Chapter IX: Front Matter (9)

On Question for committing 6 Sect. as to navigation act to a member from each State--

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

The Committee appointed were M^r Langdon, King, Johnson, Livingston, Clymer, Dickenson, L. Martin, Madison, Williamson, C. C. Pinkney, & Baldwin.

To this committee were referred also the two clauses above mentioned, of the 4 & 5. Sect: of Art. 7.

M^r Rutlidge from the Committee to whom were referred on the 18 & 20^{th} instant the propositions of M^r Madison & M^r Pinkney made the Report following:[38]

[38] Madison's Note says: ("Here insert Report from Journal of
the Convention of the date.") It is found on p. 227, 228, of
the Journal and is as above.

"The committee report, that in their opinion the following
additions should be made to the report now before the
convention, namely,

"At the end of the first clause of the first section of the
seventh article add, 'for payment of the debts and necessary
expenses of the United States; provided that no law for raising
any branch of revenue, except what may be specially appropriated
for the payment of interest on debts or loans, shall continue in
force for more than ---- years.'

"At the end of the second clause, second section, seventh
article, add, 'and with Indians, within the limits of any state,
not subject to the laws thereof.'

"At the end of the sixteenth clause of the second section,
seventh article, add, 'and to provide, as may become necessary,
from time to time, for the well managing and securing the common
property and general interests and welfare of the United States
in such manner as shall not interfere with the governments of
individual states, in matters which respect only their internal
police, or for which their individual authority may be
competent.'

"At the end of the first section, tenth article, add, 'he shall
be of the age of thirty-five years, and a citizen of the United
States, and shall have been an inhabitant thereof for twenty-one
years.'

"After the second section of the tenth article, insert the
following as a third section:

"'The President of the United States shall have a privy
council, which shall consist of the president of the
senate, the speaker of the house of representatives, the
chief justice of the supreme court, and the principal
officer in the respective departments of foreign
affairs, domestic affairs, war, marine, and finance, as
such departments of office shall from time to time be
established, whose duty it shall be to advise him in
matters respecting the execution of his office, which he
shall think proper to lay before them: but their advice
shall not conclude him, nor affect his responsibility
for the measures which he shall adopt.'

"At the end of the second section of the eleventh article, add,
'the judges of the supreme court shall be triable by the senate,
on impeachment by the house of representatives.'

"Between the fourth and fifth lines of the third section of the
eleventh article, after the word 'controversies,' insert,
'between the United States and an individual state, or the
United States and an individual person.'"

A motion to rescind the order of the House respecting the hours of meeting & adjourning, was negatived:

Mass: P^a Del. Mar^d ay. N. H. Con: N. J. V^a N. C. S. C.
Geo. no.

M^r Gerry and M^r M^cHenry moved to insert after the 2^d Sect. Art: 7, the clause following, to wit, "The Legislature shall pass no bill of attainder nor any ex post facto law."[39]

[39] The proceedings on this motion involving the two questions
on "attainders and ex post facto laws," are not so fully
stated in the printed Journal.--Madison's Note.

M^r Gerry urged the necessity of this prohibition, which he said was greater in the National than the State Legislature, because the number of members in the former being fewer, they were on that account the more to be feared.

M^r Gov^r Morris thought the precaution as to ex post facto laws unnecessary; but essential as to bills of attainder.

M^r Elseworth contended that there was no lawyer, no civilian who would not say that ex post facto laws were void of themselves. It cannot then be necessary to prohibit them.

M^r Wilson was against inserting any thing in the Constitution as to ex post facto laws. It will bring reflections on the Constitution--and proclaim that we are ignorant of the first principles of Legislation, or are constituting a Government that will be so.

The question being divided, the first part of the motion relating to bills of attainder was agreed to nem contradicente.

On the second part relating to ex post facto laws--

M^r Carrol remarked that experience overruled all other calculations. It had proved that in whatever light they might be viewed by civilians or others, the State Legislatures had passed them, and they had taken effect.

M^r Wilson. If these prohibitions in the State Constitutions have no effect, it will be useless to insert them in this Constitution. Besides, both sides will agree to the principle, and will differ as to its application.

M^r Williamson. Such a prohibitory clause is in the Constitution of N. Carolina, and tho it has been violated, it has done good there & may do good here, because the Judges can take hold of it.

Doc^r Johnson thought the clause unnecessary, and implying an improper suspicion of the National Legislature.

M^r Rutlidge was in favor of the clause.

On the question for inserting the prohibition of ex post facto laws.

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

The report of the committee of 5. made by M^r Rutlidge, was taken up and then postponed that each member might furnish himself with a copy.

The Report of the Committee of Eleven delivered in & entered on the Journal of the 21^{st} inst. was then taken up, and the first clause containing the words "The Legislature of the U. S. _shall have power_ to fulfil the engagements which have been entered into by Congress" being under consideration,

M^r Elseworth argued that they were unnecessary. The U. S. heretofore entered into Engagements by Cong^s who were their Agents. They will hereafter be bound to fulfil them by their new agents.

