Letters of Delegates to Congress: Volume 24
Melancton Smith's Notes of Debates

[September 27, 1787](1)

On the constitution reported by the Convention.

The motion of Mr Dane for Sending forward the Constit. with an opin.
Renewed.(2)

Mr. Butler. Wishes to know the motives that produced the motion---;he thinks it is calculated to disapprove.

Mr. Dane. Asks to know what words are object[ionable].

1. The consolidati[on] imperfect & will not work.
2. If it does it will not work on free principles---;it must be supported by a standing Army---;it will oppress the honest and industrious---;will adv[anta]g[e] a few---;is not averse to Exa[minatio]n,is open to convictn---;and if convinced will suppor[t] it---;is willing the prest. motion should be amended so as to be neutral. If it is to be approved it will be moved to take it up by paragraphs---; objections stated, amendments moved---;Congress no cons[titutional] right to cons[i]d[er].

Mr. Lee.(3) Every man to see with his own eyes---;to judge for themselves---;Congress acting under the pres. constitution, defin[itel]y limitting their powers, have no right to recomd. a plan subverting the Govt---;this remark felt, as a Gent. yesterday justify, by the necessity of the case---;this dang[erou]s because this prin[cip]l[e] has been abusd. to bad 100 tims. where it is used for good. The impost referred as an inst[a]n[ce] to justify---;that within the powers sent to re[ceive] the app[roval] of 13 S[tate]s & within the Line---;this by nine---;this plan proposes destroy. the Conf. of 13 and a new one of 9---;yet it wd. be indec[en]t not to send it to the S[tate]s for 12 States sent Del[egates] as he und[erstand]s to amend the pres. govt. Men of res[pecte]d Ch[aracter]s have agreed upon this it sho[uld] be for[ward]ed.

A Gen. yesd said the Conf. says nothg. of Conven. It is true it does nt. point a conv. but it does not forbd. them to be propsd. by one, or any other way, Congs. is only to agree---;if this was not destruct. but an amdt. Cong. might consd. Proposes a Resolution, stating that as Cong. have no right under the Conf. to rec[ommen]d alt[eration] of the conf. unless agred to by 13 S. & this prop. an amd. By 9.(4)

Mr. King. Recds. moderation, & is sorry Mr Dane is intemperate.

H. Lee. Approves the motn. of Mr L, R H Lee, as bring. the point to view, whether that shall be passed, with in[...]es---;or without. Thinks Mr D. has not app[eare]d. int[emperate].

R H Lee. At a loss to undersd. Mr K---;feel his pulse & he will find no intem[perance] Congs. must do somg.---;some think it must be appd---;some think we have no right to determ---;he that his motion neutral---;if he is called to approve, his conscience will oblige him to declare his senti[ment]s---;he is candid---;not sinister.

Mr. Clark. Dont like any prop[osa]l yet made---;he cant appr. it---;but thinks it will ans. no purpose to alter it---;will not oppo. it in any place---;prefers a resol. to postpone to take up one, barely to forward a copy to the States, to be laid before the Legis[lature]s to be re[ferre]d to co[n]ven[tion]s.(5)

R H Lee. The Res. moved is an appr[oval].

Clark. Does not mean to approve the plan---;but the resn. of conv. to be laid before the convent. of the States---;by that we only approve that it be laid before the states, but does not recomd. that be ratified. We may take it up and alter it.

Mr Goram---;hopes it will be postpd.---;as it is plainer---;the resol. of Mr Lee states we cannt. take it up---;and will prev. Cong. from setting the Gov. to work if 9 or 10 Sts. agree to it. Therefore there must be war---;the new Govt. must raise troops to overset Congs.

Grayson---;The mot[ion] from Virg. better than Jersey---;the one fm Jersey just forwds the pro[posal] by a bare implicitapprob---; the on[e] Virg. gives a reason why it dont appv.---;and leaves the adv[ocates] to say Cong. wd. have appd. if they could---;in fav. of the mot. fm Virg.---;is in fav. of the new Constn.---;this props. a mode of altg.---;if we depart fm the mode in this case, it will form a precedt. from doing it in the old one---;the 13th Art. found---;9 S. may agree to the new---;the other 4 ought to be left in poss. of this, if they chuse & not forced to come in---;does not think there has yet been any dep. fm the Conf.---;Cong. had a right to refer to any body to report---;keep the prest. until you get a better---;agt. the Cons---;it affects his State---; persl. right---;not in the danger some fear---;Bills of right ess[ential] in Monarchys---;the Govt. is democratic all over. Liberty as safe as in the hands of R. Island if not embard respg. pers. Liberty---;But cant say so as to property, an Idea taken up, never admitted in confed---;Majority never governs---;the Netherlds. instanced---;nine States shd have been reqd---;the represts. in the Senate inequal.

