"On my return to this City as I promised I examined carefully all the numerous notes & papers which I had retained relating to the federal Convention--among them I found several rough draughts of the Constitution I proposed to the Convention--although they differed in some measure from each other in the wording & arrangement of the articles--yet they were all substantially the same--they all proceeded upon the idea of throwing out of view the attempt to amend the existing Confederation (then a very favorite idea of a number) & proceeding de novo--of a Division of the Powers of Government into legislative executive & judicial & of making the Government to operate directly upon the People & not upon the States. My Plan was substantially adopted in the sequel except as to the Senate & giving more power to the Executive than I intended--the force of vote which the small & middling states had in the Convention prevented our obtaining a proportional representation in more than one branch & the great powers given to the President were never intended to have been given to him while the Convention continued in that patient & coolly deliberative situation in which they had been for nearly the whole of the preceding five months of their session nor was it until within the last week or ten days that almost the whole of the Executive Department was altered--I can assure you as a fact that for more than Four months & a half out of five the power of exclusively making treaties, appointing for the Ministers & judges of the Supreme Court was given to the Senate after numerous debates & consideration of the subject both in Committee of the whole & in the house--this I not only aver but can prove by printed Documents in my possession to have been the case--& should I ever have the pleasure to see you & converse on the subject will state to you some things relative to this business that may be new & perhaps surprising to you--the veil of secrecy from the Proceedings of the Convention being removed by Congress & but very few of the members alive would make disclosures now of the secrets there acted less improper than before--With the aid of the journal & the numerous notes & memorandums I have preserved should now be in my power to give a View of the almost insuperable difficulties the Convention had to encounter & of the conflicting opinions of the members I believe should have attempted it had I not always understood M^r Madison intended it--he alone I believe possessed & retained more numerous & particular notes of their proceedings than myself. I will thank you sir to do me the honour to send me or to get the President to direct a copy of the Journal of the Convention to be sent me as also of the Secret Journals of Congress should it be considered not improper in me to make the request.
"I have already informed you I have several rough draughts of the Constitution I proposed & that they are all substantially the same differing only in words & the arrangement of the Articles--at the distance of nearly thirty two years it is impossible for me now to say which of the 4 or 5 draughts I have was the one but enclosed I send you the one I believe was it--I repeat however that they are substantially the same differing only in form & unessentials--It may be necessary to remark that very soon after the Convention met I changed & avowed candidly the change of my opinion on giving the power to Congress to revise the State Laws in certain cases & in giving the exclusive Power to the Senate to declare War thinking it safer to refuse the first altogether & to vest the latter in Congress--I will thank you to acknowledge by a line the receipt of the Draught & this.
"With very great respect & esteem "I have the honour to be your most "Obedient servant "CHARLES PINCKNEY.
"December 30 1818 "In Charleston."--_Const. MSS._
The plan is written upon paper of the same size as the letter, and with the same ink. It is undoubtedly contemporaneous with the letter.
Madison wrote the following note to accompany his journal:
"The length of the Document laid before the Convention, and other circumstances having prevented the taking of a copy at the time, that which is here inserted was taken from the paper furnished to the Secretary of State, and contained in the Journal of the Convention published in 1819. On comparing the paper with the Constitution in its final form, or in some of its Stages; and with the propositions, and speeches of M^r Pinckney in the Convention, it would seem that considerable errour must have crept into the paper; occasioned possibly by the loss of the Document laid before the convention (neither that nor the Resolutions offered by M^r Patterson being among the preserved papers) and by a consequent resort for a copy to the rough draught, in which erasures and interlineations following what passed in the convention, might be confounded with the original text, and after a lapse of more than thirty years, confounded also in the memory of the author.
"There is in the paper a similarity in some cases, and an identity in others, with details, expressions, and definitions, the results of critical discussions and modifications that can not be ascribed to accident or anticipation.
"Examples may be noticed in Article VIII of the paper; which is remarkable also for the circumstance, that whilst it specifies the functions of the President, no provision is contained in the paper for the election of such an officer, nor indeed for the appointment of any executive magistracy; notwithstanding the evident purpose of the author to provide an _entire_ plan of a Federal Government.
"Again, in several instances where the paper corresponds with the Constitution, it is at variance with the ideas of M^r Pinckney, as decidedly expressed in his propositions, and in his arguments, the former in the Journal of the Convention, the latter in the report of its debates: Thus in Art: VIII of the paper, provision is made for removing the President by impeachment; when it appears that in the convention, July 20. he was opposed to any impeachability of the Executive magistrate: In Art: III, it is required that all money-bills shall originate in the first Branch of the Legislature; which he strenuously opposed Aug: 8 and again Aug: 11: In Art: V members of each House are made ineligible to, as well as incapable of holding, any office under the union &c. as was the case at one Stage of the Constitution; a disqualification highly disapproved and opposed by him Aug: 14.
"A still more conclusive evidence of errour in the paper is seen in Art: III, which provides, as the Constitution does, that the first Branch of the Legislature shall be chosen by the people of the several States; whilst it appears that on the 6^{th} of June, a few days only after the Draft was laid before the convention, its author opposed that mode of choice, urging & proposing in place of it, an election by the Legislatures of the several States.
"The remarks here made tho' not material in themselves, were due to the authenticity and accuracy aimed at, in this Record of the proceedings of a Publick Body, so much an object, sometimes, of curious research, as at all times, of profound interest."--_Mad. MSS._
This note, as given in Gilpin's _Madison Papers_ (_1840_), is freely edited. The Pinckney plan is given here as Pinckney sent it to Adams. Chief-Justice Charles C. Nott, of the U. S. Court of Claims, informs the editor that correspondence with Pinckney's descendants reveals the fact that none of the notes to which he alludes in his letters are extant.
The letter of December 30, 1818, and plan, are printed in _The Documentary History of the Constitution_, i., 309 _et seq._
[Illustration: CHARLES PINCKNEY'S LETTER. (Reduced.)]
[Illustration: THE PINCKNEY DRAFT. (Reduced.)]
We the People of the States of New Hampshire Massachusetts Rhode Island & Providence Plantations Connecticut New York New Jersey Pennsylvania Delaware Maryland Virginia North Carolina South Carolina & Georgia do ordain, declare & establish the following Constitution for the government of ourselves & Posterity.
ARTICLE 1:
The Style of this Government shall be The United States of America & the Government shall consist of supreme legislative Executive & judicial Powers.
2
The Legislative Power shall be vested in a Congress to consist of two separate Houses--one to be called the House of Delegates & the other the Senate who shall meet on the ---- ---- Day of ---- in every year.
3
The members of the House of Delegates shall be chosen every ---- year by the people of the several States & the qualification of the electors shall be the same as those of the electors in the several States for their legislatures--each member shall have been a citizen of the United States for ---- years; and shall be of ---- years of age & a resident in the State he is chosen for.----Until a census of the people shall be taken in the manner herein after mentioned the House of Delegates shall consist of ---- to be chosen from the different States in the following proportions: for New Hampshire, ----; for Massachusetts, ---- for Rhode Island, ---- for Connecticut, ---- for New York, ---- for New Jersey, ---- for Pennsylvania, ---- for Delaware, ---- for Mary^{ld}, ---- for Virginia, ---- for North Carolina, ---- for South Carolina, ---- for Georgia, ---- & the Legislature shall hereafter regulate the number of delegates by the number of inhabitants according to the Provisions herein after made, at the rate of one for every ---- thousand.--All money bills of every kind shall originate in the house of Delegates & shall not be altered by the Senate. The House of Delegates shall exclusively possess the power of impeachment & shall choose it's own officers & vacancies therein shall be supplied by the executive authority of the State in the representation from which they shall happen.
4
The Senate shall be elected & chosen by the House of Delegates which House immediately after their meeting shall choose by ballot ---- Senators from among the Citizens & residents of New Hampshire ---- from among those of Massachusetts ---- from among those of Rhode Island ---- from among those of Connecticut ---- from among those of New York ---- from among those of New Jersey ---- from among those of Pennsylvania ---- from among those of Delaware ---- from among those of Maryland ---- from among those of Virginia ---- from among those of North Carolina ---- from among those of South Carolina & ---- from among those of Georgia ----
The Senators chosen from New Hampshire Massachusetts Rhode Island & Connecticut shall form one class--those from New York New Jersey Pennsylvania & Delaware one class--& those from Maryland Virginia North Carolina South Carolina & Georgia one class.
The House of Delegates shall number these Classes one two & three & fix the times of their service by Lot--the first class shall serve for ---- years--the second for ---- years & the third for ---- years--as their times of service expire the House of Delegates shall fill them up by elections for ---- years & they shall fill all vacancies that arise from death or resignation for the time of service remaining of the members so dying or resigning.
Each Senator shall be ---- years of age at least--shall have been a Citizen of the United States 4 years before his election & shall be a resident of the State he is chosen from. The Senate shall choose its own Officers.
5
Each State shall prescribe the time & manner of holding elections by the People for the house of Delegates & the House of Delegates shall be the judges of the elections returns & Qualifications of their members.
In each house a Majority shall constitute a Quorum to do business--Freedom of Speech & Debate in the legislature shall not be impeached or Questioned in any place out of it & the Members of both Houses shall in all cases except for Treason Felony or Breach of the Peace be free from arrest during their attendance at Congress & in going to & returning from it--Both Houses shall keep journals of their Proceedings & publish them except on secret occasions & the yeas & nays may be entered thereon at the desire of one ---- of the members present. Neither house without the consent of the other shall adjourn for more than ---- days nor to any Place but where they are sitting.
The members of each house shall not be eligible to or capable of holding any office under the Union during the time for which they have been respectively elected nor the members of the Senate for one year after.
The members of each house shall be paid for their services by the States which they represent.
Every bill which shall have passed the Legislature shall be presented to the President of the United States for his revision--if he approves it he shall sign it--but if he does not approve it he shall return it with his objections to the house it originated in which house if two thirds of the members present, notwithstanding the President's objections agree to pass it, shall send it to the other house with the President's objections, where if two thirds of the members present also agree to pass it, the same shall become a law--& all bills sent to the President & not returned by him within ---- days shall be laws unless the Legislature by their adjournment prevent their return in which case they shall not be laws.
6^{th}
The Legislature of the United States shall have the power to lay & collect Taxes Duties Imposts & excises
To regulate Commerce with all nations & among the several States.
To borrow money & emit bills of Credit
To establish Post offices.
To raise armies
To build & equip Fleets
To pass laws for arming organizing & disciplining the Militia of the United States
To subdue a rebellion in any State on application of its legislature
To coin money & regulate the Value of all coins & fix the Standard of Weights & measures
To provide such Dock Yards & arsenals & erect such fortifications as may be necessary for the United States & to exercise exclusive Jurisdiction therein
To appoint a Treasurer by ballot
To constitute Tribunals inferior to the Supreme Court
To establish Post & military Roads
To establish & provide for a national University at the Seat of the Government of the United States
To establish uniform rules of Naturalization
To provide for the establishment of a Seat of Government for the United States not exceeding ---- miles square in which they shall have exclusive jurisdiction
To make rules concerning Captures from an Enemy
To declare the law & Punishment of piracies & felonies at sea & of counterfeiting Coin & of all offences against the Laws of Nations
To call forth the aid of the Militia to execute the laws of the Union enforce treaties suppress insurrections and repel invasions
And to make all laws for carrying the foregoing powers into execution.
The Legislature of the United States shall have the Power to declare the Punishment of Treason which shall consist only in levying War against the United States or any of them or in adhering to their Enemies. No person shall be convicted of Treason but by the testimony of two witnesses.
The proportion of direct taxation shall be regulated by the whole number of inhabitants of every description which number shall within ---- years after the first meeting of the Legislature & within the term of every ---- year after be taken in the manner to be prescribed by the Legislature
No Tax shall be laid on articles exported from the States--nor capitation tax but in proportion to the Census before directed
All Laws regulating Commerce shall require the assent of two thirds of the members present in each house--The United States shall not grant any title of Nobility--The Legislature of the United States shall pass no Law on the subject of Religion, nor touching or abridging the Liberty of the Press nor shall the privilege of the writ of Habeas Corpus ever be suspended except in case of Rebellion or Invasion.
All acts made by the Legislature of the United States pursuant to this Constitution & all Treaties made under the authority of the United States shall be the supreme Law of the land & all Judges shall be bound to consider them as such in their decisions.
7
The Senate shall have the sole & exclusive power to declare War & to make treaties & to appoint Ambassadors & other Ministers to foreign nations & Judges of the Supreme Court.
They shall have the exclusive power to regulate the manner of deciding all disputes & controversies now subsisting or which may arise between the States respecting Jurisdiction or Territory.
8
The Executive Power of the United States shall be vested in a President of the United States of America which shall be his style & his title shall be His Excellency. He shall be elected for ---- years & shall be reeligible.
He shall from time to time give information to the Legislature of the state of the Union & recommend to their consideration the measures he may think necessary--he shall take care that the laws of the United States be duly executed: he shall commission all the officers of the United States & except as to Ambassadors other ministers and Judges of the Supreme Court he shall nominate & with the consent of the Senate appoint all other officers of the United States. He shall receive public Ministers from foreign nations & may correspond with the Executives of the different States. He shall have power to grant pardons & reprieves except in impeachments--He shall be Commander in chief of the army & navy of the United States & of the Militia of the several States & shall receive a compensation which shall not be increased or diminished during his continuance in office. At entering on the Duties of his office he shall take an oath faithfully to execute the duties of a President of the United States.--He shall be removed from his office on impeachment by the house of Delegates & Conviction in the Supreme Court of Treason bribery or Corruption--In case of his removal death resignation or disability the President of the Senate shall exercise the duties of his office until another President be chosen--& in case of the death of the President of the Senate the Speaker of the House of Delegates shall do so.
9
The Legislature of the United States shall have the Power and it shall be their duty to establish such Courts of Law Equity & Admiralty as shall be necessary--The Judges of the Courts shall hold their offices during good behaviour & receive a compensation, which shall not be increased or diminished during their continuance in office--One of these Courts shall be termed the Supreme Court whose jurisdiction shall extend to all cases arising under the laws of the United States or affecting ambassadors other public Ministers & Consuls--to the trial of impeachment of officers of the United States--to all cases of Admiralty & maritime jurisdiction--In cases of impeachment affecting ambassadors and other public Ministers this Jurisdiction shall be original & in all other cases appellate----
All criminal offences (except in cases of impeachment) shall be tried in the State where they shall be committed--the trials shall be open & public & shall be by Jury.
10
Immediately after the first census of the people of the United States the House of Delegates shall apportion the Senate by electing for each State out of the citizens resident therein one Senator for every ---- members each State shall have in the House of Delegates--Each State shall be entitled to have at least one member in the Senate.
11
No State shall grant letters of marque & reprisal or enter into treaty or alliance or confederation nor grant any title of nobility nor without the Consent of the Legislature of the United States lay any impost on imports--nor keep troops or Ships of War in time of peace--nor enter into compacts with other States or foreign powers or emit bills of Credit or make any thing but Gold Silver or Copper a tender in payment of debts nor engage in War except for self defence when actually invaded or the danger of invasion be so great as not to admit of a delay until the Government of the United States can be informed thereof--& to render these prohibitions effectual the Legislature of the United States shall have the power to revise the laws of the several States that may be supposed to infringe the Powers exclusively delegated by this Constitution to Congress & to negative & annul such as do.
12
The Citizens of each State shall be entitled to all privileges & immunities of Citizens in the several States--Any person charged with Crimes in any State fleeing from justice to another shall on demand of the Executive of the State from which he fled be delivered up & removed to the State having jurisdiction of the offence.
13
Full faith shall be given in each State to the acts of the Legislature & to the records & judicial Proceedings of the Courts & magistrates of every State.
14
The Legislature shall have power to admit new States into the Union on the same terms with the original States provided two thirds of the members present in both Houses agree.
15
On the application of the legislature of a State the United States shall protect it against domestic insurrection.
16
If two thirds of the Legislatures of the States apply for the same the Legislature of the United States shall call a Convention for the purpose of amending the Constitution--or should Congress, with the Consent of two thirds of each house, propose to the States amendments to the same--the agreement of two thirds of the Legislatures of the States shall be sufficient to make the said amendments parts of the Constitution.
The Ratification of the conventions of ---- States shall be sufficient for organizing this Constitution.[34]
[34] "... What will be the result of their meeting I cannot with any certainty determine, but I hardly think much good can come of it; the people of America don't appear to me to be ripe for any great innovations & it seems they are ultimately to ratify or reject: the weight of Gen^l Washington as you justly observe is very great in America, but I hardly think it is sufficient to induce the people to pay money or part with power.
"The delegates from the Eastw^d are for a very strong government, & wish to prostrate all y^e State legislatures, & form a general system out of y^e whole; but I don't learn that the people are with them, on y^e contrary in Massachusetts they think that government too strong, & are about rebelling again, for the purpose of making it more democratical: In Connecticut they have rejected the requisition for y^e present year decidedly, & no Man there would be elected to the office of a constable if he was to declare that he meant to pay a copper towards the domestic debt:--R. Island has refused to send members--the cry there is for a good government after they have paid their debts in depreciated paper:--first demolish the Philistines (i. e. their creditors) then for _propiety_.
"N. Hampshire has not paid a shilling, since peace, & does not ever mean to pay on to all eternity:--if it was attempted to tax the people for y^e domestic debt 500 Shays would arise in a fortnight.--In N. York they pay well because they can do it by plundering N. Jersey & Connecticut.--Jersey will go great lengths from motives of revenge and Interest: Pensylvany will join provided you let the sessions of the Executive of America be fixed in Philad^a & give her other advantages in trade to compensate for the loss of State power. I shall make no observations on the Southern States, but I think they will be (perhaps from different motives) as little disposed to part with efficient power as any in the Union...."--William Grayson to James Monroe, New York, May 29, 1787. _Monroe MSS._
Adjourned.
WEDNESDAY MAY 30.
Roger Sherman (from Connecticut) took his seat.
The House went into Committee of the Whole on the State of the Union. M^r Gorham was elected to the Chair by Ballot.
The propositions of M^r Randolph which had been referred to the Co[~m]ittee being taken up. He moved on the suggestion of M^r G. Morris, that the first of his propositions to wit "Resolved that the articles of Confederation ought to be so corrected & enlarged, as to accomplish the objects proposed by their institution; namely, common defence, security of liberty, and general welfare,--should be postponed, in order to consider the 3 following:
1. that a union of the States merely federal will not accomplish the objects proposed by the articles of Confederation, namely common defence, security of liberty, & gen^l welfare.
2. that no treaty or treaties among the whole or part of the States, as individual Sovereignties, would be sufficient.
3. that a _national_ Government ought to be established consisting of a _supreme_ Legislative, Executive & Judiciary.
The motion for postponing was seconded by M^r Gov^r Morris and unanimously agreed to.
Some verbal criticisms were raised ag^{st} the first proposition, and it was agreed on motion of M^r Butler seconded by M^r Randolph, to pass on to the third, which underwent a discussion, less however on its general merits than on the force and extent of the particular terms _national & supreme_.
M^r Charles Pinkney wished to know of M^r Randolph, whether he meant to abolish the State Govern^{ts} altogether. M^r R. replied that he meant by these general propositions merely to introduce the particular ones which explained the outlines of the system he had in view.
M^r Butler said he had not made up his mind on the subject, and was open to the light which discussion might throw on it. After some general observations he concluded with saying that he had opposed the grant of powers to Cong^s heretofore, because the whole power was vested in one body. The proposed distribution of the powers into different bodies changed the case, and would induce him to go great lengths.
Gen^l Pinkney[35] expressed a doubt whether the act of Cong^s reco[~m]ending the Convention, or the Commissions of the Deputies to it, could authorize a discussion of a system founded on different principles from the federal Constitution.
[35] "M^r Ch^s Cotesworth Pinckney is a Gentleman of Family and fortune in his own State. He has received the advantage of a liberal education, and possesses a very extensive degree of legal knowledge. When warm in a debate he sometimes speaks well,--but he is generally considered an indifferent Orator. Mr. Pinckney was an Officer of high rank in the American Army, and served with great reputation through the War. He is now about 40 years of age."--Pierce's Notes, _Am. Hist. Rev._, iii., 333.
M^r Gerry[36] seemed to entertain the same doubt.
[36] "M. Gerry's character is marked for integrity and perseverance. He is a hesitating and laborious speaker;--possesses a great degree of confidence and goes extensively into all subjects that he speaks on, without respect to elegance or flower of diction. He is connected and sometimes clear in his arguments, conceives well, and cherishes as his first virtue, a love for his Country. Mr. Gerry is very much of a Gentleman in his principles and manners;--he has been engaged in the mercantile line and is a Man of property. He is about 37 years of age."--Pierce's Notes, _Am. Hist. Rev._, iii., 325.
M^r Gov^r Morris explained the distinction between a _federal_ and _national_, _supreme_, Gov^t; the former being a mere compact resting on the good faith of the parties; the latter having a compleat and _compulsive_ operation. He contended that in all Communities there must be one supreme power, and one only.
M^r Mason observed that the present confederation was not only deficient in not providing for coercion & punishment ag^{st} delinquent States; but argued very cogently that punishment could not in the nature of things be executed on the States collectively, and therefore that such a Gov^t was necessary as could directly operate on individuals, and would punish those only whose guilt required it.
M^r Sherman[37] who took his seat today, admitted that the Confederation had not given sufficient power to Cong^s and that additional powers were necessary; particularly that of raising money which he said would involve many other powers. He admitted also that the General & particular jurisdictions ought in no case to be concurrent. He seemed however not to be disposed to make too great inroads on the existing system; intimating as one reason, that it would be wrong to lose every amendment, by inserting such as would not be agreed to by the States.
[37] "M^r Sherman exhibits the oddest shaped character I ever remember to have met with. He is awkward, un-meaning, and unaccountably strange in his manner. But in his train of thinking there is something regular, deep, and comprehensive; yet the oddity of his address, the vulgarisms that accompany his public speaking, and that strange new England cant which runs through his public as well as his private speaking make everything that is connected with him grotesque and laughable;--and yet he deserves infinite praise,--no Man has a better Heart or a clearer Head. If he cannot embellish he can furnish thoughts that are wise and useful. He is an able politician and extremely artful in accomplishing any particular object;--it is remarked that he seldom fails. I am told he sits on the Bench in Connecticut, and is very correct in the discharge of his Judicial functions. In the early part of his life he was a Shoe-maker;--but despising the lowness of his condition, he turned Almanack maker, and so progressed upwards to a Judge. He has been several years a Member of Congress, and discharged the duties of his Office with honor and credit to himself, and advantage to the State he represented. He is about 60."--Pierce's Notes, _Am. Hist. Rev._, iii., 326.
It was moved by M^r Read,[38] 2^{ded} by M^r Ch^s Cotesworth Pinkney, to postpone the 3^d proposition last offered by M^r Randolph viz that a national Government ought to be established consisting of a supreme Legislative Executive and Judiciary, in order to take up the following,--viz. "Resolved that in order to carry into execution the Design of the States in forming this Convention, and to accomplish the objects proposed by the Confederation a more effective Government consisting of a Legislative, Executive and Judiciary, ought to be established." The motion to postpone for this purpose was lost:
Yeas. Massachusetts, Connecticut, Delaware, S. Carolina--4. Nays. N. Y. Pennsylvania, Virginia, North Carolina--4.
[38] "M^r Read is a Lawyer and a Judge;--his legal abilities are said to be very great, but his powers of Oratory are fatiguing and tiresome to the last degree;--his voice is feeble and his articulation so bad that few can have patience to attend to him. He is a very good Man, and bears an amiable character with those who know him. Mr. Read is about 50, of a low stature, and a weak constitution."--Pierce's Notes, _Id._, iii., 330.
On the question as moved by M^r Butler, on the third proposition it was resolved in Committee of whole that a national govern^t ought to be established consisting of a supreme Legislative Executive & Judiciary,--Mass^{ts} being ay.--Connect.--no. N. York divided (Col. Hamilton ay. M^r Yates no.) Pen^a ay. Delaware ay. Virg^a ay. N. C. ay. S. C. ay.
The following Resolution, being the 2^d of those proposed by M^r Randolph was taken up, viz.--"that the rights of suffrage in the National Legislature ought to be proportioned to the quotas of contribution, or to the number of free inhabitants, as the one or the other rule may seem best in different cases."
M^r Madison[39] observing that the words, "_or to the number of free inhabitants_," might occasion debates which would divert the Committee from the general question whether the principle of representation should be changed, moved that they might be struck out.
[39] "Mr. Madison is a character who has long been in public life; and what is very remarkable every Person seems to acknowledge his greatness. He blends together the profound politician, with the Scholar. In the management of every great question he evidently took the lead in the Convention, and tho' he cannot be called an Orator, he is a most agreeable, eloquent, and convincing Speaker. From a spirit of industry and application which he possesses in a most eminent degree, he always comes forward the best informed Man of any point in debate. The affairs of the United States, he perhaps, has the most correct knowledge of, of any Man in the Union. He has been twice a Member of Congress, and was always thought one of the ablest Members that ever sat in that Council. Mr. Maddison is about 37 years of age, a Gentleman of great modesty,--with a remarkable sweet temper. He is easy and unreserved among his acquaintance, and has a most agreeable style of conversation."--Pierce's Notes, _Am. Hist. Rev._, iii., 331.
M^r King observed that the quotas of contribution which would alone remain as the measure of representation, would not answer, because waving every other view of the matter, the revenue might hereafter be so collected by the General Gov^t that the sums respectively drawn from the States would not appear, and would besides be continually varying.
M^r Madison admitted the propriety of the observation, and that some better rule ought to be found.
Col. Hamilton moved to alter the resolution so as to read "that the rights of suffrage in the national Legislature ought to be proportioned to the number of free inhabitiants." M^r Spaight 2^{ded} the motion.
It was then moved that the Resolution be postponed, which was agreed to.
M^r Randolph and M^r Madison then moved the following resolution--"that the rights of suffrage in the national Legislature ought to be proportioned."
It was moved and 2^{ded} to amend it by adding "and not according to the present system"--which was agreed to.
It was then moved & 2^{ded} to alter the resolution so as to read "that the rights of suffrage in the national Legislature ought not to be according to the present system."
It was then moved & 2^{ded} to postpone the Resolution moved by M^r Randolph & M^r Madison, which being agreed to:
M^r Madison, moved, in order to get over the difficulties, the following resolution--"that the equality of suffrage established by the articles of Confederation ought not to prevail in the national Legislature, and "that an equitable ratio of representation ought to be substituted." This was 2^{ded} by M^r Gov^r Morris, and being generally relished, would have been agreed to; when,
M^r Reed moved that the whole clause relating to the point of Representation be postponed; reminding the Com^e that the deputies from Delaware were restrained by their co[~m]ission from assenting to any change of the rule of suffrage, and in case such a change should be fixed on, it might become their duty to retire from the Convention.
M^r Gov^r Morris observed that the valuable assistance of those members could not be lost without real concern, and that so early a proof of discord in the Convention as the secession of a State, would add much to the regret; that the change proposed was however so fundamental an article in a national Gov^t, that it could not be dispensed with.
M^r Madison observed that whatever reason might have existed for the equality of suffrage when the Union was a federal one among sovereign States, it must cease when a National Governm^t should be put into the place. In the former case, the acts of Cong^s depended so much for their efficacy on the cooperation of the States, that these had a weight both within & without Congress, nearly in proportion to their extent and importance. In the latter case, as the acts of the Gen^l Gov^t would take effect without the intervention of the State legislatures, a vote from a small State w^d have the same efficacy & importance as a vote from a large one, and there was the same reason for different numbers of representatives from different States, as from Counties of different extents within particular States. He suggested as an expedient for at once taking the sense of the members on this point and saving the Delaware deputies from embarrassment, that the question should be taken in Committee, and the clause on report to the House, be postponed without a question there. This however did not appear to satisfy Mr. Read.
By several it was observed that no just construction of the Act of Delaware, could require or justify a secession of her deputies, even if the resolution were to be carried thro' the House as well as the Committee. It was finally agreed however that the clause should be postponed: it being understood that in the event the proposed change of representation would certainly be agreed to, no objection or difficulty being started from any other quarter than from Delaware.
The motion of Mr. Read to postpone being agreed to,
The Committee then rose. The Chairman reported progress, and the House having resolved to resume the subject in Committee to-morrow,
Adjourned to 10 O Clock.
THURSDAY MAY 31[40]
[40] "This day the state of New Jersey was represented, so that there were now ten states in Convention."--Yates, _Secret Proceedings_, etc., 99. But in the _Journal of the Federal Convention (1819)_, as in Madison's account, New Jersey is entered as present May 25th. On May 30 two votes are recorded by Madison and in the _Journal_ without New Jersey. It is probable that an error was made in the _Journal_ and that Madison followed it.
William Pierce, from Georgia took his seat.[41]
[41] Rufus King kept a few notes of the proceedings of the convention from May 31st to August 8th. They are meagre, but corroborate Madison's report. See King's _Life and Correspondence of Rufus King_, i., 587.
Pierce also kept a few rough notes of the proceedings which were printed in the _Savannah Georgian_, April 19, 21, 22, 23, 24, 25, 26, and 28, 1828, and reprinted in _The American Historical Review_, iii., 317 _et seq._ They throw little additional light on the debates, but wherever they do are quoted here, as are King's.
In Committee of the whole on Mr. Randolph's propositions.
The 3^d Resolution "that the national Legislature ought to consist of two branches" was agreed to without debate or dissent, except that of Pennsylvania, given probably from complaisance to Doc^r Franklin who was understood to be partial to a single House of Legislation.
Resol: 4. first clause, "that the members of the first branch of the National Legislature ought to be elected by the people of the several States," being taken up,
M^r Sherman opposed the election by the people, insisting that it ought to be by the State Legislatures. The people he said, immediately should have as little to do as may be about the Government. They want information and are constantly liable to be misled.
M^r Gerry. The evils we experience flow from the excess of democracy. The people do not want virtue, but are the dupes of pretended patriots. In Mass^{ts} it had been fully confirmed by experience that they are daily misled into the most baneful measures and opinions by the false reports circulated by designing men, and which no one on the spot can refute. One principal evil arises from the want of due provision for those employed in the administration of Governm^t. It would seem to be a maxim of democracy to starve the public servants. He mentioned the popular clamour in Mass^{ts} for the reduction of salaries and the attack made on that of the Gov^r though secured by the spirit of the Constitution itself. He had he said been too republican heretofore: he was still however republican, but had been taught by experience the danger of the levelling spirit.
M^r Mason argued strongly for an election of the larger branch by the people. It was to be the grand depository of the democratic principle of the Gov^t. It was, so to speak, to be our House of Commons--It ought to know & sympathize with every part of the community; and ought therefore to be taken not only from different parts of the whole republic, but also from different districts of the larger members of it, which had in several instances particularly in Virg^a, different interests and views arising from difference of produce, of habits &c &c. He admitted that we had been too democratic but was afraid we s^d incautiously run into the opposite extreme. We ought to attend to the rights of every class of the people. He had often wondered at the indifference of the superior classes of society to this dictate of humanity & policy, considering that however affluent their circumstances, or elevated their situations, might be, the course of a few years, not only might but certainly would, distribute their posterity throughout the lowest classes of Society. Every selfish motive therefore, every family attachment, ought to recommend such a system of policy as would provide no less carefully for the rights and happiness of the lowest than of the highest orders of Citizens.
M^r Wilson contended strenuously for drawing the most numerous branch of the Legislature immediately from the people. He was for raising the federal pyramid to a considerable altitude, and for that reason wished to give it as broad a basis as possible. No government could long subsist without the confidence of the people. In a republican Government this confidence was peculiarly essential. He also thought it wrong to increase the weight of the State Legislatures by making them the electors of the national Legislature. All interference between the general and local Governm^{ts} should be obviated as much as possible. On examination it would be found that the opposition of States to federal measures had proceeded much more from the officers of the States, than from the people at large.
M^r Madison considered the popular election of one branch of the national Legislature as essential to every plan of free Government. He observed that in some of the States one branch of the Legislature was composed of men already removed from the people by an intervening body of electors. That if the first branch of the general legislature should be elected by the State Legislatures, the second branch elected by the first--the Executive by the second together with the first; and other appointments again made for subordinate purposes by the Executive, the people would be lost sight of altogether; and the necessary sympathy between them and their rulers and officers, too little felt. He was an advocate for the policy of refining the popular appointments by successive filtrations, but thought it might be pushed too far. He wished the expedient to be resorted to only in the appointment of the second branch of the Legislature, and in the Executive & judiciary branches of the Government. He thought too that the great fabric to be raised would be more stable and durable, if it should rest on the solid foundation of the people themselves, than if it should stand merely on the pillars of the Legislatures.
M^r Gerry did not like the election by the people. The maxims taken from the British Constitution were often fallacious when applied to our situation which was extremely different. Experience he said had shewn that the State legislatures drawn immediately from the people did not always possess their confidence. He had no objection however to an election by the people if it were so qualified that men of honor & character might not be unwilling to be joined in the appointments. He seemed to think the people might nominate a certain number out of which the State legislatures should be bound to choose.[42]
[42] "Mr. Strong would agree to the principle, provided it would undergo a certain modification, but pointed out nothing."--Pierce's Notes, _Am. Hist. Rev._, iii., 318.
M^r Butler thought an election by the people an impracticable mode.
On the question for an election of the first branch of the national Legislature, by the people,
Mass^{ts} ay. Connec^t div^d. N. York ay. N. Jersey no. Pen^a ay. Delaw^r div^d. V^a ay. N. C. ay. S. C. no. Georg^a ay.
The remaiñg Clauses of Resolution 4^{th} relating to the qualifications of members of the National Legislature, being posp^d nem. con., as entering too much into detail for general propositions.
The Committee proceeded to Resolution 5. "that the second, (or senatorial) branch of the National Legislature ought to be chosen by the first branch out of persons nominated by the State Legislatures."
M^r Spaight contended that the 2^d branch ought to be chosen by the State Legislatures and moved an amendment to that effect.[43]
[43] "M^r King observed that the Question called for was premature, and out of order,--that unless we go on regularly from one principle to the other we shall draw out our proceedings to an endless length."--Pierce's Notes, _Am. Hist. Rev._, iii., 318.
M^r Butler apprehended that the taking so many powers out of the hands of the States as was proposed, tended to destroy all that balance and security of interests among the States which it was necessary to preserve; and called on M^r Randolph the mover of the propositions, to explain the extent of his ideas, and particularly the number of members he meant to assign to this second branch.
M^r Rand^f observed that he had at the time of offering his propositions stated his ideas as far as the nature of general propositions required; that details made no part of the plan, and could not perhaps with propriety have been introduced. If he was to give an opinion as to the number of the second branch, he should say that it ought to be much smaller than that of the first; so small as to be exempt from the passionate proceedings to which numerous assemblies are liable. He observed that the general object was to provide a cure for the evils under which the U. S. laboured; that in tracing these evils to their origin every man had found it in the turbulance and follies of democracy: that some check therefore was to be sought for ag^{st} this tendency of our Governments: and that a good Senate seemed most likely to answer the purpose.[44]
[44] "Butler said that until the number of the Senate could be known it would be impossible for him to give a vote on it."--Pierce's Notes, _Am. Hist. Rev._, iii., 318.
M^r King reminded the Committee that the choice of the second branch as proposed (by M^r Spaight) viz. by the State Legislatures would be impracticable, unless it was to be very numerous, or _the idea of proportion_ among the States was to be disregarded. According to this _idea_, there must be 80 or 100 members to entitle Delaware to the choice of one of them.--M^r Spaight withdrew his motion.
M^r Wilson opposed both a nomination by the State Legislatures, and an election by the first branch of the national Legislature, because the second branch of the latter, ought to be independent of both. He thought both branches of the National Legislature ought to be chosen by the people, but was not prepared with a specific proposition. He suggested the mode of chusing the Senate of N. York to wit of uniting several election districts for one branch, in chusing members for the other branch, as a good model.
M^r Madison observed that such a mode would destroy the influence of the smaller States associated with larger ones in the same district; as the latter would chuse from within themselves, altho' better men might be found in the former. The election of Senators in Virg^a where large & small counties were often formed into one district for the purpose, had illustrated this consequence. Local partiality, would often prefer a resident within the County or State, to a candidate of superior merit residing out of it. Less merit also in a resident would be more known throughout his own State.[45]
[45] "M^r Butler moved to have the proposition relating to the first branch postponed, in order to take up another,--which was that the second branch of the Legislature consist of blank.
"M^r King objected to the postponement for the reasons which he had offered before."--Pierce's Notes, _Id._, iii., 319.
M^r Sherman favored an election of one member by each of the State Legislatures.[46]
[46] According to Pierce, Mason spoke after Sherman, and Pinckney's motion is given more fully by Pierce than by Madison.
"M^r Mason was of opinion that it would be highly improper to draw the Senate out of the first branch; that it would occasion vacancies which would cost much time, trouble, and expense to have filled up,--besides which it would make the members too dependent on the first branch.
"M^r Ch^s Pinckney said he meant to propose to divide the Continent into four Divisions, out of which a certain number of persons sh^d be nominated, and out of that nomination to appoint a senate."--Pierce's Notes, _Amer. Hist. Rev._, iii., 319.
M^r Pinkney moved to strike out the "nomination by the State Legislatures;" on this question.
[47]Mass^{ts} no. Con^t no. N. Y. no. N. J. no. Pen^a no. Del. div^d V^a no. N. C. no. S. C. no. Georg no.
[47] This question is omitted in the printed Journal, & the votes applied to the succeeding one, instead of the votes as here stated.--Madison's Note.
On the whole question for electing by the first branch out of nominations by the State Legislatures, Mass. ay. Con^t no. N. Y. no. N. Jersey, no. Pen^a no. Del. no. Virg^a ay. N. C. no. S. C. ay. G^a no.
So the clause was disagreed to & a chasm left in this part of the plan.
The sixth Resolution stating the cases in which the national Legislature ought to legislate was next taken into discussion: On the question whether each branch sh^d originate laws, there was an unanimous affirmative without debate. On the question for transferring all the Legislative power of the existing Cong^s to this Assembly, there was also a silent affirmative nem. con.
On the proposition for giving "Legislative power in all cases to which the State Legislatures were individually incompetent,"
M^r Pinkney & M^r Rutledge[48] objected to the vagueness of the term _incompetent_, and said they could not well decide how to vote until they should see an exact enumeration of the powers comprehended by this definition.[49]
[48] "Mr. Rutledge is one of those characters who was highly mounted at the commencement of the late revolution;--his reputation in the first Congress gave him a distinguished rank among the American Worthies. He was bred to the Law, and now acts as one of the Chancellors of South Carolina. This Gentleman is much famed in his own State as an Orator, but in my opinion he is too rapid in his public speaking to be denominated an agreeable Orator. He is undobotedly a man of abilities, and a Gentleman of distinction and fortune. Mr. Rutledge was once Governor of South Carolina. He is about 48 years of age."--Pierce's Notes, _Amer. Hist. Rev._, iii., 333.
[49] According to Pierce: "M^r Sherman was of opinion that it would be too indefinitely expressed,--and yet it would be hard to define all the powers by detail. It appeared to him that it would be improper for the national Legislature to negative all the Laws that were connected with the States themselves.
"M^r Madison said it was necessary to adopt some general principles on which we should act,--that we were wandering from one thing to another without seeming to be settled in any one principle.
"M^r Wythe observed that it would be right to establish general principles before we go into detail, or very shortly Gentlemen would find themselves in confusion, and would be obliged to have recurrence to the point from whence they sat out.
"M^r King was of opinion that the principles ought first to be established before we proceed to the framing of the Act. He apprehends that the principles only go so far as to embrace all the power that is given up by the people to the Legislature, and to the federal Government, but no farther.
"M^r Randolph was of opinion that it would be impossible to define the powers and the length to which the federal Legislature ought to extend just at this time.
"M^r Wilson observed that it would be impossible to enumerate the powers which the federal Legislature ought to have."--Pierce's Notes, _Id._, iii., 319, 320.
M^r Butler repeated his fears that we were running into an extreme in taking away the powers of the States, and called on Mr. Randolph for the extent of his meaning.
M^r Randolph disclaimed any intention to give indefinite powers to the national Legislature, declaring that he was entirely opposed to such an inroad on the State jurisdictions, and that he did not think any considerations whatever could ever change his determination. His opinion was fixed on this point.
M^r Madison said that he had brought with him into the Convention a strong bias in favor of an enumeration and definition of the powers necessary to be exercised by the national Legislature; but had also brought doubts concerning its practicability. His wishes remained unaltered; but his doubts had become stronger. What his opinion might ultimately be he could not yet tell. But he should shrink from nothing which should be found essential to such a form of Gov^t as would provide for the safety, liberty and happiness of the community. This being the end of all our deliberations, all the necessary means for attaining it must, however reluctantly, be submitted to.
On the question for giving powers, in cases to which the States are not competent--Mass^{ts} ay. Con^t div^d. (Sherman no. Elseworth ay.) N. Y. ay. N. J. ay. P^a ay. Del. ay. V^a ay. N. C. ay. S. Carolina ay. Georg^a ay.
The other clauses giving powers necessary to preserve harmony among the States to negative all State laws contravening in the opinion of the Nat. Leg. the articles of union, down to the last clause, (the words "or any treaties subsisting under the authority of the Union," being added after the words "contravening &c. the articles of the Union," on motion of D^r Franklin) were agreed to with^t debate or dissent.
The last clause of Resolution 6, authorizing an exertion of the force of the whole ag^{st} a delinquent State came next into consideration.
M^r Madison, observed that the more he reflected on the use of force, the more he doubted, the practicability, the justice and the efficacy of it when applied to people collectively and not individually.--A union of the States containing such an ingredient seemed to provide for its own destruction. The use of force ag^{st} a State, would look more like a declaration of war, than an infliction of punishment, and would probably be considered by the party attacked as a dissolution of all previous compacts by which it might be bound. He hoped that such a system would be framed as might render this resource unnecessary, and moved that the clause be postponed. This motion was agreed to, nem. con.
The Committee then rose & the House
Adjourned.[50]
[50] "When the Convention first opened at Philadelphia, there were a number of propositions brought forward as great leading principles for the new Government to be established for the United States. A copy of these propositions was given to each Member with an injunction to keep everything a profound secret. One morning, by accident, one of the Members dropt his copy of the propositions, which being luckily picked up by General Mifflin was presented to General Washington, our President, who put it in his pocket. After the debates of the Day were over, and the question for adjournment was called for, the General arose from his seat, and previous to his putting the question addressed the Convention in the following manner,--
"'Gentlemen
"'I am sorry to find that some one Member of this Body, has been so neglectful of the secrets of the Convention as to drop in the State House, a copy of their proceedings, which by accident was picked up and delivered to me this Morning. I must entreat Gentlemen to be more careful, lest our transactions get into the News Papers, and disturb the public repose by premature speculations. I know not whose Paper it is, but there it is [throwing it down on the table,] let him who owns it take it.' At the same time he bowed, picked up his Hat, and quitted the room with a dignity so severe that every Person seemed alarmed; for my part I was extremely so, for putting my hand in my pocket I missed my copy of the same Paper, but advancing up to the Table my fears soon dissipated; I found it to be in the hand writing of another Person. When I went to my lodgings at the Indian Queen, I found my copy in a coat pocket which I had pulled off that Morning. It is something remarkable that no Person ever owned the Paper."--Pierce's Notes, _Am. Hist. Rev._, iii., 324.
FRIDAY JUNE 1^{ST} 1787
William Houston from Georgia took his seat.
The Committee of the whole proceeded to Resolution 7. "that a national Executive be instituted, to be chosen by the national Legislature for the term of ---- years &c. to be ineligible thereafter, to possess the Executive powers of Congress &c."
M^r Pinkney was for a vigorous Executive but was afraid the Executive powers of the existing Congress might extend to peace & war &c. which would render the Executive a monarchy, of the worst kind, to wit an elective one.
M^r Wilson moved that the Executive consist of a single person. M^r C. Pinkney seconded the motion, so as to read "that a National Ex. to consist of a single person, be instituted."
A considerable pause ensuing and the Chairman asking if he should put the question, Doc^r Franklin[51] observed that it was a point of great importance and wished that the gentlemen would deliver their sentiments on it before the question was put.
[51] "D^r Franklin is well known to be the greatest phylosopher of the present age;--all the operations of nature he seems to understand,--the very heavens obey him, and the Clouds yield up their Lightning to be imprisoned in his rod. But what claim he has to the politician, posterity must determine. It is certain that he does not shine much in public Council,--he is no Speaker, nor does he seem to let politics engage his attention. He is, however, a most extraordinary Man, and he tells a story in a style more engaging than anything I ever heard. Let his Biographer finish his character. He is 82 years old, and possesses an activity of mind equal to a youth of 25 years of age."--Pierce's Notes, _Amer. Hist. Rev._, iii., 328.
M^r Rutlidge animadverted on the shyness of gentlemen on this and other subjects. He said it looked as if they supposed themselves precluded by having frankly disclosed their opinions from afterwards changing them, which he did not take to be at all the case. He said he was for vesting the Executive power in a single person, tho' he was not for giving him the power of war and peace. A single man would feel the greatest responsibility and administer the public affairs best.
M^r Sherman said he considered the Executive magistracy as nothing more than an institution for carrying the will of the Legislature into effect, that the person or persons ought to be appointed by and accountable to the Legislature only, which was the depository of the supreme will of the Society. As they were the best judges of the business which ought to be done by the Executive department, and consequently of the number necessary from time to time for doing it, he wished the number might not be fixed, but that the legislature should be at liberty to appoint one or more as experience might dictate.
M^r Wilson preferred a single magistrate, as giving most energy dispatch and responsibility to the office. He did not consider the Prerogatives of the British Monarch as a proper guide in defining the Executive powers. Some of these prerogatives were of a Legislative nature. Among others that of war & peace &c. The only powers he considered strictly Executive were those of executing the laws, and appointing officers, not appertaining to and appointed by the Legislature.[52]
[52] According to King, Madison followed Wilson: "Madison agreed with Wilson in the Definition of Executive power. _Ex vi termini._ Executive power does not include the Power of War and Peace. Executive Power shd. be limited and defined. If large, we shall have the Evils of Elective Monarchies. Perhaps the best plan will be a single Executive of long duration, with a Council and with Liberty to dissent on his personal Responsibility."--King's _Life and Correspondence of Rufus King_, i., 588.
According to Pierce:
"M^r Madison was of opinion that an Executive formed of one Man would answer the purpose when aided by a Council, who should have the right to advise and record their proceedings, but not to control his authority."--Pierce's Notes, _Am. Hist. Rev._, iii., 320.
M^r Gerry favored the policy of annexing a Council to the Executive in order to give weight & inspire confidence.[53]
[53] King gives Gerry's remarks: "_Gerry._ I am in favor of a Council to advise the Executive: they will be organs of information respecting Persons qualified for various offices. Their opinions may be recorded, so as to be liable to be called to account & impeached--in this way, their Responsibility will be certain, and for misconduct their Punishment sure."
Dickinson followed Gerry: "_Dickinson._ A limited yet vigorous Executive is not republican, but peculiar to monarchy--the royal Executive has vigour, not only by power, but by popular Attachment & Report--an Equivalent to popular Attachment may be derived from the Veto on the Legislative acts. We cannot have a limited monarchy--our condition does not permit it. Republics are in the beginning and for a time industrious, but they finally destroy themselves because they are badly constituted. I dread the consolidation of the States, & hope for a good national Govt. from the present Division of the States with a feeble Executive.
"We are to have a Legislature of two branches, or two Legislatures, as the sovereign of the nation--this will work a change unless you provide that the judiciary shall aid and correct the Executive. The first Branch of the Legislature, the H. of Representatives, must be on another plan. The second Branch or Senate may be on the present scheme of representing _the States_--the Representatives to be apportioned according to the Quotas of the States paid into the general Treasury. The Executive to be removed from office by the national Legislature, on the Petition of seven States."--King's _Life and Correspondence of Rufus King_, i., 588 _et seq._
M^r Randolph strenuously opposed a unity in the Executive magistracy. He regarded it as the foetus of monarchy. We had he said no motive to be governed by the British Govenm^t as our prototype. He did not mean however to throw censure on that Excellent fabric. If we were in a situation to copy it he did not know that he should be opposed to it; but the fixt genius of the people of America required a different form of Government. He could not see why the great requisites for the Executive department, vigor, dispatch & responsibility could not be found in three men, as well as in one man. The Executive ought to be independent. It ought therefore in order to support its independence to consist of more than one.
M^r Wilson said that unity in the Executive instead of being the fetus of monarchy would be the best safeguard against tyranny. He repeated that he was not governed by the British Model which was inapplicable to the situation of this Country; the extent of which was so great, and the manners so republican, that nothing but a great confederated Republic would do for it.
M^r Wilson's motion for a single magistrate was postponed by common consent, the Committee seeming unprepared for any decision on it; and the first part of the clause agreed to, viz--"that a National Executive be instituted."[54]
[54] Williamson followed Wilson, according to King: "_Williamson_--There is no true difference between an Executive composed of a single person, with a Council, and an Executive composed of three or more persons."--King's _Life and Correspondence of Rufus King_, i., 590.
M^r Madison thought it would be proper, before a choice sh^d be made between a unity and a plurality in the Executive, to fix the extent of the Executive authority; that as certain powers were in their nature Executive, and must be given to that departm^t whether administered by one or more persons, a definition of their extent would assist the judgment in determining how far they might be safely entrusted to a single officer. He accordingly moved that so much of the clause before the Committee as related to the powers of the Executive sh^d be struck out & that after the words "that a national Executive ought to be instituted" there be inserted the words following viz. "with power to carry into effect the national laws, to appoint to offices in cases not otherwise provided for, and to execute such other powers "not Legislative nor Judiciary in their nature," as may from time to time be delegated by the national Legislature." The words "not legislative nor judiciary in their nature" were added to the proposed amendment, in consequence of a suggestion by Gen^l Pinkney that improper powers might otherwise be delegated.
M^r Wilson seconded this motion.
M^r Pinkney moved to amend the amendment by striking out the last member of it; viz: "and to execute such other powers not Legislative nor Judiciary in their nature as may from time to time be delegated." He said they were unnecessary, the object of them being included in the "power to carry into effect the national laws."
M^r Randolph seconded the motion.
M^r Madison did not know that the words were absolutely necessary, or even the preceding words, "to appoint to offices &c. the whole being perhaps included in the first member of the proposition. He did not however see any inconveniency in retaining them, and cases might happen in which they might serve to prevent doubts and misconstructions.
In consequence of the motion of M^r Pinkney, the question on M^r Madison's motion was divided; and the words objected to by M^r Pinkney struck out; by the votes of Connecticut, N. Y., N. J., Pen^a, Del., N. C., & Geo. ag^{st} Mass., Virg^a & S. Carolina the preceding part of the motion being first agreed to; Connecticut divided all the other States in the affirmative.
The next clause in Resolution 7, relating to the mode of appointing, & the duration of, the Executive being under consideration,
M^r Wilson said he was almost unwilling to declare the mode which he wished to take place, being apprehensive that it might appear chimerical. He would say however at least that in theory he was for an election by the people. Experience, particularly in N. York & Mass^{ts}, shewed that an election of the first magistrate by the people at large, was both a convenient & successful mode. The objects of choice in such cases must be persons whose merits have general notoriety.
M^r Sherman was for the appointment by the Legislature, and for making him absolutely dependent on that body, as it was the will of that which was to be executed. An independence of the Executive on the supreme Legislature, was in his opinion the very essence of tyranny if there was any such thing.
M^r Wilson moves that the blank for the term of duration should be filled with three years, observing at the same time that he preferred this short period, on the supposition that a re-eligibility would be provided for.
M^r Pinkney moves for seven years.
M^r Sherman was for three years, and ag^{st} the doctrine of rotation as throwing out of office the men best qualified to execute its duties.
M^r Mason was for seven years at least, and for prohibiting a re-eligibility as the best expedient both for preventing the effect of a false complaisance on the side of the Legislature towards unfit characters; and a temptation on the side of the Executive to intrigue with the Legislature for a re-appointment.
M^r Bedford[55] was strongly opposed to so long a term as seven years. He begged the Committee to consider what the situation of the Country would be, in case the first magistrate should be saddled on it for such a period and it should be found on trial that he did not possess the qualifications ascribed to him, or should lose them after his appointment. An impeachment he said would be no cure for this evil, as an impeachment would reach misfeasance only, not incapacity. He was for a triennial election, and for an ineligibility after a period of nine years.
[55] "Mr. Bedford was educated for the Bar, and in his profession I am told, has merit. He is a bold and nervous Speaker, and has a very commanding and striking manner;--but he is warm and impetuous in his temper, and precipitate in his judgment. Mr. Bedford is about 32 years old, and very corpulent."--Pierce's Notes, _Am. Hist. Rev._, iii., 330.
On the question for seven years,
Mass^{ts} divid^{d.} Con^t no. N. Y. ay. N. J. ay. Pen^a ay. Del. ay. Virg^a ay. N. C. no. S. C. no. Geor. no.
There being 5 ays, 4 noes, & 1 div^d, a question was asked whether a majority had voted in the Affirmative? The President decided that it was an affirmative vote.
The _mode of appointing_ the Executive was the next question.
M^r Wilson renewed his declarations in favor of an appointment by the people. He wished to derive not only both branches of the Legislature from the people, without the intervention of the State Legislatures but the Executive also; in order to make them as independent as possible of each other, as well as of the States;
Col. Mason favors the idea, but thinks it impracticable. He wishes however that M^r Wilson might have time to digest it into his own form.--the clause, "to be chosen by the National Legislature"--was accordingly postponed.--
M^r Rutlidge suggests an election of the Executive by the second branch only of the national Legislature.
The Committee then rose and the House
Adjourned.
SATURDAY JUNE 2^D IN COMMITTEE OF WHOLE
William Sam^l Johnson from Connecticut, Daniel of St. Thomas Jenifer, from Mary^d, & John Lansing J^r from N. York, took their seats.
It was mov^d & 2^{ded} to postpone ye Resol: of M^r Randolph respecting the Executive, in order to take up the 2^d branch of the Legislature; which being negatived by Mas: Con: Del: Virg: N. C. S. C. Geo: ag^{st} N. Y. Pen^a Mary^d. The mode of appointing the Executive was resumed.
M^r Wilson made the following motion, to be substituted for the mode proposed by Mr. Randolph's resolution, "that the Executive Magistracy shall be elected in the following manner: That the States be divided into ---- districts: & that the persons qualified to vote in each district for members of the first branch of the national Legislature elect ---- members for their respective districts to be electors of the Executive Magistracy, that the said Electors of the Executive magistracy meet at ---- and they or any ---- of them so met shall proceed to elect by ballot, but not out of their own body ---- person-- in whom the Executive authority of the national Government shall be vested."
M^r Wilson repeated his arguments in favor of an election without the intervention of the States. He supposed too that this mode would produce more confidence among the people in the first magistrate, than an election by the national Legislature.
M^r Gerry, opposed the election by the National legislature. There would be a constant intrigue kept up for the appointment. The Legislature & the candidates w^d bargain & play into one another's hands, votes would be given by the former under promises or expectations from the latter, of recompensing them by services to members of the Legislature or to their friends. He liked the principle of M^r Wilson's motion, but fears it would alarm & give a handle to the State partizans, as tending to supersede altogether the State authorities. He thought the Community not yet ripe for stripping the States of their powers, even such as might not be requisite for local purposes. He was for waiting till the people should feel more the necessity of it. He seemed to prefer the taking the suffrages of the States, instead of Electors, or letting the Legislatures nominate, and the electors appoint. He was not clear that the people ought to act directly even in the choice of electors, being too little informed of personal characters in large districts, and liable to deceptions.
M^r Williamson[56] could see no advantage in the introduction of Electors chosen by the people who would stand in the same relation to them as the State Legislatures, whilst the expedient would be attended with great trouble and expence.
[56] "Mr. Williamson is a Gentleman of education and talents. He enters freely into public debate from his close attention to most subjects, but he is no Orator. There is a great degree of good humour and pleasantry in his character; and in his manners there is a strong trait of the Gentleman. He is about 48 years of age."--Pierce's Notes, _Amer. Hist. Rev._, iii., 332.
On the question for agreeing to M^r Wilson's substitute, it was negatived: Mass^{ts} no. Con^t no. N. Y.[57] no. P^a ay. Del. no. Mar^d ay. Virg^a no. N. C. no. S. C. no. Geo^a no.
[57] New York, in the printed Journal, divided.--Madison's Note.
On the question for electing the Executive by the national Legislature for the term of seven years, it was agreed to, Mass^{ts} ay. Con^t ay. N. Y. ay. Pen^a no. Del. ay. Mary^d no. V^a ay. N. C. ay. S. C. ay. Geo. ay.
Doc^r Franklin moved that what related to the compensation for the services of the Executive be postponed, in order to substitute--"whose necessary expences shall be defrayed, but who shall receive no salary, stipend fee or reward whatsoever for their services." He said that being very sensible of the effect of age on his memory, he had been unwilling to trust to that for the observations which seemed to support his motion and had reduced them to writing, that he might with the permission of the Committee read instead of speaking them. M^r Wilson made an offer to read the paper, which was accepted. The following is a literal copy of the paper:
Sir,
It is with reluctance that I rise to express a disapprobation of any one article of the plan for which we are so much obliged to the honorable gentleman who laid it before us. From its first reading I have borne a good will to it, and in general wished it success. In this particular of salaries to the Executive branch I happen to differ; and as my opinion may appear new and chimerical, it is only from a persuasion that it is right, and from a sense of duty that I hazard it. The Committee will judge of my reasons when they have heard them, and their judgment may possibly change mine.--I think I see inconveniences in the appointment of salaries; I see none in refusing them, but on the contrary, great advantages.
Sir, there are two passions which have a powerful influence on the affairs of men. These are ambition and avarice; the love of power, and the love of money. Separately each of these has great force in prompting men to action; but when united in view of the same object, they have in many minds the most violent effects. Place before the eyes of such men, a post of _honour_ that shall be at the same time a place of _profit_, and they will move heaven and earth to obtain it. The vast number of such places it is that renders the British Government so tempestuous. The struggles for them are the true sources of all those factions which are perpetually dividing the Nation, distracting its Councils, hurrying sometimes into fruitless & mischievous wars, and often compelling a submission to dishonorable terms of peace.
And of what kind are the men that will strive for this profitable pre-eminence, through all the bustle of cabal, the heat of contention, the infinite mutual abuse of parties, tearing to pieces the best of characters? It will not be the wise and moderate, the lovers of peace and good order, the men fittest for the trust. It will be the bold and the violent, the men of strong passions and indefatigable activity in their selfish pursuits. These will thrust themselves into your Government and be your rulers.--And these too will be mistaken in the expected happiness of their situation: For their vanquished competitors of the same spirit, and from the same motives will perpetually be endeavouring to distress their administration, thwart their measures, and render them odious to the people.
Besides these evils, Sir, tho' we may set out in the beginning with moderate salaries, we shall find that such will not be of long continuance. Reasons will never be wanting for proposed augmentations. And there will always be a party for giving more to the rulers, that the rulers may be able in return to give more to them. Hence as all history informs us, there has been in every State & Kingdom a constant kind of warfare between the Governing & Governed; the one striving to obtain more for its support, and the other to pay less. And this has alone occasioned great convulsions, actual civil wars, ending either in dethroning of the Princes, or enslaving of the people. Generally indeed the ruling power carries its point, the revenues of princes constantly increasing, and we see that they are never satisfied, but always in want of more. The more the people are discontented with the oppression of taxes; the greater need the prince has of money to distribute among his partizans and pay the troops that are to suppress all resistance, and enable him to plunder at pleasure. There is scarce a king in an hundred who would not, if he could, follow the example of Pharoah, get first all the people's money, then all their lands, and then make them and their children servants for ever. It will be said, that we don't propose to establish Kings. I know it. But there is a natural inclination in mankind to Kingly Government. It sometimes relieves them from Aristocratic domination. They had rather have one tyrant than five hundred. It gives more of the appearance of equality among Citizens, and that they like. I am apprehensive therefore, perhaps too apprehensive, that the Government of these States, may in future times, end in a Monarchy. But this Catastrophe I think may be long delayed, if in our proposed System we do not sow the seeds of contention, faction & tumult, by making our posts of honor, places of profit. If we do, I fear that tho' we do employ at first a number, and not a single person, the number will in time be set aside, it will only nourish the foetus of a King, as the honorable gentleman from Virginia very aptly expressed it, and a King will the sooner be set over us.
It may be imagined by some that this is an Utopian Idea, and that we can never find men to serve us in the Executive department, without paying them well for their services. I conceive this to be a mistake. Some existing facts present themselves to me, which incline me to a contrary opinion. The high Sheriff of a County in England is an honorable office, but it is not a profitable one. It is rather expensive and therefore not sought for. But yet, it is executed and well executed, and usually by some of the principal Gentlemen of the County. In France, the office of Counsellor, or Member of their Judiciary Parliaments is more honorable. It is therefore purchased at a high price: There are indeed fees on the law proceedings, which are divided among them, but these fees do not amount to more than three Per Cent on the sum paid for the place. Therefore as legal interest is there at five PerC^t they in fact pay two PerC^t for being allowed to do the Judiciary business of the Nation, which is at the same time entirely exempt from the burden of paying them any salaries for their services. I do not however mean to recommend this as an eligible mode for our Judiciary department. I only bring the instance to shew that the pleasure of doing good & serving their Country and the respect such conduct entitles them to, are sufficient motives with some minds to give up a great portion of their time to the Public, without the mean inducement of pecuniary satisfaction.
Another instance is that of a respectable Society who have made the experiment, and practised it with success more than one hundred years. I mean the Quakers. It is an established rule with them, that they are not to go to law; but in their controversies they must apply to their monthly, quarterly and yearly meetings. Committees of these sit with patience to hear the parties, and spend much time in composing their differences. In doing this, they are supported by a sense of duty, and the respect paid to usefulness. It is honorable to be so employed, but it is never made profitable by salaries, fees or perquisites. And indeed in all cases of Public service the less the profit the greater the honor.
To bring the matter nearer home, have we not seen, the great and most important of our offices, that of General of our armies executed for eight years together without the smallest salary, by a Patriot whom I will not now offend by any other praise; and this through fatigues and distresses in common with the other brave men his military friends & companions, and the constant anxieties peculiar to his station? And shall we doubt finding three or four men in all the U. States, with public spirit enough to bear sitting in peaceful Council for perhaps an equal term, merely to preside over our civil concerns, and see that our laws are duly executed. Sir, I have a better opinion of our Country. I think we shall never be without a sufficient number of wise and good men to undertake and execute well and faithfully the office in question.
Sir. The saving of the salaries that may at first be proposed is not an object with me. The subsequent mischiefs of proposing them are what I apprehend. And therefore it is, that I move the amendment. If it is not seconded or accepted I must be contented with the satisfaction of having delivered my opinion frankly and done my duty.
The motion was seconded by Col. Hamilton, with the view he said merely of bringing so respectable a proposition before the Committee, and which was besides enforced by arguments that had a certain degree of weight. No debate ensued, and the proposition was postponed for the consideration of the members. It was treated with great respect, but rather for the author of it, than from any apparent conviction of its expediency or practicability.
M^r Dickinson moved,[58] "that the Executive be made removable by the National Legislature on the request of a majority of the Legislatures of individual States." It was necessary he said to place the power of removing somewhere. He did not like the plan of impeaching the Great officers of State. He did not know how provision could be made for removal of them in a better mode than that which he had proposed. He had no idea of abolishing the State Governments as some gentlemen seemed inclined to do. The happiness of this Country in his opinion required considerable powers to be left in the hands of the States.
[58] "Mr. Dickinson has been famed through all America for his Farmers Letters; he is a Scholar, and said to be a Man of very extensive information. When I saw him in the Convention I was induced to pay the greatest attention to him whenever he spoke. I had often heard that he was a great Orator, but I found him an indifferent Speaker. With an affected air of wisdom he labors to produce a trifle,--his language is irregular and incorrect,--his flourishes, (for he sometimes attempts them,) are like expiring flames, they just shew themselves and go out;--no traces of them are left on the mind to chear or animate it. He is, however, a good writer and will be ever considered one of the most important characters in the United States. He is about 55 years old, and was bred a Quaker."--Pierce's Notes, _Am. Hist. Rev._, iii., 329.
M^r Bedford seconded the motion.
M^r Sherman contended that the national Legislature should have power to remove the Executive at pleasure.
M^r Mason. Some mode of displacing an unfit magistrate is rendered indispensable by the fallibility of those who choose, as well as by the corruptibility of the man chosen. He opposed decidedly the making the Executive the mere creature of the Legislature as a violation of the fundamental principle of good Government.
M^r Madison & M^r Wilson observed that it would leave an equality of agency in the small with the great States; that it would enable a minority of the people to prevent y^e removal of an officer who had rendered himself justly criminal in the eyes of a majority; that it would open a door for intrigues ag^{st} him in States where his administration tho' just might be unpopular, and might tempt him to pay court to particular States whose leading partizans he might fear, or wish to engage as his partizans. They both thought it bad policy to introduce such a mixture of the State authorities, where their agency could be otherwise supplied.
M^r Dickinson considered the business as so important that no man ought to be silent or reserved. He went into a discourse of some length, the sum of which was, that the Legislative, Executive, & Judiciary departments ought to be made as independ^t as possible; but that such an Executive as some seemed to have in contemplation was not consistent with a republic: that a firm Executive could only exist in a limited monarchy. In the British Gov^t itself the weight of the Executive arises from the attachments which the Crown draws to itself, & not merely from the force of its prerogatives. In place of these attachments we must look out for something else. One source of stability is the double branch of the Legislature. The division of the Country into distinct States formed the other principal source of stability. This division ought therefore to be maintained, and considerable powers to be left with the States. This was the ground of his consolation for the future fate of his Country. Without this, and in case of a consolidation of the States into one great Republic, we might read its fate in the history of smaller ones. A limited Monarchy he considered as _one_ of the best Governments in the world. It was not _certain_ that the same blessings were derivable from any other form. It was certain that equal blessings had never yet been derived from any of the republican form. A limited Monarchy however was out of the question. The spirit of the times--the state of our affairs forbade the experiment, if it were desireable. Was it possible moreover in the nature of things to introduce it even if these obstacles were less insuperable. A House of Nobles was essential to such a Gov^t could these be created by a breath, or by a stroke of the pen? No. They were the growth of ages, and could only arise under a complication of circumstances none of which existed in this Country. But though a form the most perfect _perhaps_ in itself be unattainable, we must not despair. If antient republics have been found to flourish for a moment only & then vanish for ever, it only proves that they were badly constituted; and that we ought to seek for every remedy for their diseases. One of these remedies he conceived to be the accidental lucky division of this Country into distinct States; a division which some seemed desirous to abolish altogether.
As to the point of representation in the national Legislature as it might affect States of different sizes, he said it must probably end in mutual concession. He hoped that each State would retain an equal voice at least in one branch of the National Legislature, and supposed the sums paid within each State would form a better ratio for the other branch than either the number of inhabitants or the quantum of property.[59]
[59] According to Pierce: "M^r Madison said it was far from being his wish that every executive Officer should remain in Office, without being amenable to some Body for his conduct."--Pierce's Notes, _Am. Hist. Rev._, iii., 321.
A motion being made to strike out, "on request by a majority of the Legislatures of the individual States," and rejected, Connecticut, S. Carol: & Geo. being ay, the rest no: the question on M^r Dickinson's motion for making Executive removable by Nat^l Legislature at request of majority of State Legislatures was also rejected all the States being in the negative Except Delaware which gave an affirmative vote.
The Question for making y^e Executive ineligible after seven years, was next taken and agreed to: Mass^{ts} ay. Con^t no. N. Y. ay. P^a div^d. Del. ay. Mary^d ay. V^a ay. N. C. ay. S. C. ay. Geo. no.[60]
[60] In printed Journal Geo. ay.--Madison's Note.
M^r Williamson 2^{ded} by M^r Davie[61] moved to add to the last clause, the words--"and to be removable on impeachment & conviction of mal-practice or neglect of duty"--which was agreed to.
[61] "Mr. Davey is a Lawyer of some eminence in his State. He is said to have a good classical education, and is a Gentleman of considerable literary talents. He was silent in the Convention, but his opinion was always respected. Mr. Davy is about 30 years of age."--Pierce's Notes, _Am. Hist. Rev._, iii., 332.
M^r Rutlidge & M^r C. Pinkney moved that the blank for the n^o of persons in the Executive be filled with the words "one person." He supposed the reasons to be so obvious & conclusive in favor of one that no member would oppose the motion.
M^r Randolph opposed it with great earnestness, declaring that he should not do justice to the Country which sent him if he were silently to suffer the establishm^t of a Unity in the Executive department. He felt an opposition to it which he believed he should continue to feel as long as he lived. He urged 1. that the permanent temper of the people was adverse to the very semblance of Monarchy. 2. that a unity was unnecessary a plurality being equally competent to all the objects of the department. 3. that the necessary confidence would never be reposed in a single Magistrate. 4. that the appointments would generally be in favor of some inhabitant near the center of the Community, and consequently the remote parts would not be on an equal footing. He was in favor of three members of the Executive to be drawn from different portions of the country.
M^r Butler contended strongly for a single magistrate as most likely to answer the purpose of the remote parts. If one man should be appointed he would be responsible to the whole, and would be impartial to its interests. If three or more should be taken from as many districts, there would be a constant struggle for local advantages. In Military matters this would be particularly mischievous. He said his opinion on this point had been formed under the opportunity he had had of seeing the manner in which a plurality of military heads distracted Holland when threatened with invasion by the imperial troops. One man was for directing the force to the defence of this part, another to that part of the Country, just as he happened to be swayed by prejudice or interest.
The motion was then postp^d, the Committee rose & the House Adj^d.
MONDAY JUNE 4. IN COMMITTEE OF THE WHOLE
The Question was resumed on motion of M^r Pinkney, 2^{ded} by M^r Wilson, "shall the blank for the number of the Executive be filled with a single person?"
M^r Wilson was in favor of the motion. It had been opposed by the gentleman from Virg^a (Mr. Randolph) but the arguments used had not convinced him. He observed that the objections of M^r R. were levelled not so much ag^st the measure itself, as ag^{st} its unpopularity. If he could suppose that it would occasion a rejection of the plan of which it should form a part, though the part were an important one, yet he would give it up rather than lose the whole. On examination he could see no evidence of the alledged antipathy of the people. On the contrary he was persuaded that it does not exist. All know that a single magistrate is not a King. One fact has great weight with him. All the 13 States tho agreeing in scarce any other instance, agree in placing a single magistrate at the head of the Govern^t. The idea of three heads has taken place in none. The degree of power is indeed different; but there are no co-ordinate heads. In addition to his former reasons for preferring a Unity, he would mention another. The _tranquillity_ not less than the vigor of the Gov^t he thought would be favored by it. Among three equal members, he foresaw nothing but uncontrouled, continued, & violent animosities; which would not only interrupt the public administration; but diffuse their poison thro' the other branches of Gov^t, thro' the States, and at length thro' the people at large. If the members were to be unequal in power the principle of opposition to the Unity was given up. If equal, the making them an odd number would not be a remedy. In Courts of Justice there are two sides only to a question. In the Legislative & Executive departm^{ts} questions have commonly many sides. Each member therefore might espouse a separate one & no two agree.[62]
[62] According to Pierce, King followed Wilson:
"Mr. King was of opinion that the Judicial ought not to join in the negative of a Law, because the Judges will have the expounding of those Laws when they come before them; and they will no doubt stop the operation of such as shall appear repugnant to the Constitution."--Pierce's Notes, _Am. Hist. Rev._, iii., 322.
M^r Sherman. This matter is of great importance and ought to be well considered before it is determined. M^r Wilson he said had observed that in each State a single magistrate was placed at the head of the Gov^t. It was so he admitted, and properly so, and he wished the same policy to prevail in the federal Gov^t. But then it should be also remarked that in all the States there was a Council of advice, without which the first magistrate could not act. A council he thought necessary to make the establishment acceptable to the people. Even in G. B. the King has a Council; and though he appoints it himself, its advice has its weight with him, and attracts the Confidence of the people.
M^r Williamson asks M^r Wilson whether he means to annex a Council.
M^r Wilson means to have no Council, which oftener serves to cover, than prevent malpractices.
M^r Gerry was at a loss to discover the policy of three members for the Executive. It w^d be extremely inconvenient in many instances, particularly in military matters, whether relating to the militia, an army, or a navy. It would be a general with three heads.
On the question for a single Executive it was agreed to Mass^{ts} ay. Con^t ay. N. Y. no. Pen^a ay. Del. no. Mary^d no. Virg^a ay. (M^r R. & M^r Blair no--Doc^r McC^g M^r M. & Gen. W. ay. Col. Mason being no, but not in the house, M^r Wythe ay. but gone home). N. C. ay. S. C. ay. Georg^a ay.
First Clause of Proposition 8^{th} relating _to a Council of Revision_ taken into consideration.
M^r Gerry doubts whether the Judiciary ought to form a part of it, as they will have a sufficient check ag^{st} encroachments on their own department by their exposition of the laws, which involved a power of deciding on their Constitutionality. In some States the Judges had actually set aside laws as being ag^{st} the Constitution. This was done too with general approbation. It was quite foreign from the nature of y^e office to make them judges of the policy of public measures. He moves to postpone the clause in order to propose "that the National Executive shall have a right to negative any Legislative act which shall not be afterwards passed by ---- parts of each branch of the national Legislature."
M^r King seconds the motion, observing that the Judges ought to be able to expound the law as it should come before them, free from the bias of having participated in its formation.
M^r Wilson thinks neither the original proposition nor the amendment goes far enough. If the Legislative Exetv & Judiciary ought to be distinct & independent, The Executive ought to have an absolute negative. Without such a self-defence the Legislature can at any moment sink it into non-existence. He was for varying the proposition in such a manner as to give the Executive & Judiciary jointly an absolute negative.
On the question to postpone in order to take M^r Gerry's proposition into consideration it was agreed to, Mass^s ay. Con^t no. N. Y. ay. P^a ay. Del. no. Mary^d no. Virg^a no. N. C ay. S. C. ay. G^a ay.
Mr. Gerry's proposition being now before Committee, M^r Wilson & M^r Hamilton move that the last part of it (viz. "w^{ch} s^l not be afterw^{ds} passed "unless by ---- parts of each branch of the National legislature") be struck out, so as to give the Executive an absolute negative on the laws. There was no danger they thought of such a power being too much exercised. It was mentioned by Col: Hamilton that the King of G. B. had not exerted his negative since the Revolution.
M^r Gerry sees no necessity for so great a controul over the legislature as the best men in the Community would be comprised in the two branches of it.
Doc^r Franklin, said he was sorry to differ from his colleague for whom he had a very great respect, on any occasion, but he could not help it on this. He had had some experience of this check in the Executive on the Legislature, under the proprietary Government of Pen^a. The negative of the Governor was constantly made use of to extort money. No good law whatever could be passed without a private bargain with him. An increase of his salary, or some donation, was always made a condition; till at last it became the regular practice, to have orders in his favor on the Treasury, presented along with the bills to be signed, so that he might actually receive the former before he should sign the latter. When the Indians were scalping the western people, and notice of it arrived, the concurrence of the Governor in the means of self-defence could not be got, till it was agreed that his Estate should be exempted from taxation: so that the people were to fight for the security of his property, whilst he was to bear no share of the burden. This was a mischevous sort of check. If the Executive was to have a Council, such a power would be less objectionable. It was true, the King of G. B. had not, as was said, exerted his negative since the Revolution; but that matter was easily explained. The bribes and emoluments now given to the members of parliament rendered it unnecessary, every thing being done according to the will of the Ministers. He was afraid, if a negative should be given as proposed, that more power and money would be demanded, till at last eno' would be gotten to influence & bribe the Legislature into a compleat subjection to the will of the Executive.
M^r Sherman was ag^{st} enabling any one man to stop the will of the whole. No one man could be found so far above all the rest in wisdom. He thought we ought to avail ourselves of his wisdom in revising the laws, but not permit him to overrule the decided and cool opinions of the Legislature.
M^r Madison supposed that if a proper proportion of each branch should be required to overrule the objections of the Executive, it would answer the same purpose as an absolute negative. It would rarely if ever happen that the Executive constituted as ours is proposed to be, would have firmness eno' to resist the legislature, unless backed by a certain part of the body itself. The King of G. B. with all his splendid attributes would not be able to withstand y^e unanimous and eager wishes of both houses of Parliament. To give such a prerogative would certainly be obnoxious to the temper of this Country; its present temper at least.
M^r Wilson believed as others did that this power would seldom be used. The Legislature would know that such a power existed, and would refrain from such laws, as it would be sure to defeat. Its silent operation would therefore preserve harmony and prevent mischief. The case of Pen^a formerly was very different from its present case. The Executive was not then as now to be appointed by the people. It will not in this case as in the one cited be supported by the head of a Great Empire, actuated by a different & sometimes opposite interest. The salary too is now proposed to be fixed by the Constitution, or if D^r F.'s idea should be adopted all salary whatever interdicted. The requiring a large proportion of each House to overrule the Executive check might do in peaceable times; but there might be tempestuous moments in which animosities may run high between the Executive and Legislative branches, and in which the former ought to be able to defend itself.
M^r Butler had been in favor of a single Executive Magistrate; but could he have entertained an idea that a compleat negative on the laws was to be given him he certainly should have acted very differently. It had been observed that in all countries the Executive power is in a constant course of increase. This was certainly the case in G. B. Gentlemen seemed to think that we had nothing to apprehend from an abuse of the Executive power. But why might not a Cataline or a Cromwell arise in this Country as well as in others.
M^r Bedford was opposed to every check on the Legislature, even the Council of Revision first proposed. He thought it would be sufficient to mark out in the Constitution the boundaries to the Legislative Authority, which would give all the requisite security to the rights of the other departments. The Representatives of the people were the best Judges of what was for their interest, and ought to be under no external controul whatever. The two branches would produce a sufficient controul within the Legislature itself.
Col. Mason observed that a vote had already passed he found [he was out at the time] for vesting the executive powers in a single person. Among these powers was that of appointing to offices in certain cases. The probable abuses of a negative had been well explained by D^r F. as proved by experience, the best of all tests. Will not the same door be opened here. The Executive may refuse its assent to necessary measures till new appointments shall be referred to him; and having by degrees engrossed these into all his own hands, the American Executive, like the British, will by bribery & influence, save himself the trouble & odium of exerting his negative afterwards. We are M^r Chairman going very far in this business. We are not indeed constituting a British Government, but a more dangerous monarchy, an elective one. We are introducing a new principle into our system, and not necessary as in the British Gov^t where the Executive has greater rights to defend. Do gentlemen mean to pave the way to hereditary Monarchy? Do they flatter themselves that the people will ever consent to such an innovation? If they do I venture to tell them, they are mistaken. The people never will consent. And do gentlemen consider the danger of delay, and the still greater danger of a rejection, not for a moment but forever, of the plan which shall be proposed to them. Notwithstanding the oppression & injustice experienced among us from democracy; the genius of the people is in favor of it, and the genius of the people must be consulted. He could not but consider the federal system as in effect dissolved by the appointment of this Convention to devise a better one. And do gentlemen look forward to the dangerous interval between extinction of an old, and the establishment of a new Governm^t and to the scenes of confusion which may ensue. He hoped that nothing like a Monarchy would ever be attempted in this Country. A hatred to its oppressions had carried the people through the late Revolution. Will it not be eno' to enable the Executive to suspend offensive laws, till they shall be coolly revised, and the objections to them overruled by a greater majority than was required in the first instance. He never could agree to give up all the rights of the people to a single magistrate: If more than one had been fixed on, greater powers might have been entrusted to the Executive. He hoped this attempt to give such powers would have its weight hereafter as an argument for increasing the number of the Executive.
Doc^r Franklin. A Gentleman from S. C., (M^r Butler) a day or two ago called our attention to the case of the U. Netherlands. He wished the gentleman had been a little fuller, and had gone back to the original of that Gov^t. The people being under great obligations to the Prince of Orange whose wisdom and bravery had saved them, chose him for the Stadtholder. He did very well. Inconveniences however were felt from his powers; which growing more & more oppressive, they were at length set aside. Still however there was a party for the P. of Orange, which descended to his son who excited insurrections, spilt a great deal of blood, murdered the de Witts, and got the powers revested in the Stadtholder. Afterwards another Prince had power to excite insurrections & make the Stadtholdership hereditary. And the present Stadth^{der} is ready to wade thro' a bloody civil war to the establishment of a monarchy. Col. Mason had mentioned the circumstance of appointing officers. He knew how that point would be managed. No new appointment would be suffered as heretofore in Pens^a unless it be referred to the Executive; so that all profitable offices will be at his disposal. The first man put at the helm will be a good one. No body knows what sort may come afterwards. The Executive will be always increasing here, as elsewhere, till it ends in a Monarchy.
On the question for striking out so as to give Executive an absolute negative,--Mass^{ts} no. Con^t no. N. Y. no. P^a no. Del. no. M^d no. V^a no. N. C. no. S. C. no. Georg^a no.
M^r Butler moved that the Resol^n be altered so as to read--"Resolved that the National Executive have a power to suspend any Legislative act for the term of ----."
Doct^r Franklin seconds the motion.
M^r Gerry observed that a power of suspending might do all the mischief dreaded from the negative of useful laws; without answering the salutary purpose of checking unjust or unwise ones.
On question "for giving this suspending power" all the States, to wit Mass^{ts} Con^t N. Y. P^a Del. Mary^d Virg^a N. C. S. C. Georgia, were _No_.
On a question for enabling _two thirds_ of each branch of the Legislature to overrule the revisionary check, it passed in the affirmative sub silentio; and was inserted in the blank of M^r Gerry's motion.
On the question on M^r Gerry's motion which gave the Executive alone without the Judiciary the revisionary controul on the laws unless overruled by 2/3 of each branch; Mass^{ts} ay. Con^t no. N. Y. ay. P^a ay. Del. ay. Mary^d no. V^a ay. N. C. ay. S. C. ay. Geo. ay.
It was moved by M^r Wilson 2^{ded} by M^r Madison--that the following amendment be made to the last resolution--after the words "National Ex." to add "& a convenient number of the National Judiciary."[63]
[63] Before the motion, according to King's notes:
"_Madison_--The judiciary ought to be introduced in the business of Legislation--they will protect their department, and united with the Executive make its negatives more strong. There is weight in the objections to this measure--but a check on the Legislature is necessary, Experience proves it to be so, and teaches us that what has been thought a calumny on a republican Govt. is nevertheless true--In all Countries are diversity of Interests, the Rich & the Poor, the Dr. & Cr., the followers of different Demagogues, the Diversity of religious Sects--the Effects of these Divisions in Ancient Govts. are well known, and the like causes will now produce like effects. We must therefore introduce in our system Provisions against the measures of an interested majority--a check is not only necessary to protect the Executive power, but the minority in the Legislature. The independence of the Executive, having the Eyes of all upon him will make him an impartial judge--add the Judiciary, and you greatly increase his respectability."
After the motion: "Dickinson opposed--You shd. separate the Departments--you have given the Executive a share in Legislation; and it is asked why not give a share to the judicial power. Because the Judges are to interpret the Laws, and therefore shd. have no share in making them--not so with the Executive whose causing the Laws to be Executed is a ministerial office only. Besides we have experienced in the Br. Constitution which confers the Power of a negative on the Executive."--King's _Life and Correspondence of Rufus King_, i., 592.
An Objection of order being taken by M^r Hamilton to the introduction of the last amendment at this time, notice was given by M^r W. & M^r M., that the same w^d be moved to-morrow,--whereupon Wednesday (the day after) was assigned to reconsider the amendment of M^r Gerry.
It was then moved & 2^{ded} to proceed to the consideration of the 9^{th} resolution submitted by M^r Randolph--when on motion to agree to the first clause namely "Resolved, that a National Judiciary be established," It passed in the affirmative nem. con.
It was then moved & 2^{ded} to add these words to the first clause of the ninth resolution namely--"to consist of one supreme tribunal, and of one or more inferior tribunals," which passed in the affirmative.
The Comm^e then rose and the House
Adjourned.
TUESDAY JUNE 5. IN COMMITTEE OF THE WHOLE
Governor Livingston from New Jersey, took his seat.
The words, "one or more" were struck out before "inferior tribunals" as an amendment to the last clause of Resol^n 9^{th}. The Clause--"that the National Judiciary be chosen by the National Legislature," being under consideration.
M^r Wilson opposed the appointm^t of Judges by the National Legisl: Experience shewed the impropriety of such appointm^{ts} by numerous bodies. Intrigue, partiality, and concealment were the necessary consequences. A principal reason for unity in the Executive was that officers might be appointed by a single, responsible person.
M^r Rutlidge was by no means disposed to grant so great a power to any single person. The people will think we are leaning too much towards Monarchy. He was against establishing any national tribunal except a single supreme one. The State tribunals are most proper to decide in all cases in the first instance.
Doc^r Franklin observed that two modes of chusing the Judges had been mentioned, to wit, by the Legislature and by the Executive. He wished such other modes to be suggested as might occur to other gentlemen; it being a point of great moment. He would mention one which he had understood was practised in Scotland. He then in a brief and entertaining manner related a Scotch mode, in which the nomination proceeded from the Lawyers, who always selected the ablest of the profession in order to get rid of him, and share his practice among themselves. It was here he said the interest of the electors to make the best choice, which should always be made the case if possible.
Mr. Madison disliked the election of the Judges by the Legislature or any numerous body. Besides the danger of intrigue and partiality, many of the members were not judges of the requisite qualifications. The Legislative talents which were very different from those of a Judge, commonly recommended men to the favor of Legislative Assemblies. It was known too that the accidental circumstances of presence and absence, of being a member or not a member, had a very undue influence on the appointment. On the other hand He was not satisfied with referring the appointment to the Executive, He rather inclined to give it to the Senatorial branch, as numerous eno' to be confided in--as not so numerous as to be governed by the motives of the other branch; and as being sufficiently stable and independent to follow their deliberate judgments. He hinted this only and moved that the _appointment by the Legislature_ might be struck out, & a blank left to be hereafter filled on maturer reflection. M^r Wilson second it. On the question for striking out, Mass^{ts} ay. Con^t no. N. Y. ay. N. J. ay. Pen^a ay. Del. ay. M^d ay. V^a ay. N. C. ay. S. C. no. Geo. ay.
Mr. Wilson gave notice that he should at a future day move for a reconsideration of that clause which respects "inferior tribunals."
M^r Pinkney gave notice that when the clause respecting the appointment of the Judiciary should again come before the Committee he should move to restore the "appointment by the national Legislature."
The following clauses of Resol: 9. were agreed to viz "to hold their offices during good behaviour, and to receive punctually at stated times, a fixed compensation for their services, in which no increase or diminution shall be made so as to affect the persons actually in office at the time of such increase or diminution."
The remaining clause of Resolution 9. was postponed.
Resolution 10 was agreed to,--viz--that provision ought to be made for the admission of States lawfully arising within the limits of the U. States, whether from a voluntary junction of Government & territory, or otherwise with the consent of a number of voices in the National Legislature less than the whole.
The 11. Propos: "_for guaranteeing to States Republican Gov^t & territory_" &c. being read M^r Patterson[64] wished the point of representation could be decided before this clause should be considered, and moved to postpone it, which was not opposed, and agreed to,--Connecticut & S. Carolina only voting ag^{st} it.
[64] "M^r Patterson is one of those kind of Men whose powers break in upon you, and create wonder and astonishment. He is a Man of great modesty, with looks that bespeak talents of no great extent,--but he is a Classic, a Lawyer, and an Orator;--and of a disposition so favorable to his advancement that every one seemed ready to exalt him with their praises. He is very happy in the choice of time and manner of engaging in a debate, and never speaks but when he understands his subject well. This Gentleman is about 43 Y. of age, of a very low stature."--Pierce's Notes, _Amer. Hist. Rev._, iii., 328.
Propos. 12 "_for continuing Cong^s till a given day and for fulfilling their engagements_," produced no debate.
On the question, Mass. ay. Con^t no. N. Y. ay. N. J.[65] ay. Pa. ay. Del. no. M^d ay. V^a ay. N. C. ay. S. C. ay. G. ay.
[65] Note in Madison's writing: New Jersey omitted in printed Journal.
Propos: 13. "that _provision ought to be made for hereafter amending the system now to be established, without requiring the assent of the Nat^l Legislature_", being taken up,
M^r Pinkney doubted the propriety or necessity of it.
M^r Gerry favored it. The novelty & difficulty of the experiment requires periodical revision. The prospect of such a revision would also give intermediate stability to the Gov^t. Nothing had yet happened in the States where this provision existed to prove its impropriety.--The proposition was postponed for further consideration: the votes being, Mas: Con. N. Y. P^a Del. Ma. N. C. ay. Virg^a S. C. Geo. no.
Propos. 14. "_requiring oath from the State officers to support National Gov^t_" was postponed after a short uninteresting conversation: the votes.
Con. N. Jersey M^d Virg. S. C. Geo. ay. N. Y. P^a Del. N. C. no. Massachusetts divided.
Propos. 15. for "_recommending Conventions under appointment of the people to ratify the new Constitution_" &c. being taken up,
M^r Sherman thought such a popular ratification unnecessary: the articles of Confederation providing for changes and alterations with the assent of Cong^s and ratification of State Legislatures.
M^r Madison thought this provision essential. The articles of Confed^n themselves were defective in this respect, resting in many of the States on the Legislative sanction only. Hence in conflicts between acts of the States, and of Cong^s especially where the former are of posterior date, and the decision is to be made by State tribunals, an uncertainty must necessarily prevail, or rather perhaps a certain decision in favor of the State authority. He suggested also that as far as the articles of Union were to be considered as a Treaty only of a particular sort, among the Governments of Independent States, the doctrine might be set up that a breach of any one article, by any of the parties, absolved the other parties from the whole obligation. For these reasons as well as others he thought it indispensable that the new Constitution should be ratified in the most unexceptionable form, and by the supreme authority of the people themselves.
M^r Gerry observed that in the Eastern States the Confed^n had been sanctioned by the people themselves. He seemed afraid of referring the new system to them. The people in that quarter have at this time the wildest ideas of Government in the world. They were for abolishing the Senate in Mass^{ts} and giving all the other powers of Gov^t to the other branch of the Legislature.
M^r King supposed that the last article of y^e Confed^n Rendered the legislature competent to the ratification. The people of the Southern States where the federal articles had been ratified by the Legislatures only, had since _impliedly_ given their sanction to it. He thought notwithstanding that there might be policy in varying the mode. A Convention being a single house, the adoption may more easily be carried thro' it, than thro' the Legislatures where there are several branches. The Legislatures also being to lose power, will be most likely to raise objections. The people having already parted with the necessary powers it is immaterial to them, by which Government they are possessed, provided they be well employed.
M^r Wilson took this occasion to lead the Committee by a train of observations to the idea of not suffering a disposition in the plurality of States to confederate anew on better principles, to be defeated by the inconsiderate or selfish opposition of a few States. He hoped the provision for ratifying would be put on such a footing as to admit of such a partial union, with a door open for the accession of the rest.[66]
[66] (This hint was probably meant in terrorem to the smaller States of N. Jersey & Delaware. Nothing was said in reply to it.)--Madison's Note.
M^r Pinkney hoped that in case the experiment should not unanimously take place, nine States might be authorized to unite under the same Governm^t.
The propos. 15. was postponed nem. con^t.
M^r Pinkney & M^r Rutlidge moved that to-morrow be assigned to reconsider that clause of Propos: 4: which respects the election of the first branch of the National Legislature--which passed in affirmative,--Con.: N. Y., P^a Del. M^d, V^a, ay.--6 Mas.: N. J.: N. C.: S. C.: Geo.: no. 5.
Mr. Rutlidge hav^g obtained a rule for reconsideration of the clause for establishing _inferior_ tribunals under the national authority, now moved that that part of the clause in the propos. 9. should be expunged: arguing that the State tribunals might and ought to be left in all cases to decide in the first instance the right of appeal to the supreme national tribunal being sufficient to secure the national rights & uniformity of Judgm^{ts}: that it was making an unnecessary encroachment on the jurisdiction of the States and creating unnecessary obstacles to their adoption of the new system. Mr. Sherman 2^{ded} the motion.
M^r Madison observed that unless inferior tribunals were dispersed throughout the Republic with _final_ jurisdiction in _many_ cases, appeals would be multiplied to a most oppressive degree; that besides, an appeal would not in many cases be a remedy. What was to be done after improper Verdicts in State tribunals obtained under the biassed directions of a dependent Judge, or the local prejudices of an undirected jury? To remand the cause for a new trial would answer no purpose. To order a new trial at the Supreme bar would oblige the parties to bring up their witnesses, tho' ever so distant from the seat of the Court. An effective Judiciary establishment commensurate to the legislative authority, was essential. A Government without a proper Executive & Judiciary would be the mere trunk of a body, without arms or legs to act or move.
M^r Wilson opposed the motion on like grounds. He said the admiralty jurisdiction ought to be given wholly to the national Government, as it related to cases not within the jurisdiction of particular states, & to a scene in which controversies with foreigners would be most likely to happen.
M^r Sherman was in favor of the motion. He dwelt chiefly on the supposed expensiveness of having a new set of Courts, when the existing State Courts would answer the same purpose.
M^r Dickinson contended strongly that if there was to be a National Legislature, there ought to be a national Judiciary, and that the former ought to have authority to institute the latter.
On the question for M^r Rutlidge's motion to strike out "inferior tribunals"
Mass^{ts} divided. Con^t ay. N. Y. div^d. N. J. ay. P^a no. Del. no. M^d no. V^a no. N. C. ay. S. C. ay. Geo. ay.
M^r Wilson & M^r Madison then moved, in pursuance of the idea expressed above by Mr. Dickinson, to add to the Resol: 9. the words following "that the National Legislature be empowered to institute inferior tribunals." They observed that there was a distinction between establishing such tribunals absolutely, and giving a discretion to the Legislature to establish or not establish them. They repeated the necessity of some such provision.
M^r Butler. The people will not bear such innovations. The States will revolt at such encroachments. Supposing such an establishment to be useful, we must not venture on it. We must follow the example of Solon who gave the Athenians not the best Gov^t he could devise, but the best they w^d receive.
M^r King remarked as to the comparative expence, that the establishment of inferior tribunals w^d cost infinitely less than the appeals that would be prevented by them.
On this question as moved by M^r W. & M^r M.
Mass. ay. C^t no. N. Y. div^d. N. J.[67] ay. P^a ay. Del. ay. M^d ay. V^a ay. N. C. ay. S. C. no. Geo. ay.
[67] In printed Journals N. Jersey, no.--Madison's Note.
The Committee then rose & the House adjourned to 11 OC tom^w.
WEDNESDAY JUNE 6^{TH} IN COMMITTEE OF THE WHOLE.
M^r Pinkney according to previous notice & rule obtained, moved "that the first branch of the national Legislature be elected by the State Legislatures, and not by the people;" contending that the people were less fit Judges in such a case, and that the Legislatures would be less likely to promote the adoption of the new Government, if they were to be excluded from all share in it.
M^r Rutlidge 2^{ded} the motion.
M^r Gerry.[68] Much depends on the mode of election. In England the people will probably lose their liberty from the smallness of the proportion having a right of suffrage. Our danger arises from the opposite extreme: hence in Mass^{ts} the worst men get into the Legislature. Several members of that Body had lately been convicted of infamous crimes. Men of indigence, ignorance & baseness, spare no pains, however dirty to carry their point ag^{st} men who are superior to the artifices practised. He was not disposed to run into extremes. He was as much principled as ever ag^{st} aristocracy and monarchy. It was necessary on the one hand that the people should appoint one branch of the Gov^t in order to inspire them with the necessary confidence. But he wished the election on the other to be so modified as to secure more effectually a just preference of merit. His idea was that the people should nominate certain persons in certain districts, out of whom the State Legislatures sh^d make the appointment.
[68] "Mr. Gerry.--If the national legislature are appointed by the state legislatures, demagogues and corrupt members will creep in."--Yates's _Secret Debates in Forming the Constitution_, 105.
M^r Wilson. He wished for vigor in the Gov^t, but he wished that vigorous authority to flow immediately from the legitimate source of all authority. The Gov^t ought to possess not only 1^{st} the _force_, but 2^{dly} the _mind or sense_ of the people at large. The Legislature ought to be the most exact transcript of the whole Society. Representation is made necessary only because it is impossible for the people to act collectively. The opposition was to be expected he said from the _Governments_, not from the Citizens of the States. The latter had parted as was observed (by M^r King) with all the necessary powers; and it was immaterial to them, by whom they were exercised, if well exercised. The State officers were to be the losers of power. The people he supposed would be rather more attached to the national Gov^t than to the State Gov^{ts} as being more important in itself, and more flattering to their pride. There is no danger of improper elections if made by _large_ districts. Bad elections proceed from the smallness of the districts which give an opportunity to bad men to intrigue themselves into office.
M^r Sherman. If it were in view to abolish the State Gov^{ts} the elections ought to be by the people. If the State Gov^{ts} are to be continued, it is necessary in order to preserve harmony between the National & State Gov^{ts} that the elections to the former sh^d be made by the latter. The right of participating in the National Gov^t would be sufficiently secured to the people by their election of the State Legislatures. The objects of the Union, he thought were few, 1. defence ag^{st} foreign danger, 2. ag^{st} internal disputes & a resort to force, 3. Treaties with foreign nations 4. regulating foreign commerce, & drawing revenue from it. These & perhaps a few lesser objects alone rendered a Confederation of the States necessary. All other matters civil & criminal would be much better in the hands of the States. The people are more happy in small than in large States. States may indeed be too small as Rhode Island, & thereby be too subject to faction. Some others were perhaps too large, the powers of Gov^t not being able to pervade them. He was for giving the General Gov^t power to legislate and execute within a defined province.
Col. Mason. Under the existing Confederacy, Cong^s represent the _States_ and not the _people_ of the States: their acts operate on the _States_, not on the individuals. The case will be changed in the new plan of Gov^t. The people will be represented; they ought therefore to choose the Representatives. The requisites in actual representation are that the Rep^s should sympathize with their constituents; sh^d think as they think, & feel as they feel; and that for these purposes sh^d even be residents among them. Much he s^d had been alledged ag^{st} democratic elections. He admitted that much might be said; but it was to be considered that no Gov^t was free from imperfections & evils; and that improper elections in many instances were inseparable from Republican Gov^{ts}. But compare these with the advantage of this Form in favor of the rights of the people, in favor of human nature. He was persuaded there was a better chance for proper elections by the people, if divided into large districts, than by the State Legislatures. Paper money had been issued by the latter when the former were against it. Was it to be supposed that the State Legislatures then w^d not send to the Nat^l legislature patrons of such projects, if the choice depended on them.
M^r Madison considered an election of one branch at least of the Legislature by the people immediately, as a clear principle of free Gov^t and that this mode under proper regulations had the additional advantage of securing better representatives, as well as of avoiding too great an agency of the State Governments in the General one. He differed from the member from Connecticut (Mr. Sherman) in thinking the objects mentioned to be all the principal ones that required a National Gov^t. Those were certainly important and necessary objects; but he combined with them the necessity of providing more effectually for the security of private rights, and the steady dispensation of Justice. Interferences with these were evils which had more perhaps than anything else, produced this convention. Was it to be supposed that republican liberty could long exist under the abuses of it practised in some of the States. The gentleman (M^r Sherman) had admitted that in a very small State, faction & oppression w^d prevail. It was to be inferred then that wherever these prevailed the State was too small. Had they not prevailed in the largest as well as the smallest tho' less than in the smallest; and were we not thence admonished to enlarge the sphere as far as the nature of the Gov^t would Admit. This was the only defence ag^{st} the inconveniences of democracy consistent with the democratic form of Gov^t. All civilized Societies would be divided into different Sects, Factions, & interests, as they happened to consist of rich & poor, debtors & creditors, the landed, the manufacturing, the commercial interests, the inhabitants of this district or that district, the followers of this political leader or that political leader--the disciples of this religious Sect or that religious Sect. In all cases where a majority are united by a common interest or passion, the rights of the minority are in danger. What motives are to restrain them? A prudent regard to the maxim that honesty is the best policy is found by experience to be as little regarded by bodies of men as by individuals. Respect for character is always diminished in proportion to the number among whom the blame or praise is to be divided. Conscience, the only remaining tie is known to be inadequate in individuals: In large numbers, little is to be expected from it. Besides, Religion itself may become a motive to persecution & oppression. These observations are verified by the Histories of every country antient & modern. In Greece & Rome the rich & poor, the Creditors & debtors, as well as the patricians & plebeians alternately oppressed each other with equal unmercifulness. What a source of oppression was the relation between the parent cities of Rome, Athens & Carthage, & their respective provinces; the former possessing the power, & the latter being sufficiently distinguished to be separate objects of it? Why was America so justly apprehensive of Parliamentary injustice? Because G. Britain had a separate interest real or supposed, & if her authority had been admitted, could have pursued that interest at our expence. We have seen the mere distinction of colour made in the most enlightened period of time, a ground of the most oppressive dominion ever exercised by man over man. What has been the source of those unjust laws complained of among ourselves? Has it not been the real or supposed interest of the major number? Debtors have defrauded their creditors. The landed interest has borne hard on the mercantile interest. The Holders of one species of property have thrown a disproportion of taxes on the holders of another species. The lesson we are to draw from the whole is that where a majority are united by a common sentiment, and have an opportunity, the rights of the minor party become insecure. In a Republican Gov^t the majority if united have always an opportunity. The only remedy is to enlarge the sphere, & thereby divide the community into so great a number of interests & parties, that in the 1^{st} place a majority will not be likely at the same moment to have a common interest separate from that of the whole or of the minority; and in the 2^d place that in case they sh^d have such an interest, they may not be apt to unite in the pursuit of it. It was incumbent on us then to try this remedy, and with that view to frame a republican system on such a scale & in such a form as will controul all the evils w^{ch} have been experienced.
M^r Dickinson considered it essential that one branch of the Legislature sh^d be drawn immediately from the people; and as expedient that the other sh^d be chosen by the Legislatures of the States. This combination of the State Gov^{ts} with the national Gov^t was as politic as it was unavoidable. In the formation of the Senate we ought to carry it through such a refining process as will assimilate it as nearly as may be to the House of Lords in England. He repeated his warm eulogiums on the British Constitution. He was for a strong National Gov^t but for leaving the States a considerable agency in the System. The objection ag^{st} making the former dependent on the latter might be obviated by giving to the Senate an authority permanent & irrevocable for three, five or seven years. Being thus independent they will check & decide with becoming freedom.
M^r Read. Too much attachment is betrayed to the State Govern^{ts}. We must look beyond their continuance. A national Gov^t must soon of necessity swallow all of them up. They will soon be reduced to the mere office of electing the National Senate. He was ag^{st} patching up the old federal System: he hoped the idea w^d be dismissed. It would be like putting new cloth on an old garment. The confederation was founded on temporary principles. It cannot last: it can not be amended. If we do not establish a good Gov^t on new principles, we must either go to ruin, or have the work to do over again. The people at large are wrongly suspected of being averse to a Gen^l Gov^t. The aversion lies among interested men who possess their confidence.
M^r Pierce[69] was for an election by the people as to the 1^{st} branch & by the States as to the 2^d branch; by which means the Citizens of the States w^d be represented both _individually_ & _collectively_.
[69] "My own character I shall not attempt to draw, but leave those who may choose to speculate on it, to consider it in any light that their fancy or imagination may depict. I am conscious of having discharged my duty as a Soldier through the course of the late revolution with honor and propriety; and my services in Congress and the Convention were bestowed with the best intention towards the interest of Georgia, and towards the general welfare of the Confederacy. I possess ambition, and it was that, and the flattering opinion which some of my Friends had of me, that gave me a seat in the wisest Council in the World, and furnished me with an opportunity of giving these short Sketches of the Characters who composed it."--Pierce's Notes, _Amer. Hist. Rev._, iii., 334.
General Pinkney wished to have a good National Gov^t & at the same time to leave a considerable share of power in the States. An election of either branch by the people scattered as they are in many States, particularly in S. Carolina was totally impracticable. He differed from gentlemen who thought that a choice by the people w^d be a better guard ag^{st} bad measures, than by the Legislatures. A majority of the people in S. Carolina were notoriously for paper-money as a legal tender; the Legislature had refused to make it a legal tender. The reason was that the latter had some sense of character and were restrained by that consideration. The State Legislatures also he said would be more jealous, & more ready to thwart the National Gov^t, if excluded from a participation in it. The Idea of abolishing these Legislatures w^d never go down.
M^r Wilson would not have spoken again, but for what had fallen from Mr. Read; namely, that the idea of preserving the State Gov^{ts} ought to be abandoned. He saw no incompatibility between the national & State Gov^{ts} provided the latter were restrained to certain local purposes; nor any probability of their being devoured by the former. In all confederated Systems antient & modern the reverse had happened; the Generality being destroyed gradually by the usurpations of the parts composing it.
On the question for electing the 1^{st} branch by the State Legislatures as moved by M^r Pinkney: it was negatived:
Mass. no. C^t ay. N. Y. no. N. J. ay. P^a no. Del. no. M^d no. V^a no. N. C. no. S. C. ay. Geo. no.
M^r Wilson moved to reconsider the vote excluding the Judiciary from a share in the revision of the laws, and to add after "National Executive" the words "with a convenient number of the national Judiciary;" remarking the expediency of reinforcing the Executive with the influence of that Department.
M^r Madison 2^{ded} the motion. He observed that the great difficulty in rendering the Executive competent to its own defence arose from the nature of Republican Gov^t which could not give to an individual citizen that settled pre-eminence in the eyes of the rest, that weight of property, that personal interest ag^{st} betraying the national interest, which appertain to an hereditary magistrate. In a Republic personal merit alone could be the ground of political exaltation, but it would rarely happen that this merit would be so pre-eminent as to produce universal acquiescence. The Executive Magistrate would be envied & assailed by disappointed competitors: His firmness therefore w^d need support. He would not possess those great emoluments from his station, nor that permanent stake in the public interest which w^d place him out of the reach of foreign corruption. He would stand in need therefore of being controuled as well as supported. An association of the Judges in his revisionary function w^d both double the advantage and diminish the danger. It w^d also enable the Judiciary Department the better to defend itself ag^{st} Legislative encroachments. Two objections had been made 1^{st} that the Judges ought not to be subject to the bias which a participation in the making of laws might give in the exposition of them. 2^{dly} that the Judiciary Departm^t ought to be separate & distinct from the other great Departments. The 1^{st} objection had some weight; but it was much diminished by reflecting that a small proportion of the laws coming in question before a Judge w^d be such wherein he had been consulted; that a small part of this proportion w^d be so ambiguous as to leave room for his prepossessions; and that but a few cases w^d probably arise in the life of a Judge under such ambiguous passages. How much good on the other hand w^d proceed from the perspicuity, the conciseness, and the systematic character w^{ch} the Code of laws w^d receive from the Judiciary talents. As to the 2^d objection, it either had no weight, or it applied with equal weight to the Executive & to the Judiciary revision of the laws. The maxim on which the objection was founded required a separation of the Executive as well as the Judiciary from the Legislature & from each other. There w^d in truth however be no improper mixture of these distinct powers in the present case. In England, whence the maxim itself had been drawn, the Executive had an absolute negative on the laws; and the Supreme tribunal of Justice (the House of Lords) formed one of the other branches of the Legislature. In short whether the object of the revisionary power was to restrain the Legislature from encroaching on the other co-ordinate Departments, or on the rights of the people at large; or from passing laws unwise in their principle, or incorrect in their form, the utility of annexing the wisdom and weight of the Judiciary to the Executive seemed incontestable.
M^r Gerry thought the Executive, whilst standing alone w^d be more impartial than when he c^d be covered by the sanction & seduced by the sophistry of the Judges.
M^r King. If the Unity of the Executive was preferred for the sake of responsibility, the policy of it is as applicable to the revisionary as to the executive power.
M^r Pinkney had been at first in favor of joining the heads of the principal departm^{ts} the Secretary at War, of foreign affairs &c.--in the council of revision. He had however relinquished the idea from a consideration that these could be called on by the Executive Magistrate whenever he pleased to consult them. He was opposed to the introduction of the Judges into the business.
Col. Mason was for giving all possible weight to the revisionary institution. The Executive power ought to be well secured ag^{st} Legislative usurpations on it. The purse & the sword ought never to get into the same hands whether Legislative or Executive.
M^r Dickinson. Secrecy, vigor & despatch are not the principal properties req^d in the Executive. Important as these are, that of responsibility is more so, which can only be preserved; by leaving it singly to discharge its functions. He thought too a junction of the Judiciary to it, involved an improper mixture of powers.
M^r Wilson remarked, that the responsibility required belonged to his Executive duties. The revisionary duty was an extraneous one, calculated for collateral purposes.
M^r Williamson, was for substituting a clause requiring 2/3 for every effective act of the Legislature, in place of the revisionary provision.
On the question for joining the Judges to the Executive in the revisionary business,
Mass. no. Con^t ay. N. Y. ay. N. J. no. P^a no. Del. no. M^d no. V^a ay. N. C. no. S. C. no. Geo. no.
M^r Pinkney gave notice that tomorrow he should move for the reconsideration of that clause in the sixth Resolution adopted by the Comm^e which vests a negative in the National Legislature on the laws of the several States.
The Com^e rose & the House adj^d to 11 OC.
THURSDAY JUNE 7^{TH} 1787--IN COMMITTEE OF THE WHOLE
M^r Pinkney according to notice moved to reconsider the clause respecting the negative on State laws, which was agreed to, and tomorrow for fixed the purpose.
The Clause providing for y^e appointment of the 2^d branch of the national Legislature, having lain blank since the last vote on the mode of electing it, to wit, by the 1^{st} branch, M^r Dickinson now moved "that the members of the 2^d branch ought to be chosen by the individual Legislatures."
M^r Sherman seconded the motion; observing that the particular States would thus become interested in supporting the National Govenm^t and that a due harmony between the two Governments would be maintained. He admitted that the two ought to have separate and distinct jurisdictions, but that they ought to have a mutual interest in supporting each other.
M^r Pinkney. If the small States should be allowed one Senator only, the number will be too great, there will be 80 at least.
M^r Dickinson had two reasons for his motion. 1, because the sense of the States would be better collected through their Governments; than immediately from the people at large; 2. because he wished the Senate to consist of the most distinguished characters, distinguished for their rank in life and their weight of property, and bearing as strong a likeness to the British House of Lords as possible; and he thought such characters more likely to be selected by the State Legislatures, than in any other mode. The greatness of the number was no objection with him. He hoped there would be 80 and twice 80. of them. If their number should be small, the popular branch could not be balanced by them. The legislature of a numerous people ought to be a numerous body.
M^r Williamson, preferred a small number of Senators, but wished that each State should have at least one. He suggested 25 as a convenient number. The different modes of representation in the different branches, will serve as a mutual check.
M^r Butler was anxious to know the ratio of representation before he gave any opinion.
M^r Wilson. If we are to establish a national Government, that Government ought to flow from the people at large. If one branch of it should be chosen by the Legislatures, and the other by the people, the two branches will rest on different foundations, and dissensions will naturally arise between them. He wished the Senate to be elected by the people as well as the other branch, the people might be divided into proper districts for the purpose & moved to postpone the motion of M^r Dickinson, in order to take up one of that import.
M^r Morris 2^{ded} him.
M^r Read proposed "that the Senate should be appointed by the Executive Magistrate out of a proper number of persons to be nominated by the individual legislatures." He said he thought it his duty, to speak his mind frankly. Gentlemen he hoped would not be alarmed at the idea. Nothing short of this approach towards a proper model of Government would answer the purpose, and he thought it best to come directly to the point at once.--His proposition was not seconded nor supported.
M^r Madison, if the motion (of Mr. Dickinson) should be agreed to, we must either depart from the doctrine of proportional representation; or admit into the Senate a very large number of members. The first is inadmissible, being evidently unjust. The second is inexpedient. The use of the Senate is to consist in its proceeding with more coolness, with more system, & with more wisdom, than the popular branch. Enlarge their number and you communicate to them the vices which they are meant to correct. He differed from M^r D. who thought that the additional number would give additional weight to the body. On the contrary it appeared to him that their weight would be in an inverse ratio to their number. The example of the Roman Tribunes, was applicable. They lost their influence and power, in proportion as their number was augmented. The reason seemed to be obvious: They were appointed to take care of the popular interests & pretensions at Rome, because the people by reason of their numbers could not act in concert; were liable to fall into factions among themselves, and to become a prey to their aristocratic adversaries. The more the representatives of the people therefore were multiplied, the more they partook of the infirmities of their constituents, the more liable they became to be divided among themselves either from their own indiscretions or the artifices of the opposite faction, and of course the less capable of fulfilling their trust. When the weight of a set of men depends merely on their personal characters; the greater the number the greater the weight. When it depends on the degree of political authority lodged in them the smaller the number the greater the weight. These considerations might perhaps be combined in the intended Senate; but the latter was the material one.
M^r Gerry. 4 modes of appointing the Senate have been mentioned. 1. by the 1^{st} branch of the National Legislature. This would create a dependance contrary to the end proposed. 2. by the National Executive. This is a stride towards monarchy that few will think of. 3. by the people. The people have two great interests, the landed interest, and the commercial including the stockholders. To draw both branches from the people will leave no security to the latter interest; the people being Chiefly composed of the landed interest, and erroneously supposing, that the other interests are adverse to it. 4. by the Individual Legislatures. The elections being carried thro' this refinement, will be most likely to provide some check in favor of the Commercial interest ag^{st} the landed; without which oppression will take place, and no free Gov^t can last long where that is the case. He was therefore in favor of this last.
M^r Dickenson.[70] The preservation of the States in a certain degree of agency is indispensable. It will produce that collision between the different authorities which should be wished for in order to check each other. To attempt to abolish the States altogether, would degrade the Councils of our Country, would be impracticable, would be ruinous. He compared the proposed National System to the Solar System, in which the States were the planets, and ought to be left to move freely in their proper orbits. The Gentleman from P^a (M^r Wilson) wished he said to extinguish these planets. If the State Governments were excluded from all agency in the national one, and all power drawn from the people at large, the consequence would be that the national Gov^t would move in the same direction as the State Gov^{ts} now do, and would run into all the same mischiefs. The reform would only unite the 13 small streams into one great current pursuing the same course without any opposition whatever. He adhered to the opinion that the Senate ought to be composed of a large number, and that their influence from family weight & other causes would be increased thereby. He did not admit that the Tribunes lost their weight in proportion as their n^o was augmented and gave a historical sketch of this institution. If the reasoning of (M^r Madison) was good it would prove that the number of the Senate ought to be reduced below ten, the highest n^o of the Tribunitial corps.
[70] It will throw light on this discussion to remark that an election by the State Legislatures involved a surrender of the principle insisted on by the large States & dreaded by the small ones, namely that of a proportional representation in the Senate. Such a rule w^d make the body too numerous, as the smallest State must elect one member at least.--Madison's Note.
M^r Wilson. The subject it must be owned is surrounded with doubts and difficulties. But we must surmount them. The British Governm^t cannot be our model. We have no materials for a similar one. Our manners, our laws, the abolition of entails and of primogeniture, the whole genius of the people, are opposed to it. He did not see the danger of the States being devoured by the Nation^l Gov^t. On the contrary, he wished to keep them from devouring the national Gov^t. He was not however for extinguishing these planets as was supposed by Mr. D.--neither did he on the other hand, believe that they would warm or enlighten the Sun. Within their proper orbits they must still be suffered to act for subordinate purposes, for which their existence is made essential by the great extent of our Country. He could not comprehend in what manner the landed interest w^d be rendered less predominant in the Senate, by an election through the medium of the Legislatures than by the people themselves. If the Legislatures, as was now complained, sacrificed the commercial to the landed interest, what reason was there to expect such a choice from them as would defeat their own views. He was for an election by the people in large districts which w^d be most likely to obtain men of intelligence & uprightness; subdividing the districts only for the accommodation of voters.
M^r Madison could as little comprehend in what manner family weight, as desired by M^r D. would be more certainly conveyed into the Senate through elections by the State Legislatures, than in some other modes. The true question was in what mode the best choice w^d be made? If an election by the people, or thro' any other channel than the State Legislatures promised as uncorrupt & impartial a preference of merit, there could surely be no necessity for an appointment by those Legislatures. Nor was it apparent that a more useful check would be derived thro' that channel than from the people thro' some other. The great evils complained of were that the State Legislatures run into schemes of paper money &c. whenever solicited by the people, & sometimes without even the sanction of the people. Their influence then, instead of checking a like propensity in the National Legislature, may be expected to promote it. Nothing can be more contradictory than to say that the Nat^l Legislature with^t a proper check, will follow the example of the State Legislatures, & in the same breath, that the State Legislatures are the only proper check.
M^r Sherman opposed elections by the people in districts, as not likely to produce such fit men as elections by the State Legislatures.
M^r Gerry insisted that the commercial & monied interest w^d be more secure in the hands of the State Legislatures, than of the people at large. The former have more sense of character, and will be restrained by that from injustice. The people are for paper money when the Legislatures are ag^{st} it. In Mass^{ts} the County Conventions had declared a wish for a _depreciating_ paper that w^d sink itself. Besides, in some States there are two Branches in the Legislature, one of which is somewhat aristocratic. There w^d therefore be so far a better chance of refinement in the choice. There seemed, he thought to be three powerful objections ag^{st} elections by districts, 1. it is impracticable; the people cannot be brought to one place for the purpose; and whether brought to the same place or not, numberless frauds w^d be unavoidable. 2. small States forming part of the same district with a large one, or large part of a large one, w^d have no chance of gaining an appointment for its citizens of merit. 3 a new source of discord w^d be opened between different parts of the same district.
M^r Pinkney thought the 2^d branch ought to be permanent & independent; & that the members of it w^d be rendered more so by receiving their appointment from the State Legislatures. This mode w^d avoid the rivalships & discontents incident to the election by districts. He was for dividing the States into three classes according to their respective sizes, & for allowing to the 1^{st} class three members, to the 2^d two, & to the 3^d one.
On the question for postponing M^r Dickinson's motion referring the appointment of the Senate to the State Legislatures, in order to consider M^r Wilson's for referring it to the people.
Mass. no. Con^t no. N. Y. no. N. J. no. P^a ay. Del. no. M^d no. V^a no. N. C. no. S. C. no. Geo. no.
Col. Mason. Whatever power may be necessary for the Nat^l Gov^t a certain portion must necessarily be left in the States. It is impossible for one power to pervade the extreme parts of the U. S. so as to carry equal justice to them. The State Legislatures also ought to have some means of defending themselves ag^{st} encroachments of the Nat^l Gov^t. In every other department we have studiously endeavoured to provide for its self-defence. Shall we leave the States alone unprovided with the means for this purpose? And what better means can we provide than the giving them some share in, or rather to make them a constituent part of, the Nat^l Establishment. There is danger on both sides no doubt; but we have only seen the evils arising on the side of the State Gov^{ts}. Those on the other side remain to be displayed. The example of Cong^s does not apply. Cong^s had no power to carry their acts into execution, as the Nat^l Gov^t will have.
On M^r Dickinson's motion for an appointment of the Senate by the State Legislatures,
Mass. ay. C^t ay. N. Y. ay. P^a ay. Del. ay. M^d ay. V^a ay. N. C. ay. S. C. ay. Geo. ay.
M^r Gerry gave notice that he w^d tomorrow move for a reconsideration of the mode of appointing the Nat^l Executive in order to substitute an appointm^t by the State Executives.
The Committee rose & The House adj^d.
FRIDAY JUNE 8^{TH} IN COMMITTEE OF THE WHOLE.
On a reconsideration of the clause giving the Nat^l Legislature a negative on such laws of the States as might be contrary to the articles of Union, or Treaties with foreign nations,
M^r Pinkney moved "that the National Legislature sh^d have authority to negative all laws which they sh^d judge to be improper." He urged that such a universality of the power was indispensably necessary to render it effectual; that the States must be kept in due subordination to the nation; that if the States were left to act of themselves in any case, it w^d be impossible to defend the national prerogatives, however extensive they might be on paper; that the acts of Congress had been defeated by this means; nor had foreign treaties escaped repeated violations: that this universal negative was in fact the corner stone of an efficient national Gov^t; that under the British Gov^t the negative of the Crown had been found beneficial, and the _States_ are more one nation now, than the _Colonies_ were then.
M^r Madison seconded the motion. He could not but regard an indefinite power to negative legislative acts of the States as absolutely necessary to a perfect System. Experience had evinced a constant tendency in the States to encroach on the federal authority; to violate national Treaties; to infringe the rights & interests of each other; to oppress the weaker party within their respective jurisdictions. A negative was the mildest expedient that could be devised for preventing these mischiefs. The existence of such a check would prevent attempts to commit them. Should no such precaution be engrafted, the only remedy w^d lie in an appeal to coercion. Was such a remedy eligible? was it practicable? Could the national resources, if exerted to the utmost enforce a national decree ag^{st} Mass^{ts} abetted perhaps by several of her neighbours? It w^d not be possible. A small proportion of the Community, in a compact situation acting on the defensive, and at one of its extremities, might at any time bid defiance to the National authority. Any Gov^t for the U. States formed on the supposed practicability of using force ag^{st} the unconstitutional proceedings of the States, w^d prove as visionary & fallacious as the Gov^t of Cong^s. The negative w^d render the use of force unnecessary. The States c^d of themselves pass no operative act, any more than one branch of a Legislature where there are two branches, can proceed without the other. But in order to give the negative this efficacy, it must extend to all cases. A discrimination w^d only be a fresh source of contention between the two authorities. In a word, to recur to the illustrations borrowed from the planetary system. This prerogative of the General Gov^t, is the great pervading principle that must controul the centrifugal tendency of the States; which, without it, will continually fly out of their proper orbits and destroy the order & harmony of the political System.
M^r Williamson was ag^{st} giving a power that might restrain the States from regulating their internal police.
M^r Gerry c^d not see the extent of such a power, and was ag^{st} every power that was not necessary. He thought a remonstrance ag^{st} unreasonable acts of the States w^d reclaim them. If it sh^d not force might be resorted to. He had no objection to authorize a negative to paper money and similar measures. When the confederation was depending before Congress, Massachusetts was then for inserting the power of emitting paper money am^g the exclusive powers of Congress. He observed that the proposed negative w^d extend to the regulations of the Militia, a matter on which the existence of a State might depend. The Nat^l Legislature with such a power may enslave the States. Such an idea as this will never be acceded to. It has never been suggested or conceived among the people. No speculative projector, and there are eno' of that character among us, in politics as well as in other things, has in any pamphlet or newspaper thrown out the idea. The States too have different interests and are ignorant of each other's interests. The Negative therefore will be abused. New States too having separate views from the old States will never come into the Union. They may even be under some foreign influence; are they in such case to participate in the negative on the will of the other States?
M^r Sherman thought the cases in which the negative ought to be exercised, might be defined. He wished the point might not be decided till a trial at least sh^d be made for that purpose.
M^r Wilson would not say what modifications of the proposed power might be practicable or expedient. But however novel it might appear the principle of it when viewed with a close & steady eye, is right. There is no instance in which the laws say that the individual sh^d be bound in one case, & at liberty to judge whether he will obey or disobey in another. The cases are parallel. Abuses of the power over the individual person may happen as well as over the individual States. Federal liberty is to the States, what civil liberty, is to private individuals, and States are not more unwilling to purchase it, by the necessary concession of their political sovereignty, than the savage is to purchase Civil liberty by the surrender of the personal sovereignty, which he enjoys in a State of nature. A definition of the cases in which the Negative should be exercised, is impracticable. A discretion must be left on one side or the other? will it not be most safely lodged on the side of the Nat^l Gov^t? Among the first sentiments expressed in the first Cong^s one was that Virg^a is no more, that Mass^{ts} is no [more], that P^a is no more &c. We are now one nation of brethren. We must bury all local interests & distinctions. This language continued for some time. The tables at length began to turn. No sooner were the State Gov^{ts} formed than their jealousy & ambition began to display themselves. Each endeavoured to cut a slice from the common loaf, to add to its own morsel, till at length the confederation became frittered down to the impotent condition in which it now stands. Review the progress of the articles of Confederation thro' Congress & compare the first & last draught of it. To correct its vices is the business of this convention. One of its vices is the want of an effectual controul in the whole over its parts. What danger is there that the whole will unnecessarily sacrifice a part? But reverse the case, and leave the whole at the mercy of each part, and will not the general interest be continually sacrificed to local interests?
M^r Dickenson deemed it impossible to draw a line between the cases proper & improper for the exercise of the negative. We must take our choice of two things. We must either subject the States to the danger of being injured by the power of the Nat^l Gov^t or the latter to the danger of being injured by that of the States. He thought the danger greater from the States. To leave the power doubtful, would be opening another spring of discord, and he was for shutting as many of them as possible.
M^r Bedford. In answer to his colleague's question, where w^d be the danger to the States from this power, would refer him to the smallness of his own State which may be injured at pleasure without redress. It was meant he found to strip the small States of their equal right of suffrage. In this case Delaware would have about 1/90 for its share in the General Councils, whilst P^a & V^a would possess 1/3 of the whole. Is there no difference of interests, no rivalship of commerce, of manufactures? Will not these large States crush the small ones whenever they stand in the way of their ambitious or interested views. This shews the impossibility of adopting such a system as that on the table, or any other founded on a change in the priñple of representation. And after all, if a State does not obey the law of the new System, must not force be resorted to as the only ultimate remedy, in this as in any other system. It seems as if P^a & V^a by the conduct of their deputies wished to provide a system in which they would have an enormous & monstrous influence. Besides, How can it be thought that the proposed negative can be exercised? Are the laws of the States to be suspended in the most urgent cases until they can be sent seven or eight hundred miles, and undergo the deliberation of a body who may be incapable of Judging of them? Is the National Legislature too to sit continually in order to revise the laws of the States?
M^r Madison observed that the difficulties which had been started were worthy of attention and ought to be answered before the question was put. The case of laws of urgent necessity must be provided for by some emanation of the power from the Nat^l Gov^t into each State so far as to give a temporary assent at least. This was the practice in the Royal Colonies before the Revolution and would not have been inconvenient if the supreme power of negativing had been faithful to the American interest, and had possessed the necessary information. He supposed that the negative might be very properly lodged in the senate alone, and that the more numerous & expensive branch therefore might not be obliged to sit constantly. He asked M^r B. what would be the consequence to the small States of a dissolution of the Union w^{ch} seemed likely to happen if no effectual substitute was made for the defective System existing, and he did not conceive any effectual system could be substituted on any other basis than that of a proportional suffrage? If the large States possessed the Avarice & ambition with which they were charged, would the small ones in their neighbourhood, be more secure when all controul of a Gen^l Gov^t was withdrawn.
M^r Butler was vehement ag^{st} the Negative in the proposed extent, as cutting off all hope of equal justice to the distant States. The people there would not he was sure give it a hearing.
On the question for extending the negative power to all cases as proposed by (M^r P. & M^r M.) Mass. ay. Con^t no. N. Y. no. N. J. no. P^a ay. Del. div^d. M^r Read & M^r Dickenson ay. M^r Bedford & M^r Basset no. Mary^d no. V^a ay. M^r R. M^r Mason no. M^r Blair, Doc^r M^c C^g M^r M. ay. Gen^l W. not consulted. N. C. no. S. C. no. Geo no.
On motion of M^r Gerry and M^r King tomorrow was assigned for reconsidering the mode of appointing the National Executive: the reconsideration being voted for by all the States except Connecticut & N. Carolina.
M^r Pinkney and M^r Rutlidge moved to add to the Resol^n 4. agreed to by the Com^e the following, viz. "that the States be divided into three classes, the 1^{st} class to have 3 members, the 2^d two, & the 3^d one member each, that an estimate be taken of the comparative importance of each State at fixed periods, so as to ascertain the number of members they may from time to time be entitled to." The Committee then rose and the House adjourned.
SATURDAY JUNE 9^{TH}[71] MR. LUTHER MARTIN FROM
Maryland Took His Seat. In Committee Of The Whole
MARYLAND TOOK HIS SEAT. IN COMMITTEE OF THE WHOLE.
[71] Edward Carrington wrote to Jefferson from New York, June 9, 1787:
"The debates and proceedings of the Convention are kept in profound secrecy--opinions of the probable result of their deliberations can only be formed from the prevailing impressions of men of reflection and understanding--these are reducible to two schemes--the first, a consolidation of the whole Empire into one republic, leaving in the States nothing more than subordinate courts for facilitating the administration of the Laws--the second an investiture of the foederal sovereignty with full and independent authority as to the Trade, Revenues, and forces of the union, and the rights of peace and war, together with a negative upon all the acts of the State legislatures.
The first idea, I apprehend, would be impracticable, and therefore do not suppose it can be adopted--general Laws through a Country embracing so many climates, productions, and manners as the United States, would operate many oppressions & a general legislature would be found incompetent to the formation of local ones, as a majority would in every instance, be ignorant of, and unaffected by the objects of legislation.... Something like the second will probably be formed--indeed I am certain that nothing less than what will give the foederal sovereignty a compleat controul over the state Governments, will be thought worthy of discussion--such a scheme constructed upon well adjusted principles would certainly give us stability and importance as a nation, and if the Executive powers can be sufficiently checked, must be eligible--unless the whole has a decided influence over the parts, the constant effort will be to resume the delegated powers, and there cannot be an inducement in the foederal sovereignty to refuse its assent to an innocent act of a State.... The Eastern opinions are for a total surrender of the state Sovereignties, and indeed some amongst them go to a monarchy at once--they have verged to anarchy, while to the southward we have only felt an inconvenience, and their proportionate disposition to an opposite extreme is a natural consequence."--_Jeff. MSS._
M^r Gerry, according to previous notice given by him, moved "that the national Executive should be elected by the Executives of the States whose proportion of votes should be the same with that allowed to the States in the election of the Senate." If the appointm^t should be made by the Nat^l Legislature, it would lessen that independence of the Executive which ought to prevail, would give birth to intrigue and corruption between the Executive & Legislature previous to the election, and to partiality in the Executive afterwards to the friends who promoted him. Some other mode therefore appeared to him necessary. He proposed that of appointing by the State Executives as most analogous to the principle observed in electing the other branches of the Nat^l Gov^t; the first branch being chosen by the _people_ of the States, & the 2^d by the Legislatures of the States, he did not see any objection ag^{st} letting the Executive be appointed by the Executives of the States. He supposed the Executives would be most likely to select the fittest men, and that it would be their interest to support the man of their own choice.
M^r Randolph urged strongly the inexpediency of M^r Gerry's mode of appointing the Nat^l Executive. The confidence of the people would not be secured by it to the Nat^l magistrate. The small States would lose all chance of an appointm^t from within themselves. Bad appointments would be made; the Executives of the States being little conversant with characters not within their own small spheres. The State Executives too notwithstanding their constitutional independence, being in fact dependent on the State Legislatures will generally be guided by the views of the latter, and prefer either favorites within the States, or such as it may be expected will be most partial to the interests of the State. A Nat^l Executive thus chosen will not be likely to defend with becoming vigilance & firmness the National rights ag^{st} State encroachments. Vacancies also must happen. How can these be filled? He could not suppose either that the Executives would feel the interest in supporting the Nat^l Executive which had been imagined. They will not cherish the great Oak which is to reduce them to paltry shrubs.
On the question for referring the appointment of the Nat^l Executive to the State Executives as prop^d by M^r Gerry Mass^{ts} no. Con^t no. N. Y. no. N. J. no. P^a no. Del. div^d. M^d no. V^a no. S. C. no. Geo. no.[72]
[72] "Carried against the motion, 10 noes, and Delaware divided."--Yates, _Secret Proceedings_, etc., 111. The Journal also includes North Carolina among the noes.--_Journal of the Federal Convention_, 110.
M^r Patterson moves that the Committee resume the clause relating to the rule of suffrage in the Nat^l Legislature.
M^r Brearly[73] seconds him. He was sorry he said that any question on this point was brought into view. It had been much agitated in Cong^s at the time of forming the Confederation, and was then rightly settled by allowing to each sovereign State an equal vote. Otherwise the smaller States must have been destroyed instead of being saved. The substitution of a ratio, he admitted carried fairness on the face of it; but on a deeper examination was unfair and unjust. Judging of the disparity of the States by the quota of Cong^s, Virg^a would have 16 votes, and Georgia but one. A like proportion to the others will make the whole number ninety. There will be 3 large states, and 10 small ones. The large States by which he meant Mass^{ts} Pen^a & Virg^a will carry every thing before them. It had been admitted, and was known to him from facts within N. Jersey that where large & small counties were united into a district for electing representatives for the district, the large counties always carried their point, and Consequently that the large States would do so. Virg^a with her sixteen votes will be a solid column indeed, a formidable phalanx. While Georgia with her Solitary vote, and the other little States will be obliged to throw themselves constantly into the scale of some large one, in order to have any weight at all. He had come to the convention with a view of being as useful as he could in giving energy and stability to the federal Government. When the proposition for destroying the equality of votes came forward, he was astonished, he was alarmed. Is it fair then it will be asked that Georgia should have an equal vote with Virg^a. He would not say it was. What remedy then? One only, that a map of the U. S. be spread out, that all the existing boundaries be erased, and that a new partition of the whole be made into 13 equal parts.
[73] "Mr. Brearly is a man of good, rather than of brilliant parts. He is a Judge of the Supreme Court of New Jersey, and is very much in the esteem of the people. As an Orator he has little to boast of, but as a Man he has every virtue to recommend him. Mr. Brearly is about 40 years of age."--Pierce's Notes, _Am. Hist. Rev._, iii., 327.
M^r Patterson considered the proposition for a proportional representation as striking at the existence of the lesser States. He w^d premise however to an investigation of this question some remarks on the nature structure and powers of the Convention. The Convention he said was formed in pursuance of an Act of Cong^s that this act was recited in several of the Commissions, particularly that of Mass^{ts} which he required to be read: that the amendment of the Confederacy was the object of all the laws and Commissions on the subject: that the articles of the Confederation were therefore the proper basis of all the proceedings of the Convention. We ought to keep within its limits, or we should be charged by our Constituents with usurpation, that the people of America were sharpsighted and not to be deceived. But the Commissions under which we acted were not only the measure of our power, they denoted also the sentiments of the States on the subject of our deliberation. The idea of a National Gov^t as contradistinguished from a federal one, never entered into the mind of any of them, and to the public mind we must accommodate ourselves. We have no power to go beyond the federal Scheme, and if we had the people are not ripe for any other. We must follow the people; the people will not follow us.--The _proposition_ could not be maintained whether considered in reference to us as a nation, or as a confederacy. A confederacy supposes sovereignty in the members composing it & sovereignty supposes equality. If we are to be considered as a nation, all State distinctions must be abolished, the whole must be thrown into hotchpot, and when an equal division is made, then there may be fairly an equality of representation. He held up Virg^a Mass^{ts} & P^a as the three large States, and the other ten as small ones; repeating the calculations of M^r Brearly, as to the disparity of votes which w^d take place, and affirming that the small States would never agree to it. He said there was no more reason that a great individual State contributing much, should have more votes than a small one contributing little, than that a rich individual citizen should have more votes than an indigent one. If the rateable property of A was to that of B as 40 to 1, ought A for that reason to have 40 times as many votes as B. Such a principle would never be admitted, and if it were admitted would put B entirely at the mercy of A. As A has more to be protected than B so he ought to contribute more for the common protection. The same may be said of a large State w^{ch} has more to be protected than a small one. Give the large States an influence in proportion to their magnitude, and what will be the consequence? Their ambition will be proportionally increased, and the small States will have every thing to fear. It was once proposed by Galloway & some others that America should be represented in the British Parl^t and then be bound by its laws. America could not have been entitled to more than 1/3 of the n^o of Representatives which would fall to the share of G. B. Would American rights & interests have been safe under an authority thus constituted? It has been said that if a Nat^l Gov^t is to be formed so as to operate on the people, and not on the States, the representatives ought to be drawn from the people. But why so? May not a Legislature filled by the State Legislatures operate on the people who chuse the State Legislatures? or may not a practicable coercion be found. He admitted that there was none such in the existing System.--He was attached strongly to the plan of the existing Confederacy, in which the people chuse their Legislative representatives; and the Legislatures their federal representatives. No other amendments were wanting than to mark the orbits of the States with due precision, and provide for the use of coercion, which was the great point. He alluded to the hint thrown out heretofore by M^r Wilson of the necessity to which the large States might be reduced of confederating among themselves, by a refusal of the others to concur. Let them unite if they please, but let them remember that they have no authority to compel the others to unite. N. Jersey will never confederate on the plan before the Committee. She would be swallowed up. He had rather submit to a monarch, to a despot, than to such a fate. He would not only oppose the plan here but on his return home do every thing in his power to defeat it there.
M^r Wilson, hoped if the Confederacy should be dissolved, that a _majority_, that a _minority_ of the States would unite for their safety. He entered elaborately into the defence of a proportional representation, stating for his first position that as all authority was derived from the people, equal numbers of people ought to have an equal n^o of representatives, and different numbers of people different numbers of representatives. This principle had been improperly violated in the Confederation, owing to the urgent circumstances of the time. As to the case of A. & B. stated by M^r Patterson, he observed that in districts as large as the States, the number of people was the best measure of their comparative wealth. Whether therefore wealth or numbers were to form the ratio it would be the same. M^r P. admitted persons, not property to be the measure of suffrage. Are not the Citizens of Pen^a equal to those of N. Jersey? does it require 150 of the former to balance 50 of the latter? Representatives of different districts ought clearly to hold the same proportion to each other, as their respective Constituents hold to each other. If the small States will not confederate on this plan, Pen^a & he presumed some other States, would not confederate on any other. We have been told that each State being sovereign, all are equal. So each man is naturally a sovereign over himself, and all men are therefore naturally equal. Can he retain this equality when he becomes a member of Civil Government. He can not. As little can a Sovereign State, when it becomes a member of a federal govern^t. If N. J. will not part with her sovereignty it is vain to talk of Gov^t. A new partition of the States is desirable, but evidently & totally impracticable.
M^r Williamson illustrated the cases by a comparison of the different States, to Counties of different sizes within the same State; observing that proportional representation was admitted to be just in the latter case, and could not therefore be fairly contested in the former.
The Question being about to be put M^r Patterson hoped that as so much depended on it, it might be thought best to postpone the decision till tomorrow, which was done, nem. con.
The Com^e rose & the House adjourned.
MONDAY, JUNE 11^{TH} M^R ABRAHAM BALDWIN FROM
Georgia Took His Seat. In Committee Of The Whole
GEORGIA TOOK HIS SEAT. IN COMMITTEE OF THE WHOLE.
The clause concerning the rule of suffrage in the Nat^l Legislature postponed on Saturday was resumed.
M^r Sherman proposed that the proportion of suffrage in the 1^{st} branch should be according to the respective numbers of free inhabitants; and that in the second branch or Senate, each State should have one vote and no more. He said as the States would remain possessed of certain individual rights, each State ought to be able to protect itself: otherwise a few large States will rule the rest. The House of Lords in England he observed had certain particular rights under the Constitution, and hence they have an equal vote with the House of Commons that they may be able to defend their rights.
M^r Rutlidge proposed that the proportion of suffrage in the 1^{st} branch should be according to the quotas of contribution. The justice of this rule he said could not be contested. M^r Butler urged the same idea: adding that money was power; and that the States ought to have weight in the Gov^t in proportion to their wealth.
M^r King & M^r Wilson,[74] in order to bring the question to a point moved "that the right of suffrage in the first branch of the national Legislature ought not to be according [to] the rule established in the articles of Confederation, but according to some equitable ratio of representation." The clause so far as it related to suffrage in the first branch was postponed in order to consider this motion.
[74] In the printed Journal Mr. Rutlidge is named as the seconder of the motion.--Madison's Note.
M^r Dickenson contended for the _actual_ contributions of the States as the rule of their representation & suffrage in the first branch. By thus connecting the interests of the States with their duty, the latter would be sure to be performed.
M^r King remarked that it was uncertain what mode might be used in levying a National revenue; but that it was probable, imposts would be one source of it. If the _actual_ contributions were to be the rule the non-importing States, as Con^t & N. Jersey, w^d be in a bad situation indeed. It might so happen that they w^d have no representation. This situation of particular States had been always one powerful argument in favor of the 5 Per C^t impost.
