Chapter VII: Front Matter (7)

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."