The Constitutional Convention, A Second
General Convention, and A Bill of Rights,
12–15 September 17871
The idea of a second general convention was first
advanced in the Constitutional Convention by George Mason
of Virginia on 31 August. He declared that, if changes were
not made, he would want “to bring the whole subject before
another general Convention.” Governor Edmund Randolph
of Virginia then added that, if he could not approve the final
form of the Constitution, he would propose that the state
conventions be allowed “To propose amendments to be
submitted to another General Convention.”
On 15 September Randolph, asserting that the powers
given Congress were “indefinite and dangerous,” moved that
state conventions be allowed to submit amendments to the
consideration of a second constitutional convention. Mason
seconded the motion which was also supported by Elbridge
Gerry of Massachusetts. The motion was unanimously
rejected by the states.
During the Convention, various delegates had proposed
that certain civil liberties be guaranteed. The Convention
accepted some guarantees and incorporated them in the early
drafts of the Constitution. A bill of rights was not proposed,
however, until 12 September, after the Committee of Style
had reported the final draft constitution. On that day Gerry
moved that a committee be appointed to prepare a bill of
rights. The motion, seconded by Mason, was defeated
unanimously.
Because of the increased power of the central
government and the Convention’s refusal to adopt a bill of
rights, Gerry, Mason, and Randolph did not sign the
Constitution on 17 September. In the next few months, the
three men were attacked for their refusal, and in response,
each publicly defended his position. Mason and Gerry
opposed the Constitution throughout 1787 and 1788, but
Randolph voted to ratify it in the Virginia Convention.
Elbridge Gerry (1744–1814), a Marblehead, Mass.,
merchant who moved to Cambridge in 1786, was a delegate
to Congress from 1776 to 1780 and from 1783 to 1785 and
signed the Declaration of Independence and the Articles of
Confederation. Gerry was appointed to the Annapolis
Convention in 1786 but did not attend. In the Constitutional
Convention, he advocated the strengthening of the central
government, but he became increasingly dismayed as the
Convention steadily enhanced the powers of that
government. His objections to the Constitution, in a letter sent
to the Massachusetts legislature, were published in early
November 1787 (CC:227). Gerry was a U.S. Representative
from 1789 to 1793, a commissioner to France in 1797 and 1798,
governor of Massachusetts from 1810 to 1812, and Vice
President of the United States from 1813 until his death.
George Mason (1725–1792), a planter, lived at Gunston
Hall near Alexandria, Va., and was a friend and neighbor of
George Washington. Mason drafted the Virginia Declaration
of Rights and parts of the state constitution of 1776. He was a
member of the state House of Delegates from 1776 to 1781
and from 1786 to 1788. He was elected a delegate to Congress
in 1777 and to the Annapolis Convention in 1786 but attended
neither. Mason was one of the most frequent speakers in the
Constitutional Convention, where he supported the
strengthening of the central government, but insisted that the
rights and liberties of the people be protected. His objections
to the Constitution circulated in manuscript from September
to November 1787 and were printed in mid-November
(CC:138, 276). In June 1788 Mason voted against ratification in
the Virginia Convention. In 1790 he refused an appointment
to the U.S. Senate to replace William Grayson who had died.
Edmund Randolph (1753–1813), a Williamsburg lawyer,
was attorney general of Virginia from 1776 to 1786 and
governor from 1786 to 1788. Randolph was a delegate to
Congress in 1779 and from 1781 to 1782. He was a member of
the Annapolis Convention. In the Constitutional Convention,
he presented the Virginia Resolutions, which became the
basis for the Constitution. In late December 1787, he
published a letter explaining why he did not sign the
Constitution (CC:385). In June 1788, however, he voted for
ratification in the Virginia Convention. As a member of the
Virginia House of Delegates in 1788 and 1789, he helped to
codify the laws of Virginia. Randolph was U.S. Attorney
General from 1789 to 1794 and Secretary of State from 1794 to
1795.
Wednesday, 12 September
Mr. [Hugh] Williamson, observed to the House that no
provision was yet made for juries in Civil cases and
suggested the necessity of it.
Mr. [Nathaniel] Gorham. It is not possible to
discriminate equity cases from those in which juries are
proper. The Representatives of the people may be safely
trusted in this matter.
Mr. Gerry urged the necessity of Juries to guard agst.
corrupt Judges. He proposed that the Committee last
appointed should be directed to provide a clause for securing
the trial by Juries.2
Col: Mason perceived the difficulty mentioned by Mr.
Gorham. The jury cases can not be specified. A general
principle laid down on this and some other points would be
sufficient. He wished the plan had been prefaced with a Bill
of Rights, & would second a motion if made for the purpose.
It would give great quiet to the people; and with the aid of
the State declarations, a bill might be prepared in a few hours.
Mr. Gerry concurred in the idea & moved for a
Committee to prepare a Bill of Rights. Col: Mason 2ded. the
motion.
Mr. [Roger] Sherman, was for securing the rights of the
people where requisite. The State Declarations of Rights are
not repealed by this Constitution; and being in force are
sufficient. There are many cases where juries are proper
which can not be discriminated. The Legislature may be
safely trusted.
