The Journal of the Debates in the Convention which Framed the Constitution of the United States, May-September 1787. Volume 1

by United States. Constitutional Convention; James Madison

Tuesday June 5. In Committee of the whole

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 Resolⁿ 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 Confedⁿ 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 Confedⁿ 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 Confedⁿ 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.

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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.

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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)

[ [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.

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.

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.

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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 Resolⁿ 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.

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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 fœderal 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 fœderal 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 fœderal 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.

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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

Affirmatives 14	Negatives 7
And that all the larger States should be unanimously in the Negative, they would make	Negatives 36
In all	43

It is then apparent that the 14 carry the question against the 43, and the minority overpowers the majority, contrary to the common practice of Assemblies in all Countries and Ages.

The greater States Sir are naturally as unwilling to have their property left in the disposition of the smaller, as the smaller are to have theirs in the disposition of the greater. An honorable gentleman has, to avoid this difficulty, hinted a proposition of equalizing the States. It appears to me an equitable one, and I should, for my own part, not be against such a measure, if it might be found practicable. Formerly, indeed, when almost every province had a different Constitution, some with greater others with fewer privileges, it was of importance to the borderers when their boundaries were contested, whether by running the division lines, they were placed on one side or the other. At present when such differences are done away, it is less material. The Interest of a State is made up of the interests of its individual members. If they are not injured, the State is not injured. Small States are more easily well & happily governed than large ones. If therefore in such an equal division, it should be found necessary to diminish Pennsylvania, I should not be averse to the giving a part of it to N. Jersey, and another to Delaware. But as there would probably be considerable difficulties in adjusting such a division; and however equally made at first, it would be continually varying by the augmentation of inhabitants in some States, and their fixed proportion in others; and thence frequent occasion for new divisions, I beg leave to propose for the consideration of the Committee another mode, which appears to me to be as equitable, more easily carried into practice, and more permanent in its nature.

Let the weakest State say what proportion of money or force it is able and willing to furnish for the general purposes of the Union.

Let all the others oblige themselves to furnish each an equal proportion.

The whole of these joint supplies to be absolutely in the disposition of Congress.

The Congress in this case to be composed of an equal number of Delegates from each State.

And their decisions to be by the Majority of individual members voting.

If these joint and equal supplies should on particular occasions not be sufficient, Let Congress make requisitions on the richer and more powerful States for further aids, to be voluntarily afforded, leaving to each State the right of considering the necessity and utility of the aid desired, and of giving more or less as it should be found proper.

This mode is not new. It was formerly practised with success by the British Government with respect to Ireland and the Colonies. We sometimes gave even more than they expected, or thought just to accept; and in the last war carried on while we were united, they gave us back in 5 years a million Sterling. We should probably have continued such voluntary contributions, whenever the occasions appeared to require them for the common good of the Empire. It was not till they chose to force us, and to deprive us of the merit and pleasure of voluntary contributions that we refused & resisted. Those contributions however were to be disposed of at the pleasure of a Government in which we had no representative. I am therefore persuaded, that they will not be refused to one in which the Representation shall be equal.

My learned colleague (M^r Wilson) has already mentioned that the present method of voting by States, was submitted to originally by Congress, under a conviction of its impropriety, inequality, and injustice. This appears in the words of their Resolution. It is of Sep^r 6. 1774. The words are

"Resolved that in determining questions in this Cong^s each Colony or province shall have one vote: The Cong^s not being possessed of or at present able to procure materials for ascertaining the importance of each Colony."

Affirmatives 14	Negatives 7
And that all the larger States should be unanimously in the Negative, they would make	Negatives 36
In all	43

On the question for agreeing to M^r King's and M^r Wilson's motion it passed in the affirmative.

Mass^ts ay. C^t ay. N. Y. no. N. J. no. P^a ay. Del. no. M^d div^d. V^a ay. N. C. ay. S. C. ay. Geo. ay.