M^r Randolph thought such a provision necessary: for though the U. States will be bound, the new Gov^t will have no authority in the case unless it be given to them.

M^r Madison thought it necessary to give the authority in order to prevent misconstruction. He mentioned the attempts made by the Debtors to British subjects to shew that contracts under the old Government, were dissolved by the Revolution which destroyed the political identity of the Society.

M^r Gerry thought it essential that some explicit provision should be made on this subject, so that no pretext might remain for getting rid of the public engagements.

M^r Gov^r Morris moved by way of amendment to substitute--"The Legislature _shall_ discharge the debts & fulfil the engagements of the U. States."

It was moved to vary the amendment by striking out "discharge the debts" & to insert "liquidate the claims," which being negatived,

The amendment moved by M^r Gov^r Morris was agreed to all the States being in the affirmative.

It was moved & 2^{ded} to strike the following words out of the 2^d clause of the report "and the authority of training the militia according to the discipline prescribed by the U. S." Before a question was taken

The House adjourned.

THURSDAY IN CONVENTION AUG: 23, 1787

The Report of the Committee of Eleven made Aug: 21. being taken up, and the following clause being under consideration to wit "To make laws for organizing, arming & disciplining the Militia, and for governing such parts of them as may be employed in the service of the U. S. reserving to the States respectively, the appointment of the officers, and authority of training the militia according to the discipline prescribed."

M^r Sherman moved to strike out the last member "and authority of training" &c. He thought it unnecessary. The States will have this authority of course if not given up.

M^r Elseworth doubted the propriety of striking out the sentence. The reason assigned applies as well to the other reservation of the appointment to offices. He remarked at the same time that the term discipline was of vast extent and might be so expounded as to include all power on the subject.

M^r King, by way of explanation, said that by _organizing_, the Committee meant, proportioning the officers & men--by _arming_, specifying the kind size & caliber of arms--& by _disciplining_, prescribing the manual exercise evolutions &c.

M^r Sherman withdrew his motion.

M^r Gerry. This power in the U. S. as explained is making the States drill-sergeants. He had as lief let the Citizens of Massachusetts be disarmed, as to take the command from the States, and subject them to the Gen^l Legislature. It would be regarded as a system of Despotism.

M^r Madison observed that "_arming_" as explained did not extend to furnishing arms; nor the term "_disciplining_" to penalties & Courts Martial for enforcing them.

M^r King added to his former explanation that _arming_ meant not only to provide for uniformity of arms, but included the authority to regulate the modes of furnishing, either by the militia themselves, the State Governments, or the National Treasury; that _laws_ for disciplining, must involve penalties and every thing necessary for enforcing penalties.

M^r Dayton moved to postpone the paragraph, in order to take up the following proposition.

"To establish an uniform & general system of discipline for the
Militia of these States, and to make laws for organizing,
arming, disciplining & governing _such part of them as may be
employed in the service of the U. S._, reserving to the States
respectively the appointment of the officers, and all authority
over the militia not herein given to the General Government."

On the question to postpone in favor of this proposition: it passed in the Negative.

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

M^r Elseworth & M^r Sherman moved to postpone the 2^d clause in favor of the following

"To establish an uniformity of arms, exercise & organization for
the militia, and to provide for the Government of them when
called into the service of the U. States."

The object of this proposition was to refer the plan for the Militia to the General Gov^t but to leave the execution of it to the State Gov^{ts}.

Mr. Langdon said he could not understand the jealousy expressed by some Gentlemen. The General & State Gov^{ts} were not enemies to each other, but different institutions for the good of the people of America. As one of the people he could say, the National Gov^t is mine, the State Gov^t is mine. In transferring power from one to the other, I only take out of my left hand what it cannot so well use, and put it into my right hand where it can be better used.

M^r Gerry thought it was rather taking out of the right hand & putting it into the left. Will any man say that liberty will be as safe in the hands of eighty or a hundred men taken from the whole continent, as in the hands of two or three hundred taken from a single State.

M^r Dayton was against so absolute a uniformity. In some States there ought to be a greater proportion of cavalry than in others. In some places rifles would be most proper, in others muskets &c.

Gen^l Pinkney preferred the clause reported by the Committee, extending the meaning of it to the case of fines &c.

M^r Madison. The primary object is to secure an effectual discipline of the Militia. This will no more be done if left to the States separately than the requisitions have been hitherto paid by them. The States neglect their Militia now, and the more they are consolidated into one nation, the less each will rely on its own interior provisions for its safety & the less prepare its Militia for that purpose; in like manner as the militia of a State would have been still more neglected than it has been if each county had been independently charged with the care of its Militia. The Discipline of the Militia is evidently a _National_ concern, and ought to be provided for in the _National_ Constitution.

M^r L. Martin was confident that the States would never give up the power over the Militia; and that, if they were to do so, the militia would be less attended to by the Gen^l than by the State Governments.

