In the draught(draft) of a fundamental constitution, two things deserve attention: 1. To insert essential principles only; lest the operations of government should be clogged by rendering those provisions permanent and unalterable, which ought to be accommodated to times and events: and 2. To use simple and precise language, and general propositions, according to the example of the (several) constitutions of the several states. (For the construction of a constitution necessarily differs from that of law)
1 I.
A preamble seems proper. Not for the purpose of designating the ends of government and human polities—This (business, if not fitter for the schools, is at least sufficiently executed) display of theory, howsoever proper in the first formation of state governments, (seems) is unfit here; since we are not working on the natural rights of men not yet gathered into society, but upon those rights, modified by society, and (supporting) interwoven with what we call (states) the rights of states—
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2or yet is it proper for the purpose of mutually pledging the faith of the parties for the observance of the articles—This may be done more solemnly at the close of the draught(draft) , as in the confederation—
3But the object of our preamble ought to be briefly to (represent) declare, that the present federal government is insufficient to the general happiness; that the conviction of this fact gave birth to this convention; and that the only effectual (means) (mode) which they (could) (can) devise, for curing this insufficiency, is the establishment of a supreme legislative executive and judiciary—(In this manner we may discharge the first resolution. We may then proceed to establish)2 Let it be next declared, that the following are the constitution i. This sketch with emendations(ammendments) in the hand of John Rutledge was a working document used by the Committee of Detail. Farrand printed it from the original in the Mason Papers, Library of Congress. His rendering of the document is used here. Parts of the text in parentheses were "crossed out in the original, italics represent changes made in Randolph's handwriting, and the emendations in Rutledge's handwriting are enclosed in angle brackets" (Farrand, 4:37). 2. Marginal note crossed out: "1st resolution." 183 184 SUPPLEMENT TO FARRAND'S RECORDS and fundamentals of government for the United States3—After this introduction, let us proceed to the 2. First resolution—
This resolution involves three particulars: 1. the style of the United States; which may continue as it now is. 2. a declaration that (an) (a) supreme (execu) legislative executive and judiciary shall be established; and 3. a declaration that these departments shall be distinct, (except) and independent of each other, except in specified cases.
4 In the next place, treat of the legislative, judiciary and executive in their order, and afterwards, of the miscellaneous subjects, as they occur; bringing together all the resolutions, belonging to the same point, howsoever they may be scattered about and leaving to the last the steps necessary to introduce the government.—(Tak) The following plan is therefore submitted I The Legislative 1. shall consist of two branches: viz: a) a house of delegates; and b) a senate; 2. which together shall be called "the legislature of the United States of America." 3 a) The house of delegates I. (shall never be greater in number than To effect this, pursue a rule, similar to that prescribed in the i6th. article of the New-York constitution.) 2.
Each state shall send delegates, according to the ratio, recommended by congress. 3. to ascertain this point, let a census be taken in due time as the national legislature shall direct; within six years from the first meeting of the legislature; and once in every term of ten years thereafter. 4. the census being taken and returned, the legislature shall apportion the representation:
5 5.
The qualifications of (a) delegates shall be the age of twenty five years at least: and citizenship:4 (and any person possessing these qualifications may be elected except) 6. Their duration in office shall be for two years. 7. The elections shall be biennially held on the same day through the same state(s): except in case of accidents, and where an adjournment to the succeeding day may be necessary.
6 3. Marginal note crossed out: "2c1 resolution." 4. Marginal note crossed out: "qu: if a certain term of residence and a certain quantity of landed property ought not to be made by the convention further qualifications." THURSDAY, JULY 26, 1787 185 8. The place shall be fixed by the (national) legislatures from time to time; or on their default by the national legislature. 9. So shall the presiding officer. IO. (Votes shall be given by ballot, unless 2/3 of the national legislature shall choose to vary the mode.) 1 1. The qualification of electors shall be the same (throughout the states; viz.) with that in the particular states, unless the legislature shall hereafter direct some uniform qualification to prevail through the states. (citizenship: manhood sanity of mind previous residence for one year, or possession of real property within the state for the whole of one year, or inrolment in the militia for the whole of a years.)5 (12. All persons who are may be elected;) 12.
A majority shall be a quorum for business; but a smaller number may be authorized by the house to call for and punish non-attending members, and to adjourn for any time not exceeding one week.
7 13. (quaere. how far the right of expulsion may be proper.) The house of delegates shall have power over its own members. 14.
