Madison’s Notes: Federal Convention of 1787: Sept. 14

Liberty Letters, 14 September 1787, James Madison

Editor’s overview: Article first, relative to the Legislative powers, resumed.

Motion to change the present proportion of members in the House of Representatives, disagreed to.

Motion that officers impeached be suspended till trial. Disagreed to.

Motion to require the House of Representatives to publish all its proceedings. Disagreed to.

Motion that Treasurer be appointed as other officers. Agreed to.

Motion “but all such duties imposts and excises, shall be uniform throughout the United States” be annexed to the power of taxation.. Agreed to.

Motion to provide for cutting canals and granting charters of incorporation, where the States may be incompetent. Disagreed to.

Motion to clarify whether the expost facto law prohibition was meant to apply only to criminal cases and not civil cases (another proposed that it specifically state that it extended to civil cases). Disagreed to.

To establish a national university. Disagreed to.

To provide for the preservation of the liberty of the press. Thought unnecessary for Congress was given no power of the press by the Constitution. Thus, disagreed to.

Motion to insert after “capitation” the words, “or other direct tax.” Agreed to.

To publish the expenditures of Congress. Agreed to.

Steve Farrell

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The Report of the Committee of Stile and arrangement being resumed,

Hugh Williamson moved to reconsider in order to increase the number of Representatives fixed for the first Legislature. His purpose was to make an addition of one half generally to the number allotted to the respective States; and to allow two to the smallest States.

On this motion

N. H. no. Mas. no. Ct. no. N. J. no. Pa. ay. Del. ay. Md. ay. Va. ay. N C. ay. S. C. no. Geo. no. 2

Art. 1. sect. 3. — the words *3 “by lot” were struck out nem: con: on motion of James Madison, that some rule might prevail in the rotation that would prevent both the members from the same State from going out at the same time.

“Ex officio” struck out of the same section as superfluous: nem: con: and “or affirmation.” after “oath” inserted also unanimously.

John Rutledge and Governeur Morris moved “that persons impeached be suspended from their office 5 until they be tried and acquitted”

James Madison. The President is made too dependent already on the Legislature, by the power of one branch to try him in consequence of an impeachment by the other. This intermediate suspension, will put him in the power of one branch only. They can at any moment, in order to make way for the functions of another who will be more favorable to their views, vote a temporary removal of the existing Magistrate.

Rufus King concurred in the opposition to the amendment

On the question to agree to it

N. H. no. Mas. no. Ct ay. N. J. no. Pa. no. Del. no. Md. no. Va. no. N. C. no. S. C. ay. Geo. ay. 6

Art. 1. sect. 4. “except as to the places of choosing Senators” 7 added nem: con: to the end of the first clause, in order to exempt the seats of Government in the States from the power of Congress.

Art. 1. Sect. 5. “Each House shall keep a Journal of its proceedings, and from time to time publish the same, excepting such parts as may in their judgment require secrecy.”

George Mason and Elbridge Gerry moved to insert after the word “parts” the words “of the proceedings of the Senate” so as to require publication of all the proceedings of the House of Representatives.

It was intimated on the other side that cases might arise where secrecy might be necessary in both Houses. Measures preparatory to a declaration of war in which the House of Representatives was to concur, were instanced.

On the question, it passed in the negative

N. H. no. (Rh. I abs) Mas. no. Con: no. (N. Y. abs) N. J. no. Pen. ay. Del. no. Mary. ay. Virg. no. N. C. ay. S. C. divd. Geor. no. 8

Abraham Baldwin observed that the clause, Art. 1. Sect 6. declaring that no member of Congress “during the time for which he was elected; shall be appointed to any Civil office under the authority of the United States which shall have been created, or the emoluments whereof shall have been increased during such time,” would not extend to offices created by the Constitution; and the salaries of which would be created, not increased by Congress at their first session. The members of the first Congress consequently might evade the disqualification in this instance. — He was neither seconded nor opposed; nor did any thing further pass on the subject.

Art. 1. Sect. 8. The Congress “may by joint ballot appoint a Treasurer”

John Rutledge moved to strike out this power, and let the Treasurer be appointed in the same manner with other officers.

