Journal of the Federal Convention September 5th 1787

Marque & Reprisal. Standing Armies. Seat of Government. Forts, Magazines, . . . Copyrights. Representation in first Congress. Presidential Elections. Four or Seven Year Terms. Aristocracy.

(1) To add to the clause "to declare war" the words "and grant letters of marque and reprisal"

(2) To add to the clause "to raise and support armies" the words "but no appropriation of money to that use shall be for a longer term than two years"

(3) Instead of sect: 12. art 6. say-"All bills for raising revenue shall originate in the House of Representatives, and shall be subject to alterations and amendments by the Senate: no money shall be drawn from the Treasury, but in consequence of appropriations made by law."

(4) Immediately before the last clause of sect. 1. art. 7. insert "To exercise exclusive legislation in all cases whatsoever over such district (not exceeding ten miles square) as may by Cession of particular States and the acceptance of the Legislature become the seat of the Government of the U. S. and to exercise like authority over all places purchased for the erection of Forts, Magazines, Arsenals, Dock-Yards, and other needful buildings"

(5) "To promote the progress of Science and [FN2] useful arts by securing for limited times to authors & inventors, the exclusive right to their respective writings and discoveries"

To the (2) clause Mr. GERRY objected that it admitted of appropriations to an army, for two years instead of one, for which he could not conceive a reason. that it implied that [FN3] there was to be a standing army which he inveighed against as dangerous to liberty, as unnecessary even for so great an extent of Country as this, and if necessary, some restriction on the number & duration ought to be provided: Nor was this a proper time for such an innovation. The people would not bear it.

Mr. SHERMAN remarked that the appropriations were permitted only, not required to be for two years. As the Legislature is to be biennially elected, it would be inconvenient to require appropriations to be for one year, as there might be no Session within the time necessary to renew them. He should himself he said like a reasonable restriction on the number and continuance of an army in time of peace.

The (3) clause, Mr. Govr. MORRIS moved to postpone. It had been agreed to in the Committee on the ground of compromise, and he should feel himself at liberty to dissent to [FN5] it, if on the whole he should not be satisfied with certain other parts to be settled.

Mr. SHERMAN was for giving immediate ease to those who looked on this clause as of great moment, and for trusting to their concurrence in other proper measures.

N. H. ay. Mas. no. Ct. ay. N. J. ay. Pa. ay. Del. ay. Md. ay. Va. no. N. C. ay. S. C. ay. Geo. ay. [FN6]

So much of the (4) clause as related to the seat of Government was agreed to nem: con:

On the residue, to wit, "to exercise like authority over all places purchased for forts &c.

Mr. GERRY contended that this power might be made use of to enslave any particular State by buying up its territory, and that the strongholds proposed would be a means of awing the State into an undue obedience to the Genl. Government.

Mr. KING thought himself the provision unnecessary, the power being already involved: but would move to insert after the word "purchased" the words "by the consent of the Legislature of the State" This would certainly make the power safe.

Mr. Govr. MORRIS 2ded. the motion, which was agreed to nem: con: as was then the residue of the clause as amended.

The following resolution & order being reported from the Committee of eleven, to wit,

"Resolved that the U. S. in Congress be requested to allow and cause to be paid to the Secretary and other officers of this Convention such sums in proportion to their respective times of service, as are allowed to the Secretary & similar officers of Congress."

"Ordered that the Secretary make out & transmit to the Treasury office of the U. S. an account for the said Services, & for the incidental expenses of this Convention"

Mr. GERRY gave notice that he should move to reconsider articles XIX. XX. XXI. XXII.

Mr. WILLIAMSON gave like notice as to the Article fixing the number of Representatives, which he thought too small. He wished also to allow Rho: Island more than one, as due to her probable number of people, and as proper to stifle any pretext arising from her absence on the occasion.

The Report made yesterday as to the appointment of the Executive being [FN7] taken up.

Mr. PINKNEY renewed his opposition to the mode, arguing 1. [FN8] that the electors will not have sufficient knowledge of the fittest men, & will be swayed by an attachment to the eminent men of their respective States. Hence 2dly. the dispersion of the votes would leave the appointment with the Senate, and as the President's reappointment will thus depend on the Senate he will be the mere creature of that body. 3. [FN8] He will combine with the Senate agst. the House of Representatives. 4. [FN8] This change in the mode of election was meant to get rid of the ineligibility of the President a second time, whereby he will become fixed for life under the auspices of the Senate.

Mr. GERRY did not object to this plan of constituting the Executive in itself, but should be governed in his final vote by the powers that may be given to the President.