The question being ab^t to be put Doc^r Franklin s^d he had thrown his ideas of the matter on a paper w^{ch} Mr. Wilson read to the Committee in the words following--Mr. Chairman
It has given me great pleasure to observe that till this point, the proportion of representation, came before us, our debates were carried on with great coolness & temper. If any thing of a contrary kind, has on this occasion appeared. I hope it will not be repeated; for we are sent here to _consult_, not to _contend_, with each other; and declarations of a fixed opinion, and of determined resolution, never to change it, neither enlighten nor convince us. Positiveness and warmth on one side, naturally beget their like on the other; and tend to create and augment discord & division in a great concern, wherein harmony & Union are extremely necessary to give weight to our Councils, and render them effectual in promoting & securing the common good.
I must own that I was originally of opinion it would be better if every member of Congress, or our national Council, were to consider himself rather as a representative of the whole, than as an Agent for the interests of a particular State; in which case the proportion of members for each State would be of less consequence, & it would not be very material whether they voted by States or individually. But as I find this is not to be expected, I now think the number of Representatives should bear some proportion to the number of the Represented; and that the decisions sh^d be by the majority of members, not by the majority of the States. This is objected to from an apprehension that the greater States would then swallow up the smaller. I do not at present clearly see what advantage the greater States could propose to themselves by swallowing up the smaller, and therefore do not apprehend they would attempt it. I recollect that in the beginning of this Century, When the Union was proposed of the two Kingdoms, England & Scotland, the Scotch Patriots were full of fears, that unless they had an equal number of Representatives in Parliament, they should be ruined by the superiority of the English. They finally agreed however that the different proportions of importance in the Union, of the two Nations should be attended to, whereby they were to have only forty members in the House of Commons, and only sixteen in the House of Lords; A very great inferiority of numbers! And yet to this day I do not recollect that any thing has been done in the Parliament of Great Britain to the prejudice of Scotland; and whoever looks over the lists of Public officers, Civil & Military of that nation will find I believe that the North Britons enjoy at least their full proportion of emolument.
But, sir, in the present mode of voting by States, it is equally in the power of the lesser States to swallow up the greater; and this is mathematically demonstrable. Suppose for example, that 7 smaller States had each 3 members in the House, and the 6 larger to have one with another 6 members; and that upon a question, two members of each smaller State should be in the affirmative and one in the Negative, they would make
Affirmatives 14 Negatives 7
And that all the larger States should be unanimously in the Negative, they would make Negatives 36 --- In all 43
It is then apparent that the 14 carry the question against the 43, and the minority overpowers the majority, contrary to the common practice of Assemblies in all Countries and Ages.
The greater States Sir are naturally as unwilling to have their property left in the disposition of the smaller, as the smaller are to have theirs in the disposition of the greater. An honorable gentleman has, to avoid this difficulty, hinted a proposition of equalizing the States. It appears to me an equitable one, and I should, for my own part, not be against such a measure, if it might be found practicable. Formerly, indeed, when almost every province had a different Constitution, some with greater others with fewer privileges, it was of importance to the borderers when their boundaries were contested, whether by running the division lines, they were placed on one side or the other. At present when such differences are done away, it is less material. The Interest of a State is made up of the interests of its individual members. If they are not injured, the State is not injured. Small States are more easily well & happily governed than large ones. If therefore in such an equal division, it should be found necessary to diminish Pennsylvania, I should not be averse to the giving a part of it to N. Jersey, and another to Delaware. But as there would probably be considerable difficulties in adjusting such a division; and however equally made at first, it would be continually varying by the augmentation of inhabitants in some States, and their fixed proportion in others; and thence frequent occasion for new divisions, I beg leave to propose for the consideration of the Committee another mode, which appears to me to be as equitable, more easily carried into practice, and more permanent in its nature.
Let the weakest State say what proportion of money or force it is able and willing to furnish for the general purposes of the Union.
Let all the others oblige themselves to furnish each an equal proportion.
The whole of these joint supplies to be absolutely in the disposition of Congress.
The Congress in this case to be composed of an equal number of Delegates from each State.
And their decisions to be by the Majority of individual members voting.
If these joint and equal supplies should on particular occasions not be sufficient, Let Congress make requisitions on the richer and more powerful States for further aids, to be voluntarily afforded, leaving to each State the right of considering the necessity and utility of the aid desired, and of giving more or less as it should be found proper.
This mode is not new. It was formerly practised with success by the British Government with respect to Ireland and the Colonies. We sometimes gave even more than they expected, or thought just to accept; and in the last war carried on while we were united, they gave us back in 5 years a million Sterling. We should probably have continued such voluntary contributions, whenever the occasions appeared to require them for the common good of the Empire. It was not till they chose to force us, and to deprive us of the merit and pleasure of voluntary contributions that we refused & resisted. Those contributions however were to be disposed of at the pleasure of a Government in which we had no representative. I am therefore persuaded, that they will not be refused to one in which the Representation shall be equal.
My learned colleague (M^r Wilson) has already mentioned that the present method of voting by States, was submitted to originally by Congress, under a conviction of its impropriety, inequality, and injustice. This appears in the words of their Resolution. It is of Sep^r 6. 1774. The words are
"Resolved that in determining questions in this Cong^s each Colony or province shall have one vote: The Cong^s not being possessed of or at present able to procure materials for ascertaining the importance of each Colony."
On the question for agreeing to M^r King's and M^r Wilson's motion it passed in the affirmative.
Mass^{ts} ay. C^t ay. N. Y. no. N. J. no. P^a ay. Del. no. M^d div^d. V^a ay. N. C. ay. S. C. ay. Geo. ay.
It was then moved by M^r Rutlidge, 2^{ded} by M^r Butler to add to the words "equitable ratio of representation" at the end of the motion just agreed to, the words "according to the quotas of contribution." On motion of M^r Wilson seconded by M^r Pinkney, this was postponed; in order to add, after the words "equitable ratio of representation" the words following: "in proportion to the whole number of white & other free Citizens & inhabitants of every age sex & condition including those bound to servitude for a term of years and three fifths of all other persons not comprehended in the foregoing description, except Indians not paying taxes, in each State," this being the rule in the Act of Congress agreed to by eleven States, for apportioning quotas of revenue on the States, and requiring a Census only every 5, 7, or 10 years.
M^r Gerry thought property not the rule of representation. Why then sh^d the blacks, who were property in the South, be in the rule of representation more than the Cattle & horses of the North.[75]
[75] After Gerry spoke, according to Yates, "Mr. Madison was of opinion at present, to fix the standard of representation, and let the detail be the business of a sub-committee."--_Secret Proceedings_, p. 116.
On the question,--Mass: Con: N. Y. Pen: Mary^d Virg^a N. C. S. C. & Geo: were in the affirmative: N. J. & Del: in the negative.
M^r Sherman moved that a question be taken whether each State shall have one vote in the 2^d branch. Every thing he said depended on this. The smaller States would never agree to the plan on any other principle than an equality of suffrage in this branch. M^r Elsworth[76] seconded the motion.
[76] "M^r Elsworth is a Judge of the Supreme Court in Connecticut;--he is Gentleman of a clear, deep, and copius understanding; eloquent, and connected in public debate; and always attentive to his duty. He is very happy in a reply, and choice in selecting such parts of his adversary's arguments as he finds make the strongest impressions,--in order to take off the force of them, so as to admit the power of his own. M^r Elsworth is about 37 years of age, a Man much respected for his integrity, and venerated for his abilities."--Pierce's Notes, _Am. Hist. Rev._, iii., 326.
On the question for allowing each State one vote in the 2^d branch,
Mass^{ts} no. Con^t ay. N. Y. ay. N. J. ay. P^a no. Del. ay. M^d ay. V^a no. N. C. no. S. C. no. Geo. no.
M^r Wilson & M^r Hamilton moved that the right of suffrage in the 2^d branch ought to be according to the same rule as in the 1^{st} branch. On this question for making the ratio of representation the same in the 2^d as in the 1^{st} branch it passed in the affirmative;
Mass^{ts} ay. Con^t no. N. Y. no. N. J. no. P^a ay. Del. no. M^d no. V^a ay. N. C. ay. S. C. ay. Geo. ay.
Resol: 11, for guarantying Republican Gov^t & territory to each State, being considered--the words "or partition," were, on motion of M^r Madison added, after the words "voluntary junction;"
Mas. N. Y. P. V^a N. C. S. C. G. ay. Con: N. J. Del: M^d no.
M^r Read disliked the idea of guarantying territory. It abetted the idea of distinct States w^{ch} would be a perpetual source of discord. There can be no cure for this evil but in doing away States altogether and uniting them all into one great Society.
Alterations having been made in the Resolution, making it read, "that a Republican Constitution & its existing laws ought to be guaranteed to each State by the U. States," the whole was agreed to nem. con.[77]
[77] Yates attributes this amendment to Madison. "Mr. Madison moved an amendment, to add to or alter the resolution as follows: The republican constitutions and the existing laws of each state, to be guaranteed by the United States."--_Secret Proceedings_, etc., 116.
Resolution 13. for amending the national Constitution hereafter without consent of the Nat^l Legislature being considered, Several members did not see the necessity of the Resolution at all, nor the propriety of making the consent of the Nat^l Legisl. unnecessary.
Col. Mason urged the necessity of such a provision. The plan now to be formed will certainly be defective, as the Confederation has been found on trial to be. Amendments therefore will be necessary, and it will be better to provide for them, in an easy, regular and Constitutional way than to trust to chance and violence. It would be improper to require the consent of the Nat^l Legislature, because they may abuse their power, and refuse their consent on that very account. The opportunity for such an abuse, may be the fault of the Constitution calling for amendm^t.
M^r Randolph enforced these arguments.
The words, "without requiring the consent of the Nat^l Legislature" were postponed. The other provision in the clause passed nem. con.
Resolution 14. requiring oaths from the members of the State Gov^{ts} to observe the Nat^l Constitution & laws, being considered,[78]
[78] "Mr. Williamson. This resolve will be unnecessary, as the union will become the law of the land."--Yates, _Secret Proceedings_, etc., 117.
M^r Sherman opposed it as unnecessarily intruding into the State jurisdictions.
M^r Randolph considered it necessary to prevent that competition between the National Constitution & laws & those of the particular States, which had already been felt. The officers of the States are already under oath to the States. To preserve a due impartiality they ought to be equally bound to the Nat^l Gov^t. The Nat^l authority needs every support we can give it. The Executive & Judiciary of the States, notwithstanding their nominal independence on the State Legislatures are in fact, so dependent on them, that unless they be brought under some tie to the Nat^l System, they will always lean too much to the State systems, whenever a contest arises between the two.
M^r Gerry did not like the clause. He thought there was as much reason for requiring an oath of fidelity to the States from Nat^l officers, as vice versa.
M^r Luther Martin moved to strike out the words requiring such an oath from the State officers, viz "within the several States," observing that if the new oath should be contrary to that already taken by them it would be improper; if coincident the oaths already taken will be sufficient.
On the question for striking out as proposed by Mr. L. Martin
Mass^{ts} no. Con^t ay. N. Y. no. N. J. ay. P^a no. Del. ay. M^d ay. V^a no. N. C. no. S. C. no. Geo. no.
Question on whole Resolution as proposed by M^r Randolph;
Mass^{ts} ay. Con^t no. N. Y. no. N. J. no. P^a ay. Del. no. M^d no. V^a ay. N. C. ay. S. C. ay. Geo. ay.
Com^e rose & House Adj^d.
TUESDAY JUNE 12^{TH} IN COMMITTEE OF WHOLE
The Question taken on the Resolution 15, to wit, referring the new system to the people of the States for ratification it passed in the affirmative Mass^{ts} ay. Con^t no. N. Y. no. N. J. no. P^a[79] ay. Del. div^d. M^d div^d. V^a ay. N. C. ay. S. C. ay. Geo. ay.
[79] Pennsylvania omitted in the printed Journal. The vote is there entered as of June 11th.--Madison's Note.
M^r Sherman & M^r Elseworth moved to fill the blank left in the 4^{th} Resolution for the periods of electing the members of the first branch with the words, "every year;" Mr. Sherman observing that he did it in order to bring on some question.
M^r Rutlidge proposed "every two years."
M^r Jennifer[80] prop^d, "every three years," observing that the too great frequency of elections rendered the people indifferent to them, and made the best men unwilling to engage in so precarious a service.
[80] "M^r Jenifer is a Gentleman of fortune in Maryland;--he is always in good humour, and never fails to make his company pleased with him. He sits silent in the Senate, and seems to be conscious that he is no politician. From his long continuance in single life, no doubt but he has made the vow of celibacy. He speaks warmly of the Ladies notwithstanding. M^r Jenifer is about 55 years of Age, and once served as Aid de Camp to Major Gen^l Lee."--Pierce's Notes, _Am. Hist. Rev._, iii., 330.
M^r Madison seconded the motion for three years. Instability is one of the great vices of our republics, to be remedied. Three years will be necessary, in a Government so extensive, for members to form any knowledge of the various interests of the States to which they do not belong, and of which they can know but little from the situation and affairs of their own. One year will be almost consumed in preparing for and travelling to & from the seat of national business.
M^r Gerry. The people of New England will never give up the point of annual elections, they know of the transition made in England from triennial to septennial elections, and will consider such an innovation here as the prelude to a like usurpation. He considered annual elections as the only defence of the people ag^{st} tyranny. He was as much ag^{st} a triennial House as ag^{st} a hereditary Executive.
M^r Madison, observed that if the opinions of the people were to be our guide, it w^d be difficult to say what course we ought to take. No member of the Convention could say what the opinions of his Constituents were at this time; much less could he say what they would think if possessed of the information & lights possessed by the members here; & still less what would be their way of thinking 6 or 12 months hence. We ought to consider what was right & necessary in itself for the attainment of a proper Governm^t. A plan adjusted to this idea will recommend itself--The respectability of this convention will give weight to their recommendation of it. Experience will be constantly urging the adoption of it, and all the most enlightened & respectable citizens will be its advocates. Should we fall short of the necessary & proper point, this influential class of Citizens, will be turned against the plan, and little support in opposition to them can be gained to it from the unreflecting multitude.
M^r Gerry repeated his opinion that it was necessary to consider what the people would approve. This had been the policy of all Legislators. If the reasoning of Mr. Madison were just, and we supposed a limited Monarchy the best form in itself, we ought to recommend it, tho' the genius of the people was decidedly adverse to it, and having no hereditary distinctions among us, we were destitute of the essential materials for such an innovation.
On the question for the triennial election of the 1^{st} branch
Mass. no. (M^r King ay.) M^r Ghorum wavering. Con^t no. N. Y. ay. N. J. ay. P^a ay. Del. ay. M^d ay. V^a ay. N. C. no. S. C. no. Geo. ay.
The words requiring members of y^e 1^{st} branch to be of the age of ---- years were struck out Maryland alone no. The words "_liberal compensation for members_," being consid^d M^r Madison moves to insert the words, "_& fixt_." He observed that it would be improper to leave the members of the Nat^l legislature to be provided for by the State Legisl^s, because it would create an improper dependence; and to leave them to regulate their own wages, was an indecent thing, and might in time prove a dangerous one. He thought wheat or some other article of which the average price throughout a reasonable period preceding might be settled in some convenient mode, would form a proper standard.
Col. Mason seconded the motion; adding that it would be improper for other reasons to leave the wages to be regulated by the States. 1. the different States would make different provision for their representatives, and an inequality would be felt among them, whereas he thought they ought to be in all respects equal. 2. the parsimony of the States might reduce the provision so low that as had already happened in choosing delegates to Congress, the question would be not who were most fit to be chosen, but who were most willing to serve.
On the question for inserting the words, "and fixt"
Mass^{ts} no. Con^t no. N. Y. ay. N. J. ay. P^a ay. Del. ay. M^d ay. V^a ay. N. C. ay. S. C. no. Geo. ay.
Doc^r Franklyn said he approved of the amendment just made for rendering the salaries as fixed as possible; but disliked the word "_liberal_." He would prefer the word moderate if it was necessary to substitute any other. He remarked the tendency of abuses in every case, to grow of themselves when once begun, and related very pleasantly the progression in ecclesiastical benefices, from the first departure from the gratuitous provision for the Apostles, to the establishment of the papal system. The word "liberal" was struck out nem con.
On the motion of M^r Pierce, that the wages should be paid out of the National Treasury,
Mass^{ts} ay. C^t no. N. Y. no. N. J. ay. P^a ay. Del. ay. M^d ay. V^a ay. N. C. ay. S. C. no. G. ay.
Question on the clause relating to term of service & compensation of 1^{st} branch,
Mass^{ts} ay. C^t no. N. Y. no. N. J. ay. P^a ay. Del. ay. M^d ay. V^a ay. N. C. ay. S. C. no. Geo. ay.
On a question for striking out the "_ineligibility_ of members of the Nat^l Legis: to _State offices_,"
Mass^{ts} div^d. Con^t ay. N. Y. ay. N. J. no. P^a no. Del. no. M^d div^d. V^a no. N. C. ay. S. C. ay. Geo. no.
On the question for agreeing to the clause as amended,
Mass^{ts} ay. Con^t no. N. Y. ay. N. J. ay. P^a ay. Del. ay. M^d ay. V^a ay. N. C. ay. S. C. ay. Geo. ay.
On a question for making members of the Nat^l Legislature _ineligible_ to any office under the Nat^l Gov^t for the term of 3 years after ceasing to be members,
Mass^{ts} no. Con^t no. N. Y. no. N. J. no. P^a no. Del. no. M^d ay. V^a no. N. C. no. S. C. no. Geo. no.
On the question for such ineligibility for one year,
Mass^{ts} ay. C^t ay. N. Y. no. N. J. ay. P^a ay. Del. ay. M^d div^d. V^a ay. N. C. ay. S. C. ay. Geo. no.
On question moved by Mr. Pinckney, for striking out "incapable of re-election into 1^{st} branch of the Nat^l Legisl. for ---- years, and subject to recall" ag^d to nem. con.
On question for striking out from the Resol: 5 the words requiring members of the Senatorial branch to be of the age of ---- years at least
Mass^{ts} no. Con^t ay. N. Y. no. N. J. ay. P^a ay. Del. no. M^d no. V^a no. N. C. div^d. S. C. no. Geo. div^d.
On the question for filling the blank with 30 years as the qualification; it was agreed to,
Mass^{ts} ay. C^t no. N. Y. ay. N. J. no. P^a ay. Del. no. M^d ay. V^a ay. N. C. ay. S. C. ay. Geo. no.
M^r Spaight moved to fill the blank for the duration of the appointm^{ts} to the 2^d branch of the National Legislature with the words "7 years."
M^r Sherman, thought 7 years too long. He grounded his opposition he said on the principle that if they did their duty well, they would be reelected. And if they acted amiss, an earlier opportunity should be allowed for getting rid of them. He preferred 5 years which w^d be between the terms of the 1^{st} branch & of the executive.
M^r Pierce proposed 3 years. 7 years would raise an alarm. Great mischiefs had arisen in England from their septennial Act which was reprobated by most of their patriotic Statesmen.
M^r Randolph was for the term of 7 years. The democratic licentiousness of the State Legislatures proved the necessity of a firm Senate. The object of this 2^d branch is to controul the democratic branch of the Nat^l Legislature. If it be not a firm body, the other branch being more numerous, and coming immediately from the people, will overwhelm it. The Senate of Maryland constituted on like principles had been scarcely able to stem the popular torrent. No mischief can be apprehended, as the concurrence of the other branch, and in some measure, of the Executive, will in all cases be necessary. A firmness & independence may be the more necessary also in this branch, as it ought to guard the Constitution ag^{st} encroachments of the Executive who will be apt to form combinations with the demagogues of the popular branch.
M^r Madison, considered 7 years as a term by no means too long. What we wished was to give to the Gov^t that stability which was every where called for, and which the Enemies of the Republican form alledged to be inconsistent with its nature. He was not afraid of giving too much stability by the term of Seven years. His fear was that the popular branch would still be too great an overmatch for it. It was to be much lamented that we had so little direct experience to guide us. The Constitution of Maryland was the only one that bore any analogy to this part of the plan. In no instance had the Senate of Mary^d created just suspicions of danger from it. In some instances perhaps it may have erred by yielding to the H. of Delegates. In every instance of their opposition to the measures of the H. of D. they had had with them the suffrages of the most enlightened and impartial people of the other States as well as of their own. In the States where the Senates, were chosen in the same manner as the other branches, of the Legislature, and held their seats for 4 years, the institution was found to be no check whatever ag^{st} the instabilities of the other branches. He conceived it to be of great importance that a stable & firm Gov^t, organized in the republican form should be held out to the people. If this be not done, and the people be left to judge of this species of Gov^t by y^e operations of the defective systems under which they now live, it is much to be feared the time is not distant when, in universal disgust, they will renounce the blessing which they have purchased at so dear a rate, and be ready for any change that may be proposed to them.
On the question for "seven years" as the term for the 2^d branch
Mass^{ts} divided. (M^r King, M^r Ghorum ay, M^r Gerry, M^r Strong, no) Con^t no. N. Y. div^d N. J. ay. P^a ay. Del. ay. M^d ay. V^a ay. N. C. ay. S. C. ay. Geo. ay.
M^r Butler and M^r Rutlidge proposed that the members of the 2^d branch should be entitled to no salary or compensation for their services. On the question,[81]--
Mass^{ts} div^d. Con^t ay. N. Y. no. N. J. no. P. no. Del. ay. M^d no. V^a no. N. C. no. S. C. ay. Geo. no.
[81] (It is probable y^e votes here turned chiefly on the idea that if the salaries were not here provided for, the members would be paid by their respective States) This note for the bottom margin.--Madison's Note.
It was then moved & agreed that the clauses respecting the stipends & ineligibility of the 2^d branch be the same as, of the 1^{st} branch:--Con: disagreeing to the ineligibility.
It was moved & 2^{ded} to alter the Resol: 9. so as to read "that the jurisdiction of the supreme tribunal shall be to hear & determine in the dernier resort, all piracies, felonies, &c."
It was moved & 2^{ded} to strike out "all piracies & felonies on the high seas," which was agreed to.
It was moved & agreed to strike out "all captures from an enemy."
It was moved & agreed to strike out "other States" and insert "two distinct States of the Union."
It was moved & agreed to postpone the consideration of the Resolution 9, relating to the Judiciary:
The Com^e then rose & the House Adjourned.
WEDNESDAY JUNE 13.[82] IN COMMITTEE OF THE WHOLE
[82] Edward Carrington wrote to Madison from New York, June 13, 1787:
"The public mind is now on the point of a favourable turn to the objects of your meeting, and, being fairly met with the result, will, I am persuaded, eventually embrace it--being calculated for the permanent fitness, and not the momentary habits of the country, it may at first be viewed with hesitation, but derived and patronized as it will be, its influence must extend into an adoption as the present fabric gives way--the work once well done will be done forever, but patched up in accommodation to the whim of the day, it will soon require the hand of the cobbler again, and in every unfortunate experiment the materials are rendered the less fit for that monument of civil liberty which we wish to erect.--Constitute a federal Government, invigorate & check it well--give it then independent powers over the Trade the Revenues, and force of the Union, and all things that involve any relationship to foreign powers--give it also the revisal of all State acts--unless it possesses a compleat controul over the State Governments, the constant effort will be to resume the delegated powers,--nor do I see what inducement the federal sovereignty can have to negative an innocent act of a State--Constitute it in such shape that, its first principles being preserved, it will be a good republic--I wish to see that system have a fair experiment--but let the liability to encroachment be rather from the federal, than the State, governments--in the first case we shall insensibly glide into a monarchy: in the latter nothing but anarchy can be the consequence.
"Some Gentlemen think of a total surrender of the State Sovereignty--I see not the necessity of that measure for giving us national stability in consequence--the negative of the federal sovereignty will effectually prevent the existence of any licentious or inconsiderate act--and I believe that even under a new monarchy it would be found necessary thus to continue the local administration--general Laws would operate many particular [undecipherable] and a general legislature would be found incompetent to the formation of local ones--the interest of the United States may be well combined for the common good--but the affairs of so extensive a country are not to be thrown into one mass--an attempt to confederate upon terms materially opposed to the particular Interests would in all probability occasion a dismemberment, and in that event, within a long time yet to come, the prospects of commerce will be at an end as to any degree of national importance, let her fate be what it may as to freedom or vassalage."--_Mad. MSS._
Resol: 9 being resumed
The latter parts of the clause relating to the jurisdiction of the Nat^l tribunals, was struck out nem. con in order to leave full room for their organization.
M^r Randolph & M^r Madison, then moved the following resolution respecting a National Judiciary,viz "that the jurisdiction of the National Judiciary shall extend to cases, which respect the collection of the national revenue, impeachments of any national officers, and questions which involve the national peace and harmony" which was agreed to.
M^r Pinkney & M^r Sherman moved to insert after the words "one supreme tribunal" the words "the Judges of which to be appointed by the National Legislature."
M^r Madison, objected to an app^t by the whole Legislature. Many of them were incompetent Judges of the requisite qualifications. They were too much influenced by their partialities. The candidate who was present, who had displayed a talent for business in the legislative field, who had perhaps assisted ignorant members in business of their own, or of their Constituents, or used other winning means, would without any of the essential qualifications for an expositor of the laws prevail over a competitor not having these recommendations, but possessed of every necessary accomplishment. He proposed that the appointment should be made by the Senate, which as a less numerous & more select body, would be more competent judges, and which was sufficiently numerous to justify such a confidence in them.
M^r Sherman & M^r Pinkney withdrew their motion, and the app^t by the Senate was ag^d to nem. con.
M^r Gerry moved to restrain the Senatorial branch from originating money bills. The other branch was more immediately the representatives of the people, and it was a maxim that the people ought to hold the Purse-strings. If the Senate should be allowed to originate such bills, they w^d repeat the experiment, till chance should furnish a sett of representatives in the other branch who will fall into their snares.
M^r Butler saw no reason for such a discrimination. We were always following the British Constitution when the reason of it did not apply. There was no analogy between the H. of Lords and the body proposed to be established. If the Senate should be degraded by any such discriminations, the best men would be apt to decline serving in it in favor of the other branch. And it will lead the latter into the practice of tacking other clauses to money bills.
M^r Madison observed that the Comentators on the Brit: Const: had not yet agreed on the reason of the restriction on the H. of L. in money bills. Certain it was there could be no similar reason in the case before us. The Senate would be the representatives of the people as well as the 1^{st} branch. If they s^d have any dangerous influence over it, they would easily prevail on some member of the latter to originate the bill they wished to be passed. As the Senate would be generally a more capable sett of men, it w^d be wrong to disable them from any preparation of the business, especially of that which was most important, and in our republics, worse prepared than any other. The Gentleman in pursuance of his principle ought to carry the restraint to the _amendment_, as well as the originating of money bills, since, an addition of a given sum w^d be equivalent to a distinct proposition of it.
M^r King differed from M^r Gerry, and concurred in the objections to the proposition.
M^r Read favored the proposition, but would not extend the restraint to the case of amendments.
M^r Pinkney thinks the question premature. If the Senate sh^d be formed on the _same_ proportional representation as it stands at present, they s^d have equal power, otherwise if a different principle s^d be introduced.
M^r Sherman. As both branches must concur, there can be no danger whichever way the Senate be formed. We establish two branches in order to get more wisdom, which is particularly needed in the finance business--The Senate bear their share of the taxes, and are also the representatives of the people. What a man does by another, he does by himself is a maxim. In Con^t both branches can originate in all cases, and it has been found safe & convenient. Whatever might have been the reason of the rule as to The H. of Lords, it is clear that no good arises from it now even there.
Gen^l Pinkney. This distinction prevails in S. C. and has been a source of pernicious disputes between y^e 2 branches. The Constitution is now evaded, by informal schedules of amendments handed from y^e Senate to the other House.
M^r Williamson wishes for a question chiefly to prevent re-discussion. The restriction will have one advantage, it will oblige some member in the lower branch to move, & people can then mark him.
On the question for excepting money bills, as prop^d by M^r Gerry, Mass. no. Con^t no. N. Y. ay. N. J. no. Del. ay. M^d no. V^a ay. N. C. no. S. C. no. Geo. no.[83]
[83] According to the Journal (121) Pennsylvania was among the noes.
Committee rose & M^r Ghorum made report, which was postponed till tomorrow, to give an opportunity for other plans to be proposed. The report was in the words following:
Report of the Committee of Whole on M^r Randolph's propositions.
1. Res^d that it is the opinion of this Committee that a National Governm^t ought to be established, consisting of a supreme Legislative, Executive & Judiciary.
2. Resol^d that the National Legislature ought to consist of two branches.
3. Res^d that the members of the first branch of the National Legislature ought to be elected by the people of the several States for the term of three years, to receive fixed Stipends by which they may be compensated for the devotion of their time to public service, to be paid out of the National Treasury: to be ineligible to any office established by a particular State, or under the authority of the U. States, (except those peculiarly belonging to the functions of the first branch), during the term of service, and under the national Government for the Space of one year after its expiration.
4. Res^d that the members of the second branch of the Nat^l Legislature ought to be chosen by the individual Legislatures, to be of the age of 30 years at least, to hold their offices for a term sufficient to ensure their independency, namely, seven years, to receive fixed stipends by which they may be compensated for the devotion of their time to public service to be paid out of the National Treasury; to be ineligible to any office established by a particular State, or under the authority of the U. States, (except those peculiarly belonging to the functions of the second branch) during the term of service, and under the Nat^l Gov^t for the space of one year after its expiration.
5. Res^d that each branch ought to possess the right of originating Acts.
6. Res^d that the Nat^l Legislature ought to be empowered to enjoy the Legislative rights vested in Cong^s by the Confederation, and moreover to legislate in all cases to which the separate States are incompetent; or in which the harmony of the U. S. may be interrupted by the exercise of individual legislation; to negative all laws passed by the several States contravening in the opinion of the National Legislature the articles of Union, or any treaties subsisting under the authority of the Union.
7. Res^d that the rights of suffrage in the 1^{st} branch of the National Legislature, ought not to be according to the rule established in the articles of confederation but according to some equitable ratio of representation, namely, in proportion to the whole number of white & other free citizens & inhabitants, of every age sex and condition, including those bound to servitude for a term of years, & three fifths of all other persons, not comprehended in the foregoing description, except Indians not paying taxes in each State.
8. Resolved that the right of suffrage in the 2^d branch of the National Legislature ought to be according to the rule established for the first.
9. Resolved that a National Executive be instituted to consist of a single person, to be chosen by the Nat^l Legislature for the term of seven years, with power to carry into execution the national laws, to appoint to offices in cases not otherwise provided for--to be ineligible a second time, & to be removeable on impeachment and conviction of malpractices or neglect of duty--to receive a fixed stipend by which he may be compensated for the devotion of his time to public service to be paid out of the national Treasury.
10. Resol^d that the Nat^l Executive shall have a right to negative any Legislative Act, which shall not be afterwards passed unless by two thirds of each branch of the National Legislature.
11. Resol^d that a Nat^l Judiciary be established, to consist of one supreme tribunal, the Judges of which to be appointed by the 2^d branch of the Nat^l Legislature, to hold their offices during good behaviour, & to receive punctually at stated times a fixed compensation for their services, in which no increase or diminution shall be made, so as to affect the persons actually in office at the time of such increase or diminution.
12. Resol^d that the Nat^l Legislature be empowered to appoint inferior Tribunals.
13. Res^d that the jurisdiction of the Nat^l Judiciary shall extend to all cases which respect the collection of the Nat^l revenue, impeachments of any Nat^l Officers, and questions which involve the national peace & harmony.
14. Res^d that provision ought to be made for the admission of States lawfully arising within the limits of the U. States, whether from a voluntary junction of Government & territory or otherwise, with the consent of a number of voices in the Nat^l Legislature less than the whole.
15. Res^d that provision ought to be made for the continuance of Congress and their authorities and privileges untill a given day after the reform of the articles of Union shall be adopted and for the completion of all their engagements.
16. Res^d that a Republican Constitution & its existing laws ought to be guaranteed to each State by the U. States.
17. Res^d that provision ought to be made for the amendment of the Articles of Union whensoever it shall seem necessary.
18. Res^d that the Legislative, Executive & Judiciary powers within the several States ought to be bound by oath to support the articles of Union.
19. Res^d that the amendments which shall be offered to the confederation by the Convention ought at a proper time or times after the approbation of Cong^s to be submitted to an Assembly or Assemblies recommended by the several Legislatures to be expressly chosen by the people to consider and decide thereon.
THURSDAY JUNE 14. IN CONVENTION.
M^r Patterson, observed to the Convention that it was the wish of several deputations, particularly that of N. Jersey, that further time might be allowed them to contemplate the plan reported from the Committee of the Whole, and to digest one purely federal, and contradistinguished from the reported plan. He said they hoped to have such an one ready by tomorrow to be laid before the Convention: And the Convention adjourned that leisure might be given for the purpose.
FRIDAY JUNE 15^{TH} 1787
M^r Patterson, laid before the Convention the plan which he said several of the deputations wished to be substituted in place of that proposed by M^r Randolph. After some little discussion of the most proper mode of giving it a fair deliberation it was agreed that it should be referred to a Committee of the Whole, and that in order to place the two plans in due comparison, the other should be recommitted. At the earnest request of M^r Lansing[84] & some other gentlemen, it was also agreed that the Convention should not go into Co[~m]ittee of the whole on the subject till tomorrow, by which delay the friends of the plan proposed by M^r Patterson w^d be better prepared to explain & support it, and all would have an opportu^y of taking copies.[85]
[84] "Mr. Lansing is a practising Attorney at Albany, and Mayor of that Corporation. He has a hisitation in his speech, that will prevent his being an Orator of any eminence;--his legal knowledge I am told is not extensive, nor his education a good one. He is however a Man of good sense, plain in his manners, and sincere in his friendships. He is about 32 years of age."--Pierce's Notes, _Am. Hist. Rev._, iii., 327.
[85] (This plan had been concerted among the deputations or members thereof, from Con^t N. Y. N. J. Del. and perhaps M^r Martin from Mary^d who made with them a common cause though on different principles. Con^t & N. Y. were ag^{st} a departure from the principle of the Confederation, wishing rather to add a few new powers to Cong^s than to substitute, a National Gov^t. The States of N. J. & Del. were opposed to a National Gov^t because its patrons considered a proportional representation of the States as the basis of it. The eagerness displayed by the members opposed to a Nat^l Gov^t from these different motives began now to produce serious anxiety for the result of the Convention. M^r Dickenson said to M^r Madison You see the consequence of pushing things too far. Some of the members from the small States wish for two branches in the General Legislature, and are friends to a good National Government; but we would sooner submit to foreign power, than submit to be deprived of an equality of suffrage in both branches of the legislature, and thereby be thrown under the domination of the large States.)--Madison Note.
"Mr. Madison moved for the report of the committee, and the question may then come on whether the convention will postpone it in order to take into consideration the system now offered.
"Mr. Lansing is of opinion that the two systems are fairly contrasted. The one now offered is on the basis of amending the federal government, and the other to be reported as a national government, on propositions which exclude the propriety of amendment. Considering therefore its importance, and that justice may be done to its weighty consideration, he is for postponing it a day.
"Col. Hamilton cannot say he is in sentiment with either plan--supposes both might again be considered as federal plans, and by this means they will be fairly in committee, and be contrasted so as to make a comparative estimate of the two."--Yates, _Secret Proceedings_, etc., 121, 122.
The propositions from N. Jersey moved by M^r Patterson were in the words following.
1. Res^d that the articles of Confederation ought to be so revised, corrected, & enlarged, as to render the federal Constitution adequate to the exigencies of Government, & the preservation of the Union.
2. Res^d that in addition to the powers vested in the U. States in Congress, by the present existing articles of Confederation, they be authorized to pass acts for raising a revenue, by levying a duty or duties on all goods or merchandizes of foreign growth or manufacture, imported into any part of the U. States, by Stamps on paper, vellum or parchment, and by a postage on all letters or packages passing through the general post-office, to be applied to such federal purposes as they shall deem proper & expedient; to make rules & regulations for the collection thereof; and the same from time to time, to alter & amend in such manner as they shall think proper, to pass Acts for the regulation of trade & commerce as well with foreign Nations as with each other: provided that all punishments, fines, forfeitures & penalties to be incurred for contravening such acts rules and regulations shall be adjudged by the Common law Judiciaries of the State in which any Offence contrary to the true intent & meaning of such Acts rules & regulations shall have been committed or perpetrated, with liberty of commencing in the first instance all suits & prosecutions for that purpose in the Superior Common law Judiciary in such State, subject nevertheless, for the correction of all errors, both in law & fact in rendering Judgment, to an appeal to the Judiciary of the U. States.
3. Res^d that whenever requisitions shall be necessary, instead of the rule for making requisitions mentioned in the articles of Confederation, the United States in Cong^s be authorized to make such requisitions in proportion to the whole number of white & other free citizens & inhabitants of every age Sex and condition including those bound to servitude for a term of years & three fifths of all other persons not comprehended in the foregoing description, except Indians not paying taxes; that if such requisitions be not complied with, in the time specified therein, to direct the collection thereof in the non complying States & for that purpose to devise and pass acts directing & authorizing the same; provided that none of the powers hereby vested in the U. States in Cong^s shall be exercised without the consent of at least ---- States, and in that proportion if the number of Confederated States should hereafter be increased or diminished.
4. Res^d that the U. States in Cong^s be authorized to elect a federal Executive to consist of ---- persons, to continue in office for the term of ---- years, to receive punctually at stated times a fixed compensation for their services, in which no increase nor diminution shall be made so as to affect the persons composing the Executive at the time of such increase or diminution, to be paid out of the federal treasury; to be incapable of holding any other office or appointment during their time of service and for ---- years thereafter: to be ineligible a second time, & removeable by Cong^s on application by a majority of the Executives of the several States; that the Executives besides their general authority to execute the federal acts ought to appoint all federal officers not otherwise provided for, & to direct all military operations; provided that none of the persons composing the federal Executive shall on any occasion take command of any troops, so as personally to conduct any enterprise as General or in any other capacity.
5. Res^d that a federal Judiciary be established to consist of a supreme Tribunal the Judges of which to be appointed by the Executive, & to hold their offices during good behaviour, to receive punctually at stated times a fixed compensation for their services in which no increase nor diminution shall be made, so as to affect the persons actually in office at the time of such increase or diminution: that the Judiciary so established shall have authority to hear & determine in the first instance on all impeachments of federal Officers, & by way of appeal in the dernier resort in all cases touching the rights of Ambassadors, in all cases of captures from an enemy, in all cases of piracies & felonies on the high Seas, in all cases in which foreigners may be interested, in the construction of any treaty or treaties, or which may arise on any of the Acts for the regulation of trade, or the collection of the federal Revenue: that none of the Judiciary shall during the time they remain in office be capable of receiving or holding any other office or appointment during their term of service, or for ---- thereafter.
6. Res^d that all Acts of the U. States in Cong^s made by virtue & in pursuance of the powers hereby & by the Articles of Confederation vested in them, and all Treaties made & ratified under the authority of the U. States shall be the supreme law of the respective States so far forth as those Acts or Treaties shall relate to the said States or their Citizens, and that the Judiciary of the several States shall be bound thereby in their decisions any thing in the respective laws of the Individual States to the Contrary notwithstanding: and that if any State, or any body of men in any State shall oppose or prevent y^e carrying into execution such acts or treaties, the federal Executive shall be authorized to call forth y^e power of the Confederated States, or so much thereof as may be necessary to enforce and compel an Obedience to such Acts, or an observance of such Treaties.
7. Res^d that provision be made for the admission of new States into the Union.
8. Res^d that the rule for naturalization ought to be same in every State.
9. Res^d that a Citizen of one State committing an offence in another State of the Union, shall be deemed guilty of the same offence as if it had been committed by a Citizen of the State in which the offence was committed.[86]
[86] This copy of M^r Patterson's propositions varies in a few clauses from that in the printed Journal furnished from the papers of M^r Brearley a colleague of M^r Patterson. A confidence is felt, notwithstanding, in its accuracy. That the copy in the Journal is not entirely correct is shewn by the ensuing speech of M^r Wilson (June 16) in which he refers to the mode of removing the Executive by impeachment & conviction as a feature in the Virg^a plan forming one of its contrasts to that of M^r Patterson, which proposed a removal on the application of a majority of the Executives of the States. In the copy printed in the Journal, the two modes are combined in the same clause; whether through inadvertence, or as a contemplated amendment, does not appear.--Madison's Note.
The Journal contains: "6. Resolved, that the legislative, executive, and judiciary powers within the several states, ought to be bound, by oath, to support the articles of union," and "9. Resolved, that provision ought to be made for hearing and deciding upon all disputes arising between the United States and an individual state, respecting territory."--_Journal of the Federal Convention_, 126.
Adjourned.
SATURDAY JUNE 16. IN COMMITTEE OF THE WHOLE on Resolutions propos^d by M^r P. & M^r R.
M^r Lansing called for the reading of the 1^{st} resolution of each plan, which he considered as involving principles directly in contrast; that of M^r Patterson says he sustains the sovereignty of the respective States, that of M^r Randolph destroys it: the latter requires a negative on all the laws of the particular States; the former, only certain general powers for the general good. The plan of M^r R. in short absorbs all power except what may be exercised in the little local matters of the States which are not objects worthy of the supreme cognizance. He grounded his preference of M^r P's plan, chiefly on two objections ag^{st} that of M^r R. 1. want of power in the Convention to discuss & propose it. 2. the improbability of its being adopted, 1. He was decidedly of opinion that the power of the Convention was restrained to amendments of a federal nature, and having for their basis the Confederacy in being. The Act of Congress The tenor of the Acts of the States, the Co[~m]issions produced by the several deputations all proved this. And this limitation of the power to an amendment of the Confederacy, marked the opinion of the States, that it was unnecessary & improper to go farther. He was sure that this was the case with his State. N. York would never have concurred in sending deputies to the Convention, if she had supposed the deliberations were to turn on a consolidation of the States, and a National Government.
2. was it probable that the States would adopt & ratify a scheme, which they had never authorized us to propose? and which so far exceeded what they regarded as sufficient? We see by their several Acts particularly in relation to the plan of revenue proposed by Cong. in 1783, not authorized by the Articles of Confederation, what were the ideas they then entertained. Can so great a change be supposed to have already taken place. To rely on any change which is hereafter to take place in the sentiments of the people would be trusting to too great an uncertainty. We know only what their present sentiments are. And it is in vain to propose what will not accord with these. The States will never feel a sufficient confidence in a general Government to give it a negative on their laws. The Scheme is itself totally novel. There is no parallel to it to be found. The Authority of Congress is familiar to the people, and an augmentation of the powers of Congress will be readily approved by them.
M^r Patterson, said as he had on a former occasion given his sentiments on the plan proposed by M^r R. he would now avoiding repetition as much as possible give his reasons in favor of that proposed by himself. He preferred it because it accorded 1. with the powers of the Convention, 2 with the sentiments of the people. If the confederacy was radically wrong, let us return to our States, and obtain larger powers, not assume them ourselves. I came here not to speak my own sentiments, but the sentiments of those who sent me. Our object is not such a Governm^t as may be best in itself, but such a one as our Constituents have authorized us to prepare, and as they will approve. If we argue the matter on the supposition that no Confederacy at present exists, it can not be denied that all the States stand on the footing of equal sovereignty. All therefore must concur before any can be bound. If a proportional representation be right, why do we not vote so here? If we argue on the fact that a federal compact actually exists, and consult the articles of it we still find an equal Sovereignty to be the basis of it. He reads the 5^{th} art: of Confederation giving each State a vote--& the 13^{th} declaring that no alteration shall be made without unanimous consent. This is the nature of all treaties. What is unanimously done, must be unanimously undone. It was observed (by M^r Wilson) that the larger State gave up the point, not because it was right, but because the circumstances of the moment urged the concession. Be it so. Are they for that reason at liberty to take it back. Can the donor resume his gift without the consent of the donee. This doctrine may be convenient, but it is a doctrine that will sacrifice the lesser States. The larger States acceded readily to the confederacy. It was the small ones that came in reluctantly and slowly. N. Jersey & Maryland were the two last, the former objecting to the want of power in Congress over trade: both of them to the want of power to appropriate the vacant territory to the benefit of the whole.--If the sovereignty of the States is to be maintained, the Representatives must be drawn immediately from the States, not from the people: and we have no power to vary the idea of equal sovereignty. The only expedient that will cure the difficulty, is that of throwing the States into Hotchpot. To say that this is impracticable, will not make it so. Let it be tried, and we shall see whether the Citizens of Mass^{ts} Pen^a & V^a accede to it. It will be objected that Coercion will be impracticable. But will it be more so in one plan than the other? Its efficacy will depend on the quantum of power collected, not on its being drawn from the States, or from the individuals; and according to his plan it may be exerted on individuals as well as according that of M^r R. A distinct executive & Judiciary also were equally provided by his plan. It is urged that two branches in the Legislature are necessary. Why? for the purpose of a check. But the reason of the precaution is not applicable to this case. Within a particular State, where party heats prevail, such a check may be necessary. In such a body as Congress it is less necessary, and besides, the delegations of the different States are checks on each other. Do the people at large complain of Cong^s? No, what they wish is that Cong^s may have more power. If the power now proposed be not eno', the people hereafter will make additions to it. With proper powers Cong^s will act with more energy & wisdom than the proposed Nat^l Legislature; being fewer in number, and more secreted & refined by the mode of election. The plan of M^r R. will also be enormously expensive. Allowing Georgia & Del. two representatives each in the popular branch the aggregate number of that branch will be 180. Add to it half as many for the other branch and you have 270, coming once at least a year from the most distant as well as the most central parts of the republic. In the present deranged State of our finances can so expensive a System be seriously thought of? By enlarging the powers of Cong^s the greatest part of this expence will be saved, and all purposes will be answered. At least a trial ought to be made.
M^r Wilson entered into a contrast of the principal points of the two plans so far he said as there had been time to examine the one last proposed. These points were 1. in the Virg^a plan there are 2 & in some degree 3 branches in the Legislature: in the plan from N. J. there is to be a _single_ legislature only--2. Representation of the people at large is the basis of one: the State Legislatures, the pillars of the other--3. proportional representation prevails in one;--equality of suffrage in the other--4. A single Executive Magistrate is at the head of the one:--a plurality is held out in the other.--5. in the one the majority of the people of the U. S. must prevail:--in the other a minority may prevail. 6. the Nat^l Legislature is to make laws in all cases to which the separate States are incompetent &:--in place of this Cong^s are to have additional power in a few cases only--7. A negative on the laws of the States:--in place of this coertion to be substituted--8. The Executive to be removable on impeachment & conviction;--in one plan: in the other to be removable at the instance of a majority of the Executives of the States--9. Revision of the laws provided for in one:--no such check in the other--10. inferior national tribunals in one:--none such in the other. 11. In one y^e jurisdiction of Nat^l tribunals to extend &c.--; an appellate jurisdiction only allowed in the other. 12. Here the jurisdiction is to extend to all cases affecting the Nation^l peace & harmony; _there_ a few cases only are marked out. 13. finally y^e ratification is in this to be by the people themselves:--in that by the legislative authorities according to the 13 art: of the Confederation.
With regard to the _power of the Convention_, he conceived himself authorized to _conclude nothing_, but to be at liberty to _propose any thing_. In this particular he felt himself perfectly indifferent to the two plans.
With _regard to the sentiments of the people_, he conceived it difficult to know precisely what they are. Those of the particular circle in which one moved, were commonly mistaken for the general voice. He could not persuade himself that the State Gov^{ts} & Sovereignties were so much the idols of the people, nor a Nat^l Gov^t so obnoxious to them, as some supposed. Why s^d a Nat^l Gov^t be unpopular? Has it less dignity? will each Citizen enjoy under it less liberty or protection? Will a Citizen of _Deleware_ be degraded by becoming a Citizen of the _United States_? Where do the people look at present for relief from the evils of which they complain? Is it from an internal reform of their Gov^{ts}? no, Sir. It is from the Nat^l Councils that relief is expected. For these reasons he did not fear, that the people would not follow us into a National Gov^t and it will be a further recommendation of M^r R'^s plan that it is to be submitted to _them_, and not to the _Legislatures_, for ratification.
Proceeding now to the 1^{st} point on which he had contrasted the two plans, he observed that anxious as he was for some augmentation of the federal powers, it would be with extreme reluctance indeed that he could ever consent to give powers to Cong^s he had two reasons either of w^{ch} was sufficient, 1. Cong^s as a Legislative body does not stand on the people. 2. it is a _single_ body. 1. He would not repeat the remarks he had formerly made on the principles of Representation, he would only say that an inequality in it, has ever been a poison contaminating every branch of Gov^t. In G. Britain where this poison has had a full operation, the security of private rights is owing entirely to the purity of her tribunals of Justice, the Judges of which are neither appointed nor paid, by a venal Parliament. The political liberty of that Nation, owing to the inequality of representation is at the mercy of its rulers. He means not to insinuate that there is any parallel between the situation of that Country & ours at present. But it is a lesson we ought not to disregard, that the smallest bodies in G. B. are notoriously the most corrupt. Every other source of influence must also be stronger in small than large bodies of men. When Lord Chesterfield had told us that one of the Dutch provinces had been seduced into the views of France, he need not have added, that it was not Holland, but one of the _smallest_ of them. There are facts among ourselves which are known to all. Passing over others, he will only remark that the _Impost_, so anxiously wished for by the public was defeated not by any of the _larger_ States in the Union. 2. _Congress is a single Legislature._ Despotism comes on Mankind in different Shapes, sometimes in an Executive, sometimes in a Military, one. Is there no danger of a Legislative despotism? Theory & practice both proclaim it. If the Legislative authority be not restrained, there can be neither liberty nor stability; and it can only be restrained by dividing it within itself, into distinct and independent branches. In a single House there is no check, but the inadequate one, of the virtue & good sense of those who compose it.
On another great point, the contrast was equally favorable to the plan reported by the Committee of the whole. It vested the Executive powers in a single Magistrate. The plan of N. Jersey, vested them in a plurality. In order to controul the Legislative authority, you must divide it. In order to controul the Executive you must unite it. One man will be more responsible than three. Three will contend among themselves till one becomes the master of his colleagues. In the triumvirates of Rome first Cæsar, then Augustus, are witnesses of this truth. The Kings of Sparta, & the Consuls of Rome prove also the factious consequences of dividing the Executive Magistracy. Having already taken up so much time he w^d not he s^d, proceed to any of the other points. Those on which he had dwelt, are sufficient of themselves; and on the decision of them, the fate of the others will depend.
M^r Pinkney,[87] the whole comes to this, as he conceived. Give N. Jersey an equal vote, and she will dismiss her scruples, and concur in the Nat^l system. He thought the Convention authorized to go any length in recommending; which they found necessary to remedy the evils which produced this Convention.
[87] Yates states it was C. C. Pinckney who said this.--_Secret Proceedings_, etc., 123.
M^r Elseworth proposed as a more distinctive form of collecting the mind of the Committee on the subject, "that the Legislative power of the U.S. should remain in Cong^s" This was not seconded, though it seemed better calculated for the purpose than the 1^{st} proposition of M^r Patterson in place of which Mr. E. wished to substitute it.
M^r Randolph, was not scrupulous on the point of power. When the Salvation of the Republic was at stake, it would be treason to our trust, not to propose what we found necessary. He painted in strong colours, the imbecility of the existing Confederacy, & the danger of delaying a substantial reform. In answer to the objection drawn from the sense of our Constituents as denoted by their acts relating to the Convention and the objects of their deliberation, he observed that as each State acted separately in the case, it would have been indecent for it to have charged the existing Constitution with all the vices which it might have perceived in it. The first State that set on foot this experiment would not have been justified in going so far, ignorant as it was of the opinion of others, and sensible as it must have been of the uncertainty of a successful issue to the experiment. There are certainly reasons of a peculiar nature where the ordinary cautions must be dispensed with; and this is certainly one of them. He w^d not as far as depended on him leave any thing that seemed necessary, undone. The present moment is favorable, and is probably the last that will offer.
The true question is whether we shall adhere to the federal plan, or introduce the national plan. The insufficiency of the former has been fully displayed by the trial already made. There are but two modes, by which the end of a Gen^l Gov^t can be attained: the 1^{st} is by coercion as proposed by M^r P's plan 2. by real legislation as prop^d by the other plan. Coercion he pronounced to be _impracticable_, _expensive_, _cruel to individuals_. It tended also to habituate the instruments of it to shed the blood & riot in the Spoils of their fellow Citizens, and consequently trained them up for the service of Ambition. We must resort therefore to a National _Legislation over individuals_, for which Cong^s are unfit. To vest such power in them, would be blending the Legislative with the Executive, contrary to the rec^d maxim on this subject: If the Union of these powers heretofore in Cong^s has been safe, it has been owing to the general impotency of that body. Cong^s are moreover not elected by the people, but by the Legislatures who retain even a power of recall. They have therefore no will of their own, they are a mere diplomatic body, and are always obsequious to the views of the States, who are always encroaching on the authority of the U. States. A provision for harmony among the States, as in trade, naturalization &.--for crushing rebellion whenever it may rear its crest--and for certain other general benefits, must be made. The powers for these purposes can never be given to a body, inadequate as Congress are in point of representation, elected in the mode in which they are, and possessing no more confidence than they do: for notwithstanding what has been said to the contrary, his own experience satisfied him that a rooted distrust of Congress pretty generally prevailed. A Nat^l Gov^t alone, properly constituted, will answer the purpose; and he begged it to be considered that the present is the last moment for establing one. After this select experiment, the people will yield to despair.
The Committee rose & the House adjourned.
MONDAY JUNE 18. IN COMMITTEE OF THE WHOLE on the propositions of M^r Patterson & M^r Randolph.
On motion of M^r Dickinson to postpone the 1^{st} Resolution in M^r Patterson's plan, in order to take up the following viz--"that the Articles of Confederation ought to be revised and amended, so as to render the Government of the U. S. adequate to the exigencies, the preservation and the prosperity of the Union" the postponement was agreed to by 10 States, Pen: divided.
Mr. Hamilton,[88] had been hitherto silent on the business before the Convention, partly from respect to others whose superior abilities age & experience rendered him unwilling to bring forward ideas dissimilar to theirs, and partly from his delicate situation with respect to his own State, to whose sentiments as expressed by his Colleages, he could by no means accede. This crisis however which now marked our affairs, was too serious to permit any scruples whatever to prevail over the duty imposed on every man to contribute his efforts for the public safety & happiness. He was obliged therefore to declare himself unfriendly to both plans. He was particularly opposed to that from N. Jersey, being fully convinced, that no amendment of the Confederation, leaving the States in possession of their Sovereignty could possibly answer the purpose. On the other hand he confessed he was much discouraged by the amazing extent of Country in expecting the desired blessings from any general sovereignty that could be substituted.--As to the powers of the Convention, he thought the doubts started on that subject had arisen from distinctions & reasonings too subtle. A _federal_ Gov^t he conceived to mean an association of independent Communities into one. Different Confederacies have different powers, and exercise them in different ways. In some instances the powers are exercised over collective bodies; in others over individuals, as in the German Diet--& among ourselves in cases of piracy. Great latitude therefore must be given to the signification of the term. The plan last proposed departs itself from the _federal_ idea, as understood by some, since it is to operate eventually on individuals. He agreed moreover with the Honble gentleman from V^a (M^r R.) that we owed it to our Country, to do on this emergency whatever we should deem essential to its happiness. The States sent us here to provide for the exigencies of the Union. To rely on & propose any plan not adequate to these exigencies, merely because it was not clearly within our powers, would be to sacrifice the means to the end. It may be said that the _States_ cannot _ratify_ a plan not within the purview of the article of the Confederation providing for alterations & amendments. But may not the States themselves in which no constitutional authority equal to this purpose exists in the Legislatures, have had in view a reference to the people at large. In the Senate of N. York, a proviso was moved, that no act of the Convention should be binding untill it should be referred to the people & ratified; and the motion was lost by a single voice only, the reason assigned ag^{st} it being, that it might possibly be found an inconvenient shackle.
[88] Hamilton happened to call upon Madison while the latter was putting the last touches to this speech and "acknowledged its fidelity, without suggesting more than a few verbal alterations which were made."--(Cf. _Madison's Writings_, vol. ii.). A brief of the speech from the Hamilton Papers is given in Lodge's _Works of Hamilton_, i., 353, where (i., 375) Yates's report also is quoted.
[Illustration: HAMILTON'S PRINCIPAL SPEECH. (Reduced.)]
The great question is what provision shall we make for the happiness of our Country? He would first make a comparative examination of the two plans--prove that there were essential defects in both--and point out such changes as might render a _national one_, efficacious.--The great & essential principles necessary for the support of Government are 1. an active & constant interest in supporting it. This principle does not exist in the States in favor of the federal Gov^t. They have evidently in a high degree, the esprit de corps. They constantly pursue internal interests adverse to those of the whole. They have their particular debts--their particular plans of finance &c. All these when opposed to, invariably prevail over the requisitions & plans of Congress. 2. The love of power. Men love power. The same remarks are applicable to this principle. The States have constantly shewn a disposition rather to regain the powers delegated by them than to part with more, or to give effect to what they had parted with. The ambition of their demagogues is known to hate the controul of the Gen^l Government. It may be remarked too that the Citizens have not that anxiety to prevent a dissolution of the Gen^l Gov^t as of the particular Gov^{ts}. A dissolution of the latter would be fatal; of the former would still leave the purposes of Gov^t attainable to a considerable degree. Consider what such a State as Virg^a will be in a few years, a few compared with the life of nations. How strongly will it feel its importance and self-sufficiency? 3. An habitual attachment of the people. The whole force of this tie is on the side of the State Gov^t. Its sovereignty is immediately before the eyes of the people: its protection is immediately enjoyed by them. From its hand distributive justice, and all those acts which familiarize & endear a Gov^t to a people, are dispensed to them. 4. _Force_ by which may be understood a _coercion of laws_ or _coercion of arms_. Cong^s have not the former except in few cases. In particular States, this Coercion is nearly sufficient; tho' he held it in most cases, not entirely so. A certain portion of military force is absolutely necessary in large communities. Mass^{ts} is now feeling this necessity & making provision for it. But how can this force be exerted on the States collectively. It is impossible. It amounts to a war between the parties. Foreign powers also will not be idle spectators. They will interpose, the confusion will increase, and a dissolution of the Union will ensue. 5. _Influence._ he did not mean corruption, but a dispensation of those regular honors & emoluments, which produce an attachment to the Gov^t. Almost all the weight of these is on the side of the States; and must continue so as long as the States continue to exist. All the passions then we see, of avarice, ambition, interest, which govern most individuals, and all public bodies, fall into the current of the States, and do not flow into the stream of the Gen^l Gov^t. The former therefore will generally be an overmatch for the Gen^l Gov^t and render any confederacy, in its very nature precarious. Theory is in this case fully confirmed by experience. The Amphyctionic Council had it would seem ample powers for general purposes. It had in particular the power of fining and using force ag^{st} delinquent members. What was the consequence. Their decrees were mere signals of war. The Phocian war is a striking example of it. Philip at length taking advantage of their disunion, and insinuating himself into their councils, made himself master of their fortunes. The German Confederacy affords another lesson. The Authority of Charlemagne seemed to be as great as could be necessary. The great feudal chiefs however, exercising their local sovereignties, soon felt the spirit & found the means of, encroachments, which reduced the imperial authority to a nominal sovereignty. The Diet has succeeded, which tho' aided by a Prince at its head, of great authority independently of his imperial attributes, is a striking illustration of the weakness of Confederated Governments. Other examples instruct us in the same truth. The Swiss cantons have scarce any union at all, and have been more than once at war with one another.--How then are all these evils to be avoided? only by such a compleat sovereignty in the General Goverm^t as will turn all the strong principles & passions abovementioned on its side. Does the scheme of N. Jersey produce this effect? does it afford any substantial remedy whatever? On the contrary it labors under great defects, and the defect of some of its provisions will destroy the efficacy of others. It gives a direct revenue to Cong^s but this will not be sufficient. The balance can only be supplied by requisitions: which experience proves cannot be relied on. If States are to deliberate on the mode, they will also deliberate on the object of the supplies, and will grant or not grant as they approve or disapprove of it. The delinquency of one will invite and countenance it in others. Quotas too must in the nature of things be so unequal as to produce the same evil. To what standard will you resort? Land is a fallacious one. Compare Holland with Russia; France or Eng^d with other countries of Europe, Pen^a with N. Carol^a will the relative pecuniary abilities in those instances, correspond with the relative value of land. Take numbers of inhabitants for the rule and make like comparison of different countries, and you will find it to be equally unjust. The different degrees of industry and improvement in different Countries render the first object a precarious measure of wealth. Much depends too on _situation_. Con^t N. Jersey & N. Carolina, not being commercial States & contributing to the wealth of the Commercial ones, can never bear quotas assessed by the ordinary rules of proportion. They will & must fail in their duty, their example will be followed, and the union itself be dissolved. Whence then is the national revenue to be drawn? from Commerce; even from exports which notwithstanding the co[~m]on opinion are fit objects of moderate taxation, from excise, &c &c. These tho' not equal, are less unequal than quotas. Another destructive ingredient in the plan, is that equality of suffrage which is so much desired by the small States. It is not in human nature that V^a & the large States should consent to it, or if they did that they sh^d long abide by it. It shocks too much all ideas of Justice, and every human feeling. Bad principles in a Gov^t tho slow are sure in their operation, and will gradually destroy it. A doubt has been raised whether Cong^s at present have a right to keep Ships or troops in time of peace. He leans to the negative. Mr. P'^s plan provides no remedy.--If the powers proposed were adequate, the organization of Cong^s is such that they could never be properly & effectually exercised. The members of Cong^s being chosen by the States & subject to recall, represent all the local prejudices. Should the powers be found effectual, they will from time to time be heaped on them, till a tyrannic sway shall be established. The general power whatever be its form if it preserves itself, must swallow up the State powers. Otherwise it will be swallowed up by them. It is ag^{st} all the principles of a good Government to vest the requisite powers in such a body as Cong^s. Two Sovereignties can not co-exist within the same limits. Giving powers to Cong^s must eventuate in a bad Gov^t or in no Gov^t. The plan of N. Jersey therefore will not do. What then is to be done? Here he was embarrassed. The extent of the Country to be governed, discouraged him. The expence of a general Gov^t was also formidable; unless there were such a diminution of expence on the side of the State Gov^{ts} as the case would admit. If they were extinguished, he was persuaded that great oeconomy might be obtained by substituting a general Gov^t. He did not mean however to shock the public opinion by proposing such a measure. On the other hand he saw no _other_ necessity for declining it. They are not necessary for any of the great purposes of commerce, revenue, or agriculture. Subordinate authorities he was aware would be necessary. There must be district tribunals; corporations for local purposes. But cui bono, the vast & expensive apparatus now appertaining to the States. The only difficulty of a serious nature which occurred to him, was that of drawing representatives from the extremes to the centre of the Community. What inducements can be offered that will suffice? The moderate wages for the 1^{st} branch would only be a bait to little demagogues. Three dollars or thereabouts he supposed would be the utmost. The Senate he feared from a similar cause, would be filled by certain undertakers who wish for particular offices under the Gov^t. This view of the subject almost led him to despair that a Republican Gov^t could be established over so great an extent. He was sensible at the same time that it would be unwise to propose one of any other form. In his private opinion he had no scruple in declaring, supported as he was by the opinion of so many of the wise & good, that the British Gov^t was the best in the world: and that he doubted much whether any thing short of it would do in America. He hoped Gentlemen of different opinions would bear with him in this, and begged them to recollect the change of opinion on this subject which had taken place and was still going on. It was once thought that the power of Cong^s was amply sufficient to secure the end of their institution. The error was now seen by every one. The members most tenacious of republicanism, he observed, were as loud as any in declaiming ag^{st} the vices of democracy. This progress of the public mind led him to anticipate the time, when others as well as himself would join in the praise bestowed by M^r Neckar on the British Constitution, namely, that it is the only Gov^t in the world "which unites public strength with individual security."--In every Co[~m]unity where industry is encouraged, there will be a division of it into the few & the many. Hence separate interests will arise. There will be debtors & Creditors &c. Give all power to the many, they will oppress the few. Give all power to the few, they will oppress the many. Both therefore ought to have the power, that each may defend itself ag^{st} the other. To the want of this check we owe our paper money, instalment laws &c. To the proper adjustment of it the British owe the excellence of their Constitution. Their house of Lords is a most noble institution. Having nothing to hope for by a change, and a sufficient interest by means of their property, in being faithful to the national interest, they form a permanent barrier ag^{st} every pernicious innovation, whether attempted on the part of the Crown or of the Commons. No temporary Senate will have firmness eno' to answer the purpose. The Senate (of Maryland) which seems to be so much appealed to, has not yet been sufficiently tried. Had the people been unanimous & eager in the late appeal to them on the subject of a paper emission they would have yielded to the torrent. Their acquiescing in such an appeal is a proof of it.--Gentlemen differ in their opinions concerning the necessary checks, from the different estimates they form of the human passions. They suppose seven years a sufficient period to give the senate an adequate firmness, from not duly considering the amazing violence & turbulence of the democratic spirit. When a great object of Gov^t is pursued, which seizes the popular passions, they spread like wild fire, and become irresistable. He appealed to the gentlemen from the N. England States whether experience had not there verified the remark.--As to the Executive, it seemed to be admitted that no good one could be established on Republican Principles. Was not this giving up the merits of the question; for can there be a good Gov^t without a good Executive. The English Model was the only good one on this subject. The Hereditary interest of the King was so interwoven with that of the Nation, and his personal emoluments so great, that he was placed above the danger of being corrupted from abroad--and at the same time was both sufficiently independent and sufficiently controuled, to answer the purpose of the institution at home, one of the weak sides of Republics was their being liable to foreign influence & corruption. Men of little character, acquiring great power become easily the tools of intermeddling Neibours. Sweden was a striking instance. The French & English had each their parties during the late Revolution which was effected by the predominant influence of the former.--What is the inference from all these observations? That we ought to go as far in order to attain stability and permanency, as republican principles will admit. Let one branch of the Legislature hold their places for life or at least during good behaviour. Let the Executive also be for life. He appealed to the feelings of the members present whether a term of seven years, would induce the sacrifices of private affairs which an acceptance of public trust would require, so as to ensure the services of the best Citizens. On this plan we should have in the Senate a permanent will, a weighty interest, which would answer essential purposes. But is this a Republican Gov^t, it will be asked? Yes if all the Magistrates are appointed, and vacancies are filled, by the people, or a process of election originating with the people. He was sensible that an Executive constituted as he proposed would have in fact but little of the power and independence that might be necessary. On the other plan of appointing him for 7 years, he thought the Executive ought to have but little power. He would be ambitious, with the means of making creatures, and as the object of his ambition w^d be to _prolong_ his power, it is probable that in case of a war, he would avail himself of the emergence, to evade or refuse a degradation from his place. An Executive for life has not this motive for forgetting his fidelity, and will therefore be a safer depository of power. It will be objected probably, that such an Executive will be an _elective Monarch_, and will give birth to the tumults which characterize that form of Gov^t. He w^d reply that _Monarch_ is an indefinite term. It marks not either the degree or duration of power. If this Executive Magistrate w^d be a monarch for life--the other prop^d by the Report from the Co[~m]ittee of the whole, w^d be a monarch for seven years. The circumstance of being elective was also applicable to both. It had been observed by judicious writers that elective monarchies w^d be the best if they could be guarded ag^{st} the _tumults_ excited by the ambition and intrigues of competitors. He was not sure that tumults were an inseparable evil. He rather thought this character of Elective Monarchies had been taken rather from particular cases than from general principles. The election of Roman Emperors was made by the _Army_. In _Poland_ the election is made by great rival _princes_ with independent power, and ample means, of raising commotions. In the German Empire, The appointment is made by the Electors & Princes, who have equal motives & means, for exciting cabals & parties. Might not such a mode of election be devised among ourselves as will defend the community ag^{st} these effects in any dangerous degree? Having made these observations he would read to the Committee a sketch of a plan which he sh^d prefer to either of those under consideration. He was aware that it went beyond the ideas of most members. But will such a plan be adopted out of doors? In return he would ask will the people adopt the other plan? At present they will adopt neither. But he sees the Union dissolving or already dissolved--he sees evils operating in the States which must soon cure the people of their fondness for democracies--he sees that a great progress has been already made & is still going on in the public mind. He thinks therefore that the people will in time be unshackled from their prejudices; and whenever that happens, they will themselves not be satisfied at stopping where the plan of M^r R. w^d place them, but be ready to go as far at least as he proposes. He did not mean to offer the paper he had sketched as a proposition to the Committee. It was meant only to give a more correct view of his ideas, and to suggest the amendments which he should probably propose to the plan of M^r R. in the proper stages of its future discussion. He read his sketch in the words following; to wit
I. The supreme Legislative power of the United States of America to be vested in two different bodies of men; the one to be called the Assembly, the other the Senate who together shall form the Legislature of the United States with power to pass all laws whatsoever subject to the Negative hereafter mentioned.
II. The Assembly to consist of persons elected by the people to serve for three years.
III. The Senate to consist of persons elected to serve during good behaviour; their election to be made by electors chosen for that purpose by the people: in order to this the States to be divided into election districts. On the death, removal or resignation of any Senator his place to be filled out of the district from which he came.
IV. The supreme Executive authority of the United States to be vested in a Governour to be elected to serve during good behaviour--the election to be made by Electors chosen by the people in the Election Districts aforesaid--The authorities & functions of the Executive to be as follows: to have a negative on all laws about to be passed, and the execution of all laws passed; to have the direction of war when authorized or begun; to have with the advice and approbation of the Senate the power of making all treaties; to have the sole appointment of the heads or chief officers of the departments of Finance, War and Foreign Affairs; to have the nomination of all other officers (Ambassadors to foreign Nations included) subject to the approbation or rejection of the Senate; to have the power of pardoning all offences except Treason; which he shall not pardon without the approbation of the Senate.
V. On the death resignation or removal of the Governour his authorities to be exercised by the President of the Senate till a Successor be appointed.
VI. The Senate to have the sole power of declaring war, the power of advising and approving all Treaties, the power of approving or rejecting all appointments of officers except the heads or chiefs of the departments of Finance War and foreign affairs.
VII. The supreme Judicial authority to be vested in ---- Judges to hold their offices during good behaviour with adequate and permanent salaries. This Court to have original jurisdiction in all causes of capture, and an appellative jurisdiction in all causes in which the revenues of the General Government or the Citizens of foreign Nations are concerned.
VIII. The Legislature of the United States to have power to institute Courts in each State for the determination of all matters of general concern.
IX. The Governour Senators and all officers of the United States to be liable to impeachment for mal- and corrupt conduct; and upon conviction to be removed from office, & disqualified for holding any place of trust or profit--All impeachments to be tried by a Court to consist of the Chief ---- or Judge of the Superior Court of Law of each State, provided such Judge shall hold his place during good behavior, and have a permanent salary.
X. All laws of the particular States contrary to the Constitution or laws of the United States to be utterly void; and the better to prevent such laws being passed, the Governour or president of each State shall be appointed by the General Government and shall have a Negative upon the laws about to be passed in the State of which he is the Governour or President.
XI. No State to have any forces land or Naval; and the militia of all the States to be under the sole and exclusive direction of the United States, the officers of which to be appointed and commissioned by them.
On these several articles he entered into explanatory observations corresponding with the principles of his introductory reasoning.[89]
[89] COPY OF A PAPER COMMUNICATED TO J. M. BY COL. HAMILTON, ABOUT THE CLOSE OF THE CONVENTION IN PHILAD^A, 1787, WHICH HE SAID DELINEATED THE CONSTITUTION WHICH HE WOULD HAVE WISHED TO BE PROPOSED BY THE CONVENTION. HE HAD STATED THE PRINCIPLES OF IT IN THE COURSE OF THE DELIBERATIONS.
The people of the United States of America do ordain & establish this Constitution for the government of themselves and their posterity.
Article I
ARTICLE I
§ 1. The Legislative power shall be vested in two distinct bodies of men, one to be called the Assembly, the other the Senate, subject to the negative hereinafter mentioned.
§ 2. The Executive power, with the qualifications hereinafter specified, shall be vested in a President of the United States.
§ 3. The Supreme Judicial authority, except in the cases otherwise provided for in this Constitution, shall be vested in a Court to be called the SUPREME COURT, to consist of not less than six nor more than twelve Judges.
Article Ii
ARTICLE II
§ 1. The Assembly shall consist of persons to be called representatives, who shall be chosen, except in the first instance, by the free male citizens & inhabitants of the several States comprehended in the Union, all of whom of the age of twenty one years & upwards shall be entitled to an equal vote.
§ 2. But the first Assembly shall be chosen in the manner prescribed in the last article and shall consist of one hundred members of whom N. Hampshire shall have five, Massachusetts thirteen, Rhode Island two, Connecticut seven, N. York nine, N. Jersey six, Pennsylvania twelve, Delaware two, Maryland eight, Virginia sixteen, N. Carolina eight, S. Carolina eight, Georgia four.
§ 3. The Legislature shall provide for the future elections of Representatives, apportioning them in each State, from time to time, as nearly as may be to the number of persons described in the 4§ of the VII article, so as that the whole number of Representatives shall never be less than one hundred, nor more than ---- hundred. There shall be a Census taken for this purpose within three years after the first meeting of the Legislature, and within every successive period of ten years. The term for which Representatives shall be elected shall be determined by the Legislature but shall not exceed three years. There shall be a general election at least once in three years; and the time of service of all the members in each Assembly shall begin, (except in filling vacancies) on the same day, and shall always end on the same day.
§ 4. Forty members shall make a House sufficient to proceed to business; but their number may be increased by the Legislature, yet so as never to exceed a majority of the whole number of Representatives.
§ 5. The Assembly shall choose its President and other officers, shall judge of the qualifications & elections of its own members, punish them for improper conduct in their capacity of Representatives not extending to life or limb; and shall exclusively possess the power of impeachment except in the case of the President of the United States; but no impeachment of a member of the Senate shall be by less than two thirds of the Representatives present.
§ 6. Representatives may vote by proxy; but no Representative present shall be proxy for more than one who is absent.[A]
[A] Quere, ? (to provide for distant States).--Note in Madison's hand.
§ 7. Bills for raising revenue, and bills for appropriating monies for the support of fleets and armies, and for paying the salaries of the officers of Government, shall originate in the Assembly; but may be altered and amended by the Senate.
§ 8. The acceptance of an office under the United States by a Representative shall vacate his seat in the Assembly.
Article Iii
ARTICLE III
§ 1. The Senate shall consist of persons to be chosen, except in the first instance, by Electors elected for that purpose by the Citizens and inhabitants of the several States comprehended in the Union who shall have in their own right, or in the right of their wifes, an Estate in land for not less than life, or a term of years, whereof at the time of giving their votes there shall be at least fourteen years unexpired.
§ 2. But the first Senate shall be chosen in the manner prescribed in the last Article and shall consist of forty members to be called Senators, of whom N. Hampshire shall have ---- Mass^{ts} ---- R. Island ---- Connecticut ---- N. York ---- N. Jersey ---- Pen^a ---- Delaware ---- Mary^d ---- Virg^a ---- N. Carol. ---- S. Carol. ---- Geo. ----.
§ 3. The Legislature shall provide for the future elections of Senators, for which purpose the States respectively, which have more than one Senator, shall be divided into convenient districts to which the Senators shall be apportioned. A State having but one Senator shall be itself a district. On the death, resignation or removal from office of a Senator his place shall be supplied by a new election in the district from which he came. Upon each election there shall be not less than six nor more than twelve electors chosen in a district.
§ 4. The number of Senators shall never be less than forty, nor shall any State, if the same shall not hereafter be divided, ever have less than the number allotted to it in the second section of this article; but the Legislature may increase the whole number of Senators, in the same proportion to the whole number of Representatives as forty is to one hundred; and such increase beyond the present number, shall be apportioned to the respective States in a ratio to the respective numbers of their representatives.
§ 5. If States shall be divided, or if a new arrangement of the boundaries of two or more States shall take place, the Legislature shall apportion the number of Senators (in elections succeeding such division or new arrangement) to which the constituent parts were entitled according to the change of situation, having regard to the number of persons described in the 4 §. of the VII article.
§ 6. The Senators shall hold their places during good behaviour, removable only by conviction on impeachment for some crime or misdemeanor. They shall continue to exercise their offices when impeached untill a conviction shall take place. Sixteen Senators attending in person shall be sufficient to make a House to transact business; but the Legislature may increase this number, yet so as never to exceed a majority of the whole number of Senators. The Senators may vote by proxy, but no Senator who is present shall be proxy for more than two who are absent.
§ 7. The Senate shall choose its President and other officers; shall judge of the qualifications and elections of its members, and shall punish them for improper conduct in their capacity of Senators; but such punishment shall not extend to life or limb, nor to expulsion. In the absence of their President they may choose a temporary President. The President shall only have a casting vote when the House is equally divided.
§ 8. The Senate shall exclusively possess the power of declaring war. No treaty shall be made without their advice and consent; which shall also be necessary to the appointment of all officers, except such for which a different provision is made in this Constitution.
Article Iv
ARTICLE IV
§ 1. The President of the United States of America, (except in the first instance) shall be elected in the manner following--The Judges of the Supreme Court shall within sixty days after a vacancy shall happen, cause public notice to be given in each State, of such vacancy, appointing therein three several days for the several purposes following, to wit, a day for commencing the election of electors for the purposes hereinafter specified, to be called the first electors, which day shall not be less than forty, nor more than sixty days, after the day of the publication of the notice in each State--another day for the meeting of the electors not less [than] forty nor more than ninety days from the day for commencing their election--another day for the meeting of electors to be chosen by the first electors, for the purpose hereinafter specified, and to be called the second Electors, which day shall be not less than forty nor more than sixty days after the day for the meeting of the first electors.
§ 2. After notice of a vacancy shall have been given there shall be chosen in each State a number of persons, as the first electors in the preceding section mentioned, equal to the whole number of the Representatives and Senators of such State in the Legislature of the United States; which electors shall be chosen by the Citizens of such State having an estate of inheritance or for three lives in land, or a clear personal estate of the value of one thousand Spanish milled dollars of the present standard.
§ 3. These first electors shall meet in their respective States at the time appointed, at one place; and shall proceed to vote by ballot for a President, who shall not be one of their own number, unless the Legislature upon experiment should hereafter direct otherwise. They shall cause two lists to be made of the name or names of the person or persons voted for, which they or the major part of them shall sign & certify. They shall then proceed each to nominate openly in the presence of the others, two persons as for second electors, and out of the persons who shall have the four highest numbers of nominations, they shall afterwards by ballot by plurality of votes choose two who shall be the second electors, to each of whom shall be delivered one of the lists before mentioned. These second electors shall not be any of the persons voted for as President. A copy of the same list signed and certified in like manner shall be transmitted by the first electors to the Seat of the Government of the United States, under a sealed cover directed to the President of the Assembly, which after the meeting of the Second electors shall be opened for the inspection of the two Houses of the Legislature.
§ 4. The second electors shall meet precisely on the day appointed and not on another day, at one place. The Chief Justice of the Supreme Court, or if there be no Chief Justice, the Judge senior in office in such Court, or if there be no one Judge senior in office, some other Judge of that Court, by the choice of the rest of the Judges or of a majority of them, shall attend at the same place and shall preside at the meeting, but shall have no vote. Two thirds of the whole number of the Electors shall constitute a sufficient meeting for the execution of their trust. At this meeting the lists delivered to the respective electors shall be produced and inspected, and if there be any person who has a majority of the whole number of votes given by the first electors, he shall be the President of the United States; but if there be no such person, the second electors so met shall proceed to vote, by ballot for one of the persons named in the lists who shall have the three highest numbers of the votes of the first electors; and if upon the first or any succeeding ballot on the day of their meeting, either of those persons shall have a number of votes equal to a majority of the whole number of second electors chosen, he shall be the President. But if no such choice be made on the day appointed for the meeting either by reason of the non-attendance of the second electors, or their not agreeing, or any other matter, the person having the greatest number of votes of the first electors shall be the President.
§ 5. If it should happen that the Chief Justice or some other Judge of the Supreme Court should not attend in due time, the second electors shall proceed to the execution of their trust without him.
§ 6. If the Judges should neglect to cause the notice required by the first section of this article to be given within the time therein limited, they may nevertheless cause it to be afterwards given; but their neglect if wilful, is hereby declared to be an offence for which they may be impeached, and if convicted they shall be punished as in other cases of conviction on impeachment.
§ 7. The Legislature shall by permanent laws provide such further regulations as may be necessary for the more orderly election of the President; not contravening the provisions herein contained.
§ 8. The President before he shall enter upon the execution of his office shall take an oath or affirmation, faithfully to execute the same, and to the utmost of his Judgment & power to protect the rights of the people, and preserve the Constitution inviolate. This oath or affirmation shall be administered by the President of the Senate for the time being in the presence of both Houses of the Legislature.
§ 9. The Senate and the Assembly shall always convene in Session on the day appointed for the meeting of the second electors and shall continue sitting till the President take the oath or affirmation of office. He shall hold his place during good behavior, removeable only by conviction upon impeachment for some crime or misdemeanor.
§ 10. The President at the beginning of every meeting of the Legislature as soon as they shall be ready to proceed to business, shall convene them together at the place where the Senate shall sit, and shall communicate to them all such matters as may be necessary for their information, or as may require their consideration. He may by message during the Session communicate all other matters which may appear to him proper. He may, whenever in his opinion the public business shall require it, convene the Senate and Assembly, or either of them, and may prorogue them for a time not exceeding forty days at one prorogation; and if they should disagree about their adjournment, he may adjourn them to such time as he shall think proper. He shall have a right to negative all bills, Resolutions or acts of the two Houses of the Legislature about to be passed into laws. He shall take care that the laws be faithfully executed. He shall be the commander in chief of the army and Navy of the United States and of the Militia within the several States, and shall have the direction of war when commenced, but he shall not take the actual command in the field of an army without the consent of the Senate and Assembly. All treaties, conventions and agreements with foreign nations shall be made by him, by and with the advice and consent of the Senate. He shall have the appointment of the Principal or Chief officer of each of the departments of war, naval Affairs, Finance and Foreign Affairs; and shall have the nomination; and by and with the consent of the Senate, the appointment of all other officers to be appointed under the authority of the United States, except such for whom different provision is made by this Constitution; and provided that this shall not be construed to prevent the Legislature, from appointing by name, in their laws, persons to special and particular trusts created in such laws; nor shall be construed to prevent principals in offices merely ministerial, from constituting deputies.--In the recess of the Senate he may fill vacancies in offices by appointments to continue in force until the end of the next Session of the Senate, and he shall commission all officers. He shall have power to pardon all offences except treason, for which he may grant reprieves, untill the opinion of the Senate & Assembly can be had, and with their concurrence may pardon the same.
§ 11. He shall receive a fixed compensation for his services to be paid to him at stated times, and not to be increased nor diminished during his continuance in office.
§ 12. If he depart out of the United States without the Consent of the Senate and Assembly, he shall thereby abdicate his office.
§ 13. He may be impeached for any crime or misdemeanor by the two Houses of the Legislature, two thirds of each House concurring, and if convicted shall be removed from office. He may be afterwards tried & punished in the ordinary course of law. His impeachment shall operate as a suspension from office until the determination thereof.
§ 14. The President of the Senate shall be vice President of the United States. On the death, resignation, impeachment, removal from office, or absence from the United States, of the President thereof, the Vice President shall exercise all the powers by this Constitution vested in the President, until another shall be appointed, or untill he shall return within the United States, if his absence was with the consent of the Senate and Assembly.
Article V
ARTICLE V
§ 1. There shall be a Chief Justice of the Supreme Court, who together with the other Judges thereof, shall hold the office during good behaviour, removable only by conviction on impeachment for some crime or misdemeanor. Each Judge shall have a competent salary to be paid to him at stated times, and not to be diminished during his continuance in office.
The Supreme Court shall have original jurisdiction in all causes in which the United States shall be a party, in all controversies between the United States, and a particular State, or between two or more States, except such as relate to a claim of territory between the United States, and one or more States, which shall be determined in the mode prescribed in the VI article; in all cases affecting foreign Ministers, Consuls and Agents; and an appellate jurisdiction both as to law and fact in all cases which shall concern the Citizens of foreign nations, in all questions between the Citizens of different States, and in all others in which the fundamental rights of this Constitution are involved, subject to such exceptions as are herein contained and to such regulations as the Legislature shall provide.
The Judges of all Courts which may be constituted by the Legislature shall also hold their places during good behaviour, removeable only by conviction on impeachment for some crime or misdemeanor, and shall have competent salaries to be paid at stated times and not to be diminished during their continuance in office; but nothing herein contained shall be construed to prevent the Legislature from abolishing such Courts themselves.
All crimes, except upon impeachment, shall be tried by a Jury of twelve men; and if they shall have been committed within any State, shall be tried within such State; and all civil causes arising under this constitution of the like kind with those which have been heretofore triable by Jury in the respective States, shall in like manner be tried by jury; unless in special cases the Legislature shall think proper to make different provision, to which provision the concurrence of two thirds of both Houses shall be necessary.
§ 2. Impeachments of the President and Vice President of the U. States, members of the Senate, the Governours and Presidents of the several States, the Principal or Chief Officers of the Departments enumerated in the 10 §. of the 4^{th} Article, Ambassadors and other like Public Ministers, the Judges of the Supreme Court, Generals, and Admirals of the Navy shall be tried by a Court to consist of the Judges of the Supreme Court, and the Chief Justice or first or Senior Judge of the superior Court of law in each State, of whom twelve shall constitute a Court. A majority of the Judges present may convict. All other persons shall be tried on impeachment by a court to consist of the Judges of the Supreme Court and six Senators drawn by lot, a majority of whom may convict.
Impeachments shall clearly specify the particular offence for which the party accused is to be tried, and judgment on conviction upon the trial thereof shall be either removal from office singly, or removal from office and disqualification for holding any future office or place of trust; but no Judgment on impeachment shall prevent prosecution and punishment in the ordinary course of law; provided that no Judge concerned in such conviction shall sit as Judge on the second trial. The Legislature may remove the disabilities incurred by conviction on impeachment.
Article Vi
ARTICLE VI
Controversies about the right of territory between the United States and particular States shall be determined by a Court to be constituted in manner following. The State or States claiming in opposition to the United States as parties shall nominate a number of persons, equal to double the number of the Judges of the Supreme Court for the time being, of whom none shall be citizens by birth of the States which are parties, nor inhabitants thereof when nominated, and of whom not more than two shall have their actual residence in one State. Out of the persons so nominated the Senate shall elect one half, who together with the Judges of the Supreme Court, shall form the Court. Two thirds of the whole number may hear and determine the controversy, by plurality of voices. The States concerned may at their option claim a decision by the Supreme Court only. All of the members of the Court hereby instituted shall, prior to the hearing of the Cause take an oath impartially and according to the best of their judgments and consciences, to hear and determine the controversy.
Article Vii
ARTICLE VII
§ 1. The Legislature of the United States shall have power to pass all laws which they shall judge necessary to the common defence and general welfare of the Union: But no Bill, Resolution, or act of the Senate and assembly shall have the force of a law until it shall have received the assent of the President, or of the vice-President when exercising the powers of the President; and if such assent shall not have been given within ten days, after such bill, resolution or other act shall have been presented to him for that purpose, the same shall not be a law. No bill, resolution or other act not assented to shall be revived in the same Session of the Legislature. The mode of signifying such assent, shall be by signing the bill act of [r] resolution, and returning it so signed to either House of the Legislature.
§ 2. The enacting stile of all laws shall be "Be it enacted by the people of the United States of America."
§ 3. No bill of attainder shall be passed, nor any ex post facto law; nor shall any title of nobility be granted by the United States, or by either of them; nor shall any person holding an office or place of trust under the United States without the permission of the Legislature accept any present, emolument office or title from a foreign prince or State. Nor shall any Religious Sect, or denomination, or religious test for any office or place, be ever established by law.
§ 4. Taxes on lands, houses and other real estate, and capitation taxes shall be proportioned in each State by the whole number of free persons, except Indians not taxed, and by three fifths of all other persons.
§ 5. The two Houses of the Legislature may by joint ballot appoint a Treasurer of the United States. Neither House in the Session of both Houses, without the consent of the other shall adjourn for more than three days at a time. The Senators and Representatives, in attending, going to and coming from the Session of their respective houses shall be privileged from arrest, except for crimes and breaches of the peace. The place of meeting shall always be at the seat of Government which shall be fixed by law.
§ 6. The laws of the United States, and the treaties which have been made under the articles of the confederation, and which shall be made under this Constitution shall be the supreme law of the Land, and shall be so construed by the Courts of the several States.
§ 7. The Legislature shall convene at least once in each year, which unless otherwise provided for by law, shall be on the first Monday in December.
§ 8. The members of the two Houses of the Legislature shall receive a reasonable compensation for their services, to be paid out of the Treasury of the United States and ascertained by law. The law for making such provision shall be passed with the concurrence of the first Assembly and shall extend to succeeding Assemblies; and no succeeding assembly shall concur in an alteration of such provision, so as to increase its own compensation; but there shall be always a law in existence for making such provision.
Article Viii
ARTICLE VIII
§ 1. The Governour or President of each State shall be appointed under the authority of the United States, and shall have a right to negative all laws about to be passed in the State of which he shall be Governour or President, subject to such qualifications and regulations, as the Legislature of the United States shall prescribe. He shall in other respects have the same powers only which the Constitution of the State does or shall allow to its Governour or President, except as to the appointment of Officers of the Militia.
§ 2. Each Governour or President of a State shall hold his office until a successor be actually appointed, unless he die, or resign or be removed from office by conviction on impeachment. There shall be no appointment of such Governor or President in the Recess of the Senate.
The Governours and Presidents of the several States at the time of the ratification of this Constitution shall continue in office in the same manner and with the same powers as if they had been appointed pursuant to the first section of this article.
The officers of the Militia in the several States may be appointed under the authority of the U. States; the Legislature whereof may authorize the Governors or Presidents of States to make such appointments with such restrictions as they shall think proper.
Article Ix
ARTICLE IX
§ 1. No person shall be eligible to the office of President of the United States unless he be now a Citizen of one of the States, or hereafter be born a Citizen of the United States.
§ 2. No person shall be eligible as a Senator or Representative unless at the time of his election he be a Citizen and inhabitant of the State in which he is chosen; provided that he shall not be deemed to be disqualified by a temporary absence from the State.
§ 3. No person entitled by this Constitution to elect or to be elected President of the United States, or a Senator or Representative in the Legislature thereof, shall be disqualified but by the conviction of some offence for which the law shall have previously ordained the punishment of disqualification. But the Legislature may by law provide that persons holding offices under the United States or either of them shall not be eligible to a place in the Assembly or Senate, and shall be during their continuance in office suspended from sitting in the Senate.
§ 4. No person having an office or place of trust under the United States shall without permission of the Legislature accept any present emolument office or title from any foreign Prince or State.
§ 5. The Citizens of each State shall be entitled to the rights privileges and immunities of Citizens in every other State; and full faith and credit shall be given in each State to the public acts, records and judicial proceedings of another.
§ 6. Fugitives from justice from one State who shall be found in another shall be delivered up on the application of the State from which they fled.
§ 7. No new State shall be erected within the limits of another, or by the junction of two or more States, without the concurrent consent of the Legislatures of the United States and of the States concerned. The Legislature of the United States may admit new States into the Union.
§ 8. The United States are hereby declared to be bound to guarantee to each State a Republican form of Government, and to protect each State as well against domestic violence as foreign invasion.
§ 9. All Treaties, Contracts and engagements of the United States of America under the articles of Confederation and perpetual Union, shall have equal validity under this Constitution.
§ 10. No State shall enter into a Treaty, Alliance, or contract with another, or with a foreign power without the consent of the United States.
§ 11. The members of the Legislature of the United States and of each State, and all officers Executive & Judicial of the one and of the other shall take an oath or affirmation to support the Constitution of the United States.
§ 12. This Constitution may receive such alterations and amendments as may be proposed by the Legislature of the United States, with the concurrence of two thirds of the members of both Houses, and ratified by the Legislatures of, or by Conventions of deputies chosen by the people in, two thirds of the States composing the Union.
Article X
ARTICLE X
This Constitution shall be submitted to the consideration of Conventions in the several States, the members whereof shall be chosen by the people of such States respectively under the direction of their respective Legislatures. Each Convention which shall ratify the same, shall appoint the first representatives and Senators from such State according to the rule prescribed in the ---- § of the ---- article. The representatives so appointed shall continue in office for one year only. Each Convention so ratifying shall give notice thereof to the Congress of the United States, transmitting at the same time a list of the Representatives and Senators chosen. When the Constitution shall have been duly ratified, Congress shall give notice of a day and place for the meeting of the Senators and Representatives from the several States; and when these or a majority of them shall have assembled according to such notice, they shall by joint ballot, by plurality of votes, elect a President of the United States; and the Constitution thus organized shall be carried into effect.--_Mad. MSS._
"Col: Hamilton did not propose in the Convention any plan of a Constitution. He had sketched an outline which he read as part of a speech; observing that he did not mean it as a proposition, but only to give a more correct view of his ideas.
"Mr. Patterson regularly proposed a plan which was discussed & voted on."--Madison to John Quincy Adams, Montpellier, Nov. 2, 1818, _Dept. of State MSS._, Miscellaneous Letters.
Committee rose & the House Adjourned.
TUESDAY JUNE 19^{TH} IN COMMITTEE OF WHOLE ON THE PROPOSITIONS OF M^R PATTERSON,--[90]
[90] This was the last session of the Convention in Committee of the Whole.
The substitute offered yesterday by M^r Dickenson being rejected by a vote now taken on it; Con. N. Y. N. J. Del. ay. Mass. P^a V. N. C. S. C. Geo. no. Mary^d divided M^r Patterson's plan was again at large before the Committee.
M^r Madison. Much stress has been laid by some gentlemen on the want of power in the Convention to propose any other than a _federal_ plan. To what had been answered by others, he would only add, that neither of the characteristics attached to a _federal_ plan would support this objection. One characteristic, was that in a _federal_ Government, the power was exercised not on the people individually; but on the people _collectively_, on the _States_. Yet in some instances as in piracies, captures &c. the existing Confederacy, and in many instances the amendments to it proposed by M^r Patterson, must operate immediately on individuals. The other characteristic was, that a _federal_ Gov^t derived its appointments not immediately from the people, but from the States which they respectively composed. Here too were facts on the other side. In two of the States, Connect^t & Rh. Island, the delegates to Cong^s were chosen, not by the Legislatures, but by the people at large; and the plan of M^r P. intended no change in this particular.
It had been alledged (by M^r Patterson), that the Confederation having been formed by unanimous consent, could be dissolved by unanimous Consent only. Does this doctrine result from the nature of compacts? does it arise from any particular stipulation in the articles of Confederation? If we consider the federal Union as analagous to the fundamental compact by which individuals compose one Society, and which must in its theoretic origin at least, have been the unanimous act of the component members, it cannot be said that no dissolution of the compact can be effected without unanimous consent. A breach of the fundamental principles of the compact by a part of the Society would certainly absolve the other part from their obligations to it. If the breach of _any_ article by _any_ of the parties, does not set the others at liberty, it is because, the contrary is _implied_ in the compact itself, and particularly by that law of it, which gives an indefinite authority to the majority to bind the whole in all cases. This latter circumstance shews that we are not to consider the federal Union as analagous to the social compact of individuals: for if it were so, a Majority would have a right to bind the rest, and even to form a new Constitution for the whole, which the Gentl^n from N. Jersey would be among the last to admit. If we consider the federal Union as analagous not to the Social compacts among individual men: but to the conventions among individual States, What is the doctrine resulting from these conventions? Clearly, according to the Expositors of the law of Nations, that a breach of any one article by any one party, leaves all the other parties at liberty, to consider the whole convention as dissolved, unless they choose rather to compel the delinquent party to repair the breach. In some treaties indeed it is expressly stipulated that a violation of particular articles shall not have this consequence, and even that particular articles shall remain in force during war, which in general is understood to dissolve all subsisting Treaties. But are there any exceptions of this sort to the Articles of Confederation? So far from it that there is not even an express stipulation that force shall be used to compell an offending member of the Union to discharge its duty. He observed that the violations of the federal articles had been numerous & notorious. Among the most notorious was an act of N. Jersey herself; by which she _expressly refused_ to comply with a Constitutional requisition of Cong^s and yielded no farther to the expostulations of their deputies, than barely to rescind her vote of refusal without passing any positive act of compliance. He did not wish to draw any rigid inferences from these observations. He thought it proper however that the true nature of the existing confederacy should be investigated, and he was not anxious to strengthen the foundations on which it now stands.
Proceeding to the consideration of M^r Patterson's plan, he stated the object of a proper plan to be twofold. 1. to preserve the Union. 2. to provide a Governm^t that will remedy the evils felt by the States both in their united and individual capacities. Examine M^r P'^s plan, & say whether it promises satisfaction in these respects.
1. Will it prevent the violations of the law of nations & of Treaties which if not prevented must involve us in the calamities of foreign wars? The tendency of the States to these violations has been manifested in sundry instances. The files of Cong^s contain complaints already, from almost every Nation with which treaties have been formed. Hitherto indulgence has been shewn to us. This cannot be the permanent disposition of foreign nations. A rupture with other powers is among the greatest of national calamities. It ought therefore to be effectually provided that no part of a nation shall have it in its power to bring them on the whole. The existing Confederacy does not sufficiently provide against this evil. The proposed amendment to it does not supply the omission. It leaves the will of the States as uncontrouled as ever.
2. Will it prevent encroachments on the federal authority? A tendency to such encroachments has been sufficiently exemplified, among ourselves, as well as in every other confederated republic antient and modern. By the federal articles, transactions with the Indians appertain to Cong^s. Yet in several instances, the States have entered into treaties & wars with them. In like manner no two or more States can form among themselves any treaties &c. without the consent of Cong^s. Yet Virg^a & Mary^d in one instance--Pen^a & N. Jersey in another, have entered into compacts, without previous application or subsequent apology. No State again can of right raise troops in time of peace without the like consent. Of all cases of the league, this seems to require the most scrupulous observance. Has not Mass^{ts}, notwithstanding, the most powerful member of the Union, already raised a body of troops? Is she not now augmenting them, without having even deigned to apprise Cong^s of Her intention? In fine--Have we not seen the public land dealt out to Con^t to bribe her acquiescence in the decree constitutionally awarded ag^{st} her claim on the territory of Pen^a: for no other possible motive can account for the policy of Cong^s in that measure?--If we recur to the examples of other confederacies, we shall find in all of them the same tendency of the parts to encroach on the authority of the whole. He then reviewed the Amphyctionic & Achæan confederacies among the antients, and the Helvetic, Germanic & Belgic among the moderns, tracing their analogy to the U. States in the constitution and extent of their federal authorities--in the tendency of the particular members to usurp on these authorities, and to bring confusion & ruin on the whole.--He observed that the plan of Mr. Pat[er]son, besides omitting a controul over the States as a general defence of the federal prerogatives was particularly defective in two of its provisions. 1. Its ratification was not to be by the people at large, but by the _legislatures_. It could not therefore render the acts of Cong^s in pursuance of their powers, even legally _paramount_ to the acts of the States. 2. It gave to the federal Tribunal an appellate jurisdiction only--even in the criminal cases enumerated. The necessity of any such provision supposed a danger of undue acquittals in the State tribunals, of what avail c^d an appellate tribunal be, after an acquittal? Besides in most if not all of the States, the Executives have by their respective _Constitutions_, the right of pard^g. How could this be taken from them by a _legislative_ ratification only?
3. Will it prevent trespasses of the States on each other? Of these enough has been already seen. He instanced Acts of Virg^a & Maryland which gave a preference to their own Citizens in cases where the Citizens of other States are entitled to equality of privileges by the Articles of Confederation. He considered the emissions of paper money & other kindred measures as also aggressions. The States relatively to one another being each of them either Debtor or Creditor; The creditor States must suffer unjustly from every emission by the debtor States. We have seen retaliating Acts on the subject which threatened danger not to the harmony only, but the tranquillity of the Union. The plan of M^r Paterson, not giving even a negative on the Acts of the States, left them as much at liberty as ever to execute their unrighteous projects ag^{st} each other.
4. Will it secure the internal tranquillity of the States themselves? The insurrections in Mass^{ts} admonished all the States of the danger to which they were exposed. Yet the plan of M^r P. contained no provisions for supplying the defect of the Confederation on this point. According to the Republican theory indeed, Right & power being both vested in the majority, are held to be synonymous. According to fact & experience, a minority may in an appeal to force be an overmatch for the majority. 1. If the minority happen to include all such as possess the skill & habits of military life, with such as possess the great pecuniary resources, one third may conquer the remaining two thirds. 2. one third of those who participate in the choice of rulers may be rendered a majority by the accession of those whose poverty disqualifies them from a suffrage, & who for obvious reasons may be more ready to join the standard of sedition than that of established Government. 3. where slavery exists, the Republican Theory becomes still more fallacious.
5. Will it secure a good internal legislation & administration to the particular States? In developing the evils which vitiate the political system of the U. S. it is proper to take into view those which prevail within the States individually as well as those which affect them collectively: Since the former indirectly affect the whole; and there is great reason to believe that the pressure of them had a full share in the motives which produced the present Convention. Under this head he enumerated and animadverted on 1. the multiplicity of the laws passed by the several States. 2. the mutability of their laws. 3. the injustice of them. 4. the impotence of them: observing that M^r Patterson's plan contained no remedy for this dreadful class of evils, and could not therefore be received as an adequate provision for the exigencies of the Community.
6. Will it secure the Union ag^{st} the influence of foreign powers over its members. He pretended not to say that any such influence had yet been tried: but it was naturally to be expected that occasions would produce it. As lessons which claimed particular attention, he cited the intrigues practised among the Amphyctionic Confederates first by the Kings of Persia, and afterwards fatally by Philip of Macedon: Among the Achæans, first by Macedon & afterwards no less fatally by Rome: among the Swiss by Austria, France & the lesser neighbouring powers: among the members of the Germanic Body by France, England, Spain & Russia--And in the Belgic Republic, by all the great neighbouring powers. The plan of M^r Patterson, not giving to the general Councils any negative on the will of the particular States, left the door open for the like pernicious Machinations among ourselves.
7. He begged the smaller States which were most attached to M^r Patterson's plan to consider the situation in which it would leave them. In the first place they would continue to bear the whole expence of maintaining their Delegates in Congress. It ought not to be said that if they were willing to bear this burthen, no others had a right to complain. As far as it led the small States to forbear keeping up a representation, by which the public business was delayed, it was evidently a matter of common concern. An examination of the minutes of Congress would satisfy every one that the public business had been frequently delayed by this cause; and that the States most frequently unrepresented in Cong^s were not the larger States. He reminded the Convention of another consequence of leaving on a small State the burden of maintaining a Representation in Cong^s. During a considerable period of the War, one of the Representatives of Delaware, in whom alone before the signing of the Confederation the entire vote of that State and after that event one half of its vote, frequently resided, was a Citizen & Resident of Pen^a and held an office in his own State incompatible with an appointment from it to Cong^s. During another period, the same State was represented by three delegates two of whom were citizens of Penn^a and the third a Citizen of New Jersey. These expedients must have been intended to avoid the burden of supporting Delegates from their own State. But whatever might have been y^e cause, was not in effect the vote of one State doubled, and the influence of another increased by it? In the 2^d place the coercion, on which the efficacy of the plan depends, can never be exerted but on themselves. The larger States will be impregnable, the smaller only can feel the vengeance of it. He illustrated the position by the history of the Amphyctionic confederates: and the ban of the German Empire. It was the cobweb w^{ch} could entangle the weak, but would be the sport of the strong.
8. He begged them to consider the situation in which they would remain in case their pertinacious adherence to an inadmissible plan, should prevent the adoption of any plan. The contemplation of such an event was painful; but it would be prudent to submit to the task of examining it at a distance, that the means of escaping it might be the more readily embraced. Let the Union of the States be dissolved, and one of two consequences must happen. Either the States must remain individually independent & sovereign; or two or more Confederacies must be formed among them. In the first event would the small States be more secure ag^{st} the ambition & power of their larger neighbours, than they would be under a General Government pervading with equal energy every part of the Empire, and having an equal interest in protecting every part ag^{st} every other part? In the second, can the smaller expect that their larger neighbours would confederate with them on the principle of the present Confederacy, which gives to each member, an equal suffrage; or that they would exact less severe concessions from the smaller States, than are proposed in the scheme of M^r Randolph?
The great difficulty lies in the affair of Representation; and if this could be adjusted, all others would be surmountable. It was admitted by both the gentlemen from N. Jersey, (M^r Brearly and M^r Patterson) that it would not be _just to allow Virg^a_ which was 16 times as large as Delaware an equal vote only. Their language was that it would not be _safe for Delaware_ to allow Virg^a 16 times as many votes. The expedient proposed by them was that all the States should be thrown into one mass and a new partition be made into 13 equal parts. Would such a scheme be practicable? The dissimilarities existing in the rules of property, as well as in the manners, habits and prejudices of the different States, amounted to a prohibition of the attempt. It had been found impossible for the power of one of the most absolute princes in Europe (K. of France) directed by the wisdom of one of the most enlightened and patriotic Ministers (M^r Neckar) that any age has produced, to equalize in some points only the different usages & regulations of the different provinces. But admitting a general amalgamation and repartition of the States to be practicable, and the danger apprehended by the smaller States from a proportional representation to be real; would not a particular and voluntary coalition of these with their neighbours, be less inconvenient to the whole community, and equally effectual for their own safety. If N. Jersey or Delaware conceived that an advantage would accrue to them from an equalization of the States, in which case they would necessarily form a junction with their neighbours, why might not this end be attained by leaving them at liberty by the Constitution to form such a junction whenever they pleased? And why should they wish to obtrude a like arrangement on all the States, when it was, to say the least, extremely difficult, would be obnoxious to many of the States, and when neither the inconveniency, nor the benefit of the expedient to themselves, would be lessened by confining it to themselves.--The prospect of many new States to the Westward was another consideration of importance. If they should come into the Union at all, they would come when they contained but few inhabitants. If they sh^d be entitled to vote according to their proportions of inhabitants, all would be right & safe. Let them have an equal vote, and a more objectionable minority than ever might give law to the whole.[91]
[91] "Mr. Dickinson supposed that there were good regulations in both. Let us therefore contrast the one with the other, and consolidate such parts of them as the committee approve."--Yates, _Secret Proceedings_, etc., 140.
On a question for postponing generally the 1^{st} proposition of M^r Patterson's plan, it was agreed to: N. Y. & N. J. only being no.
On the question moved by M^r King whether the Co[~m]itee should rise & M^r Randolph's proposition be reported without alteration, which was in fact a question whether M^r R's should be adhered to as preferable to those of M^r Patterson;
Mass^{ts} ay. Con^t ay. N. Y. no. N. J. no. P^a ay. Del. no. M^d div^d. V^a ay. N. C. ay. S. C. ay. Geo. ay.
Copy of the Resol^{ns} of Mr. R. as altered in Com^e and reported to the House.
(Of M^r Randolph's plan as reported from the Co[~m]ittee)--the 1. propos: "that a Nat^l Gov^t ought to be established consisting &c." being taken up in the House.
M^r Wilson observed that by a Nat^l Gov^t he did not mean one that would swallow up the State Gov^{ts} as seemed to be wished by some gentlemen. He was tenacious of the idea of preserving the latter. He thought, contrary to the opinion of (Col. Hamilton) that they might not only subsist but subsist on friendly terms with the former. They were absolutely necessary for certain purposes which the former could not reach. All large Governments must be subdivided into lesser jurisdictions. As Examples he mentioned Persia, Rome, and particularly the divisions & subdivisions of England by Alfred.
Col. Hamilton coincided with the proposition as it stood in the Report. He had not been understood yesterday. By an abolition of the States, he meant that no boundary could be drawn between the National & State Legislatures; that the former must therefore have indefinite authority. If it were limited at all, the rivalship of the States would gradually subvert it. Even as Corporations the extent of some of them as V^a Mass^{ts} &c. would be formidable. _As States_, he thought they ought to be abolished. But he admitted the necessity of leaving in them, subordinate jurisdictions. The examples of Persia & the Roman Empire, cited by (M^r Wilson) were he thought in favor of his doctrine: the great powers delegated to the Satraps & proconsuls having frequently produced revolts, and schemes of independence.
M^r King wished as every thing depended on this proposition, that no objections might be improperly indulged ag^{st} the phraseology of it. He conceived that the import of the term "States" "Sovereignty" "_national_" "federal," had been often used & applied in the discussions inaccurately & delusively. The States were not "Sovereigns" in the sense contended for by some. They did not possess the peculiar features of sovereignty, they could not make war, nor peace, nor alliances nor treaties. Considering them as political Beings, they were dumb, for they could not speak to any for[~e]gn Sovereign whatever. They were deaf, for they could not hear any propositions from such Sovereign. They had not even the organs or faculties of defence or offence, for they could not of themselves raise troops, or equip vessels, for war. On the other side, if the Union of the States comprises the idea of a confederation, it comprises that also of consolidation. A Union of the States is a Union of the men composing them, from whence a _national_ character results to the whole. Cong^s can act alone without the States--they can act & their acts will be binding ag^{st} the Instructions of the States. If they declare war: war is de jure declared--captures made in pursuance of it are lawful--no Acts of the States can vary the situation, or prevent the judicial consequences. If the States therefore retained some portion of their sovereignty, they had certainly divested themselves of essential portions of it. If they formed a confederacy in some respects--they formed a Nation in others. The Convention could clearly deliberate on & propose any alterations that Cong^s could have done under y^e federal articles, and Could not Cong^s propose by virtue of the last article, a change in any article whatever; and as well that relating to the equality of suffrage, as any other. He made these remarks to obviate some scruples which had been expressed. He doubted much the practicability of annihilating the States; but thought that much of their power ought to be taken from them.[92]
[92] King, in his notes, gives a résumé of his speech. It illustrates the accuracy of Madison's reporting:
"Answer (R. King) The States under the confed. are not sovereign States they can do no act but such as are of a subordinate nature or such as terminate in themselves--and even these are restrained--coinage, P. office &c. they are wholly incompetent to the exercise of any of the gt. & distinguishing acts of sovereignty--They can neither make nor receive (embassies) to or from any other sovereign--they have not the powers of injuring another or of defending themselves from an Injury offered from one another--they are deaf, dumb and impotent--these Faculties are yielded up and the U. S. in C. Assd. hold and possess them, and they alone can exercise them--they are so far out of the controul of the separate States yt. if every State in the Union was to instruct yr. Deleg., and those Delegates within ye powers of the Arts. of Union shd. do an act in violation of their Instructions it wd. nevertheless be valid. If they declared a war, any giving aid or comfort to the enemy wd. be Treason; if peace, any capture on the high seas wd. be piracy. This remark proves yt. the States are now subordinate corporations or societies and not sovereigns--these imperfect States are the confederates and they are the electors of the magistrates who exercise the national sovereignty. The Articles of Confedr. and perpetual Union, are partly federal & partly of the nature of a constitution or form of Govt. arising from and applying to the Citizens of the U. S. & not from the individual States.
"The only criterion of determining what is federal & what is national is this, those acts which are for the government of the States only are purely federal, those which are for the government of the Citizens of the individual States are national and not federal.
"If then the articles of Confedr. & perpetual union have this twofold capacity, and if they provide for an alteration in a certain mode, why may not they be so altered as that the federal article may be changed to a national one, and the national to a federal? I see no argument that can be objected to the authority. The 5th article regulates the influence of the several States and makes them equal--does not the confed. authorize this alteration, that instead of this Equality, one state may have double the Influence of another--I conceive it does--and so of every Article except that wh. destroys the Idea of a confedy. I think it may be proved that every article may be totally altered provided you have one guarantying to each State the right of regulating its private & internal affairs in the manner of a subordinate corporation.
"But admitting that the Arts, of Confed. & perpet. Union, or the powers of the Legis. did not extend to the proposed Reform; yet the public Deputations & the public Danger require it--the system proposed to be adopted is no scheme of a day, calculated to postpone the hour of Danger, & thus leave it to fall with double ruin on our successors--It is no crude and undigested plan; the child of narrow and unextensive views, brought forward under the Auspices of Cowardice & Irresolution--It is a measure of Decision, it is the foundation of Freedom & of national Glory. It will draw on itself and be able to support the severest scrutiny & Examination. It is no idle experiment, no romantic speculation--the measure forces itself upon wise men, and if they have not firmness to look it in the face and protect it--Farewell to the Freedom of our Government--our military glory will be tarnished and our boasts of Freedom will be the scorn of the Enemies of Liberty."--_Life and Correspondence of Rufus King_, i., 602, n.
M^r Martin.[93] said he considered that the separation from G. B. placed the 13 States in a state of Nature towards each other; that they would have remained in that state till this time, but for the confederation; that they entered into the Confederation on the footing of equality; that they met now to amend it on the same footing; and that he could never accede to a plan that would introduce an inequality and lay 10 States at the mercy of V^a Mass^{ts} and Penn^a.
[93] "Mr. Martin was educated for the Bar, and is Attorney general for the State of Maryland. This Gentleman possesses a good deal of information, but he has a very bad delivery, and so extremely prolix, that he never speaks without tiring the patience of all who hear him. He is about 34 years of age."--Pierce's Notes, _Am. Hist. Rev._, iii., 330.
M^r Wilson, could not admit the doctrine that when the Colonies became independent of G. Britain, they became independent also of each other. He read the declaration of Independence, observing thereon that the _United Colonies_ were declared to be free & independent States; and inferring that they were independent, not _individually_ but _Unitedly_ and that they were confederated as they were independent, States.
Col. Hamilton assented to the doctrine of M^r Wilson. He denied the doctrine that the States were thrown into a State of Nature. He was not yet prepared to admit the doctrine that the Confederacy, could be dissolved by partial infractions of it. He admitted that the States met now on an equal footing but could see no inference from that against concerting a change of the system in this particular. He took this occasion of observing for the purpose of appeasing the fears of the small States, that two circumstances would render them secure under a National Gov^t in which they might lose the equality of rank they now held: one was the local situation of the 3 largest States Virg^a Mass^{ts} & P^a. They were separated from each other by distance of place, and equally so, by all the peculiarities which distinguish the interests of one State from those of another. No combination therefore could be dreaded. In the second place, as there was a gradation in the States from V^a the largest down to Delaware the smallest, it would always happen that ambitious combinations among a few States might & w^d be counteracted by defensive combinations of greater extent among the rest. No combination has been seen among the large Counties merely as such, ag^{st} lesser Counties. The more close the Union of the States, and the more compleat the authority of the whole: the less opportunity will be allowed to the stronger States to injure the weaker.
Adj^d.
WEDNESDAY JUNE 20. 1897. IN CONVENTION.
M^r William Blount from N. Carolina took his seat.
1^{st} propos: of the Report of Com^e of the whole, before the House.
M^r Elseworth 2^{ded} by M^r Gorham, moves to alter it so as to run "that the Government of the United States ought to consist of a supreme legislative, Executive and Judiciary." This alteration he said would drop the word _national_, and retain the proper title "the United States." He could not admit the doctrine that a breach of any of the federal articles could dissolve the whole. It would be highly dangerous not to consider the Confederation as still subsisting. He wished also the plan of the Convention to go forth as an amendment of the articles of the Confederation, since under this idea the authority of the Legislatures could ratify it. If they are unwilling, the people will be so too. If the plan goes forth to the people for ratification several succeeding Conventions within the States would be unavoidable. He did not like these conventions. They were better fitted to pull down than to build up Constitutions.
M^r Randolph. did not object to the change of expression, but apprised the gentleman who wished for it that he did not admit it for the reasons assigned; particularly that of getting rid of a reference to the people for ratification. The motion of M^r Elsew^{th} was acquiesced in nem: con:
The 2^d Resol: "that the National Legislature ought to consist of two branches" taken up, the word "national" struck out as of course.
_M^r Lansing._ observed that the true question here was, whether the Convention would adhere to or depart from the foundation of the present Confederacy; and moved instead of the 2^d Resolution, "that the powers of Legislation be vested in the U. States in Congress." He had already assigned two reasons ag^{st} such an innovation as was proposed: 1. the want of competent powers in the Convention.--2. the state of the public mind. It had been observed by (M^r Madison) in discussing the first point, that in two States the Delegates to Cong^s were chosen by the people. Notwithstanding the first appearance of this remark, it had in fact no weight, as the Delegates however chosen, did not represent the people merely as so many individuals; but as forming a Sovereign State. (Mr. Randolph) put it, he said, on its true footing namely that the public safety superseded the scruple arising from the review of our powers. But in order to feel the force of this consideration, the same impression must be had of the public danger. He had not himself the same impression, and could not therefore dismiss his scruple. (M^r Wilson) contended that as the Convention were only to recommend, they might recommend what they pleased. He differed much from him. Any act whatever of so respectable a body must have a great effect, and if it does not succeed, will be a source of great dissentions. He admitted that there was no certain criterion of the Public mind on the subject. He therefore recurred to the evidence of it given by the opposition in the States to the scheme of an Impost. It could not be expected that those possessing Sovereignty could ever voluntarily part with it. It was not to be expected from any one State, much less from thirteen. He proceeded to make some observations on the plan itself and the argum^{ts} urged in support of it. The point of Representation could receive no elucidation from the case of England. The corruption of the boroughs did not proceed from their comparative smallness; but from the actual fewness of the inhabitants, some of them not having more than one or two. A great inequality existed in the Counties of England. Yet the like complaint of peculiar corruption in the small ones had not been made. It had been said that Congress represent the State Prejudices: will not any other body whether chosen by the Legislatures or people of the States, also represent their prejudices? It had been asserted by his colleague (Col. Hamilton) that there was no coincidence of interests among the large States that ought to excite fears of oppression in the smaller. If it were true that such a uniformity of interests existed among the States, there was equal safety for all of them, whether the representation remained as heretofore, or were proportioned as now proposed. It is proposed that the Gen^l Legislature shall have a negative on the laws of the States. Is it conceivable that there will be leisure for such a task? There will on the most moderate calculation, be as many Acts sent up from the States as there are days in the year. Will the members of the General Legislature be competent Judges? Will a gentleman from Georgia be a judge of the expediency of a law which is to operate in N. Hampshire. Such a Negative would be more injurious than that of Great Britain heretofore was. It is said that the National Gov^t must have the influence arising from the grant of offices and honors. In order to render such a Government effectual he believed such an influence to be necessary. But if the States will not agree to it, it is in vain, worse than in vain to make the proposition. If this influence is to be attained, the States must be entirely abolished. Will any one say this would ever be agreed to? He doubted whether any Gen^l Government equally beneficial to all can be attained. That now under consideration he is sure, must be utterly unattainable. He had another objection. The system was too novel & complex. No man could foresee what its operation will be either with respect to the Gen^l Gov^t or the State Gov^{ts}. One or other it has been surmised must absorb the whole.
Col. Mason. did not expect this point would have been reagitated. The essential differences between the two plans, had been clearly stated. The principal objections ag^{st} that of M^r R. were the _want of power_ & the _want of practicability_. There can be no weight in the first as the fiat is not to be _here_, but in the people. He thought with his colleague M^r R. that there were besides certain crisises, in which all the ordinary cautions yielded to public necessity. He gave as an example, the eventual Treaty with G. B. in forming which the Co[~m]^{srs} of the U. S. had boldly disregarded the improvident shackles of Cong^s had given to their Country an honorable & happy peace, and instead of being censured for the transgression of their powers, had raised to themselves a monument more durable than brass. The _impracticability_ of gaining the public concurrence he thought was still more groundless. (M^r Lansing) had cited the attempts of Congress to gain an enlargement of their powers, and had inferred from the miscarriage of these attempts, the hopelessness of the plan which he (M^r L) opposed. He thought a very different inference ought to have been drawn; viz that the plan which (M^r L) espoused, and which proposed to augment the powers of Congress, never could be expected to succeed. He meant not to throw any reflections on Cong^s as a body, much less on any particular members of it. He meant however to speak his sentiments without reserve on this subject; it was a privilege of age, and perhaps the only compensation which nature had given for, the privation of so many other enjoyments: and he should not scruple to exercise it freely. Is it to be thought that the people of America, so watchful over their interests; so jealous of their liberties, will give up their all, will surrender both the sword and the purse, to the same body, and that too not chosen immediately by themselves? They never will. They never ought. Will they trust such a body, with the regulation of their trade, with the regulation of their taxes; with all the other great powers, which are in contemplation? Will they give unbounded confidence to a secret Journal--to the intrigues--to the factions which in the nature of things appertain to such an Assembly? If any man doubts the existence of these characters of Congress, let him consult their Journals for the years 78, 79, & 80.--It will be said, that if the people are averse to parting with power, why is it hoped that they will part with it to a National Legislature. The proper answer is that in this case they do not part with power: they only transfer it from one sett of immediate Representatives to another sett.--Much has been said of the unsettled state of the mind of the people, he believed the mind of the people of America, as elsewhere, was unsettled as to some points; but settled as to others. In two points he was sure it was well settled. 1. in an attachment to Republican Government. 2. in an attachment to more than one branch in the Legislature. Their constitutions accord so generally in both these circumstances, that they seem almost to have been preconcerted. This must either have been a miracle, or have resulted from the genius of the people. The only exceptions to the establishm^t of two branches in the Legislatures are the State of P^a & Cong^s and the latter the only single one not chosen by the people themselves. What has been the consequence? The people have been constantly averse to giving that Body further powers--It was acknowledged by (M^r Patterson) that his plan could not be enforced without military coercion. Does he consider the force of this concession. The most jarring elements of Nature; fire & water themselves are not more incompatible that[n] such a mixture of civil liberty and military execution. Will the militia march from one State to another, in order to collect the arrears of taxes from the delinquent members of the Republic? Will they maintain an army for this purpose? Will not the Citizens of the invaded State assist one another till they rise as one Man, and shake off the Union altogether. Rebellion is the only case, in which the military force of the State can be properly exerted ag^{st} its Citizens. In one point of view he was struck with horror at the prospect of recurring to this expedient. To punish the non-payment of taxes with death, was a severity not yet adopted by despotism itself: yet this unexampled cruelty would be mercy compared to a military collection of revenue, in which the bayonet could make no discrimination between the innocent and the guilty. He took this occasion to repeat, that notwithstanding his solicitude to establish a national Government, he never would agree to abolish the State Gov^{ts} or render them absolutely insignificant. They were as necessary as the Gen^l Gov^t and he would be equally careful to preserve them. He was aware of the difficulty of drawing the line between them, but hoped it was not insurmountable. The Convention, tho' comprising so many distinguished characters, could not be expected to make a faultless Gov^t. And he would prefer trusting to Posterity the amendment of its defects, rather than to push the experiment too far.
M^r Luther Martin agreed with (Col Mason) as to the importance of the State Gov^{ts} he would support them at the expence of the Gen^l Gov^t which was instituted for the purpose of that support. He saw no necessity for two branches, and if it existed Congress might be organized into two. He considered Cong^s as representing the people, being chosen by the Legislatures who were chosen by the people. At any rate, Congress represented the Legislatures; and it was the Legislatures not the people who refused to enlarge their powers. Nor could the rule of voting have been the ground of objection, otherwise ten of the States must always have been ready, to place further confidence in Cong^s. The causes of repugnance must therefore be looked for elsewhere.--At the separation from the British Empire, the people of America preferred the establishment of themselves into thirteen separate sovereignties instead of incorporating themselves into one: to these they look up for the security of their lives, liberties & properties: to these they must look up. The federal Gov^t they formed, to defend the whole ag^{st} foreign nations, in case of war, and to defend the lesser States ag^{st} the ambition of the larger: they are afraid of granting power unnecessarily, lest they should defeat the original end of the Union; lest the powers should prove dangerous to the sovereignties of the particular States which the Union was meant to support; and expose the lesser to being swallowed up by the larger. He conceived also that the people of the States having already vested their powers in their respective Legislatures, could not resume them without a dissolution of their Governments. He was ag^{st} Conventions in the States: was not ag^{st} assisting States ag^{st} rebellious subjects; thought the _federal_ plan of M^r Patterson did not require coercion more than the _National one_, as the latter must depend for the deficiency of its revenues on requisitions & quotas, and that a national Judiciary extended into the States would be ineffectual, and would be viewed with a jealousy inconsistent with its usefulness.
M^r Sherman 2^{ded} & supported M^r Lansings motion. He admitted two branches to be necessary in the State Legislatures, but saw no necessity for them in a Confederacy of States. The examples were all, of a single Council. Cong^s carried us thro' the war, and perhaps as well as any Gov^t could have done. The complaints at present are not that the views of Cong^s are unwise or unfaithful; but that their powers are insufficient for the execution of their views. The national debt & the want of power somewhere to draw forth the National resources, are the great matters that press. All the States were sensible of the defect of power in Cong^s. He thought much might be said in apology for the failure of the State Legislatures to comply with the Confederation. They were afraid of leaning too hard on the people, by accumulating taxes; no _constitutional_ rule had been or could be observed in the quotas--the Accounts also were unsettled & every State supposed itself in advance, rather than in arrears. For want of a general system, taxes to a due amount had not been drawn from trade which was the most convenient resource. As almost all the States had agreed to the recommendation of Cong^s on the subject of an impost, it appeared clearly that they were willing to trust Cong^s with power to draw a revenue from Trade. There is no weight therefore in the argument drawn from a distrust of Cong^s for money matters being the most important of all, if the people will trust them with power as to them, they will trust them with any other necessary powers. Cong^s indeed by the confederation have in fact the right of saying how much the people shall pay, and to what purpose it shall be applied: and this right was granted to them in the expectation that it would in all cases have its effect. If another branch were to be added to Cong^s to be chosen by the people, it would serve to embarrass. The people would not much interest themselves in the elections, a few designing men in the large districts would carry their points, and the people would have no more confidence in their new representatives than in Cong^s. He saw no reason why the State Legislatures should be unfriendly as had been suggested, to Cong^s. If they appoint Cong^s and approve of their measures, they would be rather favourable and partial to them. The disparity of the States in point of size he perceived was the main difficulty. But the large States had not yet suffered from the equality of votes enjoyed by the small ones. In all great and general points, the interests of all the States were the same. The State of Virg^a notwithstanding the equality of votes, ratified the Confederation without, or even proposing, any alteration. Mass^{ts} also ratified without any material difficulty &c. In none of the ratifications is the want of two branches noticed or complained of. To consolidate the States as some had proposed would dissolve our Treaties with foreign Nations, which had been formed with us, as _Confederated_ States. He did not however suppose that the creation of two branches in the Legislature would have such an effect. If the difficulty on the subject of representation can not be otherwise got over, he would agree to have two branches, and a proportional representation in one of them, provided each State had an equal voice in the other. This was necessary to secure the rights of the lesser States; otherwise three or four of the large States would rule the others as they please. Each State like each individual had its peculiar habits usages and manners, which constituted its happiness. It would not therefore give to others a power over this happiness, any more than an individual would do, when he could avoid it.
M^r Wilson. urged the necessity of two branches; observed that if a proper model were not to be found in other Confederacies it was not to be wondered at. The number of them was small & the duration of some at least short. The Amphyctionic and Achæan were formed in the infancy of political Science; and appear by their History & fate, to have contained radical defects. The Swiss & Belgic Confederacies were held together not by any vital principle of energy but by the incumbent pressure of formidable neighbouring nations: The German owed its continuance to the influence of the H. of Austria. He appealed to our own experience for the defects of our Confederacy. He had been 6 years in the 12 since the commencement of the Revolution, a member of Congress, and had felt all its weaknesses. He appealed to the recollection of others whether on many important occasions, the public interest had not been obstructed by the small members of the Union. The success of the Revolution was owing to other causes, than the Constitution of Congress. In many instances it went on even ag^{st} the difficulties arising from Cong^s themselves. He admitted that the large States did accede as had been stated, to the Confederation in its present form. But it was the effect of necessity not of choice. There are other instances of their yielding from the same motive to the unreasonable measures of the small States. The situation of things is now a little altered. He insisted that a jealousy would exist between the State Legislatures & the General Legislature: observing that the members of the former would have views & feelings very distinct in this respect from their constituents. A private Citizen of a State is indifferent whether power be exercised by the Gen^l or State Legislatures, provided it be exercised most for his happiness. His representative has an interest in its being exercised by the body to which he belongs. He will therefore view the National Legisl: with the eye of a jealous rival. He observed that the addresses of Cong^s to the people at large, had always been better received & produced greater effect, than those made to the Legislatures.
On the question for postponing in order to take up M^r Lansing's proposition "to vest the powers of legislation in Cong^s"
Mass^{ts} no. Con^t ay. N. Y. ay. N. J. ay. P^a no. Del. ay. M^d div^d. V^a no. N. C. no. S. C. no. Geo. no.
On motion of the Deputies from Delaware, the question on the 2^d Resolution in the Report from the Committee of the whole was postponed till tomorrow.
Adj^d.
THURSDAY JUNE 21. IN CONVENTION.
M^r Jonathan Dayton from N. Jersey took his seat.[94]
[94] From June 21 to July 18 inclusive not copied by M^r Eppes.--Madison's Note. This applies evidently to notes he permitted Hon. George W. Eppes, Jefferson's son-in-law, to take.
Doc^r Johnson.[95] On a comparison of the two plans which had been proposed from Virginia & N. Jersey, it appeared that the peculiarity which characterized the latter was its being calculated to preserve the individuality of the States. The plan from V^a did not profess to destroy this individuality altogether, but was charged with such a tendency. One Gentleman alone (Col. Hamilton) in his animadversions on the plan of N. Jersey, boldly and decisively contended for an abolition of the State Gov^{ts}. M^r Wilson & the gentleman from Virg^a who also were adversaries of the plan of N. Jersey held a different language. They wished to leave the States in possession of a considerable, tho' a subordinate jurisdiction. They had not yet however shewn how this c^d consist with, or be secured ag^{st} the general sovereignty & jurisdiction, which they proposed to give to the National Government. If this could be shewn in such a manner as to satisfy the patrons of the N. Jersey propositions, that the individuality of the States would not be endangered, many of their objections would no doubt be removed. If this could not be shewn their objections would have their full force. He wished it therefore to be well considered whether in case the States, as was proposed, sh^d retain some portion of sovereignty at least, this portion could be preserved, without allowing them to participate effectually in the Gen^l Gov^t, without giving them each a distinct and equal vote for the purpose of defending themselves in the general Councils.
[95] "D^r Johnson is a character much celebrated for his legal knowledge; he is said to be one of the first classics in America, and certainly possesses a very strong and enlightened understanding.
"As an Orator in my opinion, there is nothing in him that warrants the high reputation which he has for public speaking. There is something in the tone of his voice not pleasing to the Ear,--but he is eloquent and clear,--always abounding with information and instruction. He was once employed as an Agent for the State of Connecticut to state her claims to certain landed territory before the British House of Commons; this Office he discharged with so much dignity, and made such an ingenious display of his powers, that he laid the foundation of a reputation which will probably last much longer than his own life. D^r Johnson is about sixty years of age, possesses the manners of a Gentleman, and engages the Hearts of Men by the sweetness of his temper, and that affectionate style of address with which he accosts his acquaintance."--Pierce's Notes, _Am. Hist. Rev._, iii., 326.
M^r Wilson's respect for Doc^r Johnson, added to the importance of the subject led him to attempt, unprepared as he was, to solve the difficulty which had been started. It was asked how the Gen^l Gov^t and individuality of the particular States could be reconciled to each other; and how the latter could be secured ag^{st} the former? Might it not, on the other side be asked how the former was to be secured ag^{st} the latter? It was generally admitted that a jealousy & rivalship would be felt between the Gen^l & particular Gov^{ts}. As the plan now stood, tho' indeed contrary to his opinion, one branch of the Gen^l Gov^t (the Senate or second branch) was to be appointed by the State Legislatures. The State Legislatures, therefore, by this participation in the Gen^l Gov^t would have an opportunity of defending their rights. Ought not a reciprocal opportunity to be given to the Gen^l Gov^t of defending itself by having an appointment of some one constituent branch of the State Gov^{ts}. If a security be necessary on one side, it w^d seem reasonable to demand it on the other. But taking the matter in a more general view, he saw no danger to the States from the Gen^l Gov^t. In case a combination should be made by the large ones it w^d produce a general alarm among the rest; and the project w^d be frustrated. But there was no temptation to such a project. The States having in general a similar interest, in case of any propositions in the National Legislature to encroach on the State Legislatures, he conceived a general alarm w^d take place in the National Legislature itself, that it would communicate itself to the State Legislatures, and w^d finally spread among the people at large. The Gen^l Gov^t will be as ready to preserve the rights of the States as the latter are to preserve the rights of individuals; all the members of the former, having a common interest, as representatives of all the people of the latter, to leave the State Gov^{ts} in possession of what the people wish them to retain. He could not discover, therefore any danger whatever on the side from which it was apprehended. On the contrary, he conceived that in spite of every precaution the General Gov^t would be in perpetual danger of encroachments from the State Gov^{ts}.
M^r Madison was of opinion that there was 1. less danger of encroachment from the Gen^l Gov^t than from the State Gov^{ts} 2. that the mischief from encroachments would be less fatal if made by the former, than if made by the latter. 1. All the examples of other confederacies prove the greater tendency in such systems to anarchy than to tyranny; to a disobedience of the members than usurpations of the federal head. Our own experience had fully illustrated this tendency.--But it will be said that the proposed change in the principles & form of the Union will vary the tendency; that the Gen^l Gov^t will have real & greater powers, and will be derived in one branch at least from the people, not from the Gov^{ts} of the States. To give full force to this objection, let it be supposed for a moment that indefinite power should be given to the Gen^l Legislature, and the States reduced to Corporations dependent on the Gen^l Legislature; Why sh^d it follow that the Gen^l Gov^t w^d take from the States any branch of their power as far as its operation was beneficial, and its continuance desireable to the people? In some of the States, particularly in Connecticut, all the Townships are incorporated, and have a certain limited jurisdiction. Have the Representatives of the people of the Townships in the Legislature of the State ever endeavoured to despoil the Townships of any part of their local authority? As far as this local authority is convenient to the people they are attached to it; and their representatives chosen by & amenable to them, naturally respect their attachment to this, as much as their attachment to any other right or interest. The relation of a General Gov^t to State Gov^{ts} is parallel. 2. Guards were more necessary ag^{st} encroachments of the State Gov^{ts} on the Gen^l Gov^t than of the latter on the former. The great objection made ag^{st} an abolition of the State Gov^{ts} was that the Gen^l Gov^t could not extend its care to all the minute objects which fall under the cognizance of the local jurisdictions. The objection as stated lay not ag^{st} the probable abuse of the general power, but ag^{st} the imperfect use that could be made of it throughout so great an extent of country, and over so great a variety of objects. As far as its operation would be practicable it could not in this view be improper; as far as it would be impracticable, the conveniency of the Gen^l Gov^t itself would concur with that of the people in the maintenance of subordinate Governments. Were it practicable for the Gen^l Gov^t to extend its care to every requisite object without the cooperation of the State Gov^{ts} the people would not be less free as members of one great Republic than as members of thirteen small ones. A Citizen of Delaware was not more free than a Citizen of Virginia: nor would either be more free than a Citizen of America. Supposing therefore a tendency in the Gen^l Government to absorb the State Gov^{ts} no fatal consequence could result. Taking the reverse as the supposition, that a tendency should be left in the State Gov^{ts} towards an independence on the General Gov^t and the gloomy consequences need not be pointed out. The imagination of them, must have suggested to the States the experiment we are now making to prevent the calamity, and must have formed the chief motive with those present to undertake the arduous task.
On the question for resolving "that the Legislature ought to consist of two Branches"
Mass. ay. Con^t ay. N. Y. no. N. Jersey, no. P^a ay. Del. no. M^d div^d. V^a ay. N. C. ay. S. C. ay. Geo. ay.
The _third_ resolution of the Report taken into consideration.
Gen^l Pinkney moved "that the 1^{st} branch, instead of being elected by the people, sh^d be elected in such manner as the Legislature of each State should direct." He urged 1. that this liberty would give more satisfaction, as the Legislatures could then accommodate the mode to the conveniency & opinions of the people. 2. that it would avoid the undue influence of large Counties which would prevail if the elections were to be made in districts as must be the mode intended by the Report of the Committee. 3. that otherwise disputed elections must be referred to the General Legislature which would be attended with intolerable expence and trouble to the distant parts of the Republic.
M^r L. Martin seconded the Motion.[96]
[96] After Martin's second, according to Yates: "M^r Madison. I oppose the motion--there are no difficulties, but they may be obviated in the details connected with the subject."--Yates, _Secret Proceedings_, etc., 149.
Col. Hamilton considered the Motion as intended manifestly to transfer the election from the people to the State Legislatures, which would essentially vitiate the plan. It would increase that State influence which could not be too watchfully guarded ag^{st}. All too must admit the possibility, in case the Gen^l Gov^t sh^d maintain itself, that the State Gov^{ts} might gradually dwindle into nothing. The system therefore sh^d not be engrafted on what might possibly fail.
M^r Mason urged the necessity of retaining the election by the people. Whatever inconveniency may attend the democratic principle, it must actuate one part of the Gov^t. It is the only security for the rights of the people.
M^r Sherman, would like an election by the Legislatures best, but is content with the plan as it stands.
M^r Rutlidge could not admit the solidity of the distinction between a mediate & immediate election by the people. It was the same thing to act by oneself, and to act by another. An election by the Legislature would be more refined than an election immediately by the people: and would be more likely to correspond with the sense of the whole community. If this Convention had been chosen by the people in districts it is not to be supposed that such proper characters would have been preferred. The Delegates to Cong^s he thought had also been fitter men than would have been appointed by the people at large.
M^r Wilson considered the election of the 1^{st} branch by the people not only as the Corner Stone, but as the foundation of the fabric: and that the difference between a mediate & immediate election was immense. The difference was particularly worthy of notice in this respect: that the Legislatures are actuated not merely by the sentiment of the people; but have an official sentiment opposed to that of the Gen^l Gov^t and perhaps to that of the people themselves.
M^r King enlarged on the same distinction. He supposed the Legislatures w^d constantly choose men subservient to their own views as contrasted to the general interest; and that they might even devise modes of election that w^d be subversive of the end in view. He remarked several instances in which the views of a State might be at variance with those of the Gen^l Gov^t: and mentioned particularly a competition between the National & State debts, for the most certain & productive funds.
Gen^l Pinkney was for making the State Gov^{ts} a part of the General System. If they were to be abolished, or lose their agency, S. Carolina & other States would have but a small share of the benefits of Gov^t.
On the question for Gen^l Pinkney motion to substitute election of the 1^{st} branch in such mode as the Legislatures should appoint, in stead of its being elected by the people"
Mass^{ts} no. Con^t ay. N. Y. no. N. J. ay. P^a no. Del. ay. M^d div^d. V^a no. N. C. no. S. C. ay. Geo. no.
General Pinkney then moved that the 1^{st} branch be elected _by the people_ in such mode as the Legislatures should direct; but waived it on its being hinted that such a provision might be more properly tried in the detail of the plan.
On the question for y^e election of the 1^{st} branch by the _people_"
Mass^{ts} ay. Con^t ay. N. Y. ay. N. J. no. P^a ay. Del. ay. M^d div^d. V^a ay. N. C. ay. S. C. ay. Geo. ay.
Election of the 1^{st} branch "for the term of three years," considered.
M^r Randolph moved to strike out, "three years" and insert "two years"--he was sensible that annual elections were a source of great mischiefs in the States, yet it was the want of such checks ag^{st} the popular intemperence as were now proposed, that rendered them so mischievous. He would have preferred annual to biennial, but for the extent of the U. S. and the inconveniency which would result from them to the representatives of the extreme parts of the Empire. The people were attached to frequency of elections. All the Constitutions of the States except that of S. Carolina, had established annual elections.
M^r Dickinson. The idea of annual elections was borrowed from the antient Usage of England, a country much less extensive than ours. He supposed biennial would be inconvenient. He preferred triennial, and in order to prevent the inconveniency of an entire change of the whole number at the same moment, suggested a rotation, by an annual election of one third.
M^r Elseworth was opposed to three years, supposing that even one year was preferable to two years. The people were fond of frequent elections and might be safely indulged in one branch of the Legislature. He moved for 1 year.
M^r Strong[97] seconded & supported the motion.
[97] "M^r Strong is a Lawyer of some eminence,--he has received a liberal education, and has good connections to recommend him. As a speaker he is feeble, and without confidence. This Gent^n is about thirty five years of age, and greatly in the esteem of his Colleagues."--Pierce's Notes, _Amer. Hist. Rev._ iii., 326.
