The Debates in the
Federal Convention of 1787
Mr. John Langdon & Mr. Nicholas Gilman from N. Hampshire, took their
Resoln.: 17. 1 that provision ought to
be made for future amendments of the articles of Union, 2
agreed to, nem. con.
Resoln. 18. 3 "requiring the
Legis: Execut: & Judy. of the States to be bound by oath to support the
articles of Union,"
2 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.
1 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
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, 4 not as
parts of the General System, & had in all cases of interference given a
preference to the State Govts. The proposed oaths will cure that error.
The Resoln. [18 5] was agreed to nem.
Resol: 19. 6 "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 can not 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 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 mischeivous. 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.
7 that the Legislatures have no authority
in this case. 2. 8 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 Resoln.: [19
9] 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 establishment. 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
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 in 10 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, 11 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.
12 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.
12 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
On 13 question on Mr. Elseworth's
motion to refer the plan to the Legislatures of the States
N. H. no. Mas. no. Ct. ay. no. 14 Pa.
no. Del. ay. Md. ay. Va. no. N. C. no. S. C. no. Geo. no. 15
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 13 question for
agreeing to Resolution 19. 16 touching
the mode of Ratification as reported from the Committee of the Whole; viz, to
refer the Constn. after the approbation of Congs. to assemblies chosen by the
N. H. ay. Mas. ay. Ct. ay. Pa. ay. Del. no. Md. ay. Va. ay. N. C. ay. S. C.
ay. Geo. ay. 17
Mr. GOVr. MORRIS
& Mr. KING moved that the representation
in the second branch consist of _____ members from each State, who shall vote
Mr. ELSEWORTH said he had always
approved of voting in that mode.
Mr. GOVr. MORRIS
moved to fill the blank 18 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 expense ought always to form one, where it was not absolutely
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. Mas. no. Cont. no. Pa. ay. Del. no. Va. no. N. C. no. S. C. no.
Geo. no. 19
On 20 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. Carrol, 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. Mas. ay. Ct. ay. Pa. ay. Del. ay. Md. no. Va. ay. N. C. ay. S. C.
ay. Geo. ay. 21
Mr. HOUSTON & 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
On the question which was put without any 22
N. H. ay. Mas. ay. Ct. ay. Pa. no. Del. ay. Md. no. Virga. no. N. C. ay. S.
C. ay. Geo. ay. 23
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.
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. 24
Agd. to nem. con.
25 Shall the Come. consist of 10
members one from each State prest.? All the States were no, except
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. 26 The question being lost
by an equal division of Votes.
It was agreed nem — con — that the Comttee 27
consist of 5 members, to be appointed tomorrow.
1. The words "The seventeenth
Resolution" are substituted in the transcript for "Resoln. 17."
2. The Word "was" is here
inserted in the transcript.
3. The words "The eighteenth
Resolution" are substituted in the transcript for "Resoln. 18."
4. The word "and" is here
inserted in the transcript.
5. The words "the eighteenth"
are substituted in the transcript for "18."
6. The words "The nineteenth
Resolution" are substituted in the transcript for "Resol: 19."
7. The figure "1" is changed to "in
the first place" in the transcript.
8. The figure "2" is changed to "and
in the second" in the transcript.
9. The words "the nineteenth"
are substituted in the transcript for "19."
10. The word "in" is omitted in
11. The transcript uses the word "State"
in the plural.
12. The figures "1" and "2"
are changed to "First" and "Secondly" in the transcript.
13. The word "the" is here
inserted in the transcript.
14. The entry in the notes was originally
"N.J. no." Madison struck out "N.J." but inadvertently let "no"
15. In the transcript the vote reads: "Connecticut,
Delaware, Maryland, aye — 3; New Hampshire, Massachusetts, Pennsylvania,
Virginia, North Carolina, South Carolina, Georgia, no — 7."
16. The words "the nineteenth
Resolution" are substituted in the transcript for "Resolution 19."
17. In the transcript the vote reads: "New
Hampshire, Massachusetts, Connecticut, Pennsylvania, Maryland, Virginia, North
Carolina, South Carolina, Georgia, aye — 9; Delaware, no — 1."
18. The transcript does not italicise the
19. In the transcript the vote reads: "Pennsylvania,
aye — 1; New Hampshire, Massachusetts, Connecticut, Delaware, Virginia,
North Carolina, South Carolina, Georgia, no — 8."
20. The word "the" is here
inserted in the transcript.
21. In the transcript the vote reads: "New
Hampshire, Massachusetts, Connecticut, Pennsylvania, Delaware, Virginia, North
Carolina, Georgia, aye — 9; Maryland, no — 1."
22. The word "any" is omitted
in the transcript.
23. In the transcript the vote reads: "New
Hampshire, Massachusetts, Connecticut, Delaware, North Carolina, South Carolina,
Georgia, aye — 7; Pennsylvania, Maryland, Virginia, no — 3."
24. The word "was" is here
inserted in the transcript.
25. The words "On the question"
are here inserted in the transcript.
26. In the transcript the vote reads: "New
Hampshire, Massachusetts, Connecticut, Maryland, South Carolina, aye — 5;
Pennsylvania, Delaware, Virginia, North Carolina, Georgia, no — 5."
27. The word "should" is here
inserted in the transcript.