The delegates shall be privileged from arrest' (or assault) personal restraint during their attendance, for so long a time before and after, as may be necessary, for travelling to and from the legislature (and they shall have no other privilege whatsoever.) (is. Their wages shall be)
8 16.
They shall be ineligible to and incapable of holding offices under the authority of the United States, during the term of service of the house of delegates.
9 17.
Vacancies by death disability or resignation shall be supplied by a writ from the (speaker or any other person, appointed by the house.
10 )7 governor of the state, wherein they shall happen. 18
. The house shall have power to make rules for its own government.
11 19 The house shall not adjourn without the concurrence of the senate for more than one week, nor without such concur- 5. Marginal note crossed out: "These qualifications are not justified by the resolutions." 6. "Arrest" underscored in the original. 7. Underscored in the original before being crossed out. 186 SUPPLEMENT TO FARRAND'S RECORDS rence to any other place, than the one at which they are sitting. 4 b) The Senate- (i. shall consist of members; each possessing a vote) 2. the legislature of Each state shall (send) appoint two (members) senators using their discretion as to the time and manner of choosing them. 3.
the qualification of (a) senators shall be the age of 25 years at least: citizenship in the united states: and property in the amount of 4. (Their duration in office shall) They shall be elected for six years and immediately after the first election they shall be divided by lot as near as may be into (four) three classes, (six in each class,) and numbered I, 2, 3: and the seats of the members of the first class shall be vacated at the expiration of the (first) second year, of the second class at the expiration of the fourth and of the third class at the end of the sixth year, and so on continually, that a third part of the senate may be biennially chosen.
12 5. A majority shall be a quorum for business: but a smaller number may be authorized to call for and punish non attending members and to adjourn (for any time not exceeding one week) (from day to day). 6. Each senator shall have one vote (6) 7. The senate shall have power over its own members. (7) 8. The senators shall be privileged from arrest' personal restraint during their attendance, and for so long a time before and so long after, as may be necessary for travelling to and from the legislature (and they shall have no other privileges whatsoever.) (8) 9. The senators shall be ineligible to and incapable of holding any office under the authority of the united states, during the term for which they are elected, and for one year thereafter, (except in the instance of those offices, which may be instituted for the better conducting of the business of the senate, while in session.) (10. Vacancies) (Do.
The wages of the senators shall be paid out of the (nat) treasury of the united states.: those wages for the first six years shall be dollars per dime- 8. "Arrest" underscored in the original. THURSDAY, JULY 26, 1787 187 at the beginning of (the) every sixth year after the first, the supreme judiciary shall cause a special jury of the most respectable merchants and farmers to be summoned to declare what shall have been the averaged value of wheat during the last six years, in the state, where the legislature may be sitting: And for the six subsequent years, the senators shall receive per dime the averaged value of bushels of wheat.)
13 ii. The (house) Senate shall have power to make rules for its own government 12. The Senate shall not adjourn without the concurrence of the house of delegates for more than (one week) (3 days), nor without such concurrence to any place other than that at which they are sitting.
The following are (I) the legislative powers; with certain exceptions; and under certain restrictions
14 (2 with certain exceptions and) (3 under certain restrictions.) agrd. 1. To raise money by taxation, unlimited as to sum, for the (future) past (or) (8) future debts and necessities of the union and to establish rules for collection. Exception(s) agrd. No Taxes on exports.—Restrictons 1. direct taxation proportioned to representation 2. No (headpost) capitation-tax which does not apply to all inhabitants under the above limitation-3. no (other) indirect tax which is not common to all. (4. Delinquency shall be by distress and sale, and officers of state bound to conform) 2.
To regulate commerce (both foreign & domestic & no State to lay a duty on imports—) Exceptions 1. no Duty on exports. 2. no prohibition on (such) (the) importations of (such) inhabitants (or People as the sevl. States think proper to admit) 3. no duties by way of such prohibition. Restrictions.
15 1. A navigation act shall not be passed, but with the consent of (eleven states in) (V3ds. of the Members present of) the senate and (1 o in) (the like No. of) the house of representatives. i88 SUPPLEMENT TO FARRAND'S RECORDS (2. Nor shall any other regulation—and this rule shall prevail, whensoever the subject shall occur in any act.) (3. The lawful territory To make treaties of commerce (qu: as to senate) Under the foregoing restrictions) 4. (To make treaties of peace or alliance) (qu: as to senate) under the foregoing restrictions, and without the surrender of territory for an equivalent, and in no case, unless a superior title.) 5. To make war(:(and)) raise armies. (& equip Fleets.) 6. To provide tribunals and punishment for mere offences against the law of nations. (Indian Affairs)9 7.