Nathaniel Gorham and Rufus King said that the motion, if agreed, to would have a mischievous tendency. The people are accustomed and attached to that mode of appointing Treasurers, and the innovation will multiply objections to the System.

Governeur Morris remarked that if the Treasurer be not appointed by the Legislature, he will be more narrowly watched, and more readily impeached.

Roger Sherman. As the two Houses appropriate money, it is best for them to appoint the officer who is to keep it; and to appoint him as they make the appropriation, not by joint but several votes.

Charles Cotesworth Pinckney. The Treasurer is appointed by joint ballot in South Carolina. The consequence is that bad appointments are made, and the Legislature will not listen to the faults of their own officer.

On the motion to strike out

N. H. ay. Mas. no. Ct. ay. N. J. ay. Pa. no. Del. ay. Md. ay. Va. no. N. C. ay. S. C. ay. Geo. ay. 9

Art 1. sect. 8. 10 “but all such duties imposts and excises, shall be uniform throughout the United States.” was 11 unanimously annexed to the power of taxation.

12 To define and punish piracies and felonies on the high seas, and “punish” offenses against the law of nations.

Gouverneur Morris moved to strike out “punish” before the words “offenses against the law of nations,” so as to let these be definable as well as punishable, by virtue of the preceding member of the sentence.

James Wilson the alteration would by no means be made. To pretend to define the law of nations which depended on the authority of all the civilized nations of the world, would have a look of arrogance, that would make us ridiculous.

Gouverneur Morris. 13 The word define is proper when applied to offenses in this case; the law of nations being often too vague and deficient to be a rule.

On the question to strike out the word “punish” it passed in the affirmative

N. H. ay. Mas. no. Ct. ay. N. J. ay. Pa. no. Del. ay. Md. no. Va. no. N. C. ay. S. C. ay. Geo. no. 14

Doctor Benjamin Franklin moved *15 to add after the words “post roads” Art I. Sect. 8. “a power to provide for cutting canals where deemed necessary”

James Wilson seconded the motion

Roger Sherman objected. The expense in such cases will fall on the United States, and the benefit accrue to the places where the canals may be cut.

James Wilson. Instead of being an expense to the United States they may be made a source of revenue.

James Madison suggested an enlargement of the motion into a power “to grant charters of incorporation where the interest of the United States might require and the legislative provisions of individual States may be incompetent.” His primary object was however to secure an easy communication between the States which the free intercourse now to be opened, seemed to call for. The political obstacles being removed, a removal of the natural ones as far as possible ought to follow.

James Randolph seconded the proposition

Rufus King thought the power unnecessary.

James Wilson. It is necessary to prevent a State from obstructing the general welfare.

Rufus King. The States will be prejudiced and divided into parties by it. In Philadelphia and New York, it will be referred to the establishment of a Bank, which has been a subject of contention in those Cities. In other places it will be referred to mercantile monopolies.

James Wilson mentioned the importance of facilitating by canals, the communication with the Western Settlements. As to Banks he did not think with Rufus King that the power in that point of view would excite the prejudices and parties apprehended. As to mercantile monopolies they are already included in the power to regulate trade.

George Mason was for limiting the power to the single case of Canals. He was afraid of monopolies of every sort, which he did not think were by any means already implied by the Constitution as supposed by Mr. Wilson.

The motion being so modified as to admit a distinct question specifying and limited to the case of canals,

N. H. no. Mas. no. Ct. no. N. J. no. Pa. ay. Del. no. Md. no. Va. ay. N. C. no. S. C no. Geo. ay. 16

The other part fell of course, as including the power rejected. James Madison and Charles Cotesworth Pinckney then moved to insert in the list of powers vested in Congress a power — “to establish an University, in which no preferences or distinctions should be allowed on account of Religion.”

James Wilson supported the motion

Governeur Morris. It is not necessary. The exclusive power at the Seat of Government, will reach the object.