R. H. Lee. It is objd. that if this Congress cannot decide now a new future one cannot---;has not force, for this is a first prinl. that the majy. of the people have a right to make a new one if 9 States agre the majority of the people.

H. Lee. Will vote for the postpon. because he supposes we have a right to decide from the great principle of necessity or the salus populi---;this necessity justifies the measure Cong. and all the States have decided it. Are the Laws of Congs. paramt. to the Constituti[ons] of the diff. S[tate]s.

Mr. Dane. Wishes to steer in the chanl. of neutrality---;yet suggest whether a motion which brings into view so materially the Question of 9 States---;prefers N Jersey---;Understands the clause which makes the clause declarg. the Constn. the supreme Law. difft. from the conven.(6)

R H Lee. We live in an enlightned age---;people will understand us---;to accomodate has left out the words 9 & 13. Will consent they may be put out. The doctrin of salus populi dang[erous]. Has been in the mo[uth]s of all tyr[ant]s. If men may do us they please fm. that arg. all Cons[titution]s useless---;all tyrants have used it.

Madison. Cant. accede to it---;is not respectful to the Conv---; after w[ha]t has been done, if Cong. does not agree implies a disagreement. Cong. fm former acts do not object to a national gov---; if either motn. is adopted it implies disap---;the ques. is wheth. on the whole it is best to adopt it & ought to say so. The powers of Conv. the same as of Congs. The reason of Conv. that they might not be interrupted, and that persons might be admd. wthr [or] not be in Congs.---;and to prevent Jealousies. If this house cant approve it says the crisis is not yet arrived---;& impls. a disapp[ointment]---;a great many Inst. Cong. have recomd. what they have no right.

R. H. Lee. The conv. have not proceeded as this house were bound---;it is to be agreed to by the States & means the 13---;but this recomds. a new Confedy of 9---;the Conv. no more powers than Congress, yet if 9 States agree becomes supreme Law. Knows no instance on the Journals as he remembers, opposing the Confedy.---; the impost was to be adopted by 13. The Resol. fm Jersey approves, for Cong. dont send out any thing but such as they approve.

Mr Clark. Unhappy to differ fm Mr Lee, he reveres his Jud[gment]---;if his obj good, his own prop. liable to the like obj.

Johnson. Hardly possible to send it out witht. approvg. or disapprovg.---;for this reason Mr Lee's motion. Cong. ought to approve or disapprove---;they may do it---;it is their duty to do it. The people will see we, that Cong. act witht. power, in the case of 9 or 13---;they will see, that the act of Feby. was departing from the Constitn.(7) Conf. says Congress was to mk. alter. Cong. apps. a Conven. to do it---;he saw it so at the time and opposed it(8)---;the argts. then were salus populi---;nothing from Congress wd. do---;the prop. fm Conv. not a prop. to 9 but to all, it is hoped all will. Mr Lee says if 9 agree to alter by the people---; this says if 9 do in that case, we will set it going on the principle of maj. On the principle of Cong. referring to the Conv. they are a Commt. and have made report, Congress then must approve or disapprove---;it dont imply an approbation of all its parts, but the best upon the whole, a matter of accomodation---;we say it is better than the present---;better than running the risque of another.

Madison. Did not say the Conv. moved exactly in the Line of their app[ointment]. Cong. did dept. fm the Idea of federal & recomd. a national Govt. in Feby 1781.(9) Congress did from the principle salus populi---;The western Country its sale & Govt---;an instance of exceeding powers---;as Congress have in many Instances exceeded their power, if it does not in this Inst. aprove it will imply disappr.

R H Lee. The wes. Country was once Virgs. She gave it to Congress. Cong. sells it as she had a right. The Government tempory. & not inconsistent. If I unders[tand] Gen. This is to be adopted & no other with alter. Why so? good things in it---;but many bad---;so much so tht. he says here as he will say every where that if adopted civil Liberty will be in emt. danger. The grts. parts of diff[icult]y arises fm debt---;if that was removed---;and cd make treats without the limitations---;and to regulate the trade with reasonable limits---;but at all events, he sees not the necessy. of pressing this without any amends.---;thinks the Convs. had best have had the Liby. to alter.