To declare the law of piracy, felonies and captures on the high seas, and captures on land.
16 (to regulate Weights & Measures)" 8.
To appoint tribunals, inferior to the supreme judiciary.
17 9. To adjust upon the plan heretofore used all disputes between the States (respecting Territory & jurisdn) 10. To (regulate) (The exclusive right of) coining (money (Paper prohibit) no State to be perd. in future to emit Paper Bills of Credit with. the App: of the Natl. Legisle. nor to make any (Article) Thing but Specie a Tender in paymt. of debts)'' 1 1 . To regulate naturalization 12. (To draw forth the) (make Laws for calling forth the Aid of the) militia, (or any part, or to authorize the Executive to embody them) (to execute the Laws of the Union to inforce Treaties to repel Invasion and suppress internal Comns.) 13. To establish post-offices 14. To subdue a rebellion in any particular state, on the application of the legislature thereof. (of declaring the Crime & Punishmt. of Counterfeitg it.)" 15. To enact articles of war. 16. To regulate the force permitted to be kept in each state. (17. To send embassadors) (Power to borrow Money— To appoint a Treasurer by (joint) ballot)" 9. Marginal note. io. Marginal note. 1 1. Marginal note. 12. Marginal note. 13. Marginal note. THURSDAY, JULY 26, 1787 189 18. To declare it to be treason to levy war against or adhere to the enemies of the U. S. 19. (To organize the government in those things, which) (Insert the it Article) (All laws of a particular state, repugnant hereto, shall be void: and in the decision thereon, which shall be vested in the supreme judiciary, all incidents without which the general principles cannot be satisfied, shall be considered, as involved in the general principle.) (That Trials for Criml. Offences be in the State where the Offe was comd—by Jury—
and a right to make all Laws necessary to carry the foregoing Powers into Execu—)
18 2.
The powers belonging peculiarly to the representatives are those concerning money-bills
19 3. The powers destined for the senate peculiarly, are I. To make treaties of commerce 2. to make (Treaties of) peace. (& Alliance.) 3. to appoint the judiciary 4. (to send Embassadors) 4. The executive (Governor of the united People & States of America.)' 4 1. shall consist of a single person; 2. who shall (hold) be elected by the Legislature (by (joint) Ballot (& in) each Ho. havg a Negative on the other) 3. and shall hold his office for the term of (six) seven years 4. and shall be ineligible thereafter. 5.
His powers shall be 1. to carry into execution the national laws.
20 2. to (command and superintend the militia,) (to be Commander in Chief of the Land & Naval Forces of the Union & of the Militia of the sevl. states)" (3. to direct their discipline) (4. to direct the executives of the states to call them or any part for the support of the national government.) 5. to appoint to offices, not otherwise provided for. (by the constitution) (shall propose to the Legisle. from Time to Time by Speech or Messg such Meas as concern this Union)" 6. to be removeable on impeachment, made by the house of representatives and (on) conviction (of malpractice or neglect of duty,) before the supreme judiciary 14. Marginal note. 15. Marginal note. i6. Marginal note. 1 90 SUPPLEMENT TO FARRAND'S RECORDS (of Treason Bribery or Corruption.) 7. to receive a fixed compensation for the devotion of his time to public service the quantum of which shall be settled by the national legislature: to be paid out of the national treasury. (no Increase or decrease during the Term of Service of the Executive)" 8. (and) to have a qualified negative on legislative acts so as to require repassing by 24. 9. and shall swear fidelity to the union, (as the legislature shall direct.) (by taking an oath of office) 1 o. receiving embassadors 1 .r. commissioning officers. 12. convene legislature (The Presidt. of the Senate to succeed to the Executive in Case of (death) Vacancy untill the Meeting of the Legisle The power of pardoning vested in the Executive (which) his pardon shall not however, be pleadable to an Impeachmt.)" 5.
