On a reconsideration of the clause giving the Nat^l Legislature a
negative on such laws of the States as might be contrary to the articles
of Union, or Treaties with foreign nations,
M^r Pinkney moved "that the National Legislature sh^d have authority to
negative all laws which they sh^d judge to be improper." He urged that
such a universality of the power was indispensably necessary to render
it effectual; that the States must be kept in due subordination to the
nation; that if the States were left to act of themselves in any case,
it w^d be impossible to defend the national prerogatives, however
extensive they might be on paper; that the acts of Congress had been
defeated by this means; nor had foreign treaties escaped repeated
violations: that this universal negative was in fact the corner stone of
an efficient national Gov^t; that under the British Gov^t the negative
of the Crown had been found beneficial, and the _States_ are more one
nation now, than the _Colonies_ were then.
M^r Madison seconded the motion. He could not but regard an indefinite
power to negative legislative acts of the States as absolutely
necessary to a perfect System. Experience had evinced a constant
tendency in the States to encroach on the federal authority; to violate
national Treaties; to infringe the rights & interests of each other; to
oppress the weaker party within their respective jurisdictions. A
negative was the mildest expedient that could be devised for preventing
these mischiefs. The existence of such a check would prevent attempts to
commit them. Should no such precaution be engrafted, the only remedy w^d
lie in an appeal to coercion. Was such a remedy eligible? was it
practicable? Could the national resources, if exerted to the utmost
enforce a national decree ag^{st} Mass^{ts} abetted perhaps by several
of her neighbours? It w^d not be possible. A small proportion of the
Community, in a compact situation acting on the defensive, and at
one of its extremities, might at any time bid defiance to the National
authority. Any Gov^t for the U. States formed on the supposed
practicability of using force ag^{st} the unconstitutional proceedings
of the States, w^d prove as visionary & fallacious as the Gov^t of
Cong^s. The negative w^d render the use of force unnecessary. The States
c^d of themselves pass no operative act, any more than one branch of a
Legislature where there are two branches, can proceed without the other.
But in order to give the negative this efficacy, it must extend to all
cases. A discrimination w^d only be a fresh source of contention between
the two authorities. In a word, to recur to the illustrations borrowed
from the planetary system. This prerogative of the General Gov^t, is the
great pervading principle that must controul the centrifugal tendency of
the States; which, without it, will continually fly out of their proper
orbits and destroy the order & harmony of the political System.
M^r Williamson was ag^{st} giving a power that might restrain the States
from regulating their internal police.
M^r Gerry c^d not see the extent of such a power, and was ag^{st} every
power that was not necessary. He thought a remonstrance ag^{st}
unreasonable acts of the States w^d reclaim them. If it sh^d not force
might be resorted to. He had no objection to authorize a negative to
paper money and similar measures. When the confederation was depending
before Congress, Massachusetts was then for inserting the power of
emitting paper money am^g the exclusive powers of Congress. He observed
that the proposed negative w^d extend to the regulations of the Militia,
a matter on which the existence of a State might depend. The Nat^l
Legislature with such a power may enslave the States. Such an idea as
this will never be acceded to. It has never been suggested or conceived
among the people. No speculative projector, and there are eno' of that
character among us, in politics as well as in other things, has in any
pamphlet or newspaper thrown out the idea. The States too have different
interests and are ignorant of each other's interests. The Negative
therefore will be abused. New States too having separate views from the
old States will never come into the Union. They may even be under some
foreign influence; are they in such case to participate in the negative
on the will of the other States?
M^r Sherman thought the cases in which the negative ought to be
exercised, might be defined. He wished the point might not be decided
till a trial at least sh^d be made for that purpose.
