Draft of a Constitution1
[Philadelphia, September 17, 1787]2
A senator when impeached shall continue to exercise his office until conviction
The People of the United States do ordain and establish this constitution for the government of themselves and their Posterity.
§ 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 other wise provided for in this constitution, shall be vested in a court to be called the Supreme Court to consist of not less than six nor more than twelve judges.
§ 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 and inhabitants of the several states comprehended in the Union; all of whom of the age of twenty one years and upwards shall be intitled to an equal vote.
§ 2 But this first Assembly shall be chosen in the mann⟨er⟩ prescribed in the last article and shall consist of one hundred members of whom New Hampshire shall have five Massachusettes thirteen Rhode Island two Connecticut seven New York nine New Jersey six Pensylvania twelve Delaware two Maryland Eight Virginia sixteen North Carolina Eight South Carolina
seven Georgia five four.
§ 3 The Legislature shall provide for the further 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 7 article, so as that the whole number of representatives shall never be less than One hundred nor m⟨ore⟩ than 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. ⟨and the⟩ time of service of the members in each Assembly (except in filling vacancies)
shall begin on the same day and shall end on the same day.
Fifty one Forty members shall make a house sufficient to proceed to business; but this number may be increased by the Legislature, yet so as never to exceed a majority of the whole number of representatives.3
§ 5 The Assembly shall choose its President and other officers shall judge of the qualifications & elections of its own members,
shall punish them for improper conduct in their capacity of Repres: not extending to life or limb4 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.
§ 7 Bills for raising revenue, and appropriating monies for
carrying on war and 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
shall by a representative shall vacate his seat in the Assembly.
§ 1 The Senate shall consist of persons to be chosen, except in the first instance, by electors elected for that purpose by the
pers citizens and inhabitants of the several states comprehended in the Union who shall hold in their own right or in the right of their wives 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 New Hampshire shall have Massachusettes Rhode Island Connecticut New York New Jersey Pensylvania Delaware Maryland Virginia North Carolina South Carolina Georgia
§ 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 . 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 ⟨incr⟩ease the 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
limits 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 intitled according to the change of situation having regard to the number of persons described in the 4th § of the 7th. article.
§ 6 The Senators shall hold their places, during good behaviour, removeable only by conviction on impeach for some crime or misdemeanor. They shall continue to exercise their offices when impeached until a conviction shall take place. Sixteen Senators shall be sufficient to make a house ; but the legislature may increase this number yet so as never to exceed a majority of the whole number of Senators. The
absent Senators may vote by proxy but no senator shall be proxy for more than two who are absent.5
§ 7 The Senate shall choose its President and other officers;
and shall judge of the qualifications and elections 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;
nor shall also be necessary to the appointment of all officers, except such for which a different provision shall be made, in this constitution.
§ 1 The President of the United States of America 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 purposes following to wit—a day for commencing the election of electors for the purposes hereinafter
described specified with which day shall be not less than forty xxx nor more than sixty days xx after the time of the publication of the notice in each state—another day not less than thirty 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 xx days nor more than sixty days after the day for 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
five hundred one thousand Spanish milled dollars of the present standard.
§ 3 These first electors shall meet 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 ⟨di⟩rect otherwise.6 They shall cause
a lists to be made of the name or names of the person or persons voted for, which they shall sign and certify. They shall also then proceed to nominate individually and openly in the presence of each 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 beforementioned. These second electors shall not be any of the persons voted for as President.7 A copy of the same list 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 houses of the legislature.
§ 4 These second electors shall meet
at the time appointed at one place.8 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 be sufficient to execute their 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 the 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 such 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 thereof either of those persons shall a have a majority 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 non attendance 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 shall be punished as in other cases of impeachment.
§ 7 The Legislature shall by permanent laws provide such further regulations as may be necessary for the more orderly election of the President
ei 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
his office, and to the utmost of his judgment and power to protect the rights of the people and preserve the constitution inviolate, unless altered in the mode specified in the. 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
two houses of the Legislature shall always assemble on the day appointed for the meeting of the second electors and shall continue sitting till a the President be sworn into off take the oath or affirmation of office. He shall hold his office during good behaviour removeable only by conviction by an impeachment for some crime or misdemeanor.9
If the President depart out of the United States without the consent of the Senate and Assembly he shall thereby abdicate his office.