It was then moved by M^r Rutlidge, 2^ded by M^r Butler to add to the words "equitable ratio of representation" at the end of the motion just agreed to, the words "according to the quotas of contribution." On motion of M^r Wilson seconded by M^r Pinkney, this was postponed; in order to add, after the words "equitable ratio of representation" the words following: "in proportion to the whole number of white & other free Citizens & inhabitants of every age sex & condition including those bound to servitude for a term of years and three fifths of all other persons not comprehended in the foregoing description, except Indians not paying taxes, in each State," this being the rule in the Act of Congress agreed to by eleven States, for apportioning quotas of revenue on the States, and requiring a Census only every 5, 7, or 10 years.

M^r Gerry thought property not the rule of representation. Why then sh^d the blacks, who were property in the South, be in the rule of representation more than the Cattle & horses of the North.[75]

[ [75] After Gerry spoke, according to Yates, "Mr. Madison was of opinion at present, to fix the standard of representation, and let the detail be the business of a sub-committee."—Secret Proceedings, p. 116.

On the question,—Mass: Con: N. Y. Pen: Mary^d Virg^a N. C. S. C. & Geo: were in the affirmative: N. J. & Del: in the negative.

M^r Sherman moved that a question be taken whether each State shall have one vote in the 2^d branch. Every thing he said depended on this. The smaller States would never agree to the plan on any other principle than an equality of suffrage in this branch. M^r Elsworth[76] seconded the motion.

[ [76] "M^r Elsworth is a Judge of the Supreme Court in Connecticut;—he is Gentleman of a clear, deep, and copius understanding; eloquent, and connected in public debate; and always attentive to his duty. He is very happy in a reply, and choice in selecting such parts of his adversary's arguments as he finds make the strongest impressions,—in order to take off the force of them, so as to admit the power of his own. M^r Elsworth is about 37 years of age, a Man much respected for his integrity, and venerated for his abilities."—Pierce's Notes, Am. Hist. Rev., iii., 326.

On the question for allowing each State one vote in the 2^d branch,

Mass^ts no. Con^t ay. N. Y. ay. N. J. ay. P^a no. Del. ay. M^d ay. V^a no. N. C. no. S. C. no. Geo. no.

M^r Wilson & M^r Hamilton moved that the right of suffrage in the 2^d branch ought to be according to the same rule as in the 1^st branch. On this question for making the ratio of representation the same in the 2^d as in the 1^st branch it passed in the affirmative;

Mass^ts ay. Con^t no. N. Y. no. N. J. no. P^a ay. Del. no. M^d no. V^a ay. N. C. ay. S. C. ay. Geo. ay.

Resol: 11, for guarantying Republican Gov^t & territory to each State, being considered—the words "or partition," were, on motion of M^r Madison added, after the words "voluntary junction;"

Mas. N. Y. P. V^a N. C. S. C. G. ay. Con: N. J. Del: M^d no.

M^r Read disliked the idea of guarantying territory. It abetted the idea of distinct States w^ch would be a perpetual source of discord. There can be no cure for this evil but in doing away States altogether and uniting them all into one great Society.

Alterations having been made in the Resolution, making it read, "that a Republican Constitution & its existing laws ought to be guaranteed to each State by the U. States," the whole was agreed to nem. con.[77]

[ [77] Yates attributes this amendment to Madison. "Mr. Madison moved an amendment, to add to or alter the resolution as follows: The republican constitutions and the existing laws of each state, to be guaranteed by the United States."—Secret Proceedings, etc., 116.

Resolution 13. for amending the national Constitution hereafter without consent of the Nat^l Legislature being considered, Several members did not see the necessity of the Resolution at all, nor the propriety of making the consent of the Nat^l Legisl. unnecessary.

