[Volume 4, Page 648]
Records of the Federal Convention
[1:22; Madison, 29 May]
15. Resd. that the amendments which shall be offered to the Confederation, by the Convention ought at a proper time, or times, after the approbation of Congress to be submitted to an assembly or assemblies of Representatives, recommended by the several Legislatures to be expressly chosen by the people, to consider & decide thereon.
[1:122; Madison, 5 June]
propos. 15. for "recommending conventions under appointment of the people to ratify the new Constitution &c." being taken up.
Mr. Sherman thought such a popular ratification unnecessary. the articles of Confederation providing for changes and alterations with the assent of Congs. and ratification of State Legislatures.
Mr. Madison thought this provision essential. The articles of Confedn. themselves were defective in this respect, resting in many of the States on the Legislative sanction only. Hence in conflicts between acts of the States, and of Congs. especially where the former are of posterior date, and the decision is to be made by State Tribunals, an uncertainty must necessarily prevail, or rather perhaps a certain decision in favor of the State authority. He suggested also that as far as the articles of Union were to be considered as a Treaty only of a particular sort, among the Governments of Independent States, the doctrine might be set up that a breach of any one article, by any of the parties, absolved the other parties from the whole obligation. For these reasons as well as others he thought it indispensable that the new Constitution should be ratified in the most unexceptionable form, and by the supreme authority of the people themselves.
Mr. Gerry. Observed that in the Eastern States the Confedn. had been sanctioned by the people themselves. He seemed afraid of referring the new system to them. The people in that quarter have at this time the wildest ideas of Government in the world. They were for abolishing the Senate in Massts. and giving all the other powers of Govt. to the other branch of the Legislature.
Mr. King supposed the last article of ye Confedn. Rendered the legislature competent to the ratification. The people of the Southern States where the federal articles had been ratified by the Legislatures only, had since impliedly given their sanction to it. He thought notwithstanding that there might be policy in varying the mode. A Convention being a single house, the adoption may more easily be carried thro' it. than thro' the Legislatures where there are several branches. The Legislatures also being to lose power, will be most likely to raise objections. The people having already parted with the necessary powers it is immaterial to them, by which Government they are possessed, provided they be well employed.
Mr. Wilson took this occasion to lead the Committee by a train of observations to the idea of not suffering a disposition in the plurality of States to confederate anew on better principles, to be defeated by the inconsiderate or selfish opposition of a few States. He hoped the provision for ratifying would be put on such a footing as to admit of such a partial union, with a door open for the accession of the rest.--
Mr. Pinkney hoped that in the case the experiment should not unanimously take place nine States might be authorized to unite under the same Governmt.
[1:126; Yates, 5 June]
The 15th or last resolve, That the amendment which shall be offered to the confederation, ought at a proper time or times after the approbation of congress to be submitted to an assembly or assemblies of representatives, recommended by the several legislatures, to be expressly chosen by the people, to consider and decide thereon, was taken into consideration.
Mr. Madison endeavored to enforce the necessity of this resolve--because the new national constitution ought to have the highest source of authority, at least paramount to the powers of the respective constitutions of the states--points out the mischiefs that have arisen in the old confederation, which depends upon no higher authority than the confirmation of an ordinary act of a legislature--Instances the law operation of treaties, when contravened by any antecedent acts of a particular state.
Mr. King supposes, that as the p[e]ople have tacitly agreed to a federal government, that therefore the legislature in every state have a right to confirm any alterations or amendments in it--a convention in each state to approve of a new government he supposes however the most eligible.
Mr. Wilson is of opinion, that the people by a convention are the only power that can ratify the proposed system of the new government.[Volume 4, Page 649]
It is possible that not all the states, nay, that not even a majority, will immediately come into the measure; but such as do ratify it will be immediately bound by it, and others as they may from time to time accede to it.
Question put for postponement of this resolve. 7 states for postponment--3 against it.
[1:128; Pierce, 5 June]
Mr. Butler was of opinion that the alteration of the confederation ought not to be confirmed by the different Legislatures because they have sworne to support the Government under which they act, and therefore that Deputies should be chosen by the People for the purpose of ratifying it.
Mr. King thought that the Convention would be under the necessity of referring the amendments to the different Legislatures, because one of the Articles of the confederation expressly made it necessary.