M^r Wilson being for making the 1^{st} branch an effectual representation of the people at large, preferred an annual election of it. This frequency was most familiar & pleasing to the people. It would not be more inconvenient to them, than triennial elections, as the people in all the States have annual meetings with which the election of the National representatives might be made to co-incide. He did not conceive that it would be necessary for the Nat^l Leigsl: to sit constantly; perhaps not half--perhaps not one fourth of the year.
M^r Madison was persuaded that annual elections would be extremely inconvenient and apprehensive that biennial would be too much so; he did not mean inconvenient to the electors; but to the representatives. They would have to travel seven or eight hundred miles from the distant parts of the Union; and would probably not be allowed even a reimbursement of their expences. Besides, none of those who wished to be re-elected would remain at the seat of Governm^t; confiding that their absence would not affect them. The members of Cong^s had done this with few instances of disappointment. But as the choice was here to be made by the people themselves who would be much less complaisant to individuals, and much more susceptible of impressions from the presence of a Rival candidate, it must be supposed that the members from the most distant States would travel backwards & forwards at least as often as the elections should be repeated. Much was to be said also on the time requisite for new Members who would always form a large proportion, to acquire that knowledge of the affairs of the States in general without which their trust could not be usefully discharged.
M^r Sherman preferred annual elections, but would be content with biennial. He thought the Representatives ought to return home and mix with the people. By remaining at the seat of Gov^t they would acquire the habits of the place which might differ from those of their Constituents.
Col. Mason observed that the States being differently situated such a rule ought to be formed as would put them as nearly as possible on a level. If elections were annual the middle States would have a great advantage over the extreme ones. He wished them to be biennial; and the rather as in that case they would coincide with the periodical elections of S. Carolina as well of the other States.
Col. Hamilton urged the necessity of 3 years, there ought to be neither too much nor too little dependence, on the popular sentiments. The checks in the other branches of the Govern^t would be but feeble, and would need every auxiliary principle that could be interwoven. The British House of Commons were elected septennially, yet the democratic spirit of y^e Constitution had not ceased. Frequency of elections tended to make the people listless to them; and to facilitate the success of little cabals. This evil was complained of in all the States. In Virg^a it had been lately found necessary to force the attendance & voting of the people by severe regulations.
On the question for striking out "three years"
Mass^{ts} ay. Con^t ay. N. Y. no. N. J. div^d. P^a ay. Del. no. M^d no. V^a ay. N. C. ay. S. C. ay. Geo. ay.
The motion for "two years" was then inserted nem. con.
Adj^d.
FRIDAY JUNE 22. IN CONVENTION
The clause in Resol. 3 "to receive fixed stipends to be paid out of the Nation^l Treasury" considered.
M^r Elseworth, moved to substitute payment by the States out of their own Treasurys: observing that the manners of different States were very different in the stile of living and in the profits accruing from the exercise of like talents. What would be deemed therefore a reasonable compensation in some States, in others would be very unpopular, and might impede the system of which it made a part.
M^r Williamson favored the idea. He reminded the House of the prospect of new States to the Westward. They would be too poor--would pay little into the common Treasury--and would have a different interest from the old States. He did not think therefore that the latter ought to pay the expences of men who would be employed in thwarting their measures & interests.
M^r Ghorum[98] wished not to refer the matter to the State Legislatures who were always paring down salaries in such a manner as to keep out of offices men most capable of executing the functions of them. He thought also it would be wrong to fix the compensations by the constitution, because we could not venture to make it as liberal as it ought to be without exciting an enmity ag^{st} the whole plan. Let the Nat^l Legisl: provide for their own wages from time to time; as the State Legislatures do. He had not seen this part of their power abused, nor did he apprehend an abuse of it.
[98] "M^r Gorham is a merchant in Boston, high in reputation, and much in the esteem of his country-men. He is a man of very good sense, but not much improved in his education. He is eloquent and easy in public debate, but has nothing fashionable or elegant in his style;--all he aims at is to convince, and where he fails it never is from his auditory not understanding him, for no man is more perspicuous and full. He has been President of Congress, and three years a Member of that Body. M^r Gorham is about 46 years of age, rather lusty, and has an agreeable and pleasing manner."--Pierce's Notes, _Am. Hist. Rev._, iii., 325.
M^r Randolph said he feared we were going too far, in consulting popular prejudices. Whatever respect might be due to them, in lesser matters, or in cases where they formed the permanent character of the people, he thought it neither incumbent on nor honorable for the Convention, to sacrifice right & justice to that consideration. If the States were to pay the members of the Nat^l Legislature, a dependence would be created that would vitiate the whole System. The whole nation has an interest in the attendance & services of the members. The Nation^l Treasury therefore is the proper fund for supporting them.
M^r King, urged the danger of creating a dependence on the States by leav^g to them the payment of the members of the Nat^l Legislature. He supposed it w^d be best to be explicit as to the compensation to be allowed. A reserve on that point, or a reference to the Nat^l Legislature of the quantum, would excite greater opposition than any sum that would be actually necessary or proper.
M^r Sherman contended for referring both the quantum and the payment of it to the State Legislatures.
M^r Wilson was ag^{st} _fixing_ the compensation as circumstances would change and call for a change of the amount. He thought it of great moment that the members of the Nat^l Gov^t should be left as independent as possible of the State Gov^{ts} in all respects.
M^r Madison concurred in the necessity of preserving the compensations for the Nat^l Gov^t independent on the State Gov^{ts} but at the same time approved of _fixing_ them by the Constitution, which might be done by taking a standard which w^d not vary with circumstances. He disliked particularly the policy suggested by M^r Williamson of leaving the members from the poor States beyond the Mountains, to the precarious & parsimonious support of their constituents. If the Western States hereafter arising should be admitted into the Union, they ought to be considered as equals & as brethren. If their representatives were to be associated in the Common Councils, it was of common concern that such provisions should be made as would invite the most capable and respectable characters into the service.
M^r Hamilton apprehended inconveniency from _fixing_ the wages. He was strenuous ag^{st} making the National Council dependent on the Legislative rewards of the States. Those who pay are the masters of those who are paid. Payment by the States would be unequal as the distant States would have to pay for the same term of attendance and more days in travelling to & from the seat of the Gov^t. He expatiated emphatically on the difference between the feelings & views of the _people_--& the _Governments_ of the States arising from the personal interest & official inducements which must render the latter unfriendly to the Gen^l Gov^t.
M^r Wilson moved that the Salaries of the 1^{st} branch "_be ascertained by the National Legislature_," and be paid out of the Nat^l Treasury.
M^r Madison, thought the members of the Legis^l too much interested to ascertain their own compensation. It w^d be indecent to put their hands into the public purse for the sake of their own pockets.
On this question Mass. no. Con^t no. N. Y. div^d N. J. ay. P^a ay. Del. no. M^d no. V^a no. N. C. no. S. C. no. Geo. div^d.
On the question for striking out "Nat^l Treasury" as moved by M^r Elseworth.
M^r Hamilton renewed his opposition to it. He pressed the distinction between the State Gov^{ts} & the people. The former w^d be the rivals of the Gen^l Gov^t. The State legislatures ought not therefore to be the paymasters of the latter.
M^r Elseworth. If we are jealous of the State Gov^{ts} they will be so of us. If on going home I tell them we gave the Gen: Gov^t such powers because we c^d not trust you. Will they adopt it, and with^t y^r approbation it is a nullity.[99]
[99] According to Yates, Wilson followed Ellsworth: "Mr. Wilson. I am not for submitting the national government to the approbation of the state legislatures. I know that they and the state officers will oppose it. I am for carrying it to the people of each state."--Yates, _Secret Proceedings_, etc., 153.
Mass^{ts} ay. Con^t ay. N. Y. div^d. N. J. no. Pen^a no. Del. no. M^d no. V^a no. N. C. ay. S. C. ay. Geo. div^d.[100]
[100] (It appeared that Mass^{ts} concurred, not because they thought the State Treas^y ought to be substituted; but because they thought nothing should be said on the subject, in which case it w^d silently devolve on the Nat^l Treasury to support the National Legislature.)--Madison's Note.
On a question for substituting "adequate compensation" in place of "fixt stipends" it was agreed to nem. con. the friends of the latter being willing that the practicability of _fixing_ the compensation should be considered hereafter in forming the details.
It was then moved by M^r Butler that a question be taken on both points jointly; to wit "adequate compensation to be paid out of the Nat^l Treasury." It was objected to as out of order, the parts having been separately decided on. The Presid^t refer^d the question of order to the House, and it was determined to be in order. Con. N. J. Del. M^d N. C. S. C.--ay.--N. Y. P^a V^a Geo. no.--Mass. divided. The question on the sentence was then postponed by S. Carolina in right of the State.
Col. Mason moved to insert "twenty-five years of age as a qualification for the members of the 1^{st} branch." He thought it absurd that a man today should not be permitted by the law to make a bargain for himself, and tomorrow should be authorized to manage the affairs of a great nation. It was more extraordinary as every man carried with him in his own experience a scale for measuring the deficiency of young politicians; since he would if interrogated be obliged to declare that his political opinions at the age of 21. were too crude & erroneous to merit an influence on public measures. It had been said that Cong^s had proved a good school for our young men. It might be so for any thing he knew but if it were, he chose that they should bear the expence of their own education.
M^r Wilson was ag^{st} abridging the rights of election in any shape. It was the same thing whether this were done by disqualifying the objects of choice, or the persons chusing. The motion tended to damp the efforts of genius, and of laudable ambition. There was no more reason for incapacitating _youth_ than _age_, where the requisite qualifications were found. Many instances might be mentioned of signal services rendered in high stations to the public before the age of 25: The present M^r Pitt and Lord Bolingbroke were striking instances.
On the question for inserting "25 years of age"
Mass^{ts} no. Con^t ay. N. Y. div^d. N. J. ay. P^a no. Del. ay. M^d ay. V^a ay. N. C. ay. S. C. ay. Geo. no.
M^r Ghorum moved to strike out the last member of the 3 Resol: concerning ineligibility of members of the 1^{st} branch to office during the term of their membership & for one year after. He considered it as unnecessary & injurious. It was true abuses had been displayed in G. B. but no one c^d say how far they might have contributed to preserve the due influence of the Gov^t nor what might have ensued in case the contrary theory had been tried.
M^r Butler opposed it. This precaution ag^{st} intrigue was necessary. He appealed to the example of G. B. where men got into Parl^t that they might get offices for themselves or their friends. This was the source of the corruption that ruined their Gov^t.
M^r King, thought we were refining too much. Such a restriction on the members would discourage merit. It would also give a pretext to the Executive for bad appointments, as he might always plead this as a bar to the choice he wished to have made.
M^r Wilson was ag^{st} fettering elections, and discouraging merit. He suggested also the fatal consequence in time of war, of rendering perhaps the best Commanders ineligible; appealing to our situation during the late war, and indirectly leading to a recollection of the appointment of the Co[~m]ander in Chief out of Congress.[101]
[101] According to Yates, Madison followed Wilson:
"Mr. Madison. Some gentlemen give too much weight and others too little to this subject. If you have no exclusive clause, there may be danger of creating offices or augmenting the stipends of those already created, in order to gratify some members if they were not excluded. Such an instance has fallen within my own observation. I am therefore of opinion, that no office ought to be open to a member, which may be created or augmented while he is in the legislature."--Yates, _Secret Proceedings_, etc., 155. Yates gives the rest of the debate as follows:
"Mr. Mason. It seems as if it was taken for granted, that all offices will be filled by the executive, while I think many will remain in the gift of the legislature. In either case, it is necessary to shut the door against corruption. If otherwise, they may make or multiply offices, in order to fill them. Are gentlemen in earnest when they suppose that this exclusion will prevent the first characters from coming forward? Are we not struck at seeing the luxury and venality which has already crept in among us? If not checked we shall have ambassadors to every petty state in Europe--the little republic of _St. Marino_ not excepted. We must in the present system remove the temptation. I admire many parts of the British constitution and government, but I detest their corruption.--Why has the power of the crown so remarkably increased the last century? A stranger, by reading their laws, would suppose it considerably diminished; and yet, by the sole power of appointing the increased officers of government, corruption pervades every town and village in the kingdom. If such a restriction should abridge the right of election, it is still necessary, as it will prevent the people from ruining themselves; and will not the same causes here produce the same effects? I consider this clause as the corner-stone on which our liberties depend--and if we strike it out we are erecting a fabric for our destruction.
"Mr. Gorham. The corruption of the English government cannot be applied to America. This evil exists there in the venality of their boroughs; but even this corruption has its advantage, as it gives stability to their government. We do not know what the effect would be if members of parliament were excluded from offices. The great bulwark of our liberty is the frequency of elections, and the great danger is the septennial parliaments.
"Mr. Hamilton. In all general questions which become the subjects of discussion, there are always some truths mixed with falsehoods. I confess there is danger where men are capable of holding two offices. Take mankind in general, they are vicious--their passions may be operated upon. We have been taught to reprobate the danger of influence in the British government, without duly reflecting how far it was necessary to support a good government. We have taken up many ideas on trust, and at last, pleased with their own opinions, establish them as undoubted truths. Hume's opinion of the British constitution confirms the remark, that there is always a body of firm patriots, who often shake a corrupt administration. Take mankind as they are, and what are they governed by? Their passions. There may be in every government a few choice spirits, who may act from more worthy motives. One great error is that we suppose mankind more honest than they are. Our prevailing passions are ambition and interest; and it will ever be the duty of a wise government to avail itself of those passions, in order to make them subservient to the public good--for these ever induce us to action. Perhaps a few men in a state, may, from patriotic motives, or to display their talents, or to reap the advantage of public applause, step forward; but if we adopt the clause, we destroy the motive. I am therefore against all exclusions and refinements, except only in this case; that when a member takes his seat, he should vacate every other office. It is difficult to put any exclusive regulation into effect. We must in some degree submit to the inconvenience."--Yates, _Secret Proceedings_, etc., 155, 156.
Col. Mason was for shutting the door at all events ag^{st} corruption. He enlarged on the venality and abuses in this particular in G. Britain: and alluded to the multiplicity of foreign Embassies by Cong^s. The disqualification he regarded as a corner stone in the fabric.
Col. Hamilton, there are inconveniences on both sides. We must take man as we find him, and if we expect him to serve the public must interest his passions in doing so. A reliance on pure patriotism had been the source of many of our errors. He thought the remark of M^r Ghorum a just one. It was impossible to say what w^d be the effect in G. B. of such a reform as had been urged. It was known that one of the ablest politicians (M^r Hume) had pronounced all that influence on the side of the crown, which went under the name of corruption, an essential part of the weight which maintained the equilibrium of the Constitution.
On M^r Ghorum's Motion for striking out "ineligibility,"
Mass^{ts} ay. Con^t no. N. Y. div^d. N. J. ay. P^a div^d. Del. div^d. Mar^d no. V^a no. N. C. ay. S. C. no. G^a ay.
Adj^d.
SATURDAY JUNE 23. IN CONVENTION
The 3^d Resol: resumed.
On Question yesterday postponed by S. Carol: for agreeing to the whole sentence "for allowing an adequate compensation to be paid out of the _Treasury of the U. States_"
Mass^{ts} ay. Con^t no. N. Y. no. N. J. ay. Pen^a ay. Del. no. M^d ay. V^a ay. N. C. no. S. C. no. Geo. divided. So the question was lost, & the sentence not inserted:
Gen^l Pinkney moves to strike out the ineligibility of members of the 1^{st} branch to offices established "by a particular State." He argued from the inconveniency to which such a restriction would expose both the members of the 1^{st} branch, and the States wishing for their services; & from the smallness of the object to be attained by the restriction.
It w^d seem from the ideas of some that we are erecting a Kingdom to be divided ag^{st} itself,[102] he disapproved such a fetter on the Legislature.
[102] According to Yates Wilson followed Pinckney: "Mr. Wilson. I perceive that some gentlemen are of opinion to give a bias in favor of state governments. This question ought to stand on the same footing."--Yates, _Secret Proceedings_, etc., 157.
M^r Sherman seconds the motion. It w^d seem that we are erecting a Kingdom at war with itself. The Legislature ought not to [be] fettered in such a case. On the question
Mass^{ts} no. Con^t ay. N. Y. ay. N. J. ay. P^a no. M^d div^d. Del. no. M^d ay. V^a ay. N. C. ay. S. C. ay. Geo. ay.
M^r Madison renewed his motion yesterday made & waved to render the members of the 1^{st} branch "ineligible during their term of service, & for one year after--to such offices only as should be established, or the emoluments thereof augmented, by the Legislature of the U. States during the time of their being members." He supposed that the unnecessary creation of offices, and increase of salaries, were the evils most experienced, & that if the door was shut ag^{st} them: it might properly be left open for the appoint^t of members to other offices as an encouragem^t to the Legislative service.
M^r Alex: Martin[103] seconded the Motion.
[103] "Mr. Martin was lately Governor of North Carolina, which office he filled with credit. He is a man of sense, and undoubtedly is a good politician, but he is not formed to shine in public debate, being no speaker. Mr. Martin was once a Colonel in the American Army, but proved unfit for the field. He is about 40 years of age."--Pierce's Notes, _Am. Hist. Rev._, iii., 332.
M^r Butler. The amend^t does not go far eno. & w^d be easily evaded.
M^r Rutlidge, was for preserving the Legislature as pure as possible, by shutting the door against appointments of its own members to offices, which was one source of its corruption.
M^r Mason.[104] The motion of my colleague is but a partial remedy for the evil. He appealed to him as a witness of the shameful partiality of the Legislature of Virginia to its own members. He enlarged on the abuses & corruption in the British Parliament, connected with the appointment of its members. He c^d not suppose that a sufficient number of Citizens could not be found who would be ready, without the inducement of eligibility to offices, to undertake the Legislative service. Genius & virtue it may be said, ought to be encouraged. Genius, for aught he knew, might, but that virtue should be encouraged by such a species of venality, was an idea, that at least had the merit of being new.
[104] Yates gives Mason's speech more fully and a speech by Madison omitted here:
"Mr. Mason. I differ from my colleague in his proposed amendment. Let me state the practice in the state where we came from. There, all officers are appointed by the legislature. Need I add, that many of their appointments are most shameful. Nor will the check proposed by this amendment be sufficient. It will soon cease to be any check at all. It is asserted that it will be very difficult to find men sufficiently qualified as legislators without the inducement of emolument. I do believe that men of genius will be deterred unless possessed of great virtues. We may well dispense with the first characters when destitute of virtue--I should wish them never to come forward--But if we do not provide against corruption, our government will soon be at an end; nor would I wish to put a man of virtue in the way of temptation. Evasions and caballing would evade the amendment. Nor would the danger be less, if the executive has the appointment of officers. The first three or four years we might go on well enough; but what would be the case afterwards? I will add, that such a government ought to be refused by the people--and it will be refused.
"Mr. Madison. My wish is that the national legislature be as uncorrupt as possible. I believe all public bodies are inclined, from various motives, to support its members; but it is not always done from the base motives of venality. Friendship, and a knowledge of the abilities of those with whom they associate, may produce it. If you bar the door against such attachments, you deprive the government of its greatest strength and support. Can you always rely on the patriotism of the members? If this be the only inducement, you will find a great indifferency in filling your legislative body. If we expect to call forth useful characters, we must hold out allurements; nor can any great inconveniency arise from such inducements. The legislative body must be the road to public honor; and the advantage will be greater to adopt my motion, than any possible inconvenience."--Yates, _Secret Proceedings_, etc., 158.
M^r King remarked that we were refining too much in this business; and that the idea of preventing intrigue and solicitation of offices was chimerical. You say that no member shall himself be eligible to any office. Will this restrain him from availing himself of the same means which would gain appointments for himself, to gain them for his son, his brother, or any other object of his partiality. We were losing therefore the advantages on one side, without avoiding the evils on the other.
M^r Wilson supported the motion. The proper cure he said for corruption in the Legislature was to take from it the power of appointing to offices. One branch of corruption would indeed remain, that of creating unnecessary offices, or granting unnecessary salaries, and for that the amendment would be a proper remedy. He animadverted on the impropriety of stigmatizing with the name of venality the laudable ambition of rising into the honorable offices of the Government; an ambition most likely to be felt in the early & most incorrupt period of life, & which all wise & free Gov^{ts} had deemed it sound policy, to cherish, not to check. The members of the Legislature have perhaps the hardest & least profitable task of any who engage in the service of the state. Ought this merit to be made a disqualification?
M^r Sherman observed that the motion did not go far enough. It might be evaded by the creation of a new office, the translation to it of a person from another office, and the appointment of a member of the Legislature to the latter. A new Embassy might be established to a new Court, & an ambassador taken from another, in order to _create_ a vacancy for a favorite member. He admitted that inconveniences lay on both sides. He hoped there w^d be sufficient inducements to the public service without resorting to the prospect of desirable offices, and on the whole was rather ag^{st} the motion of M^r Madison.
M^r Gerry thought there was great weight in the objection of M^r Sherman. He added as another objection ag^{st} admitting the eligibility of members in any case that it would produce intrigues of ambitious men for displacing proper officers, in order to create vacancies for themselves.[105] In answer to M^r King he observed that although members, if disqualified themselves might still intrigue & cabal for their sons, brothers &c., yet as their own interests would be dearer to them, than those of their nearest connections, it might be expected they would go greater lengths to promote it.
[105] Yates gives Gerry's remarks: "This amendment is of great weight, and its consequences ought to be well considered. At the beginning of the war, we possessed more than Roman virtue. It appears to me it is now the reverse. We have more land and stock-jobbers than any place on earth. It appears to me that we have constantly endeavored to keep distinct the three great branches of government; but if we agree to this motion, it must be destroyed by admitting the legislators to share in the executive, or to be too much influenced by the executive, in looking up to them for offices."--Yates, _Secret Proceedings_, etc., 160.
M^r Madison had been led to this motion as a middle ground between an eligibility in all cases, and an absolute disqualification. He admitted the probable abuses of an eligibility of the members, to offices particularly within the gift of the Legislature. He had witnessed the partiality of such bodies to their own members, as had been remarked of the Virginia Assembly by his colleague (Col. Mason). He appealed however to him, in turn to vouch another fact not less notorious in Virginia, that the backwardness of the best citizens to engage in the Legislative service gave but too great success to unfit characters. The question was not to be viewed on one side only. The advantages & disadvantages on both ought to be fairly compared. The objects to be aimed at were to fill all offices with the fittest characters, & to draw the wisest & most worthy citizens into the Legislative service. If on one hand, public bodies were partial to their own members; on the other they were as apt to be misled by taking characters on report, or the authority of patrons and dependents.
All who had been concerned in the appointment of strangers on those recommendations must be sensible of this truth. Nor w^d the partialities of such Bodies be obviated by disqualifying their own members. Candidates for office would hover round the seat of Gov^t or be found among the residents there, and practise all the means of counting the favor of the members. A great proportion of the appointments made by the States were evidently brought about in this way. In the General Gov^t the evil must be still greater, the characters of distant states, being much less known throughout the U. States than those of the distant parts of the same State. The elections by Congress had generally turned on men living at the seat of the fed^l Gov^t or in its neighbourhood.--As to the next object, the impulse to the Legislative service, was evinced by experience to be in general too feeble with those best qualified for it. This inconveniency w^d also be more felt in the Nat^l Gov^t than in the State Gov^{ts} as the Sacrifices req^d from the distant members, w^d be much greater, and the pecuniary provisions, probably, more disproportionate. It w^d therefore be impolitic to add fresh objections to the Legislative service by an absolute disqualification of its members. The point in question was whether this would be an objection with the most capable citizens. Arguing from experience he concluded that it would. The Legislature of Virg^a would probably have been without many of its best members, if in that situation, they had been ineligible to Cong^s to the Gov^t & other honorable offices of the State.
M^r Butler thought Characters fit for office w^d never be unknown.
Col. Mason. If the members of the Legislature are disqualified, still the honors of the State will induce those who aspire to them to enter that service, as the field in which they can best display & improve their talents, & lay the train for their subsequent advancement.
M^r Jenifer remarked that in Maryland, the Senators chosen for five years, c^d hold no other office & that this circumstance gained them the greatest confidence of the people.
On the question for agreeing to the motion of M^r Madison,
Mass^{ts} div^d. C^t ay. N. Y. no. N. J. ay. P^a no. Del. no. M^d no. V^a no. N. C. no. S. C. no. Geo. no.
M^r Sherman mov^d to insert the words "and incapable of holding" after the words "eligible to offices" w^{ch} was agreed to without opposition.
The word "established" & the words "Nat^l Gov^t" were struck out of the Resolution 3^d.
M^r Spaight called for a division of the question, in consequence of which it was so put, as that it turned in the first member of it, "on the ineligibility of members _during the term for which they were elected_"--whereon the States were,
Mass^{ts} div^d. C^t ay. N. Y. ay. N. J. ay. P^a no. Del. ay. M^d ay. V^a ay. N. C. ay. S. C. ay. Geo. no.
On the 2^d member of the sentence extending ineligibility of members to one year after the term for which they were elected Col. Mason thought this essential to guard ag^{st} evasions by resignations, and stipulations for office to be filled at the expiration of the legislative term. M^r Gerry, had known such a case. M^r Hamilton. Evasions c^d not be prevented--as by proxies--by friends holding for a year, & then opening the way &c. M^r Rutlidge admitted the possibility of evasions, but was for contracting them as possible.
Mass. no. C^t no. N. Y. ay. N. J. no. P^a div^d. Del. ay. Mar^d ay. V^a no. N. C. no. S. C. ay. Geo. no.
Adj^d.
MONDAY, JUNE 25. IN CONVENTION.
Resolution 4. being taken up.
M^r Pinkney spoke as follows--[106] The efficacy of the System will depend on this article. In order to form a right judgm^t in the case, it will be proper to examine the situation of this Country more accurately than it has yet been done. The people of the U. States are perhaps the most singular of any we are acquainted with. Among them there are fewer distinctions of fortune & less of rank, than among the inhabitants of any other nation. Every freeman has a right to the same protection & security; and a very moderate share of property entitles them to the possession of all the honors and privileges the Public can bestow: hence arises a greater equality, than is to be found among the people of any other Country, and an equality which is more likely to continue--I say this equality is likely to continue, because in a new Country, possessing immense tracts of uncultivated lands, where every temptation is offered to emigration & where industry must be rewarded with competency, there will be few poor, and few dependent--Every member of the Society almost, will enjoy an equal power of arriving at the supreme offices & consequently of directing the strength & sentiments of the whole Community. None will be excluded by birth, & few by fortune, from voting for proper persons to fill the offices of Government--the whole community will enjoy in the fullest sense that kind of political liberty which consists in the power the members of the State reserve to themselves, of arriving at the Public offices, or at least, of having votes in the nomination of those who fill them.
[106] Pinckney furnished Madison with a copy of this speech which he transcribed, but apparently not with the whole of it, as Madison's note at the end indicates. The original Pinckney draft is among the Madison papers, and shows Madison's copying to have been accurate.
If this State of things is true & the prospect of its continuing probable, it is perhaps not politic to endeavour too close an imitation of a Government calculated for a people whose situation is, & whose views ought to be extremely different.
Much has been said of the Constitution of G. Britain. I will confess that I believe it to be the best Constitution in existence; but at the same time I am confident it is one that will not or cannot be introduced into this Country, for many centuries.--If it were proper to go here into a historical dissertation on the British Constitution, it might easily be shewn that the peculiar excellence, the distinguishing feature of that Governm^t cannot possibly be introduced into our System--that its balance between the Crown & the people cannot be made a part of our Constitution,--that we neither have nor can have the members to compose it, nor the rights, privileges & properties of so distinct a class of Citizens to guard,--that the materials for forming this balance or check do not exist, nor is there a necessity for having so permanent a part of our Legislative, until the Executive power is so constituted as to have something fixed & dangerous in its principle--By this I mean a sole, hereditary, though limited Executive.
That we cannot have a proper body for forming a Legislative balance between the inordinate power of the Executive and the people, is evident from a review of the accidents & circumstances which gave rise to the peerage of Great Britain--I believe it is well ascertained that the parts which compose the British Constitution arose immediately from the forests of Germany; but the antiquity of the establishment of Nobility is by no means clearly defined. Some authors are of opinion that the dignity denoted by the titles of dux et comes, was derived from the old Roman to the German Empire; while others are of the opinion that they existed among the Germans long before the Romans were acquainted with them. The institution however of Nobility is immemorial among the Nations who may properly be termed the ancestors of Britain.--At the time they were summoned in England to become a part of the National Council, the circumstances which contributed to make them a Constituent part of that constitution, must be well known to all gentlemen who have had industry & curiosity enough to investigate the subject--The Nobles with their possessions & dependents composed a body permanent in their nature and formidable in point of power. They had a distinct interest both from the King and the people; an interest which could only be represented by themselves, and the guardianship could not be safely intrusted to others.--At the time they were originally called to form a part of the National Council, necessity perhaps as much as other cause, induced the Monarch to look up to them. It was necessary to demand the aid of his subjects in personal & pecuniary services. The power and possessions of the Nobility would not permit taxation from any Assembly of which they were not a part: & the blending the Deputies of the Commons with them, & thus forming what they called their parlerment was perhaps as much the effect of chance as of any thing else. The Commons were at that time compleatly subordinate to the nobles, whose consequence & influence seem to have been the only reasons for their superiority; a superiority so degrading to the Commons that in the first summons we find the peers are called upon to consult the commons to consent. From this time the peers have composed a part of the British Legislature, and notwithstanding their power and influence have diminished & those of the Commons have increased, yet still they have always formed an excellent balance ag^{st} either the encroachments of the Crown or the people.
I have said that such a body cannot exist in this Country for ages, and that untill the situation of our people is exceedingly changed no necessity will exist for so permanent a part of the Legislature. To illustrate this I have remarked that the people of the United States are more equal in their circumstances than the people of any other Country--that they have very few rich men among them,--by rich men I mean those whose riches may have a dangerous influence, or such as are esteemed rich in Europe--perhaps there are not one hundred such on the Continent; that it is not probable this number will be greatly increased; that the genius of the people their mediocrity of situation & the prospects which are afforded their industry in a Country which must be a new one for centuries are unfavorable to the rapid distinction of ranks. The destruction of the right of primogeniture & the equal division of the property of Intestates will also have an effect to preserve this mediocrity; for laws invariably affect the manners of a people. On the other hand that vast extent of unpeopled territory which opens to the frugal & industrious a sure road to competency & independence will effectually prevent for a considerable time the increase of the poor or discontented, and be the means of preserving that equality of condition which so eminently distinguishes us.
If equality is as I contend the leading feature of the U. States, where then are the riches & wealth whose representation & protection is the peculiar province of this Permanent body. Are they in the hands of the few who may be called rich; in the possession of less than a hundred citizens? Certainly not. They are in the great body of the people, among whom there are no men of wealth, and very few of real poverty.--Is it probable that a change will be created, and that a new order of men will arise? If under the British Government, for a century no such change was probable, I think it may be fairly concluded it will not take place while even the semblance of Republicanism remains.--How is this change to be effected? Where are the sources from whence it is to flow? From the landed interest? No. That is too unproductive & too much divided in most of the States. From the Monied interest? If such exists at present, little is to be apprehended from that source. Is it to spring from commerce? I believe it would be the first instance in which a nobility sprang from merchants. Besides, Sir, I apprehend that on this point the policy of the U. States has been much mistaken. We have unwisely considered ourselves as the inhabitants of an old instead of a new country. We have adopted the maxims of a State full of people & manufactures & established in credit. We have deserted our true interest, and instead of applying closely to those improvements in domestic policy which would have ensured the future importance of our commerce, we have rashly & prematurely engaged in schemes as extensive as they are imprudent. This however is an error which daily corrects itself & I have no doubt that a few more severe trials will convince us, that very different commercial principles ought to govern the conduct of these States.
The people of this Country are not only very different from the inhabitants of any State we are acquainted with in the modern world; but I assert that their situation is distinct from either the people of Greece or Rome, or of any State we are acquainted with among the antients.--Can the orders introduced by the institution of Solon, can they be found in the United States? Can the military habits & manners of Sparta be resembled to our habits & manners? Are the distinction of Patrician & Plebeian known among us? Can the Helvetic or Belgic confederacies, or can the unwieldy, unmeaning body called the Germanic Empire, can they be said to possess either the same or a situation like ours? I apprehend not.--They are perfectly different, in their distinctions of rank, their Constitutions, their manners & their policy.
Our true situation appears to me to be this,--a new extensive Country containing within itself the materials for forming a Government capable of extending to its Citizens all the blessings of Civil & religious liberty--capable of making them happy at home. This is the great end of Republican Establishments. We mistake the object of our Government, if we hope or wish that it is to make us respectable abroad. Conquest or superiority among other powers is not or ought not ever to be the object of republican Systems. If they are sufficiently active & energetic to rescue us from contempt & preserve our domestic happiness & security, it is all we can expect from them,--it is more than almost any other Government ensures to its citizens.
I believe this observation will be found generally true:--that no two people are so exactly alike in their situation or circumstances as to admit the exercise of the same Government with equal benefit; that a system must be suited to the habits & genius of the People it is to govern, and must grow out of them.
The people of the U. S. may be divided into three classes--_Professional men_ who must from their particular pursuits always have a considerable weight in the Government while it remains popular--_Commercial men_, who may or may not have weight as a wise or injudicious commercial policy is pursued.--If that commercial policy is pursued which I conceive to be the true one, the merchants of this Country will not or ought not for a considerable time to have much weight in the political scale.--The third is the _landed interest_, the owners and cultivators of the soil, who are and ought ever to be the governing spring in the system.--These three classes, however distinct in their pursuits are individually equal in the political scale, and may be easily proved to have but one interest. The dependence of each on the other is mutual. The merchant depends on the planter. Both must in private as well as public affairs be connected with the professional men; who in their turn must in some measure depend on them. Hence it is clear from this manifest connection, & the equality which I before stated exists, & must for the reasons then assign, continue, that after all there is one, but one great & equal body of Citizens composing the inhabitants of this Country among whom there are no distinctions of rank, and very few or none of fortune.
For a people thus circumstanced are we then to form a Government & the question is what sort of Government is best suited to them.
Will it be the British Gov^t? No. Why? Because G. Britain contains three orders of people distinct in their situation, their possessions & their principles.--These orders combined form the great body of the Nation. And as in national expences the wealth of the whole community must contribute, so ought each component part to be properly & duly represented.--No other combination of power could form this due representation, but the one that exists.--Neither the peers or the people could represent the royalty, nor could the Royalty & the people form a proper representation for the Peers.--Each therefore must of necessity be represented by itself, or the sign of itself; and this accidental mixture has certainly formed a Government admirably well balanced.
But the U. States contain but one order that can be assimilated to the British Nation,--this is the order of Commons. They will not surely then attempt to form a Government consisting of three branches, two of which shall have nothing to represent. They will not have an Executive & Senate (hereditary) because the King & Lords of England are so. The same reasons do not exist and therefore the same provisions are not necessary.
We must as has been observed suit our Governm^t to the people it is to direct. These are I believe as active, intelligent & susceptible of good Governm^t as any people in the world. The Confusion which has produced the present relaxed State is not owing to them. It is owing to the weakness & (defects) of a Gov^t incapable of combining the various interests it is intended to unite, and destitute of energy.--All that we have to do then is to distribute the powers of Gov^t in such a manner, and for such limited periods, as while it gives a proper degree of permanency to the Magistrate, will reserve to the people, the right of election they will not or ought not frequently to part with.--I am of opinion that this may easily be done; and that with some amendments the propositions before the Committee will fully answer this end.
No position appears to me more true than this; that the General Gov^t cannot effectually exist without reserving to the States the possession of their local rights. They are the instruments upon which the Union must frequently depend for the support & execution of their powers, however immediately operating upon the people, and not upon the States.
Much has been said about the propriety of abolishing the distinction of State Governments, & having but one general System. Suffer me for a moment to examine this question.[107]
[107] The residue of this speech was not furnished, like the above, by Mr. Pinckney.--Madison's Note.
Yates' report of the speech is meagre. The closing paragraph, apparently the part lacking in Madison's report, is:
"While we were dependent on the crown of Great Britain, it was in contemplation to form the whole into one; but it was found impracticable. No legislature could make good laws for the whole, nor can it now be done. It would necessarily place the power in the hands of the few nearest the seat of government. State governments must therefore remain, if you mean to prevent confusion. The general negative powers will support the general government. Upon these considerations, I am led to form the second branch differently from the report. These powers are important, and the number not too large, upon the principle of proportion. I have considered the subject with great attention; and I propose this plan (reads it), and if no better plan is proposed, I will then move its adoption."--Yates, _Secret Proceedings_, etc., 163.
The mode of constituting the 2^d branch being under consideration.
The word "national" was struck out, and "United States" inserted.
M^r Ghorum, inclined to a compromise as to the rule of proportion. He thought there was some weight in the objections of the small States. If V^a should have 16. votes & Del^{re} with several other States together 16, those from Virg^a would be more likely to unite than the others, and would therefore have an undue influence. This remark was applicable not only to States, but to Counties or other districts of the same State. Accordingly the Constitution of Mass^{ts} had provided that the representatives of the larger districts should not be in an exact ratio to their numbers, and experience he thought had shewn the provision to be expedient.
M^r Read. The States have heretofore been in a sort of partnership. They ought to adjust their old affairs before they open a new account. He brought into view the appropriation of the co[~m]on interest in the Western lands, to the use of particular States. Let justice be done on this head; let the fund be applied fairly & equally to the discharge of the general debt, and the smaller States who had been injured; would listen then perhaps to those ideas of just representation which had been held out.
M^r Ghorum, did not see how the Convention could interpose in the case. Errors he allowed had been committed on the subject. But Cong^s were now using their endeavours to rectify them. The best remedy would be such a Government as would have vigor enough to do justice throughout. This was certainly the best chance that could be afforded to the smaller States.
M^r Wilson, the question is shall the members of the 2^d branch be chosen by the Legislatures of the States? When he considered the amazing extent of Country--the immense population which is to fill it, the influence which the Gov^t we are to form will have, not only on the present generation of our people & their multiplied posterity, but on the whole Globe, he was lost in the magnitude of the object. The project of Henry the 4^{th} & his Statesmen was but the picture in miniature of the great portrait to be exhibited. He was opposed to an election by the State Legislatures. In explaining his reasons it was necessary to observe the twofold relation in which the people would stand, 1. as Citizens of the Gen^l Gov^t 2. as Citizens of their particular State. The Gen^l Gov^t was meant for them in the first capacity: the State Gov^{ts} in the second. Both Gov^{ts} were derived from the people--both meant for the people--both therefore ought to be regulated on the same principles. The same train of ideas which belonged to the relation of the Citizens to their State Gov^{ts} were applicable to their relation to the Gen^l Gov^t and in forming the latter, we ought to proceed, by abstracting as much as possible from the idea of the State Gov^{ts}. With respect to the province & object of the Gen^l Gov^t they should be considered as having no existence. The election of the 2^d branch by the Legislatures, will introduce & cherish local interests & local prejudices. The Gen^l Gov^t is not an assemblage of States, but of individuals for certain political purposes--it is not meant for the States, but for the individuals composing them; the _individuals_ therefore not the _States_, ought to be represented in it: A proportion in this representation can be preserved in the 2^d as well as in the 1^{st} branch; and the election can be made by electors chosen by the people for that purpose. He moved an amendment to that effect which was not seconded.
M^r Elseworth saw no reason for departing from the mode contained in the Report. Whoever chooses the member, he will be a Citizen of the State he is to represent & will feel the same spirit & act the same part whether he be appointed by the people or the Legislature. Every State has its particular views & prejudices, which will find their way into the general Councils, through whatever channel they may flow. Wisdom was one of the characteristics which it was in contemplation to give the second branch. Would not more of it issue from the Legislatures; than from an immediate election by the people. He urged the necessity of maintaining the existence, & agency of the States. Without their co-operation it would be impossible to support a Republican Gov^t over so great an extent of Country. An army could scarcely render it practicable. The largest States are the worst Governed. Virg^a is obliged to acknowledge her incapacity to extend her Gov^t to Kentuckey. Mass^{ts} cannot keep the peace one hundred miles from her capitol and is now forming an army for its support. How long Pen^a may be free from a like situation cannot be foreseen. If the principles & materials of our Gov^t are not adequate to the extent of these single States; how can it be imagined that they can support a single Gov^t throughout the U. States. The only chance of supporting a Gen^l Gov^t lies in grafting it on that of the individual States.
Doc^r Johnson urged the necessity of preserving the State Gov^{ts} which would be at the mercy of the Gen^l Gov^t on M^r Wilson's plan.
M^r Madison thought it w^d obviate difficulty if the present resol: were postponed, & the 8{th} taken up, which is to fix the right of suffrage in the 2^d branch.
Doc^r Williamson professed himself a friend to such a system as would secure the existence of the State Gov^{ts}. The happiness of the people depended on it. He was at a loss to give his vote as to the Senate untill he knew the number of its members. In order to ascertain this, he moved to insert these words after "2^d branch of the Nat^l Legislature"--"who shall bear such proportion to the n^o of the 1^{st} branch as 1 to ----." He was not seconded.
M^r Mason. It has been agreed on all hands that an efficient Gov^t is necessary that to render it such it ought to have the faculty of self defence, that to render its different branches effectual each of them ought to have the same power of self defence. He did not wonder that such an agreement should have prevailed in these points. He only wondered that there should be any disagreement about the necessity of allowing the State Gov^{ts} the same self-defence. If they are to be preserved as he conceived to be essential, they certainly ought to have this power. And the only mode left of giving it to them, was by allowing them to appoint the 2^d branch of the Nat^l Legislature.
M^r Butler observing that we were put to difficulties at every step by the uncertainty whether an equality or a ratio of representation w^d prevail finally in the 2^d branch, moved to postpone the 4^{th} Resol: & to proceed to the Resol: on that point. M^r Madison seconded him.
On the question
Mass^{ts} no. Con^t no. N. Y. ay. N. J. no. P^a no. Del. no. M{d.} no. V^a ay. N. C. no. S. C. ay. Geo. ay.
On a question to postpone the 4 and take up the 7 Resol: ays, Mary^d V^a N. C. S. C. Geo;--Noes, Mass. C^t N. Y. N. J. P^a Del:
On the question to agree "that the members of the 2^d branch be chosen by the indiv^l Legislatures" Mass^{ts} ay. Con^t ay. N. Y. ay. N. J. ay. P^a no. Del. ay. M^d ay. V^a no. N. C. ay. S. C. ay. Geo. ay.[108]
[108] Madison's Note:
It must be kept in view that the largest States particularly Pennsylvania & Virginia always considered the choice of the 2^d Branch by the State Legislatures as opposed to a proportional representation to which they were attached as a fundamental principle of just Government. The smaller States who had opposite views, were reinforced by the members from the large States most anxious to secure the importance of the State Governments.
On a question on the clause requiring the age of 30 years at least,--it was agreed to unanimously:
On a question to strike out the words, "sufficient to ensure their independency" after the word "term" it was agreed to.
That the 2^d branch hold their offices for a term of seven years, considered.
M^r Ghorum suggests a term of "4 years," 1/4 to be elected every year.
M^r Randolph, supported the idea of rotation, as favorable to the wisdom & stability of the Corps, which might possibly be always sitting, and aiding the Executive.
And moves after "7 years," to add, "to go out in fixt proportion" which was agreed to.
M^r Williamson suggests "6 years," as more convenient for Rotation than 7 years.
M^r Sherman seconds him.
M^r Reed proposed that they s^d hold their offices "during good behaviour." Mr. R. Morris seconds him.
Gen^l Pinkney, proposed "4 years." A longer term w^d fix them at the seat of Gov^t. They w^d acquire an interest there, perhaps transfer their property & lose sight of the States they represent. Under these circumstances the distant States w^d labour under great disadvantages.[109]
[109] According to Yates, Madison followed Pinckney: "Mr. Madison. We are proceeding in the same manner that was done when the Confederation was first formed. Its original draft was excellent, but in its progress and completion it became so insufficient as to give rise to the present Convention. By the vote already taken, will not the temper of the state legislatures transfuse itself into the Senate? Do we create a free government?"--Yates, _Secret Proceedings_, etc., 168.
M^r Sherman moved to strike out "7 years" in order to take questions on the several propositions.
On the question to strike out "seven"
Mass^{ts} ay. Con^t ay. N. Y. ay. N. J. ay. P^a no. Del. no. M^d div^d. V^a no. N. C. ay. S. C. ay. Geo. ay.
On the question to insert "6 years", which failed 5 St^s being ay. 5 no, & 1 divided
Mass^{ts} no. Con^t ay. N. Y. no. N. J. no. P^a ay. Del. ay. M^d div^d. V^a ay. N. C. ay. S. C. no. Geo. no.
On a motion to adjourn, the votes were 5 for 5 ag^{st} it & 1 divided,--Con. N. J. P^a Del. V^a ay. Mass^{ts} N. Y. N. C. S. C. Geo: no. Mary^d divided.
On the question for "5 years" it was lost.
Mass^{ts} no. Con^t ay. N. Y. no. N. J. no. P^a ay. Del. ay. M^d div^d. V^a ay. N. C. ay. S. C. no. Geo. no.
Adj^d.
TUESDAY, JUNE 26. IN CONVENTION
The duration of the 2^d branch under consideration.
M^r Ghorum moved to fill the blank with "six years," one third of the members to go out every second year.
M^r Wilson 2^{ded} the motion.
Gen^l Pinkney opposed six years in favor of four years. The States he said had different interests. Those of the Southern, and of S. Carolina in particular were different from the Northern. If the Senators should be appointed for a long term, they w^d settle in the State where they exercised their functions; and would in a little time be rather the representatives of that than of the State appoint^g them.
M^r Reed mov^d that the term be nine years. This w^d admit of a very convenient rotation, one third going out triennially. He w^d still prefer "during good behaviour," but being little supported in that idea, he was willing to take the longest term that could be obtained.
M^r Broome 2^{ded} the motion.
M^r Madison. In order to judge of the form to be given to this institution, it will be proper to take a view of the ends to be served by it. These were first to protect the people ag^{st} their rulers; secondly to protect the people ag^{st} the transient impressions into which they themselves might be led. A people deliberating in a temperate moment, and with the experience of other nations before them, on the plan of Gov^t most likely to secure their happiness, would first be aware, that those charg^d with the public happiness might betray their trust. An obvious precaution ag^{st} this danger w^d be to divide the trust between different bodies of men, who might watch & check each other. In this they w^d be governed by the same prudence which has prevailed in organizing the subordinate departments of Gov^t, where all business liable to abuses is made to pass thro' separate hands, the one being a check on the other. It w^d next occur to such people, that they themselves were liable to temporary errors, thro' want of information as to their true interest, and that men chosen for a short term, & employed but a small portion of that in public affairs, might err from the same cause. This reflection w^d naturally suggest that the Gov^t be so constituted as that one of its branches might have an opp^y of acquiring a competent knowledge of the public interests. Another reflection equally becoming a people on such an occasion, w^d be that they themselves, as well as a numerous body of Representatives, were liable to err also, from fickleness and passion. A necessary fence ag^{st} this danger would be to select a portion of enlightened citizens, whose limited number, and firmness might seasonably interpose ag^{st} impetuous councils. It ought finally to occur to a people deliberating on a Gov^t for themselves, that as different interests necessarily result from the liberty meant to be secured, the major interest might under sudden impulses be tempted to commit injustice on the minority. In all civilized Countries the people fall into different classes hav^g a real or supposed difference of interests. There will be creditors & debtors; farmers, merch^{ts} & manufacturers. There will be particularly the distinction of rich & poor. It was true as had been observ^d (by M^r Pinkney) we had not among us those hereditary distinctions, of rank which were a great source of the contests in the ancient Gov^{ts} as well as the modern States of Europe, nor those extremes of wealth or poverty which characterize the latter. We cannot however be regarded even at this time, as one homogeneous mass, in which every thing that affects a part will affect in the same manner the whole. In framing a system which we wish to last for ages, we sh^d not lose sight of the changes which ages will produce. An increase of population will of necessity increase the proportion of those who will labour under all the hardships of life, & secretly sigh for a more equal distribution of its blessings. These may in time outnumber those who are placed above the feelings of indigence. According to the equal laws of suffrage, the power will slide into the hands of the former. No agrarian attempts have yet been made in this Country, but symptoms, of a levelling spirit, as we have understood, have sufficiently appeared in certain quarters, to give notice of the future danger. How is this danger to be guarded ag^{st} on the republican principles? How is the danger in all cases of interested coalitions to oppress the minority to be guarded ag^{st}? Among other means by the establishment of a body in the Gov^t sufficiently respectable for its wisdom & virtue, to aid on such emergencies, the preponderance of justice by throwing its weight into that scale. Such being the objects of the second branch in the proposed Gov^t he thought a considerable duration ought to be given to it. He did not conceive that the term of nine years could threaten any real danger; but in pursuing his particular ideas on the subject, he should require that the long term allowed to the 2^d branch should not commence till such a period of life, as would render a perpetual disqualification to be re-elected little inconvenient either in a public or private view. He observed that as it was more than probable we were now digesting a plan which in its operation w^d decide for ever the fate of Republican Gov^t we ought not only to provide every guard to liberty that its preservation c^d require, but be equally careful to supply the defects which our own experience had particularly pointed out.
M^r Sherman. Gov^t is instituted for those who live under it. It ought therefore to be so constituted as not to be dangerous to their liberties. The more permanency it has the worse if it be a bad Gov^t. Frequent elections are necessary to preserve the good behavior of rulers. They also tend to give permanency to the Government, by preserving that good behavior, because it ensures their re-election. In Connecticut elections have been very frequent, yet great stability & uniformity both as to persons & measures have been experienced from its original establishm^t to the present time; a period of more than a 130 years. He wished to have provision made for steadiness & wisdom in the system to be adopted; but he thought six or four years would be sufficient. He sh^d be content with either.
M^r Read wished it to be considered by the small States that it was their interest that we should become one people as much as possible; that State attachments sh^d be extinguished as much as possible; that the Senate, sh^d be so constituted as to have the feelings of Citizens of the whole.
M^r Hamilton. He did not mean to enter particularly into the subject. He concurred with M^r Madison in thinking we were now to decide forever the fate of Republican Government; and that if we did not give to that form due stability and wisdom, it would be disgraced & lost among ourselves, disgraced & lost to mankind forever. He acknowledged himself not to think favorably of Republican Government; but addressed his remarks to those who did think favorably of it, in order to prevail on them to tone their Government as high as possible. He professed himself to be as zealous an advocate for liberty as any man whatever, and trusted he should be as willing a martyr to it though he differed as to the form in which it was most eligible.--He concurred also in the general observations of (M^r Madison) on the subject, which might be supported by others if it were necessary. It was certainly true that nothing like an equality of property existed; that an inequality would exist as long as liberty existed, and that it would unavoidably result from that very liberty itself. This inequality of property constituted the great & fundamental distinction in Society. When the Tribunitial power had levelled the boundary between the _patricians_ & _plebeians_, what followed? The distinction between rich & poor was substituted. He meant not however to enlarge on the subject. He rose principally to remark that (M^r Sherman) seemed not to recollect that one branch of the proposed Gov^t was so formed, as to render it particularly the guardians of the poorer orders of Citizens; nor to have adverted to the true causes of the stability which had been exemplified in Con^t. Under the British system as well as the federal, many of the great powers appertaining to Gov^t particularly all those relating to foreign Nations were not in the hands of the Gov^t there. Their internal affairs also were extremely simple, owing to sundry causes many of which were peculiar to that Country. Of late the Governm^t had entirely given way to the people, and had in fact suspended many of its ordinary functions in order to prevent those turbulent scenes which had appeared elsewhere. He asks M^r S. whether the State at this time dare impose & collect a tax on y^e people? To these causes & not to the frequency of elections, the effect as far as it existed ought to be chiefly ascribed.
M^r Gerry, wished we could be united in our ideas concerning a permanent Gov^t. All aim at the same end, but there are great differences as to the means. One circumstance He thought should be carefully attended to. There was not 1/1000 part of our fellow citizens who were not ag^{st} every approach towards Monarchy. Will they ever agree to a plan which seems to make such an approach. The Convention ought to be extremely cautious in what they hold out to the people. Whatever plan may be proposed will be espoused with warmth by many out of respect to the quarter it proceeds from as well as from an approbation of the plan itself. And if the plan should be of such a nature as to rouse a violent opposition, it is easy to foresee that discord & confusion will ensue, and it is even possible that we may become a prey to foreign powers. He did not deny the position of M^r Madison, that the majority will generally violate justice when they have an interest in so doing: But did not think there was any such temptation in this Country. Our situation was different from that of G. Britain; and the great body of lands yet to be parcelled out & settled would very much prolong the difference. Notwithstanding the symptoms of injustice which had marked many of our public Councils, they had not proceeded so far as not to leave hopes, that there would be a sufficient sense of justice & virtue for the purpose of Gov^t. He admitted the evils arising from a frequency of elections; and would agree to give the Senate a duration of four or five years. A longer term would defeat itself. It never would be adopted by the people.
M^r Wilson did not mean to repeat what had fallen from others, but w^d add an observation or two which he believed had not yet been suggested. Every nation may be regarded in two relations 1 to its own citizens. 2 to foreign nations. It is therefore not only liable to anarchy & tyranny within, but has wars to avoid & treaties to obtain from abroad. The Senate will probably be the depository of the powers concerning the latter objects. It ought therefore to be made respectable in the eyes of foreign Nations. The true reason why G. Britain has not yet listened to a commercial treaty with us has been, because she had no confidence in the stability or efficacy of our Government. 9 years with a rotation, will provide these desirable qualities; and give our Gov^t an advantage in this respect over Monarchy itself. In a Monarchy much must always depend on the temper of the man. In such a body, the personal character will be lost in the political. He w^d add another observation. The popular objection ag^{st} appointing any public body for a long term was that it might by gradual encroachments prolong itself first into a body for life, and finally become a hereditary one. It would be a satisfactory answer to this objection that as 1/3 would go out triennially, there would be always three divisions holding their places for unequal times, and consequently acting under the influence of different views, and different impulses.--On the question for 9 years, 1/3 to go out triennially,
Mass^{ts} no. Con^t, no. N. Y. no. N. J. no. P^a ay. Del. ay. M^d no. V^a ay. N. C. no. S. C. no. Geo. no.
On the question for 6 years,[110] 1/3 to go out biennially
Mass^{ts} ay. Con^t ay. N. Y. no. N. J. no. P^a ay. Del. ay. M^d ay. V^a ay. N. C. ay. S. C. no. Geo. no.
[110] Yates has the question on _five_ years, but this is obviously a mistake.--Yates, _Secret Proceedings_, etc., 172.
"To receive fixt stipends by which they may be compensated for their services" considered.
General Pinkney proposed "that no Salary should be allowed." As this (the Senatorial) branch was meant to represent the wealth of the Country, it ought to be composed of persons of wealth; and if no allowance was to be made the wealthy alone would undertake the service. He moved to strike out the clause.
Doct^r Franklin seconded the motion. He wished the Convention to stand fair with the people. There were in it a number of young men who would probably be of the Senate. If lucrative appointments should be recommended we might be chargeable with having carved out places for ourselves. On the question,--Mas^{ts} Connecticut[111] P^a M^d S. Carolina ay. N. Y. N. J. Del. Virg^a N. C. Geo. no.
[111] Quer. whether Connecticut should not be, no. & Delaware, ay.--Madison's Note.
M^r Williamson moved to change the expression into these words to wit "to receive a compensation for the devotion of their time to the public service." The motion was seconded by M^r Elseworth, and agreed to by all the States except S. Carol^a. It seemed to be meant only to get rid of the word "fixt" and leave greater room for modifying the provision on this point.
M^r Elseworth moved to strike out "to be paid out of the Nat^l Treasury" and insert "to be paid by their respective States." If the Senate was meant to strengthen the Gov^t it ought to have the confidence of the States. The States will have an interest in keeping up a representation, and will make such provision for supporting the members as will ensure their attendance.
M^r Madison considered this as a departure from a fundamental principle, and subverting the end intended by allowing the Senate a duration of 6 years. They would if this motion should be agreed to, hold their places during pleasure; during the pleasure of the State Legislatures. One great end of the institution was, that being a firm, wise and impartial body, it might not only give stability to the Gen^l Gov^t in its operations on individuals, but hold an even balance among different States. The motion would make the Senate like Congress, the mere Agents & Advocates of State interests & views, instead of being the impartial umpires & Guardians of justice and the general Good. Cong^s had lately by the establishment of a board with full powers to decide on the mutual claims between the U. States & the individual States, fairly acknowledged themselves to be unfit for discharging this part of the business referred to them by the Confederation.
M^r Dayton[112] considered the payment of the Senate by the States as fatal to their independence, he was decided for paying them out of the Nat^l Treasury.
[112] "Cap. Dayton is a young Gentleman of talents, with ambition to exert them. He possesses a good education and some reading; he speaks well, and seems desirous of improving himself in Oratory. There is an impetuosity in his temper that is injurious to him; but there is an honest rectitude about him that makes him a valuable Member of Society, and secures to him the esteem of all good Men. He is about 30 years old, served with me a Brother Aid to General Sullivan in the Western Expedition of '79."--Pierce's Notes, _Am. Hist. Rev._, iii., 328.
On the question for payment of the Senate to be left to the States as moved by M^r Elseworth.
Mass^{ts} no. Con^t ay. N. Y. ay. N. J. ay. P^a no. Del. no. M^d no. V^a no. N. C. no. S. C. ay. Geo. ay.
Col. Mason. He did not rise to make any motion, but to hint an idea which seemed to be proper for consideration. One important object in constituting the Senate was to secure the rights of property. To give them weight & firmness for this purpose, a considerable duration in office was thought necess[~a]y. But a longer term than 6 years, would be of no avail in this respect, if needy persons should be appointed. He suggested therefore the propriety of annexing to the office a qualification of property. He thought this would be very practicable; as the rules of taxation would supply a scale for measuring the degree of wealth possessed by every man.
A question was then taken whether the words "to be paid out of the public treasury," should stand.
Mass^{ts} ay. Con^t no. N. Y. 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 Butler moved to strike out the ineligibility of Senators to _State offices_.
Mr. Williamson seconded the motion.[113]
[113] According to Yates, before Wilson spoke:
"Mr. Madison. Congress heretofore depended on state interests; we are now going to pursue the same plan."--Yates, _Secret Proceedings_, etc., 173.
M^r Wilson remarked the additional dependance this w^d create in the Senators on the States. The longer the time he observed allotted to the Officer, the more compleat will be the dependance if it exists at all.[114]
[114] After Wilson, according to Yates:
"Mr. Butler. This second branch I consider as the aristocratic part of our government; and they must be controlled by the states, or they will be too independent."--Yates, _Secret Proceedings_, etc., 173.
Gen^l Pinkney was for making the States as much as could be conveniently done, a part of the Gen^l Gov^t. If the Senate was to be appointed by the States, it ought in pursuance of the same idea to be paid by the States: and the States ought not to be barred from the opportunity of calling members of it into offices at home. Such a restriction would also discourage the ablest men from going into the Senate.
M^r Williamson moved a resolution so penned as to admit of the two following questions. 1. whether the members of the Senate should be ineligible to & incapable of holding offices _under the U. States_
2. Whether &c. under the _particular States_.
On the Question to postpone in order to consider Williamson's Resol^n Mas^{ts} no. Con^t ay. N. Y. no. N. J. no. P^a ay. Del. ay. M^d ay. V^a ay. N. C. ay. S. C. ay. Geo. ay.
M^r Gerry & M^r Madison move to add to M^r Williamson's 1. Quest: "and for 1 year thereafter." On this amend^t
Mas^{ts} no. Con^t ay. N. Y. ay. N. J. no. P^a no. Del. ay. M^d ay. V^a ay. N. C. ay. S. C. ay. Geo. no.
On M^r Will[iam]son's 1 Question as amend^{ed} vz, inelig: & incapable &c. &c. for 1 year &c. ag^d to un[~a]mously.
On the 2. question as to ineligibility &c. to State offices,
Mass. ay. C^t no. N. Y. no. N. J. no. P^a ay. Del. no. M^d no. V^a ay. N. C. no. S. C. no. Geo. no.
The 5. Resol: "that each branch have the right of originating acts," was agreed to nem. con.
Adj^d.
WEDNESDAY JUNE 27. IN CONVENTION.
M^r Rutlidge moved to postpone the 6^{th} Resolution, defining the powers of Cong^s in order to take up the 7 & 8 which involved the most fundamental points; the rules of suffrage in the 2 branches which was agreed to nem. con.
A question being proposed on the Resol: 7; declaring that the suffrage in the first branch sh^d be according to an equitable ratio.
M^r L. Martin[115] contended at great length and with great eagerness that the General Gov^t was meant merely to preserve the State Govern^{ts} not to govern individuals: that its powers ought to be kept within narrow limits: that if too little power was given to it, more might be added; but that if too much, it could never be resumed: that individuals as such have little to do but with their own States; that the Gen^l Gov^t has no more to apprehend from the States composing the Union, while it pursues proper measures, that Gov^t over individuals has to apprehend from its subjects: that to resort to the Citizens at large for their sanction to a new Govern^t will be throwing them back into a state of Nature; that the dissolution of the State Gov^{ts} is involved in the nature of the process; that the people have no right to do this without the consent of those to whom they have delegated their power for State purposes: through their tongues only they can speak, through their ears, only can hear: that the States have shewn a good disposition to comply with the Acts of Cong^s, weak, contemptibly weak as that body has been; and have failed through inability alone to comply: that the heaviness of the private debts, and the waste of property during the war, were the chief causes of this inability; that he did not conceive the instances mentioned by M^r Madison of compacts between V^a & M^d between P^a & N. J. or of troops raised by Mass^{ts} for defence against the Rebels, to be violations of the articles of confederation--that an equal vote in each State was essential to the federal idea, and was founded in justice & freedom, not merely in policy: that tho' the States may give up this right of sovereignty, yet they had not, and ought not: that the States like individuals were in a State of nature equally sovereign & free. In order to prove that individuals in a State of Nature are equally free & independent he read passages from Locke, Vattel, Lord Summers--Priestly. To prove that the case is the same with States till they surrender their equal sovereignty, he read other passages in Locke & Vattel, and also Rutherford: that the States being equal cannot treat or confederate so as to give up an equality of votes without giving up their liberty: that the propositions on the table were a system of slavery for 10 States: that as V^a Mass^{ts} & P^a have 42/90 of the votes they can do as they please without a miraculous Union of the other ten: that they will have nothing to do, but to gain over one of the ten to make them compleat masters of the rest; that they can then appoint an Execut^e & Judiciary & legislate for them as they please: that there was & would continue a natural predilection & partiality in men for their own States; that the States, particularly the smaller, would never allow a negative to be exercised over their laws: that no State in Ratifying the Confederation had objected to the equality of votes; that the complaints at present run not ag^{st} this equality but the want of power: that 16 members from V^a would be more likely to act in concert than a like number formed of members from different States: that instead of a junction of the small States as a remedy, he thought a division of the large States would be more eligible.--This was the substance of a speech which was continued more than three hours. He was too much exhausted he said to finish his remarks, and reminded the House that he should tomorrow, resume them.
[115] "Mr. Martin, the Attorney-General from Maryland, spoke on this subject upwards of three hours. As his arguments were too diffuse, and in many instances desultory, it was not possible to trace him through the whole, or to methodize his ideas into a systematic or argumentative arrangement."--Yates, _Secret Proceedings_, etc., 174.
Adj^d.
THURSDAY JUNE 28TH. IN CONVENTION
M^r L. Martin resumed his discourse,[116] contending that the Gen^l Gov^t ought to be formed for the States, not for individuals: that if the States were to have votes in proportion to their numbers of people, it would be the same thing whether their representatives were chosen by the Legislatures or the people; the smaller States would be equally enslaved; that if the large States have the same interest with the smaller as was urged, there could be no danger in giving them an equal vote; they would not injure themselves, and they could not injure the large ones on that supposition without injuring themselves and if the interests, were not the same, the inequality of suffrage w^d be dangerous to the smaller States: that it will be in vain to propose any plan offensive to the rulers of the States, whose influence over the people will certainly prevent their adopting it: that the large States were weak at present in proportion to their extent; & could only be made formidable to the small ones, by the weight of their votes: that in case a dissolution of the Union should take place, the small States would have nothing to fear from their power; that if in such a case the three great States should league themselves together, the other ten could do so too; & that he had rather see partial Confederacies take place, than the plan on the table. This was the substance of the residue of his discourse which was delivered with much diffuseness & considerable vehemence.
[116] Yates gives Martin's speech more fully:
"On federal grounds, it is said, that a minority will govern a majority--but on the Virginia plan a minority would tax a majority. In a federal government, a majority of states must and ought to tax. In the local government of states, counties may be unequal--still numbers, not property, govern. What is the government now forming, over states or persons? As to the latter, their rights cannot be the object of a general government. These are already secured by their guardians, the state governments. The general government is therefore intended only to protect and guard the rights of the states as states.
"This general government, I believe, is the first upon earth which gives checks against democracies or aristocracies. The only necessary check in a general government ought to be a restraint to prevent its absorbing the powers of the state governments. Representation on federal principles can only flow from state societies. Representation and taxation are ever inseparable--not according to the quantum of property, but the quantum of freedom.
"Will the representatives of a state forget state interests? The mode of election cannot change it. These prejudices cannot be eradicated--Your general government cannot be just or equal upon the Virginia plan, unless you abolish state interests. If this cannot be done, you must go back to principles purely federal.
"On this latter ground, the state legislatures and their constituents will have no interests to pursue different from the general government, and both will be interested to support each other. Under these ideas can it be expected that the people can approve the Virginia plan? But it is said, the people, not the state legislatures, will be called upon for approbation--with an evident design to separate the interests of the governors from the governed. What must be the consequence? Anarchy and confusion. We lose the ideas of the powers with which we are intrusted. The legislatures must approve. By them it must, on your own plan, be laid before the people. How will such a government, over so many great states, operate. Wherever new settlements have been formed in large states, they immediately want to shake off their independency. Why? Because the government is too remote for their good. The people want it nearer home.
"The basis of all ancient and modern confederacies is the freedom and the independency of the states composing it. The states forming the amphictionic council were equal, though Lacedemon, one of the greatest states, attempted the exclusion of three of the lesser states from this right. The plan reported, it is true, only intends to diminish those rights, not to annihilate them--It was the ambition and power of the great Grecian states which at last ruined this respectable council. The states as societies are ever respectful. Has Holland or Switzerland ever complained of the equality of the states which compose their respective confederacies? Bern and Zurich are larger than the remaining eleven cantons--so of many of the states of Germany; and yet their governments are not complained of. Bern alone might usurp the whole power of the Helvetic confederacy, but she is contented still with being equal.
"The admission of the larger states into the confederation, on the principle of equality, is dangerous--But on the Virginia system it is ruinous and destructive. Still it is the true interest of all the states to confederate--It is their joint efforts which must protect and secure us from foreign danger, and give us peace and harmony at home.
"(Here Mr. Martin entered into a detail of the comparative powers of each state, and stated their probable weakness and strength.)
"At the beginning of our troubles with Great Britain, the smaller states were attempted to be cajoled to submit to the views of that nation, lest the larger states should usurp their rights. We then answered them--your present plan is slavery, which on the remote prospect of a distant evil, we will not submit to.
"I would rather confederate with any single state, than submit to the Virginia plan. But we are already confederated, and no power on earth can dissolve it but by the consent of _all_ the contracting powers--and four states, on this floor, have already declared their opposition to annihilate it. Is the old confederation dissolved, because some of the states wish a new confederation?"--Yates, _Secret Proceedings_, etc., 177.
M^r Lansing & M^r Dayton moved to strike out "not," so that the 7 art. might read that the rights of suffrage in the 1^{st} branch ought to be according to the rule established by the Confederation."
M^r Dayton expressed great anxiety that the question might not be put till tomorrow; Govern^r Livingston being kept away by indisposition, and the representation of N. Jersey thereby suspended.
M^r Williamson, thought that if any political truth could be grounded on mathematical demonstration, it was that if the States were equally sovereign now, and parted with equal proportions of sovereignty, that they would remain equally sovereign. He could not comprehend how the smaller States would be injured in the case, and wished some Gentleman would vouchsafe a solution of it. He observed that the small States, if they had a plurality of votes would have an interest in throwing the burdens off their own shoulders on those of the large ones. He begged that the expected addition of new States from the Westward might be kept in view. They would be small States, they would be poor States, they would be unable to pay in proportion to their numbers; their distance from market rendering the produce of their labour less valuable; they would consequently be tempted to combine for the purpose of laying burdens on com[~m]erce & consumption which would fall with greatest weight on the old States.
M^r Madison, s^d he was much disposed to concur in any expedient not inconsistent with fundamental principles, that could remove the difficulty concerning the rule of representation. But he could neither be convinced that the rule contended for was just, nor necessary for the safety of the small States ag^{st} the large States. That it was not just, had been conceded by M^r Breerly & M^r Paterson themselves. The expedient proposed by them was a new partition of the territory of the U. States. The fallacy of the reasoning drawn from the equality of Sovereign States in the formation of compacts, lay in confounding together mere Treaties, in which were specified certain duties to which the parties were to be bound, and certain rules by which their subjects were to be reciprocally governed in their intercourse, with a compact by which an authority was created paramount to the parties, & making laws for the government of them. If France, England & Spain were to enter into a Treaty for the regulation of commerce &c. with the Prince of Monacho & 4 or 5 other of the smallest sovereigns of Europe, they would not hesitate to treat as equals, and to make the regulations perfectly reciprocal. W^d the case be the same, if a Council were to be formed of deputies from each with authority and discretion, to raise money, levy troops, determine the value of coin &c.? Would 30 or 40, million of people submit their fortunes into the hands of a few thousands? If they did it would only prove that they expected more from the terror of their superior force, than they feared from the selfishness of their feeble associates. Why are Counties of the Same States represented in proportion to their numbers? Is it because the representatives are chosen by the people themselves? So will be the representatives in the Nation^l Legislature. Is it because, the larger have more at stake than the smaller? The Case will be the same with the larger & smaller States. Is it because the laws are to operate immediately on their persons & properties? The same is the case in some degree as the articles of confederation stand; the same will be the case in a far greater degree, under the plan proposed to be substituted. In the cases of captures, of piracies, and of offences in a federal army, the property & persons of individuals depend on the laws of Cong^s. By the plan proposed a compleat power of taxation, the highest prerogative of supremacy is proposed to be vested in the National Gov^t. Many other powers are added which assimilate it to the Gov^t of individual States. The negative proposed on the State laws, will make it an essential branch of the State Legislatures & of course will require that it should be exercised by a body established on like principles with the other branches of those Legislatures.--That it is not necess[~a]y to secure the small States ag^{st} the large ones he conceived to be equally obvious: Was a combination of the large ones dreaded? This must arise either from some interest common to V^a Mass^{ts} & P^a & distinguishing them from the other States, or from the mere circumstance of similarity of size. Did any such common interest exist? In point of situation they could not have been more effectually separated from each other by the most jealous citizen of the most jealous State. In point of manners, Religion, and the other circumstances which sometimes beget affection between different communities, they were not more assimilated than the other States--In point of the staple productions they were as dissimilar as any three other States in the Union. The Staple of Mass^{ts} was _fish_, of P^a _flower_, of V^a _Tob^o_. Was a Combination to be apprehended from the mere circumstance of equality of size? Experience suggested no such danger. The journals of Cong^s did not present any peculiar association of these States in the votes recorded. It had never been seen that different Counties in the same State, conformable in extent, but disagreeing in other circumstances, betrayed a propensity to such combinations. Experience rather taught a contrary lesson. Among individuals of superior eminence & weight in Society, rivalships were much more frequent than coalitions. Among independent Nations, pre-eminent over their neighbours, the same remark was verified. Carthage & Rome tore one another to pieces instead of uniting their forces to devour the weaker nations of the Earth. The Houses of Austria & France were hostile as long as they remained the greatest powers of Europe. England & France have succeeded to the pre-eminence & to the enmity. To this principle we owe perhaps our liberty. A coalition between those powers would have been fatal to us. Among the principal members of antient & Modern confederacies, we find the same effect from the same cause. The contentions, not the Coalitions of Sparta, Athens & Thebes, proved fatal to the smaller members of the Amphyctionic Confederacy. The contentions, not the combinations of Prussia & Austria, have distracted & oppressed the German empire. Were the large States formidable _singly_ to their smaller neighbours? On this supposition the latter ought to wish for such a General Gov^t as will operate with equal energy on the former as on themselves. The more lax the band, the more liberty the larger will have to avail themselves of their superior force. Here again Experience was an instructive monitor. What is y^e situation of the weak compared with the strong in those stages of civilization in which the violence of individuals is least controuled by an efficient Government? The Heroic period of Antient Greece, the feudal licentiousness of the middle ages of Europe, the existing condition of the American Savages, answer this question. What is the situation of the minor sovereigns in the great society of independent nations, in which the more powerful are under no controul but the nominal authority of the law of Nations? Is not the danger to the former exactly in proportion to their weakness. But there are cases still more in point. What was the condition of the weaker members of the Amphyctionic Confederacy. Plutarch (life of Themistocles) will inform us that it happened but too often that the strongest cities corrupted & awed the weaker, and that Judgment went in favor of the more powerful party. What is the condition of the lesser states in the German Confederacy? We all know that they are exceedingly trampled upon: and that they owe their safety as far as they enjoy it, partly to their enlisting themselves, under the rival banners of the pre-eminent members, partly to alliances with neighbouring Princes which the Constitution of the Empire does not prohibit. What is the state of things in the lax system of the Dutch Confederacy? Holland contains about 1/2 the People, supplies about 1/2 of the money, and by her influence, silently & indirectly governs the whole republic. In a word; the two extremes before us are a perfect separation & a perfect incorporation, of the 13 States. In the first case they would be independent nations subject to no law, but the law of nations. In the last, they would be mere counties of one entire republic, subject to one common law. In the first case the smaller States would have every thing to fear from the larger. In the last they would have nothing to fear. The true policy of the small States therefore lies in promoting those principles & that form of Gov^t which will most approximate the States to the condition of counties. Another consideration may be added. If the Gen^l Gov^t be feeble, the large States distrusting its continuance, and foreseeing that their importance & security may depend on their own size & strength, will never submit to a partition. Give to the Gen^l Gov^t sufficient energy & permanency, & you remove the objection. Gradual partitions of the large, & junctions of the small States will be facilitated, and time may effect that equalization, which is wished for by the small States now, but can never be accomplished at once.
M^r Wilson. The leading argument of those who contend for equality of votes among the States is that the States as such being equal, and being represented not as districts of individuals, but in their political & corporate capacities, are entitled to an equality of suffrage. According to this mode of reasoning the representation of the boroughs in Engl[~d] which has been allowed on all hands to be the rotten part of the Constitution, is perfectly right & proper. They are like the States represented in their corporate capacity like the States therefore they are entitled to equal voices, old Sarum to as many as London. And instead of the injury supposed hitherto to be done to London, the true ground of Complaint lies with old Sarum: for London instead of two which is her proper share, sends four representatives to Parliament.[117]
[117] According to King's Notes, Charles Pinckney spoke after Madison: "_Charles Pinckney._ The Honors & offices may become the objects of strong desire and of combination to acquire them. If Representatives be apportioned among the States in the Ratio of numbers, the Citizens will be free and equal but the States will be unequal, and their sovereignty will be degraded."--King's _Life and Correspondence of Rufus King_, i., 610.
M^r Sherman. The question is not what rights naturally belong to man; but how they may be most equally & effectually guarded in Society. And if some give up more than others in order to obtain this end, there can be no room for complaint. To do otherwise, to require an equal concession from all, if it would create danger to the rights of some, would be sacrificing the end to the means. The rich man who enters into Society along with the poor man, gives up more than the poor man, yet with an equal vote he is equally safe. Were he to have more votes than the poor man in proportion to his superior stake the rights of the poor man would immediately cease to be secure. This consideration prevailed when the articles of Confederation were formed.[118]
[118] According to Yates, Madison followed Sherman: "Mr. Madison. There is danger in the idea of the gentleman from Connecticut. Unjust representation will ever produce it. In the United Netherlands, Holland governs the whole, although she has only one vote. The counties in Virginia are exceedingly disproportionate, and yet the smaller has an equal vote with the greater, and no inconvenience arises."--Yates, _Secret Proceedings_, etc., 182.
The determination of the question from striking out the word "not" was put off till tomorrow at the request of the Deputies of N. York.
Doc^r Franklin. M^r President.
The small progress we have made after 4 or five weeks close attendance & continual reasonings with each other--our different sentiments on almost every question, several of the last producing as many noes as ays, is methinks a melancholy proof of the imperfection of the Human Understanding. We indeed seem to feel our own want of political wisdom, since we have been running about in search of it. We have gone back to ancient history for models of Government, and examined the different forms of those Republics which having been formed with the seeds of their own dissolution now no longer exist. And we have viewed Modern States all round Europe, but find none of their Constitutions suitable to our circumstances.
In this situation of this Assembly, groping as it were in the dark to find political truth, and scarce able to distinguish it when presented to us, how has it happened, Sir, that we have not hitherto once thought of humbly applying to the Father of lights to illuminate our understandings? In the beginning of the Contest with G. Britain, when we were sensible of danger we had daily prayer in this room for the divine protection.--Our prayers, Sir, were heard, & they were graciously answered. All of us who were engaged in the struggle must have observed frequent instances of a superintending providence in our favor. To that kind providence we owe this happy opportunity of consulting in peace on the means of establishing our future national felicity. And have we now forgotten that powerful friend? or do we imagine that we no longer need his assistance? I have lived, Sir, a long time, and the longer I live, the more convincing proofs I see of this truth--_that God Governs in the affairs of men_. And if a sparrow cannot fall to the ground without his notice, is it probable that an empire can rise without his aid? We have been assured, Sir, in the sacred writings that "except the Lord build the House they labour in vain that build it." I firmly believe this; and I also believe that without his concurring aid we shall succeed in this political building no better than the Builders of Babel: We shall be divided by our little partial local interests; our projects will be confounded, and we ourselves shall become a reproach and bye word down to future ages. And what is worse, mankind may hereafter from this unfortunate instance, despair of establishing Governments by Human wisdom and leave it to chance, war and conquest.
I therefore beg leave to move--that henceforth prayers imploring the assistance of Heaven, and its blessings on our deliberations, be held in this Assembly every morning before we proceed to business, and that one or more of the Clergy of this City be requested to officiate in that Service--
M^r Sherman seconded the motion.
M^r Hamilton & several others expressed their apprehensions that however proper such a resolution might have been at the beginning of the convention, it might at this late day, 1. bring on it some disagreeable animadversions, & 2. lead the public to believe that the embarrassments and dissensions within the Convention, had suggested this measure. It was answered by Doc^r F. M^r Sherman & others, that the past omission of a duty could not justify a further omission--that the rejection of such a proposition would expose the Convention to more unpleasant animadversions than the adoption of it: and that the alarm out of doors that might be excited for the state of things within, would at least be as likely to do good as ill.
M^r Williamson, observed that the true cause of the omission could not be mistaken. The Convention had no funds.
M^r Randolph proposed in order to give a favorable aspect to y^e measure, that a sermon be preached at the request of the convention on 4^{th} of July, the anniversary of Independence; & thenceforward prayers be used in y^e Convention every morning. D^r Frank^n 2^{ded} this motion. After several unsuccessful attempts for silently postponing this matter by adjourn^g the adjournment was at length carried, without any vote on the motion.
FRIDAY JUNE 29^{TH} IN CONVENTION.
Doc^r Johnson. The controversy must be endless whilst Gentlemen differ in the grounds of their arguments; Those on one side considering the States as districts of people composing one political Society; those on the other considering them as so many political societies. The fact is that the States do exist as political Societies, and a Gov^t is to be formed for them in their political capacity, as well as for the individuals composing them. Does it not seem to follow, that if the States as such are to exist they must be armed with some power of self-defence. This is the idea of (Col. Mason) who appears to have looked to the bottom of this matter. Besides the aristocratic and other interests, which ought to have the means of defending themselves, the States have their interests as such, and are equally entitled to like means. On the whole he thought that as in some respects the States are to be considered in their political capacity, and in others as districts of individual citizens the two ideas embraced on different sides, instead of being opposed to each other, ought to be combined; that in _one_ branch the _people_, ought to be represented, in the _other_ the _States_.
M^r Ghoram. The States as now confederated have no doubt a right to refuse to be consolidated, or to be formed into any new system. But he wished the small States which seemed most ready to object, to consider which are to give up most, they or the larger ones. He conceived that a rupture of the Union w^d be an event unhappy for all, but surely the large States would be least unable to take care of themselves, and to make connections with one another. The weak therefore were most interested in establishing some general system for maintaining order. If among individuals, composed partly of weak, and partly of strong, the former most need the protection of law & Government, the case is exactly the same with weak & powerful States. What would be the situation of Delaware (for these things he found must be spoken out, & it might as well be done at first as last) what w^d be the situation of Delaware in case of a separation of the States? Would she not be at the mercy of Pennsylvania? would not her true interest lie in being consolidated with her, and ought she not now to wish for such a union with P^a under one Gov^t as will put it out of the power of Pen^a to oppress her? Nothing can be more ideal than the danger apprehended by the States from their being formed into one nation. Mass^{ts} was originally three colonies, viz old Mass^{ts} Plymouth--& the province of Mayne. These apprehensions existed then. An incorporation took place; all parties were safe & satisfied; and every distinction is now forgotten. The case was similar with Connecticut & New haven. The dread of Union was reciprocal; the consequence of it equally salutary and satisfactory. In like manner N. Jersey has been made one society out of two parts. Should a separation of the States take place, the fate of N. Jersey w^d be worst of all. She has no foreign commerce & can have but little. P^a & N. York will continue to levy taxes on her consumption. If she consults her interest she w^d beg of all things to be annihilated. The apprehensions of the small States ought to be appeased by another reflection Mass^{ts} will be divided. The province of Maine is already considered as approaching the term of its annexation to it; and P^a will probably not increase, considering the present state of her population, & other events that may happen. On the whole he considered a Union of the States as necessary to their happiness, & a firm Gen^l Gov^t as necessary to their Union. He sh^d consider it as his duty if his colleagues viewed the matter in the same light he did to stay here as long as any other State would remain with them, in order to agree on some plan that could with propriety be recommended to the people.
M^r Elseworth, did not despair. He still trusted that some good plan of Gov^t w^d be devised & adopted.
M^r Read. He sh^d have no objection to the system if it were truly national, but it has too much of a federal mixture in it. The little States he thought had not much to fear. He suspected that the large States felt their want of energy, & wished for a Gen^l Gov^t to supply the defect. Mass^{ts} was evidently labouring under her weakness and he believed Delaware w^d not be in much danger if in her neighbourhood. Delaware had enjoyed tranquillity & he flattered himself w^d continue to do so. He was not however so selfish as not to wish for a good Gen^l Gov^t. In order to obtain one the whole States must be incorporated. If the States remain, the representatives of the large ones will stick together, and carry everything before them. The Executive also will be chosen under the influence of this partiality, and will betray it in his administration. These jealousies are inseparable from the scheme of leaving the States in existence. They must be done away. The ungranted lands also which have been assumed by particular States must also be given up. He repeated his approbation of the plan of M^r Hamilton, & wished it to be substituted in the place of that on the table.
M^r Madison agreed with Doc^r Johnson, that the mixed nature of the Gov^t ought to be kept in view; but thought too much stress was laid on the rank of the States as political societies. There was a gradation, he observed from the smallest corporation, with the most limited powers, to the largest empire with the most perfect sovereignty. He pointed out the limitations on the sovereignty of the States, as now confederated their laws in relation to the paramount law of the Confederacy were analagous to that of bye laws to the supreme law within a State. Under the proposed Gov^t the powers of the States will be much farther reduced. According to the views of every member, the Gen^l Gov^t will have powers far beyond those exercised by the British Parliament, when the States were part of the British Empire. It will in particular have the power, without the consent of the State Legislatures, to levy money directly on the people themselves; and therefore not to divest such _unequal_ portions of the people as composed the several States, of an _equal_ voice, would subject the system to the reproaches & evils which have resulted from the vicious representation in G. B.
He entreated the gentlemen representing the small States to renounce a principle w^{ch} was confessedly unjust, which c^d never be admitted, & if admitted must infuse mortality into a Constitution which we wished to last forever. He prayed them to ponder well the consequences of suffering the Confederacy to go to pieces. It had been s^d that the want of energy in the large states w^d be a security to the small. It was forgotten that this want of energy proceeded from the supposed security of the States ag^{st} all external danger. Let each state depend on itself for its security, & let apprehensions arise of danger, from distant powers or from neighbouring States, & the languishing condition of all the States, large as well as small, w^d soon be transformed into vigorous & high toned Gov^{ts}. His great fear was that their Gov^{ts} w^d then have too much energy, that these might not only be formidable in the large to the small States, but fatal to the internal liberty of all. The same causes which have rendered the old world the Theatre of incessant wars, & have banished liberty from the face of it, w^d soon produce the same effects here. The weakness & jealousy of the small States w^d quickly introduce some regular military force ag^{st} sudden danger from their powerful neighbours. The example w^d be followed by others, and w^d soon become universal. In time of actual war, great discretionary powers are constantly given to the Executive Magistrate. Constant apprehension of war, has the same tendency to render the head too large for the body. A standing military force, with an overgrown Executive will not long be safe companions to liberty. The means of defence ag^{st} foreign danger, have been always the instruments of tyranny at home. Among the Romans it was a standing maxim to excite a war, whenever a revolt was apprehended. Throughout all Europe, the armies kept up under the pretext of defending, have enslaved the people. It is perhaps questionable, whether the best concerted system of absolute power in Europe c^d maintain itself, in a situation, where no alarms of external danger c^d tame the people to the domestic yoke. The insular situation of G. Britain was the principal cause of her being an exception to the general fate of Europe. It has rendered less defence necessary, and admitted a kind of defence w^{ch} c^d not be used for the purpose of oppression.--These consequences he conceived ought to be apprehended whether the States should run into a total separation from each other, or sh^d enter into partial confederacies. Either event w^d be truly deplorable; & those who might be accessary to either, could never be forgiven by their Country, nor by themselves.
[119]M^r Hamilton observed that individuals forming political Societies modify their rights differently with regard to suffrage. Examples of it are found in all the States. In all of them some individuals are deprived of the right altogether, not having the requisite qualification of property. In some of the States the right of suffrage is allowed in some cases and refused in others. To vote for a member in one branch, a certain quantum of property, to vote for a member in another branch of the Legislature, a higher quantum of property is required. In like manner States may modify their right of suffrage differently, the larger exercising a larger, the smaller a smaller share of it. But as States are a collection of individual men which ought we to respect most, the rights of the people composing them, or of the artificial beings resulting from the composition. Nothing could be more preposterous or absurd than to sacrifice the former to the latter. It has been s^d that if the smaller States renounce their _equality_, they renounce at the same time their _liberty_. The truth is it is a contest for power, not for liberty. Will the men composing the small States be less free than those composing the larger. The State of Delaware having 40,000 souls will _lose power_, if she has 1/10 only of the votes allowed to P^a having 400,000: but will the people of Del: _be less free_, if each citizen has an equal vote with each citizen of P^a He admitted that common residence within the same State would produce a certain degree of attachment; and that this principle might have a certain influence in public affairs. He thought however that this might by some precautions be in a great measure excluded: and that no material inconvenience could result from it, as there could not be any ground for combination among the States whose influence was most dreaded. The only considerable distinction of interests, lay between the carrying & non-carrying States, which divides instead of uniting the largest States. No considerable inconvenience had been found from the division of the State of N. York into different districts of different sizes.
[119] From this date he was absent till the ---- of ----.--Madison's Note.
Some of the consequences of a dissolution of the Union, and the establishment of partial confederacies, had been pointed out. He would add another of a most serious nature. Alliances will immediately be formed with different rival & hostile nations of Europes, who will foment disturbances among ourselves, and make us parties to all their own quarrels. Foreign Nations having American dominion are & must be jealous of us. Their representatives betray the utmost anxiety for our fate, & for the result of this meeting, which must have an essential influence on it.--It had been said that respectability in the eyes of foreign Nations was not the object at which we aimed; that the proper object of republican Government was domestic tranquillity & happiness. This was an ideal distinction. No Government could give us tranquillity & happiness at home, which did not possess sufficient stability and strength to make us respectable abroad. This was the critical moment for forming such a Government. We should run every risk in trusting to future amendments. As yet we retain the habits of union. We are weak & sensible of our weakness. Henceforward the motives will become feebler, and the difficulties greater. It is a miracle that we were now here exercising our tranquil & free deliberations on the subject. It would be madness to trust to future miracles. A thousand causes must obstruct a reproduction of them.
M^r Pierce considered the equality of votes under the Confederation as the great source of the public difficulties. The members of Cong^s were advocates for local advantages. State distinctions must be sacrificed as far as the general good required, but without destroying the States. Tho' from a small State he felt himself a Citizen of the U. S.
M^r Gerry, urged that we never were independent States, were not such now, & never could be even on the principles of the Confederation. The States & the advocates for them were intoxicated with the idea of their _sovereignty_. He was a member of Congress at the time the federal articles were formed. The injustice of allowing each State an equal vote was long insisted on. He voted for it, but it was ag^{st} his Judgment, and under the pressure of public danger, and the obstinacy of the lesser States. The present Confederation he considered as dissolving. The fate of the Union will be decided by the Convention. If they do not agree on something, few delegates will probably be appointed to Cong^s. If they do Cong^s will probably be kept up till the new System should be adopted. He lamented that instead of coming here like a band of brothers, belonging to the same family, we seemed to have brought with us the spirit of political negotiators.
M^r L. Martin remarked that the language of the States being _sovereign & independent_, was once familiar & understood; though it seemed now so strange & obscure. He read those passages in the articles of Confederation, which describe them in that language.
On the question as moved by M^r Lansing. Shall the word "not" be struck out.
Mass^{ts} no. Con^t ay. N. Y. ay. N. J. ay. P^a no. Del. ay. M^d div^d. V^a no. N. C. no. S. C. no. Geo. no.
On the motion to agree to the clause as reported, "that the rule of suffrage in the 1^{st} branch ought not to be according to that established by the Articles of the Confederation
Mass. ay. Con^t no. N. Y. no. N. J. no. P^a ay. Del. no. M^d div^d. V^a ay. N. C. ay. S. C. ay. Geo. ay.
Doc^r Johnson & M^r Elseworth moved to postpone the residue of the clause, & take up y^e 8 Resol:
On question
Mas. no. Con^t ay. N. Y. 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 Elseworth moved that the rule of suffrage in the 2^d branch be the same with that established by the articles of Confederation. "He was not sorry on the whole he said that the vote just passed, had determined against this rule in the first branch. He hoped it would become a ground of compromise with regard to the 2^d branch. We were partly national; partly federal. The proportional representation in the first branch was conformable to the national principle & would secure the large States ag^{st} the small. An equality of voices was conformable to the federal principle and was necessary to secure the Small States ag^{st} the large. He trusted that on this middle ground a compromise would take place. He did not see that it could on any other. And if no compromise should take place, our meeting would not only be in vain but worse than in vain. To the Eastward he was sure Mass^{ts} was the only State that would listen to a proposition for excluding the States as equal political Societies, from an equal voice in both branches. The others would risk every consequence rather than part with so dear a right. An attempt to deprive them of it, was at once cutting the body of America in two, and as he supposed would be the case, somewhere about this part of it. The large States he conceived would notwithstanding the equality of votes, have an influence that would maintain their superiority. Holland, as had been admitted (by M^r Madison) had, notwithstanding a like equality in the Dutch Confederacy, a prevailing influence in the public measures. The power of self defence was essential to the small States. Nature had given it to the smallest insect of the creation. He could never admit that there was no danger of combinations among the large States. They will like individuals find out and avail themselves of the advantage to be gained by it. It was true the danger would be greater if they were contiguous and had a more immediate common interest. A defensive combination of the small States was rendered more difficult by their great number. He would mention another consideration of great weight. The existing confederation was founded on the equality of the States in the article of suffrage: was it meant to pay no regard to this antecedent plighted faith. Let a strong Executive, a Judiciary & Legislative power be created, but Let not too much be attempted; by which all may be lost. He was not in general a half-way man, yet he preferred doing half the good we could, rather than do nothing at all. The other half may be added, when the necessity shall be more fully experienced.[120]
[120] In King's Notes another speech of Madison's is given after Ellsworth's:
"_Madison._ One Gentleman from Connecticut has proposed doing as much as is prudent now, leaving future amendments to Posterity,--this is a dangerous doctrine. The Defects of the Amphictionic League were acknowledged, but were reformed. The Netherlands have four times attempted to make amendments in their Confederation, but have failed in each attempt. The Fear of innovation, the hue & Cry in favour of the Liberty of the People will as they have done prevent the necessary Reforms. If the States have equal Votes & influence in the Senate we shall be in the utmost danger, the minority of the People will govern the majority. Delaware during the late war opposed and defeated an Embargo, to which twelve States had agreed, and continued to supply the enemy with Provisions in time of war."--King's _Life and Times of Rufus King_, i., 612.
M^r Baldwin[121] could have wished that the powers of the General Legislature had been defined, before the mode of constituting it had been agitated. He should vote against the motion of M^r Elseworth, tho. he did not like the Resolution as it stood in the Report of the Committee of the whole. He thought the second branch ought to be the representation of property, and that in forming it therefore some reference ought to be had to the relative wealth of their Constituents, and to the principles on which the Senate of Mass^{ts} was constituted. He concurred with those who thought it w^d be impossible for the Gen^l Legislature to extend its cares to the local matters of the States.[122] Adj^d.
[121] "Mr. Baldwin is a Gentleman of superior abilities, and joins in a public debate with great art and eloquence. Having laid the foundation of a compleat classical education at Harvard College, he pursues every other study with ease. He is well acquainted with Books and Characters, and has an accommodating turn of mind, which enables him to gain the confidence of Men, and to understand them. He is a practising Attorney in Georgia, and has been twice a Member of Congress. Mr. Baldwin is about 38 years of age."--Pierce's Notes _Am. Hist. Rev._, iii., 333.
[122] According to Yates, after Baldwin spoke: "Mr. Madison. I would always exclude inconsistent principles in framing a system of government. The difficulty of getting its defects amended are great and sometimes insurmountable. The Virginia state government was the first which was made, and though its defects are evident to every person, we cannot get it amended. The Dutch have made four several attempts to amend their system without success. The few alterations made in it were by tumult and faction, and for the worse. If there was real danger, I would give the smaller states the defensive weapons--But there is none from that quarter. The great danger to our general government is the great southern and northern interests of the continent, being opposed to each other. Look to the votes in congress, and most of them stand divided by the geography of the country, not according to the size of the states.
"Suppose the first branch granted money, may not the second branch, from state views, counteract the first? In congress, the single state of Delaware prevented an embargo, at the time that all the other states thought it absolutely necessary for the support of the army. Other powers, and those very essential, besides the legislative, will be given to the second branch--such as the negativing all state laws. I would compromise on this question, if I could do it on correct principles, but otherwise not--if the old fabric of the confederation must be the groundwork of the new, we must fall."--Yates, _Secret Proceedings_, etc., 189.
SATURDAY JUNE 30. 1787. IN CONVENTION
M^r Brearly moved that the Presid^t write to the Executive of N. Hampshire, informing it that the business depending before the Convention was of such a nature as to require the immediate attendance of the deputies of that State. In support of his motion he observed that the difficulties of the subject and the diversity of opinions called for all the assistance we could possibly obtain, (it was well understood that the object was to add N. Hampshire to the n^o of States opposed to the doctrine of proportional representation, which it was presumed from her relative size she must be adverse to).
M^r Patterson seconded the motion.
M^r Rutlidge could see neither the necessity nor propriety of such a measure. They are not unapprized of the meeting, and can attend if they choose. Rho. Island might as well be urged to appoint & send deputies. Are we to suspend the business until the deputies arrive? if we proceed he hoped all the great points would be adjusted before the letter could produce its effect.
M^r King, said he had written more than once as a private correspondent, & the answers gave him every reason to expect that State would be represented very shortly, if it sh^d be so at all. Circumstances of a personal nature had hitherto prevented it. A letter c^d have no effect.
M^r Wilson wished to know whether it would be consistent with the rule or reason of secrecy, to communicate to N. Hampshire that the business was of such a nature as the motion described. It w^d spread a great alarm. Besides he doubted the propriety of soliciting any State on the subject; the meeting being merely voluntary--on motion of M^r Brearly Mas^{ts} no. Con^t no. N. Y. ay. N. J. ay. P^a not on y^e floor. Del. not on floor. M^d div^d V^a no. N. C. no. S. C. no. Geo. not on floor.
The motion of M^r Elseworth resumed for allowing each State an equal vote in y^e 2^d branch.
M^r Wilson did not expect such a motion after the establishment of y^e contrary principle in the 1^{st} branch; and considering the reasons which would oppose it, even if an equal vote had been allowed in the 1^{st} branch. The Gentleman from Connecticut (M^r Elseworth) had pronounced that if the motion should not be acceded to, of all the States North of Pen^a one only would agree to any Gen^l Government. He entertained more favorable hopes of Conn^t and of the other Northern States. He hoped the alarms exceeded their cause, and that they would not abandon a Country to which they were bound by so many strong and endearing ties. But should the deplored event happen, it would neither stagger his sentiments nor his duty. If the minority of the people of America refuse to coalesce with the majority on just and proper principles, if a separation must take place, it could never happen on better grounds. The votes of yesterday ag^{st} the just principle of representation, were as 22 to 90 of the people of America. Taking the opinions to be the same on this point, and he was sure if there was any room for change, it could not be on the side of the majority, the question will be shall less than 1/4 of the U. States withdraw themselves from the Union; or shall more than 3/4 renounce the inherent, indisputable and unalienable rights of men, in favor of the artificial systems of States. If issue must be joined, it was on this point he would chuse to join it. The Gentleman from Connecticut in supposing that the preponderancy secured to the majority in the 1^{st} branch had removed the objections to an equality of votes in the 2^d branch for the security of the minority, narrowed the case extremely. Such an equality will enable the minority to controul in all cases whatsoever, the sentiments and interests of the majority. Seven States will controul six: Seven States, according to the estimates that had been used, composed 24/90 of the whole people. It would be in the power then of less than 1/3 to overrule 2/3 whenever a question should happen to divide the States in that manner. Can we forget for whom we are forming a Government? Is it for _men_, or for the imaginary beings called _States_? Will our honest Constituents be satisfied with metaphysical distinctions? Will they, ought they to be satisfied with being told, that the one-third compose the greater number of States? The rule of suffrage ought on every principle to be the same in the 2^d as in the 1^{st} branch. If the Government be not laid on this foundation, it can be neither solid nor lasting. Any other principle will be local, confined & temporary. This will expand with the expansion, and grow with the growth of the U. States.--Much has been said of an imaginary combination of three States. Sometimes a danger of monarchy, sometimes of aristocracy has been charged on it. No explanation however of the danger has been vouchsafed. It would be easy to prove both from reason & history that rivalships would be more probable than coalitions; and that there are no coinciding interests that could produce the latter. No answer has yet been given to the observations of (M^r Madison) on this subject. Should the Executive Magistrate be taken from one of the large States would not the other two be thereby thrown into the scale with the other States? Whence then the danger of monarchy? Are the people of the three large States more aristocratic than those of the small ones? Whence then the danger of aristocracy from their influence? It is all a mere illusion of names. We talk of States, till we forget what they are composed of. Is a real & fair majority, the natural hot-bed of aristocracy? It is a part of the definition of this species of Gov^t or rather of tyranny, that the smaller number governs the greater. It is true that a majority of States in the 2^d branch cannot carry a law ag^{st} a majority of the people in the 1^{st}. But this removes half only of the objection. Bad Govern^{ts} are of two sorts. 1. that which does too little. 2. that which does too much: that which fails thro' weakness; and that which destroys thro' oppression. Under which of these evils do the U. States at present groan? Under the weakness and inefficiency of its Govern^t. To remedy this weakness we have been sent to this Convention. If the motion should be agreed to, we shall leave the U. S. fettered precisely as heretofore; with the additional mortification of seeing the good purposes of y^e fair representation of the people in the 1^{st} branch, defeated in the 2^d. Twenty four will still controul sixty six. He lamented that such a disagreement should prevail on the point of representation, as he did not foresee that it would happen on the other point most contested, the boundary between the Gen^l & the local authorities. He thought the States necessary & valuable parts of a good system.
M^r Elseworth. The capital objection of M^r Wilson, "that the minority will rule the majority" is not true. The power is given to the few to save them from being destroyed by the many. If an equality of votes had been given to them in both branches, the objection might have had weight. Is it a novel thing that the few should have a check on the many? Is it not the case in the British Constitution the wisdom of which so many gentlemen have united in applauding? Have not the House of Lords, who form so small a proportion of the nation a negative on the laws, as a necessary defence of their peculiar rights ag^{st} the encroachm^{ts} of the Commons. No instance of a Confederacy has existed in which an equality of voices has not been exercised by the members of it. We are running from one extreme to another. We are razing the foundations of the building, when we need only repair the roof. No salutary measure has been lost for want of _a majority of the States_, to favor it. If security be all that the great States wish for the 1^{st} branch secures them. The danger of combinations among them is not imaginary. Altho' no particular abuses could be foreseen by him, the possibility of them would be sufficient to alarm him. But he could easily conceive cases in which they might result from such combinations. Suppose that in pursuance of some commercial treaty or arrangement, three or four free ports & no more were to be established would not combinations be formed in favor of Boston--Philad^a & some port of the Chesapeak? A like concert might be formed in the appointment of the Great officers. He appealed again to the obligations of the federal pact which was still in force, and which had been entered into with so much solemnity; persuading himself that some regard would still be paid to the plighted faith under which each State small as well as great, held an equal right of suffrage in the general Councils. His remarks were not the result of partial or local views. The State he represented (Connecticut) held a middle rank.
M^r Madison did justice to the able and close reasoning of M^r E. but must observe that it did not always accord with itself. On another occasion, the large States were described by him as the Aristocratic States, ready to oppress the small. Now the Small are the House of Lords requiring a negative to defend them ag^{st} the more numerous Commons. M^r E. had also erred in saying that no instance had existed in which confederated States had not retained to themselves a perfect equality of suffrage. Passing over the German system in which the K. of Prussia has nine voices, he reminded M^r E. of the Lycian Confederacy, in which the component members had votes proportioned to their importance, and which Montesquieu recommends as the fittest model for that form of Government. Had the fact been as stated by M^r E. it would have been of little avail to him, or rather would have strengthened the arguments ag^{st} him; the History & fate of the several confederacies modern as well as Antient, demonstrating some radical vice in their structure. In reply to the appeal of M^r E. to the faith plighted in the existing federal compact, he remarked that the party claiming from others an adherence to a common engagement ought at least to be guiltless itself of a violation. Of all the States however Connecticut was perhaps least able to urge this plea. Besides the various omissions to perform the stipulated acts from which no State was free, the Legislature of that State had by a pretty recent vote, _positively refused_ to pass a law for complying with the Requisitions of Cong^s, and had transmitted a copy of the vote to Cong^s. It was urged, he said, continually that an equality of votes in the 2^d branch was not only necessary to secure the small, but would be perfectly safe to the large ones whose majority in the 1^{st} branch was an effectual bulwark. But notwithstanding this apparent defence, the majority of States might still injure the majority of people. 1. they could _obstruct_ the wishes and interests of the majority. 2. they could _extort_ measures repugnant to the wishes & interest of the Majority. 3. they could _impose_ measures adverse thereto; as the 2^d branch will prob[~l]y exercise some great powers, in which the 1^{st} will not participate. He admitted that every peculiar interest whether in any class of Citizens, or any description of States, ought to be secured as far as possible. Wherever there is danger of attack there ought to be given a Constitutional power of defence. But he contended that the States were divided into different interests not by their difference of size, but by other circumstances; the most material of which resulted partly from climate, but principally from the effects of their having or not having slaves. These two causes concurred in forming the great division of interests in the U. States. It did not lie between the large & small States: It lay between the Northern & Southern. And if any defensive power were necessary, it ought to be mutually given to these two interests. He was so strongly impressed with this important truth that he had been casting about in his mind for some expedient that would answer the purpose. The one which had occurred was that instead of proportioning the votes of the States in both branches, to their respective numbers of inhabitants computing the slaves in the ratio of 5 to 3, they should be represented in one branch according to the number of free inhabitants only; and in the other according to the whole n^o counting the slaves as free. By this arrangement the Southern Scale would have the advantage in one House, and the Northern in the other. He had been restrained from proposing this expedient by two considerations: one was his unwillingness to urge any diversity of interests on an occasion where it is but too apt to arise of itself--the other was, the inequality of powers that must be vested in the two branches, and which w^d destroy the equilibrium of interests.
M^r Elseworth assured the House that whatever might be thought of the Representatives of Connecticut the State was entirely federal in her disposition. He appealed to her great exertions during the war, in supplying both men & money. The muster rolls would show she had more troops in the field than Virg^a. If she had been Delinquent, it had been from inability, and not more so than other States.
M^r Sherman. M^r Madison had animadverted on the delinquency of the States, when his object required him to prove that the Constitution of Cong^s was faulty. Cong^s is not to blame for the faults of the States. Their measures have been right, and the only thing wanting has been, a further power in Cong^s to render them effectual.
M^r Davy was much embarrassed and wished for explanations. The Report of the Committee allowing the Legislatures to choose the Senate, and establishing a proportional representation in it, seemed to be impracticable. There will according to this rule be ninety members in the outset, and the number will increase as new States are added. It was impossible that so numerous a body could possess the activity and other qualities required in it. Were he to vote on the comparative merits of the report as it stood, and the amendment, he should be constrained to prefer the latter. The appointment of the Senate by electors chosen by the people for that purpose was he conceived liable to an insuperable difficulty. The larger Counties or districts thrown into a general district, would certainly prevail over the smaller Counties or Districts, and merit in the latter would be excluded altogether. The report therefore seemed to be right in referring the appointment to the Legislatures, whose agency in the general System did not appear to him objectionable as it did to some others. The fact was that the local prejudices & interests which could not be denied to exist, would find their way into the national Councils whether the Representatives should be chosen by the Legislatures or by the people themselves. On the other hand if a proportional representation was attended with insuperable difficulties, the making the Senate the Representative of the States, looked like bringing us back to Cong^s again, and shutting out all the advantages expected from it. Under this view of the subject he could not vote for any plan for the Senate yet proposed. He thought that in general there were extremes on both sides. We were partly federal, partly national in our Union, and he did not see why the Gov^t might not in some respects operate on the States, in others on the people.
M^r Wilson admitted the question concerning the number of Senators, to be embarrassing. If the smallest States be allowed one, and the others in proportion, the Senate will certainly be too numerous. He looked forward to the time when the smallest States will contain 100,000 souls at least. Let there be then one Senator in each for every 100,000 souls and let the States not having that n^o of inhabitants be allowed one. He was willing himself to submit to this temporary concession to the small States; and threw out the idea as a ground of compromise.
Doc^r Franklin. The diversity of opinions turns on two points. If a proportional representation takes place, the small States contend that their liberties will be in danger. If an equality of votes is to be put in its place, the large States say their money will be in danger. When a broad table is to be made, and the edges of planks do not fit, the artist takes a little from both, and makes a good joint. In like manner here both sides must part with some of their demands, in order that they may join in some accommodating proposition. He had prepared one which he would read, that it might lie on the table for consideration. The proposition was in the words following
"That the Legislatures of the several States shall choose & send an equal number of Delegates, namely ---- who are to compose the 2^d branch of the General Legislature--
That in all cases or questions wherein the Sovereignty of individual States may be affected, or whereby their authority over their own Citizens may be diminished, or the authority of the General Government within the several States augmented, each State shall have equal suffrage.
That in the appointment of all Civil officers of y^e Gen^l Gov^t in the election of whom the 2^d branch may by the Constitution have part, each State shall have equal suffrage.
That in fixing the Salaries of such Officers, and in all allowances for public services, and generally in all appropriations & dispositions of money to be drawn out of the general Treasury; and in all laws for supplying that Treasury, the Delegates of the several States shall have suffrage in proportion to the Sums which their respective States do actually contribute to the Treasury."
Where a ship had many owners this was the rule of deciding on her expedition. He had been one of the Ministers from this Country to France during the joint war and w^d have been very glad if allowed a vote in distributing the money to carry it on.
M^r King observed that the simple question was whether each State should have an equal vote in the 2^d branch; that it must be apparent to those Gentlemen who liked neither the motion for this equality, nor the report as it stood, that the report was as susceptible of melioration as the motion; that a reform would be nugatory & nominal only if we should make another Congress of the proposed Senate: that if the adherence to an equality of votes was fixed & unalterable, there could not be less obstinacy on the other side, & that we were in fact cut asunder already, and it was in vain to shut our eyes against it: that he was however filled with astonishment that if we were convinced that every _man_ in America was secured in all his rights, we should be ready to sacrifice this substantial good to the Phantom of _State_ sovereignty: that his feelings were more harrowed & his fears more agitated for his Country than he could express, that he conceived this to be the last opportunity of providing for its liberty & happiness: that he could not therefore but repeat his amazement that when a just govern^t founded on a fair representation of the _people_ of America was within our reach, we should renounce the blessing, from an attachment to the ideal freedom & importance of _States_: that should this wonderful illusion continue to prevail, his mind was prepared for every event, rather than to sit down under a Gov^t founded in a vicious principle of representation, and which must be as short lived as it would be unjust. He might prevail on himself to accede to some such expedient as had been hinted by M^r Wilson; but he never could listen to an equality of votes as proposed in the motion.
M^r Dayton. When assertion is given for proof, and terror substituted for argument, he presumed they would have no effect however eloquently spoken. It should have been shewn that the evils we have experienced have proceeded from the equality now objected to; and that the seeds of dissolution for the State Governments are not sown in the Gen^l Government. He considered the system on the table as a novelty, an amphibious monster; and was persuaded that it never would be rec^d by the people. M^r Martin w^d never confederate if it could not be done on just principles.
M^r Madison would acquiesce in the concession hinted by M^r Wilson, on condition that a due independence should be given to the Senate. The plan in its present shape makes the Senate absolutely dependent on the States. The Senate therefore is only another edition of Cong^s. He knew the faults of that Body & had used a bold language ag^{st} it. Still he would preserve the State rights, as carefully as the trials by jury.
M^r Bedford, contended that there was no middle way between a perfect consolidation and a mere confederacy of the States. The first is out of the question, and in the latter they must continue if not perfectly, yet equally sovereign. If political Societies possess ambition avarice, and all the other passions which render them formidable to each other, ought we not to view them in this light here? Will not the same motives operate in America as elsewhere? If any gentleman doubts it let him look at the votes. Have they not been dictated by interest, by ambition? Are not the large States evidently seeking to aggrandize themselves at the expense of the small? They think no doubt that they have right on their side, but interest had blinded their eyes. Look at Georgia. Though a small State at present, she is actuated by the prospect of soon being a great one. S. Carolina is actuated both by present interest & future prospects. She hopes too to see the other States cut down to her own dimensions. N. Carolina has the same motives of present & future interest. Virg^a follows. Mary^d is not on that side of the Question. Pen^a has a direct and future interest. Mass^{ts} has a decided and palpable interest in the part she takes. Can it be expected that the small States will act from pure disinterestedness. Look at G. Britain. Is the Representation there less unequal? But we shall be told again that that is the rotten part of the Constitution. Have not the boroughs however held fast their constitutional rights? And are we to act with greater purity than the rest of mankind. An exact proportion in the Representation is not preserved in any one of the States. Will it be said that an inequality of power will not result from an inequality of votes. Give the opportunity, and ambition will not fail to abuse it. The whole History of mankind proves it. The three large States have a common interest to bind them together in commerce. But whether a combination as we suppose, or a competition as others suppose, shall take place among them, in either case, the small States must be ruined. We must like Solon make such a Govern^t as the people will approve. Will the smaller States ever agree to the proposed degradation of them. It is not true that the people will not agree to enlarge the powers of the present Cong^s. The language of the people has been that Cong^s ought to have the power of collecting an impost, and of coercing the States where it may be necessary. On The first point they have been explicit &, in a manner, unanimous in their declarations. And must they not agree to this & similar measures if they ever mean to discharge their engagements. The little States are willing to observe their engagements, but will meet the large ones on no ground but that of the Confederation. We have been told with a dictatorial air that this is the last moment for a fair trial in favor of a Good Governm^t. It will be the last indeed if the propositions reported from the Committee go forth to the people. He was under no apprehensions. The Large States dare not dissolve the Confederation. If they do the small ones will find some foreign ally of more honor and good faith, who will take them by the hand and do them justice. He did not mean by this to intimidate or alarm. It was a natural consequence, which ought to be avoided by enlarging the federal powers not annihilating the federal system. This is what the people expect. All agree in the necessity of a more efficient Gov^t and why not make such an one as they desire.
M^r Elseworth. Under a National Gov^t he should participate in the National Security, as remarked by (M^r King) but that was all. What he wanted was domestic happiness. The Nat^l Gov^t could not descend to the local objects on which this depended. It could only embrace objects of a general nature. He turned his eyes therefore for the preservation of his rights to the State Gov^{ts}. From these alone he could derive the greatest happiness he expects in this life. His happiness depends on their existence, as much as a new born infant on its mother for nourishment. If this reasoning was not satisfactory, he had nothing to add that could be so.
M^r King was for preserving the States in a subordinate degree, and as far as they could be necessary for the purposes stated by M^r Elseworth. He did not think a full answer had been given to those who apprehended a dangerous encroachment on their jurisdictions. Expedients might be devised as he conceived that would give them all the security the nature of things would admit of. In the establish^t of Societies the Constitution was to the Legislature what the laws were to individuals. As the fundamental rights of individuals are secured by express provisions in the State Constitutions; why may not a like security be provided for the Rights of States in the National Constitution. The articles of Union between Engl^d & Scotland furnish an example of such a provision in favor of sundry rights of Scotland. When that Union was in agitation, the same language of apprehension which has been heard from the smaller States, was in the mouths of the Scotch patriots. The articles however have not been violated and the Scotch have found an increase of prosperity & happiness. He was aware that this will be called a mere _paper security_. He thought it a sufficient answer to say that if fundamental articles of compact, are no sufficient defence against physical power, neither will there be any safety ag^{st} it if there be no compact. He could not sit down, without taking some notice of the language of the honorable gentleman from Delaware (M^r Bedford). It was not he that had uttered a dictatorial language. This intemperance had marked the honorable Gentleman himself. It was not he who with a vehemence unprecedented in that House, had declared himself ready to turn his hopes from our common Country, and court the protection of some foreign hand. This too was the language of the Honbl member himself. He was grieved that such a thought had entered into his heart. He was more grieved that such an expression had dropped from his lips. The gentleman c^d only excuse it to himself on the score of passion. For himself whatever might be his distress, he w^d never court relief from a foreign power.
Adjourned.
MONDAY JULY 2^D IN CONVENTION.
On the question for allowing each State one vote in the second branch as moved by M^r Elseworth, Mass^{ts} no. Con^t ay. N. Y. ay. N. J. ay. P^a no. Del. ay. M^d ay. M^r Jenifer being not present M^r Martin alone voted V^a no. N. C. no. S. C. no. Geo. div^d. M^r Houston no. M^r Baldwin ay.
M^r Pinkney thought an equality of votes in the 2^d branch inadmissible. At the same time candor obliged him to admit that the large States would feel a partiality for their own Citizens & give them a preference, in appointments: that they might also find some common points in their Commercial interests, and promote treaties favorable to them. There is a real distinction [between] the Northern & South^n interests. N. Carol^a S. Carol: & Geo. in their Rice & Indigo had a peculiar interest which might be sacrificed. How then shall the larger States be prevented from administering the Gen^l Gov^t as they please, without being themselves unduly subjected to the will of the smaller? By allowing them some but not a full, proportion. He was extremely anxious that something should be done, considering this as the last appeal to a regular experiment. Cong^s have failed in almost every effort for an amendment of the federal System. Nothing has prevented a dissolution of it, but the appointm^t of this Convention; & he could not express his alarms for the consequence of such an event. He read his motion, to form the States into classes, with an apportionment of Senators among them (see Art: 4, of his plan).
General Pinkney was willing the motion might be considered. He did not entirely approve it. He liked better the motion of Doc^r Franklin (which see Saturday June 30). Some Compromise seemed to be necessary, the States being exactly divided on the question for an equality of votes in the 2^d branch. He proposed that a Committee consisting of a member from each State should be appointed to devise & report some compromise.
M^r L. Martin had no objection to a commitment, but no modifications whatever could reconcile the Smaller States to the least diminution of their equal Sovereignty.
M^r Sherman. We are now at a full stop, and nobody he supposed meant that we sh^d break up without doing something. A committee he thought most likely to hit on some expedient.
[123]Mr. Gov^r Morris. thought a Com^e adviseable as the Convention had been equally divided. He had a stronger reason also. The mode of appointing the 2^d branch tended he was sure to defeat the object of it. What is this object? To check the precipitation, changeableness, and excesses of the first branch. Every man of observation had seen in the democratic branches of the State Legislatures, precipitation--in Congress changeableness, in every department excesses ag^{st} personal liberty private property & personal safety. What qualities are necessary to constitute a check in this case? _Abilities_ and _virtue_, are equally necessary in both branches. Something more then is now wanted, 1. the checking branch must have a personal interest in checking the other branch, one interest must be opposed to another interest. Vices as they exist, must be turned ag^{st} each other. 2. It must have great personal property, it must have the aristocratic spirit; it must love to lord it thro' pride. Pride is indeed the great principle that actuates both the poor & the rich. It is this principle which in the former resists, in the latter abuses authority. 3. It should be independent. In Religion the Creature is apt to forget its Creator. That it is otherwise in Political Affairs, the late debates here are an unhappy proof. The aristocratic body, should be as independent & as firm as the democratic. If the members of it are to revert to a dependence on the democratic choice, the democratic scale will preponderate. All the guards contrived by America have not restrained the Senatorial branches of the Legislatures from a servile complaisance to the democratic. If the 2^d branch is to be dependent we are better without it. To make it independent, it should be for life. It will then do wrong, it will be said. He believed so; He hoped so. The Rich will strive to establish their dominion & enslave the rest. They always did. They always will. The proper security ag^{st} them is to form them into a separate interest. The two forces will then controul each other. Let the rich mix with the poor and in a Commercial Country, they will establish an Oligarchy. Take away commerce, and the democracy will triumph. Thus it has been all the world over. So it will be among us. Reason tells us we are but men: and we are not to expect any particular interference of Heaven in our favor. By thus combining & setting apart, the aristocratic interest, the popular interest will be combined ag^{st} it. There will be a mutual check and mutual security. 4. An independence for life, involves the necessary permanency. If we change our measures nobody will trust us: and how avoid a change of measures, but by avoiding a change of men. Ask any man if he confides in Cong^s if he confides in the State of Pen^a if he will lend his money or enter into contract? He will tell you no. He sees no stability. He can repose no confidence. If G. B. were to explain her refusal to treat with us, the same reasoning would be employed.--He disliked the exclusion of the 2^d branch from holding offices. It is dangerous. It is like the imprudent exclusion of the military officers during the war, from civil appointments. It deprives the Executive of the principal source of influence. If danger be apprehended from the Executive what a left-handed way is this of obviating it? If the son, the brother or the friend can be appointed, the danger may be even increased, as the disqualified father &c. can then boast of a disinterestedness which he does not possess. Besides shall the best, the most able, the most virtuous citizens not be permitted to hold offices? Who then are to hold them? He was also ag^{st} paying the Senators. They will pay themselves if they can. If they can not they will be rich and can do without it. Of such the 2^d branch ought to consist; and none but such can compose it if they are not to be paid--He contended that the Executive should appoint the Senate & fill up vacancies. This gets rid of the difficulty in the present question. You may begin with any ratio you please; it will come to the same thing. The members being independ^t & for life, may be taken as well from one place as from another.--It should be considered too how the scheme could be carried through the States. He hoped there was strength of mind eno' in this House to look truth in the face. He did not hesitate therefore to say that loaves & fishes must bribe the Demagogues. They must be made to expect higher offices under the general than the State Gov^{ts}. A Senate for life will be a noble bait. Without such captivating prospects, the popular leaders will oppose & defeat the plan. He perceived that the 1^{st} branch was to be chosen by the people of the States; the 2^d by those chosen by the people. Is not here a Gov^t by the States, a Govern^t by Compact between Virg^a in the 1^{st} & 2^d branch, Mass^{ts} in the 1^{st} & 2^d branch &c. This is going back to mere treaty. It it no Gov^t at all. It is altogether dependent on the States, and will act over again the part which Cong^s has acted. A firm Govern^t alone can protect our liberties. He fears the influence of the rich. They will have the same effect here as elsewhere if we do not by such a Gov^t keep them within their proper sphere. We should remember that the people never act from reason alone. The Rich will take the advantage of their passions & make these the instruments for oppressing them. The Result of the Contest will be a violent aristocracy, or a more violent despotism. The schemes of the Rich will be favored by the extent of the Country. The people in such distant parts cannot communicate & act in concert. They will be the dupes of those who have more knowledge & intercourse. The only security ag^{st} encroachments will be a select & sagacious body of men, instituted to watch ag^{st} them on all sides. He meant only to hint these observations, without grounding any motion on them.
[123] He had just returned from N. Y. hav^g left y^e Convention a few days after it commenced business.--Madison's Note.
M^r Randolph favored the commitment though he did not expect much benefit from the expedient. He animadverted on the warm & rash language of M^r Bedford on Saturday; reminded the small States that if the large States should combine some danger of which he did not deny there would be a check in the revisionary power of the Executive, and intimated that in order to render this still more effectual, he would agree that in the choice of an Executive each State should have an equal vote. He was persuaded that two such opposite bodies as M^r Morris had planned, could never long co-exist. Dissentions would arise, as has been seen even between the Senate and H. of Delegates in Maryland, appeals would be made to the people; and in a little time commotions would be the result--He was far from thinking the large States could subsist of themselves any more than the small; an avulsion would involve the whole in ruin, and he was determined to pursue such a scheme of Government as would secure us ag^{st} such a calamity.
M^r Strong was for the co[~m]itment; and hoped the mode of constituting both branches would be referred. If they should be established on different principles, contentions would prevail, and there would never be a concurrence in necessary measures.
Doc^r Williamson. If we do not concede on both sides, our business must soon be at an end. He approved of the co[~m]itment, supposing that as the Com^e w^d be a smaller body, a compromise would be pursued with more coolness.
M^r Wilson objected to the Committee, because it would decide according to that very rule of voting which was opposed on one side. Experience in Cong^s had also proved the inutility of Committees consisting of members from each State.
M^r Lansing w^d not oppose the commitment, though expecting little advantage from it.
M^r Madison opposed the Co[~m]itment. He had rarely seen any other effect than delay from _such_ Committees in Cong^s. Any scheme of compromise that could be proposed in the Committee might as easily be proposed in the House; and the report of the Committee where it contained merely the _opinion_ of the Com^e would neither shorten the discussion, nor influence the decision of the House.
M^r Gerry was for the commitm^t. Something must be done, or we shall disappoint not only America, but the whole world. He suggested a consideration of the State we should be thrown into by the failure of the Union. We should be without an Umpire to decide controversies and must be at the mercy of events. What too is to become of our treaties--what of our foreign debts, what of our domestic? We must make concessions on both sides. Without these the Constitutions of the several States would never have been formed.
On the question "for co[~m]iting," generally:
Mass^{ts} ay. Con^t ay. N. Y. ay. N. J. no. P. ay. Del. no. M^d ay. V^a ay. N. C. ay. S. C. ay. Geo. ay.
On the question for co[~m]iting it "to a member from each State,"
Mass^{ts} ay. Con^t ay. N. Y. ay. N. J. ay. P^a no. Del. ay. M^d ay. V^a ay. N. C. ay. S. C. ay. Geo. ay.
The Co[~m]ittee elected by ballot, were M^r Gerry, M^r Elseworth, M^r Yates, M^r Patterson, D^r Franklin, M^r Bedford, M^r Martin, M^r Mason, M^r Davy, M^r Rutlidge, Mr. Baldwin.
That time might be given to the Co[~m]ittee, and to such as chose to attend to the celebrations on the anniversary of Independence, the Convention adjourned till Thursday.[124]
[124] "TUESDAY, _July 3, 1787_.
"The _grand committee_ met. Mr. Gerry was chosen chairman.
"The committee proceeded to consider in what manner they should discharge the business with which they were intrusted. By the proceedings in the Convention, they were so equally divided on the important question of _representation in the two branches_, that the idea of a conciliatory adjustment must have been in contemplation of the house in the appointment of this committee. But still, how to effect this salutory purpose was the question. Many of the members, impressed with the utility of a general government, connected with it the indispensable necessity of a representation from the states according to their numbers and wealth; while others, equally tenacious of the rights of the states, would admit of no other representation but such as _was strictly federal_, or, in other words, _equality of suffrage_. This brought on a discussion of the principles on which the house had divided, and a lengthy recapitulation of the arguments advanced in the house in support of these opposite propositions. As I had not openly explained my sentiments on any former occasion on this question, but constantly, in giving my vote, _showed my attachment to the national government on federal principles, I took this occasion to explain my motives_.
"These remarks gave rise to a motion of Dr. Franklin, which after some modification was agreed to, and made the basis of the following report of the Committee."--Yates, _Secret Proceedings_, etc., 205. The report is given by Madison.
* * * * *
Hamilton, who had gone to New York, wrote to Washington under date of July 3d:
"In my passage through the Jerseys, and since my arrival here, I have taken particular pains to discover the public sentiment, and I am more and more convinced that this is the critical opportunity for establishing the prosperity of this country on a solid foundation. I have conversed with men of information, not only in this city, but from different parts of the State, and they agree that there has been an astonishing revolution for the better in the minds of the people.
"The prevailing apprehension among thinking men is, that the Convention, from the fear of shocking the popular opinion, will not go far enough. They seem to be convinced that a strong, well-mounted government will better suit the popular palate than one of a different complexion. Men in office are indeed taking all possible pains to give an unfavorable impression of the Convention, but the current seems to be moving strongly the other way.
"A plain but sensible man, in a conversation I had with him yesterday, expressed himself nearly in this manner: The people begin to be convinced that 'their excellent form of government,' as they have been used to call it, will not answer their purpose, and that they must substitute something not very remote from that which they have lately quitted.
"These appearances, though they will not warrant a conclusion that the people are yet ripe for such a plan as I advocate, yet serve to prove that there is no reason to despair of their adopting one equally energetic, if the Convention should think proper to propose it. They serve to prove that we ought not to allow too much weight to objections drawn from the supposed repugnance of the people to an efficient constitution. I confess I am more and more inclined to believe that former habits of thinking are regaining their influence with more rapidity than is generally imagined.
"Not having compared ideas with you, sir, I cannot judge how far our sentiments agree; but, as I persuade myself the genuineness of my representations will receive credit with you, my anxiety for the event of the deliberations of the Convention induces me to make this communication of what appears to be the tendency of the public mind.
"I own to you, sir, that I am seriously and deeply distressed at the aspect of the counsels which prevailed when I left Philadelphia. I fear we shall let slip the golden opportunity of rescuing the American empire from disunion, anarchy, and misery.
"No motley or feeble measure can answer the end, or will finally receive the public support. Decision is true wisdom, and will not be less reputable to the Convention than salutary to the community.
"I shall of necessity remain here ten or twelve days. If I have reason to believe that my attendance at Philadelphia will not be mere waste of time, I shall, after that period, rejoin the Convention."--_Hamilton's Works_ (Lodge).
THURSDAY JULY 5^{TH} IN CONVENTION
M^r Gerry delivered in from the Committee appointed on Monday last the following Report.
"The Committee to whom was referred the 8^{th} Resol. of the Report from the Committee of the Whole House, and so much of the 7^{th} as has not been decided on, submit the following Report: That the subsequent propositions be recommended to the Convention on condition that both shall be generally adopted. I. that in the 1^{st} branch of the Legislature each of the States now in the Union shall be allowed 1 member for every 40,000 inhabitants of the description reported in the 7^{th} Resolution of the Com^e of the whole House: that each State not containing that number shall be allowed 1 member: that all bills for raising or appropriating money, and for fixing the salaries of the officers of the Govern^t of the U. States shall originate in the 1^{st} branch of the Legislature, and shall not be altered or amended by the 2^d branch; and that no money shall be drawn from the public Treasury but in pursuance of appropriations to be originated in the 1^{st} branch. "II. That in the 2^d branch each State shall have an equal vote."[125]
[125] This report was founded on a motion in the Co[~m]itte made by D^r Franklin. It was barely acquiesced in by the members from the States opposed to an equity of votes in the 2^d branch and was evidently considered by the members on the other side, as a gaining of their point. A motion was made by M^r Sherman. He acted in the place of M^r Elseworth who was kept away by indisposition, in the Committee to the following effect "that each State should have an equal vote in the 2^d branch; provided that no decision therein should prevail unless the majority of States concurring should also comprise a majority of the inhabitants of the U. States." This motion was not much deliberated on nor approved in the Committee. A similar proviso had been proposed in the debates on the articles of Confederation in 1777, to the articles giving certain powers to "nine States." See Journals of Cong^s for 1777, p. 462.--Madison Note.
M^r Ghoram observed that as the report consisted of propositions mutually conditional he wished to hear some explanations touching the grounds on which the conditions were estimated.
M^r Gerry. The Committee were of different opinions as well as the Deputations from which the Com^e were taken, and agreed to the Report merely in order that some ground of accommodation might be proposed. Those opposed to the equality of votes have only assented conditionally; and if the other side do not generally agree will not be under any obligation to support the Report.
Mr. Wilson thought the Committee had exceeded their powers.
M^r Martin was for taking the question on the whole report.
M^r Wilson was for a division of the question; otherwise it w^d be a leap in the dark.
M^r Madison could not regard the privilege of originating money bills as any concession on the side of the small States. Experience proved that it had no effect. If seven States in the upper branch wished a bill to be originated, they might surely find some member from some of the same States in the lower branch who would originate it. The restriction as to amendments was of as little consequence. Amendments could be handed privately by the Senate to members in the other house. Bills could be negatived that they might be sent up in the desired shape. If the Senate should yield to the obstinacy of the 1^{st} branch the use of that body as a check would be lost. If the 1^{st} branch should yield to that of the Senate, the privilege would be nugatory. Experience had also shewn both in G. B. and the States having a similar regulation that it was a source of frequent & obstinate altercations. These considerations had produced a rejection of a like motion on a former occasion when judged by its own merits. It could not therefore be deemed any concession on the present, and left in force all the objections which had prevailed ag^{st} allowing each State an equal voice. He conceived that the Convention was reduced to the alternative of either departing from justice in order to conciliate the smaller States, and the minority of the people of the U. S. or of displeasing these by justly gratifying the larger States and the majority of the people. He could not himself hesitate as to the option he ought to make. The Convention with justice & the majority of the people on their side, had nothing to fear. With injustice and the minority on their side they had every thing to fear. It was in vain to purchase concord in the Convention on terms which would perpetuate discord among their Constituents. The Convention ought to pursue a plan which would bear the test of examination, which would be espoused & supported by the enlightened and impartial part of America, & which they could themselves vindicate and urge. It should be considered that altho' at first many may judge of the system reco[~m]ended, by their opinion of the Convention, yet finally all will judge of the Convention by the System. The merits of the System alone can finally & effectually obtain the public suffrage. He was not apprehensive that the people of the small States would obstinately refuse to accede to a Gov^t founded on just principles, and promising them substantial protection. He could not suspect that Delaware would brave the consequences of seeking her fortunes apart from the other States, rather than submit to such a Gov^t; much less could he suspect that she would pursue the rash policy of courting foreign support, which the warmth of one of her representatives (M^r Bedford) had suggested, or if she sh^d, that any foreign nation w^d be so rash as to hearken to the overture. As little could he suspect that the people of N. Jersey notwithstanding the decided tone of the gentlemen from that State, would choose rather to stand on their own legs, and bid defiance to events, than to acquiesce under an establishment founded on principles the justice of which they could not dispute, and absolutely necessary to redeem them from the exactions levied on them by the co[~m]erce of the neighbouring States. A review of other States would prove that there was as little reason to apprehend an inflexible opposition elsewhere. Harmony in the Convention was no doubt much to be desired. Satisfaction to all the States, in the first instance still more so. But if the principal States comprehending a majority of the people of the U. S. should concur in a just & judicious plan, he had the firmest hopes, that all the other States would by degrees accede to it.[126]
[126] Yates, and his colleague, Lansing, left the Convention July 5, despairing of the result of its labors being satisfactory to them. Madison's speech is the last one reported by Yates.--Yates, _Secret Proceedings_, etc.
M^r Butler said he could not let down his idea of the people, of America so far as to believe they would from mere respect to the Convention adopt a plan evidently unjust. He did not consider the privilege concerning money bills as of any consequence. He urged that the 2^d branch ought to represent the States according to their property.
M^r Gov^r Morris, thought the form as well as the matter of the Report objectionable. It seemed in the first place to render amendments impracticable. In the next place, it seemed to involve a pledge to agree to the 2^d part if the 1^{st} sh^d be agreed to. He conceived the whole aspect of it to be wrong. He came here as a Representative of America; he flattered himself he came here in some degree as a Representative of the whole human race; for the whole human race will be affected by the proceedings of this Convention. He wished gentlemen to extend their views beyond the present moment of time; beyond the narrow limits of place from which they derive their political origin. If he were to believe some things which he had heard, he should suppose that we were assembled to truck and bargain for our particular States. He can not descend to think that any gentlemen are really actuated by these views. We must look forward to the effects of what we do. These alone ought to guide us. Much has been said of the sentiments of the people. They were unknown. They could not be known. All that we can infer is that if the plan we recommend be reasonable & right; all Who have reasonable minds and sound intentions will embrace it, notwithstanding what had been said by some gentlemen. Let us suppose that the larger States shall agree; and that the smaller refuse; and let us trace the consequences. The opponents of the system in the smaller States will no doubt make a party, and a noise for a time, but the ties of interest, of kindred & of common habits which connect them with other States will be too strong to be easily broken. In N. Jersey particularly he was sure a great many would follow the sentiments of Pen^a & N. York. This Country must be united. If persuasion does not unite it, the sword will. He begged that this consideration might have its due weight. The scenes of horror attending Civil commotion cannot be described, and the conclusion of them will be worse than the term of their continuance. The stronger party will then make traytors of the weaker; and the Gallows & Halter will finish the work of the sword. How far foreign powers would be ready to take part in the confusions he would not say. Threats that they will be invited have it seems been thrown out. He drew the melancholy picture of foreign intrusions as exhibited in the History of Germany, & urged it as a standing lesson to other nations. He trusted that the Gentlemen who may have hazarded such expressions, did not entertain them till they reached their own lips. But returning to the Report he could not think it in any respect calculated for the Public good. As the 2^d branch is now constituted, there will be constant disputes & appeals to the States which will undermine the Gen^l Government & controul & annihilate the 1^{st} branch. Suppose that the delegates from Mass^{ts} & Rho I. in the Upper House disagree, and that the former are outvoted. What Results? they will immediately declare that their State will not abide by the decision, and make such representations as will produce that effect. The same may happen as to Virg^a & other States. Of what avail then will be what is on paper. State attachments, and State importance have been the bane of this Country. We cannot annihilate; but we may perhaps take out the teeth of the serpents. He wished our ideas to be enlarged to the true interest of man, instead of being circumscribed within the narrow compass of a particular Spot. And after all how little can be the motive yielded by selfishness for such a policy. Who can say whether he himself, much less whether his children, will the next year be an inhabitant of this or that State.
M^r Bedford. He found that what he had said as to the small States being taken by the hand, had been misunderstood; and he rose to explain. He did not mean that the small States would court the aid & interposition of foreign powers. He meant that they would not consider the federal compact as dissolved untill it should be so by the Acts of the large States. In this case The consequences of the breach of faith on their part, and the readiness of the small States to fulfill their engagements, would be that foreign Nations having demands on this Country would find it their interest to take the small States by the hand, in order to do themselves justice. This was what he meant. But no man can foresee to what extremities the small States may be driven by oppression. He observed also in apology that some allowance ought to be made for the habits of his profession in which warmth was natural & sometimes necessary. But is there not an apology in what was said by (M^r Gov^r Morris) that the sword is to unite: by M^r Ghorum that Delaware must be annexed to Penn^a and N. Jersey divided between Pen^a and N. York. To hear such language without emotion, would be to renounce the feelings of a man and the duty of a Citizen--As to the propositions of the Committee, the lesser States have thought it necessary to have a security somewhere. This has been thought necessary for the Executive Magistrate of the proposed Gov^t who has a sort of negative on the laws; and is it not of more importance that the States should be protected, than that the Executive branch of the Gov^t sh^d be protected. In order to obtain this, the smaller States have conceded as to the constitution of the first branch, and as to money bills. If they be not gratified by correspondent concessions as to the 2^d branch is it to be supposed they will ever accede to the plan; and what will be the consequence if nothing should be done? The condition of the U. States requires that something should be immediately done. It will be better that a defective plan should be adopted, than that none should be recommended. He saw no reason why defects might not be supplied with meetings 10, 15, or 20 years hence.
M^r Elseworth said he had not attended the proceedings of the Committee, but was ready to accede to the compromise they had reported. Some compromise was necessary; and he saw none more convenient or reasonable.
M^r Williamson hoped that the expressions of individuals would not be taken for the sense of their colleagues, much less of their States which was not & could not be known. He hoped also that the meaning of those expressions would not be misconstrued or exaggerated. He did not conceive that (M^r Gov^r Morris) meant that the sword ought to be drawn ag^{st} the smaller States. He only pointed out the probable consequences of anarchy in the U. S. A similar exposition ought to be given of the expressions of (M^r Ghorum). He was ready to hear the Report discussed; but thought the propositions contained in it, the most objectionable of any he had yet heard.
M^r Patterson said that he had when the Report was agreed to in the Com^e reserved to himself the right of freely discussing it. He acknowledged that the warmth complained of was improper; but he thought the Sword & the Gallows little calculated to produce conviction. He complained of the manner in which M^r M and M^r Gov^r Morris had treated the small States.
M^r Gerry. Tho' he had assented to the Report in the Committee, he had very material objections to it. We were however in a peculiar situation. We were neither the same Nation nor different Nations. We ought not therefore to pursue the one or the other of these ideas too closely. If no compromise should take place what will be the consequence. A secession he foresaw would take place; for some gentlemen seem decided on it: two different plans will be proposed; and the result no man could foresee. If we do not come to some agreement among ourselves some foreign sword will probably do the work for us.
M^r Mason. The Report was meant not as specific propositions to be adopted; but merely as a general ground of accommodation. There must be some accommodation on this point, or we shall make little further progress in the work. Accommodation was the object of the House in the appointment of the Committee; and of the Committee in the Report they had made. And however liable the Report might be to objections, he thought it preferable to an appeal to the world by the different sides, as had been talked of by some Gentlemen. It could not be more inconvenient to any gentleman to remain absent from his private affairs, than it was for him; but he would bury his bones in this City rather than expose his Country to the Consequences of a dissolution of the Convention without any thing being done.
The 1^{st} proposition in the report for fixing the representation in the 1^{st} branch, "one member for every 40,000 inhabitants," being taken up.
M^r Gov^r Morris objected to that scale of apportionment. He thought property ought to be taken into the estimate as well as the number of inhabitants. Life & liberty were generally said to be of more value than property. An accurate view of the matter would nevertheless prove that property was the main object of Society. The Savage State was more favorable to liberty than the Civilized; and sufficiently so to life. It was preferred by all men who had not acquired a taste for property; it was only renounced for the sake of property which could only be secured by the restraints of regular Government. These ideas might appear to some new, but they were nevertheless just. If property then was the main object of Gov^t certainly it ought to be one measure of the influence due to those who were to be affected by the Govern^t. He looked forward also to that range of New States which w^d soon be formed in the West. He thought the rule of representation ought to be so fixed as to secure to the Atlantic States a prevalence in the National Councils. The new States will know less of the public interest than these, will have an interest in many respects different, in particular will be little scrupulous of involving the Community in wars the burdens & operations of which would fall chiefly on the maritime States. Provision ought therefore to be made to prevent the maritime States from being hereafter outvoted by them. He thought this might be easily done by irrevocably fixing the number of representatives which the Atlantic States should respectively have, and the number which each new State will have. This w^d not be unjust, as the Western settlers w^d previously know the conditions on which they were to possess their lands. It would be politic as it would reco[~m]end the plan to the present as well as future interest of the States which must decide the fate of it.
