Madison’s Notes: Federal Convention of 1787: Sept. 15

Liberty Letters, 15 September 1787, James Madison

Editor’s Overview: First Article, relative to the Legislative powers, resumed.

Motion to change the present proportion of members in the House of Representatives in favor of one more representative for both North Carolina,  and Rhode Island. Disagreed to.

Motion that the inspection laws of the State may be revised by Congress. Agreed to.

Motion that no State shall lay a duty on tonnage, without assent of Congress. Agreed to.

Second Article, relative to the Executive, motion that President shall receive no emolument from the States during his term. Agreed to

Motion to deprive the President of the power to pardon treason, either to do away with the power altogether or hand it over to Congress, or the consent of the Senate. Disagreed to.

Motion that Congress may by law vest the appointment of such inferior officers as they think proper, in the President alone, in the Courts of law, or in the heads of Departments. Agreed to.

Third Article, relative to the Judiciary. Motion to provide for trial by jury in civil cases. Disagreed to nem con.

Fifth Article, relative to amendments to the Constitution. Motion to require Congress to call a Convention on an application of two-thirds of the States. Agreed to nem con.

First Article, relative to the Legislative power, resumed. Motion to guarantee to the States an equal representation in the Senate. Agreed to nem con.

Motion to forbid the passage of a navigation act before 1808, without two-thirds of each House. Disagreed to.

Motion that the amendments of the States be submitted to a new Federal Convention, on the threat of such men as Edmund Randolph and George Mason not to support the final result of the convention. Disagreed to.

The Constitution, as amended. Agreed to.

Steve Farrell

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Daniel Carroll reminded the House that no address to the people had yet been prepared. He considered it of great importance that such an one should accompany the Constitution. The people had been accustomed to such on great occasions, and would expect it on this. He moved that a Committee be appointed for the special purpose of preparing an Address.

John Rutledge objected on account of the delay it would produce and the impropriety of addressing the people before it was known whether Congress would approve and support the plan. Congress, if an address be thought proper can prepare as good a one. The members of the Convention can also explain the reasons of what has been done to their respective Constituents.

Roger Sherman concurred in the opinion that an address was both unnecessary and improper.

On the motion of Mr. Carrol

N. H. no. Mas. no. Ct. no. N. J. no. Pa. ay. Del. ay. Md. ay. Va. ay. N. C. *2 abst. S. C. *2 no. Geo. no 3

John Langdon. Some gentlemen have been very uneasy that no increase of the number of Representatives has been admitted. It has in particular been thought that one more ought to be allowed to North Carolina. He was of opinion that an additional one was due both to that State and to Rhode Island and moved to reconsider for that purpose.

Roger Sherman. When the Committee of eleven reported the apportionment — five Representatives were thought the proper share of North Carolina. Subsequent information however seemed to entitle that State to another.

On the motion to reconsider

N. H. ay. Mas. no. Ct. ay. N. J. no. Pen. divd. Del. ay. Md. ay. Va. ay. N. C. ay. S. C. ay. Geo. ay. 4

John Langdon moved to add one member to each of the Representations of N. Carolina and Rhode Island.

Rufus King was against any change whatever as opening the door for delays. There had been no official proof that the numbers of North Carolina are greater than before estimated, and he never could sign the Constitution if Rhode Island is so be allowed two members that is, one fourth of the number allowed to Massachusetts, which will be known to be unjust.

Charles Cotesworth Pinckney urged the propriety of increasing the number of Representatives allotted to North Carolina.

Gunning Bedford Jr. contended for an increase in favor of Rhode Island, and of Delaware also.

On the question for allowing two Representatives to Rhode Island, it passed in the negative.

N. H. ay. Mas. no. Ct. no. N. J. no. Pa. no. Del. ay. Md. ay. Va. no. N. C. ay. S. C. no. Geo. ay. 5

On the question for allowing six to North Carolina, it passed in the negative.

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

Art 1. Sect. 10. (paragraph 2). “No State shall, without the consent of Congress lay imposts or duties on imports or exports; nor with such consent, but to the use of the Treasury of the United States.”