On the question

N. H. no. Mas. no. Cont. divd. Dr. Johnson ay. Mr. Sherman no. N. J. no. Pa. ay. Del. no. Md. no. Va. ay. N. C. ay. S. C. ay. Geo. no. 17

George Mason, being sensible that an absolute prohibition of standing armies in time of peace might be unsafe, and wishing at the same time to insert something pointing out and guarding against the danger of them, moved to preface the clause (Art I sect. 8) “To provide for organizing, arming and disciplining the Militia &c” with the words” “And that the liberties of the people may be better secured against the danger of standing armies in time of peace” Edmund Randolph seconded the motion

James Madison was in favor of it. It did not restrain Congress from establishing a military force in time of peace if found necessary; and as armies in time of peace are allowed on all hands to be an evil, it is well to discountenance them by the Constitution, as far as will consist with the essential power of the Government on that head.

Governeur Morris opposed the motion as setting a dishonorable mark of distinction on the military class of Citizens

Charles Cotesworth Pinckney and Gunning Bedford Jr. concurred in the opposition. On the question

N. H. no. Mas. no. Ct. no. N. J. no. Pa. no. Del. no. Maryd. no Va. ay. N. C. no. S. C. no. Geo. ay. 18

George Mason moved to strike out from the clause (art I sect 9.) “No bill of attainder nor any expost facto law shall be passed” the words “nor any ex post facto law.” He thought it not sufficiently clear that the prohibition meant by this phrase was limited to cases of a criminal nature, and no Legislature ever did or can altogether avoid them in Civil cases.

Edbridge Gerry seconded the motion but with a view to extend the prohibition to “Civil cases,” which he thought ought to be done.

On the question; all the States were — no

Charles Cotesworth Pinckney and Elbridge Gerry, moved to insert a declaration “that the liberty of the Press should be inviolably observed.”

Roger Sherman. It is unnecessary. The power of Congress does not extend to the Press.

On the question, it passed in the negative

N. H. no. *19 Mas. ay. Ct. no. N. J. no. Pa. no. Del. no. Md. ay. Va. ay. N. C. no. S. C. ay. Geo. no. 20

Art. I. Sect. 9. “No capitation tax shall be laid, unless &c”

George Read moved to insert after “capitation” the words, “or other direct tax” He was afraid that some liberty might otherwise be taken to saddle the States, with a readjustment by this rule, of past requisitions of Congress. — and that his amendment by giving another cast to the meaning would take away the pretext. Hugh Williamson seconded the motion which was agreed to,

On motion of George Mason 21 “or enumeration” 22 inserted after, as explanatory of “Census” Con. & S. C. only, no.

[Here insert the amendment added in the lateral margin. 23

At the end of the clause “no tax or duty shall be laid on articles exported from any State” was added the following amendment conformably to a vote on the _____ day of 24 _____ viz — no preference shall be given by any regulation of commerce or revenue to the ports of one State over those of another: nor shall vessels bound to or from one State, be obliged to enter, clear or pay duties in another.]

George Mason moved a clause requiring “that an Account of the public expenditures should be annually published” Elbridge Gerry seconded the motion

Gouverneur Morris urged that this would be impossible in many cases.

Rufus King remarked, that the term expenditures went to every minute shilling. This would be impracticable. Congress might indeed make a monthly publication, but it would be in such general statements as would afford no satisfactory information.

James Madison proposed to strike out “annually” from the motion and insert “from time to time,” which would enjoin the duty of frequent publications and leave enough to the discretion of the Legislature. Require too much and the difficulty will beget a habit of doing nothing. The articles of Confederation require half-yearly publications on this subject. A punctual compliance being often impossible, the practice has ceased altogether.

James Wilson seconded and supported the motion. Many operations of finance can not be properly published at certain times.

Charles Cotesworth Pinckney was in favor of the motion.

Thomas Fitzsimmons. It is absolutely impossible to publish expenditures in the full extent of the term.

Roger Sherman thought “from time to time” the best rule to be given.

“Annual” was struck out — and those words — inserted nem: con: The motion of George Mason so amended was then agreed to nem: con: and added after — “appropriations by law as follows — “and a regular statement and account of the receipts and expenditures of all public money shall be published from time to time”

Here insert the Amendment at the foot of the page 25

*26 The first clause of Art. I Sect 10 — was altered so as to read — ‘No State shall enter into any Treaty alliance or confederation; grant letters of marque and reprisal; coin money; emit bills of credit; make any thing but gold and silver coin a tender in payment of debts; pass any bill of attainder, ex post 27 law, or law impairing the obligation of contracts, or grant any title of nobility.”