M^r Rutlidge. The gentleman last up had spoken some of his sentiments precisely. Property was certainly the principal object of Society. If numbers should be made the rule of representation, the Atlantic States will be subjected to the Western. He moved that the first proposition in the report be postponed in order to take up the following viz "that the suffrages of the several States be regulated and proportioned according to the sums to be paid towards the general revenue by the inhabitants of each State respectively: that an apportionment of suffrages, according to the ratio aforesaid shall be made and regulated at the end of ---- years from the 1^{st} meeting of the Legislature of the U. S., and at the end of every ---- years but that for the present, and until the period above mentioned, the suffrages shall be for N. Hampshire ---- for Massach^{ts} ---- &c.
Col. Mason said the case of new States was not unnoticed in the Committee; but it was thought and he was himself decidedly of opinion that if they made a part of the Union, they ought to be subject to no unfavorable discriminations. Obvious considerations required it.
M^r Randolph concurred with Col. Mason.
On Question on M^r Rutlidges motion,
Mas^{ts} no. Con^t no. N. Y. no. N. J. no. P^a no. Del. no. Mary^d no. V^a no. N. C. no. S. C. ay. Geo. not on floor.
FRIDAY JULY 6^{TH} IN CONVENTION
M^r Gov^r Morris moved to commit so much of the Report as relates to "1 member for every 40,000 inhabitants." His view was that they might absolutely fix the number for each State in the first instance; leaving the Legislature at liberty to provide for changes in the relative importance of the States, and for the case of new States.
M^r Wilson 2^{ded} the motion; but with a view of leaving the Committee under no implied shackles.
M^r Ghorum apprehended great inconveniency from fixing directly the number of Representatives to be allowed to each State. He thought the number of Inhabitants the true guide; tho' perhaps some departure might be expedient from the full proportion. The States also would vary in their relative extent by separations of parts of the largest States. A part of Virg^a is now on the point of a separation. In the province of Mayne a Convention is at this time deliberating on a separation from Mas^{ts}. In such events the number of representatives ought certainly to be reduced. He hoped to see all the States made small by proper divisions, instead of their becoming formidable as was apprehended, to the Small States. He conceived that let the Gen^l Government be modified as it might, there would be a constant tendency in the State Governm^{ts} to encroach upon it: it was of importance therefore that the extent of the States sh^d be reduced as much & as fast as possible. The stronger the Gov^t shall be made in the first instance the more easily will these divisions be effected; as it will be of less consequence in the opinion of the States whether they be of great or small extent.
M^r Gerry did not think with his Colleague that the large States ought to be cut up. This policy has been inculcated by the middling and smaller States, ungenerously & contrary to the spirit of the Confederation. Ambitious men will be apt to solicit needless divisions, till the States be reduced to the size of Counties. If this policy should still actuate the small States, the large ones cou'd not confederate safely with them; but would be obliged to consult their safety by confederating only with one another. He favored the commitment and thought that Representation ought to be in the Combined ratio of numbers of Inhabitants and of wealth, and not of either singly.
M^r King wished the clause to be committed, chiefly in order to detach it from the Report with which it had no connection. He thought also that the Ratio of Representation proposed could not be safely fixed, since in a century & a half our computed increase of population would carry the number of representatives to an enormous excess; that y^e number of inhabitants was not the proper index of ability & wealth; that property was the primary object of Society; and that in fixing a ratio this ought not to be excluded from the estimate.--With regard to new States, he observed that there was something peculiar in the business which had not been noticed. The U. S. were now admitted to be proprietors of the Country N. West of the Ohio. Cong^s by one of their ordinances have impoliticly laid it out into ten States, and have made it a fundamental article of compact with those who may become settlers, that as soon as the number in any one state shall equal that of the smallest of the 13 original States, it may claim admission into the Union. Delaware does not contain it is computed more than 35,000 souls, and for obvious reasons will not increase much for a considerable time. It is possible then that if this plan be persisted in by Cong^s 10 new votes may be added, without a greater addition of inhabitants than are represented by the single vote of Pen^a. The plan as it respects one of the new States is already irrevocable, the sale of the lands having commenced, and the purchasers & settlers will immediately become entitled to all the privileges of the compact.
M^r Butler agreed to the Commitment if the Committee were to be left at liberty. He was persuaded that the more the subject was examined, the less it would appear that the number of inhabitants would be a proper rule of proportion. If there were no other objection the changeableness of the standard would be sufficient. He concurred with those who thought some balance was necessary between the old & the new States. He contended strenuously that property was the only just measure of representation. This was the great object of Govern^t; the great cause of war; the great means of carrying it on.
M^r Pinkney saw no good reason for committing. The value of land had been found on full investigation to be an impracticable rule. The contributions of revenue including imports & exports must be too changeable in their amount; too difficult to be adjusted; and too injurious to the non-commercial States. The number of inhabitants appeared to him the only just & practicable rule. He thought the blacks ought to stand on an equality with the whites: But w^d agree to the ratio settled by Cong^s. He contended that Cong^s had no right under the articles of Confederation to authorize the admission of new States; no such case having been provided for.
M^r Davy was for committing the clause in order to get at the merits of the question arising on the Report. He seemed to think that wealth or property ought to be represented in the 2^d branch; and numbers in the 1^{st} branch.
On the Motion for committing as made by M^r Gov^r Morris,
Mass^{ts} ay. Con^t ay. N. Y. no. N. J. no. P^a ay. Del. no. M^d div^d. V^a ay. N. C. ay. S. C. ay. Geo. ay.
The members app^d by Ballot were M^r Gov^r Morris, M^r Gorham, M^r Randolph, M^r Rutlidge, M^r King.
M^r Wilson signified that his view in agreeing to the co[~m]itm^t was that the Com^e might consider the propriety of adopting a scale similar to that established by the Constitution of Mass^{ts} which w^d give an advantage to y^e small States without substantially departing from the rule of proportion.
M^r Wilson & M^r Mason moved to postpone the clause relating to money bills in order to take up the clause relating to an equality of votes in the Second branch.
On the question Mass^{ts} no. Con^t no. N. Y. ay. N. J. ay. P^a ay. Del. ay. M^d ay. V^a ay. N. C. no. S. C. ay. Geo. ay.
The clause relating to equality of votes being under consideration,
Doc^r Franklin observed that this question could not be properly put by itself, the Co[~m]ittee having reported several propositions as mutual conditions of each other. He could not vote for it if separately taken, but should vote for the whole together.
Col. Mason perceived the difficulty & suggested a reference of the rest of the Report to y^e Committee just appointed, that the whole might be brought into one view.
M^r Randolph disliked y^e reference to that Committee, as it consisted of members from States opposed to the wishes of the smaller States, and could not therefore be acceptable to the latter.
M^r Martin & M^r Jenifer moved to postpone the clause till the Com^e last appointed sh^d report.
M^r Madison observed that if the uncommitted part of the Report was connected with the part just committed, it ought also to be committed; if not connected, it need not be postponed till report should be made.
On the question for postponing, moved by M^r Martin & M^r Jenifer,--Con^t N. J. Del. M^d V^a Geo. ay. P^a N. C. S. C. no. Mass. N. Y. divided.
The 1^{st} clause relating to the originating of money bills was then resumed.
M^r Govern^r Morris was opposed to a restriction of this right in either branch, considered merely in itself and as unconnected with the point of representation in the 2^d branch. It will disable the 2^d branch from proposing its own money plans, and giving the people an opportunity of judging by comparison of the merits of those proposed by the 1^{st} branch.
M^r Wilson could see nothing like a concession here on the part of the smaller States. If both branches were to say yes or no, it was of little consequence which should say yes or no first, which last. If either was indiscriminately to have the right of originating, the reverse of the Report, would he thought be most proper; since it was a maxim that the least numerous body was the fittest for deliberation; the most numerous for decision. He observed that this discrimination had been transcribed from the British into several American constitutions. But he was persuaded that on examination of the American experiments it would be found to be a trifle light as air. Nor could he ever discover the advantage of it in the Parliamentary history of G. Britain. He hoped if there was any advantage in the privilege, that it would be pointed out.
M^r Williamson thought that if the privilege were not common to both branches it ought rather to be confined to the 2^d as the bills in that case would be more narrowly watched, than if they originated with the branch having most of the popular confidence.
M^r Mason. The consideration which weighed with the Committee was that the 1^{st} branch would be the immediate representatives of the people, the 2^d would not. Should the latter have the power of giving away the people's money, they might soon forget the source from whence they received it. We might soon have an aristocracy. He had been much concerned at the principles which had been advanced by some gentlemen, but had the satisfaction to find they did not generally prevail. He was a friend to proportional representation in both branches; but supposed that some points must be yielded for the sake of accomodation.
M^r Wilson. If he had proposed that the 2^d branch should have an independent disposal of public money, the observations of (Col. Mason) would have been a satisfactory answer. But nothing could be farther from what he had said. His question was how is the power of the 1^{st} branch increased or that of the 2^d diminished by giving the proposed privilege to the former? Where is the difference, in which branch it begins, if both must concur, in the end?
M^r Gerry would not say that the concession was a sufficient one on the part of the small States. But he could not but regard it in the light of a concession. It w^d make it a constitutional principle that the 2^d branch were not possessed of the Confidence of the people in money matters, which w^d lessen their weight & influence. In the next place if the 2^d branch were dispossessed of the privilege, they w^d be deprived of the opportunity which their continuance in office 3 times as long as the 1^{st} branch would give them of making three successive essays in favor of a particular point.
M^r Pinkney thought it evident that the Concession was wholly on one side, that of the large States, the privilege of originating money bills being of no account.
M^r Gov^r Morris had waited to hear the good effects of the restriction. As to the alarm sounded, of an aristocracy, his creed was that there never was, nor ever will be a civilized Society without an aristocracy. His endeavor was to keep it as much as possible from doing mischief. The restriction if it has any real operation, will deprive us of the services of the 2^d branch in digesting & proposing money bills of which it will be more capable than the 1^{st} branch. It will take away the responsibility of the 2^d branch, the great security for good behavior. It will always leave a plea, as to an obnoxious money bill that it was disliked, but could not be constitutionally amended; nor safely rejected. It will be a dangerous source of disputes between the two Houses. We should either take the British Constitution altogether or make one for ourselves. The Executive there has dissolved two Houses as the only cure for such disputes. Will our Executive be able to apply such a remedy? Every law directly or indirectly takes money out of the pockets of the people. Again What use may be made of such a privilege in case of great emergency? Suppose an Enemy at the door, and money instantly & absolutely necessary for repelling him, may not the popular branch avail itself of this duress, to extort concessions from the Senate destructive of the Constitution itself. He illustrated this danger by the example of the Long Parliament's exped^{ts} for subverting the H. of Lords; concluding on the whole that the restriction would be either useless or pernicious.
Doc^r Franklin did not mean to go into a justification of the Report, but as it had been asked what would be the use of restraining the 2^d branch from medling with money bills, he could not but remark that it was always of importance that the people should know who had disposed of their money, & how it had been disposed of. It was a maxim that those who feel, can best judge. This end would, he thought, be best attained, if money affairs were to be confined to the immediate representatives of the people. This was his inducement to concur in the report. As to the danger or difficulty that might arise from a Negative in the 2^d where the people w^d not be proportionately represented, it might easily be got over by declaring that there should be no such negative; or if that will not do, by declaring that there shall be no such branch at all.
M^r Martin said that it was understood in the Committee that the difficulties and disputes which had been apprehended, should be guarded ag^{st} in the detailing of the plan.
M^r Wilson. The difficulties & disputes will increase with the attempts to define & obviate them. Queen Anne was obliged to dissolve her Parliam^t in order to terminate one of these obstinate disputes between the two Houses. Had it not been for the mediation of the Crown, no one can say what the result would have been. The point is still sub judice in England. He approved of the principles laid down by the Honble President (Doct^r Franklin) his Colleague, as to the expediency of keeping the people informed of their money affairs. But thought they would know as much, and be as well satisfied, in one way as in the other.
Gen^l Pinkney was astonished that this point should have been considered as a concession. He remarked that the restriction to money bills had been rejected on the merits singly considered, by 8 States ag^{st} 3. and that the very States which now called it a concession, were then ag^{st} it as nugatory or improper in itself.
On the Question whether the clause relating to money bills in the Report of the Com^e consisting of a member from each State, sh^d stand as part of the Report
Mass^{ts} divid^d Con^t ay. N. Y. div^d. N. J. ay. P^a no. Del. ay. M^d ay. V^a no. N. C. ay. S. C. no. Geo. div^d
A Question was then raised whether the question was carried in the affirmative; there being but 5 ays out of 11. States present. The words of the rule are (see May 28).
On this question: Mas. Con^t N. J. P^a Del. M^d N. C. S. C. Geo. ay. N. Y. V^a no
(In several preceding instances like votes had sub silentio been entered as decided in the affirmative.)
Adjourned
SATURDAY, JULY 7. IN CONVENTION.
"Shall the clause allowing each State one vote in the 2^d branch, stand as part of the Report,"? being taken up--
M^r Gerry. This is the critical question. He had rather agree to it than have no accommodation. A Govern^t short of a proper national plan, if generally acceptable, would be preferable to a proper one which if it could be carried at all, would operate on discontented States. He thought it would be best to suspend the question till the Comm^e yesterday appointed, should make report.
M^r Sherman Supposed that it was the wish of every one that some Gen^l Gov^t should be established. An equal vote in the 2^d branch would, he thought, be most likely to give it the necessary vigor. The small States have more vigor in their Gov^{ts} than the large ones, the more influence therefore the large ones have, the weaker will be the Gov^t. In the large States it will be most difficult to collect the real & fair sense of the people. Fallacy & undue influence will be practised with most success; and improper men will most easily get into office. If they vote by States in the 2^d branch, and each State has an equal vote, there must be always a majority of States as well as a majority of the people on the side of public measures, & the Gov^t will have decision and efficacy. If this be not the case in the 2^d branch there may be a majority of States ag^{st} public measures, and the difficulty of compelling them to abide by the public determination, will render the Government feebler than it has ever yet been.
M^r Wilson was not deficient in a conciliating temper, but firmness was sometimes a duty of higher obligation. Conciliation was also misapplied in this instance. It was pursued here rather among the Representatives, than among the Constituents; and it w^d be of little consequence if not established among the latter; and there could be little hope of its being established among them if the foundation should not be laid in justice and right.
On Question shall the words stand as part of the Report?
Mass^{ts} div^d. Con^t ay. N. Y. ay. N. J, ay. P^a no. Del. ay. M^d ay. V^a no. N. C. ay. S. C. no. Geo. div^d
(Note. several votes were given here in the affirmative or were div^d because another final question was to be taken on the whole report.)
M^r Gerry[127] thought it would be proper to proceed to enumerate & define the powers to be vested in the Gen^l Gov^t before a question on the report should be taken as to the rule of representation in the 2^d branch.
[127] King gives the three speeches of Gerry, Madison and Patterson as follows:
"_Gerry._ I agree to the measure, provided that the first Br. (H. of Reps.) shall originate money bills and money appropriations. The prejudices as well as the interest of our Constituents must be regarded--two or three thousand men are in office in the States--their influence will be in favor of an Equality of votes among the States.
"_Madison._ Equality in the Senate will enable a minority to hold a majority, and to oblige them to submit to their interests, or they will withdraw their assent to measures essential and necessary to the general Good. I have known one man, when the State was represented by only two, and they were divided, oppose six States in Congress on an important occasion for three days, and finally compel them to gratify his caprice in order to obtain his suffrage. The Senate will possess certain exclusive Powers, such as the appointments to office, if the States have equal votes; a minority of People will appoint the Great Offices. Besides the small States may be near the Seat of Govt.--a bare Quorum of the H. of R. may be easily assembled, and carry a bill against the sense of a majority if all were present, and the Senate, tho' all were present, might confirm such Bill. Virginia has objected to every addition of the powers of Congress, because she has only 1/13 of the Power when she ought to have one sixth.
"_Paterson._ I hope the question will be taken: if we do not give equal votes in the Senate to the States, the small States agreeing that money Bills and appropriations shall originate in the H. of Reps., elected according to numbers, it must not be expected that the small States will agree to the amendments of the Confederation. Let us decide this question and lose no more time. I think that I shall vote against the provision, because I think that the exclusive originating of money Bills & appropriations by the H. of Reps. is giving up too much on the part of the small States."--King's _Life and Correspondence of Rufus King_, I., 613.
M^r Madison, observed that it w^d be impossible to say what powers could be safely & properly vested in the Gov^t before it was known, in what manner the States were to be represented in it. He was apprehensive that if a just representation were not the basis of the Gov^t it would happen, as it did when the Articles of Confederation were depending, that every effectual prerogative would be withdrawn or withheld, and the New Gov^t w^d be rendered as impotent and as shortlived as the old.
M^r Patterson would not decide whether the privilege concerning money bills were a valuable consideration or not: But he considered the mode & rule of representation in the 1^{st} branch as fully so; and that after the establishment of that point, the small States would never be able to defend themselves without an equality of votes in the 2^d branch. There was no other ground of accommodation. His resolution was fixt. He would meet the large States on that ground and no other. For himself he should vote ag^{st} the Report, because it yielded too much.
M^r Gov^r Morris. He had no resolution unalterably fixed except to do what should finally appear to him right. He was ag^{st} the Report because it maintained the improper constitution of the 2^d branch. It made it another Congress, a mere whisp of straw. It had been s^d (by M^r Gerry) that the new Govern^t would be partly national, partly federal; that it ought in the first quality to protect individuals; in the second, the States. But in what quality was it to protect the aggregate interest of the whole. Among the many provisions which had been urged, he had seen none for supporting the dignity and splendor of the American Empire. It had been one of our greatest misfortunes that the great objects of the nation had been sacrificed constantly to local views; in like manner as the general interests of States had been sacrificed to those of the Counties. What is to be the check in the Senate? none; unless it be to keep the majority of the people from injuring particular States. But particular States ought to be injured for the sake of a majority of the people, in case their conduct should deserve it. Suppose they should insist on claims evidently unjust, and pursue them in a manner detrimental to the whole body. Suppose they should give themselves up to foreign influence. Ought they to be protected in such cases. They were originally nothing more than colonial corporations. On the declaration of Independence, a Governm^t was to be formed. The small States aware of the necessity of preventing anarchy, and taking advantage of the moment, extorted from the large ones an equality of votes. Standing now on that ground, they demand under the new system greater rights as men, than their fellow Citizens of the large States. The proper answer to them is that the same necessity of which they formerly took advantage, does not now exist, and that the large States are at liberty now to consider what is right, rather than what may be expedient. We must have an efficient Gov^t and if there be an efficiency in the local Gov^{ts} the former is impossible. Germany alone proves it. Notwithstanding their common diet, notwithstanding the great prerogatives of the Emperor as head of the Empire, and his vast resources, as sovereign of his particular dominions, no union is maintained; foreign influence disturbs every internal operation, & there is no energy whatever in the General Governm^t. Whence does this proceed? From the energy of the local authorities; from its being considered of more consequence to support the Prince of Hesse, than the Happiness of the people of Germany. Do Gentlemen wish this to be y^e case here. Good God, Sir, is it possible they can so delude themselves. What if all the Charters & Constitutions of the States were thrown into the fire, and all their demagogues into the Ocean. What would it be to the happiness of America. And will not this be the case here if we pursue the train in w^{ch} the business lies. We shall establish an Aulic Council without an Emperor to execute its decrees. The same circumstances which unite the people here, unite them in Germany. They have there a common language, a common law, common usages and manners, and a common interest in being united; Yet their local jurisdictions destroy every tie. The case was the same in the Grecian States. The United Netherlands are at this time torn in factions. With these examples before our eyes shall we form establishments which must necessarily produce the same effects. It is of no consequence from what districts the 2^d branch shall be drawn, if it be so constituted as to yield an asylum ag^{st} these evils. As it is now constituted he must be ag^{st} its being drawn from the States in equal portions. But still he was ready to join in devising such an amendment of the plan, as will be most likely to secure our liberty & happiness.
M^r Sherman & M^r Elseworth moved to postpone the Question on the Report from the Committee of a member from each State, in order to wait for the Report from the Com^e of 5 last appointed.
Mass^{ts} ay. Con^t ay. N. Y. no. N. J. ay. P^a ay. Del. ay. Maryland ay. V^a no. N. C. no. S. C. no. Geo. no.
Adj^d.
MONDAY JULY 9^{TH} IN CONVENTION.
M^r Daniel Carroll, from Maryland took his seat.
M^r Gov^r Morris delivered a report from the Com^e of 5 members to whom was committed the clause in the Report of the Com^e consisting of a member from each State, stating the proper ratio of Representatives in the 1^{st} branch, to be as 1 to every 40,000 inhabitants, as follows viz
"The Committee to whom was referred the 1^{st} clause of the 1^{st} proposition reported from the grand Committee, beg leave to report:
I. that in the 1^{st} meeting of the Legislature the 1^{st} branch thereof consist of 56. members of which Number N. Hampshire shall have 2, Mass^{ts} 7, R. I^d 1, Con^t 4, N. Y. 5, N. J. 3, P^a 8, Del. 1, M^d 4, V^a 9, N. C. 5, S. C. 5, Geo. 2.
II. But as the present situation of the States may probably alter as well in point of wealth as in the number of their inhabitants, that the Legislature be authorized from time to time to augment y^e number of Representatives. And in case any of the States shall hereafter be divided, or any two or more States united, or any new States created within the limits of the United States, the Legislature shall possess authority to regulate the number of Representatives in any of the foregoing cases, upon the principles of their wealth and number of inhabitants."
M^r Sherman wished to know on what principles or calculations the Report was founded. It did not appear to correspond with any rule of numbers, or of any requisition hitherto adopted by Cong^s
M^r Gorham. Some provision of this sort was necessary in the outset. The number of blacks & whites with some regard to supposed wealth was the general guide. Fractions could not be observed. The Legisl^{re} is to make alterations from time to time as justice & propriety may require. Two objections prevailed ag^{st} the rate of 1 member for every 40,000 inh^{ts}. The 1^{st} was that the Representation would soon be too numerous: the 2^d that the West^n States who may have a different interest, might if admitted on that principle by degrees, outvote the Atlantic. Both these objections are removed. The number will be small in the first instance and may be continued so. And the Atlantic States having y^e Gov^t in their own hands, may take care of their own interest, by dealing out the right of Representation in safe proportions to the Western States. These were the views of the Committee.
M^r L. Martin wished to know whether the Com^e were guided in the ratio, by the wealth or number of inhabitants, of the States, or by both; noting its variations from former apportionments by Cong^s
M^r Gov^r Morris & M^r Rutlidge moved to postpone the 1^{st} paragraph relating to the number of members to be allowed each State in the first instance, and to take up the 2^d paragraph authorizing the Legisl^{re} to alter the number from time to time according to wealth & inhabitants. The motion was agreed to nem. con.
On Question on the 2^d parag^h taken without any debate
Mass^{ts} ay. Con^t ay. N. Y. no. 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 refer the 1^{st} part apportioning the Representatives, to a Comm^e of a member from each State.
M^r Gov^r Morris seconded the motion; observing that this was the only case in which such committees were useful.
M^r Williamson thought it would be necessary to return to the rule of numbers, but that the Western States stood on different footing. If their property shall be rated as high as that of the Atlantic States, then their representation ought to hold a like proportion. Otherwise if their property was not to be equally rated.
M^r Gov^r Morris. The Report is little more than a guess. Wealth was not altogether disregarded by the Com^e. Where it was apparently in favor of one State, whose n^{os} were superior to the numbers of another, by a fraction only, a member extraordinary was allowed to the former: and so vice versa. The Committee meant little more than to bring the matter to a point for the consideration of the House.
M^r Reed asked why Georgia was allowed 2 members, when her number of inhabitants had stood below that of Delaware.
M^r Gov^r Morris. Such is the rapidity of the population of that State, that before the plan takes effect, it will probably be entitled to 2 Representatives.
M^r Randolph, disliked the Report of the Com^e but had been unwilling to object to it. He was apprehensive that as the number was not be changed, till the Nat^l Legislature should please, a pretext would never be wanting to postpone alterations, and keep the power in the hands of those possessed of it. He was in favor of the Commitm^t to a member from each State.
M^r Patterson considered the proposed estimate for the future according to the combined rules of numbers and wealth, as too vague. For this reason N. Jersey was ag^{st} it. He could regard negroes slaves in no light but as property. They are no free agents, have no personal liberty, no faculty of acquiring property, but on the contrary are themselves property, & like other property entirely at the will of the Master. Has a man in Virg^a a number of votes in proportion to the number of his slaves? And if negroes are not represented in the States to which they belong, why should they be represented in the Gen^l Gov^t. What is the true principle of Representation? It is an expedient by which an assembly of certain individ^{ls} chosen by the people is substituted in place of the inconvenient meeting of the people themselves. If such a meeting of the people was actually to take place, would the slaves vote? They would not. Why then sh^d they be represented. He was also ag^{st} such an indirect encouragem^t of the slave trade; observing that Cong^s in their act relating to the change of the 8 art: of Confed^n had been ashamed to use the term "slaves" & had substituted a description.
M^r Madison reminded M^r Patterson that his doctrine of Representation which was in its principle the genuine one, must forever silence the pretensions of the small States to an equality of votes with the large ones. They ought to vote in the same proportion in which their Citizens would do, if the people of all the States were collectively met. He suggested as a proper ground of compromise, that in the first branch the States should be represented according to their number of free inhabitants; And in the 2^d which had for one of its primary objects the guardianship of property, according to the whole number, including slaves.
M^r Butler urged warmly the justice & necessity of regarding wealth in the apportionment of Representation.
M^r King had always expected that as the Southern States are the richest, they would not league themselves with the North^n unless some respect were paid to their superior wealth. If the latter expect those preferential distinctions in Commerce, & other advantages which they will derive from the connexion they must not expect to receive them without allowing some advantages in return. Eleven out of 13 of the States had agreed to consider Slaves in the apportionment of taxation; and taxation and Representation ought to go together.
On the question for committing the first paragraph of the Report to a member from each State
Mass^{ts} ay. Con^t ay. N. Y. no. N. J. ay. P^a ay. Del. ay. M^d ay. V^a ay. N. C. ay. S. C. no. Geo. ay.
The Com^e appointed were M^r King, M^r Sherman, M^r Yates, M^r Brearly, M^r Gov^r Morris, M^r Reed, M^r Carrol, M^r Madison, M^r Williamson, M^r Rutlidge, M^r Houston.
Adj^d.
TUESDAY JULY 10. IN CONVENTION.
M^r King reported from the Com^e yesterday appointed that the States at the 1^{st} meeting of the General Legislature, should be represented by 65 members, in the following proportions, to wit N. Hampshire by 3, Mass^{ts} 8, R. Is^d 1, Con^t 5, N. Y. 6, N. J. 4, P^a 8, Del. 1, M^d 6, V^a 10, N. C. 5, S. C. 5, Georgia 3.
M^r Rutlidge moved that N. Hampshire be reduced from 3 to 2. members. Her numbers did not entitle her to 3 and it was a poor State.
Gen^l Pinkney seconds the motion.
M^r King. N. Hampshire has probably more than 120,000 Inhab^{ts} and has an extensive Country of tolerable fertility. Its inhab^{ts} therefore may be expected to increase fast. He remarked that the four Eastern States, having 800,000 souls, have 1/3 fewer representatives than the four Southern States, having not more than 700,000 souls, rating the blacks as 5 for 3. The Eastern people will advert to these circumstances, and be dissatisfied. He believed them to be very desirous of uniting with their Southern brethren, but did not think it prudent to rely so far on that disposition as to subject them to any gross inequality. He was fully convinced that the question concerning a difference of interests did not lie where it had hitherto been discussed, between the great & small States; but between the Southern & Eastern. For this reason he had been ready to yield something in the proportion of representatives for the security of the Southern. No principle would justify the giving them a majority. They were brought as near an equality as was possible. He was not averse to giving them a still greater security, but did not see how it could be done.
Gen^l Pinkney. The Report before it was committed was more favorable to the S. States than as it now stands. If they are to form so considerable a minority, and the regulation of trade is to be given to the Gen^l Government, they will be nothing more than overseers for the Northern States. He did not expect the S. States to be raised to a majority of representatives, but wished them to have something like an equality. At present by the alterations of the Com^e in favor of the N. States they are removed farther from it than they were before. One member indeed had been added to Virg^a which he was glad of as he considered her as a Southern State. He was glad also that the members of Georgia were increased.
M^r Williamson was not for reducing N. Hampshire from 3 to 2, but for reducing some others. The South^n Interest must be extremely endangered by the present arrangement. The North^n States are to have a majority in the first instance and the means of perpetuating it.
M^r Dayton observed that the line between North^n & Southern interest had been improperly drawn; that P^a was the dividing State, there being six on each side of her.
Gen^l Pinkney urged the reduction, dwelt on the superior wealth of the Southern States, and insisted on its having its due weight in the Government.
M^r Gov^r Morris regretted the turn of the debate. The States he found had many Representatives on the floor. Few he fears were to be deemed the Representatives of America. He thought the Southern States have by the report more than their share of representation. Property ought to have its weight, but not all the weight. If the South^n States are to supply money. The North^n States are to spill their blood. Besides, the probable Revenue to be expected from the S. States has been greatly overrated. He was ag^{st} reducing N. Hampshire.
M^r Randolph was opposed to a reduction of N. Hampshire, not because she had a full title to three members; but because it was in his contemplation 1. to make it the duty instead of leaving it in the discretion of the Legislature to regulate the representation by a periodical census. 2. to require more than a bare majority of votes in the Legislature in certain cases & particularly in commercial cases.
On the question for reducing N. Hampshire from 3 to 2 Represent^s it passed in the negative
Mass^{ts} no. Con^t no. N. J. no. P^a no. Del. no. M^d no. V^a no. N. C. ay. S. C. ay. Geo. no.[128]
[128] In printed Journal. N. C. no. Geo. ay. Note in Madison's hand.
Gen^l Pinkney and M^r Alex^r Martin moved that 6 Rep^s instead of 5 be allowed to N. Carolina.
On the Question, it passed in the negative
Mass^{ts} no. Con^t no. N. J. no. P^a no. Del. no. M^d no. V^a no. N. C. ay. S. C. ay. Geo. ay.
Gen^l Pinkney & M^r Butler made the same motion in favor of S. Carolina
On the Question it passed in the negative
Mass^{ts} no. Con^t no. N. Y. no. N. J. no. P^a no. Del. ay. M^d no. V^a no. N. C. ay. S. C. ay. Geo. ay.
Gen^l Pinckney & M^r Houston moved that Georgia be allowed 4 instead of 3 Rep^s urging the unexampled celerity of its population. On the Question, it passed in the Negative
Mass^{ts} no. Con^t no. N. Y. no. N. J. no. P^a no. Del. no. M^d no. V^a ay. N. C. ay. S. C. ay. Geo. ay.
M^r Madison, moved that the number allowed to each State be doubled. A _majority_ of a _Quorum_ of _65_ members, was too small a number to represent the whole inhabitants of the U. States; They would not possess enough of the confidence of the people, and w^d be too sparsely taken from the people, to bring with them all the local information which would be frequently wanted. Double the number will not be too great, even with the future additions from New States. The additional expence was too inconsiderable to be regarded in so important a case. And as far as the augmentation might be unpopular on that score, the objection was overbalanced by its effect on the hopes of a greater number of the popular candidates.
M^r Elseworth urged the objection of expence, & that the greater the number, the more slowly would the business proceed; and the less probably be decided as it ought, at last. He thought the number of Representatives too great in most of the State Legislatures; and that a large number was less necessary in the Gen^l Legislature than in those of the States, as its business would relate to a few great national Objects only.
M^r Sherman would have preferred 50 to 65. The great distance they will have to travel will render their attendance precarious and will make it difficult to prevail on a sufficient number of fit men to undertake the service. He observed that the expected increase from new States also deserved consideration.
M^r Gerry was for increasing the number beyond 65. The larger the number, the less the danger of their being corrupted. The people are accustomed to & fond of a numerous representation, and will consider their rights as better secured by it. The danger of excess in the number may be guarded ag^{st} by fixing a point within which the number shall always be kept.
Col. Mason admitted that the objection drawn from the consideration of expence, had weight both in itself, and as the people might be affected by it. But he thought it outweighed by the objections ag^{st} the smallness of the number. 38, will he supposes, as being a majority of 65. form a quorum. 20 will be a majority of 38. This was certainly too small a number to make laws for America. They would neither bring with them all the necessary information relative to various local interests, nor possess the necessary confidence of the people. After doubling the number, the laws might still be made by so few as almost to be objectionable on that account.
M^r Read was in favor of the Motion. Two of the States (Del. & R. I.) would have but a single member if the aggregate number should remain at 65. and in case of accident to either of these one State w^d have no representative present to give explanations or informations of its interests or wishes. The people would not place their confidence in so small a number. He hoped the objects of the Gen^l Gov^t would be much more numerous than seemed to be expected by some gentlemen, and that they would become more & more so. As to New States the highest number of Rep^s for the whole might be limited, and all danger of excess thereby prevented.
M^r Rutlidge opposed the motion. The Representatives were too numerous in all the States. The full number allotted to the States may be expected to attend, & the lowest possible quorum sh^d not therefore be considered. The interests of their Constituents will urge their attendance too strongly for it to be omitted: and he supposed the Gen^l Legislature would not sit more than 6 or 8 weeks in the year.
On the Question for doubling the number, it passed in the negative
Mas^{ts} no. Con^t no. N. Y. no. N. J. no. P^a no. Del. ay. M^d no. V^a ay. N. C. no. S. C. no. Geo. no.
On the question for agreeing to the apportionment of Rep^s as amended by the last committee, it passed in the affirmative
Mas. ay. Con^t ay. N. Y. ay. N. J. ay. P^a ay. Del. ay. M^d ay. V^a ay. N. C. ay. S. C. no. Geo. no.
M^r Broom gave notice to the House that he had concurred with a reserve to himself of an intention to claim for his State an equal voice in the 2^d branch; which he thought could not be denied after this concession of the small States as to the first branch.
M^r Randolph moved as an amendment to the report of the Comm^e of five "that in order to ascertain the alterations in the population & wealth of the several States the Legislature should be required to cause a census, and estimate to be taken within one year after its first meeting; and every ---- years thereafter, and that the Legisl^{re} arrange the Representation accordingly."
M^r Gov^r Morris opposed it as fettering the Legislature too much. Advantage may be taken of it in time of war or the apprehension of it, by new States to extort particular favors. If the mode was to be fixed for taking a Census, it might certainly be extremely inconvenient: if unfixt the Legislature may use such a mode as will defeat the object: and perpetuate the inequality. He was always ag^{st} such shackles on the Legisl^{re}. They had been found very pernicious in most of the State Constitutions. He dwelt much on the danger of throwing such a preponderancy into the Western Scale, suggesting that in time the Western people w^d outnumber the Atlantic States. He wished therefore to put it in the power of the latter to keep a majority of votes in their own hands. It was objected he said that if the Legisl^{re} are left at liberty, they will never readjust the Representation. He admitted that this was possible; but he did not think it probable unless the reasons ag^{st} a revision of it were very urgent & in this case, it ought not to be done.
It was moved to postpone the proposition of M^r Randolph in order to take up the following, viz. "that the Committee of Eleven, to whom was referred the report of the Committee of five on the subject of Representation, be requested to furnish the Convention with the principles on which they grounded the Report," which was disagreed to; S. C. alone voting in the affirmative.
Adjourned
WEDNESDAY JULY 11. IN CONVENTION.
M^r Randolph's motion requiring the Legisl^{re} to take a periodical census for the purpose of redressing inequalities in the Representation was resumed.
M^r Sherman was ag^{st}. Shackling the Legislature too much. We ought to choose wise & good men, and then confide in them.
M^r Mason. The greater the difficulty we find in fixing a proper rule of Representation, the more unwilling ought we to be, to throw the task from ourselves on the Gen^l Legisl^{re}. He did not object to the conjectural ratio which was to prevail in the outset; but considered a Revision from time to time according to some permanent & precise standard as essential to y^e fair representation required in the 1^{st} branch. According to the present population of America, the North^n part of it had a right to preponderate, and he could not deny it. But he wished it not to preponderate hereafter when the reason no longer continued. From the nature of man we may be sure that those who have power in their hands will not give it up while they can retain it. On the contrary we know that they will always when they can rather increase it. If the S. States therefore should have 3/4 of the people of America within their limits, the Northern will hold fast the majority of Representatives. 1/4 will govern the 3/4. The S. States will complain; but they may complain from generation to generation without redress. Unless some principle therefore which will do justice to them hereafter shall be inserted in the Constitution, disagreable as the declaration was to him, he must declare he could neither vote for the system here, nor support it, in his State. Strong objections had been drawn from the danger to the Atlantic interests from new Western States. Ought we to sacrifice what we know to be right in itself, lest it should prove favorable to States which are not yet in existence. If the Western States are to be admitted into the Union, as they arise, they must, he w^d repeat, be treated as equals, and subjected to no degrading discriminations. They will have the same pride & other passions which we have and will either not unite with or will speedily revolt from the Union, if they are not in all respects placed on an equal footing with their brethren. It has been said they will be poor, and unable to make equal contributions to the general Treasury. He did not know but that in time they would be both more numerous & more wealthy than their Atlantic brethren. The extent & fertility of their soil, made this probable; and though Spain might for a time deprive them of the natural outlet for their productions, yet she will, because she must, finally yield to their demands. He urged that numbers of inhabitants; though not always a precise standard of wealth was sufficiently so for every substantial purpose.
M^r Williamson was for making it a duty of the Legislature to do what was right & not leaving it at liberty to do or not to do it. He moved that M^r Randolph's propositions be postpon^d in order to consider the following "that in order to ascertain the alterations that may happen in the population & wealth of the several States, a census shall be taken of the free white inhabitants and 3/5^{ths} of those of other descriptions on the 1^{st} year after this Government shall have been adopted and every ---- year thereafter; and that the Representation be regulated accordingly."
M^r Randolph agreed that M^r Williamson's proposition should stand in the place of his. He observed that the ratio fixt for the 1^{st} meeting was a mere conjecture, that it placed the power in the hands of that part of America, which could not always be entitled to it, that this power would not be voluntarily renounced; and that it was consequently the duty of the Convention to secure its renunciation when justice might so require; by some constitutional provisions. If equality between great & small States be inadmissible, because in that case unequal numbers of Constituents w^d be represented by equal number of votes; was it not equally inadmissible that a larger & more populous district of America should hereafter have less representation, than a smaller & less populous district. If a fair representation of the people be not secured, the injustice of the Gov^t will shake it to its foundations. What relates to suffrage is justly stated by the celebrated Montesquieu, as a fundamental article in Republican Gov^t. If the danger suggested by M^r Gov^r Morris be real, of advantage being taken of the Legislature in pressing moments, it was an additional reason, for tying their hands in such a manner that they could not sacrifice their trust to momentary considerations. Cong^s have pledged the public faith to New States, that they shall be admitted on equal terms. They never would or ought to accede on any other. The census must be taken under the direction of the General Legislature. The States will be too much interested to take an impartial one for themselves.
M^r Butler & Gen^l Pinkney insisted that blacks be included in the rule of Representation _equally_ with the whites; and for that purpose moved that the words "three-fifths" be struck out.
M^r Gerry thought that 3/5 of them was to say the least the full proportion that could be admitted.
M^r Ghorum. This ratio was fixed by Cong^s as a rule of taxation. Then it was urged by the Delegates representing the States having slaves that the blacks were still more inferior to freemen. At present when the ratio of representation is to be established, we are assured that they are equal to freemen. The arguments on y^e former occasion convinced him that 3/5 was pretty near the just proportion and he should vote according to the same opinion now.
M^r Butler insisted that the labour of a slave in S. Carol^a was as productive & valuable as that of a freeman in Mass^{ts}, that as wealth was the great means of defence and utility to the Nation they were equally valuable to it with freemen; and that consequently an equal representation ought to be allowed for them in a Government which was instituted principally for the protection of property, and was itself to be supported by property.
M^r Mason could not agree to the motion, notwithstanding it was favorable to Virg^a because he thought it unjust. It was certain that the slaves were valuable, as they raised the value of land, increased the exports & imports, and of course the revenue, would supply the means of feeding & supporting an army, and might in cases of emergency become themselves soldiers. As in these important respects they were useful to the Community at large, they ought not to be excluded from the estimate of Representation. He could not however regard them as equal to freemen and could not vote for them as such. He added as worthy of remark, that the Southern States have this peculiar species of property over & above the other species of property common to all the States.
M^r Williamson reminded M^r Ghorum that if the South^n States contended for the inferiority of blacks to whites when taxation was in view, the Eastern States on the same occasion contended for their equality. He did not however either then or now concur in either extreme, but approved of the ratio of 3/5.
On M^r Butler's motion for considering blacks as equal to Whites in the apportionm^t of Representation
Mass^{ts} no. Con^t no. (N. Y. not on floor). N. J. no. P^a no. Del. ay. M^d no. V^a no. N. C. no. S. C. ay. Geo. ay.
M^r Gov^r Morris said he had several objections to the proposition of M^r Williamson. 1. It fettered the Legislature too much. 2. it would exclude some States altogether who would not have a sufficient number to entitle them to a single Representative. 3. it will not consist with the Resolution passed on Saturday last authorizing the Legislature to adjust the Representation from time to time on the principles of population & wealth or with the principles of equity. If slaves were to be considered as inhabitants, not as wealth then the s^d Resolution would not be pursued. If as wealth, then why is no other wealth but slaves included? These objections may perhaps be removed by amendments. His great objection was that the number of inhabitants was not a proper standard of wealth. The amazing difference between the comparative numbers & wealth of different countries, rendered all reasoning superfluous on the subject. Numbers might with greater propriety be deemed a measure of strength, than of wealth, yet the late defence made by G. Britain, ag^{st} her numerous enemies proved in the clearest manner, that it is entirely fallacious even in this respect.
M^r King thought there was great force in the objections of M^r Gov^r Morris: he would however accede to the proposition for the sake of doing something.
M^r Rutlidge contended for the admission of wealth in the estimate by which Representation should be regulated. The Western States will not be able to contribute in proportion to their numbers; they sh^d not therefore be represented in that proportion. The Atlantic States will not concur in such a plan. He moved that "at the end of ---- years after the 1^{st} meeting of the Legislature, and of every ---- years thereafter, the Legislature shall proportion the Representation according to the principles of wealth & population."
M^r Sherman thought the number of people alone the best rule for measuring wealth as well as representation; and that if the Legislature were to be governed by wealth, they would be obliged to estimate it by numbers. He was at first for leaving the matter wholly to the discretion of the Legislature; but he had been convinced by the observation of (M^r Randolph & M^r Mason), that the _periods_ & the _rule_, of revising the Representation ought to be fixt by the Constitution.
M^r Reed thought the Legislature ought not to be too much shackled. It would make the Constitution like Religious Creeds, embarrassing to those bound to conform to them & more likely to produce dissatisfaction and scism, than harmony and union.
M^r Mason objected to M^r Rutlidge's motion, as requiring of the Legislature something too indefinite & impracticable, and leaving them a pretext for doing nothing.
M^r Wilson had himself no objection to leaving the Legislature entirely at liberty. But considered wealth as an impracticable rule.
M^r Ghorum. If the Convention who are comparatively so little biassed by local views are so much perplexed, How can it be expected that the Legislature hereafter under the full biass of those views, will be able to settle a standard. He was convinced by the arguments of others & his own reflections, that the Convention ought to fix some standard or other.
M^r Gov^r Morris. The arg^{ts} of others & his own reflections had led him to a very different conclusion. If we can't agree on a rule that will be just at this time, how can we expect to find one that will be just in all times to come. Surely those who come after us will judge better of things present, than we can of things future. He could not persuade himself that numbers would be a just rule at any time. The remarks of (M^r Mason) relative to the Western Country had not changed his opinion on that head. Among other objections it must be apparent they would not be able to furnish men equally enlightened, to share in the administration of our common interests. The Busy haunts of men not the remote wilderness, was the proper school of political Talents. If the Western people get the power into their hands they will ruin the Atlantic interests. The Back members are always most averse to the best measures. He mentioned the case of Pen^a formerly. The lower part of the State had y^e power in the first instance. They kept it in y^r own hands & the country was y^e better for it. Another objection with him ag^{st} admitting the blacks into the census, was that the people of Pen^a would revolt at the idea of being put on a footing with slaves. They would reject any plan that was to have such an effect. Two objections had been raised ag^{st} leaving the adjustment of the Representation from time, to time, to the discretion of the Legislature. The 1. was, they would be unwilling to revise it at all. The 2 that by referring to _wealth_ they would be bound by a rule which if willing, they would be unable to execute. The 1^{st} obj^n distrusts their fidelity. But if their duty, their honor & their oaths will not bind them, let us not put into their hands our liberty, and all our other great interests; let us have no Gov^t at all. 2. If these ties will bind them, we need not distrust the practicability of the rule. It was followed in part by the Com^e in the apportionment of Representatives yesterday reported to the House. The best course that could be taken would be to leave the interests of the people to the Representatives of the people.
M^r Madison was not a little surprised to hear this implicit confidence urged by a member who on all occasions, had inculcated so strongly, the political depravity of men, and the necessity of checking one vice and interest by opposing to them another vice & interest. If the Representatives of the people would be bound by the ties he had mentioned, what need was there of a Senate? What of a Revisionary power? But his reasoning was not only inconsistent with his former reasoning, but with itself. At the same time that he recommended this implicit confidence to the Southern States in the Northern majority, he was still more zealous in exhorting all to a jealousy of a Western Majority. To reconcile the gentl^n with himself, it must be imagined that he determined the human character by the points of the compass. The truth was that all men having power ought to be distrusted to a certain degree. The case of Pen^a had been mentioned where it was admitted that those who were possessed of the power in the original settlement, never admitted the new settlem^{ts} to a due share of it. England was a still more striking example. The power there had long been in the hands of the boroughs, of the minority; who had opposed & defeated every reform which had been attempted. Virg^a was in a lesser degree another example. With regard to the Western States, he was clear & firm in opinion, that no unfavorable distinctions were admissible either in point of justice or policy. He thought also that the hope of contributions to the Treas^y from them had been much underrated. Future contributions it seemed to be understood on all hands would be principally levied on imports & exports. The extent and fertility of the Western Soil would for a long time give to agriculture a preference over manufactures. Trials would be repeated till some articles could be raised from it that would bear a transportation to places where they could be exchanged for imported manufactures. Whenever the Mississippi should be opened to them, which would of necessity be y^e case as soon as their population would subject them to any considerable share of the Public burden, imposts on their trade could be collected with less expence & greater certainty, than on that of the Atlantic States. In the mean time, as their supplies must pass through the _Atlantic States_, their contributions would be levied in the same manner with those of the Atlantic States. He could not agree that any substantial objection lay ag^{st} fix^g numbers for the perpetual standard of Representation. It was said that Representation & taxation were to go together; that taxation and wealth ought to go together, that population & wealth were not measures of each other. He admitted that in different climates, under different forms of Gov^t and in different stages of civilization the inference was perfectly just. He would admit that in no situation, numbers of inhabitants were an accurate measure of wealth. He contended however that in the U. States it was sufficiently so for the object in contemplation. Altho' their climate varied considerably, yet as the Gov^{ts} the laws, and the manners of all were nearly the same, and the intercourse between different parts perfectly free, population, industry, arts, and the value of labour, would constantly tend to equalize themselves. The value of labour might be considered as the principal criterion of wealth and ability to support taxes; and this would find its level in different places where the intercourse should be easy & free, with as much certainty as the value of money or any other thing. Wherever labour would yield most, people would resort, till the competition should destroy the inequality. Hence it is that the people are constantly swarming from the more to the less populous places--from Europe to Am^a--from the North^n & Middle parts of the U. S. to the Southern & Western. They go where land is cheaper, because there labour is dearer. If it be true that the same quantity of produce raised on the banks of the Ohio is of less value, than on the Delaware, it is also true that the same labor will raise twice or thrice, the quantity in the former, that it will raise in the latter situation.
Col. Mason. Agreed with M^r Gov^r Morris that we ought to leave the interests of the people to the Representatives of the people; but the objection was that the Legislature would cease to be the Representatives of the people. It would continue so no longer than the States now containing a majority of the people should retain that majority. As soon as the Southern & Western population should predominate, which must happen in a few years, the power w^d be in the hands of the minority, and would never be yielded to the majority, unless provided for by the Constitution.
On the Question for postponing M^r Williamson's motion, in order to consider that of M^r Rutlidge, it passed in the negative, Mass^{ts} ay. Con^t no. N. J. no. P^a ay. Del. ay. M^d no. V^a no. N. C. no. S. C. ay. Geo. ay.
On the question on the first clause of M^r Williamson's motion as to taking a census of the free inhabitants, it passed in the affirmative; Mass^{ts} ay. Con^t ay. N. J. ay. P^a ay. Del. no. M^d no. V^a ay. N. C. ay. S. C. no. Geo. no.
the next clause as to 3/5 of the negroes considered.
M^r King being much opposed to fixing numbers as the rule of representation, was particularly so on account of the blacks. He thought the admission of them along with Whites at all, would excite great discontents among the States having no slaves. He had never said as to any particular point that he would in no event acquiesce in & support it; but he w^d say that if any in case such a declaration was to be made by him, it would be in this. He remarked that in the temporary allotment of Representatives made by the Committee, the Southern States had received more than the number of their white & Three fifths of their black inhabitants entitled them to.
M^r Sherman. S. Carol^a had not more beyond her proportion than N. York & N. Hampshire, nor either of them more than was necessary in order to avoid fractions or reducing them below their proportions. Georgia had more; but the rapid growth of that State seemed to justify it. In general the allotment might not be just, but considering all circumstances, he was satisfied with it.
M^r Ghorum. supported the propriety of establishing numbers as the rule. He said that in Mass^{ts} estimates had been taken in the different towns, and that persons had been curious enough to compare these estimates with the respective numbers of people; and it had been found even including Boston, that the most exact proportion prevailed between numbers & property. He was aware that there might be some weight in what had fallen from his colleague, as to the umbrage which might be taken by the people of the Eastern States. But he recollected that when the proposition of Cong^s for changing the 8^{th} art: of the Confed^n was before the Legislature of Mass^{ts} the only difficulty then was to satisfy them that the negroes ought not to have been counted equally with whites instead of being counted in ratio of three-fifths only.[129]
[129] They were then to have been a rule of taxation only. Note in Madison's handwriting.
M^r Wilson did not well see on what principle the admission of blacks in the proportion of three fifths could be explained. Are they admitted as Citizens? then why are they not admitted on an equality with White Citizens? are they admitted as property? then why is not other property admitted into the computation? These were difficulties however which he thought must be overruled by the necessity of compromise. He had some apprehensions also from the tendency of the blending of the blacks with the whites, to give disgust to the people of Pen^a, as had been intimated by his Colleague (M^r Gov^r Morris). But he differed from him in thinking numbers of inhab^{ts} so incorrect a measure of wealth. He had seen the Western settlem^{ts} of P^a and on a comparison of them with the City of Philad^a could discover little other difference, than that property was more unequally divided among individuals here than there. Taking the same number in the aggregate in the two situations he believed there would be little difference in their wealth and ability to contribute to the public wants.
M^r Gov^r Morris was compelled to declare himself reduced to the dilemma of doing injustice to the Southern States or to human nature, and he must therefore do it to the former. For he could never agree to give such encouragement to the Slave Trade as would be given by allowing them a representation for their negroes, and he did not believe those States would ever confederate on terms that would deprive them of that trade.
On Question for agreeing to include 3/5 of the blacks Mass^{ts} no. Con^t ay. N. J. no. P^a no. Del. no. M^d[130] no. V^a ay. N. C. ay. S. C. no. Geo. ay.
[130] (M^r Carrol s^d in explanation of the vote of M^d that he wished the phraseology to be so altered as to obviate if possible the danger which had been expressed of giving umbrage to the Eastern & Middle States.) Note in Madison's hand.
On the question as to taking census "the first year after the meeting of the Legislature"
Mass^{ts} ay. Con^t no. N. J. ay. P^a ay. Del. ay. M^d no. V^a ay. N. C. ay. S. C. ay. Geo. no.
On filling the blank for the periodical census, with 15 years. Agreed to nem. con.
M^r Madison moved to add, after "15 years," the words "at least" that the Legislature might anticipate when circumstances were likely to render a particular year inconvenient.
On this motion for adding "at least," it passed in the negative the States being equally divided.
Mas. ay. Con^t no. N. J. no. P^a no. Del. no. M^d no. V^a ay. N. C. ay. S. C. ay. Geo. ay.
A Change of the phraseology of the other clause so as to read, "and the Legislature shall alter or augment the representation accordingly," was agreed to nem. con.
On the question on the whole resolution of M^r Williamson as amended,
Mas. no. Con^t no. N. J. no. Del. no. M^d no. V^a no. N. C. no. S. C. no. Geo. no.
THURSDAY, JULY 12. IN CONVENTION.
M^r Gov^r Morris moved to add to the clause empowering the Legislature to vary the Representation according to the principles of wealth & numbers of inhab^{ts} a "proviso that taxation shall be in proportion to Representation."
M^r Butler contended again that Representation s^d be according to the full number of inhab^{ts} including all the blacks; admitting the justice of M^r Gov^r Morris's motion.
M^r Mason also admitted the justice of the principle, but was afraid embarrassments might be occasioned to the Legislature by it. It might drive the Legislature to the plan of Requisitions.
M^r Gov^r Morris, admitted that some objections lay ag^{st} his Motion, but supposed they would be removed by restraining the rule to _direct_ taxation. With regard to indirect taxes on _exports_ & imports & on consumption the rule would be inapplicable. Notwithstanding what had been said to the contrary he was persuaded that the imports & consumption were pretty nearly equal throughout the Union.
General Pinkney liked the idea. He thought it so just that it could not be objected to. But foresaw that if the revision of the census was left to the discretion of the Legislature, it would never be carried into execution. The rule must be fixed, and the execution of it enforced by the Constitution. He was alarmed at what was said[131] yesterday, concerning the Negroes. He was now again alarmed at what had been thrown out concerning the taxing of exports. S. Carol^a has in one year exported to the amount of £600,000 Sterling all which was the fruit of the labor of her blacks. Will she be represented in proportion to this amount? She will not. Neither ought she then to be subject to a tax on it. He hoped a clause would be inserted in the system, restraining the Legislature from taxing Exports.
[131] By M^r Gov^r Morris. Note in Madison's handwriting.
M^r Wilson approved the principle, but could not see how it could be carried into execution; unless restrained to direct taxation.
M^r Gov^r Morris having so varied his Motion by inserting the word "direct." It pass^d nem. con. as follows--"provided always that direct taxation ought to be proportioned to representation."
M^r Davie said it was high time now to speak out. He saw that it was meant by some gentlemen to deprive the Southern States of any share of Representation for their blacks. He was sure that N. Carol^a would never confederate on any terms that did not rate them at least as 3/5. If the Eastern States meant therefore to exclude them altogether the business was at an end.
D^r Johnson, thought that wealth and population were the true, equitable rule of representation; but he conceived that these two principles resolved themselves into one; population being the best measure of wealth. He concluded therefore that y^e number of people ought to be established as the rule, and that all descriptions including blacks _equally_ with the Whites, ought to fall within the computation. As various opinions had been expressed on the subject, he would move that a Committee might be appointed to take them into consideration and report thereon.
M^r Gov^r Morris. It has been said that it is high time to speak out, as one member, he would candidly do so. He came here to form a compact for the good of America. He was ready to do so with all the States. He hoped & believed that all would enter into such a Compact. If they would not he was ready to join with any States that would. But as the Compact was to be voluntary, it is in vain for the Eastern States to insist on what the South^n States will never agree to. It is equally vain for the latter to require what the other States can never admit; and he verily believed the people of Pen^a will never agree to a representation of Negroes. What can be desired by these States more than has been already proposed; that the Legislature shall from time to time regulate Representation according to population & wealth.
Gen^l Pinkney desired that the rule of wealth should be ascertained and not left to the pleasure of the Legislature; and that property in slaves should not be exposed to danger under a Gov^t instituted for the protection of property.
The first clause in the Report of the first Grand Committee was postponed.
M^r Elseworth. In order to carry into effect the principle established, moved that to add to the last clause adopted by the House the words following, "and that the rule of contribution by direct taxation for the support of the Government of the U. States shall be the number of white inhabitants, and three fifths of every other description in the several States, until some other rule that shall more accurately ascertain the wealth of the several States can be devised and adopted by the Legislature."
M^r Butler seconded the motion in order that it might be committed.
M^r Randolph was not satisfied with the motion. The danger will be revived that the ingenuity of the Legislature may evade or pervert the rule so as to perpetuate the power where it shall be lodged in the first instance. He proposed in lieu of M^r Elseworth's motion, "that in order to ascertain the alterations in Representation that may be required from time to time by changes in the relative circumstances of the States, a Census shall be taken within two years from the 1^{st} meeting of the Gen^l Legislature of the U.S. and once within the term of every ---- year afterwards, of all the inhabitants in the manner & according to the ratio recommended by Congress in their resolution of the 18^{th} day of Ap^l 1783, (rating the blacks at 3/5 of their number) and that the Legislature of the U. S. shall arrange the Representation accordingly." He urged strenuously that express security ought to be provided for including slaves in the ratio of Representation. He lamented that such a species of property existed. But as it did exist the holders of it would require this security. It was perceived that the design was entertained by some of excluding slaves altogether; the Legislature therefore ought not to be left at liberty.
M^r Elseworth withdraws his motion & seconds that of M^r Randolph.
M^r Wilson observed that less umbrage would perhaps be taken ag^{st} an admission of the slaves into the Rule of representation, if it should be so expressed as to make them indirectly only an ingredient in the rule, by saying that they should enter into the rule of taxation; and as representation was to be according to taxation, the end would be equally attained. He accordingly moved & was 2^{ded} so to alter the last clause adopted by the House, that together with the amendment proposed the whole should read as follows--provided always that the representation ought to be proportioned according to direct taxation, and in order to ascertain the alterations in the direct taxation which may be required from time to time by the changes in the relative circumstances of the States, Resolved that a census be taken within two years from the first meeting of the Legislature of the U. States, and once within the term of every ---- years afterwards of all the inhabitants of the U.S. in the manner and according to the ratio recommended by Congress in their Resolution of April 18. 1783; and that the Legislature of the U.S. shall proportion the direct taxation accordingly.
M^r King. Altho' this amendment varies the aspect somewhat, he had still two powerful objections ag^{st} tying down the Legislature to the rule of numbers. 1. they were at this time an uncertain index of the relative wealth of the States. 2. if they were a just index at this time it can not be supposed always to continue so. He was far from wishing to retain any unjust advantage whatever in one part of the Republic. If justice was not the basis of the connection it could not be of long duration. He must be shortsighted indeed who does not foresee that whenever the Southern States shall be more numerous than the Northern, they can & will hold a language that will awe them into justice. If they threaten to separate now in case injury shall be done them, will their threats be less urgent or effectual, when force shall back their demands. Even in the intervening period, there will be no point of time at which they will not be able to say, do us justice or we will separate. He urged the necessity of placing confidence to a certain degree in every Gov^t and did not conceive that the proposed confidence as to a periodical readjustment of the representation exceeded that degree.
M^r Pinkney moved to amend M^r Randolph's motion so as to make "blacks equal to the whites in the ratio of representation." This he urged was nothing more than justice. The blacks are the labourers, the peasants of the Southern States: they are as productive of pecuniary resources as those of the Northern States. They add equally to the wealth, and considering money as the sinew of war, to the strength of the nation. It will also be politic with regard to the Northern States, as taxation is to keep pace with Representation.
Gen^l Pinkney moves to insert 6 years instead of two, as the period computing from the 1^{st} meeting of y^e Legis^e within which the first census should be taken. On this question for inserting six, instead of "two" in the proposition of M^r Wilson, it passed in the affirmative
Mass^{ts} no. C^t ay. N. J. ay. P^a ay. Del. div^d. May^d ay. V^a no. N. C. no. S. C. ay. Geo. no.
On a question for filling the blank for y^e periodical census with 20 years, it passed in the negative
Mass^{ts} no. C^t ay. N. J. ay. P. ay. Del. no. M^d no. V^a no. N. C. no. S. C. no. Geo. no.
On a question for 10 years, it passed in the affirmative.
Mass. ay. Con^t no. N. J. no. P. ay. Del. ay. M^d ay. V^a ay. N. C. ay. S. C. ay. Geo. ay.
On M^r Pinkney's motion for rating blacks as equal to Whites instead of as 3/5.
Mass. no. Con^t no. (D^r Johnson ay) N. J. no. P^a no. (3 ag^{st} 2.) Del. no. M^d no. V^a no. N. C. no. S. C. ay. Geo--ay.
M^r Randolph's proposition as varied by M^r Wilson being read for question on the whole--
M^r Gerry, urged that the principle of it could not be carried into execution as the States were not to be taxed as States. With regard to taxes in imposts, he conceived they would be more productive Where there were no slaves than where there were; the consumption being greater--
M^r Elseworth. In case of a poll tax there w^d be no difficulty. But there w^d probably be none. The sum allotted to a State may be levied without difficulty according to the plan used by the State in raising its own supplies. On the question of y^e whole proposition; as proportioning representation to direct taxation & both to the white & 3/5 of black inhabitants, & requiring a Census within six years--& within every ten years afterwards.
Mass. div^d. Con^t ay. N. J. no. P^a ay. Del. no. M^d ay. V^a ay. N. C. ay. S. C. div^d. Geo. ay.
FRIDAY, JULY 13. IN CONVENTION.
It being moved to postpone the clause in the Report of the Committee of Eleven as to the originating of money bills in _the first_ branch, in order to take up the following--"that in the 2^d branch each State shall have an equal voice,"
M^r Gerry, moved to add as an amendment to the last clause agreed to by the House, "that from the first meeting of the Legislature of the U.S. till a census shall be taken all monies to be raised for supplying the public Treasury by direct taxation shall be assessed on the inhabitants of the several States according to the number of their Representatives respectively in the 1^{st} branch." He said this would be as just before as after the Census; according to the general principle that taxation & Representation ought to go together.
M^r Williamson feared that N. Hampshire will have reason to complain. 3 members were allotted to her as a liberal allowance, for this reason among others, that she might not suppose any advantage to have been taken of her absence. As she was still absent, and had no opportunity of deciding whether she would chuse to retain the number on the condition, of her being taxed in proportion to it, he thought the number ought to be reduced from three to two, before the question was taken on M^r G's motion.
M^r Read could not approve of the proposition. He had observed he said in the Committee a backwardness in some of the members from the large States, to take their full proportion of Representatives. He did not then see the motive. He now suspects it was to avoid their due share of taxation. He had no objection to a just & accurate adjustment of Representation & taxation to each other.
M^r Gov^r Morris & M^r Madison answered that the charge itself involved an acquittal; since notwithstanding the augmentation of the number of members allotted to Mass^{ts} & V^a the motion for proportioning the burdens thereto was made by a member from the former State & was approved by M^r M. from the latter who was on the Com^e. M^r Gov^r Morris said that he thought P^a had her due share in 8 members; and he could not in candor ask for more. M^r M. said that having always conceived that the difference of interest in the U. States lay not between the large & small, but the N. & South^n States, and finding that the number of members allotted to the N. States was greatly superior, he should have preferred, an addition of two members to the S. States, to wit one to N. & 1 to S. Carl^a rather than of one member to Virg^a. He liked the present motion, because it tended to moderate the views both of the opponents & advocates for rating very high, the negroes.
M^r Elseworth hoped the proposition would be withdrawn. It entered too much into detail. The general principle was already sufficiently settled. As fractions can not be regarded in apportioning the _N^o of representatives_, the rule will be unjust, until an actual census shall be made. After that taxation may be precisely proportioned according to the principle established, to the _number of inhabitants_.
M^r Wilson hoped the motion would not be withdrawn. If it sh^d it will be made from another quarter. The rule will be as reasonable & just before, as after a Census. As to fractional numbers, the Census will not destroy, but ascertain them. And they will have the same effect after as before the Census; for as he understands the rule, it is to be adjusted not to the number of _inhabitants_, but of _Representatives_.
M^r Sherman opposed the motion. He thought the Legislature ought to be left at liberty: in which case they would probably conform to the principles observed by Cong^s.
M^r Mason did not know that Virg^a would be a loser by the proposed regulation, but had some scruple as to the justice of it. He doubted much whether the conjectural rule which was to precede the Census, would be as just, as it would be rendered by an actual census.
M^r Elseworth & M^r Sherman moved to postpone the motion of M^r Gerry. On y^e question, it passed in the negative. Mass. no. Con^t ay. N. J. ay. P^a no. Del. ay. M^d ay. V^a no. N. C. no. S. C. no. Geo. no.
Question on M^r Gerry's motion, it passed in the negative, the States being equally divided.
Mass. ay. Con^t no. N. J. no. _P^a ay._ Del. no. M^d no. _V^a no._ N. C. ay. S. C. ay. Geo. ay.
M^r Gerry finding that the loss of the question had proceeded from an objection with some, to the proposed assessment of direct taxes on the _inhabitants_ of the States, which might restrain the Legislature to a poll tax, moved his proposition again, but so varied as to authorize the assessment on the _States_, which leaves the mode to the Legislature, viz "that from the 1^{st} meeting of the Legislature of the U. S. untill a census shall be taken, all monies for supplying the public Treasury by direct taxation shall be raised from the said several States according to the number of their representatives respectively in the 1^{st} branch."
On this varied question, it passed in the affirmative
Mas. ay. Con^t no. N. J. no. _P^a div^d_ Del. no. M^d no. _V^a ay._ N. C. ay. S. C. ay. Geo. ay.
On the motion of M^r Randolph, the vote of saturday last authorizing the Legisl^{re} to adjust from time to time, the representation upon the principles of _wealth_ & numbers of inhabitants, was reconsidered by common consent in order to strike out "Wealth" and adjust the resolution to that requiring periodical revisions, according to the number of whites & three fifths of the blacks: the motion was in the words following:--"But as the present situation of the States may probably alter in the number of their inhabitants, that the Legislature of the U. S. be authorized from time to time to apportion the number of representatives; and in case any of the States shall hereafter be divided or any two or more States united or new States created within the limits of the U. S. the Legislature of U. S. shall possess authority to regulate the number of Representatives in any of the foregoing cases, upon the principle of their number of inhabitants; according to the provisions hereafter mentioned."
M^r Gov^r Morris opposed the alteration as leaving still incoherence. If Negroes were to be viewed as inhabitants, and the revision was to proceed on the principle of numbers of inhab^{ts} they ought to be added in their entire number, and not in the proportion of 3/5. If as property, the word wealth was right, and striking it out would produce the very inconsistency which it was meant to get rid of.--The train of business & the late turn which it had taken, had led him he said, into deep meditation on it, and He w^d candidly state the result. A distinction had been set up & urged, between the N^n and South^n States. He had hitherto considered this doctrine as heretical. He still thought the distinction groundless. He sees however that it is persisted in, and the South^n Gentlemen will not be satisfied unless they see the way open to their gaining a majority in the public Councils. The consequence of such a transfer of power from the maritime to the interior & landed interest will he foresees be such an oppression of commerce that he shall be obliged to vote for y^e vicious principle of equality in the 2^d branch in order to provide some defence for the N. States ag^{st} it. But to come more to the point; either this distinction is fictitious or real; if fictitious let it be dismissed & let us proceed with due confidence. If it be real, instead of attempting to blend incompatible things, let us at once take a friendly leave of each other. There can be no end of demands for security if every particular interest is to be entitled to it. The Eastern States may claim it for their fishery, and for other objects, as the South^n States claim it for their peculiar objects. In this struggle between the two ends of the Union, what part ought the middle States in point of policy to take: to join their Eastern brethren according to his ideas. If the South^n States get the power into their hands, and be joined as they will be with the interior Country, they will inevitably bring on a war with Spain for the Mississippi. This language is already held. The interior Country having no property nor interest exposed on the sea, will be little affected by such a war. He wished to know what security the North^n & middle States will have ag^{st} this danger. It has been said that N. C. S. C., and Georgia only will in a little time have a majority of the people of America. They must in that case include the great interior Country, and every thing was to be apprehended from their getting the power into their hands.
M^r Butler. The security the South^n States want is that their negroes may not be taken from them, which some gentlemen within or without doors, have a very good mind to do. It was not supposed that N. C. S. C. & Geo. would have more people than all the other States, but many more relatively to the other States than they now have. The people & strength of America are evidently bearing Southwardly & S. westw^{dly}.
M^r Wilson. If a general declaration would satisfy any gentleman he had no indisposition to declare his sentiments. Conceiving that all men wherever placed have equal rights and are equally entitled to confidence, he viewed without apprehension the period when a few States should contain the superior number of people. The majority of people wherever found ought in all questions to govern the minority. If the interior Country should acquire this majority, it will not only have the right, but will avail itself of it whether we will or no. This jealousy misled the policy of G. Britain with regard to America. The fatal maxims espoused by her were that the Colonies were growing too fast, and that their growth must be stinted in time. What were the consequences?, first, enmity on our part, then actual separation. Like consequences will result on the part of the interior settlements, if like jealousy & policy be pursued on ours. Further, if numbers be not a proper rule, why is not some better rule pointed out. No one has yet ventured to attempt it. Cong^s have never been able to discover a better. No State as far as he had heard, had suggested any other. In 1783, after elaborate discussion of a measure of wealth all were satisfied then as they are now that the rule of numbers, does not differ much from the combined rule of numbers & wealth. Again he could not agree that property was the sole or primary object of Gov^t & society. The cultivation & improvement of the human mind was the most noble object. With respect to this object, as well as to other _personal_ rights, numbers were surely the natural & precise measure of Representation. And with respect to property, they could not vary much from the precise measure. In no point of view however could the establishm^t of numbers as the rule of representation in the 1^{st} branch vary his opinion as to the impropriety of letting a vicious principle into the 2^d branch.--On the Question to strike out _Wealth_, & to make the change as moved by M^r Randolph, it passed in the affirmative.
Mas. ay. Con^t ay. N. J. ay. P^a ay. Del div^d. M^d ay. V^a ay. N. C. ay. S. C. ay. Geo. ay.
M^r Reed moved to insert after the word "divided," "or enlarged by addition of territory" which was agreed to nem con. (his object probably was to provide for such cases as an enlargem^t of Delaware by annexing to it the Peninsula on the East side of the Chesapeak.)
Adjourned.
SATURDAY, JULY 14. IN CONVENTION.
M^r L. Martin called for the question on the whole report, including the parts relating to the origination of money bills, and the equality of votes in the 2^d branch.
M^r Gerry, wished before the question should be put, that the attention of the House might be turned to the dangers apprehended from Western States. He was for admitting them on liberal terms, but not for putting ourselves in their hands. They will if they acquire power like all men, abuse it. They will oppress commerce, and drain our wealth into the Western Country. To guard ag^{st} these consequences, he thought it necessary to limit the number of new States to be admitted into the Union, in such a manner, that they should never be able to outnumber the Atlantic States. He accordingly moved "that in order to secure the liberties of the States already confederated, the number of Representatives in the 1^{st} branch, of the States which shall hereafter be established, shall never exceed in number, the Representatives from such of the States as shall accede to this Confederation.
M^r King, seconded the motion.
M^r Sherman, thought there was no probability that the number of future States would exceed that of the Existing States. If the event should ever happen, it was too remote to be taken into consideration at this time. Besides We are providing for our posterity, for our children & our grand Children; who would be as likely to be citizens of new Western States, as of the old States. On this consideration alone, we ought to make no such discrimination as was proposed by the motion.
M^r Gerry. If some of our children should remove, others will stay behind, and he thought it incumbent on us to provide for their interests. There was a rage for emigration from the Eastern States to the Western Country, and he did not wish those remaining behind to be at the mercy of the emigrants. Besides foreigners are resorting to that Country, and it is uncertain what turn things may take there.--On the question for agreeing to the Motion of M^r Gerry, it passed in the negative.
Mass. ay. Con^t ay. N. J. no. P^a div^d. Del. ay. M^d ay. V^a no. N. C. no. S. C. no. Geo. no.
M^r Rutlidge proposed to reconsider the two propositions touching the originating of money bills in the first & the equality of votes in the second branch.
M^r Sherman was for the question on the whole at once. It was he said a conciliatory plan, it had been considered in all its parts, a great deal of time had been spent upon it, and if any part should now be altered, it would be necessary to go over the whole ground again.
M^r L. Martin urged the question on the whole. He did not like many parts of it. He did not like having two branches, nor the inequality of votes in the 1^{st} branch. He was willing however to make trial of the plan, rather than do nothing.
M^r Wilson traced the progress of the report through its several stages, remarking y^t when on the question concerning an equality of votes, the House was divided, our Constituents had they voted as their representatives did, would have stood as 2/3 ag^{st} the equality, and 1/3 only in favor of it. This fact would ere long be known, and it will appear that this fundamental point has been carried by 1/3 ag^{st} 2/3. What hopes will our Constituents entertain when they find that the essential principles of justice have been violated in the outset of the Governm^t. As to the privilege of originating money bills, it was not considered by any as of much moment, and by many as improper in itself. He hoped both clauses w^d be reconsidered. The equality of votes was a point of such critical importance, that every opportunity ought to be allowed, for discussing and collecting the mind of the Convention upon it.
M^r L. Martin denies that there were 2/3 ag^{st} the equality of votes. The States that please to call themselves large, are the weakest in the Union. Look at Mas^{ts}. Look at Virg^a. Are they efficient States? He was for letting a separation take place if they desired it. He had rather there should be two Confederacies, than one founded on any other principle than an equality of votes in the 2^d branch at least.
M^r Wilson was not surprised that those who say that a minority is more than a majority should say the minority is stronger than the majority. He supposed the next assertion will be that they are richer also; though he hardly expected it would be persisted in when the States shall be called on for taxes & troops.
M^r Gerry also animadverted on M^r L. Martins remarks on the weakness of Mas^{ts}. He favored the reconsideration with a view not of destroying the equality of votes; but of providing that the States should vote per Capita, which he said would prevent the delays & inconveniences that had been experienced in Cong^s and would give a national aspect & Spirit to the management of business. He did not approve of a reconsideration of the clause relating to money bills. It was of great consequence. It was the corner stone of the accommodation. If any member of the Convention had the exclusive privilege of making propositions, would any one say that it would give him no advantage over other members. The Report was not altogether to his mind. But he would agree to it as it stood rather than throw it out altogether.
The reconsideration being tacitly agreed to
M^r Pinkney moved that instead of an equality of votes, the States should be represented in the 2^d branch as follows: N. H. by 2 members. Mass. 4. R. I. 1. Con^t 3. N. Y. 3. N. J. 2. P^a 4. Del. 1; M^d 3. Virg^a 5. N. C. 3. S. C. 3. Geo. 2. making in the whole 36.
M^r Wilson seconds the motion
M^r Dayton. The smaller States can never give up their equality. For himself he would in no event yield that security for their rights.
M^r Sherman, urged the equality of votes not so much as a Security for the small States; as for the State Gov^{ts} which could not be preserved unless they were represented & had a negative in the Gen^l Government. He had no objection to the members in the 2^d b. voting per capita, as had been suggested by (M^r Gerry).
M^r Madison concurred in this motion of M^r Pinkney as a reasonable compromise.
M^r Gerry said he should like the motion, but could see no hope of success. An accommodation must take place, and it was apparent from what had been seen that it could not do so on the ground of the motion. He was utterly against a partial confederacy, leaving other States to accede or not accede, as had been intimated.
M^r King said it was always with regret that he differed from his colleagues, but it was his duty to differ from (M^r Gerry) on this occasion. He considered the proposed Government as substantially and formally, a General and National Government over the people of America. There never will be a case in which it will act as a federal Government on the States and not on the individual Citizens. And is it not a clear principle that in a free Gov^t those who are to be the objects of a Gov^t ought to influence the operations of it? What reason can be assigned why the same rule of representation s^d not prevail in the 2^d branch as in the 1^{st}.? He could conceive none. On the contrary, every view of the subject that presented itself, seemed to require it. Two objections had been raised ag^{st} it, drawn 1. from the terms of the existing compact. 2. from a supposed danger to the smaller States.--As to the first objection he thought it inapplicable. According to the existing Confederation, the rule by which the public burdens is to be apportioned is _fixed_, and must be pursued. In the proposed Govern^t it cannot be fixed, because indirect taxation is to be substituted. The Legislature therefore will have full discretion to impose taxes in such modes & proportions as they may judge expedient. As to the 2^d objection, he thought it of as little weight. The Gen^l Govern^t can never wish to intrude on the State Govern^{ts}. There could be no temptation. None had been pointed out. In order to prevent the interference of measures which seemed most likely to happen, he would have no objection to throwing all the State debts into the federal debt, making one aggregate debt of about 70,000,000 of dollars, and leaving it to be discharged by the Gen^l Gov^t. According to the idea of securing the State Gov^{ts} there ought to be three distinct legislative branches. The 2^d was admitted to be necessary, and was actually meant, to check the 1^{st} branch, to give more wisdom, system, & stability to the Gov^t and ought clearly as it was to operate on the people, to be proportioned to them. For the third purpose of securing the States, there ought then to be a 3^d branch, representing the States as such, and guarding by equal votes their rights & dignities. He would not pretend to be as thoroughly acquainted with his immediate Constituents as his colleagues, but it was his firm belief that Mas^{ts} would never be prevailed on to yield to an equality of votes. In N. York, (he was sorry to be obliged to say any thing relative to that State in the absence of its representatives, but the occasion required it), in N. York he had seen that the most powerful argument used by the considerate opponents to the grant of the Impost to Congress, was pointed ag^{st} the vicious constitution of Cong^s with regard to representation & suffrage. He was sure that no Gov^t could last that was not founded on just principles. He preferred the doing of nothing, to an allowance of an equal vote to all the States. It would be better he thought to submit to a little more confusion & convulsion, than to submit to such an evil. It was difficult to say what the views of different Gentlemen might be. Perhaps there might be some who thought no Governm^t co-extensive with the U. States could be established with a hope of its answering the purpose. Perhaps there might be other fixed opinions incompatible with the object we are pursuing. If there were, he thought it but candid that Gentlemen should speak out that we might understand one another.
M^r Strong. The Convention had been much divided in opinion. In order to avoid the consequences of it, an accommodation had been proposed. A Committee had been appointed: and though some of the members of it were averse to an equality of votes, a Report had been made in favor of it. It is agreed on all hands that Congress are nearly at an end. If no Accommodation takes place, the Union itself must soon be dissolved. It has been suggested that if we cannot come to any general agreement, the principal States may form & recommend a Scheme of Government. But will the small States in that case ever accede it. Is it probable that the large States themselves will under such circumstances embrace and ratify it. He thought the small States had made a considerable concession in the article of money bills, and that they might naturally expect some concessions on the other side. From this view of the matter he was compelled to give his vote for the Report taken altogether.
M^r Madison expressed his apprehensions that if the proper foundation of Governm^t was destroyed, by substituting an equality in place of a proportional Representation, no proper superstructure would be raised. If the small States really wish for a Government armed with the powers necessary to secure their liberties, and to enforce obedience on the larger members as well as themselves he could not help thinking them extremely mistaken in their means. He reminded them of the consequences of laying the existing Confederation on improper principles. All the principal parties to its compilation joined immediately in mutilating & fettering the Governm^t in such a manner that it has disappointed every hope placed in it. He appealed to the doctrine & arguments used by themselves on a former occasion. It had been very properly observed by (M^r Patterson) that Representation was an expedient by which the meeting of the people themselves was rendered unnecessary; And that the representatives ought therefore to bear a proportion to the votes which their constituents if convened would respectively have. Was not this remark as applicable to one branch of the Representation as to the other? But it had been said that the Govern^t would in its operation be partly federal, partly national; that altho' in the latter respect the Representatives of the people ought to be in proportion to the people; yet in the former it ought to be according to the number of States. If there was any solidity in this distinction he was ready to abide by it, if there was none it ought to be abandoned. In all cases where the Gen^l Governm^t is to act on the people, let the people be represented and the votes be proportional. In all cases where the Govern^t is to act on the States as such in like manner as Cong^s now acts on them, let the States be represented & the votes be equal. This was the true ground of compromise if there was any ground at all. But he denied that there was any ground. He called for a single instance in which the Gen^l Gov^t was not to operate on the people individually. The practicability of making laws, with coercive sanctions, for the States as Political bodies, had been exploded on all hands. He observed that the people of the large States would in some way or other secure to themselves a weight proportioned to the importance accruing from their superior numbers. If they could not effect it by a proportional representation in the Gov^t they would probably accede to no Gov^t which did not in a great measure depend for its efficacy on their voluntary cooperation; in which case they would indirectly secure their object. The existing confederacy proved that where the Acts of the Gen^l Gov^t were to be executed by the particular Gov^{ts} the latter had a weight in proportion to their importance. No one would say that either in Cong^s or out of Cong^s. Delaware had equal weight with Pennsylv^a. If the latter was to supply ten times as much money as the former, and no compulsion could be used, it was of ten times more importance, that she should voluntarily furnish the supply. In the Dutch confederacy the votes of the Provinces were equal. But Holland which supplies about half the money, governed the whole republic. He enumerated the objections ag^{st} an equality of votes in the 2^d branch, notwithstanding the proportional representation in the first. 1. the minority could negative the will of the majority of the people. 2. they could extort measures by making them a condition of their assent to other necessary measures. 3. they could obtrude measures on the majority by virtue of the peculiar powers which would be vested in the Senate. 4. the evil instead of being cured by time, would increase with every new State that should be admitted, as they must all be admitted on the principle of equality. 5. the perpetuity it would give to the preponderance of the North^n ag^{st} the South^n Scale was a serious consideration. It seemed now to be pretty well understood that the real difference of interests lay, not between the large & small but between the N. & South^n States. The institution of slavery & its consequences formed the line of discrimination. There were 5 States on the South, 8 on the North^n side of this line. Should a proport^l representation take place it was true, the N. side would still outnumber the other; but not in the same degree, at this time; and every day would tend towards an equilibrium.
M^r Wilson would add a few words only. If equality in the 2^d branch was an error that time would correct, he should be less anxious to exclude it being sensible that perfection was unattainable in any plan; but being a fundamental and a perpetual error, it ought by all means to be avoided. A vice in the Representation, like an error in the first concoction, must be followed by disease, convulsions, and finally death itself. The justice of the general principle of proportional representation has not in argument at least been yet contradicted. But it is said that a departure from it so far as to give the States an equal vote in one branch of the Legislature is essential to their preservation. He had considered this position maturely, but could not see its application. That the States ought to be preserved he admitted. But does it follow that an equality of votes is necessary for the purpose? Is there any reason to suppose that if their preservation should depend more on the large than on the small States the security of the States ag^{st} the Gen^l Government would be diminished? Are the large States less attached to their existence more likely to commit suicide, than the small? An equal vote then is not necessary as far as he can conceive: and is liable among other objections to this insuperable one: The great fault of the existing confederacy is its inactivity. It has never been a complaint ag^{st} Cong^s that they governed over much. The complaint has been that they have governed too little. To remedy this defect we were sent here. Shall we effect the cure by establishing an equality of votes as is proposed? no: this very equality carries us directly to Congress; to the system which it is our duty to rectify. The small States cannot indeed act, by virtue of this equality, but they may controul the Gov^t as they have done in Cong^s. This very measure is here prosecuted by a minority of the people of America. Is then the object of the Convention likely to be accomplished in this way? Will not our Constituents say? we sent you to form an efficient Gov^t and you have given us one more complex indeed, but having all the weakness of the former govern^t. He was anxious for uniting all the States under one Govern^t. He knew there were some respectable men who preferred three confederacies, united by offensive & defensive alliances. Many things may be plausibly said, some things may be justly said, in favor of such a project. He could not however concur in it himself; but he thought nothing so pernicious as bad first principles.
M^r Elseworth asked two questions, one of M^r Wilson, whether he had ever seen a good measure fail in Cong^s for want of a majority of States in its favor? He had himself never known such an instance: the other of M^r Madison whether a negative lodged with the majority of the States even the smallest, could be more dangerous than the qualified negative proposed to be lodged in a single Executive Magistrate, who must be taken from some one State?
M^r Sherman, signified that his expectation was that the Gen^l Legislature would in some cases act on the _federal principle_, of requiring quotas. But he thought it ought to be empowered to carry their own plans into execution, if the States should fail to supply their respective quotas.
On the question for agreeing to M^r Pinkney's motion for allowing N. H. 2. Mas. 4. &c.--it passed in the negative,
Mass. no. M^r King ay. M^r Ghorum absent. Con^t no. N. J. no. P^a ay. Del. no. M^d ay. V^a ay. N. C. no. S. C. ay. Geo. no.
Adjourned.[132]
[132] "Memorandum. "July 15, '87.
"About twelve days since the Convention appointed a Grand Comee, consisting of Gerry, Ellsworth, Yates, Paterson, Franklin, Bedford, Martin, Mason, Rutledge & Baldwin to adjust the Representation in the two Brs. of the Legislature of the U. S. They reported yt. every 40,000 Inhabs. taken agreeably to the Resolution of Cong. of ye 18 Ap. 1783, shd. send one member to the first Br. of the Legislature, yt. this Br. shd. originate exclusively Money Bills, & also originate ye appropriations of money; and that in ye Senate or upper Br. each State shd. have one vote & no more. The Representation as to the first Br. was twice recommitted altho' not to the same Committee; finally it was agreed yt Taxation of the direct sort & Representation shd. be in direct proportion with each other--that the first Br. shd. consist of 65 members, viz. N. H. 3, M. 8, R. I. 1, C. 5, N. Y. 6, N. J. 4, P. 8, D. 1, M. 6, V. 10, N. C. 5, S. C. 5, G. 3,--and that the origination of money Bills and the Appropriations of money shd. belong in the first instance to yt. Br., but yt in the Senate or 2nd Br. each State shd. have an equal Vote. In this situation of the Report it was moved by S. Car. that in the formation of the 2nd Br., instead of an equality of Votes among the States, that N. H. shd. have 2, M. 4, R. I. 1, C. 3, N. Y. 3, N. J. 2, P. 4, D. 1, M. 3, V. 5, N. C. 3, S. C. 3, G. 2 = total 36.
"On the question to agree to this apportionment, instead of the equality (Mr. Gorham being absent) Mass., Con., N. Jer., Del., N. Car., & Georg--No. Penn., Mar., Virg. & S. Car. Aye.
"This Question was taken and to my mortification by the vote of Mass. lost on the 14th July.
"(endorsed 'inequality lost by vote of Mass.')"--King's Note, King's _Life and Correspondence of Rufus King_, I., 615.
MONDAY, JULY 16. IN CONVENTION.
On the question for agreeing to the whole Report as amended & including the equality of votes in the 2^d branch, it passed in the affirmative.
Mass. divided M^r Gerry, M^r Strong. ay. M^r King, M^r Ghorum no. Con^t ay. N. J. ay. Pen^a no. Del. ay. M^d ay. V^a no. N. C. ay. M^r Spraight no. S. C. no. Geo. no.
The whole thus passed is in the words following, viz. "Resolved, that in the original formation of the Legislature of the U. S. the first branch thereof shall consist of sixty five members, of which number N. Hampshire shall send 3. Mass^{ts} 8. Rh. I. 1. Conn^t 5. N. Y. 6. N. J. 4. Pen^a 8. Del. 1. Mary^d 6. Virg^a 10. N. C. 5. S. C. 5. Geo. 3.--But as the present situation of the States may probably alter in the number of their inhabitants, the Legislature of the U. S. shall be authorized from time to time to apportion the number of Rep^s and in case any of the States shall hereafter be divided, or enlarged by addition of territory, or any two or more States united, or any new States created within the limits of the U. S. the Legislature of the U. S. shall possess authority to regulate the number of Rep^s in any of the foregoing cases, upon the principle of their number of inhabitants, according to the provisions hereafter mentioned. namely--provided always that representation ought to be proportioned according to direct taxation; and in order to ascertain the alteration in the direct taxation, which may be required from time to time by the changes in the relative circumstances of the States--
Resolved, that a Census be taken within six years from the 1^{st} meeting of the Legislature of the U. S., and once within the term of every 10 years afterwards of all the inhabitants of the U. S. in the manner and according to the ratio recommended by Congress in their Resolution of April 18. 1783, and that the Legislature of the U. S. shall proportion the direct taxation accordingly--
Resolved, that all bills for raising or appropriating money, and for fixing the salaries of officers of the Gov^t of the U. S. shall originate in the first branch of the Legislature of the U. S. and shall not be altered or amended in the 2^d branch: and that no money shall be drawn from the Public Treasury, but in pursuance of appropriations to be originated in the 1^{st} branch.
_Resolv^d_, that in the 2^d branch of the Legislature of the U. S., each State shall have an equal vote.
The 6^{th} Resol: in the Report from the Com^e of the whole House, which had been postponed in order to consider the 7 & 8^{th} Resol^{ns}.; was now resumed. see the Resol^n:
The 1^{st} member "That the Nat^l Legislature ought to possess the Legislative Rights vested in Cong^s by the Confederation" was agreed to nem. con.
The next, "And moreover to legislate in all cases to which the separate States are incompetent; or in which the harmony of the U. S. may be interrupted by the exercise of individual legislation," being read for a question.
M^r Butler calls for some explanation of the extent of this power; particularly of the word _incompetent_. The vagueness of the terms rendered it impossible for any precise judgment to be formed.
M^r Ghorum. The vagueness of the terms constitutes the propriety of them. We are now establishing general principles, to be extended hereafter into details which will be precise & explicit.
M^r Rutlidge, urged the objection started by M^r Butler and moved that the clause should be committed to the end that a specification of the powers comprised in the general terms, might be reported.
On the question for commitment, the States were equally divided
Mas. no. Con^t ay. N. J. no. P^a no. Del. no. M^d ay. V^a ay. N. C. no. S. C. ay. Geo. ay: So it was lost.
M^r Randolph. The vote of this morning (involving an equality of suffrage in 2^d branch) had embarrassed the business extremely. All the powers given in the Report from the Com^e of the whole, were founded on the supposition that a Proportional representation was to prevail in both branches of the Legislature. When he came here this morning his purpose was to have offered some propositions that might if possible have united a great majority of votes, and particularly might provide ag^{st} the danger suspected on the part of the smaller States, by enumerating the cases in which it might lie, and allowing an equality of votes in such cases.[133] But finding from the Preceding vote that they persist in demanding an equal vote in all cases, that they have succeeded in obtaining it, and that N. York, if present would probably be on the same side, he could not but think we were unprepared to discuss this subject further. It will probably be in vain to come to any final decision with a bare majority on either side. For these reasons he wished the Convention might adjourn, that the large States might consider the steps proper to be taken in the present solemn crisis of the business, and that the small States might also deliberate on the means of conciliation.
[133] See the paper, in the appendix, co[~m]unicated by M^r R. to J. M. July 10.--Note in Madison's hand.
M^r Patterson, thought with M^r R. that it was high time for the Convention to adjourn that the rule of secrecy ought to be rescinded, and that our Constituents should be consulted. No conciliation could be admissible on the part of the smaller States on any other ground than that of an equality of votes in the 2^d branch. If M^r Randolph would reduce to form his motion for an adjournment sine die, he would second it with all his heart.
Gen^l Pinkney wished to know of M^r R. whether he meant an adjournment sine die, or only an adjournment for the day. If the former was meant, it differed much from his idea. He could not think of going to S. Carolina and returning again to this place. Besides it was chimerical to suppose that the States if consulted would ever accord separately, and beforehand.
M^r Randolph, had never entertained an idea of an adjournment sine die; & was sorry that his meaning had been so readily & strangely misinterpreted. He had in view merely an adjournment till to-morrow, in order that some conciliatory experiment might if possible be devised, and that in case the smaller States should continue to hold back, the larger might then take such measures, he would not say what, as might be necessary.
M^r Patterson seconded the adjournment till to-morrow, as an opportunity seemed to be wished by the larger States to deliberate further on conciliatory expedients.
On the question for adjourning till tomorrow, the States were equally divided,
Mas. no. Con^t no. N. J. ay. P^a ay. Del. no. M^d ay. V^a ay. N. C. ay. S. C. no. Geo. no, so it was lost.
M^r Broome thought it his duty to declare his opinion ag^{st} an adjournment sine die, as had been urged by M^r Patterson. Such a measure he thought would be fatal. Something must be done by the Convention, tho' it should be by a bare majority.
M^r Gerry observed that Mas^{ts} was opposed to an adjournment, because they saw no new ground of compromise. But as it seemed to be the opinion of so many States that a trial sh^d be made, the State would now concur in the adjournm^t.
M^r Rutlidge could see no need of an adjourn^t because he could see no chance of a compromise. The little States were fixt. They had repeatedly & solemnly declared themselves to be so. All that the large States then had to do was to decide whether they would yield or not. For his part he conceived that altho' we could not do what we thought best, in itself, we ought to do something. Had we not better keep the Gov^t up a little longer, hoping that another Convention will supply our omissions, than abandon every thing to hazard. Our Constituents will be very little satisfied with us if we take the latter course.
M^r Randolph & M^r King renewed the motion to adjourn till tomorrow.
On the question. Mas. ay. Con^t no. N. J. ay. P^a ay. Del. no. M^d ay. V^a ay. N. C. ay. S. C. ay. Geo. div^d.
Adjourned
* * * * *
On the morning following before the hour of the Convention a number of the members from the larger States, by common agreement met for the purpose of consulting on the proper steps to be taken in consequence of the vote in favor of an equal Representation in the 2^d branch, and the apparent inflexibility of the smaller States on that point. Several members from the latter States also attended. The time was wasted in vague conversation on the subject, without any specific proposition or agreement. It appeared indeed that the opinions of the members who disliked the equality of votes differed much as to the importance of that point, and as to the policy of risking a failure of any general act of the Convention by inflexibly opposing it. Several of them supposing that no good Governm^t could or would be built on that foundation, and that as a division of the convention into two opinions was unavoidable; it would be better that the side comprising the principal States, and a majority of the people of America, should propose a scheme of Gov^t to the States, than that a scheme should be proposed on the other side, would have concurred in a firm opposition to the smaller States, and in a separate recommendation, if eventually necessary. Others seemed inclined to yield to the smaller States, and to concur in such an Act however imperfect & exceptionable, as might be agreed on by the Convention as a body, tho' decided by a bare majority of States and by a minority of the people of the U. States. It is probable that the result of this consultation satisfied the smaller States that they had nothing to apprehend from a Union of the larger, in any plan whatever ag^{st} the equality of votes in the 2^d branch.
TUESDAY JULY 17. IN CONVENTION.
M^r Govern^r Morris, moved to reconsider the whole Resolution agreed to yesterday concerning the constitution of the 2 branches of the Legislature. His object was to bring the House to a consideration in the abstract of the powers necessary to be vested in the general Government. It had been said, Let us know how the Gov^t is to be modelled, and then we can determine what powers can be properly given to it. He thought the most eligible course was, first to determine on the necessary powers, and then so to modify the Govern^t as that it might be justly & properly enabled to administer them. He feared if we proceeded to a consideration of the powers, whilst the vote of yesterday including an equality of the States in the 2^d branch, remained in force, a reference to it, either mental or expressed, would mix itself with the merits of every question concerning the powers.--This motion was not seconded. (It was probably approved by several members who either despaired of success, or were apprehensive that the attempt would inflame the jealousies of the smaller States.)
The 6^{th} Resol^n in the Report of the Com^e of the Whole relating to the powers, which had been postponed in order to consider the 7 & 8^{th} relating to the constitution of the Nat^l Legislature, was now resumed.
M^r Sherman observed that it would be difficult to draw the line between the powers of the Gen^l Legislature, and those to be left with the States; that he did not like the definition contained in the Resolution, and proposed in place of the words "individual legislation" line 4. inclusive, to insert "to make laws binding on the people of the United States in all cases which may concern the common interests of the Union; but not to interfere with the Government of the individual States in any matters of internal police which respect the Gov^t of such States only, and wherein the general welfare of the U. States is not concerned."
M^r Wilson 2^{ded} the amendment as better expressing the general principle.
M^r Gov^r Morris opposed it. The internal police, as it would be called & understood by the States ought to be infringed in many cases, as in the case of paper money & other tricks by which Citizens of other States may be affected.
M^r Sherman, in explanation of his idea read an enumeration of powers, including the power of levying taxes on trade, but not the power of _direct taxation_.
M^r Gov^r Morris remarked the omission, and inferred that for the deficiencies of taxes on consumption, it must have been the meaning of Mr. Sherman, that the Gen^l Gov^t should recur to quotas & requisitions, which are subversive of the idea of Gov^t.
M^r Sherman acknowledged that his enumeration did not include direct taxation. Some provision he supposed must be made for supplying the deficiency of other taxation, but he had not formed any.
On Question on M^r Sherman's motion it passed in the negative
Mas. no. Con^t ay. N. J. no. P^a no. Del. no. M^d ay. V^a no. N. C. no. S. C. no. Geo. no.
M^r Bedford moved that the 2^d member of Resolution 6. be so altered as to read, "and moreover to legislate in all cases for the general interests of the Union, and also in those to which the States are severally incompetent, or in which the harmony of the U. States may be interrupted by the exercise of individual Legislation."
M^r Gov^r Morris 2^{ds} the motion.
M^r Randolph. This is a formidable idea indeed. It involves the power of violating all the laws and constitutions of the States, and of intermeddling with their police. The last member of the sentence is also superfluous, being included in the first.
M^r Bedford. It is not more extensive or formidable than the clause as it stands: _no State_ being _separately_ competent to legislate for the _general interest_ of the Union.
On question for agreeing to M^r Bedford's motion it passed in the affirmative.
Mas. ay. Con^t no. N. J. ay. P^a ay. Del. ay. M^d ay. V^a no. N. C. ay. S. C. no. Geo. no.
On the sentence as amended, it passed in the affirmative.
Mas. ay. Con^t ay. N. J. ay. P^a ay. Del. ay. M^d ay. V^a ay. N. C. ay. S. C. no. Geo. no.
The next. "To negative all laws passed by the several States contravening in the opinion of the Nat: Legislature the articles of Union, or any treaties subsisting under the authority of y^e Union."
M^r Gov^r Morris opposed this power as likely to be terrible to the States, and not necessary, if sufficient Legislative authority should be given to the Gen^l Government.
M^r Sherman thought it unnecessary; as the Courts of the States would not consider as valid any law contravening the Authority of the Union, and which the legislature would wish to be negatived.
M^r L. Martin considered the power as improper & inadmissible. Shall all the laws of the States be sent up to the Gen^l Legislature before they shall be permitted to operate?
M^r Madison, considered the negative on the laws of the States as essential to the efficacy & security of the Gen^l Gov^t. The necessity of a general Gov^t proceeds from the propensity of the States to pursue their particular interests in opposition to the general interest. This propensity will continue to disturb the system, unless effectually controuled. Nothing short of a negative on their laws will controul it. They will pass laws which will accomplish their injurious objects before they can be repealed by the Gen^l Legisl^{re} or be set aside by the National Tribunals. Confidence can not be put in the State Tribunals as guardians of the National authority and interests. In all the States these are more or less depend^t on the Legislatures. In Georgia they are appointed annually by the Legislature. In R. Island the Judges who refused to execute an unconstitutional law were displaced, and others substituted, by the Legislature who would be the willing instruments of the wicked & arbitrary plans of their masters. A power of negativing the improper laws of the States is at once the most mild & certain means of preserving the harmony of the system. Its utility is sufficiently displayed in the British system. Nothing could maintain the harmony & subordination of the various parts of the empire, but the prerogative by which the Crown, stifles in the birth every Act of every part tending to discord or encroachment. It is true the prerogative is sometimes misapplied thro' ignorance or a partiality to one particular part of y^e empire; but we have not the same reason to fear such misapplications in our System. As to the sending all laws up to the Nat^l Legisl: that might be rendered unnecessary by some emanation of the power into the States, so far at least as to give a temporary effect to laws of immediate necessity.
M^r Gov^r Morris was more & more opposed to the negative. The proposal of it would disgust all the States. A law that ought to be negatived will be set aside in the Judiciary departm^t and if that security should fail; may be repealed by a Nation^l law.
M^r Sherman. Such a power involves a wrong principle, to wit, that a law of a State contrary to the articles of the Union would if not negatived, be valid & operative.
M^r Pinkney urged the necessity of the Negative.
On the question for agreeing to the power of negativing laws of States &c. it passed in the negative.
Mas. ay. 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 Luther Martin moved the following resolution "that the Legislative acts of the U. S. made by virtue & in pursuance of the articles of Union and all Treaties made & ratified under the authority of the U. S. shall be the supreme law of the respective States, as far as those acts or treaties shall relate to the said States, or their Citizens and inhabitants--& that the Judiciaries of the several States shall be bound thereby in their decisions, any thing in the respective laws of the individual States to the contrary notwithstanding" which was agreed to nem: con:
9^{th} Resol: "that Nat^l Executive consist of a single person," Ag^d to nem. con.
"To be chosen by the National Legisl:"
M^r Govern^r Morris was pointedly ag^{st} his being so chosen. He will be the mere creature of the Legisl: if appointed & impeachable by that body. He ought to be elected by the people at large, by the freeholders of the Country. That difficulties attend this mode, he admits. But they have been found superable in N. Y. & in Con^t and would he believed be found so, in the case of an Executive for the U. States. If the people should elect, they will never fail to prefer some man of distinguished character, or services; some man, if he might so speak, of continental reputation. If the Legislature elect, it will be the work of intrigue, of cabal, and of faction; it will be like the election of a pope by a conclave of cardinals; real merit will rarely be the title to the appointment. He moved to strike out "National Legislature," & insert "citizens of the U. S."
M^r Sherman thought that the sense of the Nation would be better expressed by the Legislature, than by the people at large. The latter will never be sufficiently informed of characters, and besides will never give a majority of votes to any one man. They will generally vote for some man in their own State, and the largest State will have the best chance for the appointment. If the choice be made by the Legisl^{re} a majority of voices may be made necessary to constitute an election.
M^r Wilson. Two arguments have been urged ag^{st} an election of the Executive Magistrate by the people. 1 the example of Poland where an Election of the supreme Magistrate is attended with the most dangerous commotions. The cases he observed were totally dissimilar. The Polish nobles have resources & dependants which enable them to appear in force, and to threaten the Republic as well as each other. In the next place the electors all assemble in one place; which would not be the case with us. The 2^d arg^t is that a _majority_ of the people would never concur. It might be answered that the concurrence of a majority of the people is not a necessary principle of election, nor required as such in any of the States. But allowing the objection all its force, it may be obviated by the expedient used in Mass^{ts}, where the Legislature by majority of voices, decide in case a majority of people do not concur in favor of one of the candidates. This would restrain the choice to a good nomination at least, and prevent in a great degree intrigue & cabal. A particular objection with him ag^{st} an absolute election by the Legisl^{re} was that the Exec: in that case would be too dependent to stand the mediator between the intrigues & sinister views of the Representatives and the general liberties & interests of the people.
M^r Pinkney did not expect this question would again have been brought forward: An Election by the people being liable to the most obvious & striking objections. They will be led by a few active & designing men. The most populous States by combining in favor of the same individual will be able to carry their points. The Nat^l Legislature being most immediately interested in the laws made by themselves, will be most attentive to the choice of a fit man to carry them properly into execution.
M^r Gov^r Morris. It is said that in case of an election by the people the populous States will combine & elect whom they please. Just the reverse. The people of such States cannot combine. If there be any combination it must be among their representatives in the Legislature. It is said the people will be led by a few designing men. This might happen in a small district. It can never happen throughout the continent. In the election of a Gov^r of N. York, it sometimes is the case in particular spots, that the activity & intrigues of little partizans are successful, but the general voice of the State is never influenced by such artifices. It is said the multitude will be uninformed. It is true they would be uninformed of what passed in the Legislative Conclave, if the election were to be made there; but they will not be uninformed of those great & illustrious characters which have merited their esteem & confidence. If the Executive be chosen by the Nat^l Legislature, he will not be independent on it; and if not independent, usurpation & tyranny on the part of the Legislature will be the consequence. This was the case in England in the last Century. It has been the case in Holland, where their Senates have engrossed all power. It has been the case every where. He was surprised that an election by the people at large should ever have been likened to the polish election of the first Magistrate. An election by the Legislature will bear a real likeness to the election by the Diet of Poland. The great must be the electors in both cases, and the corruption & cabal w^{ch} are known to characterize the one would soon find their way into the other. Appointments made by numerous bodies, are always worse than those made by single responsible individuals, or by the people at large.
Col. Mason. It is curious to remark the different language held at different times. At one moment we are told that the Legislature is entitled to thorough confidence, and to indefinite power. At another, that it will be governed by intrigue & corruption, and cannot be trusted at all. But not to dwell on this inconsistency he would observe that a Government which is to last ought at least to be practicable. Would this be the case if the proposed election should be left to the people at large. He conceived it would be as unnatural to refer the choice of a proper character for Chief Magistrate to the people, as it would, to refer a trial of colours to a blind man. The extent of the Country renders it impossible that the people can have the requisite capacity to judge of the respective pretensions of the Candidates.
M^r Wilson, could not see the contrariety stated (by Col. Mason.) The Legisl^{re} might deserve confidence in some respects, and distrust in others. In acts which were to affect them & y^r Constituents precisely alike confidence was due. In others jealousy was warranted. The appointment to great offices, where the Legisl^{re} might feel many motives, not common to the public confidence was surely misplaced. This branch of business it was notorious, was the most corruptly managed of any that had been committed to legislative bodies.
M^r Williamson, conceived that there was the same difference between an election in this case, by the people and by the legislature, as between an app^t by lot, and by choice. There are at present distinguished characters, who are known perhaps to almost every man. This will not always be the case. The people will be sure to vote for some man in their own State, and the largest State will be sure to succeed. This will not be Virg^a however. Her slaves will have no suffrage. As the Salary of the Executive will be fixed, and he will not be eligible a 2^d time, there will not be such a dependence on the Legislature as has been imagined.
Question on an election by the people instead of the Legislature, which passed in the negative.
Mas. no. Con^t no. N. J. no. P^a ay. Del. no. M^d no. V^a no. N. C. no. S. C. no. Geo. no.
M^r L. Martin moved that the Executive be chosen by Electors appointed by the several Legislatures of the individual States.
M^r Broome 2^{ds}. On the Question, it passed in the negative.
Mas. no. Con^t no. N. J. no. P^a no. Del. ay. M^d ay. V^a no. N. C. no. S. C. no. Geo. no.
On the question on the words, "to be chosen by the Nation^l Legislature" it passed unanimously in the affirmative
"For the term of seven years"--postponed nem. con. on motion of M^r Houston and Gov. Morris
"to carry into execution the nation^l laws"--agreed to nem. con.
"to appoint to offices in cases not otherwise provided for,"--agreed to nem. con.
"to be ineligible a second time"--M^r Houston moved to strike out this clause.
M^r Sherman 2^{ds} the motion.
M^r Gov^r Morris espoused the motion. The ineligibility proposed by the clause as it stood tended to destroy the great motive to good behavior, the hope of being rewarded by a re-appointment. It was saying to him, make hay while the sun shines.
On the question for striking out, as moved by M^r Houston, it passed in the affirmative
Mas. ay. Con^t ay. N. J. ay. P^a ay. Del. no. M^d ay. V^a no. N. C. no. S. C. no. Geo. ay.
"For the term of 7 years," resumed.
M^r Broom was for a shorter term since the Executive Magistrate was now to be re-eligible. Had he remained ineligible a 2^d time, he should have preferred a longer term.
Doc^r M^cClurg moved[134] to strike out 7 years, and insert "during good behavior." By striking out the words declaring him not re-eligible, he was put into a situation that would keep him dependent forever on the Legislature; and he conceived the independence of the Executive to be equally essential with that of the Judiciary department.
[134] The probable object of this motion was merely to enforce the argument against the re-eligibility of the Executive magistrate by holding out a tenure during good behaviour as the alternate for keeping him independent of the legislature.--Note in Madison's handwriting.
M^r Gov^r Morris 2^{ded} the motion. He expressed great pleasure in hearing it. This was the way to get a good Government. His fear that so valuable an ingredient would not be attained had led him to take the part he had done. He was indifferent how the Executive should be chosen, provided he held his place by this tenure.
M^r Broome highly approved the motion. It obviated all his difficulties
M^r Sherman considered such a tenure as by no means safe or admissible. As the Executive Magistrate is now re-eligible, he will be on good behavior as far as will be necessary. If he behaves well he will be continued; if otherwise, displaced, on a succeeding election.
M^r Madison.[135] If it be essential to the preservation of liberty that the Legisl: Execut: & Judiciary powers be separate, it is essential to a maintenance of the separation, that they should be independent of each other. The Executive could not be independent of the Legislure, if dependent on the pleasure of that branch for a re-appointment. Why was it determined that the Judges should not hold their places by such a tenure? Because they might be tempted to cultivate the Legislature, by an undue complaisance, and thus render the Legislature the virtual expositor, as well as the maker of the laws. In like manner a dependence of the Executive on the Legislature, would render it the Executor as well as the maker of laws; & then according to the observation of Montesquieu, tyrannical laws may be made that they may be executed in a tyrannical manner. There was an analogy between the Executive & Judiciary departments in several respects. The latter executed the laws in certain cases as the former did in others. The former expounded & applied them for certain purposes, as the latter did for others. The difference between them seemed to consist chiefly in two circumstances--1. the collective interest & security were much more in the power belonging to the Executive than to the Judiciary department. 2. in the administration of the former much greater latitude is left to opinion and discretion than in the administration of the latter. But if the 2^d consideration proves that it will be more difficult to establish a rule sufficiently precise for trying the Execut: than the Judges, & forms an objection to the same tenure of office, both considerations prove that it might be more dangerous to suffer a Union between the Executive & Legisl: powers, than between the Judiciary & Legislative powers. He conceived it to be absolutely necessary to a well constituted Republic that the two first sh^d be kept distinct & independent of each other. Whether the plan proposed by the motion was a proper one was another question, as it depended on the practicability of instituting a tribunal for impeachm^{ts} as certain & as adequate in the one case as in the other. On the other hand, respect for the mover entitled his proposition to a fair hearing & discussion, until a less objectionable expedient should be applied for guarding ag^{st} a dangerous union of the Legislative & Executive departments.
[135] The view here taken of the subject was meant to aid in parrying the animadversions likely to fall on the motion of D^r M^cClurg, for whom J. M. had a particular regard. The Doc^r though possessing talents of the highest order was modest & unaccustomed to exert them in public debate.--Note in Madison's handwriting.
Col. Mason. This motion was made some time ago & negatived by a very large majority. He trusted that it w^d be again negatived. It w^d be impossible to define the misbehaviour in such a manner as to subject it to a proper trial; and perhaps still more impossible to compel so high an offender holding his office by such a tenure to submit to a trial. He considered an Executive during good behavior as a softer name only for an Executive for life. And that the next would be an easy step to hereditary Monarchy. If the motion should finally succeed, he might himself live to see such a Revolution. If he did not it was probable his children or grand children would. He trusted there were few men in that House who wished for it. No state he was sure had so far revolted from Republican principles as to have the least bias in its favor.
M^r Madison, was not apprehensive of being thought to favor any step towards monarchy. The real object with him was to prevent its introduction. Experience had proved a tendency in our governments to throw all power into the Legislative vortex. The Executives of the States are in general little more than Cyphers; the legislatures omnipotent. If no effectual check be devised for restraining the instability & encroachments of the latter, a revolution of some kind or other would be inevitable. The preservation of Republican Gov^t therefore required some expedient for the purpose, but required evidently at the same time that in devising it, the genuine principles of that form should be kept in view.
M^r Gov^r Morris was as little a friend to monarchy as any gentleman. He concurred in the opinion that the way to keep out monarchical Gov^t was to establish such a Repub. Gov^t as w^d make the people happy and prevent a desire of change.
Doc^r McClurg was not so much afraid of the shadow of monarchy as to be unwilling to approach it; nor so wedded to Republican Gov^t as not to be sensible of the tyrannies that had been & may be exercised under that form. It was an essential object with him to make the Executive independent of the Legislature; and the only mode left for effecting it, after the vote destroying his ineligibility a second time, was to appoint him during good behavior.
On the question for inserting "during good behavior" in place of '7 years (with a re-eligibility)' it passed in the negative,
Mas. no. C^t no. N. J. ay. P^a ay. Del. ay. M^d no. V^a ay. N. C. no. S. C. no. Geo. no.[136]
[136] (This vote is not considered as any certain index of opinion, as a number in the affirmative probably had it chiefly in view to alarm those attached to a dependence of the Executive on the Legislature, & thereby facilitate some final arrangement of a contrary tendency. The avowed friends of an Executive, during good behaviour were not more than three or four, nor is it certain they would finally have adhered to such a tenure, an independence of the three great departments of each other, as far as possible, and the responsibility of all to the will of the community seemed to be generally admitted as the true basis of a well constructed government.)--Note in Madison's hand, except from the words "nor is it certain" etc., which is in the hand of his wife's brother, John C. Payne.
On the motion "to strike out seven years" it passed in the negative,
Mas. ay. C^t no. N. J. no. P^a ay. Del. ay. M^d no. V^a no. N. C. ay. S. C. no. Geo. no.[137]
[137] (There was no debate on this motion. The apparent object of many in the affirmative was to secure the re-eligibility by shortening the term, and of many in the negative to embarrass the plan of referring the appointment and dependence of the Executive to the Legislature.)--Note in Madison's hand.
It was now unanimously agreed that the vote which had struck out the words "to be ineligible a second time" should be reconsidered to-morrow.
Adj^d.
WEDNESDAY JULY 18. IN CONVENTION.
On motion of M^r L. Martin to fix tomorrow for reconsidering the vote concerning "eligibility of the Exec^{tive} a 2^d time" it passed in the affirmative.
Mas. ay. Con^t ay. N. J. absent. P^a ay. Del. ay. M^d ay. V^a ay. N. C. ay. S. C. ay. Geo. absent.
The residue of the Resol. 9. concerning the Executive was postp^d till tomorrow.
Resol. 10. that Executive sh^l have a right to negative legislative acts not afterwards passed by 2/3 of each branch, agreed to nem. con.
Resol. 11. "that a Nat^l Judiciary shall be estab^d to consist of one supreme tribunal", ag^d to nem. con.
"The judges of which to be appoint^d by the 2^d branch of the Nat^l Legislature,"
M^r Ghorum, w^d prefer an appointment by the 2^d branch to an appointm^t by the whole Legislature; but he thought even that branch too numerous, and too little personally responsible, to ensure a good choice. He suggested that the Judges be appointed by the Execu^{ve} with the advice & consent of the 2^d branch, in the mode prescribed by the constitution of Mas^{ts}. This mode had been long practised in that country, & was found to answer perfectly well.
M^r Wilson, still w^d prefer an appointm^t by the Executive; but if that could not be attained, w^d prefer in the next place, the mode suggested by M^r Ghorum. He thought it his duty however to move in the first instance "that the Judges be appointed by the Executive." M^r Gov^r Morris 2^{ded} the motion.
M^r L. Martin was strenuous for an app^t by the 2^d branch. Being taken from all the States it w^d be best informed of characters & most capable of making a fit choice.
M^r Sherman concurred in the observations of M^r Martin, adding that the Judges ought to be diffused, which would be more likely to be attended to by the 2^d branch, than by the Executive.
M^r Mason. The mode of appointing the Judges may depend in some degree on the mode of trying impeachments of the Executive. If the Judges were to form a tribunal for that purpose, they surely ought not to be appointed by the Executive. There were insuperable objections besides ag^{st} referring the appointment to the Executive. He mentioned as one, that as the Seat of Gov^t must be in some one State, and as the Executive would remain in office for a considerable time, for 4. 5. or 6 years at least, he would insensibly form local & personal attachments within the particular State that would deprive equal merit elsewhere, of an equal chance of promotion.
M^r Ghorum. As the Executive will be responsible in point of character at least, for a judicious and faithful discharge of his trust, he will be careful to look through all the States for proper characters. The Senators will be as likely to form their attachments at the seat of Gov^t where they reside, as the Executive. If they cannot get the man of the particular State to which they may respectively belong, they will be indifferent to the rest. Public bodies feel no personal responsibility, and give full play to intrigue & cabal. Rh. Island is a full illustration of the insensibility to character produced by a participation of numbers in dishonorable measures, and of the length to which a Public body may carry wickedness & cabal.
M^r Gov^r Morris supposed it would be improper for an impeachm^t of the Executive to be tried before the Judges. The latter would in such case be drawn into intrigues with the Legislature and an impartial trial would be frustrated. As they w^d be much about the Seat of Gov^t they might even be previously consulted & arrangements might be made for a prosecution of the Executive. He thought therefore that no argument could be drawn from the probability of such a plan of impeachments ag^{st} the motion before the House.
M^r Madison suggested that the Judges might be appointed by the Executive, with the concurrence of 1/3 at least, of the 2^d branch. This would unite the advantage of responsibility in the Executive with the security afforded in the 2^d branch ag^{st} any incautious or corrupt nomination by the Executive.
M^r Sherman, was clearly for an election by the Senate. It would be composed of men nearly equal to the Executive, and would of course have on the whole more wisdom. They would bring into their deliberations a more diffusive knowledge of characters. It would be less easy for candidates to intrigue with them, than with the Executive Magistrate. For these reasons he thought there would be a better security for a proper choice in the Senate than in the Executive.
M^r Randolph. It is true that when the app^t of the Judges was vested in the 2^d branch an equality of votes had not been given to it. Yet he had rather leave the appointm^t there than give it to the Executive. He thought the advantage of personal responsibility might be gained in the Senate by requiring the respective votes of the members to be entered on the Journal. He thought too that the hope of receiving app^{ts} would be more diffusive if they depended on the Senate, the members of which w^d be diffusively known, than if they depended on a single man who could not be personally known to a very great extent; and consequently that opposition to the System, would be so far weakened.
M^r Bedford thought there were solid reasons ag^{st} leaving the appointment to the Executive. He must trust more to information than the Senate. It would put it in his power to gain over the larger States, by gratifying them with a preference of their Citizens. The responsibility of the Executive so much talked of was chimerical. He could not be punished for mistakes.
M^r Ghorum remarked that the Senate could have no better information than the Executive. They must like him, trust to information from the members belonging to the particular State where the candidate resided. The Executive would certainly be more answerable for a good appointment, as the whole blame of a bad one would fall on him alone. He did not mean that he would be answerable under any other penalty than that of public censure, which with honorable minds was a sufficient one.
On the question for referring the appointment of the Judges to the Executive, instead of the 2^d branch
Mas. ay. Con^t no. P^a ay. Del. no. M^d no. V^a no. N. C. no. S. C. no. Geo. absent.
M^r Ghorum moved "that the Judges be nominated and appointed by the Executive, by & with the advice & consent of the 2^d branch & every such nomination shall be made at least ---- days prior to such appointment." This mode he said had been ratified by the experience of a 140 years in Massachus^{ts}. If the app^t should be left to either branch of the Legislature, it will be a mere piece of jobbing.
M^r Gov^r Morris 2^{ded} & supported the motion.
M^r Sherman thought it less objectionable than an absolute appointment by the Executive; but disliked it, as too much fettering the Senate.
Question on M^r Ghorum's motion
Mas. ay. Con^t no. P^a ay. Del. no. M^d ay. V^a ay. N. C. no. S. C. no. Geo. absent.
M^r Madison moved that the Judges should be nominated by the Executive & such nomination should become an appointment if not disagreed to within ---- days by 2/3 of the 2^d branch.
M^r Gov^r Morris 2^{ded} the motion. By co[~m]on consent the consideration of it was postponed till tomorrow.
"To hold their offices during good behavior" & "to receive fixed salaries" agreed to nem: con:.
"In which (salaries of Judges) no increase or diminution shall be made so as to affect the persons at the time in office."
M^r Gov^r Morris moved to strike out "or increase." He thought the Legislature ought to be at liberty to increase salaries as circumstances might require, and that this would not create any improper dependence in the Judges.
Doc^r Franklin was in favor of the motion. Money may not only become plentier, but the business of the department may increase as the Country becomes more populous.
M^r Madison. The dependence will be less if the _increase alone_ should be permitted, but it will be improper even so far to permit a dependence. Whenever an increase is wished by the Judges, or may be in agitation in the legislature, an undue complaisance in the former may be felt towards the latter. If at such a crisis there should be in Court suits to which leading members of the Legislature may be parties, the Judges will be in a situation which ought not to be suffered, if it can be prevented. The variations in the value of money, may be guarded ag^{st} by taking for a standard wheat or some other thing of permanent value. The increase of business will be provided for by an increase of the number who are to do it. An increase of salaries may easily be so contrived as not to affect persons in office.
M^r Gov^r Morris. The value of money may not only alter but the State of Society may alter. In this event the same quantity of wheat, the same value would not be the same compensation. The Amount of salaries must always be regulated by the manners & the style of living in a Country. The increase of business can not be provided for in the supreme tribunal in the way that has been mentioned. All the business of a certain description whether more or less must be done in that single tribunal. Additional labor alone in the Judges can provide for additional business. Additional compensation therefore ought not to be prohibited.
On the question for striking out "or increase"
Mas. ay. Con^t ay. P^a ay. Del. ay. M^d ay. V^a no. N. C. no. S. C. ay. Geo. absent
The whole clause as amended was then agreed to nem: con:
12. Resol: "that Nat^l Legislature be empowered to appoint inferior tribunals"
M^r Butler could see no necessity for such tribunals. The State Tribunals might do the business.
M^r L. Martin concurred. They will create jealousies & oppositions in the State tribunals, with the jurisdiction of which they will interfere.
M^r Ghorum. There are in the States already federal Courts with jurisdiction for trial of piracies &c. committed on the Seas. No complaints have been made by the States or the Courts of the States. Inferior tribunals are essential to render the authority of the Nat^l Legislature effectual.
M^r Randolph observed that the Courts of the States can not be trusted with the administration of the National laws. The objects of jurisdiction are such as will often place the General & local policy at variance.
M^r Gov^r Morris urged also the necessity of such a provision.
M^r Sherman was willing to give the power to the Legislature but wished them to make use of the State Tribunals whenever it could be done with safety to the general interest.
Col. Mason thought many circumstances might arise not now to be foreseen, which might render such a power absolutely necessary.
On question for agreeing to 12. Resol: empowering the National Legislature to appoint "inferior tribunals," Ag^d to nem. con.
"Impeachments of national officers," were struck out on motion for the purpose.
13. Resol: "The jurisdiction of the Nat^l Judiciary." Several criticisms having been made on the definition; it was proposed by M^r Madison so to alter it as to read thus--"that the jurisdiction shall extend to all cases arising under the Nat^l laws; And to such other questions as may involve the Nat^l peace & harmony," which was agreed to, nem. con.
Resol. 14. providing for the admission of new States agreed to, nem. con.
Resol. 15. that provision ought to be made for the continuance of Cong^s &c. & for the completion of their engagements."
M^r Gov^r Morris thought the assumption of their engagements might as well be omitted; and that Cong^s ought not to be continued till all the States should adopt the reform; since it may become expedient to give effect to it whenever a certain number of States shall adopt it.
M^r Madison the clause can mean nothing more than that provision ought to be made for preventing an interregnum; which must exist in the interval between the adoption of the New Gov^t and the commencement of its operation, if the old Gov^t should cease on the first of these events.
M^r Wilson did not entirely approve of the manner in which the clause relating to the engagements of Cong^s was expressed; but he thought some provision on the subject would be proper in order to prevent any suspicion that the obligations of the Confederacy might be dissolved along with the Govern^t under which they were contracted.
On the question on the 1^{st} part--relating to the continuance of Cong^s.
Mas. no. Con^t no. P^a no. Del. no. M^d no. V^a ay. N. C. ay. S. C.[138] ay. Geo. no.
[138] In the printed Journal, S. Carolina--no. Note in Madison's hand.
The 2^d part as to completion of their engagements, disag^d to, nem. con.
Resol. 16. "That a Republican Constitution & its existing laws ought to be guaranteed to each State by the U. States."
M^r Gov^r Morris, thought the Resol: very objectionable. He should be very unwilling that such laws as exist in R. Island should be guaranteed.
M^r Wilson. The object is merely to secure the States ag^{st} dangerous commotions, insurrections and rebellions.
Col. Mason. If the Gen^l Gov^t should have no right to suppress rebellions ag^{st} particular States, it will be in a bad situation indeed. As Rebellions ag^{st} itself originate in & ag^{st} individual States, it must remain a passive Spectator of its own subversion.
M^r Randolph. The Resol^n has 2. objects. 1. to secure a Republican Government. 2. to suppress domestic commotions. He urged the necessity of both these provisions.
M^r Madison moved to substitute "that the Constitutional authority of the States shall be guaranteed to them respectively ag^{st} domestic as well as foreign violence."
Doc^r McClurg seconded the motion.
M^r Houston was afraid of perpetuating the existing Constitutions of the States. That of Georgia was a very bad one, and he hoped would be revised & amended. It may also be difficult for the Gen^l Gov^t to decide between contending parties each of which claim the sanction of the Constitution.
M^r L. Martin was for leaving the States to suppress Rebellions themselves.
M^r Ghorum thought it strange that a Rebellion should be known to exist in the Empire, and the Gen^l Gov^t sh^d be restrained from interposing to subdue it. At this rate an enterprising Citizen might erect the standard of Monarchy in a particular State, might gather together partizans from all quarters, might extend his views from State to State, and threaten to establish a tyranny over the whole & the Gen^l Gov^t be compelled to remain an inactive witness of its own destruction. With regard to different parties in a State; as long as they confine their disputes to words, they will be harmless to the Gen^l Gov^t & to each other. If they appeal to the sword, it will then be necessary for the Gen^l Gov^t, however difficult it may be to decide on the merits of their contest, to interpose & put an end to it.
M^r Carrol. Some such provision is essential. Every State ought to wish for it. It has been doubted whether it is a casus federis at the present. And no room ought to be left for such a doubt hereafter.
M^r Randolph moved to add as an amend^t to the motion; "and that no State be at liberty to form any other than a Republican Gov^t." M^r Madison seconded the motion.
M^r Rutlidge thought it unnecessary to insert any guarantee. No doubt could be entertained but that Cong^s had the authority if they had the means to co-operate with any State in subduing a rebellion. It was & would be involved in the nature of the thing.
M^r Wilson moved as a better expression of the idea, "that a Republican form of Governm^t shall be guaranteed to each State & that each State shall be protected ag^{st} foreign & domestic violence.
This seeming to be well received, M^r Madison & M^r Randolph withdrew their propositions & on the Question for agreeing to M^r Wilson's motion, it passed nem. con.
Adj^d.
END OF VOL. 1.
Transcriber Notes:
Passages in italics were indicated by _underscores_.
Small caps were replaced with ALL CAPS.
Throughout the document, the oe ligature was replaced with "oe".
Throughout the document, a tilded m is represented by [~m], and a tilded nn is represented by [~nn].
Throughout the document, a single superscripted letter is represented by that single letter preceded by a caret, and more than one superscripted letters are represented by the letters enclosed by curly brackets. Thus, the word "y^e" represents a word where the "y" is normal and the "e" is superscripted; and the word "2^{dnd}" represents a word where the "2" is normal and the "dnd" is superscripted. In both conventions, it is assumed that a dot appeared below the superscripted letters, since in the original text a dot was often (but not always) present under the superscripted letters. Thus, "2^{dnd}" in the present text would represent a normal digit "2" followed directly by the superscripted letters "dnd" with a single dot below the set of three letters.
The Contents of Volume I. page incorrectly lists the Chronology as starting on page xix, where it starts on page xv.
The illustrations have been moved so that they do not break up paragraphs and so that they are next to the text they illustrate. Thus the page number of the illustration might not match the page number in the List of Fac-Similes, and the order of illustrations may not be the same in the List of Fac-Similes and in the book.
This document was filled with errors and inconsistencies in punctuations and hyphenation. For example, usually the word re-eligible is hyphenated, but sometimes it is not; sometimes; reinstated is hyphenated but sometimes it is not; and usually the comma is used as a thousand mark, but sometimes a period is used for that purpose. Also, the abbreviations were not uniform (e.g., Mas. v. Mass.), which were only corrected when it was clear which abbreviation was considered correct at the time printed. Another example is the abbreviation for Resolution, which was sometimes Resol:^n, sometimes Resol^n, and sometimes Resol.^n Sometimes "nem: con." was used, and sometimes "nem. con." was used. The only time errors were corrected was when it was very clear that an error was made, and it was clear how the error should be corrected, and those corrections are listed below. Two exceptions are the case where a period is missing at the end of a sentence or missing at the end of an abbreviation, both of which happened so often that those corrections were made but were not listed below.
Similarly, since the English language has changed so much in the past two hundred years, variations in spelling were only corrected was when it was very clear that an error was made, and it was clear how the error should be corrected. Those corrections are listed below.
In Footnote 25, two instances of "thier" was replaced with "their".
On page 23, a comma was added after "Massachusetts".
On page 23, a comma was added after "New York".
On page 39, a comma was added after "Savannah Georgian".
On page 42, the semicolon after "for general propositions" was replaced with a period.
On page 49, a quotation mark was added after "be instituted.".
On page 67, "tranquility" was replaced with "tranquillity".
On page 80, "is to to be" was replaced with "is to be".
On page 85, a period was added after "2".
On page 85, a period was added after "4".
On page 87, a comma was added after "the landed".
On page 104, "that" was replaced with "than".
On page 105, "M^r Bedford In" was replaced with "M^r Bedford, in".
On page 109, "M^r Randolph, urged" was replaced with "M^r Randolph urged".
On page 117, "against the 43." was replaced with "against the 43,".
On page 119, "it was formerly practised" was replaced with "It was formerly practised".
On page 119, "Wilsons" was replaced with "Wilson's".
On page 128, a closing quotation mark was placed after "7 years."
On page 143, a period was added after "2".
On page 159, "unamimous" was replaced with "unanimous".
On page 162, the quotation mark was removed before "The supreme Legislative power".
In Footnote 89, "conpensation" was replaced with "compensation".
In Footnote 89, "misdemesnor" was replaced with "misdemeanor".
In Footnote 89, "Where shall be" was replaced with "There shall be".
In Footnote 89, "§[2]" was replaced with "§ 2.".
On page 164, "Comittee" was replaced with "Committee".
On page 180, "tranquility" was replaced with "tranquillity".
On page 184, "necessaryly" was replaced with "necessarily".
In Footnote 95, "posseses" was replaced with "possesses".
On page 211, "Wiliamson" was replaced with "Williamson".
On page 217, in two instances, "Masst^s" was replaced with "Mass^{ts}".
On page 220, a comma was deleted after "M^r Sherman".
On page 233, a period was placed after "1".
On page 236, a quotation mark was placed after "behaviour".
On page 256, a comma was placed after "Antient Greece".
On page 264, a semicolon was replaced with a period.
On page 271, "Comittee" was replaced with "Committee".
On page 274, "prepondenancy" was replaced with "preponderancy".
On page 285, "Elsewth" was replaced with "Elseworth".
On page 285, "Contstitution" was replaced with "Constitution".
On page 286, "honorabl" was replaced with "honorable".
On page 292, "occcasion" was replaced with "occasion".
On page 293, "N J." was replaced with "N. J.".
On page 322, "Teusday" was replaced with "Tuesday".
On page 322, "Hamshire" was replaced with "Hampshire".
On page 323, "Hamshire" was replaced with "Hampshire".
On page 323, "inhabts" was replaced with "inhab^{ts}".
On page 323, "brethern" was replaced with "brethren".
On page 330, "brethern" was replaced with "brethren".
On page 336, "Mississpi" was replaced with "Mississippi".
On page 340, "Mard" was replaced with "M^d".
On page 340, "S." was replaced with "S. C.".
On page 348, "Hamshire" was replaced with "Hampshire".
On page 356, "weekest" was replaced with "weakest".
On page 365, "orginal" was replaced with "original".
On page 372, the quotation mark was removed before "or in which the harmony".
Throughout the document, there are instances of missing quotation marks, but it is unclear where quotation marks should be added. In those cases, the quotation marks were left as-is.
Throughout the document, "Maddison" was replaced with "Madison", and "Sharman" was replaced with "Sherman".
Although the document refers more often to a Mr. Patterson, instead of Mr. Paterson, some external sources indicate that the delegate's name was Mr. Paterson. Both spellings were retained as-is.
The Journal of the Debates in the Convention, vol. 2 (Gaillard Hunt, ed., 1908)
# The Journal of the Debates in the Convention, vol. 2 (Gaillard Hunt, ed., 1908)
Produced by David Garcia, Ernest Schaal, and the Online Distributed Proofreading Team at http://www.pgdp.net (This book was produced from scanned images of public domain material from the Google Print project.)
The Journal of the Debates in the Convention Which Framed The Constitution of the United States May-September, 1787
As Recorded by James Madison
Edited by Gaillard Hunt
In Two Volumes
Volume Ii
Volume II.
G. P. Putnam's Sons New York and London =The Knickerbocker Press= 1908
=The Knickerbocker Press, New York=
CONTENTS OF VOLUME II.
PAGE Chronology vii Journal of the Constitutional Convention 1 Index 417
* * * * *
Fac-Simile. Facing Page
FAC-SIMILE.
FACING PAGE First Page of the Constitution, reduced 414
CHRONOLOGY OF JAMES MADISON. 1787.
* * * * *
1787 July 19. Advocates election of the Executive by the people.
July 20. Speaks in favor of making the Executive impeachable.
July 21. Seconds proposition to include the Judiciary with the Executive in power to revise laws.
Moves that judges be appointed by the Executive with concurrence of two-thirds of Senate.
July 25. Shows the difficulty of devising satisfactory mode of selecting Executive.
August 7. Advocates liberal suffrage.
August 8. Moves that basis of representation in House of Representatives be one to not more than 40,000 inhabitants.
Opposes proposition that money bills originate only in House of Representatives.
August 9. Opposes incorporation in constitution of provision against persons of foreign birth holding office.
August 10. Moves that legislature have power to compel attendance of members.
August 11. Moves that Congress publish its journals, except such parts of Senate proceedings as may be ordered kept secret.
Advocates a centrally located capital.
August 13. Seconds motion in favor of liberal treatment of foreigners.
Speaks in favor of participation of Senate in making appropriations.
August 15. Moves that all bills be passed upon by the Executive and Judiciary before becoming laws.
August 16. Advocates national power to tax exports.
August 17. Moves that legislature have power to declare war.
August 18. Submits propositions for national power over public lands, to form governments for new States, over Indian affairs, over seat of government, to grant charters of incorporation, copyrights, to establish a university, grant patents, acquire forts, magazines, etc.
Speaks in favor of national control of militia.
August 22. Appointed on committee to consider navigation acts.
Moves that States have power to appoint militia officers under rank of general officers.
Moves to commit question of negative of State laws.
Moves to include the Executive in treaty-making power.
August 25. Declares it is wrong to admit the idea of property in men in constitution.
August 27. Suggests that in case of death of President his council may act.
Moves form of oath for President.
Moves that judges' salaries be fixed.
Expresses doubt whether Judiciary should have power over cases arising under constitution.
August 28. Moves that States be forbidden to lay embargoes, export and import duties.
August 29. Speaks in favor of navigation acts.
August 31. Moves that ratification of constitution be by a majority of States and people.
Advocates ratification by State conventions.
Appointed on committee to consider parts of constitution and propositions not yet acted upon.
Sept 3. Thinks eventual election of President by legislature should be made difficult.
Sept 7. Moves that Senate have power to make treaties of peace without President.
Sept 8. Moves that quorum of Senate be two-thirds of all the members.
Seconds motion to increase representation.
Sept 14. Suggests that legislature should have power to grant charters of incorporation.
Sept 17. Signs constitution.
JOURNAL OF THE CONSTITUTIONAL CONVENTION OF 1787.
THURSDAY JULY 19. IN CONVENTION.
On reconsideration of the vote rendering the Executive re-eligible a 2^d time, M^r Martin moved to re-instate the words, "to be ineligible a 2^d time."
M^r Governeur Morris. It is necessary to take into one view all that relates to the establishment of the Executive; on the due formation of which must depend the efficacy & utility of the Union among the present and future States. It has been a maxim in Political Science that Republican Government is not adapted to a large extent of Country, because the energy of the Executive Magistracy can not reach the extreme parts of it. Our Country is an extensive one. We must either then renounce the blessings of the Union, or provide an Executive with sufficient vigor to pervade every part of it. This subject was of so much importance that he hoped to be indulged in an extensive view of it. One great object of the Executive is to controul the Legislature. The Legislature will continually seek to aggrandize & perpetuate themselves; and will seize those critical moments produced by war, invasion or convulsion for that purpose. It is necessary then that the Executive Magistrate should be the guardian of the people, even of the lower classes, ag^{st} Legislative tyranny, against the Great & the wealthy who in the course of things will necessarily compose the Legislative body. Wealth tends to corrupt the mind to nourish its love of power, and to stimulate it to oppression. History proves this to be the spirit of the opulent. The check provided in the 2^d branch was not meant as a check on Legislative usurpations of power, but on the abuse of lawful powers, on the propensity in the 1^{st} branch to legislate too much to run into projects of paper money & similar expedients. It is no check on Legislative tyranny. On the contrary it may favor it, and if the 1^{st} branch can be seduced may find the means of success. The Executive therefore ought to be so constituted as to be the great protector of the Mass of the people.--It is the duty of the Executive to appoint the officers & to command the forces of the Republic: to appoint 1. ministerial officers for the administration of public affairs. 2. officers for the dispensation of Justice. Who will be the best Judges whether these appointments be well made? The people at large, who will know, will see, will feel the effects of them. Again who can judge so well of the discharge of military duties for the protection & security of the people, as the people themselves who are to be protected & secured? He finds too that the Executive is not to be re-eligible. What effect will this have? 1. it will destroy the great incitement to merit public esteem by taking away the hope of being rewarded with a reappointment. It may give a dangerous turn to one of the strongest passions in the human breast. The love of fame is the great spring to noble & illustrious actions. Shut the Civil road to Glory & he may be compelled to seek it by the sword. 2. It will tempt him to make the most of the short space of time allotted him, to accumulate wealth and provide for his friends. 3. It will produce violations of the very constitution it is meant to secure. In moments of pressing danger the tried abilities and established character of a favorite magistrate will prevail over respect for the forms of the Constitution. The Executive is also to be impeachable. This is a dangerous part of the plan. It will hold him in such dependence that he will be no check on the Legislature, will not be a firm guardian of the people and of the public interest. He will be the tool of a faction, of some leading demagogue in the Legislature. These then are the faults of the Executive establishment as now proposed. Can no better establish^t be devised? If he is to be the Guardian of the people let him be appointed by the people? If he is to be a check on the Legislature let him not be impeachable. Let him be of short duration, that he may with propriety be re-eligible. It has been said that the candidates for this office will not be known to the people. If they be known to the Legislature, they must have such a notoriety and eminence of Character, that they cannot possibly be unknown to the people at large. It cannot be possible that a man shall have sufficiently distinguished himself to merit this high trust without having his character proclaimed by fame throughout the Empire. As to the danger from an Unimpeachable magistrate he could not regard it as formidable. There must be certain great Officers of State; a minister of finance, of war, of foreign affairs &c. These he presumes will exercise their functions in subordination to the Executive, and will be amenable by impeachment to the Public Justice. Without these ministers the Executive can do nothing of consequence. He suggested a biennial election of the Executive at the time of electing the 1^{st} branch, and the Executive to hold over, so as to prevent any interregnum in the administration. An election by the people at large throughout so great an extent of country could not be influenced by those little combinations and those momentary lies, which often decide popular elections within a narrow sphere. It will probably, be objected that the election will be influenced by the members of the Legislature; particularly of the 1^{st} branch, and that it will be nearly the same thing with an election by the Legislature itself. It could not be denied that such an influence would exist. But it might be answered that as the Legislature or the candidates for it would be divided, the enmity of one part would counteract the friendship of another; that if the administration of the Executive were good, it would be unpopular to oppose his re-election, if bad it ought to be opposed & a reappointm^t prevented; and lastly that in every view this indirect dependence on the favor of the Legislature could not be so mischievous as a direct dependence for his appointment. He saw no alternative for making the Executive independent of the Legislature but either to give him his office for life, or make him eligible by the people. Again, it might be objected that two years would be too short a duration. But he believes that as long as he should behave himself well, he would be continued in his place. The extent of the Country would secure his re-election ag^{st} the factions & discontents of particular States. It deserved consideration also that such an ingredient in the plan would render it extremely palatable to the people. These were the general ideas which occurred to him on the subject, and which led him to wish & move that the whole constitution of the Executive might undergo reconsideration.