In consequence of the proviso moved by George Mason: and agreed to on the 13 (7) September, this part of the section was laid aside in favor of the following substitute viz. “No State shall, without the consent of Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its Inspection laws; and the net produce of all duties and imposts, laid by any State on imports or exports, shall be for the use of the Treasury of the United States; and all such laws shall be subject to the revision and control of the Congress”

On a motion to strike out the last part “and all such laws shall be subject to the revision and control of the Congress” it passed in the negative.

N. H. no. Mas. no. Ct. no. N. J. no. Pa. divd. Del. no. Md. no. Va. ay. N. C. ay. S. C. no. Geo. ay. 8

The substitute was then agreed to: Virginia alone being in the negative.

The remainder of the paragraph being under consideration — viz — “nor keep troops nor ships of war in time of peace, nor enter into any agreement or compact with another State, nor with any foreign power. Nor engage in any war, unless it shall be actually invaded by enemies, or the danger of invasion be so imminent as not to admit of delay, until Congress can be consulted”

James McHenry and Daniel Carrol moved that “no State shall be restrained from laying duties of tonnage for the purpose of clearing harbors and erecting light-houses.”

George Mason in support of this explained and urged the situation of the Chesapeak which peculiarly required expenses of this sort.

Mr. Gouverneur Morris. The States are not restrained from laying tonnage as the Constitution now Stands. The exception proposed will imply the contrary, and will put the States in a worse condition than the gentleman [Col Mason] wishes.

James Madison. Whether the States are now restrained from laying tonnage duties depends on the extent of the power “to regulate commerce.” These terms are vague, but seem to exclude this power of the States. They may certainly be restrained by Treaty. He observed that there were other objects for tonnage Duties as the support of Seamen &c. He was more and more convinced that the regulation of Commerce was in its nature indivisible and ought to be wholly under one authority.

Roger Sherman. The power of the United States to regulate trade being supreme can control interferences of the State regulations when 9 such interferences happen; so that there is no danger to be apprehended from a concurrent jurisdiction.

John Langdon insisted that the regulation of tonnage was an essential part of the regulation of trade, and that the States ought to have nothing to do with it. On motion “that no State shall lay any duty on tonnage without the Consent of Congress”

N. H. ay. Mas. ay. Ct. divd. N. J. ay. Pa. no. Del. ay. Md. ay. Va. no. N. C. no. S. C. ay. Geo. no. 10

The remainder of the paragraph was then remoulded and passed as follows viz — “No State shall without the consent of Congress, lay any duty of tonnage, keep troops or ships of war in time of peace, enter into any agreement or compact with another State, or with a foreign power, or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay.”

11 Art II. sect. 1. (paragraph 6) “or the period for choosing another president arrive” was changed into “or a President shall be elected” conformably to a vote of the _____ day of

John Rutlidge and Benjamin Franklin moved to annex to the end of paragraph 7. Sect. 1. art II — “and he [the President] shall not receive, within that period, any other emolument from the U. S. or any of them,” on which question

N. H. ay. Mas. ay. Ct. no. N. J. no. Pa. ay. Del. no. Md. ay. Va. ay. N. C. no. S. C. ay. Geo. ay. 12

Art: II. Sect. 2. “he shall have power to grant reprieves and pardons for offenses against the United States &c”

Edmund Randolph moved to “except cases of treason.” The prerogative of pardon in these cases was too great a trust. The President may himself be guilty. The Traitors may be his own instruments.

George Mason supported the motion.

Mr. Gouveneur Morris had rather there should be no pardon for treason, than let the power devolve on the Legislature.

James Wilson. Pardon is necessary for cases of treason, and is best placed in the hands of the Executive. If he be himself a party to the guilt he can be impeached and prosecuted.

Rufus King thought it would be inconsistent with the Constitutional separation of the Executive and Legislative powers to let the prerogative be exercised by the latter. A Legislative body is utterly unfit for the purpose. They are governed too much by the passions of the moment. In Massachusetts, one assembly would have hung all the insurgents in that State: the next was equally disposed to pardon them all. He suggested the expedient of requiring the concurrence of the Senate in Acts of Pardon.

