Journal of the Federal Convention September 12th 1787

Committee of Style Report. Constitution. Cover Ltr to Congress. Three Fourths Override. Jury Trials. Bill of Rights. Export Taxes. Judicial Review.

Docr. JOHNSON from the Committee of stile &c. reported a digest of the plan, of which printed copies were ordered to be furnished to the members. He also reported a letter to accompany the plan, to Congress.

WE, THE PEOPLE OF THE UNITED STATES, IN ORDER TO FORM a more perfect union, to establish justice, insure domestic tranquility, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.

(Click here for the Constitution as submitted by the Committee of Style. Scroll down about halfway.)

We have now the honor to submit to the consideration of the United States in Congress assembled, that Constitution which as appeared to us the most adviseable.

The friends of our country have long seen and desired, that the power of making war, peace and treaties, that of levying money and regulating commerce, and the correspondent executive and judicial authorities should be fully and effectually vested in the general government of the Union: but the impropriety of delegating such extensive trust to one body of men is evident-Hence [FN16] results the necessity of a different organization.

It is obviously impracticable in the foederal government of these States to secure all rights of independent sovereignty to each, and yet provide for the interest and safety of all-Individuals entering into society must give up a share of liberty to preserve the rest. The magnitude of the sacrifice must depend as well on situation and circumstance, as on the object to be obtained. It is at all times difficult to draw with precision the line between those rights which must be surrendered, and those which may be reserved; and on the present occasion this difficulty was encreased by a difference among the several States as to their situation, extent, habits, and particular interests.

In all our deliberations on this subject we kept steadily in our view, that which appears [FN17] to us the greatest interest of every true American, the consolidation of our union, in which is involved our prosperity, felicity, safety, perhaps our national existence. This important consideration, seriously and deeply impressed on our minds, led each State in the Convention to be less rigid on [FN18] points of inferior magnitude, than might have been otherwise expected; and thus the Constitution, which we now present, is the result of a spirit of amity, and of that mutual deference and concession which the peculiarity of our political situation rendered indispensible.

That it will meet the full and entire approbation of every State is not perhaps to be expected; but each will doubtless consider, that had her interest alone been consulted, the consequences might have been particularly disagreeable or [FN19] injurious to others; that it is liable to as few exceptions as could reasonably have been expected, we hope and believe; that it may promote the lasting welfare of that country so dear to us all, and secure her freedom and happiness, is our most ardent wish.

Mr. WILLIAMSON moved to reconsider the clause requiring three fourths of each House to overrule the negative of the President, in order to strike out 3/4 and insert 2/3 . He had he remarked himself proposed 3/4 instead of 2/3 , but he had since been convinced that the latter proportion was the best. The former puts too much in the power of the President.

Mr. SHERMAN was of the same opinion; adding that the States would not like to see so small a minority and the President, prevailing over the general voice. In making laws regard should be had to the sense of the people, who are to be bound by them, and it was more probable that a single man should mistake or betray this sense than the Legislature.

Mr. Govr. MORRIS. Considering the difference between the two proportions numerically, it amounts in one House to two members only; and in the other to not more than five; according to the numbers of which the Legislature is at first to be composed. It is the interest moreover of the distant States to prefer 3/4 as they will be oftenest absent and need the interposing check of the President. The excess rather than the deficiency of laws was to be dreaded. The example of N. York shews that 2/3 is not sufficient to answer the purpose.

Mr. HAMILTON added his testimony to the fact that 2/3 in N. York had been ineffectual either where a popular object, or a legislative faction operated; of which he mentioned some instances.

Mr. GERRY. It is necessary to consider the danger on the other side also. 2/3 will be a considerable, perhaps a proper security. 3/4 puts too much in the power of a few men. The primary object of the revisionary check of the President is not to protect the general interest, but to defend his own department. If 3/4 be required, a few Senators having hopes from the nomination of the President to offices, will combine with him and impede proper laws. Making the vice-President Speaker increases the danger.

Mr. WILLIAMSON was less afraid of too few than of too many laws. He was most of all afraid that the repeal of bad laws might be rendered too difficult by requiring 3/4 to overcome the dissent of the President.