M^r Randolph urged the motion of M^r L. Martin for restoring the words making the Executive ineligible a 2^d time. If he ought to be independent, he should not be left under a temptation to court a re-appointment. If he should be re-appointable by the Legislature, he will be no check on it. His revisionary power will be of no avail. He had always thought & contended as he still did that the danger apprehended by the little States was chimerical; but those who thought otherwise ought to be peculiarly anxious for the motion. If the Executive be appointed, as has been determined, by the Legislature, he will probably be appointed either by joint ballot of both houses, or be nominated by the 1^{st} and appointed by the 2^d branch. In either case the large States will preponderate. If he is to court the same influence for his re-appointment, will he not make his revisionary power, and all the other functions of his administration subservient to the views of the large States. Besides, is there not great reason to apprehend that in case he should be re-eligible, a false complaisance in the Legislature might lead them to continue an unfit man in office in preference to a fit one. It has been said that a constitutional bar to re-appointment will inspire unconstitutional endeavours to perpetuate himself. It may be answered that his endeavours can have no effect unless the people be corrupt to such a degree as to render all precautions hopeless; to which may be added that this argument supposes him to be more powerful & dangerous, than other arguments which have been used, admit, and consequently calls for stronger fetters on his authority. He thought an election by the Legislature with an incapacity to be elected a second time would be more acceptable to the people than the plan suggested by M^r Gov^r Morris.
M^r King did not like the ineligibility. He thought there was great force in the remark of M^r Sherman, that he who has proved himself most fit for an Office, ought not to be excluded by the constitution from holding it. He would therefore prefer any other reasonable plan that could be substituted. He was much disposed to think that in such cases the people at large would chuse wisely. There was indeed some difficulty arising from the improbability of a general concurrence of the people in favor of any one man. On the whole he was of opinion that an appointment by electors chosen by the people for the purpose, would be liable to fewest objections.
M^r Patterson's ideas nearly coincided he said with those of M^r King. He proposed that the Executive should be appointed by Electors to be chosen by the States in a ratio that would allow one elector to the smallest and three to the largest States.
M^r Wilson. It seems to be the unanimous sense that the Executive should not be appointed by the Legislature, unless he be rendered in-eligible a 2^d time: he perceived with pleasure that the idea was gaining ground, of an election mediately or immediately by the people.
M^r Madison. If it be a fundamental principle of free Gov^t that the Legislative, Executive & Judiciary powers should be _separately_ exercised, it is equally so that they be _independently_ exercised. There is the same & perhaps greater reason why the Executive sh^d be independent of the Legislature, than why the Judiciary should. A coalition of the two former powers would be more immediately & certainly dangerous to public liberty. It is essential then that the appointment of the Executive should either be drawn from some source, or held by some tenure that will give him a free agency with regard to the Legislature. This could not be if he was to be appointable from time to time by the Legislature. It was not clear that an appointment in the 1^{st} instance even with an ineligibility afterwards would not establish an improper connection between the two departments. Certain it was that the appointment would be attended with intrigues and contentions that ought not to be unnecessarily admitted. He was disposed for these reasons to refer the appointment to some other source. The people at large was in his opinion the fittest in itself. It would be as likely as any that could be devised to produce an Executive Magistrate of distinguished Character. The people generally could only know & vote for some Citizen whose merits had rendered him an object of general attention & esteem. There was one difficulty however of a serious nature attending an immediate choice by the people. The right of suffrage was much more diffusive in the Northern than the Southern States; and the latter could have no influence in the election on the score of the Negroes. The substitution of electors obviated this difficulty and seemed on the whole to be liable to fewest objections.
M^r Gerry. If the Executive is to be elected by the Legislature he certainly ought not to be re-eligible. This would make him absolutely dependent. He was ag^{st} a popular election. The people are uninformed, and would be misled by a few designing men. He urged the expediency of an appointment of the Executive by Electors to be chosen by the State Executives. The people of the States will then choose the 1^{st} branch; the legislatures of the States the 2^d branch of the National Legislature, and the Executives of the States, the National Executive. This he thought would form a strong attachm^t in the States to the National System. The popular mode of electing the chief Magistrate would certainly be the worst of all. If he should be so elected & should do his duty, he will be turned out for it like Gov^r Bowdoin in Mass^{ts} & President Sullivan in N. Hampshire.
On the question on M^r Gov^r Morris motion to reconsider generally the Constitution of the Executive
Mas. ay. C^t ay. N. J. ay. & all the others ay.
M^r Elseworth moved to strike out the appointm^t by the Nat^l Legislature, and to insert, to be chosen by electors appointed by the Legislatures of the States in the following ratio; to wit--one for each State not exceeding 200,000[1] inhab^{ts} two for each above y^t number & not exceeding 300,000. and three for each State exceeding 300,000.--M^r Broome 2^{ded}. the motion.[2]
[1] The Journal gives it 100,000.--_Journal of the Federal Convention_, 190.
[2] "Mr. Broom is a plain good Man, with some abilities, but nothing to render him conspicuous. He is silent in public, but chearful and conversable in private. He is about 35 years old."--Pierce's Notes, _Am. Hist. Rev._, iii., 330.
M^r Rutlidge was opposed to all the modes, except the appointm^t by the Nat^l Legislature. He will be sufficiently independent, if he be not re-eligible.
M^r Gerry preferred the motion of M^r Elseworth to an appointm^t by the Nat^l Legislature, or by the people; tho' not to an app^t by the State Executives. He moved that the electors proposed by M^r E. should be 25 in number, and allotted in the following proportion. to N. H. 1. to Mas. 3. to R. I. 1. to Con^t 2. to N. Y. 2. N. J. 2. P^a 3. Del. 1. M^d 2. V^a 3. N. C. 2. S. C. 2. Geo. 1.
The question as moved by M^r Elseworth being divided, on the 1^{st} part shall y^e Nat^l Executive be appointed by Electors?
Mas. div^d. Con^t ay. N. J. ay. P^a ay. Del. ay. M^d ay. V^a ay. N. C. no. S. C. no. Geo. no.
On 2^d part shall the Electors be chosen by the State Legislatures?
Mas. ay. Con^t ay. N. J. ay. P^a ay. Del. ay. M^d ay. V^a no. N. C. ay. S. C. no. Geo. ay.
The part relating to the ratio in which the States s^d chuse electors was postponed nem. con.
M^r L. Martin moved that the Executive be ineligible a 2^d time.
M^r Williamson, 2^{ds} the motion. He had no great confidence in Electors to be chosen for the special purpose. They would not be the most respectable citizens; but persons not occupied in the high offices of Gov^t. They would be liable to undue influence, which might the more readily be practised as some of them will probably be in appointment 6 or 8 months before the object of it comes on.
M^r Elseworth supposed any persons might be appointed Electors, excepting, solely, members of the Nat^l Legislature.
On the question Shall he be ineligible a 2^d time?
Mas. no. C^t no. N. J. no. P^a no. Del. no. M^d no. V^a no. N. C. ay. S. C. ay. Geo. no.
On the question Shall the Executive continue for 7 years? It passed in the negative
Mas. div^d. Con^t ay.[3] N. J. no. P^a no. Del. no. M^d no. V^a no. N. C. div^d. S. C. ay. Geo. ay.
[3] In the printed Journal Con^t, no: N. Jersey ay.--Madison's Note.
M^r King was afraid we sh^d shorten the term too much.
M^r Gov^r Morris was for a short term, in order to avoid impeach^{ts} which w^d be otherwise necessary.
M^r Butler was ag^{st} the frequency of the elections. Geo. & S. C. were too distant to send electors often.
M^r Elseworth was for 6 years. If the elections be too frequent, the Executive will not be firm eno. There must be duties which will make him unpopular for the moment. There will be _outs_ as well as _ins_. His administration therefore will be attacked and misrepresented.
M^r Williamson was for 6 years. The expence will be considerable & ought not to be unnecessarily repeated. If the Elections are too frequent, the best men will not undertake the service and those of an inferior character will be liable to be corrupted.
On the question for 6 years?
Mas. ay. Con^t ay. N. J. ay. P^a ay. Del. no. M^d ay. V^a ay. N. C. ay. S. C. ay. Geo. ay.
Adjourned
FRIDAY JULY 20. IN CONVENTION.
The postponed Ratio of Electors for appointing the Executive; to wit 1 for each State whose inhabitants do not exceed 100.000. &c. being taken up.
M^r Madison observed that this would make in time all or nearly all the States equal. Since there were few that would not in time contain the number of inhabitants intitling them to 3 Electors; that this ratio ought either to be made temporary, or so varied as that it would adjust itself to the growing population of the States.
M^r Gerry moved that in the _1^{st} instance_ the Electors should be allotted to the States in the following ratio: to N. H. 1. Mass. 3. R. I. 1. Con^t 2. N. Y. 2. N. J. 2. P^a 3. Del. 1. M^d 2. V^a 3. N. C. 2. S. C. 2. Geo. 1.
On the question to postpone in order to take up this motion of M^r Gerry. It passed in the affirmative
Mass. ay. Con^t no. N. J. no. P^a ay. Del. no. M^d no. V^a ay. N. C. ay. S. C. ay. Geo. ay.
M^r Elseworth moved that 2 Electors be allotted to N. H. Some rule ought to be pursued; and N. H. has more than 100,000 inhabitants. He thought it would be proper also to allot 2. to Georgia.
M^r Broom & M^r Martin moved to postpone M^r Gerry's allotment of Electors, leaving a fit ratio to be reported by the Committee to be appointed for detailing the Resolutions.
On this motion,
Mass. no. C^t no. N. J. ay. P^a no. Del. ay. M^d ay. V^a no. N. C. no. S. C. no. Geo. no.
M^r Houston 2^{ded} the motion of M^r Elseworth to add another Elector to N. H. & Georgia. On the Question;
Mass. no. C^t ay. N. J. no. P^a no. Del. no. M^d no. V^a no. N. C. no. S. C. ay. Geo. ay.
M^r Williamson moved as an amendment to M^r Gerry's allotment of Electors in the 1^{st} instance that in future elections of the Nat^l Executive, the number of Electors to be appointed by the several States shall be regulated by their respective numbers of Representatives in the 1^{st} branch pursuing as nearly as may be the present proportions.
On question on M^r Gerry's ratio of Electors
Mass. ay. C^t ay. N. J. no. P^a ay. Del. no. M^d no. V^a ay. N. C. ay. S. C. ay. Geo. no.
"to be removable on impeachment and conviction for malpractice or neglect of duty," see Resol. 9.
M^r Pinkney & M^r Gov^r Morris moved to strike out this part of the Resolution. M^r P. observ^d he ought not to be impeachable whilst in office.
M^r Davie. If he be not impeachable whilst in office, he will spare no efforts or means whatever to get himself re-elected. He considered this as an essential security for the good behaviour of the Executive.
M^r Wilson concurred in the necessity of making the Executive impeachable whilst in office.
M^r Gov^r Morris. He can do no criminal act without Coadjutors who may be punished. In case he should be re-elected, that will be a sufficient proof of his innocence. Besides who is to impeach? Is the impeachment to suspend his functions. If it is not the mischief will go on. If it is the impeachment will be nearly equivalent to a displacement, and will render the Executive dependent on those who are to impeach.
Col. Mason. No point is of more importance than that the right of impeachment should be continued. Shall any man be above Justice? Above all shall that man be above it, who can commit the most extensive injustice? When great crimes were committed he was for punishing the principal as well as the Coadjutors. There had been much debate & difficulty as to the mode of chusing the Executive. He approved of that which had been adopted at first, namely of referring the appointment to the Nat^l Legislature. One objection ag^{st} Electors was the danger of their being corrupted by the Candidates, & this furnished a peculiar reason in favor of impeachments whilst in office. Shall the man who has practised corruption & by that means procured his appointment in the first instance, be suffered to escape punishment, by repeating his guilt?
Doc^r Franklin was for retaining the clause as favorable to the Executive. History furnishes one example only of a first Magistrate being formally brought to public Justice. Every body cried out ag^{st} this as unconstitutional. What was the practice before this in cases where the Chief Magistrate rendered himself obnoxious? Why recourse was had to assassination in w^{ch} he was not only deprived of his life but of the opportunity of vindicating his character. It w^d be the best way therefore to provide in the Constitution for the regular punishment of the Executive where his misconduct should deserve it, and for his honorable acquittal where he should be unjustly accused.
M^r Gov^r Morris admits corruption & some few other offences to be such as ought to be impeachable; but thought the cases ought to be enumerated & defined.
M^r Madison thought it indispensable that some provision should be made for defending the Community ag^{st} the incapacity, negligence or perfidy of the chief Magistrate. The limitation of the period of his service was not a sufficient security. He might lose his capacity after his appointment. He might pervert his administration into a scheme of peculation or oppression. He might betray his trust to foreign powers. The case of the Executive Magistracy was very distinguishable, from that of the Legislature or any other public body, holding offices of limited duration. It could not be presumed that all or even a majority of the members of an Assembly would either lose their capacity for discharging, or be bribed to betray, their trust. Besides the restraints of their personal integrity & honor, the difficulty of acting in concert for purposes of corruption was a security to the Public. And if one or a few members only should be seduced, the soundness of the remaining members, would maintain the integrity and fidelity of the body. In the case of the Executive Magistracy which was to be administered by a single man, loss of capacity or corruption was more within the compass of probable events, and either of them might be fatal to the Republic.
M^r Pinkney did not see the necessity of impeachments. He was sure they ought not to issue from the Legislature who would in that case hold them as a rod over the Executive and by that means effectually destroy his independence. His revisionary power in particular would be rendered altogether insignificant.
M^r Gerry urged the necessity of impeachments. A good Magistrate will not fear them. A bad one ought to be kept in fear of them. He hoped the maxim would never be adopted here that the chief magistrate could do no wrong.
M^r King expressed his apprehensions that an extreme caution in favor of liberty might enervate the Government we were forming. He wished the House to recur to the primitive axiom that the three great departments of Gov^{ts} should be separate & independent: that the Executive & Judiciary should be so as well as the Legislative: that the Executive should be so equally with the Judiciary. Would this be the case, if the Executive should be impeachable? It had been said that the Judiciary would be impeachable. But it should have been remembered at the same time that the Judiciary hold their places not for a limited time, but during good behaviour. It is necessary therefore that a form should be established for trying misbehaviour. Was the Executive to hold his place during good behaviour? The Executive was to hold his place for a limited term like the members of the Legislature. Like them, particularly the Senate whose members would continue in appointm^t the same term of 6 years he would periodically be tried for his behaviour by his electors, who would continue or discontinue him in trust according to the manner in which he had discharged it. Like them therefore, he ought to be subject to no intermediate trial, by impeachment. He ought not to be impeachable unless he held his office during good behavior, a tenure which would be most agreeable to him; provided an independent and effectual forum could be devised. But under no circumstances ought he to be impeachable by the Legislature. This would be destructive of his independence and of the principles of the Constitution. He relied on the vigor of the Executive as a great security for the public liberties.
M^r Randolph. The propriety of impeachments was a favorite principle with him. Guilt wherever found ought to be punished. The Executive will have great opportunitys of abusing his power; particularly in time of war when the military force, and in some respects the Public money will be in his hands. Should no regular punishment be provided, it will be irregularly inflicted by tumults & insurrections. He is aware of the necessity of proceeding with a cautious hand, and of excluding as much as possible the influence of the Legislature from the business. He suggested for consideration an idea which had fallen (from Col. Hamilton) of composing a forum out of the Judges belonging to the States: and even of requiring some preliminary inquest whether just ground of impeachment existed.
Doct^r Franklin mentioned the case of the Prince of Orange during the late war. An agreement was made between France & Holland; by which their two fleets were to unite at a certain time & place. The Dutch fleet did not appear. Every body began to wonder at it. At length it was suspected that the Statholder was at the bottom of the matter. This suspicion prevailed more & more. Yet as he could not be impeached and no regular examination took place, he remained in his office, and strengthening his own party, as the party opposed to him became formidable, he gave birth to the most violent animosities & contentions. Had he been impeachable, a regular & peaceable enquiry would have taken place and he would if guilty have been duly punished, if innocent restored to the confidence of the Public.
M^r King remarked that the case of the Statholder was not applicable. He held his place for life, and was not periodically elected. In the former case impeachments are proper to secure good behaviour. In the latter they are unnecessary; the periodical responsibility to the electors being an equivalent security.
M^r Wilson observed that if the idea were to be pursued, the Senators who are to hold their places during the same term with the Executive, ought to be subject to impeachment & removal.
M^r Pinkney apprehended that some gentlemen reasoned on a supposition that the Executive was to have powers which would not be committed to him: He presumed that his powers would be so circumscribed as to render impeachments unnecessary.
M^r Gov^r Morris's opinion had been changed by the arguments used in the discussion. He was now sensible of the necessity of impeachments, if the Executive was to continue for any length of time in office. Our Executive was not like a Magistrate having a life interest, much less like one having an hereditary interest in his office. He may be bribed by a greater interest to betray his trust; and no one would say that we ought to expose ourselves to the danger of seeing the first Magistrate in foreign pay, without being able to guard ag^{st} it by displacing him. One would think the King of England well secured ag^{st} bribery. He has as it were a fee simple in the whole Kingdom. Yet Charles II. was bribed by Louis XIV. The Executive ought therefore to be impeachable for treachery: Corrupting his electors, and incapacity were other causes of impeachment. For the latter he should be punished not as a man, but as an officer, and punished only by degradation from his office. This Magistrate is not the King but the prime Minister. The people are the King. When we make him amenable to Justice however we should take care to provide some mode that will not make him dependent on the Legislature.
It was moved & 2^{ded} to postpone the question of impeachments which was negatived, Mas. & S. Carolina only being ay.
On y^e Question, Shall the Executive be removable on impeachments &c.?
Mass. no. C^t ay. N. J. ay. P^a ay. Del. ay. M^d ay. V^a ay. N. C. ay. S. C. no. Geo. ay.
"Executive to receive fixed compensation." Agreed to nem. con.
"to be paid out of the national Treasury" agreed to, N. Jersey only in the negative.
M^r Gerry & Gov^r Morris moved that the Electors of the Executive shall not be members of the Nat^l Legislature, nor officers of the U. States, nor shall the Electors themselves be eligible to the supreme magistracy. Agreed to nem. con.
Doc^r McClurg[4] asked whether it would not be necessary, before a Committee for detailing the Constitution should be appointed, to determine on the means by which the Executive, is to carry the laws into effect, and to resist combinations ag^{st} them. Is he to have a military force for the purpose, or to have the command of the Militia, the only existing force that can be applied to that use? As the Resolutions now stand the Committee will have no determinate directions on this great point.
[4] "Mr. McClurg is a learned physician, but having never appeared before in public life his character as a politician is not sufficiently known. He attempted once or twice to speak, but with no great success. It is certain that he has a foundation of learning, on which, if he pleases, he may erect a character of high renown. The Doctor is about 38 years of age, a Gentleman of great respectability, and of a fair and unblemished character."--Pierce's Notes, _Am. Hist. Rev._, iii., 332.
M^r Wilson thought that some additional directions to the Committee w^d be necessary.
M^r King. The Committee are to provide for the end. Their discretionary power to provide for the means is involved according to an established axiom.
Adjourned.
SATURDAY JULY 21 IN CONVENTION
M^r Williamson moved that the Electors of the Executive should be paid out of the National Treasury for the Service to be performed by them. Justice required this: as it was a national service they were to render. The motion was agreed to Nem. Con.
M^r Wilson moved as an amendment to Resol^n 10. that the supreme Nat^l Judiciary should be associated with the Executive in the Revisionary power. This proposition had been before made and failed: but he was so confirmed by reflection in the opinion of its utility, that he thought it incumbent on him to make another effort: The Judiciary ought to have an opportunity of remonstrating ag^{st} projected encroachments on the people as well as on themselves. It had been said that the Judges, as expositors of the Laws would have an opportunity of defending their constitutional rights. There was weight in this observation; but this power of the Judges did not go far enough. Laws may be unjust, may be unwise, may be dangerous, may be destructive; and yet may not be so unconstitutional as to justify the Judges in refusing to give them effect. Let them have a share in the Revisionary power, and they will have an opportunity of taking notice of these characters of a law, and of counteracting, by the weight of their opinions the improper views of the Legislature.--M^r Madison 2^{ded} the motion.
M^r Ghorum did not see the advantage of employing the Judges in this way. As Judges they are not to be presumed to possess any peculiar knowledge of the mere policy of public measures. Nor can it be necessary as a security for their constitutional rights. The Judges in England have no such additional provision for their defence, yet their jurisdiction is not invaded. He thought it would be best to let the Executive alone be responsible, and at most to authorize him to call on Judges for their opinions.
M^r Elseworth approved heartily of the motion. The aid of the Judges will give more wisdom & firmness to the Executive. They will possess a systematic and accurate knowledge of the Laws, which the Executive cannot be expected always to possess. The Law of Nations also will frequently come into question. Of this the Judges alone will have competent information.
M^r Madison considered the object of the motion as of great importance to the meditated Constitution. It would be useful to the Judiciary departm^t by giving it an additional opportunity of defending itself ag^{st} Legislative encroachments: It would be useful to the Executive, by inspiring additional confidence & firmness in exerting the revisionary power: It would be useful to the Legislature by the valuable assistance it would give in preserving a consistency, conciseness, perspicuity & technical propriety in the laws, qualities peculiarly necessary; & yet shamefully wanting in our republican Codes. It would moreover be useful to the Community at large as an additional check ag^{st} a pursuit of those unwise & unjust measures which constituted so great a portion of our calamities. If any solid objection could be urged ag^{st} the motion, it must be on the supposition that it tended to give too much strength either to the Executive or Judiciary. He did not think there was the least ground for this apprehension. It was much more to be apprehended that notwithstanding this co-operation of the two departments, the Legislature would still be an overmatch for them. Experience in all the States had evinced a powerful tendency in the Legislature to absorb all power into its vortex. This was the real source of danger to the American Constitutions; & suggested the necessity of giving every defensive authority to the other departments that was consistent with Republican principles.
M^r Mason said he had always been a friend to this provision. It would give a confidence to the Executive, which he would not otherwise have, and without which the Revisionary power would be of little avail.
M^r Gerry did not expect to see this point which had undergone full discussion, again revived. The object he conceived of the Revisionary power was merely to secure the Executive department ag^{st} legislative encroachment. The Executive therefore who will best know and be ready to defend his rights ought alone to have the defence of them. The motion was liable to strong objections. It was combining & mixing together the Legislative & the other departments. It was establishing an improper coalition between the Executive & Judiciary departments. It was making statesmen of the Judges; and setting them up as the guardians of the Rights of the people. He relied for his part on the Representatives of the people as the guardians of their Rights & interests. It was making the Expositors of the Laws, the Legislators which ought never to be done. A better expedient for correcting the laws, would be to appoint as had been done in Pen^a, a person or persons of proper skill, to draw bills for the Legislature.
M^r Strong thought with M^r Gerry that the power of making ought to be kept distinct from that of expounding, the laws. No maxim was better established. The Judges in exercising the function of expositors might be influenced by the part they had taken in framing the laws.
M^r Gov^r Morris. Some check being necessary on the Legislature, the question is in what hands it should be lodged. On one side it was contended that the Executive alone ought to exercise it. He did not think that an Executive appointed for 6 years, and impeachable whilst in office w^d be a very effectual check. On the other side it was urged that he ought to be reinforced by the Judiciary department. Ag^{st} this it was objected that Expositors of laws ought to have no hand in making them, and arguments in favor of this had been drawn from England. What weight was due to them might be easily determined by an attention to facts. The truth was that the Judges in England had a great share in y^e Legislation. They are consulted in difficult & doubtful cases. They may be & some of them are members of the Legislature. They are or may be members of the privy Council, and can there advise the Executive as they will do with us if the motion succeeds. The influence the English Judges may have in the latter capacity in strengthening the Executive check can not be ascertained, as the King by his influence in a manner dictates the laws. There is one difference in the two cases however which disconcerts all reasoning from the British to our proposed Constitution. The British Executive has so great an interest in his prerogatives and such powerful means of defending them that he will never yield any part of them. The interest of our Executive is so inconsiderable & so transitory, and his means of defending it so feeble, that there is the justest ground to fear his want of firmness in resisting incroachments. He was extremely apprehensive that the auxiliary firmness & weight of the Judiciary would not supply the deficiency. He concurred in thinking the public liberty in greater danger from Legislative usurpations than from any other source. It had been said that the Legislature ought to be relied on as the proper Guardians of liberty. The answer was short and conclusive. Either bad laws will be pushed or not. On the latter supposition no check will be wanted. On the former a strong check will be necessary: and this is the proper supposition. Emissions of paper money, largesses to the people--a remission of debts and similar measures, will at some times be popular, and will be pushed for that reason. At other times such measures will coincide with the interests of the Legislature themselves, & that will be a reason not less cogent for pushing them. It may be thought that the people will not be deluded and misled in the latter case. But experience teaches another lesson. The press is indeed a great means of diminishing the evil, yet it is found to be unable to prevent it altogether.
M^r L. Martin, considered the association of the Judges with the Executive as a dangerous innovation; as well as one which could not produce the particular advantage expected from it. A knowledge of Mankind, and of Legislative affairs cannot be presumed to belong in a higher degree to the Judges than to the Legislature. And as to the Constitutionality of laws, that point will come before the Judges in their proper official character. In this character they have a negative on the laws. Join them with the Executive in the Revision and they will have a double negative. It is necessary that the Supreme Judiciary should have the confidence of the people. This will soon be lost, if they are employed in the task of remonstrating ag^{st} popular measures of the Legislature. Besides in what mode & proportion are they to vote in the Council of Revision?
M^r Madison could not discover in the proposed association of the Judges with the Executive in the Revisionary check on the Legislature any violation of the maxim which requires the great departments of power to be kept separate & distinct. On the contrary he thought it an auxiliary precaution in favor of the maxim. If a Constitutional discrimination of the departments on paper were a sufficient security to each ag^{st} encroachments of the others, all further provisions would indeed be superfluous. But experience had taught us a distrust of that security; and that it is necessary to introduce such a balance of powers and interests as will guarantee the provisions on paper. Instead therefore of contenting ourselves with laying down the Theory in the Constitution that each department ought to be separate & distinct, it was proposed to add a defensive power to each which should maintain the Theory in practice. In so doing we did not blend the departments together. We erected effectual barriers for keeping them separate. The most regular example of this theory was in the British Constitution. Yet it was not only the practice there to admit the Judges to a seat in the legislature, and in the Executive Councils, and to submit to their previous examination all laws of a certain description, but it was a part of their Constitution that the Executive might negative any law whatever; a part of _their_ Constitution which had been universally regarded as calculated for the preservation of the whole. The objection ag^{st} a union of the Judiciary & Executive branches in the revision of the laws, had either no foundation or was not carried far enough. If such a Union was an improper mixture of powers, or such a Judiciary check on the laws, was inconsistent with the Theory of a free Constitution, it was equally so to admit the Executive to any participation in the making of laws; and the revisionary plan ought to be discarded altogether.
Col. Mason observed that the defence of the Executive was not the sole object of the Revisionary power. He expected even greater advantages from it. Notwithstanding the precautions taken in the Constitution of the Legislature, it would still so much resemble that of the individual States, that it must be expected frequently to pass unjust and pernicious laws. This restraining power was therefore essentially necessary. It would have the effect not only of hindering the final passage of such laws; but would discourage demagogues from attempting to get them passed. It has been said (by M^r L. Martin) that if the Judges were joined in this check on the laws, they would have a double negative, since in their expository capacity of Judges they would have one negative. He would reply that in this capacity they could impede in one case only, the operation of laws. They could declare an unconstitutional law void. But with regard to every law however unjust oppressive or pernicious, which did not come plainly under this description, they would be under the necessity as Judges to give it a free course. He wished the further use to be made of the Judges, of giving aid in preventing every improper law. Their aid will be the more valuable as they are in the habit and practice of considering laws in their true principles, and in all their consequences.
M^r Wilson. The separation of the departments does not require that they should have separate objects but that they should act separately tho' on the same objects. It is necessary that the two branches of the Legislature should be separate and distinct, yet they are both to act precisely on the same object.
M^r Gerry had rather give the Executive an absolute negative for its own defence than thus to blend together the Judiciary & Executive departments. It will bind them together in an offensive and defensive alliance ag^{st} the Legislature, and render the latter unwilling to enter into a contest with them.
M^r Gov^r Morris was surprised that any defensive provision for securing the effectual separation of the departments should be considered as an improper mixture of them. Suppose that the three powers, were to be vested in three persons, by compact among themselves; that one was to have the power of making, another of executing, and a third of judging, the laws. Would it not be very natural for the two latter after having settled the partition on paper, to observe, and would not candor oblige the former to admit, that as a security ag^{st} legislative acts of the former which might easily be so framed as to undermine the powers of the two others, the two others ought to be armed with a veto for their own defence, or at least to have an opportunity of stating their objections ag^{st} acts of encroachment? And would any one pretend that such a right tended to blend & confound powers that ought to be separately exercised? As well might it be said that If three neighbours had three distinct farms, a right in each to defend his farm ag^{st} his neighbours, tended to blend the farms together.
M^r Ghorum. All agree that a check on the Legislature is necessary. But there are two objections ag^{st} admitting the Judges to share in it which no observations on the other side seem to obviate, the 1^{st} is that the Judges ought to carry into the exposition of the laws no prepossessions with regard to them. 2^d that as the Judges will outnumber the Executive, the revisionary check would be thrown entirely out of the Executive hands, and instead of enabling him to defend himself, would enable the Judges to sacrifice him.
M^r Wilson. The proposition is certainly not liable to all the objections which have been urged ag^{st} it. According (to M^r Gerry) it will unite the Executive & Judiciary in an offensive & defensive alliance ag^{st} the Legislature. According to M^r Ghorum it will lead to a subversion of the Executive by the Judiciary influence. To the first gentleman the answer was obvious: that the joint weight of the two departments was necessary to balance the single weight of the Legislature. To the 1^{st} objection stated by the other Gentleman it might be answered that supposing the prepossession to mix itself with the exposition, the evil would be overbalanced by the advantages promised by the expedient. To the 2^d objection, that such a rule of voting might be provided in the detail as would guard ag^{st} it.
M^r Rutlidge thought the Judges of all men the most unfit to be concerned in the revisionary Council. The Judges ought never to give their opinion on a law till it comes before them. He thought it equally unnecessary. The Executive could advise with the officers of State, as of war, finance &c. and avail himself of their information & opinions.
On Question on M^r Wilson's motion for joining the Judiciary in the Revision of laws it passed in the negative--
Mass. no. Con^t ay. N. J. not present. P^a div^d. Del. no. M^d ay. V^a ay. N. C. no. S. C. no. Geo. div^d.
Resol. 10, giving the Ex a qualified veto, without the amend^t was then ag^d to nem. con.
The motion made by M^r Madison July 18. & then postponed, "that the Judges sh^d be nominated by the Executive & such nominations become appointments unless disagreed to by 2/3 of the 2^d branch of the Legislature," was now resumed.
M^r Madison stated as his reasons for the motion, 1. that it secured the responsibility of the Executive who would in general be more capable & likely to select fit characters than the Legislature, or even the 2^d b. of it, who might hide their selfish motives under the number concerned in the appointment. 2. that in case of any flagrant partiality or error, in the nomination it might be fairly presumed that 2/3 of the 2^d branch would join in putting a negative on it. 3. that as the 2^d b. was very differently constituted when the appointment of the Judges was formerly referred to it, and was now to be composed of equal votes from all the States, the principle of compromise which had prevailed in other instances required in this that there sh^d be a concurrence of two authorities, in one of which the people, in the other the States should be represented. The Executive Magistrate w^d be considered as a national officer, acting for and equally sympathizing with every part of the U. States. If the 2^d branch alone should have this power, the Judges might be appointed by a minority of the people, tho' by a majority, of the States, which could not be justified on any principle as their proceedings were to relate to the people, rather than to the States: and as it would moreover throw the appointments entirely into the hands of y^e Northern States, a perpetual ground of jealousy & discontent would be furnished to the Southern States.
M^r Pinkney was for placing the appointm^t in the 2^d b. exclusively. The Executive will possess neither the requisite knowledge of characters, nor confidence of the people for so high a trust.
M^r Randolph w^d have preferred the mode of appointm^t proposed formerly by M^r Ghorum, as adopted in the Constitution of Mass^{ts} but thought the motion depending so great an improvement of the clause as it stands, that he anxiously wished it success. He laid great stress on the responsibility of the Executive as a security for fit appointments. Appointments by the Legislatures have generally resulted from cabal, from personal regard, or some other consideration than a title derived from the proper qualifications. The same inconveniences will proportionally prevail if the appointments be referred to either branch of the Legislature or to any other authority administered by a number of individuals.
M^r Elseworth would prefer a negative in the Executive on a nomination by the 2^d branch, the negative to be overruled by a concurrence of 2/3 of the 2^d b. to the mode proposed by the motion; but preferred an absolute appointment by the 2^d branch to either. The Executive will be regarded by the people with a jealous eye. Every power for augmenting unnecessarily his influence will be disliked. As he will be stationary it was not to be supposed he could have a better knowledge of characters. He will be more open to caresses & intrigues than the Senate. The right to supersede his nomination will be ideal only. A nomination under such circumstances will be equivalent to an appointment.
M^r Gov^r Morris supported the motion. 1. The States in their corporate capacity will frequently have an interest staked on the determination of the Judges. As in the Senate the States are to vote the Judges ought not to be appointed by the Senate. Next to the impropriety of being Judge in one's own cause, is the appointment of the Judge. 2. It had been said the Executive would be uninformed of characters. The reverse was y^e truth. The Senate will be so. They must take the character of candidates from the flattering pictures drawn by their friends. The Executive in the necessary intercourse with every part of the U. S. required by the nature of his administration, will or may have the best possible information. 3. It had been said that a jealousy would be entertained of the Executive. If the Executive can be safely trusted with the command of the army, there cannot surely be any reasonable ground of Jealousy in the present case. He added that if the Objections ag^{st} an appointment of the Executive by the Legislature, had the weight that had been allowed there must be some weight in the objection to an appointment of the Judges by the Legislature or by any part of it.
M^r Gerry. The appointment of the Judges like every other part of the Constitution sh^d be so modelled as to give satisfaction both to the people and to the States. The mode under consideration will give satisfaction to neither. He could not conceive that the Executive could be as well informed of characters throughout the Union, as the Senate. It appeared to him also a strong objection that 2/3 of the Senate were required to reject a nomination of the Executive. The Senate would be constituted in the same manner as Congress. And the appointments of Congress have been generally good.
M^r Madison, observed that he was not anxious that 2/3 should be necessary to disagree to a nomination. He had given this form to his motion chiefly to vary it the more clearly from one which had just been rejected. He was content to obviate the objection last made, and accordingly so varied the motion as to let a majority reject.
Col. Mason found it his duty to differ from his colleagues in their opinions & reasonings on this subject. Notwithstanding the form of the proposition by which the appointment seemed to be divided between the Executive & Senate, the appointment was Substantially vested in the former alone. The false complaisance which usually prevails in such cases will prevent a disagreement to the first nominations. He considered the appointment by the Executive as a dangerous prerogative. It might even give him an influence over the Judiciary department itself. He did not think the difference of interest between the Northern and Southern States could be properly brought into this argument. It would operate & require some precautions in the case of regulating navigation, commerce & imposts; but he could not see that it had any connection with the Judiciary department.
On the question, the motion now being "that the executive should nominate & such nominations should become appointments unless disagreed to by the Senate"
Mass. ay. C^t no. P^a ay. Del. no. M^d no. V^a ay. N. C. no. S. C. no. Geo. no.
On question for agreeing to the clause as it stands by which the Judges are to be appointed by the 2^d branch
Mass. no. C^t ay. P^a no. Del. ay. M^d ay. V^a no. N. C. ay. S. C. ay. Geo. ay.
Adjourned.
MONDAY JULY 23. IN CONVENTION
M^r John Langdon & M^r Nicholas Gilman[5] from N. Hampshire,[6] took their seats.
[5] M^r Gilman is modest, genteel, and sensible. There is nothing brilliant or striking in his character, but there is something respectable and worthy in the man.--About 30 years of age."--Pierce's Notes, _Am. Hist. Rev._, iii., 325.
He did not speak in the convention.
[6] The act appointing deputies to the convention was not passed by the New Hampshire Legislature till June 27, 1787.--_Journal of Federal Convention_, 17.
Resol:^n 17. that provision ought to be made for future amendments of the Articles of Union, agreed to, nem. con.
Resol^n 18. "requiring the Legis: Execut: & Jud^y of the States to be bound by oath to support the articles of Union," taken into consideration.
M^r Williamson suggests that a reciprocal oath should be required from the National officers, to support the Governments of the States.
M^r Gerry moved to insert as an amendm^t that the oath of the officers of the National Government also should extend to the support of the Nat^l Gov^t which was agreed to nem. con.
M^r Wilson said he was never fond of oaths, considering them as a left handed security only. A good Gov^t did not need them, and a bad one could not or ought not to be supported. He was afraid they might too much trammel the members of the existing Gov^t in case future alterations should be necessary; and prove an obstacle to Resol: 17. just ag^d to.
M^r Ghorum did not know that oaths would be of much use; but could see no inconsistency between them and the 17. Resol. or any regular amend^t of the Constitution. The oath could only require fidelity to the existing Constitution. A constitutional alteration of the Constitution, could never be regarded as a breach of the Constitution, or of any oath to support it.
M^r Gerry thought with M^r Ghorum there could be no shadow of inconsistency in the case. Nor could he see any other harm that could result from the Resolution. On the other side he thought one good effect would be produced by it. Hitherto the officers of the two Governments had considered them as distinct from, and not as parts of the General System, & had in all cases of interference given a preference to the State Gov^{ts}. The proposed oath will cure that error.
The Resol^n (18) was agreed to nem. con.
Resol: 19. referring the new Constitution to Assemblies to be chosen by the people for the express purpose of ratifying it was next taken into consideration.
M^r Elseworth moved that it be referred to the Legislatures of the States for ratification. M^r Patterson 2^{ded} the motion.
Col. Mason considered a reference of the plan to the authority of the people as one of the most important and essential of the Resolutions. The Legislatures have no power to ratify it. They are the mere creatures of the State Constitutions, and cannot be greater than their creators. And he knew of no power in any of the Constitutions, he knew there was no power in some of them, that could be competent to this object. Whither then must we resort? To the people with whom all power remains that has not been given up in the Constitutions derived from them. It was of great moment he observed that this doctrine should be cherished as the basis of free Government. Another strong reason was that admitting the Legislatures to have a competent authority, it would be wrong to refer the plan to them, because succeeding Legislatures having equal authority could undo the acts of their predecessors; and the National Gov^t would stand in each State on the weak and tottering foundation of an Act of Assembly. There was a remaining consideration of some weight. In some of the States the Gov^{ts} were not derived from the clear & undisputed authority of the people. This was the case in Virginia. Some of the best & wisest citizens considered the Constitution as established by an assumed authority. A national Constitution derived from such a source would be exposed to the severest criticisms.
M^r Randolph. One idea has pervaded all our proceedings, to wit, that opposition as well from the States as from individuals, will be made to the System to be proposed. Will it not then be highly imprudent, to furnish any unnecessary pretext by the mode of ratifying it. Added to other objections ag^{st} a ratification by the Legislative authority only, it may be remarked that there have been instances in which the authority of the Common law has been set up in particular States ag^{st} that of the Confederation which has had no higher sanction than Legislative ratification.--Whose opposition will be most likely to be excited ag^{st} the System? That of the local demagogues who will be degraded by it from the importance they now hold. These will spare no efforts to impede that progress in the popular mind which will be necessary to the adoption of the plan, and which every member will find to have taken place in his own, if he will compare his present opinions with those brought with him into the Convention. It is of great importance therefore that the consideration of this subject should be transferred from the Legislatures where this class of men, have their full influence to a field in which their efforts can be less mischievous. It is moreover worthy of consideration that some of the States are averse to any change in their Constitution, and will not take the requisite steps, unless expressly called upon to refer the question to the people.
M^r Gerry. The arguments of Col. Mason & M^r Randolph prove too much. They prove an unconstitutionality in the present federal system & even in some of the State Gov^{ts}. Inferences drawn from such a source must be inadmissible. Both the State Gov^{ts} & the federal Gov^t have been too long acquiesced in, to be now shaken. He considered the Confederation to be paramount to any State Constitution. The last article of it authorizing alterations must consequently be so as well as the others, and every thing done in pursuance of the article must have the same high authority with the article. Great confusion he was confident would result from a recurrence to the people. They would never agree on any thing. He could not see any ground to suppose that the people will do what their rulers will not. The rulers will either conform to, or influence the sense of the people.
M^r Ghorum was ag^{st} referring the plan to the Legislatures. 1. Men chosen by the people for the particular purpose, will discuss the subject more candidly than members of the Legislature who are to lose the power which is to be given up to the Gen^l Gov^t. 2. Some of the Legislatures are composed of several branches. It will consequently be more difficult in these cases to get the plan through the Legislatures, than thro' a Convention. 3. in the States many of the ablest men are excluded from the Legislatures, but may be elected into a convention. Among these may be ranked many of the Clergy who are generally friends to good Government. Their services were found to be valuable in the formation & establishment of the Constitution of Massach^{ts}. 4. the Legislatures will be interrupted with a variety of little business, by artfully pressing which designing men will find means to delay from year to year, if not to frustrate altogether the national system. 5. If the last art: of the Confederation is to be pursued the unanimous concurrence of the States will be necessary. But will any one say, that all the States are to suffer themselves to be ruined, if Rho. Island should persist in her opposition to general measures. Some other States might also tread in her steps. The present advantage which N. York seems to be so much attached to, of taxing her neighbours by the regulation of her trade, makes it very probable, that she will be of the number. It would therefore deserve serious consideration whether provision ought not to be made for giving effect to the System without waiting for the unanimous concurrence of the States.
M^r Elseworth. If there be any Legislatures who should find themselves incompetent to the ratification, he should be content to let them advise with their constituents and pursue such a mode as w^d be competent. He thought more was to be expected from the Legislatures than from the people. The prevailing wish of the people in the Eastern States is to get rid of the public debt; and the idea of strengthening the Nat^l Gov^t carries with it that of strengthening the public debt. It was said by Col. Mason 1. that the Legislatures have no authority in this case. 2. that their successors having equal authority could rescind their acts. As to the 2^d point he could not admit it to be well founded. An Act to which the States by their Legislatures, make themselves parties, becomes a compact from which no one of the parties can recede of itself. As to the 1^{st} point, he observed that a new sett of ideas seemed to have crept in since the articles of Confederation were established. Conventions of the people, or with power derived expressly from the people, were not then thought of. The Legislatures were considered as competent. Their ratification has been acquiesced in without complaint. To whom have Cong^s applied on subsequent occasions for further powers? To the Legislatures; not to the people. The fact is that we exist at present, and we need not enquire how, as a federal Society, united by a charter one article of which is that alterations therein may be made by the Legislative authority of the States. It has been said that if the confederation is to be observed, the States must _unanimously_ concur in the proposed innovations. He would answer that if such were the urgency & necessity of our situation as to warrant a new compact among a part of the States, founded on the consent of the people; the same pleas would be equally valid in favor of a partial compact, founded on the consent of the Legislatures.
M^r Williamson thought the Resol:^n (19) so expressed as that it might be submitted either to the Legislatures or to Conventions recommended by the Legislatures. He observed that some Legislatures were evidently unauthorized to ratify the system. He thought too that Conventions were to be preferred as more likely to be composed of the ablest men in the States.
M^r Gov^r Morris considered the inference of M^r Elseworth from the plea of necessity as applied to the establishment of a new System on y^e consent of the people of a part of the States, in favor of a like establishm^t on the consent of a part of the Legislatures, as a non sequitur. If the Confederation is to be pursued no alteration can be made without the unanimous consent of the Legislatures: Legislative alterations not conformable to the federal compact, would clearly not be valid. The Judges would consider them as null & void. Whereas in case of an appeal to the people of the U. S., the supreme authority, the federal compact may be altered by a _majority of them_; in like manner as the Constitution of a particular State may be altered by a majority of the people of the State. The amendm^t moved by M^r Elseworth erroneously supposes that we are proceeding on the basis of the Confederation. This Convention is unknown to the Confederation.
M^r King thought with M^r Elseworth that the Legislatures had a competent authority, the acquiescence of the people of America in the Confederation, being equivalent to a formal ratification by the people. He thought with M^r E. also that the plea of necessity was as valid in the one case as the other. At the same time he preferred a reference to the authority of the people expressly delegated to Conventions, as the most certain means of obviating all disputes & doubts concerning the legitimacy of the new Constitution; as well as the most likely means of drawing forth the best men in the States to decide on it. He remarked that among other objections made in the State of N. York to granting powers to Cong^s one had been that such powers as would operate within the State, could not be reconciled to the Constitution; and therefore were not grantible by the Legislative authority. He considered it as of some consequence also to get rid of the scruples which some members of the State Legislatures might derive from their oaths to support & maintain the existing Constitutions.
M^r Madison thought it clear that the Legislatures were incompetent to the proposed changes. These changes would make essential inroads on the State Constitutions, and it would be a novel & dangerous doctrine that a Legislature could change the constitution under which it held its existence. There might indeed be some Constitutions within the Union, which had given a power to the Legislature to concur in alterations of the federal Compact. But there were certainly some which had not; and in the case of these, a ratification must of necessity be obtained from the people. He considered the difference between a system founded on the Legislatures only, and one founded on the people, to be the true difference between a _league_ or _treaty_, and a _Constitution_. The former in point of _moral obligation_ might be as inviolable as the latter. In point of _political operation_, there were two important distinctions in favor of the latter. 1. A law violating a treaty ratified by a pre-existing law, might be respected by the Judges as a law, though an unwise or perfidious one. A law violating a constitution established by the people themselves, would be considered by the Judges as null & void. 2. The doctrine laid down by the law of Nations in the case of treaties is that a breach of any one article by any of the parties, frees the other parties from their engagements. In the case of a union of people under one Constitution, the nature of the pact has always been understood to exclude such an interpretation. Comparing the two modes in point of expediency he thought all the considerations which recommended this Convention in preference to Congress for proposing the reform were in favor of State Conventions in preference to the Legislatures for examining and adopting it.
On question on M^r Elseworth's motion to refer the plan to the Legislatures of the States
N. H. no. Mass. no. C^t ay. P^a no. Del. ay. M^d ay. V^a no. N. C. no. S. C. no. Geo. no.
M^r Gov^r Morris moved that the reference of the plan be made to one general Convention, chosen & authorized by the people to consider, _amend_, & establish the same.--Not seconded.
On question for agreeing to Resolution 19. touching the mode of Ratification as reported from the Committee of the Whole; viz, to refer the Const^n, after the approbation of Cong^s to assemblies chosen by the people;
N. H. ay. Mass. ay. C^t ay. P^a ay. Del. no. M^d ay. V^a ay. N. C. ay. S. C. ay. Geo. ay.
M^r Gov^r Morris & M^r King moved that the representation in the second branch consist of ---- members from each State, who shall vote per capita.
M^r Elseworth said he had always approved of voting in that mode.
M^r Gov^r Morris moved to fill the _blank_ with _three_. He wished the Senate to be a pretty numerous body. If two members only should be allowed to each State, and a majority be made a quorum, the power would be lodged in 14 members, which was too small a number for such a trust.
M^r Ghorum preferred two to three members for the blank. A small number was most convenient for deciding on peace & war &c. which he expected would be vested in the 2^d branch. The number of States will also increase. Kentucky, Vermont, the Province of Mayne & Franklin will probably soon be added to the present number. He presumed also that some of the largest States would be divided. The strength of the General Gov^t will lie not in the largeness, but in the smallness of the States.
Col. Mason thought 3 from each State including new States would make the 2^d branch too numerous. Besides other objections, the additional expence ought always to form one, where it was not absolutely necessary.
M^r Williamson. If the number be too great, the distant States will not be on an equal footing with the nearer States. The latter can more easily send & support their ablest Citizens. He approved of the voting per capita.
On the question for filling the blank with "_three_"
N. H. no. Mass. no. Con^t no. P^a ay. Del. no. V^a no. N. C. no. S. C. no. Geo. no.
On question for filling it with "two." Agreed to nem. con.
M^r L Martin was opposed to voting per Capita, as departing from the idea of the _States_ being represented in the 2^d branch.
M^r Carroll,[7] was not struck with any particular objection ag^{st} the mode; but he did not wish so hastily to make so material an innovation.
[7] "Mr. Carrol is a Man of large fortune, and influence in his State. He possesses plain good sense, and is in the full confidence of his Countrymen. This Gentleman is about [blank] years of age."--Pierce's Notes, _Am. Hist. Rev._, iii., 330.
On the question on the whole motion viz. the 2^d b. to consist of 2 members from each State and to vote per Capita,
N. H. ay. Mass. ay. C^t ay. P^a ay. Del. ay. M^d no. V^a ay. N. C. ay. S. C. ay. Geo. ay.
M^r Houston[8] & M^r Spaight moved "that the appointment of the Executive by Electors chosen by the Legislatures of the States, be reconsidered." M^r Houston urged the extreme inconveniency & the considerable expence, of drawing together men from all the States for the single purpose of electing the Chief Magistrate.
[8] "Mr. Houston is an Attorney at Law, and has been Member of Congress for the State of Georgia. He is a Gentleman of Family, and was educated in England. As to his legal or political knowledge he has very little to boast of. Nature seems to have done more for his corporeal than mental powers. His Person is striking, but his mind very little improved with useful or elegant knowledge. He has none of the talents requisite for the Orator, but in public debate is confused and irregular. Mr. Houston is about 30 years of age of an amiable and sweet temper, and of good and honorable principles."--Pierce's Notes, _Am. Hist. Rev._, iii., 334.
On the question which was put without any debate
N. H. ay. Mass. ay. Ct. ay. P^a no. Del. ay. M^d no. Virg^a no. N. C. ay. S. C. ay. Geo. ay.
Ordered that tomorrow be assigned for the reconsideration, Con^t & Pen^a no--all the rest ay.
M^r Gerry moved that the proceedings of the Convention for the establishment of a Nat^l Gov^t (except the part relating to the Executive), be referred to a Committee to prepare & report a Constitution conformable thereto.
Gen^l Pinkney reminded the Convention that if the Committee should fail to insert some security to the Southern States ag^{st} an emancipation of slaves, and taxes on exports, he sh^d be bound by duty to his State to vote ag^{st} their Report. The app^t of a Com^e as moved by M^r Gerry. Ag^d to nem. con.
Shall the Com^e consist of 10 members one from each State pres^t--All the States were _no_, except Delaware, _ay_.
Shall it consist of 7. members
N. H. ay. Mas. ay. C^t ay. P^a no. Del. no. M^d ay. V^a no. N. C. no. S. C. ay. Geo. no.
The question being lost by an equal division of Votes.
It was agreed, nem-con- that the Committee consist of 5 members to be appointed tomorrow.
Adjourned.
TUESDAY JULY 24. IN CONVENTION
The appointment of the Executive by Electors reconsidered.
M^r Houston moved that he be appointed by the "Nat^l Legislature," instead of "Electors appointed by the State Legislatures" according to the last decision of the mode. He dwelt chiefly on the improbability, that capable men would undertake the service of Electors from the more distant States.
M^r Spaight seconded the motion.
M^r Gerry opposed it. He thought there was no ground to apprehend the danger urged by M^r Houston. The election of the Executive Magistrate will be considered as of vast importance and will create great earnestness. The best men, the Governours of the States will not hold it derogatory from their character to be the electors. If the motion should be agreed to, it will be necessary to make the Executive ineligible a 2^d time, in order to render him independent of the Legislature; which was an idea extremely repugnant to his way of thinking.
M^r Strong supposed that there would be no necessity, if the Executive should be appointed by the Legislature, to make him ineligible a 2^d time; as new elections of the Legislature will have intervened; and he will not depend for his 2^d appointment on the same sett of men as his first was rec^d from. It had been suggested that _gratitude_ for his past appointment w^d produce the same effect as dependence for his future appointment. He thought very differently. Besides this objection would lie ag^{st} the Electors who would be objects of gratitude as well as the Legislature. It was of great importance not to make the Gov^t too complex which would be the case if a new sett of men like the Electors should be introduced into it. He thought also that the first characters in the States would not feel sufficient motives to undertake the office of Electors.
M^r Williamson was for going back to the original ground; to elect the Executive for 7 years and render him ineligible a 2^d time. The proposed Electors would certainly not be men of the 1^{st} nor even of the 2^d grade in the States. These would all prefer a seat either in the Senate or the other branch of the Legislature. He did not like the Unity in the Executive. He had wished the Executive power to be lodged in three men taken from three districts into which the States should be divided. As the Executive is to have a kind of veto on the laws, and there is an essential difference of interests between the N. & S. States, particularly in the carrying trade, the power will be dangerous, if the Executive is to be taken from part of the Union, to the part from which he is not taken. The case is different here from what it is in England; where there is a sameness of interests throughout the Kingdom. Another objection ag^{st} a single Magistrate is that he will be an elective King, and will feel the spirit of one. He will spare no pains to keep himself in for life, and will then lay a train for the succession of his children. It was pretty certain he thought that we should at some time or other have a King; but he wished no precaution to be omitted that might postpone the event as long as possible.--Ineligibility a 2^d time appeared to him to be the best precaution. With this precaution he had no objection to a longer term than 7 years. He would go as far as 10 or 12 years.
M^r Gerry moved that the Legislatures of the States should vote by ballot for the Executive in the same proportions as it had been proposed they should chuse electors; and that in case a majority of the votes should not centre on the same person, the 1^{st} branch of the Nat^l Legislature should chuse two out of the 4 candidates having most votes, and out of these two, the 2^d branch should chuse the Executive.
M^r King seconded the motion--and on the Question to postpone in order to take it into consideration. The _noes_ were so predominant, that the States were not counted.
Question on M^r Houston's motion that the Executive be app^d by the Na^l Legislature.
N. H. ay. Mass. ay. C^t no. N. J. ay. P^a no. Del. ay. M^d no. V^a no. N. C. ay. S. C. ay. Geo. ay.
M^r L. Martin & M^r Gerry moved to re-instate the ineligibility of the Executive a 2^d time.
M^r Elseworth. With many this appears a natural consequence of his being elected by the Legislature. It was not the case with him. The Executive he thought should be reelected if his conduct proved him worthy of it. And he will be more likely to render himself, worthy of it if he be rewardable with it. The most eminent characters also, will be more willing to accept the trust under this condition, than if they foresee a necessary degradation at a fixt period.
M^r Gerry. That the Executive sh^d be independent of the Legislature is a clear point. The longer the duration of his appointment the more will his dependence be diminished. It will be better then for him to continue 10. 15. or even 20. years and be ineligible afterwards.
M^r King was for making him re-eligible. This is too great an advantage to be given up for the small effect it will have on his dependence, if impeachments are to lie. He considered these as rendering the tenure during pleasure.
M^r L. Martin, suspending his motion as to the ineligibility, moved "that the appointm^t of the Executive shall continue for Eleven years.
M^r Gerry suggested fifteen years.
M^r King twenty years. This is the medium life of princes.[9]
[9] This might possibly be meant as a carricature of the previous motions in order to defeat the object of them.--Madison's Note.
M^r Davie eight years.
M^r Wilson. The difficulties & perplexities into which the House is thrown proceed from the election by the Legislature which he was sorry had been reinstated. The inconveniency of this mode was such that he would agree to almost any length of time in order to get rid of the dependence which must result from it. He was persuaded that the longest term would not be equivalent to a proper mode of election, unless indeed it should be during good behaviour. It seemed to be supposed that at a certain advance of life, a continuance in office would cease to be agreeable to the officer, as well as desirable to the public. Experience had shewn in a variety of instances that both a capacity & inclination for public service existed in very advanced stages. He mentioned the instance of a Doge of Venice who was elected after he was 80 years of age. The Popes have generally been elected at very advanced periods, and yet in no case had a more steady or a better concerted policy been pursued than in the Court of Rome. If the Executive should come into office at 35 years of age, which he presumes may happen & his continuance should be fixt at 15 years, at the age of 50. in the very prime of life, and with all the aid of experience, he must be cast aside like a useless hulk. What an irreparable loss would the British Jurisprudence have sustained, had the age of 50. been fixt there as the ultimate limit of capacity or readiness to serve the public. The great luminary (L^d Mansfield) held his seat for thirty years after his arrival at that age. Notwithstanding what had been done he could not but hope that a better mode of election would yet be adopted; and one that would be more agreeable to the general sense of the House. That time might be given for further deliberation he w^d move that the present question be postponed till tomorrow.
M^r Broom seconded the motion to postpone.
M^r Gerry. We seem to be entirely at a loss on this head. He would suggest whether it would not be advisable to refer the clause relating to the Executive to the Committee of detail to be appointed. Perhaps they will be able to hit on something that may unite the various opinions which have been thrown out.
M^r Wilson. As the great difficulty seems to spring from the mode of election, he w^d suggest a mode which had not been mentioned. It was that the Executive be elected for 6 years by a small number, not more than 15 of the Nat^l Legislature, to be drawn from it, not by ballot, but by lot and who should retire immediately and make the election without separating. By this mode intrigue would be avoided in the first instance, and the dependence would be diminished. This was not he said a digested idea and might be liable to strong objections.
M^r Gov^r Morris. Of all possible modes of appointment that by the Legislature is the worst. If the Legislature is to appoint, and to impeach or to influence the impeachment, the Executive will be the mere creature of it. He had been opposed to the impeachment but was now convinced that impeachments must be provided for, if the app^t was to be of any duration. No man w^d say, that an Executive known to be in the pay of an Enemy, should not be removable in some way or other. He had been charged heretofore (by Col. Mason) with inconsistency in pleading for confidence in the Legislature on some occasions, & urging a distrust on others. The charge was not well founded. The Legislature is worthy of unbounded confidence in some respects, and liable to equal distrust in others. When their interest coincides precisely with that of their Constituents, as happens in many of their Acts, no abuse of trust is to be apprehended. When a strong personal interest happens to be opposed to the general interest, the Legislature cannot be too much distrusted. In all public bodies there are two parties. The Executive will necessarily be more connected with one than with the other. There will be a personal interest therefore in one of the parties to oppose as well as in the other to support him. Much had been said of the intrigues, that will be practised by the Executive to get into office. Nothing had been said on the other side of the intrigues to get him out of office. Some leader of a party will always covet his seat, will perplex his administration, will cabal with the Legislature, till he succeeds in supplanting him. This was the way in which the King of England was got out, he meant the real King, the Minister. This was the way in which Pitt (L^d Chatham) forced himself into place. Fox was for pushing the matter still farther. If he had carried his India bill, which he was very near doing, he would have made the Minister, the King in form almost as well as in substance. Our President will be the British Minister, yet we are about to make him appointable by the Legislature. Something had been said of the danger of Monarchy. If a good government should not now be formed, if a good organization of the Executive should not be provided, he doubted whether we should not have something worse than a limited monarchy. In order to get rid of the dependence of the Executive on the Legislature, the expedient of making him ineligible a 2^d time had been devised. This was as much as to say we sh^d give him the benefit of experience, and then deprive ourselves of the use of it. But make him ineligible a 2^d time--and prolong his duration even to 15 years, will he by any wonderful interposition of providence at that period cease to be a man? No he will be unwilling to quit his exaltation, the road to his object thro' the Constitution will be shut; he will be in possession of the sword, a civil war will ensue, and the Co[~m]ander of the victorious army on which ever side, will be the despot of America. This consideration renders him particularly anxious that the Executive should be properly constituted. The vice here would not, as in some other parts of the system be curable. It is the most difficult of all rightly to balance the Executive. Make him too weak: The Legislature will usurp his powers. Make him too strong. He will usurp on the Legislature. He preferred a short period, a re-eligibility, but a different mode of election. A long period would prevent an adoption of the plan: it ought to do so. He sh^d himself be afraid to trust it. He was not prepared to decide on M^r Wilson's mode of election just hinted by him. He thought it deserved consideration. It would be better that chance sh^d decide than intrigue.
On a question to postpone the consideration of the Resolution on the subject of the Executive
N. H. no. Mass. no. C^t ay. N. J. no. P^a ay. Del. div^d. M^d ay. V^a ay. N. C. no. S. C. no. Geo. no.
M^r Wilson then moved that the Executive be chosen every ---- years by ---- Electors to be taken by lot from the Nat^t Legislature who shall proceed immediately to the choice of the Executive and not separate until it be made."
M^r Carrol 2^{ds} the motion.
M^r Gerry. This is committing too much to chance. If the lot should fall on a sett of unworthy men, an unworthy Executive must be saddled on the Country. He thought it had been demonstrated that no possible mode of electing by the Legislature could be a good one.
M^r King. The lot might fall on a majority from the same State which w^d ensure the election of a man from that State. We ought to be governed by reason, not by chance. As nobody seemed to be satisfied, he wished the matter to be postponed.
M^r Wilson did not move this as the best mode. His opinion remained unshaken that we ought to resort to the people for the election. He seconded the postponement.
M^r Gov^r Morris observed that the chances were almost infinite ag^{st} a majority of Electors from the same State.
On a question whether the last motion was in order, it was determined in the affirmative: 7 ays. 4 noes.
On the question of postponem^t it was agreed to nem. con.
M^r Carrol took occasion to observe that he considered the clause declaring that direct taxation on the States should be in proportion to representation, previous to the obtaining an actual census, as very objectionable, and that he reserved to himself the right of opposing it, if the Report of the Committee of detail should leave it in the plan.
M^r Gov^r Morris hoped the Committee would strike out the whole of the clause proportioning direct taxation to representation. He had only meant it as a bridge[10] to assist us over a certain gulph; having passed the gulph the bridge may be removed. He thought the principle laid down with so much strictness, liable to strong objections.
[10] The object was to lessen the eagerness on one side, & the opposition on the other, to the share of representation claimed by the S. States on account of the Negroes.--Madison's Note.
On a ballot for a Committee to report a Constitution conformable to the Resolutions passed by the Convention, the members chosen were
M^r Rutlidge, M^r Randolph, M^r Ghorum, M^r Elseworth, M^r Wilson--
On motion to discharge the Com^e of the whole from the propositions submitted to the Convention by M^r C. Pinkney as the basis of a constitution, and to refer them to the Committee of detail just appointed, it was ag^d to nem: con.
A like motion was then made & agreed to nem: con: with respect to the propositions of M^r Patterson.
Adjourned.
WEDNESDAY JULY 25. IN CONVENTION
Clause relating to the Executive being again under consideration[11]
[11] "Permit me to hint, whether it would not be wise & seasonable to provide a strong check to the admission of Foreigners into the administration of our national Government; and to declare expressly that the command in chief of the American army shall not be given to, nor devolve on, any but a natural _born_ citizen."--John Jay to Washington, July 25, 1787 (Wash. MSS.).
M^r Elseworth moved "that the Executive be appointed by the Legislature," except when the magistrate last chosen shall have continued in office the whole term for which he was chosen, & be reeligible, in which case the choice shall be by Electors appointed by the Legislatures of the States for that purpose. By this means a deserving magistrate may be reelected without making him dependent on the Legislature.
M^r Gerry repeated his remark that an election at all by the Nat^l Legislature was radically and incurably wrong; and moved that the Executive be appointed by the Governours & Presidents of the States, with advice of their Councils, and where there are no Councils by Electors chosen by the Legislatures. The executives to vote in the following proportions: viz--
M^r Madison. There are objections ag^{st} every mode that has been, or perhaps can be proposed. The election must be made either by some existing authority under the Nat^l or State Constitutions--or by some special authority derived from the people--or by the people themselves.--The two Existing authorities under the Nat^l Constitution w^d be the Legislative & Judiciary. The latter he presumed was out of the question. The former was in his Judgment liable to insuperable objections. Besides the general influence of that mode on the independence of the Executive, 1. the election of the Chief Magistrate would agitate & divide the legislature so much that the public interest would materially suffer by it. Public bodies are always apt to be thrown into contentions, but into more violent ones by such occasions than by any others. 2. the candidate would intrigue with the Legislature, would derive his appointment from the predominant faction, and be apt to render his administration subservient to its views. 3. The Ministers of foreign powers would have and would make use of, the opportunity to mix their intrigues & influence with the Election. Limited as the powers of the Executive are, it will be an object of great moment with the great rival powers of Europe who have American possessions, to have at the head of our Governm^t a man attached to their respective politics & interests. No pains, nor perhaps expence, will be spared, to gain from the Legislature an appointm^t favorable to their wishes. Germany & Poland are witnesses of this danger. In the former, the election of the Head of the Empire, till it became in a manner hereditary, interested all Europe, and was much influenced by foreign interference. In the latter, altho' the elective Magistrate has very little real power, his election has at all times produced the most eager interference of foreign princes, and has in fact at length slid entirely into foreign hands. The existing authorities in the States are the Legislative, Executive & Judiciary. The appointment of the Nat^l Executive by the first was objectionable in many points of view, some of which had been already mentioned. He would mention one which of itself would decide his opinion. The Legislatures of the States had betrayed a strong propensity to a variety of pernicious measures. One object of the Nat^l Legisl^{re} was to controul this propensity. One object of the Nat^l Executive, so far as it would have a negative on the laws, was to controul the Nat^l Legislature so far as it might be infected with a similar propensity. Refer the appointm^t of the Nat^l Executive to the State Legislatures, and this controuling purpose may be defeated. The Legislatures can & will act with some kind of regular plan, and will promote the appointm^t of a man who will not oppose himself to a favorite object. Should a majority of the Legislatures at the time of election have the same object, or different objects of the same kind, The Nat^l Executive would be rendered subservient to them.--An appointment by the State Executives, was liable among other objections to this insuperable one, that being standing bodies, they could & would be courted, and intrigued with by the Candidates, by their partizans, and by the Ministers of foreign powers. The State Judiciary had not & he presumed w^d not be proposed as a proper source of appointment. The option before us then lay between an appointment by Electors chosen by the people--and an immediate appointment by the people. He thought the former mode free from many of the objections which had been urged ag^{st} it, and greatly preferable to an appointment by the Nat^l Legislature. As the electors would be chosen for the occasion, would meet at once, & proceed immediately to an appointment, there would be very little opportunity for cabal, or corruption. As a further precaution, it might be required that they should meet at some place, distinct from the seat of Gov^t and even that no person within a certain distance of the place at the time sh^d be eligible. This Mode however had been rejected so recently & by so great a majority that it probably would not be proposed anew. The remaining mode was an election by the people or rather by the qualified part of them, at large: With all its imperfections he liked this best. He would not repeat either the general argum^{ts}. for or the objections ag^{st} this mode. He would only take notice of two difficulties which he admitted to have weight. The first arose from the disposition in the people to prefer a Citizen of their own State, and the disadvantage this w^d throw on the smaller States. Great as this objection might be he did not think it equal to such as lay ag^{st} every other mode which had been proposed. He thought too that some expedient might be hit upon that would obviate it. The second difficulty arose from the disproportion of qualified voters in the N. & S. States, and the disadvantages which this mode would throw on the latter. The answer to this objection was 1. that this disproportion would be continually decreasing under the influence of the Republican laws introduced in the S. States, and the more rapid increase of their population. 2. That local considerations must give way to the general interest. As an individual from the S. States, he was willing to make the sacrifice.
M^r Elseworth. The objection drawn from the different sizes of the States, is unanswerable. The Citizens of the largest States would invariably prefer the candidate within the State; and the largest States w^d invariably have the man.
Question on M^r Elseworth's motion as above.
N. H. ay. Mass. no. C^t ay. N. J. no. P^a ay. Del. no. M^d ay. V^a no. N. C. no. S. C. no. Geo. no.
M^r Pinkney moved that the election by the Legislature be qualified with a proviso that no person be eligible for more than 6 years in any twelve years. He thought this would have all the advantage & at the same time avoid in some degree the inconveniency, of an absolute ineligibility a 2^d time.
Col. Mason approved the idea. It had the sanction of experience in the instance of Cong^s and some of the Executives of the States. It rendered the Executive as effectually independent, as an ineligibility after his first election, and opened the way at the same time for the advantage of his future services. He preferred on the whole the election by the Nat^l Legislature: Tho' Candor obliged him to admit, that there was great danger of foreign influence, as had been suggested. This was the most serious objection with him that had been urged.
M^r Butler. The two great evils to be avoided are cabal at home, & influence from abroad. It will be difficult to avoid either if the Election be made by the Nat^l Legislature. On the other hand. The Gov^t should not be made so complex & unwieldy as to disgust the States. This would be the case, if the election sh^d be referred to the people. He liked best an election by Electors chosen by the Legislatures of the States. He was ag^{st} a re-eligibility at all events. He was also ag^{st} a ratio of votes in the States. An equality should prevail in this case. The reasons for departing from it do not hold in the case of the Executive as in that of the Legislature.
M^r Gerry approved of M^r Pinkney's motion as lessening the evil.
M^r Gov^r Morris was ag^{st} a rotation in every case. It formed a political School, in w^{ch} we were always governed by the scholars, and not by the Masters. The evils to be guarded ag^{st} in this case are. 1. the undue influence of the Legislature. 2. instability of Councils. 3. misconduct in office. To guard ag^{st} the first, we run into the second evil. We adopt a rotation which produces instability of Councils. To avoid Sylla we fall into Charibdis. A change of men is ever followed by a change of measures. We see this fully exemplified in the vicissitudes among ourselves, particularly in the State of Pen^a. The self-sufficiency of a victorious party scorns to tread in the paths of their predecessors. Rehoboam will not imitate Soloman. 2. the Rotation in office will not prevent intrigue and dependence on the Legislature. The man in office will look forward to the period at which he will become re-eligible. The distance of the period, the improbability of such a protraction of his life will be no obstacle. Such is the nature of man, formed by his benevolent author no doubt for wise ends, that altho' he knows his existence to be limited to a span, he takes his measures as if he were to live for ever. But taking another supposition, the inefficacy of the expedient will be manifest. If the magistrate does not look forward to his re-election to the Executive, he will be pretty sure to keep in view the opportunity of his going into the Legislature itself. He will have little objection then to an extension of power on a theatre where he expects to act a distinguished part; and will be very unwilling to take any step that may endanger his popularity with the Legislature, on his influence over which the figure he is to make will depend. 3. To avoid the third evil, impeachments will be essential. And hence an additional reason ag^{st} an election by the Legislature. He considered an election by the people as the best, by the Legislature as the worst, mode. Putting both these aside, he could not but favor the idea of M^r Wilson, of introducing a mixture of lot. It will diminish, if not destroy both cabal & dependence.
M^r Williamson was sensible that strong objections lay ag^{st} an election of the Executive by the Legislature, and that it opened a door for foreign influence. The principal objection ag^{st} an election by the people seemed to be, the disadvantage under which it would place the smaller States. He suggested as a cure for this difficulty, that each man should vote for 3 candidates, one of them he observed would be probably of his own State, the other 2. of some other States; and as probably of a small as a large one.
M^r Gov^r Morris liked the idea, suggesting as an amendment that each man should vote for two persons one of whom at least should not be of his own State.
M^r Madison also thought something valuable might be made of the suggestion with the proposed amendment of it. The second best man in this case would probably be the first, in fact. The only objection which occurred was that each Citizen after hav^g given his vote for his favorite fellow Citizen, w^d throw away his second on some obscure Citizen of another State, in order to ensure the object of his first choice. But it could hardly be supposed that the Citizens of many States would be so sanguine of having their favorite elected, as not to give their second vote with sincerity to the next object of their choice. It might moreover be provided in favor of the smaller States that the Executive should not be eligible more than ---- times in ---- years from the same State.
M^r Gerry. A popular election in this case is radically vicious. The ignorance of the people would put it in the power of some one set of men dispersed through the Union & acting in Concert to delude them into any appointment. He observed that such a Society of men existed in the Order of the Cincinnati. They are respectable, united, and influential. They will in fact elect the chief Magistrate in every instance, if the election be referred to the people. His respect for the characters composing this Society could not blind him to the danger & impropriety of throwing such a power into their hands.
M^r Dickinson. As far as he could judge from the discussions which had taken place during his attendance, insuperable objections lay ag^{st} an election of the Executive by the Nat^l Legislature; as also by the Legislatures or Executives of the States. He had long leaned towards an election by the people which he regarded as the best & purest source. Objections he was aware lay ag^{st} this mode, but not so great he thought as ag^{st} the other modes. The greatest difficulty in the opinion of the House seemed to arise from the partiality of the States to their respective Citizens. But might not this very partiality be turned to a useful purpose. Let the people of each State chuse its best Citizen. The people will know the most eminent characters of their own States, and the people of different States will feel an emulation in selecting those of which they will have the greatest reason to be proud. Out of the thirteen names thus selected, an Executive Magistrate may be chosen either by the Nat^l Legislature, or by Electors appointed by it.
On a Question which was moved for postponing M^r Pinkney's motion, in order to make way for some such proposition as had been hinted by M^r Williamson & others, it passed in the negative.
N. H. no. Mass. no. C^t ay. N. J. ay. P^a ay. Del. no. M^d ay. V^a ay. N. C. no. S. C. no. Geo. no.
On M^r Pinkney's motion that no person shall serve in the Executive more than 6 years in 12. years, it passed in the negative.
N. H. ay. Mass. ay. C^t no. N. J. no. P^a no. Del. no. M^d no. V^a no. N. C. ay. S. C. ay. Geo. ay.
On a motion that the members of the Committee be furnished with copies of the proceedings it was so determined; S. Carolina alone being in the negative.
It was then moved that the members of the House might take copies of the Resolutions which had been agreed to; which passed in the negative.
N. H. no. Mas. no. Con. ay. N. J. ay. P^a no. Del. ay. Mary^d no. V^a ay. N. C. ay. S. C. no. Geo. no.
M^r Gerry & M^r Butler moved to refer the resolution relating to the Executive (except the clause making it consist of a single person) to the Co[~m]ittee of detail.
M^r Wilson hoped that so important a branch of the System w^d not be committed untill a general principle sh^d be fixed by a vote of the House.
M^r Langdon. was for the commitment--Adj^d.
THURSDAY JULY. 26. IN CONVENTION.[12]
[12] "The affairs of the federal government are, I believe, in the utmost confusion: The convention is an expedient that will produce a decisive effect. It will either recover us from our present embarrassments or complete our ruin; for I do suspect that if what they recommend sho^d be rejected this wo^d be the case. But I trust that the presence of Gen^l Washington will have great weight in the body itself so as to overawe & keep under the demon of party, & that the signature of his name to whatever act shall be the result of their deliberations will secure its passage thro' the union."--Monroe to Jefferson, July 27, 1787 (_Writings of Monroe_, i., 173).
Col. Mason. In every stage of the Question relative to the Executive, the difficulty of the subject and the diversity of the opinions concerning it have appeared. Nor have any of the modes of constituting that department been satisfactory. 1. It has been proposed that the election should be made by the people at large; that is that an act which ought to be performed by those who know most of Eminent characters, & qualifications, should be performed by those who know least. 2. that the election should be made by the Legislatures of the States. 3. by the Executives of the States. Ag^{st} these modes also strong objections have been urged. 4. It has been proposed that the election should be made by Electors chosen by the people for that purpose. This was at first agreed to: But on further consideration has been rejected. 5. Since which, the mode of M^r Williamson, requiring each freeholder to vote for several candidates has been proposed. This seemed like many other propositions, to carry a plausible face, but on closer inspection is liable to fatal objections. A popular election in any form, as M^r Gerry has observed, would throw the appointment into the hands of the Cincinnati, a Society for the members of which he had a great respect, but which he never wished to have a preponderating influence in the Gov^t. 6. Another expedient was proposed by M^r Dickinson, which is liable to so palpable & material an inconvenience that he had little doubt of its being by this time rejected by himself. It would exclude every man who happened not to be popular within his own State; tho' the causes of his local unpopularity might be of such a nature as to recommend him to the States at large. 7. Among other expedients, a lottery has been introduced. But as the tickets do not appear to be in much demand, it will probably, not be carried on, and nothing therefore need be said on that subject. After reviewing all these various modes, he was led to conclude, that an election by the Nat^l Legislature as originally proposed, was the best. If it was liable to objections, it was liable to fewer than any other. He conceived at the same time that a second election ought to be absolutely prohibited. Having for his primary object for the pole-star of his political conduct, the preservation of the rights of the people, he held it as an essential point, as the very palladium of civil liberty, that the Great officers of State, and particularly the Executive should at fixed periods return to that mass from which they were at first taken, in order that they may feel & respect those rights & interests, Which are again to be personally valuable to them. He concluded with moving that the constitution of the Executive as reported by the Com^e of the whole be reinstated, viz. "that the Executive be appointed for seven years, & be ineligible a 2^d time."
M^r Davie seconded the motion.
Doc^r Franklin. It seems to have been imagined by some that the returning to the mass of the people was degrading the magistrate. This he thought was contrary to republican principles. In free Governments the rulers are the servants, and the people their superiors & sovereigns. For the former therefore to return among the latter was not to _degrade_ but to _promote_ them. And it would be imposing an unreasonable burden on them, to keep them always in a State of servitude, and not allow them to become again one of the Masters.
Question on Col. Masons motion as above; which passed in the affirmative
N. H. ay. Mass^{ts} not on floor. C^t no. N. J. ay. P^a no. Del. no. M^d ay. V^a ay. N. C. ay. S. C. ay. Geo. ay.
M^r Gov^r Morris was now ag^{st} the whole paragraph. In answer to Col. Mason's position that a periodical return of the great officers of the State into the mass of the people, was the palladium of Civil liberty he w^d observe that on the same principle the Judiciary ought to be periodically degraded; certain it was that the Legislature ought on every principle, yet no one had proposed, or conceived that the members of it should not be re-eligible. In answer to Doc^r Franklin, that a return into the mass of the people would be a promotion, instead of a degradation, he had no doubt that our Executive like most others would have too much patriotism to shrink from the burthen of his office, and too much modesty not to be willing to decline the promotion.
On the question on the whole resolution as amended in the words following--"that a National Executive be instituted--to consist of a single person--to be chosen by the Nat^l legislature--for the term of seven years--to be ineligible a 2^d time--with power to carry into execution the nat^l laws--to appoint to offices in cases not otherwise provided for--to be removable on impeachment & conviction of mal-practice or neglect of duty--to receive a fixt compensation for the devotion of his time to the public service, to be paid out of the Nat^l treasury"--it passed in the affirmative
N. H. ay. Mass. not on floor. C^t ay. N. J. ay. P^a no. Del. no. M^d no. V^a div^d. M^r Blair & Col. Mason ay. Gen^l Washington & M^r Madison no. M^r Randolph happened to be out of the House. N. C. ay. S. C. ay. Geo. ay.
M^r Mason moved "that the Co[~m]ittee of detail be instructed to receive a clause requiring certain qualifications of landed property & citizenship of the U. States, in members of the Legislature, and disqualifying persons having unsettled Acc^{ts} with or being indebted to the U. S., from being members of the Nat^l Legislature."--He observed that persons of the latter descriptions had frequently got into the State Legislatures, in order to promote laws that might shelter their delinquencies; and that this evil had crept into Cong^s if Report was to be regarded.
M^r Pinckney seconded the motion.
Mr. Gov^r Morris. If qualifications are proper, he w^d prefer them in the electors rather than the elected. As to debtors of the U. S. they are but few. As to persons having unsettled accounts he believed them to be pretty many. He thought however that such a discrimination would be both odious & useless, and in many instances, unjust & cruel. The delay of settlem^t had been more the fault of the Public than of the individuals. What will be done with those patriotic Citizens who have lent money, or services or property to their Country, without having been yet able to obtain a liquidation of their claims? Are they to be excluded?
M^r Ghorum was for leaving to the Legislature the providing ag^{st} such abuses as had been mentioned.
Col. Mason mentioned the parliamentary qualifications adopted in the Reign of Queen Anne, which he said had met with universal approbation.
M^r Madison had witnessed the zeal of men having acc^{ts} with the public, to get into the Legislatures for sinister purposes. He thought however that if any precaution were taken for excluding them, the one proposed by Col. Mason ought to be new modelled. It might be well to limit the exclusion to persons who had rec^d money from the public, and had not accounted for it.
M^r Gov^r Morris. It was a precept of great antiquity as well as of high authority that we should not be righteous overmuch. He thought we ought to be equally on our guard ag^{st} being wise overmuch. The proposed regulation would enable the Govern^t to exclude particular persons from office as long as they pleased. He mentioned the case of the Co[~m]ander in Chief's presenting his account for secret services, which he said was so moderate that every one was astonished at it; and so simple that no doubt could arise on it. Yet had the Auditor been disposed to delay the settlement, how easily he might have effected it, & how cruel w^d it be in such a case to keep a distinguished & meritorious Citizen under a temporary disability & disfranchisement. He mentioned this case merely to illustrate the objectionable nature of the proposition. He was opposed to such minutious regulations in a Constitution. The parliamentary qualifications quoted by Col. Mason, had been disregarded in practice; and was but a scheme of the landed ag^{st} the monied interest.
M^r Pinckney & Gen^l Pinckney moved to insert by way of amendm^t the words Judiciary & Executive so as to extend the qualifications to those departments which was agreed to nem con.
M^r Gerry thought the inconveniency of excluding a few worthy individuals who might be public debtors or have unsettled acc^{ts} ought not to be put in the scale ag^{st} the public advantages of the regulation, and that the motion did not go far enough.
M^r King observed that there might be great danger in requiring landed property as a qualification since it would exclude the monied interest, whose aids may be essential in particular emergencies to the public safety.
M^r Dickinson, was ag^{st} any recital of qualifications in the Constitution. It was impossible to make a compleat one, and a partial one w^d by implication tie up the hands of the Legislature from supplying the omissions. The best defence lay in the freeholders who were to elect the Legislature. Whilst this Source should remain pure, the Public interest would be safe. If it ever should be corrupt, no little expedients would repel the danger. He doubted the policy of interweaving into a Republican constitution a veneration for wealth. He had always understood that a veneration for poverty & virtue, were the objects of republican encouragement. It seemed improper that any man of merit should be subjected to disabilities in a Republic where merit was understood to form the great title to public trust, honors & rewards.
M^r Gerry if property be one object of Government, provisions to secure it cannot be improper.
M^r Madison moved to strike out the word _landed_, before the word "qualifications." If the proposition s^d be agreed to he wished the Committee to be at liberty to report the best criterion they could devise. Landed possessions were no certain evidence of real wealth. Many enjoyed them to a great extent who were more in debt than they were worth. The unjust Laws of the States had proceeded more from this class of men, than any others. It had often happened that men who had acquired landed property on credit, got into the Legislatures with a view of promoting an unjust protection ag^{st} their Creditors. In the next place, if a small quantity of land should be made the standard, it would be no security; if a large one, it would exclude the proper representatives of those classes of Citizens who were not landholders. It was politic as well as just that the interests & rights of every class should be duly represented & understood in the public Councils. It was a provision every where established that the Country should be divided into districts & representatives taken from each, in order that the Legislative Assembly might equally understand & sympathize with the rights of the people in every part of the Community. It was not less proper that every class of Citizens should have an opportunity of making their rights be felt & understood in the public Councils. The three principal classes into which our citizens were divisible, were the landed the commercial, & the manufacturing. The 2^d & 3^d class, bear as yet a small proportion to the first. The proportion however will daily increase. We see in the populous Countries in Europe now, what we shall be hereafter. These classes understand much less of each others interests & affairs, than men of the same class inhabiting different districts. It is particularly requisite therefore that the interests of one or two of them should not be left entirely to the care, or impartiality of the third. This must be the case if landed qualifications should be required; few of the mercantile, & scarcely any of the manufacturing class chusing whilst they continue in business to turn any part of their Stock into landed property. For these reasons he wished if it were possible that some other criterion than the mere possession of land should be devised. He concurred with M^r Gov^r Morris in thinking that qualifications in the Electors would be much more effectual than in the elected. The former would discriminate between real & ostensible property in the latter; But he was aware of the difficulty of forming any uniform standard that would suit the different circumstances & opinions prevailing in the different States.
M^r Gov^r Morris 2^{ded} the motion.
On the Question for striking out "landed"
N. H. ay. Mass. ay. C^t ay. N. J. ay. P^a ay. Del. ay. M^d no. V^a ay. N. C. ay. S. C. ay. Geo. ay.
On Question on 1^{st} part of Col. Masons proposition as to "qualification of property & citizenship," as so amended
N. H. ay. Mas^{ts} ay. C^t no. N. J. ay. P^a no. Del. no. M^d ay. V^a ay. N. C. ay. S. C. ay. Geo. ay.
"The 2^d part, for disqualifying debtors, and persons having unsettled accounts," being under consideration
M^r Carrol moved to strike out "having unsettled accounts"
M^r Ghorum seconded the motion; observing that it would put the commercial & manufacturing part of the people on a worse footing than others as they would be most likely to have dealings with the public.
M^r L. Martin, if these words should be struck out, and the remaining words concerning debtors retained, it will be the interest of the latter class to keep their accounts unsettled as long as possible.
M^r Wilson was for striking them out. They put too much power in the hands of the Auditors, who might combine with rivals in delaying settlements in order to prolong the disqualifications of particular men. We should consider that we are providing a Constitution for future generations, and not merely for the peculiar circumstances of the moment. The time has been, and will again be, when the public safety may depend on the voluntary aids of individuals which will necessarily open acc^{ts} with the public, and when such acc^{ts} will be a characteristic of patriotism. Besides a partial enumeration of cases will disable the Legislature from disqualifying odious & dangerous characters.
M^r Langdon[13] was for striking out the whole clause for the reasons given by M^r Wilson. So many exclusions he thought too would render the system unacceptable to the people.
[13] "M^r Langdon is a man of considerable fortune, possesses a liberal mind, and a good plain understanding--about 40 years old."--Pierce's Notes, _Am. Hist. Rev._, iii., 325.
M^r Gerry. If the argum^{ts} used today were to prevail, we might have a Legislature composed of Public debtors, pensioners, placemen & contractors. He thought the proposed qualifications would be pleasing to the people. They will be considered as a security ag^{st} unnecessary or undue burdens being imposed on them. He moved to add "pensioners" to the disqualified characters which was negatived.
N. H. no. Mas. ay. Con. no. N. J. no. P^a no. Del. no. Mary^d ay. V^a no. N. C. divided. S. C. no. Geo. ay.
M^r Gov^r Morris. The last clause, relating to public debtors will exclude every importing merchant. Revenue will be drawn it is foreseen as much as possible, from trade. Duties of course will be bonded, and the Merch^{ts} will remain debtors to the public. He repeated that it had not been so much the fault of individuals as of the public that transactions between them had not been more generally liquidated & adjusted. At all events to draw from our short & scanty experience rules that are to operate through succeeding ages, does not savour much of real wisdom.
On question for striking out, "persons having unsettled accounts with the U. States."
N. H. ay. Mass. ay. C^t ay. N. J. no. P^a ay. Del. ay. M^d ay. V^a ay. N. C. ay. S. C. ay. Geo. no.
M^r Elseworth was for disagreeing to the remainder of the clause disqualifying Public debtors; and for leaving to the wisdom of the Legislature and the virtue of the Citizens, the task of providing ag^{st} such evils. Is the smallest as well as the largest debtor to be excluded? Then every arrear of taxes will disqualify. Besides how is it to be known to the people when they elect who are or are not public debtors. The exclusion of pensioners & placemen in Engl^d is founded on a consideration not existing here. As persons of that sort are dependent on the Crown, they tend to increase its influence.
M^r Pinkney s^d he was at first a friend to the proposition, for the sake of the clause relating to qualifications of property; but he disliked the exclusion of public debtors; it went too far. It w^d exclude persons who had purchased confiscated property or should purchase Western territory of the public, and might be some obstacle to the sale of the latter.
On the question for agreeing to the clause disqualifying public debtors
N. H. no. Mass. no. C^t no. N. J. no. P^a no. Del. no. M^d no. V^a no. N. C. ay. S. C. no. Geo. ay.
Col. Mason, observed that it would be proper, as he thought, that some provision should be made in the Constitution ag^{st} choosing for the Seat of the Gen^l Gov^t the City or place at which the Seat of any State Gov^t might be fixt. There were 2 objections ag^{st} having them at the same place, which without mentioning others, required some precaution on the subject. The 1^{st} was that it tended to produce disputes concerning jurisdiction. The 2^d & principal one was that the intermixture of the two Legislatures tended to give a provincial tincture to y^e Nat^l deliberations. He moved that the Com^e be instructed to receive a clause to prevent the seat of the Nat^l Gov^t being in the same City or town with the Seat of the Gov^t of any State longer than untill the necessary public buildings could be erected.
M^r Alex. Martin 2^{ded} the motion.
M^r Gov^r Morris did not dislike the idea, but was apprehensive that such a clause might make enemies of Philad^a & N. York which had expectations of becoming the Seat of the Gen^l Gov^t.
M^r Langdon approved the idea also: but suggested the case of a State moving its seat of Gov^t to the nat^l Seat after the erection of the Public buildings.
M^r Ghorum. The precaution may be evaded by the Nat^l Legisl^{re} by delaying to erect the Public buildings.
M^r Gerry conceived it to be the gen^l sense of America, that neither the Seat of a State Gov^t nor any large commercial City should be the seat of the Gen^l Gov^t.
M^r Williamson liked the idea, but knowing how much the passions of men were agitated by this matter, was apprehensive of turning them ag^{st} the System. He apprehended also that an evasion, might be practised in the way hinted by M^r Ghorum.
M^r Pinkney thought the Seat of a State Gov^t ought to be avoided; but that a large town or its vicinity would be proper for the Seat of the Gen^l Gov^t.
Col. Mason did not mean to press the motion at this time, nor to excite any hostile passions ag^{st} the system. He was content to withdraw the motion for the present.
M^r Butler was for fixing by the Constitution the place, & a central one, for the seat of the Nat^l Gov^t.
The proceedings since Monday last were referred unanimously to the Com^e of detail, and the Convention then unanimously adjourned till Monday, Aug^{st} 6. that the Com^e of detail might have time to prepare & report the Constitution. The whole proceedings as referred are as follow[14]:
[14] Madison's note says: "here copy them from the Journal p. 207." In the _Journal_ they are given as having been "collected from the proceedings of the convention, as they are spread over the journal from June 19^{th} to July 26^{th}."--_Journal of Federal Convention_, 207. The dates show when the resolutions were agreed to, and are correct.
June 20. I. RESOLVED, That the Government of the United States ought to consist of a supreme legislative, judiciary, and executive.
June 21. II. RESOLVED, That the legislature consist of two branches.
III. RESOLVED, That the members of the first branch of the legislature ought to be elected by the people of the several states, for the term of two years; to be paid June 22. out of the publick treasury; to receive an adequate compensation for their services; to be of the age of June 23. twenty-five years at least; to be ineligible and incapable of holding any office under the authority of the United States (except those peculiarly belonging to the functions of the first branch) during the term of service of the first branch.
June 25. IV. RESOLVED, That the members of the second branch of the legislature of the United States ought to be chosen by the individual legislatures; to be of the age of June 26. thirty years at least; to hold their offices for six years, one third to go out biennally; to receive a compensation for the devotion of their time to the publick service; to be ineligible to and incapable of holding any office, under the authority of the United States (except those peculiarly belonging to the functions of the second branch) during the term for which they are elected, and for one year thereafter.
V. RESOLVED, That each branch ought to possess the right of originating acts.
VI. RESOLVED, That the national legislature ought to Postponed 27. possess the legislative rights vested in Congress by the July 16. confederation; and moreover, to legislate in all cases for the general interests of the union, and also in July 17. those to which the states are separately incompetent, or in which the harmony of the United States may be interrupted by the exercise of individual legislation.
VII. RESOLVED, That the legislative acts of the United States, made by virtue and in pursuance of the articles of union, and all treaties made and ratified under the authority of the United States, shall be the supreme law of the respective states, as far as those acts or treaties shall relate to the said states, or their July 17 citizens and inhabitants; and that the judiciaries of the several states shall be bound thereby in their decisions, any thing in the respective laws of the individual States to the contrary, notwithstanding.
July 16. VIII. RESOLVED, That in the original formation of the legislature of the United States, the first branch thereof shall consist of sixty-five members; of which number
New Hampshire shall send three, Massachusetts eight, Rhode Island one, Connecticut five, New York six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina five, South Carolina five, Georgia three.
But as the present situation of the states may probably alter in the number of their inhabitants, the legislature of the United States shall be authorized, from time to time, to apportion the number of representatives; and in case any of the states shall hereafter be divided, or enlarged by addition of territory, or any two or more states united, or any new states created within the limits of the United States, the legislature of the United States shall possess authority to regulate the number of representatives, in any of the foregoing cases, upon the principle of their number of inhabitants according to the provisions hereafter mentioned, namely--Provided always, that representation ought to be proportioned to direct taxation. And in order to ascertain the alteration in the direct taxation, which may be required from time to time by the changes in the relative circumstances of the states--
IX. RESOLVED, That a census be taken within six years from the first meeting of the legislature of the United States, and once within the term of every ten years afterwards, of all the inhabitants of the United States, in the manner and according to the ratio recommended by Congress in their resolution of April 18, 1783; and that the legislature of the United States shall proportion the direct taxation accordingly.
X. RESOLVED, That all bills for raising or appropriating money, and for fixing the salaries of the officers of the government of the United States, shall originate in the first branch of the legislature of the United States, and shall not be altered or amended by the second branch; and that no money shall be drawn from the publick treasury, but in pursuance of appropriations to be originated by the first branch.
XI. RESOLVED, That in the second branch of the legislature of the United States, each state shall have an equal vote.
July 26. XII. RESOLVED, That a national executive be instituted, to consist of a single person; to be chosen by the national legislature, for the term of seven years; to be ineligible a second time; with power to carry into execution the national laws; to appoint to offices in cases not otherwise provided for; to be removable on impeachment, and conviction of mal-practice or neglect of duty; to receive a fixed compensation for the devotion of his time to the publick service; to be paid out of the publick treasury.
July 21. XIII. RESOLVED, That the national executive shall have a right to negative any legislative act, which shall not be afterwards passed, unless by two third parts of each branch of the national legislature.
July 18. XIV. RESOLVED, That a national judiciary be established, to consist of one supreme tribunal, the judges of which July 21. shall be appointed by the second branch of the national July 18. legislature; to hold their offices during good behaviour; to receive punctually, at stated times, a fixed compensation for their services, in which no diminution shall be made, so as to affect the persons actually in office at the time of such diminution.
XV. RESOLVED, That the national legislature be empowered to appoint inferior tribunals.
XVI. RESOLVED, That the jurisdiction of the national judiciary shall extend to cases arising under laws passed by the general legislature; and to such other questions as involve the national peace and harmony.
XVII. RESOLVED, That provision ought to be made for the admission of states lawfully arising within the limits of the United States, whether from a voluntary junction of government and territory, or otherwise, with the consent of a number of voices in the national legislature less than the whole.
XVIII. RESOLVED, That a republican form of government shall be guarantied to each state; and that each state shall be protected against foreign and domestick violence.
July 23. XIX. RESOLVED, That provision ought to be made for the amendment of the articles of union, whensoever it shall seem necessary.
XX. RESOLVED, That the legislative, executive, and judiciary powers within the several states, and of the national government, ought to be bound, by oath, to support the articles of union.
XXI. RESOLVED, That the amendments which shall be offered to the confederation by the convention ought, at a proper time or times after the approbation of Congress, to be submitted to an assembly or assemblies of representatives, recommended by the several legislatures, to be expressly chosen by the people to consider and decide thereon.
XXII. RESOLVED, That the representation in the second branch of the legislature of the United States consist of two members from each state, who shall vote per capita.
July 26. XXIII. RESOLVED, That it be an instruction to the committee, to whom were referred the proceedings of the convention for the establishment of a national government, to receive a clause or clauses, requiring certain qualifications of property and citizenship, in the United States, for the executive, the judiciary, and the members of both branches of the legislature of the United States.
With the above resolutions were referred the propositions offered by M^r C. Pinckney on the 29^{th} of May, & by M^r Patterson on the 15^{th} of June.[15]
[15] "Aug 1. 1787 WILLIAMSB.
"DEAR COL.
"We are here & I believe every where all Impatience to know something of your conventional Deliberations. If you cannot tell us what you are doing, you might at least give us some Information of what you are not doing. This w^d afford food for political conjecture, and perhaps be sufficient to satisfy present Impatience. I hope you have already discovered the means of preserving the American Empire united--& that the scheme of a Disunion has been found pregnant with y^e greatest Evils--But we are not at this distance able to judge with any accuracy upon subjects so truly important & interesting as those w^{ch} must engage you at present--We can only hope, that you will all resemble Cæsar, at least in one particular: 'nil actum reputans si quid superesset agendum';--& that your Exertions will be commensurate to y^e great Expectations w^{ch} have been formed... "J. MADISON."[A]
[A] President of William and Mary College, and the first Bishop of the Episcopal Church in Virginia. He was a second cousin of James Madison, of Orange. (Mad. MSS.)
"RICHMOND Aug^t 5. 87.
"DEAR SIR,
"I am much obliged to you for your communication of the proceedings of y^e Convention, since I left them; for I feel that anxiety about y^e result, which it's Importance must give to every honest citizen. If I thought that my return could contribute in the smallest degree to it's Improvement, nothing should Keep me away. But as I know that the talents, knowledge, & well-established character, of our present delegates have justly inspired the country with y^e most entire confidence in their determinations; & that my vote could only _operate_ to produce a division, & so destroy y^e vote of y^e State, I think that my attendance now would certainly be useless, perhaps injurious.
"I am credibly inform'd that M^r Henry has openly express'd his disapprobation of the circular letter of Congress, respecting y^e payment of British debts; & that he has declared his opinion that y^e Interests of this state cannot safely be trusted with that body. The doctrine of three confederacies, or great Republics, has its advocates here. I have heard Hervie support it, along with y^e extinction of State Legislatures within each great Department. The necessity of some independent power to controul the Assembly by a negative, seems now to be admitted by y^e most zealous republicans--they only differ about y^e mode of constituting such a power. B. Randolph seems to think that a magistrate annually elected by y^e people might exercise such a controul as independently as y^e King of G. B. I hope that our representative, Marshall, will be a powerful aid to Mason in the next Assembly. He has observ'd the actual depravation of mens manners, under y^e corrupting Influence of our Legislature; and is convinc'd that nothing but y^e adoption of some efficient plan from y^e Convention can prevent anarchy first, & civil convulsions afterwards. M^r H----y has certainly converted a majority of Prince Edward, formerly y^e most averse to paper money, to y^e patronage of it....
"Your friend & humble serv^t. "JAMES MCCLURG." (Mad. MSS.)
MONDAY AUGUST 6^{TH}. IN CONVENTION
M^r John Francis Mercer from Maryland took his seat.
M^r Rutlidge delivered in the Report of the Committee of detail as follows: a printed copy being at the same time furnished to each member[16]:
[16] Madison's printed copy is marked: "As Reported by Com^e of Detail viz of five. Aug. 6. 1787." It is a large folio of seven pages. In the enumeration of the Articles by a misprint VI. was repeated, and the alterations in Article VII. and succeeding articles were made by Madison. In Sect. II of Article VI., as it was printed, it appeared: "The enacting stile of the laws of the United States shall be. 'Be it enacted and it is hereby enacted by the House of Representatives, and by the Senate of the United States, in Congress assembled,'" which Madison altered to read: "The enacting stile of the laws of the United States shall be. 'Be it enacted by the Senate & representatives, in Congress assembled.'" The printed copy among the Madison papers is a duplicate of the copy filed by General Washington with the papers of the Constitution, and Sec. II is there given as actually printed.--_Journal of the Federal Convention_, 219. (Const. MSS.)
Madison accurately transcribed the report for his journal and it is this copy which is used in the text.
"We the people of the States of New Hampshire, Massachusetts, Rhode-Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North-Carolina, South-Carolina, and Georgia, do ordain, declare, and establish the following Constitution for the Government of Ourselves and our Posterity.
ARTICLE I
The stile of the Government shall be, "The United States of America."
II
The Government shall consist of supreme legislative, executive, and judicial powers.
III
The legislative power shall be vested in a Congress, to consist of two separate and distinct bodies of men, a House of Representatives and a Senate; each of which shall in all cases have a negative on the other. The Legislature shall meet on the first Monday in December in every year.
IV
Sect. 1. The members of the House of Representatives shall be chosen every second year, by the people of the several States comprehended within this Union. The qualifications of the electors shall be the same, from time to time, as those of the electors in the several States, of the most numerous branch of their own legislatures.
Sect. 2. Every member of the House of Representatives shall be of the age of twenty five years at least; shall have been a citizen in the United States for at least three years before his election; and shall be, at the time of his election, a resident of the State in which he shall be chosen.
Sect. 3. The House of Representatives shall, at its first formation, and until the number of citizens and inhabitants shall be taken in the manner hereinafter described, consist of sixty-five Members, of whom three shall be chosen in New-Hampshire, eight in Massachusetts, one in Rhode-Island and Providence Plantations, five in Connecticut, six in New-York, four in New-Jersey, eight in Pennsylvania, one in Delaware, six in Maryland, ten in Virginia, five in North-Carolina, five in South-Carolina, and three in Georgia.
Sect. 4. As the proportions of numbers in different States will alter from time to time; as some of the States may hereafter be divided; as others may be enlarged by addition of territory; as two or more States may be united; as new States will be erected within the limits of the United States, the Legislature shall, in each of these cases, regulate the number of representatives by the number of inhabitants, according to the provisions herein after made, at the rate of one for every forty thousand.
Sect. 5. All bills for raising or appropriating money, and for fixing the salaries of the officers of Government, shall originate in the House of Representatives, and shall not be altered or amended by the Senate. No money shall be drawn from the Public Treasury, but in pursuance of appropriations that shall originate in the House of Representatives.
Sect. 6. The House of Representatives shall have the sole power of impeachment. It shall choose its Speaker and other officers.
Sect. 7. Vacancies in the House of Representatives shall be supplied by writs of election from the executive authority of the State, in the representation from which they shall happen.
V
Sect. 1. The Senate of the United States shall be chosen by the Legislatures of the several States. Each Legislature shall chuse two members. Vacancies may be supplied by the Executive until the next meeting of the Legislature. Each member shall have one vote.
Sect. 2. The Senators shall be chosen for six years; but immediately after the first election they shall be divided, by lot, into three classes, as nearly as may be, numbered one, two and three. The seats of the members of the first class shall be vacated at the expiration of the second year, of the second class at the expiration of the fourth year, of the third class at the expiration of the sixth year, so that a third part of the members may be chosen every second year.
Sect. 3. Every member of the Senate shall be of the age of thirty years at least; shall have been a citizen in the United States for at least four years before his election; and shall be, at the time of his election, a resident of the State for which he shall be chosen.
Sect. 4. The Senate shall chuse its own President and other officers.
VI
Sect. 1. The times and places and manner of holding the elections of the members of each House shall be prescribed by the Legislature of each State; but their provisions concerning them may, at any time, be altered by the Legislature of the United States.
Sect. 2. The Legislature of the United States shall have authority to establish such uniform qualifications of the members of each House, with regard to property, as to the said Legislature shall seem expedient.
Sect. 3. In each House a majority of the members shall constitute a quorum to do business; but a smaller number may adjourn from day to day.
Sect. 4. Each House shall be the judge of the elections, returns and qualifications of its own members.
Sect. 5. Freedom of speech and debate in the Legislature shall not be impeached or questioned in any Court or place out of the Legislature; and the members of each House shall, in all cases, except treason felony and breach of the peace, be privileged from arrest during their attendance at Congress, and in going to and returning from it.
Sect. 6. Each House may determine the rules of its proceedings; may punish its members for disorderly behaviour; and may expel a member.
Sect. 7. The House of Representatives, and the Senate, when it shall be acting in a legislative capacity, shall keep a journal of their proceedings, and shall, from time to time, publish them: and the yeas and nays of the members of each House, on any question, shall at the desire of one-fifth part of the members present, be entered on the journal.
Sect. 8. Neither House, without the consent of the other, shall adjourn for more than three days, nor to any other place than that at which the two Houses are sitting. But this regulation shall not extend to the Senate, when it shall exercise the powers mentioned in the ---- article.
Sect. 9. The members of each House shall be ineligible to, and incapable of holding any office under the authority of the United States, during the time for which they shall respectively be elected: and the members of the Senate shall be ineligible to, and incapable of holding any such office for one year afterwards.
Sect. 10. The members of each House shall receive a compensation for their services, to be ascertained and paid by the State, in which they shall be chosen.
Sect. 11. The enacting stile of the laws of the United States shall be, "Be it enacted by the Senate and Representatives in Congress assembled."
Sect. 12. Each House shall possess the right of originating bills, except in the cases beforementioned.
Sect. 13. Every bill, which shall have passed the House of Representatives and the Senate, shall, before it become a law, be presented to the President of the United States for his revision: if, upon such revision, he approve of it, he shall signify his approbation by signing it: But if, upon such revision, it shall appear to him improper for being passed into a law, he shall return it, together with his objections against it, to that House in which it shall have originated, who shall enter the objections at large on their journal and proceed to reconsider the bill. But if after such reconsideration, two thirds of that House shall, notwithstanding the objections of the President, agree to pass it, it shall together with his objections, be sent to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of the other House also, it shall become a law. But in all such cases, the votes of both Houses shall be determined by yeas and nays; and the names of the persons voting for or against the bill shall be entered on the journal of each House respectively. If any bill shall not be returned by the President within seven days after it shall have been presented to him, it shall be a law, unless the legislature, by their adjournment, prevent its return; in which case it shall not be a law.
VII
Sect. 1. The Legislature of the United States shall have the power to lay and collect taxes, duties, imposts and excises;
To regulate commerce with foreign nations, and among the several States;
To establish an uniform rule of naturalization throughout the United States;
To coin money;
To regulate the value of foreign coin;
To fix the standard of weights and measures;
To establish Post-offices;
To borrow money, and emit bills on the credit of the United States;
To appoint a Treasurer by ballot;
To constitute tribunals inferior to the Supreme Court;
To make rules concerning captures on land and water;
To declare the law and punishment of piracies and felonies committed on the high seas, and the punishment of counterfeiting the coin of the United States, and of offences against the law of nations;
To subdue a rebellion in any State, on the application of its legislature;
To make war;
To raise armies;
To build and equip fleets;
To call forth the aid of the militia, in order to execute the laws of the Union, enforce treaties, suppress insurrections, and repel invasions;
And to make all laws that shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested, by this Constitution, in the government of the United States, or in any department or officer thereof;
Sect. 2. Treason against the United States shall consist only in levying war against the United States, or any of them; and in adhering to the enemies of the United States, or any of them. The Legislature of the United States shall have power to declare the punishment of treason. No person shall be convicted of treason, unless on the testimony of two witnesses. No attainder of treason shall work corruption of blood, nor forfeiture, except during the life of the person attainted.
Sect. 3. The proportions of direct taxation shall be regulated by the whole number of white and other free citizens and inhabitants, of every age, sex and condition, including those bound to servitude for a term of years, and three fifths of all other persons not comprehended in the foregoing description, (except Indians not paying taxes) which number shall, within six years after the first meeting of the Legislature, and within the term of every ten years afterwards, be taken in such manner as the said Legislature shall direct.
Sect. 4. No tax or duty shall be laid by the Legislature on articles exported from any State; nor on the migration or importation of such persons as the several States shall think proper to admit; nor shall such migration or importation be prohibited.
Sect. 5. No capitation tax shall be laid, unless in proportion to the Census hereinbefore directed to be taken.
Sect. 6. No navigation act shall be passed without the assent of two thirds of the members present in each House.
Sect. 7. The United States shall not grant any title of Nobility.
VIII
The acts of the Legislature of the United States made in pursuance of this Constitution, and all treaties made under the authority of the United States shall be the supreme law of the several States, and of the citizens and inhabitants; and the judges in the several States shall be bound thereby in their decisions; any thing in the Constitutions or laws of the several States to the contrary notwithstanding.
IX
Sect 1. The Senate of the United States shall have power to make treaties, and to appoint Ambassadors, and Judges of the Supreme Court.
Sect. 2. In all disputes and controversies now subsisting, or that may hereafter subsist between two or more States, respecting jurisdiction or territory, the Senate shall possess the following powers. Whenever the Legislature, or the Executive authority, or lawful agent of any State, in controversy with another, shall by memorial to the Senate, state the matter in question, and apply for a hearing; notice of such memorial and application shall be given by order of the Senate, to the Legislature or the Executive authority of the other State in Controversy. The Senate shall also assign a day for the appearance of the parties, by their agents, before the House. The Agents shall be directed to appoint, by joint consent, commissioners or judges to constitute a Court for hearing and determining the matter in question. But if the Agents cannot agree, the Senate shall name three persons out of each of the several States; and from the list of such persons each party shall alternately strike out one, until the number shall be reduced to thirteen; and from that number not less than seven nor more than nine names, as the Senate shall direct, shall in their presence, be drawn out by lot; and the persons whose names shall be so drawn, or any five of them shall be commissioners or Judges to hear and finally determine the controversy; provided a majority of the Judges, who shall hear the cause, agree in the determination. If either party shall neglect to attend at the day assigned, without shewing sufficient reasons for not attending, or being present shall refuse to strike, the Senate shall proceed to nominate three persons out of each State, and the Clerk of the Senate shall strike in behalf of the party absent or refusing. If any of the parties shall refuse to submit to the authority of such Court; or shall not appear to prosecute or defend their claim or cause, the Court shall nevertheless proceed to pronounce judgment. The judgment shall be final and conclusive. The proceedings shall be transmitted to the President of the Senate, and shall be lodged among the public records for the security of the parties concerned. Every Commissioner shall, before he sit in judgment, take an oath, to be administered by one of the Judges of the Supreme or Superior Court of the State where the cause shall be tried, "well and truly to hear and determine the matter in question according to the best of his judgment, without favor, affection, or hope of reward."
Sect. 3. All controversies concerning lands claimed under different grants of two or more States, whose jurisdictions, as they respect such lands, shall have been decided or adjusted subsequent to such grants, or any of them, shall, on application to the Senate, be finally determined, as near as may be, in the same manner as is before prescribed for deciding controversies between different States.
X
Sect. 1. The Executive Power of the United States shall be vested in a single person. His stile shall be, "The President of the United States of America;" and his title shall be, "His Excellency." He shall be elected by ballot by the Legislature. He shall hold his office during the term of seven years; but shall not be elected a second time.
Sect. 2. He shall, from time to time, give information to the Legislature, of the state of the Union: he may recommend to their consideration such measures as he shall judge necessary, and expedient: he may convene them on extraordinary occasions. In case of disagreement between the two Houses, with regard to the time of adjournment, he may adjourn them to such time as he thinks proper: he shall take care that the laws of the United States be duly and faithfully executed: he shall commission all the officers of the United States; and shall appoint officers in all cases not otherwise provided for by this Constitution. He shall receive Ambassadors, and may correspond with the supreme Executives of the several States. He shall have power to grant reprieves and pardons; but his pardon shall not be pleadable in bar of an impeachment. He shall be commander in chief of the Army and Navy of the United States, and of the militia of the several States. He shall, at stated times, receive for his services, a compensation, which shall neither be increased nor diminished during his continuance in office. Before he shall enter on the duties of his department, he shall take the following oath or affirmation, "I ---- solemnly swear, (or affirm) that I will faithfully execute the office of President of the United States of America." He shall be removed from his office on impeachment by the House of Representatives, and conviction in the Supreme Court, of treason, bribery, or corruption. In case of his removal as aforesaid, death, resignation, or disability to discharge the powers and duties of his office, the President of the Senate shall exercise those powers and duties, until another President of the United States be chosen, or until the disability of the President be removed.
XI
Sect. 1. The Judicial Power of the United States shall be vested in one Supreme Court, and in such inferior Courts as shall, when necessary, from time to time, be constituted by the Legislature of the United States.
Sect. 2. The Judges of the Supreme Court, and of the Inferior Courts, shall hold their offices during good behaviour. They shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.
Sect. 3. The Jurisdiction of the Supreme Court shall extend to all cases arising under laws passed by the Legislature of the United States; to all cases affecting Ambassadors, other Public Ministers and Consuls; to the trial of impeachments of officers of the United States; to all cases of Admiralty and maritime jurisdiction; to controversies between two or more States, (except such as shall regard Territory or Jurisdiction) between a State and Citizens of another State, between Citizens of different States, and between a State or the Citizens thereof and foreign States, citizens or subjects. In cases of impeachment, cases affecting Ambassadors, other Public Ministers and Consuls, and those in which a State shall be party, this jurisdiction shall be original. In all the other cases beforementioned, it shall be appellate, with such exceptions and under such regulations as the Legislature shall make. The Legislature may assign any part of the jurisdiction abovementioned (except the trial of the President of the United States) in the manner, and under the limitations which it shall think proper, to such Inferior Courts, as it shall constitute from time to time.
Sect. 4. The trial of all criminal offences (except in cases of impeachments) shall be in the State where they shall be committed; and shall be by Jury.
Sect. 5. Judgment, in cases of Impeachment, shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honour, trust or profit, under the United States. But the party convicted shall, nevertheless be liable and subject to indictment, trial, judgment and punishment according to law.
XII
No State shall coin money; nor grant letters of marque and reprisal; nor enter into any Treaty, alliance, or confederation; nor grant any title of Nobility.
XIII
No State, without the consent of the Legislature of the United States, shall emit bills of credit, or make any thing but specie a tender in payment of debts; nor lay imposts or duties on imports; nor keep troops or ships of war in time of peace; nor enter into any agreement or compact with another State, or with any foreign power; nor engage in any war, unless it shall be actually invaded by enemies, or the danger of invasion be so imminent, as not to admit of a delay, until the Legislature of the United States can be consulted.
XIV
The Citizens of each State shall be entitled to all privileges and immunities of citizens in the several States.
XV
Any person charged with treason, felony or high misdemeanor in any State, who shall flee from justice, and shall be found in any other State, shall, on demand of the Executive power of the State from which he fled, be delivered up and removed to the State having jurisdiction of the offence.
XVI
Full faith shall be given in each State to the acts of the Legislatures, and to the records and judicial proceedings of the Courts and magistrates of every other State.
XVII
New States lawfully constituted or established within the limits of the United States may be admitted, by the Legislature, into this government; but to such admission the consent of two thirds of the members present in each House shall be necessary. If a new State shall arise within the limits of any of the present States, the consent of the Legislatures of such States shall be also necessary to its admission. If the admission be consented to, the new States shall be admitted on the same terms with the original States. But the Legislature may make conditions with the new States, concerning the Public debt which shall be then subsisting.
XVIII
The United States shall guaranty to each State a Republican form of Government; and shall protect each State against foreign invasions, and, on the application of its Legislature, against domestic violence.
XIX
On the application of the Legislatures of two thirds of the States in the Union, for an amendment of this Constitution, the Legislature of the United States shall call a convention for that purpose.
XX
The members of the Legislatures, and the Executive and Judicial officers of the United States, and of the several States, shall be bound by oath to support this Constitution.
XXI
The ratification of the Conventions of ---- States shall be sufficient for organizing this Constitution.
XXII
This Constitution shall be laid before the United States in Congress Assembled, for their approbation; and it is the opinion of this Convention, that it should be afterwards submitted to a Convention chosen, under the recommendation of its legislature, in order to receive the ratification of such Convention.
XXIII
To introduce this government, it is the opinion of this Convention, that each assenting Convention should notify its assent and ratification to the United States in Congress assembled; that Congress, after receiving the assent and ratification of the Conventions of ---- States, should appoint and publish a day, as early as may be, and appoint a place, for commencing proceedings under this Constitution; that after such publication, the Legislatures of the several States should elect members of the Senate, and direct the election of members of the House of Representatives; and that the members of the Legislature should meet at the time and place assigned by Congress, and should, as soon as may be, after their meeting, choose the President of the United States, and proceed to execute this Constitution.
A motion was made to adjourn till Wednesday, in order to give leisure to examine the Report; which passed in the negative--
N. H. no. Mas. no. C^t no. P^a ay. M^d ay. Virg. ay. N. C. no. S. C. no.
The House then adjourned till to-morrow 11 OC.
TUESDAY AUGUST 7.[17] IN CONVENTION
[17] Although the secrecy of the proceedings was guarded carefully, the reason of the long adjournment was generally known outside of the Convention.
"The Convention adjourned about three weeks ago and appointed a Committee consisting of M^r Rutlege, M^r Randolph, M^r Wilson, M^r Elsworth, & M^r Gorham to draw into form the measures which had been agreed upon--they reassembled last Monday sen'night to receive the report--I suppose we shall have the result of this great business in a few weeks more."--Edward Carrington to Monroe, August 7, 1787. Monroe MSS.
_Cf._ King's account of the debate confirming the accuracy of Madison's report (King's _Life and Correspondence of Rufus King_, i., 617).
The Report of the Committee of detail being taken up,
M^r Pinkney moved that it be referred to a Committee of the whole. This was strongly opposed by M^r Ghorum & several others, as likely to produce unnecessary delay; and was negatived, Delaware Mary^d & Virg^a only being in the affirmative.
The preamble of the Report was agreed to nem. con. So were Art: I & II.
Art: III considered. Col. Mason doubted the propriety of giving each branch a negative on the other "in all cases." There were some cases in which it was he supposed not intended to be given as in the case of balloting for appointments.
M^r Gov^r Morris moved to insert "legislative acts" instead of "all cases."
M^r Williamson 2^{ds} him.
M^r Sherman. This will restrain the operation of the clause too much. It will particularly exclude a mutual negative in the case of ballots, which he hoped would take place.
M^r Ghorum contended that elections ought to be made by _joint ballot_. If separate ballots should be made for the President, and the two branches should be each attached to a favorite, great delay contention & confusion may ensue. These inconveniences have been felt in Mas^{ts} in the election of officers of little importance compared with the Executive of the U. States. The only objection ag^{st} a joint ballot is that it may deprive the Senate of their due weight; but this ought not to prevail over the respect due to the public tranquility & welfare.
M^r Wilson was for a joint ballot in several cases at least; particularly in the choice of the President, and was therefore for the amendment. Disputes between the two Houses during & concern^g the vacancy of the Executive might have dangerous consequences.
Col. Mason thought the amendment of M^r Gov^r Morris extended too far. Treaties are in a subsequent part declared to be laws, they will therefore be subjected to a negative; altho' they are to be made as proposed by the Senate alone. He proposed that the mutual negative should be restrained to "cases requiring the distinct assent" of the two Houses.
M^r Gov^r Morris thought this but a repetition of the same thing; the mutual negative and distinct assent, being equivalent expressions. Treaties he thought were not laws.
M^r Madison moved to strike out the words each of which shall in all cases, have a negative on the other; the idea being sufficiently expressed in the preceding member of the article; vesting the "legislative power" in "distinct bodies," especially as the respective powers and mode of exercising them were fully delineated in a subsequent article.
Gen^l Pinkney 2^{ded} the motion.
On question for inserting legislative Acts as moved by M^r Gov^r Morris
N. H. ay. Mas. ay. C^t ay. P^a ay. Del. no. M^d no. V^a no. N. C. ay. S. C. no. Geo. no.
On question for agreeing to M^r M's motion to strike out &c.----
N. H. ay. Mas. ay. C^t no. P^a ay. Del. ay. M^d no. V^a ay. N. C. no. S. C. ay. Geo. ay.
M^r Madison wished to know the reasons of the Com^e for fixing by y^e Constitution the time of Meeting for the Legislature; and suggested, that it be required only that one meeting at least should be held every year leaving the time to be fixed or varied by law.
M^r Gov^r Morris moved to strike out the sentence. It was improper to tie down the Legislature to a particular time, or even to require a meeting every year. The public business might not require it.
M^r Pinkney concurred with M^r Madison.
M^r Ghorum. If the time be not fixed by the Constitution, disputes will arise in the Legislature; and the States will be at a loss to adjust thereto, the times of their elections. In the N. England States the annual time of meeting had been long fixed by their Charters & Constitutions, and no inconvenience had resulted. He thought it necessary that there should be one meeting at least every year as a check on the Executive department.
M^r Elseworth was ag^{st} striking out the words. The Legislature will not know till they are met whether the public interest required their meeting or not. He could see no impropriety in fixing the day, as the Convention could judge of it as well as the Legislature.
M^r Wilson thought on the whole it would be best to fix the day.
M^r King could not think there would be a necessity for a meeting every year. A great vice in our system was that of legislating too much. The most numerous objects of legislation belong to the States. Those of the Nat^l Legislature were but few. The chief of them were commerce & revenue. When these should be once settled alterations would be rarely necessary & easily made.
M^r Madison thought if the time of meeting should be fixed by a law it w^d be sufficiently fixed & there would be no difficulty then as had been suggested, on the part of the States in adjusting their elections to it. One consideration appeared to him to militate strongly ag^{st} fixing a time by the Constitution. It might happen that the Legislature might be called together by the public exigencies & finish their Session but a short time before the annual period. In this case it would be extremely inconvenient to reassemble so quickly & without the least necessity. He thought one annual meeting ought to be required; but did not wish to make two unavoidable.
Col. Mason thought the objections against fixing the time insuperable: but that an annual meeting ought to be required as essential to the preservation of the Constitution. The extent of the Country will supply business. And if it should not, the Legislature, besides _legislative_, is to have _inquisitorial_ powers, which cannot safely be long kept in a state of suspension.
M^r Sherman was decided for fixing the time, as well as for frequent meetings of the Legislative body. Disputes and difficulties will arise between the two Houses, & between both & the States, if the time be changeable--frequent meetings of Parliament were required at the Revolution in England as an essential safeguard of liberty. So also are annual meetings in most of the American charters & constitutions. There will be business eno' to require it. The Western Country, and the great extent and varying state of our affairs in general will supply objects.
M^r Randolph was ag^{st} fixing any day irrevocably; but as there was no provision made any where in the Constitution for regulating the periods of meeting, and some precise time must be fixed, untill the Legislature shall make provision, he could not agree to strike out the words altogether. Instead of which he moved to add the words following--"unless a different day shall be appointed by law."
M^r Madison 2^{ded} the motion, & on the question
N. H. no. Mass. ay. C^t no. P^a ay. Del. ay. M^d ay. V^a ay. N. C. ay. S. C. ay. Geo. ay.
M^r Gov^r Morris moved to strike out Dec^r & insert May. It might frequently happen that our measures ought to be influenced by those in Europe, which were generally planned during the Winter and of which intelligence would arrive in the Spring.
M^r Madison 2^{ded} the motion, he preferred May to Dec^r because the latter would require the travelling to & from the seat of Gov^t in the most inconvenient seasons of the year.
M^r Wilson. The Winter is the most convenient season for business.
M^r Elseworth. The summer will interfere too much with private business, that of almost all the probable members of the Legislature being more or less connected with agriculture.
M^r Randolph. The time is of no great moment now, as the Legislature can vary it. On looking into the Constitutions of the States, he found that the times of their elections with which the election of the Nat^l Representatives would no doubt be made to coincide, would suit better with Dec^r than May. And it was advisable to render our innovations as little incommodious as possible.
On the question for "May" instead of "Dec^r"
N. H. no. Mass. no. C^t no. P^a no. Del. no. M^d no. V^a no. N. C. no. S. C. ay. Geo. ay.
M^r Read moved to insert after the word "Senate," the words, "subject to the Negative to be hereafter provided." His object was to give an absolute Negative to the Executive--He considered this as so essential to the Constitution, to the preservation of liberty, & to the public welfare, that his duty compelled him to make the Motion.
M^r Gov^r Morris 2^{ded} him. And on the question
N. H. no. Mass. no. C^t no. P^a no. Del. ay. M^d no. V^a no. N. C. no. S. C. no. Geo. no.
M^r Rutlidge. Altho' it is agreed on all hands that an annual meeting of the Legislature should be made necessary, yet that point seems not to be free from doubt as the clause stands. On this suggestion, "Once at least in every year," were inserted, nem. con.
Art. III with the foregoing alterations was ag^d to nem. con., and is as follows: "The Legislative power shall be vested in a Congress to consist of 2 separate & distinct bodies of men; a House of Rep^s & a Senate. The Legislature shall meet at least once in every year, and such meeting shall be on the 1^{st} Monday in Dec^r unless a different day shall be appointed by law."
"Article IV. Sect. 1. taken up."
M^r Gov^r Morris moved to strike out the last member of the section beginning with the words "qualifications of Electors," in order that some other provision might be substituted which w^d restrain the right of suffrage to freeholders.
M^r Fitzsimons 2^{ded} the motion.
M^r Williamson was opposed to it.
M^r Wilson. This part of the Report was well considered by the Committee, and he did not think it could be changed for the better. It was difficult to form any uniform rule of qualifications for all the States. Unnecessary innovations he thought too should be avoided. It would be very hard & disagreeable for the same persons at the same time, to vote for representatives in the State Legislature and to be excluded from a vote for those in the Nat^l Legislature.
M^r Gov^r Morris. Such a hardship would be neither great nor novel. The people are accustomed to it and not dissatisfied with it, in several of the States. In some the qualifications are different for the choice of the Gov^r & Representatives; In others for different Houses of the Legislature. Another objection ag^{st} the clause as it stands is that it makes the qualifications of the Nat^l Legislature depend on the will of the States, which he thought not proper.
M^r Elseworth. thought the qualifications of the electors stood on the most proper footing. The right of suffrage was a tender point, and strongly guarded by most of the State Constitutions. The people will not readily subscribe to the Nat^l Constitution if it should subject them to be disfranchised. The States are the best Judges of the circumstances & temper of their own people.
Col. Mason. The force of habit is certainly not attended to by those Gentlemen who wish for innovations on this point. Eight or nine States have extended the right of suffrage beyond the freeholders. What will the people there say, if they should be disfranchised. A power to alter the qualifications would be a dangerous power in the hands of the Legislature.
M^r Butler. There is no right of which the people are more jealous than that of suffrage. Abridgments of it tend to the same revolution as in Holland where they have at length thrown all power into the hands of the Senates, who fill up vacancies themselves, and form a rank aristocracy.
M^r Dickinson. had a very different idea of the tendency of vesting the right of suffrage in the freeholders of the Country. He considered them as the best guardians of liberty; And the restriction of the right to them as a necessary defence ag^{st} the dangerous influence of those multitudes without property & without principle with which our Country like all others, will in time abound. As to the unpopularity of the innovation it was in his opinion chimerical. The great mass of our Citizens is composed at this time of freeholders, and will be pleased with it.
M^r Elseworth. How shall the freehold be defined? Ought not every man who pays a tax, to vote for the representative who is to levy & dispose of his money? Shall the wealthy merchants & manufacturers, who will bear a full share of the public burthens be not allowed a voice in the imposition of them. Taxation & representation ought to go together.
M^r Gov^r Morris. He had long learned not to be the dupe of words. The sound of aristocracy therefore had no effect on him. It was the thing, not the name, to which he was opposed, and one of his principal objections to the Constitution as it is now before us, is that it threatens this Country with an aristocracy. The aristocracy will grow out of the House of Representatives. Give the votes to people who have no property, and they will sell them to the rich who will be able to buy them. We should not confine our attention to the present moment. The time is not distant when this Country will abound with mechanics & manufacturers who will receive their bread from their employers. Will such men be the secure & faithful guardians of liberty? Will they be the impregnable barrier ag^{st} aristocracy?--He was as little duped by the association of the words, "taxation & Representation." The man who does not give his vote freely is not represented. It is the man who dictates the vote. Children do not vote. Why? because they want prudence, because they have no will of their own. The ignorant & the dependent can be as little trusted with the public interest. He did not conceive the difficulty of defining "freeholders" to be insuperable. Still less that the restriction could be unpopular. 9/10 of the people are at present freeholders and these will certainly be pleased with it. As to Merch^{ts}. &c. if they have wealth & value the right they can acquire it. If not they don't deserve it.
Col. Mason. We all feel too strongly the remains of antient prejudices, and view things too much through a British medium. A Freehold is the qualification in England, & hence it is imagined to be the only proper one. The true idea in his opinion was that every man having evidence of attachment to & permanent common interest with the Society ought to share in all its rights & privileges. Was this qualification restrained to freeholders? Does no other kind of property but land evidence a common interest in the proprietor? does nothing besides property mark a permanent attachment. Ought the merchant, the monied man, the parent of a number of children whose fortunes are to be pursued in his own Country to be viewed as suspicious characters, and unworthy to be trusted with the common rights of their fellow Citizens.
M^r Madison. the right of suffrage is certainly one of the fundamental articles of republican Government, and ought not to be left to be regulated by the Legislature. A gradual abridgment of this right has been the mode in which aristocracies have been built on the ruins of popular forms. Whether the Constitutional qualification ought to be a freehold, would with him depend much on the probable reception such a change would meet with in States where the right was now exercised by every description of people. In several of the States a freehold was now the qualification. Viewing the subject in its merits alone, the freeholders of the Country would be the safest depositories of Republican liberty. In future times a great majority of the people will not only be without landed, but any other sort of property. These will either combine, under the influence of their common situation: in which case, the rights of property & the public liberty, will not be secure in their hands: or which is more probable, they will become the tools of opulence & ambition, in which case there will be equal danger on another side. The example of England has been misconceived (by Col. Mason.) A very small proportion of the Representatives are there chosen by freeholders. The greatest part are chosen by the Cities & boroughs, in many of which the qualification of suffrage is as low as it is in any one of the U. S. and it was in the boroughs & Cities rather than the Counties, that bribery most prevailed, & the influence of the Crown on elections was most dangerously exerted.[18]
[18] "Note to speech of J. M. in Convention of 1787, August 7^{th}.:
"As appointments for the General Government here contemplated will, in part, be made by the State Gov^{ts}, all the Citizens in States where the right of suffrage is not limited to the holders of property, will have an indirect share of representation in the General Government. But this does not satisfy the fundamental principle that men cannot be justly bound by laws in making which they have no part. Persons & property being both essential objects of Government, the most that either can claim, is such a structure of it as will leave a reasonable security for the other. And the most obvious provision, of this double character, seems to be that of confining to the holders of property the object deemed least secure in popular Gov^{ts} the right of suffrage for one of the two Legislative branches. This is not without example among us, as well as other constitutional modifications, favouring the influence of property in the Government. But the U. S. have not reached the stage of Society in which conflicting feelings of the Class with, and the Class without property, have the operation natural to them in Countries fully peopled. The most difficult of all political arrangements is that of so adjusting the claims of the two Classes as to give security to each and to promote the welfare of all. The federal principle,--which enlarges the sphere of power without departing from the elective basis of it and controuls in various ways the propensity in small republics to rash measures & the facility of forming & executing them, will be found the best expedient yet tried for solving the problem."--Madison's Note.
* * * * *
"Note to the speech of J. M. on the [7^{th}.] day of [August].
"These observations (in the speech of J. M. see debates in the Convention of 1787, on the [7^{th}.] day of [August]) do not convey the speaker's more full & matured view of the subject, which is subjoined. He felt too much at the time the example of Virginia.
"The right of suffrage is a fundamental Article in Republican Constitutions. The regulation of it is, at the same time, a task of peculiar delicacy. Allow the right exclusively to property, and the rights of persons may be oppressed. The feudal polity, alone sufficiently proves it. Extend it equally to all, and the rights of property, or the claims of justice, may be overruled by a majority without property or interested in measures of injustice. Of this abundant proof is afforded by other popular Gov^{ts} and is not without examples in our own, particularly in the laws impairing the obligation of contracts.
"In civilized communities, property as well as personal rights is an essential object of the laws, which encourage industry by securing the enjoyment of its fruits; that industry from which property results, & that enjoyment which consists not merely in its immediate use, but in its posthumous destination to objects of choice and of kindred affection.
"In a just & a free Government, therefore, the rights both of property & of persons ought to be effectually guarded. Will the former be so in case of a universal & equal suffrage? Will the latter be so in case of a suffrage confined to the holders of property?
"As the holders of property have at stake all the other rights common to those without property, they may be the more restrained from infringing, as well as the less tempted to infringe the rights of the latter. It is nevertheless certain, that there are various ways in which the rich may oppress the poor; in which property may oppress liberty; and that the world is filled with examples. It is necessary that the poor should have a defence against the danger.
"On the other hand, the danger to the holders of property cannot be disguised, if they be undefended against a majority without property. Bodies of men are not less swayed by interest than individuals, and are less controlled by the dread of reproach and the other motives felt by individuals. Hence the liability of the rights of property, and of the impartiality of laws affecting it, to be violated by Legislative majorities having an interest real or supposed in the injustice: Hence agrarian laws, and other leveling schemes: Hence the cancelling or evading of debts, and other violations of contracts. We must not shut our eyes to the nature of man, nor to the light of experience. Who would rely on a fair decision from three individuals if two had an interest in the case opposed to the rights of the third? Make the number as great as you please, the impartiality will not be increased; nor any further security against injustice be obtained, than what may result from the greater difficulty of uniting the wills of a greater number.
"In all Gov^{ts} there is a power which is capable of oppressive exercise. In Monarchies and Aristocracies oppression proceeds from a want of sympathy & responsibility in the Gov^t towards the people. In popular Governments the danger lies in an undue sympathy among individuals composing a majority, and a want of responsibility in the majority to the minority. The characteristic excellence of the political System of the U. S. arises from a distribution and organization of its powers, which at the same time that they secure the dependence of the Gov^t on the will of the nation, provides better guards than are found in any other popular Gov^t against interested combinations of a Majority against the rights of a Minority.
"The U. States have a precious advantage also in the actual distribution of property particularly the landed property; and in the universal hope of acquiring property. This latter peculiarity is among the happiest contrasts in their situation to that of the old world, where no anticipated change in this respect, can generally inspire a like sympathy with the rights of property. There may be at present, a Majority of the Nation, who are even freeholders, or the heirs or aspirants to Freeholds. And the day may not be very near when such will cease to make up a Majority of the community. But they cannot always so continue. With every admissible subdivision of the Arable lands, a populousness not greater than that of England or France will reduce the holders to a Minority. And whenever the majority shall be without landed or other equivalent property and without the means or hope of acquiring it, what is to secure the rights of property ag^{st} the danger from an equality & universality of suffrage, vesting compleat power over property in hands without a share in it: not to speak of a danger in the meantime from a dependence of an increasing number on the wealth of a few? In other Countries this dependence results in some from the relations between Landlords & Tenants in others both from that source & from the relations between wealthy capitalists and indigent labourers. In the U. S. the occurrence must happen from the last source; from the connection between the great Capitalists in Manufactures & Commerce and the numbers employed by them. Nor will accumulations of Capital for a certain time be precluded by our laws of descent & of distribution; Such being the enterprise inspired by free Institutions, that great wealth in the hands of individuals and associations may not be unfrequent. But it may be observed, that the opportunities may be diminished, and the permanency defeated by the equalizing tendency of our laws.
"No free Country has ever been without parties, which are a natural offspring of Freedom. An obvious and permanent division of every people is into the owners of the soil, and the other inhabitants. In a certain sense the country may be said to belong to the former. If each landholder has an exclusive property in his share, the Body of Landholders have an exclusive property in the whole. As the Soil becomes subdivided, and actually cultivated by the owners, this view of the subject derives force from the principle of natural law, which vests in individuals an exclusive right to the portions of ground with which he has incorporated his labour & improvements. Whatever may be the rights of others derived from their birth in the Country, from their interest in the highways & other parcels left open for common use, as well as in the national edifices and monuments; from their share in the public defence, and from their concurrent support of the Gov^t, it would seem unreasonable to extend the right so far as to give them when become the majority, a power of Legislation over the landed property without the consent of the proprietors. Some barrier ag^{st} the invasion of their rights would not be out of place in a just and provident System of Gov^t. The principle of such an arrangement has prevailed in all Gov^{ts} where peculiar privileges or interests held by a part were to be secured ag^{st} violation, and in the various associations where pecuniary or other property forms the stake. In the former case a defensive right has been allowed; and if the arrangement be wrong, it is not in the defense but in the kind of privilege to be defended. In the latter case, the shares of suffrage, allotted to individuals have been with acknowledged justice apportioned more or less to their respective interests in the Common Stock.
"These reflections suggest the expediency of such a modification of Gov^t as would give security to the part of the Society having most at stake and being most exposed to danger. Three modifications present themselves.
"1. _Confining_ the right of suffrage to freeholders, & to such as hold an equivalent property, convertible of course into freeholds. The objection to this regulation is obvious. It violates the vital principle of free Gov^t that those who are to be bound by laws, ought to have a voice in making them. And the violation w^d be more strikingly unjust as the law makers become the minority. The regulation would be as unpropitious, also, as it would be unjust. It would engage the numerical & physical force in a constant struggle ag^{st} the public authority; unless kept down by a standing army fatal to all parties.
"2. Confining the right of suffrage for one Branch to the holders of property, and for the other Branch to those without property. This arrangement which w^d give a mutual defence, where there might be mutual danger of encroachment, has an aspect of equality & fairness. But it w^d not be in fact either equal or fair, because the rights to be defended would be unequal, being on one side those of property as well as of persons, and on the other those of persons only. The temptation also to encroach tho' in a certain degree mutual, w^d be felt more strongly on one side than on the other: It would be more likely to beget an abuse of the Legislative Negative in extorting concessions at the expence of property, than the reverse. The division of the State into two Classes, with distinct & independ^t Organs of power, and without any intermingled agency whatever, might lead to contests & antipathies not dissimilar to those between the Patricians & Plebeians at Rome.
"3. Confining the right of electing one Branch of the Legislature to freeholders, and admitting all others to a common right with holders of property in electing the other Branch. This w^d give a defensive power to holders of property, and to the class also without property when becoming a majority of electors, without depriving them in the meantime of a participation in the Public Councils. If the holders of property would thus have a two-fold share of representation, they w^d have at the same time a two-fold stake in it, the rights of property as well as of persons, the two-fold object of political Institutions. And if no exact & safe equilibrium can be introduced, it is more reasonable that a preponderating weight sh^d be allowed to the greater interest than to the lesser. Experience alone can decide how far the practice in this case would correspond with the Theory. Such a distribution of the right of suffrage was tried in N. York and has been abandoned whether from experienced evils, or party calculations, may possibly be a question. It is still on trial in N. Carolina, with what practical indications is not known. It is certain that the trial, to be satisfactory ought to be continued for no inconsiderable period; untill in fact the non-freeholders should be the majority.
"4. Should experience or public opinion require an equal & universal suffrage for each branch of the Gov^t such as prevails generally in the U. S., a resource favorable to the rights of the landed & other property, when its possessors become the minority, may be found in an enlargement of the Election Districts for one branch of the Legislature, and an extension of its period of service. Large districts are manifestly favorable to the election of persons of general respectability, and of probable attachment to the rights of property, over competitors depending on the personal solicitation practicable on a contracted theatre. And altho' an ambitious candidate, of personal distinction, might occasionally recommend himself to popular choice by espousing a popular though unjust object, it might rarely happen to many districts at the same time. The tendency of a longer period of service would be, to render the Body more stable in its policy, and more capable of stemming popular currents taking a wrong direction, till reason & justice could regain their ascendancy.
"5. Should even such a modification as the last be deemed inadmissible, and universal suffrage and very short periods of elections within contracted spheres, be required for each branch of the Gov^t, the security for the holders of property when the minority, can only be derived from the ordinary influence possessed by property, & the superior information incident to its holders; from the popular sense of justice enlightened & enlarged by a diffusive education; and from the difficulty of combining & effectuating unjust purposes throughout an extensive country; a difficulty essentially distinguishing the U. S. & even most of the individual States, from the small communities where a mistaken interest or contagious passion, could readily unite a majority of the whole under a factious leader, in trampling on the rights of the minor party.
"Under every view of the subject, it seems indispensable that the Mass of Citizens should not be without a voice, in making the laws which they are to obey, & in chusing the Magistrates who are to administer them, and if the only alternative be between an equal & universal right of suffrage for each branch of the Gov^t and a confinement of the _entire_ right to a part of the Citizens, it is better that those having the greater interest at stake namely that of property & persons both, should be deprived of half their share in the Gov^t than, that those having the lesser interest, that of personal rights only, should be deprived of the whole."--Madison's Note.