James Madison admitted the force of objections to the Legislature, but the pardon of treasons was so peculiarly improper for the President that he should acquiesce in the transfer of it to the former, rather than leave it altogether in the hands of the latter. He would prefer to either an association of the Senate as a Council of advice, with the President.

Edmund Randolph could not admit the Senate into a share of the Power. the great danger to liberty lay in a combination between the President and that body.

George Mason. The Senate has already too much power. There can be no danger of too much lenity in legislative pardons, as the Senate must concur, and the President moreover can require 2/3 of both Houses.

On the motion of Mr. Randolph.

N. H. no. Mas. no. Ct. divd. N. J. no. Pa. no. Del. no. Md. no. Va. ay. N. C. no. S. C. no. Geo. ay. 13

Art II. Sect. 2. (paragraph 2) To the end of this, Mr. Gouverneur Morris moved to annex “but the Congress may by law vest the appointment of such inferior officers as they think proper, in the President alone, in the Courts of law, or in the heads of Departments.”

Roger Sherman seconded the motion.

James Madison. It does not go far enough if it be necessary at all. Superior officers below Heads of Departments ought in some cases to have the appointment of the lesser offices.

Gouverneur Morris. There is no necessity. Blank commissions can be sent —

On the motion

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

The motion being lost by the 15 equal division of votes, It was urged that it be put a second time, some such provision being too necessary to be omitted, and on a second question it was agreed to nem. con.

Art II. Sect. 1. The words, “and not per capita” — were struck out as superfluous — and the words “by the Representatives” also — as improper, the choice of a 16 President being in another mode as well as eventually by the House of Representatives.

Art. II. Sect. 2. After 17 “officers of the United States whose appointments are not otherwise provided for.” were added the words “and which shall be established by law.”

Art III. Sect. 2. parag: 3. Charles Cotesworth Pinckney and Elbridge Gerry moved to annex to the end, “And a trial by jury shall be preserved as usual in civil cases.”

Nathanial Gorham. The constitution of Juries is different in different States and the trial itself is usual in different cases in different States.

Rufus King urged the same objections

Charles Cotesworth Pinckney also. He thought such a clause in the Constitution would be pregnant with embarrassments. The motion was disagreed to nem: con:

Art. IV. Sect 2. parag: 3. the term “legally” was struck out, and 18 “under the laws thereof” inserted after the word “State,” in compliance with the wish of some who thought the term legal 19 equivocal, and favoring the idea that slavery was legal in a moral view.

Art. IV. Sect 3. “New States may be admitted by the Congress into this Union: but no new State shall be formed or erected within the jurisdiction of any other State; nor any State be formed by the junction of two or more States, or parts of States, without the consent of the Legislatures of the States concerned as well as of the Congress”

Elbridge Gerry moved to insert after “or parts of States” the words “or a State and part of a State” which was disagreed to by a large majority; it appearing to be supposed that the case was comprehended in the words of the clause as reported by the Committee.

Art. IV. Sect. 4. After the word “Executive” were inserted the words “when the Legislature can not be convened.”

Art. V. “The Congress, whenever two thirds of both Houses shall deem necessary, or on the application of two thirds of the Legislatures of the several States shall propose amendments to this Constitution, which shall be valid to all intents and purposes as part thereof, when the same shall have been ratified by three fourths at least of the Legislatures of the several States, or by Conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress: Provided that no amendment which may be made prior to the year 1808 shall in any manner affect the first and fourth clauses in the ninth section of article one.”

Roger Sherman expressed his fears that three fourths of the States might be brought to do things fatal to particular States, as abolishing them altogether or depriving them of their equality in the Senate. He thought it reasonable that the proviso in favor of the States importing slaves should be extended so as to provide that no State should be affected in its internal police, or deprived of its equality in the Senate.

George Mason thought the plan of amending the Constitution exceptionable and dangerous. As the proposing of amendments is in both the modes to depend, in the first immediately, in the second, ultimately, on Congress, no amendments of the proper kind would ever be obtained by the people, if the Government should become oppressive, as he verily believed would be the case.

Gouverneur Morris and Elbridge Gerry moved to amend the article so as to require a Convention on application of 2/3 of the States.