As the word perpetual in the Articles of confederation gave occasion for several Members to insist upon the main principles of the confederacy, i e that the several States should meet in the general Council on a footing of compleat equality each claiming the right of sovereignty, Mr. Butler observed that the word perpetual in the confederation meant only the constant existence of our Union, and not the particular words which compose the Articles of the union.
Some general discussions came on.--
[1:179; Madison, 9 June]
[Mr. Paterson] It has been said that if a Natl. Govt. is to be formed so as to operate on the people and not on the States, the representatives ought to be drawn from the people. But why so? May not a Legislature filled by the State Legislatures operate on the people who chuse the State Legislatures? or may not a practicable coercion be found. He admitted that there was none such in the existing System. He was attached strongly to the plan of the existing confederacy, in which the people chuse their Legislative representatives; and the Legislatures their federal representatives. No other amendments were wanting than to mark the orbits of the States with due precision, and provide for the use of coercion, which was the great point. He alluded to the hint thrown out heretofore by Mr. Wilson of the necessity to which the large States might be reduced of confederating among themselves, by a refusal of the others to concur. Let them unite if they please, but let them remember that they have no authority to compel the others to unite. N. Jersey will never confederate on the plan before the Committee. She would be swallowed up. He had rather submit to a monarch, to a despot, than to such a fate. He would not only oppose the plan here but on his return home do everything in his power to defeat it there
[1:214; Madison, 12 June]
The Question taken on Resolution 15, to wit, referring the new system to the people of the States for ratification it passed in the affirmative: Massts. ay. Cont. no. N.Y. no. N. J. no. Pa. ay Del. divd. Md. divd. Va. ay. N. C. ay. S. C. ay. Geo. ay. [Ayes--6; noes--3; divided--2.]
[1:237; Madison, 13 June]
19. Resd. that the amendments which shall be offered to the confederation by the convention ought at a proper time or times after the approbation of Congs. to be submitted to an Assembly or Assemblies recommended by the several Legislatures to be expressly chosen by the people to consider and decide thereon.
[1:250; Madison, 16 June]
Mr. Patterson. said as he had on a former occasion given his sentiments on the plan proposed by Mr. R. he would now avoiding repetition as much as possible give his reasons in favor of that proposed by himself. He preferred it because it accorded 1. with the powers of the Convention. 2 with the sentiments of the people. If the confederacy was radically wrong, let us return to our States, and obtain larger powers, not assume them of ourselves. I came here not to speak my own sentiments, but the sentiments of those who sent me. Our object is not such a Governmt. as may be best in itself, but such a one as our Constituents have authorized us to prepare, and as they will approve. If we argue the matter on the supposition that no Confederacy at present exists, it can not be denied that all the States stand on the footing of equal sovereignty. All therefore must concur before any can be bound. If a proportional representation be right, why do we not vote so here? If we argue on the fact that a federal compact actually exists, and consult the articles of it we still find an equal Sovereignty to be the basis of it. He reads the 5th. art: of Confederation giving each State a vote--& the 13th. declaring that no alteration shall be made without unanimous consent. This is the nature of all treaties. What is unanimously done, must be unanimously undone. It was observed (by Mr. Wilson) that the larger State[s] gave up the point, not because it was right, but because the circumstances of the moment urged the concession. Be it so. Are they for that reason at liberty to take it back. Can the donor resume his gift Without the consent of the donee. This doctrine may be convenient, but it is a doctrine that will sacrifice the lesser States. The large States acceded readily to the confederacy. It was the small ones that came in reluctantly and slowly. N. Jersey & Maryland were the two last, the former objecting to the want of power in Congress over trade: both of them to the want of power to appropriate the vacant territory to the benefit of the whole. If the sovereignty of the States is to be maintained, the Representatives must be drawn immediately from the States, not from the people: and we have no power to vary the idea of equal sovereignty. The only expedient that will cure the difficulty, is that of throwing the States into Hotchpot. To say that this is impracticable, will not make it so. Let it be tried, and we shall see whether the Citizens of Massts. Pena. & Va. accede to it. It will be objected that Coercion will be impracticable. But will it be more so in one plan than the other? Its efficacy will depend on the quantum of power collected, not on its being drawn from [Volume 4, Page 650] the States, or from the individuals; and according to his plan it may be exerted on individuals as well as according that of Mr. R. a distinct executive & Judiciary also were equally provided by this plan.
. . . . .