M^r Wilson would not say what modifications of the proposed power might
be practicable or expedient. But however novel it might appear the
principle of it when viewed with a close & steady eye, is right. There
is no instance in which the laws say that the individual sh^d be bound
in one case, & at liberty to judge whether he will obey or disobey in
another. The cases are parallel. Abuses of the power over the individual
person may happen as well as over the individual States. Federal liberty
is to the States, what civil liberty, is to private individuals, and
States are not more unwilling to purchase it, by the necessary
concession of their political sovereignty, than the savage is to
purchase Civil liberty by the surrender of the personal sovereignty,
which he enjoys in a State of nature. A definition of the cases in which
the Negative should be exercised, is impracticable. A discretion must be
left on one side or the other? will it not be most safely lodged on the
side of the Nat^l Gov^t? Among the first sentiments expressed in the
first Cong^s one was that Virg^a is no more, that Mass^{ts} is no
[more], that P^a is no more &c. We are now one nation of brethren. We
must bury all local interests & distinctions. This language continued
for some time. The tables at length began to turn. No sooner were the
State Gov^{ts} formed than their jealousy & ambition began to display
themselves. Each endeavoured to cut a slice from the common loaf, to add
to its own morsel, till at length the confederation became frittered
down to the impotent condition in which it now stands. Review the
progress of the articles of Confederation thro' Congress & compare the
first & last draught of it. To correct its vices is the business of this
convention. One of its vices is the want of an effectual controul in the
whole over its parts. What danger is there that the whole will
unnecessarily sacrifice a part? But reverse the case, and leave the
whole at the mercy of each part, and will not the general interest be
continually sacrificed to local interests?
M^r Dickenson deemed it impossible to draw a line between the cases
proper & improper for the exercise of the negative. We must take our
choice of two things. We must either subject the States to the danger of
being injured by the power of the Nat^l Gov^t or the latter to the
danger of being injured by that of the States. He thought the danger
greater from the States. To leave the power doubtful, would be opening
another spring of discord, and he was for shutting as many of them as
possible.
M^r Bedford. In answer to his colleague's question, where w^d be the
danger to the States from this power, would refer him to the smallness
of his own State which may be injured at pleasure without redress. It
was meant he found to strip the small States of their equal right of
suffrage. In this case Delaware would have about 1/90 for its share in
the General Councils, whilst P^a & V^a would possess 1/3 of the whole.
Is there no difference of interests, no rivalship of commerce, of
manufactures? Will not these large States crush the small ones whenever
they stand in the way of their ambitious or interested views. This shews
the impossibility of adopting such a system as that on the table, or any
other founded on a change in the priñple of representation. And after
all, if a State does not obey the law of the new System, must not force
be resorted to as the only ultimate remedy, in this as in any other
system. It seems as if P^a & V^a by the conduct of their deputies wished
to provide a system in which they would have an enormous & monstrous
influence. Besides, How can it be thought that the proposed negative can
be exercised? Are the laws of the States to be suspended in the most
urgent cases until they can be sent seven or eight hundred miles, and
undergo the deliberation of a body who may be incapable of Judging of
them? Is the National Legislature too to sit continually in order to
revise the laws of the States?
M^r Madison observed that the difficulties which had been started were
worthy of attention and ought to be answered before the question was
put. The case of laws of urgent necessity must be provided for by some
emanation of the power from the Nat^l Gov^t into each State so far as to
give a temporary assent at least. This was the practice in the Royal
Colonies before the Revolution and would not have been inconvenient if
the supreme power of negativing had been faithful to the American
interest, and had possessed the necessary information. He supposed that
the negative might be very properly lodged in the senate alone, and that
the more numerous & expensive branch therefore might not be obliged to
sit constantly. He asked M^r B. what would be the consequence to the
small States of a dissolution of the Union w^{ch} seemed likely to
happen if no effectual substitute was made for the defective System
existing, and he did not conceive any effectual system could be
substituted on any other basis than that of a proportional suffrage? If
the large States possessed the Avarice & ambition with which they were
charged, would the small ones in their neighbourhood, be more secure
when all controul of a Gen^l Gov^t was withdrawn.
M^r Butler was vehement ag^{st} the Negative in the proposed extent, as
cutting off all hope of equal justice to the distant States. The people
there would not he was sure give it a hearing.
On the question for extending the negative power to all cases as
proposed by (M^r P. & M^r M.) Mass. ay. Con^t no. N. Y. no. N. J. no.
P^a ay. Del. div^d. M^r Read & M^r Dickenson ay. M^r Bedford & M^r
Basset no. Mary^d no. V^a ay. M^r R. M^r Mason no. M^r Blair, Doc^r
M^c C^g M^r M. ay. Gen^l W. not consulted. N. C. no. S. C. no. Geo no.
