Chapter IV: Part 4

M^r Butler had been in favor of a single Executive Magistrate; but could he have entertained an idea that a compleat negative on the laws was to be given him he certainly should have acted very differently. It had been observed that in all countries the Executive power is in a constant course of increase. This was certainly the case in G. B. Gentlemen seemed to think that we had nothing to apprehend from an abuse of the Executive power. But why might not a Cataline or a Cromwell arise in this Country as well as in others.

M^r Bedford was opposed to every check on the Legislature, even the Council of Revision first proposed. He thought it would be sufficient to mark out in the Constitution the boundaries to the Legislative Authority, which would give all the requisite security to the rights of the other departments. The Representatives of the people were the best Judges of what was for their interest, and ought to be under no external controul whatever. The two branches would produce a sufficient controul within the Legislature itself.

Col. Mason observed that a vote had already passed he found [he was out at the time] for vesting the executive powers in a single person. Among these powers was that of appointing to offices in certain cases. The probable abuses of a negative had been well explained by D^r F. as proved by experience, the best of all tests. Will not the same door be opened here. The Executive may refuse its assent to necessary measures till new appointments shall be referred to him; and having by degrees engrossed these into all his own hands, the American Executive, like the British, will by bribery & influence, save himself the trouble & odium of exerting his negative afterwards. We are M^r Chairman going very far in this business. We are not indeed constituting a British Government, but a more dangerous monarchy, an elective one. We are introducing a new principle into our system, and not necessary as in the British Gov^t where the Executive has greater rights to defend. Do gentlemen mean to pave the way to hereditary Monarchy? Do they flatter themselves that the people will ever consent to such an innovation? If they do I venture to tell them, they are mistaken. The people never will consent. And do gentlemen consider the danger of delay, and the still greater danger of a rejection, not for a moment but forever, of the plan which shall be proposed to them. Notwithstanding the oppression & injustice experienced among us from democracy; the genius of the people is in favor of it, and the genius of the people must be consulted. He could not but consider the federal system as in effect dissolved by the appointment of this Convention to devise a better one. And do gentlemen look forward to the dangerous interval between extinction of an old, and the establishment of a new Governm^t and to the scenes of confusion which may ensue. He hoped that nothing like a Monarchy would ever be attempted in this Country. A hatred to its oppressions had carried the people through the late Revolution. Will it not be eno' to enable the Executive to suspend offensive laws, till they shall be coolly revised, and the objections to them overruled by a greater majority than was required in the first instance. He never could agree to give up all the rights of the people to a single magistrate: If more than one had been fixed on, greater powers might have been entrusted to the Executive. He hoped this attempt to give such powers would have its weight hereafter as an argument for increasing the number of the Executive.

Doc^r Franklin. A Gentleman from S. C., (M^r Butler) a day or two ago called our attention to the case of the U. Netherlands. He wished the gentleman had been a little fuller, and had gone back to the original of that Gov^t. The people being under great obligations to the Prince of Orange whose wisdom and bravery had saved them, chose him for the Stadtholder. He did very well. Inconveniences however were felt from his powers; which growing more & more oppressive, they were at length set aside. Still however there was a party for the P. of Orange, which descended to his son who excited insurrections, spilt a great deal of blood, murdered the de Witts, and got the powers revested in the Stadtholder. Afterwards another Prince had power to excite insurrections & make the Stadtholdership hereditary. And the present Stadth^{der} is ready to wade thro' a bloody civil war to the establishment of a monarchy. Col. Mason had mentioned the circumstance of appointing officers. He knew how that point would be managed. No new appointment would be suffered as heretofore in Pens^a unless it be referred to the Executive; so that all profitable offices will be at his disposal. The first man put at the helm will be a good one. No body knows what sort may come afterwards. The Executive will be always increasing here, as elsewhere, till it ends in a Monarchy.

On the question for striking out so as to give Executive an absolute negative,--Mass^{ts} no. Con^t no. N. Y. no. P^a no. Del. no. M^d no. V^a no. N. C. no. S. C. no. Georg^a no.

M^r Butler moved that the Resol^n be altered so as to read--"Resolved that the National Executive have a power to suspend any Legislative act for the term of ----."

Doct^r Franklin seconds the motion.

M^r Gerry observed that a power of suspending might do all the mischief dreaded from the negative of useful laws; without answering the salutary purpose of checking unjust or unwise ones.

On question "for giving this suspending power" all the States, to wit Mass^{ts} Con^t N. Y. P^a Del. Mary^d Virg^a N. C. S. C. Georgia, were _No_.

On a question for enabling _two thirds_ of each branch of the Legislature to overrule the revisionary check, it passed in the affirmative sub silentio; and was inserted in the blank of M^r Gerry's motion.

On the question on M^r Gerry's motion which gave the Executive alone without the Judiciary the revisionary controul on the laws unless overruled by 2/3 of each branch; Mass^{ts} ay. Con^t no. N. Y. ay. P^a ay. Del. ay. Mary^d no. V^a ay. N. C. ay. S. C. ay. Geo. ay.

