[Volume 1, Page 195]

CHAPTER 6 | Document 12

Continental Congress

26--28 Sept. 1787Jensen 1:327--37, 339--40

[Nathan Dane's Motion, 26 Sept.]

Whereas Congress Sensible that there were defects in the present Confederation; and that several of the States were desirous that a Convention of Delegates should be formed to consider the same, and to propose necessary alterations in the federal Constitution; in February last resolved that it was expedient that a Convention of the States should be held for the Sole and express purpose of revising the articles of Confederation and reporting to Congress and the several legislatures such alterations and provisions therein, as Should when agreed to in Congress, and be confirmed by the States, render the federal Constitution adequate to the exigencies of Government, and the preservation of the union--

And whereas it appears by Credentials laid before Congress, that twelve States appointed Delegates who assembled in Convention accordingly, and who did on the 17th. instant, by the unanimous consent of the States then present in convention agree upon, and afterwards lay before Congress, a Constitution for the United States, to be submitted to a convention of Delegates, chosen in each State by the people thereof, under the recommendation of its legislature, for their assent and ratification which constitution appears to be intended as an entire system in itself, and not as any part of, or alteration in the Articles of Confederation;--to alterations in which articles, the deliberations and powers of Congress are, in this Case, constitutionally confined--and whereas Congress cannot with propriety proceed to examine and alter the said Constitution proposed, unless it be with a view so essentially to change the principles and forms of it, as to make it an additional part in the said Confederation and the members of Congress not feeling themselves authorised by the forms of Government under which they are assembled, to express an opinion respecting a system of Government no way connected with those forms; but conceiving that the respect they owe their constituents and the importance of the subject require, that the report of the Convention should, with all convenient dispatch, be transmitted to the Several States to be laid before the respective legislatures ther[eof,] therefore

Resolved that there be transmitted to the Supreme executive of each State a copy of the report of the Convention of the States lately Assembled in the City of Philadelphia signed by their deputies the seventeenth instant including their resolutions and their letter directed to the president of Congress--

[Volume 1, Page 196]

[Melancton Smith's Notes, 26 Sept.]

Pierce Butler: Wishes to know the motives that produced the motion. He thinks it is calculated to disapprove [the Constitution].

Nathan Dane: Asks to know what words are objectionable.

1. The consolidation [is] imperfect and will not work.

2. If it does, it will not work on free principles. It must be supported by a standing army. It will oppress the honest and industrious, [and] it will advantage a few. Is not averse to examination, is open to conviction, and, if convinced, will support it. Is willing the present motion should be amended so as to be neutral. If it [the Constitution] is to be approved, it will be moved to take it up by paragraphs, objections stated, [and] amendments moved. Congress [has] no constitutional right to consider [the Constitution].

[Melancton Smith's Notes, 27 Sept.]

Richard Henry Lee: Every man to see with his own eyes; to judge for themselves. Congress, acting under the present Constitution definitely limiting their powers, have no right to recommend a plan subverting the government. This remark felt, as a gentleman yesterday justify, by the necessity of the case. This [is] dangerous because this principle has been abused to bad 100 times [to one] where it is used for good. The Impost [of 1781] referred [to] as an instance to justify; that [was] within the powers [of Congress; it was] sent to [receive?] the approval of 13 states; and within this line this [Constitution] by [the approval of] nine [states]. This plan proposes [to] destroy the Confederation of 13 and [to] establish a new one of 9. Yet it would be indecent not to send it to the states for 12 states sent delegates [to the Federal Convention], as he understands, to amend the present government. Men of respected characters have agreed upon this. It [the Constitution] should be forwarded. A gentleman yesterday said the Confederation says nothing of [a] convention. It is true it does not point [to] a convention, but it does not forbid [this?] to be proposed by one, or any other way. Congress is only to agree. If this was not destructive, but an amendment, Congress might consider [the Constitution]. Proposes a resolution, stating that as Congress have no right under the Confederation to recommend alterations of the Confederation unless agreed to by 13 states, and this [Constitution] proposes an amendment by 9.

[Richard Henry Lee's Motion, Journals of Congress, 27 Sept.]

And a motion being made by Richard Henry Lee, seconded by Melancton Smith in the words following: "Resolved, That Congress after due attention to the Constitution under which this body exists and acts find that the said Constitution in the thirteenth article thereof limits the power of Congress to the amendment of the present Confederacy of thirteen states, but does not extend it to the creation of a new confederacy of nine states; and the late Convention having been constituted under the authority of twelve states in this Union it is deemed respectful to transmit, and it is accordingly ordered, that the plan of a new Federal Constitution laid before Congress by the said Convention be sent to the executive of every state in this Union to be laid before their respective legislatures."

[Melancton Smith's Notes, 27 Sept.]

William Grayson: . . . Is in favor of the new Constitution. This [Confederation] proposes a mode of altering. If we depart from the mode in this case, it will form a precedent from doing it in the old one--[in] the [way the] 13th Article [found?]. 9 states may agree to the new [Constitution]; the other 4 ought to be left in possession of this [Confederation] if they choose and not [be] forced to come in. Does not think there has yet been any departure from the Confederation. Congress had a right to refer to any body to report. Keep the present [Confederation] until you get a better.