Col: Mason. The Laws of the U.S. are to be paramount to
State Bills of Rights. On the question for a Come. to prepare a
Bill of Rights
N.H. no. Mas. abst. Ct. no. N.J. no. Pa. no. Del. no. Md.
no. Va. no. N.C. no. S.C. no. Geo. no.
Friday, 14 September
Col: Mason moved to strike out from the clause (art I.
Sect 9.) “No bill of attainder nor any ex post facto law shall be
passed” the words “nor any ex post facto law.” He thought it
not sufficiently clear that the prohibition meant by this phrase
was limited to cases of a criminal nature, and no Legislature
ever did or can altogether avoid them in Civil cases.
Mr. Gerry 2ded. the motion but with a view to extend
the prohibition to “civil cases,” which he thought ought to be
done.
On the question; all the states were-no.
Mr. [Charles] Pinkney & Mr. Gerry, moved to insert a
declaration “that the liberty of the Press should be inviolably
observed.”
Mr. Sherman. It is unnecessary. The power of Congress
does not extend to the Press. On the question,3
N.H. no.4 Mas. ay. Ct. no. N.J. no. Pa. no. Del. no. Md.
ay. Va. ay. N.C. no. S.C. ay. Geo. no.
Saturday, 15 September
Mr. Randolph animadverting on the indefinite and
dangerous power given by the Constitution to Congress,
expressing the pain he felt at differing from the body of the
Convention, on the close of the great & awful subject of their
labours, and anxiously wishing for some accomodating
expedient which would relieve him from his embarrassments,
made a motion importing “that amendments to the plan
might be offered by the State Conventions, which should be
submitted to and finally decided on by another general
Convention.” Should this proposition be disregarded, it
would he said be impossible for him to put his name to the
instrument. Whether he should oppose it afterwards he
would not then decide but he would not deprive himself of
the freedom to do so in his own State, if that course should be
prescribed by his final judgment–
Col: Mason 2ded. & followed Mr. Randolph in
animadversions on the dangerous power and structure of the
Government, concluding that it would end either in
monarchy, or a tyrannical aristocracy; which, he was in
doubt, but one or other, he was sure. This Constitution had
been formed without the knowledge or idea of the people. A
second Convention will know more of the sense of the
people, and be able to provide a system more consonant to it.
It was improper to say to the people, take this or nothing. As
the Constitution now stands, he could neither give it his
support or vote in Virginia; and he could not sign here what
he could not support there. With the expedient of another
Convention as proposed, he could sign.
Mr. [Charles] Pinkney. These declarations from
members so respectable at the close of this important scene,
give a peculiar solemnity to the present moment. He
descanted on the consequences of calling forth the
deliberations & amendments of the different States on the
subject of Government at large. Nothing but confusion &
contrariety could spring from the experiment. The States will
never agree in their plans, and the Deputies to a second
Convention coming together under the discordant
impressions, of their Constituents, will never agree.
Conventions are serious things, and ought not to be repeated.
He was not without objections as well as others to the plan.
He objected to the contemptible weakness & dependence of
the Executive. He objected to the power of a majority only of
Congs. over Commerce. But apprehending the danger of a
general confusion, and an ultimate decision by the Sword, he
should give the plan his support.
Mr. Gerry. Stated the objections which determined him
to withhold his name from the Constitution. 1. the duration
and re-eligibility of the Senate. 2. the power of the House of
Representatives to conceal their journals. 3. the power of
Congress over the places of election. 4 the unlimited power of
Congress over their own compensations. 5 Massachusetts has
not a due share of Representatives allotted to her. 6. 3/5 of
the Blacks are to be represented as if they were freemen. 7.
Under the power over commerce, monopolies may be
established. 8. The vice president being made head of the
Senate. He could however he said get over all these, if the
rights of the Citizens were not rendered insecure 1. by the
general power of the Legislature to make what laws they may
please to call necessary and proper. 2. raise armies and
money without limit. 3. to establish a tribunal without juries,
which will be a Star-Chamber as to Civil cases. Under such a
view of the Constitution, the best that could be done he
conceived was to provide for a second general Convention.
On the question on the proposition of Mr. Randolph. All
the States answered no.
On the question to agree to the Constitution as
amended. All the States ay.
The Constitution was then ordered to be engrossed,
And the House adjourned
1 MS, Madison Papers, DLC. Printed: Farrand, II, 587–88, 617–18, 631–
33.
2 Probably a reference to the Committee of Style which had been
appointed on 8 September “to revise the style of and arrange the
articles agreed to by the House.…” This committee reported the
second draft of the Constitution on 12 September.
3 At a later date, Madison added “it passed in the negative.”
4 At a later date, Madison added “In the printed Journal N.
Hampshire ay.”
Cite as: The Documentary History of the Ratification of the Constitution Digital Edition,
ed. John P. Kaminski, Gaspare J. Saladino, Richard Leffler, Charles H. Schoenleber
and Margaret A. Hogan. Charlottesville: University of Virginia Press, 2009.
Canonic URL: http://rotunda.upress.virginia.edu/founders/RNCN-03-13-020078 [accessed 24 Jan 2012]
Original source: Commentaries on the Constitution, Volume XIII: Commentaries
on the Constitution, No. 1