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Subject Area: Political Theory
Subject Area: History
Topic: The American Revolution and Constitution

The Draught of a Foederal Government to be agreed upon between the Free and Independent States of America. 4 - Max Farrand, The Records of the Federal Convention of 1787, vol. 3 [1911]

Edition used:

The Records of the Federal Convention of 1787, ed. Max Farrand (New Haven: Yale University Press, 1911). Vol. 3.

Part of: The Records of the Federal Convention of 1787, 3 vols.

About Liberty Fund:

Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


The Draught of a Foederal Government to be agreed upon between the Free and Independent States of America.4

A Confederation between the free and independent States of N. H. &c. is hereby solemnly made uniting them together under one general superintending Government for their common Benefit and for their Defense and Security against all Designs and Leagues that may be injurious to their interests and against all Forc [Foes?] and Attacks offered to or made upon them or any of them.

[I]

The Stile of this government shall be The United States of America,1 and (the legislative, executive and judiciary powers shall be separate and distinct).

[II]

“The Legislature shall consist of two distinct Branches — a Senate and a House of Delegates, each of which shall have a Negative on the other, and shall be stiled the U. S. in Congress assembled.”

The House of Delegates to be elected by the State Legislatures,2 and to consist of one Member for everyNAthousand inhabitants ⅗ of Blacks included.3

For the forming of the Senate the United States to be divided into four great districts,4 (so apportioned as to give to each its due weight). The Senate to be elected by the House of Delegates either from among themselves or the people at large.5 When so formed, the Senate to be divided into four classes, — to serve by Rotation of four years.3

The Members of S. & H. D. shall each have one Vote,6and shall be paid out of the common Treasury.

The Time of the Election of the Members of the H. D. and of the meeting of the U. S. in C. assembled.

“Each House shall appoint its own Speaker and other Officers, and settle its own Rules of Proceeding; but neither the Senate nor H. D. shall have the power to adjourn for more than NA Days without the Consent of both.”

[Freedom of speech and protection from arrest as in Article V of the Articles of Confederation.]

(Attendance compulsory provided no punishment shall be further extended than to disqualifications) any longer to be members of Congress or to hold any office of trust or profit under the United States or any individual State.7

[III]

The Senate and H. D. shall by joint Ballot annually (septennially) chuse the Presidt. U. S. from among themselves or the People at large. — In the Presidt. “the executive Authority of the U. S. shall be vested.”

“It shall be his Duty to inform the Legislature [at every session]1 of the condition of the United States, so far as may respect his Department — to recommend Matters to their Consideration [such as shall appear to him to concern their good government, welfare and prosperity]25 — to correspond with the Executives of the several States — to attend to the Execution of the Laws of the U S” (by the several States) — “to transact Affairs with the Officers of Government, civil and military — to expedite all such Measures as may be resolved on by the Legislature” — (to acquire from time to time, as perfect a knowledge of the situation of the Union, as he possibly can, and to be charged with all the business of the home department. He will be empowered, whenever he conceives it necessary) “to inspect the Departments of foreign Affairs — War — Treasury —” (and when instituted of the) “Admiralty — to reside where the Legislature shall sit — to commission all Officers, and keep the Great Seal of the United States.”

“He shall, by Virtue of his Office, be Commander in chief of the Land Forces of U. S. and Admiral of their Navy.”2

“He shall have Power to convene the Legislature on extraordinary occasions — to prorogue them,” (when they cannot agree as to the time of their adjournment,) “provided such Prorogation shall not exceed NA Days in the space of any NA — He may suspend Officers, civil and military.”

(He shall be removable by impeachment.3 The Legislature shall fix his salary on permanent principles.)

He shall have a Right to advise with the Heads of the different Departments as his Council.4

Council of Revision, consisting of the Presdt. S. for for. Affairs, S. of War, Heads of the Departments of Treasury and Admiralty or any two of them togr wt the Presidt.4

(IV)

(The 4th article . . . is formed exactly upon the principles of the 4th article of the present confederation, except with this difference, that the demand of the Executive of a State for any fugitive criminal offender shall be complied with. It is now confined to treason, felony, or other high misdemeanor.)

Mutual Intercourse — Community of Privileges — Surrender of Criminals — Faith to Proceedings, &c.

(V)

(The 5th article, declaring that individual States shall not exercise certain powers, is founded on the same principles as the 6th of the confederation.)

No State to make Treaties — lay interfering Duties — keep a naval or land Force Militia excepted to be disciplined &c according to the Regulations of the U. S.

Each State retains its Rights not expressly delegated — But no Bill of the Legislature of any State shall become a law till it shall have been laid before S. & H. D. in C. assembled and received their approbation.1

(VI)

The S. & H. D. in C. Assembled “shall have the exclusive Power — of raising a military Land Force” (and of appointing all the officers) — “of equiping a Navy — of rating and causing public Taxes to be levied” (agreeable to the rule now in use, an enumeration of the white inhabitants, and three-fifths of other descriptions.)

(VII)

The S. & H. D. in C. assembled shall have the exclusive power “of regulating the Trade of the several States as well with Foreign Nations as with each other — of levying Duties upon Imports and Exports” — Each State may lay Embargoes in Time of Scarcity.2

(VIII)

The S. & H. D. in C. assembled shall have exclusive power “of establishing Post-Offices, and raising a Revenue from them — of regulating Indian Affairs — of coining Money” — regulating its Alloy and Value — “fixing the Standard of Weights and Measures” throughout U. S. — “of determining in what species of Money the public Treasury shall be supplied.”3

(IX)

S. & H. D. in C. ass. shall be the last Resort on Appeal in Disputes between two or more States; which Authority shall be exercised in the following Manner &c. (the same with that in the Confederation.)