It was moved by M^r Wilson 2^{ded} by M^r Madison--that the following amendment be made to the last resolution--after the words "National Ex." to add "& a convenient number of the National Judiciary."[63]

[63] Before the motion, according to King's notes:

"_Madison_--The judiciary ought to be introduced in the
business of Legislation--they will protect their department,
and united with the Executive make its negatives more
strong. There is weight in the objections to this
measure--but a check on the Legislature is necessary,
Experience proves it to be so, and teaches us that what has
been thought a calumny on a republican Govt. is nevertheless
true--In all Countries are diversity of Interests, the Rich
& the Poor, the Dr. & Cr., the followers of different
Demagogues, the Diversity of religious Sects--the Effects of
these Divisions in Ancient Govts. are well known, and the
like causes will now produce like effects. We must therefore
introduce in our system Provisions against the measures of
an interested majority--a check is not only necessary to
protect the Executive power, but the minority in the
Legislature. The independence of the Executive, having the
Eyes of all upon him will make him an impartial judge--add
the Judiciary, and you greatly increase his respectability."

After the motion: "Dickinson opposed--You shd. separate the
Departments--you have given the Executive a share in
Legislation; and it is asked why not give a share to the
judicial power. Because the Judges are to interpret the
Laws, and therefore shd. have no share in making them--not
so with the Executive whose causing the Laws to be Executed
is a ministerial office only. Besides we have experienced in
the Br. Constitution which confers the Power of a negative
on the Executive."--King's _Life and Correspondence of Rufus
King_, i., 592.

An Objection of order being taken by M^r Hamilton to the introduction of the last amendment at this time, notice was given by M^r W. & M^r M., that the same w^d be moved to-morrow,--whereupon Wednesday (the day after) was assigned to reconsider the amendment of M^r Gerry.

It was then moved & 2^{ded} to proceed to the consideration of the 9^{th} resolution submitted by M^r Randolph--when on motion to agree to the first clause namely "Resolved, that a National Judiciary be established," It passed in the affirmative nem. con.

It was then moved & 2^{ded} to add these words to the first clause of the ninth resolution namely--"to consist of one supreme tribunal, and of one or more inferior tribunals," which passed in the affirmative.

The Comm^e then rose and the House

Adjourned.

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 Resol^n 9^{th}. The Clause--"that the National Judiciary be chosen by the National Legislature," being under consideration.

M^r Wilson opposed the appointm^t of Judges by the National Legisl: Experience shewed the impropriety of such appointm^{ts} by numerous bodies. Intrigue, partiality, and concealment were the necessary consequences. A principal reason for unity in the Executive was that officers might be appointed by a single, responsible person.

M^r Rutlidge was by no means disposed to grant so great a power to any single person. The people will think we are leaning too much towards Monarchy. He was against establishing any national tribunal except a single supreme one. The State tribunals are most proper to decide in all cases in the first instance.

Doc^r Franklin observed that two modes of chusing the Judges had been mentioned, to wit, by the Legislature and by the Executive. He wished such other modes to be suggested as might occur to other gentlemen; it being a point of great moment. He would mention one which he had understood was practised in Scotland. He then in a brief and entertaining manner related a Scotch mode, in which the nomination proceeded from the Lawyers, who always selected the ablest of the profession in order to get rid of him, and share his practice among themselves. It was here he said the interest of the electors to make the best choice, which should always be made the case if possible.

Mr. Madison disliked the election of the Judges by the Legislature or any numerous body. Besides the danger of intrigue and partiality, many of the members were not judges of the requisite qualifications. The Legislative talents which were very different from those of a Judge, commonly recommended men to the favor of Legislative Assemblies. It was known too that the accidental circumstances of presence and absence, of being a member or not a member, had a very undue influence on the appointment. On the other hand He was not satisfied with referring the appointment to the Executive, He rather inclined to give it to the Senatorial branch, as numerous eno' to be confided in--as not so numerous as to be governed by the motives of the other branch; and as being sufficiently stable and independent to follow their deliberate judgments. He hinted this only and moved that the _appointment by the Legislature_ might be struck out, & a blank left to be hereafter filled on maturer reflection. M^r Wilson second it. On the question for striking out, Mass^{ts} ay. Con^t no. N. Y. ay. N. J. ay. Pen^a ay. Del. ay. M^d ay. V^a ay. N. C. ay. S. C. no. Geo. ay.

Mr. Wilson gave notice that he should at a future day move for a reconsideration of that clause which respects "inferior tribunals."

M^r Pinkney gave notice that when the clause respecting the appointment of the Judiciary should again come before the Committee he should move to restore the "appointment by the national Legislature."

The following clauses of Resol: 9. were agreed to viz "to hold their offices during good behaviour, and to receive punctually at stated times, a fixed compensation for their services, in which no increase or diminution shall be made so as to affect the persons actually in office at the time of such increase or diminution."

The remaining clause of Resolution 9. was postponed.

Resolution 10 was agreed to,--viz--that provision ought to be made for the admission of States lawfully arising within the limits of the U. States, whether from a voluntary junction of Government & territory, or otherwise with the consent of a number of voices in the National Legislature less than the whole.

The 11. Propos: "_for guaranteeing to States Republican Gov^t & territory_" &c. being read M^r Patterson[64] wished the point of representation could be decided before this clause should be considered, and moved to postpone it, which was not opposed, and agreed to,--Connecticut & S. Carolina only voting ag^{st} it.