Butler. The quest. ought to be on the whole---;no amendments---;the Object[ion]s not pointed---;Dane has leading objections but declines naming them. Lee dangerous to civil Liberty---;the Conv. could have made a better---;but that this best on the whole---;have no power and it will answer no purpose to alter---; The State of the Country contemptible abroad---;and on the eve of Anarc[h]y at home. Anarchy will follow if it is not adopted.

The motion from Mr. Lee was postponed, and then a motion was made by Mr. Car.(10)

H Lee. Thinks the matter was to be taken up in its parts, but cannot agree to it in all its parts, with[out] examination by paragraphs and propose s[u]ch amendmts as are necessary. Cong. will subject themselves to disgrace by voting on a matter whh. they have not ex[amine]d. Moves to pospone & taken up by Paragraph.

Goram. Thinks not necessary to take up by Paragraphs, every Gentn. may propose amendments---;no necessity of a Bill of rights; because a Bill of rights in state Govts. was intended to retain certain powers, as the Legis. had unlimd. Powers.

Madison. The business is open to considn.---;shd feel delicacy if he had not assented in Conv. though he did not approve it. Gen have sd. this is in the sit[uation] of a Bill agreed to by one house. This prin. will oppose amends. becs. the act if altered will not be the act of both.

It must be altered in all stages---;it may be, but it cannot succeed, nor any other alteration If all are to agree in this manner Confed. was proposed without alteration---;no probab[ilit]y of Cong. agreeing in Alts. Those who disagree, differ in their opins. A Bill of rights unny.---;because the powers are enumerated and only extend to certain cases---;& the people who are to agree to it are to establish this.

R. H. Lee. It is admd. and fact that this was to be sent to Cong but surely it was to be consd. and altered, & not to be sent forward witht. The bill of rights will be brot. forwd.---;not necessary in conf. because it is expressly declared no power shd. be exercised, but such as is expressly given---;and therefore no constructive power can be exercised---;to prevent this the great use of a Bill of rights.

Mr King. The House cannot cons[titutionall]y make alterations. The Idea of Conv. originated in the States, and this led the house to agree---;they proposed the Conv. shd. propose alterations, which when agreed to here & confirmed by the States---;& therefore are to agree or disagree to the alterations and cannot alter consiste[ntl]y with their own act. Cong. have taken their Line, but in conseqnce. of the decis[ion . . . .] The maj. of the people it is said may alter, and if they have man[ifeste]d a desire to change, this house may advise it, as it is not obligatory---;we may advise as any other body of men---;to satisfy forms it was ordered to pass this house, they may agree or disagree if they do disagree it will not prevent them to accept, if they agree it will give weight.

R H Lee. Strangest doctrine he ever heard, that referring a matter of report, that no alterations shd be made. The Idea the common sense of Man. The States & Congress he thinks had the Idea, that congress was to amend if they thot. proper. He wishes to give it a candid enquiry, and proposes such alterations as are necessary---;if the Gen. wishes it shd go forth witht. amendt.---;let it gowith all its imperfections on its head & the amendments by themselves---;to insist that it should go as it is without amendments, is like presen[tin]g a hugry man 50 dishes and insisting he shd eat all or none.

Mad[iso]n. A circumst[ance] distinguishs this report from others---;the Conv. was not appd. by Cong. but by the people from whom Cong. derive their power---;Cong. only to concur---;admits Congress may alter---;but if they do alter, it is not the act of Conven but of Congress---;and excludes Conv. entirely and confines the house in the trammels of the Confed---;not unusual to propose things in the Lump---;so the confederation was presented.

Lee.(11) A Report implies a right to consider on the whole or part---;the Confed. went in such way as to admit of objects.---;and most States propose them. If it is amended, he thinks it will be more likely to succeed, as capital objections will probably be removed---;the Idea seems to be, this must be agreed to or nothing else, why this Idea, this supposes all wisdom centers in the Convent.

Goram. Why does not the Gent. propose his amendments---; then the question of the expediency of the amendments will be consd.

Johnson. The term of Report, a general expression, not meant as in cases where report is made to Congress---;the people and Congress agree the alterations shall be made by Convention, and the nature of things forbids any alteration as it will make it no act of Conv. Cong. are not to judge in the last resort, but the people, and therefore it must be appd. or disappd. in the whole.

R H Lee. Is it the Idea of Conv. that not only Congress but the States must agree in the whole, or else to reject it---;and it seems all Idea of amendments are precluded.

Maddison. The proper question is whether any amendments shall be made and that the house should decide---;suppose alters. sent to the State, the Acts require the Delegates [to the Constitutional Convention] to report to them---;there will be two plans---;some will accept one & some another this will create confusion and proves it was not the intent of the States.