Mr. RUTLIDGE was much opposed to the plan reported by the Committee. It would throw the whole power into the Senate. He was also against a re-eligibility. He moved to postpone the Report under consideration & take up the original plan of appointment by the Legislature, to wit. "He shall be elected by joint ballot by the Legislature to which election a majority of the votes of the members present shall be required: He shall hold his office during the term of seven years; but shall not be elected a second time."

N. H. divd. Mas. no. Ct. no. N. J. no. Pa. no. Del. no. Md. no. Va. no. N. C. ay. S. C. ay. Geo. no. [FN9]

Col. MASON admitted that there were objections to an appointment by the Legislature as originally planned. He had not yet made up his mind, but would state his objections to the mode proposed by the Committee. 1. [FN10] It puts the appointment in fact into the hands of the Senate, as it will rarely happen that a majority of the whole votes will fall on any one candidate: and as the Existing President will always be one of the 5 highest, his reappointment will of course depend on the Senate. 2. [FN10] Considering the powers of the President & those of the Senate, if a coalition should be established between these two branches, they will be able to subvert the Constitution-The great objection with him would be removed by depriving the Senate of the eventual election. He accordingly moved to strike out the words "if such number be a majority of that of the electors."

Mr. WILLIAMSON 2ded. the motion. He could not agree to the clause without some such modification. He preferred making the highest tho' not having a majority of the votes, President, to a reference of the matter to the Senate. Referring the appointment to the Senate lays a certain foundation for corruption & aristocracy.

Mr. Govr. MORRIS thought the point of less consequence than it was supposed on both sides. It is probable that a majority of votes will fall on the same man. As each elector is to give two votes, more than 1/4 will give a majority. Besides as one vote is to be given to a man out of the State, and as this vote will not be thrown away, 1/2 the votes will fall on characters eminent & generally known. Again if the President shall have given satisfaction, the votes will turn on him of course, and a majority of them will reappoint him, without resort to the Senate: If he should be disliked, all disliking him, would take care to unite their votes so as to ensure his being supplanted.

Col. MASON those who think there is no danger of there not being a majority for the same person in the first instance, ought to give up the point to those who think otherwise.

Mr. SHERMAN reminded the opponents of the new mode proposed that if the small states had the advantage in the Senate's deciding among the five highest candidates, the large States would have in fact the nomination of these candidates

N. H. no. Mas. no. Ct. no. N. J. no. Pa. no. Del. no. Md. ay. [FN11] Va. no. N. C. ay. S. C. no. Geo. no. [FN12]

Mr. MADISON considered it as [FN13] a primary object to render an eventual resort to any part of the Legislature improbable. He was apprehensive that the proposed alteration would turn the attention of the large States too much to the appointment of candidates, instead of aiming at an effectual appointment of the officer, as the large States would predominate in the Legislature which would have the final choice out of the Candidates. Whereas if the Senate in which the small States predominate should have this [FN14] final choice, the concerted effort of the large States would be to make the appointment in the first instance conclusive.

Mr. RANDOLPH. We have in some revolutions of this plan made a bold stroke for Monarchy. We are now doing the same for an aristocracy. He dwelt on the tendency of such an influence in the Senate over the election of the President in addition to its other powers, to convert that body into a real & dangerous Aristocracy.

Mr. DICKINSON was in favor of giving the eventual election to the Legislature, instead of the Senate. It was too much influence to be superadded to that body.

N. H. divd. Mas. no. Ct. no. N. J. no. Pa. ay. Del. no. Md. no. Va. ay. N. C. no. S. C. ay. Geo. no. [FN15]

Mr. MADISON & Mr. WILLIAMSON moved to strike out the word "majority" and insert "one third" so that the eventual power might not be exercised if less than a majority, but not less than 1/3 of the Electors should vote for the same person.

Mr. GERRY objected that this would put it in the power of three or four States to put in whom they pleased.

Mr. WILLIAMSON. There are seven States which do not contain one third of the people. If the Senate are to appoint, less than one sixth of the people will have the power.

On the question N. H. no. Mas. no. Ct. no. N. J. no. Pa. no. Del. no. Md. no. Va. ay. N. C. ay. S. C. no. Geo. no. [FN16]

Mr. GERRY suggested that the eventual election should be made by six Senators and seven Representatives chosen by joint ballot of both Houses.

Mr. KING observed that the influence of the Small States in the Senate was somewhat balanced by the influence of the large States in bringing forward the candidates; [FN17] and also by the Concurrence of the small States in the Committee in the clause vesting the exclusive origination of Money bills in the House of Representatives.