Col: MASON had always considered this as one of the most exceptionable parts of the System. As to the numerical argument of Mr. Govr. Morris, little arithmetic was necessary to understand that 3/4 was more than 2/3 , whatever the numbers of the Legislature might be. The example of New York depended on the real merits of the laws. The Gentlemen citing it, had no doubt given their own opinions. But perhaps there were others of opposite opinions who could equally paint the abuses on the other side. His leading view was to guard against too great an impediment to the repeal of laws.

Mr. Govr. MORRIS dwelt on the danger to the public interest from the instability of laws, as the most to be guarded against. On the other side there could be little danger. If one man in office will not consent where he ought, every fourth year another can be substituted. This term was not too long for fair experiments. Many good laws are not tried long enough to prove their merit. This is often the case with new laws opposed to old habits. The Inspection laws of Virginia & Maryland to which all are now so much attached were unpopular at first.

Mr. PINKNEY was warmly in opposition to 3/4 as putting a dangerous power in the hands of a few Senators headed by the President.

Mr. MADISON. When 3/4 was agreed to, the President was to be elected by the Legislature and for seven years. He is now to be elected by the people and for four years. The object of the revisionary power is twofold. 1. [FN20] to defend the Executive Rights 2. [FN20] to prevent popular or factious injustice. It was an important principle in this & in the State Constitutions to check legislative injustice and incroachments. The Experience of the States had demonstrated that their checks are insufficient. We must compare the danger from the weakness of 2/3 with the danger from the strength of 3/4 . He thought on the whole the former was the greater. As to the difficulty of repeals, it was probable that in doubtful cases the policy would soon take place of limiting the duration of laws so as to require renewal instead of repeal.

The reconsideration being agreed to. On the question to insert 2/3 in place of 3/4.

N. H. divd. Mas. no. Ct. ay. N. J. ay. Pa. no. Del. no. Md. ay. Mr. Mc.Henry no. Va. no. Genl. Washington Mr. Blair, Mr. Madison no. Col. Mason, Mr. Randolph ay. N. C. ay. S. C. ay. Geo. ay. [FN21]

Mr. WILLIAMSON, observed to the House that no provision was yet made for juries in Civil cases and suggested the necessity of it.

Mr. GORHAM. It is not possible to discriminate equity cases from those in which juries are proper. The Representatives of the people may be safely trusted in this matter.

Mr. GERRY urged the necessity of Juries to guard agst. corrupt Judges. He proposed that the Committee last appointed should be directed to provide a clause for securing the trial by Juries.

Col: MASON perceived the difficulty mentioned by Mr. Gorham. The jury cases can not be specified. A general principle laid down on this and some other points would be sufficient. He wished the plan had been prefaced with a Bill of Rights, & would second a Motion if made for the purpose. It would give great quiet to the people; and with the aid of the State declarations, a bill might be prepared in a few hours.

Mr. GERRY concurred in the idea & moved for a Committee to prepare a Bill of Rights.

Mr. SHERMAN, was for securing the rights of the people where requisite. The State Declarations of Rights are not repealed by this Constitution; and being in force are sufficient. There are many cases where juries are proper which can not be discriminated. The Legislature may be safely trusted.

N. H. no. Mas. abst. Ct. no. N. J. no. Pa. no. Del no. Md. no. Va. no. N. C. no. S. C. no. Geo. no. [FN22]

The Clause relating to exports being reconsidered, at the instance of Col: Mason, who urged that the restriction on the States would prevent the incidental duties necessary for the inspection & safe-keeping of their produce, and be ruinous to the Staple States, as he called the five Southern States, he moved as follows-"provided nothing herein contained shall be construed to restrain any State from laying duties upon exports for the sole purpose of defraying the charges of inspecting, packing, storing and indemnifying the losses, in keeping the commodities in the care of public officers, before exportation." In answer to a remark which he anticipated, towit, that the States could provide for these expences, by a tax in some other way, he stated the inconveniency [FN23] of requiring the Planters to pay a tax before the actual delivery for exportation.

Mr. MADISON 2ded. the motion. It would at least be harmless; and might have the good effect of restraining the States to bona fide duties for the purpose, as well as of authorising explicitly such duties; tho' perhaps the best guard against an abuse of the power of the States on this subject, was the right in the Genl. Government to regulate trade between State & State.

Mr. Govr. MORRIS saw no objection to the motion. He did not consider the dollar per Hhd laid on Tobo. in Virga. as a duty on exportation, as no drawback would be allowed on Tobo. taken out of the Warehouse for internal consumption.