(X)

S. & H. D. in C. ass. shall institute offices and appoint officers for the Departments of for. Affairs, War, Treasury and Admiralty —

They shall have the exclusive Power of declaring what shall be Treason and Misp. of Treason agt. U. S. — and of instituting a federal judicial Court, which “shall try Officers of the U. S. for all Crimes &c in their Offices — and to this Court an Appeal shall be allowed from the” judicial “Courts of” the several States in all Causes wherein Questions shall arise on the Construction of Treaties made by U. S. — or on the Law of Nations — or on the Regulations of U. S. concerning Trade and Revenue or wherein U. S. shall be a Party — The Court shall consist of [         ] Judges to be appointed during good Behaviour.1

S. & H. D. in C. ass. “shall have the exclusive Right of instituting in each State a Court of Admiralty,” and appointing the Judges &c of the same, “for hearing and determining” all “maritime Causes” which may arise therein respectively.2

[XI]

Points in which the Assent of more than a bare Majority shall be necessary. (The Assent of Two-Thirds of both Houses, where the present Confederation has made the assent of Nine States necessary, and added the Regulation of Trade, and Acts for levying an Impost and raising a Revenue.)

[XII]

“The power of impeaching shall be vested in the H. D. — The Senators and Judges of the foederal Court, be a Court for trying Impeachments.”3

[XIII]

S. & H. D. in C. ass. shall regulate “possess the exclusive Right of establishing the Government and Discipline of the Militia” thro the U. S. — “and of ordering the Militia of any State to any Place within U. S.”2

[XIV]

Means of enforcing and compelling the Payment of the Quota of each State.1

[XV]

Manner and Conditions of admitting new States.

Power of dividing annexing and consolidating States, on the Consent and Petition of such States.

(Federal Government should also possess the exclusive right of declaring on what terms the privileges of citizenship and naturalization should be extended to foreigners.)1

(XVI)

The assent of the Legislature of [         ] States shall be sufficient to invest future additional Powers in U. S. in C. ass. and shall bind the whole confederacy.2

[XVII]

The said States of N. H. &c guarrantee mutually each other and their Rights against all other Powers and against all Rebellion &c.

[XVIII]

(The next article provides for the privilege of the writ of habeas corpus — the trial by jury in all cases, criminal as well as civil — the freedom of the press and the prevention of religious tests as qualifications to offices of trust or emolument. . . .

There is also an authority to the national legislature, permanently to fix the seat of the general government, to secure to authors the exclusive right to their performances and discoveries, and to establish a Federal University.)3

[XIX]

The Articles of Confederation shall be inviolably observed unless altered as before directed, and the Union shall be perpetual.

APPENDIX E

THE NEW JERSEY PLAN OR PATERSON RESOLUTIONS

When the Convention, in Committee of the Whole was evidently coming to a favorable conclusion in its consideration of the Virginia Plan, various representatives of the opposition — mainly from the smaller states — met together and drafted a series of resolutions, which was presented to the Convention on June 15. Paterson of New Jersey had apparently taken the lead in this movement and he was chosen to present the resolutions to the Convention. These resolutions have accordingly been known as the New Jersey Plan, or the Paterson Resolutions.1

Several copies of the New Jersey Plan are in existence, containing the usual minor differences in wording, spelling, and punctuation. But they also differ in more important particulars: — The Madison and Washington copies are practically identical, but the other copies contain two additional resolutions: a sixth, “that the legislative, executive, and judiciary powers within the several States ought to be bound by oath to support the Articles of Union;” and a ninth, “that provision ought to be made for hearing and deciding upon all disputes arising between the United States and an individual State respecting territory.” Also in the fourth resolution, the Madison and Washington copies read, that the Executive shall be “removable by Congress on application by a majority of the executives of the several States,” while the Brearley and Paterson copies read “removable on impeachment and conviction for malpractice or neglect of duty by Congress on application by a majority of the executives of the several States.”2

As already stated, the presentation of the New Jersey Plan resulted from a conference of several delegates, in which Paterson seemed to have been a leading spirit. Among the Paterson Papers, each in Paterson’s handwriting on a separate sheet of foolscap, are found the following documents: —

I

1. Resolved, That a union of the States merely federal ought to be the sole Object of the Exercise of the Powers vested in this Convention.3

2. Resolved, That the Articles of the Confederation ought to be so revised, corrected, and enlarged as to render the federal Constitution adequate to the Exigencies of Government, and the Preservation of the Union —

3. Resolved, That the federal Government of the United States ought to consist of a Supreme Legislative, Executive, and Judiciary —

4. Resolved, That the Powers of Legislation ought to be vested in Congress.

5. Resolved, That in Addition to the Powers vested in the United States in Congress by the present existing Articles of Confederation, they be authorized to pass Acts for levying a Duty or Duties on all Goods and Merchandize of foreign Growth or Manufacture imported into any Part of the United States not exceeding NA per Cent. ad Valorem to be applied to such federal Purposes as they shall deem proper and expedient, and to make Rules and Regulations for the Collection thereof; and the same from Time to Time to alter and amend in such Manner as they shall think proper. Provided, That all Punishments, Fines, Forfeitures, and Penalties to be incurred for contravening such Rules and Regulations shall be adjudged and decided upon by the Judiciaries of the State in which any Offence contrary to the true Intent and Meaning of such Rules and Regulations shall be committed or perpetrated; subject nevertheless to an Appeal for the Correction of any Errors in rendering Judgment to the Judiciary of the United States.

That the United States in Congress be also authorized to pass Acts for the Regulation of Trade as well with foreign Nations as with each other, and for laying such Prohibitions, [In margin: “Imposts Excise — Stamps — Post-Office — Poll-Tax — ”] and such Imposts and Duties upon Imports as may be necessary for the Purpose; Provided, That the Legislatures of the several States shall not be restrained from laying Embargoes in Times of Scarcity; and provided further that such Imposts and Duties so far forth as the same shall exceed . . . per Centum ad Valorem on the Imports shall accrue to the Use of the State in which the same may be collected

II

1. Resolved, That the Articles of the confederation ought1 to1 be so revised, corrected, and enlarged as to render the federal constitution adequate to the exigencies of government, and the preservation of the union —

2. Resolved, That the alterations, additions, and provisions made in and to the articles of the confederation shall be reported to the united states in congress and to the individual states composing the union, agreeably to the 13th1 article of the confederation —

3. Resolved, That the federal government of the united states ought to consist of a supreme1 legislative, executive, and judiciary —

4. Resolved, That the powers of legislation be vested in Congress —

5. [In margin: “See Mr. Lansing—”]

6. [In margin: “See Governor Randolph’s. 7th Prop.”]

