Governor Livingston from New Jersey, took his seat.
The words, "one or more" were struck out before "inferior tribunals" as
an amendment to the last clause of Resol^n 9^{th}. The Clause--"that the
National Judiciary be chosen by the National Legislature," being under
consideration.
M^r Wilson opposed the appointm^t of Judges by the National Legisl:
Experience shewed the impropriety of such appointm^{ts} by numerous
bodies. Intrigue, partiality, and concealment were the necessary
consequences. A principal reason for unity in the Executive was that
officers might be appointed by a single, responsible person.
M^r Rutlidge was by no means disposed to grant so great a power to any
single person. The people will think we are leaning too much towards
Monarchy. He was against establishing any national tribunal except a
single supreme one. The State tribunals are most proper to decide in all
cases in the first instance.
Doc^r Franklin observed that two modes of chusing the Judges had
been mentioned, to wit, by the Legislature and by the Executive. He
wished such other modes to be suggested as might occur to other
gentlemen; it being a point of great moment. He would mention one
which he had understood was practised in Scotland. He then in a brief
and entertaining manner related a Scotch mode, in which the nomination
proceeded from the Lawyers, who always selected the ablest of the
profession in order to get rid of him, and share his practice among
themselves. It was here he said the interest of the electors to make the
best choice, which should always be made the case if possible.
Mr. Madison disliked the election of the Judges by the Legislature or
any numerous body. Besides the danger of intrigue and partiality, many
of the members were not judges of the requisite qualifications. The
Legislative talents which were very different from those of a Judge,
commonly recommended men to the favor of Legislative Assemblies. It was
known too that the accidental circumstances of presence and absence, of
being a member or not a member, had a very undue influence on the
appointment. On the other hand He was not satisfied with referring the
appointment to the Executive, He rather inclined to give it to the
Senatorial branch, as numerous eno' to be confided in--as not so
numerous as to be governed by the motives of the other branch; and as
being sufficiently stable and independent to follow their deliberate
judgments. He hinted this only and moved that the _appointment by the
Legislature_ might be struck out, & a blank left to be hereafter filled
on maturer reflection. M^r Wilson second it. On the question for
striking out, Mass^{ts} ay. Con^t no. N. Y. ay. N. J. ay. Pen^a ay.
Del. ay. M^d ay. V^a ay. N. C. ay. S. C. no. Geo. ay.
Mr. Wilson gave notice that he should at a future day move for a
reconsideration of that clause which respects "inferior tribunals."
M^r Pinkney gave notice that when the clause respecting the appointment
of the Judiciary should again come before the Committee he should move
to restore the "appointment by the national Legislature."
The following clauses of Resol: 9. were agreed to viz "to hold their
offices during good behaviour, and to receive punctually at stated
times, a fixed compensation for their services, in which no increase or
diminution shall be made so as to affect the persons actually in office
at the time of such increase or diminution."
The remaining clause of Resolution 9. was postponed.
Resolution 10 was agreed to,--viz--that provision ought to be made for
the admission of States lawfully arising within the limits of the U.
States, whether from a voluntary junction of Government & territory, or
otherwise with the consent of a number of voices in the National
Legislature less than the whole.
The 11. Propos: "_for guaranteeing to States Republican Gov^t &
territory_" &c. being read M^r Patterson[64] wished the point of
representation could be decided before this clause should be considered,
and moved to postpone it, which was not opposed, and agreed
to,--Connecticut & S. Carolina only voting ag^{st} it.
[64] "M^r Patterson is one of those kind of Men whose powers
break in upon you, and create wonder and astonishment. He is
a Man of great modesty, with looks that bespeak talents of
no great extent,--but he is a Classic, a Lawyer, and an
Orator;--and of a disposition so favorable to his
advancement that every one seemed ready to exalt him with
their praises. He is very happy in the choice of time and
manner of engaging in a debate, and never speaks but when he
understands his subject well. This Gentleman is about 43 Y.
of age, of a very low stature."--Pierce's Notes, _Amer.
Hist. Rev._, iii., 328.
Propos. 12 "_for continuing Cong^s till a given day and for fulfilling
their engagements_," produced no debate.
On the question, Mass. ay. Con^t no. N. Y. ay. N. J.[65] ay. Pa.
ay. Del. no. M^d ay. V^a ay. N. C. ay. S. C. ay. G. ay.
[65] Note in Madison's writing: New Jersey omitted in
printed Journal.
Propos: 13. "that _provision ought to be made for hereafter amending the
system now to be established, without requiring the assent of the Nat^l
Legislature_", being taken up,
M^r Pinkney doubted the propriety or necessity of it.