§ 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 adjourn them may adjourn them to such time as he shall think proper.10 He shall have a right to negative all bills or acts of the two houses 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
of 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 consent of the Senate. He shall have the appointment of the principal or chief officer of each of the departments of war naval affairs finan⟨ce⟩ and foreign affairs; and shall have the nomination, and, by and with the advice consent of the Senate, the appointment of all other officers to be appointed under the authority of the United States ; provided that this shall not be construed to prevent ed the legislature from appointing, by name, in their laws, persons to special and 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 He shall commission all officers. He shall have power to pardon all offences except treason for which he may grant a reprieves until the opion of the Senate can be had, and with their concurrence may pardon the same.12
12 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
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 and punished in the ordinary course of law. His impeachment shall operate as a suspension from office until the determination thereof.13
§ 14 The President of the Senate shall be vice President of the United States. On the death, resignation 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 until he shall return within the United States if his absence was with the consent of the Senate and Assembly.
§ 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
to 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,
except touching a claim and in all controversies between the United States and a particular state or14 between two or more states, except, in either case, such as relate a claim of territory between the United States and one or more states, or between two 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 in all both as to law and fact in all cases which shall concern the citizens of foreign nations and in all questions between the citizens of different states su 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 hold their places during good behaviour removeable only
on conviction on impeachment for some crime or offence; 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 such15 the Courts themselves.
All crimes, except upon impeachment shall be tried by a jury of twelve men and if they
ha 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 states16 except those between the United States and one or more states or between different states shall be tried by jury in the 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 of the U S the Governors 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 or 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 the Supreme Court provided that it shall require the assent of six judges to 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 on the second trial. The Legislature may
except remove the disabilities incurred by an conviction on impeachment.
Trial of Territorial claims17 All Controversies about the right of territory between the United States and
one or more states shall be constituted in determined by a Court to be constituted in manner following.18 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 the Judges of the Supreme Court for the time being, of whom none shall be citizens of the states which are parties nor actual inhabitants thereof when nominated and of whom not more than two shall have their actual residence is one state. Out of the persons so nominated the senate shall elect one half who together with the Judges of the Supreme Court and majority of the whole number present shall decide the Controversy may hear and determine the controversy, ⟨—⟩19 by plurality of voices. The states concerned may at their option claim 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.20
§ 1 The legislature of the United States shall have power to pass all laws which they shall judge necessary to the common defence and safety and to the 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;
for which purpose and if such assent shall not have been given within ten days after such bill shall resolution or other act shall have been presented 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 of21 signifying such assent shall be by signing the bill act or resolution and returning it to the house through ⟨—⟩22 which it last passed of the legislature.
§ 2 The enacting stile of all 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 by 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 denomination, or religious test for any office or place, be ever established by law.23
§ 4 Taxes on lands houses and other real estate 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.24
§ 5 The two houses of the Legislature may by joint ballot appoint a Treasurer of the United States. Neither house without the consent of the other shall adjourn for more than three days at a time. The place of meeting shall always be at the seat of government which shall be fixed by law. The Senators and representatives in attending the session of their respective houses shall be privileged from arrest except for crimes and breaches of the peace.25
§ 6 The laws of the United States and the treaties which have been made under the articles of confederation and 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.
Any thing to the contrary notwithstanding.
§ 7 The Legislature shall convene at least once in each year
s which unless otherwise provided for by law shall be the first monday in December.26
§ 8 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 first D The law for making such provision shall except in the first instance 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 always a law in existence for making such provision.
Article VIII The Gover
§ 1 The Governor 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 Governor or President subject to such qualifications and regulations 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
t its governor or President except as to the appointment of Officers of the Militia.
§ 2 Each governor 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 Governors 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: S; The Legislature
thereof may authorise the Governors or Presidents of states to make such appointments with such restrictions as they shall think proper.
Article the 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
free 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 intitled 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
powers provide that persons holding offices under the United States or either of them shall not be eligible in the Assembly or Senate and shall be during their continuance in office suspended from sitting in the senate.28
§ 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 intitled 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 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 contract with another
not or with a foreign power without the consent of the United States.29
§ 11 The members of the Legislature of the United States and of each state and all officers executive and judicial of the one and of the other shall take an
office or affirmation to support the constitution of the United States.
§ 12 This constitution may receiv
ed 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 conventions of deputies chosen by the people in, two thirds of the states composing the Union.
