A national judiciary, the judges to hold their offices during good behavior.
In discussing this plan, called the "Virginia plan," the lines of party were distinctly drawn. We have already had occasion to allude to the jealousy, on the part of States, of the power of the General Government. A majority of the peculiar friends of State rights in the convention were from the small States. These States, apprehending danger from the overwhelming power of a strong national government, as well as from the combined power of the large States, represented in proportion to their wealth and population, were unwilling to be deprived of their equal vote in Congress. Not less strenuously did the friends of the national plan insist on a proportional representation. This opposition of sentiment, which divided the convention into parties, did not terminate with the proceedings of that body, but has at times marked the politics of the nation down to the present day. It is worthy of remark, however, that the most jealous regard for State rights now prevails in States in which the plan of a national government then found its ablest and most zealous advocates.
The plan suggested by Randolph's resolutions was the subject of deliberation for about two weeks, when, having been in several respects modified in committee, and reduced to form, it was reported to the House. It contained the following provisions:
A national legislature to consist of two branches, the first to be elected by the people for three years; the second to be chosen by the State legislatures for seven years, the members of both branches to be apportioned on the basis finally adopted; the Legislature to possess powers nearly the same as those originally proposed by Edmund Randolph. The executive was to consist of a single person to be chosen by the National Legislature for seven years, and limited to a single term, and to have a qualified veto; all bills not approved by him to be passed by a vote of three-fourths of both Houses in order to become laws. A national judiciary to consist of a supreme court, the judges to be appointed by the second branch of the Legislature for the term of good behavior, and of such inferior courts as Congress might think proper to establish.
This plan being highly objectionable to the State rights party, a scheme agreeable to their views was submitted by William Paterson, of New Jersey. This scheme, called the "New Jersey plan," proposed no alteration in the constitution of the Legislature, but simply to give it the additional power to raise a revenue by duties on foreign goods imported, and by stamp and postage taxes; to regulate trade with foreign nations and among the States; and, when requisitions made upon the States were not complied with, to collect them by its own authority. The plan proposed a federal executive, to consist of a number of persons selected by Congress; and a federal judiciary, the judges to be appointed by the executive, and to hold their offices during good behavior.
The Virginia and New Jersey plans were now (June 19th) referred to a new committee of the whole. Another debate arose, in which the powers of the convention was the principal subject of discussion. It was again urged that their power had been, by express instruction, limited to an amendment of the existing confederation, and that the new system would not be adopted by the States. The vote was taken on the 19th, and the propositions of William Paterson were rejected; only New York, New Jersey, and Delaware voting in the affirmative; seven States in the negative, and the members from Maryland equally divided.
Randolph's propositions, as modified and reported by the committee of the whole, were now taken up and considered separately. The division of the Legislature into two branches, a House of Representatives and a Senate, was agreed to almost unanimously, one State only, Pennsylvania, dissenting; but the proposition to apportion the members to the States according to population was violently opposed. The small States insisted strenuously on retaining an equal vote in the Legislature, but at length consented to a proportional representation in the House on condition that they should have an equal vote in the Senate.
Accordingly, on June 29th, Oliver Ellsworth, of Connecticut, offered a motion, "that in the second branch, each State shall have an equal vote." This motion gave rise to a protracted and vehement debate. It was supported by Messrs. Ellsworth; Baldwin, of Georgia; Bradford, of Delaware, and others. It was urged on the ground of the necessity of a compromise between the friends of the confederation and those of a national government, and as a measure which would secure tranquillity and meet the objections of the larger States. Equal representation in one branch would make the government partly federal, and a proportional representation in the other would make it partly national. Equality in the second branch would enable the small States to protect themselves against the combined power of the large States. Fears were expressed that without this advantage to the small States, it would be in the power of a few large States to control the rest. The small States, it was said, must possess this power of self-defence, or be ruined.
The motion was opposed by Messrs. Madison, Wilson, of Pennsylvania; King, of Massachusetts, and Dr. Franklin. Mr. Madison thought there was no danger from the quarter from which it was apprehended. The great source of danger to the General Government was the opposing interests of the North and the South, as would appear from the votes of Congress, which had been divided by geographical lines, not according to the size of the States. James Wilson objected to State equality; that it would enable one-fourth of the Union to control three-fourths. Respecting the danger of the three larger States combining together to give rise to a monarchy or an aristocracy, he thought it more probable that a rivalship would exist between them than that they would unite in a confederacy. Rufus King said the rights of Scotland were secure from all danger, though in the Parliament she had a small representation. Dr. Franklin, now in his eighty-second year, said, as it was not easy to see what the greater States could gain by swallowing up the smaller, he did not apprehend they would attempt it. In voting by States—the mode then existing—it was equally in the power of the smaller States to swallow up the greater. He thought the number of representatives ought to bear some proportion to the number of the represented.
On July 2d the question was taken on Mr. Ellsworth's motion, and lost: Connecticut, New York, New Jersey, Delaware, and Maryland voting in the affirmative; Massachusetts, Pennsylvania, Virginia, North Carolina, and South Carolina in the negative; Georgia divided. It will be remembered that the delegates from New Hampshire were not yet present, and that Rhode Island had appointed none. This has been regarded by some as a fortunate circumstance, as the votes of these two small States would probably have given an equal vote to the States in both Houses, if not have defeated the plan of national government.