M^r Gerry favored it. The novelty & difficulty of the experiment
requires periodical revision. The prospect of such a revision would also
give intermediate stability to the Gov^t. Nothing had yet happened in
the States where this provision existed to prove its impropriety.--The
proposition was postponed for further consideration: the votes being,
Mas: Con. N. Y. P^a Del. Ma. N. C. ay. Virg^a S. C. Geo. no.
Propos. 14. "_requiring oath from the State officers to support National
Gov^t_" was postponed after a short uninteresting conversation: the
votes.
Con. N. Jersey M^d Virg. S. C. Geo. ay. N. Y. P^a Del. N. C. no.
Massachusetts divided.
Propos. 15. for "_recommending Conventions under appointment of the
people to ratify the new Constitution_" &c. being taken up,
M^r Sherman thought such a popular ratification unnecessary: the
articles of Confederation providing for changes and alterations with the
assent of Cong^s and ratification of State Legislatures.
M^r Madison thought this provision essential. The articles of Confed^n
themselves were defective in this respect, resting in many of the States
on the Legislative sanction only. Hence in conflicts between acts of the
States, and of Cong^s especially where the former are of posterior date,
and the decision is to be made by State tribunals, an uncertainty must
necessarily prevail, or rather perhaps a certain decision in favor of
the State authority. He suggested also that as far as the articles of
Union were to be considered as a Treaty only of a particular sort, among
the Governments of Independent States, the doctrine might be set up that
a breach of any one article, by any of the parties, absolved the other
parties from the whole obligation. For these reasons as well as others
he thought it indispensable that the new Constitution should be ratified
in the most unexceptionable form, and by the supreme authority of the
people themselves.
M^r Gerry observed that in the Eastern States the Confed^n had been
sanctioned by the people themselves. He seemed afraid of referring the
new system to them. The people in that quarter have at this time the
wildest ideas of Government in the world. They were for abolishing the
Senate in Mass^{ts} and giving all the other powers of Gov^t to the
other branch of the Legislature.
M^r King supposed that the last article of y^e Confed^n Rendered the
legislature competent to the ratification. The people of the Southern
States where the federal articles had been ratified by the Legislatures
only, had since _impliedly_ given their sanction to it. He thought
notwithstanding that there might be policy in varying the mode. A
Convention being a single house, the adoption may more easily be carried
thro' it, than thro' the Legislatures where there are several branches.
The Legislatures also being to lose power, will be most likely to raise
objections. The people having already parted with the necessary powers
it is immaterial to them, by which Government they are possessed,
provided they be well employed.
M^r Wilson took this occasion to lead the Committee by a train of
observations to the idea of not suffering a disposition in the plurality
of States to confederate anew on better principles, to be defeated by
the inconsiderate or selfish opposition of a few States. He hoped the
provision for ratifying would be put on such a footing as to admit of
such a partial union, with a door open for the accession of the
rest.[66]
[66] (This hint was probably meant in terrorem to the smaller
States of N. Jersey & Delaware. Nothing was said in reply to
it.)--Madison's Note.
M^r Pinkney hoped that in case the experiment should not unanimously
take place, nine States might be authorized to unite under the same
Governm^t.
The propos. 15. was postponed nem. con^t.
M^r Pinkney & M^r Rutlidge moved that to-morrow be assigned to
reconsider that clause of Propos: 4: which respects the election of
the first branch of the National Legislature--which passed in
affirmative,--Con.: N. Y., P^a Del. M^d, V^a, ay.--6 Mas.: N. J.: N. C.:
S. C.: Geo.: no. 5.
Mr. Rutlidge hav^g obtained a rule for reconsideration of the clause for
establishing _inferior_ tribunals under the national authority, now
moved that that part of the clause in the propos. 9. should be expunged:
arguing that the State tribunals might and ought to be left in all cases
to decide in the first instance the right of appeal to the supreme
national tribunal being sufficient to secure the national rights &
uniformity of Judgm^{ts}: that it was making an unnecessary encroachment
on the jurisdiction of the States and creating unnecessary obstacles to
their adoption of the new system. Mr. Sherman 2^{ded} the motion.
M^r Madison observed that unless inferior tribunals were dispersed
throughout the Republic with _final_ jurisdiction in _many_ cases,
appeals would be multiplied to a most oppressive degree; that besides,
an appeal would not in many cases be a remedy. What was to be done after
improper Verdicts in State tribunals obtained under the biassed
directions of a dependent Judge, or the local prejudices of an
undirected jury? To remand the cause for a new trial would answer no
purpose. To order a new trial at the Supreme bar would oblige the
parties to bring up their witnesses, tho' ever so distant from the seat
of the Court. An effective Judiciary establishment commensurate to the
legislative authority, was essential. A Government without a proper
Executive & Judiciary would be the mere trunk of a body, without arms or
legs to act or move.
M^r Wilson opposed the motion on like grounds. He said the admiralty
jurisdiction ought to be given wholly to the national Government, as it
related to cases not within the jurisdiction of particular states, & to
a scene in which controversies with foreigners would be most likely to
happen.
