# Debates in the Several State Conventions/Volume 5/September 12

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Philadelphia: Lippincott, pages 535–539
Wednesday, September 12.
In Convention.—Dr. JOHNSON, from the committee of style, &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.
REPORT.
[Here follows a copy of the Constitution.]
LETTER.
"We have now the honor to submit to the consideration of the United States in Congress assembled that Constitution which has appeared to us the most advisable.
"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 Thence results the necessity of a different organization. It is obviously impracticable, in the federal 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 circumstances, 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 increased 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 appeared 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 in 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 indispensable.
"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 and 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 three fourths and insert two thirds. He had, he remarked, himself proposed three fourths instead of two thirds; 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. GOUVERNEUR 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 three fourths, 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 New York shows that two thirds is not sufficient to answer the purpose.
Mr. HAMILTON added his testimony to the fact, that two thirds in New 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. Two thirds will be a considerable, perhaps a proper, security. Three fourths 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 three fourths 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 three fourths 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. Gouverneur Morris, little arithmetic was necessary to understand that three fourths was more than two thirds, 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. GOUVERNEUR 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 and Maryland, to which all are now so much attached, were unpopular at first.
Mr. PINCKNEY was warmly in opposition to three fourths, as putting a dangerous power in the hands of a few senators, headed by the President.
Mr. MADISON. When three fourths 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,—first, to defend the executive rights; secondly, to prevent popular or factious injustice. It was an important principle, in this and in the state constitutions, to check legislative injustice and encroachments. The experience of the states had demonstrated that their checks are insufficient. We must compare the danger from the weakness of two thirds with the danger from the strength of three fourths. 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 two thirds, in place of three fourths,—
Connecticut, New Jersey, Maryland, (Mr. M'Henry, no,) North Carolina, South Carolina, Georgia, ay, 6; Massachusetts, Pennsylvania, Delaware, Virginia, (Gen. Washington, Mr. Blair, Mr. Madison, no; Col. Mason, Mr. Randolph, ay,) no, 4; New Hampshire, divided.
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 against 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 cannot 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, and 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, and moved for a committee to prepare a bill of rights.
Col. MASON seconded the motion.
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 cannot be discriminated. The legislature may be safely trusted.
Col. MASON. The laws of the United States are to be paramount to state bills of rights.
On the question for a committee to prepare a bill of rights,—
New Hampshire, Connecticut, New Jersey, Pennsylvania, Delaware, ay, 5; Maryland, Virginia, North Carolina, South Carolina, Georgia, no, 5; Massachusetts, absent.
The clause relating to exports being reconsidered, at the instance of Col. MASON, who urged that the restrictions on the states would prevent the incidental duties necessary for the inspection and 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."
Mr. MADISON seconded 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 authorizing explicitly such duties; though, perhaps, the best guard against an abuse of the power of the states on this subject was the right in the general government to regulate trade between state and state.
Mr. GOUVERNEUR MORRIS saw no objection to the motion. He did not consider the dollar per hogshead laid on tobacco, in Virginia, as a duty on exportation, as no drawback would be allowed on tobacco taken out of the warehouse for internal consumption.
Mr. DAYTON was afraid the proviso would enable Pennsylvania to tax New Jersey, under the idea of inspection duties, of which Pennsylvania would judge.
Mr. GORHAM and Mr. LANGDON thought there would be no security, if the proviso should be agreed to, for the states exporting through other states, against these 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 against 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. FITZSIMONS. Incidental duties on tobacco and flour never have been, and never can be, considered as duties on exports.
Mr. DICKINSON. Nothing will save the states in the situation of New Hampshire, New Jersey, Delaware, &c., from being oppressed by their neighbors, but requiring the assent of Congress to inspection duties. He moved that this assent should accordingly be required.
Mr. BUTLER seconded the motion. Adjourned.