Elbridge Gerry entered into observations inculcating the importance of public faith, and the propriety of the restraint put on the States from impairing the obligation of contracts, alleging that Congress ought to be laid under the like prohibitions, he made a motion to that effect. He was not seconded.

Adjourned
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Return to Madison’s Notes: Table of Contents

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1. The year “1787” is omitted in the transcript.

2. In the transcript the vote reads: “Pennsylvania, Delaware, Maryland, Virginia, North Carolina, aye — 5; New Hampshire, Massachusetts, Connecticut, New Jersey, South Carolina, Georgia, no — 6.”

*3. “By lot” had been re-instated from the Report of five made Aug. 6. as a correction of the printed report by the Come. of stile & arrangement. 4

4. In the transcript this note reads as follows: “By lot,” had been reinstated from the Report of the Committee of five made on the sixth of August, as a correction of the printed Report by the Committee of style, &c.”

5. The transcript uses the word “office” in the plural.

6. In the transcript the vote reads: “Connecticut, South Carolina, Georgia, aye — 3; New Hampshire, Massachusetts, New Jersey, Pednnsylvania, Delaware, Maryland, Virginia, North Carolina, no — 8.”

7. The word “was” is here inserted in the transcript.

8. In the transcript the vote reads: “Pennsylvania, Maryland, North Carolina, aye — 3; New Hampshire, Massachusetts, Connecticut, New Jersey, Delaware, Virginia, Georgia, no — 7.”

9. In the transcript the vote reads: “New Hampshire, Connecticut, New Jersey, Delaware, Maryland, North Carolina, South Carolina, Georgia, aye — 8; Massachusetts, Pennsylvania, Virginia, no — 3.”

10. The expression “the words” is here inserted in the transcript.

11. The word “was” is changed in the transcript to “were”.

12. The words “On the clause” are here inserted in the transcript.

13. The name “Morris” is here inserted in the transcript.

14. In the transcript the vote reads: “New Hampshire, Connecticut, New Jersey, Delaware, North Carolina, South Carolina, aye — 6; Massachusetts, Pennsylvania, Maryland, Virginia, Georgia, no — 5.”

*15. This motion by Dr. Franklin not stated in the printed Journal, as are some other motions.

16. In the transcript the vote reads: “Pennsylvania, Virginia, Georgia, aye — 3; New Hampshire, Massachusetts, Connecticut, New Jersey, Delaware, Maryland, North Carolina, South Carolina, no — 8.”

17. In the transcript the vote reads: “Pennsylvania, Virginia, North Carolina, South Carolina, aye 4; New Hampshire, Massachusetts, New Jersey, Delaware, Maryland, Georgia, no — 6; Connecticut, divided [Dr. Johnson, aye; Mr. Sherman, no].

18. In the transcript the vote reads: “Virginia, Georgia, aye — 2; New Hampshire, Massachusetts, Connecticut, New Jersey, Pennsylvania, Delaware, Maryland, North Carolina, South Carolina, no — 9.”

*19. In the printed Journal N. Hampshire ay.

20. In the transcript the vote reads: Massachusetts, Maryland, Virginia, South Carolina, aye — 4; New Hampshire, 19 Connecticut, New Jersey, Pennsylvania, Delaware, North Carolina, Georgia, no — 7.”

21. The expression “the words” is here inserted in the transcript.

22. The word “were” is here inserted in the transcript.

23. Madison’s direction concerning the amendment is omitted in the transcript.

24. The date “thirty-first of August” is supplied in the transcript.

25. Madison’s derection concerning the amendment is omitted in the transcript.

*26. In the printed Journal N. Hampshire ay.

27. The word “facto” is here inserted in the transcript.

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The original copyright of Madison’s Notes to the Federal Convention of 1787 is in the public domain.

The copyright for this version with editor’s overview, updated spelling, removal of much of the shorthand, and full names of the delegates added, Copyright © 2011, Steve Farrell.