M^r Randolph asked what danger there Could be that the Militia could be brought into the field and made to commit suicide on themselves. This is a power that cannot from its nature be abused, unless indeed the whole mass should be corrupted. He was for trammelling the Gen^l Gov^t whenever there was danger, but here there could be none. He urged this as an essential point; observing that the Militia were every where neglected by the State Legislatures, the members of which courted popularity too much to enforce a proper discipline. Leaving the appointment of officers to the States protects the people ag^{st} every apprehension that could produce murmur.

On Question on M^r Elsworth's Motion

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

A motion was then made to recommit the 2^d clause which was negatived.

On the question to agree to the 1^{st} part of the clause, namely

"To make laws for organizing arming & disciplining the Militia,
and for governing such part of them as may be employed in the
service of the U. S."

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

M^r Madison moved to amend the next part of the clause so as to read "reserving to the States respectively, the appointment of the officers, _under the rank of General officers_."

M^r Sherman considered this as absolutely inadmissible. He said that if the people should be so far asleep as to allow the most influential officers of the militia to be appointed by the Gen^l Government, every man of discernment would rouse them by sounding the alarm to them.

M^r Gerry. Let us at once destroy the State Gov^{ts} have an Executive for life or hereditary, and a proper Senate, and then there would be some consistency in giving full powers to the Gen^l Gov^t but as the States are not to be abolished, he wondered at the attempts that were made to give powers inconsistent with their existence. He warned the Convention ag^{st} pushing the experiment too far. Some people will support a plan of vigorous Government at every risk. Others of a more democratic cast will oppose it with equal determination, and a Civil war may be produced by the conflict.

M^r Madison. As the greatest danger is that of disunion of the States, it is necessary to guard ag^{st} it by sufficient powers to the Common gov^t and as the greatest danger to liberty is from large standing armies, it is best to prevent them by an effectual provision for a good Militia.

On the Question to agree to M^r Madison's motion

N. H. ay. Mas. no. C^t no. N. J. no. P^a no. Del. no. M^d no.
V^a no. N. C. no. S. C. ay. Geo. ay.[40]

[40] In the printed Journal, Geo: no.--Madison's Note.

On the question to agree to the "reserving to the States the appointment of the officers." It was agreed to nem: contrad:

On the question on the clause "and the authority of training the Militia according to the discipline prescribed by the U. S."--

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

On the question to agree to Art. VII. Sect. 7. as reported it passed nem: contrad.

M^r Pinkney urged the necessity of preserving foreign Ministers & other officers of the U. S. independent of external influence and moved to insert, after Art. VII Sect 7. the clause following--"No person holding any office of profit or trust under the U. S. shall without the consent of the Legislature, accept of any present, emolument, office or title of any kind whatever, from any King, Prince or foreign State", which passed nem: contrad:

M^r Rutlidge moved to amend Art: VIII to read as follows,

"This Constitution & the laws of the U. S. made in pursuance
thereof, and all the Treaties made under the authority of the U.
S. shall be the supreme law of the several States and of their
citizens and inhabitants; and the Judges in the several States
shall be bound thereby in their decisions, any thing in the
Constitutions or laws of the several States, to the contrary
notwithstanding."

which was agreed to, nem: contrad:

Art: IX being next for consideration,

M^r Gov^r Morris argued ag^{st} the appointment of officers by the Senate. He considered the body as too numerous for the purpose; as subject to cabal; and as devoid of responsibility. If Judges were to be tried by the Senate according to a late report of a Committee it was particularly wrong to let the Senate have the filling of vacancies which its own decrees were to create.

M^r Wilson was of the same opinion & for like reasons.

The art. IX. being waved, and Art. VII. Sect. 1. resumed,

M^r Gov^r Morris moved to strike the following words out of the 18 clause "enforce treaties" as being superfluous, since treaties were to be "laws"--which was agreed to nem: contrad:

M^r Gov^r Morris moved to alter 1^{st} part. of 18. clause Sect. 1. art VII so as to read "to provide for calling forth the militia to execute the laws of the Union, suppress insurrections and repel invasions"--which was agreed to nem: contrad:

On the question then to agree to the 18 clause of Sect. 1. Art: 7. as amended it passed in the affirmative nem: contrad.

M^r C. Pinkney moved to add as an additional power to be vested in the Legislature of the U. S. "To negative all laws passed by the several States interfering in the opinion of the legislature with the general interests and harmony of the Union; provided that two thirds of the members of each House assent to the same." This principle he observed had formerly been agreed to. He considered the precaution as essentially necessary. The objection drawn from the predominance of the large States had been removed by the equality established in the Senate.[41]

[41] "RICHMOND AUG^t 22. 87.

"DEAR SIR,

* * * * *

"I have still some hope that I shall hear from you of y^e
reinstatement of y^e _negative_--as it is certainly y^e only
means by which the several Legislatures can be restrained
from disturbing y^e order & harmony of y^e whole, & y^e
governm^t render'd properly _national_, & _one_. I should
suppose y^t some of its former opponents must by this time
have seen y^e necessity of advocating it, if they wish to
support their own principles."
(James McClurg to Madison--Mad. MSS.)

M^r Broome 2^{ded} the proposition.

M^r Sherman thought it unnecessary; the laws of the General Government being supreme & paramount to the State laws according to the plan, as it now stands.

