University of Virginia Library

Monday Sepr. 10. 1787 In Convention[65]

Mr. Gerry moved to reconsider Art XIX. viz. "On
the application of the Legislatures of two thirds of
the States in the Union, for an amendment of this
Constitution, the Legislature of the U. S. shall call
a Convention for that purpose," (see Aug 6)

This constitution he said is to be paramount to
the State Constitutions. It follows hence, from this
article that two thirds of the States may obtain a
Convention, a majority of which can bind the Union
to innovations that may subvert the State Constitutions
altogether. He asked whether this was a
situation proper to be run into.

Mr. Hamilton 2ded. the motion, but he said with a
different view from Mr. Gerry. He did not object

to the consequences stated by Mr. Gerry. There was
no greater evil in subjecting the people of the U. S.
to the major voice than the people of a particular
State. It had been wished by many and was much
to have been desired that an easier mode of introducing
amendments had been provided by the articles
of the Confederation. It was equally desirable
now that an easy mode should be established for
supplying defects which will probably appear in the
new System. The mode proposed was not adequate.
The State Legislatures will not apply for
alterations but with a view to increase their own
powers. The National Legislature will be the first
to perceive and will be most sensible to the necessity
of amendments, and ought also to be empowered,
whenever two thirds of each branch should concur to
call a Convention. There could be no danger in
giving this power, as the people would finally decide
in the case.

Mr. Madison remarked on the vagueness of the
terms, "call a Convention for the purpose," as sufficient
reason for reconsidering the article. How was
a Convention to be formed? by what rule decide?
what the force of its acts?

On the motion of Mr. Gerry to reconsider

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

Mr. Sherman moved to add to the article "or the
Legislature may propose amendments to the several
States for their approbation, but no amendments

shall be binding until consented to by the several
States."

Mr. Gerry 2ded. the motion

Mr. Wilson moved to insert, "two thirds of" before
the words "several States"—on which amendment
to the motion of Mr. Sherman

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

Mr. Wilson then moved to insert "three fourths
of" before "the several Sts" which was agreed to
nem: con:

Mr. Madison moved to postpone the consideration
of the amended proposition in order to take up the
following,

"The Legislature of the U. S. 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 one or the other mode of
ratification may be proposed by the Legislature of
the U. S:"

Mr. Hamilton 2ded. the motion.

Mr. Rutlidge said he never could agree to give a
power by which the articles relating to slaves might
be altered by the States not interested in that property
and prejudiced against it. In order to obviate

this objection, these words were added to the proposition:[66]
"provided that no amendments which
may be made prior to the year 1808 shall in any
manner affect the 4 & 5 sections of the VII article"
—The postponement being agreed to,

On the question on the proposition of Mr. Madison
& Mr. Hamilton as amended

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

Mr. Gerry moved to reconsider Art: XXI and XXII.
from the latter of which "for the approbation of
Congs." had been struck out. He objected to proceeding
to change the Government without the
approbation of Congress, as being improper and
giving just umbrage to that body: He repeated his
objections also to an annulment of the confederation
with so little scruple or formality.

Mr. Hamilton concurred with Mr. Gerry as to the
indecorum of not requiring the approbation of Congress.
He considered this as a necessary ingredient
in the transaction. He thought it wrong also to
allow nine States as provided by Art XXI. to institute
a new Government on the ruins of the existing
one. He wd. propose as a better modification
of the two articles (XXI & XXII) that the plan
should be sent to Congress in order that the same
if approved by them, may be communicated to

the State Legislatures, to the end that they may
refer it to State conventions; each Legislature declaring
that if the Convention of the State should
think the plan ought to take effect among nine ratifying
States, the same shd. take effect accordingly.

Mr. Gorham. Some States will say that nine States
shall be sufficient to establish the plan, others will
require unanimity for the purpose. And the different
and conditional ratifications will defeat the plan
altogether.

Mr. Hamilton. No Convention convinced of the
necessity of the plan will refuse to give it effect on
the adoption by nine States. He thought this mode
less exceptionable than the one proposed in the
article, while it would attain the same end.

Mr. Fitzimmons remarked that the words "for
their approbation" had been struck out in order to
save Congress from the necessity of an Act inconsistent
with the Articles of Confederation under
which they held their authority.

Mr. Randolph declared, if no change should be
made in this part of the plan, he should be obliged
to dissent from the whole of it. He had from the
beginning he said been convinced that radical
changes in the system of the Union were necessary.
Under this conviction he had brought forward a set
of republican propositions as the basis and outline
of a reform. These Republican propositions had
however, much to his regret, been widely, and, in
his opinion, irreconcileably departed from. In this
state of things it was his idea and he accordingly

meant to propose, that the State Conventions shd. be
at liberty to offer amendments to the plan; and that
these should be submitted to a second General Convention,
with full power to settle the Constitution
finally. He did not expect to succeed in this proposition,
but the discharge of his duty in making the
attempt, would give quiet to his own mind.

Mr. Wilson was against a reconsideration for any
of the purposes which had been mentioned.

Mr. King thought it would be more respectful to
Congress to submit the plan generally to them; than
in such a form as expressly and necessarily to require
their approbation or disapprobation. The assent
of nine States he considered as sufficient; and
that it was more proper to make this a part of the
Constitution itself, than to provide for it by a supplemental
or distinct recommendation.