On motion of M^r Gerry and M^r King tomorrow was assigned for
reconsidering the mode of appointing the National Executive: the
reconsideration being voted for by all the States except Connecticut &
N. Carolina.
M^r Pinkney and M^r Rutlidge moved to add to the Resol^n 4. agreed to by
the Com^e the following, viz. "that the States be divided into three
classes, the 1^{st} class to have 3 members, the 2^d two, & the 3^d one
member each, that an estimate be taken of the comparative importance of
each State at fixed periods, so as to ascertain the number of members
they may from time to time be entitled to." The Committee then rose and
the House adjourned.
SATURDAY JUNE 9^{TH}[71] MR. LUTHER MARTIN FROM
MARYLAND TOOK HIS SEAT. IN COMMITTEE OF THE
WHOLE.
[71] Edward Carrington wrote to Jefferson from New York,
June 9, 1787:
"The debates and proceedings of the Convention are kept in
profound secrecy--opinions of the probable result of their
deliberations can only be formed from the prevailing
impressions of men of reflection and understanding--these
are reducible to two schemes--the first, a consolidation of
the whole Empire into one republic, leaving in the States
nothing more than subordinate courts for facilitating the
administration of the Laws--the second an investiture of the
foederal sovereignty with full and independent authority as
to the Trade, Revenues, and forces of the union, and the
rights of peace and war, together with a negative upon all
the acts of the State legislatures.
The first idea, I apprehend, would be impracticable, and
therefore do not suppose it can be adopted--general Laws
through a Country embracing so many climates, productions,
and manners as the United States, would operate many
oppressions & a general legislature would be found
incompetent to the formation of local ones, as a majority
would in every instance, be ignorant of, and unaffected by
the objects of legislation.... Something like the second
will probably be formed--indeed I am certain that nothing
less than what will give the foederal sovereignty a compleat
controul over the state Governments, will be thought worthy
of discussion--such a scheme constructed upon well adjusted
principles would certainly give us stability and importance
as a nation, and if the Executive powers can be sufficiently
checked, must be eligible--unless the whole has a decided
influence over the parts, the constant effort will be to
resume the delegated powers, and there cannot be an
inducement in the foederal sovereignty to refuse its assent
to an innocent act of a State.... The Eastern opinions are
for a total surrender of the state Sovereignties, and indeed
some amongst them go to a monarchy at once--they have verged
to anarchy, while to the southward we have only felt an
inconvenience, and their proportionate disposition to an
opposite extreme is a natural consequence."--_Jeff. MSS._
M^r Gerry, according to previous notice given by him, moved "that the
national Executive should be elected by the Executives of the States
whose proportion of votes should be the same with that allowed to the
States in the election of the Senate." If the appointm^t should be made
by the Nat^l Legislature, it would lessen that independence of the
Executive which ought to prevail, would give birth to intrigue and
corruption between the Executive & Legislature previous to the election,
and to partiality in the Executive afterwards to the friends who
promoted him. Some other mode therefore appeared to him necessary. He
proposed that of appointing by the State Executives as most analogous to
the principle observed in electing the other branches of the Nat^l
Gov^t; the first branch being chosen by the _people_ of the States, &
the 2^d by the Legislatures of the States, he did not see any objection
ag^{st} letting the Executive be appointed by the Executives of the
States. He supposed the Executives would be most likely to select the
fittest men, and that it would be their interest to support the man of
their own choice.
M^r Randolph urged strongly the inexpediency of M^r Gerry's mode of
appointing the Nat^l Executive. The confidence of the people would not
be secured by it to the Nat^l magistrate. The small States would lose
all chance of an appointm^t from within themselves. Bad appointments
would be made; the Executives of the States being little conversant with
characters not within their own small spheres. The State Executives too
notwithstanding their constitutional independence, being in fact
dependent on the State Legislatures will generally be guided by the
views of the latter, and prefer either favorites within the States, or
such as it may be expected will be most partial to the interests of the
State. A Nat^l Executive thus chosen will not be likely to defend with
becoming vigilance & firmness the National rights ag^{st} State
encroachments. Vacancies also must happen. How can these be filled? He
could not suppose either that the Executives would feel the interest in
supporting the Nat^l Executive which had been imagined. They will not
cherish the great Oak which is to reduce them to paltry shrubs.
