The Attestation Clause

Done in Convention by the Unanimous Consent of the States present the Seventeenth Day of September in the Year of our Lord one thousand seven hundred and Eighty seven and of the Independence of the United States of America the Twelfth In witness whereof We have hereunto subscribed our Names. . . .

—John P. Kaminski

Introduction

Near the end of the Constitutional Convention, a number of delegates indicated that they could not sign the proposed Constitution. To alleviate their qualms and present the Constitution as the unanimous proposal of the Convention, Benjamin Franklin suggested that the delegates affix their names to the Constitution as witnesses to the unanimous approval of states. After a brief discussion, the Convention agreed to Franklin’s proposed attestation clause.

Final Objections to the Constitution

On September 15, 1787, two days before the end of the Constitutional Convention and just before the final vote on the draft Constitution, three delegates voiced their objections. Edmund Randolph of Virginia, who had introduced the Virginia Plan, thought the Constitution was not sufficiently republican and moved that there should be another convention to consider amendments proposed by the state ratifying conventions.¹ George Mason, also of Virginia, who had strongly advocated that a Bill of Rights be added to the Constitution, seconded Randolph’s motion for a second convention and predicted that without significant changes, the new government would begin as “a moderate aristocracy” and end in either monarchy or “a tyrannical aristocracy.”² “With the expedient of another Convention as proposed,” Mason said that he would sign the Constitution.³ Elbridge Gerry of Massachusetts, fearing that the powers of Congress were too broad, thought that “provid[ing] for a second general Convention” was the best that could be done.⁴

At that point, 11 state delegations were present. Rhode Island had not sent a delegation, and two of the three New York delegates had left the Convention two months earlier, leaving New York without a “full representation” and thus unable to cast an official vote.

All of the delegations present voted against a second convention and then voted in favor of the final text of the Constitution.⁵ The Convention then ordered the Constitution engrossed on parchment in preparation for signatures. (An “engrossed” document was the final version of a document that often was printed or transcribed on fine paper or parchment to be approved by a final vote.) The Convention also ordered that 500 copies of the engrossed version should be printed.⁶

Franklin’s Proposal

When the Convention reconvened on September 17, after the final reading of the document, Benjamin Franklin, who was feeble at the age of eighty-one, asked James Wilson, a fellow Pennsylvania delegate, to deliver an address he had prepared strongly endorsing the Constitution despite any perceived imperfections.⁷ Franklin, hoping to gain the support of critics and create a sense of common accord, moved that the Constitution be signed by the delegates as individual witnesses of “the unanimous consent of the states present.”⁸

According to James Madison’s notes, “This ambiguous form had been drawn up by G.M. [Gouverneur Morris of Pennsylvania] in order to gain the dissenting members, and put into the hands of Doct. Franklin that it might have the better chance of success.”9 The Articles of Association adopted by the First Continental Congress on October 20, 1774, provided a similar attestation clause stating that “[t]he foregoing association being determined upon by the Congress, was ordered to be subscribed by the several Members thereof and there upon we have here unto set our respective names accordingly.” It is perhaps merely coincidental that in June 1777, Morris had served on a committee in the Second Continental Congress that drafted the attestation clause at the end of the Articles of Confederation.

Morris, speaking for himself, said that he would sign the Constitution even “with all its faults” because the signing “form proposed related only to the fact that the States present were unanimous.”⁹ Alternatively, Hugh Williamson of North Carolina suggested that the delegates sign only the transmittal letter to Congress that the Convention had approved on September 12, which would “do nearly as well” and might “be satisfactory to some members who disliked the Constitution.”¹⁰ “For himself,” Williamson “did not think a better plan was to be expected and had no scruples against putting his name to it.”¹¹ Alexander Hamilton of New York hoped that every delegate would sign. He worried that a few non-signers “of consequence . . . might do infinite mischief by kindling” underlying fears of the Convention.¹² Although most delegates knew that “no man’s ideas were more remote from the plan than his own were known to be,” Hamilton felt that the choice now lay “between anarchy and Convulsion on one side, and the chance of good to be expected from the plan on the other.”¹³

The clause made at least one convert. William Blount of North Carolina said that he was prepared not to sign the Constitution “so as to [not] pledge himself in support of the plan,” but the “form proposed” allowed him to sign attesting to “the fact that the plan was the unanimous act of the States in Convention.”¹⁴ Randolph and Gerry, however, were unmoved. They reiterated their opposition to the Constitution and regarded “the signing in the proposed form, as the same with signing the Constitution. The change of form therefore could make no difference with” them.¹⁵ Charles Cotesworth Pinckney of South Carolina objected to the ambiguity of the clause. “He thought it best to be candid and let the form speak the substance.”¹⁶ Jared Ingersoll of Pennsylvania “did not consider the signing, either as a mere attestation of the fact, or as pledging the signers to support the Constitution at all events, but as a recommendation, of what, all things considered, was the most eligible.”¹⁷