7. [In margin: “Same — 9th.”]

Resolved, That every State in the Union as a State possesses an equal Right to, and Share of, Sovereignty, Freedom, and Independance —

Resolved, therefore, that the Representation in the supreme Legislature ought to be by States, otherwise some of the States in the Union will possess a greater Share of Sovereignty, Freedom, and Independance than others —

Whereas it is necessary in Order to form the People of the U. S. of America into a Nation, that the States should be consolidated, by which means all the Citizens thereof will become equally intitled to and will equally participate in the same Privileges and Rights, and in all waste, uncultivated, and back Territory and Lands; it is therefore resolved, that all the Lands contained within the Limits of each State individually, and of the U. S. generally be considered as constituting one Body or Mass, and be divided into thirteen or more integral Parts.

Resolved, That such Divisions or integral Parts shall be styled Districts.

III

[A fair copy of the first four resolutions of II, but not numbered, and in the second resolution “shall” is changed to “ought to”.]

These documents evidently represent preliminary sketches of the New Jersey Plan, and a careful study of the probable origin of the various provisions shows clearly that the completed New Jersey Plan was doubtless a joint product.2

Paterson’s copy of the plan is to be found in a little book into which he also copied the Virginia Plan, the Report of the Committee of the Whole, and Hamilton’s Plan. The resolutions are written on the right-hand pages; certain phrases omitted in copying or changes in wording are written on the left-hand pages with marks to show the places of their insertion. For example, in the doubtful reading of the fourth article, the right-hand page has the words “and removeable on Impeachment and Conviction for Mal-Practice, or Neglect of Duty,” and opposite them on the left-hand page “by Congress on Application by a Majority of the executives of the several States.” In this instance there are no asterisks, and the two phrases probably represent alternative proposals upon which no conclusion was reached. In copying, some of the members doubtless ran the two phrases together.1 It is probable that most of the other variations could be accounted for in a similar way.

In his Genuine Information, Luther Martin states that a question was proposed and negatived “that a union of the States, merely federal, ought to be the sole object of the exercise of the powers vested in the convention.”2 Mr. Jameson identifies this with the action of the Convention on June 19 in rejecting the first of the resolutions presented by Paterson. He therefore concludes that we have in this the correct reading of the first article of the New Jersey Plan.

Martin also stated in his Genuine Information that he had a copy of the New Jersey Plan, which he asked leave to read.3 Shortly afterward (February 15, 1788) there appeared in the Maryland Gazette and Baltimore Advertiser4 a copy of the “Resolves proposed to the Convention by the Honorable Mr. Paterson, and mentioned in Mr. Martin’s Information to the House of Assembly.” It is altogether probable that the printer obtained the document from Martin. This copy consists of sixteen articles. The first is identical with the resolution Martin stated was negatived in the Convention and which Mr. Jameson thinks was the first article of the New Jersey Plan. It is the same as the first resolution partially crossed out in Paterson’s first preliminary draft. The others correspond to those of the Paterson and Brearley copies, except that they differ in order and subdivisions and there is an extra article (“Resolved, that it is necessary to define what offences, committed in any State, shall be deemed high treason against the United States.”), which was included but crossed out in Paterson’s little book.

Assuming that this is Martin’s copy, it would seem to have been compiled like those made by others of the group which formulated the New Jersey Plan, embodying various suggested articles and phrases which appealed to him personally.

Instead of regarding Martin’s statement to be conclusive as to the identity of the first resolution of the New Jersey Plan, it would seem to be more likely that Martin had noted or remembered simply that the first resolution had been rejected, and had then turned to his own copy for the exact wording of it.

The editor’s final conclusion is that the Madison copy fairly reproduces the original, and is probably the most accurate copy in existence of the New Jersey Plan presented to the Convention. This conclusion is confirmed by Madison’s line of argument when insisting upon the correctness of his text as compared with that in the Journal,1 and by King’s summary2 which seems to have been taken down hastily as the plan was read in the Convention.

Sherman’s Proposals

Among the Sherman papers was found a document containing a series of propositions,3 which has been variously interpreted: The members of the Connecticut delegation to the Federal Convention had served upon several different committees of Congress that had proposed amendments to the Articles of Confederation, and this document embodies some of the amendments thus proposed.4 L. H. Boutell, in his Life of Roger Sherman, treats it as having been prepared in the latter part of Sherman’s service in Congress and “as embodying the amendments which he deemed necessary to be made to the existing government.”5 Bancroft, on the other hand, regards it as a plan of government presented to the Federal Convention “which in importance stands next to that of Virginia.”6

Neither of these interpretations is acceptable to the editor, who is inclined to consider this document as more probably presenting the ideas of the Connecticut delegation in forming the New Jersey Plan.7 It is accordingly reprinted here, and is as follows: —

“That, in addition to the legislative powers vested in congress by the articles of confederation, the legislature of the United States be authorised to make laws to regulate the commerce of the United States with foreign nations, and among the several states in the union; to impose duties on foreign goods and commodities imported into the United States, and on papers passing through the post office, for raising a revenue, and to regulate the collection thereof, and apply the same to the payment of the debts due from the United States, and for supporting the government, and other necessary charges of the Union.

To make laws binding on the people of the United States, and on the courts of law, and other magistrates and officers, civil and military, within the several states, in all cases which concern the common interests of the United States: but not to interfere with the government of the individual states, in matters of internal police which respect the government of such states only, and wherein the general welfare of the United States is not affected.

That the laws of the United States ought, as far as may be consistent with the common interests of the Union, to be carried into execution by the judiciary and executive officers of the respective states, wherein the execution thereof is required.

That the legislature of the United States be authorised to institute one supreme tribunal, and such other tribunals as they may judge necessary for the purpose aforesaid, and ascertain their respective powers and jurisdictions.

