Friday, September 14 | Debates in the Federal Convention of 1787

by James Madison

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This Day in the Four Act Drama

In Convention. — The Report of the Committee of Style and Arrangement being resumed, —

Mr. WILLIAMSON moved to reconsider, in order to increase the number of Representatives fixed for the first Legislature. His purpose was to make an addition of one half generally to the number allotted to the respective States; and to allow two to the smallest States.

On this motion, — Pennsylvania, Delaware, Maryland, Virginia, North Carolina, aye, — 5; New Hampshire, Massachusetts, Connecticut, New Jersey, South Carolina, Georgia, no, — 6.

Article 1, Section 3, the words “by lot,”1 were struck out, nemcon., on motion of Mr. MADISON, that some rule might prevail in the rotation that would prevent both the members from the same State, from going out at the same time.

Ex officio,” struck out of the same section, as superfluous, nemcon.; and, “or affirmation,” after “oath,” inserted, — also unanimously.

Mr. RUTLEDGE and Mr. GOUVERNEUR MORRIS moved, “that persons impeached be suspended from their offices, until they be tried and acquitted.”

Mr. MADISON. The President is made too dependent already on the Legislature by the power of one branch to try him in consequence of an impeachment by the other. This intermediate suspension will put him in the power of one branch only. They can at any moment, in order to make way for the functions of another who will be more favorable to their views, vote a temporary removal of the existing magistrate.

Mr. KING concurred in the opposition to the amendment.

On the question to agree to it, —

Connecticut, South Carolina, Georgia, aye, — 3; New Hampshire, Massachusetts, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, no, — 8.

Article 1, Section 4, “except as to the places of choosing Senators,” was added, nemcon., to the end of the first clause, in order to exempt the seats of government in the States from the power of Congress

Article 1, Section 5, — “Each House shall keep a journal of its proceedings, and from time to time publish the same, excepting such parts as may in their judgment, require secrecy.”

Colonel MASON and Mr. GERRY moved to insert, after the word “parts,” the words, “of the proceedings of the Senate,” so as to require publication of all the proceedings of the House of Representatives.

It was intimated, on the other side, that cases might arise where secrecy might be necessary in both Houses. Measures preparatory to a declaration of war, in which the House of Representatives was to concur, were instanced.

On the question, it passed in the negative, —

Pennsylvania, Maryland, North Carolina, aye, — 3; New Hampshire, Massachusetts, Connecticut, New Jersey, Delaware, Virginia, Georgia, no, — 7; South Carolina, divided.

Mr. BALDWIN observed, that the clause, Article 1, Section 6, declaring that no member of Congress, “during the time for which he was elected, shall be appointed to any civil office under the authority of the United States which shall have been created, or the emoluments whereof shall have been increased, during such time,” would not extend to offices created by the Constitution; and the salaries of which would be created, not increased, by Congress at their first session. The members of the first Congress consequently might evade the disqualification in this instance. He was neither seconded nor opposed, nor did any thing further pass on the subject.

Article 1, Sect. 8. The Congress “may by joint ballot appointed a Treasurer,” —

Mr. RUTLEDGE moved to strike out this power, and let the Treasurer be appointed in the same manner with other officers.

Mr. GORHAM and Mr. KING said that the motion, if agreed to, would have a mischievous tendency. The people are accustomed and attached to that mode of appointing Treasurers, and the innovation will multiply objections to the system.

Mr. GOUVERNEUR MORRIS remarked, that if the Treasurer be not appointed by the Legislature, he will be more narrowly watched, and more readily impeached.

Mr. SHERMAN. As the two Houses appropriate money, it is best for them to appoint the officer who is to keep it; and to appoint him as they make the appropriation, not by joint, but several votes.

General PINCKNEY. The Treasurer is appointed by joint ballot in South Carolina. The consequence is, that bad appointments are made, and the Legislature will not listen to the faults of their own officer.

On the motion to strike out, —

New Hampshire, Connecticut, New Jersey, Delaware, Maryland, North Carolina, South Carolina, Georgia, aye, — 8; Massachusetts, Pennsylvania, Virginia, no, — 3.

Article 1, Sect. 8, — the words “but all such duties, imposts, and excises, shall be uniform throughout the United States,” were unanimously annexed to the power of taxation.