M^r Sherman was in favor of the motion. He dwelt chiefly on the supposed
expensiveness of having a new set of Courts, when the existing State
Courts would answer the same purpose.
M^r Dickinson contended strongly that if there was to be a National
Legislature, there ought to be a national Judiciary, and that the former
ought to have authority to institute the latter.
On the question for M^r Rutlidge's motion to strike out "inferior
tribunals"
Mass^{ts} divided. Con^t ay. N. Y. div^d. N. J. ay. P^a no.
Del. no. M^d no. V^a no. N. C. ay. S. C. ay. Geo. ay.
M^r Wilson & M^r Madison then moved, in pursuance of the idea expressed
above by Mr. Dickinson, to add to the Resol: 9. the words following
"that the National Legislature be empowered to institute inferior
tribunals." They observed that there was a distinction between
establishing such tribunals absolutely, and giving a discretion to the
Legislature to establish or not establish them. They repeated the
necessity of some such provision.
M^r Butler. The people will not bear such innovations. The States will
revolt at such encroachments. Supposing such an establishment to be
useful, we must not venture on it. We must follow the example of Solon
who gave the Athenians not the best Gov^t he could devise, but the best
they w^d receive.
M^r King remarked as to the comparative expence, that the establishment
of inferior tribunals w^d cost infinitely less than the appeals that
would be prevented by them.
On this question as moved by M^r W. & M^r M.
Mass. ay. C^t no. N. Y. div^d. N. J.[67] ay. P^a ay. Del. ay.
M^d ay. V^a ay. N. C. ay. S. C. no. Geo. ay.
[67] In printed Journals N. Jersey, no.--Madison's Note.
The Committee then rose & the House adjourned to 11 OC tom^w.
WEDNESDAY JUNE 6^{TH} IN COMMITTEE OF THE
WHOLE.
M^r Pinkney according to previous notice & rule obtained, moved "that
the first branch of the national Legislature be elected by the State
Legislatures, and not by the people;" contending that the people were
less fit Judges in such a case, and that the Legislatures would be less
likely to promote the adoption of the new Government, if they were to be
excluded from all share in it.
M^r Rutlidge 2^{ded} the motion.
M^r Gerry.[68] Much depends on the mode of election. In England the
people will probably lose their liberty from the smallness of the
proportion having a right of suffrage. Our danger arises from the
opposite extreme: hence in Mass^{ts} the worst men get into the
Legislature. Several members of that Body had lately been convicted of
infamous crimes. Men of indigence, ignorance & baseness, spare no pains,
however dirty to carry their point ag^{st} men who are superior to the
artifices practised. He was not disposed to run into extremes. He was as
much principled as ever ag^{st} aristocracy and monarchy. It was
necessary on the one hand that the people should appoint one branch of
the Gov^t in order to inspire them with the necessary confidence. But he
wished the election on the other to be so modified as to secure more
effectually a just preference of merit. His idea was that the people
should nominate certain persons in certain districts, out of whom the
State Legislatures sh^d make the appointment.
[68] "Mr. Gerry.--If the national legislature are appointed by
the state legislatures, demagogues and corrupt members will
creep in."--Yates's _Secret Debates in Forming the
Constitution_, 105.
M^r Wilson. He wished for vigor in the Gov^t, but he wished that
vigorous authority to flow immediately from the legitimate source of all
authority. The Gov^t ought to possess not only 1^{st} the _force_, but
2^{dly} the _mind or sense_ of the people at large. The Legislature
ought to be the most exact transcript of the whole Society.
Representation is made necessary only because it is impossible for the
people to act collectively. The opposition was to be expected he said
from the _Governments_, not from the Citizens of the States. The latter
had parted as was observed (by M^r King) with all the necessary powers;
and it was immaterial to them, by whom they were exercised, if well
exercised. The State officers were to be the losers of power. The people
he supposed would be rather more attached to the national Gov^t than to
the State Gov^{ts} as being more important in itself, and more
flattering to their pride. There is no danger of improper elections if
made by _large_ districts. Bad elections proceed from the smallness of
the districts which give an opportunity to bad men to intrigue
themselves into office.
M^r Sherman. If it were in view to abolish the State Gov^{ts} the
elections ought to be by the people. If the State Gov^{ts} are to be
continued, it is necessary in order to preserve harmony between the
National & State Gov^{ts} that the elections to the former sh^d be made
by the latter. The right of participating in the National Gov^t would be
sufficiently secured to the people by their election of the State
Legislatures. The objects of the Union, he thought were few, 1. defence
ag^{st} foreign danger, 2. ag^{st} internal disputes & a resort to
force, 3. Treaties with foreign nations 4. regulating foreign commerce,
& drawing revenue from it. These & perhaps a few lesser objects alone
rendered a Confederation of the States necessary. All other matters
civil & criminal would be much better in the hands of the States. The
people are more happy in small than in large States. States may indeed
be too small as Rhode Island, & thereby be too subject to faction. Some
others were perhaps too large, the powers of Gov^t not being able to
pervade them. He was for giving the General Gov^t power to legislate and
execute within a defined province.