That the legislatures of the individual states ought not to possess a right to emit bills of credit for a currency, or to make any tender laws for the payment or discharge of debts or contracts, in any manner different from the agreement of the parties, unless for payment of the value of the thing contracted for, in current money, agreeable to the standard that shall be allowed by the legislature of the United States, or in any manner to obstruct or impede the recovery of debts, whereby the interests of foreigners, or the citizens of any other state, may be affected.

That the eighth article of the confederation ought to be amended agreeably to the recommendation of congress of the NA day of NA .1

That, if any state shall refuse or neglect to furnish its quota of supplies, upon requisition made by the legislature of the United States, agreeably to the articles of the Union, that the said legislature be authorised to order the same to be levied and collected of the inhabitants of such state, and to make such rules and orders as may be necessary for that purpose.

That the legislature of the United States have power to make laws calling forth such aid from the people, from time to time, as may be necessary to assist the civil officers in the execution of the laws of the United States; and annex suitable penalties to be inflicted in case of disobedience.

That no person shall be liable to be tried for any criminal offence, committed within any of the United States, in any other state than that wherein the offence shall be committed, nor be deprived of the privilege of trial by a jury, by virtue of any law of the United States.”

APPENDIX F

THE HAMILTON PLAN1

In connection with his important speech of June 18, Hamilton read a sketch of a plan of government which “was meant only to give a more correct view of his ideas, and to suggest the amendments which he should probably propose to the plan of Mr. R. in the proper stages of its future discussion.”2

Although this plan was not formally before the Convention in any way, several of the delegates made copies that show considerable differences in certain articles, — namely, the fourth, seventh and eighth.

In the fourth article, which relates to the executive, the variations are in that part which prescribes the (indirect) mode of his election. Hamilton’s own copy (found among his papers, but may have been retouched by its author) provides for “his election to be made by electors chosen by electors chosen by the people in the election districts aforesaid,” meaning the single-member districts arranged for the choice of senators. That is to say, it provides not that his election shall be secondary, but that it shall be, if the phrase is permissible, a tertiary election. An alternative is provided, which appears in no other of the texts, namely, “or by electors chosen for that purpose by the respective legislatures” — an election still tertiary. The Brearley and Paterson copies, though they do not give the second member of this alternative, agree exactly with the phraseology of the first. In Madison’s copy the process becomes simply that of secondary election — “the election to be made by electors chosen by the people in the election districts aforesaid.” Read’s copy agrees with this. Arguments from one or another of these texts derived from expressions used in the subsequent debates seem to be lacking. The more intricate form in which the Hamilton copy provides for the election of the executive is sustained by the longer plan which Hamilton gave to Madison at the close of the Convention, for this provided for a tertiary rather than a secondary election, and it is easy in copying to omit one of two similar phrases when the repetition is not perfectly well known to be intentional. On the other hand, it is not easy to imagine that the alternative method which is suggested in Hamilton’s copy was really the document read on June 18, yet escaped all notice on the part of all of those whose versions have come down to us.

In the seventh article, relating to the judiciary, the number of judges in the Supreme Court is left blank in the others, whereas in Hamilton’s copy the blank is filled with the word twelve. Much the most probable conclusion is that the document originally read had a blank at this point, which Hamilton subsequently filled in with the number. In his longer plan he provides for a court of from six to twelve judges.

The eighth article in Hamilton’s copy reads:

“The Legislature of the United States to have power to institute courts in each State for the determination of all causes of capture and of all matters relating to their revenue, or in which the citizens of foreign nations are concerned.”

In the other copies we find a less specific definition of their jurisdiction: “for the determination of all matters of general concern.” It would be natural, according to the usual rules respecting copying, to suppose that the more specific phrase was the original, the more general derivative; but this presumption is much weakened when we find several independent texts agreeing exactly in their phrasing of this provision.

Finally, in the ninth article, the various texts differ markedly in respect to the composition of the court for trying impeachments. Hamilton’s copy provides that they shall be tried by a court consisting “of the judges of the Federal Supreme Court, chief or senior judge of the superior court of law of each State.” The others make no mention of the judges of the Federal Supreme Court. Once they were introduced, it is easy to see why the blank in Article 7 should be filled with the word twelve, lest in impeachments of Federal officers they be quite outnumbered by the thirteen chief justices of the States, or so many of them as could attend. But the other copies, while they confine the tribunal to the State judges, have minor variations in their definition of them — Madison, “to consist of the chief NA or judge of the superior court of law of each State”; Read, “chief NA or judges”; Brearley and Paterson, “chief or senior judge”. It is not difficult to imagine that, if the writer did not feel perfectly acquainted with the judicial systems of all the States, and therefore could not in advance of discussion decide what phrase should be used to cover the case of States which did not precisely have a chief judge, he might at first write “chief or NA judge,” and afterward fill in the blank with the word “senior”. In Hamilton’s longer plan, the court for the trial of impeachments in the case of the higher officials is composed of the Supreme Court of the United States, (which was to consist of from six to twelve judges), plus the chief or senior judge of each State, any twelve to constitute a court.

No other data being available, it is impossible to reach a positive conclusion upon the correct reading of any of these variations, but the editor is inclined to rely upon the accuracy of the Madison copy.

The document that has just been discussed is to be distinguished from the following, which was not submitted to the Convention and has no further value than attaches to the personal opinions of Hamilton.1

Copy of a paper Communicated to J. M. by Col. Hamilton, about the close of the Convention in Philada. 1787, which he said delineated the Constitution which he would have wished to be proposed by the Convention: He had stated the principles of it in the course of the deliberations. See

The people of the United States of America do ordain & establish this Constitution for the government of themselves and their posterity.

Article I

§. 1. The Legislative power shall be vested in two distinct bodies of men, one to be called the Assembly, the other the Senate, subject to the negative hereinafter mentioned.

§ 2. The Executive power, with the qualifications hereinafter specified, shall be vested in a President of the United States.

§. 3. The supreme Judicial authority, except in the cases otherwise provided for in this Constitution, shall be vested in a Court to be called the Supreme Court, to consist of not less than six or more than twelve Judges.

Article II

§ 1. The Assembly shall consist of persons to be called representatives, who shall be chosen, except in the first instance, by the free male citizens & inhabitants of the several States comprehended in the Union, all of whom of the age of twenty one years & upwards shall be entitled to an equal vote.