On the question for referring the appointment of the Nat^l Executive to
the State Executives as prop^d by M^r Gerry Mass^{ts} no. Con^t no.
N. Y. no. N. J. no. P^a no. Del. div^d. M^d no. V^a no. S. C. no.
Geo. no.[72]
[72] "Carried against the motion, 10 noes, and Delaware
divided."--Yates, _Secret Proceedings_, etc., 111. The
Journal also includes North Carolina among the
noes.--_Journal of the Federal Convention_, 110.
M^r Patterson moves that the Committee resume the clause relating to the
rule of suffrage in the Nat^l Legislature.
M^r Brearly[73] seconds him. He was sorry he said that any question on
this point was brought into view. It had been much agitated in Cong^s at
the time of forming the Confederation, and was then rightly settled by
allowing to each sovereign State an equal vote. Otherwise the smaller
States must have been destroyed instead of being saved. The substitution
of a ratio, he admitted carried fairness on the face of it; but on a
deeper examination was unfair and unjust. Judging of the disparity of
the States by the quota of Cong^s, Virg^a would have 16 votes, and
Georgia but one. A like proportion to the others will make the whole
number ninety. There will be 3 large states, and 10 small ones. The
large States by which he meant Mass^{ts} Pen^a & Virg^a will carry every
thing before them. It had been admitted, and was known to him from facts
within N. Jersey that where large & small counties were united into a
district for electing representatives for the district, the large
counties always carried their point, and Consequently that the large
States would do so. Virg^a with her sixteen votes will be a solid column
indeed, a formidable phalanx. While Georgia with her Solitary vote, and
the other little States will be obliged to throw themselves constantly
into the scale of some large one, in order to have any weight at all. He
had come to the convention with a view of being as useful as he could in
giving energy and stability to the federal Government. When the
proposition for destroying the equality of votes came forward, he was
astonished, he was alarmed. Is it fair then it will be asked that
Georgia should have an equal vote with Virg^a. He would not say it was.
What remedy then? One only, that a map of the U. S. be spread out, that
all the existing boundaries be erased, and that a new partition of the
whole be made into 13 equal parts.
[73] "Mr. Brearly is a man of good, rather than of brilliant
parts. He is a Judge of the Supreme Court of New Jersey, and
is very much in the esteem of the people. As an Orator he
has little to boast of, but as a Man he has every virtue to
recommend him. Mr. Brearly is about 40 years of
age."--Pierce's Notes, _Am. Hist. Rev._, iii., 327.
M^r Patterson considered the proposition for a proportional
representation as striking at the existence of the lesser States. He w^d
premise however to an investigation of this question some remarks on the
nature structure and powers of the Convention. The Convention he said
was formed in pursuance of an Act of Cong^s that this act was recited in
several of the Commissions, particularly that of Mass^{ts} which he
required to be read: that the amendment of the Confederacy was the
object of all the laws and Commissions on the subject: that the articles
of the Confederation were therefore the proper basis of all the
proceedings of the Convention. We ought to keep within its limits, or we
should be charged by our Constituents with usurpation, that the people
of America were sharpsighted and not to be deceived. But the Commissions
under which we acted were not only the measure of our power, they
denoted also the sentiments of the States on the subject of our
deliberation. The idea of a National Gov^t as contradistinguished from a
federal one, never entered into the mind of any of them, and to the
public mind we must accommodate ourselves. We have no power to go beyond
the federal Scheme, and if we had the people are not ripe for any other.