Col. Mason. Under the existing Confederacy, Cong^s represent the
_States_ and not the _people_ of the States: their acts operate on the
_States_, not on the individuals. The case will be changed in the new
plan of Gov^t. The people will be represented; they ought therefore to
choose the Representatives. The requisites in actual representation are
that the Rep^s should sympathize with their constituents; sh^d think as
they think, & feel as they feel; and that for these purposes sh^d even
be residents among them. Much he s^d had been alledged ag^{st}
democratic elections. He admitted that much might be said; but it was to
be considered that no Gov^t was free from imperfections & evils; and
that improper elections in many instances were inseparable from
Republican Gov^{ts}. But compare these with the advantage of this Form
in favor of the rights of the people, in favor of human nature. He was
persuaded there was a better chance for proper elections by the people,
if divided into large districts, than by the State Legislatures. Paper
money had been issued by the latter when the former were against it. Was
it to be supposed that the State Legislatures then w^d not send to the
Nat^l legislature patrons of such projects, if the choice depended on
them.
M^r Madison considered an election of one branch at least of the
Legislature by the people immediately, as a clear principle of free
Gov^t and that this mode under proper regulations had the additional
advantage of securing better representatives, as well as of avoiding too
great an agency of the State Governments in the General one. He differed
from the member from Connecticut (Mr. Sherman) in thinking the objects
mentioned to be all the principal ones that required a National Gov^t.
Those were certainly important and necessary objects; but he combined
with them the necessity of providing more effectually for the security
of private rights, and the steady dispensation of Justice. Interferences
with these were evils which had more perhaps than anything else,
produced this convention. Was it to be supposed that republican liberty
could long exist under the abuses of it practised in some of the States.
The gentleman (M^r Sherman) had admitted that in a very small State,
faction & oppression w^d prevail. It was to be inferred then that
wherever these prevailed the State was too small. Had they not prevailed
in the largest as well as the smallest tho' less than in the smallest;
and were we not thence admonished to enlarge the sphere as far as the
nature of the Gov^t would Admit. This was the only defence ag^{st} the
inconveniences of democracy consistent with the democratic form of
Gov^t. All civilized Societies would be divided into different Sects,
Factions, & interests, as they happened to consist of rich & poor,
debtors & creditors, the landed, the manufacturing, the commercial
interests, the inhabitants of this district or that district, the
followers of this political leader or that political leader--the
disciples of this religious Sect or that religious Sect. In all cases
where a majority are united by a common interest or passion, the rights
of the minority are in danger. What motives are to restrain them? A
prudent regard to the maxim that honesty is the best policy is found by
experience to be as little regarded by bodies of men as by individuals.
Respect for character is always diminished in proportion to the number
among whom the blame or praise is to be divided. Conscience, the only
remaining tie is known to be inadequate in individuals: In large
numbers, little is to be expected from it. Besides, Religion itself may
become a motive to persecution & oppression. These observations are
verified by the Histories of every country antient & modern. In Greece &
Rome the rich & poor, the Creditors & debtors, as well as the patricians
& plebeians alternately oppressed each other with equal unmercifulness.
What a source of oppression was the relation between the parent cities
of Rome, Athens & Carthage, & their respective provinces; the former
possessing the power, & the latter being sufficiently distinguished to
be separate objects of it? Why was America so justly apprehensive of
Parliamentary injustice? Because G. Britain had a separate interest real
or supposed, & if her authority had been admitted, could have pursued
that interest at our expence. We have seen the mere distinction of
colour made in the most enlightened period of time, a ground of the most
oppressive dominion ever exercised by man over man. What has been the
source of those unjust laws complained of among ourselves? Has it not
been the real or supposed interest of the major number? Debtors have
defrauded their creditors. The landed interest has borne hard on the
mercantile interest. The Holders of one species of property have thrown
a disproportion of taxes on the holders of another species. The lesson
we are to draw from the whole is that where a majority are united by a
common sentiment, and have an opportunity, the rights of the minor party
become insecure. In a Republican Gov^t the majority if united have
always an opportunity. The only remedy is to enlarge the sphere, &
thereby divide the community into so great a number of interests &
parties, that in the 1^{st} place a majority will not be likely at the
same moment to have a common interest separate from that of the whole or
of the minority; and in the 2^d place that in case they sh^d have such
an interest, they may not be apt to unite in the pursuit of it. It was
incumbent on us then to try this remedy, and with that view to frame a
republican system on such a scale & in such a form as will controul all
the evils w^{ch} have been experienced.