§ 2. But the first Assembly shall be chosen in the manner prescribed in the last article and shall consist of one hundred members of whom N. Hamshire shall have five, Massachusetts thirteen, Rhode Island two, Connecticut seven, N. York nine, N. Jersey six, Pennsylvania twelve, Delaware two, Maryland eight, Virginia sixteen, N. Carolina eight, S. Carolina eight, Georgia 4.

§ 3. The Legislature shall provide for the future elections of Representatives, apportioning them in each State, from time to time as nearly as may be to the number of persons described in the 4 § of the VII article, so as that the whole number of Representatives shall never be less than one hundred, nor more than NA hundred. There shall be a Census taken for this purpose within three years after the first meeting of the Legislature, and within every successive period of ten years. The term for which Representatives shall be elected shall be determined by the Legislature but shall not exceed three years. There shall be a general election at least once in three years, and the time of service of all the members in each Assembly shall begin, (except in filling vacancies) on the same day, and shall always end on the same day.

§ 4. Forty members shall make a House sufficient to proceed to business; but their number may be increased by the Legislature, yet so as never to exceed a majority of the whole number of Representatives.

§ 5. The Assembly shall choose its President and other Officers, shall judge of the qualifications & elections of its own members, punish them for improper conduct in their capacity as Representatives not extending to life or limb; and shall exclusively possess the power of impeachment except in the case of the President of the United States; but no impeachment of a member of the Senate shall be by less than two thirds of the Representatives present.

§. 6. Representatives may vote by proxy; but no Representative present shall be proxy for more than one who is absent.× [In margin: “Quera? (× to provide for distant States)”].

§ 7. Bills for raising revenue, and bills for appropriating monies for the support of fleets and armies, and for paying the salaries of the Officers of Government, shall originate in the Assembly; but may be altered and amended by the Senate —

§ 8. The acceptance of an office under the United States by a Representative shall vacate his seat in the Assembly.

Article III

§ 1. The Senate shall consist of persons to be chosen, except in the first instance, by Electors elected for that purpose by the Citizens and inhabitants of the several States comprehended in the Union who shall have in their own right, or in the right of their wifes, an estate in land for not less than life, or a term of years, whereof at the time of giving their votes there shall be at least fourteen years unexpired.

§ 2. But the first Senate shall be chosen in the manner prescribed in the last Article and shall consist of forty members to be called Senators, of whom N. Hampshire shall have NA Massts. NA R. Island NA Connecticut NA N. York NA N. Jersey NA Pena. NA Delaware NA Maryld. NA Virga. NA N. Carola. NA S. Carol. NA Geo.

§ 3. The Legislature shall provide for the future elections of Senators, for which purpose the States respectively, which have more than one Senator, shall be divided into convenient districts to which the Senators shall be apportioned. A State having but one Senator shall be itself a district. On the death, resignation or removal from office of a Senator his place shall be supplied by a new election in the district from which he came. Upon each election there shall be not less than six nor more than twelve electors chosen in a district

§ 4. The number of Senators shall never be less than forty, nor shall any State, if the same shall not hereafter be divided, ever have less than the number allotted to it in the second section of this article; but the Legislature may increase the whole number of Senators, in the same proportion to the whole number of Representatives as forty is to one hundred; and such increase beyond the present number, shall be apportioned to the respective States in a ratio to the respective numbers of their representatives.

§ 5. If States shall be divided, or if a new arrangement of the boundaries of two or more States shall take place, the Legislature shall apportion the number of Senators (in elections succeeding such division or new arrangement) to which the constituent parts were entitled according to the change of situation, having regard to the number of persons described in the 4. § of the VII article.

§ 6. The Senators shall hold their places during good behaviour, removeable only by conviction on impeachment for some crime or misdemeanor. They shall continue to exercise their offices when impeached untill a conviction shall take place. Sixteen Senators attending in person shall be sufficient to make a House to transact business, but the Legislature may increase this number, yet so as never to exceed a majority of the whole number of Senators. The Senators may vote by proxy, but no Senator who is present shall be proxy for more than two who are absent.

§ 7. The Senate shall choose its President and other Officers; shall judge of the qualifications and electons of its members, and shall punish them for improper conduct in their capacity of Senators; but such punishment shall not extend to life or limb; nor to expulsion. In the absence of their President they may choose a temporary President. The President shall only have a casting vote when the House is equally divided.

§ 8. The Senate shall exclusively possess the power of declaring war. No Treaty shall be made without their advice and consent; which shall also be necessary to the appointment of all officers, except such for which a different provision is made in this Constitution

Article IV

§ 1. The President of the United States of America, (except in the first instance) shall be elected in manner following — The Judges of the Supreme Court shall within sixty days after a vacancy shall happen, cause public notice to be given in each State, of such vacancy, appointing therein three several days for the several purposes following, to wit, a day for commencing the election of electors for the purposes hereinafter specified, to be called the first electors, which day shall not be less than forty, nor more than sixty days, after the day of the publication of the notice in each State — — another day for the meeting of the electors not less than forty nor more than ninety days from the day for commencing their election — — another day for the meeting of electors to be chosen by the first electors, for the purpose hereinafter specified, and to be called the second Electors, which day shall be not less than forty nor more than sixty days after the meeting of the first electors.

§ 2. After notice of a vacancy shall have been given there shall be chosen in each State a number of persons, as the first electors in the preceding section mentioned, equal to the whole number of the Representatives and Senators of such State in the Legislature of the United States; which electors shall be chosen by the Citizens of such State having an estate of inheritance or for three lives in land, or a clear personal estate of the value of one thousand Spanish milled dollars of the present Standard.