We must follow the people; the people will not follow us.--The
_proposition_ could not be maintained whether considered in reference to
us as a nation, or as a confederacy. A confederacy supposes sovereignty
in the members composing it & sovereignty supposes equality. If we are
to be considered as a nation, all State distinctions must be abolished,
the whole must be thrown into hotchpot, and when an equal division is
made, then there may be fairly an equality of representation. He held up
Virg^a Mass^{ts} & P^a as the three large States, and the other ten as
small ones; repeating the calculations of M^r Brearly, as to the
disparity of votes which w^d take place, and affirming that the small
States would never agree to it. He said there was no more reason that a
great individual State contributing much, should have more votes than a
small one contributing little, than that a rich individual citizen
should have more votes than an indigent one. If the rateable property of
A was to that of B as 40 to 1, ought A for that reason to have 40 times
as many votes as B. Such a principle would never be admitted, and if it
were admitted would put B entirely at the mercy of A. As A has more to
be protected than B so he ought to contribute more for the common
protection. The same may be said of a large State w^{ch} has more to be
protected than a small one. Give the large States an influence in
proportion to their magnitude, and what will be the consequence? Their
ambition will be proportionally increased, and the small States will
have every thing to fear. It was once proposed by Galloway & some others
that America should be represented in the British Parl^t and then be
bound by its laws. America could not have been entitled to more than 1/3
of the n^o of Representatives which would fall to the share of G. B.
Would American rights & interests have been safe under an authority thus
constituted? It has been said that if a Nat^l Gov^t is to be formed so
as to operate on the people, and not on the States, the representatives
ought to be drawn from the people. But why so? May not a Legislature
filled by the State Legislatures operate on the people who chuse the
State Legislatures? or may not a practicable coercion be found. He
admitted that there was none such in the existing System.--He was
attached strongly to the plan of the existing Confederacy, in which the
people chuse their Legislative representatives; and the Legislatures
their federal representatives. No other amendments were wanting than to
mark the orbits of the States with due precision, and provide for the
use of coercion, which was the great point. He alluded to the hint
thrown out heretofore by M^r Wilson of the necessity to which the large
States might be reduced of confederating among themselves, by a refusal
of the others to concur. Let them unite if they please, but let them
remember that they have no authority to compel the others to unite. N.
Jersey will never confederate on the plan before the Committee. She
would be swallowed up. He had rather submit to a monarch, to a despot,
than to such a fate. He would not only oppose the plan here but on his
return home do every thing in his power to defeat it there.
M^r Wilson, hoped if the Confederacy should be dissolved, that a
_majority_, that a _minority_ of the States would unite for their
safety. He entered elaborately into the defence of a proportional
representation, stating for his first position that as all authority was
derived from the people, equal numbers of people ought to have an equal
n^o of representatives, and different numbers of people different
numbers of representatives. This principle had been improperly violated
in the Confederation, owing to the urgent circumstances of the time. As
to the case of A. & B. stated by M^r Patterson, he observed that in
districts as large as the States, the number of people was the best
measure of their comparative wealth. Whether therefore wealth or numbers
were to form the ratio it would be the same. M^r P. admitted persons,
not property to be the measure of suffrage. Are not the Citizens of
Pen^a equal to those of N. Jersey? does it require 150 of the former
to balance 50 of the latter? Representatives of different districts
ought clearly to hold the same proportion to each other, as their
respective Constituents hold to each other. If the small States will not
confederate on this plan, Pen^a & he presumed some other States, would
not confederate on any other. We have been told that each State being
sovereign, all are equal. So each man is naturally a sovereign over
himself, and all men are therefore naturally equal. Can he retain this
equality when he becomes a member of Civil Government. He can not. As
little can a Sovereign State, when it becomes a member of a federal
govern^t. If N. J. will not part with her sovereignty it is vain to talk
of Gov^t. A new partition of the States is desirable, but evidently &
totally impracticable.
M^r Williamson illustrated the cases by a comparison of the different
States, to Counties of different sizes within the same State; observing
that proportional representation was admitted to be just in the latter
case, and could not therefore be fairly contested in the former.
The Question being about to be put M^r Patterson hoped that as so much
depended on it, it might be thought best to postpone the decision till
tomorrow, which was done, nem. con.
The Com^e rose & the House adjourned.
MONDAY, JUNE 11^{TH} M^R ABRAHAM BALDWIN FROM
GEORGIA TOOK HIS SEAT. IN COMMITTEE OF THE
WHOLE.
The clause concerning the rule of suffrage in the Nat^l Legislature
postponed on Saturday was resumed.