Col: MASON moved to strike out the word "five" and insert the word "three" as the highest candidates for the Senate to choose out of. Mr. GERRY 2ded. the motion

On the question moved by Col: Mason & Mr. Gerry N. H. no. Mas. no. Ct. no. N. J. no. Pa. no. Delaware Md. no. Va. ay. N. C. ay. S. C. no. Geo. no. [FN19]

Mr. SPAIGHT and Mr. RUTLIDGE moved to strike out "five" and insert "thirteen"- to which all the States disagreed-except N. C. & S. C.

Mr. MADISON & Mr. WILLIAMSON moved to insert after "Electors" the words "who shall have balloted" so that the non voting electors not being counted might not increase the number necessary as a majority of the whole, to decide the choice without the agency of the Senate.

On this question N. H. no. Mas. no. Ct. no. N. J. no. Pa. ay. Del. no. Md. ay. Va. ay. N. C. ay. S. C. no. Geo. no. [FN20]

Mr. DICKINSON moved, in order to remove ambiguity from the intention of the clause as explained by the vote, to add, after the words "if such number be a majority of the whole number of the electors" the word "appointed"

On this motion N. H. ay. Mas. ay. Con: ay. N. J. ay. Pa. ay. Delaware Md. ay. Va. no. N. C. no. S. C. ay. Geo. ay. [FN21]

Col: MASON. As the mode of appointment is now regulated, he could not forbear expressing his opinion that it is utterly inadmissible. He would prefer the Government of Prussia to one which will put all power into the hands of seven or eight men, and fix an Aristocracy worse than absolute monarchy. The words "and of their giving their votes" being inserted on motion for that purpose, after the words "The Legislature may determine the time of chusing and assembling the electors."

FN5 The word "to" is crossed out in the transcript and "from" is written above it.

FN6 In the transcript the vote reads: "New Hampshire, Connecticut, New Jersey, Pennsylvania, Delaware, Maryland, North Carolina, South Carolina, Georgia, aye- 9; Massachusetts, Virginia, no-2."

FN8 The figures "1," "3" and "4" are changed to "first," "Thirdly" and "Fourthly" in the transcript.

FN9 In the transcript the vote reads: "North Carolina, South Carolina, aye-2; Massachusetts, Connecticut, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, Georginia, no-8; New Hampshire, divided."

FN10 The figures "1" and "2" are changed in the transcript to "First" and "Secondly."

FN12 In the transcript the vote reads: "Mayrland, [FN11] North Carolina, aye; the other nine States, no."

FN15 In the transcript the vote reads: "Pennsylvania, Virginia, South Carolina, aye-3; Massachusetts, Connecticut, New Jersey, Delaware, Maryland, North Carolina, Georgia, no-7; New Hampshire, divided."

FN16 In the transcript the vote reads: "Virginia, North Carolina, aye; the other nine States, no."

FN17 This explains the compromise mentioned above [FN18] by Mr. Govr. Morris. Col. Masson Mr. Gerry & other members from large States set great value on this privilege of originating money bills. Of this the members from the small States, with some from the large States who wished a high mounted Govt endeavored to avail themselves, by making that privilege, the price of arrangements in the constitution favorable to the small States, and to the elevation of the Government.

FN18 The words "alluded to" are substituted in the transcript for "mentioned above."

FN19 In the transcript the vote reads: "Virginia, North Carolina, aye; nine States, no."

FN20 In the transcript the vote reads: "Pennsylvania, Maryland, Virginia, North Carolina, aye-4; New Hampshire, Massachusetts, Connecticut, New Jersey, Delaware, South Carolina, Georgia, no-7."

FN21 In the transcript the vote reads: "New Hampshire, Massachusetts, Connecticut, New Jersey, Pennsylvania, Delaware, Maryland, South Carolina, Georiga, aye-9; uVirginia, North Carolina, no-2."

David Brearly submitted more from the Committee of Eleven.

The First Clause, which added letters of marque and reprisal to the existing power to declare war, (Article VII) was approved without opposition.

The Second Clause: “To add to the clause "to raise and support armies," (Article VII) the words "but no appropriation of money to that use shall be for a longer term than two years."

Elbridge Gerry was all over this one. (Previous debate nixed standing armies) Why two year appropriations? Did this not imply standing forces? The people would not allow this.

Roger Sherman also supported limitations on peacetime armies, but saw no danger. Congress lasted for two years, would not always be in session and was not required, but only allowed to make two year appropriations.

The Second Clause passed without opposition.

Governeur Morris motioned and Charles Pinckney seconded to postpone the Third Clause, “Instead of Article VI, Section 12, say-"All bills for raising revenue shall originate in the House of Representatives, and shall be subject to alterations and amendments by the Senate: no money shall be drawn from the Treasury, but in consequence of appropriations made by law." Mr. Morris wished to see how other clauses were voted on prior.

Mr. Morris’ motion to postpone passed 9-2.