Mr. DAYTON was afraid the proviso wd. enable Pennsylva. to tax N. Jersey under the idea of Inspection duties of which Pena. would Judge.

Mr. GORHAM & Mr. LANGDON, thought there would be no security if the proviso shd. be agreed to, for the States exporting thro' other States, agst. the [FN24] oppressions of the latter. How was redress to be obtained in case duties should be laid beyond the purpose expressed?

Mr. MADISON. There will be the same security as in other cases. The jurisdiction of the supreme Court must be the source of redress. So far only had provision been made by the plan agst. injurious acts of the States. His own opinion was, that this was insufficient. A negative on the State laws alone could meet all the shapes which these could assume. But this had been overruled.

Mr. FITZIMMONS. Incidental duties on Tobo. & flour, never have been & never can be considered as duties on exports.

Mr. DICKINSON. Nothing will save [FN25] States in the situation of N. Hampshire N Jersey Delaware &c from being oppressed by their neighbors, but requiring the assent of Congs. to inspection duties. He moved that this assent shd. accordingly be required.

FN2 "This is a literal copy of the printed Report. The Copy in the printed Journal contains some of the alterations subsequently made in the House. [FN4]

FN4 No transcript of the report was, however, made by Madison, but it was copied by Payne and inserted in this place in the Payne transcript. The text here printed is a copy of the printed report accompanying Madison's notes.

FN5 The words, "by lot," were not in the Report as printed; but were inserted in manuscript, as a typografical error, departing from the text of the Report referred to the Committee of Style & arrangment.

FN7 In the entry of this Report in the printed Journal "two thirds" are substituted for "three fourths." This change was made after the Report was received.

FN12 The word "or" is substituted in the transcript for "nor," the letter "n" having been crossed off in Madison's printed copy.

FN13 The phrase "when called into the actual service of the United States" is transposed in the transcript so that it follows the words "several States."

FN15 The draft of the letter accompanied the draft of the Constitution reported on this date, but was not printed with it. The Journal says: "The draft of a letter to Congress being at the same time reported was read once throughout; and afterwards agreed to by paragraphs." (See Journal of the Federal Convention (1819), page 367.) The letter does not appear to have caused debate. Having been accepted September 12th, it was printed with the final Constitution September 17th. The text here used is that of the final print, which was also copied by Payne for the transcript. The letter is printed in full, infra, page 639.

FN19 The word "and" is substituted in the transcript for "or" FN20 The figures "1" and "2" are changed in the transcript to "first" and "secondly."

FN21 In the transcript the vote reads: "Connecticut, New Jersey, Maryland [Mr. McHenry, no.], North Carolina, South Carolina, Georgia, aye-6; Massachusetts, Pennsylvania, Delaware, Virginia [General Washington, Mr. Blair, Mr. Madison, no; Col. Mason, Mr. Randolph, aye], no-4; New Hampshire divided."

FN22 In the transcript the vote reads: "New Hampshire, Connecticut, New Jersey, Pennsylvania, Delaware, aye-5; Maryland, Virginia, North Carolina, South Carolina, Georgia, no-5; Massachusetts, absent." This was the copyist's error as Madison's orginal notes agree with the Journal, which reads: "Which passed unanimously in the negative."

Dr. William Samuel Johnson (CN) submitted the Committee of Style report, Constitution and an accompanying cover letter to Congress.

(Click here for the Constitution as submitted by the Committee of Style. Scroll down about halfway. Somewhat above that is the Cover Letter.)

Hugh Williamson motioned and Roger Sherman seconded to lower the threshold of veto override to two thirds from three fourths. The larger amount would give too much power to the President and a minority of Congress.

Governeur Morris disagreed. Distant States may not always be represented and deserve the protection afforded by three fourths. Besides, the experience of NY demonstrated that more laws are detrimental compared to fewer laws.

Alexander Hamilton (NY) described popular objects that were not defeated when they should have with a two thirds provision.

Elbridge Gerry viewed three fourths override as placing too much power in the hands of too few. Presidential vetoes were primarily to protect the Executive Branch, not the general interest. Expect designing men to collude with the President for appointments and thwart proper laws if the three fourths rule is ratified.

Hugh Williamson feared it would be too difficult for the Executive to repeal bad laws with a three fourths override requirement.

George Mason leaned toward the two thirds requirement if for nothing else, to make repeal of laws not too difficult.