Col. Mason urged the necessity of such a provision. The plan now to be formed will certainly be defective, as the Confederation has been found on trial to be. Amendments therefore will be necessary, and it will be better to provide for them, in an easy, regular and Constitutional way than to trust to chance and violence. It would be improper to require the consent of the Nat^l Legislature, because they may abuse their power, and refuse their consent on that very account. The opportunity for such an abuse, may be the fault of the Constitution calling for amendm^t.

M^r Randolph enforced these arguments.

The words, "without requiring the consent of the Nat^l Legislature" were postponed. The other provision in the clause passed nem. con.

Resolution 14. requiring oaths from the members of the State Gov^ts to observe the Nat^l Constitution & laws, being considered,[78]

[ [78] "Mr. Williamson. This resolve will be unnecessary, as the union will become the law of the land."—Yates, Secret Proceedings, etc., 117.

M^r Sherman opposed it as unnecessarily intruding into the State jurisdictions.

M^r Randolph considered it necessary to prevent that competition between the National Constitution & laws & those of the particular States, which had already been felt. The officers of the States are already under oath to the States. To preserve a due impartiality they ought to be equally bound to the Nat^l Gov^t. The Nat^l authority needs every support we can give it. The Executive & Judiciary of the States, notwithstanding their nominal independence on the State Legislatures are in fact, so dependent on them, that unless they be brought under some tie to the Nat^l System, they will always lean too much to the State systems, whenever a contest arises between the two.

M^r Gerry did not like the clause. He thought there was as much reason for requiring an oath of fidelity to the States from Nat^l officers, as vice versa.

M^r Luther Martin moved to strike out the words requiring such an oath from the State officers, viz "within the several States," observing that if the new oath should be contrary to that already taken by them it would be improper; if coincident the oaths already taken will be sufficient.

On the question for striking out as proposed by Mr. L. Martin

Mass^ts no. Con^t ay. N. Y. no. N. J. ay. P^a no. Del. ay. M^d ay. V^a no. N. C. no. S. C. no. Geo. no.

Question on whole Resolution as proposed by M^r Randolph;

Mass^ts ay. Con^t no. N. Y. no. N. J. no. P^a ay. Del. no. M^d no. V^a ay. N. C. ay. S. C. ay. Geo. ay.

Com^e rose & House Adj^d.

---

Tuesday June 12^th in Committee of Whole

The Question taken on the Resolution 15, to wit, referring the new system to the people of the States for ratification it passed in the affirmative Mass^ts ay. Con^t no. N. Y. no. N. J. no. P^a[79] ay. Del. div^d. M^d div^d. V^a ay. N. C. ay. S. C. ay. Geo. ay.

[ [79] Pennsylvania omitted in the printed Journal. The vote is there entered as of June 11th.—Madison's Note.

M^r Sherman & M^r Elseworth moved to fill the blank left in the 4^th Resolution for the periods of electing the members of the first branch with the words, "every year;" Mr. Sherman observing that he did it in order to bring on some question.

M^r Rutlidge proposed "every two years."

M^r Jennifer[80] prop^d, "every three years," observing that the too great frequency of elections rendered the people indifferent to them, and made the best men unwilling to engage in so precarious a service.

[ [80] "M^r Jenifer is a Gentleman of fortune in Maryland;—he is always in good humour, and never fails to make his company pleased with him. He sits silent in the Senate, and seems to be conscious that he is no politician. From his long continuance in single life, no doubt but he has made the vow of celibacy. He speaks warmly of the Ladies notwithstanding. M^r Jenifer is about 55 years of Age, and once served as Aid de Camp to Major Gen^l Lee."—Pierce's Notes, Am. Hist. Rev., iii., 330.

M^r Madison seconded the motion for three years. Instability is one of the great vices of our republics, to be remedied. Three years will be necessary, in a Government so extensive, for members to form any knowledge of the various interests of the States to which they do not belong, and of which they can know but little from the situation and affairs of their own. One year will be almost consumed in preparing for and travelling to & from the seat of national business.