. . . . .

James Madison: Can't accede to it [Lee's motion]. [It] is not respectful to the Convention. After what has been done, if Congress does not agree, [it] implies a disagreement. Congress from former acts do not object to a national government. . . . The question is, whether on the whole it is best to adopt it, and [we] ought to say so. The powers of [the] Convention [are] the same as of Congress. The reason of Convention [was] that they might not be interrupted; and that persons might be admitted [to the Convention] whether or not [they] be in Congress, and to prevent jealousies. If this House can't approve [the Constitution], it says the crisis is not yet arrived and implies a disapp[robation]. [In] a great many instances, Congress have recommended what they have no right [to recommend].

Richard Henry Lee: The Convention have not proceeded as this House were bound [by the Articles of Confederation]. It is to be agreed to by the states and means the 13 [states]. But this [Constitution] recommends a new confederacy of 9 [states]. The Convention [had] no more powers than Congress, yet if 9 states agree [the Constitution] becomes supreme law. Knows no instance on the Journals, as he remembers, opposing the Confederacy. The Impost [of 1781] was to be adopted by 13 [states]. The resolution from [New] Jersey approves [the Constitution] for Congress don't send out anything but such as they approve.

Abraham Clark: Unhappy to differ from [Richard Henry] Lee. He reveres his judgment. If his objection [is] good, his own proposal [is] liable to the like objection.

William Samuel Johnson: Hardly possible to send it out without approving or disapproving. For this reason, Mr. Lee's motion [ought to be postponed]. Congress ought to approve or disapprove. They may do it. It is their duty to do it. The people will see [that] we, that Congress, act without power in the case of 9 or 13 [states]. They will see, that the act of [21] February [calling the Convention] was departing from the Constitution. [The] Confederation says Congress was to make alterations. Congress appoint a Convention to do it. He saw it so at the time and opposed it. The argument then was salus populi. Nothing from Congress would do. The proposal from [the] Convention [is] not a proposal to 9 [states] but to all. It is hoped all will [agree]. Mr. Lee says, if 9 agree to alter by the people; this says, if 9 do in this case, we will set it going on the principle [Volume 1, Page 197] of majority. On the principle of Congress referring to the Convention, they are a committee and have made report. Congress then must approve or disapprove. It don't imply an approbation of all its parts, but the best upon the whole, a matter of accommodation. We say it is better than the present [constitution], better than running the risk of another.

James Madison: Did not say the Convention moved exactly in the line of their appointment. Congress did depart from the idea of [a] federal and recommend a national government in February 1781. Congress did [so] from the principle [of] salus populi. The western country, its sale and government, [is] an instance of exceeding powers, as Congress have in many instances exceeded their power. If it does not in this instance approve, it will imply disapproval.

[Journals of Congress, 27 Sept.]

On the question to postpone [Lee's motion] for the purpose above mentioned [for considering Abraham Clark's motion] the yeas and nays being required by Richard Henry Lee: . . . .

So it was resolved in the affirmative.

On motion of Edward Carrington seconded by William Bingham, the motion of Abraham Clarke was postponed to take into consideration the following motion, viz.: "Congress proceeded to the consideration of the Constitution for the United States by the late Convention held in the city of Philadelphia and thereupon resolved that Congress do agree thereto and that it be recommended to the legislatures of the several states to cause conventions to be held as speedily as may be to the end that the same may be adopted, ratified and confirmed."

[Melancton Smith's Notes, 27 Sept.]

The motion from Richard Henry Lee was postponed, and then a motion was made by Edward Carrington.

Henry Lee: Thinks the matter [the Constitution] was to be taken up [by Congress] in its parts, but cannot agree to it in all its parts, without [an] examination by paragraphs and propose [such?] amendments [as] are necessary. Congress will subject themselves to disgrace by voting on a matter which they have not examined. Moves to postpone [Carrington's motion] and [have the Constitution] taken up by paragraphs.

Nathaniel Gorham: Thinks not necessary to take up [the Constitution] by paragraphs. Every gentleman may propose amendments. No necessity of a bill of rights, because a bill of rights in state governments was intended to retain certain powers [in the people] as the legislatures had unlimited powers.

James Madison: The business is open to consideration. Should feel delicacy if he had not assented in Convention though he did not approve it. Gentlemen have said this is in the situation of a bill agreed to by one house. This principle will oppose amendments because the act if altered will not be the act of both. It must be altered in all stages. It may be, but it cannot succeed, nor any other alteration if all are to agree in this manner. [The] Confederation was proposed without alteration. No probability of Congress agreeing in alterations. Those who disagree, differ in their opinions. A bill of rights [is] unnecessary because the powers are enumerated and only extend to certain cases, and the people who are to agree to it are to establish this.