The Judiciary 1. shall consist of one supreme tribunal: 2: the judges whereof shall be appointed by the senate: 3. and of such inferior tribunals, as the legislature may (appoint:) (establish) (4. the judges of which shall be also appointed by the senate—) 5. all the judges shall hold their offices during good behaviour; 6. and shall receive punctually, at stated times a (fixed) compensation for their services, to be settled by the legislature; in which no diminution shall be made, so as to affect the persons actually in office at the time of such diminution, and shall swear fidelity to the union. 7. The jurisdiction of the supreme tribunal shall extend 1. to all cases, arising under laws passed by the general; (Legislature) 2. to impeachments of officers: and 3. to such other cases, as the national legislature may assign, as involving the national peace and harmony; in the collection of the revenue in disputes between citizens of different states (in disputes between a State & a Citizen or Citizens of another State)' in disputes between different states; and in disputes, in which subjects or citizens of other countries are concerned (& in Cases of Admiralty Jurisdn.)
21 17. Marginal note. 18. Marginal note. I9. Marginal note. THURSDAY, JULY 26, 1787 191
But this supreme jurisdiction shall be appellate only, except in (Cases of Impeachmt. & (in)) those instances, in which the legislature shall make it original: and the legislature shall organize it 8. The whole or a part of the jurisdiction aforesaid, according to the discretion of the legislature, may be assigned to the inferior tribunals, as original tribunals.
22 Miscellaneous provisions 1
New states soliciting admission into the Union (i . must be within the present limits of the united states:) 2. must lawfully arise; that is (a—in the territory of the united states, with the assent of the legislature.) (b—within the limits of a particular state, by the consent of a major part of the people of that state:) (States lawfully arising & if within the Limits of any of the prest. States by Consent of the Legisle. of those States.)" 3. shall be admitted only on the suffrage of (36ds.) in the house of representatives and (the like No. in the) Senate 4. & shall be admitted on the same terms with the original states (but the number of states or votes required on particular measures shall be readjusted—) 5. provided always, that the legislature may use their discretion in (refusing) admitting or rejecting, and may make any condition concerning the (old) debt of the union (at that Time.) (6. provided also, that the western states are entitled to admission on the terms specified in the act of congress of)
23 2.
The guarantee is 1. to prevent the establishment of any government, not republican: (2) (3.) to protect each state against internal commotion; and (3) (2.) against external invasion. 4. But this guarantee shall not operate (in the last Case) without an application from the legislature of a state.
24 5 3.
The legislative executive and judiciaries of the states shall swear fidelity to the union, as the national legislature shall direct.
25 4. The ratification of the reform is—After the approbation of congress—to be made by a special convention (in each State) recommended by the assembly to be chosen for the express purpose of considering and approving or rejecting it in to two: and this recommendation may be used from time to time 5. (An alteration may be effected in the articles of union, on the appli- 20. Marginal note. 192 SUPPLEMENT TO FARRAND'S RECORDS cation of two thirds nine (VA) of the state legislatures (by a Convn.)) (on appin. of 2/3ds of the State Legislatures to the Natl. Leg. they call a Convn. to revise or alter the Articles of Union.) (6. The plighting of faith ought to be in solemn terms.) Addenda 1. The assent of the (major part of the people) (Conventions) of states shall give (birth) operation to this constitution 2. Each assenting state shall notify its assent to congress: who shall publish a day for its commencement, not exceeding After such publication, or (on) with the (failure thereof) assent of the major part of the assenting states, after the expiration of days from the giving of the assent of the ninth state, 1. each legislature shall direct the choice of representatives, according to the seventh article and provide for their support: 2. each legislature shall also choose senators; and provide for their support. 3. they shall meet at (the Place &) on the day assigned by congress, (or as the major part of the assenting states shall agree, on any other day.) 4 They shall as soon as may be after meeting elect the executive: and proceed to execute this constitution. The object of an address is to satisfy the people of the propriety of the proposed reform. To this end the following plan seems worthy of adoption 1. To state the general objects of a confederation. 2 To shew by general, but pointed observations, in what (particulars) respects, our confederation has fallen short of those objects. 3. The powers, necessary to be given, will then follow as a consequence of the defects 4. A question next arises, whether these powers can with propriety be vested in congress. The answer is, that they cannot. 5. But As some states may possibly meditate partial confederations, it would be fit now to refute this opinion briefly. 6. It follows then, that a government of the whole on national principles, with respect to taxation &c is most eligible. 7. This would lead to a short exposition of the leading particulars in the constitution. 8. This done, conclude in a suitable manner. This is the shortest scheme, which can be adopted. For it would be strange to ask (for) new powers, without assigning some reason—it matters not how general so ever—which may apply to all of them. Besides we ought to furnish the advocates of the plan in the country with some general THURSDAY, JULY 26, 1787 193 topics. Now I conceive, that these heads do not more, than comprehend the necessary points.