The Convention then approved Franklin’s motion by a vote of 10 states to none, with one state (South Carolina) divided.¹⁸ Although Madison’s notes indicate that Pinckney and Pierce Butler, two of the four delegates from South Carolina, “disliked the equivocal form of the signing” and voted against the motion, both signed the Constitution.¹⁹

Signing the Constitution

Thus, the signers subscribed their names “In witness” to what was “done in Convention” with the names grouped by states with the exception of George Washington, who signed first and separately as President and deputy from Virginia. The states were listed in geographical order, beginning on the right-hand edge of the document and continuing on the left, from north to south. In the right-hand column were New Hampshire, Massachusetts, Connecticut, New York, New Jersey, and Pennsylvania. In the left-hand column were Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia.

The signatures appeared in the same order on the Declaration of Independence and the Articles of Confederation. This was also the order in which all votes were recorded in the Articles of Confederation Congress and in the Convention. On the Declaration of Independence, the signers subscribed the document for themselves individually even though they were grouped together by states. And the Articles of Confederation were signed “on the part and behalf of” their particular state as each state legislature adopted the Articles even though this phrase was attached by a brace to each delegation’s signatures.

The engrossed version of the Constitution also has a short errata followed by an “Attest” signed by “William Jackson Secretary,” which appears in a third column to the left of the two columns with the delegates’ signatures.

In the end, Randolph, Mason, and Gerry did not sign the Constitution. Madison wrote in his notes that they “declined giving it the sanction of their names.”²⁰ The Morris–Franklin arrangement, however, allowed Alexander Hamilton to sign as a witness even though, as the sole New York delegate in attendance, he was ineligible to vote on the substance. The Convention’s rule required at least two delegates to make an official delegation.22 The Convention’s rules were incomplete, however. There was no extant reference to requiring the attendance of at least two delegates to make an official delegation. Such was the rule in the Confederation Congress, and it was used in all roll call votes in both Congress and the Convention. On May 28, a Convention rule indicated that a majority of a delegation should be recorded for a state “which shall be fully represented.”

State legislatures had appointed 65 delegates to the Convention; 55 attended at various times over the course of the sessions, and 39 signed the final document.²¹ George Read of Delaware signed not only for himself, but also for John Dickinson, who had left Philadelphia two days earlier because of illness and had authorized Read to sign his name.²² Although Read signed for Dickinson, the two signatures are separated by the signature of fellow Delawarean Gunning Bedford, Jr.

The Ratification Debates

During the ratification debates, Federalists used the ambiguity of the Attestation Clause to their advantage. Many newspapers alluded to the unanimity of the Convention. For example, on October 1, 1787, Boston’s American Herald praised the Convention’s unanimity as “an auspicious omen of our future concord and felicity.”²³ By October 18, this report was reprinted in six newspapers in Massachusetts, Rhode Island, New York, and Pennsylvania. On September 29, 1787, Curtius, in New York’s Daily Advertiser, praised the Convention for its “most perfect unanimity.”²⁴ Two days later, Caesar, also in the Daily Advertiser, continued to praise the unanimity that was “unequalled in ancient and modern story.”²⁵

Franklin’s final speech received widespread newspaper circulation throughout the country. Upon request, Franklin sent copies of the speech to Nathaniel Gorham of Massachusetts and Daniel Carroll of Maryland. The former version was printed in the Boston Gazette on December 3 and reprinted at least 26 times by December 21. The latter version was printed in the Virginia Independent Chronicle on December 5 and reprinted in ten newspapers by February 16, 1788.

Anti-Federalists also took advantage of that ambiguity of the Attestation Clause. They asserted that Washington did not personally approve the Constitution, but had signed only as a witness to the unanimous approval of the states in attendance. For example, on November 19, 1787, the Boston American Herald, asserted that “it is as notorious as it is true, that this Great Man never gave an opinion upon the subject in Convention, and honoured it with his Signature merely in his capacity of PRESIDENT of that Body.”²⁶ On November 21, 1787, the Philadelphia Freeman’s Journal reported “that the General, Mr. Franklin, and some others, did only sign as witnesses, and that they had no hand in forming it.”²⁷ Between December 4 and 12, this item was reprinted in newspapers in New York City; Boston; Baltimore; Salem, Massachusetts; and Poughkeepsie, New York.

Seldom was Hamilton’s solitary signing mentioned. On January 25, 1788, a paragraph in Philadelphia’s Independent Gazetteer, denied that the states had unanimously supported the Constitution in the Convention. “Mr. Yates and Mr. Lansing of New-York gave it a decided opposition, while only Mr. Hamilton gave it his support. There were two delegates from New-York against it, and only one in favor.”²⁸ The Gazetteer’s paragraph was reprinted in The Virginia Independent Chronicle on February 6 and Boston’s American Herald on March 17.

