The State of New Hampshire did not appoint its delegates to the Convention until June 27. Its resolution authorized four “commissioners” by name. “They, or any two of them, are authorized” to represent New Hampshire. Today, two of the four arrived, Nicholas Gilman and John Langdon; they will be the only delegates attending from that State. Their credentials were read, and they took their seats as the Convention considered the three remaining resolutions of the Report of the Committee of the Whole.
Resolution 17 provides that “provision ought to be made for future amendments of the articles of Union, whensoever it shall be deemed necessary.” A specific process was not included, but the resolution passed nem. con.
Resolution 18 also passed unanimously but required some comment and amendment. The resolution requires “the legislature, executive, and judiciary of the States to be bound by oath to support the articles of Union.” Hugh Williamson suggested that a reciprocal oath should be required - that national officers, “support the governments of the States.” Williamson’s idea received no support, but Elbridge Gerry offered an amendment readily agreed to – that officers of the national government also should swear to support the national government. Resolution 18, as amended, passed nem. con.
The final resolution, number 19, sparked a vigorous debate. It provides that the recommendations emanating from the Convention, identified as “amendments to the Confederation,” be ratified “by an assembly or assemblies recommended by the several legislatures to be expressly chosen by the people.” Oliver Ellsworth was on his feet instantly, ready with a motion that the amendments be referred the State legislatures for ratification. William Paterson seconded the motion.
Even before Ellsworth spoke to his motion, George Mason took the floor. Referring “the plan to the authority of the people is one of the most important and essential of the resolutions,” he began. “The legislatures have no power to ratify it. They are mere creations of the State constitutions and cannot be greater than their creators…Succeeding legislatures, having equal authority, could undo the acts of their predecessors.” Edmund Randolph concurred, noting that some legislatures may delay unless required to refer the question to the people.
Gerry responded. “The Confederation is paramount to any State constitution,” he said, and the Articles of Confederation expressly require that any “alteration be agreed to in a congress of the United States and be afterwards confirmed by the legislatures of every State.” Nathaniel Gorham was ready with a point by point rebuttal. First, men chosen by the people to attend a convention will be more candid than members of the legislatures “who are to lose power which is to be given up to the national government.” Second, most of the State legislatures have more than one branch; it will be more difficult in these cases than to hold a convention. In addition, in some States the most able men are not in the legislature but may be elected to a convention for a single purpose. He cited the establishment of the Massachusetts constitution as a good example.
Gorham continued. “State legislatures will be interrupted by a variety of little business,” he asserted, and “designing men will find means to delay from year to year.” Finally, he addressed Gerry’s point regarding the requirement found in the Articles. “If the last article of the Confederation is to be pursued, the unanimous concurrence of the States will be necessary,” he agreed. “But will anyone say, that all the States are to suffer themselves to be ruined, if Rhode Island should persist in her opposition to general measures?…It would deserve serious consideration whether provision ought not to be made for giving effect to the system without waiting for the unanimous concurrence of the States.”
Ellsworth shot back. “A new set of ideas seems to have crept in since the Articles of Confederation were established,” he snapped. “Conventions of the people, or with power derived expressly from the people, were not then thought of. The legislatures were considered as competent…To whom have Congress applied on subsequent occasions for further powers? To the legislatures, not to the people.”
The charge has been leveled more than once that the Convention is exceeding its power. It was authorized to “propose amendments” to the Articles but clearly the Convention is going beyond that. Gouverneur Morris all but admitted the charge is true in his reply to Ellsworth. “Mr. Ellsworth” he said, “erroneously supposes that we are proceeding on the basis of the Confederation. This convention is unknown to the Confederation!”
Following an extended debate, Ellsworth’s motion failed 3 – 7. The original recommendation passed, providing that the new constitution shall be sent to the Congress and forwarded to State conventions chosen by the people for ratification. Only Delaware voted “no.”
The number of Senators per State and how they might vote had not yet been decided. To that end, Morris moved that each State have three Senators and that they vote “per capita,” meaning they would cast individual votes. A brief discussion resulted in two Senators per State. All the States except Maryland supported per capita voting.
As the session neared adjournment, Gerry moved the proceedings to date be referred to a committee to prepare a comprehensive report. Should the committee consist of one delegate from each State? Rejected. Seven members? Rejected on a tie vote. Five members? Yes, with its members to be selected tomorrow.