University of Virginia Library

Monday July 23. in Convention

Mr. John Langdon & Mr. Nicholas Gilman[5] from
N. Hampshire,[6] took their seats.

Resol:n 17. that provision ought to be made for
future amendments of the Articles of Union, agreed
to, nem. con.

Resoln. 18. "requiring the Legis: Execut: & Judy.
of the States to be bound by oath to support the
articles of Union," taken into consideration.

Mr. Williamson suggests that a reciprocal oath
should be required from the National officers, to support
the Governments of the States.

Mr. Gerry moved to insert as an amendmt. that the
oath of the officers of the National Government also
should extend to the support of the Natl. Govt. which
was agreed to nem. con.

Mr. Wilson said he was never fond of oaths, considering
them as a left handed security only. A
good Govt. did not need them, and a bad one could
not or ought not to be supported. He was afraid

they might too much trammel the members of the
existing Govt. in case future alterations should be
necessary; and prove an obstacle to Resol: 17. just
agd. to.

Mr. Ghorum did not know that oaths would be of
much use; but could see no inconsistency between
them and the 17. Resol. or any regular amendt. of
the Constitution. The oath could only require fidelity
to the existing Constitution. A constitutional
alteration of the Constitution, could never be regarded
as a breach of the Constitution, or of any
oath to support it.

Mr. Gerry thought with Mr. Ghorum there could be
no shadow of inconsistency in the case. Nor could
he see any other harm that could result from the
Resolution. On the other side he thought one good
effect would be produced by it. Hitherto the officers
of the two Governments had considered them as
distinct from, and not as parts of the General System,
& had in all cases of interference given a preference
to the State Govts. The proposed oath will cure
that error.

The Resoln. (18) was agreed to nem. con.

Resol: 19. referring the new Constitution to Assemblies
to be chosen by the people for the express
purpose of ratifying it was next taken into consideration.

Mr. Elseworth moved that it be referred to the
Legislatures of the States for ratification. Mr. Patterson
2ded. the motion.

Col. Mason considered a reference of the plan to

the authority of the people as one of the most important
and essential of the Resolutions. The Legislatures
have no power to ratify it. They are the
mere creatures of the State Constitutions, and cannot
be greater than their creators. And he knew of
no power in any of the Constitutions, he knew there
was no power in some of them, that could be competent
to this object. Whither then must we resort?
To the people with whom all power remains that has
not been given up in the Constitutions derived from
them. It was of great moment he observed that
this doctrine should be cherished as the basis of free
Government. Another strong reason was that admitting
the Legislatures to have a competent authority,
it would be wrong to refer the plan to them,
because succeeding Legislatures having equal authority
could undo the acts of their predecessors; and
the National Govt. would stand in each State on the
weak and tottering foundation of an Act of Assembly.
There was a remaining consideration of some
weight. In some of the States the Govts. were not
derived from the clear & undisputed authority of the
people. This was the case in Virginia Some of the
best & wisest citizens considered the Constitution as
established by an assumed authority. A national
Constitution derived from such a source would be
exposed to the severest criticisms.

Mr. Randolph. One idea has pervaded all our
proceedings, to wit, that opposition as well from
the States as from individuals, will be made to the
System to be proposed. Will it not then be highly

imprudent, to furnish any unnecessary pretext by
the mode of ratifying it. Added to other objections
agst. a ratification by the Legislative authority only,
it may be remarked that there have been instances in
which the authority of the Common law has been
set up in particular States agst. that of the Confederation
which has had no higher sanction than Legislative
ratification.—Whose opposition will be most
likely to be excited agst. the System? That of the
local demagogues who will be degraded by it from
the importance they now hold. These will spare no
efforts to impede that progress in the popular mind
which will be necessary to the adoption of the plan,
and which every member will find to have taken
place in his own, if he will compare his present opinions
with those brought with him into the Convention.
It is of great importance therefore that
the consideration of this subject should be transferred
from the Legislatures where this class of men,
have their full influence to a field in which their
efforts can be less mischievous. It is moreover
worthy of consideration that some of the States are
averse to any change in their Constitution, and will
not take the requisite steps, unless expressly called
upon to refer the question to the people.

Mr. Gerry. The arguments of Col. Mason & Mr.
Randolph prove too much. They prove an unconstitutionality
in the present federal system &
even in some of the State Govts. Inferences drawn
from such a source must be inadmissible. Both the
State Govts. & the federal Govt. have been too long

acquiesced in, to be now shaken. He considered the
Confederation to be paramount to any State Constitution.
The last article of it authorizing alterations
must consequently be so as well as the others, and
every thing done in pursuance of the article must
have the same high authority with the article. Great
confusion he was confident would result from a recurrence
to the people. They would never agree on
any thing. He could not see any ground to suppose
that the people will do what their rulers will not.
The rulers will either conform to, or influence the
sense of the people.