M^r Sherman proposed that the proportion of suffrage in the 1^{st}
branch should be according to the respective numbers of free
inhabitants; and that in the second branch or Senate, each State should
have one vote and no more. He said as the States would remain possessed
of certain individual rights, each State ought to be able to protect
itself: otherwise a few large States will rule the rest. The House of
Lords in England he observed had certain particular rights under the
Constitution, and hence they have an equal vote with the House of
Commons that they may be able to defend their rights.
M^r Rutlidge proposed that the proportion of suffrage in the 1^{st}
branch should be according to the quotas of contribution. The justice of
this rule he said could not be contested. M^r Butler urged the same
idea: adding that money was power; and that the States ought to have
weight in the Gov^t in proportion to their wealth.
M^r King & M^r Wilson,[74] in order to bring the question to a point
moved "that the right of suffrage in the first branch of the national
Legislature ought not to be according [to] the rule established in the
articles of Confederation, but according to some equitable ratio of
representation." The clause so far as it related to suffrage in the
first branch was postponed in order to consider this motion.
[74] In the printed Journal Mr. Rutlidge is named as the
seconder of the motion.--Madison's Note.
M^r Dickenson contended for the _actual_ contributions of the States as
the rule of their representation & suffrage in the first branch. By thus
connecting the interests of the States with their duty, the latter would
be sure to be performed.
M^r King remarked that it was uncertain what mode might be used in
levying a National revenue; but that it was probable, imposts would be
one source of it. If the _actual_ contributions were to be the rule the
non-importing States, as Con^t & N. Jersey, w^d be in a bad situation
indeed. It might so happen that they w^d have no representation. This
situation of particular States had been always one powerful argument in
favor of the 5 Per C^t impost.
The question being ab^t to be put Doc^r Franklin s^d he had thrown his
ideas of the matter on a paper w^{ch} Mr. Wilson read to the Committee
in the words following--Mr. Chairman
It has given me great pleasure to observe that till this point,
the proportion of representation, came before us, our debates
were carried on with great coolness & temper. If any thing of a
contrary kind, has on this occasion appeared. I hope it will not
be repeated; for we are sent here to _consult_, not to
_contend_, with each other; and declarations of a fixed opinion,
and of determined resolution, never to change it, neither
enlighten nor convince us. Positiveness and warmth on one side,
naturally beget their like on the other; and tend to create and
augment discord & division in a great concern, wherein harmony &
Union are extremely necessary to give weight to our Councils,
and render them effectual in promoting & securing the common
good.
I must own that I was originally of opinion it would be better
if every member of Congress, or our national Council, were to
consider himself rather as a representative of the whole, than
as an Agent for the interests of a particular State; in which
case the proportion of members for each State would be of less
consequence, & it would not be very material whether they voted
by States or individually. But as I find this is not to be
expected, I now think the number of Representatives should bear
some proportion to the number of the Represented; and that the
decisions sh^d be by the majority of members, not by the
majority of the States. This is objected to from an apprehension
that the greater States would then swallow up the smaller. I do
not at present clearly see what advantage the greater States
could propose to themselves by swallowing up the smaller, and
therefore do not apprehend they would attempt it. I recollect
that in the beginning of this Century, When the Union was
proposed of the two Kingdoms, England & Scotland, the Scotch
Patriots were full of fears, that unless they had an equal
number of Representatives in Parliament, they should be ruined
by the superiority of the English. They finally agreed however
that the different proportions of importance in the Union, of
the two Nations should be attended to, whereby they were to have
only forty members in the House of Commons, and only sixteen in
the House of Lords; A very great inferiority of numbers! And yet
to this day I do not recollect that any thing has been done in
the Parliament of Great Britain to the prejudice of Scotland;
and whoever looks over the lists of Public officers, Civil &
Military of that nation will find I believe that the North
Britons enjoy at least their full proportion of emolument.
But, sir, in the present mode of voting by States, it is equally
in the power of the lesser States to swallow up the greater; and
this is mathematically demonstrable. Suppose for example, that 7
smaller States had each 3 members in the House, and the 6 larger
to have one with another 6 members; and that upon a question,
two members of each smaller State should be in the affirmative
and one in the Negative, they would make