M^r Madison proposed that it should be committed. He had been from the beginning a friend to the principle; but thought the modification might be made better.

M^r Mason wished to know how the power was to be exercised. Are all laws whatever to be brought up? Is no road nor bridge to be established without the Sanction of the General Legislature? Is this to sit constantly in order to receive & revise the State Laws?--He did not mean by these remarks to condemn the expedient, but he was apprehensive that great objections would lie ag^{st} it.

M^r Williamson thought it unnecessary, having been already decided, a revival of the question was a waste of time.

M^r Wilson considered this as the key-stone wanted to compleat the wide arch of Government we are raising. The power of self-defence had been urged as necessary for the State Governments. It was equally necessary for the General Government. The firmness of Judges is not of itself sufficient. Something further is requisite. It will be better to prevent the passage of an improper law, than to declare it void when passed.

M^r Rutlidge. If nothing else, this alone would damn and ought to damn the Constitution. Will any State ever agree to be bound hand & foot in this manner. It is worse than making mere corporations of them whose bye laws would not be subject to this shackle.

M^r Elseworth observed that the power contended for w^d require either that all laws of the State Legislatures should previously to their taking effect be transmitted to the Gen^l Legislature, or be repealable by the Latter; or that the State Executives should be appointed by the Gen^l Government, and have a controul over the State laws. If the last was meditated let it be declared.

M^r Pinkney declared that he thought the State Executives ought to be so appointed with such a controul, & that it would be so provided if another Convention should take place.

M^r Govern^r Morris did not see the utility or practicability of the proposition of M^r Pinkney, but wished it to be referred to the consideration of a Committee.

M^r Langdon was in favor of the proposition. He considered it as resolvable into the question whether the extent of the National Constitution was to be judged of by the Gen^l or the State Governments.

On the question for commitment, it passed in the negative.

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

M^r Pinkney then withdrew his proposition.

The 1^{st} sect. of Art: VII being so amended as to read "The Legislature _shall_ fulfil the engagements and discharge the debts of the U. S. & shall have the power to lay & collect taxes duties imposts & excises," was agreed to.

M^r Butler expressed his dissatisfaction lest it should compel payment as well to the Blood-suckers who had speculated on the distresses of others, as to those who had fought & bled for their country. He would be ready he said to-morrow to vote for a discrimination between those classes of people, and gave notice that he should move for a reconsideration.

Art IX Sect. 1. being resumed, to wit "The Senate of the U. S. shall have power to make treaties, and to appoint Ambassadors, and Judges of the Supreme Court."

M^r Madison observed that the Senate represented the States alone, and that for this as well as other obvious reasons it was proper that the President should be an agent in Treaties.

M^r Gov^r Morris did not know that he should agree to refer the making of Treaties to the Senate at all, but for the present w^d move to add, as an amendment to the section after "Treaties"--"but no Treaty shall be binding on the U. S. which is not ratified by a law."

M^r Madison suggested the inconvenience of requiring a legal _ratification_ of treaties of alliance for the purposes of war &c &c."

M^r Ghorum. Many other disadvantages must be experienced if treaties of peace & all negotiations are to be previously ratified--and if not previously, the Ministers would be at a loss how to proceed. What would be the case in G. Britain if the King were to proceed in this manner. American Ministers must go abroad not instructed by the same Authority (as will be the case with other Ministers) which is to ratify their proceedings.

M^r Gov^r Morris. As to treaties of alliance, they will oblige foreign powers to send their ministers here the very thing we should wish for. Such treaties could not be otherwise made, if his amendment sh^d succeed. In general he was not solicitious to multiply & facilitate Treaties. He wished none to be made with G. Britain, till she should be at war. Then a good bargain might be made with her. So with other foreign powers. The more difficulty in making treaties, the more value will be set on them.

M^r Wilson. In the most important Treaties, the King of G. Britain being obliged to resort to Parliament for the execution of them, is under the same fetters as the amendment of M^r Morris' will impose on the Senate. It was refused yesterday to permit even the Legislature to lay duties on exports. Under the clause without the amendment, the Senate alone can make a Treaty, requiring all the Rice of S. Carolina to be sent to some one particular port.

M^r Dickinson concurred in the amendment, as most safe and proper, tho' he was sensible it was unfavorable to the little States, w^{ch} would otherwise have an _equal_ share in making Treaties.

Doc^r Johnson thought there was something of solecism in saying that the acts of a minister with plenipotentiary powers from one Body, should depend for ratification on another Body. The Example of the King of G. B. was not parallel. Full & compleat power was vested in him. If the Parliament should fail to provide the necessary means of execution, the Treaty would be violated.

M^r Ghorum in answer to M^r Gov^r Morris, said that negotiations on the spot were not to be desired by us, especially if the whole Legislature is to have any thing to do with Treaties. It will be generally influenced by two or three men, who will be corrupted by the Ambassadors here. In such a Government as ours, it is necessary to guard against the Government itself being seduced.

M^r Randolph observing that almost every Speaker had made objections to the clause as it stood, moved in order to a further consideration of the subject, that the motion of M^r Gov^r Morris should be postponed, and on this question It was lost the States being equally divided.