Engrossed Constitution and Printed Constitution

The four-page manuscript engrossed version of the Constitution is on display in the National Archives. It was written by Jacob Shallus of Philadelphia, who was the assistant clerk of the Pennsylvania Assembly. The Convention’s printers (John Dunlap and David C. Claypoole, the printers of the daily Pennsylvania Packet) printed a six-page broadside version that was soon ready for distribution on September 17, 1787. However, a couple last-minute changes made by the Convention delegates required Dunlap and Claypoole to make the necessary changes in the printed Constitution. After adjusting the type for the Preamble, Dunlap and Claypoole also printed the Constitution in the Pennsylvania Packet on September 19.

There are some differences between the Attestation Clause in the engrossed Constitution and the clause as it appears in the Convention’s official six-page broadside printed Constitution. The wording of the clause is the same, but the punctuation and capitalization are quite different. Both versions have the signatures in two columns. The right-hand column in the engrossed manuscript Constitution starts with George Washington, who signed as President and deputy from Virginia, followed by the delegations from New Hampshire through Pennsylvania. The left-hand column starts with Delaware and ends with Georgia. The printed Constitution sets George Washington’s name in large capital letters centered above all the other names and then reverses the two columns: New Hampshire is at the top of the left-hand column, and Delaware is at the top of the right-hand column.

In the engrossed Constitution, Secretary William Jackson’s attestation is on the far-left-hand side of the document, below the errata. The errata identifies certain interlineations and erasures in the manuscript Constitution. However, the errata does not appear in the printed Constitution because the corrections were incorporated into the text of the printed Constitution. In the printed version, Jackson’s attestation was centered immediately after the list of the signers. Although attestations and signatures are not normally regarded as part of the substance of a legal document, the Attestation Clause has traditionally been included in printings of the Constitution.

Date of the Attestation Clause

The Attestation Clause includes two dates: “Seventeenth Day of September in the Year of our Lord one thousand seven hundred and Eighty seven and of the Independence of the United States of America the Twelfth.” The former date follows the verbiage commonly used in English treaties and American colonial charters, although the contemporary British tradition was to date documents to the reign of the sitting monarch. The reference to years since Independence was also commonly used in post-independence American diplomatic and congressional documents. For example, the Articles of Confederation was dated “the fifteenth day of November in the year of our Lord One Thousand Seven Hundred and Seventy seven, and in the Second Year of the Independence of America.”

The Attestation Clause is the one part of the Constitution that expressly mentions God. Recent interpretations of the clause have inferred from the language of the dating either that it was meant to infuse the Constitution with a theistic interpretation based on the language of the Declaration of Independence or that the Constitution is founded on a higher-law system of justice and limited government that was created by the natural law principles embodied in the Declaration.²⁹ Rather than searching for some veiled meaning in the Attestation Clause, it would seem most likely that the language was commonly used to date documents.

It would seem also that there might be three “official” versions of the Constitution. The engrossed hand-written version and the six-page broadside version printed by Dunlap and Claypoole were both mentioned above. These documents were submitted to the Confederation Congress sitting in New York City. Congress read the Constitution on September 20, 1787, and after debates on September 26–28 agreed unanimously to submit it to the states for their consideration.

Congress then ordered a new printing of the Constitution, which was prepared as a four-page broadside by John and Archibald M’Lean, printers of New York’s Independent Journal. This official printed Constitution contains the Attestation Clause and the congressional resolution submitting the Constitution to the states. With a handwritten attestation by Secretary of Congress Charles Thomson, this four-page broadside was sent to the states. It was this version that included the attestation clause that was read, considered, and ratified by the state conventions.

1. 2 Farrand’s 631, 634. ↩︎
2. Id. at 632. ↩︎
3. Id. at 632, 636–40. ↩︎
4. Id. at 632–33, 635–36. ↩︎
5. Id. at 634. ↩︎
6. Id. ↩︎
7. Id. at 641. ↩︎
8. Id. at 641–43. ↩︎
9. Id. at 645 (emphasis in original). ↩︎
10. Id. ↩︎
11. Id. ↩︎
12. Id. at 645. ↩︎
13. Id. at 645–46. ↩︎
14. Id. at 646. ↩︎
15. Id. at 646–47. ↩︎
16. Id. at 647. ↩︎
17. Id. ↩︎
18. Id. ↩︎
19. Id. ↩︎
20. Id. at 649. ↩︎
21. 2 Farrand’s 648–49. ↩︎
22. Id. ↩︎
23. 4 DHRC 28–30. ↩︎
24. 19 DHRC 66. ↩︎
25. Id. at 70. ↩︎
26. 4 DHRC 272–73 (capitalization and emphasis in original). ↩︎
27. 14 DHRC 163. ↩︎
28. 15 DHRC 572. ↩︎
29. Jesse Cross, “Done in Convention”: The Attestation Clause and the Declaration of Independence, 121 Yale L. Rev. 1236 (2012). ↩︎