[64] "M^r Patterson is one of those kind of Men whose powers
break in upon you, and create wonder and astonishment. He is
a Man of great modesty, with looks that bespeak talents of
no great extent,--but he is a Classic, a Lawyer, and an
Orator;--and of a disposition so favorable to his
advancement that every one seemed ready to exalt him with
their praises. He is very happy in the choice of time and
manner of engaging in a debate, and never speaks but when he
understands his subject well. This Gentleman is about 43 Y.
of age, of a very low stature."--Pierce's Notes, _Amer.
Hist. Rev._, iii., 328.

Propos. 12 "_for continuing Cong^s till a given day and for fulfilling their engagements_," produced no debate.

On the question, Mass. ay. Con^t no. N. Y. ay. N. J.[65] ay. Pa.
ay. Del. no. M^d ay. V^a ay. N. C. ay. S. C. ay. G. ay.

[65] Note in Madison's writing: New Jersey omitted in
printed Journal.

Propos: 13. "that _provision ought to be made for hereafter amending the system now to be established, without requiring the assent of the Nat^l Legislature_", being taken up,

M^r Pinkney doubted the propriety or necessity of it.

M^r Gerry favored it. The novelty & difficulty of the experiment requires periodical revision. The prospect of such a revision would also give intermediate stability to the Gov^t. Nothing had yet happened in the States where this provision existed to prove its impropriety.--The proposition was postponed for further consideration: the votes being, Mas: Con. N. Y. P^a Del. Ma. N. C. ay. Virg^a S. C. Geo. no.

Propos. 14. "_requiring oath from the State officers to support National Gov^t_" was postponed after a short uninteresting conversation: the votes.

Con. N. Jersey M^d Virg. S. C. Geo. ay. N. Y. P^a Del. N. C. no. Massachusetts divided.

Propos. 15. for "_recommending Conventions under appointment of the people to ratify the new Constitution_" &c. being taken up,

M^r Sherman thought such a popular ratification unnecessary: the articles of Confederation providing for changes and alterations with the assent of Cong^s and ratification of State Legislatures.

M^r Madison thought this provision essential. The articles of Confed^n themselves were defective in this respect, resting in many of the States on the Legislative sanction only. Hence in conflicts between acts of the States, and of Cong^s especially where the former are of posterior date, and the decision is to be made by State tribunals, an uncertainty must necessarily prevail, or rather perhaps a certain decision in favor of the State authority. He suggested also that as far as the articles of Union were to be considered as a Treaty only of a particular sort, among the Governments of Independent States, the doctrine might be set up that a breach of any one article, by any of the parties, absolved the other parties from the whole obligation. For these reasons as well as others he thought it indispensable that the new Constitution should be ratified in the most unexceptionable form, and by the supreme authority of the people themselves.

M^r Gerry observed that in the Eastern States the Confed^n had been sanctioned by the people themselves. He seemed afraid of referring the new system to them. The people in that quarter have at this time the wildest ideas of Government in the world. They were for abolishing the Senate in Mass^{ts} and giving all the other powers of Gov^t to the other branch of the Legislature.

M^r King supposed that the last article of y^e Confed^n Rendered the legislature competent to the ratification. The people of the Southern States where the federal articles had been ratified by the Legislatures only, had since _impliedly_ given their sanction to it. He thought notwithstanding that there might be policy in varying the mode. A Convention being a single house, the adoption may more easily be carried thro' it, than thro' the Legislatures where there are several branches. The Legislatures also being to lose power, will be most likely to raise objections. The people having already parted with the necessary powers it is immaterial to them, by which Government they are possessed, provided they be well employed.

M^r Wilson took this occasion to lead the Committee by a train of observations to the idea of not suffering a disposition in the plurality of States to confederate anew on better principles, to be defeated by the inconsiderate or selfish opposition of a few States. He hoped the provision for ratifying would be put on such a footing as to admit of such a partial union, with a door open for the accession of the rest.[66]

[66] (This hint was probably meant in terrorem to the smaller
States of N. Jersey & Delaware. Nothing was said in reply to
it.)--Madison's Note.

M^r Pinkney hoped that in case the experiment should not unanimously take place, nine States might be authorized to unite under the same Governm^t.

The propos. 15. was postponed nem. con^t.

M^r Pinkney & M^r Rutlidge moved that to-morrow be assigned to reconsider that clause of Propos: 4: which respects the election of the first branch of the National Legislature--which passed in affirmative,--Con.: N. Y., P^a Del. M^d, V^a, ay.--6 Mas.: N. J.: N. C.: S. C.: Geo.: no. 5.

Mr. Rutlidge hav^g obtained a rule for reconsideration of the clause for establishing _inferior_ tribunals under the national authority, now moved that that part of the clause in the propos. 9. should be expunged: arguing that the State tribunals might and ought to be left in all cases to decide in the first instance the right of appeal to the supreme national tribunal being sufficient to secure the national rights & uniformity of Judgm^{ts}: that it was making an unnecessary encroachment on the jurisdiction of the States and creating unnecessary obstacles to their adoption of the new system. Mr. Sherman 2^{ded} the motion.