Mass^{ts} no. Con^t no. N. J. ay. Pen^a ay. Del. ay. M^d ay.
V^a ay. N. C. no. S. C. no. Geo. no.

On M^r Gov^r Morris motion

Mass^{ts} no. Con^t no. N. J. no. P^a ay. Del. no. M^d no.
V^a no. N. C. div^d. S. C. no. Geo. no.

The several clauses of Sect: 1. Art IX, were then separately postponed after inserting "and other public ministers" next after "ambassadors."

M^r Madison hinted for consideration, whether a distinction might not be made between different sorts of Treaties--allowing the President & Senate to make Treaties eventual and of alliance for limited terms--and requiring the concurrence of the whole Legislature in other Treaties.

The 1^{st} Sect Art IX. was finally referred nem: con: to the committee of Five, and the House then

Adjourned.

FRIDAY AUGUST 24. 1787. IN CONVENTION

Governour Livingston, from the Committee of Eleven, to whom were referred the two remaining clauses of the 4^{th} Sect & the 5 & 6 Sect: of the 7^{th}. Art: delivered in the following Report:

"Strike out so much of the 4^{th} Sect: as was referred to the
Committee and insert--'The migration or importation of such
persons as the several States now existing shall think proper to
admit, shall not be prohibited by the Legislature prior to the
year 1800, but a tax or duty may be imposed on such migration or
importation at a rate not exceeding the average of the duties
laid on imports.'"

"The 5 Sect: to remain as in the Report."

"The 6 Sect, to be stricken out."

M^r Butler, according to notice, moved that clause 1^{st} sect. 1. of art VII, as to the discharge of debts, be reconsidered tomorrow. He dwelt on the division of opinion concerning the domestic debts, and the different pretensions of the different classes of holders. Gen^l Pinkney 2^{ded} him.

M^r Randolph wished for a reconsideration in order to better the expression, and to provide for the case of the State debts as is done by Congress.

On the question for reconsidering

N. H. no. Mass. ay. Con^t ay. N. J. ay. Pen^a absent. Del. ay.
M^d no. V^a ay. N. C. absent. S. C. ay. Geo. ay.--and tomorrow
assigned for the reconsideration.

Sect: 2 & 3 of art: IX being taken up,

M^r Rutlidge said this provision for deciding controversies between the States was necessary under the Confederation, but will be rendered unnecessary by the National Judiciary now to be established, and moved to strike it out.

Doc^r Johnson 2^{ded} the motion.

M^r Sherman concurred: so did M^r Dayton.

M^r Williamson was for postponing instead of striking out, in order to consider whether this might not be a good provision, in cases where the Judiciary were interested or too closely connected with the parties.

M^r Ghorum had doubts as to striking out. The Judges might be connected with the States being parties--He was inclined to think the mode proposed in the clause would be more satisfactory than to refer such cases to the Judiciary.

On the Question for postponing the 2^d & 3^d Section it passed in the negative.

N. H. ay. Mass^{ts} no. Con^t no. N. J. no. Pen^a abs^t.
Del. no. M^d no. V^a no. N. C. ay. S. C. no. Geo. ay.

M^r Wilson urged the striking out, the Judiciary being a better provision.

On Question for striking out 2 & 3 Sections Art: IX

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

Art X. Sect. 1. "The Executive power of the U. S. shall be vested in a single person. His stile shall be "The President of the U. S. of America" and his title shall be "His Excellency." He shall be elected by ballot by the Legislature. He shall hold his office during the term of seven years; but shall not be elected a second time."

On the question for vesting the power in a _single person_--It was agreed to nem: con: So also on the _stile_ and _title_.

M^r Rutlidge moved to insert "joint" before the word "ballot," as the most convenient mode of electing.

M^r Sherman objected to it as depriving the _States_ represented in the _Senate_ of the negative intended them in that house.

M^r Ghorum said it was wrong to be considering at every turn whom the Senate would represent. The public good was the true object to be kept in view. Great delay and confusion would ensue if the two Houses sh^d vote separately, each having a negative on the choice of the other.

M^r Dayton. It might be well for those not to consider how the Senate was constituted, whose interest it was to keep it out of sight.--If the amendment should be agreed to, a _joint_ ballot would in fact give the appointment to one House. He could never agree to the clause with such an amendment. There could be no doubt of the two Houses separately concurring in the same person for President. The importance & necessity of the case would ensure a concurrence.

M^r Carrol moved to strike out "by the Legislature" and insert "by the people." M^r Wilson 2^{ded}. him & on the question

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

M^r Brearly was opposed to the motion for inserting the word "joint." The argument that the small States should not put their hands into the pockets of the large ones did not apply in this case.

M^r Wilson urged the reasonableness of giving the larger States a larger share of the appointment, and the danger of delay from a disagreement of the two Houses. He remarked also that the Senate had peculiar powers balancing the advantage given by a joint ballot in this case to the other branch of the Legislature.