[Mr. Wilson] . . . 13. finally ye ratification is in this to be by the people themselves--in that by the legislative authorities according to the 13 art: of Confederation.
With regard to the power of the Convention, he conceived himself authorized to conclude nothing, but to be at liberty to propose any thing. In this particular he felt himself perfectly indifferent to the two plans.
With regard to the sentiments of the people, he conceived it difficult to know precisely what they are. Those of the particular circle in which one moved, were commonly mistaken for the general voice. He could not persuade himself that the State Govts. & sovereignties were so much the idols of the people, nor a Natl. Govt. so obnoxious to them, as some supposed. Why sd. a Natl. Govt. be unpopular? Has it less dignity? will each Citizen enjoy under it less liberty or protection? Will a Citizen of Delaware be degraded by becoming a Citizen of the United States? Where do the people look at present for relief from the evils of which they complain? Is it from an internal reform of their Govt.? No. Sir, It is from the Natl. Councils that relief is expected. For these reasons he did not fear, that the people would not follow us into a national Govt. and it will be a further recommendation of Mr. R.'s plan that it is to be submitted to them and not to the Legislatures, for ratification.
[1:314; Madison, 19 June]
Mr. Madison. Much stress had been laid by some gentlemen on the want of power in the Convention to propose any other than a federal plan. To what had been answered by others, he would only add, that neither of the characteristics attached to a federal plan would support this objection. One characteristic, was that in a federal Government, the power was exercised not on the people individually; but on the people collectively, on the States. Yet in some instances as in piracies, captures &c. the existing Confederacy, and in many instances, the amendments to it proposed by Mr. Patterson must operate immediately on individuals. The other characteristic was, that a federal Govt. derived its appointments not immediately from the people, but from the States which they respectively composed. Here too were facts on the other side. In two of the States, Connect. and Rh. Island, the delegates to Congs. were chosen, not by the Legislatures, but by the people at large; and the plan of Mr. P. intended no change in this particular.
It had been alledged (by Mr. Patterson) that the Confederation having been formed by unanimous consent, could be dissolved by unanimous Consent only Does this doctrine result from the nature of compacts? does it arise from any particular stipulation in the articles of Confederation? If we consider the federal union as analogous to the fundamental compact by which individuals compose one Society, and which must in its theoretic origin at least, have been the unanimous act of the component members, it cannot be said that no dissolution of the compact can be effected without unanimous consent. a breach of the fundamental principles of the compact by a part of the Society would certainly absolve the other part from their obligations to it. If the breach of any article by any of the parties, does not set the others at liberty, it is because, the contrary is implied in the compact itself, and particularly by that law of it, which gives an indefinite authority to the majority to bind the whole in all cases. This latter circumstance shews that we are not to consider the federal Union as analogous to the social compact of individuals: for if it were so, a Majority would have a right to bind the rest, and even to form a new Constitution for the whole, which the Gentn: from N. Jersey would be among the last to admit. If we consider the federal union as analogous not to the social compacts among individual men: but to the conventions among individual States. What is the doctrine resulting from these conventions? Clearly, according to the Expositors of the law of Nations, that a breach of any one article, by any one party, leaves all the other parties at liberty, to consider the whole convention as dissolved, unless they choose rather to compel the delinquent party to repair the breach. In some treaties indeed it is expressly stipulated that a violation of particular articles shall not have this consequence, and even that particular articles shall remain in force during war, which in general is understood to dissolve all subsisting Treaties. But are there any exceptions of this sort to the Articles of confederation? So far from it that there is not even an express stipulation that force shall be used to compell an offending member of the Union to discharge its duty. He observed that the violations of the federal articles had been numerous & notorious. Among the most notorious was an Act of N. Jersey herself; by which she expressly refused to comply with a constitutional requisition of Congs.--and yielded no farther to the expostulations of their deputies, than barely to rescind her vote of refusal without passing any positive act of compliance. He did not wish to draw any rigid inferences from these observations. He thought it proper however that the true nature of the existing confederacy should be investigated, and he was not anxious to strengthen the foundations on which it now stands
[1:335; Madison, 20 June]
Mr. Elseworth 2ded. by Mr. Gorham moves to alter it so as to run "that the Government of the United States ought to consist of a supreme legislative, Executive and Judiciary". This alteration he said would drop the word national, and retain the proper title "the United States." He could not admit the doctrine that a breach of any of the federal articles could dissolve the whole. It would be highly dangerous not to consider the Confederation as still subsisting. He wished also the plan of the Convention to go forth as an amendment to the articles of Confederation, since under this idea the authority of the Legislatures could ratify it. If they are unwilling, the people will be so too. If the plan goes forth to the people for ratification [Volume 4, Page 651] several succeeding Conventions within the States would be unavoidable. He did not like these conventions. They were better fitted to pull down than to build up Constitutions.