M^r Gerry. The people of New England will never give up the point of annual elections, they know of the transition made in England from triennial to septennial elections, and will consider such an innovation here as the prelude to a like usurpation. He considered annual elections as the only defence of the people ag^st tyranny. He was as much ag^st a triennial House as ag^st a hereditary Executive.

M^r Madison, observed that if the opinions of the people were to be our guide, it w^d be difficult to say what course we ought to take. No member of the Convention could say what the opinions of his Constituents were at this time; much less could he say what they would think if possessed of the information & lights possessed by the members here; & still less what would be their way of thinking 6 or 12 months hence. We ought to consider what was right & necessary in itself for the attainment of a proper Governm^t. A plan adjusted to this idea will recommend itself—The respectability of this convention will give weight to their recommendation of it. Experience will be constantly urging the adoption of it, and all the most enlightened & respectable citizens will be its advocates. Should we fall short of the necessary & proper point, this influential class of Citizens, will be turned against the plan, and little support in opposition to them can be gained to it from the unreflecting multitude.

M^r Gerry repeated his opinion that it was necessary to consider what the people would approve. This had been the policy of all Legislators. If the reasoning of Mr. Madison were just, and we supposed a limited Monarchy the best form in itself, we ought to recommend it, tho' the genius of the people was decidedly adverse to it, and having no hereditary distinctions among us, we were destitute of the essential materials for such an innovation.

On the question for the triennial election of the 1^st branch

Mass. no. (M^r King ay.) M^r Ghorum wavering. Con^t no. N. Y. ay. N. J. ay. P^a ay. Del. ay. M^d ay. V^a ay. N. C. no. S. C. no. Geo. ay.

The words requiring members of y^e 1^st branch to be of the age of —— years were struck out Maryland alone no. The words "liberal compensation for members," being consid^d M^r Madison moves to insert the words, "& fixt." He observed that it would be improper to leave the members of the Nat^l legislature to be provided for by the State Legisl^s, because it would create an improper dependence; and to leave them to regulate their own wages, was an indecent thing, and might in time prove a dangerous one. He thought wheat or some other article of which the average price throughout a reasonable period preceding might be settled in some convenient mode, would form a proper standard.

Col. Mason seconded the motion; adding that it would be improper for other reasons to leave the wages to be regulated by the States. 1. the different States would make different provision for their representatives, and an inequality would be felt among them, whereas he thought they ought to be in all respects equal. 2. the parsimony of the States might reduce the provision so low that as had already happened in choosing delegates to Congress, the question would be not who were most fit to be chosen, but who were most willing to serve.

On the question for inserting the words, "and fixt"

Mass^ts no. Con^t no. N. Y. ay. N. J. ay. P^a ay. Del. ay. M^d ay. V^a ay. N. C. ay. S. C. no. Geo. ay.

Doc^r Franklyn said he approved of the amendment just made for rendering the salaries as fixed as possible; but disliked the word "liberal." He would prefer the word moderate if it was necessary to substitute any other. He remarked the tendency of abuses in every case, to grow of themselves when once begun, and related very pleasantly the progression in ecclesiastical benefices, from the first departure from the gratuitous provision for the Apostles, to the establishment of the papal system. The word "liberal" was struck out nem con.

On the motion of M^r Pierce, that the wages should be paid out of the National Treasury, Mass^ts ay. C^t no. N. Y. no. N. J. ay. P^a ay. Del. ay. M^d ay. V^a ay. N. C. ay. S. C. no. G. ay.

Question on the clause relating to term of service & compensation of 1^st branch,

Mass^ts ay. C^t no. N. Y. no. N. J. ay. P^a ay. Del. ay. M^d ay. V^a ay. N. C. ay. S. C. no. Geo. ay.

On a question for striking out the "ineligibility of members of the Nat^l Legis: to State offices,"

Mass^ts div^d. Con^t ay. N. Y. ay. N. J. no. P^a no. Del. no. M^d div^d. V^a no. N. C. ay. S. C. ay. Geo. no.