James Madison did not see why Congress would not be as much bound to propose amendments applied for by two thirds of the States as to call a call a Convention on the like application. He saw no objection however against providing for a Convention for the purpose of amendments, except only that difficulties might arise as to the form, the quorum &c. which in Constitutional regulations ought to be as much as possible avoided.

The motion of Gouvereur Morris and Elbridge Gerry was agreed to nem: con: [see the first part of the article as finally past] 20

Roger Sherman moved to strike out of art. V. after “legislatures” the words “of three fourths” and so after the word “Conventions” leaving future Conventions to act in this matter, like the present Conventions 21 according to circumstances.

On this motion

N. H. divd. Mas. ay. Ct. ay. N. J. ay. Pa. no. Del. no. Md. no. Va. no. N. C. no. S. C. no. Geo. no. 22

Elbridge Gerry moved to strike out the words “or by Conventions in three fourths thereof”

On this 23 motion

N. H. no. Mas. no. Ct. ay. N. J. no. Pa. no. Del. no. Md. no. Va. no. N. C. no. S. C. no. Geo. no. 24

Roger Sherman moved according to his idea above expressed to annex to the end of the article a further proviso “that no State shall without its consent be affected in its internal police, or deprived of its equal suffrage in the Senate.”

James Madison. Begin with these special provisos, and every State will insist on them, for their boundaries, exports &c.

On the motion of Mr. Sherman

N. H. no. Mas. no. Ct. ay. N. J. ay. Pa. no. Del. ay. Md. no. Va. no. N. C. no. S. C. no. Geo. no. 25

Roger Sherman then moved to strike out art V altogether.

David Brearley seconded the motion, on which

N. H. no. Mas. no. Ct. ay. N. J. ay. Pa. no. Del divd. Md. no. Va. no. N. C. no. S. C. no. Geo. no. 26

Gouverneur Morris moved to annex a further proviso — “that no State, without its consent shall be deprived of its equal suffrage in the Senate”

This motion being dictated by the circulating murmurs of the small States was agreed to without debate, no one opposing it, or on the question, saying no.

Col: MASON expressing his discontent at the power given to Congress by a bare majority to pass navigation acts, which he said would not only enhance the freight, a consequence he did not so much regard — but would enable a few rich merchants in Philada N. York & Boston, to monopolize the Staples of the Southern States & reduce their value perhaps 50 Per Ct. — moved a further proviso “that no law in 27 nature of a navigation act be passed before the year 1808, without the consent of 2/3 of each branch of the Legislature”

On this 28 motion

N. H. no. Mas. no. Ct. no. N. J. no. Pa. no. Del. no. Md. ay. Va. ay. N. C. abst. S. C. no. Geo. ay. 29

Edmund Randolph animadverting on the indefinite and dangerous power given by the Constitution to Congress, expressing the pain he felt at differing from the body of the Convention, on the close of the great and awful subject of their labors, and anxiously wishing for some accommodating expedient which would relieve him from his embarrassments, made a motion importing “that amendments to the plan might be offered by the State Conventions, which should be submitted to and finally decided on by another general Convention” Should this proposition be disregarded, it would he said be impossible for him to put his name to the instrument. Whether he should oppose it afterwards he would not then decide but he would not deprive himself of the freedom to do so in his own State, if that course should be prescribed by his final judgment.

George Mason seconded and followed Mr. Randolph in animadversions on the dangerous power and structure of the Government, concluding that it would end either in monarchy, or a tyrannical aristocracy; which, he was in doubt, but one or other, he was sure. This Constitution had been formed without the knowledge or idea of the people. A second Convention will know more of the sense of the people, and be able to provide a system more consonant to it. It was improper to say to the people, take this or nothing. As the Constitution now stands, he could neither give it his support or 30 vote in Virginia; and he could not sign here what he could not support there. With the expedient of another Convention as proposed, he could sign.