M^r Madison observed that unless inferior tribunals were dispersed throughout the Republic with _final_ jurisdiction in _many_ cases, appeals would be multiplied to a most oppressive degree; that besides, an appeal would not in many cases be a remedy. What was to be done after improper Verdicts in State tribunals obtained under the biassed directions of a dependent Judge, or the local prejudices of an undirected jury? To remand the cause for a new trial would answer no purpose. To order a new trial at the Supreme bar would oblige the parties to bring up their witnesses, tho' ever so distant from the seat of the Court. An effective Judiciary establishment commensurate to the legislative authority, was essential. A Government without a proper Executive & Judiciary would be the mere trunk of a body, without arms or legs to act or move.

M^r Wilson opposed the motion on like grounds. He said the admiralty jurisdiction ought to be given wholly to the national Government, as it related to cases not within the jurisdiction of particular states, & to a scene in which controversies with foreigners would be most likely to happen.

M^r Sherman was in favor of the motion. He dwelt chiefly on the supposed expensiveness of having a new set of Courts, when the existing State Courts would answer the same purpose.

M^r Dickinson contended strongly that if there was to be a National Legislature, there ought to be a national Judiciary, and that the former ought to have authority to institute the latter.

On the question for M^r Rutlidge's motion to strike out "inferior tribunals"

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

M^r Wilson & M^r Madison then moved, in pursuance of the idea expressed above by Mr. Dickinson, to add to the Resol: 9. the words following "that the National Legislature be empowered to institute inferior tribunals." They observed that there was a distinction between establishing such tribunals absolutely, and giving a discretion to the Legislature to establish or not establish them. They repeated the necessity of some such provision.

M^r Butler. The people will not bear such innovations. The States will revolt at such encroachments. Supposing such an establishment to be useful, we must not venture on it. We must follow the example of Solon who gave the Athenians not the best Gov^t he could devise, but the best they w^d receive.

M^r King remarked as to the comparative expence, that the establishment of inferior tribunals w^d cost infinitely less than the appeals that would be prevented by them.

On this question as moved by M^r W. & M^r M.

Mass. ay. C^t no. N. Y. div^d. N. J.[67] ay. P^a ay. Del. ay.
M^d ay. V^a ay. N. C. ay. S. C. no. Geo. ay.

[67] In printed Journals N. Jersey, no.--Madison's Note.

The Committee then rose & the House adjourned to 11 OC tom^w.

WEDNESDAY JUNE 6^{TH} IN COMMITTEE OF THE
WHOLE.

M^r Pinkney according to previous notice & rule obtained, moved "that the first branch of the national Legislature be elected by the State Legislatures, and not by the people;" contending that the people were less fit Judges in such a case, and that the Legislatures would be less likely to promote the adoption of the new Government, if they were to be excluded from all share in it.

M^r Rutlidge 2^{ded} the motion.

M^r Gerry.[68] Much depends on the mode of election. In England the people will probably lose their liberty from the smallness of the proportion having a right of suffrage. Our danger arises from the opposite extreme: hence in Mass^{ts} the worst men get into the Legislature. Several members of that Body had lately been convicted of infamous crimes. Men of indigence, ignorance & baseness, spare no pains, however dirty to carry their point ag^{st} men who are superior to the artifices practised. He was not disposed to run into extremes. He was as much principled as ever ag^{st} aristocracy and monarchy. It was necessary on the one hand that the people should appoint one branch of the Gov^t in order to inspire them with the necessary confidence. But he wished the election on the other to be so modified as to secure more effectually a just preference of merit. His idea was that the people should nominate certain persons in certain districts, out of whom the State Legislatures sh^d make the appointment.

[68] "Mr. Gerry.--If the national legislature are appointed by
the state legislatures, demagogues and corrupt members will
creep in."--Yates's _Secret Debates in Forming the
Constitution_, 105.

M^r Wilson. He wished for vigor in the Gov^t, but he wished that vigorous authority to flow immediately from the legitimate source of all authority. The Gov^t ought to possess not only 1^{st} the _force_, but 2^{dly} the _mind or sense_ of the people at large. The Legislature ought to be the most exact transcript of the whole Society. Representation is made necessary only because it is impossible for the people to act collectively. The opposition was to be expected he said from the _Governments_, not from the Citizens of the States. The latter had parted as was observed (by M^r King) with all the necessary powers; and it was immaterial to them, by whom they were exercised, if well exercised. The State officers were to be the losers of power. The people he supposed would be rather more attached to the national Gov^t than to the State Gov^{ts} as being more important in itself, and more flattering to their pride. There is no danger of improper elections if made by _large_ districts. Bad elections proceed from the smallness of the districts which give an opportunity to bad men to intrigue themselves into office.

M^r Sherman. If it were in view to abolish the State Gov^{ts} the elections ought to be by the people. If the State Gov^{ts} are to be continued, it is necessary in order to preserve harmony between the National & State Gov^{ts} that the elections to the former sh^d be made by the latter. The right of participating in the National Gov^t would be sufficiently secured to the people by their election of the State Legislatures. The objects of the Union, he thought were few, 1. defence ag^{st} foreign danger, 2. ag^{st} internal disputes & a resort to force, 3. Treaties with foreign nations 4. regulating foreign commerce, & drawing revenue from it. These & perhaps a few lesser objects alone rendered a Confederation of the States necessary. All other matters civil & criminal would be much better in the hands of the States. The people are more happy in small than in large States. States may indeed be too small as Rhode Island, & thereby be too subject to faction. Some others were perhaps too large, the powers of Gov^t not being able to pervade them. He was for giving the General Gov^t power to legislate and execute within a defined province.