On the question for agreeing to the clause as amended,

Mass^ts ay. Con^t no. N. Y. ay. N. J. ay. P^a ay. Del. ay. M^d ay. V^a ay. N. C. ay. S. C. ay. Geo. ay.

On a question for making members of the Nat^l Legislature ineligible to any office under the Nat^l Gov^t for the term of 3 years after ceasing to be members,

Mass^ts no. Con^t no. N. Y. no. N. J. no. P^a no. Del. no. M^d ay. V^a no. N. C. no. S. C. no. Geo. no.

On the question for such ineligibility for one year,

Mass^ts ay. C^t ay. N. Y. no. N. J. ay. P^a ay. Del. ay. M^d div^d. V^a ay. N. C. ay. S. C. ay. Geo. no.

On question moved by Mr. Pinckney, for striking out "incapable of re-election into 1^st branch of the Nat^l Legisl. for —— years, and subject to recall" ag^d to nem. con.

On question for striking out from the Resol: 5 the words requiring members of the Senatorial branch to be of the age of —— years at least

Mass^ts no. Con^t ay. N. Y. no. N. J. ay. P^a ay. Del. no. M^d no. V^a no. N. C. div^d. S. C. no. Geo. div^d.

On the question for filling the blank with 30 years as the qualification; it was agreed to,

Mass^ts ay. C^t no. N. Y. ay. N. J. no. P^a ay. Del. no. M^d ay. V^a ay. N. C. ay. S. C. ay. Geo. no.

M^r Spaight moved to fill the blank for the duration of the appointm^ts to the 2^d branch of the National Legislature with the words "7 years."

M^r Sherman, thought 7 years too long. He grounded his opposition he said on the principle that if they did their duty well, they would be reelected. And if they acted amiss, an earlier opportunity should be allowed for getting rid of them. He preferred 5 years which w^d be between the terms of the 1^st branch & of the executive.

M^r Pierce proposed 3 years. 7 years would raise an alarm. Great mischiefs had arisen in England from their septennial Act which was reprobated by most of their patriotic Statesmen.

M^r Randolph was for the term of 7 years. The democratic licentiousness of the State Legislatures proved the necessity of a firm Senate. The object of this 2^d branch is to controul the democratic branch of the Nat^l Legislature. If it be not a firm body, the other branch being more numerous, and coming immediately from the people, will overwhelm it. The Senate of Maryland constituted on like principles had been scarcely able to stem the popular torrent. No mischief can be apprehended, as the concurrence of the other branch, and in some measure, of the Executive, will in all cases be necessary. A firmness & independence may be the more necessary also in this branch, as it ought to guard the Constitution ag^st encroachments of the Executive who will be apt to form combinations with the demagogues of the popular branch.

M^r Madison, considered 7 years as a term by no means too long. What we wished was to give to the Gov^t that stability which was every where called for, and which the Enemies of the Republican form alledged to be inconsistent with its nature. He was not afraid of giving too much stability by the term of Seven years. His fear was that the popular branch would still be too great an overmatch for it. It was to be much lamented that we had so little direct experience to guide us. The Constitution of Maryland was the only one that bore any analogy to this part of the plan. In no instance had the Senate of Mary^d created just suspicions of danger from it. In some instances perhaps it may have erred by yielding to the H. of Delegates. In every instance of their opposition to the measures of the H. of D. they had had with them the suffrages of the most enlightened and impartial people of the other States as well as of their own. In the States where the Senates, were chosen in the same manner as the other branches, of the Legislature, and held their seats for 4 years, the institution was found to be no check whatever ag^st the instabilities of the other branches. He conceived it to be of great importance that a stable & firm Gov^t, organized in the republican form should be held out to the people. If this be not done, and the people be left to judge of this species of Gov^t by y^e operations of the defective systems under which they now live, it is much to be feared the time is not distant when, in universal disgust, they will renounce the blessing which they have purchased at so dear a rate, and be ready for any change that may be proposed to them.