§ 3. These first electors shall meet in their respective States at the time appointed, at one place; and shall proceed to vote by ballot for a President, who shall not be one of their own number, unless the Legislature upon experiment should hereafter direct otherwise. They shall cause two lists to be made of the name or names of the person or persons voted for, which they or the major part of them shall sign & certify. They shall then proceed each to nominate openly in the presence of the others, two persons as for second electors, and out of the persons who shall have the four highest numbers of Nominations, they shall afterwards by ballot by plurality of votes choose two who shall be the second electors, to each of whom shall be delivered one of the lists before mentioned. These second electors shall not be any of the persons voted for as President. A copy of the same list signed and certified in like manner shall be transmitted by the first electors to the Seat of the Government of the United States, under a sealed cover directed to the President of the Assembly, which after the meeting of the second electors shall be opened for the inspection of the two House of the Legislature

§ 4. The second electors shall meet precisely on the day appointed and not on another day, at one place. The Chief Justice of the Supreme Court, or if there be no Chief Justice, the Judge senior in office in such Court, or if there be no one Judge senior in office, some other Judge of that Court, by the choice of the rest of the Judges or of a majority of them, shall attend at the same place and shall preside at the meeting, but shall have no vote. Two thirds of the whole number of the Electors shall constitute a sufficient meeting for the execution of their trust. At this meeting the lists delivered to the respective electors shall be produced and inspected, and if there be any person who has a majority of the whole number of votes given by the first electors, he shall be the President of the United States; but if there be no such person, the second electors so met shall proceed to vote, by ballot for one of the persons named in the lists who shall, have the three highest numbers of the votes of the first electors; and if upon the first or any succeeding ballot on the day of their meeting, either of those persons shall have a number of votes equal to a majority of the whole number of second electors chosen, he shall be the President. But if no such choice be made on the day appointed for the meeting either by reason of the nonattendance of the second electors, or their not agreeing, or any other matter, the person having the greatest number of votes of the first electors shall be the President.

§ 5. If it should happen that the Chief-Justice or some other Judge of the Supreme Court should not attend in due time, the second electors shall proceed to the execution of their trust without him.

§ 6. If the Judges should neglect to cause the notice required by the first section of this article to be given within the time therein limited, they may nevertheless cause it to be afterwards given; but their neglect if wilful, is hereby declared to be an offence for which they may be impeached, and if convicted they shall be punished as in other cases of conviction on impeachment.

§ 7. The Legislature shall by permanent laws provide such further regulations as may be necessary for the more orderly election of the President, not contravening the provisions herein contained.

§ 8. The President before he shall enter upon the execution of his office shall take an oath or affirmation, faithfully to execute the same, and to the utmost of his Judgment & power to protect the rights of the people, and preserve the Constitution inviolate. This oath or affirmation shall be administered by the President of the Senate for the time being in the presence of both Houses of the Legislature.

§ 9. The Senate and the Assembly shall always convene in Session on the day appointed for the meeting of the second electors and shall continue sitting till the President take the oath or affirmation of office. He shall hold his place during good behavior, removeable only by conviction upon an impeachment for some crime or misdemeanor.

§ 10. The President at the beginning of every meeting of the Legislature as soon as they shall be ready to proceed to business, shall convene them together at the place where the Senate shall sit, and shall communicate to them all such matters as may be necessary for their information, or as may require their consideration. He may by message during the Session communicate all other matters which may appear to him proper. He may, whenever in his opinion the public business shall require it, convene the Senate and Assembly, or either of them, and may prorogue them for a time not exceeding forty days at one prorogation; and if they should disagree about their adjournment, he may adjourn them to such time as he shall think proper. He shall have a right to negative all bills, Resolutions or acts of the two Houses of the Legislature about to be passed into laws. He shall take care that the laws be faithfully executed. He shall be the commander in chief of the army and Navy of the United States and of the Militia within the several States, and shall have the direction of war when commenced, but he shall not take the actual command in the field of an army without the consent of the Senate and Assembly. All treaties, conventions and agreements with foreign nations shall be made by him, by and with the advice and consent of the Senate. He shall have the appointment of the principal or Chief officer of each of the departments of War, naval Affairs, Finance, and Foreign Affairs; and shall have the nomination; and by and with the Consent of the Senate, the appointment of all other officers to be appointed under the authority of the United States, except such for whom different provision is made by this Constitution; and provided that this shall not be construed to prevent the Legislature, from appointing by name in their laws, persons to special & particular trusts created in such laws, nor shall be construed to prevent principals in offices merely ministerial, from constituting deputies. — In the recess of the Senate he may fill vacancies in offices by appointments to continue in force until the end of the next Session of the Senate. And he shall commission all Officers. He shall have power to pardon all offences except treason, for which he may grant reprieves, untill the opening of the Senate & Assembly can be had; and with their concurrence may pardon the same.

§ 11. He shall receive a fixed compensation for his Services to be paid to him at stated times, and not to be increased nor diminished during his continuance in office -

§ 12. If he depart out of the United States without the Consent of the Senate and Assembly, he shall thereby abdicate his office -

§ 13. He may be impeached for any crime or misdemeanor by the two Houses of the Legislature, two thirds of each House concurring, and if convicted shall be removed from office. He may be afterwards tried & punished in the ordinary course of law - His impeachment shall operate as a suspension from office until the determination thereof.

§ 14. The President of the Senate shall be vice President of the United States. On the death, resignation, impeachment, removal from office, or absence from the United States, of the President thereof, the Vice President shall exercise all the powers by this Constitution vested in the President, until another shall be appointed, or untill he shall return within the United States, if his absence was with the Consent of the Senate and Assembly.

Article V

§ 1. There shall be a chief Justice of the Supreme Court, who together with the other Judges thereof, shall hold their offices during good behaviour, removeable only by conviction on impeachment for some crime or misdemeanor - Each Judge shall have a competent Salary to be paid to him at stated times, and not to be diminished during his continuance in office.

The Supreme Court shall have original jurisdiction in all causes in which the United States shall be a party, in all controversies between the United States, and a particular State, or between two or more States, except such as relate to a claim of territory between the United States, and one or more States, which shall be determined in the mode prescribed in the VI article; in all cases affecting foreign Ministers, Consuls and Agents; and an appellate jurisdiction both as to law and fact in all cases which shall concern the Citizens of foreign nations, in all questions between the Citizens of different States, and in all others in which the fundamental rights of this Constitution are involved, subject to such exceptions as are herein contained and to such regulations as the Legislature shall provide.