Col. Mason. Under the existing Confederacy, Cong^s represent the _States_ and not the _people_ of the States: their acts operate on the _States_, not on the individuals. The case will be changed in the new plan of Gov^t. The people will be represented; they ought therefore to choose the Representatives. The requisites in actual representation are that the Rep^s should sympathize with their constituents; sh^d think as they think, & feel as they feel; and that for these purposes sh^d even be residents among them. Much he s^d had been alledged ag^{st} democratic elections. He admitted that much might be said; but it was to be considered that no Gov^t was free from imperfections & evils; and that improper elections in many instances were inseparable from Republican Gov^{ts}. But compare these with the advantage of this Form in favor of the rights of the people, in favor of human nature. He was persuaded there was a better chance for proper elections by the people, if divided into large districts, than by the State Legislatures. Paper money had been issued by the latter when the former were against it. Was it to be supposed that the State Legislatures then w^d not send to the Nat^l legislature patrons of such projects, if the choice depended on them.

M^r Madison considered an election of one branch at least of the Legislature by the people immediately, as a clear principle of free Gov^t and that this mode under proper regulations had the additional advantage of securing better representatives, as well as of avoiding too great an agency of the State Governments in the General one. He differed from the member from Connecticut (Mr. Sherman) in thinking the objects mentioned to be all the principal ones that required a National Gov^t. Those were certainly important and necessary objects; but he combined with them the necessity of providing more effectually for the security of private rights, and the steady dispensation of Justice. Interferences with these were evils which had more perhaps than anything else, produced this convention. Was it to be supposed that republican liberty could long exist under the abuses of it practised in some of the States. The gentleman (M^r Sherman) had admitted that in a very small State, faction & oppression w^d prevail. It was to be inferred then that wherever these prevailed the State was too small. Had they not prevailed in the largest as well as the smallest tho' less than in the smallest; and were we not thence admonished to enlarge the sphere as far as the nature of the Gov^t would Admit. This was the only defence ag^{st} the inconveniences of democracy consistent with the democratic form of Gov^t. All civilized Societies would be divided into different Sects, Factions, & interests, as they happened to consist of rich & poor, debtors & creditors, the landed, the manufacturing, the commercial interests, the inhabitants of this district or that district, the followers of this political leader or that political leader--the disciples of this religious Sect or that religious Sect. In all cases where a majority are united by a common interest or passion, the rights of the minority are in danger. What motives are to restrain them? A prudent regard to the maxim that honesty is the best policy is found by experience to be as little regarded by bodies of men as by individuals. Respect for character is always diminished in proportion to the number among whom the blame or praise is to be divided. Conscience, the only remaining tie is known to be inadequate in individuals: In large numbers, little is to be expected from it. Besides, Religion itself may become a motive to persecution & oppression. These observations are verified by the Histories of every country antient & modern. In Greece & Rome the rich & poor, the Creditors & debtors, as well as the patricians & plebeians alternately oppressed each other with equal unmercifulness. What a source of oppression was the relation between the parent cities of Rome, Athens & Carthage, & their respective provinces; the former possessing the power, & the latter being sufficiently distinguished to be separate objects of it? Why was America so justly apprehensive of Parliamentary injustice? Because G. Britain had a separate interest real or supposed, & if her authority had been admitted, could have pursued that interest at our expence. We have seen the mere distinction of colour made in the most enlightened period of time, a ground of the most oppressive dominion ever exercised by man over man. What has been the source of those unjust laws complained of among ourselves? Has it not been the real or supposed interest of the major number? Debtors have defrauded their creditors. The landed interest has borne hard on the mercantile interest. The Holders of one species of property have thrown a disproportion of taxes on the holders of another species. The lesson we are to draw from the whole is that where a majority are united by a common sentiment, and have an opportunity, the rights of the minor party become insecure. In a Republican Gov^t the majority if united have always an opportunity. The only remedy is to enlarge the sphere, & thereby divide the community into so great a number of interests & parties, that in the 1^{st} place a majority will not be likely at the same moment to have a common interest separate from that of the whole or of the minority; and in the 2^d place that in case they sh^d have such an interest, they may not be apt to unite in the pursuit of it. It was incumbent on us then to try this remedy, and with that view to frame a republican system on such a scale & in such a form as will controul all the evils w^{ch} have been experienced.

M^r Dickinson considered it essential that one branch of the Legislature sh^d be drawn immediately from the people; and as expedient that the other sh^d be chosen by the Legislatures of the States. This combination of the State Gov^{ts} with the national Gov^t was as politic as it was unavoidable. In the formation of the Senate we ought to carry it through such a refining process as will assimilate it as nearly as may be to the House of Lords in England. He repeated his warm eulogiums on the British Constitution. He was for a strong National Gov^t but for leaving the States a considerable agency in the System. The objection ag^{st} making the former dependent on the latter might be obviated by giving to the Senate an authority permanent & irrevocable for three, five or seven years. Being thus independent they will check & decide with becoming freedom.