M^r Dickinson considered it essential that one branch of the Legislature
sh^d be drawn immediately from the people; and as expedient that the
other sh^d be chosen by the Legislatures of the States. This combination
of the State Gov^{ts} with the national Gov^t was as politic as it was
unavoidable. In the formation of the Senate we ought to carry it through
such a refining process as will assimilate it as nearly as may be to the
House of Lords in England. He repeated his warm eulogiums on the British
Constitution. He was for a strong National Gov^t but for leaving the
States a considerable agency in the System. The objection ag^{st} making
the former dependent on the latter might be obviated by giving to the
Senate an authority permanent & irrevocable for three, five or seven
years. Being thus independent they will check & decide with becoming
freedom.
M^r Read. Too much attachment is betrayed to the State Govern^{ts}. We
must look beyond their continuance. A national Gov^t must soon of
necessity swallow all of them up. They will soon be reduced to the mere
office of electing the National Senate. He was ag^{st} patching up the
old federal System: he hoped the idea w^d be dismissed. It would be like
putting new cloth on an old garment. The confederation was founded on
temporary principles. It cannot last: it can not be amended. If we do
not establish a good Gov^t on new principles, we must either go to ruin,
or have the work to do over again. The people at large are wrongly
suspected of being averse to a Gen^l Gov^t. The aversion lies among
interested men who possess their confidence.
M^r Pierce[69] was for an election by the people as to the 1^{st} branch
& by the States as to the 2^d branch; by which means the Citizens of the
States w^d be represented both _individually_ & _collectively_.
[69] "My own character I shall not attempt to draw, but leave
those who may choose to speculate on it, to consider it in
any light that their fancy or imagination may depict. I am
conscious of having discharged my duty as a Soldier through
the course of the late revolution with honor and propriety;
and my services in Congress and the Convention were bestowed
with the best intention towards the interest of Georgia, and
towards the general welfare of the Confederacy. I possess
ambition, and it was that, and the flattering opinion which
some of my Friends had of me, that gave me a seat in the
wisest Council in the World, and furnished me with an
opportunity of giving these short Sketches of the Characters
who composed it."--Pierce's Notes, _Amer. Hist. Rev._, iii.,
334.
General Pinkney wished to have a good National Gov^t & at the same time
to leave a considerable share of power in the States. An election of
either branch by the people scattered as they are in many States,
particularly in S. Carolina was totally impracticable. He differed from
gentlemen who thought that a choice by the people w^d be a better guard
ag^{st} bad measures, than by the Legislatures. A majority of the people
in S. Carolina were notoriously for paper-money as a legal tender; the
Legislature had refused to make it a legal tender. The reason was that
the latter had some sense of character and were restrained by that
consideration. The State Legislatures also he said would be more
jealous, & more ready to thwart the National Gov^t, if excluded from a
participation in it. The Idea of abolishing these Legislatures w^d never
go down.
M^r Wilson would not have spoken again, but for what had fallen from Mr.
Read; namely, that the idea of preserving the State Gov^{ts} ought to be
abandoned. He saw no incompatibility between the national & State
Gov^{ts} provided the latter were restrained to certain local purposes;
nor any probability of their being devoured by the former. In all
confederated Systems antient & modern the reverse had happened; the
Generality being destroyed gradually by the usurpations of the parts
composing it.
On the question for electing the 1^{st} branch by the State Legislatures
as moved by M^r Pinkney: it was negatived:
Mass. no. C^t ay. N. Y. no. N. J. ay. P^a no. Del. no. M^d no.
V^a no. N. C. no. S. C. ay. Geo. no.
M^r Wilson moved to reconsider the vote excluding the Judiciary from a
share in the revision of the laws, and to add after "National Executive"
the words "with a convenient number of the national Judiciary;"
remarking the expediency of reinforcing the Executive with the influence
of that Department.