(Roger Sherman made reference to, I believe, the compromise over equal State representation in the Senate. In so many words, he told the Small States to not screw up the origination of money bills in the House.)

The Fourth Clause; Immediately before the last clause of Article VII Section 1, insert "To exercise exclusive legislation in all cases whatsoever over such district (not exceeding ten miles square) as may by Cession of particular States and the acceptance of the Legislature become the seat of the Government of the U. S. and to exercise like authority over all places purchased for the erection of Forts, Magazines, Arsenals, Dock-Yards, and other needful buildings"

The first portion relating to the seat of government was agreed to without opposition.

On the remainder of the clause regarding forts . . .

Elbridge Gerry worried of abuse. Unlimited power to buy property could be used to enslave any State. What of the intimidation factor of federal forts?

Rufus King motioned, and Governeur Morris seconded to require State Legislature consent to buy the property to build forts, magazines . . . this would render the clause safe.

The amended clause passed without opposition.

The Fifth Clause, "To promote the progress of Science and [FN2] useful arts by securing for limited times to authors & inventors, the exclusive right to their respective writings and discoveries," passed without opposition.

Elbridge Gerry gave notice he will motion to reconsider Articles XIX to XXII.

Hugh Williamson also gave notice to revisit the apportionment clause of the first Constitutional Congress, including the addition of another rep to RI, so as to squelch any suspicions attributable to her absence.

Election of the President, as per the report submitted yesterday by the Committee of Eleven was renewed.

(In short, State Legislatures would vote by the sum of their Congressional delegation. Absent a majority victor, the Senate would elect the President from the five highest vote getters. The number two man would become Vice President.)

Charles Pinckney renewed his opposition to the mode of election, which would surely end up in the Senate almost every time. Thus, the President would be but a tool of that body. Together they would conspire against the House and ensure his repeated reelection.

Elbridge Gerry would reserve judgment as this mode of election until Executive powers were determined.

John Rutlidge opposed both Senatorial election and re-eligibility. He motioned to reconsider Executive election as recommended by the Committee of Detail in early August and postpone debate on the current clause. "He shall be elected by joint ballot by the Legislature to which election a majority of the votes of the members present shall be required: He shall hold his office during the term of seven years; but shall not be elected a second time."

The motion failed 8-2-1.

George Mason mostly repeated the warnings of Mr. Pinckney. The election would end up in the Senate; a sitting President would almost certainly be reelected and given the resulting closeness of the Senate & President, together they could subvert the Constitution. His fears would be largely relieved if, "if such number be a majority of that of the electors" was struck. This would keep Presidential elections out of the Senate. He motioned, and Hugh Williamson seconded.

Hugh Williamson also forecast corruption if left to the Senate.

Governeur Morris, a member of the reporting committee did some math to sort of show how the Senate would likely be kept out.

George Mason said if there was no danger of no majority in the first case, why not give the point to those who think otherwise?

Roger Sherman brought up the Large/Small State divide. While the Small would have the advantage in a Senate Election, the Large had the advantage in nominee selection.

Mr. Mason’s motion to strike, "if such number be a majority of that of the electors,” failed 10-1.

James Wilson motioned to replace “Senate” with “Legislature.”

James Madison preferred to remove Presidential elections from the Congress entirely.

Governor Edmund Randolph feared, as the plan was developing, an eventual monarchy and effective and dangerous aristocracy in the Senate.

John Dickinson favored Congressional election over Senatorial election.

Mr. Wilson’s motion failed 7-3-1.

James Madison and Hugh Williamson motioned to replace “majority” with “one third.” It would keep nearly all elections out of the Senate.

Elbridge Gerry noted it would allow just three or four States to determine the election.

The motion of Mr. Madison and Mr. Williamson failed 9-2.

Elbridge Gerry motioned six Senators and seven Congressmen be selected by joint ballot to elect the President.

Rufus King said the obvious; Large States had the upper hand in candidate selection while Small States could dominate the election.

George Mason motioned and Elbridge Gerry seconded, the list of candidates be limited to the highest three rather than five.

Roger Sherman (Probably reflected frustration with the slow and wandering process) threatened to walk or give up the plan. He preferred seven to thirteen candidates.

Mr. Mason’s motion failed 9-2.

Richard Spaight (NC) and John Rutlidge motioned thirteen candidates.

Likewise, the motion of Mr. Spaight failed 9-2 as well.

George Mason let lose a blast. He “would prefer the Government of Prussia,” as opposed to the Aristocratic one developing.

(This may be the moment George Mason turned to opposing the Constitution. He would be second only to Patrick Henry in bluster against it at the Virginia Ratifying Convention.)

Adjourned.

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