On the question for "seven years" as the term for the 2^d branch Mass^ts divided. (M^r King, M^r Ghorum ay, M^r Gerry, M^r Strong, no) Con^t no. N. Y. div^d N. J. ay. P^a ay. Del. ay. M^d ay. V^a ay. N. C. ay. S. C. ay. Geo. ay.

M^r Butler and M^r Rutlidge proposed that the members of the 2^d branch should be entitled to no salary or compensation for their services. On the question,[81]—

Mass^ts div^d. Con^t ay. N. Y. no. N. J. no. P. no. Del. ay. M^d no. V^a no. N. C. no. S. C. ay. Geo. no.

[ [81] (It is probable y^e votes here turned chiefly on the idea that if the salaries were not here provided for, the members would be paid by their respective States) This note for the bottom margin.—Madison's Note.

It was then moved & agreed that the clauses respecting the stipends & ineligibility of the 2^d branch be the same as, of the 1^st branch:—Con: disagreeing to the ineligibility.

It was moved & 2^ded to alter the Resol: 9. so as to read "that the jurisdiction of the supreme tribunal shall be to hear & determine in the dernier resort, all piracies, felonies, &c."

It was moved & 2^ded to strike out "all piracies & felonies on the high seas," which was agreed to.

It was moved & agreed to strike out "all captures from an enemy."

It was moved & agreed to strike out "other States" and insert "two distinct States of the Union."

It was moved & agreed to postpone the consideration of the Resolution 9, relating to the Judiciary:

The Com^e then rose & the House Adjourned.

---

Wednesday June 13.[82] in Committee of the whole

[ [82] Edward Carrington wrote to Madison from New York, June 13, 1787:

"The public mind is now on the point of a favourable turn to the objects of your meeting, and, being fairly met with the result, will, I am persuaded, eventually embrace it—being calculated for the permanent fitness, and not the momentary habits of the country, it may at first be viewed with hesitation, but derived and patronized as it will be, its influence must extend into an adoption as the present fabric gives way—the work once well done will be done forever, but patched up in accommodation to the whim of the day, it will soon require the hand of the cobbler again, and in every unfortunate experiment the materials are rendered the less fit for that monument of civil liberty which we wish to erect.—Constitute a federal Government, invigorate & check it well—give it then independent powers over the Trade the Revenues, and force of the Union, and all things that involve any relationship to foreign powers—give it also the revisal of all State acts—unless it possesses a compleat controul over the State Governments, the constant effort will be to resume the delegated powers,—nor do I see what inducement the federal sovereignty can have to negative an innocent act of a State—Constitute it in such shape that, its first principles being preserved, it will be a good republic—I wish to see that system have a fair experiment—but let the liability to encroachment be rather from the federal, than the State, governments—in the first case we shall insensibly glide into a monarchy: in the latter nothing but anarchy can be the consequence.

"Some Gentlemen think of a total surrender of the State Sovereignty—I see not the necessity of that measure for giving us national stability in consequence—the negative of the federal sovereignty will effectually prevent the existence of any licentious or inconsiderate act—and I believe that even under a new monarchy it would be found necessary thus to continue the local administration—general Laws would operate many particular [undecipherable] and a general legislature would be found incompetent to the formation of local ones—the interest of the United States may be well combined for the common good—but the affairs of so extensive a country are not to be thrown into one mass—an attempt to confederate upon terms materially opposed to the particular Interests would in all probability occasion a dismemberment, and in that event, within a long time yet to come, the prospects of commerce will be at an end as to any degree of national importance, let her fate be what it may as to freedom or vassalage."—Mad. MSS.

Resol: 9 being resumed

The latter parts of the clause relating to the jurisdiction of the Nat^l tribunals, was struck out nem. con in order to leave full room for their organization.