[2:88; Madison, 23 July]
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 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 demogagues 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 inadmissable. 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 everything 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. [Volume 4, Page 652] 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) 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 establishnt. 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 in 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 States 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 preexisting 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. Mas. no. Ct. ay. Pa. no- Del. ay- Md. ay. Va. no. N- C- no. S. C.- no. Geo. no. [Ayes--3; noes--7.]
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 Congs. to assemblies chosen by the people:
N. H. ay. Mas- ay. Ct. ay. Pa. ay. Del. no. Md. ay. Va. ay. N. C. ay. S. C. ay. Geo. ay. [Ayes--9; noes--1.]
[2:133, 136, 148, 149, 160; Committee of Detail]
Resolved That the Amendments which shall be offered to the Confederation by the Convention ought at a proper Time or Times, after the Approbation of Congress, to be submitted to an Assembly or Assemblies of Representatives, recommended by [Volume 4, Page 653] the several Legislatures, to be expressly chosen by the People to consider and decide thereon.
. . . . .
23. The assent of the Legislature of States shall be sufficient to invest future additional Powers in U.S. in C. ass. and shall bind the whole Confederacy.
. . . . .
4. The ratification of the reform is--After the approbation of Congress--to be made
by a special convention in each State recommended by the assembly to be chosen for the express purpose of considering and approving or rejecting it in toto: and this recommendation may be used from time to time
. . . . .
1. The assent of the Conventions of states shall give operation to this constitution
2. Each assenting state shall notify its assent to congress: who shall publish a day for its commencement, not exceeding After such publication, or with the assent of the major part of the assenting states after the expiration of days from the giving of the assent of the ninth state,
1. each legislature shall direct the choice of representatives, according to the seventh article and provide for their support:
2. each legislature shall also choose senators; and provide for their support
3. they shall meet at the Place & on the day assigned by congress,
4. They shall as soon as may be after meeting elect the executive: and proceed to execute this constitution.
. . . . .
Resolved, That the Constitution proposed by this Convention, to the People of the United States for their approbation be laid before the United States in Congress assembled for their Agreement and Recommendation and be afterwards submitted to a Convention chosen in each State under the Recommendation of its Legislature, in order to receive the Ratification of such Convention.
[2:189; Madison, 6 Aug.]
The ratifications of the Conventions of States shall be sufficient for organizing this Constitution.
This Constitution shall be laid before the United States in Congress assembled, for their approbation; and it is the opinion of this Convention, that it should be afterwards submitted to a Convention chosen, under the recommendation of its legislature, in order to receive the ratification of such Convention.
To introduce this government, it is the opinion of this Convention, that each assenting Convention should notify its assent and ratification to the United States in Congress assembled; that Congress, after receiving the assent and ratification of the Conventions of States, should appoint and publish a day, as early as may be, and appoint a place for commencing proceedings under this Constitution; that after such publication, the Legislatures of the several States should elect members of the Senate, and direct the election of members of the House of Representatives; and that the members of the Legislature should meet at the time and place assigned by Congress, and should, as soon as may be, after their meeting, choose the President of the United States, and proceed to execute this Constitution."
[2:211; McHenry, 7 Aug.]
I now begged his particular attention to my last proposition. By the XXII article we were called upon to agree that the system should be submitted to a convention chosen in each State under the recommendation of its legislature. And that a less number of conventions than the whole agreeing to the system should be sufficient to organise the constitution.
We had taken an oath to support our constitution and frame of government. We had been empowered by a legislature legally constituted to revise the confederation and fit it for the exigencies of government, and preservation of the union. Could we do this business in a manner contrary to our constitution? I feared (This was said first I thought-- then I feared) we could not. If we relinquished any of the rights or powers of our government to the U.S. of America, we could no otherwise agree to that relinquishment than in the mode our constitution prescribed for making changes or alterations in it.
