Skip to comments.Journal of the Federal Convention August 31st 1787
Posted on 08/31/2011 2:17:46 AM PDT by Jacquerie
Articles XXI-XXIII. How Many States to Form a Government? Popular or State Government Ratification. Congressional Endorsement. Implement a Government. Section 4 Article VII. No Interstate Duties.
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. [FN2]
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 both of the States and [FN3] 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. [FN4]
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. Mc.HENRY 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 Massachussets 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 [FN5] & [FN6] take up art: XXII [FN5] 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. [FN7]
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. [FN8]
On [FN9] 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. [FN10]
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. [FN11]
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 [FN12]
Art: XXI. as amended was then agreed to by all the States, Maryland excepted, & Mr. Jenifer being, ay.
Art: XXII [FN32] [FN13] 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. [FN14] Pa. ay. Del. ay. Md. no Va. ay. N. C. ay. S. C. ay. Geo. no. [FN15]
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 distroying the existing Confederation, without the unanimous consent of the parties to it.
[FN16]Question on Mr. Govr. Morris's & Mr. Pinkney'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. [FN17]
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 [FN18] 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. [FN19]
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. [FN20]
Art: XXIII [FN21] being taken up, as far as 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 postponement 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. [FN22]
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. [FN23] Geo. ay. [FN24] Art: XXIII as amended was then agreed to nem: con:
The Report of the Grand Committee of eleven made by Mr. SHERMAN was then taken up (see Aug: 28). [FN25]
On the question to agree to the following clause, to be inserted after Sect. 4. art: VII. "nor shall any regulation of commerce or revenue give preference to the ports of one State over those of another." Agreed to nem: con:
On the clause "or oblige vessels bound to or from any State to enter clear or pay duties in another"
Mr. MADISON thought the restriction wd. be inconvenient, as in the River Delaware, if a vessel cannot be required to make entry below the jurisdiction of Pennsylvania.
Mr. FITZIMMONS admitted that it might be inconvenient, but thought it would be a greater inconveniency [FN26] to require vessels bound to Philada. to enter below the jurisdiction of the State.
Mr. GORHAM & Mr. LANGDON, contended that the Govt. would be so fettered by this clause, as to defeat the good purpose of the plan. They mentioned the situation of the trade of Mas. & N. Hampshire, the case of Sandy Hook which is in the State of N. Jersey, but where precautions agst. smuggling into N. York, ought to be established by the Genl. Government.
Mr. Mc.HENRY said the clause would not shreeen a vessel from being obliged to take an officer on board as a security for due entry &c.
Mr. CARROL was anxious that the clause should be agreed to. He assured the House, that this was a tender point in Maryland.
Mr. JENNIFER urged the necessity of the clause in the same point of view.
On the question for agreeing to it, N. H. no. Ct. ay. N. J. ay. Pa. ay. Del. ay. Md. ay. Va. ay. N. C. ay. S. C. no. Geo. ay. [FN27] The word "tonnage" was struck out, nem: con: as comprehended in "duties."
On [FN28] question on the clause of the Report "and all duties, imposts & excises, laid by the Legislature shall be uniform throughout the U. S." It was agreed to nem: con: [FN29]
On motion of Mr. SHERMAN it was agreed to refer such parts of the Constitution as have been postponed, and such parts of Reports as have not been acted on, to a Committee of a member from each State; the Committee appointed by ballot, being-Mr. Gilman, Mr. King, Mr. Sherman, Mr. Brearly, Mr. Govr. Morris, Mr. Dickinson, Mr. Carrol, Mr. Madison, Mr. Williamson, Mr. Butler & Mr. Baldwin.
[The House [FN31] adjourned]
FN1 The year "1787" is omitted in the transcript.
FN2 In place of the vote by State the transcript reads: "nine States voted in the affirmative; Maryland, no; Delware, absent."
FN3 The word "the" is here in the transcript.
FN4 In the transcript the vote reads: "New hampshire, Pennsylvania, Delaware, Maryland, Georgia, aye-5; Massachusetts, New Jersey, Virginia, North Carolina, South Carolina, no-5; Connecticut, divided."
FN5 See [FNante].
FN6 The word "to" is here inserted in the transcript.
FN7 In the transcript the vote reads: "Connecticut, Pennsylvania, Delaware, Maryland, Virginia, aye-5; New Hampshire, Massachusetts, New Jersey, North Carolina, South Carolina, Georgia, no-6."