M^r Langdon. This general officer ought to be elected by the joint & general voice. In N. Hampshire the mode of separate votes by the two Houses was productive of great difficulties. The negative of the Senate would hurt the feelings of the man elected by the votes of the other branch. He was for inserting "joint" tho' unfavorable to N. Hampshire as a small State.

M^r Wilson remarked that as the President of the Senate was to be the President of the U. S. that Body in cases of vacancy might have an interest in throwing dilatory obstacles in the way, if its separate concurrence should be required.

M^r Madison. If the amendment be agreed to the rule of voting will give to the largest State, compared with the smallest, an influence as 4 to 1 only, altho the population is as 10 to 1. This surely cannot be unreasonable as the President is to act for the _people_ not for the _States_. The President of the _Senate_ also is to be occasionally President of the U. S. and by his negative alone can make 3/4 of the other branch necessary to the passage of a law. This is another advantage enjoyed by the Senate.

On the question for inserting "joint," it passed in the affirmative.

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

M^r Dayton then moved to insert, after the word "Legislatures" the words "each State having one vote." M^r Brearly 2^{ded} him, and on the question it passed in the negative.

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

M^r Pinkney moved to insert after the word "Legislature" the words "to which election a majority of the votes of the members present shall be required" & on this question, it passed in the affirmative.

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

M^r Read moved "that in case the numbers for the two highest in votes should be equal, then the President of the Senate shall have an additional casting vote," which was disagreed to by a general negative.

M^r Gov^r Morris opposed the election of the President by the Legislature. He dwelt on the danger of rendering the Executive uninterested in maintaining the rights of his Station, as leading to Legislative tyranny. If the Legislature have the Executive dependent on them, they can perpetuate & support their usurpations by the influence of tax-gatherers & other officers, by fleets armies &c. Cabal & corruption are attached to that mode of election: so also is ineligibility a second time. Hence the Executive is interested in Courting popularity in the Legislature by sacrificing his Executive Rights; & then he can go into that Body, after the expiration of his Executive office, and enjoy there the fruits of his policy. To these considerations he added that rivals would be continually intriguing to oust the President from his place. To guard against all these evils he moved that the President "shall be chosen by Electors to be chosen by the People of the several States." M^r Carrol 2^{ded} him & on the question it passed in the negative N. H. no. Mass. no. C^t ay. N. J. ay. P^a ay. Del. ay. M^d no. V^a ay. N. C. no. S. C. no. Geo. no.

M^r Dayton moved to postpone the consideration of the two last clauses of Sect. 1. art X. which was disagreed to without a count of the States.

M^r Broome moved to refer the two clauses to a Committee of a member from each State, & on the question, it failed the States being equally divided.

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

On the question taken on the first part of M^r Gov^r Morris's motion to wit "shall be chosen by electors" as an abstract question, it failed the States being equally divided,

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

The consideration of the remaining clauses of Sect. 1. art. X. was then postponed till tomorrow at the instance of the Deputies of New Jersey.

Sect. 2. Art: X being taken up, the word information was transposed & inserted after "Legislature."

On motion of M^r Gov^r Morris, "he may" was struck out, & "and" inserted before "recommend" in the clause 2^d sect 2^d art: X. in order to make it the _duty_ of the President to recommend, & thence prevent umbrage or cavil at his doing it.

M^r Sherman objected to the sentence "and shall appoint officers in all cases not otherwise provided for by this Constitution." He admitted it to be proper that many officers in the Executive Department should be so appointed--but contended that many ought not, as general officers in the army in time of peace &c. Herein lay the corruption in G. Britain. If the Executive can model the army, he may set up an absolute Government; taking advantage of the close of a war and an army commanded by his creatures. James 2^d was not obeyed by his officers because they had been appointed by his predecessors not by himself. He moved to insert "or by law" after the word "Constitution."

On motion of M^r Madison "officers" was struck out and "to offices" inserted, in order to obviate doubts that he might appoint officers without a previous creation of the offices by the Legislature.

On the question for inserting "or by law" as moved by M^r Sherman

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

M^r Dickinson moved to strike out the words "and shall appoint to offices in all cases not otherwise provided for by this Constitution" and insert--"and shall appoint to all offices established by this Constitution, except in cases herein otherwise provided for, and to all offices which may hereafter be created by law."

M^r Randolph observed that the power of appointments was a formidable one both in the Executive & Legislative hands--and suggested whether the Legislature should not be left at liberty to refer appointments in some cases, to some State authority.

M^r Dickenson's motion, it passed in the affirmative.

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

M^r Dickinson then moved to annex to his last amendment "except where by law the appointment shall be vested in the Legislatures or Executives of the several States." M^r Randolph 2^{ded} the motion.

M^r Wilson. If this be agreed to it will soon be a standing instruction from the State Legislatures to pass no law creating offices, unless the app^{ts} be referred to them.

M^r Sherman objected to "Legislatures" in the motion, which was struck out by consent of the movers.

M^r Gov^r Morris. This would be putting it in the power of the States to say, "You shall be viceroys but we will be viceroys over you"--

The motion was negatived without a Count of the States--

Ordered unanimously that the order respecting the adjournment at 4 OClock be repealed, & that in future the House assemble at 10 OC. & adjourn at 3 OC.