Mr. Carrol said he had felt his doubts respecting the propriety of this article as it respected Maryland; but he hoped we should be able to get over this difficulty.
Mr. Jenifer now came in to whom Mr. Carroll repeated what we had said upon my propositions and our determinations. Mr. Jenifer agreed to act in unison with us but seemed to have vague ideas of the mischiefs of the system as it stood in the report.
I wished to impress him with the necessity to support us, and touched upon some popular points.
[2:468; Madison, 30 Aug.]
Art: XXI. taken up. viz: "The ratifications of the Conventions of States shall be sufficient for organizing this Constitution."
Mr. Wilson proposed to fill the blank with "seven" that being a majority of the whole number & sufficient for the commencement of the plan.
Mr. Carrol moved to postpone the article in order to take up the Report of the Committee of Eleven . . . --and on the question
N. H--no. Mas--no. Ct. no. N. J. ay. Pa. no. Del. ay. Md. ay. Va. no. N. C. no. S. C. no. Geo. no. [Ayes--3; noes--8.]
Mr. Govr. Morris thought the blank ought to be filled in a twofold way, so as to provide for the event of the ratifying States being contiguous which would render a smaller number sufficient, and the event of their being dispersed, [Volume 4, Page 654] which wd require a greater number for the introduction of the Government.
Mr. Sherman. observed that the States being now confederated by articles which require unanimity in changes, he thought the ratification in this case of ten States at least ought to be made necessary.
Mr. Randolph was for filling the blank with "Nine" that being a respectable majority of the whole, and being a number made familiar by the constitution of the existing Congress.
Mr Wilson mentioned "eight" as preferable.
Mr. Dickinson asked whether the concurrence of Congress is to be essential to the establishment of the system, whether the refusing States in the Confederacy could be deserted--and whether Congress could concur in contravening the system under which they acted?
Mr. Madison. remarked that if the blank should be filled with "seven" eight, or "nine"--the Constitution as it stands might be put in force over the whole body of the people. tho' less than a majority of them should ratify it.
Mr. Wilson. As the Constitution stands, the States only which ratify can be bound. We must he said in this case go to the original powers of Society, The House on fire must be extinguished, without a scrupulous regard to ordinary rights.
Mr. Butler was in favor of "nine". He revolted at the idea, that one or two States should restrain the rest from consulting their safety.
Mr. Carrol moved to fill the blank with "the thirteen". unanimity being necessary to dissolve the existing confederacy which had been unanimously established.
Mr King thought this amendt. necessary, otherwise as the Constitution now stands it will operate on the whole though ratified by a part only.
[2:475; Madison, 31 Aug.]
Mr. King moved to add to the end of art: XXI the words "between the said States" so as to confine the operation of the Govt. to the States ratifying it.
On the question
N. H. ay. Mas. ay. Ct. ay. N--J--ay. Pa. ay. Md. no. Virga. ay. N. C. ay. S. C. ay. Geo. ay. [Ayes--9; noes--1.]
Mr. Madison proposed to fill the blank in the article with "Any seven or more States entitled to thirty three members at least in the House of Representatives according to the allotment made in the 3 Sect: of art: 4." This he said would require the concurrence of a majority of both the States and people.
Mr. Sherman doubted the propriety of authorizing less than all the States to execute the Constitution, considering the nature of the existing Confederation. Perhaps all the States may concur, and on that supposition it is needless to hold out a breach of faith.
Mr. Clymer and Mr. Carrol moved to postpone the consideration of Art: XXI in order to take up the Reports of Committees not yet acted on-- On this question, the States were equally divided. N. H. ay. Mas. no. Ct. divd. N. J-- no. Pa. ay-- Del--ay. Md. ay. Va. no. N. C no. S. C. no. G. ay. [Ayes--5; noes--5; divided--1.]
Mr Govr. Morris moved to strike out "Conventions of the" after "ratifications". leaving the States to pursue their own modes of ratification.
Mr. Carrol mentioned the mode of altering the Constitution of Maryland pointed out therein, and that no other mode could be pursued in that State.
Mr. King thought that striking out "Conventions". as the requisite mode was equivalent to giving up the business altogether. Conventions alone, which will avoid all the obstacles from the complicated formation of the Legislatures, will succeed, and if not positively required by the plan, its enemies will oppose that mode.