FN8 In the transcript the vote reads: "Connecticut, Pennsylvania, Maryland, Geogia, aye-4; New Hampshire, Massachusetts, New Jersey, Delaware, Virginia, South Carolina, no-6."
FN9 The words "the question for" are here inserted in the transcript.
FN10 In the transcript the vote reads: "all the States were no, except Maryland."
FN11 In the transcript the vote reads: Connecticut, New Jersey, Maryland, Geirgia, aye-4; New Hampshire, Massachusetts Pennsylvania, Delaware, Virginia, North Carolina, South Carolina, no-7."
FN12 In the transcript the vote reads: "New Hampshire, Massachusetts, Connecticut, Mew Jersey, Pennsylvania, Delaware, Maryland, Georgia, aye-8; Virginia, Morth Carolina, South Carolina, no-3."
FN13 The words "was then" are here inserted in the transcript.
FN14 In the printed Journal N. Jersey-no.
FN15 In the transcript the vote reads: "New Hampshire, Connecticut, New Jerey, [FN*] Pennsylvania, Delaware, Virginia, North Carolina, South Carolina, aye-8; Massachusetts, Maryland, Georgia, no-3",
FN16 The nwords "On the" are here inserted in the transcript.
FN17 In the transcript the vote reads: New Hampshire, Massachusetts, Pennsylvania, Delaware, aye-4; Counecticut, New Jersey, Maryland, Virginia, North Carolina, Georgia, no-7."
FN18 The word "may" is substituted in the transcript for "shall."
FN19 In the transcript the vote reads: "New Jersey, Maryland, North Carolina, Georgia, no-8."
FN20 In the transcript the vote reads: ten States aye; Maryland no."
FN21 See ante.
FN22 In the transcript the vote reads: "Massachusetts, Delaware, Virginia, North Carolina, Georgia, no-. 7"
FN23 In printed Journal-S.C.-no.
FN24 In the transcript the vote read: "Massachusetts, Connecticut, New Jersey, Pennsulvania, Delaware, Virginia, North Carolina, South Carolina, [FN*] Georgia, aye-9; New Hampshire, no; Maryland, divided."
FN25 In the transcript this date reads "the twenty-eighth of August."
FN26 The word "inconveniency'h is changed to "inconvenience" in the transcript.
FN27 In the transcript the vote reads: "Connecticut, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina,aye-8; New Hampshire, South Carolina, no-8."
FN28 The word "the" is here inserted in the transcript.
FN29 In printed Journal N.H. and S.C. ENTERED AS [FN84] in the negative.
FN30 The word "as" is omitted in the transcript.
FN31 The words "The House" are omitted in the transcript.
FN32 see ante.
Rufus King motioned to add, "between the said States, to remove any doubt the Constitution would apply strictly to those that ratified it.
Mr. Kings motion passed 9-1.
James Madison proposed at least seven states whose representation in Congress would total at least thirty three members.
Roger Sherman questioned the decency of less than unanimous State approval.
George Clymer (PA) and Daniel Carroll (MD) motioned to postpone consideration of Article XXI in order to consider tabled committee reports. The motion failed on a equal vote.
Governeur Morris moved to strike out "Conventions of the" after "ratifications," so as to read, The ratifications of ----- States shall be sufficient for organizing this Constitution between the said States. It would leave the method of ratification up to the States.
Daniel Carroll (MD) said the mode ratification in his State would be by the method in their constitution and by no other.
Rufus King viewed leaving ratification to State Legislatures as equivalent to rejection.
Governeur Morris believed his motion would actually promote ratification by not contravening established State modes.
James Madison viewed popular conventions as the only acceptable method of ratification. First principles demand that a government that will act on individual citizens must be approved by them. The States were to lose powers and would certainly be expected to generally oppose the new plan.
James McHenry (MD) stated that State officers were under oath to support the mode of alteration as per their Constitution.
Nathaniel Gorham (MA) urged popular Conventions as apparently did Mr. Pinckney.
Luther Martin also noted the peculiarity of the MD Constitution and insisted on including State Legislatures. He warned of civil unrest if the people were involved in ratification. As for MD it would not really matter, as he predicted widespread opposition to the plan. (MD was the last State to ratify the Articles of Confederation, more than four years after submission. It was a lesson learned and not to be repeated in the months, not years spent to ratify the Constitution.)
Rufus King did not see a problem in MA on recurrence to first principles.
Roger Sherman motioned to postpone a vote on Article XXI in order to consider Article XXII. His motion failed 6-5.
Governeur Morris motion to strike out "Conventions of the," failed 6-4.