M^r Madison 2^{ded} the motion. He observed that the great difficulty in
rendering the Executive competent to its own defence arose from the
nature of Republican Gov^t which could not give to an individual citizen
that settled pre-eminence in the eyes of the rest, that weight of
property, that personal interest ag^{st} betraying the national
interest, which appertain to an hereditary magistrate. In a Republic
personal merit alone could be the ground of political exaltation, but it
would rarely happen that this merit would be so pre-eminent as to
produce universal acquiescence. The Executive Magistrate would be envied
& assailed by disappointed competitors: His firmness therefore w^d need
support. He would not possess those great emoluments from his station,
nor that permanent stake in the public interest which w^d place him out
of the reach of foreign corruption. He would stand in need therefore of
being controuled as well as supported. An association of the Judges in
his revisionary function w^d both double the advantage and diminish the
danger. It w^d also enable the Judiciary Department the better to defend
itself ag^{st} Legislative encroachments. Two objections had been made
1^{st} that the Judges ought not to be subject to the bias which a
participation in the making of laws might give in the exposition of
them. 2^{dly} that the Judiciary Departm^t ought to be separate &
distinct from the other great Departments. The 1^{st} objection had some
weight; but it was much diminished by reflecting that a small proportion
of the laws coming in question before a Judge w^d be such wherein he had
been consulted; that a small part of this proportion w^d be so ambiguous
as to leave room for his prepossessions; and that but a few cases w^d
probably arise in the life of a Judge under such ambiguous passages. How
much good on the other hand w^d proceed from the perspicuity, the
conciseness, and the systematic character w^{ch} the Code of laws w^d
receive from the Judiciary talents. As to the 2^d objection, it either
had no weight, or it applied with equal weight to the Executive & to the
Judiciary revision of the laws. The maxim on which the objection was
founded required a separation of the Executive as well as the Judiciary
from the Legislature & from each other. There w^d in truth however be no
improper mixture of these distinct powers in the present case. In
England, whence the maxim itself had been drawn, the Executive had an
absolute negative on the laws; and the Supreme tribunal of Justice (the
House of Lords) formed one of the other branches of the Legislature. In
short whether the object of the revisionary power was to restrain the
Legislature from encroaching on the other co-ordinate Departments, or on
the rights of the people at large; or from passing laws unwise in their
principle, or incorrect in their form, the utility of annexing the
wisdom and weight of the Judiciary to the Executive seemed
incontestable.
M^r Gerry thought the Executive, whilst standing alone w^d be more
impartial than when he c^d be covered by the sanction & seduced by the
sophistry of the Judges.
M^r King. If the Unity of the Executive was preferred for the sake of
responsibility, the policy of it is as applicable to the revisionary as
to the executive power.
M^r Pinkney had been at first in favor of joining the heads of the
principal departm^{ts} the Secretary at War, of foreign affairs &c.--in
the council of revision. He had however relinquished the idea from a
consideration that these could be called on by the Executive Magistrate
whenever he pleased to consult them. He was opposed to the introduction
of the Judges into the business.
Col. Mason was for giving all possible weight to the revisionary
institution. The Executive power ought to be well secured ag^{st}
Legislative usurpations on it. The purse & the sword ought never to get
into the same hands whether Legislative or Executive.
M^r Dickinson. Secrecy, vigor & despatch are not the principal
properties req^d in the Executive. Important as these are, that of
responsibility is more so, which can only be preserved; by leaving it
singly to discharge its functions. He thought too a junction of the
Judiciary to it, involved an improper mixture of powers.
M^r Wilson remarked, that the responsibility required belonged to his
Executive duties. The revisionary duty was an extraneous one, calculated
for collateral purposes.
M^r Williamson, was for substituting a clause requiring 2/3 for every
effective act of the Legislature, in place of the revisionary provision.
On the question for joining the Judges to the Executive in the
revisionary business,
Mass. no. Con^t ay. N. Y. ay. N. J. no. P^a no. Del. no. M^d no.
V^a ay. N. C. no. S. C. no. Geo. no.
M^r Pinkney gave notice that tomorrow he should move for the
reconsideration of that clause in the sixth Resolution adopted by the
Comm^e which vests a negative in the National Legislature on the laws of
the several States.
The Com^e rose & the House adj^d to 11 OC.
THURSDAY JUNE 7^{TH} 1787--IN COMMITTEE OF THE
WHOLE
M^r Pinkney according to notice moved to reconsider the clause
respecting the negative on State laws, which was agreed to, and tomorrow
for fixed the purpose.
The Clause providing for y^e appointment of the 2^d branch of the
national Legislature, having lain blank since the last vote on the mode
of electing it, to wit, by the 1^{st} branch, M^r Dickinson now moved
"that the members of the 2^d branch ought to be chosen by the individual
Legislatures."
M^r Sherman seconded the motion; observing that the particular States
would thus become interested in supporting the National Govenm^t and
that a due harmony between the two Governments would be maintained. He
admitted that the two ought to have separate and distinct jurisdictions,
but that they ought to have a mutual interest in supporting each other.
M^r Pinkney. If the small States should be allowed one Senator only, the
number will be too great, there will be 80 at least.
M^r Dickinson had two reasons for his motion. 1, because the sense of
the States would be better collected through their Governments; than
immediately from the people at large; 2. because he wished the Senate to
consist of the most distinguished characters, distinguished for their
rank in life and their weight of property, and bearing as strong a
likeness to the British House of Lords as possible; and he thought such
characters more likely to be selected by the State Legislatures, than in
any other mode. The greatness of the number was no objection with him.
He hoped there would be 80 and twice 80. of them. If their number should
be small, the popular branch could not be balanced by them. The
legislature of a numerous people ought to be a numerous body.
