Journal of the Federal Convention May 28th 1787

[FN1][FN2]From Massts. Nat: Gorham & Caleb Strong. From Connecticut Oliver Elseworth. From Delaware, Gunning Bedford. From Maryland James McHenry. From Penna. B. Franklin, George Clymer, Ths. Mifflin & Jared Ingersol took their seats.

Mr. WYTHE from the Committee for preparing rules made a report which employed the deliberations of this day.

Mr. KING objected to one of the rules in the Report authorising any member to call for the yeas & nays and have them entered on the minutes. He urged that as the acts of the Convention were not to bind the Constituents, it was unnecessary to exhibit this evidence of the votes; and improper as changes of opinion would be frequent in the course of the business & would fill the minutes with contradictions.

Col. MASON seconded the objection; adding that such a record of the opinions of members would be an obstacle to a change of them on conviction; and in case of its being hereafter promulged must furnish handles to the adversaries of the Result of the Meeting. The proposed rule was rejected nem. contradicente. The standing rules [FN3] [FN4] agreed to were as follow: [see the Journal & copy here the printed rules] [FN5] [viz. [FN6]

A House to do business shall consist of the Deputies of not less than seven States; and all questions shall be decided by the greater number of these which shall be fully represented: but a less number than seven may adjourn from day to day. Immediately after the President shall have taken the chair, and the members their seats, the minutes of the preceding day shall be read by the Secretary. Every member, rising to speak, shall address the President; and whilst he shall be speaking, none shall pass between them, or hold discourse with another, or read a book, pamphlet or paper, printed or manuscript-and of two members rising [FN7] at the same time, the President shall name him who shall be first heard. A member shall not speak oftener than twice, without special leave, upon the same question; and not the second time, before every other, who had been silent, shall have been heard, if he choose to speak upon the subject.

A motion made and seconded, shall be repeated, and if written, as it shall be when any member shall so require, read aloud by the Secretary, before it shall be debated; and may be withdrawn at any time, before the vote upon it shall have been declared. Orders of the day shall be read next after the minutes, and either discussed or postponed, before any other business shall be introduced. When a debate shall arise upon a question, no motion, other than to amend the question, to commit it, or to postpone the debate shall be received.] [A question which is complicated, shall, at the request of any member, be divided, and put separately on [FN8] the propositions, of which it is compounded. The determination of a question, altho' fully debated, shall be postponed, if the deputies of any State desire it until the next day. A writing which contains any matter brought on to be considered, shall be read once throughout for information, then by paragraphs to be debated, and again, with the amendments, if any, made on the second reading; and afterwards, the question shall be put on [FN8] the whole, amended, or approved in its original form, as the case shall be. [FN9]

Committees shall be appointed by ballot; and [FN9] the members who have the greatest number of ballots, altho' not a majority of the votes present, shall [FN10] be the Committee- When two or more members have an equal number of votes, the member standing first on the list in the order of taking down the ballots, shall be preferred. A member may be called to order by any other member, as well as by the President; and may be allowed to explain his conduct or expressions supposed to be reprehensible.- And all questions of order shall be decided by the President without appeal or debate. Upon a question to adjourn for the day, which may be made at any time, if it be seconded, the question shall be put without a debate. When the House shall adjourn, every member shall stand in his place, until the President pass him.] [FN11] A letter from sundry persons of the State of Rho. Island addressed to the Honorable [FN12] The Chairman of the General Convention was presented to the Chair by Mr. Govr. MORRIS, and being read, was ordered to lie on the table for further consideration. [For the letter see Note in the Appendix] [FN13]

Mr. BUTLER moved that the House provide agst. interruption of business by absence of members, and against licentious publications of their proceedings-to which was added by-Mr. SPAIGHT-a motion to provide that on the one hand the House might not be precluded by a vote upon any question, from revising the subject matter of it when they see cause, nor, on the other hand, be led too hastily to rescind a decision, which was the result of mature discussion. - Whereupon it was ordered that these motions be referred to [FN14] the consideration of the Committee appointed to draw up the standing rules and that the Committee make report thereon.

FN3 Previous to the arrival of a majority of the States, the rule by which they ought to vote in the Convention had been made a subject of conversation among the members present. It was pressed by Governeur Morris and others from Pennsylvania, that the large States should unite in firmly refusing to the small states an equal vote, as unreasonable, and as enabling the small States to negative every good system of Government, which must in the nature of things, be founded on a violation of that equality. The members from Virginia, conceiving that such an attempt might beget fatal altercations between the large & small States, and that it would be easier to prevail on the latter, in the course of the deliberations, to give up their equality for the sake of an effective Government, than on taking the field of discussion to disarm themselves of the right & thereby throw themselves on the mercy of the large States, discountenanced & stifled the project.

FN4 Madison’s footnote reference mark after the word "rules" is placed in the transcript after the word "him" thus placing the footnote at the end of the rules instead of at the beginning.

FN5 Madison's direction is omitted from the transcript and the work "Rules" is inserted.

FN13 The footnote in the transcript reads as follows: "For the letter, see Appendix No. blank."

George Wythe (VA) submitted the committee report on standing rules.

George Wythe: Born 1726 into a Planter family in Williamsburg, admitted to Bar in 1746. Professor of law at William & Mary. Started serious law practice around 1756. Served as representative in three different constituencies and clerk to the House of Burgesses. Delegate to second Continental Congress. Signed Declaration of Independence. While a judge of chancery he teamed with Jefferson, Mason, Henry and Pendleton to revise and codify VA State Laws. In “Commonwealth v. Caton,” 1782, he found himself dealing with judicial review of legislation. On June 4th, 1787 he left the Convention to be with his dying wife.

(Notice the first thing we Americans did at a Convention to write rules for governing a country was to calmly write (and largely follow) rules for the Convention. In time I came to appreciate the formality of the Convention. When neck veins bulged purple in July, the rules were still followed and helped keep the Convention together. Keeping their oaths, it would be a long time before the proceedings became known.)

Governeur Morris (PA) read aloud a letter from leading merchants in RI, the only State to refuse to send delegates. The letter apologized for their absence, their knuckleheaded legislators, and asked the attending delegates to refrain from abusing their State. Mr. Madison did not record the Convention response.

(The rules closely followed those observed in Congress. Of crucial importance is that of equal State suffrage. Each State could cast one vote at the Convention. The Pennsylvanians were particularly displeased with this arrangement in Congress and wished to be done with it for Convention voting. The VA delegation convinced them to not make a big deal of it at the beginning, so as to not scare off the Small States. See FN3.)

Rufus King (MA) anticipated the emotions that will follow the convention. It would be necessary for members to be insulated from political charges, of changing their minds as resolutions went back and forth, sometimes addressing the same topic several times. He objected to recording of Yeas and Nays in the Journal.

George Mason (VA) seconded the objection. It would furnish a “handle” to opponents. The objection was passed without opposition. Parliamentary Rules for the Convention followed.

Pierce Butler (SC) proposed to keep the proceedings confidential.

(Secrecy in legislative assemblies at the time was common. The Revolutionary State Assemblies, the first Continental Congress were secret of necessity, and Congressional debates were not reported. For centuries, visitors were not allowed in the British House of Commons. There is little doubt the Convention would have dissolved early on if made public. Guards at the doors and a “tail” to help Benjamin Franklin keep his dinner conversation off convention topics certainly helped.)

Mr. Butler also wished to head off a problem ever present under the Articles of Confederation where non attendance in Congress by the States precluded a quorum for conducting business.

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