Doc^r Franklin. It is of great consequence that we sh^d not depress the virtue & public spirit of our common people; of which they displayed a great deal during the war, and which contributed principally to the favorable issue of it. He related the honorable refusal of the American seamen who were carried in great numbers into the British Prisons during the war, to redeem themselves from misery or to seek their fortunes, by entering on board the Ships of the Enemies to their Country; contrasting their patriotism with a contemporary instance in which the British seamen made prisoners by the Americans, readily entered on the ships of the latter on being promised a share of the prizes that might be made out of their own Country. This proceeded he said from the different manner in which the common people were treated in America & G. Britain. He did not think that the elected had any right in any case to narrow the privileges of the electors. He quoted as arbitrary the British Statute setting forth the danger of tumultuous meetings, and under that pretext narrowing the right of suffrage to persons having freeholds of a certain value; observing that this Statute was soon followed by another under the succeeding Parliam^t subjecting the people who had no votes to peculiar labors & hardships. He was persuaded also that such a restriction as was proposed would give great uneasiness in the populous States. The sons of a substantial farmer, not being themselves freeholders, would not be pleased at being disfranchised, and there are a great many persons of that description.
M^r Mercer. The Constitution is objectionable in many points, but in none more than the present. He objected to the footing on which the qualification was put, but particularly to the _mode of election_ by the people. The people can not know & judge of the characters of Candidates. The worse possible choice will be made. He quoted the case of the Senate in Virg^a as an example in point. The people in Towns can unite their votes in favor of one favorite; & by that means always prevail over the people of the Country, who being dispersed will scatter their votes among a variety of candidates.
M^r Rutlidge thought the idea of restraining the right of suffrage to the freeholders a very unadvised one. It would create division among the people & make enemies of all those who should be excluded.
On the question for striking out as moved by M^r Gov^r Morris, from the word "qualifications" to the end of the III article
N. H. no. Mass. no. C^t no. P^a no. Del. ay. M^d div^d. V^a no. N. C. no. S. C. no. Geo. not pres^t.
Adjourned
WEDNESDAY AUG^{ST} 8. IN CONVENTION
Art: IV. sect. 1.--M^r Mercer expressed his dislike of the whole plan, and his opinion that it never could succeed.
M^r Ghorum. he had never seen any inconveniency from allowing such as were not freeholders to vote, though it had long been tried. The elections in Phil^a, N. York & Boston where the Merchants & Mechanics vote are at least as good as those made by freeholders only. The case in England was not accurately stated yesterday (by M^r Madison). The Cities & large towns are not the seat of Crown influence & corruption. These prevail in the Boroughs, and not on account of the right which those who are not freeholders have to vote, but of the smallness of the number who vote. The people have been long accustomed to this right in various parts of America, and will never allow it to be abridged. We must consult their rooted prejudices if we expect their concurrence in our propositions.
M^r Mercer did not object so much to an election by the people at large including such as were not freeholders, as to their being left to make their choice without any guidance. He hinted that Candidates ought to be nominated by the State Legislatures.
On the question for agreeing to Art: IV--Sect, 1 it pass^d nem. con.
Art. IV. Sect. 2. taken up.
Col. Mason was for opening a wide door for emigrants; but did not chuse to let foreigners and adventurers make laws for us & govern us. Citizenship for three years was not enough for ensuring that local knowledge which ought to be possessed by the Representative. This was the principal ground of his objection to so short a term. It might also happen that a rich foreign Nation, for example Great Britain, might send over her tools who might bribe their way into the Legislature for insidious purposes. He moved that "seven" years instead of "three," be inserted.
M^r Gov^r Morris 2^{ded} the Motion, & on the question, all the States agreed to it except Connecticut.
M^r Sherman moved to strike out the word "resident" and insert "inhabitant," as less liable to misconstruction.
M^r Madison 2^{ded} the motion, both were vague, but the latter least so in common acceptation, and would not exclude persons absent occasionally for a considerable time on public or private business. Great disputes had been raised in Virg^a concerning the meaning of residence as a qualification of Representatives which were determined more according to the affection or dislike to the man in question, than to any fixt interpretation of the word.
M^r Wilson preferred "inhabitant."
M^r Gov^r Morris, was opposed to both and for requiring nothing more than a freehold. He quoted great disputes in N. York occasioned by these terms, which were decided by the arbitrary will of the majority. Such a regulation is not necessary. People rarely chuse a nonresident--It is improper as in the 1^{st} branch, _the people at large_, not the _States_, are represented.
M^r Rutlidge urged & moved, that a residence of 7 years sh^d be required in the State Wherein the Member sh^d be elected. An emigrant from N. England to S. C. or Georgia would know little of its affairs and could not be supposed to acquire a thorough knowledge in less time.
M^r Read reminded him that we were now forming a _Nat^l_ Gov^t and such a regulation would correspond little with the idea that we were one people.
M^r Wilson. enforced the same consideration.
M^r Madison suggested the case of new States in the West, which could have perhaps no representation on that plan.
M^r Mercer. Such a regulation would present a greater alienship among the States than existed under the old federal system. It would interweave local prejudices & State distinctions in the very Constitution which is meant to cure them. He mentioned instances of violent disputes raised in Maryland concerning the term "residence."
M^r Elseworth thought seven years of residence was by far too long a term: but that some fixt term of previous residence would be proper. He thought one year would be sufficient, but seemed to have no objection to three years.
M^r Dickinson proposed that it should read "inhabitant actually resident for ---- years." This would render the meaning less indeterminate.
M^r Wilson. If a short term should be inserted in the blank, so strict an expression might be construed to exclude the members of the Legislature, who could not be said to be actual residents in their States whilst at the Seat of the Gen^l Government.
M^r Mercer. It would certainly exclude men, who had once been inhabitants, and returning from residence elsewhere to resettle in their original State; although a want of the necessary knowledge could not in such cases be presumed.
M^r Mason thought 7 years too long, but would never agree to part with the principle. It is a valuable principle. He thought it a defect in the plan that the Representatives would be too few to bring with them all the local knowledge necessary. If residence be not required, Rich men of neighbouring States, may employ with success the means of corruption in some particular district and thereby get into the public Councils after having failed in their own State. This is the practice in the boroughs of England.
On the question for postponing in order to consider M^r Dickinsons motion
N. H. no. Mass. no. C^t no. N. J. no. P^a no. Del. no. M^d ay. V^a no. N. C. no. S. C. ay. Geo. ay.
On the question for inserting "inhabitant" in place of "resident"--ag^d to nem. con.
M^r Elseworth & Col. Mason move to insert "one year" for previous inhabitancy.
M^r Williamson liked the Report as it stood. He thought "resident" a good eno' term. He was ag^{st} requiring any period of previous residence. New residents if elected will be most zealous to conform to the will of their constituents, as their conduct will be watched with a more jealous eye.
M^r Butler & M^r Rutlidge moved "three years" instead of "one year" for previous inhabitancy.
On the question for 3 years,
N. H. no. Mass. no. C^t no. N. J. no. P^a no. Del. no. M^d no. V^a no. N. C. no. S. C. ay. Geo. ay.
On the question for "1 year"
N. H. no.--Mass. no. C^t no. N. J. ay. P^a no. Del. no. M^d div^d. V^a no. N. C. ay. S. C. ay. Geo. ay.
Art. IV. Sect. 2. as amended in manner preceding, was agreed to nem. con.
Art. IV. Sect. 3. taken up.
Gen^l Pinkney & M^r Pinkney moved that the number of Representatives allotted to S. Carol^a be "six." On the question,
N. H. no. Mass. no. C^t no. N. J. no. P^a no. Delaware ay. M^d no. V^a no. N. C. ay. S. C. ay. Geo. ay.
The 3. Sect of Art: IV, was then agreed to.
Art: IV. Sect. 4. taken up.
M^r Williamson moved to strike out "according to the provisions hereinafter made" and to insert the words "according to the rule hereafter to be provided for direct taxation."--See Art. VII. Sect. 3.
On the question for agreeing to M^r Williamson's amendment
N. H. ay. Mass. ay. C^t ay. N. J. no. P^a ay. Del. no. M^d ay. V^a ay. N. C. ay. S. C. ay. Geo. ay.
M^r King wished to know what influence the vote just passed was meant to have on the succeeding part of the Report, concerning the admission of Slaves into the rule of Representation. He could not reconcile his mind to the article if it was to prevent objections to the latter part. The admission of slaves was a most grating circumstance to his mind, & he believed would be so to a great part of the people of America. He had not made a strenuous opposition to it heretofore because he had hoped that this concession would have produced a readiness which had not been manifested, to strengthen the Gen^l Gov^t and to mark a full confidence in it. The Report under consideration had by the tenor of it, put an end to all those hopes. In two great points the hands of the Legislature were absolutely tied. The importation of slaves could not be prohibited--exports could not be taxed. Is this reasonable? What are the great objects of the Gen^l System? 1. defence ag^{st} foreign invasion. 2. ag^{st} internal sedition. Shall all the States then be bound to defend each; & shall each be at liberty to introduce a weakness which will render defence more difficult? Shall one part of the U. S. be bound to defend another part, and that other part be at liberty not only to increase its own danger, but to withhold the compensation for the burden? If slaves are to be imported shall not the exports produced by their labor, supply a revenue the better to enable the Gen^l Gov^a to defend their Masters? There was so much inequality & unreasonableness in all this, that the people of the Northern States could never be reconciled to it. No candid man could undertake to justify it to them. He had hoped that some accommodation w^d have taken place on this subject; that at least a time w^d have been limited for the importation of slaves. He never could agree to let them be imported without limitation & then be represented in the Nat^l Legislature. Indeed he could so little persuade himself of the rectitude of such a practice, that he was not sure he could assent to it under any circumstances. At all events, either slaves should not be represented, or exports should be taxable.
M^r Sherman regarded the slave trade as iniquitous; but the point of representation having been settled after much difficulty & deliberation, he did not think himself bound to make opposition; especially as the present article as amended did not preclude any arrangement whatever on that point in another place of the Report.
M^r Madison objected to 1 for every 40.000 inhabitants as a perpetual rule. The future increase of population if the Union sh^d be permanent, will render the number of Representatives excessive.
M^r Ghorum. It is not to be supposed that the Gov^t will last so long as to produce this effect. Can it be supposed that this vast Country including the Western territory will 150 years hence remain one nation?
M^r Elseworth. If the Gov^t should continue so long, alterations may be made in the Constitution in the manner proposed in a subsequent article.
M^r Sherman & M^r Madison moved to insert the words "not exceeding," before the words "1 for every 40.000." which was agreed to nem. con.
M^r Gov^r Morris moved to insert "free" before the word inhabitants. Much he said would depend on this point. He never would concur in upholding domestic slavery. It was a nefarious institution. It was the curse of heaven on the States where it prevailed. Compare the free regions of the Middle States, where a rich & noble cultivation marks the prosperity & happiness of the people, with the misery & poverty which overspread the barren wastes of V^a Mary^d & the other States having slaves. Travel thro' y^e whole Continent & you behold the prospect continually varying with the appearance & disappearance of slavery. The moment you leave y^e E. States & enter N. York, the effects of the institution become visible, passing thro' the Jerseys & entering P^a every criterion of superior improvement witnesses the change. Proceed southw^{dly}. & every step you take thro' y^e great regions of slaves presents a desert increasing, with y^e increasing [word is illegible] proportion of these wretched beings. Upon what principle is it that the slaves shall be computed in the representation? Are they men? Then make them Citizens and let them vote. Are they property? Why then is no other property included? The Houses in this city (Philad^a) are worth more than all the wretched Slaves which cover the rice swamps of South Carolina. The admission of slaves into the Representation when fairly explained comes to this: that the inhabitant of Georgia and S. C. who goes to the Coast of Africa, and in defiance of the most sacred laws of humanity tears away his fellow creatures from their dearest connections & damns them to the most cruel bondages, shall have more votes in a Gov^t instituted for protection of the rights of mankind, than the Citizen of P^a or N. Jersey who views with a laudable horror, so nefarious a practice. He would add that Domestic slavery is the most prominent feature in the aristocratic countenance of the proposed Constitution. The vassalage of the poor has ever been the favorite offspring of Aristocracy. And What is the proposed compensation to the Northern States for a sacrifice of every principle of right, of every impulse of humanity. They are to bind themselves to march their militia for the defence of the S. States; for their defence ag^{st} those very slaves of whom they complain. They must supply vessels & seamen in case of foreign Attack. The Legislature will have indefinite power to tax them by excises, and duties on imports: both of which will fall heavier on them than on the Southern inhabitants; for the bohae tea used by a Northern freeman, will pay more tax than the whole consumption of the miserable slave, which consists of nothing more than his physical subsistence and the rag that covers his nakedness. On the other side the Southern States are not to be restrained from importing fresh supplies of wretched Africans, at once to increase the danger of attack, and the difficulty of defence; nay they are to be encouraged to it by an assurance of having their votes in the Nat^l Gov^t increased in proportion, and are at the same time to have their exports & their slaves exempt from all contributions for the public service. Let it not be said that direct taxation is to be proportioned to representation. It is idle to suppose that the Gen^l Gov^t can stretch its hand directly into the pockets of the people scattered over so vast a Country. They can only do it through the medium of exports imports & excises. For What then are all the sacrifices to be made? He would sooner submit himself to a tax for paying for all the negroes in the U. States, than saddle posterity with such a Constitution.
M^r Dayton 2^{ded} the motion. He did it he said that his sentiments on the subject might appear whatever might be the fate of the amendment.
M^r Sherman, did not regard the admission of the Negroes into the ratio of representation, as liable to such insuperable objections. It was the freemen of the South^n States who were in fact to be represented according to the taxes paid by them, and the Negroes are only included in the Estimate of the taxes. This was his idea of the matter.
M^r Pinkney, considered the fisheries & the Western frontier as more burthensome to the U. S. than the slaves. He thought this could be demonstrated if the occasion were a proper one.
M^r Wilson, thought the motion premature. An agreement to the clause would be no bar to the object of it.
Question On motion to insert "free" before "inhabitants,"
N. H. no. Mass. no. C^t no. N. J. ay. P^a no. Del. no. M^d no. V^a no. N. C. no. S. C. no. Geo. no.
On the suggestion of M^r Dickinson the words, "provided that each State shall have one representative at least,"--were added nem. con.
Art. IV. Sect. 4. as amended was agreed to con. nem.
Art. IV. Sect. 5. taken up.
M^r Pinkney moved to strike out Sect. 5. As giving no peculiar advantage to the House of Representatives, and as clogging the Gov^t. If the Senate can be trusted with the many great powers proposed, it surely may be trusted with that of originating money bills.
M^r Ghorum. was ag^{st} allowing the Senate to _originate_; but only to _amend_.
M^r Gov^r Morris. It is particularly proper that the Senate sh^d have the right of originating money bills. They will sit constantly, will consist of a smaller number, and will be able to prepare such bills with due correctness; and so as to prevent delay of business in the other House.
Col. Mason was unwilling to travel over this ground again. To strike out the Section, was to unhinge the compromise of which it made a part. The duration of the Senate made it improper. He does not object to that duration. On the Contrary he approved of it. But joined with the smallness of the number, it was an argument against adding this to the other great powers vested in that body. His idea of an Aristocracy was that it was the govern^t of the few over the many. An aristocratic body, like the screw in mechanics, work^g its way by slow degrees, and holding fast whatever it gains, should ever be suspected of an encroaching tendency. The purse strings should never be put into its hands.
M^r Mercer, considered the exclusive power of originating Money bills as so great an advantage, that it rendered the equality of votes in the Senate ideal & of no consequence.
M^r Butler was for adhering to the principle which had been settled.
M^r Wilson was opposed to it on its merits without regard to the compromise.
M^r Elseworth did not think the clause of any consequence, but as it was thought of consequence by some members from the larger States, he was willing it should stand.
M^r Madison was for striking it out; considering it as of no advantage to the large States as fettering the Gov^t and as a source of injurious altercations between the two Houses.
On the question for striking out "Sect. 5, Art. IV".
N. H. no. Mass. no. C^t no. N. J. ay. P^a ay. Del. ay. M^d ay. V^a ay. N. C. no. S. C. ay. Geo. ay.
Adj^d.
THURSDAY, AUG^{ST} 9. IN CONVENTION
Art: IV. Sect. 6. M^r Randolph expressed his dissatisfaction at the disagreement yesterday to Sect. 5. concerning money bills, as endangering the success of the plan, and extremely objectionable in itself; and gave notice that he should move for a reconsideration of the vote.
M^r Williamson said he had formed a like intention.
M^r Wilson, gave notice that he sh^d move to reconsider the vote, requiring seven instead of three years of Citizenship as a qualification of candidates for the House of Representatives.
Art. IV. Sec. 6. & 7. Agreed to nem. con.
Art. V. Sect. 1. taken up.
M^r Wilson objected to vacancies in the Senate being supplied by the Executives of the States. It was unnecessary as the Legislatures will meet so frequently. It removes the appointment too far from the people; the Executives in most of the States being elected by the Legislatures. As he had always thought the appointment of the Executives by the Legislative department wrong; so it was still more so that the Executive should elect into the Legislative department.
M^r Randolph thought it necessary in order to prevent inconvenient chasms in the Senate. In some States the Legislatures meet but once a year. As the Senate will have more power & consist of a smaller number than the other House, vacancies there will be of more consequence. The Executives might be safely trusted he thought with the appointment for so short a time.
M^r Elseworth. It is only said that the Executive _may_ supply vacancies. When the Legislative meeting happens to be near, the power will not be exerted. As there will be but two members from a State vacancies may be of great moment.
M^r Williamson. Senators may resign or not accept. This provision is therefore absolutely necessary.
On the question for striking out "vacancies shall be supplied by the Executives"
N. H. no. Mass. no. C^t no. N. J. no. P^a ay. M^d div^d. V^a no. N. C. no. S. C. no. Geo. no.
M^r Williamson moved to insert after "vacancies shall be supplied by the Executives," the following words "unless other provision shall be made by the Legislature" (of the State).
M^r Elseworth. He was willing to trust the Legislature, or the Executive of a State, but not to give the former a discretion to refer appointments for the Senate to whom they pleased.
Question on M^r Williamson's motion
N. H. no. Mass. no. C^t no. N. J. no. P^a no. M^d ay. V^a no. N. C. ay. S. C. ay. Geo. ay.
M^r Madison in order to prevent doubts whether resignations could be made by Senators, or whether they could refuse to accept, moved to strike out the words after "vacancies," & insert the words "happening by refusals to accept, resignations or otherwise, may be supplied by the Legislature of the State in the representation of which such vacancies shall happen, or by the Executive thereof until the next meeting of the Legislature."
M^r Gov^r Morris this is absolutely necessary, otherwise, as members chosen into the Senate are disqualified from being appointed to any office by Sect. 9. of this art: it will be in the power of a Legislature by appointing a man a Senator ag^{st} his consent, to deprive the U. S. of his services.
The motion of M^r Madison was agreed to nem. con.
M^r Randolph called for division of the Section, so as to leave a distinct question on the last words "each member shall have one vote." He wished this last sentence to be postponed until the reconsideration should have taken place on Sect. 5. Art. IV. concerning money bills. If that section should not be reinstated his plan would be to vary the representation in the Senate.
M^r Strong concurred in M^r Randolph's ideas on this point.
M^r Read did not consider the section as to money bills of any advantage to the larger States and had voted for striking it out as being viewed in the same light by the larger States. If it was considered by them as of any value, and as a condition of the equality of votes in the Senate, he had no objection to its being re-instated.
M^r Wilson--M^r Elseworth & M^r Madison urged that it was of no advantage to the larger States, and that it might be a dangerous source of contention between the two Houses. All the principal powers of the Nat^l Legislature had some relation to money.
Doc^r Franklin, considered the two clauses, the originating of money bills, and the equality of votes in the Senate, as essentially connected by the compromise which had been agreed to.
Col. Mason said this was not the time for discussing this point. When the originating of money bills shall be reconsidered, he thought it could be demonstrated that it was of essential importance to restrain the right to the House of Representatives the immediate choice of the people.
M^r Williamson. The State of N. C. had agreed to an equality in the Senate, merely in consideration that money bills should be confined to the other House: and he was surprised to see the smaller States forsaking the condition on which they had received their equality.
Question on the section 1. down to the last sentence
N. H. ay. Mass. no. C^t ay. N. J. ay. P^a[19] no. Del. ay. M^d ay. Virg^a ay. N. C. no. S. C. div^d. Geo. ay.
[19] "In the printed Journal Pennsylvania ay."--Madison's Note.
M^r Randolph moved that the last sentence "each member shall have one vote," be postponed.
It was observed that this could not be necessary; as in case the sanction as to originating money bills should not be reinstated, and a revision of the Constitution should ensue, it w^d still be proper that the members should vote per Capita. A postponement of the preceding sentence allowing to each State 2 members w^d have been more proper.
M^r Mason, did not mean to propose a change of this mode of voting per capita in any event. But as there might be other modes proposed, he saw no impropriety in postponing the sentence. Each State may have two members, and yet may have unequal votes. He said that unless the exclusive originating of money bills should be restored to the House of Representatives, he should, not from obstinacy but duty and conscience, oppose throughout the equality of Representation in the Senate.
M^r Gov^r Morris. Such declarations were he supposed, addressed to the smaller States in order to alarm them for their equality in the Senate, and induce them ag^{st} their judgments, to concur in restoring the section concerning money bills. He would declare in his turn that as he saw no prospect of amending the Constitution of the Senate & considered the section relating to money bills as intrinsically bad, he would adhere to the section establishing the equality at all events.
M^r Wilson. It seems to have been supposed by some that the section concerning money bills is desirable to the large States. The fact was that two of those States (P^a & V^a) had uniformly voted ag^{st} it without reference to any other part of the system.
M^r Randolph, urged as Col. Mason had done that the sentence under consideration was connected with that relating to Money bills, and might possibly be affected by the result of the motion for reconsidering the latter. That the postponement was therefore not improper.
Question for postponing "each member shall have one vote,"
N. H. div^d. Mass. no. C^t no. N. J. no. P^a no. Del. no. M^d no. V^a ay. N. C. ay. S. C. no. Geo. no.
The words were then agreed to as part of the section.
M^r Randolph then gave notice that he should move to reconsider this whole Sect: 1. Art. V. as connected with the 5. Sect. Art. IV. as to which he had already given such notice.
Art. V. Sect. 2^d taken up.
M^r Gov^r Morris moved to insert after the words, "immediately after," the following "they shall be assembled in consequence of," which was agreed to nem. con. as was then the whole sect. 2.
Art: V. Sect. 3. taken up.
M^r Gov^r Morris moved to insert 14 instead of 4 years citizenship as a qualification for Senators: urging the danger of admitting strangers into our public Councils. M^r Pinkney 2^d him.
M^r Elseworth, was opposed to the motion as discouraging meritorious aliens from emigrating to this Country.
M^r Pinkney. As the Senate is to have the power of making treaties & managing our foreign affairs, there is peculiar danger and impropriety in opening its door to those who have foreign attachments. He quoted the jealousy of the Athenians on this subject who made it death for any stranger to intrude his voice into their Legislative proceedings.
Col. Mason highly approved of the policy of the motion. Were it not that many not natives of this Country had acquired great merit during the revolution, he should be for restraining the eligibility into the Senate, to natives.
M^r Madison was not averse to some restrictions on this subject; but could never agree to the proposed amendment. He thought any restriction however in the _Constitution_ unnecessary, and improper, unnecessary; because the Nat^l Legisl^{re} is to have the right of regulating naturalization, and can by virtue thereof fix different periods of residence or conditions of enjoying different privileges of Citizenship: Improper; because it will give a tincture of illiberality to the Constitution: because it will put it out of the power of the Nat^l Legislature even by special acts of naturalization to confer the full rank of Citizens on meritorious strangers & because it will discourage the most desirable class of people from emigrating to the U. S. Should the proposed Constitution have the intended effect of giving stability & reputation to our Gov^{ts} great numbers of respectable Europeans; men who love liberty and wish to partake its blessings, will be ready to transfer their fortunes hither. All such would feel the mortification of being marked with suspicious incapacitations though they s^d not covet the public honors. He was not apprehensive that any dangerous number of strangers would be appointed by the State Legislatures, if they were left at liberty to do so: nor that foreign powers would make use of strangers as instruments for their purposes. Their bribes would be expended on men whose circumstances would rather stifle than excite jealousy & watchfulness in the public.
M^r Butler was decidedly opposed to the admission of foreigners without a long residence in the Country. They bring with them, not only attachments to other Countries; but ideas of Gov^t so distinct from ours that in every point of view they are dangerous. He acknowledged that if he himself had been called into public life within a short time after his coming to America, his foreign habits opinions & attachments would have rendered him an improper agent in public affairs. He mentioned the great strictness observed in Great Britain on this subject.
Doc^r Franklin was not against a reasonable time, but should be very sorry to see any thing like illiberality inserted in the Constitution. The people in Europe are friendly to this Country. Even in the Country with which we have been lately at war, we have now & had during the war, a great many friends not only among the people at large but in both houses of Parliament. In every other Country in Europe all the people are our friends. We found in the course of the Revolution, that many strangers served us faithfully, and that many natives took part ag^{st} their Country. When foreigners after looking about for some other Country in which they can obtain more happiness, give a preference to ours, it is a proof of attachment which ought to excite our confidence & affection.
M^r Randolph did not know but it might be problematical whether emigrations to this Country were on the whole useful or not: but he could never agree to the motion for disabling them for 14 years to participate in the public honours. He reminded the Convention of the language held by our patriots during the Revolution, and the principles laid down in all our American Constitutions. Many foreigners may have fixed their fortunes among us under the faith of these invitations. All persons under this description, with all others who would be affected by such a regulation, would enlist themselves under the banners of hostility to the proposed System. He would go as far as seven years, but no further.
M^r Wilson said he rose with feelings which were perhaps peculiar; mentioning the circumstance of his not being a native, and the possibility, if the ideas of some gentlemen should be pursued, of his being incapacitated from holding a place under the very Constitution, which he had shared in the trust of making. He remarked the illiberal complexion which the motion would give to the System & the effect which a good system would have in inviting meritorious foreigners among us, and the discouragement & mortification they must feel from the degrading discrimination now proposed. He had himself experienced this mortification. On his removal into Maryland, he found himself, from defect of residence, under certain legal incapacities which never ceased to produce chagrin, though he assuredly did not desire & would not have accepted the offices to which they related. To be appointed to a place may be matter of indifference. To be incapable of being appointed, is a circumstance grating and mortifying.
M^r Gov^r Morris. The lesson we are taught is that we should be governed as much by our reason, and as little by our feelings as possible. What is the language of Reason on this subject? That we should not be polite at the expence of prudence. There was a moderation in all things. It is said that some tribes of Indians, carried their hospitality so far as to offer to strangers their wives & daughters. Was this a proper model for us? He would admit them to his house, he would invite them to his table, would provide for them comfortable lodgings; but would not carry the complaisance so far as, to bed them with his wife. He would let them worship at the same altar, but did not choose to make Priests of them. He ran over the privileges which emigrants would enjoy among us, though they should be deprived of that of being eligible to the great offices of Government; observing that they exceeded the privileges allowed to foreigners in any part of the world; and that as every Society from a great nation down to a club had the right of declaring the conditions on which new members should be admitted, there could be no room for complaint. As to those philosophical gentlemen, those Citizens of the World as they called themselves, He owned he did not wish to see any of them in our public Councils. He would not trust them. The men who can shake off their attachments to their own Country can never love any other. These attachments are the wholesome prejudices which uphold all Governments. Admit a Frenchman into your Senate, and he will study to increase the commerce of France: an Englishman, he will feel an equal bias in favor of that of England. It has been said that The Legislatures will not chuse foreigners, at least improper ones. There was no knowing what Legislatures would do. Some appointments made by them, proved that every thing ought to be apprehended from the cabals practised on such occasions. He mentioned the case of a foreigner who left this State in disgrace, and worked himself into an appointment from another to Congress.
Question on the motion of M^r Gov^r Morris to insert 14 in place of 4 years
N.H. ay. Mass. no. C^t no. N.J. ay. P^a no. Del. no. M^d no. V^a no. N. C. no. S. C. ay. Geo. ay.
On 13 years, moved by M^r Gov^r Morris
N. H. ay. Mass. no. C^t no. N. J. ay. P^a no. Del. no. M^d no. V^a no. N. C. no. S. C. ay. Geo. ay.
On 10 years moved by Gen^l Pinkney
N. H. ay. Mass. no. C^t no. N. J. ay. P^a no. Del. no. M^d no. V^a no. N. C. ay. S. C. ay. Geo. ay.
D^r Franklin reminded the Convention that it did not follow from an omission to insert the restriction in the Constitution that the persons in question w^d be actually chosen into the Legislature.
M^r Rutlidge. 7 years of Citizenship have been required for the House of Representatives. Surely a longer time is requisite for the Senate, which will have more power.
M^r Williamson. It is more necessary to guard the Senate in this case than the other House. Bribery & cabal can be more easily practised in the choice of the Senate which is to be made by the Legislatures composed of a few men, than of the House of Represent^s who will be chosen by the people.
M^r Randolph will agree to 9 years with the expectation that it will be reduced to seven if M^r Wilson's motion to reconsider the vote fixing 7 years for the House of Representatives should produce a reduction of that period.
On a question for 9 years
N. H. ay. Mass. no. C^t no. N. J. ay. P^a no. Del. ay. M^d no. V^a ay. N. C. div^d. S. C. ay. Geo. ay.
The term "Resident" was struck out, & "inhabitant" inserted nem. con.
Art. V. Sect. 3. as amended agreed to nem. con.
Sect. 4. agreed to nem. con.
Article VI. Sect. 1. taken up.
M^r Madison & M^r Gov^r Morris moved to strike out "each House" & to insert "the House of Representatives;" the right of the Legislatures to regulate the times & places &c. in the election of Senators being involved in the right of appointing them, which was disagreed to.
Division of the question being called, it was taken on the first part down to "but their provisions concerning &c."
The first part was agreed to nem. con.
M^r Pinkney & M^r Rutlidge moved to strike out the remaining part viz but their provisions concerning them may at any time be altered by the Legislature of the United States. The States they contended could & must be relied on in such cases.
M^r Ghorum. It would be as improper take this power from the Nat^l Legislature, as to Restrain the British Parliament from regulating the circumstances of elections, leaving this business to the Counties themselves--
M^r Madison.[20] The necessity of a Gen^l Gov^t supposes that the State Legislatures will sometimes fail or refuse to consult the common interest at the expence of their local conveniency or prejudices. The policy of referring the appointment of the House of Representatives to the people and not to the Legislatures of the States, supposes that the result will be somewhat influenced by the mode. This view of the question seems to decide that the Legislatures of the States ought not to have the uncontrouled right of regulating the times places & manner of holding elections. These were words of great latitude. It was impossible to foresee all the abuses that might be made of the discretionary power. Whether the electors should vote by ballot or viva voce, should assemble at this place or that place; should be divided into districts or all meet at one place, sh^d all vote for all the representatives; or all in a district vote for a number allotted to the district; these & many other points would depend on the Legislatures, and might materially affect the appointments. Whenever the State Legislatures had a favorite measure to carry, they would take care so to mould their regulations as to favor the candidates they wished to succeed. Besides, the inequality of the Representation in the Legislatures of particular States, would produce a like inequality in their representation in the Nat^l Legislature, as it was presumable that the Counties having the power in the former case would secure it to themselves in the latter. What danger could there be in giving a controuling power to the Nat^l Legislature? Of whom was it to consist? 1. of a Senate to be chosen by the State Legislatures. If the latter therefore could be trusted, their representatives could not be dangerous. 2. of Representatives elected by the same people who elect the State Legislatures; Surely then if confidence is due to the latter, it must be due to the former. It seemed as improper in principle, though it might be less inconvenient in practice, to give to the State Legislatures this great authority over the election of the Representatives of the people in the Gen^l Legislature, as it would be to give to the latter a like power over the election of their Representatives in the State Legislatures.
[20] Madison wrote to Jefferson, July 18:
"I have taken lengthy notes of everything that has yet passed, and mean to go on with the drudgery, if no indisposition obliges me to discontinue it. It is not possible to form any judgment of the future duration of the Session. I am led by sundry circumstances to guess that the residue of the work will not be very quickly despatched. The public mind is very impatient for ye event, and various reports are circulating which tend to inflame curiosity. I do not learn however that any discontent is expressed at the concealment; and have little doubt that the people will be as ready to receive as we shall be able to propose, a Government that will secure their liberties & happiness."--Mad. MSS.
M^r King. If this power be not given to the Nat^l Legislature, their right of judging of the returns of their members may be frustrated. No probability has been suggested of its being abused by them. Altho this scheme of erecting the Gen^l Gov^t on the authority of the State Legislatures has been fatal to the federal establishment, it would seem as if many gentlemen, still foster the dangerous idea.
M^r Gov^r Morris observed that the States might make false returns and then make no provisions for new elections.
M^r Sherman did not know but it might be best to retain the clause, though he had himself sufficient confidence in the State Legislatures. The motion of M^r P. & M^r R. did not prevail.
The word "respectively" was inserted after the word "State."
On the motion of M^r Read the word "their" was struck out, & "regulations in such cases" inserted in place of "provisions concerning them" the clause then reading--"but regulations in each of the foregoing cases may at any time, be made or altered by the Legislature of the U. S." This was meant to give the Nat^l Legislature a power not only to alter the provisions of the States, but to make regulations in case the States should fail or refuse altogether.
Art. VI. Sect. 1. as thus amended was agreed to nem. con.
Adjourned.
FRIDAY AUG^{ST} 10. IN CONVENTION
Art. VI. Sect. 2. taken up.
M^r Pinkney. The Committee as he had conceived were instructed to report the proper qualifications of property for the members of the Nat^l Legislature; instead of which they have referred the task to the Nat^l Legislature itself. Should it be left on this footing, the first Legislature will meet without any particular qualifications of property; and if it should happen to consist of rich men they might fix such qualifications as may be too favorable to the rich; if of poor men, an opposite extreme might be run into. He was opposed to the establishment of an undue aristocratic influence in the Constitution but he thought it essential that the members of the Legislature, the Executive, and the Judges, should be possessed of competent property to make them independent & respectable. It was prudent when such great powers were to be trusted to connect the tie of property with that of reputation in securing a faithful administration. The Legislature would have the fate of the Nation put into their hands. The President would also have a very great influence on it. The Judges would have not only important causes between Citizen & Citizen but also where foreigners are concerned. They will even be the Umpires between the U. States and individual States as well as between one State & another. Were he to fix the quantum of property which should be required, he should not think of less than one hundred thousand dollars for the President, half of that sum for each of the Judges, and in like proportion for the members of the Nat^l Legislature. He would however leave the sums blank. His motion was that the President of the U. S. the Judges, and members of the Legislature should be required to swear that they were respectively possessed of a cleared unincumbered Estate to the amount of ---- in the case of the President &c &c.
M^r Rutlidge seconded the motion, observing that the Committee had reported no qualifications because they could not agree on any among themselves, being embarrassed by the danger on one side of displeasing the people by making them high, and on the other of rendering them nugatory by making them low.
M^r Elseworth. The different circumstances of different parts of the U. S. and the probable difference between the present and future circumstances of the whole, render it improper to have either _uniform_ or _fixed_ qualifications. Make them so high as to be useful in the S. States, and they will be inapplicable to the E. States. Suit them to the latter, and they will serve no purpose in the former. In like manner what may be accommodated to the existing State of things among us, may be very inconvenient in some future state of them. He thought for these reasons that it was better to leave this matter to the Legislative discretion than to attempt a provision for it in the Constitution.
Doct^r Franklin expressed his dislike of every thing that tended to debase the spirit of the common people. If honesty was often the companion of wealth, and if poverty was exposed to peculiar temptation, it was not less true that the possession of property increased the desire of more property. Some of the greatest rogues he was ever acquainted with, were the richest rogues. We should remember the character which the Scripture requires in Rulers, that they should be men hating covetousness. This Constitution will be much read and attended to in Europe, and if it should betray a great partiality to the rich will not only hurt us in the esteem of the most liberal and enlightened men there, but discourage the common people from removing to this Country.
The Motion of M^r Pinkney was rejected by so general a _no_, that the States were not called.
M^r Madison was opposed to the Section as vesting an improper & dangerous power in the Legislature. The qualifications of electors and elected were fundamental articles in a Republican Gov^t and ought to be fixed by the Constitution. If the Legislature could regulate those of either, it can by degrees subvert the Constitution. A Republic may be converted into an aristocracy or oligarchy as well by limiting the number capable of being elected, as the number authorized to elect. In all cases where the representatives of the people will have a personal interest distinct from that of their Constituents, there was the same reason for being jealous of them, as there was for relying on them with full confidence, when they had a common interest. This was one of the former cases. It was as improper as to allow them to fix their own wages, or their own privileges. It was a power also which might be made subservient to the views of one faction ag^{st} another. Qualifications founded on artificial distinctions may be devised, by the stronger in order to keep out partizans of a weaker faction.
M^r Elseworth, admitted that the power was not unexceptionable; but he could not view it as dangerous. Such a power with regard to the electors would be dangerous because it would be much more liable to abuse.
M^r Gov^r Morris moved to strike out "with regard to property" in order to leave the Legislature entirely at large.
M^r Williamson. This would surely never be admitted. Should a majority of the Legislature be composed of any particular description of men, of lawyers for example, which is no improbable supposition, the future elections might be secured to their own body.
M^r Madison observed that the British Parliam^t possessed the power of regulating the qualifications both of the electors, and the elected; and the abuse they had made of it was a lesson worthy of our attention. They had made the changes in both cases subservient to their own views, or to the views of political or Religious parties.
Question on the motion to strike out with regard to property
N. H. no. Mass. no. C^t ay. N. J. ay. P^a ay. Del.[21] no. M^d no. V^a no. N. C. no. S. C. no. Geo. ay.
[21] In the printed Journal Delaware did not vote--Madison's Note.
M^r Rutlidge was opposed to leaving the power to the Legislature--He proposed that the qualifications should be the same as for members of the State Legislatures.
M^r Wilson thought it would be best on the whole to let the Section go out. A uniform rule would probably never be fixed by the Legislature, and this particular power would constructively exclude every other power of regulating qualifications.
On the question for agreeing to Art. VI. Sect. 2^d
N. H. ay. Mass. ay. C^t no. N. J. no. P^a no. M^d no. V^a no. N. C. no. S. C. no. Geo. ay.
On motion of M^r Wilson to reconsider Art: IV. Sect. 2; so as to restore 3 in place of seven years of citizenship as a qualification for being elected into the House of Represent^s.
N. H. no. Mass. no. C^t ay. N. J. no. P^a ay. Del. ay. M^d ay. V^a ay. N. C. ay. S. C. no. Geo. no.
Monday next was then assigned for the reconsideration; all the States being ay. except Mass^{ts}. & Georgia.
Art: VI. Sect. 3. taken up.
M^r Ghorum contended that less than a majority in each House should be made a Quorum, otherwise great delay might happen in business, and great inconvenience from the future increase of numbers.
M^r Mercer was also for less than a majority. So great a number will put it in the power of a few by seceding at a critical moment to introduce convulsions, and endanger the Governm^t. Examples of secession have already happened in some of the States. He was for leaving it to the Legislature to fix the Quorum, as in Great Britain, where the requisite number is small & no inconveniency has been experienced.
Col. Mason. This is a valuable & necessary part of the plan. In this extended Country, embracing so great a diversity of interests, it would be dangerous to the distant parts to allow a small number of members of the two Houses to make laws. The Central States could always take care to be on the Spot and by meeting earlier than the distant ones, or wearying their patience, and outstaying them, could carry such measures as they pleased. He admitted that inconveniences might spring from the secession of a small number; But he had also known good produced by an apprehension, of it. He had known a paper emission prevented by that cause in Virginia. He thought the Constitution as now moulded was founded on sound principles, and was disposed to put into it extensive powers. At the same time he wished to guard ag^{st} abuses as much as possible. If the Legislature should be able to reduce the number at all, it might reduce it as low as it pleased & the U. States might be governed by a Juncto--A majority of the number which had been agreed on, was so few that he feared it would be made an objection ag^{st} the plan.
M^r King admitted there might be some danger of giving an advantage to the Central States; but he was of opinion that the public inconveniency on the other side was more to be dreaded.
M^r Gov^r Morris moved to fix the quorum at 33 members in the H. of Rep^s & 14 in the Senate. This is a majority of the present number, and will be a bar to the Legislature: fix the number low and they will generally attend knowing that advantage may be taken of their absence, the Secession of a small number ought not to be suffered to break a quorum. Such events in the States may have been of little consequence. In the national Councils they may be fatal. Besides other mischiefs, if a few can break up a quorum, they may seize a moment when a particular part of the Continent may be in need of immediate aid, to extort, by threatening a secession, some unjust & selfish measure.
M^r Mercer 2^{ded} the motion.
M^r King said he had just prepared a motion which instead of fixing the numbers proposed by M^r Gov^r Morris as Quorums, made those the lowest numbers, leaving the Legislature at liberty to increase them or not. He thought the future increase of members would render a majority of the whole extremely cumbersome.
M^r Mercer agreed to substitute M^r King's motion in place of M^r Morris's.
M^r Elseworth was opposed to it. It would be a pleasing ground of confidence to the people that no law or burden could be imposed on them by a few men. He reminded the movers that the Constitution proposed to give such a discretion with regard to the number of Representatives that a very inconvenient number was not to be apprehended. The inconveniency of secessions may be guarded ag^{st} by giving to each House an authority to require the attendance of absent members.
M^r Wilson concurred in the sentiments of M^r Elseworth.
M^r Gerry seemed to think that some further precautions than merely fixing the quorum might be necessary. He observed that as 17 w^d be a majority of a quorum of 33, and 8 of 14, questions might by possibility be carried in the H. of Rep^s by 2 large States, and in the Senate by the same States with the aid of two small ones.--He proposed that the number for a quorum in the H. of Rep^s should not exceed 50, nor be less than 33, leaving the intermediate discretion to the Legislature.
M^r King. As the quorum could not be altered with^t the concurrence of the President by less than 2/3 of each House, he thought there could be no danger in trusting the Legislature.
M^r Carrol. This would be no security ag^{st} a continuance of the quorums at 33 & 14. when they ought to be increased.
On question on M^r King's motion "that not less than 33 in the H. of Rep^s nor less than 14 in the Senate sh^d constitute a Quorum which may be increased by a law, on additions of the members in either House.
N. H. no. Mass. ay. C^t no. N. J. no. P^a no. Del. ay. M^d no. V^a no. N. C. no. S. C. no. Geo. no.
M^r Randolph & M^r Madison moved to add to the end of Art. VI. Sect. 3, "and may be authorized to compel the attendance of absent members in such manner & under such penalties as each House may provide." Agreed to by all except Pen^a which was divided.
Art. VI. Sect. 3. agreed to as amended nem. con.
Sect. 4. } Agreed to nem. con. Sect. 5. }
M^r Madison observed that the right of expulsion (Art. VI. Sect. 6.) was too important to be exercised by a bare majority of a quorum: and in emergencies of faction might be dangerously abused. He moved that, "with the concurrence of 2/3," might be inserted between may & expel.
M^r Randolph & M^r Mason approved the idea.
M^r Gov^r Morris. This power may be safely trusted to a majority. To require more may produce abuses on the side of the minority. A few men from factious motives may keep in a member who ought to be expelled.
M^r Carrol thought that the concurrence of 2/3 at least ought to be required.
On the question requiring 2/3 in cases of expelling a member.
N. H. ay. Mass. ay. C^t ay. N. J. ay. P^a div^d. Del. ay. M^d ay. V^a ay. N. C. ay. S. C. ay. Geo. ay.
Art. VI. Sect. 6. as thus amended agreed to nem. con.
Art: VI. Sect. 7. taken up.
M^r Gov^r Morris urged that if the yeas & nays were proper at all any individual ought to be authorized to call for them; and moved an amendment to that effect.--The small States may otherwise be under a disadvantage, and find it difficult to get a concurrence of 1/5.
M^r Randolph 2^{ded} y^e motion.
M^r Sherman had rather strike out the yeas & nays altogether. They never have done any good, and have done much mischief. They are not proper as the reasons governing the voter never appear along with them.
M^r Elseworth was of the same opinion.
Col. Mason liked the Section as it stood, it was a middle way between two extremes.
M^r Ghorum was opposed to the motion for allowing a single member to call the yeas & nays, and recited the abuses of it in Mass^{ts}. 1 in stuffing the journals with them on frivolous occasions. 2 in misleading the people who never know the reasons determing the votes.
The motion for allowing a single member to call the yeas & nays was disag^d to nem. con.
M^r Carrol. & M^r Randolph moved to strike out the words, "each House" and to insert the words, "the House of Representatives" in Sect. 7. Art. 6. and to add to the section the words "and any member of the Senate shall be at liberty to enter his dissent."
M^r Gov^r Morris & M^r Wilson observed that if the minority were to have a right to enter their votes & reasons, the other side would have a right to complain, if it were not extended to them: & to allow it to both, would fill the Journals, like the records of a Court, with replications, rejoinders &c.
Question on M^r Carrol's motion to allow a member to enter his dissent
N. H. no. Mass. no. Con^t no. N. J. no. P^a no. Del. no. M^d ay. V^a ay. N. C. no. S. C. ay. Geo. ay.
M^r Gerry moved to strike out the words "when it shall be acting in its legislative capacity" in order to extend the provision to the Senate when exercising its peculiar authorities and to insert "except such parts thereof as in their judgment require secrecy" after the words "publish them."--(It was thought by others that provision should be made with respect to these when that part came under consideration which proposed to vest those additional authorities in the Senate.)
On this question for striking out the words "when acting in its legislative capacity"
N. H. div^d. Mass. ay. C^t no. N. J. no. P^a no. Del. ay. M^d ay. V^a ay. N. C. ay. S. C. ay. Geo. ay.
Adjourned.
SATURDAY AUG^{ST} 11 IN CONVENTION
M^r Madison & M^r Rutlidge moved "that each House shall keep a journal of its proceedings, & shall publish the same from time to time; except such part of the proceedings of the Senate, when acting not in its Legislative capacity as may be judged by that House to require secrecy."
M^r Mercer. This implies that other powers than legislative will be given to the Senate which he hoped would not be given.
M^r Madison & M^r R's motion was disag^d to by all the States except Virg^a.
M^r Gerry & M^r Sherman moved to insert after the words "publish them" the following "except such as relate to treaties & military operations." Their object was to give each House a discretion in such cases.--On this question
N. H. no. Mass. ay. C^t ay. N. J. no. P^a no. Del. no. V^a no. N. C. no. S. C. no. Geo. no.
M^r Elseworth. As the clause is objectionable in so many shapes, it may as well be struck out altogether. The Legislature will not fail to publish their proceedings from time to time. The people will call for it if it should be improperly omitted.
M^r Wilson thought the expunging of the clause would be very improper. The people have a right to know what their Agents are doing or have done, and it should not be in the option of the Legislature to conceal their proceedings. Besides as this is a clause in the existing confederation, the not retaining it would furnish the adversaries of the reform with a pretext by which weak & suspicious minds may be easily misled.
M^r Mason thought it would give a just alarm to the people, to make a conclave of their Legislature.
M^r Sherman thought the Legislature might be trusted in this case if in any.
Question on 1^{st} part of the section down to "_publish them_" inclusive: Agreed to nem. con.
Question on the words to follow, to wit "except such parts thereof as may in their Judgment require secrecy."
N. H. div^d. Mass. ay. C^t ay. N. J. ay. P^a no. Del. no. M^d no. V^a ay. N. C. ay. S. C. no. Geo. ay.
The remaining part as to yeas & nays,--agreed to nem. con.
Art VI. Sect. 8. taken up.
M^r King remarked that the section authorized the 2 Houses to adjourn to a new place. He thought this inconvenient. The mutability of place had dishonored the federal Gov^t and would require as strong a cure as we could devise. He thought a law at least should be made necessary to a removal of the Seat of Gov^t.
M^r Madison viewed the subject in the same light, and joined with M^r King in a motion requiring a law.
Mr. Govern^r Morris proposed the additional alteration by inserting the words, "during the Session" &c.
M^r Spaight. This will fix the seat of Gov^t at N. Y. The present Congress will convene them there in the first instance, and they will never be able to remove, especially if the Presid^t should be [a] Northern Man.
M^r Gov^r Morris such a distrust is inconsistent with all Gov^t.
M^r Madison supposed that a central place for the seat of Gov^t was so just and w^d be so much insisted on by the H. of Representatives, that though a law should be made requisite for the purpose, it could & would be obtained. The necessity of a central residence of the Gov^t w^d be much greater under the new than old Gov^t. The members of the new Gov^t w^d be more numerous. They would be taken more from the interior parts of the States; they w^d not like members of y^e present Cong^s come so often from the distant States by water. As the powers & objects of the new Gov^t would be far greater y^e heretofore, more private individuals w^d have business calling them to the seat of it, and it was more necessary that the Gov^t should be in that position from which it could contemplate with the most equal eye, and sympathize most equally with, every part of the nation. These considerations he supposed would extort a removal even if a law were made necessary. But in order to quiet suspicions both within & without doors, it might not be amiss to authorize the 2 Houses by a concurrent vote to adjourn at their first meeting to the most proper place, and to require thereafter, the sanction of a law to their removal.
The motion was accordingly moulded into the following form: "the Legislature shall at their first assembling determine on a place at which their future sessions shall be held; neither House shall afterwards, during the session of the House of Rep^s without the consent of the other, adjourn for more than three days, nor shall they adjourn to any other place than such as shall have been fixt by law."
M^r Gerry thought it would be wrong to let the Presid^t check the will of the 2 Houses on this subject at all.
M^r Williamson supported the ideas of M^r Spaight.
M^r Carrol was actuated by the same apprehensions.
M^r Mercer, it will serve no purpose to require the two Houses at their first meeting to fix on a place. They will never agree.
After some further expressions from others denoting an apprehension that the seat of Gov^t might be continued at an improper place if a law should be made necessary to a removal, and the motion above stated with another for recommitting the section had been negatived, the section was left in the shape in which it was reported as to this point. The words, "during the session of the Legislature" were prefixed to the 8^{th} section--and the last sentence "But this regulation shall not extend to the Senate when it shall exercise the powers mentioned in the ---- article" struck out. The 8^{th} section as amended was then agreed to.
M^r Randolph moved according to notice to reconsider Art: IV. Sect. 5. concerning money bills which had been struck out. He argued 1. that he had not wished for this privilege whilst a proportional Representation in the Senate was in contemplation, but since an equality had been fixed in that house, the large States would require this compensation at least. 2. that it would make the plan more acceptable to the people, because they will consider the Senate as the more aristocratic body, and will expect that the usual guards ag^{st} its influence be provided according to the example in G. Britain. 3. the privilege will give some advantage to the House of Rep^s if it extends to the originating only--but still more if it restrains the Senate from amend^g. 4. he called on the smaller States to concur in the measure, as the condition by which alone the compromise had entitled them to an equality in the Senate. He signified that he should propose instead of the original section, a clause specifying that the bills in question should be for the purpose of Revenue, in order to repel y^e objection ag^{st} the extent of the words, "_raising money_," which might happen incidentally, and that the Senate should not so amend or alter as to increase or diminish the sum; in order to obviate the inconveniences urged ag^{st} a restriction of the Senate to a simple affirmation or negative.
M^r Williamson 2^{ded} the motion.
M^r Pinkney was sorry to oppose the opportunity gentlemen asked to have the question again opened for discussion, but as he considered it a mere waste of time he could not bring himself to consent to it. He said that notwithstanding what had been said as to the compromise, he always considered this section as making no part of it. The rule of Representation in the 1^{st} branch was the true condition of that in the 2^d branch.--Several others spoke for & ag^{st} the reconsideration, but without going into the merits.--On the Question to reconsider
N. H. ay. Mass. ay. C^t ay. N. J.[22] ay. P^a ay. Del. ay. M^d no. V^a ay. N. C. ay. S. C. div^d. Geo. ay.--Monday was then assigned--
[22] In the printed Journal N. Jersey--no.--Madison's Note.
Adj^d.[23]
[23] The next day being Sunday, Madison wrote to his father:
"PHILAD^A Aug^{st} 12, 1787.
"HON^D SIR
"I wrote to you lately inclosing a few newspapers. I now send a few more, not because they are interesting but because they may supply the want of intelligence that might be more so. The Convention reassembled at the time my last mentioned that they had adjourned to. It is not possible yet to determine the period to which the Session will be spun out. It must be some weeks from this date at least, and possibly may be computed by months. Eleven states are on the ground, and have generally been so since the second or third week of the Session. Rhode Island is one of the absent States. She has never yet appointed deputies. N. H. till of late was the other. That State is now represented. But just before the arrival of her deputies, those of N. York left us.--We have till within a few days had very cool weather. It is now pleasant, after a fine rain. Our acc^{ts} from Virg^a give us but an imperfect idea of the prospects with you. In particular places the drouth we hear has been dreadful. Gen^l Washington's neighbourhood is among the most suffering of them. I wish to know how your neighbourhood is off. But my chief anxiety is to hear that your health is re-established. The hope that this may procure me that information is the principal motive for writing it, having as you will readily see not been led to it by any thing worth communicating. With my love to my mother & the rest of the family I remain Dear Sir
"Y^r aff^t son." (Mad. MSS.)
Edward Carrington wrote to Madison from New York, August 11, showing the solicitude of federalist members of Congress:
"... The President has been requested to write to the states unrepresented, pressing upon them the objects which require the attendance of their delegations, & urging them to come forward, amongst the objects is that of the report of the convention, which, it is supposed, is now in the State of parturition--this bantling must receive the blessing of Congress this session, or, I fear, it will expire before the new one will assemble; every experiment has its critical stages which must be taken as they occur, or the whole will fail--the peoples expectations are rising with the progress of this work, but will desert it, should it remain long with Congress--permit me to suggest one idea as to the mode of obtaining the accession of the States to the new plan of government--let the convention appoint _one_ day, say the 1^{st} of May, upon which a convention appointed by the people shall be held in each state, for the purpose of accepting or rejecting in toto, the project--supposing an act of the ordinary legislatures to be equally authentic, which would not be true, yet many reasons present themselves in favor of--special conventions--many men would be admitted who are excluded from the legislatures--the business would be taken up unclogged with any other--and it would effectually call the attention of all the people to the object as seriously affecting them. All the States being in convention at the same time, opportunities of speculating upon the views of each other would be cut off--the project should be decided upon without an attempt to alter it--you have doubtless found it difficult to reconcile the different opinions in your body--will it not be impossible then, to reconcile those which will arise amongst numerous assemblies in the different states? It is possible there never may be a general consent to the project as it goes out; but it is absolutely certain there will never be an agreement in amendments. It is the lot of but few to be able to discern the remote principles upon which their happiness & prosperity essentially depend--."--(Mad. MSS.)
MONDAY, AUG^{ST} 13. IN CONVENTION
Art. IV. Sect. 2. reconsidered--
M^r Wilson & M^r Randolph moved to strike out "7 years" and insert "4 years," as the requisite term of Citizenship to qualify for the House of Rep^s. M^r Wilson said it was very proper the electors should govern themselves by this consideration; but unnecessary & improper that the Constitution should chain them down to it.
M^r Gerry wished that in future the eligibility might be confined to Natives. Foreign powers will intermeddle in our affairs, and spare no expence to influence them. Persons having foreign attachments will be sent among us & insinuated into our councils, in order to be made instruments for their purposes. Every one knows the vast sums laid out in Europe for secret services. He was not singular in these ideas. A great many of the most influential men in Mass^{ts} reasoned in the same manner.
M^r Williamson moved to insert 9 years instead of seven. He wished this Country to acquire as fast as possible national habits. Wealthy emigrants do more harm by their luxurious examples, than good, by the money, they bring with them.
Col. Hamilton was in general ag^{st} embarrassing the Gov^t with minute restrictions. There was on one side the possible danger that had been suggested. On the other side, the advantage of encouraging foreigners was obvious & admitted. Persons in Europe of moderate fortunes will be fond of coming here where they will be on a level with the first Citizens. He moved that the section be so altered as to require merely citizenship & inhabitancy. The right of determining the rule of naturalization will then leave a discretion to the Legislature on this subject which will answer every purpose.
M^r Madison seconded the motion. He wished to maintain the character of liberality which had been professed in all the Constitutions & publications of America. He wished to invite foreigners of merit & republican principles among us. America was indebted to emigration for her settlement & Prosperity. That part of America which had encouraged them most had advanced most rapidly in population, agriculture & the arts. There was a possible danger he admitted that men with foreign predilections might obtain appointments but it was by no means probable that it would happen in any dangerous degree. For the same reason that they would be attached to their native Country, our own people w^d prefer natives of this Country to them. Experience proved this to be the case. Instances were rare of a foreigner being elected by the people within any short space after his coming among us. If bribery was to be practised by foreign powers, it would not be attempted among the electors but among the elected, and among natives having full Confidence of the people not among strangers who would be regarded with a jealous eye.
M^r Wilson cited Pennsylv^a as a proof of the advantage of encouraging emigrations. It was perhaps the youngest (except Georgia) settlem^t on the Atlantic; yet it was at least among the foremost in population & prosperity. He remarked that almost all the Gen^l officers of the Pen^a line of the late army were foreigners. And no complaint had ever been made against their fidelity or merit. Three of her deputies to the Convention (M^r R. Morris, M^r Fitzsimons & himself) were also not natives. He had no objection to Col. Hamilton's motion & would withdraw the one made by himself.
M^r Butler was strenuous ag^{st} admitting foreigners into our public Councils.
Question on Col. Hamilton's Motion
N. H. no. Mass. no. C^t ay. N. J. no. P^a ay. Del. no. Md. ay. V^a ay. N. C. no. S. C. no. Geo. no.
Question on M^r Williamson's motion to insert 9 years instead of seven.
N. H. ay. Mass^{ts} no. C^t no. N. J. no. P^a no. Del. no. M^d no. V^a no. N. C. no. S. C. ay. Geo. ay.
M^r Wilson renewed the motion for 4 years instead of 7; & on question
N. H. no. Mass. no. C^t ay. N. J. no. P^a no. Del. no. M^d ay. V^a ay. N. C. no. S. C. no. Geo. no.
M^r Gov^r Morris moved to add to the end of the section (Art IV. S. 2) a proviso that the limitation of seven years should not affect the rights of any person now a Citizen.
M^r Mercer 2^{ded} the motion. It was necessary he said to prevent a disfranchisement of persons who had become Citizens under and on the faith & according to the laws & Constitution from being on a level in all respects with natives.
M^r Rutlidge. It might as well be said that all qualifications are disfranchisem^{ts} and that to require the age of 25 years was a disfranchisement. The policy of the precaution was as great with regard to foreigners now Citizens; as to those who are to be naturalized in future.
M^r Sherman. The U. States have not invited foreigners nor pledged their faith that they should enjoy equal privileges with native Citizens. The Individual States alone have done this. The former therefore are at liberty to make any discriminations they may judge requisite.
M^r Ghorum. When foreigners are naturalized it w^d seem as if they stand on an equal footing with natives. He doubted then the propriety of giving a retrospective force to the restriction.
M^r Madison animadverted on the peculiarity of the doctrine of M^r Sherman. It was a subtilty by which every national engagement might be evaded. By parity of reason, Whenever our public debts, or foreign treaties become inconvenient nothing more would be necessary to relieve us from them, than to new model the Constitution. It was said that the _U. S._ as such have not pledged their faith to the naturalized foreigners, & therefore are not bound. Be it so, & that the States alone are bound. Who are to form the New Constitution by which the condition of that class of citizens is to be made worse than the other class? Are not the States y^e Agents? Will they not be the members of it? Did they not appoint this Convention? Are not they to ratify its proceedings? Will not the new Constitution be their Act? If the new Constitution then violates the faith pledged to any description of people will not the makers of it, will not the States, be the violaters? To justify the doctrine it must be said that the States can get rid of their obligation by revising the Constitution, though they could not do it by repealing the law under which foreigners held their privileges. He considered this a matter of real importance. It would expose us to the reproaches of all those who should be affected by it, reproaches which w^d soon be echoed from the other side of the Atlantic; and would unnecessarily enlist among the Adversaries of the reform a very considerable body of Citizens: We should moreover reduce every State to the dilemma of rejecting it or of violating the faith pledged to a part of its Citizens.
M^r Gov^r Morris considered the case of persons under 25 years, as very different from that of foreigners. No faith could be pleaded by the former in bar of the regulation. No assurance had ever been given that persons under that age should be in all cases on a level with those above it. But with regard to foreigners among us, the faith had been pledged that they should enjoy the privileges of Citizens. If the restriction as to age had been confined to natives, & had left foreigners under 25 years, eligible in this case, the discrimination w^d have been an equal injustice on the other side.
M^r Pinkney remarked that the laws of the States had varied much the terms of naturalization in different parts of America; and contended that the U. S. could not be bound to respect them on such an occasion as the present. It was a sort of recurrence to first principles.
Col. Mason was struck not like (Mr. Madison) with the _peculiarity_, but the _propriety_ of the doctrine of M^r Sherman. The States have formed different qualifications themselves, for enjoying different rights of citizenship. Greater caution w^d be necessary in the outset of the Gov^t than afterwards. All the great objects w^d then be provided for. Every thing would be then set in motion. If persons among us attached to G. B. should work themselves into our Councils, a turn might be given to our affairs & particularly to our Commercial regulations which might have pernicious consequences. The Great Houses of British Merchants will spare no pains to insinuate the instruments of their views into the Gov^t.
M^r Wilson read the clause in the Constitution of Pen^a giving to foreigners after two years residence all the rights whatsoever of Citizens. Combined it with the article of Confederation making the Citizens of one State Citizens of all, inferred the obligation Pen^a was under to maintain the faith thus pledged to her citizens of foreign birth, and the just complaints which her failure would authorize: He observed likewise that the Princes & States of Europe would avail themselves of such breach of faith to deter their subjects from emigration to the U. S.
M^r Mercer enforced the same idea of a breach of faith.
M^r Baldwin could not enter into the force of the arguments ag^{st} extending the disqualification to foreigners now Citizens. The discrimination of the place of birth, was not more objectionable than that of age which all had concurred in the propriety of.
Question on the proviso of M^r Gov^r Morris in favor of foreigners now Citizens
N. H. no. Mass. no. C^t ay. N. J. ay. P^a ay. Del. no. Mary^d ay. V^t ay. N. C. no. S. C. no. Geo. no.
M^r Carrol moved to insert "5 years" instead of "seven" in Sect. 2^d Art: IV
N. H. no. Mass. no. C^t ay. N. J. no. P^a div^d. Del. no. M^d ay. V^a ay. N. C. no. S. C. no. Geo. no.
The Section (Art IV. Sec. 2.) as formerly amended was then agreed to nem. con.
M^r Wilson moved that (in Art: V. Sect. 3.) 9 years be reduced to seven, which was disag^d to and the 3^d section (Art. V.) confirmed by the following vote.
N. H. ay. Mass. ay. C^t no. N. J. ay. P^a no. Del. ay. M^d no. V^a ay. N. C. ay. S. C. ay. Geo. ay.
Art. IV. Sec. 5. being reconsidered.
M^r Randolph moved that the clause be altered so as to read--"Bills for raising money for the _purpose of revenue_ or for appropriating the same shall originate in the House of Representatives and shall not be so amended or altered by the Senate as to increase or diminish the sum to be raised, or change the mode of levying it, or the object of its appropriation."--He would not repeat his reasons, but barely remind the members from the smaller States of the compromise by which the larger States were entitled to this privilege.
Col. Mason. This amendment removes all the objections urged ag^{st} the section as it stood at first. By specifying _purposes of revenue_, it obviated the objection that the section extended to all bills under which money might incidentally arise. By authorizing amendments in the Senate it got rid of the objections that the Senate could not correct errors of any sort, & that it would introduce into the House of Rep^s the practice of tacking foreign matter to money bills. These objections being removed, the arguments in favor of the proposed restraint on the Senate ought to have their full force. 1. the Senate did not represent the _people_, but the _States_ in their political character. It was improper therefore that it should tax the people. The reason was the same ag^{st} their doing it; as it had been ag^{st} Cong^s doing it. Nor was it in any respect necessary in order to cure the evils of our Republican system. He admitted that notwithstanding the superiority of the Republican form over every other, it had its evils. The chief ones, were the danger of the majority oppressing the minority, and the mischievous influence of demagogues. The Gen^l Government of itself will cure them. As the States will not concur at the same time in their unjust & oppressive plans, the General Gov^t will be able to check & defeat them, whether they result from the wickedness of the majority, or from the misguidance of demagogues. Again, the Senate is not like the H. of Rep^s chosen frequently and obliged to return frequently among the people. They are to be chosen by the Sts for 6 years, will probably settle themselves at the seat of Gov^t will pursue schemes for their own aggrandisement--will be able by weary^g out the H. of Rep^s and taking advantage of their impatience at the close of a long Session, to extort measures for that purpose. If they should be paid as he expected would be yet determined & wished to be so, out of the Nat^l Treasury, they will particularly extort an increase of their wages. A bare negative was a very different thing from that of originating bills. The practice in Engl^d was in point. The House of Lords does not represent nor tax the people, because not elected by the people. If the Senate can originate, they will in the recess of the Legislative Sessions, hatch their mischievous projects, for their own purposes, and have their money bills ready cut & dried (to use a common phrase) for the meeting of the H. of Rep^s. He compared the case to Poyning's law--and signified that the House of Rep^s might be rendered by degrees like the Parliament of Paris, the mere depository of the decrees of the Senate. As to the compromise so much had passed on that subject that he would say nothing about it. He did not mean by what he had said to oppose the permanency of the Senate. On the contrary he had no repugnance to an increase of it--nor to allowing it a negative, though the Senate was not by its present constitution entitled to it. But in all events he would contend that the purse-strings should be in the hands of the Representatives of the people.
M^r Wilson was himself directly opposed to the equality of votes granted to the Senate by its present Constitution. At the same time he wished not to multiply the vices of the system. He did not mean to enlarge on a subject which had been so much canvassed, but would remark that as an insuperable objection ag^{st} the proposed restriction of money bills to the H. of Rep^s that it would be a source of perpetual contentions where there was no mediator to decide them. The Presid^t here could not like the Executive Magistrate in England interpose by a prorogation, or dissolution. This restriction had been found pregnant with altercation in every State where the Constitution had established it. The House of Rep^s will insert other things in money bills, and by making them conditions of each other, destroy the deliberate liberty of the Senate. He stated the case of a Preamble to a money bill sent up by the House of Commons in the reign of Queen Anne, to the H. of Lords, in which the conduct of the displaced Ministry, who were to be impeached before the Lords, was condemned; the Co[~m]ons thus extorting a premature judgm^t without any hearing of the Parties to be tried, and the H. of Lords being thus reduced to the poor & disgraceful expedient of opposing to the authority of a law, a protest on their Journals ag^{st} its being drawn into precedent. If there was anything like Poynings law in the present case, it was in the attempt to vest the exclusive right of originating in the H. of Rep^s and so far he was ag^{st} it. He should be equally so if the right were to be exclusively vested in the Senate. With regard to the purse strings, it was to be observed that the purse was to have two strings, one of which was in the hands of the H. of Rep^s the other in those of the Senate. Both houses must concur in untying, and of what importance could it be which untied first, which last. He could not conceive it to be any objection to the Senate's preparing the bills, that they would have leisure for that purpose and would be in the habits of business. War, Commerce, & Revenue were the great objects of the Gen^l Government. All of them are connected with money. The restriction in favor of the H. of Represent^s would exclude the Senate from originating any important bills whatever--
M^r Gerry considered this as a part of the plan that would be much scrutinized. Taxation & representation are strongly associated in the minds of the people, and they will not agree that any but their immediate representatives shall meddle with their purses. In short the acceptance of the plan will inevitably fail, if the Senate be not restrained from originating money bills.
M^r Govern^r Morris. All the arguments suppose the right to originate & to tax, to be exclusively vested in the Senate.--The effects commented on may be produced by a Negative only in the Senate. They can tire out the other House, and extort their concurrence in favorite measures, as well by withholding their negative, as by adhering to a bill introduced by themselves.
M^r Madison thought If the substitute offered by M^r Randolph for the original section is to be adopted it would be proper to allow the Senate at least so to amend as to _diminish_ the sums to be raised. Why should they be restrained from checking the extravagance of the other House? One of the greatest evils incident to Republican Gov^t was the spirit of contention & faction. The proposed substitute, which in some respects lessened the objections ag^{st} the section, had a contrary effect with respect to this particular. It laid a foundation for new difficulties and disputes between the two houses. The word _revenue_ was ambiguous. In many acts, particularly in the regulation of trade, the object would be twofold. The raising of revenue would be one of them. How could it be determined which was the primary or predominant one; or whether it was necessary that revenue sh^d be the sole object, in exclusion even of other incidental effects. When the Contest was first opened with G. B. their power to regulate trade was admitted. Their power to raise revenue rejected. An accurate investigation of the subject afterwards proved that no line could be drawn between the two cases. The words _amend or alter_ form an equal source of doubt & altercation. When an obnoxious paragraph shall be sent down from the Senate to the House of Rep^s, it will be called an origination under the name of an amendment. The Senate may actually couch extraneous matter under that name. In these cases, the question will turn on the _degree_ of connection between the matter & object of the bill and the alteration or amendment offered to it. Can there be a more fruitful source of dispute, or a kind of dispute more difficult to be settled? His apprehensions on this point were not conjectural. Disputes had actually flowed from this source in Virg^a where the Senate can originate no bill. The words, "so as to _increase or diminish_ the sum to be raised," were liable to the same objections. In levying indirect taxes, which it seemed to be understood were to form the principal revenue of the new Gov^t the sum to be raised, would be increased or diminished by a variety of collateral circumstances influencing the consumption, in general, the consumption of foreign or of domestic articles--of this or that particular species of articles and even by the mode of collection which may be closely connected with the productiveness of a tax.--The friends of the section had argued its necessity from the permanency of the Senate. He could not see how this argum^t applied. The Senate was not more permanent now than in the form it bore in the original propositions of M^r Randolph and at the time when no objection whatever was hinted ag^{st} its originating money bills. Or if in consequence of a loss of the present question, a proportional vote in the Senate should be reinstated as has been urged as the indemnification the permanency of the Senate will remain the same.--If the right to originate be vested exclusively in the House of Rep^s either the Senate must yield ag^{st} its judgment to that House, in which case the Utility of the check will be lost--or the Senate will be inflexible & the H. of Rep^s must adapt its money bill to the views of the Senate, in which case, the exclusive right will be of no avail.--As to the Compromise of which so much had been said, he would make a single observation. There were 5 States which had opposed the equality of votes in the Senate, viz, Mass^{ts}. Penn^a Virg^a N. Carolina & South Carol^a. As a compensation for the sacrifice extorted from them on this head, the exclusive origination of money bills in the other House had been tendered. Of the five States a majority viz. Penn^a Virg^a & S. Carol^a have uniformly voted ag^{st} the proposed compensation, on its own merits, as rendering the plan of Gov^t still more objectionable. Mass^{ts} has been divided. N. Carolina alone has set a value on the compensation, and voted on that principle. What obligation then can the small States be under to concur ag^{st} their judgments in reinstating the section?
M^r Dickenson. Experience must be our only guide. Reason may mislead us. It was not Reason that discovered the singular & admirable mechanism of the English Constitution. It was not Reason that discovered or ever could have discovered the odd & in the eye of those who are governed by reason, the absurd mode of trial by Jury. Accidents probably produced these discoveries, and experience has given a sanction to them. This is then our guide. And has not experience verified the utility of restraining money bills to the immediate representatives of the people. Whence the effect may have proceeded he could not say: whether from the respect with which this privilege inspired the other branches of Gov^t to the H. of Co[~m]ons, or from the turn of thinking it gave to the people at large with regard to their rights, but the effect was visible & could not be doubted--Shall we oppose to this long experience, the short experience of 11 years which we had ourselves, on this subject. As to disputes, they could not be avoided any way. If both Houses should originate, each would have a different bill to which it would be attached, and for which it would contend.--He observed that all the prejudices of the people would be offended by refusing this exclusive privilege to the H. of Repres^s and these prejudices sh^d never be disregarded by us when no essential purpose was to be served. When this plan goes forth it will be attacked by the popular leaders. Aristocracy will be the watchword; the Shiboleth among its adversaries. Eight States have inserted in their Constitutions the exclusive right of originating money bills in favor of the popular branch of the Legislature. Most of them however allowed the other branch to amend. This he thought would be proper for us to do.
M^r Randolph regarded this point as of such consequence, that as he valued the peace of this Country, he would press the adoption of it. We had numerous & monstrous difficulties to combat. Surely we ought not to increase them. When the people behold in the Senate, the countenance of an aristocracy; and in the president, the form at least of a little monarch, will not their alarms be sufficiently raised without taking from their immediate representatives, a right which has been so long appropriated to them.--The Executive will have more influence over the Senate, than over the H. of Rep^s Allow the Senate to originate in this Case, & that influence will be sure to mix itself in their deliberations & plans. The Declaration of War he conceived ought not to be in the Senate composed of 26 men only, but rather in the other House. In the other House ought to be placed the origination of the means of war. As to Commercial regulations which may involve revenue, the difficulty may be avoided by restraining the definition to bills, for the _mere_ or _sole_, purpose of raising revenue. The Senate will be more likely to be corrupt than the H. of Rep^s and should therefore have less to do with money matters. His principal object however was to prevent popular objections against the plan, and to secure its adoption.
M^r Rutlidge. The friends of this motion are not consistent in their reasoning. They tell us that we ought to be guided by the long experience of G. B. & not our own experience of 11 years; and yet they themselves propose to depart from it. The _H. of Co[~m]ons_ not only have the exclusive right of originating, but the _Lords_ are not allowed to alter or amend a money bill. Will not the people say that this restriction is but a mere tub to the whale. They cannot but see that it is of no real consequence; and will be more likely to be displeased with it as an attempt to bubble them, than to impute it to a watchfulness over their rights. For his part, he would prefer giving the exclusive right to the Senate, if it was to be given exclusively at all. The Senate being more conversant in business, and having more leisure, will digest the bills much better, and as they are to have no effect, till examined & approved by the H. of Rep^s there can be no possible danger. These clauses in the Constitutions of the States had been put in through a blind adherence to the British model. If the work was to be done over now, they would be omitted. The experiment in S. Carolina, where the Senate can originate or amend money bills, has shewn that it answers no good purpose; and produces the very bad one of continually dividing & heating the two houses. Sometimes indeed if the matter of the amendment of the Senate is pleasing to the other House they wink at the encroachment; if it be displeasing, then the Constitution is appealed to. Every Session is distracted by altercations on this subject. The practice now becoming frequent is for the Senate not to make formal amendments; but to send down a schedule of the alterations which will procure the bill their assent.
M^r Carrol. The most ingenious men in Mary^d are puzzled to define the case of money bills, or explain the Constitution on that point, tho it seemed to be worded with all possible plainness & precision. It is a source of continual difficulty & squabble between the two houses.
M^r McHenry[24] mentioned an instance of extraordinary subterfuge, to get rid of the apparent force of the Constitution.
[24] "Mr. McHenry was bred a physician, but he afterwards turned Soldier and acted as Aid to Gen^l Washington and the Marquis de la Fayette. He is a Man of Specious talents, with nothing of genious to improve them. As a politician there is nothing remarkable in him, nor has he any of the graces of the Orator. He is however, a very respectable young Gentleman, and deserves the honor which his country has bestowed on him. Mr. McHenry is about 32 years of age."--Pierce's Notes, _Am. Hist. Rev._, iii., 330.
On Question on the first part of the motion as to the exclusive originating of Money bills in the H. of Rep^s
N. H. ay. Mass. ay. C^t no. N. J. no. P^a no. Del. no. M^d no. Virg^a ay. M^r Blair & M^r M. no. M^r R, Col. Mason and Gen^l Washington[25] ay. N. C. ay. S. C. no. Geo. no.
[25] He disapproved & till now voted ag^{st} the exclusive privilege, he gave up his judgment he said because it was not of very material weight with him & was made an essential point with others who if disappointed, might be less cordial in other points of real weight.--Madison's Note.
Question on Originating by H. of Rep^s & _amending_ by Senate, as reported Art IV. Sect. 5.
N. H. ay. Mass. ay. C^t no. N. J. no. P^a no. Del. no. M^d no. V^a[26] ay. N. C. ay. S. C. no. Geo. no.
[26] In the printed Journ Virg^a--no.--Madison's Note.
Question on the last clause of Sect. 5, Art: IV--viz "No money shall be drawn from the Public Treasury, but in pursuance of _appropriations_ that shall originate in the House of Rep^s. It passed in the negative--
N. H. no. Mas. ay. Con. no. N. J. no. P^a no. Del. no. M^d no. V^a no. N. C. no. S. C. no. Geo. no.
Adj^d.
TUESDAY AUG. 14[27]. IN CONVENTION
[27] General Henry Knox wrote to Washington from New York under date of August 14th:
"Influenced by motives of delicacy I have hitherto forborne the pleasure my dear Sir of writing to you since my return from Philadelphia.
"I have been apprehensive that the stages of the business of the convention, might leak out, and be made an ill use of, by some people. I have therefore been anxious that you should escape the possibility of imputation. But as the subjects seem now to be brought to a point, I take the liberty to indulge myself in communicating with you.
"Although I frankly confess that the existence of the State governments is an insuperable evil in a national point of view, yet I do not well see how in this stage of the business they could be annihilated--and perhaps while they continue the frame of government could not with propriety be much higher toned than the one proposed. It is so infinitely preferable to the present constitution, and gives such a bias to a proper line of conduct in future that I think all men anxious for a national government should zealously embrace it.
"The education, genius, and habits of men on this continent are so various even at this moment, and of consequence their views of the same subject so different, that I am satisfied with the result of the convention, although it is short of my wishes and of my judgment.
"But when I find men of the purest intentions concur in embracing a system which on the highest deliberation, seems to be the best which can be obtained, under present circumstances, I am convinced of the propriety of its being strenuously supported by all those who have wished for a national republic of higher and more durable powers.
"I am persuaded that the address of the convention to accompany their proposition will be couched in the most persuasive terms.
"I feel anxious that there should be the fullest representation in Congress, in order that the propositions should receive their warmest concurrence and strongest impulse...."--Wash. MSS.
Article VI. Sect. 9. taken up.
M^r Pinkney argued that the making the members ineligible to offices was _degrading_ to them, and the more improper as their election into the Legislature implied that they had the confidence of the people; that it was _inconvenient_, because the Senate might be supposed to contain the fittest men. He hoped to see that body become a School of public Ministers, a nursery of Statesmen: that it was _impolitic_, because the Legislature would cease to be a magnet to the first talents and abilities. He moved to postpone the section in order to take up the following proposition viz--"the members of each House shall be incapable of holding any office under the U. S. for which they or any of others for their benefit receive any salary, fees, or emoluments of any kind--and the acceptance of such office shall vacate their seats respectively."
Gen^s Mifflin[28] 2^{ded} the motion.
[28] "General Mifflin is well known for the activity of his mind, and the brilliancy of his parts. He is well-informed and a graceful Speaker. The General is about 40 years of age and a very handsome man."--Pierce's Notes, _Am. Hist. Rev._, iii., 328.
Col. Mason ironically proposed to strike out the whole section, as a more effectual expedient for encouraging that exotic corruption which might not otherwise thrive so well in the American Soil--for compleating that Aristocracy which was probably in the contemplation of some among us, and for inviting into the Legislative Service, those generous & benevolent characters who will do justice to each other's merit, by carving out offices & rewards for it. In the present state of American morals & manners, few friends it may be thought will be lost to the plan, by the opportunity of giving premiums to a mercenary & depraved ambition.
M^r Mercer. It is a first principle in political science, that whenever the rights of property are secured, an aristocracy will grow out of it. Elective Governments also necessarily become aristocratic, because the rulers being few can & will draw emoluments for themselves from the many. The Governments of America will become aristocracies. They are so already. The public measures are calculated for the benefit of the Governors, not of the people. The people are dissatisfied & complain. They change their rulers, and the public measures are changed, but it is only a change of one scheme of emolument to the rulers, for another. The people gain nothing by it, but an addition of instability & uncertainty to their other evils.--Governm^{ts} can only be maintained by _force_ or _influence_. The Executive has not _force_, deprive him of influence by rendering the members of the Legislature ineligible to Executive offices, and he becomes a mere phantom of authority. The Aristocratic part will not even let him in for a share of the plunder. The Legislature must & will be composed of wealth & abilities, and the people will be governed by a Junto. The Executive ought to have a Council, being members of both Houses. Without such an influence, the war will be between the aristocracy & the people. He wished it to be between the Aristocracy & the Executive. Nothing else can protect the people ag^{st} those speculating Legislatures which are now plundering them throughout the U. States.
M^r Gerry read a Resolution of the Legislature of Mass^{ts} passed before the Act of Cong^s recommending the Convention, in which her deputies were instructed not to depart from the rotation established in the 5^{th} art: of Confederation, nor to agree in any case to give to the members of Cong^s a capacity to hold offices under the Government. This he said was repealed in consequence of the Act of Cong^s with which the State thought it proper to comply in an unqualified manner. The Sense of the State however was Still the same. He could not think with M^r Pinkney that the disqualification was degrading. Confidence is the road to tyranny. As to Ministers & Ambassadors few of them were necessary. It is the opinion of a great many that they ought to be discontinued, on our part; that none may be sent among us, & that source of influence be shut up. If the Senate were to appoint Ambassadors as seemed to be intended, they will multiply embassies for their own sakes. He was not so fond of those productions as to wish to establish nurseries for them. If they are once appointed, the House of Rep^s will be obliged to provide salaries for them, whether they approve of the measures or not. If men will not serve in the Legislature without a prospect of such offices, our situation is deplorable indeed. If our best Citizens are actuated by such mercenary views we had better chuse a single despot at once. It will be more easy to satisfy the rapacity of one than of many. According to the idea of one Gentleman (M^r Mercer) our Government it seems is to be a Gov^t of plunder. In that case it certainly would be prudent to have but one rather than many to be employed in it. We cannot be too circumspect in the formation of this System. It will be examined on all sides and with a very suspicious eye. The people who have been so lately in arms ag^{st} G. B. for their liberties, will not easily give them up. He lamented the evils existing at present under our Governments, but imputed them to the faults of those in office, not to the people. The misdeeds of the former will produce a critical attention to the opportunities afforded by the new system to like or greater abuses. As it now stands it is as compleat an aristocracy as ever was framed. If great powers should be given to the Senate we shall be governed in reality by a Junto as has been apprehended. He remarked that it would be very differently constituted from Cong^s. 1. there will be but 2 deputies from each State, in Cong^s there may be 7. and are generally 5.--2. they are chosen for six years, those of Congress annually. 3. they are not subject to recall; those of Cong^s are. 4. In Congress 9 _States_ are necessary for all great purposes, here 8 _persons_ will suffice. Is it to be presumed that the people will ever agree to such a system? He moved to render the members of the H. of Rep^s as well as of the Senate ineligible not only during, but for one year after the expiration of their terms.--If it should be thought that this will injure the Legislature by keeping out of it men of abilities who are willing to serve in other offices it may be required as a qualification for other offices, that the Candidate shall have served a certain time in the Legislature.
M^r Gov^r Morris. Exclude the officers of the army & navy, and you form a band having a different interest from & opposed to the civil power: you stimulate them to despise & reproach those "talking Lords who dare not face the foe." Let this spirit be roused at the end of a war, before your troops shall have laid down their arms, and though the Civil authority "be intrenched in parchment to the teeth" they will cut their way to it. He was ag^{st} rendering the members of the Legislature ineligible to offices. He was for rendering them eligible ag^n after having vacated their Seats by accepting office. Why should we not avail ourselves of their services if the people chuse to give them their confidence. There can be little danger of corruption either among the people or the Legislatures who are to be the Electors. If they say, we see their merits, we honor the men, we chuse to renew our confidence in them, have they not a right to give them a preference; and can they be properly abridged of it.
M^r Williamson; introduced his opposition to the motion by referring to the question concerning "money bills." That clause he said was dead. Its Ghost he was afraid would notwithstanding haunt us. It had been a matter of conscience with him, to insist upon it as long as there was hope of retaining it. He had swallowed the vote of rejection, with reluctance. He could not digest it. All that was said on the other side was that the restriction was not _convenient_. We have now got a House of Lords which is to originate money-bills.--To avoid another _inconveniency_, we are to have a whole Legislature at liberty to cut out offices for one another. He thought a self-denying ordinance for ourselves would be more proper. Bad as the Constitution has been made by expunging the restriction on the Senate concerning money bills he did not wish to make it worse by expunging the present Section. He had scarcely seen a single corrupt measure in the Legislature of N. Carolina, which could not be traced up to office hunting.
M^r Sherman. The Constitution sh^d lay as few temptations as possible in the way of those in power. Men of abilities will increase as the Country grows more populous and as the means of education are more diffused.
M^r Pinkney. No State has rendered the members of the Legislature ineligible to offices. In S. Carolina the Judges are eligible into the Legislature. It cannot be supposed then that the motion will be offensive to the people. If the State Constitutions should be revised he believed restrictions of this sort w^d be rather diminished than multiplied.
M^r Wilson could not approve of the section as it stood, and could not give up his judgment to any supposed objections that might arise among the people. He considered himself as acting & responsible for the welfare of millions not immediately represented in this House. He had also asked himself the serious question what he should say to his constituents in case they should call upon him to tell them why he sacrificed his own Judgment in a case where they authorized him to exercise it? Were he to own to them that he sacrificed it in order to flatter their prejudices, he should dread the retort: did you suppose the people of Penn^a had not good sense enough to receive a good Government? Under this impression he should certainly follow his own Judgment which disapproved of the section. He would remark in addition to the objections urged ag^{st} it, that as one branch of the Legislature was to be appointed by the Legislatures of the States, the other by the people of the States, as both are to be paid by the States, and to be appointable to State offices, nothing seemed to be wanting to prostrate the Nat^l Legislature, but to render its members ineligible to Nat^l offices, & by that means take away its power of attracting those talents which were necessary to give weight to the Govern^t and to render it useful to the people. He was far from thinking the ambition which aspired to Offices of dignity and trust, an ignoble or culpable one. He was sure it was not politic to regard it in that light, or to withhold from it the prospect of those rewards, which might engage it in the career of public service. He observed that the State of Penn^a which had gone as far as any State into the policy of fettering power, had not rendered the members of the Legislature ineligible to offices of Gov^t.
M^r Elsworth did not think the mere postponement of the reward would be any material discouragement of merit. Ambitious minds will serve 2 years or 7 years in the Legislature for the sake of qualifying themselves for other offices. This he thought a sufficient security for obtaining the services of the ablest men in the Legislature, although whilst members they should be ineligible to Public offices. Besides, merit will be most encouraged, when most impartially rewarded. If rewards are to circulate only within the Legislature, merit out of it will be discouraged.
M^r Mercer was extremely anxious on this point. What led to the appointment of this Convention? The corruption & mutability of the Legislative Councils of the States. If the plan does not remedy these, it will not recommend itself; and we shall not be able in our private capacities to support & enforce it: nor will the best part of our Citizens exert themselves for the purpose.--It is a great mistake to suppose that the paper we are to propose will govern the U. States. It is The men whom it will bring into the Govern^t and interest in maintaining it that is to govern them. The paper will only mark out the mode & the form. Men are the substance and must do the business. All Gov^t must be by force or influence. It is not the King of France--but 200,000 janisaries of power that govern that Kingdom. There will be no such force here; influence then must be substituted; and he would ask whether this could be done, if the members of the Legislature should be ineligible to offices of State; whether such a disqualification would not determine all the most influential men to stay at home, & prefer appointments within their respective States.
M^r Wilson was by no means satisfied with the answer given by M^r Elseworth to the argument as to the discouragement of merit. The members must either go a second time into the Legislature, and disqualify themselves--or say to their Constituents, we served you before only from the mercenary view of qualifying ourselves for offices, and have^g answered this purpose we do not chuse to be again elected.
M^r Gov^r Morris put the case of a war, and the Citizen the most capable of conducting it, happening to be a member of the Legislature. What might have been the consequence of such a regulation at the commencement, or even in the Course of the late contest for our liberties?
On question for postponing in order to take up M^r Pinkney's motion, it was lost,
N. H. ay. Mas. no. C^t no. N. J. no. P^a ay. Del. ay. M^d ay. V^a ay. N. C. no. S. C. no. Geo. div^d.
M^r Gov^r Morris moved to insert, after "office," except offices in the army or navy: but in that case their offices shall be vacated.
M^r Broom 2^{ds} him.
M^r Randolph had been & should continue uniformly opposed to the striking out of the clause; as opening a door for influence & corruption. No arguments had made any impression on him, but those which related to the case of war, and a co-existing incapacity of the fittest commanders to be employed. He admitted great weight in these, and would agree to the exception proposed by M^r Gov^r Morris.
M^r Butler & M^r Pinkney urged a general postponem^t of 9. Sect. Art. VI. till it should be seen what powers would be vested in the Senate, when it would be more easy to judge of the expediency of allowing the officers of State to be chosen out of that body.--A general postponement was agreed to nem. con.
Art: VI. Sect. 10. taken up--"that members be paid by their respective States."
M^r Elseworth said that in reflecting on this subject he had been satisfied that too much dependence on the States would be produced by this mode of payment. He moved to strike it out and insert that they should "be paid out of the Treasury of the U. S. an allowance not exceeding ([blank]) dollars per day or the present value thereof."
M^r Gov^r Morris, remarked that if the members were to be paid by the States it would throw an unequal burden on the distant States, which would be unjust as the Legislature, was to be a national Assembly. He moved that the payment be out of the Nat^l Treasury; leaving the quantum to the discretion of the Nat^l Legislature. There could be no reason to fear that they would overpay themselves.
M^r Butler contended for payment by the States; particularly in the case of the Senate, who will be so long out of their respective States, that they will lose sight of their Constituents unless dependent on them for their support.
M^r Langdon was ag^{st} payment by the States. There would be some difficulty in fixing the sum; but it would be unjust to oblige the distant States to bear the expence of their members in travelling to and from the Seat of Gov^t.
M^r Madison. If the H. of Rep^s is to be chosen _biennially_--and the Senate to be _constantly_ dependent on the Legislatures which are chosen _annually_, he could not see any chance for that stability in the Gen^l Gov^t the want of which was a principal evil in the State Gov^{ts}. His fear was that the organization of the Gov^t supposing the Senate to be really independ^t for six years, would not effect our purpose. It was nothing more than a combination of the peculiarities of two of the State Gov^{ts} which separately had been found insufficient. The Senate was formed on the model of that of Maryl^d. The Revisionary check, on that of N. York. What the effect of a union of these provisions might be, could not be foreseen. The enlargement of the sphere of the Government was indeed a circumstance which he thought would be favorable as he had on several occasions undertaken to show. He was however for fixing at least two extremes not to be exceeded by the Nat^l Legisl^{re} in the payment of themselves.
M^r Gerry. There are difficulties on both sides. The observation of M^r Butler has weight in it. On the other side, the State Legislatures may turn out the Senators by reducing their salaries. Such things have been practised.
Col. Mason. It has not yet been noticed that the clause as it now stands makes the House of Represent^s also dependent on the State Legislatures: so that both houses will be made the instruments of the politics of the States whatever they may be.
M^r Broom could see no danger in trusting the Gen^l Legislature with the payment of themselves. The State Legislatures had this power, and no complaint had been made of it.
M^r Sherman was not afraid that the Legislature would make their own wages too high; but too low, so that men ever so fit could not serve unless they were at the same time rich. He thought the best plan would be to fix a moderate allowance to be paid out of the Nat^l Treas^y and let the States make such additions as they might judge fit. He moved that 5 dollars per day be the sum, any further emoluments to be added by the States.
M^r Carrol had been much surprised at seeing this clause in the Report. The dependence of both Houses on the State Legislatures is compleat; especially as the members of the former are eligible to State offices. The States can now say: if you do not comply with our wishes, we will starve you; if you do we will reward you. The new Gov^t in this form was nothing more than a second edition of Congress in two volumes, instead of one, and perhaps with very few amendments--
M^r Dickenson took it for granted that all were convinced of the necessity of making the Gen^l Gov^t independent of the prejudices, passions, and improper views of the State Legislatures. The contrary of This was effected by the section as it stands. On the other hand there were objections ag^{st} taking a permanent standard as wheat which had been suggested on a former occasion, as well as against leaving the matter to the pleasure of the Nat^l Legislature. He proposed that an Act should be passed every 12 years by the Nat^l Legisl^{re} settling the quantum of their wages. If the Gen^l Gov^t should be left dependent on the State Legislatures, it would be happy for us if we had never met in this Room.
M^r Elseworth was not unwilling himself to trust the Legislature with authority to regulate their own wages, but well knew that an unlimited discretion for that purpose would produce strong, tho' perhaps not insuperable objections. He thought changes in the value of money, provided for by his motion in the words, "or the present value thereof."
M^r L. Martin. As the Senate is to represent the States, the members of it ought to be paid by the States.
M^r Carrol. The Senate was to represent & manage the affairs of the whole, and not to be the advocates of State interests. They ought then not to be dependent on nor paid by the States.
On the question for paying the Members of the Legislature out of the Nat^l Treasury,
N. H. ay. Mass. no. C^t ay. N. J. ay. P^a ay. Del. ay. M^d ay. V^a ay. N. C. ay. S. C. no. Geo. ay.
M^r Elseworth moved that the pay be fixed at 5 doll^{rs} or the present value thereof per day during their attendance & for every thirty miles in travelling to & from Congress.
M^r Strong preferred 4 dollars, leaving the Sts. at liberty to make additions.
On question for fixing the pay at 5 dollars.
N. H. no. Mass. no. C^t ay. N. J. no. P^a no. Del. no. M^d no. V^a ay. N. C. no. S. C. no. Geo. no.
M^r Dickenson proposed that the wages of the members of both houses s^d be required to be the same.
M^r Broome seconded him.
M^r Ghorum. this would be unreasonable. The Senate will be detained longer from home, will be obliged to remove their families, and in time of war perhaps to sit constantly. Their allowance should certainly be higher. The members of the Senates in the States are allowed more, than those of the other house.
M^r Dickenson withdrew his motion.
It was moved & agreed to amend the section by adding--"to be ascertained by law."
The section (Art. VI. Sect. 10) as amended, agreed to nem. con.
Adj^d.
WEDNESDAY AUGUST 15. IN CONVENTION.
Art: VI. Sect. 11. Agreed to nem. con.
Art: VI. Sect 12. taken up.
M^r Strong moved to amend the article so as to read--"Each House shall possess the right of originating all bills, except bills for raising money for the purposes of revenue, or for appropriating the same and for fixing the salaries of the officers of the Gov^t which shall originate in the House of Representatives; but the Senate may propose or concur with amendments as in other cases".
Col. Mason, 2^{ds} the motion. He was extremely earnest to take this power from the Senate, who he said could already sell the whole Country by means of Treaties.
M^r Ghorum urged the amendment as of great importance. The Senate will first acquire the habit of preparing money bills, and then the practice will grow into an exclusive right of preparing them.
M^r Govern^r Morris opposed it as unnecessary and inconvenient.
M^r Williamson, some think this restriction on the Senate essential to liberty, others think it of no importance. Why should not the former be indulged. He was for an efficient and stable Gov^t: but many would not strengthen the Senate if not restricted in the case of money bills. The friends of the Senate would therefore lose more than they would gain by refusing to gratify the other side. He moved to postpone the subject till the powers of the Senate should be gone over.
M^r Rutlidge 2^{ds} the motion.
M^r Mercer should hereafter be ag^{st} returning to a reconsideration of this section. He contended (alluding to M^r Mason's observations) that the Senate ought not to have the power of treaties. This power belonged to the Executive department; adding that Treaties would not be final so as to alter the laws of the land, till ratified by legislative authority. This was the case of Treaties in Great Britain; particularly the late Treaty of Co[~m]erce with France.
Col. Mason, did not say that a Treaty would repeal a law; but that the Senate by means of treaty might alienate territory &c., without legislative sanction. The cessions of the British Islands in W. Indies by Treaty alone were an example. If Spain should possess herself of Georgia therefore the Senate might by treaty dismember the Union. He wished the motion to be decided now, that the friends of it might know how to conduct themselves.
On the question for postponing Sect: 12. it passed in the affirmative.
N. H. ay. Mass. ay. C^t no. N. J. no. Pen^a no. Del: no. Mary^d no. V^a ay. N. C. ay. S. C. ay. Geo. ay.
M^r Madison moved that all acts before they become laws should be submitted both to the Executive and supreme Judiciary Departments, that if either of these should object 2/3 of each House, if both should object, 3/4 of each House, should be necessary to overrule the objections and give to the acts the force of law.[29]
[29] Madison's Note says: "See the motion at large in the Journal of this date, page 253, and insert it here." The Journal gives it as follows:
"It was moved by Mr. Madison, and seconded, to agree to the following amendment of the thirteenth section of the sixth article:
"Every bill which shall have passed the two houses, shall, before it become a law, be severally presented to the President of the United States, and to the judges of the supreme court for the revision of each. If, upon such revision, they shall approve of it, they shall respectively signify their approbation by signing it; but if, upon such revision, it shall appear improper to either, or both, to be passed into a law, it shall be returned, with the objections against it, to that house, in which it shall have originated, who shall enter the objections at large on their journal, and proceed to reconsider the bill: but if, after such reconsideration, two thirds of that house, when either the President, or a majority of the judges shall object, or three fourths, where both shall object, shall agree to pass it, it shall, together with the objections, be sent to the other house, by which it shall likewise be reconsidered; and, if approved by two thirds, or three fourths of the other house, as the case may be, it shall become a law."
M^r Wilson seconds the motion.
M^r Pinkney opposed the interference of the Judges in the Legislative business: it will involve them in parties, and give a previous tincture to their opinions.
M^r Mercer heartily approved the motion. It is an axiom that the Judiciary ought to be separate from the Legislative; but equally so that it ought to be independent of that department. The true policy of the axiom is that legislative usurpation and oppression may be obviated. He disapproved of the Doctrine that the Judges as expositors of the Constitution should have authority to declare a law void. He thought laws ought to be well and cautiously made, and then to be uncontroulable.
M^r Gerry. This motion comes to the same thing with what has been already negatived.
Question on the motion of M^r Madison
N. H. no. Mass. no. C^t no. N. J. no. P^a no. Del. ay. Mary^d ay. Virg^a ay. N. C. no. S. C. no. Geo. no.
M^r Gov^r Morris regretted that something like the proposed check could not be agreed to. He dwelt on the importance of public Credit, and the difficulty of supporting it without some strong barrier against the instability of legislative Assemblies. He suggested the idea of requiring three fourths of each house to _repeal_ laws where the President should not concur. He had no great reliance on the revisionary power as the Executive was now to be constituted (elected by Congress.) The legislature will contrive to soften down the President. He recited the history of paper emissions, and the perseverance of the legislative assemblies in repeating them, with all the distressing effects of such measures before their eyes. Were the National legislature formed, and a war was now to break out, this ruinous expedient would be again resorted to, if not guarded against. The requiring 3/4 to repeal would, though not a compleat remedy, prevent the hasty passage of laws, and the frequency of those repeals which destroy faith in the public, and which are among our greatest calamities.
M^r Dickenson was strongly impressed with the remark of M^r Mercer as to the power of the Judges to set aside the law. He thought no such power ought to exist. He was at the same time at a loss what expedient to substitute. The Justiciary of Arragon he observed became by degrees the lawgiver.
M^r Gov^r Morris, suggested the expedient of an absolute negative in the Executive. He could not agree that the Judiciary which was part of the Executive, should be bound to say that a direct violation of the Constitution was law. A controul over the legislature might have its inconveniences. But view the danger on the other side. The most virtuous Citizens will often as members of a legislative body concur in measures which afterwards in their private capacity they will be ashamed of. Encroachments of the popular branch of the Government ought to be guarded ag^{st}. The Ephori at Sparta became in the end absolute. The Report of the Council of Censors in Pennsylv^a points out the many invasions of the legislative department on the Executive numerous as the latter[30] is, within the short term of seven years, and in a State where a strong party is opposed to the Constitution, and watching every occasion of turning the public resentments ag^{st} it. If the Executive be overturned by the popular branch, as happened in England, the tyranny of one man will ensue. In Rome where the Aristocracy overturned the throne, the consequence was different. He enlarged on the tendency of the legislative Authority to usurp on the Executive and wished the section to be postponed, in order to consider of some more effectual check than requiring 2/3 only to overrule the negative of the Executive.
[30] The Executive consists at this time of ab^t 20 members.--Madison's Note.
M^r Sherman. Can one man be trusted better than all the others if they all agree? This was neither wise nor safe. He disapproved of Judges meddling in politics and parties. We have gone far enough in forming the negative as it now stands.
M^r Carrol. When the negative to be overruled by 2/3 only was agreed to, the _quorum_ was not fixed. He remarked that as a majority was now to be the quorum, 17. in the larger, and 8 in the smaller house might carry points. The advantage that might be taken of this seemed to call for greater impediments to improper laws. He thought the controuling power however of the Executive could not be well decided, till it was seen how the formation of that department would be finally regulated. He wished the consideration of the matter to be postponed.
M^r Ghorum saw no end to these difficulties and postponements. Some could not agree to the form of Government before the powers were defined. Others could not agree to the powers till it was seen how the Government was to be formed. He thought a majority as large a quorum as was necessary. It was the quorum almost every where fixt in the U. States.
M^r Wilson; after viewing the subject with all the coolness and attention possible was most apprehensive of a dissolution of the Gov^t from the legislature swallowing up all the other powers. He remarked that the prejudices ag^{st} the Executive resulted from a misapplication of the adage that the parliament was the palladium of liberty. Where the Executive was really formidable, _King_ and _Tyrant_, were naturally associated in the minds of people; not _legislature_ and _tyranny_. But where the Executive was not formidable, the two last were most properly associated. After the destruction of the King in Great Britain, a more pure and unmixed tyranny sprang up in the parliament than had been exercised by the monarch. He insisted that we had not guarded ag^{st} the danger on this side by a sufficient self-defensive power either to the Executive or Judiciary department.
M^r Rutlidge was strenuous ag^{st} postponing; and complained much of the tediousness of the proceedings.
M^r Elseworth held the same language. We grow more & more sceptical as we proceed. If we do not decide soon, we shall be unable to come to any decision.
The question for postponement passed in the negative: Del: & Mary^d only being in the affirmative.
M^r Williamson moved to change, "2/3 of each House" into "3/4" as requisite to overrule the dissent of the President. He saw no danger in this, and preferred giving the power to the Presid^t alone, to admitting the Judges into the business of legislation.
M^r Wilson 2^{ds} the motion; referring to and repeating the ideas of M^r Carroll.
On this motion for 3/4, instead of two-thirds; it passed in the affirmative.
N. H. no. Mass. no. C^t ay. N. J. no. Pen^a div^d. Del. ay. M^d ay. V^a ay. N. C. ay. S. C. ay. Geo. no.
M^r Madison, observing that if the negative of the President was confined to _bills_; it would be evaded by acts under the form and name of Resolutions, votes &c., proposed that "or resolve" should be added after "_bill_" in the beginning of sect 13. with an exception as to votes of adjournment &c. After a short and rather confused conversation on the subject, the question was put & rejected, the States being as follows,
N. H. no. Mass. ay. C^t no. N. J. no. Pen^a no. Del. ay. M^d no. V^a no. N. C. ay. S. C. no. Geo. no.
"_Ten_ days (Sundays excepted)" instead of "_seven_" were allowed to the President for returning bills with his objections N. H. & Mas: only voting ag^{st} it.
The 13 Sect: of Art. VI as amended was then agreed to.
Adjourned.
THURSDAY. AUGUST 16. IN CONVENTION.
M^r Randolph having thrown into a new form the motion putting votes, Resolutions &c. on a footing with Bills, renewed it as follows--"Every order resolution or vote, to which the concurrence of the Senate & House of Rep^s may be necessary (except on a question of adjournment and in the cases hereinafter mentioned) shall be presented to the President for his revision; and before the same shall have force shall be approved by him, or being disapproved by him shall be repassed by the Senate & House of Rep^s according to the rules & limitations prescribed in the case of a Bill."
M^r Sherman thought it unnecessary, except as to votes taking money out of the Treasury which might be provided for in another place.
On Question as moved by M^r Randolph
N. H. ay. Mass. not present. C^t ay. N. J. no. P^a ay. Del. ay. M^d ay. V^a ay. N. C. ay. S. C. ay. Geo. ay.
The Amendment was made section 14. of Art. VI.
Art: VII. Sect. 1. taken up.
M^r L. Martin asked what was meant by the Committee of detail in the expression,--"_duties_" and "_imposts_." If the meaning were the same, the former was unnecessary; if different, the matter ought to be made clear.
M^r Wilson. _Duties_ are applicable to many objects to which the word _imposts_ does not relate. The latter are appropriated to commerce; the former extend to a variety of objects, as stamp duties &c.
M^r Carroll reminded the Convention of the great difference of interests among the States, and doubts the propriety in that point of view of letting a majority be a quorum.
M^r Mason urged the necessity of connecting with the power of levying taxes duties &c., the prohibition in Sect. 4 Art. VI that no tax should be laid on exports. He was unwilling to trust to its being done in a future article. He hoped the North^n States did not mean to deny the Southern this security. It would hereafter be as desirable to the former when the latter should become the most populous. He professed his jealousy for the productions of the Southern or as he called them, the staple States. He moved to insert the following amendment: "provided that no tax duty or imposition shall be laid by the Legislature of the U. States on articles exported from any State."
M^r Sherman had no objection to the proviso here, other than it would derange the parts of the report as made by the Committee, to take them in such an order.
M^r Rutlidge. It being of no consequence in what order points are decided, he should vote for the clause as it stood, but on condition that the subsequent part relating to negroes should also be agreed to.
M^r Governeur Morris considered such a proviso as inadmissible any where. It was so radically objectionable, that it might cost the whole system the support of some members. He contended that it would not in some cases be equitable to tax imports without taxing exports; and that taxes on exports would be often the most easy and proper of the two.
M^r Madison. 1. the power of laying taxes on exports is proper in itself, and as the States cannot with propriety exercise it separately, it ought to be vested in them collectively. 2. it might with particular advantage be exercised with regard to articles in which America was not rivalled in foreign markets, as Tob^o &c. The contract between the French Farmers Gen^l and M^r Morris stipulating that if taxes s^d be laid in america on the export of Tob^o they s^d be paid by the Farmers, shewed that it was understood by them, that the price would be thereby raised in America, and consequently the taxes be paid by the European Consumer. 3. it would be unjust to the States whose produce was exported by their neighbours, to leave it subject to be taxed by the latter. This was a grievance which had already filled N.H. Con^t N. Jer^y Del: and N. Carolina with loud complaints, as it related to imports, and they would be equally authorized by taxes by the States on exports. 4. The South^n States being most in danger and most needing naval protection, could the less complain if the burthen should be somewhat heaviest on them. 5. we are not providing for the present moment only, and time will equalize the situation of the States in this matter. He was for these reasons ag^{st} the motion.
M^r Williamson considered the clause proposed ag^{st} taxes on exports as reasonable and necessary.
M^r Elseworth was ag^{st} Taxing exports; but thought the prohibition stood in the most proper place, and was ag^{st} deranging the order reported by the Committee.
M^r Wilson was decidedly ag^{st} prohibiting general taxes on exports. He dwelt on the injustice and impolicy of leaving N. Jersey Connecticut &c. any longer subject to the exactions of their commercial neighbours.
M^r Gerry thought the legislature could not be trusted with such a power. It might ruin the Country. It might be exercised partially, raising one and depressing another part of it.
M^r Gov^r Morris. However the legislative power may be formed, it will if disposed be able to ruin the Country. He considered the taxing of exports to be in many cases highly politic. Virginia has found her account in taxing Tobacco. All Countries having peculiar articles tax the exportation of them; as France her wines and brandies. A tax here on lumber, would fall on the W. Indies & punish their restrictions on our trade. The same is true of live stock and in some degree of flour. In case of a dearth in the West Indies, we may extort what we please. Taxes on exports are a necessary source of revenue. For a long time the people of America will not have money to pay direct taxes. Seize and sell their effects and you push them into Revolts.
M^r Mercer was strenuous against giving Congress power to tax exports. Such taxes are impolitic, as encouraging the raising of articles not meant for exportation. The States had now a right where their situation permitted, to tax both the imports and the exports of their uncommercial neighbours. It was enough for them to sacrifice one half of it. It had been said the Southern States had most need of naval protection. The reverse was the case. Were it not for promoting the carrying trade of the North^n States, the South^n States could let the trade go into foreign bottoms, where it would not need our protection. Virginia by taxing her tobacco had given an advantage to that of Maryland.
M^r Sherman. To examine and compare the States in relation to imports and exports will be opening a boundless field. He thought the matter had been adjusted, and that imports were to be subject, and exports not, to be taxed. He thought it wrong to tax exports except it might be such articles as ought not to be exported. The complexity of the business in America would render an equal tax on exports impracticable. The oppression of the uncommercial States was guarded ag^{st} by the power to regulate trade between the States. As to compelling foreigners, that might be done by regulating trade in general. The Government would not be trusted with such a power. Objections are most likely to be excited by considerations relating to taxes & money. A power to tax exports would shipwreck the whole.
M^r Carrol was surprised that any objection should be made to an exception of exports from the power of taxation.
It was finally agreed that the question concerning exports sh^d lie over for the place in which the exception stood in the report: Mary^d alone voting ag^{st} it.
Sect: 1. (Art. VII) agreed to; M^r Gerry alone answering, no.
Clause for regulating commerce with foreign nations &c. agreed to nem. con. for coining money. ag^d to nem. con. for regulating foreign coin. d^o d^o. for fixing standard of weights & measures. d^o d^o.
"To establish post-offices," M^r Gerry moved to add, and post-roads. M^r Mercer 2^{ded}. & on question
N.H. no. Mass. ay. C^t no. N.J. no. Pen^a no. Del. ay. M^d ay. V^a ay. N.C. no. S.C. ay. Geo. ay.
M^r Gov^r Morris moved to strike out "and emit bills on the credit of the U. States"--If the United States had credit such bills would be unnecessary; if they had not, unjust & useless.
M^r Butler, 2^{ds} the motion.
M^r Madison, will it not be sufficient to prohibit the making them a _tender_? This will remove the temptation to emit them with unjust views. And promissory notes in that shape may in some emergencies be best.
M^r Gov^r Morris, striking out the words will leave room still for notes of a _responsible_ minister which will do all the good without the mischief. The Monied interest will oppose the plan of Government, if paper emissions be not prohibited.
M^r Ghorum was for striking out, without inserting any prohibition, if the words stand they may suggest and lead to the measure.
Col. Mason had doubts on the subject. Cong^s he thought would not have the power unless it were expressed. Though he had a mortal hatred to paper money, yet as he could not forsee all emergencies, he was unwilling to tie the hands of the Legislature. He observed that the late war could not have been carried on, had such a prohibition existed.
Mr. Ghorum. The power as far as it will be necessary or safe, is involved in that of borrowing.
M^r Mercer was a friend to paper money, though in the present state & temper of America, he should neither propose nor approve of such a measure. He was consequently opposed to a prohibition of it altogether. It will stamp suspicion on the Government to deny it a discretion on this point. It was impolitic also to excite the opposition of all those who were friends to paper money. The people of property would be sure to be on the side of the plan, and it was impolitic to purchase their further attachment with the loss of the opposite class of Citizens.
M^r Elseworth thought this a favorable moment to shut and bar the door against paper money. The mischiefs of the various experiments which had been made, were now fresh in the public mind and had excited the disgust of all the respectable part of America. By withholding the power from the new Govern^t more friends of influence would be gained to it than by almost any thing else. Paper money can in no case be necessary. Give the Government credit, and other resources will offer. The power may do harm, never good.
M^r Randolph, notwithstanding his antipathy to paper money, could not agree to strike out the words, as he could not foresee all the occasions that might arise.
M^r Wilson. It will have a most salutary influence on the credit of the U. States to remove the possibility of paper money. This expedient can never succeed whilst its mischiefs are remembered. And as long as it can be resorted to, it will be a bar to other resources.
M^r Butler remarked that paper was a legal tender in no Country in Europe. He was urgent for disarming the Government of such a power.
M^r Mason was still averse to tying the hands of the Legislature _altogether_. If there was no example in Europe as just remarked it might be observed on the other side, that there was none in which the Government was restrained on this head.
M^r Read, thought the words, if not struck out, would be as alarming as the mark of the Beast in Revelations.
M^r Langdon had rather reject the whole plan than retain the three words ("and emit bills").
On the motion for striking out
N.H. ay. Mass. ay. C^t ay. N.J. no. P^a ay. Del. ay. M^d no. V^a ay.[31] N.C. ay. S.C. ay. Geo. ay.
[31] This vote in the affirmative by Virg^a was occasioned by the acquiescence of M^r Madison who became satisfied that striking out the words would not disable the Gov^t from the use of public notes as far as they could be safe & proper; & would only cut off the pretext for a paper currency and particularly for making the bills a tender either for public or private debts.--Madison's Note.
The clause for borrowing money, agreed to nem. con.
Adj^d.
FRIDAY AUGUST 17. IN CONVENTION
Art. VII. Sect. 1. resumed, on the clause, "to appoint Treasurer by ballot,"
M^r Ghorum moved to insert "joint" before ballot, as more convenient as well as reasonable, than to require the separate concurrence of the Senate.
M^r Pinkney 2^{ds} the motion. M^r Sherman opposed it as favoring the larger States.
M^r Read moved to strike out the clause, leaving the appointment of the Treasurer as of other officers to the Executive. The Legislature was an improper body for appointments. Those of the State legislatures were a proof of it. The Executive being responsible would make a good choice.
M^r Mercer 2^{ds} the motion of M^r Read.
On the motion for inserting the word "joint" before ballot
N.H. ay. Mass. ay. C^t no. N.J. no. P^a ay. M^d no. V^a ay. N.C. ay. S.C. ay. Geo. ay.
Col. Mason in opposition to M^r Read's motion desired it might be considered to whom the money would belong; if to the people, the legislature representing the people ought to appoint the keepers of it.
On striking out the clause as amended by inserting "Joint"
N.H. no. Mass. no. C^t no. P^a ay. Del. ay. M^d ay. V^a no. N.C. no. S.C. ay. Geo. no.
"To constitute inferior tribunals" agreed to nem. con.
"To make rules as to captures on land & water" d^o d^o.
"To declare the law and punishment of piracies and felonies &c &c." considered.
M^r Madison moved to strike out "and punishment &c."
M^r Mason doubts the safety of it, considering the strict rule of construction in criminal cases. He doubted also the propriety of taking the power in all these cases wholly from the States.
M^r Govern^r Morris thought it would be necessary to extend the authority further, so as to provide for the punishment of counterfeiting in general. Bills of exchange for example might be forged in one State and carried into another.
It was suggested by some other member that _foreign_ paper might be counterfeited by Citizens; and that it might be politic to provide by national authority for the punishment of it.
M^r Randolph did not conceive that expunging "the punishment" would be a constructive exclusion of the power. He doubted only the efficacy of the word "declare."
M^r Wilson was in favor of the motion. Strictness was not necessary in giving authority to enact penal laws; though necessary in enacting & expounding them.
On motion for striking out "and punishment" as moved by M^r Madison
N.H. no. Mass. ay. C^t no. P^a ay. Del. ay. M^d no. V^a ay. N.C. ay. S.C. ay. Geo. ay.
M^r Gov^r Morris moved to strike out "declare the law" and insert "punish" before "piracies," and on the question.
N.H. ay. Mass. ay. C^t no. P^a ay. Del. ay. M^d ay. V^a no. N.C. no. S.C. ay. Geo. ay.
M^r Madison & M^r Randolph moved to insert "define &," before "punish."
M^r Wilson thought "felonies" sufficiently defined by common law.
M^r Dickenson concurred with M^r Wilson.
M^r Mercer was in favor of the amendment.
M^r Madison. Felony at common law is vague. It is also defective. One defect is supplied by Stat: of Anne as to running away with vessels which at co[~m]on law was a breach of trust only. Besides no foreign law should be a standard farther than is expressly adopted. If the laws of the States were to prevail on this subject, the Citizens of different States would be subject to different punishments for the same offence at Sea. There would be neither uniformity nor stability in the law--The proper remedy for all these difficulties was to vest the power proposed by the term "define" in the Nat^l legislature.
M^r Gov^r Morris would prefer _designate_ to _define_, the latter being as he conceived, limited to the preexisting meaning.
It was said by others to be applicable to the creating of offences also, and therefore suited the case both of felonies & of piracies. The motion of M^r M. & M^r R. was agreed to.
M^r Elseworth enlarged the motion so as to read "to define and punish piracies and felonies committed on the high seas, counterfeiting the securities and current coin of the U. States, and offences ag^{st} the law of Nations" which was agreed to nem. con.
"To subdue a rebellion in any State, on the application of its legislature"
M^r Pinkney moved to strike out, "on the application of its legislature".
M^r Gov^r Morris 2^{ds}.
M^r L. Martin opposed it as giving a dangerous & unnecessary power. The consent of the State ought to precede the introduction of any extraneous force whatever.
M^r Mercer supported the opposition of M^r Martin.
M^r Elseworth proposed to add after "legislature," "or Executive."
M^r Gov^r Morris. The Executive may possibly be at the head of the Rebellion. The Gen^l Gov^t should enforce obedience in all cases where it may be necessary.
M^r Elseworth. In many cases The Gen^l Gov^t ought not to be able to interpose, unless called upon. He was willing to vary his motion so as to read "or without it when the legislature cannot meet."
M^r Gerry was ag^{st} letting loose the myrmidons of the U. States on a State without its own consent. The States will be the best Judges in such cases. More blood would have been spilt in Mass^{ts} in the late insurrection, if the Gen^l Authority had intermeddled.
M^r Langdon was for striking out as moved by M^r Pinkney. The apprehension of the national force, will have a salutary effect in preventing insurrections.
M^r Randolph. If the Nat^l Legislature is to judge whether the State legislature can or cannot meet, that amendment would make the clause as objectionable as the motion of M^r Pinkney.
M^r Gov^r Morris. We are acting a very strange part. We first form a strong man to protect us, and at the same time wish to tie his hands behind him. The legislature may surely be trusted with such a power to preserve the public tranquillity.
On the motion to add, "or without it (application) when the legislature cannot meet"
N.H. ay. Mass. no. C^t ay. P^a div^d. Del. no. M^d no. V^a ay. N.C. div^d. S. C. ay. Geo. ay. So agreed to.
M^r Madison and M^r Dickenson moved to insert as explanatory, after "State"--"against the Government thereof". There might be a rebellion ag^{st} the U. States--which was agreed to nem. con.
On the clause as amended
N.H. ay. Mass.[32] abs^t. C^t ay. Pen. abs^t. Del. no. M^d no. V^a ay. N.C. no. S.C. no. Georg. ay.--so it was lost.
[32] In the printed Journal, Mas. no.--Madison's Note.
"To make war"
M^r Pinkney opposed the vesting this power in the Legislature. Its proceedings were too slow. It w^d meet but once a year, the H^s of Rep^s would be too numerous for such deliberations. The Senate would be the best depository, being more acquainted with foreign affairs, and most capable of proper resolutions. If the States are equally represented in the Senate, so as to give no advantage to the large States, the power will notwithstanding be safe, as the small have their all at stake in such cases as well as the large States. It would be singular for one authority to make war, and another peace.
M^r Butler. The Objections ag^{st} the Legislature lie in a great degree ag^{st} the Senate. He was for vesting the power in the President, who will have all the requisite qualities, and will not make war but when the Nation will support it.
M^r Madison and M^r Gerry moved to insert "_declare_," striking out "_make_" war; leaving to the Executive the power to repel sudden attacks.
M^r Sherman thought it stood very well. The Executive sh^d be able to repel and not to commence war. "Make" is better than "declare" the latter narrowing the power too much.
M^r Gerry never expected to hear in a republic a motion to empower the Executive alone to declare war.
M^r Elsworth. There is a material difference between the cases of making _war_ and making _peace_. It sh^d be more easy to get out of war, than into it. War also is a simple and overt declaration, peace attended with intricate & secret negociations.
M^r Mason was ag^{st} giving the power of war to the Executive because not safely to be trusted with it; or to the Senate, because not so constructed as to be entitled to it. He was for clogging rather than facilitating war; but for facilitating peace. He preferred "_declare_" to "_make_."
On the motion to insert "_declare_"--in place of "_make_," it was agreed to.
N.H. no. Mass, abs^t. Con^t no.[33] P^a ay. Del. ay. M^d ay. V^a ay. N.C. ay. S.C. ay. Geo. ay.
[33] On the remark by M^r King that "_make_" war might be understood to "conduct" it which was an Executive function. M^r Elsworth gave up his objection, and the vote of Con. was changed to _ay_.--Madison's Note.
M^r Pinkney's motion to strike out whole clause, disag^d to without call of States.
M^r Butler moved to give the Legislature the power of peace, as they were to have that of war.
M^r Gerry 2^{ds} him. 8 Senators may possibly exercise the power if vested in that body, and 14 if all should be present; and may consequently give up part of the U. States. The Senate are more liable to be corrupted by an Enemy than the whole Legislature.
On the motion for adding "and peace" after "war,"
N.H. no. Mas. no. C^t no. P^a no. Del. no. M^d no. V^a no. N.C. no. S.C. no. Geo. no.
Adjourned.
SATURDAY AUGUST 18. IN CONVENTION
M^r Madison submitted, in order to be referred to the Committee of detail the following powers as proper to be added to those of the General Legislature:
"To dispose of the unappropriated lands of the U. States."
"To institute temporary Governments for new States arising therein."
"To regulate affairs with the Indians as well within as without the limits of the U. States."
"To exercise exclusively Legislative authority at the seat of the General Government, and over a district around the same, not exceeding ---- square miles; the Consent of the Legislature of the State or States comprising the same, being first obtained."
"To grant charters of incorporation in cases where the public good may require them, and the authority of a single State may be incompetent"
"To secure to literary authors their copy rights for a limited time."
"To establish an University."
"To encourage by premiums & provisions, the advancement of useful knowledge and discoveries."
"To authorize the Executive to procure and hold for the use of the U. S. landed property for the erection of Forts, magazines, and other necessary buildings."
These propositions were referred to the Committee of detail which had prepared the Report and at the same time the following which were moved by M^r Pinkney:--in both cases unanimously:
"To fix and permanently establish the seat of Government of the U. S. in which they shall possess the exclusive right of soil & jurisdiction."
"To establish seminaries for the promotion of literature and the arts & sciences."
"To grant charters of incorporation."
"To grant patents for useful inventions."
"To secure to Authors exclusive rights for a certain time."
"To establish public institutions, rewards and immunities for the promotion of agriculture, commerce, trades and manufactures."
"That funds which shall be appropriated for the payment of public Creditors, shall not during the time of such appropriation, be diverted or applied to any other purpose and that the Committee prepare a clause or clauses for restraining the Legislature of the U. S. from establishing a perpetual revenue."
"To secure the payment of the public debt."
"To secure all creditors under the new Constitution from a violation of the public faith when pledged by the authority of the Legislature."
"To grant letters of mark and reprisal."
"To regulate Stages on the post roads."
M^r Mason introduced the subject of regulating the militia. He thought such a power necessary to be given to the Gen^l Government. He hoped there would be no standing army in time of peace, unless it might be for a few garrisons. The Militia ought therefore to be the more effectually prepared for the public defence. Thirteen States will never concur in any one system, if the disciplining of the Militia be left in their hands. If they will not give up the power over the whole, they probably will over a part as a select militia. He moved as an addition to the propositions just referred to the Comittee of detail, & to be referred in like manner, "a power to regulate the militia."
M^r Gerry remarked that some provision ought to be made in favor of public Securities, and something inserted concerning letters of marque, which he thought not included in the power of war. He proposed that these subjects should also go to a Committee.
M^r Rutlidge moved to refer a clause "that funds appropriated to public creditors should not be diverted to other purposes."
M^r Mason was much attached to the principle, but was afraid such a fetter might be dangerous in time of war. He suggested the necessity of preventing the danger of perpetual revenue which must of necessity subvert the liberty of any country. If it be objected to on the principle of M^r Rutlidge's motion that public Credit may require perpetual provisions, that case might be excepted; it being declared that in other cases, no taxes should be laid for a longer term than ---- years. He considered the caution observed in Great Britain on this point as the paladium of public liberty.
M^r Rutlidge's motion was referred--He then moved that a Grand Committee be appointed to consider the necessity and expediency of the U. States assuming all the State debts--A regular settlement between the Union & the several States would never take place. The assumption would be just as the State debts were contracted in the common defence. It was necessary, as the taxes on imports the only sure source of revenue were to be given up to the Union. It was politic, as by disburdening the people of the State debts it would conciliate them to the plan.
M^r King and M^r Pinkney seconded the motion. (Col. Mason interposed a motion that the Committee prepare a clause for restraining perpetual revenue, which was agreed to nem. con.)
M^r Sherman thought it would be better to authorize the Legislature to assume the State debts, than to say positively it should be done. He considered the measure as just and that it would have a good effect to say something about the matter.
M^r Elseworth differed from M^r Sherman. As far as the State debts ought in equity to be assumed, he conceived that they might and would be so.
M^r Pinkney observed that a great part of the State debts were of such a nature that although in point of policy and true equity they ought, yet would they not be viewed in the light of federal expenditures.
M^r King thought the matter of more consequence than M^r Elseworth seemed to do; and that it was well worthy of commitment. Besides the considerations of justice and policy which had been mentioned, it might be remarked that the State Creditors an active and formidable party would otherwise be opposed to a plan which transferred to the Union the best resources of the States without transferring the State debts at the same time. The State Creditors had generally been the strongest foes to the impost-plan. The State debts probably were of greater amount than the federal. He would not say that it was practicable to consolidate the debts, but he thought it would be prudent to have the subject considered by a Committee.
On M^r Rutlidge's motion, that a Com^e be appointed to consider of the assumption &c.
N. H. no. Mass. ay. C^t ay. N. J. no. P^a div^d. Del. no. M^d no. V^a ay. N. C. ay. S. C. ay. Geo. ay.
M^r Gerry's motion to provide for public securities, for stages on post roads, and for letters of marque & reprisal, were committed nem. con.
M^r King suggested that all unlocated lands of particular States ought to be given up if State debts were to be assumed:--M^r Williamson concurred in the idea.
A Grand Committee was appointed consisting of M^r Langdon, M^r King, M^r Sherman, M^r Livingston, M^r Clymer, M^r Dickenson, M^r M^cHenry, M^r Mason, M^r Williamson, M^r C. C. Pinkney, M^r Baldwin.
M^r Rutlidge remarked on the length of the Session, the probable impatience of the public and the extreme anxiety of many members of the Convention to bring the business to an end; concluding with a motion that the Convention meet henceforward precisely at 10 Oc A.M. and that precisely at 4 Oc P.M. the President adjourn the House without motion for the purpose, and that no motion to adjourn sooner be allowed.
On this question
N. H. ay. Mass. ay. C^t ay. N. J. ay. P^a no. Del. ay. M^d no. V^a ay. N. C. ay. S. C. ay. Geo. ay.
M^r Elseworth observed that a Council had not yet been provided for the President. He conceived there ought to be one. His proposition was that it should be composed of the President of the Senate, the Chief Justice, and the ministers as they might be estab^d for the departments of foreign & domestic affairs, war finance and marine, who should advise but not conclude the President.
M^r Pinkney wished the proposition to lie over, as notice had been given for a like purpose by M^r Gov^r Morris who was not then on the floor. His own idea was that the President sh^d be authorized to call for advice or not as he might chuse. Give him an able Council and it will thwart him; a weak one and he will shelter himself under their sanction.
M^r Gerry was ag^{st} letting the heads of the Departments, particularly of finance have any thing to do in business connected with legislation. He mentioned the Chief Justice also as particularly exceptionable. These men will also be so taken up with other matters as to neglect their own proper duties.
M^r Dickenson urged that the great appointments should be made by the Legislature in which case they might properly be consulted by the Executive, but not if made by the Executive himself--This subject by general consent lay over; & the House proceeded to the clause "To raise armies."
M^r Ghorum moved to add "and support" after "raise." Agreed to nem. con. and then the clause was agreed to nem. con. as amended.
M^r Gerry took notice that there was no check here ag^{st} standing armies in time of peace. The existing Cong^s is so constructed that it cannot of itself maintain an army. This w^d not be the case under the new system. The people were jealous on this head, and great opposition to the plan would spring from such an omission. He suspected that preparations of force were now making ag^{st} it. (he seemed to allude to the activity of the Gov^r of N. York at this crisis in disciplining the militia of that State.) He thought an army dangerous in time of peace & could never consent to a power to keep up an indefinite number. He proposed that there shall not be kept up in time of peace more than ---- thousand troops. His idea was that the blank should be filled with two or three thousand.
Instead of "to build and equip fleets"--"to provide and maintain a navy" agreed to nem. con. as a more convenient definition of the power.
"To make rules for the Government and regulation of the land & naval forces," added from the existing Articles of Confederation.
M^r L. Martin and M^r Gerry now regularly moved "provided that in time of peace the army shall not consist of more than ---- thousand men."
Gen^l Pinkney asked whether no troops were ever to be raised untill an attack should be made on us?
M^r Gerry. If there be no restriction, a few States may establish a military Gov^t.
M^r Williamson, reminded him of M^r Mason's motion for limiting the appropriation of revenue as the best guard in this case.
M^r Langdon saw no room for M^r Gerry's distrust of the Representatives of the people.
M^r Dayton. Preparations for war are generally made in peace; and a standing force of some sort may, for ought we know, become unavoidable. He should object to no restrictions consistent with these ideas.
The motion of M^r Martin and M^r Gerry was disagreed to nem. con.
M^r Mason moved as an additional power "to make laws for the regulation and discipline of the militia of the several States, reserving to the States the appointment of the officers." He considered uniformity as necessary in the regulation of the Militia throughout the Union.
Gen^l Pinkney mentioned a case during the war in which a dissimilarity in the militia of different States had produced the most serious mischiefs. Uniformity was essential. The States would never keep up a proper discipline of their militia.
M^r Elseworth was for going as far in submitting the militia to the Gen^l Government as might be necessary, but thought the motion of M^r Mason went too far. He moved that the militia should have the same arms & exercise and be under rules established by the Gen^l Gov^t when in actual service of the U. States and when States neglect to provide regulations for militia, it sh^d be regulated & established by the Legislature of U. S. The whole authority over the militia ought by no means to be taken away from the States whose consequence would pine away to nothing after such a sacrifice of power. He thought the Gen^l Authority could not sufficiently pervade the Union for such a purpose, nor could it accommodate itself to the local genius of the people. It must be vain to ask the States to give the Militia out of their hands.
M^r Sherman 2^{ds} the motion.
M^r Dickenson. We are come now to a most important matter, that of the sword. His opinion was that the States never would nor ought to give up all authority over the Militia. He proposed to restrain the general power to one fourth part at a time, which by rotation would discipline the whole Militia.
M^r Butler urged the necessity of submitting the whole Militia to the general Authority, which had the care of the general defence.
M^r Mason. had suggested the idea of a select militia. He was led to think that would be in fact as much as the Gen^l Gov^t could advantageously be charged with. He was afraid of creating insuperable objections to the plan. He withdrew his original motion, and moved a power "to make laws for regulating and disciplining the militia, not exceeding one tenth part in any one year, and reserving the appointment of officers to the States."
Gen^l Pinkney, renewed M^r Mason's original motion. For a part to be under the Gen^l and a part under the State Gov^{ts} w^d be an incurable evil. he saw no room for such distrust of the Gen^l Gov^t.
M^r Langdon 2^{ds} General Pinkney's renewal. He saw no more reason to be afraid of the Gen^l Gov^t than of the State Gov^{ts}. He was more apprehensive of the confusion of the different authorities on this subject, than of either.
M^r Madison thought the regulation of the Militia naturally appertaining to the authority charged with the public defence. It did not seem in its nature to be divisible between two distinct authorities. If the States would trust the Gen^l Gov^t with a power over the public treasure, they would from the same consideration of necessity grant it the direction of the public force. Those who had a full view of the public situation w^d from a sense of the danger, guard ag^{st} it: the States would not be separately impressed with the general situation, nor have the due confidence in the concurrent exertions of each other.
M^r Elseworth, considered the idea of a select militia as impracticable; & if it were not it would be followed by a ruinous declension of the great body of the Militia. The States would never submit to the same militia laws. Three or four shillings as a penalty will enforce better obedience in New England, than forty lashes in some other places.
M^r Pinkney thought the power such an one as could not be abused, and that the States would see the necessity of surrendering it. He had however but a scanty faith in Militia. There must be also a real military force. This alone can effectually answer the purpose. The United States had been making an experiment without it, and we see the consequence in their rapid approaches toward anarchy.[34]
[34] This had reference to the disorders particularly that had occurred in Massach^{ts} which had called for the interposition of the federal troops.--Madison's Note.
M^r Sherman, took notice that the States might want their militia for defence ag^{st} invasions and insurrections, and for enforcing obedience to their laws. They will not give up this point. In giving up that of taxation, they retain a concurrent power of raising money for their own use.
M^r Gerry thought this the last point remaining to be surrendered. If it be agreed to by the Convention, the plan will have as black a mark as was set on Cain. He had no such confidence in the Gen^l Gov^t as some gentlemen possessed, and believed it would be found that the States have not.
Col. Mason, thought there was great weight in the remarks of M^r Sherman, and moved an exception to his motion "of such part of the militia as might be required by the States for their own use."
M^r Read doubted the propriety of leaving the appointment of the Militia officers in the States. In some States they are elected by the Legislatures; in others by the people themselves. He thought at least an appointment by the State Executives ought to be insisted on.
On committing to the grand Committee last appointed, the latter motion of Col. Mason, & the original one revived by Ge^l Pinkney
N. H. ay. Mas. ay. C^t no. N. J. no. P^a ay. Del. ay. M^d div^d. V^a ay. N. C. ay. S. C. ay. Geo. ay.
Adjourned.
MONDAY AUGUST 20. IN CONVENTION
M^r Pinkney submitted to the House, in order to be referred to the Committee of detail, the following propositions--"Each House shall be the judge of its own privileges, and shall have authority to punish by imprisonment every person violating the same, or who, in the place where the Legislature may be sitting and during the time of its Session, shall threaten any of its members for any thing said or done in the House; or who shall assault any of them therefor--or who shall assault or arrest any witness or other person ordered to attend either of the Houses in his way going or returning; or who shall rescue any person arrested by their order."
"Each branch of the Legislature, as well as the supreme Executive shall have authority to require the opinions of the supreme Judicial Court upon important questions of law, and upon solemn occasions."
"The privileges and benefit of the Writ of Habeas corpus shall be enjoyed in this Government in the most expeditious and ample manner; and shall not be suspended by the Legislature except upon the most urgent and pressing occasions, and for a limited time not exceeding ---- months."
"The liberty of the Press, shall be inviolably preserved."
"No troops shall be kept up in time of peace, but by consent of the Legislature."
"The military shall always be subordinate to the Civil power, and no grants of money shall be made by the Legislature for supporting military Land forces, for more than one year at a time."
"No soldier shall be quartered in any house in time of peace without consent of the owner."
"No person holding the office of President of the U. S. a Judge of their supreme Court, Secretary for the department of Foreign Affairs, of Finance, of Marine, of War, or of ----, shall be capable of holding at the same time any other office of Trust or emolument under the U. S. or an individual State."
"No religious test or qualification shall ever be annexed to any oath of office under the authority of the U. S."
"The U. S. shall be forever considered as one Body corporate and politic in law, and entitled to all the rights privileges and immunities, which to Bodies corporate ought to or do appertain."
"The Legislature of the U. S. shall have the power of making the Great Seal which shall be kept by the President of the U. S. or in his absence by the President of the Senate, to be used by them as the occasion may require.--It shall be called the Great Seal of the U. S. and shall be affixed to all laws."
"All commissions and writs shall run in the name of the U.S."
"The Jurisdiction of the Supreme Court shall be extended to all controversies between the U. S. and an individual State, or the U. S. and the Citizens of an individual State."
These propositions were referred to the Committee of detail without debate or consideration of them by the House.
M^r Gov^r Morris 2^{ded} by M^r Pinkney, submitted the following propositions which were in like manner referred to the Committee of Detail.
"To assist the President in conducting the Public affairs there shall be a Council of State composed of the following officers--1. The Chief Justice of the Supreme Court, who shall from time to time recommend such alterations of and additions to the laws of the U. S. as may in his opinion be necessary to the due administration of Justice, and such as may promote useful learning and inculcate sound morality throughout the Union: He shall be President of the Council in the absence of the President.
2. The Secretary of Domestic affairs who shall be appointed by the President and hold his office during pleasure. It shall be his duty to attend to matters of general police, the State of Agriculture and manufactures, the opening of roads and navigations, and the facilitating communications thro' the U. States; and he shall from time to time recommend such measures and establishments as may tend to promote those objects.
3. The Secretary of Commerce and Finance who shall also be appointed by the President during pleasure. It shall be his duty to superintend all matters relating to the public finances, to prepare & report plans of revenue and for the regulation of expenditures, and also to recommend such things as may in his Judgment promote the commercial interests of the U. S.
4. The Secretary of foreign affairs who shall also be appointed by the President during pleasure. It shall be his duty to correspond with all foreign Ministers, prepare plans of Treaties, & consider such as may be transmitted from abroad, and generally to attend to the interests of the U. S. in their connections with foreign powers.
5. The Secretary of War who shall also be appointed by the President during pleasure. It shall be his duty to superintend every thing relating to the war Department, such as the raising and equipping of troops, the care of military stores, public fortifications, arsenals & the like--also in time of war to prepare & recommend plans of offence and Defence.
6. The Secretary of the Marine who shall also be appointed during pleasure--It shall be his duty to superintend every thing relating to the Marine Department, the public ships, Dock Yards, naval Stores & arsenals--also in the time of war to prepare and recommend plans of offence and defence.
The President shall also appoint a Secretary of State to hold his office during pleasure; who shall be Secretary to the Council of State, and also public Secretary to the President. It shall be his duty to prepare all Public dispatches from the President which he shall countersign.
The President may from time to time submit any matter to the discussion of the Council of State, and he may require the written opinions of any one or more of the members: But he shall in all cases exercise his own judgment, and either Conform to such opinions or not as he may think proper; and every officer above mentioned shall be responsible for his opinion on the affairs relating to his particular Department.
Each of the officers above mentioned shall be liable to impeachment & removal from office for neglect of duty malversation or corruption."
M^r Gerry moved "that the Committee be instructed to report proper qualifications for the President, and a mode of trying the Supreme Judges in cases of impeachment."
The clause "to call forth the aid of the Militia &c. was postponed till report should be made as to the power over the Militia referred yesterday to the Grand Committee of eleven.
M^r Mason moved to enable Congress "to enact sumptuary laws." No Government can be maintained unless the manners be made consonant to it. Such a discretionary power may do good and can do no harm. A proper regulation of excises & of trade may do a great deal but it is best to have an express provision. It was objected to sumptuary laws that they were contrary to nature. This was a vulgar error. The love of distinction it is true is natural; but the object of sumptuary laws is not to extinguish this principle but to give it a proper direction.
M^r Elseworth. The best remedy is to enforce taxes & debts. As far as the regulation of eating & drinking can be reasonable, it is provided for in the power of taxation.
M^r Gov^r Morris argued that sumptuary laws tended to create a landed nobility, by fixing in the great-landholders and their posterity their present possessions.
M^r Gerry, the law of necessity is the best sumptuary law.
On Motion of M^r Mason "as to sumptuary laws"
N. H. no. Mas. no. C^t no. N. J. no. P^a no. Del. ay. M^d ay. V^a no. N. C. no. S. C. no. Geo. ay.
"And to make all laws necessary and proper for carrying into execution the foregoing powers, and all other powers vested, by this Constitution, in the Government of the U. S. or any department or officer thereof."
M^r Madison and M^r Pinkney moved to insert between "laws" and "necessary" "and establish all offices," it appearing to them liable to cavil that the latter was not included in the former.
M^r Gov^r Morris, M^r Wilson, M^r Rutlidge and M^r Elseworth urged that the amendment could not be necessary.
On the motion for inserting "and establish all offices"
N. H. no. Mass. ay. C^t no. N. J. no. P^a no. Del. no. M^d ay. V^a no. N. C. no. S. C. no. Geo. no.
The clause as reported was then agreed to nem. con.
Art: VII Sect. 2. concerning Treason which see.
M^r Madison, thought the definition too narrow. It did not appear to go as far as the Stat. of Edw^d III. He did not see why more latitude might not be left to the Legislature. It w^d be as safe as in the hands of State legislatures. And it was inconvenient to bar a discretion which experience might enlighten, and which might be applied to good purposes as well as be abused.