M^r Williamson, preferred a small number of Senators, but wished that
each State should have at least one. He suggested 25 as a convenient
number. The different modes of representation in the different branches,
will serve as a mutual check.
M^r Butler was anxious to know the ratio of representation before he
gave any opinion.
M^r Wilson. If we are to establish a national Government, that
Government ought to flow from the people at large. If one branch of it
should be chosen by the Legislatures, and the other by the people, the
two branches will rest on different foundations, and dissensions will
naturally arise between them. He wished the Senate to be elected by the
people as well as the other branch, the people might be divided into
proper districts for the purpose & moved to postpone the motion of M^r
Dickinson, in order to take up one of that import.
M^r Morris 2^{ded} him.
M^r Read proposed "that the Senate should be appointed by the Executive
Magistrate out of a proper number of persons to be nominated by the
individual legislatures." He said he thought it his duty, to speak his
mind frankly. Gentlemen he hoped would not be alarmed at the idea.
Nothing short of this approach towards a proper model of Government
would answer the purpose, and he thought it best to come directly to the
point at once.--His proposition was not seconded nor supported.
M^r Madison, if the motion (of Mr. Dickinson) should be agreed to, we
must either depart from the doctrine of proportional representation;
or admit into the Senate a very large number of members. The first is
inadmissible, being evidently unjust. The second is inexpedient. The
use of the Senate is to consist in its proceeding with more coolness,
with more system, & with more wisdom, than the popular branch. Enlarge
their number and you communicate to them the vices which they are meant
to correct. He differed from M^r D. who thought that the additional
number would give additional weight to the body. On the contrary it
appeared to him that their weight would be in an inverse ratio to their
number. The example of the Roman Tribunes, was applicable. They lost
their influence and power, in proportion as their number was augmented.
The reason seemed to be obvious: They were appointed to take care of the
popular interests & pretensions at Rome, because the people by reason of
their numbers could not act in concert; were liable to fall into
factions among themselves, and to become a prey to their aristocratic
adversaries. The more the representatives of the people therefore
were multiplied, the more they partook of the infirmities of their
constituents, the more liable they became to be divided among themselves
either from their own indiscretions or the artifices of the opposite
faction, and of course the less capable of fulfilling their trust. When
the weight of a set of men depends merely on their personal characters;
the greater the number the greater the weight. When it depends on the
degree of political authority lodged in them the smaller the number the
greater the weight. These considerations might perhaps be combined in
the intended Senate; but the latter was the material one.
M^r Gerry. 4 modes of appointing the Senate have been mentioned. 1. by
the 1^{st} branch of the National Legislature. This would create a
dependance contrary to the end proposed. 2. by the National Executive.
This is a stride towards monarchy that few will think of. 3. by the
people. The people have two great interests, the landed interest, and
the commercial including the stockholders. To draw both branches from
the people will leave no security to the latter interest; the people
being Chiefly composed of the landed interest, and erroneously
supposing, that the other interests are adverse to it. 4. by the
Individual Legislatures. The elections being carried thro' this
refinement, will be most likely to provide some check in favor of the
Commercial interest ag^{st} the landed; without which oppression will
take place, and no free Gov^t can last long where that is the case. He
was therefore in favor of this last.
M^r Dickenson.[70] The preservation of the States in a certain degree of
agency is indispensable. It will produce that collision between the
different authorities which should be wished for in order to check each
other. To attempt to abolish the States altogether, would degrade the
Councils of our Country, would be impracticable, would be ruinous. He
compared the proposed National System to the Solar System, in which the
States were the planets, and ought to be left to move freely in their
proper orbits. The Gentleman from P^a (M^r Wilson) wished he said to
extinguish these planets. If the State Governments were excluded from
all agency in the national one, and all power drawn from the people at
large, the consequence would be that the national Gov^t would move in
the same direction as the State Gov^{ts} now do, and would run into all
the same mischiefs. The reform would only unite the 13 small streams
into one great current pursuing the same course without any opposition
whatever. He adhered to the opinion that the Senate ought to be composed
of a large number, and that their influence from family weight & other
causes would be increased thereby. He did not admit that the Tribunes
lost their weight in proportion as their n^o was augmented and gave a
historical sketch of this institution. If the reasoning of (M^r Madison)
was good it would prove that the number of the Senate ought to be
reduced below ten, the highest n^o of the Tribunitial corps.
[70] It will throw light on this discussion to remark that an
election by the State Legislatures involved a surrender of
the principle insisted on by the large States & dreaded by
the small ones, namely that of a proportional representation
in the Senate. Such a rule w^d make the body too numerous,
as the smallest State must elect one member at
least.--Madison's Note.