The Judges of all Courts which may be constituted by the Legislature shall also hold their places during good behaviour, removeable only by conviction on impeachment for some crime or misdemeanor, and shall have competent salaries to be paid at stated times and not to be diminished during their continuance in office; but nothing herein contained shall be construed to prevent the Legislature from abolishing such Courts themselves.

All crimes, except upon impeachment, shall be tried by a Jury of twelve men; and if they shall have been committed within any State, shall be tried within such State; and all civil causes arising under this Constitution of the like kind with those which have been heretofore triable by Jury in the respective States, shall in like manner be tried by jury; unless in special cases the Legislature shall think proper to make different provision, to which provision the concurrence of two thirds of both Houses shall be necessary.

§ Impeachments of the President and and Vice President of the U- States, members of the Senate, the Governours and Presidents of the several States, the principal or chief Officers of the Departments enumerated in the 10 §. of the 4th. Article, Ambassadors and other like public Ministers, the Judges of the Supreme Court, Generals and Admirals of the Navy shall be tried by a Court to consist of the Judges of the Supreme Court, and the Chief Justice or first senior Judge of the superior Court of law in each State, of whom twelve shall constitute a Court. A majority of the Judges present may convict. All other persons shall be tried on impeachment by a court to consist of the Judges of the supreme Court and six Senators drawn by lot, a majority of whom may convict.

Impeachments shall clearly specify the particular offence for which the party accused is to be tried, and judgment on conviction upon the trial thereof shall be either removal from office singly, or removal from office and disqualification for holding any future Office or place of trust; but no Judgment on impeachment shall prevent prosecution and punishment in the ordinary course of law; provided that no Judge concerned in such conviction shall sit as Judge on the second trial. The Legislature may remove the disabilities incurred by conviction on impeachment.

Article VI

Controversies about the rights of territory between the United States and particular States shall be determined by a Court to be constituted in manner following. The State or States claiming in opposition to the United States as parties shall nominate a number of persons, equal to double the number of Judges of the Supreme Court for the time being, of whom none shall be citizens by birth of the States which are parties, nor inhabitants thereof when nominated, and of whom not more than two shall have their actual residence in one State. Out of the persons so nominated the Senate shall elect one half, who together with the Judges of the supreme Court, shall form the Court. Two thirds of the whole number may hear and determine the controversy, by plurality of voices. The States concerned may at their option claim a decision by the Supreme Court only. All the members of the Court hereby instituted, shall, prior to the hearing of the Cause take an Oath impartially, and according to the best of their judgments and consciences, to hear and determine the controversy.

Article VII.

§ 1. The Legislature of the United States shall have power to pass all laws which they shall judge necessary to the common defence and general welfare of the Union: But no Bill, Resolution, or act of the Senate and Assembly shall have the force of a law until it shall have received the Assent of the President, or of the vice-President when exercising the powers of the President; and if such assent shall not have been given within ten days, after such bill, resolution or other act shall have been presented to him for that purpose, the same shall not be a law- No bill, resolution or other act not assented to shall be revived in the same Session of the Legislature. The mode of signifying such assent, shall be by signing the bill act of resolution, and returning it so signed to either House of the Legislature.

§ 2. The enacting stile of a laws shall be “Be it enacted by the people of the United States of America”.

§ 3. No bill of attainder shall be passed, nor any ex post facto law; nor shall any title of nobility be granted by the United States, or by either of them; nor shall any person holding an office or place of trust under the United States without the permission of the Legislature accept any present, emolument Office or title from a foreign prince or State. Nor shall any Religious Sect, or denomination, or religious test for any office or place, be ever established by law.

§ 4. Taxes on lands, houses and other real estate, and capitation taxes shall be proportioned in each State by the whole number of free persons, except Indians not taxed. and by three fifths of all other persons.

§ 5. The two Houses of the Legislature may by joint ballot appoint a Treasurer of the United States- Neither House in the Session of both Houses, without the consent of the other shall adjourn for more than three days at a time. The Senators and Representatives, in attending, going to and coming from the Session of their respective houses shall be privileged from arrest except for crimes and breaches of the peace. The place of meeting shall always be at the seat of Government which shall be fixed by law.

§ 6. The laws of the United States, and the treaties which have been made under the articles of the confederation, and which shall be made under this Constitution shall be the supreme law of the Land, and shall be so construed by the Courts of the several States.

§ 7. The Legislature shall convene at least once in each year, which unless otherwise provided for by law, shall be the first Monday in December.

§ 8. The members of the two Houses of the Legislature shall receive a reasonable compensation for their services, to be paid out of the Treasury of the United States and ascertained by law. The law for making such provision shall be passed with the concurrence of the first Assembly and shall extend to succeeding Assemblies; and no succeeding Assembly shall concur in an alteration of such provision, so as to increase its own compensation; but there shall be always a law in existence for making such provision.

Article VIII

§ 1. The Governour or President of each State shall be appointed under the authority of the United States, and shall have a right to negative all laws about to be passed in the State of which he shall be Governour or President, subject to such qualifications and regutaions, as the Legislature of the United States shall prescribe- He shall in other respects have the same powers only which the Constitution of the State does or shall allow to its Governour or President, except as to appointment of Officers of the Militia.

§ 2. Each Governour or President of a State shall hold his office until a successor be actually appointed, unless he die, or resign or be removed from office by conviction on impeachment. There shall be no appointment of such Governor or President in the Recess of the Senate.

The Governours and Presidents of the several States at the time of the ratification of this Constitution shall continue in office in the same manner and with the same powers as if they had been appointed pursuant to the first section of this article.

The officers of the Militia in the several States may be appointed under the authority of the U- States; the Legislature whereof may authorize the Governors or Presidents of States to make such appointments with such restrictions as they shall think proper.

Article IX

§. 1. No person shall be eligible to the office of President of the United States unless he be now a Citizen of one of the States, or hereafter be born a Citizen of the United States.

§. 2. No person shall be eligible as a Senator or Representative unless at the time of his election he be a Citizen and inhabitant of the State in which he is chosen; provided that he shall not be deemed to be disqualified by a temporary absence from the State.