Mr. Govr. Morris said he meant to facilitate the adoption of the plan, by leaving the modes approved by the several State Constitutions to be followed.
Mr. Madison considered it best to require Conventions; Among other reasons, for this, that the powers given to the Genl. Govt. being taken from the State Govts the Legislatures would be more disinclined than conventions composed in part at least of other men; and if disinclined, they could devise modes apparently promoting, but really. thwarting the ratification. The difficulty in Maryland was no greater than in other States, where no mode of change was pointed out by the Constitution, and all officers were under oath to support it. The people were in fact, the fountain of all power, and by resorting to them, all difficulties were got over. They could alter constitutions as they pleased. It was a principle in the Bills of rights, that first principles might be resorted to.
Mr. McHenry said that the officers of Govt. in Maryland were under oath to support the mode of alteration prescribed by the Constitution.
Mr Ghorum urged the expediency of "Conventions" also Mr. Pinkney, for reasons, formerly urged on a discussion of this question.
Mr. L. Martin insisted on a reference to the State Legislatures. He urged the danger of commotions from a resort to the people & to first principles in which the Governments might be on one side & the people on the other. He was apprehensive of no such consequences however in Maryland, whether the Legislature or the people should be appealed to. Both of them would be generally against the Constitution. He repeated also the peculiarity in the Maryland Constitution.
Mr. King observed that the Constitution of Massachusetts was made unalterable till the year 1790, yet this was no difficulty with him. The State must have contemplated a recurrence to first principles before they sent deputies to this Convention.
Mr. Sherman moved to postpone art. XXI. & to take up art: XXII on which question,
N. H. no. Mas. no. Ct. ay--N. J. no--P. ay--Del--ay--Md ay. Va. ay. N. C. no S. C. no--Geo--no--[Ayes--5; noes--6.]
On Mr Govr. Morris's motion to strike out "Conventions of the," it was negatived.
N. H. no. Mas. no. Ct. ay. N. J. no. Pa ay. Del. no. Md. ay--Va no--S--C no--Geo. ay. [Ayes--4; noes--6.]
On filling the blank in Art: XXI with "thirteen" moved by Mr. Carrol, & L. Martin
N. H. no. Mas. no. Ct. no.--All no--except Maryland.[Volume 4, Page 655]
Mr. Sherman & Mr. Dayton moved to fill the blank with "ten"
Mr. Wilson supported the motion of Mr. Madison, requiring a majority both of the people and of States.
Mr Clymer was also in favor of it.
Col: Mason was for preserving ideas familiar to the people. Nine States had been required in all great cases under the Confederation & that number was on that account preferable
On the question for "ten"
N. H. no. Mas. no. Ct ay. N.J--ay. Pa. no. Del--no. Md. ay. Va. no. N. C. no. S. C. no. Geo. ay. [Ayes--4; noes--7.]
On question for "nine"
N--H. ay. Mas. ay. Ct. ay--N--J. ay. Pa. ay--Del. ay. Md. ay--Va. no. N. C. no. S. C. no. Geo--ay, [Ayes--8; noes--3.]
Art: XXI. as amended was then agreed to by all the States, Maryland excepted, & Mr. Jenifer being, ay--
Art. XXII taken up, to wit, "This Constitution shall be laid before the U--S. in Congs. assembled for their approbation; and it is the opinion of this Convention that it should be afterwards submitted to a Convention chosen, in each State under the recommendation of its Legislature, in order to receive the ratification of such Convention"
Mr. Govr. Morris & Mr. Pinkney moved to strike out the words "for their approbation" On this question
N. H. ay. Mas. no. Ct. ay. N--J. ay. Pa. ay. Del. ay. Md. no Va. ay. N. C--ay. S. C--ay. Geo. no. [Ayes--8; noes--3.]
Mr Govr. Morris & Mr. Pinkney then moved to amend the art: so as to read
"This Constitution shall be laid before the U. S. in Congress assembled; and it is the opinion of this Convention that it should afterwards be submitted to a Convention chosen in each State, in order to receive the ratification of such Convention: to which end the several Legislatures ought to provide for the calling Conventions within their respective States as speedily as circumstances will permit".--Mr. Govr. Morris said his object was to impress in stronger terms the necessity of calling Conventions in order to prevent enemies to the plan, from giving it the go by. When it first appears, with the sanction of this Convention, the people will be favorable to it. By degrees the State officers, & those interested in the State Govts will intrigue & turn the popular current against it.