Mr. Ghorum was agst. referring the plan to the
Legislatures. 1. Men chosen by the people for the
particular purpose, will discuss the subject more candidly
than members of the Legislature who are to
lose the power which is to be given up to the Genl.
Govt. 2. Some of the Legislatures are composed of
several branches. It will consequently be more
difficult in these cases to get the plan through the
Legislatures, than thro' a Convention. 3. in the
States many of the ablest men are excluded from the
Legislatures, but may be elected into a convention.
Among these may be ranked many of the Clergy who
are generally friends to good Government. Their
services were found to be valuable in the formation
& establishment of the Constitution of Massachts.
4. the Legislatures will be interrupted with a variety
of little business, by artfully pressing which designing
men will find means to delay from year to year,
if not to frustrate altogether the national system.

5. If the last art: of the Confederation is to be pursued
the unanimous concurrence of the States will
be necessary. But will any one say, that all the
States are to suffer themselves to be ruined, if Rho.
Island should persist in her opposition to general
measures. Some other States might also tread in
her steps. The present advantage which N. York
seems to be so much attached to, of taxing her
neighbours by the regulation of her trade, makes
it very probable, that she will be of the number.
It would therefore deserve serious consideration
whether provision ought not to be made for giving
effect to the System without waiting for the unanimous
concurrence of the States.

Mr. Elseworth. If there be any Legislatures who
should find themselves incompetent to the ratification,
he should be content to let them advise with
their constituents and pursue such a mode as wd. be
competent. He thought more was to be expected
from the Legislatures than from the people. The
prevailing wish of the people in the Eastern States
is to get rid of the public debt; and the idea of
strengthening the Natl. Govt. carries with it that of
strengthening the public debt. It was said by Col.
Mason 1. that the Legislatures have no authority in
this case 2. that their successors having equal authority
could rescind their acts. As to the 2d. point
he could not admit it to be well founded. An Act
to which the States by their Legislatures, make
themselves parties, becomes a compact from which
no one of the parties can recede of itself. As to the

1st. point, he observed that a new sett of ideas seemed
to have crept in since the articles of Confederation
were established. Conventions of the people, or
with power derived expressly from the people, were
not then thought of. The Legislatures were considered
as competent. Their ratification has been
acquiesced in without complaint. To whom have
Congs. applied on subsequent occasions for further
powers? To the Legislatures; not to the people.
The fact is that we exist at present, and we need not
enquire how, as a federal Society, united by a charter
one article of which is that alterations therein
may be made by the Legislative authority of the
States. It has been said that if the confederation
is to be observed, the States must unanimously concur
in the proposed innovations. He would answer
that if such were the urgency & necessity of our
situation as to warrant a new compact among a part
of the States, founded on the consent of the people;
the same pleas would be equally valid in favor of a
partial compact, founded on the consent of the
Legislatures.

Mr. Williamson thought the Resol:n (19) so expressed
as that it might be submitted either to the Legislatures
or to Conventions recommended by the Legislatures.
He observed that some Legislatures were
evidently unauthorized to ratify the system. He
thought too that Conventions were to be preferred
as more likely to be composed of the ablest men in
the States.

Mr. Govr. Morris considered the inference of Mr. Elseworth

from the plea of necessity as applied to the
establishment of a new System on ye. consent of the
people of a part of the States, in favor of a like
establishmt. on the consent of a part of the Legislatures,
as a non sequitur. If the Confederation is to
be pursued no alteration can be made without the
unanimous consent of the Legislatures: Legislative
alterations not conformable to the federal compact,
would clearly not be valid. The Judges would consider
them as null & void. Whereas in case of an
appeal to the people of the U. S., the supreme authority,
the federal compact may be altered by a
majority of them; in like manner as the Constitution
of a particular State may be altered by a majority of
the people of the State. The amendmt. moved by
Mr. Elseworth erroneously supposes that we are proceeding
on the basis of the Confederation. This
Convention is unknown to the Confederation.

Mr. King thought with Mr. Elseworth that the
Legislatures had a competent authority, the acquiescence
of the people of America in the Confederation,
being equivalent to a formal ratification by the
people. He thought with Mr. E. also that the plea
of necessity was as valid in the one case as the other.
At the same time he preferred a reference to the
authority of the people expressly delegated to Conventions,
as the most certain means of obviating all
disputes & doubts concerning the legitimacy of the
new Constitution; as well as the most likely means
of drawing forth the best men in the States to decide
on it. He remarked that among other objections

made in the State of N. York to granting powers to
Congs. one had been that such powers as would operate
within the State, could not be reconciled to the
Constitution; and therefore were not grantible by
the Legislative authority. He considered it as of
some consequence also to get rid of the scruples
which some members of the State Legislatures
might derive from their oaths to support & maintain
the existing Constitutions.