Mr. Gerry urged the indecency and pernicious tendency
of dissolving in so slight a manner, the solemn
obligations of the articles of confederation. If nine
out of thirteen can dissolve the compact. Six out
of nine will be just as able to dissolve the new one
hereafter.

Mr. Sherman was in favor of Mr. King's idea of submitting
the plan generally to Congress. He thought
nine States ought to be made sufficient: but that it
would be best to make it a separate act and in some
such form as that intimated by Col: Hamilton, than
to make it a particular article of the Constitution.

On the question for reconsidering the two articles,
XXI & XXII—

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

Mr. Hamilton then moved to postpone art XXI in
order to take up the following, containing the ideas
he had above expressed, viz

Resolved that the foregoing plan of a Constitution
be transmitted to the U. S. in Congress assembled,
in order that if the same shall be agreed to by them,
it may be communicated to the Legislatures of the
several States, to the end that they may provide for
its final ratification by referring the same to the
Consideration of a Convention of Deputies in each
State to be chosen by the people thereof, and that it
be recommended to the said Legislatures in their
respective acts for organizing such convention to
declare, that if the said Convention shall approve of
the said Constitution, such approbation shall be
binding and conclusive upon the State, and further
that if the said Convention should be of opinion that
the same upon the assent of any nine States thereto,
ought to take effect between the States so assenting,
such opinion shall thereupon be also binding upon
such a State, and the said Constitution shall take
effect between the States assenting thereto

Mr. Gerry 2ded. the motion.

Mr. Wilson. This motion being seconded, it is
necessary now to speak freely. He expressed in
strong terms his disapprobation of the expedient
proposed, particularly the suspending the plan of
the Convention on the approbation of Congress. He

declared it to be worse than folly to rely on the concurrence
of the Rhode Island members of Congs. in
the plan. Maryland has voted on this floor; for requiring
the unanimous assent of the 13 States to the
proposed change in the federal System. N. York has
not been represented for a long time past in the Convention.
Many individual deputies from other States
have spoken much against the plan. Under these
circumstances can it be safe to make the assent of
Congress necessary. After spending four or five
months in the laborious & arduous task of forming
a Government for our Country, we are ourselves at
the close throwing insuperable obstacles in the way
of its success.

Mr. Clymer thought that the mode proposed by Mr.
Hamilton would fetter & embarrass Congs. as much
as the original one, since it equally involved a breach
of the articles of Confederation

Mr. King concurred with Mr. Clymer. If Congress
can accede to one mode, they can to the other. If
the approbation of Congress be made necessary, and
they should not approve, the State Legislatures will
not propose the plan to Conventions; or if the
States themselves are to provide that nine States
shall suffice to establish the System, that provision
will be omitted, every thing will go into confusion,
and all our labor be lost.

Mr. Rutlidge viewed the matter in the same light
with Mr. King.

On the question to postpone in order to take up
Col: Hamilton's 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.

A Question being then taken on the article XXI.
It was agreed to unanimously.

Col: Hamilton withdrew the remainder of the
motion to postpone art XXII, observing that his
purpose was defeated by the vote just given.

Mr. Williamson & Mr. Gerry moved to re-instate
the words "for the approbation of Congress" in Art:
XXII. which was disagreed to nem: con:

Mr. Randolph took this opportunity to state his
objections to the System. They turned on the Senate's
being made the Court of Impeachment for trying
the Executive—on the necessity of ¾ instead of
⅔ of each house to overrule the negative of the President
—on the smallness of the number of the Representative
branch,—on the want of limitation to a
standing army—on the general clause concerning
necessary and proper laws—on the want of some
particular restraint on navigation acts—on the
power to lay duties on exports—on the authority of
the General Legislature to interpose on the application
of the Executives of the States—on the want of
a more definite boundary between the General &
State Legislatures—and between the General and
State Judiciaries—on the unqualified power of the
President to pardon treasons—on the want of some
limit to the power of the Legislature in regulating
their own compensations. With these difficulties in
his mind, what course he asked was he to pursue?

Was he to promote the establishment of a plan which
he verily believed would end in Tyranny? He was
unwilling he said to impede the wishes and Judgment
of the Convention, but he must keep himself
free, in case he should be honored with a seat in the
Convention of his State, to act according to the dictates
of his judgment. The only mode in which his
embarrassments could be removed, was that of submitting
the plan to Congs. to go from them to the
State Legislatures, and from these to State Conventions
having power to adopt reject or amend;
the process to close with another General Convention
with full power to adopt or reject the alterations
proposed by the State Conventions, and to
establish finally the Government. He accordingly
proposed a Resolution to this effect.

Docr. Franklin 2ded. the motion

Col: Mason urged & obtained that the motion
should lie on the table for a day or two to see what
steps might be taken with regard to the parts of the
system objected to by Mr. Randolph.

Mr. Pinkney moved "that it be an instruction to
the Committee for revising the stile and arrangement
of the articles agreed on, to prepare an address
to the people, to accompany the present Constitution,
and to be laid with the same before the U.
States in Congress"

[67] The motion itself was referred to the Committee
nem: con:

[68] Mr. Randolph moved to refer to the Committee
also a motion relating to pardons in cases of Treason
—which was agreed to nem: con:

Adjourned