M^r Read. Too much attachment is betrayed to the State Govern^{ts}. We must look beyond their continuance. A national Gov^t must soon of necessity swallow all of them up. They will soon be reduced to the mere office of electing the National Senate. He was ag^{st} patching up the old federal System: he hoped the idea w^d be dismissed. It would be like putting new cloth on an old garment. The confederation was founded on temporary principles. It cannot last: it can not be amended. If we do not establish a good Gov^t on new principles, we must either go to ruin, or have the work to do over again. The people at large are wrongly suspected of being averse to a Gen^l Gov^t. The aversion lies among interested men who possess their confidence.

M^r Pierce[69] was for an election by the people as to the 1^{st} branch & by the States as to the 2^d branch; by which means the Citizens of the States w^d be represented both _individually_ & _collectively_.

[69] "My own character I shall not attempt to draw, but leave
those who may choose to speculate on it, to consider it in
any light that their fancy or imagination may depict. I am
conscious of having discharged my duty as a Soldier through
the course of the late revolution with honor and propriety;
and my services in Congress and the Convention were bestowed
with the best intention towards the interest of Georgia, and
towards the general welfare of the Confederacy. I possess
ambition, and it was that, and the flattering opinion which
some of my Friends had of me, that gave me a seat in the
wisest Council in the World, and furnished me with an
opportunity of giving these short Sketches of the Characters
who composed it."--Pierce's Notes, _Amer. Hist. Rev._, iii.,
334.

General Pinkney wished to have a good National Gov^t & at the same time to leave a considerable share of power in the States. An election of either branch by the people scattered as they are in many States, particularly in S. Carolina was totally impracticable. He differed from gentlemen who thought that a choice by the people w^d be a better guard ag^{st} bad measures, than by the Legislatures. A majority of the people in S. Carolina were notoriously for paper-money as a legal tender; the Legislature had refused to make it a legal tender. The reason was that the latter had some sense of character and were restrained by that consideration. The State Legislatures also he said would be more jealous, & more ready to thwart the National Gov^t, if excluded from a participation in it. The Idea of abolishing these Legislatures w^d never go down.

M^r Wilson would not have spoken again, but for what had fallen from Mr. Read; namely, that the idea of preserving the State Gov^{ts} ought to be abandoned. He saw no incompatibility between the national & State Gov^{ts} provided the latter were restrained to certain local purposes; nor any probability of their being devoured by the former. In all confederated Systems antient & modern the reverse had happened; the Generality being destroyed gradually by the usurpations of the parts composing it.

On the question for electing the 1^{st} branch by the State Legislatures as moved by M^r Pinkney: it was negatived:

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

M^r Wilson moved to reconsider the vote excluding the Judiciary from a share in the revision of the laws, and to add after "National Executive" the words "with a convenient number of the national Judiciary;" remarking the expediency of reinforcing the Executive with the influence of that Department.

M^r Madison 2^{ded} the motion. He observed that the great difficulty in rendering the Executive competent to its own defence arose from the nature of Republican Gov^t which could not give to an individual citizen that settled pre-eminence in the eyes of the rest, that weight of property, that personal interest ag^{st} betraying the national interest, which appertain to an hereditary magistrate. In a Republic personal merit alone could be the ground of political exaltation, but it would rarely happen that this merit would be so pre-eminent as to produce universal acquiescence. The Executive Magistrate would be envied & assailed by disappointed competitors: His firmness therefore w^d need support. He would not possess those great emoluments from his station, nor that permanent stake in the public interest which w^d place him out of the reach of foreign corruption. He would stand in need therefore of being controuled as well as supported. An association of the Judges in his revisionary function w^d both double the advantage and diminish the danger. It w^d also enable the Judiciary Department the better to defend itself ag^{st} Legislative encroachments. Two objections had been made 1^{st} that the Judges ought not to be subject to the bias which a participation in the making of laws might give in the exposition of them. 2^{dly} that the Judiciary Departm^t ought to be separate & distinct from the other great Departments. The 1^{st} objection had some weight; but it was much diminished by reflecting that a small proportion of the laws coming in question before a Judge w^d be such wherein he had been consulted; that a small part of this proportion w^d be so ambiguous as to leave room for his prepossessions; and that but a few cases w^d probably arise in the life of a Judge under such ambiguous passages. How much good on the other hand w^d proceed from the perspicuity, the conciseness, and the systematic character w^{ch} the Code of laws w^d receive from the Judiciary talents. As to the 2^d objection, it either had no weight, or it applied with equal weight to the Executive & to the Judiciary revision of the laws. The maxim on which the objection was founded required a separation of the Executive as well as the Judiciary from the Legislature & from each other. There w^d in truth however be no improper mixture of these distinct powers in the present case. In England, whence the maxim itself had been drawn, the Executive had an absolute negative on the laws; and the Supreme tribunal of Justice (the House of Lords) formed one of the other branches of the Legislature. In short whether the object of the revisionary power was to restrain the Legislature from encroaching on the other co-ordinate Departments, or on the rights of the people at large; or from passing laws unwise in their principle, or incorrect in their form, the utility of annexing the wisdom and weight of the Judiciary to the Executive seemed incontestable.