Charles Cotesworth Pinckney. These declarations from members so respectable at the close of this important scene, give a peculiar solemnity to the present moment. He descanted on the consequences of calling forth the deliberations and amendments of the different States on the subject of Government at large. Nothing but confusion and contrariety could 31 spring from the experiment. The States will never agree in their plans, and the Deputies to a second Convention coming together under the discordant impressions of their Constituents, will never agree. Conventions are serious things, and ought not to be repeated. He was not without objections as well as others to the plan. He objected to the contemptible weakness and dependence of the Executive. He objected to the power of a majority only of Congress over Commerce. But apprehending the danger of a general confusion, and an ultimate decision by the sword, he should give the plan his support.

Elbridge Gerry, stated the objections which determined him to withhold his name from the Constitution. 1. the duration and reeligibility of the Senate. 2. the power of the House of Representatives to conceal their journals. 3. the power of Congress over the places of election. 4 the unlimited power of Congress over their own compensation. 5. 32 Massachusetts has not a due share of Representatives allotted to her. 6. 32 3/5 of the Blacks are to be represented as if they were freemen. 7. 32 Under the power over commerce, monopolies may be established. 8. The vice president being made head of the Senate. He could however he said get over all these, if the rights of the Citizens were not rendered insecure 1. 33 by the general power of the Legislature to make what laws they may please to call necessary and proper. 2. 34 raise armies and money without limit. 3. 35 to establish a tribunal without juries, which will be a Star-chamber as to Civil cases. Under such a view of the Constitution, the best that could be done he conceived was to provide for a second general Convention.

On the question on the proposition of Mr. Randolph. All the States answered — no

On the question to agree to the Constitution, as amended. All the States ay.

The Constitution was then ordered to be engrossed.

And the House adjourned.

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

*2. In the printed Journal N. Carolina — no & S.Carol: omitted.

3. In the transcript the vote reads: “Pennsylvania, Delaware, Maryland, Virginia, aye — 4; New Hampshire, Massachusetts, Connecticut, New Jersey, South Carolina, 2 Georgia, no — 6; North Carolina, 2 absent.”

4. In the transcript the vote reads: New Hampshire, Connecticut, Delaware, Maryland, Virginia, North Carolina, South Carolina, Georgia, aye — 8; Massachusetts, New Jersey, no — 2; Pennsylvania, divided.

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

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

7. The word “of” is here inserted in transcript.

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

9. In Madison’s notes the word “when” is written above “which.” The transcript uses “when.”

10. In the transcript the vote reads: “New Hampshire, Massachusetts, New Jersey, Delaware, Maryland, South Carolina, aye — 6; Pennsylvania, Virginia, North Carolina, Georgia, no — 4; Connecticut, divided.”

11. In the transcript this paragraph reads as follows: “article 2, sect. I, (the sixth paragraph) the words ‘or the period for choosing another President arrive,’ were changed into, ‘or a President shall be elected,’ conformably to a vote of the seventh of September.”

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

13. In the transcript the vote reads: “Virginia, Georgia, aye — 2; New Hampshire, Massachusetts, New Jersey, Pennsylvania, Delaware, Maryland, North Carolina, South Carolina, no — 8; Connecticut, divided.”

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

15. The word “an” is substituted in the transcript for “the.”

16. The word “a” is omitted in the transcript.

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

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

19. The transcript italicizes the word “legal.”

20. Mardison’s direction is omitted in the transcript.

21. The transcript uses the word “Conventions” in the singular.

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

23. The word “which” is substituted in the transcript for “this.”

24. In the transcript the vote reads: “Connecticut, aye — 1; New Hampshire, Massachusetts, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, Georgia, no — 10.”

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

26. In the transcript the vote reads: “Connecticut, New Jersey, aye — 2; New Hampshire, Massachusetts, Pennsylvania, Maryland, Virginia, North Carolina, South Carolina, Georgia, no — 8; Delaware, divided.”

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

28. The word “which” is substituted in the transcript for “this.”

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

30. The word “or” is changed in the transcript to “nor.”

31. The word “will is substituted in the transcript for “could.”

32. The word “that” is here inserted in the transcript.

33. The figure “1” is changed in the transcript to “first.”

34. The figure “2” is changed in the transcript to “secondly, to.”

35. The figure “3” is changed in the transcript to “thirdly.”