On Mr. Carroll & Mr. Martins motion to require unanimous State ratification, it failed with only MD in support.
Roger Sherman & Jonathan Dayton (NJ) motioned to fill the blank with ten.
James Wilson (MA) and George Clymer (PA) supported Mr. Madisons amendment that required a majority of both States and the people.
George Mason believed the people would support a nine State requirement. Most decisions before the Confederate Congress were made on that basis.
Ten States for ratification failed, 7-4.
And finally, nine passed 8-3.
Article XXI as amended, passed 10-1.
Article XXII was next. 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, in each State [FN12] under the recommendation of its legislature, in order to receive the ratification of such Convention.
Governeur Morris (PA) and Charles Pinckney (SC) motioned to strike the words "for their approbation," which passed 7-4.
Mr. Morris and Mr. Pinckney then motioned to reword Article XXII 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."
Governeur Morris explained how, absent his stronger wording, State Officers would defeat the plan by intriguing against it.
Luther Martin agreed, but for a different reason; that being that the people would turn against the plan as they came to know it. They would only ratify if hurried into it.
Elbridge Gerry supported the recent themes of Mr. Martin. He thought the plan full of vices and vehemently opposed less than unanimous State ratification.
Mr. Morris and Mr. Pinckneys rewrite of Article XXII failed to pass, 7-4.
Elbridge Gerry motioned, and George Mason seconded to postpone Article XXII.
Mr. Mason, one of the Randolph/Virginia Plan authors, was angry. He now opposed the evolved plan, would rather cut off his right hand than sign the Constitution. Should his points not be properly addressed he would support another Convention. (Mr. Mason would not only not sign the Constitution, he was second only to Patrick Henry in opposition at the VA Ratifying Convention.)
Governeur Morris sarcastically agreed with Mr. Mason in calling for another convention, one that would design a government commensurate with its objects.
Edmund Randolph also implied he had misgivings, that if necessary, the State Conventions should be at liberty to offer amendments at another Convention.
The question to postpone the XXII Article failed 8-3.
On the question of Article XXII as amended, it passed 10-1, to wit:
The ratifications of the Conventions of nine States shall be sufficient for organizing this Constitution between the said States.
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."
Article XXIII up to, assigned by Congress passed without opposition. Nine, of course filled the blank.
It was moved and seconded to postpone the remainder, dealing with the President, which failed 7-4.
Governeur Morris motioned to remove the clause referring to the President. It passed 8-2-1.
The amended Article XXIII passed without opposition.
The Grand Committee (Ports & Trade) report was taken up,
"Nor shall any regulation of commerce or revenue give preference to the ports of one State over those of another, or oblige vessels bound to or from any State to enter, clear or pay duties in another and all tonnage, duties, imposts & excises laid by the Legislature shall be uniform throughout the U. S."
The first clause, "nor shall any regulation of commerce or revenue give preference to the ports of one State over those of another, was added to the 4th Section of Article VII without opposition.
Discussion followed on the next clause, "or oblige vessels bound to or from any State to enter clear or pay duties in another."
(I did not entirely follow the pro/con arguments by several delegates that followed. Mention was made of the Delaware River, Philadelphia, Sandy Hook, NJ, and smuggling.)
The motion passed 8-2.
Tonnage was dropped, and the last clause, "all duties, imposts & excises, laid by the Legislature shall be uniform throughout the U. S, passed without opposition.
Roger Sherman motioned to form a committee to review postponed parts of the Constitution, and tabled or unconsidered portions of committee reports. It was approved, and Mr. Gilman, Mr. King, Mr. Sherman, Mr. Brearly, Mr. Govr. Morris, Mr. Dickinson, Mr. Carrol, Mr. Madison, Mr. Williamson, Mr. Butler & Mr. Baldwin were assigned.
The people, through representatives chosen for the task were to ratify or reject the new Constitution. It is no big deal to us today, but there was some consternation over it in 1787. Luther Martin, Attorney General for MD opposed it on the basis of the MD Constitution as well as the civil turmoil he expected it to cause.
No doubt, the ratifying conventions would be raucous affairs compared to the ratification process of the Articles of Confederation which were handled by the State legislatures. The difference was the Articles acted on the States and formed a league or series of treaties between one state and every other; legislative approval was appropriate.
Since the Constitution would act on the people directly, our Framers determined the people should approve it. "We the People" was perhaps the second shot heard 'round the world as despots and Kings realized a western country chose to base its government on the consent of the governed.
Madison showing his typical disdain for the states.
Madison showing his respect for the people.
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