M^r Gerry thought the Executive, whilst standing alone w^d be more impartial than when he c^d be covered by the sanction & seduced by the sophistry of the Judges.

M^r King. If the Unity of the Executive was preferred for the sake of responsibility, the policy of it is as applicable to the revisionary as to the executive power.

M^r Pinkney had been at first in favor of joining the heads of the principal departm^{ts} the Secretary at War, of foreign affairs &c.--in the council of revision. He had however relinquished the idea from a consideration that these could be called on by the Executive Magistrate whenever he pleased to consult them. He was opposed to the introduction of the Judges into the business.

Col. Mason was for giving all possible weight to the revisionary institution. The Executive power ought to be well secured ag^{st} Legislative usurpations on it. The purse & the sword ought never to get into the same hands whether Legislative or Executive.

M^r Dickinson. Secrecy, vigor & despatch are not the principal properties req^d in the Executive. Important as these are, that of responsibility is more so, which can only be preserved; by leaving it singly to discharge its functions. He thought too a junction of the Judiciary to it, involved an improper mixture of powers.

M^r Wilson remarked, that the responsibility required belonged to his Executive duties. The revisionary duty was an extraneous one, calculated for collateral purposes.

M^r Williamson, was for substituting a clause requiring 2/3 for every effective act of the Legislature, in place of the revisionary provision.

On the question for joining the Judges to the Executive in the revisionary business,

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

M^r Pinkney gave notice that tomorrow he should move for the reconsideration of that clause in the sixth Resolution adopted by the Comm^e which vests a negative in the National Legislature on the laws of the several States.

The Com^e rose & the House adj^d to 11 OC.

THURSDAY JUNE 7^{TH} 1787--IN COMMITTEE OF THE
WHOLE

M^r Pinkney according to notice moved to reconsider the clause respecting the negative on State laws, which was agreed to, and tomorrow for fixed the purpose.

The Clause providing for y^e appointment of the 2^d branch of the national Legislature, having lain blank since the last vote on the mode of electing it, to wit, by the 1^{st} branch, M^r Dickinson now moved "that the members of the 2^d branch ought to be chosen by the individual Legislatures."

M^r Sherman seconded the motion; observing that the particular States would thus become interested in supporting the National Govenm^t and that a due harmony between the two Governments would be maintained. He admitted that the two ought to have separate and distinct jurisdictions, but that they ought to have a mutual interest in supporting each other.

M^r Pinkney. If the small States should be allowed one Senator only, the number will be too great, there will be 80 at least.

M^r Dickinson had two reasons for his motion. 1, because the sense of the States would be better collected through their Governments; than immediately from the people at large; 2. because he wished the Senate to consist of the most distinguished characters, distinguished for their rank in life and their weight of property, and bearing as strong a likeness to the British House of Lords as possible; and he thought such characters more likely to be selected by the State Legislatures, than in any other mode. The greatness of the number was no objection with him. He hoped there would be 80 and twice 80. of them. If their number should be small, the popular branch could not be balanced by them. The legislature of a numerous people ought to be a numerous body.

M^r Williamson, preferred a small number of Senators, but wished that each State should have at least one. He suggested 25 as a convenient number. The different modes of representation in the different branches, will serve as a mutual check.

M^r Butler was anxious to know the ratio of representation before he gave any opinion.

M^r Wilson. If we are to establish a national Government, that Government ought to flow from the people at large. If one branch of it should be chosen by the Legislatures, and the other by the people, the two branches will rest on different foundations, and dissensions will naturally arise between them. He wished the Senate to be elected by the people as well as the other branch, the people might be divided into proper districts for the purpose & moved to postpone the motion of M^r Dickinson, in order to take up one of that import.

M^r Morris 2^{ded} him.

M^r Read proposed "that the Senate should be appointed by the Executive Magistrate out of a proper number of persons to be nominated by the individual legislatures." He said he thought it his duty, to speak his mind frankly. Gentlemen he hoped would not be alarmed at the idea. Nothing short of this approach towards a proper model of Government would answer the purpose, and he thought it best to come directly to the point at once.--His proposition was not seconded nor supported.

M^r Madison, if the motion (of Mr. Dickinson) should be agreed to, we must either depart from the doctrine of proportional representation; or admit into the Senate a very large number of members. The first is inadmissible, being evidently unjust. The second is inexpedient. The use of the Senate is to consist in its proceeding with more coolness, with more system, & with more wisdom, than the popular branch. Enlarge their number and you communicate to them the vices which they are meant to correct. He differed from M^r D. who thought that the additional number would give additional weight to the body. On the contrary it appeared to him that their weight would be in an inverse ratio to their number. The example of the Roman Tribunes, was applicable. They lost their influence and power, in proportion as their number was augmented. The reason seemed to be obvious: They were appointed to take care of the popular interests & pretensions at Rome, because the people by reason of their numbers could not act in concert; were liable to fall into factions among themselves, and to become a prey to their aristocratic adversaries. The more the representatives of the people therefore were multiplied, the more they partook of the infirmities of their constituents, the more liable they became to be divided among themselves either from their own indiscretions or the artifices of the opposite faction, and of course the less capable of fulfilling their trust. When the weight of a set of men depends merely on their personal characters; the greater the number the greater the weight. When it depends on the degree of political authority lodged in them the smaller the number the greater the weight. These considerations might perhaps be combined in the intended Senate; but the latter was the material one.