On the clause, “to define and punish piracies and felonies on the high seas, and punish offences against the law of nations,” —

Mr. GOUVERNEUR MORRIS moved to strike out “punish,” before the words, “offences against the law of nations,” so as to let these be definable, as well as punishable, by virtue of the preceding member of the sentence.

Mr. WILSON hoped the alteration would by no means be made. To pretend to define the law of nations, which depended on the authority of all the civilized nations of the world, would have a look of arrogance that would make us ridiculous.

Mr. GOUVERNEUR MORRIS. The word define is proper when applied to offences in this case; the law of nations being often too vague and deficient to be a rule.

On the question to strike out the word “punish,” it passed in the affirmative, —

New Hampshire, Connecticut, New Jersey, Delaware, North Carolina, South Carolina, aye, — 6; Massachusetts, Pennsylvania, Maryland, Virginia, Georgia, no, — 5.

Doctor FRANKLIN moved2  to add, after the words, “post roads,” Article 1, Sect. 8, a power “to provide for cutting canals where deemed necessary.”

Mr. WILSON seconded the motion.

Mr. SHERMAN objected. The expense in such cases will fall on the United States, and the benefit accrue to the places where the canals may be cut.

Mr. WILSON. Instead of being an expense to the United States, they may be made a source of revenue.

Mr. MADISON suggested an enlargement of the motion, into a power “to grant charters of incorporation where the interest of the United States might require, and the legislative provisions of individual States may be incompetent.” His primary object was, however, to secure an easy communication between the States, which the free intercourse now to be opened seemed to call for. The political obstacles being removed, a removal of the natural ones, as far as possible ought to follow.

Mr. RANDOLPH seconded the proposition.

Mr. KING thought the power unnecessary.

Mr. WILSON. It is necessary to prevent a State from obstructing the general welfare.

Mr. KING. The States will be prejudiced and divided into parties by it. In Philadelphia and New York, it will be referred to the establishment of a bank, which has been a subject of contention in those cities. In other places it will be referred to mercantile monopolies.

Mr. WILSON mentioned the importance of facilitating, by canals the communication with the Western settlements. As to banks, he did not think with Mr. KING, that the power in that point of view would excite the prejudices and parties apprehended. As to mercantile monopolies, they are already included in the power to regulate trade.

Colonel MASON was for limiting the power to the single case of canals. He was afraid of monopolies of every sort, which he did not think were by any means already implied by the Constitution, as supposed by  Mr. WILSON.

The motion being so modified as to admit a distinct question specifying and limited to the case of canals, —

Pennsylvania, Virginia, Georgia, aye, — 3; New Hampshire, Massachusetts, Connecticut, New Jersey, Delaware, Maryland, North Carolina, South Carolina, no, — 8.

The other part fell, of course, as including the power rejected.

Mr. MADISON and Mr. PINCKNEY then moved to insert, in the list of powers vested in Congress, a power “to establish an University, in which no preferences or distinctions should be allowed on account of religion.”

Mr. WILSON supported the motion.

Mr. GOUVERNEUR MORRIS. It is not necessary. The exclusive power at the seat of government will reach the object.

On the question, —

Pennsylvania, Virginia, North Carolina, South Carolina, aye, — 4; New Hampshire, Massachusetts, New Jersey, Delaware, Maryland, Georgia, no, — 6; Connecticut, divided, (Dr. JOHNSON, aye; Mr. SHERMAN, no.)

Colonel MASON, being sensible that an absolute prohibition of standing armies in time of peace might be unsafe, and wishing at the same time to insert something pointing out and guarding against the danger of them, moved to preface the clause (Article 1, Sect. 8), “to provide for organizing, arming, and disciplining the militia,” &c., with the words, “and that the liberties of the people may be better secured against the danger of standing armies in time of peace.”

Mr. RANDOLPH seconded the motion.

Mr. MADISON was in favor of it. It did not restrain Congress from establishing a military force in time of peace, if found necessary; and as armies in time of peace are allowed on all hands to be an evil, it is well to discountenance them by the Constitution, as far as will consist with the essential power of the Government on that head.

Mr. GOUVERNEUR MORRIS opposed the motion, as setting a dishonorable mark of distinction on the military class of citizens.