M^r Mason was for pursuing the Stat: of Edw^d III.
M^r Gov^r Morris was for giving to the Union an exclusive right to declare what sh^d be treason. In case of a contest between the U. S. and a particular State, the people of the latter must under the disjunctive terms of the clause, be traitors to one or other authority.
M^r Randolph thought the clause defective in adopting the words, "in adhering" only. The British Stat: adds, "giving them aid and comfort" which had a more extensive meaning.
M^r Elseworth considered the definition as the same in fact with that of the Statute.
M^r Gov^r Morris "adhering" does not go so far as "giving aid and comfort" or the latter words may be restrictive of "adhering," in either case the Statute is not pursued.
M^r Wilson held "giving aid and comfort" to be explanatory, not operative words; and that it was better to omit them.
M^r Dickenson, thought the addition of "giving aid and comfort" unnecessary & improper; being too vague and extending too far. He wished to know what was meant by the "testimony of two witnesses" whether they were to be witnesses to the same overt act or to different overt acts. He thought also that proof of an overt act ought to be expressed as essential in the case.
Doc^r Johnson considered "giving aid & comfort" as explanatory of "adhering" & that something should be inserted in the definition concerning overt acts. He contended that Treason could not be both ag^{st} the U. States--and individual States; being an offence ag^{st} the Sovereignty which can be but one in the same community.
M^r Madison remarked that "and" before "in adhering" should be changed into "or" otherwise both offences viz. of "levying war," & of adhering to the Enemy might be necessary to constitute Treason. He added that, as the definition here was of treason against _the U. S._ it would seem that the individual States w^d be left in possession of a concurrent power so far as to define & punish treason particularly ag^{st} themselves; which might involve double punishm^t.
It was moved that the whole clause be recommitted which was lost, the votes being equally divided.
N. H. no. Mas. no. C^t no. N. J. ay. P^a ay. Del. no. M^d ay. V^a ay. N. C. div^d. S. C. no. Geo. ay.
M^r Wilson & Doc^r Johnson moved, that "or any of them," after "United States" be struck out in order to remove the embarrassment; which was agreed to nem. con.
M^r Madison. This has not removed the embarrassment. The same Act might be treason ag^{st} the United States as here defined--and ag^{st} a particular State according to its laws.
M^r Elseworth. There can be no danger to the gen^l authority from this; as the laws of the U. States are to be paramount.
Doc^r Johnson was still of opinion there could be no Treason ag^{st} a particular State. It could not even at present, as the Confederation now stands, the Sovereignty being in the Union; much less can it be under the proposed system.
Col. Mason. The United States will have a qualified sovereignty only. The individual States will retain a part of the Sovereignty. An Act may be treason ag^{st} a particular State which is not so ag^{st} the U. States. He cited the Rebellion of Bacon in Virginia as an illustration of the doctrine.
Doc^r Johnson: That case would amount to Treason ag^{st} the Sovereign, the Supreme Sovereign, the United States.
M^r King observed that the controversy relating to Treason might be of less magnitude than was supposed; as the Legislature might punish capitally under other names than Treason.
M^r Gov^r Morris and M^r Randolph wished to substitute the words of the British Statute and moved to postpone Sect 2. art VII in order to consider the following substitute--"Whereas it is essential to the preservation of liberty to define precisely and exclusively what shall constitute the crime of Treason, it is therefore ordained, declared & established, that if a man do levy war ag^{st} the U. S. within their territories, or be adherent to the enemies of the U. S. within the said territories, giving them aid and comfort within their territories or elsewhere, and thereof be provably attainted of open deed by the people of his condition, he shall be adjudged guilty of Treason."
On this question
N. H.--Mas. no. C^t no. N. J. ay. P^a no. Del. no. M^d no. V^a ay. N. C. no. S. C. no. Geo. no.
It was then moved to strike out "ag^{st} United States" after "treason" so as to define treason generally, and on this question
Mass. ay. C^t ay. N. J. ay. P^a ay. Del. ay. M^d ay. V^a no. N. C. no. S. C. ay. Geo. ay.
It was then moved to insert after "two witnesses" the words "to the same overt act."
Doc^r Franklin wished this amendment to take place. prosecutions for treason were generally virulent; and perjury too easily made use of against innocence.
M^r Wilson. much may be said on both sides. Treason may sometimes be practised in such a manner, as to render proof extremely difficult--as in a traitorous correspondence with an Enemy.
On the question--as to some overt act
N. H. ay. Mass. ay. C^t ay. N. J. no. P^a ay. Del. ay. M^d ay. V^a no. N. C. no. S. C. ay. Geo. ay.
M^r King moved to insert before the word "power" the word "sole," giving the U. States the exclusive right to declare the punishment of Treason.
M^r Broom 2^{ds} the motion.
M^r Wilson in cases of a general nature, treason can only be ag^{st} the U-- States, and in such they sh^d have the sole right to declare the punishment--yet in many cases it may be otherwise. The subject was however intricate and he distrusted his present judgment on it.
M^r King this amendment results from the vote defining treason generally by striking out ag^{st} the U. States, which excludes any treason ag^{st} particular States. These may however punish offences as high misdemeanors.
On inserting the word "sole." It passed in the negative
N. H. ay. Mas. ay. C^t no. N. J. no. P^a ay. Del. ay. M^d no. V^a no. N. C. no. S. C. ay. Geo. no.--
M^r Wilson. the clause is ambiguous now. "Sole" ought either to have been inserted, or "against the U. S." to be re-instated.
M^r King no line can be drawn between levying war and adhering to enemy ag^{st} the U. States and ag^{st} an individual State--Treason ag^{st} the latter must be so ag^{st} the former.
M^r Sherman, resistance ag^{st} the laws of the U. States as distinguished from resistance ag^{st} the laws of a particular State, forms the line.
M^r Elseworth, the U. S. are sovereign on one side of the line dividing the jurisdictions--the States on the other--each ought to have power to defend their respective Sovereignties.
M^r Dickenson, war or insurrection ag^{st} a member of the Union must be so ag^{st} the whole body; but the constitution should be made clear on this point.
The clause was reconsidered nem. con--& then M^r Wilson & M^r Elseworth moved to reinstate "ag^{st} the U. S." after "Treason--" on which question
N. H. no. Mass. no. C^t ay. N. J. ay. P^a no. Del. no. M^d ay. V^a ay. N. C. ay. S. C. no. Geo. ay.
M^r Madison was not satisfied with the footing on which the clause now stood. As Treason ag^{st} the U. States involves treason ag^{st} particular States, and vice versa, the same act may be twice tried & punished by the different authorities. M^r Gov^r Morris viewed the matter in the same light--
It was moved & 2^{ded} to amend the sentence to read--"Treason ag^{st} the U. S. shall consist only in levying war against them, or in adhering to their enemies" which was agreed to.
Col. Mason moved to insert the words "giving them aid and comfort," as restrictive of "adhering to their Enemies &c." the latter he thought would be otherwise too indefinite--This motion was agreed to: Con^t: Del: & Georgia only being in the Negative.
M^r L. Martin moved to insert after conviction &c.--"or on confession in open court"--and on the question (the negative States thinking the words superfluous) it was agreed to
N. H. ay. Mass. no. C^t ay. N. J. ay. P. ay. Del. ay. M^d ay. V^a ay. N. C. div^d. S. C. no. Geo. no.
Art: VII. Sect. 2, as amended was then agreed to nem. con.
Sect. 3. taken up. "white & other" struck out nem. con. as superfluous.
M^r Elseworth moved to require the first census to be taken within "three" instead of "six" years from the first meeting of the Legislature--and on question
N. H. ay. Mass. ay. C^t ay. N. J. ay. P^a ay. Del. ay. M^d ay. V^a ay. N. C. ay. S. C. no. Geo. no.
M^r King asked what was the precise meaning of _direct_ taxation? No one answ^d.
M^r Gerry moved to add to the 3^d Sect. Art: VII. the following clause "That from the first meeting of the Legislature of the U. S. until a Census shall be taken all monies for supplying the public Treasury by direct taxation shall be raised from the several States according to the number of their Representatives respectively in the first branch".
M^r Langdon. This would bear unreasonably hard on N. H. and he must be ag^{st} it.
M^r Carrol opposed it. The number of Rep^s did not admit of a proportion exact enough for a rule of taxation.
Before any question the House
Adjourned.
TUESDAY AUGUST 21. IN CONVENTION
Governour Livingston[35] from the Committee of Eleven to whom was referred the propositions respecting the debts of the several States and also the Militia entered on the 18^{th} inst: delivered the following report:
[35] "Governor Livingston is confessedly a Man of the first rate talents, but he appears to me rather to indulge a sportiveness of wit, than a strength of thinking. He is however equal to anything, from the extensiveness of his education and genius. His writings teem with satyr and a neatness of style. But he is no Orator, and seems little acquainted with the guiles of policy. He is about 60 years old, and remarkably healthy."--Pierce's Notes, _Am. Hist. Rev._, iii., 327.
"The Legislature of the U. S. shall have power to fulfil the engagements which have been entered into by Congress, and to discharge as well the debts of the U. S. as the debts incurred by the several States during the late war, for the common defence and general welfare."
"To make laws for organizing arming and disciplining the militia, and for governing such part of them as may be employed in the service of the U. S. reserving to the States respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by the U. States."
M^r Gerry considered giving the power only, without adopting the obligation, as destroying the security now enjoyed by the public creditors of the U-- States. He enlarged on the merit of this class of citizens, and the solemn faith which had been pledged under the existing Confederation. If their situation should be changed as here proposed great opposition would be excited ag^{st} the plan. He urged also that as the States had made different degrees of exertion to sink their respective debts, those who had done most would be alarmed, if they were now to be saddled with a share of the debts of States which had done least.
M^r Sherman. It means neither more nor less than the confederation as it relates to this subject.
M^r Elseworth moved that the Report delivered in by Gov^r Livingston should lie on the table.--Agreed to nem. con.
Art: VII. Sect. 3 resumed.--M^r Dickinson moved to postpone this in order to reconsider Art: IV. Sect. 4. and to _limit_ the number of representatives to be allowed to the large States. Unless this were done the small States would be reduced to entire insignificancy, and encouragement given to the importation of slaves.
M^r Sherman would agree to such a reconsideration, but did not see the necessity of postponing the section before the House.--M^r Dickenson withdrew his motion.
Art: VII. Sect 3. then agreed to 10 ays, Delaware alone being no.
M^r Sherman moved to add to Sect 3. the following clause "And all accounts of supplies furnished, services performed, and monies advanced by the several States to the U. States, or by the U. S. to the several States shall be adjusted by the same rule."
M^r Govern^r Morris 2^{ds} the motion.
M^r Ghorum, thought it wrong to insert this in the Constitution. The Legislature will no doubt do what is right. The present Congress have such a power and are now exercising it.
M^r Sherman unless some rule be expressly given none will exist under the new system.
M^r Elseworth. Though The contracts of Congress will be binding, there will be no rule for executing them on the States; and one ought to be provided.
M^r Sherman withdrew his motion to make way for one of M^r Williamson to add to Sect. 3. "By this rule the several quotas of the States shall be determined in settling the expences of the late war."
M^r Carrol brought into view the difficulty that might arise on this subject from the establishment of the Constitution as intended without the _unanimous_ consent of the States.
M^r Williamson's motion was postponed nem. con.
Art: VI Sect. 12. which had been postponed of Aug: 15. was now called for by Col. Mason, who wished to know how the proposed amendment as to money bills would be decided, before he agreed to any further points.
M^r Gerry's motion of yesterday that previous to a census, direct taxation be proportioned on the States according to the number of Representatives, was taken up. He observed that the principal acts of Government would probably take place within that period, and it was but reasonable that the States should pay in proportion to their share in them.
M^r Elseworth thought such a rule unjust. There was a great difference between the number of Represent^s and the number of inhabitants as a rule in this case. Even if the former were proportioned as nearly as possible to the latter, it would be a very inaccurate rule. A State might have one Representative only that had inhabitants enough for 1-1/2 or more, if fractions could be applied, &c.--. He proposed to amend the motion by adding the words, "subject to a final liquidation by the foregoing rule when a census shall have been taken."
M^r Madison. The last appointment of Cong^s on which the number of Representatives was founded, was conjectural and meant only as a temporary rule till a Census should be established.
M^r Read. The requisitions of Cong^s had been accommodated to the impoverishment produced by the war; and to other local and temporary circumstances.
M^r Williamson opposed M^r Gerry's motion.
M^r Langdon was not here when N. H. was allowed three members. If it was more than her share; he did not wish for them.
M^r Butler contended warmly for M^r Gerry's motion as founded in reason and equity.
M^r Elseworth's proviso to M^r Gerry's motion was agreed to nem. con.
M^r King thought the power of taxation given to the Legislature rendered the motion of M^r Gerry altogether unnecessary.
On M^r Gerry's motion as amended
N. H. no. Mass. ay. C^t no. N. J. no. P^a no. Del. no. M^d no. V^a no. N. C. div^d. S. C. ay. Geo. no.
On a question, Shall Art: VI Sect. 12. with the amendment to it proposed & entered on the 15 instant, as called for by Col. Mason be now taken up? It passed in the negative.
N. H. ay. Mass. no. C^t ay. N. J. no. P^a no. Del. no. M^d ay. V^a ay. N. C. ay. S. C. no. Geo. no.
M^r L. Martin. The power of taxation is most likely to be criticised by the public. Direct taxation should not be used but in cases of absolute necessity; and then the States will be the best Judges of the mode. He therefore moved the following addition to Sect: 3: Art VII "And whenever the Legislature of the U. S. shall find it necessary that revenue should be raised by direct taxation, having apportioned the same, according to the above rule on the several States, requisitions shall be made of the respective States to pay into the Continental Treasury their respective quotas within a time in the said requisitions specified; and in case of any of the States failing to comply with such requisitions, then and then only to devise and pass acts directing the mode, and authorizing the collection of the same."
M^r M^cHenry 2^{ded} the motion--there was no debate, and on the question
N. H. no. C^t no. N. J. ay. Pen^a no. Del. no. M^d div^d. (Jenifer & Carol no) V^a no. N. C. no. S. C. no. Geo. no.
Art. VII. Sect. 4.--M^r Langdon, by this section the States are left at liberty to tax exports. N. H. therefore with other non-exporting States, will be subject to be taxed by the States exporting its produce. This could not be admitted. It seems to be feared that the Northern States will oppress the trade of the South^n. This may be guarded ag^{st} by requiring the concurrence of 2/3 or 3/4 of the legislature in such cases.
M^r Elseworth. It is best as it stands. The power of regulating trade between the States will protect them ag^{st} each other. Should this not be the case, the attempts of one to tax the produce of another passing through its hands, will force a direct exportation and defeat themselves. There are solid reasons ag^{st} Cong^s taxing exports. 1. it will discourage industry, as taxes on imports discourage luxury. 2. The produce of different States is such as to prevent uniformity in such taxes. There are indeed but a few articles that could be taxed at all; as Tob^o rice & indigo, and a tax on these alone would be partial & unjust. 3. The taxing of exports would engender incurable jealousies.
M^r Williamson. Tho' N. C. has been taxed by Virg^a by a duty on 12000 Hhs of her Tob^o exported thro' Virg^a yet he would never agree to this power. Should it take place, it would destroy the last hope of an adoption of the plan.
M^r Gov^r Morris. These local considerations ought not to impede the general interest. There is great weight in the argument, that the exporting States will tax the produce of their uncommercial neighbours. The power of regulating the trade between P^a & N. Jersey will never prevent the former from taxing the latter. Nor will such a tax force a direct exportation from N. Jersey. The advantages possessed by a large trading City, outweigh the disadvantage of a moderate duty; and will retain the trade in that channel. If no tax can be laid on exports, an embargo cannot be laid though in time of war such a measure may be of critical importance. Tobacco, lumber and live-stock are three objects belonging to different States, of which great advantage might be made by a power to tax exports. To these may be added Genseng and Masts for Ships by which a tax might be thrown on other nations. The idea of supplying the West Indies with lumber from Nova Scotia is one of the many follies of lord Sheffield's pamphlets. The State of the Country also will change, and render duties on exports, as skins, beaver & other peculiar raw materials, politic in the view of encouraging American manufactures.
M^r Butler was strenuously opposed to a power over exports, as unjust and alarming to the staple States.
M^r Langdon suggested a prohibition on the States from taxing the produce of other States exported from their harbours.
M^r Dickenson. The power of taxing exports may be inconvenient at present; but it must be of dangerous consequence to prohibit it with respect to all articles and for ever. He thought it would be better to except particular articles from the power.
M^r Sherman. It is best to prohibit the National legislature in all cases. The States will never give up all power over trade. An enumeration of particular articles would be difficult invidious and improper.
M^r Madison. As we ought to be governed by national and permanent views, it is a sufficient argument for giving y^e power over exports that a tax, tho' it may not be expedient at present, may be so hereafter. A proper regulation of exports may & probably will be necessary hereafter, and for the same purposes as the regulation of imports; viz, for revenue--domestic manufactures--and procuring equitable regulations from other nations. An Embargo may be of absolute necessity, and can alone be effectuated by the Gen^l authority. The regulation of trade between State and State cannot effect more than indirectly to hinder a State from taxing its own exports; by authorizing its Citizens to carry their commodities freely into a neighbouring State which might decline taxing exports in order to draw into its channel the trade of its neighbours. As to the fear of disproportionate burthens on the more exporting States, it might be remarked that it was agreed on all hands that the revenue w^d principally be drawn from trade, and as only a given revenue would be needed, it was not material whether all should be drawn wholly from imports--or half from those, and half from exports. The imports and exports must be pretty nearly equal in every State--and relatively the same among the different States.
M^r Elseworth did not conceive an embargo by the Congress interdicted by this section.
M^r M^cHenry conceived that power to be included in the power of war.
M^r Wilson. Pennsylvania exports the produce of Mary^d N. Jersey, Delaware & will by & by when the River Delaware is opened, export for N. York. In favoring the general power over exports therefore, he opposed the particular interest of his State. He remarked that the power had been attacked by reasoning which could only have held good in case the Gen^l Gov^t had been _compelled_, instead of _authorized_, to lay duties on exports. To deny this power is to take from the Common Gov^t half the regulation of trade. It was his opinion that a power over exports might be more effectual than that over imports in obtaining beneficial treaties of commerce.
M^r Gerry was strenuously opposed to the power over exports. It might be made use of to compel the States to comply with the will of the Gen^l Government, and to grant it any new powers which might be demanded. We have given it more power already than we know how will be exercised. It will enable the Gen^l Gov^t to oppress the States as much as Ireland is oppressed by Great Britain.
M^r Fitzimmons[36] would be ag^{st} a tax on exports to be laid immediately; but was for giving a power of laying the tax when a proper time may call for it. This would certainly be the case when America should become a manufacturing Country. He illustrated his argument by the duties in G. Britain on wool &c.
[36] "Mr. Fitzsimons is a Merchant of considerable talents, and speaks very well I am told, in the Legislature of Pennsylvania. He is about 40 years old."--Pierce's Notes, _Am. Hist. Rev._, iii., 328.
Col. Mason. If he were for reducing the States to mere corporations as seemed to be the tendency of some arguments, he should be for subjecting their exports as well as imports to a power of general taxation. He went on a principle often advanced & in which he concurred, that "a majority when interested will oppress the minority." This maxim had been verified by our own Legislature (of Virginia). If we compare the States in this point of view the 8 Northern States have an interest different from the five South^n States; and have in one branch of the legislature 36 votes ag^{st} 29. and in the other in the proportion of 8 ag^{st} 5. The Southern States had therefore ground for their suspicions. The case of Exports was not the same with that of imports. The latter were the same throughout the States; the former very different. As to Tobacco other nations do raise it, and are capable of raising it as well as Virg^a &c. The impolicy of taxing that article had been demonstrated by the experiment of Virginia.
M^r Clymer[37] remarked that every State might reason with regard to its particular productions, in the same manner as the Southern States. The middle States may apprehend an oppression of their wheat flour, provisions &c. and with more reason, as these articles were exposed to a competition in foreign markets not incident to Tob^o rice &c. They may apprehend also combinations ag^{st} them between the Eastern & Southern States as much as the latter can apprehend them between the Eastern & middle. He moved as a qualification of the power of taxing Exports that it should be restrained to regulations of trade by inserting after the word "duty" sect 4 art VII the words, "for the purpose of revenue."
[37] "Mr. Clymer is a Lawyer of some abilities;--he is a respectable Man and much esteemed. Mr. Clymer is about 40 years old."--Pierce's Notes, _Am. Hist. Rev._, iii., 328.
On question on M^r Clymer's motion
N. H. no. Mass. no. C^t no. N. J. ay. P^a ay. Del. ay. M^d no. V^a no. N. C. no. S. C. no. Geo. no.
M^r Madison. In order to require 2/3 of each House to tax exports, as a lesser evil than a total prohibition moved to insert the words "unless by consent of two thirds of the Legislature."
M^r Wilson 2^{ds} and on this question, it passed in the Negative.
N. H. ay. Mass. ay. C^t no. N. J. ay. P^a ay. Del. ay. M^d no. V^a no (Col. Mason, M^r Randolph M^r Blair no. Gen^l Washington & J. M. ay.) N. C. no. S. C. no. Geo. no.
Question on Sect: 4. Art VII. as far as to "no tax sh^l be laid on exports"--it passed in the affirmative.
N. H. no. Mass. ay. C^t ay. N. J. no. P^a no. Del. no. M^d ay. V^a ay. (Gen^l W. & J. M. no) N. C. ay. S. C. ay. Geo. ay.
M^r L. Martin, proposed to vary the Sect: 4. art VII so as to allow a prohibition or tax on the importation of slaves. 1. as five slaves are to be counted as 3 free men in the apportionment of Representatives; such a clause would leave an encouragement to this trafic. 2. slaves weakened one part of the Union which the other parts were bound to protect; the privilege of importing them was therefore unreasonable. 3. it was inconsistent with the principles of the revolution and dishonorable to the American character to have such a feature in the Constitution.
M^r Rutlidge did not see how the importation of slaves could be encouraged by this section. He was not apprehensive of insurrections and would readily exempt the other States from the obligation to protect the Southern against them. Religion & humanity had nothing to do with this question. Interest alone is the governing principle with nations. The true question at present is whether the South^n States shall or shall not be parties to the Union. If the Northern States consult their interest, they will not oppose the increase of slaves which will increase the commodities of which they will become the carriers.
M^r Elseworth was for leaving the clause as it stands, let every State import what it pleases. The morality or wisdom of slavery are considerations belonging to the States themselves. What enriches a part enriches the whole, and the States are the best judges of their particular interest. The old confederation had not meddled with this point, and he did not see any greater necessity for bringing it within the policy of the new one.
M^r Pinkney. South Carolina can never receive the plan if it prohibits the slave trade. In every proposed extension of the powers of Congress, that State has expressly & watchfully excepted that of meddling with the importation of negroes. If the States be all left at liberty on this subject, S. Carolina may perhaps by degrees do of herself what is wished, as Virginia & Maryland already have done.
Adjourned.
WEDNESDAY AUGUST 22. IN CONVENTION.
Art VII sect 4. resumed. M^r Sherman was for leaving the clause as it stands. He disapproved of the slave trade; yet as the States were now possessed of the right to import slaves, as the public good did not require it to be taken from them, & as it was expedient to have as few objections as possible to the proposed scheme of Government, he thought it best to leave the matter as we find it. He observed that the abolition of Slavery seemed to be going on in the U. S. & that the good sense of the several States would probably by degrees compleat it. He urged on the Convention the necessity of despatching its business.
Col. Mason. This infernal traffic originated in the avarice of British Merchants. The British Gov^t constantly checked the attempts of Virginia to put a stop to it. The present question concerns not the importing States alone but the whole Union. The evil of having slaves was experienced during the late war. Had slaves been treated as they might have been by the Enemy, they would have proved dangerous instruments in their hands. But their folly dealt by the slaves, as it did by the Tories. He mentioned the dangerous insurrections of the slaves in Greece and Sicily; and the instructions given by Cromwell to the Commissioners sent to Virginia, to arm the servants & slaves, in case other means of obtaining its submission should fail. Maryland & Virginia he said had already prohibited the importation of slaves expressly. N. Carolina had done the same in substance. All this would be in vain, if S. Carolina & Georgia be at liberty to import. The Western people are already calling out for slaves for their new lands, and will fill that Country with slaves if they can be got thro' S. Carolina & Georgia. Slavery discourages arts & manufactures. The poor despise labor when performed by slaves. They prevent the immigration of Whites, who really enrich & strengthen a Country. They produce the most pernicious effect on manners. Every master of slaves is born a petty tyrant. They bring the judgment of heaven on a Country. As nations can not be rewarded or punished in the next world they must be in this. By an inevitable chain of causes & effects providence punishes national sins, by national calamities. He lamented that some of our Eastern brethren had from a lust of gain embarked in this nefarious traffic. As to the States being in possession of the Right to import, this was the case with many other rights, now to be properly given up. He held it essential in every point of view that the Gen^l Gov^t should have power to prevent the increase of slavery.
M^r Elseworth. As he had never owned a slave could not judge of the effects of slavery on character. He said however that if it was to be considered in a moral light we ought to go farther and free those already in the Country.--As slaves also multiply so fast in Virginia & Maryland that it is cheaper to raise than import them, whilst in the sickly rice swamps foreign supplies are necessary, if we go no farther than is urged, we shall be unjust towards S. Carolina & Georgia. Let us not intermeddle. As population increases, poor laborers will be so plenty as to render slaves useless. Slavery in time will not be a speck in our Country. Provision is already made in Connecticut for abolishing it. And the abolition has already taken place in Massachusetts. As to the danger of insurrections from foreign influence, that will become a motive to kind treatment of the slaves.
M^r Pinkney. If slavery be wrong, it is justified by the example of all the world. He cited the case of Greece Rome & other antient States; the sanction given by France England, Holland & other modern States. In all ages one half of mankind have been slaves. If the S. States were let alone they will probably of themselves stop importations. He w^d himself as a citizen of S. Carolina vote for it. An attempt to take away the right as proposed will produce serious objections to the Constitution which he wished to see adopted.
General Pinkney declared it to be his firm opinion that if himself & all his colleagues were to sign the Constitution & use their personal influence, it would be of no avail towards obtaining the assent of their Constituents. S. Carolina & Georgia cannot do without slaves. As to Virginia she will gain by stopping the importations. Her slaves will rise in value, & she has more than she wants. It would be unequal to require S. C. & Georgia to confederate on such unequal terms. He said the Royal assent before the Revolution had never been refused to S. Carolina as to Virginia. He contended that the importation of slaves would be for the interest of the whole Union. The more slaves, the more produce to employ the carrying trade; The more consumption also, and the more of this, the more revenue for the common treasury. He admitted it to be reasonable that slaves should be dutied like other imports, but should consider a rejection of the clause as an exclusion of S. Carol^a from the Union.
M^r Baldwin had conceived national objects alone to be before the Convention, not such as like the present were of a local nature. Georgia was decided on this point. That State has always hitherto supposed a Gen^l Governm^t to be the pursuit of the central States who wished to have a vortex for every thing--that her distance would preclude her from equal advantage--& that she could not prudently purchase it by yielding national powers. From this it might be understood in what light she would view an attempt to abridge one of her favorite prerogatives. If left to herself, she may probably put a stop to the evil. As one ground for this conjecture, he took notice of the sect of ---- which he said was a respectable class of people, who carried their ethics beyond the mere _equality of men_, extending their humanity to the claims of the whole animal creation.
M^r Wilson observed that if S. C. & Georgia were themselves disposed to get rid of the importation of slaves in a short time as had been suggested, they would never refuse to Unite because the importation might be prohibited. As the section now stands all articles imported are to be taxed. Slaves alone are exempt. This is in fact a bounty on that article.
M^r Gerry thought we had nothing to do with the conduct of the States as to Slaves, but ought to be careful not to give any sanction to it.
M^r Dickenson considered it as inadmissible on every principle of honor & safety that the importation of slaves should be authorized to the States by the Constitution. The true question was whether the national happiness would be promoted or impeded by the importation, and this question ought to be left to the National Gov^t not to the States particularly interested. If Eng^d & France permit slavery, slaves are at the same time excluded from both those kingdoms. Greece and Rome were made unhappy by their slaves. He could not believe that the South^n States would refuse to confederate on the account apprehended; especially as the power was not likely to be immediately exercised by the Gen^l Government.
M^r Williamson stated the law of N. Carolina on the subject, to-wit that it did not directly prohibit the importation of slaves. It imposed a duty of £5 on each slave imported from Africa, £10 on each from elsewhere, & £50 on each from a State licensing manumission. He thought the S. States could not be members of the Union if the clause sh^d be rejected, and that it was wrong to force any thing down not absolutely necessary, and which any State must disagree to.
M^r King thought the subject should be considered in a political light only. If two States will not agree to the Constitution as stated on one side, he could affirm with equal belief on the other, that great & equal opposition would be experienced from the other States. He remarked on the exemption of slaves from duty whilst every other import was subjected to it, as an inequality that could not fail to strike the commercial sagacity of the North^n & Middle States.
M^r Langdon was strenuous for giving the power to the Gen^l Gov^t. He c^d not with a good conscience leave it with the States who could then go on with the traffic, without being restrained by the opinions here given that they will themselves cease to import slaves.
Gen^l Pinkney thought himself bound to declare candidly that he did not think S. Carolina would stop her importations of slaves in any short time, but only stop them occasionally as she now does. He moved to commit the clause that slaves might be made liable to an equal tax with other imports which he thought right & w^{ch} w^d remove one difficulty that had been started.
M^r Rutlidge. If the Convention thinks that N. C. S. C. & Georgia will ever agree to the plan, unless their right to import slaves be untouched, the expectation is vain. The people of those States will never be such fools as to give up so important an interest. He was strenuous ag^{st} striking out the section, and seconded the motion of Gen^l Pinkney for a commitment.
M^r Gov^r Morris wished the whole subject to be committed including the clauses relating to taxes on exports & to a navigation act. These things may form a bargain among the Northern & Southern States.
M^r Butler declared that he never would agree to the power of taxing exports.
M^r Sherman said it was better to let the S. States import slaves than to part with them, if they made that a sine qua non. He was opposed to a tax on slaves imported as making the matter worse, because it implied they were _property_. He acknowledged that if the power of prohibiting the importation should be given to the Gen^l Government that it would be exercised. He thought it would be its duty to exercise the power.
M^r Read was for the commitment provided the clause concerning taxes on exports should also be committed.
M^r Sherman observed that that clause had been agreed to & therefore could not be committed.
M^r Randolph was for committing in order that some middle ground might, if possible, be found. He could never agree to the clause as it stands. He w^d sooner risk the constitution. He dwelt on the dilemma to which the Convention was exposed. By agreeing to the clause, it would revolt the Quakers, the Methodists, and many others in the States having no slaves. On the other hand, two States might be lost to the Union. Let us then, he said, try the chance of a commitment.
On the question for committing the remaining part of Sect. 4 & 5. of Art: 7.
N. H. no. Mass. abt^t Con^t ay. N. J. ay. P^a no. Del. no. Mary^d ay. V^a ay. N. C. ay. S. C. ay. Geo. ay.
M^r Pinkney & M^r Langdon moved to commit Sect. 6. as to navigation act by two thirds of each House.
M^r Gorham did not see the propriety of it. Is it meant to require a greater proportion of votes? He desired it to be remembered that the Eastern States had no motive to Union but a commercial one. They were able to protect themselves. They were not afraid of external danger, and did not need the aid of the South^n States.
M^r Wilson wished for a commitment in order to reduce the proportion of votes required.
M^r Elseworth was for taking the plan as it is. This widening of opinions has a threatening aspect. If we do not agree on this middle & moderate ground he was afraid we should lose two States, with such others as may be disposed to stand aloof, should fly into a variety of shapes & directions, and most probably into several confederations and not without bloodshed.
On Question for committing 6 Sect. as to navigation act to a member from each State--
N. H. ay. Mas. ay. C^t no. N. J. no. P^a ay. Del. ay. M^d ay. V^a ay. N. C. ay. S. C. ay. Geo. ay.
The Committee appointed were M^r Langdon, King, Johnson, Livingston, Clymer, Dickenson, L. Martin, Madison, Williamson, C. C. Pinkney, & Baldwin.
To this committee were referred also the two clauses above mentioned, of the 4 & 5. Sect: of Art. 7.
M^r Rutlidge from the Committee to whom were referred on the 18 & 20^{th} instant the propositions of M^r Madison & M^r Pinkney made the Report following:[38]
[38] Madison's Note says: ("Here insert Report from Journal of the Convention of the date.") It is found on p. 227, 228, of the Journal and is as above.
"The committee report, that in their opinion the following additions should be made to the report now before the convention, namely,
"At the end of the first clause of the first section of the seventh article add, 'for payment of the debts and necessary expenses of the United States; provided that no law for raising any branch of revenue, except what may be specially appropriated for the payment of interest on debts or loans, shall continue in force for more than ---- years.'
"At the end of the second clause, second section, seventh article, add, 'and with Indians, within the limits of any state, not subject to the laws thereof.'
"At the end of the sixteenth clause of the second section, seventh article, add, 'and to provide, as may become necessary, from time to time, for the well managing and securing the common property and general interests and welfare of the United States in such manner as shall not interfere with the governments of individual states, in matters which respect only their internal police, or for which their individual authority may be competent.'
"At the end of the first section, tenth article, add, 'he shall be of the age of thirty-five years, and a citizen of the United States, and shall have been an inhabitant thereof for twenty-one years.'
"After the second section of the tenth article, insert the following as a third section:
"'The President of the United States shall have a privy council, which shall consist of the president of the senate, the speaker of the house of representatives, the chief justice of the supreme court, and the principal officer in the respective departments of foreign affairs, domestic affairs, war, marine, and finance, as such departments of office shall from time to time be established, whose duty it shall be to advise him in matters respecting the execution of his office, which he shall think proper to lay before them: but their advice shall not conclude him, nor affect his responsibility for the measures which he shall adopt.'
"At the end of the second section of the eleventh article, add, 'the judges of the supreme court shall be triable by the senate, on impeachment by the house of representatives.'
"Between the fourth and fifth lines of the third section of the eleventh article, after the word 'controversies,' insert, 'between the United States and an individual state, or the United States and an individual person.'"
A motion to rescind the order of the House respecting the hours of meeting & adjourning, was negatived:
Mass: P^a Del. Mar^d ay. N. H. Con: N. J. V^a N. C. S. C. Geo. no.
M^r Gerry and M^r M^cHenry moved to insert after the 2^d Sect. Art: 7, the clause following, to wit, "The Legislature shall pass no bill of attainder nor any ex post facto law."[39]
[39] The proceedings on this motion involving the two questions on "attainders and ex post facto laws," are not so fully stated in the printed Journal.--Madison's Note.
M^r Gerry urged the necessity of this prohibition, which he said was greater in the National than the State Legislature, because the number of members in the former being fewer, they were on that account the more to be feared.
M^r Gov^r Morris thought the precaution as to ex post facto laws unnecessary; but essential as to bills of attainder.
M^r Elseworth contended that there was no lawyer, no civilian who would not say that ex post facto laws were void of themselves. It cannot then be necessary to prohibit them.
M^r Wilson was against inserting any thing in the Constitution as to ex post facto laws. It will bring reflections on the Constitution--and proclaim that we are ignorant of the first principles of Legislation, or are constituting a Government that will be so.
The question being divided, the first part of the motion relating to bills of attainder was agreed to nem contradicente.
On the second part relating to ex post facto laws--
M^r Carrol remarked that experience overruled all other calculations. It had proved that in whatever light they might be viewed by civilians or others, the State Legislatures had passed them, and they had taken effect.
M^r Wilson. If these prohibitions in the State Constitutions have no effect, it will be useless to insert them in this Constitution. Besides, both sides will agree to the principle, and will differ as to its application.
M^r Williamson. Such a prohibitory clause is in the Constitution of N. Carolina, and tho it has been violated, it has done good there & may do good here, because the Judges can take hold of it.
Doc^r Johnson thought the clause unnecessary, and implying an improper suspicion of the National Legislature.
M^r Rutlidge was in favor of the clause.
On the question for inserting the prohibition of ex post facto laws.
N. H. ay. Mas. ay. Con^t no. N. J. no. P^a no. Del. ay. M^d ay. Virg^a ay. N. C. div^d. S. C. ay. Geo. ay.
The report of the committee of 5. made by M^r Rutlidge, was taken up and then postponed that each member might furnish himself with a copy.
The Report of the Committee of Eleven delivered in & entered on the Journal of the 21^{st} inst. was then taken up, and the first clause containing the words "The Legislature of the U. S. _shall have power_ to fulfil the engagements which have been entered into by Congress" being under consideration,
M^r Elseworth argued that they were unnecessary. The U. S. heretofore entered into Engagements by Cong^s who were their Agents. They will hereafter be bound to fulfil them by their new agents.
M^r Randolph thought such a provision necessary: for though the U. States will be bound, the new Gov^t will have no authority in the case unless it be given to them.
M^r Madison thought it necessary to give the authority in order to prevent misconstruction. He mentioned the attempts made by the Debtors to British subjects to shew that contracts under the old Government, were dissolved by the Revolution which destroyed the political identity of the Society.
M^r Gerry thought it essential that some explicit provision should be made on this subject, so that no pretext might remain for getting rid of the public engagements.
M^r Gov^r Morris moved by way of amendment to substitute--"The Legislature _shall_ discharge the debts & fulfil the engagements of the U. States."
It was moved to vary the amendment by striking out "discharge the debts" & to insert "liquidate the claims," which being negatived,
The amendment moved by M^r Gov^r Morris was agreed to all the States being in the affirmative.
It was moved & 2^{ded} to strike the following words out of the 2^d clause of the report "and the authority of training the militia according to the discipline prescribed by the U. S." Before a question was taken
The House adjourned.
THURSDAY IN CONVENTION AUG: 23, 1787
The Report of the Committee of Eleven made Aug: 21. being taken up, and the following clause being under consideration to wit "To make laws for organizing, arming & disciplining the Militia, and for governing such parts of them as may be employed in the service of the U. S. reserving to the States respectively, the appointment of the officers, and authority of training the militia according to the discipline prescribed."
M^r Sherman moved to strike out the last member "and authority of training" &c. He thought it unnecessary. The States will have this authority of course if not given up.
M^r Elseworth doubted the propriety of striking out the sentence. The reason assigned applies as well to the other reservation of the appointment to offices. He remarked at the same time that the term discipline was of vast extent and might be so expounded as to include all power on the subject.
M^r King, by way of explanation, said that by _organizing_, the Committee meant, proportioning the officers & men--by _arming_, specifying the kind size & caliber of arms--& by _disciplining_, prescribing the manual exercise evolutions &c.
M^r Sherman withdrew his motion.
M^r Gerry. This power in the U. S. as explained is making the States drill-sergeants. He had as lief let the Citizens of Massachusetts be disarmed, as to take the command from the States, and subject them to the Gen^l Legislature. It would be regarded as a system of Despotism.
M^r Madison observed that "_arming_" as explained did not extend to furnishing arms; nor the term "_disciplining_" to penalties & Courts Martial for enforcing them.
M^r King added to his former explanation that _arming_ meant not only to provide for uniformity of arms, but included the authority to regulate the modes of furnishing, either by the militia themselves, the State Governments, or the National Treasury; that _laws_ for disciplining, must involve penalties and every thing necessary for enforcing penalties.
M^r Dayton moved to postpone the paragraph, in order to take up the following proposition.
"To establish an uniform & general system of discipline for the Militia of these States, and to make laws for organizing, arming, disciplining & governing _such part of them as may be employed in the service of the U. S._, reserving to the States respectively the appointment of the officers, and all authority over the militia not herein given to the General Government."
On the question to postpone in favor of this proposition: it passed in the Negative.
N. H. no. Mas. no. C^t no. N. J. ay. P. no. Del. no. Mary^d ay. V^a no. N. C. no. S. C. no. Geo. ay.
M^r Elseworth & M^r Sherman moved to postpone the 2^d clause in favor of the following
"To establish an uniformity of arms, exercise & organization for the militia, and to provide for the Government of them when called into the service of the U. States."
The object of this proposition was to refer the plan for the Militia to the General Gov^t but to leave the execution of it to the State Gov^{ts}.
Mr. Langdon said he could not understand the jealousy expressed by some Gentlemen. The General & State Gov^{ts} were not enemies to each other, but different institutions for the good of the people of America. As one of the people he could say, the National Gov^t is mine, the State Gov^t is mine. In transferring power from one to the other, I only take out of my left hand what it cannot so well use, and put it into my right hand where it can be better used.
M^r Gerry thought it was rather taking out of the right hand & putting it into the left. Will any man say that liberty will be as safe in the hands of eighty or a hundred men taken from the whole continent, as in the hands of two or three hundred taken from a single State.
M^r Dayton was against so absolute a uniformity. In some States there ought to be a greater proportion of cavalry than in others. In some places rifles would be most proper, in others muskets &c.
Gen^l Pinkney preferred the clause reported by the Committee, extending the meaning of it to the case of fines &c.
M^r Madison. The primary object is to secure an effectual discipline of the Militia. This will no more be done if left to the States separately than the requisitions have been hitherto paid by them. The States neglect their Militia now, and the more they are consolidated into one nation, the less each will rely on its own interior provisions for its safety & the less prepare its Militia for that purpose; in like manner as the militia of a State would have been still more neglected than it has been if each county had been independently charged with the care of its Militia. The Discipline of the Militia is evidently a _National_ concern, and ought to be provided for in the _National_ Constitution.
M^r L. Martin was confident that the States would never give up the power over the Militia; and that, if they were to do so, the militia would be less attended to by the Gen^l than by the State Governments.
M^r Randolph asked what danger there Could be that the Militia could be brought into the field and made to commit suicide on themselves. This is a power that cannot from its nature be abused, unless indeed the whole mass should be corrupted. He was for trammelling the Gen^l Gov^t whenever there was danger, but here there could be none. He urged this as an essential point; observing that the Militia were every where neglected by the State Legislatures, the members of which courted popularity too much to enforce a proper discipline. Leaving the appointment of officers to the States protects the people ag^{st} every apprehension that could produce murmur.
On Question on M^r Elsworth's Motion
N. H. no. Mass. no. C^t ay. N. J. no. P^a no. Del. no. M^d no. V^a no. N. C. no. S. C. no. Geo. no.
A motion was then made to recommit the 2^d clause which was negatived.
On the question to agree to the 1^{st} part of the clause, namely
"To make laws for organizing arming & disciplining the Militia, and for governing such part of them as may be employed in the service of the U. S."
N. H. ay. Mas. ay. C^t no. N. J. ay. P^a ay. Del. ay. M^d no. V^a ay. N. C. ay. S. C. ay. Geo. ay.
M^r Madison moved to amend the next part of the clause so as to read "reserving to the States respectively, the appointment of the officers, _under the rank of General officers_."
M^r Sherman considered this as absolutely inadmissible. He said that if the people should be so far asleep as to allow the most influential officers of the militia to be appointed by the Gen^l Government, every man of discernment would rouse them by sounding the alarm to them.
M^r Gerry. Let us at once destroy the State Gov^{ts} have an Executive for life or hereditary, and a proper Senate, and then there would be some consistency in giving full powers to the Gen^l Gov^t but as the States are not to be abolished, he wondered at the attempts that were made to give powers inconsistent with their existence. He warned the Convention ag^{st} pushing the experiment too far. Some people will support a plan of vigorous Government at every risk. Others of a more democratic cast will oppose it with equal determination, and a Civil war may be produced by the conflict.
M^r Madison. As the greatest danger is that of disunion of the States, it is necessary to guard ag^{st} it by sufficient powers to the Common gov^t and as the greatest danger to liberty is from large standing armies, it is best to prevent them by an effectual provision for a good Militia.
On the Question to agree to M^r Madison's motion
N. H. ay. Mas. no. C^t no. N. J. no. P^a no. Del. no. M^d no. V^a no. N. C. no. S. C. ay. Geo. ay.[40]
[40] In the printed Journal, Geo: no.--Madison's Note.
On the question to agree to the "reserving to the States the appointment of the officers." It was agreed to nem: contrad:
On the question on the clause "and the authority of training the Militia according to the discipline prescribed by the U. S."--
N. H. ay. Mas. ay. C^t ay. N. J. ay. P^a ay. Del. no. M^d ay. V^a no. N. C. ay. S. C. no. Geo. no.
On the question to agree to Art. VII. Sect. 7. as reported it passed nem: contrad.
M^r Pinkney urged the necessity of preserving foreign Ministers & other officers of the U. S. independent of external influence and moved to insert, after Art. VII Sect 7. the clause following--"No person holding any office of profit or trust under the U. S. shall without the consent of the Legislature, accept of any present, emolument, office or title of any kind whatever, from any King, Prince or foreign State", which passed nem: contrad:
M^r Rutlidge moved to amend Art: VIII to read as follows,
"This Constitution & the laws of the U. S. made in pursuance thereof, and all the Treaties made under the authority of the U. S. shall be the supreme law of the several States and of their citizens and inhabitants; and the Judges in the several States shall be bound thereby in their decisions, any thing in the Constitutions or laws of the several States, to the contrary notwithstanding."
which was agreed to, nem: contrad:
Art: IX being next for consideration,
M^r Gov^r Morris argued ag^{st} the appointment of officers by the Senate. He considered the body as too numerous for the purpose; as subject to cabal; and as devoid of responsibility. If Judges were to be tried by the Senate according to a late report of a Committee it was particularly wrong to let the Senate have the filling of vacancies which its own decrees were to create.
M^r Wilson was of the same opinion & for like reasons.
The art. IX. being waved, and Art. VII. Sect. 1. resumed,
M^r Gov^r Morris moved to strike the following words out of the 18 clause "enforce treaties" as being superfluous, since treaties were to be "laws"--which was agreed to nem: contrad:
M^r Gov^r Morris moved to alter 1^{st} part. of 18. clause Sect. 1. art VII so as to read "to provide for calling forth the militia to execute the laws of the Union, suppress insurrections and repel invasions"--which was agreed to nem: contrad:
On the question then to agree to the 18 clause of Sect. 1. Art: 7. as amended it passed in the affirmative nem: contrad.
M^r C. Pinkney moved to add as an additional power to be vested in the Legislature of the U. S. "To negative all laws passed by the several States interfering in the opinion of the legislature with the general interests and harmony of the Union; provided that two thirds of the members of each House assent to the same." This principle he observed had formerly been agreed to. He considered the precaution as essentially necessary. The objection drawn from the predominance of the large States had been removed by the equality established in the Senate.[41]
[41] "RICHMOND AUG^t 22. 87.
"DEAR SIR,
* * * * *
"I have still some hope that I shall hear from you of y^e reinstatement of y^e _negative_--as it is certainly y^e only means by which the several Legislatures can be restrained from disturbing y^e order & harmony of y^e whole, & y^e governm^t render'd properly _national_, & _one_. I should suppose y^t some of its former opponents must by this time have seen y^e necessity of advocating it, if they wish to support their own principles." (James McClurg to Madison--Mad. MSS.)
M^r Broome 2^{ded} the proposition.
M^r Sherman thought it unnecessary; the laws of the General Government being supreme & paramount to the State laws according to the plan, as it now stands.
M^r Madison proposed that it should be committed. He had been from the beginning a friend to the principle; but thought the modification might be made better.
M^r Mason wished to know how the power was to be exercised. Are all laws whatever to be brought up? Is no road nor bridge to be established without the Sanction of the General Legislature? Is this to sit constantly in order to receive & revise the State Laws?--He did not mean by these remarks to condemn the expedient, but he was apprehensive that great objections would lie ag^{st} it.
M^r Williamson thought it unnecessary, having been already decided, a revival of the question was a waste of time.
M^r Wilson considered this as the key-stone wanted to compleat the wide arch of Government we are raising. The power of self-defence had been urged as necessary for the State Governments. It was equally necessary for the General Government. The firmness of Judges is not of itself sufficient. Something further is requisite. It will be better to prevent the passage of an improper law, than to declare it void when passed.
M^r Rutlidge. If nothing else, this alone would damn and ought to damn the Constitution. Will any State ever agree to be bound hand & foot in this manner. It is worse than making mere corporations of them whose bye laws would not be subject to this shackle.
M^r Elseworth observed that the power contended for w^d require either that all laws of the State Legislatures should previously to their taking effect be transmitted to the Gen^l Legislature, or be repealable by the Latter; or that the State Executives should be appointed by the Gen^l Government, and have a controul over the State laws. If the last was meditated let it be declared.
M^r Pinkney declared that he thought the State Executives ought to be so appointed with such a controul, & that it would be so provided if another Convention should take place.
M^r Govern^r Morris did not see the utility or practicability of the proposition of M^r Pinkney, but wished it to be referred to the consideration of a Committee.
M^r Langdon was in favor of the proposition. He considered it as resolvable into the question whether the extent of the National Constitution was to be judged of by the Gen^l or the State Governments.
On the question for commitment, it passed in the negative.
N. H. ay. Mass^{ts} no. Con^t no. N. J. no. P^a ay. Del. ay. M^d ay. V^a ay. N. C. no. S. C. no. Geo. no.
M^r Pinkney then withdrew his proposition.
The 1^{st} sect. of Art: VII being so amended as to read "The Legislature _shall_ fulfil the engagements and discharge the debts of the U. S. & shall have the power to lay & collect taxes duties imposts & excises," was agreed to.
M^r Butler expressed his dissatisfaction lest it should compel payment as well to the Blood-suckers who had speculated on the distresses of others, as to those who had fought & bled for their country. He would be ready he said to-morrow to vote for a discrimination between those classes of people, and gave notice that he should move for a reconsideration.
Art IX Sect. 1. being resumed, to wit "The Senate of the U. S. shall have power to make treaties, and to appoint Ambassadors, and Judges of the Supreme Court."
M^r Madison observed that the Senate represented the States alone, and that for this as well as other obvious reasons it was proper that the President should be an agent in Treaties.
M^r Gov^r Morris did not know that he should agree to refer the making of Treaties to the Senate at all, but for the present w^d move to add, as an amendment to the section after "Treaties"--"but no Treaty shall be binding on the U. S. which is not ratified by a law."
M^r Madison suggested the inconvenience of requiring a legal _ratification_ of treaties of alliance for the purposes of war &c &c."
M^r Ghorum. Many other disadvantages must be experienced if treaties of peace & all negotiations are to be previously ratified--and if not previously, the Ministers would be at a loss how to proceed. What would be the case in G. Britain if the King were to proceed in this manner. American Ministers must go abroad not instructed by the same Authority (as will be the case with other Ministers) which is to ratify their proceedings.
M^r Gov^r Morris. As to treaties of alliance, they will oblige foreign powers to send their ministers here the very thing we should wish for. Such treaties could not be otherwise made, if his amendment sh^d succeed. In general he was not solicitious to multiply & facilitate Treaties. He wished none to be made with G. Britain, till she should be at war. Then a good bargain might be made with her. So with other foreign powers. The more difficulty in making treaties, the more value will be set on them.
M^r Wilson. In the most important Treaties, the King of G. Britain being obliged to resort to Parliament for the execution of them, is under the same fetters as the amendment of M^r Morris' will impose on the Senate. It was refused yesterday to permit even the Legislature to lay duties on exports. Under the clause without the amendment, the Senate alone can make a Treaty, requiring all the Rice of S. Carolina to be sent to some one particular port.
M^r Dickinson concurred in the amendment, as most safe and proper, tho' he was sensible it was unfavorable to the little States, w^{ch} would otherwise have an _equal_ share in making Treaties.
Doc^r Johnson thought there was something of solecism in saying that the acts of a minister with plenipotentiary powers from one Body, should depend for ratification on another Body. The Example of the King of G. B. was not parallel. Full & compleat power was vested in him. If the Parliament should fail to provide the necessary means of execution, the Treaty would be violated.
M^r Ghorum in answer to M^r Gov^r Morris, said that negotiations on the spot were not to be desired by us, especially if the whole Legislature is to have any thing to do with Treaties. It will be generally influenced by two or three men, who will be corrupted by the Ambassadors here. In such a Government as ours, it is necessary to guard against the Government itself being seduced.
M^r Randolph observing that almost every Speaker had made objections to the clause as it stood, moved in order to a further consideration of the subject, that the motion of M^r Gov^r Morris should be postponed, and on this question It was lost the States being equally divided.
Mass^{ts} no. Con^t no. N. J. ay. Pen^a ay. Del. ay. M^d ay. V^a ay. N. C. no. S. C. no. Geo. no.
On M^r Gov^r Morris motion
Mass^{ts} no. Con^t no. N. J. no. P^a ay. Del. no. M^d no. V^a no. N. C. div^d. S. C. no. Geo. no.
The several clauses of Sect: 1. Art IX, were then separately postponed after inserting "and other public ministers" next after "ambassadors."
M^r Madison hinted for consideration, whether a distinction might not be made between different sorts of Treaties--allowing the President & Senate to make Treaties eventual and of alliance for limited terms--and requiring the concurrence of the whole Legislature in other Treaties.
The 1^{st} Sect Art IX. was finally referred nem: con: to the committee of Five, and the House then
Adjourned.
FRIDAY AUGUST 24. 1787. IN CONVENTION
Governour Livingston, from the Committee of Eleven, to whom were referred the two remaining clauses of the 4^{th} Sect & the 5 & 6 Sect: of the 7^{th}. Art: delivered in the following Report:
"Strike out so much of the 4^{th} Sect: as was referred to the Committee and insert--'The migration or importation of such persons as the several States now existing shall think proper to admit, shall not be prohibited by the Legislature prior to the year 1800, but a tax or duty may be imposed on such migration or importation at a rate not exceeding the average of the duties laid on imports.'"
"The 5 Sect: to remain as in the Report."
"The 6 Sect, to be stricken out."
M^r Butler, according to notice, moved that clause 1^{st} sect. 1. of art VII, as to the discharge of debts, be reconsidered tomorrow. He dwelt on the division of opinion concerning the domestic debts, and the different pretensions of the different classes of holders. Gen^l Pinkney 2^{ded} him.
M^r Randolph wished for a reconsideration in order to better the expression, and to provide for the case of the State debts as is done by Congress.
On the question for reconsidering
N. H. no. Mass. ay. Con^t ay. N. J. ay. Pen^a absent. Del. ay. M^d no. V^a ay. N. C. absent. S. C. ay. Geo. ay.--and tomorrow assigned for the reconsideration.
Sect: 2 & 3 of art: IX being taken up,
M^r Rutlidge said this provision for deciding controversies between the States was necessary under the Confederation, but will be rendered unnecessary by the National Judiciary now to be established, and moved to strike it out.
Doc^r Johnson 2^{ded} the motion.
M^r Sherman concurred: so did M^r Dayton.
M^r Williamson was for postponing instead of striking out, in order to consider whether this might not be a good provision, in cases where the Judiciary were interested or too closely connected with the parties.
M^r Ghorum had doubts as to striking out. The Judges might be connected with the States being parties--He was inclined to think the mode proposed in the clause would be more satisfactory than to refer such cases to the Judiciary.
On the Question for postponing the 2^d & 3^d Section it passed in the negative.
N. H. ay. Mass^{ts} no. Con^t no. N. J. no. Pen^a abs^t. Del. no. M^d no. V^a no. N. C. ay. S. C. no. Geo. ay.
M^r Wilson urged the striking out, the Judiciary being a better provision.
On Question for striking out 2 & 3 Sections Art: IX
N. H. ay. Mass. ay. C^t ay. N. J. ay. P^a abs^t. Del. ay. M^d ay. V^a ay. N. C. no. S. C. ay. Geo. no.
Art X. Sect. 1. "The Executive power of the U. S. shall be vested in a single person. His stile shall be "The President of the U. S. of America" and his title shall be "His Excellency." He shall be elected by ballot by the Legislature. He shall hold his office during the term of seven years; but shall not be elected a second time."
On the question for vesting the power in a _single person_--It was agreed to nem: con: So also on the _stile_ and _title_.
M^r Rutlidge moved to insert "joint" before the word "ballot," as the most convenient mode of electing.
M^r Sherman objected to it as depriving the _States_ represented in the _Senate_ of the negative intended them in that house.
M^r Ghorum said it was wrong to be considering at every turn whom the Senate would represent. The public good was the true object to be kept in view. Great delay and confusion would ensue if the two Houses sh^d vote separately, each having a negative on the choice of the other.
M^r Dayton. It might be well for those not to consider how the Senate was constituted, whose interest it was to keep it out of sight.--If the amendment should be agreed to, a _joint_ ballot would in fact give the appointment to one House. He could never agree to the clause with such an amendment. There could be no doubt of the two Houses separately concurring in the same person for President. The importance & necessity of the case would ensure a concurrence.
M^r Carrol moved to strike out "by the Legislature" and insert "by the people." M^r Wilson 2^{ded}. him & on the question
N. H. no. Mass^{ts} no. Con^t no. N. J. no. P^a ay. Del. ay. M^d no. V^a no. N. C. no. S. C. no. Geo. no.
M^r Brearly was opposed to the motion for inserting the word "joint." The argument that the small States should not put their hands into the pockets of the large ones did not apply in this case.
M^r Wilson urged the reasonableness of giving the larger States a larger share of the appointment, and the danger of delay from a disagreement of the two Houses. He remarked also that the Senate had peculiar powers balancing the advantage given by a joint ballot in this case to the other branch of the Legislature.
M^r Langdon. This general officer ought to be elected by the joint & general voice. In N. Hampshire the mode of separate votes by the two Houses was productive of great difficulties. The negative of the Senate would hurt the feelings of the man elected by the votes of the other branch. He was for inserting "joint" tho' unfavorable to N. Hampshire as a small State.
M^r Wilson remarked that as the President of the Senate was to be the President of the U. S. that Body in cases of vacancy might have an interest in throwing dilatory obstacles in the way, if its separate concurrence should be required.
M^r Madison. If the amendment be agreed to the rule of voting will give to the largest State, compared with the smallest, an influence as 4 to 1 only, altho the population is as 10 to 1. This surely cannot be unreasonable as the President is to act for the _people_ not for the _States_. The President of the _Senate_ also is to be occasionally President of the U. S. and by his negative alone can make 3/4 of the other branch necessary to the passage of a law. This is another advantage enjoyed by the Senate.
On the question for inserting "joint," it passed in the affirmative.
N. H. ay. Mass^{ts} ay. C^t no. N. J. no. P^a ay. Del. ay. M^d no. V^a ay. N. C. ay. S. C. ay. Geo. no.
M^r Dayton then moved to insert, after the word "Legislatures" the words "each State having one vote." M^r Brearly 2^{ded} him, and on the question it passed in the negative.
N. H. no. Mas. no. C^t ay. N. J. ay. P^a no. Del. ay. M^d ay. V^a no. N. C. no. S. C. no. Geo. ay.
M^r Pinkney moved to insert after the word "Legislature" the words "to which election a majority of the votes of the members present shall be required" & on this question, it passed in the affirmative.
N. H. ay. Mass. ay. C^t ay. N. J. no. P^a ay. Del. ay. M^d ay. V^a ay. N. C. ay. S. C. ay. Geo. ay.
M^r Read moved "that in case the numbers for the two highest in votes should be equal, then the President of the Senate shall have an additional casting vote," which was disagreed to by a general negative.
M^r Gov^r Morris opposed the election of the President by the Legislature. He dwelt on the danger of rendering the Executive uninterested in maintaining the rights of his Station, as leading to Legislative tyranny. If the Legislature have the Executive dependent on them, they can perpetuate & support their usurpations by the influence of tax-gatherers & other officers, by fleets armies &c. Cabal & corruption are attached to that mode of election: so also is ineligibility a second time. Hence the Executive is interested in Courting popularity in the Legislature by sacrificing his Executive Rights; & then he can go into that Body, after the expiration of his Executive office, and enjoy there the fruits of his policy. To these considerations he added that rivals would be continually intriguing to oust the President from his place. To guard against all these evils he moved that the President "shall be chosen by Electors to be chosen by the People of the several States." M^r Carrol 2^{ded} him & on the question it passed in the negative N. H. no. Mass. no. C^t ay. N. J. ay. P^a ay. Del. ay. M^d no. V^a ay. N. C. no. S. C. no. Geo. no.
M^r Dayton moved to postpone the consideration of the two last clauses of Sect. 1. art X. which was disagreed to without a count of the States.
M^r Broome moved to refer the two clauses to a Committee of a member from each State, & on the question, it failed the States being equally divided.
N. H. no. Mas. no. C^t div^d. N. J. ay. P^a ay. Del. ay. M^d ay. V^a ay. N. C. no. S. C. no. Geo. no.
On the question taken on the first part of M^r Gov^r Morris's motion to wit "shall be chosen by electors" as an abstract question, it failed the States being equally divided,
N. H. no. Mas. abs^t. C^t div^d. N. Jersey ay. P^a ay. Del. ay. M^d div^d. V^a ay. N. C. no. S. C. no. Geo. no.
The consideration of the remaining clauses of Sect. 1. art. X. was then postponed till tomorrow at the instance of the Deputies of New Jersey.
Sect. 2. Art: X being taken up, the word information was transposed & inserted after "Legislature."
On motion of M^r Gov^r Morris, "he may" was struck out, & "and" inserted before "recommend" in the clause 2^d sect 2^d art: X. in order to make it the _duty_ of the President to recommend, & thence prevent umbrage or cavil at his doing it.
M^r Sherman objected to the sentence "and shall appoint officers in all cases not otherwise provided for by this Constitution." He admitted it to be proper that many officers in the Executive Department should be so appointed--but contended that many ought not, as general officers in the army in time of peace &c. Herein lay the corruption in G. Britain. If the Executive can model the army, he may set up an absolute Government; taking advantage of the close of a war and an army commanded by his creatures. James 2^d was not obeyed by his officers because they had been appointed by his predecessors not by himself. He moved to insert "or by law" after the word "Constitution."
On motion of M^r Madison "officers" was struck out and "to offices" inserted, in order to obviate doubts that he might appoint officers without a previous creation of the offices by the Legislature.
On the question for inserting "or by law" as moved by M^r Sherman
N. H. no. Mas. no. C^t ay. N. J. no. Pen^a no. Del. no. M^d no. V^a no. N. C. absent. S. C. no. Geo. no.
M^r Dickinson moved to strike out the words "and shall appoint to offices in all cases not otherwise provided for by this Constitution" and insert--"and shall appoint to all offices established by this Constitution, except in cases herein otherwise provided for, and to all offices which may hereafter be created by law."
M^r Randolph observed that the power of appointments was a formidable one both in the Executive & Legislative hands--and suggested whether the Legislature should not be left at liberty to refer appointments in some cases, to some State authority.
M^r Dickenson's motion, it passed in the affirmative.
N. H. no. Mas. no. C^t ay. N. J. ay. P^a ay. Del. no. M^d ay. V^a ay. N. C. abs^t. S. C. no. Geo. ay.
M^r Dickinson then moved to annex to his last amendment "except where by law the appointment shall be vested in the Legislatures or Executives of the several States." M^r Randolph 2^{ded} the motion.
M^r Wilson. If this be agreed to it will soon be a standing instruction from the State Legislatures to pass no law creating offices, unless the app^{ts} be referred to them.
M^r Sherman objected to "Legislatures" in the motion, which was struck out by consent of the movers.
M^r Gov^r Morris. This would be putting it in the power of the States to say, "You shall be viceroys but we will be viceroys over you"--
The motion was negatived without a Count of the States--
Ordered unanimously that the order respecting the adjournment at 4 OClock be repealed, & that in future the House assemble at 10 OC. & adjourn at 3 OC.
Adjourned.
SATURDAY AUGUST 25. 1787. IN CONVENTION
The 1^{st} clause of 1 Sect. of art: VII being reconsidered
Col. Mason objected to the term "_shall_"--fullfil the engagements & discharge the debts &c. as too strong. It may be impossible to comply with it. The Creditors should be kept in the same plight. They will in one respect be necessarily and properly in a better. The Government will be more able to pay them. The use of the term _shall_ will beget speculations and increase the pestilent practice of stock-jobbing. There was a great distinction between original creditors & those who purchased fraudulently of the ignorant and distressed. He did not mean to include those who have bought Stock in open market. He was sensible of the difficulty of drawing the line in this case, but he did not wish to preclude the attempt. Even fair purchasers at 4. 5. 6. 8 for 1 did not stand on the same footing with the first Holders, supposing them not to be blameable. The interest they receive even in paper, is equal to their purchase money. What he particularly wished was to leave the door open for buying up the securities, which he thought would be precluded by the term "shall" as requiring _nominal payment_, & which was not inconsistent with his ideas of public faith. He was afraid also the word "_shall_," might extend to all the old continental paper.
M^r Langdon wished to do no more than leave the Creditors in statu quo.
M^r Gerry said that for himself he had no interest in the question being not possessed of more of the securities than would, by the interest, pay his taxes. He would observe however that as the public had received the value of the literal amount, they ought to pay that value to some body. The frauds on _the soldiers_ ought to have been foreseen. These poor & ignorant people could not but part with their securities. There are other creditors who will part with any thing rather than be cheated of the capital of their advances. The interest of the States he observed was different on this point, some having more, others less than their proportion of the paper. Hence the idea of a scale for reducing its value had arisen. If the public faith would admit, of which he was not clear, he would not object to a revision of the debt so far as to compel restitution to the ignorant & distressed, who have been defrauded. As to stock-jobbers he saw no reason for the censures thrown on them. They keep up the value of the paper. Without them there would be no market.
M^r Butler said he meant neither to increase nor diminish the security of the Creditors.
M^r Randolph moved to postpone the clause in favor of the following "All debts contracted & engagements entered into, by or under the authority of Cong^s shall be as valid ag^{st} the U. States under this constitution as under the Confederation."
Doc^r Johnson. The debts are debts of the U. S. of the great Body of America. Changing the Government cannot change the obligation of the U. S. which devolves of course on the new Government. Nothing was in his opinion necessary to be said. If any thing, it should be a mere declaration as moved by M^r Randolph.
M^r Gov^r Morris, said he never had become a public Creditor that he might urge with more propriety the compliance with public faith. He had always done so and always would, and preferr'd the term "_shall_" as the most explicit. As to _buying up_ the debt, the term "_shall_" was not inconsistent with it, if provision be first made for paying the interest: if not, such an expedient was a mere evasion. He was content to say nothing as the New Government would be bound of course, but would prefer the clause with the term "_shall_," because it would create many friends to the plan.
On M^r Randolph's Motion
N. H. ay. Mas. ay. C^t ay. N. J. ay. P^a no. Del. ay. Mary^d ay. V^a ay. N. C. ay. S. C. ay. Geo. ay.
M^r Sherman thought it necessary to connect with the clause for laying taxes duties &c. an express provision for the object of the old debts &c.--and moved to add to the 1^{st} clause of 1^{st} sect. art VII "for the payment of said debts and for the defraying the expences that shall be incurred for the common defence and general welfare."
The proposition, as being unnecessary was disagreed to, Connecticut alone, being in the affirmative.
The Report of the Committee of eleven (see friday the 24^{th} instant) being taken up,
Gen^l Pinkney moved to strike out the words, "the year eighteen hundred" as the year limiting the importation of slaves, and to insert the words "the year eighteen hundred and eight."
M^r Ghorum 2^{ded} the motion.
M^r Madison. Twenty years will produce all the mischief that can be apprehended from the liberty to import slaves. So long a term will be more dishonourable to the National character than to say nothing about it in the Constitution.
On the motion; which passed in the affirmative,
N. H. ay. Mas. ay. C^t ay. N. J. no. P^a no. Del. no. M^d ay. V^a no. N. C. ay. S. C. ay. Geo. ay.
M^r Gov^r Morris was for making the clause read at once, "the importation of slaves into N. Carolina, S. Carolina & Georgia shall not be prohibited &c." This he said would be most fair and would avoid the ambiguity by which, under the power with regard to naturalization, the liberty reserved to the States might be defeated. He wished it to be known also that this part of the Constitution was a compliance with those States. If the change of language however should be objected to by the members from those States, he should not urge it.
Col. Mason was not against using the term "slaves" but ag^{st} naming N. C. S. C. & Georgia, lest it should give offence to the people of those States.
M^r Sherman liked a description better than the terms proposed, which had been declined by the old Cong^s & were not pleasing to some people. M^r Clymer concurred with M^r Sherman.
M^r Williamson said that both in opinion & practice he was against slavery; but thought it more in favor of humanity, from a view of all circumstances, to let in S. C. & Georgia on those terms, than to exclude them from the Union.
M^r Gov^r Morris withdrew his motion.
M^r Dickenson wished the clause to be confined to the States which had not themselves prohibited the importation of slaves, and for that purpose moved to amend the clause so as to read "The importation of slaves into such of the States as shall permit the same shall not be prohibited by the Legislature of the U. S. until the year 1808"--which was disagreed to nem: con:[42]
[42] In the printed Journals, Con^t Virg^a & Georgia voted in the affirmative.--Madison's Note.
The first part of the report was then agreed to, amended as follows. "The migration or importation of such persons as the several States now existing shall think proper to admit, shall not be prohibited by the Legislature prior to the year 1808."
N. H. Mas. Con. M^d N. C. S. C. Geo: ay. N. J. P^a Del. Virg^a no.
M^r Baldwin in order to restrain & more explicitly define "the average duty" moved to strike out of the 2^d part the words "average of the duties laid on imports" and insert "common impost on articles not enumerated" which was agreed to nem: cont:
M^r Sherman was ag^{st} this 2^d part, as acknowledging men to be property, by taxing them as such under the character of slaves.
M^r King & M^r Langdon considered this as the price of the 1^{st} part.
Gen^l Pinkney admitted that it was so.
Col. Mason. Not to tax, will be equivalent to a bounty on the importation of slaves.
M^r Ghorum thought that M^r Sherman should consider the duty, not as implying that slaves are property, but as a discouragement to the importation of them.
M^r Gov^r Morris remarked that as the clause now stands it implies that the Legislature may tax freemen imported.
M^r Sherman in answer to M^r Ghorum observed that the smallness of the duty shewed revenue to be the object, not the discouragement of the importation.
M^r Madison thought it wrong to admit in the Constitution the idea that there could be property in men. The reason of duties did not hold, as slaves are not like merchandize, consumed, &c.
Col. Mason (in answ^r to Gov^r Morris) the provision as it stands was necessary for the case of convicts in order to prevent the introduction of them.
It was finally agreed nem. contrad: to make the clause read "but a tax or duty may be imposed on such importation not exceeding ten dollars for each person," and then the 2^d part as amended was agreed to.
Sect 5. art. VII was agreed to nem: con: as reported.
Sect. 6. art. VII. in the Report, was postponed.
On motion of M^r Madison 2^{ded} by M^r Gov^r Morris Article VIII was reconsidered and after the words "all treaties made," were inserted nem: con: the words "or which shall be made." This insertion was meant to obviate all doubt concerning the force of treaties preexisting, by making the words "all treaties made" to refer to them, as the words inserted would refer to future treaties.
M^r Carrol and M^r L. Martin expressed their apprehensions, and the probable apprehensions of their constituents, that under the power of regulating trade the General Legislature, might favor the ports of particular States, by requiring vessels destined to or from other States to enter & clear thereat, as vessels belonging or bound to Baltimore, to enter & clear at Norfolk &c. They moved the following proposition
"The Legislature of the U. S. shall not oblige vessels belonging to citizens thereof, or to foreigners, to enter or pay duties or imposts in any other State than in that to which they may be bound, or to clear out in any other than the State in which their cargoes may be laden on board; nor shall any privilege or immunity be granted to any vessel on entering or clearing out, or paying duties or imposts in one State in preference to another."
M^r Ghorum thought such a precaution unnecessary; & that the revenue might be defeated, if vessels could run up long rivers, through the jurisdiction of different States without being required to enter, with the opportunity of landing & selling their cargoes by the way.
M^r M^cHenry & Gen^l Pinkney made the following propositions
"Should it be judged expedient by the Legislature of the U. S. that one or more port for collecting duties or imposts other than those ports of entrance & clearance already established by the respective States, should be established, the Legislature of the U. S. shall signify the same to the Executives of the respective States, ascertaining the number of such ports judged necessary; to be laid by the said Executives before the Legislatures of the States at their next session; and the Legislature of the U. S. shall not have the power of fixing or establishing the particular ports for collecting duties or imposts in any State, except the Legislature of such State shall neglect to fix and establish the same during their first session to be held after such notification by the Legislature of the U. S. to the Executive of such State."
"All duties imposts & excises, prohibitions or restraints laid or made by the Legislature of the U. S. shall be uniform & equal throughout the U. S."
These several propositions were referred nem: con: to a committee composed of a member from each State. The committee appointed by ballot were M^r Langdon, M^r Ghorum, M^r Sherman, M^r Dayton, M^r Fitzimmons, M^r Read, M^r Carrol, M^r Mason, M^r Williamson, M^r Butler, M^r Few.
On the question now taken on M^r Dickinson's motion of yesterday, allowing appointments to offices, to be referred by the Gen^l Legislature to the Executives of the several States as a further amendment to sect. 2. art. X, the votes were
N. H. no. Mas. no. C^t ay. P^a no. Del. no. M^d divided. V^a ay. N. C. no. S. C. no. Geo. ay.
In amendment of the same section, "other public Ministers" were inserted after "ambassadors."
M^r Gov^r Morris moved to strike out of the section--"and may correspond with the supreme Executives of the several States" as unnecessary and implying that he could not correspond with others. M^r Broome 2^{ded} him.
On the question
N. H. ay. Mas. ay. C^t ay. P^a ay. Del. ay. M^d no. V^a ay. N. C. ay. S. C. ay. Geo. ay.
"Shall receive ambassadors & other public Ministers," agreed to, nem. con.
M^r Sherman moved to amend the "power to grant reprieves & pardon" so as to read "to grant reprieves until the ensuing session of the Senate, and pardons with consent of the Senate."
On the question
N. H. no. Mas. no. C^t ay. P^a no. M^d no. V^a no. N. C. no. S. C. no. Geo. no.
"except in cases of impeachment" inserted nem. con: after "pardon."
On the question to agree to--"but his pardon shall not be pleadable in bar"
N. H. ay. Mas. no. C^t no. P^a no. Del. no. M^d ay. V^a no. N. C. ay. S. C. ay. Geo. no.
Adjourned.
MONDAY AUG^{ST} 27^{TH}. 1787. IN CONVENTION
Art X. Sect 2. being resumed,
M^r L. Martin moved to insert the words "after conviction" after the words "reprieves and pardons."
M^r Wilson objected that pardon before conviction might be necessary in order to obtain the testimony of accomplices. He stated the case of forgeries in which this might particularly happen.--M^r L. Martin withdrew his motion.
M^r Sherman moved to amend the clause giving the Executive the command of the Militia, so as to read "and of the Militia of the several States, _when called into the actual service of the U. S._" and on the Question
N. H. ay. Mas. abs^t. C^t ay. N. J. abs^t. P^a ay. Del. no. M^d ay. V^a ay. N. C. abs^t. S. C. no. Geo. ay.
The clause for removing the President on impeachment by the House of Rep^s and conviction in the supreme Court, of Treason, Bribery or corruption, was postponed nem: con: at the instance of M^r Gov^r Morris, who thought the Tribunal an improper one, particularly, if the first Judge was to be of the privy Council.
M^r Gov^r Morris objected also to the President of the Senate being provisional successor to the President, and suggested a designation of the Chief Justice.
M^r Madison added as a ground of objection that the Senate might retard the appointment of a President in order to carry points whilst the revisionary power was in the President of their own body, but suggested that the Executive powers during a vacancy, be administered by the persons composing the Council to the President.
M^r Williamson suggested that the Legislature ought to have power to provide for occasional successors, & moved that the last clause (of 2 sect. X art:) relating to a provisional successor to the President, be postponed.
M^r Dickinson 2^{ded} the postponement, remarking that it was too vague. What is the extent of the term "disability" and who is to be the judge of it?
The postponement was agreed to nem: con:
Col: Mason & M^r Madison moved to add to the oath to be taken by the supreme Executive "and will to the best of my judgment and power preserve protect and defend the Constitution of the U. S."
M^r Wilson thought the general provision for oaths of office, in a subsequent place, rendered the amendment unnecessary.--
On the question
N. H. ay. Mas. abs^t. C^t ay. P^a ay. Del. no. M^d ay. V^a ay. N. C. abs^t. S. C. ay. Geo. ay.
Art: XI. being taken up.
Doc^r Johnson suggested that the judicial power ought to extend to equity as well as law--and moved to insert the words, "both in law and equity" after the words "U. S." in the 1^{st} line of sect 1.
M^r Read objected to vesting these powers in the same Court.
On the question
N. H. ay. Mas. absent. C^t ay. N. J. abs^t. P. ay. Del. no. M^d no. Virg^a ay. N. C. abs^t. S. C. ay. Geo. ay.
On the question to agree to Sect. 1. art. XI. as amended
N. H. ay. Mas. abs^t. C^t ay. P^a ay. N. J. abs^t. Del. no. M^d no. V^a ay. N. C. abs^t. S. C. ay. Geo. ay.
M^r Dickinson moved as an amendment to sect. 2. art XI after the words "good behavior" the words "provided that they may be removed by the Executive on the application by the Senate and House of Representatives."
M^r Gerry 2^{ded} the motion.
M^r Gov^r Morris thought it a contradiction in terms to say that the Judges should hold their offices during good behavior, and yet be removeable without a trial. Besides it was fundamentally wrong to subject Judges to so arbitrary an authority.
M^r Sherman saw no contradiction or impropriety if this were made a part of the Constitutional regulation of the Judiciary establishment. He observed that a like provision was contained in the British Statutes.
M^r Rutlidge. If the Supreme Court is to judge between the U. S. and particular States, this alone is an insuperable objection to the motion.
M^r Wilson considered such a provision in the British Government as less dangerous than here, the House of Lords & House of Commons being less likely to concur on the same occasions. Chief Justice Holt, he remarked, had _successively_ offended by his independent conduct, both houses of Parliament. Had this happened at the same time, he would have been ousted. The Judges would be in a bad situation if made to depend on any gust of faction which might prevail in the two branches of our Gov^t.
M^r Randolph opposed the motion as weakening too much the independence of the Judges.
M^r Dickinson was not apprehensive that the Legislature composed of different branches constructed on such different principles, would improperly unite for the purpose of displacing a Judge.
On the question for agreeing to M^r Dickinson's Motion
N. H. no. Mas. abs^t. C^t ay. N. J. abs^t. P^a no. Del. no. M^d no. V^a no. N. C. abs^t. S. C. no. Geo. no.
M^r Madison and M^r M^cHenry moved to reinstate the words "increased or" before the word "diminished" in 2^d sect, art. XI.
M^r Gov^r Morris opposed it for reasons urged by him on a former occasion--
Col: Mason contended strenuously for the motion. There was no weight he said in the argument drawn from changes in the value of the metals, because this might be provided for by an increase of salaries so made as not to affect persons in office, and this was the only argument on which much stress seemed to have been laid.
Gen^l Pinkney. The importance of the Judiciary will require men of the first talents: large salaries will therefore be necessary, larger than the U. S. can allow in the first instance. He was not satisfied with the expedient mentioned by Col: Mason. He did not think it would have a good effect or a good appearance, for new Judges to come in with higher salaries than the old ones.
M^r Gov^r Morris said the expedient might be evaded & therefore amounted to nothing. Judges might resign, & then be re-appointed to increased salaries.
On the question
N. H. no. C^t no. P^a no. Del. no. M^d div^d. V^a ay. S. C. no. Geo. abs^t also Mas^{ts}. & N. J. & N. C.
M^r Randolph & M^r Madison then moved to add the following words to art. XI sect. 2. "nor increased by any Act of the Legislature which shall operate before the expiration of three years after the passing thereof."
On the question
N. H. no. C^t no. P^a no. Del. no. M^d ay. V^a ay. S. C. no. Geo. abs^t also Mas. N. J. & N. C.
Sect. 3. art. XI. being taken up, the following clause was postponed viz, "to the trial of impeachments of officers of the U. S." by which the jurisdiction of the supreme Court was extended to such cases.
M^r Madison & M^r Gov^r Morris moved to insert after the word "controversies" the words "to which the U. S. shall be a party," which was agreed to nem: con:
Doc^r Johnson moved to insert the words "this Constitution and the" before the word "laws."
M^r Madison doubted whether it was not going too far to extend the jurisdiction of the Court generally to cases arising under the Constitution & whether it ought not to be limited to cases of a Judiciary Nature. The right of expounding the Constitution in cases not of this nature ought not to be given to that Department.
The motion of Doc^r Johnson was agreed to nem: con: it being generally supposed that the jurisdiction given was constructively limited to cases of a Judiciary nature.
On motion of M^r Rutlidge the words "passed by the Legislature" were struck out, and after the words "U. S." were inserted nem. con: the words "and treaties made or which shall be made under their authority" conformably to a preceding amendment in another place.
The clause "in cases of impeachment," was postponed.
M^r Gov^r Morris wished to know what was meant by the words "In all the cases before-mentioned it (jurisdiction) shall be appellate with such exceptions &c.," whether it extended to matters of fact as well as law--and to cases of common law as well as civil law.
M^r Wilson. The Committee he believed meant facts as well as law & Common as well as Civil law. The jurisdiction of the federal Court of Appeals had he said been so construed.
M^r Dickinson moved to add after the word "appellate" the words "both as to law & fact" which was agreed to nem: con:
M^r Madison & M^r Gov^r Morris moved to strike out the beginning of the 3^d sect. "The jurisdiction of the supreme Court" & to insert the words "the Judicial power" which was agreed to nem: con:
The following motion was disagreed to, to wit to insert "In all the other cases beforementioned the Judicial power shall be exercised in such manner as the Legislature shall direct" Del. Virg^a ay. N. H. Con. P. M. S. C. G. no.
On a question for striking out the last sentence of the sect. 3. "The Legislature may assign &c."
N. H. ay. C^t ay. P^a ay. Del. ay. M^d ay. V^a ay. S. C. ay. Geo. ay.
M^r Sherman moved to insert after the words "between Citizens of different States" the words, "between Citizens of the same State claiming lands under grants of different States"--according to the provision in the 9th Art: of the Confederation--which was agreed to nem: con:
Adjourned.
TUESDAY AUGUST 28 1787. IN CONVENTION
M^r Sherman from the Committee to whom were referred several propositions on the 25^{th} instant, made the following report:--
That there be inserted after the 4 clause of 7^{th}. section
"Nor shall any regulation of commerce or revenue give preference to the ports of one State over those of another, or oblige vessels bound to or from any State to enter clear or pay duties in another and all tonnage, duties, imposts & excises laid by the Legislature shall be uniform throughout the U. S."
Art XI Sect. 3, It was moved to strike out the words "it shall be appellate" to insert the words "the supreme Court shall have appellate jurisdiction,"--in order to prevent uncertainty whether "it" referred to the _supreme Court_, or to the _Judicial power_.
On the question
N. H. ay. Mas. ay. C^t ay. N. J. abs^t. P^a ay. Del. ay. M^d no. V^a ay. N. C. ay. S. C. ay. Geo. ay.
Sect. 4. was so amended nem. con: as to read "The trial of all crimes (except in cases of impeachment) shall be by jury, and such trial shall be held in the State where the said crimes shall have been committed; but when not committed within any State, then the trial shall be at such place or places as the Legislature may direct." The object of this amendment was to provide for trial by jury of offences committed out of any State.
M^r Pinkney urged the propriety of securing the benefit of the Habeas corpus in the most ample manner, moved "that it should not be suspended but on the most urgent occasions, & then only for a limited time not exceeding twelve months."
M^r Rutlidge was for declaring the Habeas Corpus inviolable. He did not conceive that a suspension could ever be necessary at the same time through all the States.
M^r Gov^r Morris moved that "The privilege of the writ of Habeas Corpus shall not be suspended; unless where in cases of Rebellion or invasion the public safety may require it."
M^r Wilson doubted whether in any case a suspension could be necessary, as the discretion now exists with Judges, in most important cases to keep in Gaol or admit to Bail.
The first part of M^r Gov^r Morris' motion, to the word "unless" was agreed to nem: con:--on the remaining part;
N. H. ay. Mas. ay. C^t ay. P^a ay. Del. ay. M^d ay. V^a ay. N. C. no. S. C. no. Geo. no.
Sec. 5. of art: XI. was agreed to _nem_: con.[43]
[43] The vote on this section as stated in the printed Journal is not unanimous: the statement here is probably the right one.--Madison's Note.
Art: XII being taken up.
M^r Wilson & M^r Sherman moved to insert after the words "coin money" the words "nor emit bills of credit, nor make any thing but gold & silver coin a tender in payment of debts" making these prohibitions absolute, instead of making the measures allowable (as in the XIII art:) _with the consent of the Legislature of the U. S._
M^r Ghorum thought the purpose would be as well secured by the provisions of art: XIII which makes the consent of the Gen^l Legislature necessary, and that in that mode no opposition would be excited; whereas an absolute prohibition of paper money would rouse the most desperate opposition from its partizans.
M^r Sherman thought this a favorable crisis for crushing paper money. If the consent of the Legislature could authorize emissions of it, the friends of paper money would make every exertion to get into the Legislature in order to license it.
The question being divided; on the 1^{st} part--"nor emit bills of credit" N. H. ay. Mas. ay. C^t ay. P^a ay. Del. ay. M^d div^d. V^a no. N. C. ay. S. C. ay. Geo. ay.
The remaining part of M^r Wilson's & Sherman's motion was agreed to nem: con:
M^r King moved to add, in the words used in the Ordinance of Cong^r establishing new States, a prohibition on the States to interfere in private contracts.
M^r Gov^r Morris. This would be going too far. There are a thousand laws, relating to bringing actions--limitations, of actions & which affect contracts. The Judicial power of the U. S. will be a protection in cases within their jurisdiction; and within the State itself a majority must rule, whatever may be the mischief done among themselves.
M^r Sherman. Why then prohibit bills of credit?
M^r Wilson was in favor of M^r King's motion.
M^r Madison admitted that inconveniences might arise from such a prohibition but thought on the whole it would be overbalanced by the utility of it. He conceived however that a negative on the State laws could alone secure the effect. Evasions might and would be devised by the ingenuity of the Legislatures.
Col: Mason. This is carrying the restraint too far. Cases will happen that cannot be foreseen, where some kind of interference will be proper & essential. He mentioned the case of limiting the period for bringing actions on open account--that of bonds after a certain lapse of time--asking whether it was proper to tie the hands of the States from making provision in such cases?
M^r Wilson. The answer to these objections is that retrospective interferences only are to be prohibited.
M^r Madison. Is not that already done by the prohibition of ex post facto laws, which will oblige the Judges to declare such interferences null & void.
M^r Rutlidge moved instead of M^r King's Motion to insert--"nor pass bills of attainder nor retrospective[44] laws" on which motion
N. H. ay. C^t no. N. J. ay. P^a ay. Del. ay. M^d no. Virg^a no. N. C. ay. S. C. ay. Geo. ay.
[44] In the printed Journal--ex post facto.--Madison's Note.
M^r Madison moved to insert after the word "reprisal" (art. XII) the words "nor lay embargoes." He urged that such acts by the States would be unnecessary--impolitic--and unjust.
M^r Sherman thought the States ought to retain this power in order to prevent suffering & injury to their poor.
Col: Mason thought the amendment would be not only improper but dangerous, as the Gen^l Legislature would not sit constantly and therefore could not interpose at the necessary moments. He enforced his objection by appealing to the necessity of sudden embargoes during the war, to prevent exports, particularly in the case of a blockade.
M^r Gov^r Morris considered the provision as unnecessary; the power of regulating trade between State & State already vested in the Gen^l Legislature, being sufficient.
On the question
N. H. no. Mas. ay. C^t no. N. J. no. P^a no. Del. ay. M^d no. V^a no. N. C. no. S. C. ay. Geo. no.
M^r Madison moved that the words "nor lay imposts or duties on imports" be transferred from art: XIII where the consent of the Gen^l Legislature may license the act--into art: XII which will make the prohibition of the States absolute. He observed that as the States interested in this power by which they could tax the imports of their neighbors passing thro' their markets, were a majority, they could give the consent of the Legislature, to the injury of N. Jersey, N. Carolina &c.
M^r Williamson 2^{ded} the motion.
M^r Sherman thought the power might safely be left to the Legislature of the U. States.
Col: Mason observed that particular States might wish to encourage by impost duties certain manufactures for which they enjoyed natural advantages, as Virginia, the manufacture of Hemp &c.
M^r Madison. The encouragement of Manufactures in that mode requires duties not only on imports directly from foreign Countries, but from the other States in the Union, which would revive all the mischiefs experienced from the want of a Gen^l Government over commerce.[45]
[45] August 28, 1787, New York, Hamilton wrote to King: "I wrote to you some days since [August 20] to request you to inform me when there was a prospect of your finishing, as I intended to be with you, for certain reasons, before the conclusion.
"It is whispered here that some late changes in your scheme have taken place which give it a higher tone. Is this the case?"--King's _Life and Correspondence of Rufus King_, _I_, 258.
On the question
N. H. ay. Mas. no. C^t no. N. J. ay. P^a no. Del^a ay. M^d no. V^a no. N. C. ay. S. C. no. Geo. no.
Art: XII as amended agreed to nem: con:
Art: XIII being taken up. M^r King moved to insert after the word "imports" the words "or exports," so as to prohibit the States from taxing either, & on this question it passed in the affirmative.
N. H. ay. Mas. ay. C^t no. N. J. ay. P. ay. Del. ay. M^d no. V^a no. N. C. ay. S. C. no. Geo. no.
M^r Sherman moved to add after the word "exports"--the words "nor with such consent but for the use of the U. S."--so as to carry the proceeds of all State duties on imports & exports, into the common Treasury.
M^r Madison liked the motion as preventing all State imposts--but lamented the complexity we were giving to the commercial system.
M^r Gov^r Morris thought the regulation necessary to prevent the Atlantic States from endeavoring to tax the Western States--& promote their interest by opposing the navigation of the Mississippi which would drive the Western people into the arms of G. Britain.
M^r Clymer thought the encouragement of the Western Country was suicide on the old States. If the States have such different interests that they cannot be left to regulate their own manufactures without encountering the interests of other States, it is a proof that they are not fit to compose one nation.
M^r King was afraid that the regulation moved by M^r Sherman would too much interfere with the policy of States respecting their manufactures, which may be necessary. Revenue he reminded the House was the object of the general Legislature.
On M^r Sherman's motion
N. H. ay. Mas. no. C^t ay. N. J. ay. P^a ay. Del. ay. M^d no. V^a ay. N. C. ay. S. C. ay. Geo. ay.
Art XIII was then agreed to as amended.
Art. XIV was taken up.
Gen^l Pinkney was not satisfied with it. He seemed to wish some provision should be included in favor of property in slaves.
On the question on Art: XIV.
N. H. ay. Mas. ay. C^t ay. N. J. ay. P^a ay. Del. ay. M^d ay. V^a ay. N. C. ay. S. C. no. Geo. divided.
Art: XV. being taken up, the words "high misdemesnor," were struck out, and "other crime" inserted, in order to comprehend all proper cases; it being doubtful whether "high misdemeanor" had not a technical meaning too limited.
M^r Butler and M^r Pinkney moved "to require fugitive slaves and servants to be delivered up like criminals."
M^r Wilson. This would oblige the Executive of the State to do it at the public expence.
M^r Sherman saw no more propriety in the public seizing and surrendering a slave or servant, than a horse.
M^r Butler withdrew his proposition in order that some particular provision might be made apart from this article.
Art XV as amended was then agreed to nem: con:
Adjourned.
WEDNESDAY AUGUST 29^{TH}. 1787. IN CONVENTION
Art: XVI. taken up.
M^r Williamson moved to substitute in place of it, the words of the Articles of Confederation on the same subject. He did not understand precisely the meaning of the article.
M^r Wilson and Doc^r Johnson supposed the meaning to be that Judgments in one State should be the ground of actions in other States, & that acts of the Legislatures should be included, for the sake of Acts of insolvency &c.
M^r Pinkney moved to commit Art XVI with the following proposition "To establish uniform laws upon the subject of bankruptcies, and respecting the damages arising on the protest of foreign bills of exchange."
M^r Ghorum was for agreeing to the article, and committing the proposition.
M^r Madison was for committing both. He wished the Legislature might be authorized to provide for the _execution_ of Judgments in other States, under such regulations as might be expedient. He thought that this might be safely done, and was justified by the nature of the Union.
M^r Randolph said there was no instance of one nation executing judgments of the Courts of another nation. He moved the following proposition:
Executive or Judiciary shall be attested & exemplified under the seal thereof, such attestation and exemplification, shall be deemed in other States as full proof of the existence of that act--and its operation shall be binding in every other State, in all cases to which it may relate, and which are within the cognizance and jurisdiction of the State, wherein the said act was done."
On the question for committing Art: XVI with M^r Pinkney's motion
N. H. no. Mas. no. C^t ay. N. J. ay. P^a ay. Del. ay. M^d ay. V^a ay. P^a ay. N. C. ay. S. C. ay. Geo. ay.
The motion of M^r Randolph was also committed nem: con:
M^r Gov^r Morris moved to commit also the following proposition on the same subject.
"Full faith ought to be given in each State to the public acts, records, and judicial proceedings of every other State; and the Legislature shall by general laws, determine the proof and effect of such acts, records, and proceedings" and it was committed nem. contrad:
The Committee appointed for these references, were M^r Rutlidge, M^r Randolph, M^r Gorham, M^r Wilson, & M^r Johnson.
M^r Dickenson mentioned to the House that on examining Blackstone's Commentaries, he found that the term "ex post facto" related to criminal cases only; that they would not consequently restrain the States from retrospective laws in civil cases, and that some further provision for this purpose would be requisite.
Art: VII Sect. 6 by y^e Co[~m]ittee of eleven reported to be struck out (see the 24 instant) being now taken up.
M^r Pinkney moved to postpone the Report in favor of the following proposition--"That no act of the Legislature for the purpose of regulating the commerce of the U. S. with foreign powers among the several States, shall be passed without the assent of two thirds of the members of each House." He remarked that there were five distinct commercial interests. 1. the fisheries & W. India trade, which belonged to the N. England States. 2. the interest of N. York lay in a free trade. 3. Wheat & flour the Staples of the two middle States (N. J. & Penn^a). 4. Tob^o the staple of Maryl^d & Virginia & partly of N. Carolina. 5. Rice & Indigo, the staples of S. Carolina & Georgia. These different interests would be a source of oppressive regulations if no check to a bare majority should be provided. States pursue their interests with less scruple than individuals. The power of regulating commerce was a pure concession on the part of the S. States. They did not need the protection of the N. States at present.
M^r Martin 2^{ded} the motion.
Gen^l Pinkney said it was the true interest of the S. States to have no regulation of commerce; but considering the loss brought on the commerce of the Eastern States by the revolution, their liberal conduct towards the views[46] of South Carolina, and the interest the weak South^n States had in being united with the strong Eastern States, he thought it proper that no fetters should be imposed on the power of making commercial regulations, and that his constituents though prejudiced against the Eastern States, would be reconciled to this liberality. He had himself, he said, prejudices ag^{st} the Eastern States before he came here, but would acknowledge that he had found them as liberal and candid as any men whatever.
[46] He meant the permission to import slaves. An understanding on the two subjects of _navigation_ and _slavery_, had taken place between those parts of the Union, which explains the vote on the motion depending, as well as the language of Gen^l Pinkney & others.--Madison's Note.
M^r Clymer. The diversity of commercial interests of necessity creates difficulties, which ought not to be increased by unnecessary restrictions. The Northern & middle States will be ruined, if not enabled to defend themselves against foreign regulations.
M^r Sherman, alluding to M^r Pinkney's enumeration of particular interests, as requiring a security ag^{st} abuse of the power; observed that the diversity was of itself a security, adding that to require more than a majority to decide a question was always embarrassing as had been experienced in cases requiring the votes of nine States in Congress.
M^r Pinkney replied that his enumeration meant the five minute interests. It still left the two great divisions of Northern & Southern interests.
M^r Gov^r Morris, opposed the object of the motion as highly injurious. Preferences to american ships will multiply them, till they can carry the Southern produce cheaper than it is now carried.--A navy was essential to security, particularly of the S. States, and can only be had by a navigation act encouraging american bottoms & seamen. In those points of view then alone, it is the interest of the S. States that navigation acts should be facilitated. Shipping he said was the worst & most precarious kind of property, and stood in need of public patronage.
M^r Williamson was in favor of making two thirds instead of a majority requisite, as more satisfactory to the Southern people. No useful measure he believed had been lost in Congress for want of nine votes. As to the weakness of the Southern States, he was not alarmed on that account. The sickliness of their climate for invaders would prevent their being made an object. He acknowledged that he did not think the motion requiring 2/3 necessary in itself, because if a majority of the Northern States should push their regulations too far the S. States would build ships for themselves: but he knew the Southern people were apprehensive on this subject and would be pleased with the precaution.
M^r Spaight was against the motion. The Southern States could at any time save themselves from oppression, by building ships for their own use.
M^r Butler differed from those who considered the rejection of the motion as no concession on the part of the S. States. He considered the interest of these and of the Eastern States, to be as different as the interests of Russia and Turkey. Being notwithstanding desirous of conciliating the affections of the East: States, he should vote ag^{st} requiring 2/3 instead of a majority.
Col: Mason. If the Gov^t is to be lasting, it must be founded in the confidence & affections of the people, and must be so constructed as to obtain these. The _Majority_ will be governed by their interests. The Southern States are the _minority_ in both Houses. Is it to be expected that they will deliver themselves bound hand & foot to the Eastern States, and enable them to exclaim, in the words of Cromwell on a certain occasion--"the lord hath delivered them into our hands."
M^r Wilson took notice of the several objections and remarked that if every peculiar interest was to be secured, _unanimity_ ought to be required. The majority he said would be no more governed by interest than the minority. It was surely better to let the latter be bound hand and foot than the former. Great inconveniences had, he contended, been experienced in Congress from the article of confederation requiring nine votes in certain cases.
M^r Madison went into a pretty full view of the subject. He observed that the disadvantage to the S. States from a navigation act, lay chiefly in a temporary rise of freight, attended however with an increase of South^n as well as Northern Shipping--with the emigration of Northern Seamen & merchants to the Southern States--& with a removal of the existing & injurious retaliations among the States on each other. The power of foreign nations to obstruct our retaliating measures on them by a corrupt influence would also be less if a majority sh^d be made competent than if 2/3 of each House sh^d be required to legislative acts in this case. An abuse of the power would be qualified with all these good effects. But he thought an abuse was rendered improbable by the provision of 2 branches--by the independence of the Senate, by the negative of the Executive, by the interest of Connecticut & N. Jersey which were agricultural, not commercial States; by the interior interest which was also agricultural in the most commercial States, by the accession of Western States which w^d be altogether agricultural. He added that the Southern States would derive an essential advantage in the general security afforded by the increase of our maritime strength. He stated the vulnerable situation of them all, and of Virginia in particular. The increase of the coasting trade, and of seamen, would also be favorable to the S. States, by increasing, the consumption of their produce. If the wealth of the Eastern should in a still greater proportion be augmented, that wealth w^d contribute the more to the public wants, and be otherwise a national benefit.
M^r Rutlidge was ag^{st} the motion of his colleague. It did not follow from a grant of the power to regulate trade, that it would be abused. At the worst a navigation act could bear hard a little while only on the S. States. As we are laying the foundation for a great empire, we ought to take a permanent view of the subject and not look at the present moment only. He reminded the House of the necessity of securing the West India trade to this country. That was the great object, and a navigation act was necessary for obtaining it.
M^r Randolph said that there were features so odious in the constitution as it now stands, that he doubted whether he should be able to agree to it. A rejection of the motion would compleat the deformity of the system. He took notice of the argument in favor of giving the power over trade to a majority, drawn from the opportunity foreign powers would have of obstructing retaliatory measures if two thirds were made requisite. He did not think there was weight in that consideration. The difference between a majority & two thirds did not afford room for such an opportunity. Foreign influence would also be more likely to be exerted on the President who could require three fourths by his negative. He did not mean however to enter into the merits. What he had in view was merely to pave the way for a declaration which he might be hereafter obliged to make if an accumulation of obnoxious ingredients should take place, that he could not give his assent to the plan.
M^r Gorham. If the Government is to be so fettered as to be unable to relieve the Eastern States what motive can they have to join in it, and thereby tie their own hands from measures which they could otherwise take for themselves. The Eastern States were not led to strengthen the Union by fear for their own safety. He deprecated the consequences of disunion, but if it should take place it was the Southern part of the Continent that had most reason to dread them. He urged the improbability of a combination against the interest of the Southern States, the different situations of the Northern & Middle States being a security against it. It was moreover certain that foreign ships would never be altogether excluded especially those of Nations in treaty with us.
On the question to postpone in order to take up M^r Pinkney's motion
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. no. Geo. ay.
The Report of the Committee for striking out Sect. 6. requiring two thirds of each House to pass a navigation act was then agreed to, nem: con:
M^r Butler moved to insert after Art: XV. "If any person bound to service or labor in any of the U. States shall escape into another State, he or she shall not be discharged from such service or labor, in consequence of any regulations subsisting in the State to which they escape, but shall be delivered up to the person justly claiming their service or labor," which was agreed to nem: con:
Art: XVII being taken up, M^r Gov^r Morris moved to strike out the two last sentences, to wit "If the admission be consented to, the new States shall be admitted on the same terms with the original States. But the Legislature may make conditions with the new States, concerning the public debt which shall be then subsisting."--He did not wish to bind down the Legislature to admit Western States on the terms here stated.
M^r Madison opposed the motion, insisting that the Western States neither would nor ought to submit to a union which degraded them from an equal rank with the other States.
Col: Mason. If it were possible by just means to prevent emigrations to the Western Country, it might be good policy. But go the people will as they find it for their interest, and the best policy is to treat them with that equality which will make them friends not enemies.
M^r Gov^r Morris did not mean to discourage the growth of the Western Country. He knew that to be impossible. He did not wish however to throw the power into their hands.
M^r Sherman, was ag^{st} the motion & for fixing an equality of privileges by the Constitution.
M^r Langdon was in favor of the motion, he did not know but circumstances might arise which would render it inconvenient to admit new States on terms of equality.
M^r Williamson was for leaving the Legislature free. The existing _small_ States enjoy an equality now, and for _that_ reason are admitted to it in the Senate. This reason is not applicable to new Western States.
On M^r Gov^r Morris's motion for striking out.
N. H. ay. Mas. ay. C^t ay. N. J. ay. P^a ay. Del. ay. M^d no. V^a no. N. C. ay. S. C. ay. Geo. ay.
M^r L. Martin & M^r Gov^r Morris moved to strike out of art XVII, "but to such admission the consent of two thirds of the members present shall be necessary." Before any question was taken on this motion,
M^r Gov^r Morris moved the following proposition as a substitute for the XVII Art:
"New States may be admitted by the Legislature into this Union; but no new State shall be erected within the limits of any of the present States, without the consent of the Legislature of such State, as well as of the Gen^l Legislature."
The first part to Union inclusive was agreed to nem: con:
M^r L. Martin opposed the latter part. Nothing he said would so alarm the limited States as to make the consent of the large States claiming the Western lands, necessary to the establishment of new States within their limits. It is proposed to guarantee the States. Shall Vermont be reduced by force in favor of the States claiming it? Frankland & the Western county of Virginia were in a like situation.
On M^r Gov^r Morris's motion to substitute &c. it was agreed to.
N. H. no. Mass. ay. C^t no. N. J. no. P^a ay. Del. no. M^d no. V^a ay. N. C. ay. S. C. ay. Geo. ay.
Art: XVII--before the House, as amended.
M^r Sherman was against it. He thought it unnecessary. The Union cannot dismember a State without its consent.
M^r Langdon thought there was great weight in the argument of M^r Luther Martin, and that the proposition substituted by M^r Gov^r Morris would excite a dangerous opposition to the plan.
M^r Gov^r Morris thought on the contrary that the small States would be pleased with the regulation, as it holds up the idea of dismembering the large States.
M^r Butler. If new States were to be erected without the consent of the dismembered States, nothing but confusion would ensue. Whenever taxes should press on the people, demagogues would set up their schemes of new States.
Doc^r Johnson agreed in general with the ideas of M^r Sherman, but was afraid that as the clause stood, Vermont would be subjected to N. York, contrary to the faith pledged by Congress. He was of opinion that Vermont ought to be compelled to come into the Union.
M^r Langdon said his objections were connected with the case of Vermont. If they are not taken in, & remain exempt from taxes, it would prove of great injury to N. Hampshire and the other neighbouring States.
M^r Dickinson hoped the article would not be agreed to. He dwelt on the impropriety of requiring the small States to secure the large ones in their extensive claims of territory.
M^r Wilson. When the _majority_ of a State wish to divide they can do so. The aim of those in opposition to the article, he perceived was that the Gen^l Government should abet the _minority_, & by that means divide a State against its own consent.
M^r Gov^r Morris. If the forced division of the States is the object of the new system, and is to be pointed ag^{st} one or two States, he expected the Gentlemen from these would pretty quickly leave us.
Adjourned.
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.
"The Legislature shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the U. States; and nothing in this constitution contained, shall be so construed as to prejudice any claims either of the U. S. or of any particular State."--The postponem^t ag^d to nem. con.
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
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 Benj^n 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]
[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]
[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.
II.
_Sect._ 1. The executive power shall be vested in a president of the United States of America. He shall hold his office during the term of four years, and, altogether with the vice-president, chosen for the same term, be elected in the following manner:
Each State shall appoint, in such manner as the legislature thereof may direct, a number of electors, equal to the whole number of senators and representatives to which the state may be entitled in Congress: but no senator or representative shall be appointed an elector, nor any person holding an office of trust or profit under the United States.
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, and 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 chuse by ballot one of them for president; and if no person have a majority, then from the five highest on the list the said house shall in like manner choose the president. But in choosing the president, the votes shall be taken by states and not per capita,[78] the representation from each state having one vote. A quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. In every case, after the choice of the president by the representatives,[79] 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 by ballot the vice-president.
[78] "and not per capita" struck out by Madison.
[79] "by the representatives" struck out by Madison.
The Congress may determine the time of chusing the electors, and the time in[80] which they shall give their votes; but the election shall be on the same day[81] throughout the United States.
[80] The words "day on" substituted by Madison.
[81] "but the election shall be on the same day" struck out & "which day shall be the same" inserted by Madison.
No person except a natural born citizen, or a citizen of the United States, at the time of the adoption of this constitution, shall be eligible to the office of president; neither shall any person be eligible to that office who shall not have attained to the age of thirty-five years, and been fourteen years a resident within the United States.
In case of the removal of the president from office, or of his death, resignation, or inability to discharge the powers and duties of the said office, the same shall devolve on the vice-president, and the Congress may by law provide for the case of removal, death, resignation or inability, both of the president and vice-president, declaring what officer shall then act as president, and such officer shall act accordingly, until the disability be removed, or the period for chusing another president arrive.[82]
[82] "the period for chusing another president arrive" struck out and "a president be chosen" inserted by Madison.
The president shall, at stated times, receive a fixed compensation for his services, which shall neither be encreased nor diminished during the period for which he shall have been elected.
Before he enter on the execution of his office, he shall take the following oath or affirmation: "I ----, do solemnly swear (or affirm) that I will faithfully execute the office of president of the United States, and will to the best of my judgment and power, preserve, protect and defend the constitution of the United States."
_Sect._ 2. The president shall be commander in chief of the army and navy of the United States, and of the militia of the several States: he 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, when called into the actual service of the United States,[83] and he shall have power to grant reprieves and pardons for offences against the United States, except in cases of impeachment.
[83] It so appears in the printed copy, but the clause "when called into the actual service of the United States" was intended to follow immediately after "militia of the several States."
He shall have power, by and with the advice and consent of the senate, to make treaties, provided two-thirds of the senators present concur; and he shall nominate, and by and with the advice and consent of the senate, shall appoint ambassadors, other public ministers and consuls, judges of the supreme court, and all other officers of the United States, whose appointments are not herein otherwise provided for.
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 their next session.
_Sect._ 3. He shall from time to time give to the Congress information of the state of the union, and recommend to their consideration such measures as he shall judge necessary and expedient: he may, on extraordinary occasions, convene both houses, or either of them, and in case of disagreement between them, with respect to the time of adjournment, he may adjourn them to such time as he shall think proper: he shall receive ambassadors and other public ministers: he shall take care that the laws be faithfully executed, and shall commission all the officers of the United States.
_Sect._ 4. The president, vice-president and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of treason, bribery, or other high crimes and misdemeanors.
III.
_Sect._ 1. The judicial power of the United States, both in law and equity, shall be vested in one supreme court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.
_Sect._ 2. The judicial power shall extend to all cases, both in law and equity, arising under this constitution, the laws of the United States, and treaties made, or which shall be made, under their authority. To all cases affecting ambassadors, other public ministers and consuls. To all cases of admiralty and maritime jurisdiction. To controversies to which the United States shall be a party. To controversies between two or more States; between a state and citizens of another state; between citizens of different States; between citizens of the same state claiming lands under grants of different States, and between a state, or the citizens thereof, and foreign States, citizens or subjects.
In cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party, the supreme court shall have original jurisdiction. In all the other cases before mentioned, the supreme court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.
The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the state where the said crimes shall have been committed; but when not committed within any state, the trial shall be at such place or places as the Congress may by law have directed.
_Sect._ 3. Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.
The Congress shall have power to declare the punishment of treason, but no attainder of treason shall work corruption of blood nor forfeiture, except during the life of the person attainted.
IV.
_Sect._ 1. Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records and proceedings shall be proved, and the effect thereof.
_Sect._ 2. The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.
A person charged in any state with treason, felony, or other crime, who shall flee from justice, and be found in another state, shall on demand of the executive authority of the state from which he fled be delivered up, and removed to the state having jurisdiction of the crime.
No person legally held to service or labour in one state, escaping into another, shall in consequence of regulations subsisting therein be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labour may be due.
_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 Congress.
The Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States: and nothing in this Constitution shall be so construed as to prejudice any claims of the United States, or of any particular state.
_Sect._ 4. The United States shall guarantee to every state in this union a Republican form of government, and shall protect each of them against invasion; and on application of the legislature or executive, against domestic violence.
V.
The Congress, whenever two-thirds of both houses shall deem necessary, or on the application of two-thirds[84] of the legislatures[85] 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[86] the legislatures[87] 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 ----[88] and[89] ---- section[90] of[91] article.
[84] "of two thirds" struck out by Madison.
[85] "of two-thirds" inserted by Madison.
[86] "three-fourths at least of" struck out by Madison.
[87] "of three-fourths" inserted by Madison.
[88] "1 & 4 clauses in the 9" inserted by Madison.
[89] "and" struck out by Madison.
[90] Changed to "sections" by Madison.
[91] "the first" inserted by Madison.
VI.
All debts contracted and engagements entered into before the adoption of this Constitution shall be as valid against the United States under this Constitution as under the confederation.
This constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, any thing in the constitution or laws of any state to the contrary notwithstanding.
The senators and representatives beforementioned, and the members of the several state legislatures, and all executive and judicial officers, both of the United States and of the several States, shall be bound by oath or affirmation, to support this constitution; but no religious test shall ever be required as a qualification to any office or public trust under the United States.
VII.
The ratification of the conventions of nine States, shall be sufficient for the establishment of this constitution between the States so ratifying the same.
LETTER.[92]
[92] The draft of the letter accompanied the draft of the Constitution, but was not printed with it. The Journal says (Sept. 12): "The draft of a letter to Congress being at the same time reported, was read once throughout; and afterwards agreed to by paragraphs." (_Const. MSS. and Journal_, p. 367.) The draft is in the handwriting of Gouverneur Morris and was undoubtedly prepared by him. It was turned over to Washington by Jackson with the other papers of the convention. The draft of the Constitution must have been among those papers he destroyed. Probably it too was written by Morris. The letter having been accepted September 12, was printed with the final Constitution September 17. It does not appear to have caused debate.
We have now the Honor to submit to the Consideration of the United States in Congress assembled that Constitution which has appeared to us the most advisable.
The Friends of our Country have long seen and desired that the Power of making War Peace and Treaties, that of levying Money & regulating Commerce and the correspondent executive and judicial Authorities should be fully and effectually vested in the general Government of the Union. But the Impropriety of delegating such extensive Trust to one Body of Men is evident. Hence results the Necessity of a different organization.
It is obviously impracticable in the foederal Government of these States to secure all Rights of independent Sovereignty to each and yet provide for the Interest and Safety of all. Individuals entering into Society must give up a Share of Liberty to preserve the Rest. The Magnitude of the Sacrifice must depend as well on Situation and Circumstances as on the Object to be obtained. It is at all times difficult to draw with Precision the Line between those Rights which must be surrendered and those which may be reserved. And on the present Occasion this Difficulty was increased by a Difference among the several States as to their Situation Extent Habits and particular Interests.
In all our Deliberations on this Subject we kept steadily in our View that which appears to us the greatest Interest of every true American The Consolidation of our Union in which is involved our Prosperity Felicity Safety perhaps our national Existence. This important Consideration seriously and deeply impressed on our Minds led each State in the Convention to be less rigid in Points of inferior Magnitude than might have been otherwise expected. And thus the Constitution which we now present is the Result of a Spirit of Amity and of that mutual Deference & Concession which the Peculiarity of our political Situation rendered indispensable.
That it will meet the full and entire approbation of every State is not perhaps to be expected. But each will doubtless consider that had her Interests been alone consulted the Consequences might have been particularly disagreable or injurious to others. That it is liable to as few Exceptions as could reasonably have been expected we hope and believe. That it may promote the lasting Welfare of that Country so dear to us all and secure her Freedom and Happiness is our most ardent Wish--
M^r Williamson moved to reconsider the clause requiring three fourths of each House to overrule the negative of the President, in order to strike out 3/4 and insert 2/3. He had he remarked himself proposed 3/4 instead of 2/3, but he had since been convinced that the latter proportion was the best. The former puts too much in the power of the President.
M^r Sherman was of the same opinion; adding that the States would not like to see so small a minority and the President, prevailing over the general voice. In making laws regard should be had to the sense of the people, who are to be bound by them, and it was more probable that a single man should mistake or betray this sense than the Legislature.
M^r Gov^r Morris. Considering the difference between the two proportions numerically, it amounts in one House to two members only; and in the others to not more than five; according to the numbers of which the Legislature is at first to be composed. It is the interest moreover of the distant States to prefer 3/4 as they will be oftenest absent and need the interposing check of the President. The excess rather than the deficiency, of laws was to be dreaded. The example of N. York shews that 2/3 is not sufficient to answer the purpose.
M^r Hamilton added his testimony to the fact that 2/3 in N. York had been ineffectual either where a popular object, or a legislative faction operated; of which he mentioned some instances.
M^r Gerry. It is necessary to consider the danger on the other side also. 2/3 will be a considerable, perhaps a proper security. 3/4 puts too much in the power of a few men. The primary object of the revisionary check in the President is not to protect the general interest, but to defend his own department. If 3/4 be required, a few Senators having hopes from the nomination of the President to offices, will combine with him and impede proper laws. Making the vice-President Speaker increases the danger.
M^r Williamson was less afraid of too few than of too many laws. He was most of all afraid that the repeal of bad laws might be rendered too difficult by requiring 3/4 to overcome the dissent of the President.
Col: Mason had always considered this as one of the most exceptionable parts of the System. As to the numerical argument of M^r Gov^r Morris, little arithmetic was necessary to understand that 3/4 was more than 2/3, whatever the numbers of the Legislature might be. The example of New York depended on the real merits of the laws. The Gentlemen citing it, had no doubt given their own opinions. But perhaps there were others of opposite opinions who could equally paint the abuses on the other side. His leading view was to guard against too great an impediment to the repeal of laws.
M^r Gov^r Morris dwelt on the danger to the public interest from the instability of laws, as the most to be guarded against. On the other side there could be little danger. If one man in office will not consent where he ought, every fourth year another can be substituted. This term was not too long for fair experiments. Many good laws are not tried long enough to prove their merit. This is often the case with new laws opposed to old habits. The Inspection laws of Virginia & Maryland to which all are now so much attached were unpopular at first.
M^r Pinkney was warmly in opposition to 3/4 as putting a dangerous power in the hands of a few Senators headed by the President.
M^r Madison. When 3/4 was agreed to, the President was to be elected by the legislature and for seven years. He is now to be elected by the people and for four years. The object of the revisionary power is two fold. 1. to defend the Executive rights 2. to prevent popular or factious injustice. It was an important principle in this & in the State Constitutions to check legislative injustice and encroachments. The Experience of the States had demonstrated that their checks are insufficient. We must compare the danger from the weakness of 2/3 with the danger from the strength of 3/4. He thought on the whole the former was the greater. As to the difficulty of repeals it was probable that in doubtful cases the policy would soon take place of limiting the duration of laws so as to require renewal instead of repeal.
The reconsideration being agreed to. On the question to insert 2/3 in place of 3/4.
N. H. div^d. Mas. no. C^t ay. N. J. ay. P^a no. Del. no. M^d ay. M^r McHenry no. V^a no. Gen^l Washington M^r Blair, M^r Madison no. Col. Mason, M^r Randolph ay. N. C. ay. S. C. ay. Geo. ay.
M^r Williamson, observed to the House that no provision was yet made for juries in Civil cases and suggested the necessity of it.
M^r Gorham. It is not possible to discriminate equity cases from those in which juries are proper. The Representatives of the people may be safely trusted in this matter.
M^r Gerry urged the necessity of Juries to guard ag^{st} corrupt Judges. He proposed that the Committee last appointed should be directed to provide a clause for securing the trial by Juries.
Col: Mason perceived the difficulty mentioned by M^r Gorham. The jury cases cannot be specified. A general principle laid down on this and some other points would be sufficient. He wished the plan had been prefaced with a Bill of Rights, & would second a Motion if made for the purpose. It would give great quiet to the people; and with the aid of the State declarations, a bill might be prepared in a few hours.
M^r Gerry concurred in the idea & moved for a Committee to prepare a Bill of Rights. Col: Mason 2^{ded} the motion.
M^r Sherman, was for securing the rights of the people where requisite. The State Declarations of Rights are not repealed by this Constitution; and being in force are sufficient. There are many cases where juries are proper which cannot be discriminated. The Legislature may be safely trusted.
Col: Mason. The laws of the U. S. are to be paramount to State Bills of Rights. On the question for a Com^e to prepare a Bill of Rights
N. H. no. Mas. abs^t. C^t no. N. J. no. P^a no. Del. no. M^d no. V^a no. N. C. no. S. C. no. Geo. no.
The Clause relating to exports being reconsidered, at the instance of Col: Mason, who urged that the restriction on the States would prevent the incidental duties necessary for the inspection & safekeeping of their produce, and be ruinous to the Staple States, as he called the five Southern States, he moved as follows--"provided nothing herein contained shall be construed to restrain any State from laying duties upon exports for the sole purpose of defraying the charges of inspecting, packing, storing and indemnifying the losses in keeping the commodities in the care of public officers, before exportation." In answer to a remark which he anticipated, to wit, that the States could provide for these expences, by a tax in some other way, he stated the inconveniency of requiring the Planters to pay a tax before the actual delivery for exportation.
M^r Madison 2^{ded} the motion. It would at least be harmless; and might have the good effect of restraining the States to bona fide duties for the purpose, as well as of authorizing explicitly such duties; tho' perhaps the best guard against an abuse of the power of the States on this subject, was the right in the Gen^l Government to regulate trade between State & State.
M^r Gov^r Morris saw no objection to the motion. He did not consider the dollar per Hhd laid on Tob^o in Virg^a as a duty on exportation, as no drawback would be allowed on Tob^o taken out of the Warehouse for internal consumption.
M^r Dayton was afraid the proviso w^d enable Pennsylv^a to tax N. Jersey under the idea of Inspection duties of which Pen^a would Judge.
M^r Gorham & M^r Langdon, thought there would be no security if the proviso sh^d be agreed to, for the States exporting thro' other States, ag^{st} these oppressions of the latter. How was redress to be obtained in case duties should be laid beyond the purpose expressed?
M^r Madison. There will be the same security as in other cases. The jurisdiction of the supreme Court must be the source of redress. So far only had provision been made by the plan ag^{st} injurious acts of the States. His own opinion was, that this was sufficient. A negative on the State laws alone could meet all the shapes which these could assume. But this had been overruled.
M^r Fitzimmons. Incidental duties on Tob^o & flour never have been & never can be considered as duties on exports.
M^r Dickinson. Nothing will save the States in the situation of N. Hampshire N. Jersey Delaware &c. from being oppressed by their neighbors, but requiring the assent of Cong^s to inspection duties. He moved that this assent sh^d accordingly be required.
M^r Butler 2^{ded} the motion.
Adjourned.
THURSDAY SEP^R 13. 1787. IN CONVENTION
Col. Mason.[93] He had moved without success for a power to make sumptuary regulations. He had not yet lost sight of his object. After descanting on the extravagance of our manners, the excessive consumption of foreign superfluities, and the necessity of restricting it, as well with oeconomical as republican views, he moved that a Committee be appointed to report articles of association for encouraging by the advice the influence and the example of the members of the Convention, oeconomy frugality and american manufactures.
[93] The dissensions among the Virginia delegates had leaked out, for Joseph Jones, Fredericksburg, September 13, 1787, wrote to Madison that a rumor of their disagreement was current in Virginia.--Chicago Historical Society MSS.
Doc^r Johnson 2^{ded} the motion which was without debate agreed to, nem: con: and a Committee appointed, consisting of Col: Mason, Doc^r Franklin, M^r Dickenson, Doc^r Johnson and M^r Livingston.[94]
[94] This motion, & appointment of the Co[~m]ittee, not in the printed Journal. No report was made by the Com^e--Madison's Note.
Col: Mason renewed his proposition of yesterday on the subject of inspection laws, with an additional clause giving to Congress a controul over them in case of abuse--as follows:
"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, and 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 and controul of Congress."
There was no debate & on the question
N. H. ay. Mas. ay. C^t ay. P^a no. Del. no. M^d ay. V^a ay. N. C. ay. S. C. no. Geo. ay.
The Report from the committee of stile & arrangement, was taken up, in order to be compared with the articles of the plan as agreed to by the House & referred to the Committee, and to receive the final corrections and sanction of the Convention.
Art: 1, sect. 2. On motion of M^r Randolph the word "servitude" was struck out, and "service" unanimously[95] inserted, the former being thought to express the condition of slaves, & the latter the obligations of free persons.
[95] See page 372 of the printed Journal.--Madison's Note.
M^r Dickenson & M^r Wilson moved to strike out, "and direct taxes," from sect. 2, art. 1, as improperly placed in a clause relating merely to the Constitution of the House of Representatives.
M^r Gov^r Morris. The insertion here was in consequence of what had passed on this point; in order to exclude the appearance of counting the negroes in _the Representation_. The including of them may now be referred to the object of direct taxes, and incidentally only to that of Representation.
On the motion to strike out "and direct taxes" from this place
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.
Art. 1, sect. 7.--"if any bill shall not be returned by the president within ten days (sundays excepted) after it shall have been presented to him &c."
M^r Madison moved to insert between "after" and "it" in sect. 7, Art. 1 the words "the day on which," in order to prevent a question whether the day on which the bill be presented ought to be counted or not as one of the ten days.
M^r Randolph 2^{ded} the motion.
M^r Governe^r Morris. The amendment is unnecessary. The law knows no fractions of days.
A number of members being very impatient & calling for the 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. no. S. C. no. Geo. no.--
Doc^r Johnson made a further report from the Committee of stile &c. of the following resolutions to be substituted for 22 & 23 articles.
"Resolved that the preceding Constitution be laid before the U. States in Congress assembled, and that it is the opinion of this Convention, that it should afterwards be submitted to a Convention of Delegates chosen in each State by the people thereof, under the recommendation of its Legislature, for their assent & ratification; & that each Convention assenting & ratifying the same should give notice thereof to the U. S. in Cong^s assembled.
"Resolved that it is the opinion of this Convention that as soon as the Conventions of nine States, shall have ratified this Constitution, the U. S. in Cong^s assembled should fix a day on which electors should be appointed by the States which shall have ratified the same; and a day on which the Electors should assemble to vote for the President; and the time and place for commencing proceedings under this Constitution--That after such publication the Electors should be appointed, and the Senators and Representatives elected: That the Electors should meet on the day fixed for the election of the President, and should transmit their votes certified signed, sealed and directed, as the Constitution requires, to the Secretary of the U. States in Cong^s assembled: that the Senators and Representatives should convene at the time & place assigned: that the Senators should appoint a President for the sole purpose of receiving, opening, and counting the votes for President, and that after he shall be chosen, the Congress, together with the President should without delay proceed to execute this Constitution."
Adjourned.
FRIDAY SEP^R 14^{TH}. 1787. IN CONVENTION
The Report of the Committee of stile & arrangement being resumed,
M^r Williamson moved to reconsider in order to increase the number of Representatives fixed for the first Legislature. His purpose was to make an addition of one half generally to the number allotted to the respective States; and to allow two to the smallest States.
On this motion
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. no. Geo. no.
Art. I. sect. 3. the words "by lot"[96] were struck out nem: con: on motion of M^r Madison, that some rule might prevail in the rotation that would prevent both the members from the same State from going out at the same time.
[96] "By lot" had been reinstated from the Report of five Aug. 6. as a correction of the printed report by the Com^e of stile & arrangement.--Madison's Note.
"Ex officio" struck out of the same section as superfluous; nem: con; and "or affirmation" after "oath" inserted also unanimously.
M^r Rutlidge and M^r Gov^r Morris moved "that persons impeached be suspended from their office until they be tried and acquitted."
M^r Madison. The President is made too dependent already on the Legislature by the power of one branch to try him in consequence of an impeachment by the other. This intermediate suspension, will put him in the power of one branch only. They can at any moment, in order to make way for the functions of another who will be more favorable to their views, vote a temporary removal of the existing magistrate.
M^r King concurred in the opposition to the amendment.
On the question to agree to it
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. ay. Geo. ay.
Art. I. sect. 4. "except as to the places of choosing Senators" was added nem: con: to the end of the first clause, in order to exempt the seats of Gov^t in the States from the power of Congress.
Art. I. Sect. 5. "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."
Col: Mason & M^r Gerry moved to insert after the word "parts," the words "of the proceedings of the Senate" so as to require publication of all the proceedings of the House of Representatives.
It was intimated on the other side that cases might arise where secrecy might be necessary in both Houses. Measures preparatory to a declaration of war in which the House of Rep^s was to concur, were instanced.
On the question, it passed in the negative.
N. H. no. (Rh. I. abs.) Mas. no. Con: no,(N. Y. abs.) N. J. no. Pen. ay. Del. no. Mary. ay. Virg. no. N. C. ay. S. C. div^d. Geor. no.
M^r Baldwin observed that the clause, Art. I. Sect. 6. declaring that no member of Cong^s "during the time for which he was elected, shall be appointed to any Civil office under the authority of the U. S. which shall have been created, or the emoluments whereof shall have been increased during such time," would not extend to offices _created by the Constitution_; and the salaries of which would be created, _not increased_ by Cong^s at their first session. The members of the first Cong^s consequently might evade the disqualification in this instance.--He was neither seconded nor opposed; nor did any thing further pass on the subject.
Art. I. Sect. 8. The Congress "may by joint ballot appoint a Treasurer"
M^r Rutlidge moved to strike out this power, and let the Treasurer be appointed in the same manner with other officers.
M^r Gorham & M^r King said that the motion, if agreed to, would have a mischievous tendency. The people are accustomed & attached to that mode of appointing Treasurers, and the innovation will multiply objections to the system.
M^r Gov^r Morris remarked that if the Treasurer be not appointed by the Legislature, he will be more narrowly watched, and more readily impeached.
M^r Sherman. As the two Houses appropriate money, it is best for them to appoint the officer who is to keep it; and to appoint him as they make the appropriation, not by joint but several votes.
Gen^l Pinkney. The Treasurer is appointed by joint ballot in South Carolina. The consequence is that bad appointments are made, and the Legislature will not listen to the faults of their own officer.
On the motion to strike out
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. ay. Geo. ay.
Art I sect. 8. "but all such duties imposts & excises, shall be uniform throughout the U. S." were unanimously annexed to the power of taxation.
To define & punish piracies and felonies on the high seas, and "punish" offences against the law of nations.
M^r Gov^r Morris moved to strike out "punish" before the words "offences ag^{st} the law of nations," so as to let these be _definable_ as well as punishable, by virtue of the preceding member of the sentence.
M^r Wilson hoped the alteration would by no means be made. To pretend to _define_ the law of nations which depended on the authority of all the civilized nations of the world, would have a look of arrogance, that would make us ridiculous.
M^r Gov^r Morris. The word _define_ is proper when applied to _offences_ in this case; the law of nations being often too vague and deficient to be a rule.
On the question to strike out the word "punish" it passed in the affirmative
N. H. ay. Mas. no. C^t ay. N. J. ay. P^a no. Del. ay. M^d no. V^a no. N. C. ay. S. C. ay. Geo. no.
Doc^r Franklin moved[97] to add after the words "post roads" Art. I. Sect. 8. "a power to provide for cutting canals where deemed necessary."
[97] This motion by D^r Franklin not stated in the printed Journal, as are some other motions.--Madison's Note.
Wilson 2^{ded} the motion.
M^r Sherman objected. The expence in such cases will fall on the U. States, and the benefit accrue to the places where the canals may be cut.
M^r Wilson. Instead of being an expence to the U. S. they may be made a source of revenue.
M^r Madison suggested an enlargement of the motion into a power "to grant charters of incorporation where the interest of the U. S. might require & the legislative provisions of individual States may be incompetent." His primary object was however to secure an easy communication between the States which the free intercourse now to be opened, seemed to call for. The political obstacles being removed, a removal of the natural ones as far as possible ought to follow. M^r Randolph 2^{ded} the proposition.
M^r King thought the power unnecessary.
M^r Wilson. It is necessary to prevent _a State_ from obstructing the _general_ welfare.
M^r King. The States will be prejudiced and divided into parties by it. In Philad^a & New York. It will be referred to the establishment of a Bank, which has been a subject of contention in those Cities. In other places it will be referred to mercantile monopolies.
M^r Wilson mentioned the importance of facilitating by canals, the communication with the Western settlements. As to Banks he did not think with M^r King that the power in that point of view would excite the prejudices & parties apprehended. As to mercantile monopolies they are already included in the power to regulate trade.
Col: Mason was for limiting the power to the single case of Canals. He was afraid of monopolies of every sort, which he did not think were by any means already implied by the Constitution as supposed by M^r Wilson.
The motion being so modified as to admit a distinct question specifying & limited to the case of canals,
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. ay.
The other part fell of course, as including the power rejected.
M^r Madison & M^r Pinkney then moved to insert in the list of powers vested in Congress a power--"to establish an University, in which no preferences or distinctions should be allowed on account of Religion."
M^r Wilson supported the motion.
M^r Gov^r Morris. It is not necessary. The exclusive power at the Seat of Government, will reach the object.
On the question
N. H. no. Mas. no. Con^t div^d. D^r Johnson ay. M^r Sherman no. N. J. no. P^a ay. Del. no. M^d no. V^a ay. N. C. ay. S. C. ay. Geo. no.
Col: Mason, being sensible that an absolute prohibition of standing armies in time of peace might be unsafe, and wishing at the same time to insert something pointing out and guarding against the danger of them, moved to preface the clause (Art. 1 sect. 8) "To provide for organizing, arming and disciplining the militia &c." with the words "And that the liberties of the people may be better secured against the danger of standing armies in time of peace." M^r Randolph 2^{ded} the motion.
M^r Madison was in favor of it. It did not restrain Congress from establishing a military force in time of peace if found necessary; and as armies in time of peace are allowed on all hands to be an evil, it is well to discountenance them by the Constitution, as far as will consist with the essential power of the Gov^t on that head.
M^r Gov^r Morris opposed the motion as setting a dishonorable mark of distinction on the military class of Citizens.
M^r Pinkney & M^r Bedford concurred in the opposition.
On the question
N. H. no. Mas. no. C^t no. N. J. no. P^a no. Mar^d no. V^a ay. N. C. no. S. C. no. Geo. ay.
Col: Mason moved to strike out from the clause (art. 1 sect 9.) "no bill of attainder nor any ex post facto law shall be passed" the words "nor any ex post facto law." He thought it not sufficiently clear that the prohibition meant by this phrase was limited to cases of a criminal nature, and no Legislature ever did or can altogether avoid them in Civil cases.
M^r Gerry 2^{ded} the motion but with a view to extend the prohibition to "civil cases," which he thought ought to be done.
On the question; all the States were--no.
M^r Pinkney & M^r Gerry, moved to insert a declaration "that the liberty of the Press should be inviolably observed."
M^r Sherman. It is unnecessary. The power of Congress does not extend to the Press. On the question, it passed in the negative
N. H.[98] no. Mas. ay. C^t no. N. J. no. P^a no. Del. no. M^d ay. V^a ay. N. C. no. S. C. ay. Geo. no.
[98] In the printed Journal N. Hampshire ay.--Madison's Note.
Art 1. Sect. 9. "no capitation tax shall be laid, unless &c."
M^r Read moved to insert after "capitation" the words, "or other direct tax." He was afraid that some liberty might otherwise be taken to saddle the States, with a readjustment by this rule, of past requisitions of Cong^s--and that his amendment by giving another cast to the meaning would take away the pretext. M^r Williamson 2^{ded} the motion which was agreed to. On motion of Col: Mason "or enumeration" inserted after, as explanatory of "Census" Con. & S. C. only, no.[99]
[99] The words "Con. & S. C. only no" are in the handwriting of John C. Payne, Madison's brother-in-law.
At the end of the clause "no tax or duty shall be laid on articles exported from any State" was added the following amendment conformably to a vote on the [31] of [August] viz--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.
Col. Mason moved a clause requiring "that an Account of the public expenditures should be annually published" M^r Gerry 2^{ded} the motion,
M^r Gov^r Morris urged that this w^d be impossible in many cases.
M^r King remarked, that the term expenditures went to every minute shilling. This would be impracticable. Cong^s might indeed make a monthly publication, but it would be in such general statements as would afford no satisfactory information.
M^r Madison proposed to strike out "annually" from the motion & insert "from time to time," which would enjoin the duty of frequent publications and leave enough to the discretion of the Legislature. Require too much and the difficulty will beget a habit of doing nothing. The articles of Confederation require halfyearly publications on this subject. A punctual compliance being often impossible, the practice has ceased altogether.
M^r Wilson 2^{ded}. & supported the motion. Many operations of finance cannot be properly published at certain times.
M^r Pinkney was in favor of the motion.
M^r Fitzimmons. It is absolutely impossible to publish expenditures in the full extent of the term.
M^r Sherman thought "from time to time" the best rule to be given.
"Annual" was struck out--& those words--inserted nem: con:
The motion of Col: Mason so amended was then agreed to nem: con: and added after--"appropriations by law" as follows--"And a regular statement and account of the receipts & expenditures of all public money shall be published from time to time."
The first clause of Art. 1 Sect. 10--was altered so as to read--"no State shall enter into any Treaty alliance or confederation; grant letters of marque and reprisal; coin money; emit bills of credit; make any thing but gold & silver coin a tender in payment of debts; pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts, or grant any title of nobility."
M^r Gerry entered into observations inculcating the importance of public faith, and the propriety of the restraint put on the States from impairing the obligation of contracts, alledging that Congress ought to be laid under the like prohibitions, he made a motion to that effect. He was not 2^{ded}.
Adjourned.
SATURDAY SEP^R 15^{TH}. 1787. IN CONVENTION
M^r 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.
M^r Rutlidge 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.
M^r Sherman concurred in the opinion that an address was both unnecessary and improper.
On the motion of M^r Carrol
N. H. no. Mas. no. C^t no. N. J. no. P^a ay. Del. ay. M^d ay. V^a ay. N. C.[100] abs^t. S. C.[100] no. Geo. no.
[100] In the printed Journal N. Carolina no--S. Carol: omitted.--Madison's Note.
M^r 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 and to Rho: Island, & moved to reconsider for that purpose.
M^r 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. C^t ay. N. J. no. Pen. div^d. Del. ay. M^d ay. V^a ay. N. C. ay. S. C. ay. Geo. ay.
M^r Langdon moved to add 1 member to each of the Representations of N. Carolina & Rho: Island.[101]
[101] The MS. official Journal says: "It was moved and seconded to"----and here finally ends, and the minutes for September 15 are crossed out (Const. MSS.). They are given in the printed Journal, and a note says the journal for that day and Monday was completed from minutes furnished by Madison (p. 379). October 22, 1818, Adams wrote to Madison asking him to complete the Journal. He replied from Montpelier, November 2:
"I have received your letter of 22 ult: and enclose such extracts from my notes relating to the two last days of the Constitution, as may fill in the chasm in the Journals, according to the mode in which the proceedings are recorded."--State Dept. MSS., Miscl. Letters.
Later (June 18, 1819) Adams sent him lists of yeas and nays, and he replied (Montpelier, June 27, 1819): "I return the list of yeas & nays in the Convention, with the blanks filled in according to your request, as far as I could do it by tracing the order of the yeas & nays & their coincidency with those belonging to successive questions in my papers."--Mad. MSS.
M^r King was ag^{st} 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.
M^r Pinkney urged the propriety of increasing the number of Rep^s allotted to N. Carolina.
M^r Bedford contended for an increase in favor of Rho: Island, and of Delaware also it passed in the negative.
On the question for allowing two Rep^s to Rho: Island, it passed in the negative.
N. H. ay. Mas. no. C^t no. N. J. no. P^a no. Del. ay. M^d ay. V^a no. N. C. ay. S. C. no. Geo. ay.
On the question for allowing six to N. Carolina, it passed in the negative
N. H. no. Mas. 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.
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 Sep^r, 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. C^t no. N. J. no. P^a div^d. Del. no. M^d no. V^a ay. N. C. ay. S. C. no. Geo. ay.
The substitute was then agreed to; Virg^a alone being in the negative.
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."
M^r M^cHenry & M^r Carrol moved that "no State shall be restrained from laying duties of tonnage for the purpose of clearing harbours and erecting lighthouses."
Col. Mason in support of this explained and urged the situation of the Chesapeak which peculiarly required expences of this sort.
M^r Gov^r 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.
M^r 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.
M^r 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.
M^r 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. C^t div^d. N. J. ay. P^a no. Del. ay. M^d ay. V^a no. N. C. no. S. C. ay. Geo. no.
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" were changed into "or a President shall be elected" conformably to a vote of the ---- of ----.
M^r Rutlidge and Doc^r Franklin moved to annex to the end of 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. C^t no. N. J. no. P^a ay. Del. no. M^d ay. V^a ay. N. C. no. S. C. ay. Geo.--ay.
Art: II. Sect. 2. "he shall have power to grant reprieves and pardons for offences against the U. S. &c."
M^r 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 Traitors may be his own instruments.
Col: Mason supported the motion.
M^r Gov^r Morris had rather there should be no pardon for treason, than let the power devolve on the Legislature.
M^r 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.
M^r 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.
M^r 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.
M^r 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 concur, & the President moreover can require 2/3 of both Houses.
On the motion of M^r Randolph
N. H. no.--Mas. no. C^t div^d. N. J. no. P^a no. Del. no. M^d no. V^a ay. N. C. no. S. C. no. Geo. ay.
Art II. Sect. 2. (paragraph 2) To the end of this, M^r Govern^r 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." M^r Sherman 2^{ded} the motion.
M^r 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.
M^r Gov^r Morris. There is no necessity. Blank commissions can be sent--
On the motion
N. H. ay. Mas. no. C^t ay. N. J. ay. P^a ay. Del. no. M^d div^d. V^a no. N. C. ay. S. C. no. Geo. no.
The motion being lost by an 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 Rep^s.
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."
Art III. Sect. 2. parag: 3. M^r Pinkney & M^r Gerry moved to annex to the end, "And a trial by jury shall be preserved as usual in civil cases."
M^r Gorham. The constitution of Juries is different in different States and the trial itself is _usual_ in different cases in different States.
M^r King urged the same objections.
Gen^l Pinkney also. He thought such a clause in the Constitution would be pregnant with embarrassments.
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" 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 Cong^s."
M^r 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."
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 1."
M^r 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.
M^r Gov^r Morris & M^r Gerry moved to amend the article so as to require a Convention on application of 2/3 of the Sts.
M^r 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 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 M^r Gov^r Morris & M^r Gerry was agreed to nem: con: (see the first part of the article as finally past).
M^r 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. div^d. Mas. ay. C^t ay. N. J. ay. P^a no. Del. no. M^d no. V^a no. N. C. no. S. C. no. Geo--no.