M^r Randolph & M^r Madison, then moved the following resolution respecting a National Judiciary, viz "that the jurisdiction of the National Judiciary shall extend to cases, which respect the collection of the national revenue, impeachments of any national officers, and questions which involve the national peace and harmony" which was agreed to.

M^r Pinkney & M^r Sherman moved to insert after the words "one supreme tribunal" the words "the Judges of which to be appointed by the National Legislature."

M^r Madison, objected to an app^t by the whole Legislature. Many of them were incompetent Judges of the requisite qualifications. They were too much influenced by their partialities. The candidate who was present, who had displayed a talent for business in the legislative field, who had perhaps assisted ignorant members in business of their own, or of their Constituents, or used other winning means, would without any of the essential qualifications for an expositor of the laws prevail over a competitor not having these recommendations, but possessed of every necessary accomplishment. He proposed that the appointment should be made by the Senate, which as a less numerous & more select body, would be more competent judges, and which was sufficiently numerous to justify such a confidence in them.

M^r Sherman & M^r Pinkney withdrew their motion, and the app^t by the Senate was ag^d to nem. con.

M^r Gerry moved to restrain the Senatorial branch from originating money bills. The other branch was more immediately the representatives of the people, and it was a maxim that the people ought to hold the Purse-strings. If the Senate should be allowed to originate such bills, they w^d repeat the experiment, till chance should furnish a sett of representatives in the other branch who will fall into their snares.

M^r Butler saw no reason for such a discrimination. We were always following the British Constitution when the reason of it did not apply. There was no analogy between the H. of Lords and the body proposed to be established. If the Senate should be degraded by any such discriminations, the best men would be apt to decline serving in it in favor of the other branch. And it will lead the latter into the practice of tacking other clauses to money bills.

M^r Madison observed that the Comentators on the Brit: Const: had not yet agreed on the reason of the restriction on the H. of L. in money bills. Certain it was there could be no similar reason in the case before us. The Senate would be the representatives of the people as well as the 1^st branch. If they s^d have any dangerous influence over it, they would easily prevail on some member of the latter to originate the bill they wished to be passed. As the Senate would be generally a more capable sett of men, it w^d be wrong to disable them from any preparation of the business, especially of that which was most important, and in our republics, worse prepared than any other. The Gentleman in pursuance of his principle ought to carry the restraint to the amendment, as well as the originating of money bills, since, an addition of a given sum w^d be equivalent to a distinct proposition of it.

M^r King differed from M^r Gerry, and concurred in the objections to the proposition.

M^r Read favored the proposition, but would not extend the restraint to the case of amendments.

M^r Pinkney thinks the question premature. If the Senate sh^d be formed on the same proportional representation as it stands at present, they s^d have equal power, otherwise if a different principle s^d be introduced.

M^r Sherman. As both branches must concur, there can be no danger whichever way the Senate be formed. We establish two branches in order to get more wisdom, which is particularly needed in the finance business—The Senate bear their share of the taxes, and are also the representatives of the people. What a man does by another, he does by himself is a maxim. In Con^t both branches can originate in all cases, and it has been found safe & convenient. Whatever might have been the reason of the rule as to The H. of Lords, it is clear that no good arises from it now even there.

Gen^l Pinkney. This distinction prevails in S. C. and has been a source of pernicious disputes between y^e 2 branches. The Constitution is now evaded, by informal schedules of amendments handed from y^e Senate to the other House.

M^r Williamson wishes for a question chiefly to prevent re-discussion. The restriction will have one advantage, it will oblige some member in the lower branch to move, & people can then mark him.

On the question for excepting money bills, as prop^d by M^r Gerry, Mass. no. Con^t no. N. Y. ay. N. J. no. Del. ay. M^d no. V^a ay. N. C. no. S. C. no. Geo. no.[83]

[ [83] According to the Journal (121) Pennsylvania was among the noes.

Committee rose & M^r Ghorum made report, which was postponed till tomorrow, to give an opportunity for other plans to be proposed. The report was in the words following:

Report of the Committee of Whole on M^r Randolph's propositions.