Mr. PINCKNEY and Mr. BEDFORD concurred in the opposition.

On the question, —

Virginia, Georgia, aye, — 2; New Hampshire, Massachusetts, Connecticut, New Jersey, Pennsylvania, Delaware, Maryland, North Carolina, South Carolina, no, — 9.

Colonel MASON moved to strike out from the clause (Article 1, Sect. 9), “no bill of attainder, nor any ex post facto law, shall be passed,” the words “nor any ex post facto law.” He thought it not sufficiently clear, that the prohibition meant by this phrase was limited to cases of a criminal nature; and no legislature ever did or can altogether avoid them in civil cases.

Mr. GERRY seconded the motion; but with a view to extend the prohibition to “civil cases,” which he thought ought to be done.

On the question, all the States were, no.

Mr. PINCKNEY and Mr. GERRY, moved to insert a declaration, “that the liberty of the press should be inviolably observed.”

Mr. SHERMAN. It is unnecessary. The power of Congress does not extend to the press.

On the question, it passed in the negative

On the question, it passed in the negative, —

Massachusetts, Maryland, Virginia, South Carolina, aye, — 4; New Hampshire3 , Connecticut, New Jersey, Pennsylvania, Delaware, North Carolina, Georgia, no, — 7.

Article 1, Section 9. “No capitation tax shall be laid unless,” &c.

Mr. READ moved to insert, after “capitation,” the words, “or other direct tax.” He was afraid that some liberty might otherwise be taken to saddle the States with a readjustment, by this rule, of past requisitions of Congress; and that his amendment, by giving another cast to the meaning, would take away the pretext.

Mr. WILLIAMSON seconded the motion, which was agreed to.

On motion of Colonel MASON, the words, “or enumeration,” were inserted after, as explanatory of “census,” — Connecticut and South Carolina, only, no.

At the end of the clause, “no tax or duty shall be laid on articles exported from any State,” was added the following amendment, conformably to a vote on the 31st of August, viz: “no preference shall be given, by any regulation of commerce or revenue, to the ports of one State over those of another; nor shall vessels bound to or from one State be obliged to enter, clear, or pay duties, in another.”

Colonel MASON moved a clause requiring, “that an account of the public expenditures should be annually published.”

Mr. GERRY seconded the motion.

Mr. GOUVERNEUR MORRIS urged that this would be impossible, in many cases.

Mr. KING remarked, that the term expenditures went to every minute shilling. This would be impracticable. Congress might indeed make a monthly publication, but it would be in such general statements as would afford no satisfactory information.

Mr. MADISON proposed to strike out “annually” from the motion, and insert “from time to time,” which would enjoin the duty of frequent publications, and leave enough to the discretion of the Legislature. Require too much and the difficulty will beget a habit of doing nothing. The articles of Confederation require half-yearly publications on this subject. A punctual compliance being often impossible, the practice has ceased altogether.

Mr. WILSON seconded and supported the motion. Many operations of finance cannot be properly published at certain times.

Mr. PINCKNEY was in favor of the motion.

Mr. FITZSIMONS. It is absolutely impossible to publish expenditures in the full extent of the term.

Mr. SHERMAN thought “from time to time,” the best rule to be given. “Annually” was struck out, and those words inserted, nemcon.

The motion of Colonel MASON, so amended, was then agreed to, nem. con., and added after “appropriations by law,” as follows: “and a regular statement and account of the receipts and expenditures of all public money shall be published from time to time.”

The first clause of Article 1, Sect. 10, was altered so as to read, “no State shall enter into any treaty, alliance, or confederation; grant letters of marque and reprisal; coin money; emit bills of credit; make any thing but gold and silver coin a tender in payment of debts; pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts, or grant any title of nobility.”

Mr. GERRY entered into observations inculcating the importance of public faith, and the propriety of the restraint put on the States from impairing the obligation of contracts; alleging that Congress ought to be laid under the like prohibitions. He made a motion to that effect. He was not seconded.


1 “By lot” had been reinstated from the Report of  the Committee of five made on Aug. 6. as a correction of the printed report by the Committee of Style & c.

2 This motion by Dr. Franklin not stated in the printed Journal, as are some other motions.

3 In the printed Journal, New Hampshire, aye.

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