University of Virginia Library

Saturday Sepr. 15th. 1787. In Convention

Mr. Carrol 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.

Mr. Rutlidge 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.

Mr. 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.[101] abst. S. C.[101] no.
Geo. no.

Mr. 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
N. Carolina. He was of opinion that an additional
one was due both to that State and to Rho: Island,
& moved to reconsider for that purpose.

Mr. Sherman. When the Committee of eleven reported
the apportionment—five Representatives
were thought the proper share of N. 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.

Mr. Langdon moved to add 1 member to each of
the Representations of N. Carolina & Rho: Island.[102]

Mr. King was agst. any change whatever as opening
the door for delays. There had been no official

proof that the numbers of N. C are greater than
before estimated, and he never could sign the Constitution
if Rho: Island is to be allowed two members
that is one fourth of the number allowed to
Massts, which will be known to be unjust.

Mr. Pinkney urged the propriety of increasing the
number of Reps. allotted to N. Carolina.

Mr. Bedford contended for an increase in favor of
Rho: Island, and of Delaware also it passed in the
negative.

On the question for allowing two Reps. to Rho:
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.

On the question for allowing six to N. 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.

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 U. States."

In consequence of the proviso moved by Col:
Mason; and agreed to on the 13 Sepr., 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 nett produce
of all duties and imposts, laid by any State on
imports or exports, shall be for the use of the Treasury
of the U. S; and all such laws shall be subject to
the revision and controul of the Congress"

On a motion to strike out the last part "and all
such laws shall be subject to the revision and controul
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.

The substitute was then agreed to; Virga. 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."

Mr. Mc Henry & Mr. Carrol moved that "no State
shall be restrained from laying duties of tonnage for
the purpose of clearing harbours and erecting lighthouses."

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

Mr. Govr. 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.

Mr. 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 & more convinced that the regulation of
Commerce was in its nature indivisible and ought to
be wholly under one authority.

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

Mr. 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.

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."

Art II. sect. 1. (paragraph 6) "or the period for
chusing another president arrive" were changed
into "or a President shall be elected" conformably
to a vote of the [OMITTED] of [OMITTED].

Mr. Rutlidge and Docr. 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.

Art: II. Sect. 2. "he shall have power to grant
reprieves and pardons for offences against the U.
S. &c."

Mr. 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.

Col: Mason supported the motion.

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

Mr. 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.

Mr. King thought it would be inconsistent with the
Constitutional separation of the Executive & 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.

Mr. 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.

Mr. Randolph could not admit the Senate into a
share of the power. The great danger to liberty
lay in a combination between the President & that
body.

Col: 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, &
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.

Art II. Sect. 2. (paragraph 2) To the end of this,
Mr. Governr. 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."
Mr. Sherman 2ded. the motion

Mr. 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.

Mr. Govr 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.

The motion being lost by an 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 President being in another mode as well as eventually
by the House of Reps.

Art II. Sect. 2. After "officers of the U. S. whose
appointments are not otherwise provided for," were

added the words "and which shall be established by
law."

Art III. Sect. 2. parag: 3. Mr. Pinkney & Mr. Gerry
moved to annex to the end, "And a trial by jury
shall be preserved as usual in civil cases."

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

Mr. King urged the same objections

Genl. Pinkney 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 "under the laws thereof" inserted
after the word "State" in compliance with the wish
of some who thought the term legal 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 Congs."

Mr. 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 cannot
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
1 & 4 clauses in the 9. Section of article 1"

Mr. 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.

Col: Mason thought the plan of amending the
Constitution exceptionable & dangerous. As the
proposing of amendments is in both the modes to
depend, in the first immediately, and 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.

Mr. Govt. Morris & Mr. Gerry moved to amend the
article so as to require a Convention on application
of 2/3 of the Sts

Mr. 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 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 Mr. Govr. Morris & Mr. Gerry was
agreed to nem: con: (see the first part of the article
as finally past)

Mr. 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
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.

Mr. Gerry moved to strike out the words "or by
Conventions in three fourths thereof" On this
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.

Mr. 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."

Mr. 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.

Mr. Sherman then moved to strike out art V altogether

Mr. Brearley 2ded. 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

Mr. Govr. 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 the 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 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.

Mr. 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
& awful subject of their labours, 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.

Col: Mason 2ded. & 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 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.

Mr. Pinkney. 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 & amendments of the different
States on the subject of Government at large.
Nothing but confusion & contrariety could 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
& dependence of the Executive. He objected
to the power of a majority only of Congs. over Commerce.
But apprehending the danger of a general
confusion, and an ultimate decision by the sword,
he should give the plan his support.

Mr. Gerry stated the objections which determined
him to withhold his name from the Constitution. 1.

the duration and re-eligibility 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. Massachusetts
has not a due share of Representatives allotted
to her. 6. 3/5 of the Blacks are to be represented
as if they were freemen. 7. 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. by the
general power of the Legislature to make what laws
they may please to call necessary and proper. 2.
raise armies and money without limit. 3. 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.