1. Res^d that it is the opinion of this Committee that a National Governm^t ought to be established, consisting of a supreme Legislative, Executive & Judiciary.

2. Resol^d that the National Legislature ought to consist of two branches.

3. Res^d that the members of the first branch of the National Legislature ought to be elected by the people of the several States for the term of three years, to receive fixed Stipends by which they may be compensated for the devotion of their time to public service, to be paid out of the National Treasury: to be ineligible to any office established by a particular State, or under the authority of the U. States, (except those peculiarly belonging to the functions of the first branch), during the term of service, and under the national Government for the Space of one year after its expiration.

4. Res^d that the members of the second branch of the Nat^l Legislature ought to be chosen by the individual Legislatures, to be of the age of 30 years at least, to hold their offices for a term sufficient to ensure their independency, namely, seven years, to receive fixed stipends by which they may be compensated for the devotion of their time to public service to be paid out of the National Treasury; to be ineligible to any office established by a particular State, or under the authority of the U. States, (except those peculiarly belonging to the functions of the second branch) during the term of service, and under the Nat^l Gov^t for the space of one year after its expiration.

5. Res^d that each branch ought to possess the right of originating Acts.

6. Res^d that the Nat^l Legislature ought to be empowered to enjoy the Legislative rights vested in Cong^s by the Confederation, and moreover to legislate in all cases to which the separate States are incompetent; or in which the harmony of the U. S. may be interrupted by the exercise of individual legislation; to negative all laws passed by the several States contravening in the opinion of the National Legislature the articles of Union, or any treaties subsisting under the authority of the Union.

7. Res^d that the rights of suffrage in the 1^st 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, namely, in proportion to the whole number of white & other free citizens & inhabitants, of every age sex and condition, including those bound to servitude for a term of years, & three fifths of all other persons, not comprehended in the foregoing description, except Indians not paying taxes in each State.

8. Resolved that the right of suffrage in the 2^d branch of the National Legislature ought to be according to the rule established for the first.

9. Resolved that a National Executive be instituted to consist of a single person, to be chosen by the Nat^l Legislature for the term of seven years, with power to carry into execution the national laws, to appoint to offices in cases not otherwise provided for—to be ineligible a second time, & to be removeable on impeachment and conviction of malpractices or neglect of duty—to receive a fixed stipend by which he may be compensated for the devotion of his time to public service to be paid out of the national Treasury.

10. Resol^d that the Nat^l Executive shall have a right to negative any Legislative Act, which shall not be afterwards passed unless by two thirds of each branch of the National Legislature.

11. Resol^d that a Nat^l Judiciary be established, to consist of one supreme tribunal, the Judges of which to be appointed by the 2^d branch of the Nat^l Legislature, to hold their offices during good behaviour, & 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.

12. Resol^d that the Nat^l Legislature be empowered to appoint inferior Tribunals.

13. Res^d that the jurisdiction of the Nat^l Judiciary shall extend to all cases which respect the collection of the Nat^l revenue, impeachments of any Nat^l Officers, and questions which involve the national peace & harmony.

14. Res^d 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 Nat^l Legislature less than the whole.

15. Res^d that provision ought to be made for the continuance of Congress and their authorities and privileges untill a given day after the reform of the articles of Union shall be adopted and for the completion of all their engagements.

16. Res^d that a Republican Constitution & its existing laws ought to be guaranteed to each State by the U. States.

17. Res^d that provision ought to be made for the amendment of the Articles of Union whensoever it shall seem necessary.

18. Res^d that the Legislative, Executive & Judiciary powers within the several States ought to be bound by oath to support the articles of Union.

19. Res^d that the amendments which shall be offered to the confederation by the Convention ought at a proper time or times after the approbation of Cong^s to be submitted to an Assembly or Assemblies recommended by the several Legislatures to be expressly chosen by the people to consider and decide thereon.

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