Governeur Morris focused on the need for stability of laws.

Charles Pinckney repeated the warning of Presidential/Congressional cabal with a three fourths requirement.

James Madison reminded the delegates that the three fourths ratio was set when the President was to be appointed by Congress to serve a single seven year term. Now, the people will elect him for four year terms. The Executive veto was designed to defend both the Executive Branch and the rights of the people. It was not new, for it existed in the States but in a weak form. He therefore supported the existing three fourths clause.

The motion to replace three fourths with two thirds passed 6-4-1.

Hugh Williamson once again brought up the lack of a guarantee of juries in civil trials.

Nathaniel Gorham would leave the matter with Congress as law, not the Constitution.

Elbridge Gerry viewed juries as the best defense against corrupt judges. Such a clause should be in the Constitution.

George Mason would make a general statement regarding juries in the Constitution. He also supported a Bill of Rights. It would go a long way to quell expected resistance at State Ratifying Conventions. (This was actually more of a warning than a request. Mr. Mason would not sign the Constitution and was second only to Patrick Henry in opposition next year in VA)

Elbridge Gerry motioned and Mr. Mason seconded a Committee to consider a Bill of Rights.

Roger Sherman supported securing the people’s rights where requisite. However, State declarations of rights were not repealed by the Constitution and would be sufficient.

George Mason reminded Mr. Sherman the Laws of the U.S. would be paramount to State Constitutions.

The motion to commit a Bill of Rights failed 10-0. (What happened here? We are woefully less informed for the lack of a professional court recorder. I am in disbelief there was so little debate around the issue.)

George Mason motioned to reconsider the 13th Article, “No state shall, without the consent of Congress, lay imposts or duties on imports or exports . . . “ He wished to add, “provided nothing herein contained shall be construed to restrain any State from laying duties upon exports for the sole purpose of defraying the charges of inspecting, packing, storing and indemnifying the losses, in keeping the commodities in the care of public officers, before exportation." (These Southerners knew how to look out for themselves.)

James Madison seconded and Mr. Morris concurred. It was a harmless amendment and was suited to the object.

Jonathan Dayton (NJ) feared the clause would allow PA to tax NJ under pretense of inspection duties. (Recall that NJ and NC paid heavy taxes on goods imported from other States under the Confederacy)

Nathaniel Gorham (MA) and John Langdon (NH) warned the clause would be abused.

James Madison viewed the jurisdiction of the Supreme Court as adequate redress. This was the only avenue against injurious acts from the States as opposed to his rejected idea of Congressional negative over State Laws.

Thomas Fitzsimmons (PA) said that incidental duties on flour and tobacco have never been considered duties on exports.

John Dickinson (DE) motioned and Pierce Butler (SC) seconded Congressional approval of all inspection duties because, rest assured, NH, DE, NJ and other States will be oppressed by their neighbors.

The Convention adjourned before taking the question.

Constitutional Convention Ping!

George Mason, principal author of the VA Bill of Rights, wished to add a similar Bill to the Constitution. His request was soundly defeated; not even his fellow VA delegates agreed. Why?

Roger Sherman pointed out that States already had Bills of Rights, and being in force “were sufficient.” Not so, Mr. Mason shot back, for the Constitution and laws of the federal government would be paramount. Sherman’s point was that held by the convention; why for instance declare that liberty of the press should be inviolable when Congressional power did not extend to the press?

Madison’s notes on the subject ended there and a quick vote was taken. Absent further discussion at the Convention, historians attributed several reasons for opposition based on subsequent debate from State Ratifying Conventions.

In no particular order, slavery comes to mind. While on the downswing in Northern States, their people did not particularly like free blacks either, and denied them citizenship rights. The four Southernmost States of course depended on the institution, and while VA could get away with ignoring human bondage in its Declaration of Rights, it was something else for a national charter to brazenly contradict itself.

Next was fear of government usurpation of rights not enumerated, for it is impossible to list all of our God given rights. In recent times we have seen this occur. The Ninth Amendment, which plainly exists to secure our un-enumerated rights, has been ignored to the point of irrelevancy.

Finally, it is thought Mr. Mason, who would not sign the Constitution and actively oppose it at the VA Ratifying Convention, may have purposely attempted to scuttle it. At this late stage, the Constitution represented a bundle of careful compromises that could be upset in the course of long debate over a Bill of Rights.

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