M^r Wilson. The subject it must be owned is surrounded with doubts and
difficulties. But we must surmount them. The British Governm^t cannot be
our model. We have no materials for a similar one. Our manners, our
laws, the abolition of entails and of primogeniture, the whole genius of
the people, are opposed to it. He did not see the danger of the States
being devoured by the Nation^l Gov^t. On the contrary, he wished to keep
them from devouring the national Gov^t. He was not however for
extinguishing these planets as was supposed by Mr. D.--neither did he on
the other hand, believe that they would warm or enlighten the Sun.
Within their proper orbits they must still be suffered to act for
subordinate purposes, for which their existence is made essential by the
great extent of our Country. He could not comprehend in what manner the
landed interest w^d be rendered less predominant in the Senate, by an
election through the medium of the Legislatures than by the people
themselves. If the Legislatures, as was now complained, sacrificed the
commercial to the landed interest, what reason was there to expect such
a choice from them as would defeat their own views. He was for an
election by the people in large districts which w^d be most likely to
obtain men of intelligence & uprightness; subdividing the districts only
for the accommodation of voters.
M^r Madison could as little comprehend in what manner family weight, as
desired by M^r D. would be more certainly conveyed into the Senate
through elections by the State Legislatures, than in some other modes.
The true question was in what mode the best choice w^d be made? If an
election by the people, or thro' any other channel than the State
Legislatures promised as uncorrupt & impartial a preference of merit,
there could surely be no necessity for an appointment by those
Legislatures. Nor was it apparent that a more useful check would be
derived thro' that channel than from the people thro' some other. The
great evils complained of were that the State Legislatures run into
schemes of paper money &c. whenever solicited by the people, & sometimes
without even the sanction of the people. Their influence then, instead
of checking a like propensity in the National Legislature, may be
expected to promote it. Nothing can be more contradictory than to say
that the Nat^l Legislature with^t a proper check, will follow the
example of the State Legislatures, & in the same breath, that the State
Legislatures are the only proper check.
M^r Sherman opposed elections by the people in districts, as not likely
to produce such fit men as elections by the State Legislatures.
M^r Gerry insisted that the commercial & monied interest w^d be more
secure in the hands of the State Legislatures, than of the people at
large. The former have more sense of character, and will be restrained
by that from injustice. The people are for paper money when the
Legislatures are ag^{st} it. In Mass^{ts} the County Conventions had
declared a wish for a _depreciating_ paper that w^d sink itself.
Besides, in some States there are two Branches in the Legislature, one
of which is somewhat aristocratic. There w^d therefore be so far a
better chance of refinement in the choice. There seemed, he thought to
be three powerful objections ag^{st} elections by districts, 1. it is
impracticable; the people cannot be brought to one place for the
purpose; and whether brought to the same place or not, numberless frauds
w^d be unavoidable. 2. small States forming part of the same district
with a large one, or large part of a large one, w^d have no chance of
gaining an appointment for its citizens of merit. 3 a new source of
discord w^d be opened between different parts of the same district.
M^r Pinkney thought the 2^d branch ought to be permanent & independent;
& that the members of it w^d be rendered more so by receiving their
appointment from the State Legislatures. This mode w^d avoid the
rivalships & discontents incident to the election by districts. He was
for dividing the States into three classes according to their respective
sizes, & for allowing to the 1^{st} class three members, to the 2^d two,
& to the 3^d one.
On the question for postponing M^r Dickinson's motion referring the
appointment of the Senate to the State Legislatures, in order to
consider M^r Wilson's for referring it to the people.
Mass. no. Con^t no. N. Y. no. N. J. no. P^a ay. Del. no. M^d no.
V^a no. N. C. no. S. C. no. Geo. no.
Col. Mason. Whatever power may be necessary for the Nat^l Gov^t a
certain portion must necessarily be left in the States. It is impossible
for one power to pervade the extreme parts of the U. S. so as to carry
equal justice to them. The State Legislatures also ought to have some
means of defending themselves ag^{st} encroachments of the Nat^l Gov^t.
In every other department we have studiously endeavoured to provide for
its self-defence. Shall we leave the States alone unprovided with the
means for this purpose? And what better means can we provide than the
giving them some share in, or rather to make them a constituent part of,
the Nat^l Establishment. There is danger on both sides no doubt; but we
have only seen the evils arising on the side of the State Gov^{ts}.
Those on the other side remain to be displayed. The example of Cong^s
does not apply. Cong^s had no power to carry their acts into execution,
as the Nat^l Gov^t will have.
On M^r Dickinson's motion for an appointment of the Senate by the State
Legislatures,
Mass. ay. C^t ay. N. Y. ay. P^a ay. Del. ay. M^d ay. V^a ay.
N. C. ay. S. C. ay. Geo. ay.
M^r Gerry gave notice that he w^d tomorrow move for a reconsideration of
the mode of appointing the Nat^l Executive in order to substitute an
appointm^t by the State Executives.
The Committee rose & The House adj^d.