Mr. L--Martin believed Mr. Morris to be right, that after a while the people would be agst. it. but for a different reason from that alledged. He believed they would not ratify it unless hurried into it by surprize.
Mr. Gerry enlarged on the idea of Mr. L. Martin in which he concurred, represented the system as full of vices, and dwelt on the impropriety of destroying the existing Confederation, without the unanimous Consent of the parties to it:
Question on Mr Govr. Morris's and Mr. Pinckney's motion
N. H--ay. Mas. ay. Ct no. N--J. no. Pa. ay. Del--ay. Md. no. Va no. N--C--no--S--C. no. Geo. no--[Ayes--4; noes--7.]
Mr. Gerry moved to postpone art: XXII.
Col: Mason 2ded. the motion, declaring that he would sooner chop off his right hand than put it to the Constitution as it now stands. He wished to see some points not yet decided brought to a decision, before being compelled to give a final opinion on this article. Should these points be improperly settled, his wish would then be to bring the whole subject before another general Convention.
Mr. Govr Morris was ready for a postponement. He had long wished for another Convention, that will have the firmness to provide a vigorous Government, which we are afraid to do.
Mr. Randolph stated his idea to be, in case the final form of the Constitution should not permit him to accede to it, that the State Conventions should be at liberty to propose amendments to be submitted to another General Convention which may reject or incorporate them, as shall be judged proper.
On the question for postponing
N. H. no. Mas. no. Ct no. N. J--ay--Pa. no. Del. no. Md ay--Va. no. N. C. ay. S--C. no. Geo. no. [Ayes--3; noes--8.]
On the question on Art: XXII
N. H. ay. Mas. ay. Ct. ay. N. J. ay. Pa. ay--Del. ay. Md. no. Va ay. N--C. ay. S--C. ay. Geo. ay. [Ayes--10; noes--1.]
Art: XXIII being taken up. as far the words "assigned by Congress" inclusive, was agreed to nem: con: the blank having been first filled with the word "nine" as of course.
On a motion for postponing the residue of the clause, concerning the choice of the President &c,
N. H. no. Mas. ay. Ct. no. N--J. no. Pa. no. Del. ay. Md. no. Va. ay. N. C. ay. S--C. no. Geo. no. [Ayes--4; noes--7.]
Mr. Govr. Morris then moved to strike out the words "choose the President of the U. S. and"--this point, of choosing the President not being yet finally determined, & on this question
N--H--no. Mas. ay. Ct. ay. N. J. ay. Pa. ay. Del. ay. Md. divd. Va. ay. N--C. ay--S. C. ay--Geo. ay [Ayes--9; noes--1; divided--1.]
[2:559; Madison, 10 Sept.]
Mr. Gerry moved to reconsider art: XXI & 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 [Volume 4, Page 656] 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, and 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. [Ayes--7; noes--3; divided--1.]
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 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 had 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: Hamiltons 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. [Ayes--1; noes--10.]
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:[Volume 4, Page 657]
[2:579, 603; Committee of Style]
The ratification of the Conventions of nine States shall be sufficient for organising this Constitution between the said States.
This Constitution shall be laid before the United States in Congress assembled, and it is the opinion of this Convention that it should be afterwards submitted to a Convention chosen in each State, under the recommendation of its Legislature, in order to receive the ratification of such Convention.
To introduce this government, it is the opinion of this Convention, that each assenting Convention should notify its assent and ratification to the United States in Congress assembled; that Congress, after receiving the assent and ratification of the Conventions of nine States, should appoint and publish a day, as early as may be, and appoint a place for commencing proceedings under this Constitution; that after such publication, the Legislatures of the several States should elect Members of the Senate, and direct the election of Members of the House of Representatives; and that the Members of the Legislature should meet at the time and place assigned by Congress and should, as soon as may be, after their meeting, proceed to execute this Constitution.
That it be an instruction to the Committee to prepare an address to the People to accompany the present constitution, and to be laid with the same before the United States in Congress.
. . . . .
The ratification of the conventions of nine States, shall be sufficient for the establishment of this constitution between the States so ratifying the same.
[2:631; Madison, 15 Sept.]
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.
Farrand, Max, ed. The Records of the Federal Convention of 1787. Rev. ed. 4 vols. New Haven and London: Yale University Press, 1937.
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