Adjourned.

SATURDAY AUGUST 25. 1787. IN CONVENTION

The 1^{st} clause of 1 Sect. of art: VII being reconsidered

Col. Mason objected to the term "_shall_"--fullfil the engagements & discharge the debts &c. as too strong. It may be impossible to comply with it. The Creditors should be kept in the same plight. They will in one respect be necessarily and properly in a better. The Government will be more able to pay them. The use of the term _shall_ will beget speculations and increase the pestilent practice of stock-jobbing. There was a great distinction between original creditors & those who purchased fraudulently of the ignorant and distressed. He did not mean to include those who have bought Stock in open market. He was sensible of the difficulty of drawing the line in this case, but he did not wish to preclude the attempt. Even fair purchasers at 4. 5. 6. 8 for 1 did not stand on the same footing with the first Holders, supposing them not to be blameable. The interest they receive even in paper, is equal to their purchase money. What he particularly wished was to leave the door open for buying up the securities, which he thought would be precluded by the term "shall" as requiring _nominal payment_, & which was not inconsistent with his ideas of public faith. He was afraid also the word "_shall_," might extend to all the old continental paper.

M^r Langdon wished to do no more than leave the Creditors in statu quo.

M^r Gerry said that for himself he had no interest in the question being not possessed of more of the securities than would, by the interest, pay his taxes. He would observe however that as the public had received the value of the literal amount, they ought to pay that value to some body. The frauds on _the soldiers_ ought to have been foreseen. These poor & ignorant people could not but part with their securities. There are other creditors who will part with any thing rather than be cheated of the capital of their advances. The interest of the States he observed was different on this point, some having more, others less than their proportion of the paper. Hence the idea of a scale for reducing its value had arisen. If the public faith would admit, of which he was not clear, he would not object to a revision of the debt so far as to compel restitution to the ignorant & distressed, who have been defrauded. As to stock-jobbers he saw no reason for the censures thrown on them. They keep up the value of the paper. Without them there would be no market.

M^r Butler said he meant neither to increase nor diminish the security of the Creditors.

M^r Randolph moved to postpone the clause in favor of the following "All debts contracted & engagements entered into, by or under the authority of Cong^s shall be as valid ag^{st} the U. States under this constitution as under the Confederation."

Doc^r Johnson. The debts are debts of the U. S. of the great Body of America. Changing the Government cannot change the obligation of the U. S. which devolves of course on the new Government. Nothing was in his opinion necessary to be said. If any thing, it should be a mere declaration as moved by M^r Randolph.

M^r Gov^r Morris, said he never had become a public Creditor that he might urge with more propriety the compliance with public faith. He had always done so and always would, and preferr'd the term "_shall_" as the most explicit. As to _buying up_ the debt, the term "_shall_" was not inconsistent with it, if provision be first made for paying the interest: if not, such an expedient was a mere evasion. He was content to say nothing as the New Government would be bound of course, but would prefer the clause with the term "_shall_," because it would create many friends to the plan.

On M^r Randolph's Motion

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

M^r Sherman thought it necessary to connect with the clause for laying taxes duties &c. an express provision for the object of the old debts &c.--and moved to add to the 1^{st} clause of 1^{st} sect. art VII "for the payment of said debts and for the defraying the expences that shall be incurred for the common defence and general welfare."

The proposition, as being unnecessary was disagreed to, Connecticut alone, being in the affirmative.

The Report of the Committee of eleven (see friday the 24^{th} instant) being taken up,

Gen^l Pinkney moved to strike out the words, "the year eighteen hundred" as the year limiting the importation of slaves, and to insert the words "the year eighteen hundred and eight."

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

M^r Madison. Twenty years will produce all the mischief that can be apprehended from the liberty to import slaves. So long a term will be more dishonourable to the National character than to say nothing about it in the Constitution.

On the motion; which passed in the affirmative,

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

M^r Gov^r Morris was for making the clause read at once, "the importation of slaves into N. Carolina, S. Carolina & Georgia shall not be prohibited &c." This he said would be most fair and would avoid the ambiguity by which, under the power with regard to naturalization, the liberty reserved to the States might be defeated. He wished it to be known also that this part of the Constitution was a compliance with those States. If the change of language however should be objected to by the members from those States, he should not urge it.

Col. Mason was not against using the term "slaves" but ag^{st} naming N. C. S. C. & Georgia, lest it should give offence to the people of those States.

M^r Sherman liked a description better than the terms proposed, which had been declined by the old Cong^s & were not pleasing to some people. M^r Clymer concurred with M^r Sherman.

M^r Williamson said that both in opinion & practice he was against slavery; but thought it more in favor of humanity, from a view of all circumstances, to let in S. C. & Georgia on those terms, than to exclude them from the Union.

M^r Gov^r Morris withdrew his motion.

