Chapter XI: Front Matter (11)

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

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

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

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

FRIDAY AUGUST 31^{ST} 1787. IN CONVENTION.

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

On the question

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

On the question for "ten"

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

On question for "nine"

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

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

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

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

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

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

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

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

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

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

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

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

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

M^r Gerry moved to postpone art: XXII.

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

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

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

On the question for postponing

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

On the question on Art: XXII

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

On the question for agreeing to it

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

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

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

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

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

The House adjourned.

SATURDAY SEP^R 1. 1787 IN CONVENTION.

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

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

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

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

And insert the following as Art: XVI viz

"Full faith and credit ought to be given in each State to the
public acts, records, and Judicial proceedings of every other
State, and the Legislature shall, by general laws prescribe the
manner in which such acts, Records, & proceedings shall be
proved, and the effect which Judgments obtained in one State,
shall have in another."

After receiving these reports

The House adjourned to 10OC on Monday next.

MONDAY SEP^R 3 1787. IN CONVENTION

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

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

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

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

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

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

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

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

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

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

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

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

On the question to agree to the clause

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

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

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

On this question

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

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

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

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

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

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

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

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

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

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

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

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

On the question on M^r King's motion

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

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

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

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

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

The Report as amended & agreed to is as follows.

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

Adjourned.

TUESDAY SEP^R 4. 1787. IN CONVENTION

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The (4) clause was accordingly taken up.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Adjourned.

WEDNESDAY SEP^R 5. 1787. IN CONVENTION.

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

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

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

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

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

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

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

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

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

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

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

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

On the question for postponing

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

On this motion to postpone

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

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

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

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

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

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

On the motion of Col: Mason

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

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

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

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

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

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

On the question moved by M^r Wilson

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

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

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

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

On the question

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

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

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

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

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

M^r Gerry 2^{ded} the motion.

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

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

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

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

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

On this question

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

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

On this motion

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

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

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

The House adjourned.

THURSDAY SEP^R 6. 1787. IN CONVENTION

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

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

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

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

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

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

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

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