Mr. Madison thought it clear that the Legislatures
were incompetent to the proposed changes. These
changes would make essential inroads on the State
Constitutions, and it would be a novel & dangerous
doctrine that a Legislature could change the constitution
under which it held its existence. There
might indeed be some Constitutions within the
Union, which had given a power to the Legislature
to concur in alterations of the federal Compact.
But there were certainly some which had not; and
in the case of these, a ratification must of necessity
be obtained from the people. He considered the
difference between a system founded on the Legislatures
only, and one founded on the people, to be the
true difference between a league or treaty, and a Constitution.
The former in point of moral obligation
might be as inviolable as the latter. In point of
political operation, there were two important distinctions
in favor of the latter. 1. A law violating a
treaty ratified by a pre-existing law, might be respected
by the Judges as a law, though an unwise or
perfidious one. A law violating a constitution established

by the people themselves, would be considered
by the Judges as null & void. 2. The doctrine
laid down by the law of Nations in the case of treaties
is that a breach of any one article by any of the parties,
frees the other parties from their engagements.
In the case of a union of people under one Constitution,
the nature of the pact has always been understood
to exclude such an interpretation. Comparing
the two modes in point of expediency he thought all
the considerations which recommended this Convention
in preference to Congress for proposing the reform
were in favor of State Conventions in preference
to the Legislatures for examining and adopting it.

On Question on Mr. Elseworth's motion to refer the
plan to the Legislatures of the States

N. H. no. Mass. no. Ct. ay. Pa. no. Del. ay.
Md. ay. Va. no. N. C. no. S. C. no. Geo. no.

Mr. Govr. Morris moved that the reference of the
plan be made to one general Convention, chosen &
authorized by the people to consider, amend, &
establish the same.—Not seconded.

On question for agreeing to Resolution 19. touching
the mode of Ratification as reported from the
Committee of the Whole; viz, to refer the Constn.,
after the approbation of Conga. to assemblies chosen
by the people.

N. H. ay. Mass. ay. Ct. ay. Pa. ay. Del. no.
Md. ay. Va. ay. N. C. ay. S. C. ay. Geo. ay.

Mr. Govr. Morris & Mr. King moved that the representation
in the second branch consist of—members
from each State, who shall vote per capita.

Mr. Elseworth said he had always approved of
voting in that mode.

Mr. Govr. Morris moved to fill the blank with three.
He wished the Senate to be a pretty numerous body.
If two members only should be allowed to each
State, and a majority be made a quorum, the power
would be lodged in 14 members, which was too
small a number for such a trust.

Mr. Ghorum preferred two to three members for
the blank. A small number was most convenient
for deciding on peace & war &c. which he expected
would be vested in the 2d. branch. The number of
States will also increase. Kentucky, Vermont, the
Province of Mayne & Franklin will probably soon
be added to the present number. He presumed also
that some of the largest States would be divided.
The strength of the General Govt. will lie not in the
largeness, but in the smallness of the States.

Col. Mason thought 3 from each State including
new States would make the 2d. branch too numerous.
Besides other objections, the additional expence
ought always to form one, where it was not absolutely
necessary.

Mr. Williamson. If the number be too great, the
distant States will not be on an equal footing with the
nearer States. The latter can more easily send &
support their ablest Citizens. He approved of the
voting per capita.

On the question for filling the blank with "three"
N. H. no. Mass. no. Cont. no. Pa. ay. Del. no.
Va. no. N. C. no. S. C. no. Geo. no.

On question for filling it with "two." Agreed to
nem. con.

Mr. L Martin was opposed to voting per Capita, as
departing from the idea of the States being represented
in the 2d. branch.

Mr. Carroll,[7] was not struck with any particular
objection agst. the mode; but he did not wish so
hastily to make so material an innovation.

On the question on the whole motion viz. the 2d.
b. to consist of 2 members from each State and to
vote per Capita,

N. H. ay. Mass. ay. Ct. ay. Pa. ay. Del. ay.
Md. no. Va. ay. N. C. ay. S. C. ay. Geo. ay.

Mr. Houston[8] & Mr. Spaight moved "that the appointment
of the Executive by Electors chosen by
the Legislatures of the States, be reconsidered."
Mr. Houston urged the extreme inconveniency & the
considerable expense, of drawing together men from
all the States for the single purpose of electing the
Chief Magistrate.

On the question which was put without any debate
N. H. ay. Mass. ay. Ct. ay. Pa. no. Del. ay.
Md. no. Virga. no. N. C. ay. S. C. ay. Geo. ay.

Ordered that tomorrow be assigned for the reconsideration,
Cont. & Pena. no—all the rest ay.

Mr. Gerry moved that the proceedings of the Convention
for the establishment of a Natl. Govt. (except
the part relating to the Executive), be referred to a
Committee to prepare & report a Constitution conformable
thereto.

Genl. Pinkney reminded the Convention that if the
Committee should fail to insert some security to the
Southern States agst. an emancipation of slaves, and
taxes on exports, he shd. be bound by duty to his
State to vote agst. their Report. The appt. of a Come.
as moved by Mr. Gerry. Agd. to nem. con.

Shall the Come. consist of 10 members one from
each State prest.—All the States were no, except
Delaware, ay.

Shall it consist of 7. members

N. H. ay. Mas. ay. Ct. ay. Pa. no. Del. no.
Md. ay. Va. no. N. C. no. S. C. ay. Geo. no.
The question being lost by an equal division of Votes

It was agreed, nem-con- that the Committee consist
of 5 members to be appointed tomorrow.

Adjourned