M^r Gerry moved to strike out the words "or by Conventions in three fourths thereof." On this 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.
M^r 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."
M^r Madison. Begin with these special provisos, and every State will insist on them, for their boundaries, exports &c.
On the motion of M^r Sherman
N. H. no. Mas. no. C^t ay. N. J. ay. P^a no. Del. ay. M^d no. V^a no. N. C. no. S. C. no. Geo. no.
M^r Sherman then moved to strike out art. V altogether.
M^r Brearley 2^{ded} the motion, on which
N. H. no. Mas. no. C^t ay. N. J. ay. P^a no. Del div^d. M^d no. V^a no. N. C. no. S. C. no. Geo. no.
M^r Gov^r 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 Philad^a N. York & Boston, to monopolize the Staples of the Southern States & reduce their value perhaps 50 Per C^t moved a further proviso that no law in the 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. C^t no. N. J. no. P^a no. Del. no. M^d ay. V^a ay. N. C. abs^t. S. C. no. Geo. ay.
M^r 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." 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 2^{ded} & followed M^r 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.
M^r 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 Cong^s over Commerce. But apprehending the danger of a general confusion, and an ultimate decision by the sword, he should give the plan his support.
M^r 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 compensation. 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 over all 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 M^r Randolph. All the States answered no.
On the question to agree to the Constitution as amended. All the States ay.
The Constitution was then ordered to be engrossed. and the House adjourned.
MONDAY SEP^R 17. 1787. IN CONVENTION
The engrossed Constitution being read.
Doc^r Franklin rose with a speech in his hand, which he had reduced to writing for his own conveniency, and which M^r Wilson read in the words following.
M^r President
I confess that there are several parts of this constitution which I do not at present approve, but I am not sure I shall never approve them: For having lived long, I have experienced many instances of being obliged by better information or fuller consideration, to change opinions even on important subjects, which I once thought right, but found to be otherwise. It is therefore that the older I grow, the more apt I am to doubt my own judgment, and to pay more respect to the judgment of others. Most men indeed as well as most sects in Religion think themselves in possession of all truth, and that wherever others differ from them it is so far error. Steele a Protestant in a Dedication tells the Pope, that the only difference between our Churches in their opinions of the certainty of their doctrines is, the Church of Rome is infallible and the Church of England is never in the wrong. But though many private persons think almost as highly of their own infallibility as of that of their sect, few express it so naturally as a certain french lady, who in a dispute with her sister, said "I don't know how it happens, Sister but I meet with nobody but myself, that is always in the right--_Il n'y a que moi qui a toujours raison_."
In these sentiments, Sir, I agree to this Constitution with all its faults, if they are such; because I think a general Government necessary for us, and there is no form of Government but what may be a blessing to the people if well administered, and believe farther that this is likely to be well administered for a course of years, and can only end in Despotism, as other forms have done before it, when the people shall become so corrupted as to need despotic Government, being incapable of any other. I doubt too whether any other Convention we can obtain may be able to make a better Constitution. For when you assemble a number of men to have the advantage of their joint wisdom, you inevitably assemble with those men, all their prejudices, their passions, their errors of opinion, their local interests, and their selfish views. From such an assembly can a perfect production be expected? It therefore astonishes me, Sir, to find this system approaching so near to perfection as it does; and I think it will astonish our enemies, who are waiting with confidence to hear that our councils are confounded like those of the Builders of Babel; and that our States are on the point of separation, only to meet hereafter for the purpose of cutting one another's throats. Thus I consent, Sir, to this Constitution because I expect no better, and because I am not sure, that it is not the best. The opinions I have had of its errors, I sacrifice to the public good. I have never whispered a syllable of them abroad. Within these walls they were born, and here they shall die. If every one of us in returning to our Constituents were to report the objections he has had to it, and endeavor to gain partizans in support of them, we might prevent its being generally received, and thereby lose all the salutary effects & great advantages resulting naturally in our favor among foreign nations as well as among ourselves, from our real or apparent unanimity. Much of the strength & efficiency of any Government in procuring and securing happiness to the people, depends, on opinion, on the general opinion of the goodness of the Government, as well as of the wisdom and integrity of its Governors. I hope therefore that for our own sakes as a part of the people, and for the sake of posterity, we shall act heartily and unanimously in recommending this Constitution (if approved by Congress & confirmed by the Conventions) wherever our influence may extend, and turn our future thoughts & endeavors to the means of having it well administered.
On the whole, Sir, I cannot help expressing a wish that every member of the Convention who may still have objections to it, would with me, on this occasion doubt a little of his own infallibility, and to make manifest our unanimity, put his name to this instrument.--He then moved that the Constitution be signed by the members and offered the following as a convenient form viz: "Done in Convention by the unanimous consent of _the States_ present the 17^{th} of Sep^r &c.--In witness whereof we have hereunto subscribed our names."
This ambiguous form had been drawn up by M^r G. M. in order to gain the dissenting members, and put into the hands of Doc^r Franklin that it might have the better chance of success.
M^r Gorham said if it was not too late he could wish, for the purpose of lessening objections to the Constitution, that the clause declaring "the number of Representatives shall not exceed one for every forty thousand" which had produced so much discussion, might be yet reconsidered, in order to strike out 40,000 & insert "thirty thousand." This would not he remarked establish that as an absolute rule, but only give Congress a greater latitude which could not be thought unreasonable.
M^r King & M^r Carrol seconded & supported the ideas of M^r Gorham.
When the President rose, for the purpose of putting the question, he said that although his situation had hitherto restrained him from offering his sentiments on questions depending in the House, and it might be thought, ought now to impose silence on him, yet he could not forbear expressing his wish that the alteration proposed might take place. It was much to be desired that the objections to the plan recommended might be made as few as possible. The smallness of the proportion of Representatives had been considered by many members of the Convention an insufficient security for the rights & interests of the people. He acknowledged that it had always appeared to himself among the exceptionable parts of the plan, and late as the present moment was for admitting amendments, he thought this of so much consequence that it would give much satisfaction to see it adopted.[102]
[102] This was the only occasion on which the President entered at all into the discussions of the Convention.--Madison's Note.
No opposition was made to the proposition of M^r Gorham and it was agreed to unanimously.
On the question to agree to the Constitution enrolled in order to be signed. It was agreed to all the States answering ay.
M^r Randolph then rose and with an allusion to the observations of Doc^r Franklin apologized for his refusing to sign the Constitution notwithstanding the vast majority & venerable names that would give sanction to its wisdom and its worth. He said however that he did not mean by this refusal to decide that he should oppose the Constitution without doors. He meant only to keep himself free to be governed by his duty as it should be prescribed by his future judgment. He refused to sign, because he thought the object of the convention would be frustrated by the alternative which it presented to the people. Nine States will fail to ratify the plan and confusion must ensue. With such a view of the subject he ought not, he could not, by pledging himself to support the plan, restrain himself from taking such steps as might appear to him most consistent with the public good.
M^r Gov^r Morris said that he too had objections, but considering the present plan as the best that was to be attained, he should take it with all its faults. The majority had determined in its favor, and by that determination he should abide. The moment this plan goes forth all other considerations will be laid aside, and the great question will be, shall there be a national Government or not? and this must take place or a general anarchy will be the alternative. He remarked that the signing in the form proposed related only to the fact that the _States_ present were unanimous.
M^r Williamson suggested that the signing should be confined to the letter accompanying the Constitution to Congress, which might perhaps do nearly as well, and would be found satisfactory to some members[103] who disliked the Constitution. For himself he did not think a better plan was to be expected and had no scruples against putting his name to it.
[103] He alluded to M^r Blount for one.--Madison's Note.
M^r Hamilton expressed his anxiety that every member should sign. A few characters of consequence, by opposing or even refusing to sign the Constitution, might do infinite mischief by kindling the latent sparks which lurk under an enthusiasm in favor of the Convention which may soon subside. No man's ideas were more remote from the plan than his own were known to be; but is it possible to deliberate between anarchy and Convulsion on one side, and the chance of good to be expected from the plan on the other.
M^r Blount[104] said he had declared that he would not sign, so as to pledge himself in support of the plan, but he was relieved by the form proposed and would without committing himself attest the fact that the plan was the unanimous act of the States in Convention.
[104] "Mr. Blount is a character strongly marked for integrity and honor. He has been twice a Member of Congress, and in that office discharged his duty with ability and faithfulness. He is no Speaker, nor does he possess any of those talents that make Men shine;--he is plain, honest, and sincere. Mr. Blount is about 36 years of age."--Pierce's Notes, _Amer. Hist. Rev._, iii., 329.
Doc^r Franklin expressed his fears from what M^r Randolph had said, that he thought himself alluded to in the remarks offered this morning to the House. He declared that when drawing up that paper he did not know that any particular member would refuse to sign his name to the instrument, and hoped to be so understood. He possessed a high sense of obligation to M^r Randolph for having brought forward the plan in the first instance, and for the assistance he had given in its progress, and hoped that he would yet lay aside his objections, and by concurring with his brethren, prevent the great mischief which the refusal of his name might produce.
M^r Randolph could not but regard the signing in the proposed form, as the same with signing the Constitution. The change of form therefore could make no difference with him. He repeated that in refusing to sign the Constitution he took a step which might be the most awful of his life, but it was dictated by his conscience, and it was not possible for him to hesitate, much less, to change. He repeated also his persuasion, that the holding out this plan with a final alternative to the people, of accepting or rejecting it in toto, would really produce the anarchy & civil convulsions which were apprehended from the refusal of individuals to sign it.
M^r Gerry described the painful feelings of his situation, and the embarrassments under which he rose to offer any further observations on the subject w^{ch}. had been finally decided. Whilst the plan was depending, he had treated it with all the freedom he thought it deserved. He now felt himself bound as he was disposed to treat it with the respect due to the Act of the Convention. He hoped he should not violate that respect in declaring on this occasion his fears that a Civil war may result from the present crisis of the U.S. In Massachusetts, particularly he saw the danger of this calamitous event--In that State there are two parties, one devoted to Democracy, the worst he thought of all political evils, the other as violent in the opposite extreme. From the collision of these in opposing and resisting the Constitution, confusion was greatly to be feared. He had thought it necessary, for this & other reasons that the plan should have been proposed in a more mediating shape, in order to abate the heat and opposition of parties. As it had been passed by the Convention, he was persuaded it would have a contrary effect. He could not therefore by signing the Constitution pledge himself to abide by it at all events. The proposed form made no difference with him. But if it were not otherwise apparent, the refusals to sign should never be known from him. Alluding to the remarks of Doc^r Franklin, he could not he said but view them as levelled at himself and the other gentlemen who meant not to sign.
Gen^l Pinkney. We are not likely to gain many converts by the ambiguity of the proposed form of signing. He thought it best to be candid and let the form speak the substance. If the meaning of the signers be left in doubt, his purpose would not be answered. He should sign the Constitution with a view to support it with all his influence, and wished to pledge himself accordingly.
Doc^r Franklin. It is too soon to pledge ourselves before Congress and our Constituents shall have approved the plan.
M^r Ingersol[105] did not consider the signing, either as a mere attestation of the fact, or as pledging the signers to support the Constitution at all events; but as a recommendation, of what, all things considered, was the most eligible.
[105] "Mr. Ingersol is a very able Attorney and possesses a clear legal understanding. He is well educated in the Classic's, and is a Man of very extensive reading. Mr. Ingersol speaks well, and comprehends his subject fully. There is modesty in his character that keeps him back. He is about 36 years old."--Pierce's Notes, _Amer. Hist. Rev._, iii., 329.
On the motion of Doc^r Franklin
N. H. ay. Mas. ay. C^t ay. N. J. ay. P^a ay. Del. ay. M^d ay. V^a ay. N. C. ay. S. C. div^d.[106] Geo. ay.
[106] Gen^l Pinkney & M^r Butler disliked the equivocal form of the signing, and on that account voted in the negative.--Madison's Note.
M^r King suggested that the Journals of the Convention should be either destroyed, or deposited in the custody of the President. He thought if suffered to be made public, a bad use would be made of them by those who would wish to prevent the adoption of the Constitution.
M^r Wilson preferd the second expedient, he had at one time liked the first best; but as false suggestions may be propagated it should not be made impossible to contradict them.
A question was then put on depositing the Journals and other papers of the Convention in the hands of the President, on which,
N. H. ay. M^{tts} ay. C^t ay. N. J. ay. Pen^a ay. Del. ay. M^d no.[107] V^a ay. N. C. ay. S. C. ay. Geo. ay.[108]
[107] This negative of Maryland was occasioned by the language of the instructions to the Deputies of that State, which required them to report to the State, the _proceedings_ of the Convention.--Madison's Note.
[108] "Major Jackson presents his most respectful compliments to General Washington--
"He begs leave to request his signature to forty Diplomas intended for the Rhode Island Society of the Cincinnati.
"Major Jackson, after burning all the loose scraps of paper which belong to the Convention, will this evening wait upon the General with the Journals and other papers which their vote directs to be delivered to His Excellency.
"Monday evening"
Endorsed in Washington's hand: "Maj^r W^m Jackson 17^{th} Sep. 1787."--Wash. MSS.
The President having asked what the Convention meant should be done with the Journals &c. whether copies were to be allowed to the members if applied for. It was Resolved nem. con: "that he retain the Journal and other papers, subject to the order of Congress, if ever formed under the Constitution."
The members then proceeded to sign the instrument.
Whilst the last members were signing it Doct^r Franklin looking towards the President's Chair, at the back of which a rising sun happened to be painted, observed to a few members near him, that Painters had found it difficult to distinguish in their art a rising from a setting sun. I have said he, often and often in the course of the Session, and the vicissitudes of my hopes and fears as to its issue, looked at that behind the President without being able to tell whether it was rising or setting: But now at length I have the happiness to know that it is a rising and not a setting Sun.
The Constitution being signed by all the members except M^r Randolph, M^r Mason and M^r Gerry, who declined giving it the sanction of their names, the Convention dissolved itself by an Adjournment sine die[109]--
[109] The few alterations and corrections made in these debates which are not in my handwriting, were dictated by me and made in my presence by John C. Payne. James Madison.--Madison's Note.
* * * * *
[Following is a literal copy of the engrossed Constitution as signed. It is in four sheets, with an additional sheet containing the resolutions of transmissal. The note indented at the end is in the original precisely as reproduced here.]
WE THE PEOPLE of the United States, in Order to form a more perfect Union, 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.
Section. 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.
Section. 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 Service 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 thirty 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 chuse their Speaker and other Officers; and shall have the sole Power of Impeachment.
Section. 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 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, which shall then fill such Vacancies.
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 President of the Senate, but shall have no Vote, unless they be equally divided.
The Senate shall chuse 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 or Affirmation. 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.
Section. 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, except as to the Places of chusing Senators.
The Congress shall assemble at least once in every Year, and such Meetings shall be on the first Monday in December, unless they shall by Law appoint a different Day.
Section. 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.
Section. 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.
Section. 7. 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 two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill.
Section. 8. The Congress 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; but all Duties, Imposts and Excises shall be uniform throughout the United States;
To borrow Money on the credit of the United States;
To regulate Commerce with foreign Nations, and 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 Offences against the Law of Nations;
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 Appropriation 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.
Section. 9. The Migration or Importation of such Persons as any of the 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 or ex post facto Law shall be passed.
No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.
No Tax or Duty shall be laid on Articles exported from any State.
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.
No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.
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.
Section. 10. No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.
No State shall, without the Consent of ^{the} Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it's inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Controul of ^{the} Congress.
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.
Article. II.
Section. 1. The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows.
Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.
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 Government of the United States, 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, and 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 chuse by Ballot one of them for President; and if no Person have a Majority, then from the five highest on the List the said House shall in like manner chuse the President. But in chusing the President, the Votes shall be taken by States, the Representation from each State having one Vote; a quorum for this Purpose shall consist of a Member or Members from two thirds of the States, and a Majority of all the States shall be necessary to a Choice. 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 chuse from them by Ballot the Vice President.
The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.
No Person except a natural born Citizen, or a Citizen of the United States, at the time of the adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.
In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President, and the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected.
The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be encreased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them.
Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:--"I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States."
Section. 2. The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he 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, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.
He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: 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.
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 their next Session.
Section. 3. He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.
Section. 4. The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.
Article. III.
Section. 1. The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.
Section. 2. The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public Ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;--to Controversies between two or more States;--between a State and Citizens of another State;--between Citizens of different States,--between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the Supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such regulations as the Congress shall make.
The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.
Section. 3. Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.
The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.
Article. IV.
Section. 1. Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.
Section. 2. The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.
A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime.
No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.
Section. 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 Congress.
The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to prejudice any Claims of the United States, or of any particular State.
Section. 4. The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.
Article. V.
The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths 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 One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of it's equal Suffrage in the Senate.
Article. VI.
All Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation.
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.
Article. VII.
The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.
The Word, "the," being interlined done in Convention by the between the seventh and eighth Unanimous Consent of the Lines of the first Page, The Word States present the Seventeenth "Thirty" being partly written on an Day of September in the Year Erazure in the fifteenth Line of of our Lord one thousand seven the first Page, The Words "is hundred and Eighty seven and tried" being interlined between the of the Independence of the thirty second and thirty third United States of America the Lines of the first Page and the Twelfth In witness whereof We Word "the" being interlined between have hereunto subscribed our the forty third and forty fourth Names, Lines of the second Page.
Attest WILLIAM JACKSON Secretary
G^o WASHINGTON--Presid^t and deputy from Virginia
New Hampshire {JOHN LANGDON } {NICHOLAS GILMAN}
Massachusetts { NATHANIEL GORHAM { RUFUS KING
Connecticut { W^M: SAM^L JOHNSON { ROGER SHERMAN
New York ALEXANDER HAMILTON
New Jersey { WIL: LIVINGSTON { DAVID BREARLEY { W^M PATERSON { JONA: DAYTON
Pennsylvania { B FRANKLIN { THOMAS MIFFLIN { ROB^T MORRIS { GEO. CLYMER { THO^S FITZSIMONS { JARED INGERSOLL { JAMES WILSON { GOUV MORRIS
Delaware { GEO: READ { GUNNING BEDFORD jun { JOHN DICKINSON { RICHARD BASSETT { JACO: BROOM
Maryland { JAMES M^CHENRY { DAN OF S^T THO^S JENIFER { DAN^L CARROLL
Virginia { JOHN BLAIR-- { JAMES MADISON Jr.
North Carolina { W^M BLOUNT { RICH^D DOBBS SPAIGHT { HU WILLIAMSON
South Carolina { J. RUTLEDGE { CHARLES COTESWORTH PINCKNEY { CHARLES PINCKNEY { PIERCE BUTLER
Georgia { WILLIAM FEW { ABR BALDWIN
[Illustration: First Page of the Constitution (reduced)]
IN CONVENTION Monday September 17^{th}. 1787.
Present
The States of
New Hampshire, Massachusetts, Connecticut, M^r Hamilton from New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina and Georgia.
Resolved,
That the preceeding Constitution be laid before the United States in Congress assembled, and that it is the Opinion of this Convention, that it should afterwards be submitted to a Convention of Delegates, chosen in each State by the People thereof, under the Recommendation of its Legislature, for their Assent and Ratification; and that each Convention assenting to, and ratifying the Same, should give Notice thereof to the United States in Congress assembled.
Resolved, That it is the Opinion of this Convention, that as soon as the Conventions of nine States shall have ratified this Constitution, the United States in Congress assembled should fix a Day on which Electors should be appointed by the States which shall have ratified the same, and a Day on which the Electors should assemble to vote for the President, and the Time and Place for commencing Proceedings under this Constitution. That after such Publication the Electors should be appointed, and the Senators and Representatives elected: That the Electors should meet on the Day fixed for the Election of the President, and should transmit their Votes certified, signed, sealed and directed, as the Constitution requires, to the Secretary of the United States in Congress assembled, that the Senators and Representatives should convene at the Time and Place assigned; that the Senators should appoint a President of the Senate, for the sole Purpose of receiving, opening and counting the Votes for President; and, that after he shall be chosen, the Congress, together with the President, should, without Delay, proceed to execute this Constitution.
By the Unanimous Order of the Convention G^O: WASHINGTON Presid^t. W. JACKSON Secretary.
Index A
INDEX
A
Accounts of expenditures. _See_ Expenditures of government.
Acts, originating of. _See_ Legislature, national, acts of.
Address to accompany constitution, moved, ii., 347; considered, 377.
Adjournment of legislature. _See_ Legislature, national, power of.
Age, of executive. _See_ Executive, national, age of. Of Representatives. _See_ Legislature, national, House of Representatives. Of Senators. _See_ Legislature, national, Senate.
Allen, Paul, signs address from Rhode Island, i., 11, n.
Amendments to constitution, provision for, debated, i., 79, 122, ii., 384; postponed, i., 79; debated, 122, 287; agreed to, 137, ii., 30; motion to reconsider clause, 339; moved that states agree to, 340.
Appointment, power of. _See_ Executive, national, power of; Judiciary, national, supreme; Legislature, national. Senate.
Appropriations, originating of, _see_ Legislature, national, money bills; accounts of, _see_ Expenditures of government.
Aristocracy, fear of, expressed by Mason, i., 310; defended by G. Morris, 310, ii., 98; probability of, 159.
Armies, power to raise and support. _See_ Legislature, national, power of.
Arnold, Welcome, signs address from Rhode Island, i., 11, n.
Arsenals, Forts, etc. _See_ Forts, Arsenals, etc.
Articles of Confederation, amendments to, proposed by Dickinson, i., 166.
B
Baldwin, Abraham, Ga., attends convention, i., 114; favors representation in Senate by wealth of states, 271; Pierce's sketch of, 271, n.; on compromise committee on representation, 292; thinks foreigners should be excluded from government, ii., 145; thinks provisions on citizenship should not extend to those already citizens, 148; appointed on grand committee, 193; thinks slave trade not a national question, 222; on committee on navigation acts, 225; moves that duty on slaves be uniform, 251; thinks public lands should be guaranteed to states, 281; on committee of August 31, 292; thinks members of legislature should be ineligible to other offices, 296; approves plan of electing executive by electors, 302; moves to exclude from new offices members of first legislature, 371.
Bankruptcy, uniform law of. _See_ Legislature, national, power of; House of Representatives.
Barton, William, signs address from Rhode Island, i., 11, n.
Bassett, Richard, Del., attends convention, i., 1; Pierce's sketch of, 1, n.
Bedford, Gunning, Del., attends convention, i., 5; favors short term for executive, 54; Pierce's sketch of, 54, n.; opposes absolute veto in executive, 72; opposes negative of state laws by legislature, 105; threatens foreign alliance of small states, 283; on compromise committee on representation, 292; explains threat of foreign alliance, 300; moves that national legislature make laws when harmony would be interrupted by state legislation, 372; prefers appointment of judges by Senate, 386; opposes provision against standing army, ii., 374; favors increase in representation of Rhode Island and Delaware, 379.
Bill of Rights, inclusion of, debated, ii., 364.
Bills of attainder. _See_ Legislature, national, power of.
Bills of credit, power to emit. _See_ Legislature, national, power of.
Blair, John, Va., attends convention, i., 1; Pierce's sketch of, 1, n.
Blount, William, N. C., attends convention, i., 189; announces he will sign constitution, ii., 394; Pierce's sketch of, 394, n.
Bowen, Jabez, signs address from Rhode Island, i., 11, n.
Brearley, David, N. J., attends convention, i., 1; favors equal vote of states in national legislature, 109; Pierce's sketch of, 109, n.; moves that New Hampshire delegates be sent for, 272; opposes election of executive by joint ballot, ii., 243; seconds motion to elect executive by states, 244; on committee of August 31, 292; reports from committee, 292, 296, 304; seconds motion against amendments, 386.
Broome, Jacob, Del., attends convention, i., 1; favors nine years' term for Senators, 238; insists upon equal representation for New Jersey in Senate, 327; opposes adjournment on question of representation, 368; opposes seven years' term for executive, 379; Pierce's sketch of, ii., 8, n.; seconds motion to postpone clause fixing term of executive, 44; seconds motion to except army and navy from disqualification from legislature, 166; thinks legislature can fix their own compensation, 168; favors same compensation for both houses of legislature, 170; thinks national government should punish for treason, 206; seconds motion in favor of national negative of state laws, 236; moves reference of question of term of executive, 245.
Brown, John, signs address from Rhode Island, i., 11, n.
Brown, Nicholas, signs address from Rhode Island, i., 11, n.
Butler, Pierce, S. C., attends convention, i., 2; moves secrecy of proceedings, 10; Pierce's sketch of, 11, n.; moves debate on national government, 33; wants explanation of personnel of Senate, 43; fears deprivation of state powers, 46; favors single executive, 66; opposes absolute negative in executive, 72; proposes power of suspending legislation for executive, 75; opposed to institution of inferior judiciary, 83, 388; opposes indefinite negative of state laws by legislature, 106; favors wealth as basis of representation, 115, 120, 307, 321; thinks Senators should have no compensation, 129; thinks Senate should have power to originate money bills, 132; moves vote on compensation of legislature, 213; favors ineligibility to all other offices of Representatives, 214; opposes ineligibility of Representatives to offices created during their term, 218; thinks candidates for office will not be wanting, 222; moves question of representation in Senate, 235; opposes ineligibility of Senators to state offices, 246; opposes report of compromise committee on representation, 298; moves increase in representation of South Carolina, 325; insists upon inclusion of blacks in representation, 331; thinks slave labor as productive as free labor, 331; favors representation by population, 341; demands security for slavery, 352; thinks powers of legislature loosely defined, 366; opposes frequent elections of executive, ii., 9; favors election of executive by electors chosen by state legislatures, 52; opposes re-eligibility of executive, 52; moves to refer question of executive to committee of detail, 56; favors fixing plan for national capital, 67; thinks question of suffrage should be left to states, 97; moves three years' inhabitancy for Representatives, 110; thinks money bills should originate in House, 115; favors long inhabitancy for Senators, 122; urges postponement of clause concerning eligibility of members of legislature to other offices, 166; favors state compensation for members of legislature, 167; opposes power to emit bills of credit, 181, 183; thinks President should have power to declare war, 188; moves that legislature have power to declare peace, 189; thinks militia should be under national control, 196; favors adjustment of taxation to representation, 212; opposes federal power over exports, 214, 224; moves discrimination in paying creditors, 238; moves reconsideration of question of discharging debts, 241; thinks creditors should stand where they are, 249; on committee of August 25, 254; moves that fugitive slaves and servants be surrendered, 267, 274; favors commercial regulations to be made by two-thirds vote, 271; thinks new states should not be made without consent of old states, 276; thinks nine states may ratify constitution, 285; on committee of August 31, 292; thinks election of executive by electors objectionable, 302; favors making treaties of peace without President, 330; thinks Congress must sanction state export duties, 366; dislikes form of signing, 396, n.
C
Canals, provision for, proposed. _See_ Legislature, national, power of.
Capital, national. _See_ Seat of government.
Capitation tax. _See_ Taxation, capitation.
Captures. _See_ Legislature, national, power of.
Carrington, Edward, to Jefferson, on progress of convention, i., 107, n.; to Madison, 130, n.; to Monroe, ii., 90, n.; to Madison, 142, n.
Carroll, Daniel, Md., attends convention, i., 318; favors national power to suppress insurrection, 392; Pierce's sketch of, ii., 38, n.; doubts propriety of per capita voting in Senate, 38; favors election of executive by electors chosen by lot from national legislature, 47; thinks direct taxation should depend on census, 47; opposes disqualification from legislature of persons having unsettled government accounts, 63; thinks number for quorum cannot be fixed, 135; thinks right of expulsion should be with two-thirds of legislature, 136; moves Senators be permitted to enter dissent to measures, 136; fears New York will be capital, 140; moves five years' citizenship for Representatives, 148; explains provision as to money bills in Maryland, 157; favors national compensation for members of legislature, 168, 169; thinks greater checks to bad laws necessary, 174; thinks a quorum should be more than a majority, 177; thinks exports should not be taxed, 181; opposes taxation by congressional representation, 209; thinks prohibition of _ex post facto_ laws necessary, 228; moves election of executive by the people, 243, 245; moves provision to prevent favoring ports of entry, 252; on committee of August 25, 254; objects to requiring consent of states to dismemberment, 277; moves that right of U. S. to public lands be confirmed, 280; moves that land question go to Supreme Court, 281; moves to postpone question of ratification, 284, 286; thinks all the states must ratify, 286; thinks Maryland must ratify as required by Maryland law, 286; thinks vessels should enter and clear in their own states, 291; on committee of August 31, 292; proposes an address to the people, 377; moves states have power to lay tonnage taxes, 380; urges larger representation, 392.
Census, taking of, debated, i., 327, 340; every fifteen years, vote on, 340; two years after meeting of legislature, 344; ordered within six years after meeting of legislature, 346; every ten years, 347; every twenty years, 346; first to be in three years, ii., 208.
Charters, power to grant, proposed. _See_ Legislature, national, power of.
Citizenship, of Representatives, _see_ Legislature, national, House of Representatives, Senate; uniformity of, in the several states, agreed to, ii., 266.
Clymer, George, Pa., attends convention, i., 5; appointed on grand committee, ii., 193; thinks power to tax exports should exist for revenue only, 217; Pierce's sketch of, 217, n.; on committee on navigation acts, 225; disapproves slave-trade arrangement, 251; thinks states should regulate their own manufactures, 266; favors commercial regulations, 270; moves to postpone ratification question, 286; favors ratification by a majority of the people and the states, 287; objects to Senate's power, 315; thinks old Congress need not sanction constitution, 345.
Commercial regulations. _See_ Navigation acts.
Committee, grand, appointed, ii., 193.
Committee of the whole, convention goes into, i., 32; reports, 134; last session, 165.
Committee on detail, resolutions referred to, ii., 67; report of, 76; debated, 90.
Committee on plan of compromise, appointed, i., 292; reports, 293.
Committee on rules, appointed, i., 5; reports, 7.
Committee on style and arrangement, appointed, ii., 338; report of, 347, 369; debated, 367, 368.
Committee on sumptuary legislation, appointed, ii., 366.
Compensation of executive. _See_ Executive, national, compensation of.
Compensation of judiciary. _See_ Judiciary, national, compensation of.
Compensation of legislature. _See_ Legislature, national, compensation of.
Compromise on representation, debate on, i., 287; report of committee on, 294.
Confederation, articles of. _See_ Articles of Confederation.
Congress. _See_ Legislature, national.
Constitution, engrossed, read, ii., 389; text of, 398.
Continental Congress, continuance of, till constitution goes into effect, proposed, i., 79; agreed to, 137; debate on, 390.
Contracts, impairment of, prohibited, ii., 377.
Copyright law. _See_ Legislature, national, power of.
Council, executive. _See_ Executive council.
Council of revision of laws, debate on, i., 69; ii., 17.
Counterfeiting, power to punish, debated, ii., 185.
Courts. _See_ Judiciary.
Credentials of delegates read, i., 4.
D
Davie, William Richardson, N. C., attends convention, i., 2; Pierce's sketch of, 65, n.; opposes unequal representation in Senate, 279; on committee on compromise on representation, 292; insists that blacks be included in basis of representation, 342; favors impeachability of executive, ii., 11; proposes eight years' term for executive, 43.
Dayton, Jonathan, N. J., attends convention, i., 200; opposes compensation of Senators by state legislatures, 245; Pierce's sketch of, 245, n.; favors voting in House by states, 252; favors equal representation in Senate, 282; insists on equality of small states, 356; favors representation by free inhabitants, ii., 114; thinks a standing army necessary, 195; proposes mixed control of militia, 231, 232; thinks judiciary will decide controversies between states, 241; opposes election of executive by joint ballot, 243; moves election of executive by states, 244; on committee of August 25, 254; thinks tranquillity of states should be guaranteed, 282; moves ratification by ten states, 287; moves that treaties be made without two-thirds of Senate, 334; objects to state export duties, 365.
Debt, national, report on, ii., 209; debate on, 210; proposition for settling, 210; provision for payment of, 226, 238; reconsideration of, proposed, 241; motion to make payment obligatory, debated, 249. _See_ Legislature, national, power of.
Delaware, increase in representation of, moved, ii., 379.
Detail, committee on. _See_ Committee on detail.
Dickinson, John, Del., attends convention, i., 12; moves removability of executive by state legislatures, 62; Pierce's sketch of, 62, n.; favors separation of branches of government, 63; favors institution of inferior judiciary, 83; favors election of Representatives by people, 89; favors negative over laws by executive, 93; moves that Senators be elected by legislatures, 94; thinks Senate should resemble House of Lords, 95; thinks preservation of states necessary, 97; favors negative by legislature over state laws, 105; favors representation by wealth, 115; proposes postponement of Jersey plan, 151; proposes amendment of articles of confederation, 152; favors three years' term for Representatives, 207; favors election of executive by the people, ii., 55; opposes property qualification for legislature, 61; favors restriction of suffrage to freeholders, 97; proposes ---- years' residency for Representatives, 108; thinks provision as to money bills should stand, 154; proposes fixed payment for members of legislature every twelve years, 169; moves both branches of legislature receive the same pay, 170; thinks judiciary should not have power to set a law aside, 173; moves that rebellion against government be suppressed, 187; appointed on grand committee, 193; thinks great appointments should be made by legislature, 194; thinks treason should be defined, 204; thinks war against one state the same as against all, 207; moves that representation of large states be limited, 210; favors power over exports, 214; on committee on navigation acts, 225; thinks President should share in treaty-making power, 239; moves executive have power to appoint to future offices, 246; moves executive appoint officers not to be appointed by states, 247; moves to permit slave trade in states permitting it, 251; favors postponement of question of executive succession, 256; thinks legislature will not improperly ask removal of judges, 257; moves that judiciary have equity power, 260; explains meaning of _ex post facto_ laws, 268; thinks small states should not secure claims of large states, 276; moves that legislatures consent to formation of new states, 280; thinks tranquillity of states should be guaranteed, 282, 283; asks if Congress is to concur in constitution, 284; on committee of August 31, 292; thinks eventual election of President should be with whole legislature, 310; moves that vote of presidential electors be from all who are appointed, 312; favors an executive council, 332; objects to state export duties, 366; on committee on sumptuary legislation, 366; moves to strike out "direct taxes," 367.
Duties on exports. _See_ Exports. Imports. _See_ Imports.
E
Election, of executive. _See_ Executive, national, election of. Of Representatives. _See_ Legislature, national, House of Representatives, election of. Of Senators. _See_ Legislature, national, Senate, election of.
Electors. _See_ Executive, national, election of.
Ellsworth, Oliver, Conn., attends convention, i., 5; Pierce's sketch of, 120, n.; opposes ratification by conventions, 189; favors one-year term for Representatives, 207; favors payment of Representatives by states, 209; favors payment of Senators by states, 245; favors election of Senators by legislatures, 234; favors equal state representation in Senate, 269, 275, 285; on committee on compromise on representation, 292; favors compromise on representation, 301; opposes increase in representation, 325; favors free inhabitants and three-fifths of slaves as basis of taxation, 343; favors representation by free inhabitants and three-fifths slaves, 344; opposes adjustment of taxation and representation after census, 349; insists upon state equality in Senate, 363; moves election of executive by electors appointed by legislatures, ii., 7; favors six years' term for executive, 9; moves increase in electors of New Hampshire and Georgia, 10; favors inclusion of judiciary in revisionary power, 18; favors appointment of judges by Senate with power negative of appointment by executive, 27; favors ratification of constitution by state legislatures, 31, 34; favors voting per capita in Senate, 37; favors re-eligibility of executive, 42; on committee to report constitution, 48; moves election of executive by legislature and re-election by electors named by state legislatures, 48; opposes election of executive by the people, 51; opposes disqualification of public debtors from legislature, 65; thinks time of meeting of legislature ought to be fixed, 93; thinks legislature ought to meet in winter, 95; thinks question of suffrage should be left to states, 96; thinks suffrage should be liberal, 97; thinks Representatives should reside in their states, 108; moves that Representatives be residents of their states for a year, 109; thinks ratio of Representatives to inhabitants may change, 112; thinks originating money bills in House unimportant, 116, 118; thinks state executives should fill vacancies in Senate, 117; opposes fourteen years' citizenship for Senators, 121; thinks property qualification for members of government should not be fixed, 130, 131; thinks number for quorum should not be small, 134; thinks no provision necessary for yeas and nays, 136; thinks provision for journal unnecessary, 138; favors ineligibility of members of legislature to other offices, 165; favors national compensation for members of legislature, 166; thinks members of legislature may fix their pay, 169; moves $5 per day as payment for legislature, 169; urges necessity of reaching a decision, 175; thinks exports should not be taxed, 179; opposes power to emit bills of credit, 182; moves to enlarge power over piracies, felonies, etc., 186; thinks executive should have power to suppress rebellion in a state, 186; defines power of making war and peace, 188; thinks state debts may be assumed by nation, 192; urges consideration of President's council, 193; thinks states should have partial control over militia, 195, 197; thinks power of taxation includes sumptuary power, 202; thinks treason sufficiently defined, 203, 205, 207; moves census in three years, 208; moves report on state debts lie on table, 210; thinks adjustment of debts necessary, 211; thinks taxation by representation unjust, 211; thinks states may tax exports, 213; thinks an embargo permissible, 215; thinks slave trade a question for the states, 218, 220; favors accepting constitution as it stands, 225; thinks prohibition of _ex post facto_ laws unnecessary, 227; thinks requirement of fulfilment of old government's engagements unnecessary, 229; favors national power to train militia, 230; proposes mixed control of militia, 231; opposes national negative of state laws, 237.
Emancipation. _See_ Slavery.
Embargo, power to lay, debated, ii., 214, 215; by states, debated, 264.
Executive council, proposed, i., 68; debated, ii., 193, 331, 332.
Executive, national, debate on, i., 49; provisions reconsidered, ii., 7; referred to committee on detail, 56; vote on, 59. Age, nativity, and residence of, agreed to, ii., 336. Compensation of, Franklin proposes no salary, i., 57, ii., 381; mode of payment, 16. Correspondence of, with states, debated, ii., 248. Election of, proposed by district electors, i., 55, 56; by national legislature for seven years, proposed, 57; mode of, reconsidered, 53, 101, 107, 108, ii., 44, 46, 47, 48, 52, 53; by state conventions, proposed, i., 109; by national legislature, 374, 378, 379, ii., 40, 42, 55, 242; by electors chosen by state legislatures, i., 377, ii., 8; ratio of electors considered, 10; electors not to be officials, 16; by electors, debated, 38, 39, 297, 301, 307, 310, 322; term of electors debated, 47; re-election of electors considered, 52; regulations as to age and residence debated, 226; by states, proposed, 244; by electors, defeated, 245; when to take place, proposed, 290; to be at seat of government, proposed, 317; how vote is to be counted, debated, 317; to fill vacancy, considered, 381; verbal amendment of clause, 383. Eligibility of, to re-election, debated, i., 67, 378, 383, ii., 1, 8, 40, 42. Exclusion from, of those indebted to government, considered, ii., 61. Foreign ambassadors to be received by, ii., 254. Impeachability of, agreed to, i., 65; method of, debated, 385, 386, ii., 11, 15, 16, 335, 337; moved to postpone question, 15; House to have power of, 116. Militia to be commanded by, when in active service, ii., 255. Native citizens only to be eligible, ii., 299. Negative of, on national legislation, debated, i., 54, 69, 74, 385, ii., 174, 175, 361; qualified, agreed to, i., 75, ii., 25; inclusion of judiciary in, proposed, i., 75; absolute, debated, ii., 12; ten days allowed for, 176; agreed to, 176; moved to extend to resolutions, 176. Oath of, prescribed, ii., 256. Power of, debated, i., 52, 53, 58, 91, 378, ii., 17, 46, 254, 299; to make appointments, i., 379, ii., 246, 328, 329, 334, 383; to revise legislation, 17, 25, 246; to pardon criminals, 254, 381; to make treaties, 327, 329; to demand opinions of heads of departments, 330; to convene either house of legislature, 338. Removability of, on request of state legislatures, debated, i., 62, 65; question postponed, ii., 256, 299; debated, 299. Single, proposed, i., 51, 65, 69; agreed to, 374, ii., 242; debate on, 41. Succession in, debated and postponed, ii., 256. Term of, debated, i., 54, 155, 379, ii., 9, 42, 58, 59, 80; seven years', proposed, i., 54, 378, 383, ii., 9, 316; during good behavior, proposed, i., 382; six years', proposed, ii., 9, 316; six years in twelve, proposed, 56.
Expenditures of government, moved that an account of be published, ii., 376, 377.
Expenses of convention, provision for, ii., 303, 306.
Exports, tax on, debated, ii., 177, 213, 254; state power to tax, debated, 266, 364.
_Ex post facto_ laws. _See_ Legislature, national, power of.
Expulsion from legislature. _See_ Legislature, national, expulsion from.
F
Federal or national government, debate on, i., 32.
Felonies. _See_ Piracies and felonies.
Few, William, Ga., attends convention, i., 2; Pierce's sketch of, 2, n.; on committee of August 25, ii., 254.
Fitzsimmons, Thomas, Pa., attends convention, i., 1; favors restriction of suffrage to freeholders, ii., 96; opposes power to tax exports, 216; on committee of August 25, 254; admits inconvenience to require vessels to enter and clear in their own state, 291; seconds motion to include House of Representatives in treaty-making power, 327; thinks old Congress need not sanction constitution, 343; favors incidental state export duties, 365; thinks publication expenditures impossible, 376.
Forts, arsenals, etc., provision for acquisition of, ii., 306.
Franklin, Benj., Pa., attends convention, i., 5; Pierce's sketch of, 49, n.; moves that executive receive no salary, 57; opposes negative in executive, 70; favors executive council, 71; opposes single executive, 74; suggests method for choosing judges, 77; appeals for harmony in convention, 115; favors proportional representation, 115; objects to liberal compensation for legislature, 126; favors no salary for Senators, 244; thinks voting in Senate not a separate question, 259; proposes prayers in convention, 260; favors compromise on representation, 280; on committee on compromise on representation, 292; thinks money bills should originate in House, 311; favors power to increase judges' salaries, 387; favors impeachability of executive, ii., 12, 14; thinks executive returning to private life no degradation, 68; favors general suffrage, 100; thinks compromise on representation should stand, 118; opposes long residence in the states for Senators, 122; thinks new citizens will not be elected to Senate, 125; opposes property qualification for officers of government, 130; thinks two witnesses necessary in treason cases, 206; favors executive council, 331; seconds motion for second convention, 347; on committee on sumptuary legislation, 366; moves legislature have power to cut canals, 372; moves to limit President's emoluments, 381; proposes plan for signing constitution, 389; disclaims personal reflections on non-signatories, 394; thinks members cannot pledge themselves, 396; remarks on signing, 397.
Franklin, William Temple, nominated for secretary of convention, i., 4.
G
General-welfare clause. _See_ Legislature, national, power of.
Georgia, increase in representation of, moved, i., 324.
Gerry, Elbridge, Mass., attends convention, i., 12; doubts if convention can form national government, 34; Pierce's sketch of, 34, n.; opposes election of Representatives by the people, 40, 42, 84; favors an executive council, 51; opposes election of executive by national legislature, 56; opposes inclusion of judiciary in council of revision, 69, 92; favors single executive, 69; favors qualified negative on legislation by executive, 70; favors provision for amendments, 79; opposes ratification of constitution by the people, 80; favors election of Senators by state legislatures, 97, 99; moves reconsideration of question of choosing executive, 101; moves indefinite negative on state laws by national legislature, 103; moves election of executive by state executives, 107, ii., 49; favors representation based on free population, i., 120; opposes requiring oath to national government from state officers, 123; favors one-year term for Representatives, 124; proposes that Senate shall not originate money bills, 132; thinks maximum and minimum for quorum should be fixed, 134; favors ineligibility of Representatives to other offices, 220, 223; opposed to monarchy, 242; favors four or five years' term for Senators, 243; opposes equal state representation, 268; favors committee to compromise representation, 292; on committee to arrange compromise on representation, 292; offers report of committee of compromise on representation, 293; favors compromise on representation, 302; favors representation on basis of population and wealth, 305; thinks originating money bills in House a concession, 310; moves to postpone question of voting in Senate, 313; favors increase in representation, 326; thinks three-fifths of blacks sufficient proportion as basis of representation, 331; thinks taxation and representation cannot be arranged, 347; favors direct taxation according to representation, 347, 350; favors originating money bills in House, 356; favors compromise on representation in Senate, 357; opposes adjournment on question of representation, 368; opposes re-eligibility of executive, ii., 7, 42, 43; favors election of executive by electors appointed by state legislatures, 8; moves ratio for electors for executive, 10; favors impeachability of executive, 13; moves that electors for executive be not officials, 16; opposes inclusion of judiciary in revisionary power, 19, 24; favors appointment of judges by Senate, 28; moves that officers take oath of allegiance, 30; thinks constitution should be ratified by legislatures, 32; moves appointment of committee to report constitution, 39; moves election of executive by legislatures, 42; suggests fifteen years' term for executive, 43; proposes referring term of executive to committee, 44, 46; opposes election of executive by electors chosen by lot from national legislatures, 47; favors election of executive for not more than six years in twelve, 53; opposes popular election of executive, 54; favors exclusion from office of those indebted to government, 61, 64; favors exclusion from legislature of pensioners, 64; favors prohibiting state and national capital at same place, 66; thinks quorum should be fixed, 134; moves to permit Senate to publish journal, 137, 138; thinks executive should not influence place of meeting of legislature, 140; thinks none but natives should be Representatives, 143; declares his state opposes members of legislature holding any other offices, 161; points out objections to both national and state legislatures, 202; thinks exports should not be taxed, 179; moves to include post roads in power of legislature, 181; thinks rebellion should be suppressed on state application, 186; moves legislature have power to declare war, 188; favors giving legislature power to make peace, 189; thinks letters of marque should be considered, 191; thinks executive should not interfere in legislation, 194; favors provision against large army in time of peace, 194, 195, 198; moves committee be instructed to report on qualifications for executive and impeachment of judges, 202; opposes power to make sumptuary laws, 202; moves that taxation be by congressional representation, 208, 211; thinks states should pay their debts, 209; opposes power to tax exports, 216; thinks slave trade should not be sanctioned, 222; moves prohibition of _ex post facto_ laws and bills of attainder, 227; thinks government should have power to fulfil engagements of old government, 229; thinks national government should not control militia, 230; thinks liberty will not be as safe in national as state government, 232; warns convention against depriving states of their powers, 233; thinks actual debts should be paid, 248; seconds motion to remove judges on application of legislature, 257; moves to postpone question of ratification, 289; thinks members of legislature should not hold other offices, 295; objects to appropriations for army for more than one year, 305; objects to power to buy forts, etc., 305; moves to reconsider four articles, 306; objects to powers given President, 307; objects to less than majority electing President, 310; suggests eventual election of President by six Senators and seven Representatives, 310; seconds motion to permit Senate to choose President from three candidates, 311; moves that electors be not office-holders, 312; moves change of clause for re-electing President, 312; moves that states vote for President in legislature with at least three members, 325; withdraws motion, 325; objects to Vice-President being President of Senate, 326; thinks President will not be responsible for his appointments, 328; thinks treaties of peace must be carefully guarded, 330; thinks it dangerous to put too much power in Senate, 333; moves two-thirds vote of Senate for treaties, 333; seconds motion for majority for treaties of whole number of Senators, 334; proposes that notice of treaties to Senators be required, 334; moves no appointments be allowed except as authorized by law, 335; thinks impeachability of President should be extended, 335; moves legislature have sole right to create offices, 338; moves reconsideration of provision for amendments, 339; seconds motion for states' consent to amendments, 341; moves sanction of old Congress to constitution be asked, 342; thinks ratification should be made difficult, 344, 346; seconds a plan of ratification, 345; favors two-thirds vote to override President's negative, 362; urges clause requiring jury trials, 363; moves bill of rights be prepared, 364; moves that all proceedings of House be published, 370; approves prohibition of _ex post facto_ laws, 375; moves liberty of press be guaranteed, 375; seconds motion for annual publication of accounts, 376; moves prohibition of violation of contracts, 377; moves jury trial be preserved in civil cases, 384; moves verbal amendment relative to admission of states, 384; moves convention be required to make amendments, 385; favors a second constitutional convention, 388; defends action in not signing constitution, 395; refuses to sign, 398.
Gilman, Nicholas, N. H., attends convention, ii., 29; Pierce's sketch of, 29, n.
Gorham, Nathaniel, Mass., attends convention, i., 5; elected chairman of committee of the whole, 32; favors national payment of Representatives, 210; Pierce's sketch of, 210, n.; opposed to ineligibility of Representatives to other offices, 214; favors compromise on representation, 232; opposes readjustment of land cession, 233; favors four years' term for Senators, 236; moves six years' term and rotation for Senators, 237; thinks small states equally interested with large states in union, 262; favors representation by population, 305; on committee to arrange representation, 307; defends report on representation, 319; thinks standard of representation should be fixed, 334; favors population as basis of representation, 339; opposes defining legislature's powers, 366; favors appointment of judges by Senate, 384; favors appointment of judges by the people, 385; favors appointment of judges by executive, 386; moves appointment of judges by executive with consent of Senate, 387; favors institution of inferior judicial tribunals, 389; favors power to suppress insurrections, 391; opposes inclusion of judiciary in revisionary power, ii., 18, 24; thinks oath of allegiance no bar to amendments to constitution, 30; opposed to ratification of constitution by legislatures, 33; favors two Senators from each state, 37; on committee to report constitution, 48; favors prohibition of national capital at state capital, 66; thinks constitution should fix time of meeting of legislature, 93; favors voting by non-freeholders, 106; thinks the new government will not last, 112; thinks Senate should not originate money bills, 115; thinks mode of electing Representatives should not be left to state legislatures, 126; thinks less than a majority may be a quorum of legislature, 132; thinks yeas and nays need not be required, 136; thinks provision concerning citizenship need not be retroactive, 146; thinks Senate should be paid more than House, 170; insists that money bills originate in House, 171; urges necessity for action, 211; opposes power to emit bills of credit, 181, 182; moves appointment of treasurer by joint ballot of legislature, 183; favors national support of army, 194; thinks adjustment of debts may be left to national legislature, 210; thinks union only of commercial advantage, 225; suggests difficulties of ratifying treaties by legislature, 239; thinks treaties should be negotiated in this country, 241; doubts if judiciary can impartially decide controversies between states, 242; favors election of executive by joint ballot of legislature, 242; seconds motion to extend period of slave trade, 250; thinks duty on slaves may discourage importation, 252; thinks precaution against discrimination in ports of entry unnecessary, 253; on committee of August 25, 254; thinks prohibition of paper money dangerous, 262; favors article providing for validity of state acts, 267; on committee on interstate acts, 268; thinks New England's motive for union dependent on commercial arrangements, 273; favors convention for ratification, 287; thinks vessels should not be obliged to enter and clear in their own states, 291; thinks members of legislature may be eligible to other offices, 295; thinks majority of Senate may elect President, 318; thinks separate provision for treaties of peace unnecessary, 330; thinks treaties need not require two-thirds of Senate, 334; opposes conditional ratification, 343; thinks jury question need not be included, 363; objects to state export duties, 365; thinks legislature should choose treasurer, 371; thinks provision as to jury trials unnecessary, 384; urges additional representation, 392.
Grand committee. _See_ Committee, grand.
Grayson, William, to Madison, i., 5, n.; to Monroe, 32, n.
H
Habeas corpus, necessity for preserving right of, debated, ii., 261.
Hall, Levi, signs address from Rhode Island, i., 11, n.
Halsey, Thomas Lloyd, signs address from Rhode Island, i., 11, n.
Hamilton, Alexander, N. Y., attends convention, i., 1; nominates William Jackson for secretary of the convention, 4; Pierce's sketch of, 4, n.; on committee on rules, 4; moves representation by free inhabitants, 37; favors absolute negative of executive on legislation, 70; moves proportional voting in Senate, 121; presents his plan of government, 152; explains views on powers of the states, 185, 189; opposes election of Representatives by state legislatures, 205; favors three years' term for Representatives, 209; opposes fixing compensation for Representatives, 211; opposes ineligibility of Representatives to other offices, 215, 223; favors centralized government, 241; opposes prayers in convention, 260; writes to Washington about public sentiment, 293, n.; thinks citizenship and inhabitancy alone necessary for Representatives, iv., 144; thinks President may be elected by a plurality of electors, 315; appointed on committee on style and arrangement, 338; favors increase in representation, 339; favors easily made amendments, 340, 341; thinks old Congress should sanction constitution, 342; thinks constitution will be effective if ratified by nine states, 343; moves a plan for ratification, 344; withdraws it, 346; favors two-thirds vote to override President's negative, 361; urges members to sign constitution, 394.
Hamilton plan, presented, i., 152; provisions of, 162; text of, 164, n.
House of Representatives. _See_ Legislature, national, House of Representatives.
Houston, William, Ga., attends convention, i., 49; moves increase in representation of Georgia, 325; opposes continuance of existing state constitutions, 391; favors additional representation of electors for New Hampshire and Georgia, ii., 10; moves consideration of appointment of executive by electors, 39; Pierce's sketch of, 39, n.; moves election of executive by national legislature, 40.
Houstoun, William Churchill, N.J., attends convention, i., 1.
I
Impeachment, of executive. _See_ Executive, national, impeachability of; Legislature, national, Senate. Of judiciary. _See_ Judiciary, national, impeachment of. Of national officers, provision for, struck out, i., 389; to be suspended during trial, ii., 270. Trials of, debated, i., 384, 385, ii., 259, 260, 297, 338.
Imports, power of states to tax, debated, ii., 264, 330; duties on, uniformity of, agreed to, 291, 372.
Indians, power to legislate for, proposed, ii., 226.
Ingersoll, Jared, Pa., attends convention, i., 5; considers signing to be recommending constitution, ii., 396; Pierce's sketch of, 396, n.
Insurrections, power to suppress. _See_ Republican government, guaranty of.
J
Jackson, William, nominated for secretary of convention, i., 3; elected, 4.
Jay, John, writes Washington against foreigners, ii., 48, n.
Jefferson, Thomas, Monroe to, ii., 56, n.; Madison to, 126, n., 320, n.
Jenckes, John, signs address from Rhode Island, i., 2, n.
Jenifer, Daniel, of St. Thomas, Md., attends convention, i., 55; favors three years' term for Representatives, 124; Pierce's sketch of, 124, n.; favors ineligibility of Representatives to other offices, 223; moves postponement of question of voting in Senate, 225; favors requirement that vessels must enter and clear in their own states, 295.
Jersey plan, the, submitted, i., 138; text of, 139; vote on, 185.
Jews, letter of, i., 323, n.
Johnson, William Samuel, Conn., attends convention, i., 55; suggests compromise between Virginia and Jersey plans, 200; Pierce's sketch of, 200, n.; favors elections to Senate by state legislatures, 234; favors representation by states in Senate, 261; favors inclusion of blacks in basis of representation, 342; thinks treason should be defined, ii., 204; thinks there can be no treason against a state, 205; on committee on navigation acts, 225; thinks prohibition of _ex post facto_ laws unnecessary, 228; thinks double control of treaties difficult, 239; thinks judiciary will decide controversies between states, 241; thinks obligations of old government binding on new, 249; suggests judiciary have power over equity cases, 256; moves extension of judicial power to cases arising under the constitution, 259; thinks acts of one state valid in courts of another state, 267; on committee on interstate acts, 268; thinks states cannot be dismembered, 276; moves admission of states hereafter formed, 278; thinks legislature may declare effect of state acts in states, 293; appointed on committee on style and arrangement, 338; submits report, 347; favors provision for sumptuary legislation, 366; on committee on sumptuary legislation, 366; offers further report of committee on style and arrangement, 368.
Jones, Joseph, writes to Madison, ii., 366, n.
Journal of legislature's proceedings. _See_ Legislature, national, journal of, House of Representatives, Senate.
Journals of convention, disposition of, ii., 396, 397.
Judiciary, national, supreme, agreed to, i., 75; consideration of, postponed, 130; debated, 384. Appointment to, debated, i., 76, 130, 136, 384, ii., 25; by legislature, vote on, i., 78; by Senate, agreed to, 132; by executive, vote on, 386, ii., 29; by executive with consent of Senate, debate on, i., 385; exclusion from, of those indebted to government, ii., 61, 235. Compensation of, fixed, agreed to, i., 375; power to increase, vote on, 387; debated, ii., 258. Impeachment of, trial by Senate proposed, ii., 227. Impeachment, power of, struck out, i., 388; debated, ii., 260. Inferior tribunals, debate on instituting, i., 81, 83, 84, 387, 388, ii., 184; power of legislature to refer cases to, struck out, 260. Jurisdiction of, debated, i., 129, 130, 136, 388, ii., 227; over controversies between states, debated, 241; to cases in equity proposed, 256; over controversies in which United States is a party, debated, 259; to cases arising under the constitution, debated, 259; appellate, debated, 259, 260; to be directed by legislature, proposed, 260; extension of, to land grants proposed, 261; to land claims, 281, 282; to impeachment trials proposed, 335, 336. Negative of, inclusion with executive proposed, i., 69, 75, 91, 93; over state laws, debated, 374; debated, ii., 174, 256. Revisionary power of, debated, i., 69, ii., 17, 175. State, power of, over national laws, debate on, 372; will be bound by national laws, 374. Tenure of, i., 76, 385, ii., 256.
Jury trial, right of, provided for, ii., 261; in civil cases debated, 363; motion to preserve, 367.
K
King, Rufus, Mass., attends convention, i., 1; objects to report of committee on rules, 5; Pierce's sketch of, 5, n.; opposes representation by quotas of contributions, 36, 115; notes of proceedings of convention, 39, n.; opposes election of Senators by state legislatures, 44; opposes inclusion of judiciary in council of revision, 69; favors ratification of constitution by conventions, 81; moves question of proportional representation, 115; thinks Senate should have power to originate money bills, 133; opposes sovereignty of the states, 186, 285; insists upon election of Representatives by the people, 206; favors national compensation for Representatives, 211; opposes ineligibility of Representatives to other offices, 214, 219; thinks New Hampshire deputies will attend, 272; favors proportional representation in Senate, 281, 357; thinks representation cannot be permanently fixed, 360; on committee on question of representation, 307; thinks slaves should count in representation, 322; brings in report of committee on representation, 323; thinks representation of the south too large, 323; defends report on representation, 323; opposes inclusion of three-fifths of blacks in representation, 338; opposes representation by population, 345; opposes ineligibility of executive to re-election, ii., 5, 42; opposes short term for executive, 9; opposes impeachability of executive, 13, 15; favors ratification of constitution by legislatures, 35; moves voting in Senate per capita, 37; favors election of executive by state legislatures, 42; proposes term of twenty years for executive, 43; opposes election of executive by electors chosen by lot from legislature, 47; opposes freehold qualification for electors, 61; thinks legislature need not meet annually, 93; thinks representation should exclude slaves, 110; opposes leaving time and mode of election of Representatives to state legislatures, 128; thinks less than a majority should be a quorum of legislature, 133; thinks lowest number for a quorum may be fixed, 134, 135; thinks legislature should not have power to change place of meeting, 139; thinks state debts should be assumed by nation, 192, 193; thinks state lands ought to be given up, 193; appointed on grand committee, 193; thinks states may punish treason under a different name, 205; thinks national government should punish for treason, 206; thinks treason against a state same as against nation, 207; thinks slaves should be taxed, 223; on committee on navigation acts, 225; explains provisions as to militia, 230; admits duty on slaves part of compromise agreement, 251; moves to prohibit states from violating private contracts, 263; moves to prohibit states from taxing exports, 266; thinks states should regulate their own manufactures, 265; thinks all the states must ratify constitution, 285; moves that only states ratifying be operated on by constitution, 285; thinks constitution must be ratified by conventions, 286; thinks state constitution no bar to ratification, 287; on committee of August 31, 292; moves ineligibility of members of legislature to offices created during their term, 295, 296; moves to obtain consent of state legislatures to purchases of lands for national purposes, 306; thinks eventual election of President will be with Senate, 311; moves that electors be not office-holders, 312; favors change of clause relative to re-election of President, 313; moves increase of number necessary to elect President, 319; thinks Senate may share in appointments, 328; objects to participation of two-thirds of Senate in treaties, 329; opposes special provision for treaties of peace, 332; moves special provision for treaties affecting national rights, 332; thinks old Congress should consider constitution, 336; on committee of style and arrangement, 338; thinks old Congress need not sanction constitution, 345; thinks President ought not to be suspended if impeached, 370; thinks legislature should choose treasurer, 371; thinks power to grant charters unnecessary, 373; thinks publication of public expenditures impossible, 376; opposes change in representation, 378; thinks executive may pardon for treason, 382; thinks guaranty of jury trials not necessary, 384; urges additional representation, 392; proposes journals of convention be disposed of, 396.
Knox, General Henry, writes to Washington on prospects of convention, ii., 158, n.
L
Land cession, question of, i., 232.
Lands, public. _See_ Legislature, national, power of.
Langdon, John, N. H., attends convention, ii., 29; opposes disqualification from legislature of persons having unsettled accounts, 64; Pierce's sketch of, 64, n.; opposes prohibition against placing national capital at state capital, 66; favors national compensation of legislature, 167; opposes power to emit bills of credit, 183; favors suppression of rebellion without state's consent, 187; appointed on grand committee, 193; thinks Representatives must be trusted, 195; thinks national control of militia necessary, 196; opposes taxation by congressional representation, 208; asks only fair representation for New Hampshire, 212; objects to state power to tax exports, 213, 214; opposes leaving slave trade to states, 223; moves to commit question of navigation acts, 225; on committee on navigation acts, 225; thinks state and national governments need not be jealous, 231; favors national power of negative on state laws, 237; thinks executive should be elected by joint ballot of legislature, 243; thinks creditors of government should not be disturbed, 248; admits duty on slaves is part of compromise agreement, 251; on committee of August 25, 254; doubts if new states should be admitted on an equality with old, 275; thinks new states may be created, 276; thinks Vermont should be brought into the Union, 276; thinks vessels should not be made to enter and clear in their state, 291; objects to export duties by states, 365; moves increase in representation of North Carolina and Rhode Island, 378; thinks commercial regulations should be national, 381.
Lansing, John, N. Y., attends convention, i., 55; Pierce's sketch of, 138, n.; supports Jersey plan, 143; opposes Virginia plan, 194; opposes legislature of two branches, 190; favors voting in House by states, 252; leaves convention, 298, n.
Legislature, national, acts of, may originate in both houses, i., 248, ii., 170; enacting style, 170. Compensation of members, considered, i., 125, 209, 244, 245; to be fixed, 126; and eligibility to re-election, debated, 130; to be ascertained by members, 212; by state legislatures, 213; vote on, 217; agreed to, 336; debated, ii., 166, 169. Constitution of, considered, ii., 8; agreed to, 96. Disqualification of debtors from, debated, ii., 63, 65, 66; of pensioners from, 65; of persons having unsettled accounts with, 65; of members from other offices, 158, 294, 297, 371. Elections to, by popular vote, debated, i., 53; mode of, debated, 81, 134; eligibility to re-election, debated, 127; eligibility of state officers to, 127. Expulsion from, debated, ii., 135, 136. Journal of proceedings, debate on, ii., 136, 137, 370. Money bills in, originating of, debated, i., 309, 312, ii., 149, 153, 157, 210, 212. Negative of, on state laws, considered, i., 47, 101, 107, 372, 374; on acts of executive, vote on, ii., 95; debated, 361; verbal amendment offered, 367. Place of meeting, debated, ii., 139. Power of, debated, i., 45, 135, 366, ii., 177; coercion on delinquent states, i., 47; to legislate where states not competent, i., 47, 371, 372; over state police, 370, 371; over state judiciary, 374, 375; members of, in debate, ii., 135; expulsion of members of, ii., 135; to compel attendance of members, ii., 135; to judge of elections of members, ii., 135; to adjourn, 138; limits of, debated, 172, 173; to regulate captures, debated, 184; over Indians, debated, 226; over general welfare, proposed, 226; to pass _ex post facto_laws and bills of attainder, prohibited, 227, 375; to fulfil engagements of old Congress, debated, 229, 237; over militia, debated, 230, 235; to enforce treaties, debated, 235; negative on state laws, debated, 236; to pass tax laws, debated, 241, 371; to pay public debts, debated, 247, 297; to regulate ports of entry, 252; to refer appointments to state legislatures, 254; to pay debts with anything but coin, debated, 262; report of committee of eleven taken up, 269; over public lands, proposed, 280, 282; to make national bankruptcy law, debated, 293; to judge privileges of members, 304; to grant letters of marque and reprisal, 304; to govern seat of government, 305; to grant copyrights, 305; to create offices, proposed, 338; to appoint treasurer, debated, 371; to punish piracies, etc., debated, 372; to make canals, proposed, 373; to grant charters, proposed, 373; to establish a university, proposed, 374; to be limited in providing for standing army, 375. Property qualifications for members of, debated, ii., 59, 63, 128, 132, 147. Qualifications for members of, debated, i., 42, ii., 131. Quorum in, debated, ii., 132, 135, 177. Representation in, debated, i., 36, 109, 114, 120, 134, 232, 302, 327, 331, 338, 341, 342, ii., 110, 114; compromise proposed, i., 114; enumeration of blacks and whites, debated, 258, 338, 340, 344, 346, 347, 350; question postponed, 318; referred to committee, 322; report of committee, 322; motion to increase, debated, 325; census for, debated, 328, 338, 340, 341; taxation as basis of, debated, 342, 347, 348, 371; moved that, of large states be limited, 378; increase of, debated, ii., 318, 323, 393. Rules to be regulated by each house, ii., 170. Term of members of, debated, i., 126. Time of meeting, debated, ii., 93, 94, 95. Two branches of, agreed to, i., 39, 134; debate on, 190, 199, 204. House of Representatives, mode of election to, debated, i., 39, 40, 42, 84, 91, 204, 224; classification of states to determine representation in, proposed, 106; term of members, debated, 124, 126; age for members, debated, 125, 213, 214; elections to, by state legislatures, proposed, 206, 247; three years' term in, proposed, 207, 209; eligibility of members to other offices debated, 214, 217, 218, 223, 224, ii., 292; committee report on representation in, i., 318, 319; constitution of, debated, ii., 96, 301; who may vote for members of, debated, 106; seven years' citizenship for members of, proposed, 107, 131, 132; qualifications for members of, debated, 107; clause relative to, agreed to, 110; money bills to originate in, debate on, 115, 305, 337; power of impeachment of, agreed to, 116; time and mode of election to, debate on, 126, 128; power of, over elections in states, debated, 128; citizenship and residence for members, debated, 144, 145; four years' citizenship for members of, proposed, 145; nine years' citizenship for members of, proposed, 145; citizenship requirements not to apply to those already citizens, 145, 148; five years' citizenship for members of, proposed, 148; clause for citizenship and age of members agreed to, 148; representation by direct taxation, debate on, 151; power to make bankruptcy laws, proposed, 292; power of, to make treaties, proposed, 327; increase in representation in, proposed, 339; moved to strike out apportionment by "direct taxes," 367; proposed that all journals of, be printed, 371. Senate, mode of election to, debated, i., 43, 233, ii., 116; to be a check on democracy, i., 44; election to, by state legislatures, debated, i., 44, 94, 101, 236; elections to, by the people, debated, 100; mode of voting in, debated, 121, 234, 248, 309, 313, 347; age for members of, debated, 127, 236; term of members of, debated, 128, 130, 236, 237, 243; compensation of members of, debated, 130, 244, 246, 247; originating money bills in, debated, 132, 134, 355; representation in, debated, 235, 236, 356, 364, 367, 368, 369, ii., 37, 304; property qualification for members of, debated, i., 246; eligibility of members of, to state offices, considered, 246; eligibility of members of, to any offices, considered, 297; voting in, by states, debated, 314; citizenship for members of, debated, ii., 124, 125; age and citizenship for members of, debated, 126, 148; moved that members of, be permitted to enter dissent to measures, 136; moved that journal of, be published, 136; choosing officers of, agreed to, 180; power of appointment by, 235, 238; treaty-making power of, debated, 238, 240; power of, to appoint ambassadors, etc., considered, 240; power of, in controversies between states, considered, 241; power to try impeachments, proposed, 298; power of, objected to, 315; to vote on President, 318; power of, in treaty making, debated, 327, 329; in appointments, 328; quorum of, debated, 335; power of, in impeachment of President, debated, 335, 336; power of, to amend money bills, 337; to be under oath in impeachment trials, 338.
Letters of marque, power to issue, debated, ii., 191.
Liberty of the press, guaranty of, proposed, ii., 375.
Livingston, William, N. J., attends convention, i., 96; appointed on grand committee, ii., 193; Pierce's sketch of, 209, n.; delivers report on state debts and militia, 209; on committee on navigation acts, 225; submits report on slave importation and navigation acts, 240; on committee on sumptuary legislation, 366.
M
Madison, James, Va., attends convention, i., 2; moves question of representation in legislature, 36; Pierce's sketch of, 36, n.; favors proportional representation, 36, 38, 253; favors election to House by popular vote, 41, 86; opposes district elections to Senate, 44; opposes defining powers of national legislature, 47; opposes use of force against recalcitrant states, 47; moves consideration of powers of executive, 52; opposes removability of executive on motion of state legislatures, 63; favors qualified negative of executive on legislation, 71; favors inclusion of judiciary with executive in negative on legislation, 75, 91; opposes appointment of judges by legislature, 77, 131; favors ratification of constitution by popular vote, 80, ii., 36; favors creation of inferior judicial tribunals, i., 83; opposes elections to Senate by state legislatures, 99; favors a small Senate elected by the people, 96; favors negative by national legislature of state laws, 102, 106, 373; favors three years' term for Representatives, 124; favors national compensation of members of national legislature, 125, 212; favors seven years' term for Senators, 128; moves to define jurisdiction of judiciary, 130; thinks Senate should have power to originate money bills, 133; opposes Jersey plan, 167; thinks national government in danger from state governments, 202; opposes annual elections of Representatives, 208; favors compensation of Representatives by fixed standard, 211; favors ineligibility of Representatives to other offices, 218; favors partial ineligibility of Representatives to other offices, 221; moves debate on mode of voting in Senate, 235; sets forth objects of Senate, 238; opposes compensation of Senators by state legislatures, 345; opposes equal state representation, 264, 276, 357, 363; would preserve state rights, 282; opposes compromise committee on representation in Senate, 292, 296; thinks question of representation vital, 315; suggests representation by free population in House and by free and slaves in Senate, 321; moves increase in representation of all states, 325; thinks basis of representation should be fixed, 335; favors census at least every fifteen years, 340; favors adjustment of taxation to representation, 348; favors independence of executive, 380; thinks tendency is to give executive too little power, 382; favors appointment of judges by executive and one-third of Senate, 385; moves appointment of judges by executive and two-thirds of Senate, 387; objects to power to increase judges' salaries, 388; favors continuance of old Congress to prevent interregnum, 390; favors national guaranty against domestic violence, 391; favors election of executive by the people, ii., 6; favors varying ratio for electors to choose executive, 10; favors impeachability of executive, 12; seconds motion to include judiciary in revisionary power, 18, 22; moves appointment of judges by executive and Senate, 26; is willing to allow a majority of Senate to reject appointment of judges, 28; speaks on mode of election of executive, 49; thinks each voter may vote for two persons for executive, 54; thinks persons indebted to government should be excluded from legislature, 60; moves that property qualification be not confined to landed property, 62; opposes mutual negative of each branch of legislature over acts of the other, 92; suggests that time of meeting of legislature be not fixed in constitution, 92, 93; favors fixing time of meeting of legislature provisionally, 94; favors changing time of meeting of legislature from December to May, 95; favors power of suffrage by freeholders, 99; views on suffrage, 100, n.; favors requiring Representatives to be inhabitants of their states, 107; opposes proposition that Representatives be required to reside seven years in their states, 108; objects to fixed ratio of Representatives to inhabitants, 111; moves representation of not more than 1 to 40,000 inhabitants, 136; opposed to originating money bills in House, 116; moves that vacancies in Senate must happen by refusals, resignations, etc., 117; thinks provision as to money bills valueless to large states, 118; opposes fourteen years' citizenship as necessary for Senators, 121; opposes leaving time and mode of electing Representatives wholly to state legislatures, 126; writes to Jefferson on progress of the convention, 126, n.; thinks property qualification for members of government should be fixed in constitution, 130, 131; moves that expulsion from legislature be by two-thirds vote, 135; moves legislature have power to compel attendance, 135; moves that Senate shall publish its legislative journal, 137; insists upon central location for capital, 139; thinks legislature should not have power to change place of meeting, 138; writes to his father, 142, n.; thinks citizenship and inhabitancy alone necessary for Representatives, 144; thinks government responsible for what states have done, 146; thinks Senate may decrease money bills, 152; thinks constitution should regulate compensation of legislature, 167; moves that laws be revised by executive and judiciary, 172; thinks power to tax exports desirable, 176; opposes power to emit bills of credit, 181; thinks punishment of piracies, etc., ought not to be fixed by legislature, 184; moves that legislature define piracies, etc., 185; moves that rebellion to be suppressed be against government, 187; moves to give legislature power to declare war, 188; submits power over public lands, Indians, seat of government, charters, copyrights, university, forts, 189; favors national control of militia, 197; moves power to create offices in legislature, 203; thinks treason should be broadly defined, 203, 204; thinks treason may be against nation and a state, 205; thinks treason should not be twice punishable, 207; thinks present representation temporary, 211; favors power to tax exports, 215; favors taxation of exports by two-thirds legislature, 217; on committee on navigation acts, 226; thinks new government should have power to fulfil engagements of old government, 229; explains provisions as to militia, 230; favors national control of militia, 232; proposes states appoint militia officers under rank of general, 233; thinks disunion the greatest danger, 234; moves to commit question of negative of state laws, 236; moves to include President in treaty-making power, 238; suggests inconvenience of legal ratification of treaties, 238; suggests varying participation of legislature in different treaties, 240; thinks larger states should have larger vote in election of executive, 244; moves extension of appointing power of executive, 246; opposes slave-trade extension, 250; opposes admitting property in men in constitution, 252; moves that treaties be supreme law, 252; thinks president of Senate should not be in executive succession, 256; moves amendment to oath of executive, 256; favors fixed salaries for judges, 258; proposes salaries of judges be not changed for three years, 258; moves judiciary have jurisdiction over cases in which U. S. is a party, 259; thinks judicial power should not extend to all cases under constitution, 259; moves verbal change in judiciary clause, 260; thinks states should not have power to interfere in private contracts, 263; thinks retrospective laws are prohibited, 263; moves states be forbidden to pass embargoes, 264; moves to forbid states to lay imposts, 264, 265; objects to imposts by states, 266; favors committing clause on state acts, 267; thinks commercial regulations not injurious to south, 272; thinks western states entitled to an equality with others, 274; opposes guaranty of public lands, 281; thinks constitution may go into operation without a majority in favor, 284; moves ratification by seven states and thirty-three Representatives, 285; thinks ratification conventions necessary, 286; thinks it inconvenient if vessels must enter and clear at their own ports, 291; on committee of August 31, 292; offers amendment strengthening interstate validity of state acts, 293; fears election of President will be thrown on Senate, 300; doubts if legislature should judge of privileges of its members, 304; thinks legislature should not participate in electing President, 309; proposes that election of President may be by one-third of whole number of electors, 310; moves that electors not voting be not counted, 311; moves that two-thirds Senate be present when voting for President, 318; shows President may be elected by two states, 319; moves that election of President by legislature when Vice-president also dies be temporary, 323; seconds motion that no state vote for President in legislature by less than three Representatives, 325; thinks some cure required to prevent minority in legislature electing President, 325; proposes treaties of peace be by majority of Senate, 330; proposes two-thirds Senate make treaties of peace without President, 330; favors executive council, 332; thinks treaties have been too easily made in past, 334; moves quorum of Senate be two-thirds, 406; thinks impeachment of President should not be on vague grounds, 335; moves supreme court try President, 335; seconds motion to increase representation, 339; thinks clause relative to amendments should be reconsidered, 340, 341; favors three-quarter vote to override President's negative, 363; favors state export duties, 365; thinks supreme court can negative state laws, 365; moves verbal amendment to clause relative to negative of bills, 368; moves words "by lot" be struck out for classifying Senators, 369; thinks President ought not to be suspended when impeached, 370; favors national charters where states are incompetent, 372; moves power to establish university, 374; favors limiting standing army, 374; moves public accounts be published from time to time, 376; writes to J. Q. Adams, 378, n.; favors national control of commercial regulations, 380; thinks Senate may participate in pardons for treason, 382; thinks superior officers may make appointments, 383; thinks legislature may propose amendments, 385; opposes special provisos in constitution, 386.
Madison, Rev. James, of William and Mary, writes to James Madison on prospects of convention, ii., 75, n.
Manufactures, encouragement of, by imposts, debate on. ii., 264, 265; regulation of, debated, 265.
Marque and reprisal, letters of, power to grant, proposed, iv., 366.
Martin, Alexander, N. C., attends convention, i., 2; insists upon equal power of states, 188; favors elections of Representatives regulated by state legislatures, 204; favors ineligibility of Representatives to other offices, 218; Pierce's sketch of, 218, n.; on compromise committee on representation, 292; moves increase in representation of North Carolina, 325; opposes fixing national capital at same place with a state capital, ii., 66; seconds motion for commercial regulations, 269.
Martin, Luther, Md., attends convention, i., 107; opposes oath from state officers to national government, 123; Pierce's sketch of, 189; opposes legislature of two branches, 195; wishes to preserve state governments, 248, 250; insists on state sovereignty, 268, 287; favors two confederacies if states cannot have equal vote in Senate, 356; opposes national negative on state laws, 373; moves that national laws be binding on state judiciary, 374; favors election of executive by electors chosen by state legislatures, 378; moves to consider question of re-eligibility of executive, 383; favors appointment of judges by Senate, 384; opposes creation of inferior judicial tribunals, 384; opposes power in national government to suppress rebellion in states, 391; moves ineligibility of executive to re-election, 8, 42; opposes inclusion of judiciary in revisionary power, 21; opposes voting in Senate per capita, 38; favors disqualification from legislature of debtors to government, 64; moves eleven years' term for executive, 43; favors state compensation of Senate, 169; asks definition of "duties" and "imposts," 176; opposes power to subdue rebellion in a state without its consent, 186; favors provision against large army in time of peace, 195; moves treason be punishable on confession, 208; proposes direct taxation by quotas from states, 212; moves that states be permitted to tax migration of slaves, 218; on committee on navigation acts, 225; favors state control of militia, 232; moves clause to prevent discrimination in ports of entry, 252; moves to restrict executive power of pardoning, 255; withdraws motion, 255; opposes requiring large states to consent to forming new states, 275; opposes admission of new states by two-thirds vote, 275; favors committing motion to require consent of states to dismemberment, 277; thinks new states should be formed without consent of old states, 279; moves that land claims be examined by supreme court, 282; moves guaranty of domestic tranquillity on state executive's application, 283; insists upon ratification by state legislatures, 289; thinks the people will not vote for constitution, 289.
Mason, George, Va., attends convention, i., 2; objects to report of committee on rules, 6; Pierce's sketch of, 6, n.; thinks government should operate on individuals, 34; favors seven years' term for executive, 54; favors election of executive by the people, 55; opposes subordinating executive to legislature, 63; opposes single executive, 72; favors election of Representatives by the people, 86, 205; favors separation of purse from sword, 93; favors election of Senators by state legislatures, 100; favors provision for amendments to constitution, 122; favors national compensation of Representatives, 126; favors two branches of legislature, 192; favors biennial elections of Representatives, 208; moves that Representatives be at least twenty-five years of age, 213; favors ineligibility of Representatives to other offices, 215, 222; opposes ineligibility of Representatives to other offices, 218; favors representation in Senate by states, 235; favors property qualification for Senate, 246; on compromise committee on representation, 292; supports report of compromise committee on representation, 302; moves to refer question of voting in Senate to committee, 308; thinks money bills should originate in House, 309, ii., 115, 118; favors an increase in representation, i., 326; favors representation based on population, 329; thinks slaves should have proportion in representation, 332; thinks legislature ought not to fix representation, 334; thinks constitution ought to fix representation, 338; thinks taxation should be according to representation, 344; opposed to direct taxation proportioned to number of Representatives, 349; opposes election of executive by the people, 377; opposes election of executive to serve during good behavior, 381; opposes appointment of judges by executive, 384, ii., 28; favors institution of inferior judicial tribunals, i., 389; favors guaranty of republican government to the states, 391; favors impeachability of executive, ii., 11; favors inclusion of judiciary in revisionary power, 19, 23; thinks constitution should be ratified by the people, 31; opposes three Senators from each State, 38; favors election by legislature of executive for not more than six years in twelve, 52; moves seven years' term and ineligibility for executive, 59; proposes property qualification for legislature, 59; moves to exclude from legislature debtors to United States, 59; moves that national capital be not at a state capital, 66; withdraws the motion, 67; doubts propriety of mutual negative of each branch of legislature on the other, 91, 92; thinks time of meeting of legislature should not be fixed by constitution, 94; thinks suffrage question should be left to the states, 97; favors free general suffrage, 98; thinks seven years' citizenship should be required of Representatives, 107; moves that Representatives be required to be inhabitants of their states for one year, 109; favors postponing question of voting in Senate, 118; favors postponing question of originating money bills, 120; thinks aliens should not be in legislature, 121; thinks quorum in legislature should be a majority, 133; approves expulsion from legislature by two-thirds vote, 135; thinks yeas and nays should be required, 136; thinks publication of journal of legislature necessary, 138; thinks government not bound by state laws on naturalization, 149; thinks first money bills should originate in House, 149; moves to allow members of legislature to hold any office, 159; thinks Representatives should be independent of state legislatures, 168; thinks revenue bills should originate in House, 170; thinks Senate may alienate territory, 171; moves that no tax be laid on exports, 179; favors power to emit bills of credit, 181, 183; favors appointment of treasurer by legislature, 184; thinks punishment may be fixed in cases of piracy, etc., 184; opposes giving power of war to executive, 188; thinks general government should regulate militia, 190; thinks funds may be diverted in time of war, 191; appointed on grand committee, 193; favors partial national control of militia, 195, 196; favors power to make sumptuary laws, 202; thinks treason may be against a state, 205; thinks treason should be defined, 208; calls up amendment as to money bills, 211; thinks states should retain power over exports, 216; denounces slavery and slave trade, 219; asks how legislature can negative state laws, 231; objects to compelling settlement of old debts, 347; opposes naming slave-importing states, 250; thinks tax on importation of men necessary, 252; on committee of August 25, 254; moves amendment to executive's oath, 256; thinks judges' salaries should be fixed, 258; thinks states may interfere in private contracts, 263; thinks states may lay embargoes, 264; thinks states may wish to encourage industries by imposts, 265; thinks two-thirds vote necessary for commercial regulations, 271; thinks western people should be treated with equality, 274; thinks nine states may ratify constitution, 288; declares he will not sign constitution, 289; approves amendment relative to interstate validity of state acts, 293; thinks members of legislature should not hold other offices, 296; thinks President will usually be chosen by Senate, 301; thinks election of President by electors objectionable, 308; thinks President may be elected by minority, 309; moves that Senate choose President from three highest candidates, 311; thinks system of electors autocratic, 312; prefers eventual election of President by House of Representatives, 318; approves increasing number for quorum to elect President, 319; thinks Vice-President will encroach on Senate's rights, 326; favors an executive council, 331; moves to extend reasons for impeaching President, 335; moves to postpone motion for second convention, 347; thinks two-thirds vote may override President's negative, 362; thinks bill of rights necessary, 364; moves states may levy export duties, 364; moves clause for sumptuary laws, 366; on committee on sumptuary legislation, 366; favors state tax on exports, 367; moves publication of all proceedings of House, 370; favors power to cut canals, 373; opposed to standing armies, 374; moves to strike out prohibition of _ex post facto_ laws, 375; moves verbal amendment to capitation tax clause, 375; moves annual publication of expenditures, 376; thinks states may lay tonnage dues, 380; thinks President should not have power to pardon for treason, 382; thinks legislature should have pardoning power for treason, 382; disapproves provision for amendments, 385; objects to navigation acts by majority, 387; announces he cannot sign constitution, 387; refuses to sign, 398.
McClurg, James, Va., attends convention, i., 2; moves that term of executive be for good behavior, 379; insists upon necessity for independence of executive, 382; Pierce's sketch of, ii., 16, n.; suggests ascertaining how executive is to act, 16; writes to Madison, 75, n., 91, n., 236, n., 340. n.
McHenry, James, Md., attends convention, i., 5; Pierce's sketch of, ii., 167, n.; appointed on grand committee, 193; thinks direct taxation should be by quotas from states, 213; thinks embargo power embraced in war power, 215; moves prohibition of _ex post facto_ laws or bills of attainder, 227; proposes plan for choosing ports of entry, 253; moves judges receive fixed salaries, 258; thinks Maryland must ratify according to her law, 287; thinks vessels will take officers as security of entry dues, 291; moves President have power to convene either house of legislature, 338; moves states may lay tonnage dues, 380.
Mercer, John Francis, Md., attends convention, ii., 75; opposes election of Representatives by the people, 105; opposes whole plan of constitution, 106; thinks the people ought to be guided in their voting, 107; suggests that candidates for Representatives be nominated by state legislatures, 107; opposes requirement of seven years' residence of Representatives in their states, 108, 109; thinks Senate should have power to originate money bills, 115; thinks less than a majority should be quorum of legislature, 132; seconds motion to fix quorum at few, 134; thinks Senate should have only legislative power, 137; thinks two houses will not agree on place of meeting, 140; thinks provisions as to citizenship should not apply to those now citizens, 145; thinks government bound by state laws on naturalization, 148; thinks aristocracies will arise, 160; fears good men will not serve in legislature, 165; thinks Senate ought not to make treaties, 171; thinks judiciary should not be included in revisionary power, 172; opposes taxing exports, 182; declares himself friendly to paper money, 182; favors appointment of treasurer by executive, 184; favors defining of piracies, felonies, etc., 185; opposes power to subdue rebellion without request of state legislature, 186.
Mifflin, Thomas, Pa., attends convention, i., 5; seconds motion that acceptance of other office shall vacate seat in legislature, ii., 159; Pierce's sketch of, 159, n.
Militia, power of regulating, debated, ii., 191, 195; report on, command of, debated, 255. _See_ Legislature, national, power of.
Money bills, originating of. _See_ Legislature, national, money bills, House of Representatives, Senate.
Monroe, James, to Jefferson, on prospects of the convention, ii., 56. n.
Morris, Gouverneur, Pa., attends convention, i., 1; offers address from citizens of Rhode Island, 8; Pierce's sketch of, 8, n.; objects to committee on minutes, 13; moves question of federal or national government, 32; explains difference between federal and national government, 34; favors compromise committee on question of representation, 287; favors election of Senators for life, 287; opposes report of compromise committee on representation, 298; thinks representation should be according to wealth, 303, 319; thinks representation should not be definitely fixed, 304, 334; on committee on representation question, 307; favors originating money bills in both houses, 309, 310; opposes equal representation of small states, 316; submits report on representation in House, 318; favors referring question of representation to committee, 320; moves consideration of question of fixing representation, 320; favors property and population as basis of representation, 324; thinks southern states sufficiently represented, 324; objects to requiring legislature to take census, 328; fears preponderance of western states, 328; opposes inclusion of slaves in basis of representation, 332, 340, 350; moves that taxation be according to representation, 341, 342, 348; thinks legislature should adjust basis of representation, 343; moves reconsideration of question of representation in Senate, 370; opposes taxation by quotas, 371; opposes forbidding national government to interfere with state police, 371; favors power in legislature where harmony would be disturbed by state legislation, 372; opposes negative of state laws by legislature, 372, 374; thinks judiciary will have power to set aside laws, 374; favors election of executive by the people, 375, 376; opposes ineligibility of executive, 379; favors election of executive during good behavior, 379; disclaims friendliness to monarchy, 382; favors appointment of judges by executive, 384; thinks impeachment trials should not be before the judges, 385; favors appointment of judges by executive with consent of Senate, 387; favors power to increase judges' salaries, 387, 389; favors institution of inferior judicial tribunals, 389; opposes continuance of old Congress, 390; opposes guaranteeing existing laws to the states, 390; favors a vigorous executive, ii., 1; favors re-eligibility of executive, 3, 58; favors short term for executive, 9; thinks executive ought not to be impeachable, 11; admits executive ought to be impeachable in some cases, 12, 15; moves that electors for executive be not officials, 15; thinks revisionary power requires more than the executive, 20; thinks judiciary and executive may exercise revisionary power jointly, 24; favors appointment of judges by executive, 27; favors ratification of constitution by the people, 35; moves that voting in Senate be per capita, 37; moves ratification of constitution by a general convention, 37; moves that there be three Senators from each state, 37; opposes election of executive by members of national legislature chosen by lot, 44; opposes election of executive by national legislature, 45; opposes apportionment of direct taxation by representation, 47; favors election of executive by the people, 53; thinks each voter for executive may vote for two persons, 54; opposes property qualification for members of legislature, 60; thinks debtors of government need not be excluded from legislature, 60, 65; seconds motion to strike out "landed" property as requirement in executive, 63; opposes prohibiting national capital at state capital, 66; moves to restrict mutual negative of each branch of legislature on the other to legislative acts, 91; thinks treaties are not laws, 92; moves to strike out provision for time of meeting of legislature, 93; moves to change time of meeting of legislature from December to May, 94; favors absolute negative in executive on legislature, 95; moves restriction of suffrage to freeholders, 96; thinks suffrage should be fixed by legislature, 96; thinks general suffrage will produce aristocracy, 98; favors seven years' citizenship for representatives, 127; opposes requirement that Representatives be residents of their states, 108; moves that representation be by free population, 112; opposes slavery and the slave trade, 112; thinks Senate should have right to originate money bills, 115, 152; agrees that vacancies in Senate must be by refusals, resignations, etc., 117; favors equal vote in Senate, 119; moves fourteen years' citizenship for Senators, 120; opposes admission of aliens into government, 123; moves that state legislatures fix time and mode of electing Representatives, 126; opposes leaving time and mode of electing Representatives exclusively to state legislatures, 128; moves to strike out property qualification, 131; moves to fix quorum at few, 133; thinks any member may call for yeas and nays, 135; thinks majority may expel from legislature, 135; thinks citizenship requirements ought not to apply to those already citizens, 145, 147; thinks members of legislature may hold some other offices, 162, 166; thinks members of legislature may serve in army and navy, 166; favors national compensation of legislature, 167; thinks revenue bills need not be confined to House, 171; thinks some check on legislative acts necessary, 173; moves that executive power of negative extend to resolutions, 176; thinks exports may be taxed, 178, 179; opposes power to emit bills of credit, 181; thinks legislature should punish counterfeiting, 184; moves that legislature punish piracies, etc., 185; thinks legislature should designate piracies, etc., 186; thinks legislature should have power to subdue rebellions, 186; opposes inclusion of executive in power to subdue rebellions in states, 186; thinks power to subdue rebellions necessary, 187; submits propositions for committee of the whole, 200; opposes power to make sumptuary laws, 202; thinks treason should be defined, 203, 204; moves British statute for treason, 205; thinks treason should not be twice punishable, 207; thinks debts should be adjusted with taxation, 210; favors power to tax exports, 214; moves slave-trade question be committed, 224; thinks prohibition of _ex post facto_ laws unnecessary, 227; favors prohibiting bills of attainder, 227; moves new government discharge engagements of old government, 229; moves that Senate shall not have power of appointment, 235; moves that power to enforce treaties be not specified, 285; moves clause giving power over militia, 235; thinks national appointment of state executives should be committed, 237; doubts if treaties should be referred to Senate, 238; suggests that treaties will be negotiated in this country, 239; opposes election of executive by legislature, 244; moves election of executive by electors, 245; moves executive be required to make recommendations to legislature, 246; objects to state power to appoint federal officers, 247; thinks debts of old government should be paid by new government, 249; moves that slave-importing states be named, 250; withdraws motion, 251; thinks freemen may be taxed, 252; seconds motion to make treaties supreme law, 252; moves that executive have power to correspond with states, 254; moves chief justice succeed as executive, 255; objects to removability of judges upon legislature's application, 257; moves judicial power extend to cases in which U. S. is party, 259; asks what is appellate power of judiciary, 259; moves verbal change in judiciary clause, 259; opposes power to suspend habeas corpus except in emergency, 261; opposed to forbidding states to interfere in private contracts, 263; thinks prohibiting embargoes by states unnecessary, 264; thinks states should not tax exports, 266; favors commercial regulations, 270; moves interstate validity of acts of states, 268; opposes admission of western states on an equality, 275; does not wish power to pass to western states, 275; proposes method of admitting new states, 275; opposes admission of new states by two-thirds vote, 275; thinks states must consent to division, 277; thinks question of new states is one of jurisdiction rather than limits, 279; moves that legislature control public lands, 282; thinks supreme court has jurisdiction in land cases, 282; thinks legislatures may call convention to amend constitution, 283; approves motion prohibiting religious test for office, 283; thinks contiguous states must ratify, 284; thinks states may choose method of ratification, 286; moves Congress be not required to approve constitution, 288; favors a second convention, 351; on committee of August 31, 292; moves amendment on the subject of interstate validity of state acts, 293; favors national bankruptcy laws, 294; thinks members of legislature may hold other offices, 295; fears election of President will devolve on Senate, 301; defends system of electors, 301, 314; thinks election of President should be free from cabal, 302; prefers eventual election of President by Senate to whole legislature, 303; thinks each House should be judge of privileges of its own members, 304; moves postponement of clause relative to revenue bills, 306; seconds motion to require state legislature's consent to national purchase of forts, etc., 306; does not think Senate will elect President, 309; favors separate provision for re-election of President, 313, 318; thinks Vice-President will not be in accord with President, 326; thinks President must concur in treaties of peace, 330; thinks executive council unnecessary, 331; opposes special provision for treaties of peace, 333; thinks whole legislature should participate in treaties of peace, 334; objects to two-thirds of Senate being a quorum, 335; favors impeachment for maladministration, 335; thinks Senate should try impeachments, 336, 337; on committee on style and arrangement, 338; favors three-quarters vote to override President's negative, 361; points out danger from unstable laws, 362; favors state power to collect export duties, 365; explains words "direct taxes" in report, 367; approves verbal amendment on negative of bills, 368; moves suspension from office of persons impeached, 370; thinks legislature may appoint treasurer, 371; moves offences against law of nations be definable, 372; thinks government can establish university, 374; opposes provision against standing army, 374; thinks publication of expenditures impossible, 376; thinks states may lay tonnage dues, 380; opposes power of legislature to pardon for treason, 382; moves executive and others have power of appointment, 383; moves amendments by general convention, 385; moves states have equal suffrage in Senate, 386; announces he will sign constitution, 393.
Morris, Robert, Pa., attends convention, i., 1; Pierce's sketch of, 2, n.; moves Washington's election as president of convention, 3; thinks Senate should be chosen by the people, 95; favors life term for Senators, 236.
N
National government of three branches agreed to, i., 35.
"National" in Virginia plan, word struck out, i., 190.
Naturalized citizens, rights of debated, ii., 145.
Navigation acts, question of, committed, ii., 225; postponed, 253; agreed to, 273; considered, 291; debated, 380, 386.
Navy, provision for, debated, ii., 194.
Negative on legislative acts. _See_ Executive, national, negative of; Judiciary, national, supreme, negative of.
Negative on state laws. _See_ Legislature, national, negative of.
New Hampshire, moved that governor of, be requested to send delegates, i., 272; representation of, 322, 324; delegates from, attend convention, ii., 29.
New Jersey plan. _See_ Jersey plan.
Nightingale, Jos., signs address from Rhode Island, i., 11, n.
North Carolina, representation of, i., 325, ii., 378.
O
Oath to support national government from state officers, debated, i., 79, 122, 123, 137, ii., 30; to support constitution, affirmation permitted, 284.
Olney, Jeremiah, signs address from Rhode Island, i., 11, n.
P
Pardons and reprieves. _See_ Executive, national, power of.
Patents and copyrights. _See_ Legislature, national, power of.
Patterson plan. _See_ Jersey plan.
Patterson, William, N. J., attends convention, i., 1; Pierce's sketch of, 79, n.; moves to consider mode of voting in legislature, 109; favors equal vote by states in legislature, 111, 315; offers plan of government, 137; on committee on representation, 292; defends small states, 302; opposes inclusion of blacks in representation, 321; favors adjournment to consider representation in Senate, 367; opposes ineligibility of executive, ii., 6.
Peace, power to declare, debated, ii., 188.
Pensioners, disqualification of, from legislature, proposed, ii., 64.
Phillips, Jonas, letter of, ii., 322, n.
Pierce, William, Ga., notes of convention, i., 1, n.; sketch of Yates, 1, n.; sketch of Robert Morris, 2, n.; sketch of Few, 2, n.; sketch of Blair, 1, n.; sketch of Bassett, 1, n.; sketch of Washington, 3, n.; sketch of Wilson, 3, n.; sketch of Hamilton, 4, n.; sketch of Wythe, 5, n.; sketch of King, 5, n.; sketch of Mason, 6, n.; sketch of Gouverneur Morris, 8, n.; sketch of Butler, 11, n.; sketch of Spaight, 11, n.; sketch of Charles Pinckney, 13, n.; sketch of Randolph, 13, n.; sketch of Charles Cotesworth Pinckney, 33, n.; sketch of Gerry, 34, n.; sketch of Sherman, 34, n.; sketch of Read, 35, n.; sketch of Madison, 36, n.; attends convention, 39; sketch of Rutledge, 46, n.; sketch of Franklin, 49, n.; sketch of Bedford, 54, n.; sketch of Williamson, 57, n.; sketch of Dickinson, 62, n.; sketch of Davey, 65, n.; sketch of Patterson, 79, n.; favors election of Representatives by people and to Senate by legislatures, 89; sketch of Pierce, 89, n.; sketch of Brearley, 109, n.; sketch of Ellsworth, 120, n.; proposes three years' term for Senators, 128; sketch of Jenifer, 124, n.; sketch of Lansing, 138, n.; sketch of Johnson, 200, n.; sketch of Strong, 207, n.; sketch of Gorham, 210, n.; sketch of Alexander Martin, 218, n.; sketch of Dayton, 245, n.; opposes equal state representation, 268; sketch of Baldwin, 271, n.; sketch of Broome, ii., 8, n.; sketch of McClurg, 16, n.; sketch of Gilman, 29, n.; sketch of Houston, 38, n.; sketch of Carroll, 39, n.; sketch of Langdon, 64, n.; sketch of McHenry, 157, n.; sketch of Mifflin, 159, n.; sketch of Livingston, 209, n.; sketch of Blount, 394, n.; sketch of Ingersoll, 396.
Pinckney, Charles, S. C., attends convention, i., 2; appointed on committee on rules, 4; moves a committee on minutes, 13; Pierce's sketch of, 13, n.; submits plan of constitution, 19; letters of concerning draft, 19, n.; asks if state governments are to be abolished, 33; favors enumerating powers of national legislature, 45; favors vigorous executive, 56; favors seven years' term for national executive, 54; favors single executive, 66; favors appointment of judiciary by executive, 78; opposes provision for amendments of constitution, 79; favors ratification by nine states, 81; moves election of Representatives by state legislatures, 84; opposes inclusion of judiciary in revisionary power, 93; moves consideration of negative on state laws, 94; favors election of Senators by state legislatures, 100; favors negative by legislature on all laws, 101; moves classification of states to determine representation, 107; favors representation by free population, 120; proposes selection of judges by legislature, 131; favors election of representatives by the people, 224; opposes equal state representation in Senate, 286; favors representation by population, 307; thinks originating money bills in House no concession, 310; favors representation of blacks equal with whites, 346; proposes proportional representation in Senate, 356; favors negative by legislature of state laws, 374; favors election of executive by the people, 376; opposes impeachability of executive, ii., 11, 13; favors appointment of judges by Senate, 26; moves that executive be elected by legislature for not more than six years in twelve, 52; moves exclusion from executive and judiciary of debtors of government, 61; opposes disqualification of debtors from legislature, 65; thinks national capital ought not to be at state capital, 67; moves reference to committee of whole of report of committee of detail, 91; thinks time of meeting of legislature need not be fixed in constitution, 93; moves increase in representation of South Carolina, 110; thinks fisheries and western frontier more burdensome than slavery, 114; moves to strike out requirement as to money bills, 115; favors fourteen years' citizenship for Senators, 121; thinks no strangers should be in legislature, 121; moves that time and mode of election of Representatives be fixed by state legislatures, 126; insists on property qualification for officers of government, 128; opposes considering question of money bills, 141; thinks government not bound to respect state laws on naturalization, 147; opposes ineligibility of members of legislature to other offices, 158, 163; moves that acceptance of other office shall vacate seat in legislature, 159; favors postponement of clause relating to eligibility of members of legislature to other offices, 166; thinks judiciary should not be included in revisionary power, 172; favors appointment of treasurer by joint ballot, 184; moves legislature subdue rebellions without application to state legislatures, 186; thinks Senate should have power to declare war, 187; thinks state debts may be assumed by government, 192; opposes executive council, 193; favors national control of militia, 197; submits propositions for committee of detail, 198; seconds Morris's propositions for committee of detail, 200; moves power to create necessary offices, 203; declares constitution will fail if slave trade is prohibited, 218; defends slavery, 221; moves to commit question of navigation acts, 225; moves officers be forbidden to accept presents from foreign states, 234, 235; moves national power to negative state laws, 236; thinks state executives should be appointed by national government, 237; moves election of executive by majority of legislature, 244; thinks rights of habeas corpus should be assured, 261; proposes that fugitive slaves be surrendered, 267; moves to recommit question of interstate validity of state acts, 267; favors commercial regulations, 269; moves that no religious test be required for office, 283; moves that Congress be not required to approve constitution, 288; moves ineligibility of members of legislature to other offices with emoluments, 294; thinks they should be eligible to other offices, 296; asks why mode of electing President is to be changed, 301; thinks electors objectionable, 301, 307; moves each house of legislature judge privileges of its own members, 304; agrees to postponement of clause relative to revenue bills, 306; seconds motion that two-thirds of Senate be present when electing President, 318; thinks Senate should not share in appointments, except of ambassadors, 328; opposes power of impeaching President, 336; moves an address to accompany constitution, 347; opposes three-quarter vote to override President's negative, 363; moves power to establish a university, 374; thinks legislature should not name treasurer, 371; opposes provision against standing armies, 374; moves guaranty of liberty of the press, 375; favors publication of accounts from time to time, 376; favors increase of North Carolina representation, 379; moves preservation of jury trials in civil cases, 384; announces he will sign constitution, 388; urges unequivocal signing, 396.
Pinckney, Charles Cotesworth, S. C., attends convention, i., 1; Pierce's sketch of, 23, n.; opposes election of Representatives by the people, 90; thinks Senate should have power to originate money bills, 134; favors election of Representatives by state legislatures, 204, 206; opposes ineligibility of Representatives to state offices, 217; favors four years' term for Senators, 236, 238; favors no salary for Senators, 244; thinks Senate should be dependent on states, 247; favors compromise on representation, 287; thinks originating money bills in House no concession, 312; favors equality of representation for southern states, 323; favors greater representation for southern states, 324; moves increase of representation for North and South Carolina, and Georgia, 325; insists upon inclusion of blacks in basis of representation, 331; opposes tax on exports, 342; thinks slave property should be protected, 343; favors first census as basis of representation, 346; opposes adjournment on representation question, 367; insists constitution must provide against emancipation, ii., 39; moves exclusion from judiciary and executive of public debtors, 61; seconds motion to strike out provision for mutual negative of one branch of government over another, 92; moves that representation of South Carolina be increased, 110; moves ten years' citizenship for Senators, 125; asks whether there is to be no army, 135; favors national control of militia, 196, 197; declares constitution will fail if it interferes with slavery, 221; declares South Carolina will not soon stop slave trade, 223; on committee on navigation acts, 225; favors effective control of militia, 232; seconds motion to reconsider question of discharge of debts, 241; favors extension of slave trade, 250; proposes plan for selecting ports of entry, 253; thinks judges' salaries may be raised, 258; favors compromise on commercial regulations, 269; praises New England men, 269; approves motion that no religious test be required for office, 283; opposes clause as to juries in civil cases, 384; dislikes form of signing, 396, n.
Pinckney plan, real date of, i., xvi.; letters concerning, i., 19, n; submitted, 20; facsimile of, 21; referred to committee of detail, ii., 48, 74.
Piracies and felonies, power to declare, debated, ii., 184.
Ports of entry, method of choosing, debate on, ii., 253.
Post-offices, power to establish. _See_ Legislature, national, power of.
Prayers in convention proposed by Franklin, i., 259, 260.
Presents, acceptance of, from foreign states, by officers, forbidden, ii., 235.
President, the. _See_ Executive, national.
President of the convention, Washington elected, i., 3.
Property qualification. _See_ Executive, national, compensation of; Judiciary, national, compensation of; Legislature, national, property qualification for; Senate.
Proportional representation. _See_ Legislature, national, representation in.
Q
Quorum. _See_ Legislature, national, quorum in.
R
Randolph, Edmund, Va., attends convention, i., 1; offers Virginia plan, 13; Pierce's sketch of, 13, n.; explains design of Senate, 43; opposes indefinite power of legislature, 47; opposes single executive, 51, 63; opposes election of executive by state executives, 109; favors provision for amendment of constitution, 122; favors oath of allegiance to national government from state officers, 122; favors seven years' term for Senators, 128; moves extent of supreme court's jurisdiction, 130; opposes Jersey plan, 150; favors two years' term for representatives, 207; favors national compensation for Representatives, 210; favors rotation in personnel of Senate, 236; moves that sermon be preached to convention, 261; favors committee of compromise on representation, 291; on committee of compromise on representation, 307; objects to submitting question of voting in Senate to committee of small states, 308; opposes reduction of representation of New Hampshire, 324; moves that census be required, 327, 331, 344; moves representation by free inhabitants and three-fifths slaves, 344-350; favors adjournment on representation in Senate, 367, 368; opposes power to legislate where state legislation would interrupt harmony, 372; favors appointment of judges by Senate, 386; favors guaranty of republican government to states, 391; favors ineligibility to re-election of executive, ii., 4; favors impeachability of executive, 14; favors appointment of judges by executive, 27; thinks constitution should be ratified by the people, 31; favors fixing time of meeting of legislature provisionally, 44; thinks it unimportant when legislature meets, 95; revives question of money bills originating, 116; thinks state executives may safely fill vacancies in Senate, 117; moves to postpone question of voting in Senate, 118, 119; favors postponement of question of originating money bills, 120; opposes fourteen years' residence for Senators, 123; favors nine years' citizenship for Senators, 125; moves legislature have power to compel attendance of members, 135; approves expulsion from legislature by two-thirds vote, 135; thinks yeas and nays may be ordered by any member of legislature, 136; moves Senators may dissent from any measure, 136; thinks originating money bills ought to be reconsidered, 140; moves four years' citizenship for Representatives, 142; moves bills to raise revenue shall originate in House without power of amendment in Senate, 149; thinks provision as to money bills should stand, 155; favors disqualification of members of legislature from other offices, 166, 296; moves that power of negative extend to resolutions, 177; favors power to emit bills of credit, 182; doubts whether legislature may declare law of piracies, 185; moves that legislature define piracies, etc., 185; opposes suppression of rebellion without request of state, 187; favors extended definition of treason, 203; moves British statute on treason, 205; favors commitment of question of slave trade, 224; thinks power to fulfil engagements or old government unnecessary, 229; favors national control of militia, 232; moves postponement of question of treaty-making, 240; favors reconsideration of question of discharge of debts, 241; suggests states appoint some federal officers, 246; moves obligations of old government be binding on new, 249; opposed to removability of judges on application of legislature, 257; moves judges' salaries be fixed for three years, 258; on committee on interstate validity of state acts, 268; favors interstate validity of state acts, 268; announces objection to features of constitution, 273; moves that ratification from nine states be required, 284; favors second convention to consider amendments, 289; thinks declaration as to state acts defective, 294; asks why the mode of electing President is to be changed, 301; thinks eventual election of executive should be by whole legislature, 303; doubts whether each House should judge of the privileges of its members, 304; thinks mode of choosing President aristocratic, 310; moves that legislature name President when both President and Vice-President die, 323; thinks Vice-President should not be President of Senate, 326; thinks state conventions may offer amendments to constitution, 343; states his objections to the constitution, 346; proposes second convention, 346; moves pardons in treason cases be considered, 347; moves use of word "service" for "servitude," 367; seconds verbal amendment to clause on negative of bills, 368; moves suspension of officers impeached, 370; favors power to grant charters, 373; seconds motion against standing armies, 374; moves to except treason from President's power to pardon, 382; thinks President and Senate should not combine, 382; announces he cannot sign constitution, 387; proposes second federal convention, 388; thinks second convention feasible, 395; does not sign, 398.
Ratification of constitution, method of, debated, i., 80, ii., 32, 254, 342, 344; by conventions, proposed, i., 79; by people of states, 122, 135, 187; by assemblies chosen by the people, debated, ii, 38; resolutions concerning, offered, 368.
Read, George, Del., attends convention, i., 2; moves debate on three branches of government, 35; Pierce's sketch of, 35; moves to postpone question of representation, 37; favors national government, 89; moves Senate be named by executive, 95; opposes guaranty of territory to the states, 121; favors forbidding Senate from originating money bills, 133; thinks injustice was done small states in land cession, 237; supports small states on question of representation, 232; favors life term for Senators, 236; moves nine years' term for Senators, 238; thinks the United States ought to be one people, 241; favors abolishing states, 263; favors increase in representation, 326; thinks representation ought to be fixed by legislature, 334; thinks taxation and representation may be adjusted, 348; moves absolute negative by executive on legislature, ii., 95; opposes requirement that Representatives live in the states they represent, 108; opposes provision as to money bills, 118; moves that national legislature have power over elections if states make no provision, 128; opposes power to emit bills of credit, 183; moves that treasurer be appointed by executive, 184; doubts national control of militia, 198; thinks requisitions were accommodated to poverty of states, 212; favors commitment of question of taxing exports, 224; moves President of Senate have additional casting vote for executive, 244; on committee of August 25, 254; objects to same court having equity and law jurisdiction, 256; opposed to separate provision for re-election of President, 313; thinks small states should have vote for President in legislature, 325; moves prohibition of direct tax, 375.
Rebellion in states, power to subdue, debated, ii., 186.
Representation in legislature. _See_ Legislature, national, representation in, House of Representatives, Senate.
Republican government, guaranty of, to states, debate on, i., 79, 121, 137, 390, ii., 282; amendment adopted, 384.
Rhode Island, address from citizens of, i., 8, n.; moved representation of, be increased, ii., 378.
Rules, of convention, committee on, appointed, i., 5; adopted, 6; additional, adopted, 12. Of legislature. _See_ Legislature, national, rules of.
Russell, William, signs address from Rhode Island; i., 11, n.
Rutledge, John, S. C., attends convention, i., 2; seconds motion for Washington's election as President, 3; wants enumeration of powers of legislature, 46; Pierce's sketch of, 46, n.; favors single executive, 66; opposes appointment of judges by executive, 77; opposes inferior judicial tribunals, 82; moves classification of states to determine representation, 107; favors representation according to wealth, 115, 120, 364; favors two years' term for Representatives, 124; thinks Senators should receive no compensation, 129; favors election of Representatives by state legislatures, 205; favors ineligibility of Representatives to other offices, 218, 223; opposes sending for New Hampshire delegates, 272; on committee on compromise on representation, 292, 307; moves fixing representation, 319; opposes increase in representation, 327; moves that representation be by wealth and population, 333; proposes to reconsider originating of money bills, 355; thinks powers of legislature loosely defined, 366; opposes adjournment to consider representation, 368; opposes guaranteeing republican government to states, 392; favors election of executive by state legislatures, ii., 8; opposes inclusion of judiciary in revisionary power, 25; on committee to report constitution according to resolutions, 58; submits report of committee, 75; moves annual meeting of legislature, 95; opposes confining suffrage to freeholders, 106; favors seven years' residence in their states of Representatives, 108; favors three years' residence in their states of Representatives, 110; insists on longer than seven years' citizenship for Senators, 125; moves mode of election of Representatives be left to state legislatures, 126; insists on property qualification for officers of government, 129, 132; moves publication of Senate journals, 137; thinks provision as to citizenship should apply to those already citizens, 146; opposes provision as to money bills, 156; seconds motion to postpone provision as to money bills, 171; urges progress, 175; opposes tax on exports, 178; moves that funds for public creditors be not diverted, 191; moves that state debts be assumed by government, 196; urges expedition, 193; defends slavery, 218; declares South Carolina and Georgia will not accept constitution if it prohibits slave trade, 224; submits report on Madison and Pinckney propositions, 225; thinks prohibition of _ex post facto_ laws unnecessary, 228; reports constitution according to resolutions, 228; moves constitution be the supreme law, 235; opposes power of negative of state laws, 237; thinks judiciary will decide controversies between states, 241; moves election of executive by joint ballot of legislature, 242; opposed to removability of judges on legislature's application, 257; moves judiciary have power over treaties, 259; thinks rights of habeas corpus should be inviolable, 261; moves to prohibit bills of attainder and retrospective laws, 263; on committee on interstate validity of state acts, 268; favors commercial regulations, 272; thinks there is no danger of dismemberment of states, 278; thinks it unnecessary to guarantee public lands, 281; presents committee report, 292; opposes plan for executive, 308; moves Senate choose President from thirteen candidates, 311; moves two-thirds of whole Senate concur in treaties, 334; objects to general power against slavery, 341; opposes legislature appointing treasurer, 371; opposes address to people, 377; moves to limit President's emoluments, 381.
S
Seat of government, not to be at same place with state capital, ii., 66; at central point proposed, 67; provisions for, 140.
Second branch of legislature. _See_ Legislature, national, Senate.
Senate. _See_ Legislature, national, Senate.
Sermon for members of convention agreed to, i., 261.
Sherman, Roger, Conn., attends convention, i., 32; favors conservative course toward states, 34; Pierce's sketch of, 34, n.; opposes election of Representatives by the people, 39; favors election of one Senator from each state, 45; favors election of executive by state legislatures, 50, 54, 375; favors three years' term for executive, 54; thinks legislature should have power to remove executive, 63; favors an executive council, 68; opposes negative by executive, 71; opposes ratification of constitution by conventions, 80; opposes creation of inferior judiciary tribunals, 82; favors election of Representatives by state legislatures, 85; favors elections to Senate by state legislatures, 94, 99; favors limiting power of negative on state laws, 104; proposes proportional representation in House and by states in Senate, 114; proposes each state have one vote in Senate, 120; opposes oath to national government by state officers, 122; proposes one-year term for Representatives, 124; proposes five years' term for Senators, 128; opposes leaving time and mode or electing Representatives to state legislatures, 129; proposes election of judges by national legislature, 131; thinks money bills may originate in Senate, 133; opposes two branches of legislature, 196; favors election of Representatives by state legislatures, 205; consents to two years' term for Representatives, 208; favors compensation of Representatives by states, 211; opposes ineligibility of Representatives to state offices, 217, 220, 223; favors six years' term for Senators, 237; favors six or four years' term for Senators, 240; favors rights of small states, 258; proposes committee on representation, 287, 320; favors vote by states in Senate, 313; moves to postpone question of representation, 318; opposes increase in representation, 325, 326; opposes periodical census, 329; thinks representation should be fixed by census, 333; thinks representation fairly apportioned, 339; favors leaving question of taxation to state legislatures, 349; thinks Senators may vote per capita, 357; thinks government should have coercive power over states, 363; thinks government will act on states in requiring tax quotas, 363; moves that government should not interfere with internal policy of states, 371; opposes direct taxation by national government, 371; thinks state courts will consider state laws contravening national authority invalid, 372; opposes negative by legislature of state laws, 372; opposes ineligibility of executive to second term, 379; opposes tenure of executive for good behavior, 380; favors appointment of judges by Senate, 382; favors appointment of judges by executive with consent of Senate, 387; opposes creation of inferior judicial tribunals, 389; favors negative of each branch of legislature on the other, ii., 91; thinks time of meeting of legislature should be specified, 94; moves Representatives be inhabitants of their states, 107; thinks representation should stand, 111; moves that representation not exceed 1 to 40,000, 112; thinks slaves should be included in representation, 114; thinks yeas and nays may not be required, 136; moves publication of journal of legislature, 138; thinks general government can make any regulations as to citizenship, 146; thinks those in power should be free from temptation, 163; favors payment of legislature partly by states and partly by nation, 168; thinks power of negative should not be extended, 174; thinks revision of acts by President unnecessary, 177; favors no tax on exports, 178, 180; opposes appointment of treasurer by joint ballot, 184; thinks executive should not have power to commence war, 188; thinks state debts may be assumed by government, 192; appointed on grand committee, 193; thinks states should partially control militia, 196, 197; thinks resistance to national laws treason, 207; thinks report on state debts meaningless, 210; favors limiting representation of large states, 210; moves settlement of debts on basis of taxation, 211; thinks provision as to slave trade may stand, 218, 224; thinks question of taxing exports settled, 224; moves that states have power to train militia, 230; withdraws motion, 230; proposes mixed control of militia, 231; thinks states should appoint militia officers, 233; thinks negative of state laws by general government unnecessary, 236; thinks judiciary will decide controversies between states, 241; opposes election of executive by joint ballot of legislature, 242; objects to executive appointing all officers, 246; objects to legislatures of states appointing federal officers, 247; moves express provision for paying debts, 249; opposed to taxing men as property, 251; thinks revenue the object of import tax on slaves, 252; on committee of August 25, 254; moves amendment to pardoning power, 254; moves militia be under executive when in active service, 255; favors removability of judges on application of legislature, 257; moves judicial power extend to land grants, 260; reports amendments on commercial regulations and judicial power, 260; moves to prohibit bills of credit or payments in anything but coin, 262; wishes to crush paper money, 262, 263; thinks states should have power to lay embargoes, 264; thinks state legislatures may deal with impost question, 265; moves that states may tax exports for national treasury, 265; opposes surrender of fugitive slaves and servants, 266; desires commercial regulations by majority vote, 270; declare all should have equal privileges, 275; thinks Union cannot dismember a state, 276; moves admission of new states by consent of state legislatures, 278; thinks constitution may guarantee public lands, 281; thinks no religious test will be applied for office, 283; thinks ratification should be from ten states, 284, 287; thinks ratification should be by all states, 285; moves to postpone ratification question, 287; moves to take up report of committee of eleven, 290; moves to refer draft of constitution to committee, 292; on committee, 292; opposes national bankruptcy law, 294; favors ineligibility of members of legislature to other offices, 295; does not object to election of Vice-President by majority, 300; thinks army in time of peace should be restricted, 305; willing to defer to those who think revenue bills vital, 306; thinks large states will have advantage in nominating candidates for President, 309; thinks President should not be chosen from three candidates, 311; thinks when legislature votes for President it should vote by states, 313; moves eventual election of President by House of Representatives, 318; approves of Vice-President being President of Senate, 326; favors inclusion of Senate in treaty-making, 327; thinks whole legislature should participate in treaties of peace, 333; moves that majority of whole Senate vote for treaties, 334; thinks supreme court should not try President, 336; thinks representation large enough, 339; moves states be required to consent to amendments, 341; favors submitting constitution to Congress, 344; favors two-thirds vote to override President's negative, 361; thinks state bills of rights sufficient, 364; thinks legislature should appoint treasurer, 371; objects to power to cut canals, 372; thinks provision for liberty of press unnecessary, 375; thinks accounts may be published from time to time, 376; opposes address to states, 378; favors additional representation for North Carolina, 378; thinks states and nation may have concurrent commercial jurisdiction, 381; seconds motion to vest appointments in President and others, 383; thinks three-quarter states may oppress others by amendments, 385; thinks conventions may act on amendments, 386; moves that states be preserved, 386; moves to strike out clause concerning amendments, 386.
Signing constitution, mode proposed, ii., 391; takes place, 393.
Slavery and slave trade, debate on, ii., 218, 250; compromise on, brought in, 269; power to prohibit, objected to, 366.
Slaves, import tax on, agreed to, ii., 252; delivery up of fugitive, proposed, 267; agreed to, 274; verbal amendment made, 384.
South Carolina, motion that representation of, be increased, ii., 110.
Spaight, Richard Dobbs, N. C., attends convention, i., 2; moves rule for revision of questions, 11; Pierce's sketch of, 11, n.; seconds motion for representation by free inhabitants, 37; favors election to Senate by free population, 43; withdraws motion for elections to Senate by state legislatures, 44; moves reconsideration of appointment of executive by electors, ii., 39; seconds motion to elect executive by national legislature, 40; fears capital will be located at New York, 139; favors commercial regulations by majority vote, 271; moves Senate choose President from thirteen candidates, 311; moves seven years' term for executive, 316; moves six years' term, 316; moves electors meet at seat of government, 317; proposes President make appointments during recess of Senate, 329; moves special provision respecting territorial rights, 332.
State acts, validity of, debated, ii., 267, 293; certain, prohibited, 377.
State debts, debate on assumption of, ii., 192.
State laws, negative of. _See_ Legislature, national, negative of.
State police, non-interference in, by national government, debated, i., 371.
State representation, equal in House, debated, i., 268; in Senate, 273, 286; committee to arrange, debated, 287, 292; report of committee, 293. _See_ Legislature, national, representation in.
States, admission of new, provision for, agreed to, i., 78, 137, 390; debated, ii., 274, 275, 277, 278, 279, 280, 384.
Strong, Caleb, Mass., attends convention, i., 5; favors one-year term for Representatives, 207; Pierce's sketch of, 207, n.; favors committee on representation, 291; favors equal representation by states in Senate, 359; opposes inclusion of judiciary in revisionary power, ii., 20; thinks executive will not be re-elected, 40; thinks question of voting in Senate should be postponed, 118; favors $4 per day as payment for legislature, 170; moves revenue bills originate in House, 170.
Style and arrangement, committee on. _See_ Committee on style and arrangement.
Sumptuary laws, debate on, ii., 202, 366; committee on, _see_ Committee on sumptuary laws.
Supreme Court. _See_ Judiciary, national supreme.
T
Taxation, by representation, debated, i., 342, 349, ii., 47; basis of, by free and slave population, debated, i., 343; direct on states in proportion to representation, debated, 350; direct by national government, opposed, 371; proposed that it be by quotas, ii., 207; according to congressional representation, debated, 208, 211; definition of direct, asked, 208; by population, proportion agreed to, 210; power of, on exports, debated, 217, 218, 376; on migration of slaves, debated, 218; on slaves, debated, 219, 241; capitation and direct, debated, 375. _See_ Legislature, national, representation in.
Term of members of legislature. _See_ Legislature, national, term of.
Territory, guaranty of, to each state, debated, i., 121.
Tonnage dues. _See_ Navigation acts.
Treason, debate on, ii., 202.
Treasurer, appointment of. _See_ Legislature, national, power of.
Treaties, power to make, debated, i., 242, 243, ii., 238, 327; force of, debated, 252; power to interpret, by judiciary, debated, 259; of peace, how to be made, 330, 332, 333; provision for, reconsidered, 333; proposed that they require two-thirds Senate, 334, 335; proposed that they require majority, 335; notice of, to Senators, proposed, 335. _See_ Legislature, national, Senate.
U
University, national. _See_ Legislature, national, power of.
V
Varnum, J. M., letter from, with address from Rhode Island, i., 9, n.
Vermont, admission of, to Union, debated, ii., 276.
Veto power. _See_ Executive, national, negative of.
Vice-President, duties of, defined, ii., 299, 300, 326.
Virginia plan, the, presented to convention, i., 13; debated in committee of the whole, 32; debated, 39; reported on from committee of the whole, 134, 184; vote on, 185.
Voting, restriction of, to freeholders, debated, ii., 96.
W
War, power to declare, debated, ii., 187.
Washington, George, Va., attends convention, i., 1; elected president of convention, 3; thanks convention for election, 3; Pierce's sketch of, 3, n.; rebukes member for losing his notes, 48, n.; John Jay's letter to, ii., 48, n.; Knox's letter to, 158, n.; urges increase in representation, iv., 392; asks instructions concerning journals, 397.
Williamson, Hugh, N. C., attends convention, i., 2; objects to election of executive by districts, 57; Pierce's sketch of, 57, n.; moves impeachability of executive, 65; favors limiting Senate to twenty-five members, 95; opposes indefinite power of negative on state laws, 103; favors proportional representation, 114; favors states paying representatives, 210; moves that number in Senate be fixed, 235; favors six years' term for Senators, 236; thinks rights of small states not menaced, 253; favors committee on representation in Senate, 291; opposes compromise proposed, 361; thinks Senate better able to consider money bills than House, 309; thinks proposed representation unfair to southern states, 324; favors reducing representation of northern states, 324; amends motion fixing periodical census, 330; thinks New Hampshire representation too large, 348; opposes election of executive by people, 378; opposes eligibility of executive to re-election, ii., 8, 41; opposes election of executive by electors, 8; favors six years' term for executive, 9; moves number of electors be based on Representatives, 10; moves electors be paid out of national treasury, 17; suggests national officers take oath to support state governments, 30; favors ratification of constitution by conventions, 35; favors voting per capita in Senate, 38; dislikes single executive, 41; suggests voting for three persons for executive, 54; favors forbidding national capital at state capital, 66; seconds motion to limit negative of each branch of legislature on the other, 91; moves representation in House based on taxation, 110; favors reconsidering question of money bills, 116; thinks provision for filling vacancies in Senate necessary, 117; insists upon guarding qualifications of Senators, 125, 131; thinks provision on money bills should be retained, 141; moves nine years' citizenship for Representatives, 144; opposes eligibility of members of legislature to other offices, 163; moves postponement of question of money bills, 171; moves to make three-quarters of legislature necessary to overcome executive negative, 176; thinks exports should not be taxed, 179; thinks state lands ought to be given up, 193; appointed on grand committee, 193; favors restrictions on army, 195; moves quotas of states be determined, 211; opposes apportionment of taxation by representation, 212; thinks states should not have power to tax exports, 213; thinks slave trade should be left to states, 223; on committee on navigation acts, 225; thinks prohibition of _ex post facto_ laws unnecessary, 228; thinks discussion of negative of state laws unnecessary, 237; doubts if judiciary can impartially decide controversies between states, 241; opposes slavery, but wishes union, 251; on committee of August 25, 254; moves to postpone question of executive succession, 256; seconds motion to make it impossible for states to levy imposts, 265; moves clause of articles of confederation as to state acts, 267; favors commercial regulations by two-thirds vote, 270; thinks question of new states should be left to legislature, 275, 278; on committee of August 31, 292; thinks ineligibility of members of legislature should extend to offices created during their term, 295, 296; objects to President's dependence on Senate in appointments, 302; moves to reconsider representation, 307; objects to Senate electing President, 308, 310, 315; moves election of President by one-third of all electors, 310; moves electors voting be the only ones counted, 311; favors separate provision for re-electing President, 313; moves seven years' term for President, 316; moves six years' term for President, 316; thinks electors should meet at seat of government, 317; suggests eventual election of President by whole legislature, voting by states, 318; thinks Vice-President unnecessary, 326; thinks treaties of peace important, 330, 332; thinks treaties may be made without majority of people, 333; opposes requirement that treaties be ratified by majority of whole Senate, 334; proposes that notice of treaties to Senators be required, 335; thinks Senate will lean towards President, 336; moves increase in representation in House of Representatives, 338; moves that old Congress sanction constitution, 346; favors two-thirds vote to override President's negative, 361; fears too many laws, 362; moves provision for juries in civil suits, 363; moves increase of representation, 369; seconds motion against direct tax, 375; suggests signing letter only, 393.
Wilson, James, Pa., attends convention, i., 1; nominates William Temple Franklin for secretary of convention, 3; Pierce's sketch of, 3, n.; favors election of Representatives by the people, 41, 205; favors election of Senators by the people, 44, 95; favors a single executive, 49, 50, 67; favors election of executive by the people, 53, 55, ii., 6, 47; favors three years' term for executive, i., 54; moves election of executive by district electors, 56; opposes an executive council, 68; favors negative by executive on legislature, 69, 71; favors creation of inferior judiciary, 73, 82; favors inclusion of judiciary in power of negative, 75; opposes appointment of judges by legislature, 77; favors ratification by plurality of States, 81; favors election of Representatives by the people, 84; favors preservation of state governments for local purposes, 90; favors inclusion of judiciary in revisionary power, 91, ii., 17, 25; favors election to Senate by districts, i., 98; favors absolute negative in legislature, 104; favors proportional representation, 113, 115, 257; favors representation by free inhabitants, 119; thinks voting in Senate should be on same plan as in House, 121; opposes Jersey plan, 146; opposes Hamilton plan, 185; insists that states are dependent on each other, 188; favors two branches of legislature, 198; thinks state governments may encroach on national government, 201; favors one-year term for Representatives, 207; favors national compensation of Representatives, 211; moves that compensation be fixed by legislature, 212; opposes age limit for Representatives, 214; opposes ineligibility of Representatives to other offices, 214, 220; opposes elections to Senate by state legislatures, 233; favors six years' term for Senators, 237; favors nine years' term for Senators, 243; opposes eligibility of Senators to state offices, 247; opposes sending for New Hampshire delegates, 272; opposes representation by states in Senate, 273; admits question of number of Senators is embarrassing, 280; opposes committee on representation in Senate, 291; moves question of voting in Senate, 308; opposes originating money bills in House, 309, 312; opposes yielding equal vote in Senate to small states, 314; thinks representation of western states should be based on property, 320; thinks wealth an impracticable rule of representation, 334; opposes inclusion of three-fifths of blacks as basis of representation, 339; favors guaranty of republican government to the states, 342; moves that representation be according to direct taxation, 344; favors representation based on free inhabitants and three-fifths of slaves, 344; favors adjusting taxation to representation, 349; thinks equal vote in Senate favored by minority, 355; insists that numbers are correct basis for representation, 355; thinks small states would abandon plea of equality in taxes and troops, 356; thinks originating money bills in House of little consequence, 356; insists on proportional representation in Senate, 362; favors non-interference of national government with state police, 371; opposes election of executive by the people, 375; opposes election of executive by legislature, 377; favors appointment of judges by executive, 384; favors continuance of old Congress till new government starts, 390; favors guaranty to states of republican government and against violence, 392; favors impeachability of executive, ii., 11; thinks departments should act separately, 24; thinks oath of allegiance unnecessary, 30; opposes election of executive by legislature, 43; suggests election of executive by members of national legislature selected by lot, 44, 47; on committee to report constitution according to resolutions, 48; favors specifying general principles for executive, 56; opposes disqualification from legislature of persons having unsettled accounts, 64; thinks time of meeting of legislature should be fixed, 93; favors winter as time for meeting of legislature, 95; thinks suffrage in the States should not be prescribed by legislature, 96; favors requiring Representatives to be inhabitants, 108; opposes requirement of seven years' inhabitancy for Representatives, 108, 109; thinks question of representation by free inhabitants premature, 114; opposed to originating money bills in House, 115; reviews question of citizenship of Representatives, 116; objects to vacancies in Senate being filled by state executives, 116; thinks provision as to money bills of no value to large states, 118, 120; opposes fourteen years' residence as necessary for Senators, 123; moves to reconsider requirement of seven years for Representatives, 132; thinks number for quorum should not be small, 134; thinks publication of legislative journal necessary, 138; moves four years' citizenship for Representatives, 142; insists Representatives need not be natives, 145; thinks new government bound by Pennsylvania's promises to foreigners, 148; moves seven years' citizenship for Senators, 149; thinks people will disapprove members of legislature holding other offices, 164; thinks good men will refuse legislature if debarred from other offices, 165; seconds motion to have acts revised by executive and judiciary, 172; thinks legislature will swallow up powers of government, 175; favors making three-fourths of legislature necessary to overcome executive negative, 176; explains difference between "duties" and "imposts," 177; thinks exports may be taxed, 179; opposed to power to emit bills of credit, 182; thinks it unnecessary to define felonies, etc., 185; thinks law of felonies, etc., ought to be declared, 185; moves that treason be against United States, 205; thinks treason may be against a state, 206; thinks proof of treason may be difficult, 207; favors power to tax exports, 215; seconds motion to tax exports by two-thirds of legislature, 217; thinks slaves should be taxed, 222; favors commitment of question of navigation acts, 225; thinks prohibition of _ex post facto_ laws unnecessary, 228; thinks Senate should not make appointments, 235; thinks negative of state laws unnecessary, 237; objects to Senate's power to make treaties, 239; thinks judiciary may decide controversies between states, 242; seconds motion for election of executive by the people, 243; thinks larger states should have larger share in election of executive, 295; thinks Senate should not have separate voice in election of executive, 246; thinks state legislatures will order federal offices filled by state appointment if permitted, 247; thinks pardon before conviction may be necessary, 255; opposes removability of judges on application of legislature, 257; explains appellate power of judiciary, 260; doubts if suspension of right of habeas corpus is ever necessary, 262; moves legislature be prohibited from paying debts in anything but coin, 262; thinks states should not interfere with contracts, 263; objects to treating fugitive slaves as criminals, 267; favors interstate validity of state acts, 267; on committee to consider subject, 268; favors commercial regulations by majority vote, 271; thinks majority may regulate formation of new states, 277; thinks new states may be formed without consent of old, 278; opposes motion to guarantee public lands, 281; proposes ratification by seven states, 284; prefers ratification by eight states to nine, 285; thinks constitution binding only on ratifying states, 285; moves that ratification be by majority of people and states, 287; thinks state power over other states' acts not unusual, 293; opposes ineligibility of members of legislature to other offices, 296; approves plan of electing executive, 302; thinks it unnecessary to give each House power over privileges of its members, 304; moves eventual election of President by whole legislature, 309; thinks eventual election of President by Senate dangerous, 313; moves to include House of Representatives in treaty-making power, 327; objects to Senate's participation in appointments, 328; objects to participation of two-thirds Senate on treaties, 329, 334; favors executive council, 332; favors ratification of treaties with majority of Senate, 333; thinks less than two-thirds Senate may ratify treaties of peace, 333; opposed to President convening either house of legislature, 338; moves amendments be with consent of two-thirds of states, 341; substitutes three-fourths, 341; opposes reconsideration of ratification clause, 343; thinks old Congress need not sanction constitution, 345; moves to strike out "direct taxes," 367; thinks legislature should not define offences against law of nations, 372; seconds motion in favor of canals, 372, 373; favors national university, 374; thinks accounts should be published from time to time, 376; thinks executive may pardon for treason, 382; favors depositing convention journal with president, 397.
Wythe, George, Va., attends convention, i., 2; appointed on committee on rules, 4; submits report of committee on rules, 5; Pierce's sketch of, 5, n.; offers additional rules, 12.
Y
Yates, Robert, N. Y., attends convention, i., 1; Pierce's sketch of, 1, n.; on committee on compromise on representation, 292; leaves convention, 298, n.
Yeas and nays. _See_ Legislature, national.
Transcriber Notes:
Passages in italics were indicated by _underscores_.
Passages in bold were indicated by =equal signs=.
Small caps were replaced with ALL CAPS.
Throughout the document, the oe ligature was replaced with "oe".
Throughout the document, a tilded m is represented by [~m].
This document was filled with errors and inconsistencies in spelling, punctuations, and hyphenation. For example, usually the word re-eligible is hyphenated, but sometimes it is not; sometimes; reinstated is hyphenated but sometimes it is not; and usually the comma is used as a thousand mark, but sometimes a period is used for that purpose. Sometimes vice President was used and sometimes vice-President was used. Also, the abbreviations were not uniform (e.g., Mas. v. Mass.), which were only corrected when it is was clear which abbreviation was considered correct at the time printed. Another example is the abbreviation for Resolution, which was sometimes Resol:^n, sometimes Resol^n, and sometimes Resol.^n. Sometimes "nem: con." was used, and sometimes "nem. con." was used. The only time errors were corrected was when it was very clear that an error was made, and it was clear how the error should be corrected, and those corrections are listed below.
Throughout the document there are instances where a comma is used where one expects a period, a period is used where one expects a comma, a colon is used where one expects a comma or period, neither is used when one is expected. This instances are left as-is, except for two exceptions: where a period is missing at the end of a sentence or missing at the end of an abbreviation, both of which happened so often that those corrections were made but were not listed below.
Throughout the document, there was no consistence in the formatting of the titles for each date, (e.g., FRIDAY AUG^{ST} 10. IN CONVENTION). No attempt was made to correct such inconsistencies.
Capitalization was corrected throughout the document without comment.
Throughout the document, a single superscripted letter is represented by that single letter preceded by a caret, and more than one superscripted letters are represented by the letters enclosed by curly brackets. Thus, the word "y^e" represents a word where the "y" is normal and the "e" is superscripted; and the word "2^{dnd}" represents a word where the "2" is normal and the "dnd" is superscripted. In both conventions, it is assumed that a dot appeared below the superscripted letters, since in the original text a dot was often (but not always) present under the superscripted letters. Thus, "2^{dnd}" in the present text would represent a normal digit "2" followed directly by the superscripted letters "dnd" with a single dot below the set of three letters.
On page 7, "difficulty an seemed" was replaced with "difficulty and seemed".
On page 7, "Hamshire" was replaced with "Hampshire".
On page 8, a period was added after "div^d.".
On page 9, removed period between "6" and "years".
On page 16, "forign" was replaced with "foreign".
On page 17, in footnote 4, "McLurg" was replaced with "McClurg".
On page 26, a period was added after "2".
On page 38, "[blank]" was inserted to mark a large blank space that appeared in the footnote.
On page 46, there is a missing opening quotation mark in the last paragraph, but it is unclear where that mark should go.
On page 47, the word "this" was capitalized in the sentence starting "This is committing too much".
On page 50, "forign" was replaced with "foreign".
On page 53, a period was added after "change of measures".
On page 76, a comma was added after the word "Virginia".
On page 81, the comma after "weights and measures" was replaced with a semicolon.
On page 112, a quotation mark was added after "40.000.".
On page 135, "M^r Kings" was replaced with "M^r King's".
On page 137, "M^r Carrols" was replaced with "M^r Carrol's".
On page 140, "in the shape it which" was replaced with "in the shape in which".
On page 143, "It" was capitalized at the beginning of a sentence.
On page 145, "Hamiltons" was replaced with "Hamilton's"
On page 146, "Will" was capitalized at the beginning of a sentence.
On page 147, the period after "the violaters" was changed to a question mark.
On page 166, "Pinkneys" was replaced with "Pinkney's".
On page 167, "[blank]" was inserted to mark a large blank space within parenthesizes.
On page 184, "Reads" was replaced with "Read's".
On page 189, a colon was added after "the General Legislature".
On page 189, a quotation mark was added after "limits of the U. States."
On page 207, "misdemesnors" was replaced with "misdemeanors".
On page 211, "there" was replaced with "There".
On page 212, "it" was replaced with "It".
On page 217, a quotation mark was added after "exports".
On page 218, a period was added after "2".
On page 228, "reflextions" was replaced with "reflections".
On page 228, "The" was replaced with "the".
On page 230, a quotation mark was added after "training".
On page 235, a quotation mark and a comma was added after "foreign State".
On page 236, a period was added after "nem: contrad".
On page 237, the quotation mark was deleted after "&c &c."
On page 242, a quotation mark was added after "a second time."
On page 248, "these" was replaced with "These".
On page 301, "2 the" was replaced with "2. The", and "6. the" was replaced with "6. The".
On page 305, "U. S" was replaced with "U. S.".
On page 305, "biennally" was replaced with "biennially".
On page 306, a quotation mark was added after "purchased for forts".
On page 314, a comma was removed after "The Senate".
On page 319, a quotation mark was removed after "the States,".
On page 324, in Footnote 58, a period was added after "united States of america".
On page 332, a quotation mark was added after "the States present". On page 399, the word "the" was shown by the printer to be inserted in the sentence. This insertion was made.
On page 414, added period were removed after some names in the signatures.
On page 440, in the index entry for Mason, which begins "doubts propriety of mutual negative", "legiture" was replaced with "legislature".
On page 457, in the index entry "Knox's letter to, 158 ;" for "Washington, George, Va.", "n. was entered in the missing blank.
Throughout the document, "Sharman" was replaced with "Sherman".
Throughout the document, one delegate is sometimes named "Dickinson" and is sometimes named "Dickenson"; and another delegate is sometimes named "Carroll" and is sometimes named "Carrol".
In the index, entries divided by page markers were joined into single entries where possible, and the formatting of the index was regularized (e.g., periods replaced with commas for uniformity of formatting).