M^r Gerry. 4 modes of appointing the Senate have been mentioned. 1. by the 1^{st} branch of the National Legislature. This would create a dependance contrary to the end proposed. 2. by the National Executive. This is a stride towards monarchy that few will think of. 3. by the people. The people have two great interests, the landed interest, and the commercial including the stockholders. To draw both branches from the people will leave no security to the latter interest; the people being Chiefly composed of the landed interest, and erroneously supposing, that the other interests are adverse to it. 4. by the Individual Legislatures. The elections being carried thro' this refinement, will be most likely to provide some check in favor of the Commercial interest ag^{st} the landed; without which oppression will take place, and no free Gov^t can last long where that is the case. He was therefore in favor of this last.

M^r Dickenson.[70] The preservation of the States in a certain degree of agency is indispensable. It will produce that collision between the different authorities which should be wished for in order to check each other. To attempt to abolish the States altogether, would degrade the Councils of our Country, would be impracticable, would be ruinous. He compared the proposed National System to the Solar System, in which the States were the planets, and ought to be left to move freely in their proper orbits. The Gentleman from P^a (M^r Wilson) wished he said to extinguish these planets. If the State Governments were excluded from all agency in the national one, and all power drawn from the people at large, the consequence would be that the national Gov^t would move in the same direction as the State Gov^{ts} now do, and would run into all the same mischiefs. The reform would only unite the 13 small streams into one great current pursuing the same course without any opposition whatever. He adhered to the opinion that the Senate ought to be composed of a large number, and that their influence from family weight & other causes would be increased thereby. He did not admit that the Tribunes lost their weight in proportion as their n^o was augmented and gave a historical sketch of this institution. If the reasoning of (M^r Madison) was good it would prove that the number of the Senate ought to be reduced below ten, the highest n^o of the Tribunitial corps.

[70] It will throw light on this discussion to remark that an
election by the State Legislatures involved a surrender of
the principle insisted on by the large States & dreaded by
the small ones, namely that of a proportional representation
in the Senate. Such a rule w^d make the body too numerous,
as the smallest State must elect one member at
least.--Madison's Note.

M^r Wilson. The subject it must be owned is surrounded with doubts and difficulties. But we must surmount them. The British Governm^t cannot be our model. We have no materials for a similar one. Our manners, our laws, the abolition of entails and of primogeniture, the whole genius of the people, are opposed to it. He did not see the danger of the States being devoured by the Nation^l Gov^t. On the contrary, he wished to keep them from devouring the national Gov^t. He was not however for extinguishing these planets as was supposed by Mr. D.--neither did he on the other hand, believe that they would warm or enlighten the Sun. Within their proper orbits they must still be suffered to act for subordinate purposes, for which their existence is made essential by the great extent of our Country. He could not comprehend in what manner the landed interest w^d be rendered less predominant in the Senate, by an election through the medium of the Legislatures than by the people themselves. If the Legislatures, as was now complained, sacrificed the commercial to the landed interest, what reason was there to expect such a choice from them as would defeat their own views. He was for an election by the people in large districts which w^d be most likely to obtain men of intelligence & uprightness; subdividing the districts only for the accommodation of voters.

M^r Madison could as little comprehend in what manner family weight, as desired by M^r D. would be more certainly conveyed into the Senate through elections by the State Legislatures, than in some other modes. The true question was in what mode the best choice w^d be made? If an election by the people, or thro' any other channel than the State Legislatures promised as uncorrupt & impartial a preference of merit, there could surely be no necessity for an appointment by those Legislatures. Nor was it apparent that a more useful check would be derived thro' that channel than from the people thro' some other. The great evils complained of were that the State Legislatures run into schemes of paper money &c. whenever solicited by the people, & sometimes without even the sanction of the people. Their influence then, instead of checking a like propensity in the National Legislature, may be expected to promote it. Nothing can be more contradictory than to say that the Nat^l Legislature with^t a proper check, will follow the example of the State Legislatures, & in the same breath, that the State Legislatures are the only proper check.

M^r Sherman opposed elections by the people in districts, as not likely to produce such fit men as elections by the State Legislatures.

M^r Gerry insisted that the commercial & monied interest w^d be more secure in the hands of the State Legislatures, than of the people at large. The former have more sense of character, and will be restrained by that from injustice. The people are for paper money when the Legislatures are ag^{st} it. In Mass^{ts} the County Conventions had declared a wish for a _depreciating_ paper that w^d sink itself. Besides, in some States there are two Branches in the Legislature, one of which is somewhat aristocratic. There w^d therefore be so far a better chance of refinement in the choice. There seemed, he thought to be three powerful objections ag^{st} elections by districts, 1. it is impracticable; the people cannot be brought to one place for the purpose; and whether brought to the same place or not, numberless frauds w^d be unavoidable. 2. small States forming part of the same district with a large one, or large part of a large one, w^d have no chance of gaining an appointment for its citizens of merit. 3 a new source of discord w^d be opened between different parts of the same district.