§ This constitution shall be submitted to the consideration of Conventions in the several states
w the members whereof shall be chosen of the People of such states respectively under the direction of the state their respective legislatures. Each Convention which shall ratify the same shall appoint the first members of Assemb representatives and senators from such state according to the rule prescribed in the § of the Article. The representatives so appointed shall continue in office for one year only. When Each convention so ratifying shall give notice thereof to the Congress of the United States to 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 mee⟨ting⟩ of the Senators and representatives from the severall states; and when these or a majority of them shall have assembled according to such notice they shall by join ballot choose a President of the United States; and the Constitution thus organized shall be carried into effect.30
1. ADf, MS Division, New York Public Library. In the Hamilton Papers, Library of Congress, and in the JCH Transcripts description begins John C. Hamilton Transcripts. These transcripts are owned by Mr. William H. Swan, Hampton Bays, New York, and have been placed on loan in the Columbia University Libraries. description ends there are two facsimiles of a copy of this document. The facsimiles at first glance appear to be in H’s writing. A close examination, however, reveals minor variations of the kind a copyist might make while attempting an exact duplicate of a draft. A plausible reason for the existence of the facsimiles has not been found. Another copy of the “Draft of a Constitution,” in an unidentified handwriting, is also in the Hamilton Papers, Library of Congress. A copy that James Madison made is in the James Madison Papers, Library of Congress.
This document has been printed exactly as it was written. H’s deletions have been retained and his insertions, unless otherwise indicated, have been printed just as he made them; also a number of blank spaces left in the MS for later insertions. Material in broken brackets is taken from the facsimile in the Hamilton Papers, Library of Congress.
2. The precise date on which H finished his “Draft of a Constitution” cannot be determined. It must have been completed near the end of the Convention, for the statements of both Madison and H agree that he presented it to Madison a few days before or after the final day of the Convention. September 17 has been selected as the date on which H handed it to Madison and that date has been ascribed to the document. J. C. Hamilton (Hamilton, History description begins John C. Hamilton, Life of Alexander Hamilton, a History of the Republic of the United States of America (Boston, 1879). description ends , III, 284–302, and Hamilton, Life description begins John C. Hamilton, The Life of Alexander Hamilton (New York, 1840). description ends , II, 490–507), eager to prove the inaccuracy of James Madison’s record of H’s remarks in the Convention, gives a confusing account of the times at which the “Plan of Government” (see enclosure to “Constitutional Convention. Speech on a Plan of Government,” June 18, 1787) and the “Draft” were composed. He evidently assumed that H read the more detailed version of his proposed constitution, the “Draft,” on June 18. Lodge (HCLW description begins Henry Cabot Lodge, ed., The Works of Alexander Hamilton (New York, 1904). description ends , I, 347) correctly stated that the “Plan” was introduced on June 18 and that the “Draft of a Constitution,” representing H’s elaboration of the “Plan,” was handed to Madison near the end of the Convention.
3. This paragraph is inserted in the margin.
4. The material beginning with the words “shall judge” and ending with the words “life or limb” is inserted in the margin.
5. The material beginning “shall be sufficient” through the rest of this paragraph is inserted in the margin.
6. The material beginning “who shall no” through “otherwise” is inserted in the margin. The insertion is preceded by the letter “A.”
7. This sentence is inserted in the margin.
8. There is an indecipherable, crossed-out insertion in the margin.
9. The words “office” through “misdemeanor” are inserted in the margin. They are preceded by the letter “A.”
10. This sentence is inserted in the margin.
11. The words “constitution and” are inserted in the margin.
12. Beginning with the words “to pardon,” the rest of this paragraph is inserted in the margin.
13. Beginning with the words “as a,” the rest of this sentence is inserted in the margin.
14. The words “between the United States and a particular State or” are inserted in the margin.
15. The word “such” is inserted in the margin.
16. The part of this sentence beginning with the words “of the like kind” and ending with the word “states” was inserted in the margin.
17. The words “Trial of Territorial claims” were inserted in the margin.
18. In the margin opposite this sentence H wrote and crossed out “general idea takes in the plan in the Confederation.”
19. H at this point wrote and crossed out a word which is indecipherable.
20. Following this paragraph on the MS there is a section on the compensation of the legislature. Opposite this section H wrote “Section the 8 of Article 7.” It has been, accordingly, transposed.
21. At this point, which is at the bottom of a page of the MS, H wrote: “Vide A above.”
22. This word is indecipherable.
23. Beginning with the word “religious,” the rest of this sentence is inserted in the margin.
24. This paragraph is inserted in the margin.
25. This paragraph is inserted in the margin.
26. The words “Vide 8 Page 14” are inserted at the bottom of this paragraph. See note 18.
27. Above the word “thereof” H wrote and then crossed out a word which is indecipherable.
28. Beginning with the words “may by law,” the rest of this paragraph is inserted in the margin.
29. This paragraph is inserted in the margin, followed by the deleted words “§ 11. The two houses of the.”
30. The following list appears on a page following the last page of H’s “Draft of a Constitution”:
|courts their own clerks|