M^r Dickenson wished the clause to be confined to the States which had not themselves prohibited the importation of slaves, and for that purpose moved to amend the clause so as to read "The importation of slaves into such of the States as shall permit the same shall not be prohibited by the Legislature of the U. S. until the year 1808"--which was disagreed to nem: con:[42]

[42] In the printed Journals, Con^t Virg^a & Georgia voted in
the affirmative.--Madison's Note.

The first part of the report was then agreed to, amended as follows. "The migration or importation of such persons as the several States now existing shall think proper to admit, shall not be prohibited by the Legislature prior to the year 1808."

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

M^r Baldwin in order to restrain & more explicitly define "the average duty" moved to strike out of the 2^d part the words "average of the duties laid on imports" and insert "common impost on articles not enumerated" which was agreed to nem: cont:

M^r Sherman was ag^{st} this 2^d part, as acknowledging men to be property, by taxing them as such under the character of slaves.

M^r King & M^r Langdon considered this as the price of the 1^{st} part.

Gen^l Pinkney admitted that it was so.

Col. Mason. Not to tax, will be equivalent to a bounty on the importation of slaves.

M^r Ghorum thought that M^r Sherman should consider the duty, not as implying that slaves are property, but as a discouragement to the importation of them.

M^r Gov^r Morris remarked that as the clause now stands it implies that the Legislature may tax freemen imported.

M^r Sherman in answer to M^r Ghorum observed that the smallness of the duty shewed revenue to be the object, not the discouragement of the importation.

M^r Madison thought it wrong to admit in the Constitution the idea that there could be property in men. The reason of duties did not hold, as slaves are not like merchandize, consumed, &c.

Col. Mason (in answ^r to Gov^r Morris) the provision as it stands was necessary for the case of convicts in order to prevent the introduction of them.

It was finally agreed nem. contrad: to make the clause read "but a tax or duty may be imposed on such importation not exceeding ten dollars for each person," and then the 2^d part as amended was agreed to.

Sect 5. art. VII was agreed to nem: con: as reported.

Sect. 6. art. VII. in the Report, was postponed.

On motion of M^r Madison 2^{ded} by M^r Gov^r Morris Article VIII was reconsidered and after the words "all treaties made," were inserted nem: con: the words "or which shall be made." This insertion was meant to obviate all doubt concerning the force of treaties preexisting, by making the words "all treaties made" to refer to them, as the words inserted would refer to future treaties.

M^r Carrol and M^r L. Martin expressed their apprehensions, and the probable apprehensions of their constituents, that under the power of regulating trade the General Legislature, might favor the ports of particular States, by requiring vessels destined to or from other States to enter & clear thereat, as vessels belonging or bound to Baltimore, to enter & clear at Norfolk &c. They moved the following proposition

"The Legislature of the U. S. shall not oblige vessels belonging
to citizens thereof, or to foreigners, to enter or pay duties or
imposts in any other State than in that to which they may be
bound, or to clear out in any other than the State in which
their cargoes may be laden on board; nor shall any privilege or
immunity be granted to any vessel on entering or clearing out,
or paying duties or imposts in one State in preference to
another."

M^r Ghorum thought such a precaution unnecessary; & that the revenue might be defeated, if vessels could run up long rivers, through the jurisdiction of different States without being required to enter, with the opportunity of landing & selling their cargoes by the way.

M^r M^cHenry & Gen^l Pinkney made the following propositions

"Should it be judged expedient by the Legislature of the U. S.
that one or more port for collecting duties or imposts other
than those ports of entrance & clearance already established by
the respective States, should be established, the Legislature of
the U. S. shall signify the same to the Executives of the
respective States, ascertaining the number of such ports judged
necessary; to be laid by the said Executives before the
Legislatures of the States at their next session; and the
Legislature of the U. S. shall not have the power of fixing or
establishing the particular ports for collecting duties or
imposts in any State, except the Legislature of such State shall
neglect to fix and establish the same during their first session
to be held after such notification by the Legislature of the U.
S. to the Executive of such State."

"All duties imposts & excises, prohibitions or restraints laid
or made by the Legislature of the U. S. shall be uniform & equal
throughout the U. S."

These several propositions were referred nem: con: to a committee composed of a member from each State. The committee appointed by ballot were M^r Langdon, M^r Ghorum, M^r Sherman, M^r Dayton, M^r Fitzimmons, M^r Read, M^r Carrol, M^r Mason, M^r Williamson, M^r Butler, M^r Few.

On the question now taken on M^r Dickinson's motion of yesterday, allowing appointments to offices, to be referred by the Gen^l Legislature to the Executives of the several States as a further amendment to sect. 2. art. X, the votes were

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

In amendment of the same section, "other public Ministers" were inserted after "ambassadors."

M^r Gov^r Morris moved to strike out of the section--"and may correspond with the supreme Executives of the several States" as unnecessary and implying that he could not correspond with others. M^r Broome 2^{ded} him.

On the question

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

"Shall receive ambassadors & other public Ministers," agreed to, nem. con.

M^r Sherman moved to amend the "power to grant reprieves & pardon" so as to read "to grant reprieves until the ensuing session of the Senate, and pardons with consent of the Senate."

On the question

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

"except in cases of impeachment" inserted nem. con: after "pardon."