§ 3. No person entitled by this Constitution to elect or to be elected President of the United States, or a Senator or Representative in the Legislature thereof, shall be disqualified but by the conviction of some offence for which the law shall have previously ordained the punishment of disqualification. But the Legislature may by law provide that persons holding offices under the United States or either of them shall not be eligible to a place in the Assembly or Senate, and shall be during their continuance in office suspended from sitting in the Senate.

§ 4. No person having an office or place of trust under the United States shall without permission of the Legislature accept any present emolument Office or title from any foreign Prince or State.

§ 5. The citizens of each State shall be entitled to the rights privileges and immunities of citizens in every other State; and full faith and credit shall be given in each State to the public acts, records and judicial proceedings of another.

§ 6. Fugitives from justice from one State who shall be found in another shall be delivered up on the application of the State from which they fled.

§ 7. No new State shall be erected within the limits of another, or by the junction of two or more States, without the concurrent consent of the Legislatures of the United States and of the States concerned. The Legislature of the United States may admit new States into the Union-

§ 8. The United States are hereby declared to be bound to guarantee to each State a Republican form of Government, and to protect each State as well against domestic violence as foreign invasion.

§ 9. All Treaties, Contracts and engagements of the United States of America under the articles of Confederation and perpetual Union, shall have equal validity under this Constitution.

§ 10. No State shall enter into a Treaty, alliance, or contract with another, or with a foreign power without the consent of the United States

§ 11. The members of the Legislature of the United States and of each State, and all officers Executive & Judicial of the one and of the other shall take an oath or affirmation to support the Constitution of the United States -

§ 12. This Constitution may receive such alterations and amendments as may be proposed by the Legislature of the United States, with the concurrence of two thirds of the members of both Houses, and ratified by the Legislatures of, or by Conventions of deputies chosen by the people in, two thirds of the States composing the Union.

Article X

This Constitution shall be submitted to the consideration of Conventions in the several States, the members whereof shall be chosen by the people of such States respectively under the direction of their respective Legislatures- Each Convention which shall ratify the same, shall appoint the first representatives and Senators from such State according to the rule prescribed in the NA § of the NA Article. The representatives so appointed shall continue in office for one year only. Each Convention so ratifying shall give notice thereof to the Congress of the United States, transmitting at the same time a list of the Representatives and Senators chosen. When the Constitution shall have been duly ratified, Congress shall give notice of a day and place for the meeting of the Senators and Representatives from the several States; and when these or a majority of them shall have assembled according to such notice, they shall by joint ballot, by plurality of votes, elect a President of the United States; and the Constitution thus organized shall be carried into effect.

[4 ]Records of May 29.

[1 ]Articles of Confederation.

[2 ]Records of June 6, Appendix A, CCXXXVII, CCXXXVIII, and letter of Read to Dickinson.

[3 ]Confirmed by Read.

[4 ]Read, confirmed by Observations and Records of July 2. Cf. Constitution of New York of 1777.

[5 ]Confirmed by Read and Observations.

[6 ]Confirmed by Observations.

[7 ]Amendment to Articles of Confederation proposed in 1786.

[1 ]New York Constitution of 1777, Article XIX.

[2 ]Confirmed by Observations. Cf. New York Constitution, Article XVIII.

[3 ]Pinckney was opposed to impeachment on July 20. See Records of that date.

[4 ]Confirmed by Observations. Cf. Records of June 6.

[1 ]Confirmed by Observations. Cf. Records of June 8.

[2 ]Confirmed by Observations, and probably modelled upon amendment to Articles of Confederation proposed in 1786.

[3 ]Confirmed by Observations.

[1 ]Confirmed by Observations, and probably modelled upon amendment to Articles of Confederation proposed in 1786.

[2 ]Confirmed by Observations.

[3 ]Substance of this article was in the Wilson Outline. Cf. New York Constitution, Articles XXXII and XXXIII.

[1 ]Confirmed by Observations, and probably modelled upon amendment to Articles of Confederation proposed in 1786.

[1 ]It is doubtful whether this paragraph should be included.

[2 ]Confirmed by Observations.

[3 ]These two paragraphs occur in a somewhat irrelevant way near the end of the pamphlet Observations. The provisions they embody were among those proposed by Pinckney on August 20. It is quite possible that they were not a part of the original plan.

[1 ]See Records, June 14-15, and Appendix A, CLVIII (5) and (10), CCXXXIII, CCCLXXVI.

[2 ]See Madison’s note at the end of his copy (Records, June 15).

[3 ]This resolution is partly crossed out in the original.

[1 ]Added in different ink.

[2 ]Jameson, Studies, 140-143.

[1 ]Ibid, 136-137.

[2 ]Appendix A, CLVIII (35).

[3 ]Appendix A, CLVIII (10).

[4 ]In which the Genuine Information had been printed, December 28, 1787-February 8, 1788. At the point where Martin referred to the New Jersey plan, the printer added a note: “these will be inserted in a future number.”

[1 ]Note at end of his copy, Records, June 15.

[2 ]See above, Records, June 15.

[3 ]Printed in Sanderson, Biography of the Signers of the Declaration of Independence (1823), III, 269-274, and reprinted in Boutell, Life of Roger Sherman (1896), 132-134.

[4 ]Bancroft, History of the Formation of the Constitution II, 37-38, note.

[5 ]Boutell, loc. cit., p. 132.

[6 ]Bancroft, loc. cit., p. 37.

[7 ]See Jameson, Studies, p. 150.

[1 ]These blanks should evidently be filled with “18th of April, 1783.”

[1 ]In preparing this criticism, the editor has used freely, with Mr. Jameson’s permission, “The text of Hamilton’s Plan,” in J. F. Jameson, Studies in the History of the Federal Convention of 1787, pp. 143-150.

[2 ]See Records of June 18, and Appendix A, CCXXXIII, CCLXXI, CCXCII, CCXCIV — CCXCVI, CCCIX, CCCXI, CCCXII, CCCXXIV, CCCXXVIII, CCCXXIX, CCCLIV, CCCLXVII, CCCLXXX, CCCXCVII, CCCCI.

[1 ]See references under note 2, above.