Richard Henry Lee: It is admitted and [a] fact that this [Constitution] was to be sent to Congress, but surely it was to be considered and altered, and not to be sent forward without. The bill of rights will be brought forward. [A bill of rights] not necessary in [the] Confederation because it is expressly declared [that] no power should be exercised, but such as is expressly given, and therefore no constructive power can be exercised. To prevent this [is] the great use of a bill of rights.

Rufus King: The House cannot constitutionally make alterations. The idea of [the] Convention originated in the states, and this led the House to agree. They proposed the Convention should propose alterations, which when agreed to here and confirmed by the states [should be adopted], and therefore [Congress] are to agree or disagree to the alterations and cannot alter [the Constitution] consistently with their own act. Congress have taken their line, but in consequence of that [decision they are put?]. The majority of the people, it is said [by Richard Henry Lee], may alter, and if they have manifested a desire to change, this House may advise it, as it is not obligatory. We may advise as any other body of men. To satisfy forms it was ordered to pass this House. They may agree or disagree. If they do disagree it will not prevent them [the states] to accept. If they [Congress] agree it will give weight.

Richard Henry Lee: Strangest doctrine he ever heard, that [in] referring a matter of report, that no alterations should be made. The idea the common sense of man. The states and Congress, he thinks, had the idea that Congress was to amend if they thought proper. He wishes to give it a candid inquiry, and proposes such alterations as are necessary. If the gentleman [King] wishes it should go forth without amendments, let it go with all its imperfections on its head, and the amendments by themselves. To insist that it should go as it is without amendments is like presenting a hungry man 50 dishes and insisting he should eat all or none.

James Madison: A circumstance distinguishes this report from others. The Convention was not appointed by Congress, but by the people from whom Congress derive their power. Congress only to concur. Admits Congress may alter, but if they do alter, it is not the act of Convention but of Congress; and excludes [the] Convention entirely and confines the House in the trammels of the Confederation. Not unusual to propose things in the lump. So the Confederation was presented.

Richard Henry Lee: A report implies a right to consider on the whole or part. The Confederation went in such way as to admit of objections, and most states proposed them. If it is amended, he thinks it will be more likely to succeed, as capital objections will probably be removed. The idea seems to be, this must be agreed to or nothing else. Why this idea? This supposes all wisdom centers in the Convention.

Nathaniel Gorham: Why does not the gentleman propose [Volume 1, Page 198] his amendments? Then the question of the expediency of the amendments will be considered.

William Samuel Johnson: The term of report: a general expression, not meant as in cases where [a] report is made to Congress. The people and Congress agree the alterations shall be made by Convention, and the nature of things forbids any alteration as it will make it no act of Convention. Congress are not to judge in the last resort, but the people; and therefore it must be approved or disapproved in the whole.

Richard Henry Lee: Is it the idea of Convention that not only Congress but the states must agree in the whole, or else to reject it? And it seems all idea of amendments are precluded.

James Madison: The proper question is whether any amendments shall be made, and that the House should decide. Suppose alterations sent to the states. The Arts. [Articles of Confederation] requires the delegates [in Congress] to report [alterations] to them [i.e., the state legislatures]. There will be two plans. Some will accept one and some another. That will create confusion and proves it was not the intent of the state.

Richard Henry Lee: Some admit the right but doubt the expediency and proposes amendments.

. . . . .

Nathan Dane: The gentlemen from the Convention are pushing the business by refinements. [Is] that the common sense of the country? If the House mean to preclude amendments, the gentleman [i.e., Dane] will stand excused to vote in the negative.

Edward Carrington: When he made the motion, supposed every man had a right to examine [the Constitution]. He had considered and made up his mind. If any gentleman has not made up his mind, he ought to have a liberty of amending. For though he thinks it inexpedient to amend, as he fears it would defeat the whole. Important amendments are offered by a member. He ought to have a right to support them.

Abraham Clark: The motion by Mr. Lee for amendments will do injury by coming on the Journal, and therefore the House, upon cool reflection, will think it best to agree to send it [the Constitution] out without agreeing.

William Grayson: It is a curious situation. It is urged all alterations are precluded. Has not made up his mind, and thinks it precipitant to urge a decision in two days on a subject [which] took 4 months. If we have no right to amend, then we ought to give a silent passage, for if we cannot alter, why should we deliberate. His opinion [is that] they should stand solely upon the opinion of [the] Convention. The salus populi much talked of. This Constitution will not remove our difficulties--the great defects a disinclination to pay money. That removed, our great difficulty would be over. No necessity to urge a hasty decision. In 2 or 3 years we should get a good government.

[Journals of Congress, Friday, 28 Sept.]

Congress having received the report of the Convention lately assembled in Philadelphia.

"Resolved unanimously, That the said report with the resolutions and letter accompanying the same be transmitted to the several legislatures in order to be submitted to a convention of delegates chosen in each state by the people thereof in conformity to the resolves of the Convention made and provided in that case."

The Founders' Constitution
Volume 1, Chapter 6, Document 12
The University of Chicago Press

The Documentary History of the Ratification of the Constitution. Edited by Merrill Jensen et al. Madison: State Historical Society of Wisconsin, 1976--.