FRIDAY JUNE 8^{TH} IN COMMITTEE OF THE WHOLE.

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

The Journal of the Debates in the Convention which Framed the Constitution of the United States, May-September 1787. Volume 1 · 第 38 / 114 题