R. H. Lee. Some admit the right but doubt the expediency---; and proposes amendments.(12)

Dane. The Gent. fm the Conv. are pushing the business by refinents. That the common sense of the Country---;if the house mean to preclude amendmts. the Gent. will stand excused to vote in the negative.

Carrington. When he made the motion supposed every man had a right to examine, he had consid. and made up his mind, if any Gentn. has not made up his mind, he ought to have a Liby of amending---;for tho he thinks it inexpedient to amend, as he fears it wd. defeat the whole---;important amends. are offered by a member he ought to have a right to support them.

Clark. The motion by Mr Lee for amendments, will do injury by coming on the Journal, and theref. the house upon cool reflection, will think it best to agree to send it out without agreeing.

Grayson. Is in a curious situation, it is urged all alterations are precluded, has not made up his mind---;and thinks it precipetous to urge a decision in two days on a subj. took 4 Months. If we have no right to amend, then we ought to give a silent passage---;for if we cannot alter, why should we deliberate. His opinion they shd stand solely upon the opin. of Conv. The salus populi much talked off---;this Con. will not remove our diff---;the great defects a disinclin. to pay money---;this removed our great dif wd be over---;no necessity to urge to a hasty decision, in 2 or 3 Years we shd. get a good govern.(13)

MS (N: Smith Papers). In the hand of Melancton Smith.

1 These notes cover the renewal of a congressional debate "On the constitution reported by the Convention" that was opened on September 26, renewed the 27th, and concluded on the 28th. The documentary evidence on the congressional response to the Constitution is fragmentary, ambiguous, and meager. The present notes by New York delegate Melancton Smith, which became publicly available in 1959, are now the fullest source known for the study of this debate.

The Constitution adopted by the Philadelphia Convention September 17 was delivered to the secretary of Congress, Charles Thomson, by the secretary of the Convention, William Jackson, on September 19, and read in Congress on the 20th. On the evidence of the correspondence of William Bingham and Edward Carrington, it is known that Congress set Wednesday September 26 "for its Consideration," and Thomson's original journal entry for the 27th, which was later deleted, records that "Congress resumed the Consideration of the form of a Constitution." It is clear that Smith's notes pertain to this resumption. Cf. JCC, 33:487--;503, 536--;37, 540--;44.

The motions by Nathan Dane and Richard Henry Lee that were generated by the debate were not entered on the journals by Secretary Thomson, however, and the conjectures by the editors of the modern edition of the journals that Dane's undated motion was offered the 27th is contradicted by the second line of Smith's notes: "The motion of Mr Dane for Sending forward the Constit. with an opin. Renewed." Neither of these manuscript motions (PCC, item 36, 3:375--;77) is dated, and only Dane's bears an endorsement (by Charles Thomson): "Mr. Dane's Motion respectg new Constitution Octr. 1787." Whether Dane actually gave this motion to Thomson some time in October, or Thomson simply misdated it at a later time, cannot now be determined, but whatever the facts it is clear from Smith's notes, which twice refer to comments made "yesterday," that they record thecongressional debate of September 27. For previous printings of the notes since their discovery in 1959, see Julius Goebel, Jr., "Melancton Smith's Minutes of Debates on the New Constitution," Columbia Law Review 64 (Jan. 1964): 26--;43; and Doc. Hist. of Ratif., 1:327--;40, 13:229--;41.

2 For a mis-reading of this word as "received," which bears crucially on the date of this day's debate, cf. Doc. Hist. of Ratif., 1:327, 13:232. It was printed as "reserved" in Goebel, "Melancton Smith's Minutes," p. 34.

3 That is, Richard Henry Lee, as opposed to Henry Lee.

4 See JCC, 33:540--;41.

5 For Abraham Clark's motion on this subject, see ibid., p. 541.

6 Cf. paragraph two of Article VI of the Constitution. JCC, 33:499.

7 That is, Article XIII of the Articles of Confederation. JCC, 19:221--;22.

8 See James Madison's Notes of Debates, February 21, 1787, note 6.

9 Perhaps a reference to the recommendation to the states to vest Congress with authority to raise revenue. See these Letters, 16:687--;88.

10 For this motion by Edward Carrington, see JCC, 33:542.

11 Richard Henry Lee.

12 For these amendments, see Richard Henry Lee to Elbridge Gerry, September 29, enclosure.

13 For a summary of the entire September 26--;28 congressional debate on the Constitution, see James Madison to George Washington, September 30.

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